Federal Register Vol. 83, No.154,

Effective July 30, 2008, the Housing and Economic Recovery Act of 2008 (HERA) 1 created FHFA as a new independent agency of the Federal Government, and transferred to FHFA the supervisory and oversight responsibilities of the Finance Board over the Federal Home Loan Banks (Banks), the oversight responsibilities of the Office of Federal Housing Enterprise Oversight (OFHEO) over the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation (the Enterprises), and certain functions of the Department of Housing and Urban Development.2 Under section 1313(a) of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Safety and Soundness Act), FHFA is responsible for ensuring that the Banks and the Enterprises operate in a safe and sound manner, including that they maintain adequate capital and internal controls, that their activities foster liquid, efficient, competitive and resilient national housing finance markets, and that they carry out their public policy missions through authorized activities.3 The Banks and the Enterprises remain subject to, and continue to operate under, regulations promulgated by the Finance Board and by OFHEO and HUD, respectively, until such regulations are superseded by regulations issued by FHFA.4 The Finance Board regulations that are the subject of this rulemaking have remained in effect pursuant to that authority.

On April 3, 2018, FHFA published a notice of proposed rulemaking to repeal certain outdated Finance Board regulations.5 FHFA proposed to repeal definitions under the Finance Board regulations that are obsolete or that duplicate FHFA definitions, and to repeal an outdated Finance Board regulation that describes the process the Finance Board used to conduct the MIRS. FHFA also proposed to repeal subchapters of the Finance Board regulations that were reserved and no longer serve any regulatory purpose. The comment period ended on May 18, 2018. FHFA received no comments in response to any part of the proposed rulemaking, and thus is finalizing the amendments to the Finance Board regulations as proposed.

FHFA proposed repealing the Finance Board definitions located in Subchapter A, which consists of part 900 of the Finance Board regulations, and includes definitions of forty-two terms that had been used throughout the Finance Board regulations. In 2013 FHFA carried over into its own regulations (at part 1201) most of the Finance Board definitions, but did not repeal the Finance Board definitions at that time because a number of substantive Finance Board regulations that used those terms remained in effect.6 FHFA has now proposed repealing all of the definitions within part 900 of the Finance Board regulations because, since 2013, FHFA has relocated or repealed all of the substantive Finance Board regulations, other than those relating to Bank capital requirements, which are the subject of a separate rulemaking.7 The final rule is identical to the proposed rule on this topic.

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A318-111 and -112 airplanes, Model A319-111, -112, -113, -114, and -115 airplanes, Model A320-211, -212, -214, and -216 airplanes, and Model A321-111, -112, -211, -212, and -213 airplanes. The NPRM published in the Federal Register on March 9, 2018 (83 FR 10411). The NPRM was prompted by a report of a production quality deficiency on the inner retainer installed on link assemblies of the aft engine mount, which could result in failure of the retainer. The NPRM proposed to require modifying and re-identifying the aft engine mount assemblies.

We are issuing this AD to address non-conforming retainers of the aft engine mount. This condition could result in loss of the locking feature of the nuts of the inner and outer pins; loss of the pins will result in the aft mount engine link no longer being secured to the aft engine mount, possibly resulting in damage to the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0251, dated December 15, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A318-111 and -112 airplanes, Model A319-111, -112, -113, -114, and -115 airplanes, Model A320-211, -212, -214, and -216 airplanes, and Model A321-111, -112, -211, -212, and -213 airplanes. The MCAI states:

This AD does not supersede AD 2017-04-10. Rather, we have determined that a stand-alone AD is more appropriate to address the changes in the MCAI. This AD requires modifying and re-identifying the aft engine mount assemblies. Accomplishment of the required actions terminates the repetitive detailed inspections required by paragraph (l) of AD 2016-14-09, and serve as a method of compliance for the requirements of paragraph (g) of AD 2017-04-10. You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0165.

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

Air Line Pilots Association, International (ALPA) supported the intent of the NPRM.

Airbus SAS noted that it issued Service Bulletin A320-71-1071, Revision 01, dated October 17, 2017, and requested that this revision of the service bulletin be included in the final rule. The original issue of Service Bulletin A320-71-1071, dated November 8, 2016, was referred to in the proposed AD.

We agree with the commenter's request. Airbus Service Bulletin A320-71-1071, Revision 01, dated October 17, 2017, clarifies certain notes and references but makes no substantive changes to Airbus Service Bulletin A320-71-1071, dated November 8, 2016, as proposed in the NPRM. Furthermore, while Airbus Service Bulletin A320-71-1071, Revision 01, dated October 17, 2017, expands the effectivity, the applicability of this AD has not been changed. We have revised the preamble of this final rule and paragraph (h) of this AD to include Airbus Service Bulletin A320-71-1071, Revision 01, dated October 17, 2017. We have also added paragraph (n) to this AD to provide credit for actions done prior to the effective date of this AD using the original issue of Airbus Service Bulletin A320-71-1071, dated November 8, 2016. We redesignated subsequent paragraphs accordingly.

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

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

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

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

Airbus SAS has issued Service Bulletin A320-71-1071, Revision 01, dated October 17, 2017. Goodrich Aerostructures has issued Service Bulletin RA32071-164, Revision 1, dated July 19, 2017. The service information describes procedures for modifying and re-identifying the aft engine mount retainer assembly. These documents are distinct since they apply to different airplane models in different configurations.

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

We estimate that this AD affects 500 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska, and

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

Background

This document contains final regulations to amend the Procedure and Administration Regulations (26 CFR part 301) under Subpart—Tax Treatment of Partnership Items to implement the rules for the partnership representative under the centralized partnership audit regime enacted by section 1101 of the BBA, Public Law 114-74. Section 1101 of the BBA was amended on December 18, 2015, by the Protecting Americans from Tax Hikes Act of 2015, Public Law 114-113, and on March 23, 2018 by the Tax Technical Corrections Act of 2018, which was enacted into law as part of the Consolidated Appropriations Act of 2018, Public Law 115-141. Section 301.6223-1 provides the rules regarding the designation of the partnership representative, § 301.6223-2 provides the rules regarding the authority of the partnership representative, and § 301.9100-22 provides the rules for making the election under section 1101(g)(4) of the BBA with respect to returns filed for partnership taxable years beginning after November 2, 2015 and before January 1, 2018.

On August 5, 2016, the Treasury Department and the IRS published in the Federal Register (81 FR 51795) temporary regulations (TD 9780) regarding the time, form, and manner for making an election to apply the centralized partnership audit regime to partnership taxable years beginning after November 2, 2015 and before January 1, 2018. On the same day, the Treasury Department and the IRS published in the Federal Register (81 FR 51835) a notice of proposed rulemaking (REG-105005-16) cross-referencing the temporary regulations. No comments were received in response to the proposed regulations, and no hearing was requested or held.

On June 14, 2017, the Treasury Department and the IRS published in the Federal Register (82 FR 27334) a notice of proposed rulemaking (REG-136118-15) regarding a number of provisions of the centralized partnership audit regime, including section 6223, relating to the partnership representative (June 14 NPRM). A public hearing regarding the proposed regulations was held on September 18, 2017. The Treasury Department and the IRS also received written public comments in response to the proposed regulations, including comments regarding the partnership representative under section 6223.

On November 30, 2017, the Treasury Department and the IRS published in the Federal Register (82 FR 56765) a notice of proposed rulemaking (REG-119337-17) regarding international rules under the centralized partnership audit regime. On December 19, 2017, the Treasury Department and the IRS published in the Federal Register (82 FR 27071) a notice of proposed rulemaking (REG-120232-17) regarding certain procedural rules under the centralized partnership audit regime, including proposed § 301.6231-1 regarding notices that are required to be mailed to partnerships (December 19 NPRM). On January 2, 2018, the Treasury Department and the IRS published in the Federal Register (82 FR 28398) final regulations for electing out of the partnership audit regime. On February 2, 2018, the Treasury Department and the IRS published in the Federal Register (83 FR 4868) a notice of proposed rulemaking (REG-118067-17) regarding rules for adjusting tax attributes under the centralized partnership audit regime.

After careful consideration of all written public comments and statements made during the public hearing relating to section 6223, the portions of the June 14 NPRM relating to section 6223 are adopted as amended by this Treasury Decision. These amendments are discussed in the next section. Examples were revised to conform to the amendments discussed in the next section, and clarifying and editorial revisions were also made. The Treasury Department and the IRS received no comments with respect to proposed § 301.9100-22 and made no substantive revisions to the proposed regulations. Accordingly, the final regulations adopt the proposed regulations without any substantive change. Minor editorial changes were made. The temporary regulations are removed.

In response to the June 14 NPRM, the Treasury Department and the IRS received 33 written comments, and five statements were provided at the public hearing. All comments (both written and provided orally at the public hearing) were considered, and written comments are available for public inspection at www.regulations.gov or upon request. This preamble addresses only the comments or portions of comments relating to the proposed regulations under section 6223, which are the proposed regulations from the June 14 NPRM being finalized in this Treasury Decision. Comments, or any portion of a comment, that relate to other aspects of the proposed regulations in the June 14 NPRM that have not yet been finalized will be addressed when final regulations regarding those provisions are published. The comments relating to the proposed regulations under section 6223 cover a broad range of topics, including eligibility to serve as the partnership representative, designating and changing a partnership representative, and the binding effect and authority of the partnership representative. These comments were considered and revisions to the regulations were made in response to the comments.

Proposed § 301.6223-1(b)(1) provided that a partnership may designate any person that has a substantial presence in the United States and that has the capacity to act to be the partnership representative. If an entity is designated as the partnership representative, the partnership must appoint a designated individual to act on the entity's behalf. See proposed § 301.6223-1(b)(2), (3), and (4).

One comment recommended that § 301.6223-1(b)(1) explicitly provide that a disregarded entity can serve as the partnership representative. This comment has been adopted. Any person as defined in section 7701(a)(1), including an entity, can serve as the partnership representative provided that person meets the requirements of § 301.6223-1(b). Therefore, § 301.6223-1(b)(1) has been revised to clarify that a disregarded entity can be a partnership representative. Because a disregarded entity is not an individual and is an entity partnership representative, the partnership must appoint a designated individual to act on behalf of the disregarded entity in accordance with § 301.6223-1(b)(3). In addition, both the disregarded entity and the designated individual must have substantial presence as described in § 301.6223-1(b)(2).

Section 301.6223-1(b)(1) has also been revised to clarify that a partnership may designate itself as its own partnership representative. The rules regarding eligibility to serve as a partnership representative are designed to permit the partnership to designate the person it believes is most appropriate to serve as partnership representative, provided that person meets the requirements of § 301.6223-1(b)(2) (substantial presence) and § 301.6223-1(b)(3) (designated individual). Therefore, a partnership may serve as its own partnership representative if the partnership has substantial presence in the United States and also appoints a designated individual that has a substantial presence in the United States to act on the partnership's behalf in the partnership's role as partnership representative.

One comment recommended that the regulations confirm that, in the case of an entity designated as partnership representative, the designated individual does not have to be an employee of that entity. Nothing in the regulations requires that the designated individual be an employee of the entity partnership representative. As explained in part 4.F. of the preamble to the June 14 NPRM, an entity with no employees is permitted to be the partnership representative provided the partnership appoints a designated individual to act on behalf of that entity and both the entity and the designated individual have substantial presence in the United States. Because the plain language of the regulation does not require the designated individual to be an employee of the entity partnership representative, no clarification is necessary and the comment was not adopted.

Another comment suggested that a partnership should not be required to appoint a designated individual to act for an entity partnership representative until the IRS issues a notice of administrative proceeding (NAP) or the partnership files a valid administrative adjustment request (AAR) under section 6227. This comment was not adopted. The purpose of the designated individual requirement is to have an individual identified who can act on behalf of the entity partnership representative prior to the beginning of an administrative proceeding under subchapter C of chapter 63 (administrative proceeding). If no designated individual is appointed and the IRS initiates an administrative proceeding, neither the partnership nor the IRS will know who has the authority to act on behalf of the entity partnership representative. This could delay the beginning of the proceeding and consequently slow down the administrative proceeding.

As explained in part 2.D. of the preamble to the June 14 NPRM, these types of delays frequently occurred under TEFRA. Under TEFRA, partnerships and the IRS often spent a significant amount of time establishing that a person designated as the tax matters partner (TMP) was qualified to be the TMP or, in the case of an entity TMP, identifying and locating an individual to act on the entity's behalf. Also as explained in part 2.D. of the preamble to the June 14 NPRM, the introduction of the partnership representative concept under the centralized partnership audit regime was intended to address the shortcomings of the TMP rules. Accordingly, the proposed regulations required the partnership to identify and appoint a designated individual prior to the start of an administrative proceeding to avoid a delay related to locating and confirming the identity of an individual to act on behalf of an entity partnership representative. With that objective in mind, the final regulations maintain the rule that in the case of an entity partnership representative, the partnership must appoint a designated individual at the time the partnership representative is designated.

Another comment suggested that the entity partnership representative itself, rather than the partnership, should appoint the designated individual. The partnership makes the initial designation of the partnership representative on the partnership's return. When an entity is chosen, the partnership must appoint a designated individual to act on behalf of the entity partnership representative. See § 301.6223-1(c)(2). While this rule requires that the partnership appoint the designated individual, nothing in the regulations precludes the entity partnership representative from identifying who the designated individual should be and communicating that decision to the partnership. Ultimately, however, the partnership must determine who will be the partnership representative. Determining who will be the designated individual to act on behalf of an entity partnership representative is part of that determination. Therefore, the final regulations retain the rule that the partnership must appoint the designated individual on its partnership return for the relevant taxable year.

This rule ensures that designation of the entity partnership representative and appointment of the designated individual occur simultaneously on the partnership return with the result that it will be clear to both the partnership and the IRS at the time the partnership return is filed who has the authority to act on behalf of the partnership for the taxable year for which the return is filed for purposes of the centralized partnership audit regime. As discussed previously in this section of the preamble, under TEFRA, the IRS spent significant time and resources determining who was the TMP. If that TMP was an entity, the IRS and taxpayers spent additional time and resources determining who could act on behalf of the entity TMP under state law. Moreover, in cases where state law permitted an entity to act on behalf of an entity TMP, the IRS and the partnership had to identify an individual who could act on behalf of that entity to determine someone who could ultimately act on behalf of the entity TMP. The rule under § 301.6223-1(c)(2) allows the IRS and the partnership to readily identify who can act on behalf of the partnership representative without having to inquire into who has the state law authority to act on behalf of the entity partnership representative. Because the partnership makes the designated individual appointment under the final regulations, the rule eliminates the time spent determining who can act for the partnership.

This rule is also necessary because under the centralized partnership audit regime an entity partnership representative can only act through a designated individual. To achieve this, the partnership must appoint the designated individual for the entity partnership representative to take action under the centralized partnership audit regime. Prior to the appointment of a designated individual, the entity partnership representative does not have the ability to act under the centralized partnership audit regime. Accordingly, the comment recommending the partnership representative make the designated individual appointment was not adopted, and § 301.6223-1(b)(3)(ii) has been modified to clarify that the partnership must appoint the designated individual.

Section 6223(a) provides that a partnership representative must have a substantial presence in the United States. Proposed § 301.6223-1(b)(2) provided that a person has substantial presence in the United States for purposes of section 6223 if the person is able to meet in person with the IRS in the United States at a reasonable time and place, has a United States street address and telephone number where the person can be reached during normal business hours, and has a United States taxpayer identification number (TIN). Several comments suggested that the first two criteria for substantial presence were too vague and recommended clarification of what is considered reasonable with respect to the time and place for meetings between the partnership representative and the IRS and whether the reference to normal business hours is determined based on the IRS's business hours or based on the partnership's business hours.

Section 301.6223-1(b)(2) is designed to allow the partnership and the IRS maximum flexibility to determine mutually convenient times to meet, to schedule phone calls, and to share information, while at the same time ensuring that the partnership and its books and records are available to the IRS during the administrative proceeding. Because what constitutes a reasonable time and place depends on the facts and circumstances, providing specific rules by regulation applicable to every circumstance that could arise in an administrative proceeding is not feasible and, even if it were, doing so would interfere with rather than facilitate a productive environment for the administrative proceeding. There are existing regulations relating to the reasonable time and place for an examination in § 301.7605-1 that are applicable to the centralized partnership audit regime. Section 301.7605-1(a) states: “The time and place of examination . . . are to be fixed by an officer or employee of the Internal Revenue Service, and officers and employees are to endeavor to schedule a time and place that are reasonable under the circumstances.” To address the comment, the regulations under § 301.6223-1(b)(2) have been clarified to include a cross-reference to these provisions.

With respect to the comment regarding the meaning of “normal business hours,” the Treasury Department and the IRS agree that this terminology is confusing. In addition, cross-referencing the rules for the time and place of examination under § 301.7605-1 makes this term unnecessary. Therefore, the final regulations remove the reference in § 301.6223-1(b)(2)(ii) to normal business hours. The partnership representative still must have a telephone number with a United States area code, but the reference to normal business hours has been removed to avoid confusion regarding what constitutes normal business hours.

The Treasury Department and the IRS also revised the phrase in § 301.6223-1(b)(2)(i)—“The person is available to meet in person with the IRS”—to read—“The person makes themselves available to meet in person with the IRS.” This change was made to distinguish between a partnership representative who is generally available to meet and works with the IRS to facilitate communications and a partnership representative who is generally available but refuses to meet with the IRS. Examples have also been added under § 301.6223-1(b)(4) to illustrate this clarification.

Another comment recommended that regulations under proposed § 301.6223-1(b)(2) establish a “safe harbor” for substantial presence that would allow the partnership to designate a location in the United States for purposes of communications between the partnership representative and the IRS, similar to how businesses designate a registered agent and an address for accepting service of process. Section 301.6223-1(b)(2)(ii) requires the partnership to provide a United States street address and phone number where the partnership representative can be reached by United States mail and telephone. This rule already allows the partnership to designate a location within the United States for communications between the partnership representative and the IRS, including receipt of formal documents from the IRS. However, in addition to having a United States street address and telephone, a partnership representative must also make themselves available to meet in person with the IRS. As discussed in part 2.D of the preamble to the June 14 NPRM, the purpose of the substantial presence requirement is to “ensure that the person selected to represent the partnership will be available to the IRS in the United States when the IRS seeks to communicate or meet with the representative.” Because the partnership representative must make themselves available to meet with the IRS, the partnership representative may have any telephone number with a United States area code and a street address in any location in the United States, provided the telephone number and street address allow the IRS to contact the partnership representative. Consequently, an explicit “safe harbor” for substantial presence is unnecessary, and the comment has not been adopted.

One of the components of eligibility to serve as a partnership representative or designated individual under the proposed regulations was the capacity to act. Proposed § 301.6223-1(b)(4) described five specific events that cause a person to lose the capacity to act for purposes of section 6223 and included a catch-all provision for any unforeseen circumstances in which the IRS reasonably determined a person may no longer have the capacity to act. If a partnership representative lost the capacity to act under proposed § 301.6223-1(b)(4), the IRS could determine that the designation of the partnership representative or appointment of a designated individual was not in effect. See proposed § 301.6223-1(f). Additionally, where all general partners lost the capacity to act, a partner other than a general partner could sign a revocation of the partnership representative. See proposed § 301.6223-1(e).

In response to the capacity-to-act requirements in the proposed regulations, one comment recommended that the list of circumstances under proposed § 301.6223-1(b)(4) be expanded to include other specific situations such as when the person has been convicted of a felony or a crime that involves dishonesty or breach of trust, when the person is in bankruptcy or receivership, or when the person is known to be under criminal investigation for a violation of the Code. The same comment recommended that standards or limitations be included within the catch-all provision under proposed § 301.6223-1(b)(4)(vi), which provides that a person loses the capacity to act in “any similar situation where the IRS reasonably determines the person may no longer have capacity to act.” Another comment suggested that if a partnership becomes aware that the partnership representative lacks the capacity to act, the regulations should require the partnership to revoke that partnership representative's designation.

The capacity-to-act requirement was intended to correspond to situations where the person would not be able to represent the partnership during the administrative proceeding, for instance, when the person died, was legally incapacitated, or was otherwise unable to act during the administrative proceeding. After reviewing the comments regarding capacity to act, the Treasury Department and the IRS reevaluated whether such a requirement is needed. Rather than creating a regulatory requirement for who should be the partnership representative or a designated individual, the Treasury Department and the IRS believe that partnerships are in the best position to make the decision as to who can best represent them before the IRS. For the reasons discussed below, the Treasury Department and the IRS have determined that regulations regarding capacity to act would provide an unnecessary limitation on the partnership's choice of who it believes is the best person to act on the partnership's behalf. Therefore, the comments have not been adopted, and the capacity-to-act requirement has been removed from the final regulations.

Under the proposed regulations, the partnership had complete control over who is designated as the partnership representative and appointed as a designated individual so long as the person designated or appointed satisfies the substantial presence requirement. Further, the partnership had the unilateral power to revoke the partnership representative for any reason. Therefore, the partnership can adequately protect itself if the concept of capacity is removed since it can revoke the partnership representative.

Beyond requiring a partnership representative to have a substantial presence in the United States, the Treasury Department and the IRS have determined that it is not the proper role of the IRS to make further inquiries into whether, in the view of the IRS, the designated partnership representative or designated individual is the right person to represent the partnership. For example, some partnerships may not wish to be represented by a partnership representative that has filed for bankruptcy. But, in other cases, the partnership may determine that the partnership representative's bankruptcy status is not relevant to whether the person can serve as partnership representative.

By setting forth specific capacity factors, like bankruptcy, for making someone ineligible to act on behalf of the partnership, the regulations would be unnecessarily supplanting the partnership's judgment with that of the government. Accordingly, the final regulations remove the capacity-to-act requirement entirely because the partnership should have as much flexibility as possible in determining a partnership representative so long as the person meets the substantial presence requirements. Because this section has been removed, the cross-reference to that section in § 301.6223-1(e) has also been removed. In addition, because this section has been removed, the comment suggesting that the IRS clarify that the partnership must require a revocation if it becomes aware that one of the capacity-to-act circumstances applies to its partnership representative is inapplicable and therefore is not adopted.

Although the capacity-to-act section has been removed from the final regulations, the IRS may still determine that a designation of the partnership representative is not in effect due to circumstances that would have resulted in a partnership representative not having capacity to act because at least some of the capacity-to-act requirements overlapped with substantial presence. For instance, the IRS may determine that a partnership representative designation is not in effect if the partnership representative is incarcerated because that partnership representative cannot make herself available to the IRS, which means the partnership representative does not satisfy the substantial presence requirement. Having a separate capacity-to-act requirement was duplicated in these circumstances.

Two of the specified circumstances listed in proposed § 301.6223-1(b)(4) involve determinations by a court that restrict a partnership representative's or designated individual's ability to serve. These circumstances would likely arise very rarely, and the IRS would likely not know these circumstances exist unless they were brought to the IRS's attention by a partner or the partnership itself. In the case of a court order stating that a person does not have capacity to manage his or her estate, the IRS may not know about this issue because the very nature of such a proceeding is sensitive and may not be made public. In the case of a court order in which an injunction was sought, the most likely parties to seek such an injunction would be partners or the partnership itself. The partnership, generally through its reviewed year partners, may revoke a partnership representative designation without the need for a court order, which would alleviate the need for a partnership or partner to pursue a court-ordered injunction. Even if such a court order existed, the IRS would need to review the court order to determine to what degree it inhibited a partnership representative from acting on behalf of the partnership. Because these circumstances would be rare, and because there would need to be actual knowledge of the court order as well as at least some interpretation of that court order, the Treasury Department and the IRS have removed these circumstances, which were previously listed in proposed § 301.6223-1(b)(4), from the regulations.

Multiple comments recommended changes to the timing and mechanics for designating, appointing, and changing a partnership representative and designated individual. The comments included suggestions about the timing of when a change should occur, the effective date of such a change, notice requirements surrounding the change, and who can revoke a designation.

One comment suggested clarification regarding whether a partnership that has elected out of the centralized partnership audit regime under section 6221(b) must designate a partnership representative. A partnership that has elected out of the centralized partnership audit regime is not required to designate a partnership representative. The partnership representative is the person who has the sole authority to act on behalf of the partnership under the centralized partnership audit regime. If a partnership is not subject to the centralized partnership audit regime, a partnership representative has no authority with respect to the partnership. Nothing in the regulations requires a partnership that has elected out of the regime to designate a partnership representative. Therefore, the comment was not adopted.

Under proposed § 301.6223-1(d)(2) and (e)(2), a partnership representative designation can only be changed after the IRS mails a NAP or in conjunction with the filing of a valid AAR by the partnership under section 6227. Several comments suggested that proposed § 301.6223-1(d)(2) and (e)(2) be revised to allow for changes to the partnership representative at any time after the original designation. One comment specifically recommended that the IRS adopt a system to monitor designations of and changes to partnership representatives in the same way that the IRS monitors the last known address of taxpayers.

Allowing partnerships to change the partnership representative designation with the IRS at any time after the original designation is unnecessary and burdensome from a tax administration perspective and may increase burden for partnerships that are not selected for an administrative proceeding and have not filed an AAR. This is because the responsibilities and authority of a partnership representative are generally applicable only if a partnership is selected for examination as part of an administrative proceeding or the partnership files an AAR. In many cases, allowing partnerships to change the partnership designation before an administrative proceeding begins or before the partnership files an AAR means that the partnership would be filing a request to change a partnership representative that never takes, or plans to take, any action under the centralized partnership audit regime.

Further, preparing and filing a request to change a designation of a partnership representative requires partnerships to expend time and resources. Because the partnership representative designation may differ each year, tracking which partnership representatives were listed on which returns, and if a change were made, tracking those changes, can become complex. A partnership agreement requiring consultation with the partners (which may differ from year to year) when there is a change in the partnership representative adds further complexity.

For its part, the IRS would have to process requests to change a designation and associate that change with the correct partnership account even if the IRS never selects the partnership taxable year for an administrative proceeding and, therefore, never interacts with the partnership representatives. Currently, the IRS does not have a system to process these changes outside of the administrative proceeding process or when an AAR is filed.

A comment recommended that the IRS develop a system to track changes in the designation of the partnership representative that is similar to the system used to monitor a taxpayer's last known address. Development of such a system would be very costly with little benefit to be gained because, as discussed above, the majority of changes would be for partnerships whose partnership representatives would never take any action on behalf of such partnerships.

Accordingly, the final regulations maintain the rule that a partnership representative may only be changed in the context of an administrative proceeding or in conjunction with the filing of a valid AAR. As the IRS gains experience with the centralized partnership audit regime, and methods are identified to alleviate the administrative and regulatory burden created by changes to a partnership representative designation before the commencement of an administrative proceeding, the rules may be revisited in future forms, instructions, or other guidance.

To address the aspect of the comments that reflect a desire to be able to change the partnership representative prior to the beginning of the administrative proceeding, § 301.6223-1(e)(2) has been revised to allow the partnership to change the partnership representative through revocation when the partnership is notified that the partnership return is selected for examination as part of an administrative proceeding, in addition to when the NAP is mailed. In general, the IRS will issue the partnership, but not the partnership representative, a notice of selection for examination prior to mailing the NAP to inform the partnership that it is being selected for examination. Under the proposed regulations, the partnership was not able to change the partnership representative until it received the NAP.

This rule will provide the partnership an opportunity to change its partnership representative before an administrative proceeding commences, allowing the partnership to be represented by the partnership representative of its choice throughout the administrative proceeding. Because the notice of selection for examination is only issued to the partnership, and not the partnership representative, this rule allows the partnership to make a change to the partnership representative without the involvement of the partnership representative (whom the partnership may be removing for cause). As a result of the revised rule, the NAP can be sent to the partnership's preferred partnership representative at the time the administrative proceeding begins. The rule also allows the partnership to change a designated individual prior to the beginning of the administrative proceeding.

Other comments suggested that the designation of the partnership representative should be required on an annual basis, that the currently designated partnership representative should have the sole authority to represent the partnership for all open years, and that partnerships should be required to designate one partnership representative for all years in the context of a multi-year administrative proceeding.

Under § 301.6223-1(c), a partnership must designate the partnership representative on the partnership return for that partnership taxable year, that is, Form 1065, U.S. Return of Partnership Income. Identification of a partnership representative on an annual basis with the return provides certainty regarding who is the partnership representative for a particular taxable year. The other systems suggested in the comments would be difficult to administer and could result in the IRS having to determine that no designation of a partnership representative is in effect because of this uncertainty.

Designation of a partnership representative on the return for that taxable year is also not an undue burden on the partnership. The identification, selection, and designation of the partnership representative is wholly within the discretion of the partnership (provided the person designated meets the requirements under § 301.6223-1(b)). Nothing in the proposed regulations prevents a partnership from designating the same partnership representative on each partnership return it files or, once administrative proceedings with respect to more than one taxable year have commenced, designating one partnership representative (through the revocation procedures described in proposed § 301.6223-1(e)) to act for the partnership for all years subject to the administrative proceeding.

Further, the partnership representative plays an important role in representing the interests of the partnership and, by extension, the partners for the taxable year subject to an administrative proceeding. The make-up of the partners in a partnership may change from tax year to tax year, and the economic arrangements within the partnership and between partners may also change. The partnership and its partners for each particular taxable year are in the best position to determine who the partnership representative should be if that particular taxable year is subject to an administrative proceeding. For these reasons, the comments have not been adopted.

Proposed § 301.6223-1(d) provided the rules for resignations of partnership representatives and designated individuals. Proposed § 301.6223-1(d)(1) provided that a resignation by a partnership representative “may” include a designation of a successor partnership representative. However, when the resignation was made with the filing of an AAR, proposed § 301.6223-1(d)(2) provided that the partnership representative “must” designate a successor partnership representative. Proposed § 301.6223-1(d)(3) provided that a resigning designated individual “may, but is not required to,” designate a successor.

One comment noted the differences in the quoted language of these provisions and recommended that the final regulations be clarified to explain the consequences, if any, of those differences. The comment also questioned why the proposed regulations required designation of a successor partnership representative in the case of an AAR resignation, but not in the case of resignation that occurs during an administrative proceeding. The comment suggested that the rules should require designation of a successor for all resignations. In contrast, another comment recommended that a partnership representative never be permitted to designate a successor partnership representative and suggested that the partnership have a 30-day window after a resignation to designate a successor partnership representative.

After considering these comments, the final regulations remove the ability of a resigning partnership representative or designated individual to designate a successor. Under the proposed rule, a resigning partnership representative had the power to designate a partnership representative even though the partnership might not approve of the new partnership representative. For instance, this could occur in a situation where the partnership representative is resigning due to an adverse relationship with the partnership. To avoid this result, the resignation of a partnership representative or designated individual should be the final action of that person for purposes of the centralized partnership audit regime.

For similar reasons, a resigning partnership representative should not be able to resign by filing an AAR. The partnership representative or designated individual may be revoked simultaneously with the filing of an AAR, though an AAR may not be filed solely for that purpose. See proposed § 301.6227-1(a). However, it is unfair to the partnership to allow a resigning partnership representative to request adjustments to items of a partnership. Accordingly, the final regulations have been revised to prohibit a resignation at the time of the filing of an AAR.

Proposed § 301.6223-1(d)(3) provided that a resignation of a designated individual is “subject to the time of resignation restrictions described in [proposed] § 301.6223-1(d)(2),” that is, the timing rules that apply to a resignation of a partnership representative. One comment requested clarification of whether the ability of a designated individual to resign is subject to all of the restrictions in proposed § 301.6223-1(d)(2) or whether the quoted language means some restrictions do not apply. As discussed above, the final regulations have been revised to remove the ability of a partnership representative to resign with the filing of an AAR; a partnership representative may resign only after a NAP has been issued by the IRS, or at such other time as prescribed by the IRS in other guidance. The final regulations have also been revised to provide that the rules governing when and how a partnership representative may resign also apply to designated individuals. Section 301.6223-1(d) provides specific rules explaining how a designated individual resigns. Therefore, clarification is not necessary, and the comment was not adopted.

Proposed § 301.6223-1(e)(3)(i) provided that a revocation must be signed by a person who was a general partner at the close of the taxable year for which the partnership representative designation is in effect as shown on the partnership return for that taxable year. One comment suggested that the language “as shown on the partnership return” be deleted to make clear that a partnership is not limited to revoking only the initial partnership representative designated on the partnership return.

The purpose of the quoted language was to describe how to determine whether a person was a general partner at the close of the taxable year, that is, by looking to the partnership return for that taxable year. It was not intended to describe what type of partnership representative designation can be revoked by the partnership. A partnership can revoke any designation of a partnership representative, including a designation made by the IRS, provided permission is granted by the IRS. See § 301.6223-1(e)(6). Sections 301.6223-1(e)(1) and (e)(4) have been revised to clarify this point.

The comment also suggested that any partner of the partnership, instead of only a general partner, should be able to sign a revocation provided that partner certifies the partner has the authority to do so. This comment was adopted in the final regulations. The final regulations allow any partner who was a partner during the partnership taxable year to which the revocation relates, not just a general partner, to sign a revocation. Allowing any partner for the taxable year to which the revocation relates to sign the revocation provides maximum flexibility to the partnership to determine which partners should have that authority.

The rules under proposed § 301.6223-1(e)(3)(ii) made clear that for purposes of determining who may sign a revocation for a limited liability company (LLC), a member-manager is treated as a general partner and any other member is treated as a non-general partner. These rules were necessary to clarify in the context of LLCs which members can sign a revocation. As discussed above in this section of the preamble, however, the proposed regulations have been revised to permit any partner during the taxable year to which the revocation relates, not just a general partner, to sign a revocation. Therefore, § 301.6223-1(e)(3)(ii) has been removed from the regulations because the rule equating member-managers with general partners is no longer necessary.

The comment also recommended that the “catch-all” provision under proposed § 301.6223-1(b)(4)(vi) (regarding capacity to act) also apply in determining whether partners other than a general partner can sign a revocation. Proposed § 301.6223-1(b)(4) has been removed from the final regulations and is no longer referenced in § 301.6223-1(e); therefore, this comment was not adopted. The references to capacity to act were necessary when only certain partners could revoke the designation. Because the regulations have been revised to allow any partner for the partnership taxable year to which the revocation relates to sign the revocation, there is no need to describe situations in which general partners do not have the capacity to act and no need for the associated catch-all provision.

Lastly, the comment recommended that the regulations explicitly provide that a partnership can revoke a partnership representative designation for any reason. As discussed in section 2.C. of this preamble, nothing in the regulations requires the partnership to have a specific reason, or any reason at all, for a revocation. However, this comment was adopted to clarify that neither a revocation nor a resignation requires any particular reason. The final regulations also clarify that a revocation may occur regardless of when and how the designation was made, except with respect to a designation made by the IRS. See § 301.6223-1(e)(6).

Proposed § 301.6223-1(e)(3)(ii) applied the rules for signing a revocation to LLCs and provided that for purposes of the proposed regulations the term LLC means an organization that, among other things, “is classified as a partnership for Federal tax purposes.” A comment recommended that the phrase “is classified as a partnership for Federal tax purposes” be removed from the definition of LLC because the quoted language creates confusion about whether the LLC has to be currently classified as a partnership for the proposed rules regarding revocation to apply. As discussed in this section of the preamble, § 301.6223-1(e)(3)(ii) has been removed from the regulations because the paragraph is no longer necessary in light of the changes to the revocation process.

While considering these comments, the Treasury Department and the IRS had the opportunity to reevaluate the portion of the rule in proposed § 301.6223-1(e)(3) that required a person revoking a designation to be a partner at the close of the taxable year and determined that this rule is unnecessarily restrictive. This is because being a partner on the last day of the taxable year is not meaningful so long as the person is a partner during the taxable year. For instance, a person who is a partner on the last day of the taxable year could be a partner with a small interest in the partnership or could have acquired their interest in the partnership on the next to last day of the partnership taxable year, whereas a person who is a partner during the year but not on the last day of the year could have owned a very large interest in the partnership or could have been a partner for all days during the year, except the last day.

Further, while the partnership return identifies partners during the taxable year, it is not readily apparent from the face of the return or the Schedules K-1 who was a partner on the last day of the partnership taxable year. Therefore, the IRS could not easily determine if the partner signing the revocation was a partner on the last day of the taxable year.

Finally, there may be more partner turnover during a partnership's taxable year as a result of fewer partnership short taxable years after the repeal of technical terminations under section under 708(b)(1). See section 13504 of “[a]n Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018,” Public Law 115-97. Generally, under a technical termination under section 708(b)(1)(B), when 50 percent or more of a partnership's capital and profits are sold or exchanged during any 12 month period, the partnership taxable year ended, causing a short partnership taxable year. However, after repeal of the technical termination rule, there can be significant partner turnover during a partnership's full taxable year without resulting in an early close of the partnership taxable year. Thus, partners who dispose of their partnership interest, and who would have been partners for a full taxable year at the close of a short partnership taxable year when there was a technical termination, are now partners for only part of a full 12 month partnership taxable year.

Accordingly, the final regulations have been revised to allow any person who was a partner at any time during the taxable year to which the revocation relates to sign the revocation. The final regulations were also revised to provide that the Treasury Department and the IRS may in the future provide forms, instructions, or other guidance that would allow the partnership to revoke the designation of a partnership representative if there are no reviewed year partners (as defined in proposed § 301.6241-1(a)(9)) at the time of revocation.

One comment also suggested that a partnership should be able to revoke an appointment of a designated individual without first revoking the entity partnership representative designation. This comment was adopted in § 301.6223-1(e). However, to ensure that the IRS has a contact point for the partnership, the regulations under § 301.6223-1(e)(1) have also been revised to provide that if a partnership revokes the appointment of a designated individual and not the entity partnership representative, the partnership must appoint a successor designated individual at the same time of the revocation. Similar to the rules under the regulations with respect to the partnership representative resignation, failure to follow the rules of § 301.6223-1(e), including failure to appoint a successor designated individual, results in an invalid revocation of the designated individual.

The proposed regulations provided that a resignation or revocation of the partnership representative (or designated individual, if applicable) is effective 30 days from the date on which the IRS receives written notification of the resignation or the revocation. See proposed § 301.6223-1(d)(1), (e)(1). One comment recommended that the IRS refrain from requiring time-sensitive actions or responses from the partnership during this 30-day period. Another comment recommended that a resignation or revocation of a partnership representative be immediately effective in certain situations, including when the partnership representative is the subject of a court order determining the partnership representative is incompetent or enjoining the partnership representative from serving as the partnership representative, the partnership representative is incarcerated, the partnership representative has become the subject of a criminal tax investigation, the partnership representative has been convicted of a felony or of a crime that involves dishonesty or breach of trust, or the partnership representative has become the subject of bankruptcy or receivership proceedings.

In response to these comments, § 301.6223-1(d) and (e) are revised to provide that generally a partnership representative resignation or revocation is effective immediately upon receipt by the IRS. In cases where there is a revocation of a partnership representative designated by the IRS, the final regulations provide that the revocation is effective on the date the IRS sends notification that it determined that the revocation is valid.

The comment requesting that the revocation or resignation be immediately effective on the date it is signed or sent was not adopted. Until it is received by the IRS, the IRS cannot be aware of a revocation or resignation to give it effect. Before the revocation or resignation is received, the IRS will continue to work with the person designated to represent the partnership as the partnership representative. Nothing in the regulations prevents a partnership or partnership representative from providing a revocation or resignation directly to the IRS employee handling the administrative proceeding to ensure that the IRS has received prompt notification of the change.

Proposed § 301.6223-1(d)(1) and (e)(1) provided that the IRS will notify the partnership and other affected persons (the resigning partnership representative or designated individual or the partnership representative (and designated individual, if applicable) whose status is being revoked) when the IRS receives a resignation or revocation. To provide assurance that the IRS has received and processed a resignation or revocation, these sections of the final regulations have been revised to provide that, no later than 30 days after receipt of a valid notification of a revocation or resignation, the IRS will notify the partnership and the resigning partnership representative or designated individual or the partnership representative (and designated individual, if applicable) whose status is being revoked of its acceptance.

Proposed § 301.6223-1(e)(4) provided that a partnership cannot revoke the designation of a partnership representative designated by the IRS unless the partnership receives permission from the IRS. The final regulations under § 301.6223-1(e)(6) are clarified to provide that the IRS will not unreasonably withhold such permission. To avoid confusion, § 301.6223-1(e)(3) and (6) have been revised to provide that when permission is granted, the IRS will send the notification described in paragraph § 301.6223-1(e)(1). The effective date of the revocation is the date of that notification, which, if the IRS is granting permission for the revocation of the IRS-designated partnership representative, will be sent no later than 30 days after receipt of the revocation.

Proposed § 301.6223-1(d)(1) provided that a resigning partnership representative must notify the partnership and the IRS of the resignation, and proposed § 301.6223-1(e)(1) provided that when a partnership revokes a partnership representative designation, the partnership must notify the partnership representative and the IRS. Proposed § 301.6223-1(e)(3)(iii)(A)(2) required a notification of revocation to include a certification from the partner signing the revocation that the person has provided a copy of the revocation to the partnership and to the partnership representative whose designation is being revoked. Failure to include that certification rendered the revocation invalid. One comment recommended clarification on how this certification should be made when the partnership representative is deceased or dissolved or the partnership is no longer in contact with the partnership representative. The comment suggested that sending the copy of the revocation to the last known address should be sufficient. The comment also suggested that the regulations clarify whether there are any other restrictions on the method of notifying the partnership representative, such as proof of delivery or electronic delivery.

State law and any contractual arrangement between the parties generally control the terms of the relationship between the partnership and the partnership representative. Except as necessary to carry out the statute, the regulations implementing the centralized partnership audit regime attempt not to impose requirements with respect to interactions between the partnership and the partnership representative. The requirements in proposed § 301.6223-1(d)(1) and (e)(1) that the partnership notify the partnership representative and that the partnership representative notify the partnership were not consistent with this approach. Therefore, the Treasury Department and the IRS believe that including these requirements would unnecessarily create regulatory burdens on partnerships and partnership representatives without any significant benefit to tax administration. Accordingly, the final regulations have been revised to remove these requirements. Consequently, a resigning partnership representative and a partnership making a revocation must now only notify the IRS of the change in designation. As long as they notify the IRS as required under the regulations, the partnership and the partnership representative may agree to other notification requirements and are in the best position to determine if such requirements are necessary.

Another comment suggested that, in the case of an entity partnership representative, notification by the IRS of a revocation (as well as other notifications) should also be required to be sent to the designated individual. This comment was not adopted. In the case of a change to an entity partnership representative, the IRS will only send one notification and plans to adopt procedures under which such a notification will be sent to the partnership representative and addressed to the attention of the designated individual. This procedure should avoid the need to send duplicate notifications, which is burdensome for the IRS, while also allowing the partnership, the entity partnership representative, and the designated individual to arrange their affairs in a way to ensure that important notifications from the IRS are received by the appropriate persons.

Proposed § 301.6223-1(e)(1) required the IRS to notify the partnership and the affected partnership representative of a revocation. This requirement has been revised to provide that the IRS will only give notification of a revocation made after the issuance of a notice of selection for examination or a NAP. In contrast, the final regulations do not require the IRS to give notification of a revocation made simultaneously with an AAR. This change is warranted because in some cases, the IRS might accept an AAR as filed without further interaction with the partnership or communication with the partnership representative. Requiring the IRS to provide notification of a change in partnership representative when an AAR is filed is unnecessary unless the IRS selects the partnership for an examination as part of an administrative proceeding, in which case the partnership and the new partnership representative will receive a NAP, which is confirmation that the IRS received the change made on the AAR. The partnership can also confirm with the IRS at that time of receipt of the notice of selection for examination that the IRS received the change of partnership representative.

In addition, the final regulations clarify that the failure of the IRS to send any notifications under §§ 301.6223-1(d) and (e) to acknowledge receipt of a valid resignation or revocation does not invalidate the resignation or revocation. The notification provides the partnership with information about when the change in partnership representative became effective. However, the mere fact that a party does not receive an IRS notification does not mean that the resignation or revocation is not a valid change in partnership representative. A resignation or revocation that is valid under paragraph (d) or (e) of § 301.6223-1 is valid regardless of whether the IRS sends notification of receipt.

Proposed § 301.6223-1(f) provided the IRS may determine a designation is not in effect under certain circumstances. Under proposed § 301.6223-1(f)(1), if the IRS makes a determination that a designation is not in effect, the IRS will notify the partnership and “the most recent partnership representative for that partnership taxable year” of that determination. One comment noted that there may be circumstances where there was never a partnership representative for the taxable year and recommended the regulations be clarified on this point. The comment describes an example where the partnership representative designated on the partnership return lacks substantial presence and concludes that there would be no partnership representative in that case.

This conclusion is incorrect. A partnership representative designated under § 301.6223-1 is in effect unless and until the IRS determines otherwise. See § 301.6223-1(b)(1). Therefore, a person designated on a partnership return as the partnership representative is the partnership representative for that taxable year even if the person lacks substantial presence as defined in § 301.6223-1(b)(2) unless and until the IRS makes a determination, in accordance with § 301.6223-1(f), that the designation is not in effect. Accordingly, prior to the issuance of a notification from the IRS under § 301.6223-1(f)(1) that the partnership representative designation is not in effect, the designation of the partnership representative on the partnership return is in effect, even if the person designated lacks substantial presence in the United States.

Because a designated partnership representative is in effect unless and until the IRS determines otherwise, the vast majority of partnerships will have a partnership representative designation in effect because they will have designated the partnership representative on the return as required under § 301.6223-1(c). As a result, in most cases there will be a partnership representative to whom the notification must be sent. However, there may be situations in which the partnership failed to make a valid designation in accordance with § 301.6223-1(c). To address these situations, the comment was adopted and § 301.6223-1(f)(1) has been revised to clarify that the IRS is not required to notify the most recent partnership representative if the partnership failed to designate one.

Another comment recommended that any determination that a designation is not in effect should not be made effective until a new partnership representative has been designated, either by the partnership or the IRS. This comment was not adopted. If there has been a determination that a partnership representative designation is not in effect for a taxable year, the IRS has determined that the partnership representative is no longer a valid partnership representative for purposes of conducting an administrative proceeding of that partnership with respect to that taxable year. To keep the designation in place would run counter to this determination and would hinder the partnership administrative proceeding. If, for example, the partnership representative no longer meets the substantial presence requirements under § 301.6223-1(b) because the partnership representative has left the country and, as a result, is unreachable, neither the partnership nor the IRS benefits from having that partnership representative designation remain in place until a new partnership representative is designated. The best result for both the partnership and the IRS is for the partnership to designate a new partnership representative who can move the administrative proceeding forward, which the partnership will have the opportunity to do prior to the IRS designating one under the rules in § 301.6223-1(f). Delaying the effective date of the determination that no partnership representative is in effect slows down the administrative proceeding, which does not benefit the partnership or the IRS.

Proposed § 301.6223-1(f)(2) provided a list of reasons why the IRS might determine that a partnership representative designation is not in effect. Proposed § 301.6223-1(f)(2) provided that the IRS may determine a designation is not in effect when, among other circumstances, the IRS has received multiple revocations within a 90-day period. See proposed § 301.6223-1(e)(7). One comment suggested that the regulations should limit the discretion of the IRS to determine that a designation is not in effect under proposed § 301.6223-1(f)(2) to situations where the IRS determines the multiple revocations represent an effort to delay or obstruct the administrative proceeding.

While there may be benign reasons for multiple revocations, the practical effect is the same regardless of the reason. The IRS's receipt of multiple revocations and designations will delay the administrative proceeding and prevent the IRS from effectively conducting an administrative proceeding. The administrative proceeding should not be delayed, intentionally or unintentionally, due to an inability to settle on a partnership representative.

Additionally, requiring the IRS to determine if multiple revocations were due to inadvertence or a desire to delay or obstruct the administrative proceeding adds additional burden that would be costly for both the partnership and the IRS to resolve. It would also inevitably lead to disputes between the IRS and partnerships regarding factually intensive questions underlying the intent of revocations. Any time and resources devoted to discerning the purpose behind each revocation ultimately delays the entire administrative proceeding. There may be situations in which partners genuinely disagree as to who had authority to appoint the partnership representative or who the partnership representative should be. However, these disputes are best resolved by the partners themselves. The IRS should not be the arbiter of disputes between partners. Consequently, this comment has not been adopted.

There may be circumstances, however, when multiple revocations are necessary due to circumstances outside of the partnership's control, such as death or serious health issues or due to a ministerial error. To accommodate these types of circumstances, the proposed regulations provided the IRS with the discretion to keep the partnership designation in effect even though multiple revocations were received within a 90-day period. The proposed regulations did not require the IRS to make a determination that the designation is no longer in effect, but rather provided the IRS with the ability to make such a determination when appropriate. In retaining this rule, the final regulations accommodate situations where multiple revocations are not the result of bad faith and the IRS determines that allowing such revocations does not interfere with the IRS's ability to conduct the administrative proceeding.

Section 301.6223-1(f)(5) of the proposed regulations provided that the multiple-revocation rule was triggered if the IRS receives more than one revocation for the same partnership taxable year within a 90-day period. The final regulations remove the language “signed by different partners” from that provision. The fact that multiple revocations are received within 90 days is all that is required for the IRS to exercise its discretion under § 301.6223-1(f)(2). The number of partners involved is not relevant to whether multiple revocations are received and whether that could slow down the administrative proceeding. Accordingly, the regulations have been revised to make clear that the receipt of multiple revocations, not the receipt of multiple revocations signed by different partners, is what is required for the provision in § 301.6223-1(f) to be satisfied.

In addition, the rule in the proposed regulations allowing the partnership the option to appoint a partnership representative before one is designated by the IRS has been revised in the case of multiple revocations. The final regulations provide that if the IRS determines a designation is not in effect in the case of multiple revocations, the IRS will designate a partnership representative, and unlike the general rule for IRS designation of a partnership representative, the partnership will not be given 30 days to designate a partnership representative. The stricter rule in the case of multiple revocations is necessary because providing the partnership another opportunity to designate a partnership representative would only perpetuate the existing problem and may delay the administrative proceeding. The final regulations also make clear that the multiple revocations rule applies to multiple revocations of a designated individual as well. Although the IRS may designate a new partnership representative in the case of multiple revocations, like any other IRS designation of a partnership representative, the partnership may revoke that partnership representative designation with the consent of the IRS.

In order to clarify the operation of the 90-day period under the multiple revocation rule, § 301.6223-1(e)(7) was revised to provide that if the IRS receives a revocation (the current revocation), and, within the 90-day period prior to receiving the current revocation, the IRS had received another revocation for the same partnership taxable year, the IRS may determine that a designation is not in effect. This change clarifies that the multiple revocation rule may apply to any revocation received by the IRS. When the IRS receives a revocation, the IRS may look back to the preceding 90 days and determine whether it had received a prior revocation for the same taxable year. If it had, the multiple revocation rule applies.

A time limitation for the IRS to notify the partnership that the designation is not in effect was also added to the multiple revocation rule in § 301.6223-1(e)(7)(ii). That time limitation provides that if the IRS plans to determine a designation is not in effect due to receipt of multiple revocations, the IRS must do so within 90 days of the receipt of the current revocation the IRS is considering. For example, assume the partnership files two revocations with respect to the same taxable year—one on May 31, 2019 and one on August 25, 2019. With respect to the August 25th revocation, the IRS received the May 31st revocation within the 90-day period prior to August 25, 2019, meaning the multiple revocation rule under § 301.6223-1(e)(7)(i) applies. Under the time limitation provided in § 301.6223-1(e)(7)(ii), the IRS would then have 90 days from August 25, 2019 to determine a designation is not in effect. If, during that 90-day period starting with August 25, 2019, the IRS received another revocation, the multiple revocation rule under § 301.6223-1(e)(7)(i) would again be triggered, and pursuant to § 301.6223-1(e)(7)(ii), the IRS would have another 90 days from that additional revocation to determine a designation is not in effect. The time limitation under § 301.6223-1(e)(7)(ii) provides certainty for the partnership and the IRS regarding when the IRS may determine that a designation is not in effect after multiple revocations have been filed.

Another comment recommended that a partnership that makes a “technically faulty” designation and receives notification from the IRS that no designation of a partnership representative is in effect should be given an opportunity to cure that designation before the IRS designates a new partnership representative. Nothing in the regulations prevents the IRS from providing the partnership with an opportunity to cure a defective designation prior to the IRS making its own designation. The IRS will provide additional guidance to its agents regarding designation of a partnership representative, and the IRS intends to generally recommend providing an opportunity to cure a defective designation. The IRS, however, may not allow for such an opportunity in all cases due to time restraints, multiple revocations, or the particular circumstances. Accordingly, this comment was not adopted. However, as the Treasury Department and the IRS develop more experience in this area, additional guidance may be issued.

Proposed § 301.6223-1(f)(2) has also been amended to add a new paragraph (vii), which provides that the IRS may determine that a designation is not in effect for any other reason described in published guidance. This paragraph was added to allow flexibility to add other circumstances that may require the IRS to determine the designation is not in effect as the Treasury Department and the IRS gain more experience with the centralized partnership audit regime.

The final regulations also provide that the IRS is under no obligation to search for information about whether any of the circumstances listed in § 301.6223-1(f)(2) exists. In addition, the final regulations clarify that even if the IRS has knowledge that one of the circumstances listed in § 301.6223-1(f)(2) exists, the IRS is not required to determine that a designation is not in effect. This clarification was added for the reasons stated above in this section of the preamble. For instance, partners may have filed multiple revocations within 90 days, but if there was a valid reason for the multiple revocations, the IRS may not need to determine the partnership representative designation is not in effect.

Numerous comments recommended changes to the rules under proposed § 301.6223-1(f) governing IRS designation of a partnership representative when no designation is in effect. Several comments recommended that the regulations impose restrictions on whom the IRS may designate to serve as the partnership representative. Two comments suggested prohibiting the IRS from designating an IRS employee, agent, or contractor as the partnership representative. The Treasury Department and the IRS agree that an IRS employee, agent, or contractor who has no affiliation with the partnership subject to an administrative proceeding should not be designated as the partnership representative. An IRS employee, agent, or contractor may be a partner in the partnership subject to an administrative proceeding, however. Provided this interest in the partnership is unrelated to the individual's affiliation with the IRS, the individual's affiliation with the IRS should not preclude designation as the partnership representative. Accordingly, § 301.6223-1(f)(5) was revised to provide that the IRS may not designate an IRS employee, agent, or contractor as the partnership representative unless the individual is a partner in the partnership subject to an administrative proceeding. Even if the IRS employee, agent, or contractor is a partner in such partnership, however, the IRS intends to avoid designating such an individual as the partnership representative if another suitable person is available.

Several comments recommended that the IRS be required to select a current partner to serve as the partnership representative. Another comment recommended that the IRS be required to select the partner with the largest profits interest. Another comment requested that the regulations include an ordering rule (that is, the IRS selects a partner first; if no partner is available, an employee, etc.). Another comment recommended that where the partnership is in bankruptcy, the IRS should select the trustee to serve as the partnership representative.

Imposing regulatory restrictions on whom the IRS can designate as the partnership representative could adversely affect the IRS's ability to select a suitable partnership representative, which harms both the IRS and the partnership. In some cases, a current partner might be the appropriate selection. In other cases, a former partner or an employee of the partnership might be more appropriate. For example, a current year partner might be more appropriate in a case where the current year partner is the person with access to the books and records of the partnership. However, a former partner has the advantage of being a partner from the year subject to an administrative proceeding and may be able to communicate with reviewed year partners more efficiently when seeking to modify the imputed underpayment. In the context of a partnership in bankruptcy, a non-member manager of the partnership, more familiar with the partnership's day-to-day business might be a more appropriate partnership representative than the bankruptcy trustee hired during the administrative proceeding. The Treasury Department and the IRS do not yet have experience with the new centralized partnership audit regime. As such, it would be unwise at this time to restrict whom the IRS may designate to be the partnership representative (other than as described earlier in this section). Consequently, comments recommending these types of restrictions were not adopted.

One comment asked that the final regulations clarify that the IRS may select an entity partnership representative and that if it does so, the IRS must provide the partnership with the contact information of the designated individual. This comment was adopted. Therefore, if the IRS does designate an entity to be the partnership representative, the IRS will also appoint a designated individual and provide the contact information of the designated individual to the partnership. See § 301.6223-1(f)(5)(i).

Proposed § 301.6223-1(f)(5)(ii) provides a list of factors the IRS “may” consider when designating a partnership representative. A comment suggested that proposed § 301.6223-1(f)(5)(ii) be revised to provide that the IRS “will ordinarily” consider “one or more” of those factors. The IRS intends to consider these factors when designating a partnership representative. Because the suggested language “will ordinarily” more accurately reflects the IRS's intent this comment has been adopted. However, the final regulations have also been revised to clarify that the IRS is not obligated to search for information about the factors to be considered and that IRS knowledge of any of the factors does not obligate the IRS to select a particular person as partnership representative. This clarification is particularly important in the case of a partnership that is nonresponsive because the IRS may not be able to consider certain factors where the partners are unreachable and certain information is not readily attainable. The IRS, therefore, will ordinarily consider these factors, but the IRS may not consider the factors in every case.

The final regulations have also been revised to clarify that these factors are not the equivalent of requirements for eligibility to be designated by the IRS as a partnership representative. Only one factor may be applicable to the person designated as partnership representative and yet that person may be the one who is appropriate to designate based on who is available and willing to serve and the unique facts and circumstances of the partnership, the administrative proceeding, or other issues. Accordingly, § 301.6223-1(f)(5)(ii) has been revised to clarify that the IRS will ordinarily consider one or more of the factors when determining whom to designate as partnership representative, no single factor is determinative, and a person may be designated by the IRS as partnership representative even if none of the factors is applicable.

Several comments requested changes to the factors listed in proposed § 301.6223-1(f)(5)(ii). One comment recommended that the IRS generally consider the profits interests of the partners. Considering the profits interest of a partner is reasonable because profits interest can in some circumstances directly affect how the results of an administrative proceeding will affect an individual partner. Additionally, because profits interest is a factor that can be determined from the face of the partnership return for most partnerships, consideration of a partner's profits interest when designating a partnership representative is administrable for the IRS. Therefore, § 301.6223-1(f)(5)(ii) has been revised to adopt this comment.

One comment suggested that the IRS should consider the person's involvement in the partnership's business in determining whether to designate that person as the partnership representative. The regulations already contain factors that consider the person's overall knowledge of the partnership and its books and records. These factors already incorporate consideration of the person's involvement in the partnership's business. Because the proposed factor duplicates those already included, this comment was not adopted.

Several comments made suggestions with respect to the partnership's inability to revoke a partnership representative designation made by the IRS without having IRS consent of that revocation. One comment disagreed in general with this rule and recommended that the partnership be able to revoke a partnership designation made by the IRS without the consent of the IRS. Another comment stated that the partnership should be involved in the IRS's designation of a partnership representative. Another comment suggested that the partnership should be able to revoke a partnership representative designated by the IRS if there is a bona fide dispute over the capacity of the partnership representative designated by the IRS.

The rule that the partnership must seek the IRS's permission before revoking an IRS-designated partnership representative is premised on the fact that the partnership has not properly designated a partnership representative on its own. If the IRS has to make a designation, the partnership has either failed to designate its own choice for partnership representative or has made multiple revocations.

Allowing the partnership to unilaterally revoke a partnership representative that had been designated by the IRS undermines the purpose of the IRS designation. For an administrative proceeding to function properly and without delay and for the partnership to be represented in that administrative proceeding, a person who can act for the partnership and who is an eligible partnership representative must be designated. Additionally, because the IRS only designates a partnership representative when a partnership has failed to properly make its own designation, the partnership is ultimately in control over whether the IRS will need to designate a partnership representative. Consequently, the final regulations retain the rule that a partnership may revoke a partnership representative designated by the IRS only with the consent of the IRS, and the comments were not adopted.

One comment suggested that, given that partnerships are formed under state law, state law should control the designation and authority of the partnership representative. Another comment suggested that the final regulations should clarify that the principles of agency law apply to the partnership representative, and that the partnership representative “will be operating as the agent on behalf of the partnership subject to the same control by the partnership as any principal would have over an agent.” These comments relate to proposed § 301.6223-2(c), which provided that no state law, partnership agreement, or other document could limit the authority of the partnership representative. Because the authority of the partnership representative under federal law preempts any state law requirements these comments were not adopted. The language of § 301.6223-2(d) (which corresponds with proposed § 301.6223-2(c)) has been revised to clarify that this rule is applicable only with respect to the centralized partnership audit regime. Accordingly, the final regulations provide that the failure to adhere to state law requirements has no effect on actions taken by the partnership representative with respect to the centralized partnership regime.

The regulations are drafted to provide significant flexibility to the partnership to determine who will represent it and for the partnership and the partnership representative to negotiate the terms of their relationship. The Treasury Department and the IRS have attempted to refrain from creating unnecessary regulatory burdens. The partnership and the partnership representative are free to enter into contractual agreements to define the scope and limits of their relationship. However, because the IRS is not a party to these agreements, it is not bound by them. Any remedy the partnership would have against the partnership representative if the partnership representative failed to act in accordance with those agreements would be under state law with respect to the partnership representative.

Section 301.6223-2(d) is not intended to prevent partnerships from taking advantage of state law remedies for partnerships who wish to restrict a partnership representative's authority under state law. Rather, the regulations leave the enforcement of such restrictions to the relevant parties, which simplifies the administrative proceeding consistent with the design of the centralized partnership audit regime. Under TEFRA, significant resources were often expended by the IRS and the partnership to determine what state law restrictions might affect who could act for the partnership and under what circumstances. The centralized partnership audit regime removes this aspect of TEFRA.

One comment recommended that where there is a question regarding a person's authority to serve as the partnership representative, the partnership should provide a notice signed by all the partners in the partnership as conclusive evidence that a particular person has the authority to serve as the partnership representative. This comment was not adopted because under section 6223 the authority of a person to act as partnership representative is based on whether the person was properly designated as the partnership representative in accordance with section 6223 and the regulations, not on whether state law or notice from the partners confirms such authority.

One comment suggested that clarifying language be added to the end of a sentence in § 301.6223-2(a) providing that a notice of final partnership adjustment is final when not contested by the partnership representative “on behalf of the partnership.” The Treasury Department and the IRS agree that as drafted § 301.6223-2(a) was confusing. It is the partnership that contests the notice of final partnership adjustment, even if it does so through the partnership representative. Accordingly, the final regulations clarify this language by revising § 301.6223-2(a) to remove the reference to the partnership representative.

A comment recommended that proposed § 301.6223-2 be clarified to provide that a partnership representative may engage a person to act on behalf of the partnership representative under a power of attorney during the administrative proceeding (referred to as a “POA”) and that the POA can participate in meetings or receive copies of correspondence. Nothing in the regulations prevents the partnership representative from engaging a POA for this purpose. Language has been added to § 301.6223-2(d) to clarify this issue. Language has also been added to § 301.6223-1(a) to clarify that appointment of a POA does not designate the POA as partnership representative.

A new paragraph (c) has been added to the final regulations to address the effect of withdrawal of a NAP on actions taken by a partnership representative. Proposed § 301.6231-1(f) (December 19 NPRM) allows the IRS to withdraw a NAP after it has been issued. Proposed § 301.6231-1(f) further provides that the withdrawn NAP has no effect for purposes of the centralized partnership audit regime.

The partnership representative may have taken actions before withdrawal of the NAP. In addition, after the NAP has been issued, but before the NAP has been withdrawn, the partnership representative may have changed. Section 301.6223-2(c) has been added to the final regulations to clarify that even though the withdrawn NAP has no effect, any actions taken by a partnership representative (or successor partnership representative after a change in partnership representative that occurred after the issuance of the NAP and before the NAP was withdrawn) are binding on the partnership, even though the NAP has been withdrawn. An example was also added to illustrate this clarification under § 301.6223-2(c) regarding withdrawal of the NAP. See § 301.6223-2(e), Example 6. As a result of this new paragraph (c), proposed § 301.6223-2(c) was moved to § 301.6223-2(d).

One comment suggested that a partnership representative should have to affirm that he or she will serve as the partnership representative by checking a box on the partnership return where the designation is made. The comment suggested that having such an affirmation will save time at the beginning of the administrative proceeding.

Adopting this comment would not save time at the beginning of the administrative proceeding because even if the box was checked by the partnership representative at the time the return is filed, by the time the IRS commences the administrative proceeding, the partnership representative may no longer be available or willing to serve. Similarly, a partnership representative might erroneously not check the box at the time the return is filed but be willing to serve at the time the administrative proceeding commences. Whether the partnership representative checked the box at one point in time is not the right proxy for whether the partnership representative is willing to serve as the partnership representative at some other point in time. Rather than add this unnecessary requirement, the regulations provide that the person designated as the partnership representative is the partnership representative until there is a resignation, revocation, or the IRS determines no designation is in effect. Once the administrative proceeding begins, an unwilling partnership representative may resign or the partnership may revoke the partnership representative and designate a successor. Accordingly, this comment was not adopted.

One comment suggested that the partnership representative be required to notify partners of significant developments (for example, extensions of the period of limitations, settlements, petitioning a court, etc.). There is no requirement in the statute for the partnership representative to notify any partner of significant developments. This is a departure from TEFRA, which required certain notifications and provided participation rights for certain partners. The proposed regulations adhered to the legislative judgment that the partnership representative is the sole representative of the partnership, and the actions of the partnership representative bind the partners. Nothing in the proposed regulations prevents the partnership from contracting with the partnership representative to require the partnership representative to notify the partnership or the partners of any developments, significant or otherwise.

The Treasury Department and the IRS have determined that the government should not mandate how and when the partnership representative communicates with partners or other persons. By remaining silent on this issue, the regulations allow a partnership, its partners, and the partnership representative to arrange their own affairs without unnecessary regulatory requirements that interfere with these relationships. Accordingly, this comment was not adopted.

Proposed § 1.6223-1(a) provided that a partnership representative must update the partnership representative's contact information when such information changes as required by forms, instructions, and other guidance prescribed by the IRS. One comment requested that a partnership representative only be required to update its contact information upon the selection of the partnership for an examination or the filing of an AAR. At this time, there is no requirement that the partnership representative update contact information prior to selection for examination or the filing of an AAR. Experience with the new regime may inform the Treasury Department and the IRS that updating contact information prior to selection for an examination or filing an AAR is helpful or important. The final regulations have been clarified to provide that contact information must be updated if required by forms, instructions, or other guidance published by the IRS.

The Treasury Department and the IRS received no comments with respect to proposed § 301.9100-22 and made no substantive revisions to the proposed regulations. Accordingly, the final regulations adopt the proposed regulations without any substantive change. Minor editorial changes were made. The temporary regulations are removed.

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

It is hereby certified that these rules will not have a significant economic impact on a substantial number of small entities. Although these rules may affect a substantial number of small entities, the economic impact is not substantial because these rules merely provide clarifying guidance on the statutory requirements to designate a partnership representative. These rules reduce the existing burden on partnerships to comply with the statutory requirements by providing clear rules and guidance regarding the statutory requirements for partnerships required to designate a partnership representative under section 6223 and for partnerships to make an election for the centralized partnership audit regime to apply to taxable years beginning after November 2, 2015 and before January 1, 2018. For the reasons stated, the final rules will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. Chapter 6) is not required.

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, and no comments were received.

IRS Revenue Procedures, Revenue Rulings, Notices and other guidance cited in this preamble are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at www.irs.gov.

The principal authors of these final regulations are Joy E. Gerdy Zogby of the Office of the Associate Chief Counsel (Procedure and Administration) and Jennifer M. Black of the Office of the Associate Chief Counsel (Procedure and Administration). However, other personnel from the Treasury Department and the IRS participated in their development.

Accordingly, 26 CFR part 301 is amended as follows:

This final rule extends the compliance date to December 12, 2018, for certain ancillary provisions of the beryllium rule for general industry, specifically provisions related to methods of compliance, beryllium work areas, regulated areas, personal protective clothing and equipment, hygiene areas and practices, housekeeping, communication of hazards, and recordkeeping. This rule does not affect the new permissible exposure limits (PELs) for general industry, construction, and shipyards or the general industry provisions for exposure assessment, respiratory protection, medical surveillance, and medical removal, which OSHA began enforcing on May 11, 2018. This final rule also does not affect the March 11, 2019, compliance date for the provisions on change rooms and showers in paragraph (i) (hygiene areas and practices) or the March 10, 2020, compliance date for implementation of the engineering controls required by paragraph (f) (methods of compliance). Finally, this rule does not affect the applicability of paragraph (a) (scope and application) or paragraph (b) (definitions). (Document ID 2156). OSHA has determined that this final rule will maintain essential safety and health protections for workers while OSHA prepares a Notice of Proposed Rulemaking (NPRM) to clarify specific provisions of the beryllium standard in accordance with a settlement agreement entered into with stakeholders. The revisions that OSHA plans to propose are designed to enhance worker protections by ensuring that the rule is well-understood and compliance is simple and straightforward.

OSHA has determined that this final rule is not economically significant. The rule revises 29 CFR 1910.1024(o)(2) to extend the deadline for compliance with certain provisions of the general industry beryllium standard until December 12, 2018. OSHA's final economic analysis shows that this compliance date extension will result in a net cost savings for the affected industries. At a 3 percent discount rate over 10 years, the extension will result in net annual cost savings of $0.76 million per year; at a discount rate of 7 percent over 10 years, the net annual cost savings is $1.73 million per year. When the Department uses a perpetual time horizon, the annualized cost savings of the final rule is $1.65 million with a 7 percent discount rate. The detailed final economic analysis, which includes more information on OSHA's cost/cost savings estimates for this final rule, can be found in the “Agency Determinations” section of this preamble. The rule is also an Executive Order (E.O.) 13771 deregulatory action.

OSHA published a Notice of Proposed Rulemaking (NPRM) for occupational exposure to beryllium in the Federal Register on August 7, 2015. (80 FR 47566). In the NPRM, the agency made a preliminary determination that employees exposed to beryllium and beryllium compounds at the previous PEL faced a significant risk to their health and that promulgating the NPRM's proposed standard would substantially reduce that risk. The NPRM invited interested stakeholders to submit comments on a variety of issues.

OSHA held a public hearing in Washington, DC, on March 21 and 22, 2016. The agency heard testimony from a number of organizations, including public health groups, industry representatives, and labor unions. Following the hearing, participants had an opportunity to submit additional evidence and data, as well as final briefs, arguments, and summations (Document ID 1756, Tr. 326).

On January 9, 2017, after considering the entire record, OSHA issued a final rule with separate standards for general industry, shipyards, and construction, in order to tailor requirements to the circumstances found in these sectors. See 82 FR 2470. The general industry standard became effective on March 10, 2017, and the compliance date for most of the standard's provisions was March 12, 2018. However, on March 2, 2018, OSHA issued a memorandum stating that no provisions of the general industry standard would be enforced until May 11, 2018.1 Two subsequent enforcement delays followed—the first, on May 9, 2018, delayed enforcement until June 25, 2018, of some of the general industry standard's ancillary provisions (related to methods of compliance, beryllium work areas, regulated areas, personal protective clothing and equipment, hygiene areas and practices, housekeeping, communication of hazards, and recordkeeping). The second delay, on June 21, 2018, postponed enforcement of those provisions until August 9, 2018.

Following promulgation of the final rule in January 2017, several general industry employers, including Materion Corporation (“Materion”), challenged the rule in federal court. As part of a settlement agreement with Materion,2 OSHA is planning to propose revisions to certain provisions in the general industry standard and to rely on its de minimis policy while the rulemaking is pending so that employers may comply with the proposed revisions to the standard without risk of a citation.3 The revisions OSHA plans to propose under the settlement agreement are generally designed to clarify the standard in response to stakeholder questions or to simplify compliance, while in all cases maintaining a high degree of protection from the adverse health effects of beryllium exposure (Document ID 2156).

On June 1, 2018, OSHA published a proposed rule to extend the compliance date to December 12, 2018 for certain ancillary requirements of the general industry beryllium standard. (83 FR 25536). OSHA explained that the proposed extension would give the agency time to prepare and publish a planned NPRM to amend the general industry standard before employers would be required to comply with certain ancillary provisions affected by that NPRM. That in turn would allow employers to comply with the proposed provisions without risk of a citation until any such changes are finalized (Document ID 2156).

In the proposal, OSHA requested comments from the public on both the duration and scope of the proposed compliance date extension (83 FR 25539). OSHA asked commenters to include a rationale for any concerns they had with the proposal, as well as for any alternatives they suggested. OSHA also requested comments on the “Agency Determinations” section of the proposal, including the preliminary economic analysis and other regulatory effects on employers and workers.

OSHA received ten comments in response to the proposal (Document IDs 2159-2168). The comments generally focused on three issues arising from the proposed extension: (1) Whether to extend the compliance date, (2) the scope of any extension, and (3) the appropriate duration of any extension. Below we examine these three issues, in that order—by summarizing the comments and then explaining the agency's determinations based on the record as a whole. We then address two miscellaneous comments.

Five commenters supported the agency's proposed extension of the compliance date for ancillary provisions affected by OSHA's forthcoming, substantive NPRM. (See Document ID 2161; 2165-2168). For example, Century Aluminum Company stated that “the affected portions of the Standard should be delayed to allow OSHA time to prepare and publish the substantive proposed rule so that employers do not take unnecessary and costly measures.” (Document ID 2165, p.1). It added that the proposed delay would also limit confusion among employers and other stakeholders. (Document ID 2165, p.1). Materion similarly observed that the proposed extension would address the concern that beginning enforcement of provisions affected by the NPRM could result in employer confusion or improper implementation of the relevant provisions of the rule. (Document ID 2161, p.2). Airborn Inc., Mead Metals, Inc., and the National Association of Manufacturers (NAM) supported Materion's comments and registered their own support for the extension. (Document ID 2166, p.1; 2167, p.1; 2168, pp.1-2). These three stakeholders agreed that an extension is “necessary to give OSHA enough time to draft and publish” the forthcoming, substantive NPRM. (Document ID 2166, p.1; 2167, p.1; 2168, p.1). NAM added that the proposed extension was “another positive step toward a more effective general industry standard for the benefit of workers.” (Document ID 2168, p.2). NAM also expressed its appreciation for “OSHA's recognition of employers' reasonable and practical concerns regarding compliance in anticipation of [the forthcoming, substantive NPRM].” (Document ID 2168, p.2).

Four other commenters, the United Steelworkers (USW), Public Citizen, UNITE HERE! International Union (UNITE HERE), and the National Employment Law Project (NELP), opposed the proposed extension. (Document ID 2160; 2162-2164). These commenters argued that the extension would be unnecessary and unjustified, and would delay the implementation of important protections for workers. (See, e.g., Document ID 2160, pp. 1-2). For example, Public Citizen maintained that “[e]xpeditious implementation of the ancillary provisions in general industry is absolutely necessary to enhance the benefits of the newly adopted PEL, ultimately providing another level of protection in occupational settings.” (Document ID 2162, p.3). It argued that delaying implementation would allow employers to continue to expose workers to unsafe levels of beryllium, ensuring “the occurrence of even more cases of beryllium sensitization, chronic beryllium disease, . . . . lung cancer,” and other adverse health effects. (Document ID 2162, p.3).

OSHA understands Public Citizen's concerns; the agency's goal is to protect the health and safety of workers. That is why OSHA has narrowly tailored the scope of the compliance date extension to cover only provisions that will be affected by the forthcoming, substantive NPRM. OSHA is enforcing, and will continue to enforce, many of the provisions that provide critical protection to general industry employees. This final rule does not affect critical worker protections afforded by enforcement of the revised lower PEL, the new short-term exposure limit (STEL), and requirements for exposure assessment, respiratory protection, medical surveillance, and medical removal.

Moreover, in adopting this final rule, OSHA recognizes that the goal of worker protection can be frustrated where employers do not clearly understand OSHA's requirements or how to implement them. OSHA appreciates the concerns of those stakeholders who note that, until OSHA releases its planned NPRM, employers may lack clarity regarding how to implement and comply with the beryllium standard. OSHA has determined that it would be undesirable, for both the agency and those it regulates, to begin enforcement of certain ancillary provisions of the standard that will likely be affected by the upcoming rulemaking—a scenario that could result in employers taking unnecessary measures to comply with provisions to which OSHA intends to propose clarifications.

NELP and Public Citizen also asserted that the proposed compliance-date extension conflicted with OSHA's finding that a comprehensive standard is needed to protect workers exposed to beryllium. (Document ID 2162; 2163). OSHA disagrees with that assertion that this extension is in conflict with OSHA's findings. OSHA believes that a comprehensive standard is critically important for the protection of workers exposed to beryllium in general industry settings. However, the benefits of a comprehensive standard may not be fully realized where employers do not clearly understand, and have trouble implementing, its requirements. OSHA finds that this limited, short-term extension of the compliance date for certain ancillary requirements of the standard will give the agency the time necessary to ensure that employers have clear direction on how to protect workers exposed to beryllium. Additionally, as noted previously, OSHA will continue to maintain essential safety and health protections for workers through ongoing enforcement of many of the beryllium standard's key provisions. Enforcement of other OSHA standards, such as the Hazard Communication Standard (29 CFR 1910.1200) and Access to Employee Exposure and Medical Records (29 CFR 1910.1020) will also provide other important protections for workers in general industry. In particular, employers are, and will remain, obligated to label hazardous chemicals containing beryllium, ensure that safety data sheets are readily available, and train workers on the hazards of beryllium in accordance with the Hazard Communication Standard. OSHA encourages employers to review their hazard communication programs, employee training, and other hazard communication practices (such as workplace labeling) to ensure continued compliance with the Hazard Communication Standard.

USW and UNITE HERE also questioned OSHA's justification for the proposed extension of compliance dates. USW objected to OSHA's preliminary determination that beginning enforcement of the ancillary provisions identified in the proposal before publication of the substantive NPRM could result in employer confusion or improper implementation of the relevant provisions of the rule. (Document ID 2160, p.2). USW argued that employers could avoid confusion by complying with the revisions that are identified in the settlement agreement. (Document ID 2160, p.2). In addition, USW and UNITE HERE claimed that OSHA proposed this extension to “demonstrate that it has taken deregulatory action.” (Document ID 2160, p.2; 2164).

OSHA does not agree with the USW that this extension of compliance dates is unnecessary because employers can rely on the regulatory revisions identified in the settlement agreement before publication of the substantive NPRM. The settlement agreement contains only a redlined version of the relevant regulatory text. It does not include a full summary and explanation of the revisions, in which OSHA explains the meaning of the proposed revisions to the regulatory text and, in some cases, provides further information and examples to aid compliance. For example, OSHA is planning to propose changes to paragraph (j)(3), to address reuse of beryllium-containing materials in addition to disposal and recycling, because in some cases materials may be directly reused without being recycled. In the summary and explanation for the proposed rule, OSHA will explain the intended meaning of the term “reuse” and the circumstances under which the cleaning and bagging requirements included in paragraph (j)(3) would apply to the reuse of materials that contain beryllium.

OSHA also disagrees with USW and UNITE HERE's characterization of the rationale for this extension. Although OSHA noted in the proposal that the proposed extension was “expected to be an . . . E.O.[ ] 13771 deregulatory action,” it included that statement to carry out its obligations under E.O. 13771, not to justify the rulemaking. As stated above, the reason for this rulemaking is to provide OSHA sufficient time to promulgate proposed clarifications to the general industry standard, so that employers can easily understand and properly implement the standard in order to keep workers healthy and safe.

Based on the record as a whole, OSHA finds the arguments in favor of the proposed extension of compliance dates to be more persuasive than those against the proposal. Therefore, the agency has decided to adopt the proposed extension of compliance dates to allow time for the preparation and publication of the planned, substantive NPRM.

Having determined that an extension of the compliance date for certain ancillary provisions in the beryllium standard for general industry is appropriate, OSHA next addresses comments regarding which provisions will be included in the extension. In the NPRM, OSHA proposed extending the compliance date for the following provisions: Beryllium work areas and regulated areas (paragraph (e)), written exposure control plans (paragraph (f)(1)), personal protective clothing and equipment (paragraph (h)), hygiene areas and practices (paragraph (i) except for change rooms and showers), housekeeping (paragraph (j)), communication of hazards (paragraph (m)), and recordkeeping (paragraph (n)). OSHA requested comments on the proposed scope of the extension.

Several commenters objected to the scope of the proposed compliance-date extension. For example, USW asserted that the underlying settlement agreement only “affects beryllium products whose content is less [than] 1% by weight, but which does not generate exposures above the PEL.” (Document ID 2160, p. 1). Therefore, USW argued, “[t]here is no basis for staying ancillary provisions of the standard in workplaces where exposures to beryllium are above the PEL.” (Document ID 2160, pp. 1-2). UNITE HERE also asserted that the proposed extension of compliance dates should be limited to provisions that OSHA intends to change. (Document ID 2164). It further argued that “there is no justification to delay any provision of the standard to the extent that it would regulate exposures above the PEL.” (Document ID 2164). NELP similarly commented that the proposal was “broad and needlessly pushes back compliance dates of important worker protections to a highly toxic substance.” (Document ID 2163, p.1).

Century Aluminum, however, argued that OSHA should not extend the compliance date for only certain portions of affected paragraphs, as proposed by some of the other commenters. Beyond making it clear that the compliance dates for engineering and work practice controls (March 10, 2020) and change rooms and showers (March 11, 2019) remain unchanged, Century Aluminum asserted that differentiating by portions of affected paragraphs would lead to substantial confusion among employers and other stakeholders.4

OSHA agrees with Century Aluminum's assessment that an extension of compliance dates that differentiated between individual subparagraphs of the affected ancillary provisions, as suggested by USW and UNITE HERE, would create substantial confusion.5 In addition, OSHA does not find that the extension should be limited to only those situations where beryllium exposures do not exceed the PEL. Contrary to USW's assertion, the substantive changes OSHA intends to propose to the beryllium standard for general industry do apply to processes that generate exposures above the PEL, and they are not limited to products whose beryllium content is less than one percent by weight. For example, changes to provisions for methods of compliance, personal protective clothing and equipment, housekeeping, and hygiene areas and practices involve all beryllium-containing materials where exposures may occur. Therefore, OSHA's rationale for the extension of compliance dates applies to all general industry workplaces within the scope of the beryllium standard, including those where beryllium exposures may exceed the PEL. Finally, as to UNITE HERE's comment that the extension should be limited to provisions that OSHA intends to change in the final standard, OSHA has reexamined each of the provisions covered by the proposed extension and confirmed that the final extension of compliance dates applies only to paragraphs affected by the upcoming, substantive NPRM.

After considering these comments, OSHA has decided to retain the scope of the extension as proposed. The extension of compliance dates, therefore, will apply to the following provisions: Beryllium work areas and regulated areas (paragraph (e)), written exposure control plans (paragraph (f)(1)), personal protective clothing and equipment (paragraph (h)), hygiene areas and practices (paragraph (i) except for change rooms and showers), housekeeping (paragraph (j)), communication of hazards (paragraph (m)), and recordkeeping (paragraph (n)).

Having determined that it is appropriate to extend the compliance date for certain ancillary provisions in the general industry beryllium standard, the remaining issue is the duration of the extension. In the NPRM, OSHA proposed extending the relevant compliance date until December 12, 2018. OSHA requested comments on the duration of the extension.

Very few commenters expressly opined on the duration of the proposed compliance date extension, and those who did disagreed as to whether a longer or shorter extension was appropriate. For example, Century Aluminum asked OSHA to consider extending the relevant compliance date for an additional three months, to March 11, 2019. (Document ID 2165, pp. 1-2). It argued that “[a]n additional three months would give OSHA the time to receive comments on the substantive proposed rule and publish a final rule.” (Document ID 2165, p.1). It further stated that a longer extension would prevent confusion and unnecessary costs:

After considering these comments, OSHA is not persuaded that it should alter the duration of the proposed extension. Although OSHA appreciates Century Aluminum's points, the agency must balance arguments in favor of a longer extension against the concerns raised by commenters, such as USW, that an unnecessarily lengthy extension could deny general industry workers certain protections afforded to them under the affected ancillary provisions. Moreover, although OSHA understands Century Aluminum's concern about the potential increase in costs that could result if the provisions adopted as a result of the planned substantive rulemaking do not mirror those proposed in the substantive NPRM, the agency cannot, at this time, estimate with much certainty when any final rule will be promulgated.6 OSHA also rejects USW and UNITE HERE's call for compliance dates based on the publication of the substantive NPRM; a timeline based on a currently uncertain date would be more difficult and confusing for employers and workers. The agency finds that the proposed compliance date of December 12, 2018, appropriately balances the concerns raised by stakeholders, will provide the agency sufficient time to draft and publish the NPRM, and will give employers sufficient time to comply. Therefore, OSHA has decided to extend the compliance date for the identified provisions until December 12, 2018, as proposed.

OSHA also received two comments that did not directly relate to the proposed extension of compliance dates. The first, from Materion, is related to a statement the agency made in the proposal. (Document ID 2161, p.2). Specifically, OSHA stated that it “expects to publish the planned, substantive NPRM well in advance of the compliance dates” for change rooms and showers (March 11, 2019) and engineering controls (March 10, 2020). Materion maintained that “it is reasonable and necessary for OSHA to not only publish the NPRM, but complete its final changes to the General Industry Standard for beryllium well ahead of March 11, 2019, since the revisions OSHA plans to propose are primarily clarifying or simplifying in nature . . . and designed to enhance worker protections by ensuring that the rule is well-understood and compliance is simple and straightforward.” (Document ID 2161, p.2 (citing Document ID 2156)). Materion further commented that “[e]mployees will benefit most by completion of all changes as soon as possible, and certainly before early 2019.” (Document ID 2161, p.2).

OSHA understands Materion's concern, and agrees that prompt finalization of any substantive revisions to the general industry standard for beryllium would be ideal. Therefore, the agency will proceed with the substantive rulemaking as expeditiously as possible. However, OSHA will also need to ensure that stakeholders have a meaningful opportunity to comment on the forthcoming proposal and that the agency has adequate time to consider and address stakeholder comments. Consequently, at this time the agency does not have a specific target date for conclusion of the substantive rulemaking.

The second comment that was not directly related to the proposed extension of compliance dates was submitted by an anonymous commenter, who indicated strong support for the beryllium rule generally. (Document ID 2159). The commenter submitted summary statistics on relationships between beryllium exposure and the prevalence of beryllium sensitization and chronic beryllium disease in a cohort at a beryllium precision machining facility and stated that the results support the control of workplace beryllium exposures. However, this commenter did not address how the data or conclusions provided related to the proposed extension of compliance dates or otherwise offer any comments on the specific terms of the proposed extension. To the extent that this commenter intended to argue that the proposed extension of compliance dates would have a detrimental impact on worker health, that comment is addressed above in response to similar concerns expressed by USW, Public Citizen, UNITE HERE, and NELP.

Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1532(a)) require that OSHA estimate the benefits, costs, and net benefits of regulations, and analyze the effects of certain rules that OSHA promulgates. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

This final rule is not an “economically significant regulatory action” under E.O. 12866 or UMRA, or a “major rule” under the Congressional Review Act (5 U.S.C. 801 et seq.). Neither the benefits nor the costs of this final rule would exceed $100 million in any given year. This final rule to extend the compliance date for certain ancillary provisions in the beryllium standard would result in cost savings. Cost savings arise in this context because a delay in incurred costs for employers would allow them to invest the funds (and earn an expected return at the going interest rate) that would otherwise have been spent to comply with the beryllium standard. OSHA did not receive any comments on the preliminary economic analysis OSHA prepared for the proposal.

At a discount rate of 3 percent, this final compliance-date extension yields annualized cost savings of $0.76 million per year for 10 years. At a discount rate of 7 percent, this final rule yields an annualized cost savings of $1.73 million per year for 10 years. When the Department uses a perpetual time horizon to allow for cost comparisons under E.O. 13771 (82 FR 9339, Jan. 30, 2017), the annualized cost savings of this final compliance date extension are $1.65 million at a discount rate of 7 percent.

More than one year has elapsed since promulgation of the beryllium standards on January 9, 2017, so OSHA has updated the projected costs for general industry contained in the final economic analysis that accompanied the rule from 2015 to 2017 dollars, using the latest Occupational Employment Statistics (OES) wage data (for 2016) and inflating them to 2017 dollars. Additionally, although familiarization costs were included in the cost estimates developed in the 2017 economic analysis, OSHA expects that those costs have already been incurred by affected employers, and is excluding them from its analysis of the cost savings associated with this extension of compliance dates. Thus, baseline costs for this final economic analysis (FEA) are the projected costs from the 2017 economic analysis, updated to 2017 dollars, less familiarization costs.

OSHA notes that it did not include an overhead labor cost in the 2017 analysis, and has not accounted for such costs in this FEA. There is not one broadly accepted overhead rate, and the use of overhead to estimate the marginal costs of labor raises a number of issues that should be addressed before applying overhead costs to analyze the cost implications of any specific regulation. There are several ways to look at the cost elements that fit the definition of overhead, and there is a range of overhead estimates currently used within the federal government—for example, the Environmental Protection Agency has used 17 percent,7 and government contractors have reportedly used 50 percent for on-site (i.e., company site) overhead.8 Some overhead costs, such as advertising and marketing, may be more closely correlated with output than with labor. Other overhead costs vary with the number of new employees. For example, rent or payroll processing costs may change little with the addition of 1 employee in a 500-employee firm, but may change substantially with the addition of 100 employees. If an employer is able to rearrange current employees' duties to implement a rule, then the marginal share of overhead costs, such as rent, insurance, and major office equipment (e.g., computers, printers, copiers), would be very difficult to measure with accuracy.

If OSHA had included an overhead rate when estimating the marginal cost of labor, without further analyzing an appropriate quantitative adjustment, and adopted for these purposes an overhead rate of 17 percent on base wages, the cost savings of this final rule would increase to approximately $0.82 million per year, at a discount rate of 3 percent, or to approximately $1.87 million per year, at a discount rate of 7 percent.9 The addition of 17-percent overhead on base wages would therefore increase cost savings by approximately 8 percent above the primary estimate at either discount rate.

The general industry beryllium standard went into effect on May 20, 2017, with most compliance obligations beginning on March 12, 2018. OSHA is finalizing the extension of the compliance date for specific provisions until December 12, 2018. The compliance date for the updated PELs, as well as for the exposure assessment, respiratory protection, medical surveillance, and medical removal requirements, and for provisions for which the standard already establishes compliance dates in 2019 and 2020, do not change as a result of this rule. The applicability of the scope and application paragraph and the definitions also do not change as a result of this rule, except that employers may comply with the definitions of “CBD diagnostic center,” “chronic beryllium disease,” and “confirmed positive” that will be proposed in the later substantive rulemaking NPRM (Document ID 2156). The purpose of this final rule is to provide time for OSHA to issue a planned NPRM that will affect the parts of the standard that are covered by this compliance-date extension before that compliance date is reached, so that OSHA may rely on its de minimis policy and employers may comply with the proposed provisions without risk of a citation.

OSHA estimated the cost savings of the final rule relative to baseline costs, where baseline costs reflect the costs of compliance without the final rule's changes to the compliance date. OSHA calculated the cost savings by lagging the first-year costs for the affected provisions by nine months and then calculating the present value of the delayed costs over the 10 years following the new compliance date. Annualizing the present value of cost savings over ten years, the result is an annualized cost savings of $0.76 million per year at a discount rate of 3 percent, or $1.73 million per year at a discount rate of 7 percent. When the Department uses a perpetual time horizon to allow for cost comparisons under E.O. 13771, the annualized cost savings of this compliance date extension is $1.65 million at a discount rate of 7 percent.

The undiscounted cost savings by provision and year are presented below in Table 1. As shown in Table 1, and described elsewhere in this final rule, the cost savings described in this FEA reflect savings only for provisions covered by the compliance date extension. OSHA estimated no cost savings for the PELs, exposure assessment, respiratory protection, medical surveillance, or medical removal provisions (as they are not covered by the extension), or for any provisions for which the rule already establishes compliance dates in 2019 (change rooms/showers) or 2020 (engineering controls).10 The cost savings by year and discount rate are shown below in Table 2.

In the final economic analysis for the 2017 general industry beryllium standard, OSHA concluded that the rule was technologically feasible. OSHA has determined that this final rule is also technologically feasible because it does not change any of the rule's substantive requirements, and, if adopted, would simply give employers more time to comply with some of the rule's ancillary requirements. Furthermore, OSHA previously concluded that the beryllium standard was economically feasible. As this final rule does not impose any new substantive requirements, and results in cost savings, OSHA has concluded that the final rule is also economically feasible.

The planned rulemaking to revise the general industry beryllium standard is intended to be responsive to questions and concerns expressed by stakeholders regarding ancillary provisions of the rule. Safety and health programs can be ineffective if employers and other stakeholders are unclear about OSHA requirements. Hence, by addressing stakeholder questions and concerns, the planned rulemaking will make it more likely that the regulated community will realize the full benefits of the rule, as estimated in the 2017 final economic analysis. Although it is not possible to quantify the effect of stakeholder uncertainty on the projected benefits of the rule, OSHA believes that the short-term loss of benefits associated with this extension of initial compliance dates will be more than offset in the long term by the benefits resulting from the agency's effort to clarify the rule. OSHA has determined that this final rule will maintain essential safety and health protections for workers.

This final rule will result in cost savings for affected employers, and those savings fall below levels that could be said to have a significant positive economic impact on a substantial number of small entities.11 Therefore, OSHA certifies that this final rule does not have a significant impact on a substantial number of small entities.

On April 26, 2018, we published a temporary deviation entitled “Drawbridge Operation Regulation; Delaware River, Burlington, NJ and Bristol, PA” in the Federal Register (83 FR 18226). This temporary deviation was to facilitate bridge maintenance and painting of the vertical lift span of the drawbridge from May 1, 2018, through September 30, 2018. During the planned maintenance period, a work platform would have reduced one half of the bridge span vertical clearance to approximately 58 feet above mean high water in the closed position and approximately 132 feet above mean high water in the open position.

The temporary deviation is being cancelled due to delays in performing bridge maintenance outside the navigation span, thereby eliminating the need for a temporary deviation to facilitate bridge maintenance in the navigation span. Due to the cancellation of the work, this platform will not be installed and the bridge will operate under its regular operating schedule in 33 CFR 117.716. In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the cancellation date of the deviation.

The Coast Guard will enforce the Safety Zone; Milwaukee Open Water Swim listed as (f)(18) in Table 165.929 of 33 CFR 165.929 on August 11, 2018 from 6 a.m. through 10 a.m. This action is being taken to provide for the safety of life on navigable waterways of the Milwaukee River in Milwaukee, WI. This safety zone will encompass all waters of the Milwaukee River from the I-794 overpass to where the Milwaukee River and Kinnickinnic River meet (NAD 83).

Pursuant to 33 CFR 165.929, entry into, transiting, or anchoring within the safety zone during an enforcement period is prohibited unless authorized by the Captain of the Port Lake Michigan, or his or her designated on-scene representative. Those seeking permission to enter the safety zone may request permission from the Captain of Port Lake Michigan via Channel 16, VHF-FM. Vessels and persons granted permission to enter the safety zone shall obey the directions of the Captain of the Port Lake Michigan or his or her designated representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.

This notice of enforcement is issued under authority of 33 CFR 165.929, Safety Zones; Annual events requiring safety zones in the Captain of the Port Lake Michigan zone, and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via Broadcast Notice to Mariners and Local Notice to Mariners. The Captain of the Port Lake Michigan or his or her designated on-scene representative may be contacted via VHF Channel 16 or at (414) 747-7182.

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 doing so would be impracticable. The Coast Guard did not receive the final details of this competition in time to publish an NPRM. As such, it is impracticable to publish an NPRM because we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

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 inhibit the Coast Guard's ability to protect participants, mariners and vessels from the hazards associated with this event.

The legal basis for the rule is the Coast Guard's authority to establish safety zones: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6 and 160.5; Department of Homeland Security Delegation No. 0170.1.

The Coast Guard will enforce a safety zone from 6:50 a.m. through 5:10 p.m. on August 11 and August 12, 2018 for a competition utilizing motorized personal watercraft will take place in the vicinity of Lake Front Park in Whiting, Indiana. The Captain of the Port Lake Michigan has determined that a competition of this nature poses a significant risk to public safety and property. Such hazards include potential for collision with spectators and participants. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the competition takes place.

The Captain of the Port Lake Michigan has determined that this temporary safety zone is necessary to protect the public during the watercraft competition. This rule safety zone will be enforced from 6:50 a.m. until 5:10 p.m. on August 11, 2018 and August 12, 2018. The safety zone will encompass all navigable waters of Lake Michigan near Lake Front Park, bounded by a line drawn from the shore at 41°40.725 N, 087°28.633 W, then northeast to 41°40.891 N, 087°28.468 W, then northwest to 41°41.494 N, 087°29.559 W, then southwest back to the shore at 41°41.235 N, 087°29.779 W.

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan, or a designated on-scene representative. The Captain of the Port or a designated on-scene representative may be contacted via VHF Channel 16 or at (414) 747-7182.

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.

We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced on two days from 6:50 a.m. until 5:10 p.m. on August 11, 2018 and August 12, 2018. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

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.

This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons cited in the Regulatory Planning and Review section. Additionally, before the enforcement of the zone, we will issue local Broadcast Notice to Mariners and Local Notice to Mariners so vessel owners and operators can plan accordingly. 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, which guides 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 establishment of a safety zone on Lake Michigan near North Avenue Beach in Chicago, IL. It is categorically excluded from further review under paragraph L60(c) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

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 doing so would be impracticable and contrary to the public interest. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect the public, vessels, mariners, and property from the hazards associated with the fireworks display on August 11, 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 for the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable and contrary to the public interest.

The legal basis for this rule is the Coast Guard's authority to establish safety zones: 33 U.S.C. 1231; 33 CFR 1.05-1, 160.5; Department of Homeland Security Delegation No. 0170.1.

The Coast Guard will enforce a safety zone on August 11, 2018, from 9 p.m. through 11 p.m., for a fireworks display in Milwaukee Harbor on Lake Michigan. The Captain of the Port Lake Michigan has determined that this fireworks display will pose a significant risk to public safety and property. Such hazards include premature and accidental detonations, falling and burning debris, and collisions among spectator vessels.

With the aforementioned hazards in mind, the Captain of the Port Lake Michigan has determined that this temporary safety zone is necessary to protect persons and vessels during the fireworks display in the waters of Milwaukee Harbor on Lake Michigan. This zone is effective and will be enforced from 9 p.m. until 11 p.m. on August 11, 2018. The safety zone will encompass all navigable waters within a 100-yard radius of 43°01.980′ N, 087°53.580′ W. (NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan or his or her designated on-scene representative. The Captain of the Port or his or her designated on-scene representative may be contacted via VHF Channel 16.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. The safety zone created by this rule will be relatively small and enforced for only two hours. Under certain conditions, vessels may still transit through the safety zone when permitted by the Captain of the Port. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.

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

This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the affected portion of Milwaukee Harbor on Lake Michigan between 9 p.m. and 11 p.m. on August 11, 2018. This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons cited in the Regulatory Planning and Review section. Additionally, before the enforcement of the zone, we will issue local Broadcast Notice to Mariners and Public Notice of Safety Zone so vessel owners and operators can plan accordingly.

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 the establishment of a safety zone surrounding a fireworks display on Milwaukee Harbor in Lake Michigan. It is categorically excluded from further review under paragraph L[60(a)] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

On July 18, 1997, EPA promulgated a revised ozone NAAQS of 0.08 ppm, averaged over eight hours. 62 FR 38855. This 8-hour ozone NAAQS was determined to be more protective of public health than the previous 1979 1-hour ozone NAAQS. See 44 FR 8202 (February 8, 1979). In 2008, EPA revised the 8-hour ozone NAAQS from 0.08 to 0.075 ppm. See 73 FR 16436 (March 27, 2008).1

On May 21, 2012, the Baltimore, Maryland area was designated as moderate nonattainment for the 2008 8-hour ozone NAAQS. 77 FR 30088. The designation of the Baltimore, Maryland area as moderate nonattainment was effective July 20, 2012. The Baltimore, Maryland nonattainment area is comprised of Anne Arundel County, Baltimore County, Baltimore City, Carroll County, Harford County, and Howard County. Under section 172(c)(3) of the CAA, Maryland is required to submit a comprehensive, accurate, and current inventory of actual emissions from all sources of the relevant pollutants in its moderate nonattainment area.

On October 3, 2017 (82 FR 46010 and 82 FR 45997), EPA simultaneously published a notice of proposed rulemaking (NPR) and a direct final rule (DFR) for the State of Maryland approving the SIP revision. EPA received adverse comments on the rulemaking and withdrew the DFR prior to the effective date of December 4, 2017. In this final rulemaking, EPA is responding to the comments submitted on the proposed revision to the Maryland SIP and is approving Maryland's 2011 base year emissions inventory for the 2008 8-hour ozone NAAQS.

Under CAA section 172(c)(3), states are required to submit a comprehensive, accurate, and current account of actual emissions from all sources (point, nonpoint, nonroad, and onroad) in the nonattainment area. CAA section 182(a)(1) and (b) requires that areas designated as nonattainment and classified as moderate submit an inventory of all sources of ozone precursors no later than 2 years after the effective date of designation.

On December 30, 2016, MDE submitted a formal revision (SIP #16-16) to its SIP. The SIP revision consists of the 2011 base year inventory for the Baltimore, Maryland nonattainment area for the 2008 8-hour ozone NAAQS. In accordance with EPA's requirements for ozone SIP planning, “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements,” MDE selected 2011 for its base year emissions inventory. See 80 FR 12263 (March 6, 2015). MDE's 2011 base year inventory includes emissions estimates covering the general source categories of stationary point, area (nonpoint), quasi-point, nonroad mobile, onroad mobile, and Marine-Air-Rail (M-A-R).

EPA reviewed Maryland's 2011 base year emission inventory's results, procedures, and methodologies for the Baltimore, Maryland moderate nonattainment area and found them to meet the applicable requirements for approval under sections 110, 172(c)(3) and 182(a)(1) and (b) of the CAA.

Other specific requirements of Maryland's 2011 base year emissions inventory for the 2008 8-hour ozone NAAQS and the rationale for EPA's proposed action are explained in the prior direct final rule (DFR) and its accompanying NPR and will not be restated here. EPA received public comments on the NPR that will be addressed in section III of this rulemaking.

During the comment period, EPA received several anonymous comments on this rulemaking. EPA is responding to the comments submitted specific to this action on the proposed revision to the Maryland SIP. All other comments received were not specific to this action and thus are not addressed here.

Comment 1: The Commenter claims Maryland assumed Stage II controls were in effect even though the State has “exercised enforcement discretion for new and existing sources effectively eliminating all reductions from any [Stage II] controls.” Commenter provides a memorandum from MDE's Air & Radiation Management Administration (ARMA) titled “Stage II Vapor Recovery Systems—Enforcement Discretion Policy (March 20, 2014).”

Response 1: EPA notes that Maryland's 2011 base year emissions inventory analysis for the 2008 ozone NAAQS was performed for calendar year 2011 using 2011 emissions data. Maryland continued to implement and enforce the Stage II program prior to issuance of MDE's enforcement policy on March 6, 2014, suspending state enforcement of the program from that time forward. Maryland intended to subsequently repeal the Stage II rule and to submit to EPA a SIP revision to remove the program from the SIP. Maryland submitted a SIP revision to EPA to remove the Stage II program from the SIP on August 28, 2017. However, the Stage II program was in operation and was being enforced in 2011. Therefore, EPA believes Maryland correctly estimated its 2011 emission inventory to include the Stage II program as an implemented, enforceable emission control measure. Therefore, EPA finds Maryland correctly estimated its emissions inventory to reflect Stage II as a control measure in place in the 2011 base year inventory period.

Comment 2: Commenter claims that the emissions calculations for “Open Burning—Land Clearing” uses an ozone season of only 92 days, which is not even half of the full ozone season.

Response 2: Maryland chose to use the peak ozone period of June to August (92 days) for the “Open Burning—Land Clearing” emissions calculations as their ozone season.2 Under EPA's “Emissions Inventory Guidance for Implementation of Ozone and Particulate Matter National Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations (July 2017),” the state shall “select the representative months and work week days to include in the calculation of the ozone season day emissions. The temporal basis for these emissions should be representative of the conditions leading to nonattainment, as recommended by the state.” 3 EPA finds that Maryland's calculations in the 2016 SIP submittal comply with the current guidance in choosing to select June to August as the ozone season for the “Open Burning—Land Clearing” emissions calculations, as Maryland states these months are typically peak ozone season.

Comment 3: Maryland assumed that “commercial and industrial sources only operated 6 days a week instead of 7.” Commenter notes that “nothing in Maryland prevents businesses from operating 7 days a week and so Maryland should have used 7 days a week.”

Response 3: While Commenter is not specific as to which commercial and industrial sources are of concern, EPA's Emission Inventory Improvement Program (EIIP) guidance (May 2001) provides flexibility in the operation days. For example, the guidance for solvent cleaning operations states, “Daily variations may apply for some of the industries. Some industries operate seven days per week, others only five days. Some industries are likely to operate two or three shifts per day, others may only have one.” Therefore, “the default value of uniform activity through the year is six days per week.” 4 EPA finds that Maryland performed the calculations in accordance with the EIIP guidance.5

Comment 4: Commenter claims Maryland's inspection and maintenance (I/M) program is improperly represented in the emission modeling parameters selected by Maryland in the Motor Vehicle Emission Simulator (MOVES) modeling used to estimate the highway mobile source emissions portion of the emission inventory, which are used to calculate emissions benefits from the I/M program. The commenter claims MOVES parameters for I/M program coverage incorrectly included an I/M program motorist compliance rate of over 96% when the state is known to “have a large number of (vehicle) failures that never return to get rechecked.” Additionally, the commenter states that “Maryland allows for almost 6 months of extensions after first testing and finding a problem that has to be fixed. This means that if a car is failing in the second half of the year it is possible to have a violating vehicle for the rest of the year meaning compliance is not achieved.” Commenter would like EPA to require Maryland to use actual I/M data collected by the Maryland program to be used to set the I/M program parameters of the MOVES model instead of MOVES default parameters as this would reduce the reductions attributed to the I/M program and change the area's overall emissions inventory.

Response 4: The I/M program motorist compliance rate is represented by the number of complying vehicles (i.e., vehicles with a confirmed final I/M test outcome, either passing the test or receiving a waiver from doing so) divided by the number of vehicles subject to testing in the area × 100. Maryland collects statistics for its Vehicle Emissions Inspection Program (VEIP) on an ongoing basis, and per a requirement of the federal requirements for I/M programs, annually reports program summary data to EPA for the prior calendar year. For purposes of the 2011 base year inventory, the relevant I/M annual report from Maryland to EPA was submitted on August 15, 2012, representing calendar year 2011.6 For 2011, MDE reported that a total of 1,562,895 vehicles were tested under the VEIP program. Of these, 1,424,557 vehicles initially passed and 138,338 vehicles failed the VEIP test. Of the initial failures, 14,442 ultimately received a test “waiver” outcome after spending money for repairs up to a limit established by the VEIP program (but still not passing a test). Therefore, a total of 1,438,99 out of 1,562,895 vehicles received some form of final VEIP test outcome (either a passing test or a waiver) by the end of calendar year 2011, for a 92% compliance rate. However, Maryland calculated an overall 97% I/M program motorist compliance rate for the 2011 calendar year, when taking into account vehicles that received legally granted compliance extensions, but received a final outcome by the following July.7 Maryland's 2011 I/M report tracks outcomes for these delayed compliance vehicles from the end of 2011 through July 2012 and factors them into an adjusted compliance rate for calendar year 2011. In doing so, MDE has attempted to account for many of the initially failing vehicles in the 2011 calendar year that did not receive a final I/M test outcome by the end of 2011. Taking into account these late complying vehicles, as well as vehicles that were identified as having been scrapped or relocated outside the I/M program area, MDE's calculated motorist compliance rate reached 96%, very near to the compliance rate assumed by MDE in the MOVES modeling performed to support the 2011 base year emission inventory.8 EPA finds that the MDE made a reasonable estimate of I/M program motorist compliance rate for its base year inventory. Based on our review of state-reported 2011 I/M program data, EPA disagrees with the Commenter that the I/M program motorist compliance rate assumed by MDE for the base year inventory was not achieved in practice. See 40 CFR part 51.351(12).

Comment 5: Commenter requests that EPA fully evaluate all calculations to ensure Maryland has used the proper methodologies and assumptions.

Response 5: EPA has reviewed the stationary point source, area source, highway mobile, and nonroad mobile source sector emissions estimates for the 2011 base year inventory and is satisfied that MDE has followed the appropriate guidelines and used the latest available information to support its base year inventory estimates. EPA has reviewed the 2011 base year inventory for the Baltimore, Maryland moderate nonattainment area for the 2008 8-hour ozone NAAQS and finds that Maryland has followed the guidance for a base year inventory submission.

EPA is approving the Maryland SIP revision which includes the 2011 base year inventory for the 2008 8-hour ozone NAAQS for the Baltimore, Maryland moderate nonattainment area because the inventory was prepared in accordance with requirements in sections 110, 172(c)(3) and 182(a)(1) and (b) of the CAA and its implementing regulations including 40 CFR 51.915.

After receipt of adverse public comment on our prior direct final rule, EPA published an action to withdrawal the direct final rule (82 FR 66611, November 22, 2017). This withdrawal occurred prior to the effective date for the direct final action, preventing 40 CFR 52.1075(r) from being added to the SIP through the direct final action. With this final rule, EPA is now adding 40 CFR 52.1075(r) to Maryland's SIP.

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

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

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

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

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

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

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 9, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action approving Maryland's 2011 base year inventory for the 2008 8-hour ozone NAAQS for the Baltimore, Maryland moderate nonattainment area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

I. Background

On December 14, 2012, the EPA promulgated a revised primary annual PM2.5 NAAQS to provide increased protection of public health from fine particle pollution (78 FR 3086; January 15, 2013). In that action, the EPA strengthened the primary annual PM2.5 standard from 15.0 micrograms per cubic meter (μg/m3) to 12.0 μg/m3, which is attained when the 3-year average of the annual arithmetic means does not exceed 12.0 μg/m3. Section 107(d) of the Clean Air Act (CAA), 42 U.S.C. 7407(d), governs the process for initial area designations after the EPA establishes a new or revised NAAQS. Under CAA section 107(d), each governor is required to, and each tribal leader may, if they so choose, recommend air quality designations to the EPA by a date that cannot be later than 1 year after the promulgation of a new or revised NAAQS. The EPA considers these recommendations as part of its duty to promulgate the area designations and boundaries for the new or revised NAAQS. If, after careful consideration of these recommendations, the EPA believes that it is necessary to modify a state's recommendation and intends to promulgate a designation different from a state's recommendation, the EPA must notify the state at least 120 days prior to promulgating the final designation and the EPA must provide the state an opportunity to demonstrate why any proposed modification is inappropriate. These modifications may relate either to an area's designation or to its boundaries.

On December 18, 2014, the Administrator of the EPA signed a final action promulgating initial designations for the 2012 PM2.5 NAAQS for the majority of the United States, including areas of Indian country (80 FR 2206 FR; January 15, 2015). In that action, the EPA also deferred initial area designations for certain areas where available data, including air quality monitoring data, were insufficient to determine whether the area met or did not meet the NAAQS, but where forthcoming data were likely to result in complete and valid air quality data sufficient to determine whether these areas meet the NAAQS. Accordingly, the EPA stated that it would use the additional time available as provided under section 107(d)(1)(B) of the CAA to assess relevant information and subsequently promulgate initial designations for the identified areas through a separate rulemaking action or actions. The deferred areas included the entire state of Tennessee, except three counties in the Chattanooga area; several areas in the state of Georgia, including two neighboring counties in the bordering states of Alabama and South Carolina; the entire state of Florida; and areas of Indian country located in these areas.

In separate actions published on April 15, 2015 (80 FR 18535), September 6, 2016 (81 FR 61136), and May 19, 2017 (82 FR 22888), the EPA promulgated designations of unclassifiable/attainment for all remaining deferred areas in the state of Georgia (including two neighboring counties in the bordering states of Alabama and South Carolina), all of the remaining deferred areas in the state of Tennessee, and 62 counties in the state of Florida, including areas of Indian country located in those areas.

The purpose of this action is to announce and promulgate initial area designations of unclassifiable/attainment for the 2012 PM2.5 NAAQS for the remaining five undesignated counties in the state of Florida. The counties are: Alachua County, Broward County, Gilchrist County, Miami-Dade County, and Palm Beach County. Alachua and Gilchrist Counties make up the Gainesville, FL Core Based Statistical Area (CBSA). Broward, Miami-Dade, and Palm Beach Counties make up the Miami-Fort Lauderdale-West Palm Beach Counties CBSA. The EPA initially deferred designating these counties in the EPA's January 15, 2015, rulemaking.1 Since then, the state of Florida has submitted to the EPA complete, quality-assured, and certified air quality monitoring data from 2015-2017 for the two CBSAs.2 The air quality data indicate that the CBSAs are attaining the 2012 PM2.5 NAAQS. In addition, because there are no nearby violating areas, the counties in these CBSAs are not causing or contributing to a violation of the 2012 PM2.5 NAAQS in a nearby area. Therefore, the EPA is designating the remaining five undesignated counties in these CBSAs as unclassifiable/attainment. These designations are consistent with Florida's recommended area designations and boundaries for these areas for the 2012 PM2.5 NAAQS. The table at the end of this final rule (amendments to 40 CFR 81.310—Florida) lists all areas for which the EPA has promulgated an initial designation in Florida. Areas of Indian country located in the listed areas are included in the designated areas.

When the EPA establishes a new or revised NAAQS, the CAA requires the EPA to designate all areas of the U.S. as either nonattainment, attainment, or unclassifiable. The EPA provided a meaningful opportunity for members of the public to participate in the development of the 2012 primary annual PM2.5 NAAQS that underlies the present action, including conducting an outreach and information call with environmental justice organizations on August 9, 2012.

As part of the process of reviewing the PM air quality criteria and revising the primary annual PM2.5 NAAQS, the EPA identified persons from lower socioeconomic strata as an at-risk population for PM-related health effects. As a result, the EPA carefully evaluated the potential impacts on low-income and minority populations. Based on this evaluation and consideration of public comments, the EPA eliminated spatial averaging provisions as part of the form of the primary annual PM2.5 NAAQS in order to avoid potential disproportionate impacts on at-risk populations, including populations from lower socioeconomic strata. See 78 FR at 3267 (January 15, 2013).

This final action addresses designation determinations for certain areas in Florida for the 2012 primary annual PM2.5 NAAQS. The CAA requires the EPA to determine through a designation process whether an area meets or does not meet any new or revised national primary or secondary NAAQS. The promulgation of area designations facilitates public understanding and awareness of the air quality in an area. For this action, the complete and valid monitoring data from Florida indicate that all the areas at issue in this action are meeting the 2012 primary annual PM2.5 NAAQS. Furthermore, no area affected by this action is contributing to a violation of the 2012 primary annual PM2.5 NAAQS in a nearby area.

This action is exempt from review by the Office of Management and Budget because it responds to the CAA requirement to promulgate air quality designations after promulgation of a new or revised NAAQS.

This action is not an Executive Order 13771 regulatory action because actions such as air quality designations after promulgating a new revised NAAQS are exempt from review under Executive Order 12866.

This action does not impose an information collection burden under the PRA. This action fulfills the non-discretionary duty for the EPA to promulgate air quality designations after promulgation of a new or revised NAAQS and does not contain any information collection activities.

This designation action under CAA 107(d) is not subject to the RFA. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. Section 107(d)(2)(B) of the CAA explicitly provides that designations are exempt from the notice and comment provisions of the APA. In addition, designations under CAA section 107(d) are not among the list of actions that are subject to the notice and comment procedures of CAA section 307(d).

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538 and does not significantly or uniquely affect small governments. The action implements mandates specifically and explicitly set forth in the CAA for the 2012 primary annual PM2.5 NAAQS (40 CFR 50.18). The CAA establishes the process whereby states take primary responsibility for developing plans to meet the 2012 primary annual PM2.5 NAAQS.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications. It will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. The CAA provides for states and eligible tribes to develop plans to regulate emissions of air pollutants within their areas, as necessary, based on the designations. The TAR provides tribes the opportunity to apply for eligibility to develop and implement CAA programs, such as programs to attain and maintain the PM2.5 NAAQS, but it leaves to the discretion of the tribe the decision of whether to apply to develop these programs and which programs, or appropriate elements of a program, the tribe will seek to adopt. This rule does not have a substantial direct effect on one or more Indian tribes.

The EPA interprets Executive Order 13045 as applying to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

The EPA believes that this action does not have disproportionately high and adverse human health of environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The documentation for this determination is contained in Section III of this preamble, “Environmental Justice Considerations.”

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the U.S. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Section 307 (b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by the EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit: (i) When the agency action consists of “nationally applicable regulations promulgated, or final actions taken by the Administrator,” or (ii) when such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”

This final action, in conjunction with the previous final actions designating areas across the U.S. for the 2012 primary annual PM2.5 NAAQS, is “nationally applicable” within the meaning of section 307(b)(1). At the core of this final action is the EPA's interpretations of the definitions of nonattainment, attainment and unclassifiable under section 107(d)(1) of the CAA, and its application of those interpretations to areas across the country. For the same reasons, the Administrator is also determining that the final designations are of nationwide scope and effect for the purposes of section 307(b)(1) of the CAA. This is particularly appropriate because, in the report on the 1977 Amendments that revised section 307(b)(1) of the CAA, Congress noted that the Administrator's determination that an action is of “nationwide scope or effect” would be appropriate for any action that has a scope or effect beyond a single judicial circuit. H.R. Rep. No. 95-294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect of this final action extends to numerous judicial circuits since the designations apply to areas across the country. In these circumstances, section 307(b)(1) and its legislative history calls for the Administrator to find the action to be of “nationwide scope or effect” and for venue to be in the D.C. Circuit.

Thus, any petitions for review of final designations must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the Federal Register.

For the reasons set forth in the preamble, 40 CFR part 81 is amended as follows:

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0315 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 9, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0315, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of March 6, 2018 (83 FR 9471) (FRL-9973-27), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 6F8535) by Technology Sciences Group Inc., 712 Fifth Street, Suite A, Davis, CA 95616 (on behalf of Lesaffre Yeast Corporation, 7475 W Main St., Milwaukee, WI 53214). The petition requested that 40 CFR 180 be amended by establishing an exemption from the requirement of a tolerance for residues of the systemic resistance inducer (SRI) cerevisane (cell walls of Saccharomyces cerevisiae strain LAS117) in or on all food commodities. That document referenced a summary of the petition prepared by the petitioner, Technology Sciences Group Inc., (on behalf of Lesaffre Yeast Corporation), which is available in the docket via http://www.regulations.gov. There were no relevant comments received in response to the notice of filing.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, FFDCA section 408(b)(2)(D) requires that EPA consider “available information concerning the cumulative effects of [a particular pesticide's] . . . residues and other substances that have a common mechanism of toxicity.” FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

EPA evaluated the available toxicity and exposure data on cerevisane (cell walls of Saccharomyces cerevisiae strain LAS117) and considered their validity, completeness, and reliability, as well as the relationship of this information to human risk. EPA also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Cerevisane is a whole cell wall extract of Saccharomyces cerevisiae strain LAS117. Saccharomyces cerevisiae is a common source of yeast, commonly used in the manufacturing of beers, wines, and liquor intended for human consumption because of its ability to ferment sugars into ethanol.

Cerevisane is a systemic resistance inducer (SRI) that aids in the up-regulation of plant defense genes resulting in physiological changes, including the reinforcement of plant cell walls and the production of antimicrobial compounds, e.g., hydrogen peroxide (an oxidant active against a wide variety of microorganisms) and phytoalexins (which inhibit mycelium growth and the fruitification of susceptible fungal pathogens), that impart resistance against fungal diseases.

Based on the data submitted in support of this petition and the Agency's assessment of that data, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children from aggregate exposures to a cerevisane (cells walls of Saccharomyces cerevisiae strain LAS117). This conclusion is based on the lack of toxicity associated with this pesticide chemical residue; the available toxicology data indicate that the active ingredient is of low toxicity and is not a developmental toxicant or a mutagen; therefore, no toxicological endpoints were identified. Accordingly, given the lack of threshold effects, the FQPA Safety Factor need not be retained. The Agency has conducted a qualitative assessment of exposure and determined that dietary and drinking water exposure from the pesticide use is expected to be negligible since significant residues are not expected due to low application rates and rapid degradation rates following application. Non-occupational exposures are not expected since cerevisane (cells walls of Saccharomyces cerevisiae strain LAS117) is not intended for residential use. Given the lack of toxicity, this minimal exposure aggregated with the background levels already present in commonly consumed foods that contain baker's yeast, or beer, wine, and liquor do not pose a risk of concern. A full explanation of the data upon which EPA relied, its risk assessment, and other supporting documents is available in the docket for this action as described under ADDRESSES.

Based on its safety determination, EPA is establishing an exemption from the requirement of a tolerance for residues of cerevisane (cell walls of Saccharomyces cerevisiae strain LAS117) in or on all food commodities when used in accordance with label directions and good agricultural practices.

An analytical method is not required for enforcement purposes due to the lack of concern about safety for cerevisane (cell walls of Saccharomyces cerevisiae strain LAS117) at any exposure level.

This action establishes an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to EPA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997); nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance exemption in this action, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, EPA has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, EPA has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

This action does not involve any technical standards that would require EPA's consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows: