Federal Register Vol. 83, No.150,

The FAA has determined that notice and opportunity for prior public comment are unnecessary because the substance of these special conditions has been subjected to the public comment process in several prior instances with no substantive comments received. It is unlikely that prior public comment would result in a significant change from the substance contained herein. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment.

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 ask that you send us two copies of written comments.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

On October 19, 2017, Cirrus Design Corporation (Cirrus) applied for a change to Type Certificate No. A00018CH for installation of rechargeable lithium batteries and battery systems in the Model SF50. The SF50 is a normal category single-engine-jet airplane powered by a Williams International Model FJ33-5A turbofan engine capable of carrying eight occupants including one pilot, with a maximum takeoff weight of 6,000 pounds and a maximum operating altitude 28,000 feet.

The current regulatory requirements for part 23 airplanes do not contain adequate requirements for use of rechargeable lithium batteries in airborne applications. This type of battery possesses certain failure and operational characteristics with maintenance requirements that differ significantly from that of the nickel-cadmium (Ni-Cd) and lead-acid rechargeable batteries currently approved in other normal, utility, acrobatic, and commuter category airplanes. Therefore, the FAA is applying this special condition to address—

• All characteristics of the rechargeable lithium batteries and their installation that could affect safe operation of the modified SF50 airplanes; and

• Appropriate Instructions for Continued Airworthiness (ICA) that include maintenance requirements to ensure the availability of electrical power from the batteries when needed.

Under the provisions of § 21.101, Cirrus must show that the SF50 airplane, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate Data Sheet (TCDS) No. A00018CH 4 or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in TCDS No. A00018CH are as follows:

14 CFR part 23, effective February 1, 1965, as amended by amendments 23-1 through 23-62.

14 CFR part 34, effective September 10, 1990, as amended by amendments 34-1 through 34-5A.

14 CFR part 36, effective December 1, 1969, as amended by amendments 36-1 through 36-28.

23-261-SC, issued September 4, 2013, Inflatable Three-Point Restraint Safety Belt with an Integrated Airbag Device.

23-267-SC, issued September 14, 2015, Full Authority Digital Engine Control System.

23-272-SC, issued December 2, 2015, Auto Throttle.

23-275-SC, issued July 6, 2016, Whole Airplane Parachute Recovery System.

Exemption No. 9948, dated October 23, 2009, §§ 23.562(b) and 23.785(a), Installation of seats limited to occupants weighing 90 pounds or less.

Exemption No. 11092, dated October 23, 2014, § 23.177(b), Use of electric roll trim for static lateral stability.

Exemption No. 16970, dated June 23, 2016, § 23.1419(a), 61-knot stall speed with critical ice accretions.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for the SF50 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the SF50 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 § 11.19, under § 11.38 and they become part of the type certification basis under § 21.101.

Special conditions are initially applicable to the models 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, the FAA would apply these special conditions to the other model(s).

The Cirrus SF50 airplane will incorporate the following novel or unusual design features: The installation of a rechargeable lithium battery as a main or engine start airplane battery.

The applicable regulations governing the installation of batteries in general aviation airplanes were derived from Civil Air Regulations (CAR) 3 as part of the recodification that established 14 CFR part 23. The battery requirements identified in § 23.1353 were a rewording of the CAR requirements. Additional rulemaking activities—resulting from increased incidents of Ni-Cd battery fire or failures—incorporated § 23.1353(f) and (g), amendments 23-20 and 23-21, respectively. The FAA did not envision the introduction of lithium battery installations at the time these regulations were published.

The proposed use of rechargeable lithium batteries prompted the FAA to review the adequacy of these existing regulations. We determined the existing regulations do not adequately address the safety of lithium battery installations.

Current experience with rechargeable lithium batteries in commercial or general aviation is limited. However, other users of this technology—ranging from personal computers, to wireless telephone manufacturers, to the electric vehicle industry—have noted safety problems with rechargeable lithium batteries. These problems, as described in the following paragraphs, include overcharging, over-discharging, flammability of cell components, cell internal defects, and hazards resulting from exposure to extreme temperatures.

1. Overcharging: In general, rechargeable lithium batteries are significantly more susceptible than their Ni-Cd or lead-acid counterparts to thermal runway, which is an internal failure that can result in self-sustaining increases in temperature and pressure. This is especially true for overcharging, which causes heating and destabilization of the components of the cell, leading to the formation (by plating) of highly unstable metallic lithium. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion. Finally, the severity of thermal runaway due to overcharging increases with increasing battery capacity due to the higher amount of electrolyte in large batteries.

2. Over-discharging: Discharge of some types of rechargeable lithium battery cells beyond the manufacturer's recommended specification can cause corrosion of the electrodes of the cell, resulting in loss of battery capacity that cannot be reversed by recharging. This loss of capacity may not be detected by the simple voltage measurements commonly available to flight crews as a means of checking battery status—a problem shared with Ni-Cd batteries. In addition, over-discharging has the potential to lead to an unsafe condition (creation of dendrites that could result in internal short circuit during the recharging cycle).

3. Flammability of Cell Components: Unlike Ni-Cd and lead-acid batteries, some types of rechargeable lithium batteries use liquid electrolytes that are flammable. The electrolyte can serve as a source of fuel for an external fire, if there is a breach of the battery container.

4. Cell Internal Defects: The rechargeable lithium batteries and rechargeable battery systems have a history of undetected cell internal defects. These defects may or may not be detected during normal operational evaluation, test, and validation. This may lead to an unsafe condition during in-service operation.

5. Extreme Temperatures: Exposure to an extreme temperature environment has the potential to create major hazards. Care must be taken to ensure that the lithium battery remains within the manufacturer's recommended specification.

As discussed above, these special conditions are applicable to the SF50 airplane. Should Cirrus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the FAA would apply these special conditions to that model as well.

This action affects only certain novel or unusual design features on the SF50 airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the subject contained herein. Therefore, notice and opportunity for prior public comment hereon are unnecessary and the FAA finds good cause, in accordance with 5 U.S.C. 553(b)(3)(B) and 553(d)(3), for making these special conditions effective upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

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 the Cirrus Design Corporation Model SF50 airplane.

In lieu of the requirements in § 23.1353 (a), (b), (c), (d), and (e), amendment 23-62, rechargeable lithium battery installations on the Cirrus Model SF50 must be designed and installed as follows:

(1) Maintain safe cell temperatures and pressures during—

i. Normal operations;

ii. Any probable failure conditions of charging or discharging or battery monitoring system;

iii. Any failure of the charging or battery monitoring system shown to not be extremely remote.

(2) Prevent explosion or fire in the event of a failure under (1)(ii) and (1)(iii) above.

(3) Prevent the occurrence of self-sustaining, uncontrolled increases in temperature or pressure.

(4) Not emit explosive or toxic gases in hazardous quantities within the airplane either in normal operation or as a result of any failure.

(5) Comply with the requirements of § 23.863(a) through (d) at amendment 23-62.

(6) Escaped corrosive fluids or gases shall not damage surrounding structure or any adjacent systems, equipment, electrical wiring, or the airplane in such a way as to cause a major or more severe failure condition, in accordance with § 23.1309(c) at amendment 23-62—or commensurate § 23.1309 paragraphs of older amendment—and applicable regulatory guidance.

(7) The maximum amount of heat resulting from a short circuit of the battery or internal cell, or any other failure, shall not have any hazardous effect on structure or essential systems.

(8) Rechargeable lithium battery installations must have a system to automatically control the charging rate of the battery to prevent battery overheating and overcharging, and either—

i. A battery temperature sensing and over-temperature warning system with a means for automatically disconnecting the battery from its charging source in the event of an over-temperature condition; or

ii. A battery failure sensing and warning system with a means for automatically disconnecting the battery from its charging source in the event of battery failure.

(9) Any rechargeable lithium battery installation, the function of which is required for safe operation of the aircraft, must incorporate a monitoring and warning feature that will provide an indication to the appropriate flight crewmembers whenever the state of charge of the batteries has fallen below levels considered acceptable for dispatch of the aircraft.

Comments Invited

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA Emergency AD No. 2017-0046-E, dated March 10, 2017, to correct an unsafe condition for Leonardo (previously Finmeccanica S.p.A, AgustaWestland S.p.A.) Model A109E, A109LUH, A109S, and AW109SP helicopters. EASA advises that during inspections of two AW109SP helicopters, degraded bearings, part number (P/N) 109G6320L01-101, were discovered on the engine and transmission oil cooling system pulley assembly, P/N 109G6320A26-101. EASA further states that because of this condition, both fan assemblies could cease to function, resulting in engine power loss, transmission failure, and loss of control of the helicopter. To correct this unsafe condition, the EASA AD requires a one-time inspection of each pulley assembly bearing and replacing each fan assembly.

These helicopters have been approved by the aviation authority of Italy and are approved for operation in the United States. Pursuant to our bilateral agreement with Italy, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.

We reviewed Leonardo Helicopters Emergency Alert Service Bulletin (EASB) No. 109-EP-153 for Model A109E helicopters, EASB No. 109S-075 for Model A109S helicopters, and EASB No. 109SP-112 for Model AW109SP helicopters, all dated March 8, 2017. This service information contains procedures for inspecting each pulley assembly bearing P/N 109G6320L01-101 for grease shield damage or leaking grease and axial and radial play, and freedom of rotation of the bearing. This service information also provides procedures for replacing each fan assembly P/N 109-0455-01-103 with a fan assembly P/N 109-0455-01-101.

This AD requires, within 5 hours time-in-service (TIS), inspecting with a borescope each bearing P/N 109G6320L01-101 grease shield for a crack, position of the grease shield, and leaking grease. If there is a crack or leaking grease or if the grease shield is out of position, this AD requires replacing each fan assembly with fan assembly P/N 109-0455-01-101 before further flight.

This AD also requires inspecting each bearing for axial and radial play and freedom of rotation. If there is any axial or radial play, rotation resistance, or binding, this AD requires replacing each fan assembly with fan assembly P/N 109-0455-01-101 before further flight. If there is no play, no rotation resistance, and no binding, this AD requires replacing each fan assembly with fan assembly P/N 109-0455-01-101 within 20 hours TIS.

Finally, this AD prohibits installing fan assembly P/N 109-0455-01-103 on any helicopter.

The EASA AD applies to Model A109LUH helicopters; this AD does not as this model is a military model and does not have an FAA type certificate.

We estimate that this AD affects 127 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD.

At an average labor rate of $85 per work-hour, inspecting the bearings will require 1 hour, for a cost per helicopter of $85. Replacing both fan assemblies will require 8 hours and $44,800 for parts. Based on these figures, we estimate a total cost of $45,565 per helicopter and $5,786,755 for the U.S. fleet to comply with this AD.

According to the Leonardo service information, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage by Leonardo. Accordingly, we have included all costs in our cost estimate.

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 previously described unsafe condition can adversely affect the controllability of the helicopter and the initial required corrective action must be accomplished within 5 hours TIS. 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.

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.

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

For the reasons discussed, 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 to the extent that it justifies making a regulatory distinction; 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.

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace in the respective Class D and Class E airspace areas at Lancaster Airport, Lancaster, PA; Reading Regional Airport/Carl A. Spaatz Field, Reading, PA; and Williamsport Regional Airport, (formerly Williamsport-Lycoming County Airport), Williamsport, PA, for continued safety and management of IFR operations at these airports.

The FAA published a notice of proposed rulemaking in the Federal Register (82 FR 16955, April 7, 2017) for Docket No. FAA-2016-9377 to amend Class D and Class E airspace at Lancaster Airport, Lancaster, PA; Reading Regional Airport/Carl A. Spaatz Field, Reading, PA; and Williamsport Regional Airport, Williamsport, PA.

Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received supporting the proposal.

Class D and E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR part 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

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

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace to remove the NOTAM part-time status of the Class E airspace designated as an extension to a Class D surface area at Lancaster Airport, Lancaster, PA; Reading Regional Airport/Carl A. Spaatz Field, Reading, PA; and Williamsport Regional Airport, Williamsport, PA. These changes are necessary for continued safety and management of IFR operations at these airports. The geographic coordinates of these airports, as well as the Picture Rocks non-directional radio beacon (NDB) are amended in the associated Class D and E airspace to coincide with the FAA's aeronautical database. This action also updates the airport name to Williamsport Regional Airport (formerly Williamsport-Lycoming County Airport).

Additionally, an editorial change is made to the Class D and Class E airspace legal descriptions replacing Airport/Facility Directory with the term Chart Supplement.

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

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

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

Background

The United States and India continue their commitment to work together to strengthen the global nonproliferation and export control framework and further transform bilateral export control cooperation to recognize the full potential of the global strategic partnership between the two countries. This commitment has been realized in the two countries' mutually agreed upon steps to expand cooperation in civil space, defense, and other high-technology sectors and the complementary steps of the United States to remove India defense and space-related entities from the Entity List, realign India in U.S. export control regulations, and support India's membership in the four multilateral export control regimes (Nuclear Suppliers Group, Missile Technology Control Regime, Wassenaar Arrangement and Australia Group).

To date, with the effective support of the United States, India has been admitted to three of the four multilateral export control regimes: Missile Technology Control Regime (MTCR) on June 27, 2016, the Wassenaar Arrangement (Wassenaar or WA) on December 7, 2017 and the Australia Group (AG) on January 19, 2018. These memberships, important to the two countries' global strategic partnership, are enhanced by the United States' recognition of India as a Major Defense Partner in the India-U.S. Joint Statement of June 7, 2016, entitled, “The United States and India: Enduring Global Partners in the 21st Century.” This recognition facilitates and supports India's military modernization efforts with the United States as a reliable provider of advanced defense articles.

Therefore, in this rule, the Bureau of Industry and Security (BIS), formally recognizes under the Export Administration Regulations (EAR) India's membership in the WA multilateral export control regimes and revises the EAR accordingly. Further, in this rule, BIS adds India to Country Group A:1 in Supplement No. 1 to Part 740 (Country Groups) of the EAR to implement under the EAR India's status as a member of the WA. In addition, to export control-related benefits for India as a result of prior amendments to the EAR in furtherance of the U.S.-India global strategic partnership, BIS places India in Country Group A:5, which provides the benefit of greater availability of License Exception Strategic Trade Authorization (STA) for exports and reexports to, and transfers within India under the EAR.

Countries listed in Country Group A:5 are countries included in STA § 740.20(c)(1), which authorizes exports, reexports and in-country transfers that are subject to multiple reasons for control. With this rule, India becomes the 37th country to join Country Group A:5.

BIS amends Supplement No. 1 to Part 738, Commerce Country Chart, by removing the license requirements for National Security Column 2 (NS2) reasons. Accordingly, this rule removes the “X” in NS Column 2 for India.

BIS amends Supplement No. 1 to Part 740 to add, in alphabetical order, India to Country Groups A:1 and A:5.

Consistent with India's new multilateral export control regime status, this rule also removes the first sentence of footnote 7 to the Commerce Country Chart in Supplement No. 1 to Part 738, related to India. This amendment removes the requirement that exporters file in the Automated Export System when items controlled for Crime Control Columns 1 and 3 reasons, and Regional Stability Column 2 reasons were destined to India. As a conforming change, this rule removes the word “Also” from the second sentence of footnote 7 and capitalizes the “n” in “note” since it begins the sentence.

Also, as a conforming change in Part 738, BIS amends paragraph (b)(3) of § 738.4, related to a sample analysis using the Commerce Control List and Country Chart to determine when a license is required, to remove the name “India” and replace it with the name “Chad.” The sample analysis used India as an example of a country with NS Column 2 controls. That reason for control no longer applies to India but currently applies to Chad.

In adding India to Country Group A:5, BIS removes India from Country Group A:6 to avoid creating conflicting eligibility criteria for STA provisions.

As a member of Wassenaar, India now is subject to reporting requirements for items controlled under Wassenaar, as set forth in Part 743, Special Reporting and Notification. Specifically, India is added, in alphabetical order, to Supplement No. 1 to Part 743, Wassenaar Arrangement Participating States.

Also, consistent with India's achievements and status as a Major Defense Partner, BIS removes the requirement that exporters file certain Electronic Export Information in AES as set forth in § 758.1(b)(9). Specifically, this amendment removes the requirement that exporters file in AES when items controlled for CC Columns 1 and 3 reasons and RS Column 2 reasons are destined to India. This reporting requirement had been instituted when the license requirement for such items was removed (see U.S.-India Bilateral Understanding: Additional Revisions to the U.S. Export and Reexport Controls Under the Export Administration Regulations; January 23, 2015; 80 FR 3463). BIS has determined that this reporting requirement is no longer necessary.

In this rule, BIS also adds India, in alphabetical order, to the list of countries under the term Australia Group in § 772.1, Definitions of terms as used in the Export Administration Regulations (EAR). This updates the definition consistent with formal recognition of India's membership in the AG in a BIS final rule, entitled “Implementation of the February 2017 Australia Group (AG) Intersessional Decisions and June 2017 Plenary Understandings; Addition of India to the AG” (83 FR 13849, April 2, 2018).

Although the Export Administration Act of 1979 expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 15, 2017, 82 FR 39005 (August 16, 2017), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act of 1979, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222, as amended by Executive Order 13637.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB). This rule is not subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because it is issued with respect to a national security function of the United States.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid OMB control number. This rule involves collections of information approved under OMB control number 0694-0088- Simplified Network Application Processing+ System (SNAP+) and the Multipurpose Export License Application, which carries an annual estimated burden of 31,833 hours; 0694-0137—License Exceptions and Exclusions, which carries an annual estimated burden of 29,998 hours; and 0694-0122—Miscellaneous Licensing Responsibilities and Enforcement which carries an annual estimated burden of 104,288 hours. BIS believes that this rule will have no significant impact on those burdens. In fact, because India has been admitted to the MTCR, Wassenaar and AG multilateral regimes and is a Major Defense Partner, it is listed in favored country groups for purposes of license requirements, license application review policy and availability of license exceptions. Membership in favored country groups generally reduces the number of licenses required and increases the number of license exceptions available. Therefore, BIS believes that this rule will reduce the paperwork burden to the public.

Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget, by email at [email protected] or by fax to (202) 395-7285.

3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking and the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military or foreign affairs function of the United States (see 5 U.S.C. 553(a)(1)). This rule implements decisions of multilateral export control regimes, of which the United States is a supporting member, and the rule furthers the objectives of the strategic commitment established between the United States and India. Delay in implementing this rule to obtain public comment would undermine the foreign policy objectives that the rule is intended to implement. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553, or by any other law, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable.

For the reasons set forth in the preamble, 15 CFR Chapter VII, Subchapter C is amended as follows:

Background

In a rule effective July 9, 2011, the date the United States granted formal recognition to South Sudan, BIS amended the EAR to add the new country to the Commerce Country Chart set forth in Supplement No. 1 to part 740 and imposed controls on exports and reexports of items subject to the EAR to the destination. See 76 FR 41046 (July 13, 2011). In that rule, BIS added South Sudan to Country Group B in Supplement No. 1 to Part 740 (Country Groups), a grouping that rendered the country eligible for certain License Exceptions not available to countries in Country Groups D or E.

In this rule, BIS amends Supplement No.1 to Part 740 (Country Groups) of the EAR to place South Sudan in Country Group D:5—U.S. Embargoed Countries—to conform with a final rule published by State that revised ITAR § 126.1 (Prohibited exports, imports, and sales to or from certain countries) by adding South Sudan in new paragraph (w). See 83 FR 6457 (February 14, 2018). The ITAR amendment reflected a determination by the Secretary of State that it was in the best interests of U.S. foreign policy to impose such restrictions in order to reflect the U.S. government's opposition to the trade of arms to South Sudan and its contribution to the conflict and humanitarian crisis in that country, promote the cessation of hostilities, and to reinforce a unified international response by aligning the United States with existing European Union restrictions on certain exports to South Sudan. As a consequence of the ITAR amendment, a policy of denial applies to applications for licenses or other approvals for the export of defense articles and defense services destined for South Sudan. A license or other approval may be issued on a case-by-case basis for six enumerated categories of defense articles and defense services, as set forth in ITAR § 126.1(w) (South Sudan).

BIS primarily implements such controls through Country Group D:5. Countries listed in Country Group D:5 are subject to additional restrictions in the EAR, including on de minimis U.S. content, license exception availability, and licensing policy for certain items. License applications for the export or reexport of items classified under 9x515 or “600 series” Export Control Classification Numbers to countries in Country Group D:5 are reviewed consistent with the policies in § 126.1 of the ITAR, as provided in paragraph (b)(1)(ii) of § 742.4 (National security) and paragraph (b)(1) of § 742.6 (Regional stability) of the EAR.

The list of “United States arms embargoed” countries is intended to mirror ITAR § 126.1's list of countries subject to U.S. arms embargoes and track Federal Register notices published by State. BIS amends the list of Country Group D:5 countries as needed to conform to amendments to ITAR § 126.1 that State publishes, including additions or deletions of countries subject to United States arms embargoes. See footnote one to Country Group D:5. In implementing United States embargoes in the EAR, BIS is adopting the policies for each country listed in section 126.1 of the ITAR. See 78 FR 22660, 22675 (April 16, 2013).

Consistent with new § 126.1(w) (South Sudan) of the ITAR, the BIS licensing policy for the export and reexport of 9x515 and “600 series” items on the Commerce Control List, Supp. No. 1 to part 774, destined for South Sudan is a policy of denial that recognizes six categories of case-by-case approval. See ITAR § 126.1(w)(1)-(6), which describes these categories in detail.

BIS amends Supplement No. 1 to Part 740 of the EAR to place “South Sudan, The Republic of”, in alphabetical order, in Country Group D:5.

Although the Export Administration Act of 1979 expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 15, 2017, 82 FR 39005 (August 16, 2017), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act of 1979, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222, as amended by Executive Order 13637.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated to be not a significant regulatory action, for purposes of Executive Order 12866. This rule is not subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because it is not significant under Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid OMB control number. This rule involves collections of information approved under OMB control number 0694-0088—Simplified Network Application Processing+ System (SNAP+) and the Multipurpose Export License Application, which carries an annual estimated burden of 31,833 hours; and 0694-0137—License Exceptions and Exclusions, which carries an annual estimated burden of 29,998. BIS believes that this rule will have no significant impact on those burdens.

Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget, by email at [email protected] or by fax to (202) 395-7285.

3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking and the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military or foreign affairs function of the United States (see 5 U.S.C. 553(a)(1)). This rule implements a necessary update of the status of South Sudan as a U.S. embargoed country, consistent with the prohibitions implemented in the ITAR by the Department of State. This rule also serves to prevent confusion by the public as to the current EAR export and reexport license requirements applicable to South Sudan. A delay in the effective date would frustrate the achievement of this goal. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553, or by any other law, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable.

Accordingly, part 740 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

Background

This document contains amendments to 26 CFR part 1 under section 6081 of the Internal Revenue Code (Code) regarding the extension of time to file certain information returns. On August 13, 2015, the IRS published in the Federal Register temporary regulations (TD 9730 (80 FR 48433)) under § 1.6081-8T removing the automatic 30-day extension of time to file the Form W-2 series (except Form W-2G, “Certain Gambling Winnings”) and providing a single non-automatic 30-day extension of time to file these forms. The temporary regulations also updated the list of information returns eligible for an extension of time to file. The temporary regulations were applicable for requests for extension of time to file information returns due after December 31, 2016. The temporary regulations were set to expire August 10, 2018, but they are removed by this Treasury Decision.

A notice of proposed rulemaking (REG-132075-14 (80 FR 48472)) cross-referencing the temporary regulations was published in the Federal Register the same day the temporary regulations were published. The notice of proposed rulemaking contains proposed regulations that would remove the automatic 30-day extension of time to file all information returns subject to the rules formerly under § 1.6081-8 and provide a single non-automatic 30-day extension of time to file those information returns. The IRS received comments on the notice of proposed rulemaking, but no public hearing was requested or held. After consideration of the comments, this Treasury Decision adopts the proposed regulations only with respect to the removal of the automatic extension of time to file the Form W-2 series (except Form W-2G) and forms reporting nonemployee compensation (currently Form 1099-MISC, “Miscellaneous Income,” with information in box 7). The automatic extension of time to file is retained for Form W-2G, Form 1042-S, “Foreign Person's U.S. Source Income Subject to Withholding,” Form 1094-C, “Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns,” Form 1095-B, “Health Coverage,” Form 1095-C, “Employer-Provided Health Insurance Offer and Coverage,” Form 3921, “Exercise of an Incentive Stock Option Under Section 422(b),” Form 3922, “Transfer of Stock Acquired Through an Employee Stock Purchase Plan Under Section 423(c),” and Form 8027, “Employer's Annual Information Return of Tip Income and Allocated Tips,” the Form 1097 series, Form 1098 series, Form 1099 series (except forms reporting nonemployee compensation), and Form 5498 series.

Section 6081(a) generally provides that the Secretary may grant a reasonable extension of time, not to exceed 6 months, for filing any return, declaration, statement, or other document required by Title 26 or by regulation. The regulations under section 6081 generally provide rules for extensions of time to file returns. The regulations under § 1.6081-8 provide specific rules for extensions of time to file certain information returns.

For requests for extension of time to file information returns due before January 1, 2017, § 1.6081-8 provided that a person required to file certain information returns (the filer), or the person transmitting the return for the filer (the transmitter), could request an automatic 30-day extension of time to file those information returns by filing a Form 8809, “Application for Extension of Time to File Information Returns” on or before the due date of the information return. A filer or transmitter was not required to sign the Form 8809 or provide an explanation to request the automatic 30-day extension.

Prior to expiration of the automatic 30-day extension period, a filer or transmitter that obtained an automatic 30-day extension of time to file could request an additional non-automatic 30-day extension of time to file. Under § 1.6081-8, the IRS had the discretion to grant this request if the IRS determined that a further extension was warranted. Unlike a request to obtain an automatic extension, a request for a non-automatic extension was required to be signed by the filer or transmitter under penalties of perjury and include an explanation of why an additional extension of time to file was needed. No further extensions of time to file were permitted under § 1.6081-8.

Identity theft and refund fraud are persistent and evolving threats to the nation's tax system. They place an enormous burden on the tax system and taxpayers. Identity thieves and unscrupulous preparers often claim refunds by electronically filing fraudulent tax returns early in the tax filing season. The IRS uses third-party information returns to increase voluntary compliance, verify accuracy of tax returns, improve collection of taxes, and combat fraud, including refund fraud committed by those using the stolen identities of legitimate taxpayers. Accelerating the receipt of third-party information returns is one way to better enable the IRS to identify and stop fraudulent refund claims before they are paid.

On August 13, 2015, temporary and proposed regulations under section 6081 were published in the Federal Register to improve the IRS's ability to use third-party information returns to combat identity theft and refund fraud. The temporary regulation under § 1.6081-8T, which replaced the regulation under § 1.6081-8 for requests for extension of time to file certain information returns due after December 31, 2016, removed information returns in the Form W-2 series (except Form W-2G) from the list of information returns eligible for the automatic 30-day extension of time to file and instead provided a single non-automatic 30-day extension of time to file those information returns.

Section 1.6081-8T(a) retained the rules under § 1.6081-8 for obtaining an automatic 30-day extension of time to file Form W-2G, Form 1042-S, Form 1095-B, Form 1095-C, Form 8027, the Form 1097 series, Form 1098 series, Form 1099 series, and Form 5498 series. It also retained the additional non-automatic 30-day extension of time to file these information returns.

In addition, the temporary regulations updated the list of information returns that are eligible for automatic and non-automatic extensions of time to file by adding Form 1094-C, Form 3921, and Form 3922 to the list in § 1.6081-8T(a). As explained in the preamble to the temporary regulations, the addition of these forms merely updated the list to reflect current practice at the time the temporary regulations were published.

The proposed regulations were broader than the temporary regulations. The notice of proposed rulemaking proposed to remove the automatic extension of time to file Forms 1042-S, 1094-C, 1095-B, 1095-C, 3921, 3922, and 8027; to remove the automatic extension of time to file the Form W-2 series (including Form W-2G), Form 1097 series, Form 1098 series, Form 1099 series, and Form 5498 series; and to allow only a single non-automatic 30-day extension of time to file all of these information returns. The proposed non-automatic extension would have been available on the same terms as the non-automatic extension for the Form W-2 series in the temporary regulations. The preamble to the proposed regulations provided that removal of the automatic extension would not apply to information returns (other than the Form W-2 series except Form W-2G) due any earlier than January 1, 2018. See 80 FR 48472.

Section 201 of the Protecting Americans from Tax Hikes Act of 2015 (PATH Act), Public Law 114-113, Div. Q (129 Stat. 3040, 3076), enacted on December 18, 2015, amended section 6071 of the Code to change the due date for filing Form W-2, “Wage and Tax Statement,” and any returns or statements required by the Secretary to report nonemployee compensation. Nonemployee compensation is currently reportable in box 7 of Form 1099-MISC. The amendments are effective for information returns for calendar years beginning after 2015.

Prior to enactment of the PATH Act, the Form W-2 was required to be filed by the last day of February (February 28 if amounts were not subject to the Federal Insurance Contribution Act), or March 31 if filed electronically. See § 1.6041-2(a)(3)(ii) and § 31.6071(a)-1(a)(3)(i) (as in effect until July 20, 2017). Also prior to the enactment of the PATH Act, the form reporting nonemployee compensation, Form 1099-MISC, was required to be filed by February 28, or March 31 if filed electronically. See § 1.6041-6 (as in effect until July 20, 2017).

As amended by the PATH Act, section 6071 provides that the due date for filing the Form W-2 and any returns or statements required by the Secretary to report nonemployee compensation is January 31 of the calendar year following the calendar year for which the information is being reported, regardless of whether these information returns are filed on paper or electronically. Section 31.6071(a)-1T(a)(3) provides this due date for the entire Form W-2 series (except Form W-2G). The due date for filing Form 1099-MISC that does not report nonemployee compensation was unchanged by the PATH Act amendment to section 6071, and it remains February 28, or March 31 if filed electronically.

Section 201 of the PATH Act also amended section 6402 to provide that no credit or refund of an overpayment may be made to a taxpayer before the fifteenth day of the second month following the close of the taxable year (February 15 for calendar year taxpayers) if the Additional Child Tax Credit (ACTC) under section 24(d) or the Earned Income Credit (EIC) under section 32 is allowed for such taxable year.

In addition, section 202 of the PATH Act amended sections 6721 and 6722 of the Code to generally provide a $100 de minimis error threshold ($25 for withholding) under which the penalties for failure to file and failure to furnish accurate information returns and payee statements do not apply. Payees, however, can still elect to receive accurate payee statements, in which case the de minimis threshold does not apply to the penalties for failure to file and furnish. See section 6722(c)(3)(B).

There were eleven written comments submitted in response to the notice of proposed rulemaking. They are available at http://www.regulations.gov or upon request.

Comments stated that the automatic extension of time to file should not be removed for any information returns and instead alternative or complementary steps to reduce fraud should be taken. Those suggested steps include: (1) Delay the start of the filing season or issue refunds only after the Social Security Administration (SSA) has transferred all Form W-2 information to the IRS; (2) require electronic filing of all information returns at issue; (3) reduce the threshold requirement for filing information returns electronically from 250 returns to five returns; and (4) issue an identity protection personal identification number (IP PIN) to each known taxpayer.

Some of these steps have already been taken. For instance, the PATH Act amended section 6402 so that refunds cannot be issued before February 15 if the EIC or the ACTC is allowed for the taxable year. This amendment has the effect of allowing the IRS to receive more Form W-2 information with respect to these returns before issuing refunds. Other steps, such as requiring electronic filing of all information returns or reducing the electronic filing threshold, require legislation to implement.

Comments suggesting that the IRS delay the start of the filing season (without regard to the February 15 date if the EIC or the ACTC is allowed) or issue refunds only after receiving Form W-2 information from the SSA were not adopted. Taxpayers who rely on their tax refunds to pay bills for necessary expenses might be unduly burdened by such a delay. Additionally, when Congress amended section 6402 to prevent the IRS from issuing some refunds before February 15, it did not use a later date or delay refunds to all taxpayers, thus indicating a sensitivity to the negative effect that further delaying taxpayer refunds could have on certain taxpayers.

Regarding the comment that issuing an IP PIN to each known taxpayer would reduce fraud and identity theft and eliminate the need to accelerate receipt of certain information returns, the Treasury Department and the IRS disagree. While the IP PIN has been an effective tool for protecting taxpayers from subsequent refund fraud, it is not a holistic or sustainable solution that can be applied to the more than 150 million returns that are filed annually each year. See TIGTA report 2017-40-026, “Inconsistent Processes and Procedures Result in Many Victims of Identity Theft Not Receiving Identity Protection Personal Identification Numbers,” 20-22. Additionally, even if the IRS implemented such a proposal, the IRS's efforts to reduce fraud and identity theft would be further enhanced by also accelerating receipt of information returns, such as Form W-2 and forms reporting nonemployee compensation. Accordingly, this suggestion has not been adopted.

Comments also suggested that the IRS extend the filing deadline for individual income tax returns to May 15, rather than limiting the availability of an automatic extension of time to file information returns. Taxpayers may already request an automatic six-month extension of time to file individual income tax returns under § 1.6081-4, effectively extending the filing deadline (but not the deadline by which to pay) as suggested by the comment. However, even if the IRS extended the filing deadline to May 15 for all individual taxpayers, that would do little to prevent fraud because fraudulent filers typically file early in the filing season so that their fraudulent returns are processed before legitimate taxpayers file their tax returns and before the IRS receives information returns.

Comments suggested that the regulations retain the automatic extension of time to file forms other than Form W-2 and forms reporting nonemployee compensation, because the other forms, specifically Form 1099-INT, Form 1099-DIV, Form 1042-S, and the Form 1095 series, are not major sources of withholding or backup withholding information and are not relevant to preventing fraud. The comments cited GAO Report GAO-14-633, “Identity Theft, Additional Actions Could Help IRS Combat the Large, Evolving Threat of Refund Fraud,” for the assertion that information return documents other than Form W-2 do not have a nexus to fraud. The comments also stated that Form 1042-S is not as susceptible to fraud because Form 1040-NR, “U.S. Nonresident Alien Income Tax Return,” and Form 1120-F, “U.S. Income Tax Return of a Foreign Corporation,” are already subject to an extensive review by the IRS.

In contrast, one comment stated that the burden on filers of removing the automatic extension of time to file was a worthwhile tradeoff, given the financial burdens on taxpayers whose refunds are stolen. This comment suggested that filers should be able to verify many of their records prior to the end of the tax year, and that it was their responsibility to maintain accurate records.

The Treasury Department and the IRS agree that accelerating the filing date for information returns reporting compensation will contribute more to the reduction of refund fraud than accelerating the filing date of other information returns would. This is because refund fraud is most prevalent on individual income tax returns reporting wages or self-employment income. Consistent with this, Congress enacted section 201 of the PATH Act as part of its program integrity measures included in the Consolidated Appropriations Act of 2016 to accelerate the date by which Form W-2 and statements reporting nonemployee compensation, but not other information returns, must be filed. In addition, § 31.6071(a)-1T(a)(3) provides that the due date implemented by the PATH Act for Form W-2 applies to the entire Form W-2 series (except Form W-2G). Therefore, the comment is adopted, and the final regulations only remove the automatic extension of time to file the Form W-2 series (except Form W-2G) and forms reporting nonemployee compensation (currently Form 1099-MISC with information in box 7). The IRS continues to study the appropriateness of the automatic extension for other information returns.

Comments stated that removing the automatic extension of time to file would compress the time between the date the payee statements are sent and the information returns are required to be filed with the IRS. This is particularly true in the case of Form 1099-B, “Proceeds from Broker and Barter Exchange Transactions,” and Form 1099-MISC with information in boxes 8 or 14 only (relating to substitute dividends and tax-exempt interest payments reportable by brokers and gross proceeds paid to attorneys), because the due date to furnish statements to payees for those forms is February 15. Without the automatic extension, there is less time before the filing due date for recipients of the payee statements to discover errors and communicate them to the filer, resulting in more errors on filed information returns and the need to file more corrected information returns.

Comments also stated that this compression is made more acute because the system for filing information returns electronically (FIRE) requires files be in a format different from the format many filers use to prepare the payee statements. Without the automatic extension of time to file there will be less time to accommodate these differences, which could lead to an increase in errors and the need to file corrected information returns.

The comments also stated that filers' necessary year-end audit practices with respect to information that is ultimately reported on information returns are time-consuming, and the automatic extension of time to file increases the accuracy of filed returns. Finally, the comments stated that removing the automatic extension further compresses the filing season, burdening accounting professionals who already work 60 to 80 hours per week in the months leading up to the filing deadlines.

One comment supported the proposed regulations generally, but opposed the removal of the automatic extension of time to file the Form 1099 series. The comment stated that the pressure to meet a rigid deadline would lead to more errors for small businesses without full-time bookkeepers and would have a financial impact on those businesses. Small startups would be disproportionately affected because they are more likely to use independent contractors, for which they have to file information returns in the Form 1099 series. The comment requested that the IRS conduct a regulatory flexibility analysis and make it available for public comment if these final regulations remove the automatic extension of time to file the Form 1099 series.

The comments supporting retention of the automatic extension of time to file most information returns are adopted in the final regulations. However, as discussed above in section II of this Summary of Comments, acceleration of the IRS's receipt of information relating to compensation is an important tool to reduce fraud and noncompliance. Further, the removal of the automatic extension of time to file the Form W-2 series (except Form W-2G) and forms reporting nonemployee compensation is consistent with section 201 of the PATH Act and its supporting regulations under § 31.6071(a)-1T(a)(3), which together accelerated the filing deadline for both the Form W-2 series (except Form W-2G) and forms reporting nonemployee compensation. Accordingly, the final regulations remove the automatic extension of time to file the Form W-2 series (except Form W-2G) and forms reporting nonemployee compensation.

With regard to the request for a regulatory flexibility analysis in the case of the removal of the automatic extension of time to file the Form 1099 series, the only affected forms are forms reporting nonemployee compensation. As certified in the Special Analyses section of this Treasury Decision, the Treasury Department and the IRS have concluded that these regulations will not have a significant economic impact on a substantial number of small entities. As a result of this certification, a regulatory flexibility analysis is not required.

With regard to Form 1094-C and the Form 1095 series, the comments stated that preserving the automatic extension of time to file would allow health insurers to maintain their current processes. The Treasury Department and the IRS agree with these comments and, therefore, the final regulations retain the automatic extension of time to file Form 1094-C, Form 1095-B, and Form 1095-C.

Comments stated various reasons why the automatic 30-day extension of time to file Form W-2 should be retained. Comments stated that to prepare Form W-2, filers rely on third-party payment information from states on sickness and disability payments that is not due to the filers until January 15, and filers have no control over the timeliness and accuracy of this third-party information. The comments also stated that Form W-2 filers rely on third-party information that they receive after the end of the tax year for nonqualified moving expenses, prizes and awards, the value of company housing and travel, and non-cash fringe benefits.

As discussed under section II and reiterated under section III of this Summary of Comments, removal of the automatic extension of time to file the Form W-2 series (except Form W-2G) will contribute to the reduction of refund fraud and is consistent with section 201 of the PATH Act and its supporting regulations. The Treasury Department and the IRS understand that there may be some situations that will necessitate filers to seek a non-automatic extension of time to file; for instance, when a filer does not timely receive the statement of sick pay required under § 31.6051-3(a)(1). Removal of the automatic extension, however, will increase the number of Forms W-2 received by the IRS early enough in the filing season for the IRS to verify information and reduce payment of fraudulent refunds.

Comments stated that corrections are sometimes necessary after the statutory deadlines to file certain returns, such as Form 1042-S, because of reclassifications of distributions. Information regarding these reclassifications is not available until sometime between mid-January and the end of February. If Forms 1042-S must be filed without the benefit of an automatic extension of time to file, then it is more likely that they will have to be amended later based on the reclassification information. Comments added that software vendors typically release their software in late February for Form 1042-S, and that there is not enough time to format information and test the software prior to the March 15 statutory due date. Comments also mentioned that filers regularly seek extensions of time to furnish recipient statements for Form 1042-S in addition to extensions of time to file, and the comments advised that the IRS should expect an increase in the filing of both amended information returns and amended income tax returns as a result of the unavailability of the automatic extension, particularly for Form 1042-S. Comments further added that updates to the Form 1099 series resulting from the Foreign Account Tax Compliance Act, Public Law 111-147, Title V, Subtitle A (124 Stat. 71, 97), and sections 6050W and 6045B require year-end system upgrades and testing, which must be performed by the same people who otherwise implement the year-end compliance processes and therefore increase, rather than decrease, the time needed to file. Finally, the comments mentioned that information that flows from partnership returns or upstream withholding agents is not available until March 15.

As discussed previously under section II of this Summary of Comments, these final regulations do not remove the automatic extension of time to file information returns other than the Form W-2 series (except Form W-2G) and forms reporting nonemployee compensation. Therefore, the comment that Form 1042-S should remain eligible for the automatic extension of time to file has been adopted. However, the IRS continues to study the appropriateness of the automatic extension of time to file Form 1042-S.

One comment suggested that, given filers' potential inability to comply with the statutory filing dates, filers should have reassurances that the IRS will grant the non-automatic extension of time to file so that they do not face penalties. The comment therefore requested that specific criteria for granting the non-automatic extension should be published in the final regulation. The comment also stated that the proposed requirement to show extraordinary circumstances or catastrophe is too strict a standard to impose on the extension process. The comment further stated that penalties would be unreasonable where a request for an extension of time to file was not granted, and the process of seeking relief if penalties were imposed in these situations would be arduous. In addition, the comment stated that despite the new $100 de minimis error threshold exception for penalties, there would still be a substantial number of errors that would exceed the de minimis threshold and require correction. Also, comments noted that the increase in errors in information returns filed with the IRS as a result of not obtaining an extension of time to file might lead to more penalty notices, which would increase the burden on filers seeking relief under reasonable cause. This increase in penalty notices would also increase the burden on the IRS, which would have to handle many more requests for abatements or waivers of the penalty.

The Treasury Department and the IRS considered these comments and agree that it is appropriate to set forth the specific criteria under which the IRS will grant the non-automatic extension of time to file. Since publication of the temporary and proposed regulations in 2015, Form 8809 has been revised to provide specificity around the criteria for when a non-automatic extension will be granted. When Form 8809 allowed the filer or transmitter to provide a narrative explanation of the need for an extension, it was difficult to review the explanations in a timely manner because of the length of some of the explanations and the various ways that filers or transmitters would describe the reason for the extension request. To eliminate this issue, the form has been revised to provide checkboxes for the filer or transmitter to indicate the reason for the extension request.

The IRS intends to update Form 8809 in time for the 2019 filing season to provide that a non-automatic extension of time to file will be granted if and only if (1) the business suffered a catastrophic event in a Federally Declared Disaster Area that made the business unable to resume operations or made necessary records unavailable; (2) fire, casualty or natural disaster affected the operation of the business; (3) death, serious illness, or unavoidable absence of the individual responsible for filing the information returns affected the operation of the business; (4) the information return is being filed for the first year the business was established; or (5) the filer did not receive timely data on a third-party payee statement. This third-party payee statement might be a Schedule K-1, “Partner's Share of Current Year Income, Deductions, Credits and Other Items,” Form 1042-S, or the statement of sick pay required under § 31.6051-3(a)(1). Additionally, the extension will be granted even if the filer receives the third-party payee statement by the statutory furnishing deadline, provided that the filer did not receive the statement in time to prepare an accurate information return.

These five criteria will all be set forth in checkboxes on Form 8809. The first four of these criteria are already present on the form, with non-substantive differences in phrasing, and were derived from the reasons for which the IRS would grant a non-automatic extension of time to file during recent years when a narrative explanation was permitted. The fifth criteria will be added to Form 8809 in response to comments about reliance on third-party information. The Treasury Department and the IRS request comments on these criteria and welcome comments suggesting additional criteria that should be added to Form 8809 as reasons to grant the non-automatic extension. Interested parties can address the existing criteria and suggest new criteria by submitting comments on Form 8809 at http://www.irs.gov/FormsComments.

Also, with regard to the comments about the potential increase in errors and penalty notices, penalty abatement may be available for filers who fail to file timely but do not receive an extension of time to file. Although requests for abatement may increase under the new rules, the IRS is prepared to consider those additional requests. The Treasury Department and the IRS request comments regarding how the IRS may reduce the burden on filers who request abatement.

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

Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities. Although the regulations may potentially affect a substantial number of small entities, the economic impact on these entities is not expected to be significant. If at least one of the criteria for granting an extension applies, a business may obtain a 30-day extension of time to file by properly completing Form 8809, so many businesses will still obtain an extension of time to file. Prior versions of § 1.6081-8 also required businesses to file Form 8809 to obtain an extension, so no additional economic impact is associated with the requirement to file this form. For businesses that do not qualify for the extension, the regulations do not impose new information reporting requirements, but they do affect whether the filing due date may be extended. Although there may be some additional costs associated with ensuring that information returns filed by their statutory due date, as opposed to the extended due date, are accurate, those costs will not impose a significant economic impact on a substantial number of small entities.

In addition, statutory changes have minimized the benefit of the automatic extension of time to file. Prior to these changes, most filers had a due date (without regard to extensions) of March 31 for the information returns currently subject to the rule eliminating the automatic extension of time to file—the Form W-2 series (except Form W-2G) and Form 1099-MISC reporting nonemployee compensation. With the automatic extension, these filers generally had until April 30 to file these information returns. The PATH Act and the accompanying regulations accelerated the due date for the Form W-2 series (except Form W-2G) and Form 1099-MISC reporting nonemployee compensation from March 31 to January 31. Therefore, even if the automatic extension was still available, the Form W-2 series (except Form W-2G) and Form 1099-MISC reporting nonemployee compensation would be due much earlier than under prior law, so the statutory change under the PATH Act is the primary cause of any additional cost associated with having to file these forms earlier in the filing season. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. No comments were received from the Small Business Administration.

The principal author of these regulations is Jonathan R. Black of the Office of the Associate Chief Counsel (Procedure and Administration).

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

Accordingly, 26 CFR part 1 is amended as follows:

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the extraordinary amount of vessel traffic occurring after Seafair marine events and wake hazards posed to persons and vessels moored to the log booms and other vessel traffic in the regulated navigation area. Wakes created by vessels transiting in the vicinity of the vessels moored to the log boom pose a safety concern to personnel aboard those vessels and damage to property. Prompt action is needed to restrict vessel movement prior to and after Seafair events. It is impracticable to publish an NPRM because we must establish this regulated navigation area by August 3, 2018.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable because prompt action is needed to respond to the potential safety hazards associated with excessive vessel wake and the hazards posed to personnel and vessels moored in the vicinity, particularly those moored to the log booms on Lake Washington as well as other vessel traffic in the area.

On July 25, 2018, numerous local entities notified the Coast Guard of potential hazardous conditions associated with increased vessel and swimmer congestion before and after Seafair, which may make routine navigation unsafe for persons and vessels. The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The District Commander has determined that potential hazards associated with excessive vessel wake from August 3, 2018, through August 5, 2018, will be a safety concern for anyone south of the Interstate 90 Bridge and north of Bailey Peninsula due to extraordinary amount of vessel traffic occurring after Seafair marine events. Wake hazards caused by this anticipated increase in marine traffic will pose significant risk to persons and vessels moored to the log booms and other vessel traffic in the area. This rule is needed to protect persons and vessels in the navigable waters within the regulated navigation area from excessive vessel wake occurring prior to and after Seafair Events.

This rule establishes a regulated navigation area from 8 p.m. to 8 a.m. daily from August 3, 2018, through August 4, 2018 and from 8 p.m. to 11:59 p.m. on August 5, 2018. The regulated navigation area will cover all navigable waters south of the Interstate 90 floating bridge and north of a line between the Bailey peninsula and Mercer Island. The duration of the regulated navigation area is intended to protect personnel and vessels in these navigable waters from excessive wake associated with vessel traffic before and after Seafair events. Vessels transiting the area will be required to create minimum wake at speeds less than 7 miles per hour. Enforcement periods for this rule will occur daily prior to and immediately following Seafair Unlimited Hydroplane Race activities.

On June 25, 2018 (83 FR 29438), we published a related notice of enforcement of regulation for 33 CFR 100.1301, Seattle Seafair unlimited hydroplane race. That regulation will be enforced from 8 a.m. on July 31, 2018, through 8 p.m. on August 6, 2018.

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

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

This regulatory action determination is based on the size, location, duration and time-of-day of the regulated navigation area. Vessel traffic will be able to transit through the regulated navigation area, only impacting a small designated area of Lake Washington for less than three days. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the regulated navigation area.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a regulated navigation area lasting less than 3 days that will restrict vessel speed between the I-90 floating bridge and a line drawn perpendicular from Bailey Peninsula to Mercer Island. It is categorically excluded from further review under L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest to do so. There is insufficient time to allow for a reasonable comment period prior to the date of the event. The rule must be in force by August 4, 2018, to serve its purpose of ensuring the safety of spectators and the general public from hazards associated with the fireworks display. Hazards include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable and contrary to the public interest because immediate action is needed to mitigate the potential safety hazards associated with a fireworks display in this location.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Delaware Bay (COTP) has determined that potential hazards associated with the fireworks display on August 4, 2018, will be a safety concern for anyone within a 100-yard radius of the fireworks barge, which will be anchored in approximate position 40°11′ 32.08″ N, 074°01′ 53.06″ W. This rule is needed to protect persons, vessels and the public within the safety zone during the fireworks display.

This rule establishes a temporary safety zone from 8:30 p.m. through 9:30 p.m. on August 4, 2018, on the waters of Shark River off Neptune, NJ, during a fireworks display from a barge. The event is scheduled to take place at approximately 8:45 p.m. on August 4, 2018. The safety zone will extend 100 yards around the barge, which will be anchored at approximate position 40°11′ 32.08″ N, 074°01′53.06″ W. No person or vessel will be permitted to enter, transit through, anchor in, or remain within the safety zone without obtaining permission from the COTP Delaware Bay or a designated representative. If authorization to enter, transit through, anchor in, or remain within the safety zone is granted by the COTP Delaware Bay or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP Delaware Bay or a designated representative. The Coast Guard will provide public notice of the safety zone by Broadcast Notice to Mariners, and by on-scene actual notice from designated representatives.

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

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

The rule is not a significant regulatory action for the following reasons: (1) Although persons and vessels may not enter, transit through, anchor in, or remain within the safety zone without authorization from the COTP Delaware Bay or a designated representative, they may operate in the surrounding area during the enforcement period; (2) persons and vessels will still be able to enter, transit through, anchor in, or remain within the regulated area if authorized by the COTP Delaware Bay or a designated representative; and (3) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Broadcast Notice to Mariners, or by on-scene actual notice from designated representatives.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit persons and vessels from entering, transiting through, anchoring in, or remaining within a limited area on the navigable water in the Shark River, for approximately one hour. This rule is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

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

EPA is approving actions related to Missouri's request to redesignate the Missouri portion of the St. Louis area to attainment for the 1997 Annual PM2.5 standards. On September 2, 2011, and subsequently on March 31, 2014, and on September 17, 2014,1 Missouri, through the Missouri Department of Natural Resources (MDNR) submitted requests for EPA to redesignate the Missouri portion of the St. Louis MO-IL nonattainment area to attainment for the 1997 Annual National Ambient Air Quality Standards (NAAQS) for fine particulate matter (PM2.5) and approve a state implementation plan (SIP) revision containing a maintenance plan for the Missouri portion of the area. On January 5, 2018, EPA published an Advanced Notice of Proposed Rulemaking (ANPR) on the related actions and received no comments. See 83 FR 636. In this rulemaking action, EPA is taking direct final action to approve the state's request. In addition, EPA is also taking direct final action to approve Missouri's 2008 base year emissions inventory in accordance with section 172(c)(3) of the CAA.

The state's submission has met the public notice requirements for the redesignation request and maintenance plan submission in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The state held a public comment period from December 30, 2013 to February 6, 2014, and received three comments from the EPA. A public hearing was held on January 30, 2014.

Consistent with the strategy outlined in the ANPR, published in January 2018, EPA is taking direct final action to approve Missouri's request to redesignate the St. Louis bi-state nonattainment area for the 1997 Annual PM2.5 National Ambient Air Quality Standards and approve a state implementation plan (SIP) revision containing a maintenance plan for the Missouri portion of the area, and officially redesignate the area from nonattainment to attainment. EPA is also taking direct final action on Missouri's 2008 emission inventory.

Missouri submitted their first request to determine attainment and redesignation on September 1, 2011. The state then supplemented and revised their request on March 31, 2014, and on September 17, 2014. In this direct final rule, when EPA refers to Missouri's submission, we are referring to information provided in the 2011 and 2014 submissions and the additional clarifying information together unless otherwise specified.

EPA evaluated Missouri's request and plan consistent with section 175A of the CAA and EPA's supplemental analysis that the area will continue to maintain the 2008 ozone NAAQS following redesignation. The Missouri counties comprising the St. Louis area are Franklin, Jefferson, St. Charles and St. Louis. The City of St. Louis is also part of the nonattainment area. Because we did not receive public comments on the advanced notice of proposed rulemaking for this action, we are publishing this as a direct final rule as we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to approve the SIP revision if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

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

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

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

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

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

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

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

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

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

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

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

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

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

For the reasons stated in the preamble, EPA amends 40 CFR parts 52 and 81 as set forth below:

This is EPA's erratum to the final rule titled Addition of a Subsurface Intrusion Component to the Hazard Ranking System, published January 9, 2017 (82 FR 2760). This is the second set of corrections. The first set of corrections was published in the Federal Register on January 31, 2018 (83 FR 4430). This document augments those corrections.

Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. See Utility Solid Waste Activities Group v. EPA, 236 F.3d 749, 752 (D.C. Cir. 2001). We have determined that there is good cause for making these correcting amendments final without prior proposal and opportunity for public comment. Notice and comment is unnecessary because these administrative or clerical corrections govern the methodology of how EPA, rather than the public or industry, evaluates contaminated sites under the Hazard Ranking System. Similarly, notice and comment is impracticable and contrary to the public interest because the correcting amendments will more quickly ensure that EPA is following the proper procedures to evaluate potential threats to public health from releases of hazardous substances, pollutants, or contaminants. Thus, good cause exists to proceed without notice and public comment.

These correcting amendments are effective immediately upon publication. Section 553(d) of the APA, 5 U.S.C. 553(d), provides that final rules shall not become effective until 30 days after publication in the Federal Register, “except . . . as otherwise provided by the agency for good cause,” among other exceptions. The purpose of this provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). Thus, in determining whether good cause exists to waive the 30-day delay, an agency should “balance the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable amount of time to prepare for the effective date of its ruling.” Gavrilovic, 551 F.2d at 1105. EPA has determined that there is good cause for making these correcting amendments effective immediately because, as stated above, the corrections govern how EPA, rather than the public or industry, applies the Hazard Ranking System to evaluate potential threats to public health from releases of hazardous substances, pollutants, or contaminants. Accordingly, EPA finds that good cause exists under section 553(d)(3) to make this rule effective immediately upon publication.

40 CFR part 300 is corrected as follows:

This is a summary of the Commission's Order, FCC 18-90, GEN Docket No. 86-285, adopted on July 6, 2018 and released on July 10, 2018. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW, Room CY-A257, Portals II, Washington, DC 20554. This document is also available in alternative formats (computer diskette, large print, audio record, and Braille). Persons with disabilities who need documents in these formats may contact the FCC by email: [email protected] or phone: 202-418-0530 or TTY: 202-418-0432.

1. By this Order, the Commission makes rule changes to part 1 of the Commission's rules, and amends its Schedule of Application Fees, 47 CFR 1.1102 through 1.1109, as listed in the Rule Changes section, to adjust its fees for processing applications and other filings. Section 8(a) of the Communications Act of 1934, as amended (“the Act”), requires the Commission to “assess and collect application fees at such rates as the Commission shall establish or at such modified rates as it shall establish pursuant to” Section 8(b).1 Section 8(g) contains the Schedule of Charges for a broad range of application categories as well as procedures for modifying and collecting these charges.2 Section 8(b)(1) requires that the Schedule of Application Fees “be reviewed by the Commission every two years after October 1, 1991, and adjusted by the Commission to reflect changes in the Consumer Price Index.” As required by Section 8(b)(1), this Order increases application fees to reflect the net change in the Consumer Price Index for all Urban Consumers (“CPI-U”) of 3.7 percent, an increase of 8.825 index points calculated from October 2015 (237.838) to October 2017 (246.663). 3 The adjustments comply with the statutory formula set forth in Section 8(b).

2. The methodology and timing of adjustments to application fees are prescribed by statute at 47 U.S.C. 158(b). Because our action implementing the statute leaves us no discretion, prior notice and comment is unnecessary pursuant to 5 U.S.C. 553(b)(3)(B). This Order is also exempt from the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., pursuant to 5 U.S.C. 601(2). Copies of this Order will be sent to Congress and the Comptroller General in compliance with the Congressional Review Act, 5 U.S.C. 801 et seq. Notification of the fee adjustments made in this Order will be published in the Federal Register.

3. Reminder Regarding Lockbox Closures. During the past few years, the Commission has been reducing its use of P.O. Boxes for the collection of fees and has encouraged the use of electronic payment systems for all application and regulatory fees.4 The electronic payment of fees for applications, tariffs, and petitions increases the agency's financial efficiency by reducing expenditures, including the annual fee for utilizing the bank's services and the cost of processing each transaction manually, with very little or no inconvenience to the regulatees, applicants, and the public.5 As part of this process, the Commission has closed Lockbox 979092 (used to submit fees and petitions related to services provided by the Public Safety & Homeland Security Bureau) and Lockbox 979091 (used to submit fees and petitions related to services provided by the Wireline Competition Bureau).6 Additional closings will occur in coming months. As these Lockboxes are closed, filers will be required to submit payments electronically in accordance with the procedures set forth on the Commission's website, https://www.fcc.gov/licensingdatabases/fees. Payments can be made through the Fee Filer Online System (Fee Filer), accessible at https://www.fcc.gov/licensing-databases/fees/fee-filer, although we caution filers that the agency may transition to other secure payment systems in the future, after appropriate public notice and guidance. To file applications, tariffs, and petitions, parties should utilize, as applicable, the Commission's Electronic Tariff Filing System for tariffs, which can be found at https://apps.fcc.gov/etfs/etfsHome.action, or the Electronic Comment Filing System (ECFS), which can be found at http://apps.fcc.gov/ecfs/upload/display. Petitions filed in hard copy format should be submitted according to the procedures set forth on the web page of the Commission's Office of the Secretary, https://www.fcc.gov/seretary.

4. This Order is exempt from the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., pursuant to 5 U.S.C. 601(2).

5. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

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

7. Accordingly, it is ordered, that, pursuant to 1, 4(i), 4(j), and 8 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), and 158, the rule changes specified herein ARE ADOPTED and the Schedule of Application Fees, 47 CFR 1.1102 through 1.1109, is amended as set forth in the Rule Changes section.

8. It is further ordered that the rule changes and amendments to the Schedule of Application Fees made herein shall become effective September 4, 2018.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:

In 2009, NTIA and NHTSA issued regulations implementing the E-911 Grant Program enacted in the Ensuring Needed Help Arrives Near Callers Employing 911 (ENHANCE 911) Act of 2004 (Pub. L. 108-494, codified at 47 U.S.C. 942) (74 FR 26965, June 5, 2009). Accordingly, in 2009, NTIA and NHTSA made more than $40 million in grants available to 30 States and Territories to help 911 call centers nationwide upgrade equipment and operations through the E-911 Grant Program.

In 2012, the NG911 Advancement Act of 2012 (Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, Title VI, Subtitle E (codified at 47 U.S.C. 942)) enacted changes to the program. The NG911 Advancement Act provides new funding for grants to be used for the implementation and operation of 911 services, E-911 services, migration to an IP-enabled emergency network, and adoption and operation of NG911 services and applications; the implementation of IP-enabled emergency services and applications enabled by Next Generation 911 services, including the establishment of IP backbone networks and the application layer software infrastructure needed to interconnect the multitude of emergency response organizations; and training public safety personnel, including call-takers, first responders, and other individuals and organizations who are part of the emergency response chain in 911 services. In 2016, about $115 million from spectrum auction proceeds were deposited into the Public Safety Trust Fund and made available to NTIA and NHTSA for the 911 Grant Program.1 On September 21, 2017, the Agencies published a Notice of Proposed Rulemaking (NPRM) seeking public comment on proposed regulations for the 911 Grant Program.2

For more than 40 years, local and state 911 call centers, also known as Public Safety Answering Points (PSAPs), have served the public in emergencies. PSAPs receive incoming 911 calls from the public and dispatch the appropriate emergency responders, such as police, fire, and emergency medical services, to the scene of emergencies. The purpose of the 911 Grant Program is to provide federal funding to support the transition of PSAPs and their interconnecting 911 network and core services, to facilitate migration to an IP-enabled emergency network, and adoption and operation of NG911 services and applications.

There are approximately 6,000 PSAPs nationwide that are responsible for answering and processing 911 calls requiring a response from police, fire, and emergency medical services agencies.3 PSAPs collectively handle more than an estimated 240 million 911 calls each year.4 About 70 percent of all 911 calls annually are placed from wireless phones.5 Besides the public, PSAPs communicate with third-party call centers, other PSAPs, emergency service providers (e.g., dispatch agencies, first responders, and other public safety entities), and State emergency operations centers.6 Most PSAPs rely on decades-old, narrowband, circuit-switched networks capable of carrying only voice calls and very limited amounts of data.7 Advances in consumer technology offering capabilities such as text messaging and video communications have quickly outpaced those of PSAPs, which often cannot support callers who wish to send text messages, images, video, and other communications that utilize large amounts of data (e.g., telematics, sensor information).8

While there are still an estimated 50 counties that are using “Basic” 911 infrastructure, the majority of State and local jurisdictions have completed the process of updating their 911 network's infrastructure since the ENHANCE 911 Act was passed in 2004.9 As of January 2017, data collected by the National Emergency Number Association (NENA) show that 98.6 percent of PSAPs are capable of receiving Phase II E-911 10 calls, providing E-911 service to 98.6 percent of the U.S. population and 96.5 percent of our country's counties.11 With the transition to E-911 essentially completed, State and local jurisdictions are now focused on migrating to NG911 infrastructure.

NG911 is an initiative to modernize today's 911 services so that citizens, first responders, and 911 call-takers can use IP-based, broadband-enabled technologies to coordinate emergency responses.12 Using multiple formats, such as voice, text messages, photos, and video, NG911 enables 911 calls to contain real-time caller location and emergency information, improve coordination among the nation's PSAPs, dynamically re-route calls based on location and PSAP congestion, and connect first responders to key health and government services in the event of an emergency.13

Data collected by the National 911 Profile Database in 2016 show that 20 of the 46 States submitting data have adopted a statewide NG911 plan, 17 of 46 States are installing and testing basic components of the NG911 infrastructure, 10 of 45 States have 100 percent of their PSAPs connected to an Emergency Services IP Network, and 9 of 45 States are using NG911 infrastructure to receive and process 911 voice calls.14 These data suggest that most State and local jurisdictions have already invested in and completed implementation of both basic 911 services and E-911 services and are focused on migration to NG911. The 911 Grant Program now seeks to provide financial support for investment in the forward-looking technology of NG911 as contemplated by the NG911 Advancement Act.

The Agencies' action implements modifications to the E-911 Grant Program as required by the NG911 Advancement Act of 2012 (Pub. L. 112-96, Title VI, Subtitle E, codified at 47 U.S.C. 942). The NG911 Advancement Act modifies the 911 Grant Program to incorporate NG911 services while preserving the basic structure of the program, which provided matching grants to eligible State and local governments and Tribal Organizations for the implementation and operation of Phase II services, E-911 services, or migration to an IP-enabled emergency network.

The NG911 Advancement Act, however, broadens the eligible uses of funds from the 911 Grant Program to include: Adoption and operation of NG911 services and applications; the implementation of IP-enabled emergency services and applications enabled by NG911 services, including the establishment of IP backbone networks and the application layer software infrastructure needed to interconnect the multitude of emergency response organizations; and training public safety personnel, including call-takers, first responders, and other individuals and organizations who are part of the emergency response chain in 911 services. The NG911 Advancement Act also increases the maximum Federal share of the cost of a project eligible for a grant from 50 percent to 60 percent.

States or other taxing jurisdictions that have diverted fees collected for 911 services remain ineligible for grants under the program and a State or jurisdiction that diverts fees during the term of the grant must repay all grant funds awarded. The NG911 Advancement Act further clarifies that prohibited diversion of 911 fees includes elimination of fees as well as redesignation of fees for purposes other than implementation or operation of 911 services, E-911 services, or NG911 services during the term of the grant.

The Agencies received submissions from 21 commenters in response to the NPRM. Commenters included the following five State and local agencies: The City of Chicago Office of Emergency Management and Communications (Chicago OEMC); the Colorado Public Utilities Commission (CO PUC); the District of Columbia Office of Unified Communications (DC OUC); the Missouri Department of Public Safety (MO DPS); and the Texas Commission on State Emergency Communications (TX CSEC). Four associations and consortiums provided comments: the Association of Public-Safety Communications Officials— International, Inc. (APCO); the National Association of State 911 Administrators (NASNA); the National Emergency Number Association, Inc. (NENA); and the National States Geographic Information Council (NSGIC). There were two corporate commenters: Carbyne Public Safety Systems (Carbyne) and Motorola Solutions, Inc. (Motorola). Ten individual commenters also provided comments: Annabel Cortez; Daniel Ramirez; John Sage; Jonathan Brock; Lara Wood; Lisa Ondatje; S. Bennett; and three anonymous commenters. Of these comments, three were out of the scope of this rulemaking.15

NASNA expressed general agreement with the Agencies' proposal to retain the E911 Grant Program regulations as the basic framework for the 911 Grant Program.16 We address NASNA's specific recommendations in the sections below.

APCO recommended consistent use of “the National 911 program office” for purposes of administering the grant program in order to provide simplicity and avoid confusion.17 The regulatory text contains references to the ICO, the Administrator and Assistant Secretary (jointly), the Agencies, and to NHTSA. After reviewing these references, the Agencies have determined that, with the exception of one reference, these designations are appropriate to the roles fulfilled in each case. As a result, the Agencies have changed the reference to “Agencies” in 47 CFR 400.6(a)(2) to “ICO.”

Three commenters, Lisa Ondatje, Annabel Cortez, and S. Bennett, expressed general support for the importance of implementing NG911 technologies.18 Annabel Cortez further stressed that “[s]tatistics of 911 services are key to accurately measuring current status and implementation across the United States.” 19

Four commenters discussed interoperability as a primary goal of the 911 Grant Program.20 APCO commented that the standards listed in the SAFECOM Guidance are “very broad, in some cases incomplete, and unlikely to ensure interoperability, at least without costly after-the-fact integrations.” 21 APCO recommended that the Agencies add a definition for “interoperable” and explicitly require that applicants' State 911 plans commit to ensuring that solutions meet clear interoperability requirements.22 Specifically, APCO suggested that the Agencies replace the word “interconnect” in 47 CFR 400.4(a)(1)(i)(B) with the term “interoperable.” 23 The proposed regulatory language in Section 400.4(a)(1)(i)(B) is a direct quote from the statute.24 While the Agencies agree that interoperability is an important goal in the implementation of an NG911 system, the Agencies believe that the statutory term “interconnect” sufficiently covers the goal of interoperability, and make no change to the regulation in response to this comment.

The DC OUC suggested that the agencies add a definition for “District” or “territories.” 25 The statutory definition for “State,” which the agencies have incorporated into the regulation in its entirety, includes the District of Columbia and all U.S. territories,26 therefore the agencies decline to make this change.

Two commenters requested changes to the definition for “Next Generation 911 services.” NASNA noted that some of the capabilities listed in the definition for Next Generation 911 services do not currently exist, and suggested that the definition be modified to clarify this.27 APCO requested clarification that NG911 services encompass the “operational goal whereby information sent to PSAPs can be received, processed, and acted upon.” 28 The agencies decline to make the requested changes because the regulatory definition incorporates the statutory definition.29 However, in the eligible uses section of the NPRM, the agencies specifically stated that grant recipients may choose to purchase or contract for services that provide the “hardware and software that perform the necessary functions enabling NG911 calls to be received, processed and dispatched.” 30 We reaffirm that here.

Daniel Ramirez, NASNA, NENA, and an anonymous commenter all expressed general support for the Agencies' proposal to allow Tribal Organizations to apply directly for 911 Grant Program funding, noting that the prior regulations only allowed Tribal Organizations to receive grant funding through States and thus did not adequately support tribes.31 The anonymous commenter further noted that Tribal Organizations may have difficulty meeting program requirements, but did not specify which requirements.

The CO PUC cautioned the Agencies not to create a “one-size fits all” approach for Tribal Organization applications and participation because Tribal Organizations vary widely in “size, resources, and the current sophistication of their 9-1-1 systems.” 32 The CO PUC further noted that the ability of Tribal Organizations to meet the non-diversion, 911 Coordinator, or match requirements would likely vary by Tribal Organization.33 The Agencies agree that the needs and capacities of Tribal Organizations may vary widely. The Agencies believe that providing Tribal Organizations the option to apply for grant funding either directly or through States accommodates this diversity.

The CO PUC cautioned that if Tribal Organizations are allowed to obtain grant funding both directly and through States, it could lead to waste or duplication of efforts.34 The CO PUC recommended that the Agencies require Tribal Organizations to determine whether to apply individually or to be included in a State's application.35 Similarly, NASNA recommended that the Agencies require any applicant Tribal Organizations to inform the relevant State 911 Coordinator of their application in order to avoid duplication of efforts.36 As in the prior iteration of the program, each State applicant must coordinate its application with local governments, Tribal Organizations, and PSAPs within the State.37 In the course of this coordination—and prior to including a Tribal Organization in its application project budget—the State should determine whether a Tribal Organization within its jurisdiction intends to apply directly for grant funding. An applicant Tribal Organization must certify non-diversion by the State(s) in which it is located; to do so, a Tribal Organization should contact the State(s) in which it is located.38 The Agencies believe that the existing coordination inherent in the application process ensures that a State will not unknowingly account for a Tribal Organization in its grant application if that Tribal Organization has applied independently, and therefore, we do not believe any changes to the regulation are required.

The Agencies specifically asked commenters whether tribal PSAPs collect 911 surcharge fees and/or receive State-provided 911 surcharge funds. The CO PUC responded that 911 surcharges are collected by local 911 governing bodies in Colorado and that one tribe, the Southern Ute Tribe, receives funding from the Emergency Telephone Service Authority of La Plata County. However, the CO PUC stated that it does not have reason to believe that the Southern Ute Tribe will have trouble certifying that it does not divert 911 surcharge fees.39

The Chicago OEMC suggested that cities with large 911 systems be allowed to apply directly for grants due to “the expansive scope of their operations as well as their specialized requirements.” 40 While the Agencies understand this concern, the Agencies continue to believe that limiting the applicant pool to States and Tribal Organizations is necessary in order to minimize administrative costs and to streamline the grant process. However, as in the prior iteration of the program, each applicant State is required to coordinate its application with local governments and PSAPs within the State and to ensure that 90 percent of the grant funds be used for the direct benefit of PSAPs.

The Agencies sought comment on whether to retain the one-step application process from the prior E911 Grant Program, or whether to use a proposed two-step application process. Two commenters, Motorola and the MO DPS, requested that the Agencies retain the one-step application process from the prior E911 Grant Program.41 Motorola explained that the one-step application would expedite the grant process and avoid confusion amongst applicants, and argued that the proposed two-step application process is burdensome by requiring 911 authorities to meet two deadlines.42 Four commenters—the CO PUC, NASNA, the TX CSEC, and an anonymous commenter—supported a two-step application process as proposed by the Agencies.43 Based on the comments received, including the more detailed comments described below, the Agencies have determined that a two-step application will provide applicants with the most stable initial funding levels upon which they can prepare project budgets and will ensure the most efficient application process.

NASNA expressed support for a two-step process, while noting several issues that may still arise under that process.44 NASNA noted that, for example, applicants may make the initial certifications, but later find they are unable to meet the match requirement or certify non-diversion of funds.45 Nonetheless, NASNA stated that “there is practical value to states in knowing exactly how much funding they can apply for.” 46

The CO PUC noted that the two-step application process would be more efficient because it would not require applicants to submit a supplemental project budget after submitting their original applications.47 The Agencies do note, however, that although a supplemental budget is no longer required, applicants are still advised to submit a supplemental budget in the second step of the application process for use if additional funds become available at any point in the grant program.

The TX CSEC requested confirmation on some aspects of the two-step application process.48 The TX CSEC asked whether an applicant that does not submit the certifications by the initial application deadline would be precluded from further participation in the grant program.49 It further asked whether, in the event a State did not submit the initial certifications, “the portion of 911 grant funds that would otherwise be allocated to it by formula would be included in the preliminary funding allocations for certifying Applicants?” 50 In order to participate in the grant program, an applicant must submit the initial certifications by the initial application deadline. Failure to do so will remove that State from the funding pool; the preliminary funding levels will be calculated only for those applicants that submitted initial certifications. Finally, TX CSEC sought confirmation that the option to submit a supplemental project budget is meant to “to account for the possibility that, notwithstanding having submitted an acceptable initial certification, an Applicant may (a) ultimately not submit an application, (b) may submit an application with a budget less than its preliminary funding amount; (c) not be able to use all of its preliminary funding during the grant period, or (d) have to return a portion of grant funds as a result of being unable to provide a complete annual certification regarding or a previous certification was deemed inaccurate.” 51 The Agencies confirm this statement.

The anonymous commenter recommended that the two-step process “should be implemented and run for a trial period,” and that the Agencies make modifications or return to the one-step process if the trial does not work.52 The funds made available from the Public Safety Trust Fund for the 911 Grant Program are available for obligation only until September 30, 2022. The Agencies do not believe that there is sufficient time before that date to undertake a second rulemaking to change the application process.

The DC OUC requested that the required State 911 Plan be “defined well,” noting that although DC has an NG911 Plan, it does not have a State 911 Plan because DC only has a single PSAP.53 Without specific concerns from commenters, the Agencies do not believe it is necessary to clarify those requirements further because the application requirements laid out in Section 400.4 provide a detailed description of the required components of a State 911 Plan. The Agencies note that in instances like that of DC where there is a single PSAP in an applicant's jurisdiction, it is not necessary to include multiple PSAPs in the State 911 Plan as described in the regulation.

The MO DPS stated that “the requirement to give priority to communities without 911 from the current E-911 Grant Program should not be eliminated.” 54 The ENHANCE 911 Act, as amended by Public Law 110-53,55 directed the Agencies to allow a portion of the E-911 grant funds to be used to give this priority to PSAPs that could not receive 911 calls. The NG911 Advancement Act, however, eliminated that requirement and the Agencies do the same in this regulation.

The TX CSEC commented that the certification requirement “obligates each designated State 911 Coordinator (the Coordinator) to certify as to the non-diversion of designated 911 charges for all grant recipients,” including “taxing jurisdictions and grant recipients over whom the Coordinator may have no direct authority.” 56 TX CSEC proposed modifications to Section 400.4(a)(5) and Appendices A and C in order “to allow the State 9-1-1 Coordinator to receive and submit certifications directly from each taxing jurisdiction that will be a grant recipient,” so that the 911 Coordinator could “pass-through the certifications of [these] taxing jurisdictions.” 57 Applicants, through their 911 Coordinator, must certify that neither the State (or Tribal Organization) nor any taxing jurisdiction that directly receives grant funds has diverted or will divert designated 911 charges. The Agencies understand that applicants may not have authority over every taxing jurisdiction which receives grant funds. However, the statutory language and certification requirements are clear that each applicant must sign the certification. Applicants may, if they wish, solicit certifications from grant subrecipients as an internal matter, but the certification submitted to the Agencies must be signed by the 911 Coordinator. The Agencies, therefore, make no modifications to the regulatory language.

APCO recommended that the Agencies allow applicants “that have already expended non-federal funds toward NG911 deployments to count such expenses as in-kind contributions” to satisfy the grant program's 40 percent non-Federal match requirement.58 To allow applicants to match grant funds based on previous investments in 911 would be contrary to the statutory intent. The NG911 Advancement Act mandates a 60 percent Federal share at the project level.59 The Agencies refer all applicants to 2 CFR 200.306 for more details on what is allowable to meet the match requirement.

Lara Wood commented that 47 CFR 400.5(c) states that the agencies will announce awards by September 30, 2009, and suggested that the date should read September 30, 2019.60 September 30, 2009, is the date that appeared in the previously published E-911 Grant Program regulations. The new regulatory language does not include a specific award announcement date. Instead, the Agencies intend to provide the expected award date in the Notice of Funding Opportunity.

The Agencies requested comment on whether the existing grant distribution formula factors—population and public road mileage—remain appropriate, and if not, what factors they should consider. The Agencies sought specific comment on how to account for remote and rural areas.

APCO commented that the Agencies' proposal to apportion “available grant funds across all of the states and tribal organizations, to serve 911, Enhanced 911 (E911), and NG911 purposes” would lead to only marginal enhancements in any given area.61 Instead, APCO suggested that the Agencies give grants for “model NG911 deployments for a few areas.” 62 While the Agencies understand APCO's concerns, the Agencies continue to believe that a formula-based distribution of grant funds to all eligible States is necessary to assist in the implementation of NG911 nationwide, not just in specific locations. The Agencies have set a minimum grant amount in order to ensure that each eligible State and Territory receives a more than de minimis amount of grant funds.

Several commenters—identified in more detail below—recommended additional or substitute factors to use in the funding allocation, including call volume, land area, tourism rates, terrain, cost of needed technological advancements, usage data of call centers, wealth of state/region, access to hospitals/emergency centers, and type of threat experienced by location.

The MO DPS expressed support for retaining the current formula factors: Population and public road mileage.63 An anonymous commenter expressed support for using population and public road mileage as factors for distribution of funds, and suggested the following additional potential factors: “Data regarding the usage of call centers in those areas, wealth of the state or region and their access to hospitals and emergency centers.” 64 However, the anonymous commenter did not provide any explanation for those factors. NASNA stated that the currently proposed formula may not adequately fund rural areas, but cautioned against choosing a factor that advantages rural states with a large land mass over smaller rural states.65

The DC OUC and the Chicago OEMC both suggested using call volume as a factor in the funding allocation in order to account for locations that have high tourist and commuter populations.66 Funds for the 911 Grant Program are distributed at the State level, rather than at the PSAP level. The Agencies are concerned that call volume, which might provide useful localized data, would be less useful once aggregated across a State with a mix of urban and rural areas.

Similarly, the CO PUC commented that it does not support the currently proposed formula because it is unfair to rural, mountainous states such as Colorado that have large tourist populations.67 The CO PUC agreed that cell towers retain an important role in the transmission of 911 calls to PSAPs, but disagreed with the Agencies' use of road miles as a proxy for cell towers because cell towers in Colorado are often built on mountain peaks far from roads.68 The CO PUC recommended the following formula: 40 percent population, 40 percent land area, and 20 percent tourism rates.69 The CO PUC further recommended that the Agencies consider including terrain as a factor in distributing grant funding.70 The Agencies acknowledge the difficulty of accounting for tourism and terrain differences between states. However, the commenter has not identified a reliable source for State-level tourism rates, nor provided any recommendation for translating terrain into a formula variable.

An anonymous commenter supported better accounting for rural areas and advocated a weighted tiered system with individualized factors—including weighted scales to account for the types of threats to safety as well as the cost and type of the technological advancements needed—for determining grant funding amounts in order to provide for more flexibility.71 The commenter further recommended breaking States into geographic regions “so grants can be distributed to areas justifiably with public input.” 72 While the Agencies appreciate the importance of directing grant funds where they are needed most, the Agencies recognize that it is necessary to streamline the grant process in order to provide timely awards. In addition, the Agencies do not have the expertise to make this type of localized determination. The Agencies believe that States are best situated to determine the needs of localities within their borders. The Agencies have, therefore, limited applications to States and Tribal Organizations. The Agencies make no change to the rule in response to this comment.

After considering the comments submitted, and consistent with the Agencies' specific responses above, the Agencies have determined that the existing formula, which equally accounts for population and road miles, is the most reliable method for calculating the distribution of 911 Grant Program funds.

The Agencies specifically sought comment on how to distribute grant funds to Tribal Organizations. Two commenters, the CO PUC and an anonymous commenter, expressed support for applying the same formula to States and Tribal Organizations as proposed by the Agencies.73 The CO PUC further recommended setting a floor level of funding for Tribal Organizations, similar to the minimum grant amounts provided for States and Territories.74 The Agencies decline to set a minimum grant amount for Tribal Organizations because the size of Tribal Organizations varies so widely that a minimum funding level could create inequities and inefficiencies. Therefore, the Agencies will retain the proposed maximum funding level applicable to Tribal Organizations.

The regulatory language of 47 CFR 400.7 lays out the broad parameters of eligible use of 911 Grant Program funds. The Agencies provided additional clarification on certain specific uses of funds in the preamble to the NPRM. The Agencies received several comments relating to these uses. In order to keep the regulatory language broad, and to provide flexibility to grant recipients, the Agencies make no change to the regulatory language in response to these comments, but will address those comments here to provide further clarification.

APCO and the CO PUC expressed support for the Agencies' proposal to provide grant recipients the flexibility to determine whether to provide NG911 services directly or through a contract.75 APCO further suggested that the Agencies encourage applicants to “propose forward-thinking solutions for NG911, even if the proposals deviate from traditional approaches to NG911 network architectures.” 76 Provided that the hardware, software, and/or services comply with current NG911 standards, the Agencies do not proscribe specific architecture for a grantee's NG911 system.

The DC OUC and the MO DPS requested that the Agencies add consulting services to assist with the NG911 transition and deployment as an eligible cost.77 In 47 CFR 400.9(a), the Agencies identified the requirements of 2 CFR part 200, including the cost principles in Subpart E, as applicable to the grants awarded under this program. In accordance with those cost principles, consultant costs are allowable provided that certain conditions are met. Commenters are directed to the applicable cost principle, 2 CFR 200.459—Professional service costs, for detail.

NENA supports the Agencies' incorporation of the NG911 standards, as listed in the DHS SAFECOM Guidance, Appendix B, which NENA notes incorporates by reference many NENA standards.78 NENA specifically urged the Agencies to encourage grant recipients to implement i3-based deployments, relying on the NENA i3 standard laid out in “Detailed Functional and Interface Specifications for the NENA i3 Solution.” 79 Similarly, NSGIC commented that the Agencies should more explicitly require applicants to follow NENA's i3 standard, instead of the existing incorporation of the DHS SAFECOM Guidance.80 The Agencies would like to clarify that the SAFECOM Guidance contains a list of acceptable standards which is a vital resource for developing an NG911 system that meets the goal of interoperability. The Agencies reaffirm the requirement for grant recipients to specify that hardware, software, and services comply with current NG911 standards; however, individual products only need to meet the relevant standard(s) within the list of standards in the SAFECOM Guidance. As NENA notes in its comment, the DHS SAFECOM Guidance incorporates by reference the 911 Program's “NG911 Standards Identification and Review,” which in turn lists NENA's i3 standard.

Conversely, the CO PUC recommended that States be able to apply for waivers of the requirement that hardware, software, and services comply with the current NG911 standards listed in DHS's SAFECOM Guidance in certain instances—for example, when unable to find a product that meets all of the listed standards.81 The Agencies do not believe that waivers are the most effective means of addressing the problem of vendors that do not meet existing standards. Rather, any vendor that believes it is impossible to meet existing standards is encouraged to work with the relevant Standards Development Organization (SDO) to revise existing standards.

Carbyne expressed support for innovative solutions in NG911 and recommended that “any allocation of grant funds must come with the requirement that software and hardware be able to communicate with different PSAPs based on clearly defined standards that the FCC demands.” 82 The FCC has jurisdiction to regulate the telecommunications service providers that deliver 911 calls from the public to PSAPs, whereas the 911 Grant Program provides funds for the direct benefit of PSAPs to improve the 911 system. FCC standards, therefore, are not applicable to hardware and software purchased using 911 Grant Program funds.

NSGIC commented that development and maintenance of geospatial datasets are necessary in order to support the desired NG911 services of call routing and coordinated incident response and management.83 NSGIC provided suggested regulatory language modifications to the definition of Next Generation 911 services (Section 400.2), to the Application requirements section (Section 400.4(a)(1)(i)(B)), and to the Eligible uses section (Section 400.7(b)) to incorporate geographic information system (GIS) data.84 The Agencies agree that GIS data is an integral component of the NG911 system. However, GIS data is already included in the broader terms “software” and “data,” which are used in the specified regulatory provisions. Furthermore, the regulatory provisions to which NSGIC provides recommended modifications are taken directly from the statutory language. Therefore, the Agencies decline to make the suggested modifications.

The CO PUC requested clarification as to what qualifies as an “NG911 application eligible for funding,” and specifically asked whether a Computer Aided Dispatch (CAD) system configured similar to an Emergency Services IP-network, or a CAD or radio system that is interoperable with the NG911 network, would be considered an eligible “NG911 application.” 85 The regulation allows use of funds for “IP-enabled emergency services and applications enabled by NG911 services.” 86 Whether a CAD or a radio system is an eligible application enabled by NG911 services, therefore, depends on whether the CAD or radio system is IP-enabled.

NENA urged the Agencies to “encourage applicants to include relevant [independent verification and validation testing (IV&V)] for all proposed product, service, and system purchases funded with grant monies, or to fund collaborative, multi-jurisdictional IV&V testing” to ensure interoperability.87 The NG911 Advancement Act was established to facilitate implementation of NG911 services. While IV&V testing may be a useful tool for grantees, the Agencies do not believe that IV&V testing by individual States is an effective or efficient use of the limited grant funds available at this time.

The Agencies requested comment on whether they should set a limit on the amount of 911 Grant Program funds that may be used for training and whether training funds should be limited to training designed to meet the “Recommended Minimum Training Guidelines for Telecommunicators,” 88 developed as part of a three-year effort by the National 911 program office. Two commenters, APCO and Motorola, stated that use of 911 Grant Program funds for training should not be limited to training designed to meet the “Recommended Minimum Training Guidelines for Telecommunicators.” 89 APCO recommended that eligible training “should be related to operationalizing NG911 capabilities,” whereas Motorola recommended that “NG9-1-1 grant program funds should therefore be made available to support all levels of 9-1-1 services training.” 90 The CO PUC expressed support for the Minimum Training Guidelines developed by the National 911 Program Office and commented that those guidelines were not unduly burdensome. The CO PUC then stated that it recommends that training expenses “be strictly limited to training pertaining to NG9-1-1 transition and implementation,” but does not believe that there should be a limit on the amount of funds expended on training.91

After considering the comments received, the Agencies believe that it is important to retain flexibility for grant recipients while ensuring efficient use of funds to meet the statutory intent to assist implementation of NG911. Therefore, the Agencies will not set a limit on the amount of funds that may be used for training. However, 911 Grant Program funds may only be used for training that is related to NG911 implementation and operations. In order to ensure similar levels of training across the different components of NG911, the “Recommended Minimum Training Guidelines for Telecommunicators” must serve as a base level for training provided.

In response to the Agencies' request for comment on possible methods of documentation of PSAP compliance with the Minimum Training Guidelines, the CO PUC recommended certification by the 911 coordinator.92 The Agencies' goal is to ensure that training provided using 911 Grant Program funding at least meet the Minimum Training Guidelines with the least burden on grantees. As such, the Agencies will require grantees to submit documentation that describes the training being provided and that identifies the included elements from the Minimum Training Guidelines.

The CO PUC recommended that the Agencies allow recipients to use grant funds to “establish an ongoing training program for public safety telecommunicators.” 93 The Agencies believe that establishing an ongoing training program is already an allowable expense under the program, though some costs of establishing such a program may qualify as administrative expenses subject to the 10 percent maximum.

The Agencies proposed allowing the use of funds for an assessment, using the FCC's “NG911 Readiness Scorecard,” 94 in order to assist States in determining the status of their current 911 systems as part of the NG911 implementation process. APCO and the CO PUC both agreed with the Agencies' proposal to allow grant recipients to use a portion of the 10 percent maximum for administrative costs to perform an assessment of the current 911 system.95 However, APCO stated that “the Office should avoid limiting applicants' self-assessments to any particular tool,” such as the NG911 Readiness Scorecard.96 The NG911 Readiness Scorecard was developed by the Task Force on Optimal Public Safety Answering Point Architecture, with extensive participation from the 911 stakeholder community, both private and public. One of the most important capacities of 911 systems is interoperability. The Agencies believe that a common assessment will help in this goal. For this reason, the Agencies strongly recommend that grantees complete an assessment using the NG911 Readiness Scorecard, but grantees may choose another basis for their assessments.

The MO DPS stated that “[f]or 911-PSAPs that only have basic 911 infrastructure and the legacy enhancements from the 2009 E-911 grant, sustainment and maintenance of those systems should be considered as an eligible cost.” 97 Relatedly, the DC OUC requested that the agencies allow recipients to use grant funds for “continuation or maintenance of NG911” for “early adopters.” 98 However, in order to maximize use of funds to meet the statutory goal of implementation of an NG911 system, the Agencies have determined that grant recipients may only use 911 Grant Program funds to cover the costs of operating the NG911 system during the period when the recipient is also operating the current legacy system. Once the NG911 system is fully operational, the costs of operating the system should be paid for using surcharge fees collected by State and local governments, as anticipated by the NG911 Advancement Act. Grant recipients should already be using designated 911 charges to fund the operation and maintenance of the 911 or E-911 systems.

While expressing agreement with the Agencies' clarification that operation of the NG911 system is an eligible cost while the grantee is still operating its legacy 911 system, the CO PUC stated that it does “not believe the Agencies intend to restrict the use of funds to only operational costs.” 99 The Agencies' clarification regarding operation of the NG911 system was intended to clarify the circumstances in which the costs of operation, as opposed to costs of implementation, of the NG911 system would be allowable. As laid out in the regulation, implementation of the NG911 system—which includes non-recurring and capital expenses related to the NG911 transition—is an eligible cost.

APCO requested that the Agencies create a clear definition of fee diversion, citing disagreement between the FCC and four States in the most recent FCC report “On State Collection and Distribution of 911 and Enhanced 911 Fees and Charges.” 100 The FCC's annual report is authorized under the New and Emerging Technologies 911 Improvement Act of 2008 (NET 911 Act), which is separate from the NG911 Advancement Act. As such, the Agencies are not bound by the FCC's interpretation of non-diversion under the NET 911 Act. The NG911 Advancement Act requires applicants to certify that “no portion of any designated 911 charges imposed by a State or other taxing jurisdiction within which the applicant is located are being obligated or expended for any purpose other than the purposes for which such charges are designated or presented.” 101 As such, fee diversion is largely dependent upon how the fees in question are designated, which varies by State. Providing a single definition of fee diversion, beyond the description provided by the statute and incorporated in the certifications, would ignore the ability of States to designate 911 charges. The Agencies make no change to the rule in response to this comment.

Daniel Ramirez submitted a comment that was somewhat unclear, but that the Agencies interpret to state agreement with the non-diversion requirement in the grant.102

The CO PUC stated general support for allowing waiver requests for discretionary provisions of the grant program regulations.103 APCO stated that certain circumstances could justify a waiver.104 APCO also requested that the Agencies provide an opportunity for notice and comment by the 911 community when considering whether to grant a waiver.105 The Agencies intend to only use this waiver ability in extraordinary circumstances. Therefore, we decline to make a change to the regulation in response to this comment.

This rulemaking has been determined to be significant under section 3(f)(4) of Executive Order 12866, and therefore has been reviewed by the Office of Management and Budget (OMB).

This rulemaking is exempt from the requirements of Executive Order 13771 because it is a “transfer rule.”

The effective date of this final rule is the date of publication. The Administrative Procedure Act's required 30-day delay in effective date for substantive rules does not apply here as this rule concerns grants. See 5 U.S.C. 553(a)(2).

The Chief Counsel for Regulation of the Department of Commerce and the Assistant Chief Counsel for the National Highway Traffic Safety Administration certified to the Small Business Administration Office of Advocacy at the proposed rule stage that this final rule is not expected to have a significant economic impact on a substantial number of small entities. Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as amended, 5 U.S.C. 601-612, to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact on a substantial number of small entities. The majority of potential applicants (56) for 911 grants are U.S. States and Territories, which are not “small entities” for the purposes of the RFA. See 5 U.S.C. 601(5). The remaining potential grant applicants are a small number of Tribal Organizations (approximately 13) with a substantial emergency management/public safety presence within their jurisdictions. Like States, Tribal Organizations are not “small entities” for the purposes of the RFA. See Small Business Regulatory Flexibility Improvements Act of 2015, S. 1536, 114th Cong. § 2(d) (2015) (proposing to add Tribal Organizations to the RFA's “small governmental jurisdiction” definition, one of three categories of “small entities” in the RFA). Therefore, we have determined under the RFA that this final rule would not have a significant economic impact on a substantial number of small entities. Accordingly, no Regulatory Flexibility Analysis is required, and none has been prepared.

This rulemaking has not been determined to be major under the Congressional Review Act, 5 U.S.C. 801 et seq.

This final rule does not contain policies having federalism implications requiring preparations of a Federalism Summary Impact Statement.

This rulemaking has been reviewed under Executive Order 12988, Civil Justice Reform, as amended by Executive Order 13175. The Agencies have determined that the final rule meets the applicable standards provided in section 3 of the Executive Order to minimize litigation, eliminate ambiguity, and reduce burden.

Applications under this program are subject to Executive Order 12372, “Intergovernmental Review of Federal Programs,” which requires intergovernmental consultation with State and local officials. All applicants are required to submit a copy of their applications to their designated State Single Point of Contact (SPOC) offices. See 7 CFR part 3015, subpart V.

This final rule does not contain policies that have takings implications.

The Agencies have analyzed this final rule under Executive Order 13175, and have determined that the action would not have a substantial direct effect on one or more Indian tribes, would not impose substantial direct compliance costs on Indian tribal governments, and would not preempt tribal law. The program is voluntary and any Tribal Organization that chooses to apply and subsequently qualifies would receive grant funds. Therefore, a tribal summary impact statement is not required.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) requires each Federal agency to seek and obtain OMB approval before collecting information from the public. Federal agencies may not collect information unless it displays a currently valid OMB control number. OMB has approved the Agencies' requests to use previously-approved Standard Forms 424 (Application for Federal Assistance), 424A (Budget Information for Non-Construction Programs), 424B (Assurances for Non-Construction Programs), 424C (Budget Information for Construction Programs), 425 (Federal Financial Report), and SF-LLL (Disclosure for Lobbying Activities) under the respective control numbers 4040-0004, 4040-0005, 4040-0006, 4040-0007, 4040-0014, and 4040-0013. OMB pre-approved the Agencies' information collection request for the State 911 Plans and the Annual Performance Reports and assigned it control number 0660-0041.

The Agencies received no comments in response to their requests to utilize common forms or their information collection request for the State 911 Plans and Annual Performance Reports. The approved requests to use common forms and approved information collection request may be viewed at reginfo.gov.

This final rule contains no Federal mandates (under the regulatory provision of Title II of the Unfunded Mandates Reform Act of 1995) for State, local, and tribal governments or the private sector. The program is voluntary and States and Tribal Organizations that choose to apply and qualify would receive grant funds. Thus, this rulemaking is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act of 1995.

The Agencies have reviewed this rulemaking action for the purposes of the National Environmental Policy Act. The Agencies have determined that this final rule would not have a significant impact on the quality of the human environment.

In the 2018 annual management measures for ocean salmon fisheries (83 FR 19005, May 1, 2018), NMFS announced management measures for the commercial and recreational fisheries in the area from the U.S./Canada border to the U.S./Mexico border, beginning May 1, 2018, through April 30, 2019. NMFS is authorized to implement inseason management actions to modify fishing seasons and quotas as necessary to provide fishing opportunity while meeting management objectives for the affected species (50 CFR 660.409). Inseason actions in the salmon fishery may be taken directly by NMFS (50 CFR 660.409(a)—Fixed inseason management provisions) or upon consultation with the Pacific Fishery Management Council (Council) and the appropriate State Directors (50 CFR 660.409(b)—Flexible inseason management provisions). The state management agencies that participated in the consultations described in this document were: California Department of Fish and Wildlife (CDFW), Oregon Department of Fish and Wildlife (ODFW), and Washington Department of Fish and Wildlife (WDFW).

Management of the salmon fisheries is generally divided into two geographic areas: North of Cape Falcon (U.S./Canada border to Cape Falcon, OR) and south of Cape Falcon (Cape Falcon, OR, to the U.S./Mexico border). South of Cape Falcon, the area from Humbug Mountain, OR, to Horse Mountain, CA, is the Klamath Management Zone (KMZ) and is managed in two subareas, Oregon KMZ and California KMZ, divided at the Oregon/California border. For managing commercial salmon fisheries, the Oregon KMZ is the area from Humbug Mountain, OR to the Oregon/California border, and the California KMZ is the area from the Oregon/California border to Humboldt South Jetty, CA. The area from Humboldt South Jetty, CA, to Horse Mountain, CA, is closed to commercial salmon fishing in 2018.

Description of action: Inseason action #2 closed the commercial salmon fishery from the U.S./Canada border to Queets River, WA, at 11:59 p.m., May 27, 2018.

Effective dates: Inseason action #2 took effect on May 27, 2018, and remained in effect until superseded by inseason action #3 on May 31, 2018.

Reason and authorization for the action: WDFW provided information on salmon landings in the ocean salmon fishery north of Queets River, WA, and recommended that, at the current rate of harvest, the May-June Chinook salmon quota in the area was at risk of being exceeded. The purpose of this action was to avoid exceeding the May-June quota for Chinook salmon in the area. The NMFS West Coast Regional Administrator (RA) considered Chinook salmon landings and fishery effort in the area north of Cape Falcon and determined that this inseason action was necessary to meet management objectives set preseason. The 2018 annual management measures for ocean salmon fisheries (83 FR 19005, May 1, 2018) state that landing limits may be modified inseason to sustain season length and keep harvest within overall quotas. Flexible inseason management provisions are authorized by 50 CFR 660.409(b).

Consultation date and participants: Consultation on inseason action #2 occurred on May 25, 2018. Representatives from NMFS, WDFW, ODFW, and the Council participated in this consultation.

Description of action: Inseason action #3 superseded inseason action #2 and reopened the commercial salmon fishery from the U.S./Canada border to Queets River, WA, from May 31, 2018, through June 4, 2018, with an open period landing limit of 35 Chinook salmon per vessel.

Effective dates: Inseason action #3 took effect May 31, 2018, and remained in effect until superseded by inseason action #7 on June 8, 2018.

Reason and authorization for the action: WDFW reported updated landings for the area north of Cape Falcon and recommended that sufficient quota remained in the area north of the Queets River to reopen the fishery, on a limited basis, for five days with a 35 Chinook salmon per vessel landing limit. This recommendation reduced the open period from seven days per week and the landing limit from 50 Chinook salmon per vessel, set preseason. The RA considered Chinook salmon landings and fishery effort in the area north of Cape Falcon and determined that this inseason action was necessary to meet management objectives set preseason and to allow commercial salmon fishers to fully access available quota. The 2018 annual management measures for ocean salmon fisheries (83 FR 19005, May 1, 2018) state that landing limits may be modified inseason to sustain season length and keep harvest within overall quotas. Flexible inseason management provisions are authorized by 50 CFR 660.409(b).

Consultation date and participants: Consultation on inseason action #3 occurred on May 30, 2018. Representatives from NMFS, WDFW, ODFW, and the Council participated in this consultation.

Description of action: Inseason action #4 increased the landing limit in the commercial ocean salmon fishery from Queets River, WA, to Leadbetter Point, WA, from 100 Chinook salmon per vessel per landing week (Thursday through Wednesday) to 200 Chinook salmon per vessel per landing week (Thursday through Wednesday).

Effective dates: Inseason action #4 took effect May 31, 2018, and remained in effect through June 30, 2018.

Reason and authorization for the action: ODFW and WDFW presented information that landings were very low in the north of Cape Falcon fisheries located south of Queets River, WA. The RA considered Chinook salmon landings and fishery effort in the area and determined that this inseason action was necessary to meet management objectives set preseason and to allow commercial salmon fishers to fully access available quota. The 2018 annual management measures for ocean salmon fisheries (83 FR 19005, May 1, 2018) state that landing limits may be modified inseason to sustain season length and keep harvest within overall quotas. Flexible inseason management provisions are authorized by 50 CFR 660.409(b).

Consultation date and participants: Consultation on inseason action #4 occurred on May 30, 2018. Representatives from NMFS, WDFW, ODFW, and the Council participated in this consultation.

Description of action: Inseason action #5 increased the landing limit in the commercial ocean salmon fishery from Leadbetter Point, WA, to Cape Falcon, OR, from 50 Chinook salmon per vessel per landing week (Thursday through Wednesday) to 100 Chinook salmon per vessel per landing week (Thursday through Wednesday).

Effective dates: Inseason action #5 took effect May 31, 2018, and remained in effect through June 30, 2018.

Reason and authorization for the action: ODFW and WDFW presented information that landings were very low in the north of Cape Falcon fisheries located south of Queets River, WA. The RA considered Chinook salmon landings and fishery effort in the area and determined that this inseason action was necessary to meet management objectives set preseason and to allow commercial salmon fishers to fully access available quota. The 2018 annual management measures for ocean salmon fisheries (83 FR 19005, May 1, 2018) state that landing limits may be modified inseason to sustain season length and keep harvest within overall quotas. Flexible inseason management provisions are authorized by 50 CFR 660.409(b).

Consultation date and participants: Consultation on inseason action #5 occurred on May 30, 2018. Representatives from NMFS, WDFW, ODFW, and the Council participated in this consultation.

Description of action: Inseason action #6 adjusted the June quota for the commercial ocean salmon fishery in the California KMZ from 4,000 Chinook salmon to 6,650 Chinook salmon by rolling over unused Chinook salmon quota from May to June on an impact-neutral basis.

Effective dates: Inseason action #6 took effect June 1, 2018 and remained in effect through June 30, 2018.

Reason and authorization for the action: The May quota for the commercial salmon fishery in the California KMZ was 3,600 Chinook salmon. CDFW estimated May landings at 950 Chinook salmon. Based on the Chinook salmon landings and fishery effort in the area and the calculations of the Council's Salmon Technical Team (STT) for rolling over quota on an impact-neutral basis for Sacramento and Klamath River fall Chinook salmon stocks, the RA determined that the rollover from May to June would be 2,650 Chinook salmon, resulting in an adjusted June quota of 6,650. The RA further determined that this inseason action was necessary to meet management objectives set preseason and to allow commercial salmon fishers to fully access available quota. Impact-neutral quota rollover from one month to the next in the California KMZ is permitted under the 2018 annual management measures for ocean salmon fisheries (83 FR 19005, May 1, 2018). Flexible inseason management provisions are authorized by 50 CFR 660.409(b).

Consultation date and participants: Consultation on inseason action #6 occurred on May 30, 2018. Representatives from NMFS, CDFW, ODFW, and the Council participated in this consultation.

Description of action: Inseason action #7 superseded inseason action #3 and reopened the commercial salmon fishery from the U.S./Canada border to Queets River, WA, from June 8, 2018, through June 11, 2018, with an open period landing limit of 30 Chinook salmon per vessel.

Effective dates: Inseason action #7 took effect June 8, 2018 and remained in effect through June 30, 2018.

Reason and authorization for the action: WDFW reported updated landings for the area north of Cape Falcon, and recommended that sufficient quota remained in the area north of the Queets River to reopen the fishery for four days with a 30 Chinook salmon per vessel landing limit. The RA considered Chinook salmon landings and fishery effort in the area and determined that this inseason action was necessary to meet management objectives set preseason and to allow commercial salmon fishers to fully access available quota. The 2018 annual management measures for ocean salmon fisheries (83 FR 19005, May 1, 2018) state that landing limits may be modified inseason to sustain season length and keep harvest within overall quotas. Flexible inseason management provisions are authorized by 50 CFR 660.409(b).

Consultation date and participants: Consultation on inseason action #7 occurred on June 7, 2018. Representatives from NMFS, WDFW, ODFW, and the Council participated in this consultation.

Description of action: Inseason action #8 cancelled the scheduled June 16-30, 2018, opening of the commercial ocean salmon fishery in the Oregon KMZ due to attainment of the June quota in that area.

Effective dates: Inseason action #8 took effect June 16, 2018, and remained in effect through June 30, 2018.

Reason and authorization for the action: ODFW provided data for June salmon landings in the Oregon KMZ and recommended that insufficient quota remained to support the previously scheduled June 16-30, 2018 opening. The RA considered Chinook salmon landings and fishery effort in the Oregon KMZ and determined that this inseason action was necessary to meet management objectives set preseason and to prevent exceeding the June quota. The 2018 annual management measures for ocean salmon fisheries (83 FR 19005, May 1, 2018) state that landing limits may be modified inseason to sustain season length and keep harvest within overall quotas. Flexible inseason management provisions are authorized by 50 CFR 660.409(b).

Consultation date and participants: Consultation on inseason action #8 occurred on June 14, 2018. Representatives from NMFS, ODFW, CDFW, and the Council participated in this consultation.

Description of action: Inseason action #9 adjusted the July quota for the commercial ocean salmon fishery in the California KMZ from 4,000 Chinook salmon to 6,612 Chinook salmon by rolling over unused Chinook salmon quota from June to July on an impact-neutral basis.

Effective dates: Inseason action #9 took effect July 1, 2018, and remains in effect through July 31, 2018.

Reason and authorization for the action: The June quota for the commercial salmon fishery in the California KMZ, as adjusted under inseason action #6 above, was 6,650 Chinook salmon. CDFW estimated June landings at 2,614 Chinook salmon. Based on the Chinook salmon landings and fishery effort in the area and the calculations of the STT for rolling over quota on an impact-neutral basis for the Sacramento River fall Chinook salmon stock, the RA determined that the rollover from June to July would be 2,612 Chinook salmon, resulting in an adjusted July quota of 6,612. The RA further determined that this inseason action was necessary to meet management objectives set preseason and to allow commercial salmon fishers to fully access available quota. Impact-neutral quota rollover from one month to the next in the California KMZ is permitted under the 2018 annual management measures for ocean salmon fisheries (83 FR 19005, May 1, 2018). Flexible inseason management provisions are authorized by 50 CFR 660.409(b).

Consultation date and participants: Consultation on inseason action #9 occurred on June 27, 2018. Representatives from NMFS, ODFW, CDFW, and the Council participated in this consultation.

Description of action: Inseason action #10 adjusted the July quota for the commercial ocean salmon fishery in the Oregon KMZ from 2,000 Chinook salmon to 1,975 Chinook salmon by deducting, on an impact-neutral basis, Chinook salmon quota that was exceeded in the area in June.

Effective dates: Inseason action #10 took effect July 1, 2018 and remains in effect through July 31, 2018.

Reason and authorization for the action: The June quota for the commercial salmon fishery in the Oregon KMZ was 1,500 Chinook salmon. ODFW estimated June landings at 1,556 Chinook salmon, exceeding the June quota by 56 Chinook salmon. Based on the Chinook salmon landings and fishery effort in the area and the calculations of the STT for rolling back quota on an impact-neutral basis for the Sacramento and Klamath River fall Chinook salmon stocks, the RA determined that 25 Chinook salmon would be deducted from the July quota in the Oregon KMZ to account for exceeding the June quota, resulting in an adjusted July quota of 1,975 Chinook salmon. The RA further determined that this inseason action was necessary to meet management objectives set. Impact-neutral quota rollover from one month to the next in the Oregon KMZ is permitted under the 2018 annual management measures for ocean salmon fisheries (83 FR 19005, May 1, 2018). Flexible inseason management provisions are authorized by 50 CFR 660.409(b).

Consultation date and participants: Consultation on inseason action #10 occurred on June 27, 2018. Representatives from NMFS, ODFW, CDFW, and the Council participated in this consultation.

Description of action: Inseason action #11 allows retention of halibut caught incidental to the commercial salmon fishery by IPHC license holders to continue past June 30, 2018, with the same landing and possession limits set preseason, due to sufficient halibut allocation remaining. This inseason action applies to commercial salmon fisheries from the U.S./Canada border to the U.S./Mexico border.

Effective dates: Inseason action #11 took effect July 1, 2018, and remains in effect until superseded by further inseason action.

Reason and authorization for the action: The 2018 annual management measures for ocean salmon fisheries (83 FR 19005, May 1, 2018) announced the conditions for incidental halibut harvest: “incidental harvest is authorized only during April, May, and June of the 2018 troll seasons, and after June 30 in 2018 if quota remains.” At the time of this consultation, 28 percent of the incidental halibut allocation remained uncaught. The RA considered Chinook salmon and halibut landings and fishery effort in the commercial ocean salmon fishery and determined that this inseason action was necessary to meet management objectives set preseason and to allow access to the available halibut allocation, as provided for in the 2018 annual management measures for ocean salmon fisheries (83 FR 19005, May 1, 2018). Flexible inseason management provisions are authorized by 50 CFR 660.409(b).

Consultation date and participants: Consultation on inseason action #11 occurred on June 27, 2018. Representatives from NMFS, ODFW, CDFW, and the Council participated in this consultation.

All other restrictions and regulations remain in effect as announced for the 2018 ocean salmon fisheries and 2019 salmon fisheries opening prior to May 1, 2019 (83 FR 19005, May 1, 2018), and as modified by prior inseason actions.

The RA determined that the best available information indicated that Chinook salmon and halibut abundance forecasts and expected fishery effort in 2018 supported the above inseason actions recommended by the states of Washington, Oregon, and California. The states manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone consistent with these federal actions. As provided by the inseason notice procedures of 50 CFR 660.411, actual notice of the described regulatory action was given, prior to the time the action was effective, by telephone hotline numbers 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

NOAA's Assistant Administrator (AA) for NMFS finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment under 5 U.S.C. 553(b)(B) because such notification would be impracticable. As previously noted, actual notice of the regulatory action was provided to fishers through telephone hotline and radio notification. This action complies with the requirements of the annual management measures for ocean salmon fisheries (83 FR 19005, May 1, 2018), the Pacific Coast Salmon Fishery Management Plan (FMP), and regulations implementing the FMP, 50 CFR 660.409 and 660.411. Prior notice and opportunity for public comment was impracticable because NMFS and the state agencies had insufficient time to provide for prior notice and the opportunity for public comment between the time Chinook salmon and halibut catch and effort projections and abundance forecasts were developed and fisheries impacts were calculated, and the time the fishery modifications had to be implemented in order to ensure that fisheries are managed based on the best available scientific information, ensuring that conservation objectives and limits for impacts to salmon species listed under the Endangered Species Act are not exceeded. The AA also finds good cause to waive the 30-day delay in effectiveness required under 5 U.S.C. 553(d)(3), as a delay in effectiveness of this action would allow fishing at levels inconsistent with the goals of the FMP and the current management measures.

This action is authorized by 50 CFR 660.409 and 660.411 and is exempt from review under Executive Order 12866.