Federal Register Vol. 83, No.177,

This final rule, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This final rule is issued under Marketing Agreement and Order No. 929, as amended (7 CFR part 929), regulating the handling of cranberries grown in the States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York. Part 929 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Cranberry Marketing Committee (Committee) locally administers the Order and is comprised of growers of cranberries operating within the production area, and a public member.

The Department of Agriculture (USDA) is issuing this final rule in conformance with Executive Orders 13563 and 13175. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this final rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Order provisions provide that the Committee may recommend and implement, subject to USDA approval, volume control regulation which would decrease the available supply of cranberries whenever the Secretary of Agriculture (Secretary) finds that “such regulation will tend to effectuate the declared policy of the Act.” Accordingly, this rule establishes a marketable quantity and grower allotment percentage for cranberries produced during the 2018-19 crop year, beginning September 1, 2018, and ending August 31, 2019.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This final rule establishes a marketable quantity and grower allotment percentage for the 2018-19 crop year. This rule is the result of the Committee's recommendations made during its August 4, and August 31, 2017, meetings, and a February 18, 2018, email vote. This rule establishes a marketable quantity of 7.275 million barrels and a grower allotment percentage of 75 percent. This action also allows handlers to process up to 50 percent of the excess cranberries they receive above their growers' allotment, provided they divert an equivalent amount of 2018-19 cranberry processed products. It also establishes an exemption for organically grown cranberries, specifies handlers subject to the regulation, revises the definition of outlets for excess fruit, and revises dates by which certain actions are due.

The Committee also recommended an exemption for organically grown cranberries, and an exemption of 2,500 barrels for each grower. After much consideration, USDA determined the recommended grower exemption of 2,500 barrels should be revised. Consequently, this final rule does not include the exemption of 2,500 barrels for each grower and instead exempts handlers that processed less than 125,000 barrels during the 2017-18 fiscal year, or handlers that did not have carryover inventory at the end of the 2017-18 fiscal year. Accordingly, growers delivering their fruit to exempt handlers are not subject to the allotment.

In addition, in a February 18, 2018, vote by email, the Committee voted unanimously to adjust reporting dates associated with the allotment regulation. These changes were previously discussed and supported by the Committee at a meeting on April 22, 2014, as part of the consideration of another volume regulation for which a rule was not issued.

The recommendations included in this rule will adjust supply to more closely meet market demand, improve grower and handler returns, and help reduce inventory.

Sections 929.49 and 929.52 provide, in part, authority to establish a marketable quantity and grower allotment percentage. Section 929.14 defines marketable quantity as the volume of cranberries needed to meet market demand and provide for an adequate carryover into the next season. The allotment percentage is derived by dividing the marketable quantity by the total of all growers' sales histories. Section 929.48 outlines procedures for computing a grower's sales history.

Section 929.49 also prescribes how the grower allotment percentage is calculated and distributed to growers and handlers. Each grower's allotment volume is calculated by multiplying the individual's sales history by the allotment percentage. A grower's allotment is the total volume a handler may purchase from, or handle on behalf of, that grower during a year of volume regulation. Cranberries received by a handler that exceed the sum of their growers' allotments can be used to fill unused allotment. Any remaining cranberries are defined as excess cranberries as defined in § 929.59, which also outlines the procedures and dates by which excess cranberries are to be diverted. Section 929.61 prescribes outlets for excess cranberries, which are further defined in § 929.104.

In addition, § 929.50 provides authority for the transfer of sales history and annual allotment. Section 929.51 requires the Committee to consider market conditions, including supply and demand, prior to recommending an allotment percentage, and that any recommendation be made by March 1. Section 929.58(a) provides the authority to exempt from any or all requirements the handling of cranberries in such minimum quantities as the Committee, with the approval of the Secretary, may prescribe. Section 929.58(b) provides, in part, the authority to exempt from any or all requirements the handling of cranberries of such forms or types, including organic cranberries, as the Committee, with the approval of the Secretary, may prescribe.

Domestic cranberry production has been increasing over the past few years, up from 8.0 million barrels in 2012 to 9.6 million barrels in 2016. During the last few years, demand has remained relatively flat, and has not kept pace with the increases in supply. This has led to increasing levels of inventories. Ending inventory levels increased from 5.8 million barrels in 2012 to 9.7 million barrels in 2016.

Demand for cranberries is inelastic, meaning changes in consumer price have a minimal effect on total sales. However, grower prices are very sensitive to changes in supply. Consequently, higher inventory levels place downward pressure on grower prices for cranberries and reduce grower returns. Data reviewed by the Committee indicates that the price per barrel received by some growers has fallen from $30 a barrel in 2011 to $10 a barrel in 2016. With the cost of production estimated at approximately $35 a barrel, for many growers returns have fallen below the cost of production.

The Committee met on August 4, 2017, and again on August 31, 2017, and discussed the estimated levels of supply and demand and how market conditions were impacting the industry. The Committee discussed the approximate levels of production for the 2017-18 season, forecasting production at approximately 9.1 million barrels. Carryover inventory was estimated at approximately 9.9 million barrels and foreign acquired cranberries were expected to provide an additional 2.1 million barrels, for a total available supply of approximately 21.1 million barrels for the year. After accounting for shrinkage, the Committee agreed on an adjusted supply of 20.4 million barrels for the 2017-18 crop year.

Using these numbers, with estimated sales of 9.5 million barrels for 2017-18, the Committee calculated a potential carryover for the 2018-19 season of 10.9 million barrels. This is an approximately one million barrel increase from the carryover inventory for the 2017-18 crop year. Based on these numbers, carryover inventory for the 2018-19 crop year would be approximately 115 percent of annual sales.

In discussing market conditions, the Committee recognized that sales have been relatively flat. The Committee also noted supply has been exceeding demand by about one million barrels a year. Using crop and sales estimates similar to 2017-18, and the estimated carryover from the 2017-18 season of 10.9 million barrels, the potential carryover supply at the end of the 2018-19 crop year could increase by another one million barrels to 11.9 million if no action is taken to regulate supply.

In reviewing these numbers, the Committee agreed the industry is faced with a large inventory that continues to build. To address the problems associated with oversupply and to try to stabilize grower returns, the Committee discussed the need to establish volume regulation. The Committee considered several options, including establishing free and restricted percentages under a handler withholding for the 2017-18 crop year, establishing a grower allotment for the 2018-19 season, or recommending both regulations.

Considering the levels of inventory and low grower returns, the Committee voted to recommend a handler withholding, setting the free and restricted percentages of 85 percent and 15 percent, respectively, for the 2017-18 season. AMS agreed with the Committee's analysis and recommendation and published the rule establishing these percentages in the Federal Register on April 4, 2018 (83 FR 14350). The Committee estimated that the 15 percent restriction would remove approximately one million barrels from inventory, helping to maintain inventories at current levels. While the Committee recognized a small restriction would not immediately balance supply with demand, even a small restriction would remove a portion of the volume from the market and help prevent an additional increase in inventory.

With the handler withholding removing an estimated one million barrels from the market, the industry would still have approximately 10 million barrels remaining in inventory. Given the static demand and anticipated market conditions for the 2018-19 fiscal year, the Committee also recommended establishing a grower allotment percentage for the 2018-19 fiscal year.

The Committee discussed various levels of restriction, being sensitive to the impact volume control could have on small growers and handlers. Some small handlers are able to sell all their production each year and do not maintain an inventory. Several Committee members stated a large restriction would place a hardship on these small handlers. However, the Committee also recognized that volume control measures could help increase grower returns by helping to align supply with demand.

In addition, establishing an allotment regulation can help growers reduce production costs. Growers could choose to take bogs out of production, or reduce inputs such as fertilizer and pesticides in order to reduce their production volume to match their allotment. These and other steps could help growers reduce their costs of production for the 2018-19 crop.

Based on the information available, the Committee recommended establishing a marketable quantity of 7.275 million barrels and an allotment percentage of 75 percent for the 2018-19 crop year. With volume regulation, returns are expected to be higher than without volume regulation. This increase is beneficial to all growers and handlers regardless of size, and enhances total revenues in comparison to no volume regulation. Establishing an allotment percentage allows the industry to help stabilize supplies. This rule could remove a potential 2 million barrels from supply, reduce industry inventory, and increase industry returns. This rule adds a new § 929.253 to establish the marketable quantity and grower allotment.

The Committee also recommended that handlers have the option to receive cranberries over their grower allotment and process up to 50 percent of the excess cranberries received rather than divert them in fresh form, as currently required. Handlers that do so need to divert an amount of 2018-19 cranberry processed products equivalent to the volume of excess cranberries processed.

The Committee made this recommendation recognizing that processing fresh fruit to produce one of its top-selling items, sweetened dried cranberries (SDC), results in juice concentrate as a by-product. A significant amount of current inventory is in the form of juice concentrate. By allowing handlers to process a portion of the excess cranberries they receive, more fresh cranberries are available to produce products requiring whole cranberries, such as SDC, and the diversion of concentrate will help prevent additional build-up of inventory. Handlers still have the option to divert fresh berries as excess supply.

To allow for the diversion of processed products, § 929.104(b), which currently prohibits the handling of excess fruit, is removed. To ensure the diversion of processed products in lieu of fresh cranberries is correctly accounted for, the final rule for volume regulation for the 2017-18 season (83 FR 14350) adds guidance under § 929.107 along with a conversion table. The table recognizes different conversion equivalencies of cranberries to processed product based on the volume of Brix concentrate.

Brix is the method for measuring the amount of sugar contained in the cranberry products, and the industry average for concentrate is 50 Brix. The Committee acknowledged that the Brix level can vary depending on the growing region and farming practices. The table helps ensure that the diversion of processed product in lieu of fresh berries is applied equitably among all handlers.

Using the conversion table, handlers can determine the amount of cranberry concentrate they need to divert, in lieu of fresh berries, to cover the fresh cranberry equivalent of any excess cranberries processed. Juice concentrate should comprise the vast majority of processed product used for diversion. Should requests be made to use other processed products for diversion, conversion rates for those products will be provided by the Committee based on information provided by the requesting handler.

For example, a grower with a sales history of 1,000 barrels will have an allotment of 750 barrels (1,000 × .75). If the grower delivered all 1,000 barrels to the handler, the handler will have 250 barrels of excess fruit. Under this final rule, the handler could divert 250 barrels of fresh fruit to approved outlets or divert half (125 barrels of fresh fruit) and process half, diverting a 125 barrel equivalent in 2018-19 processed product.

The Committee also recommended changes to date requirements currently specified in the Order. Section 929.59(b) currently states that “prior to January 1, or such other date as recommended by the committee and approved by the Secretary, handlers holding excess cranberries shall submit to the committee a written plan outlining procedures for the systematic disposal of such cranberries in the outlets prescribed in § 929.61.” The Committee agreed the date for submitting disposal plans should be extended in order to give handlers more time to consider how to divert their excess cranberries. Therefore, the Committee recommended changing the deadline prescribed in § 929.59(b) from January 1 to March 1 of the regulated season.

Section 929.59(c) states that “prior to March 1, or such other date as recommended by the committee and approved by the Secretary, all excess cranberries shall be disposed of pursuant to § 929.61.” Given the change in the due date for the diversion plans, the Committee agreed that this date should also be changed to provide handlers with enough time to comply with this requirement. Therefore, the Committee recommended changing the date by which diversion is to be completed from March 1 to August 31. AMS agrees with the Committee's analysis and recommendation and is issuing this rule to add a new § 929.159 to make these date changes.

Section 929.62(a) requires each grower to file a report with the Committee by January 15 of each year providing the following information: Total acreage harvested and whether owned or leased; total commercial cranberry sales in barrels from such acreage; the amount of acres either in production but not harvested, or taken out of production, and the reason(s) why; the amount of new or replanted acreage coming into production; the name of the handler(s) to whom commercial cranberry sales were made; and such other information as may be needed for implementation and operation of this section. Growers might not have all necessary information to complete the report by the current deadline. Therefore, the Committee recommended changing the grower reporting date from January 15 to March 1.

The Committee also recommended organically grown cranberries be exempt from this regulation as they serve a niche market and represent a very small portion of the total crop. All other cranberry production, including fresh cranberries, are subject to regulation under the grower allotment volume regulation.

To address the burden the volume regulation would have on small growers and handlers, the Committee also recommended providing an exemption of 2,500 barrels for all growers. Under the Committee's recommendation, the exemption would be applied following the calculation of a grower's allotment. However, after much consideration, USDA determined the exemption recommendation should be revised. Rather than provide an exemption of 2,500 barrels for each grower, this action exempts small handlers who processed less than 125,000 barrels from the allotment requirement. Further, handlers who did not have carryover inventory at the end of the 2017-18 fiscal year are also exempt from the allotment requirement. Accordingly, growers delivering their fruit to exempt handlers are not subject to the allotment.

These changes allow handlers who have matched their production with market demand to continue to serve their customer base and maintain their market share. Small growers also have the option of delivering their fruit to handlers who are not subject to the regulation. Handlers subject to the allotment percentage should be able to meet any market shortfalls by utilizing cranberries or cranberry products available in inventory. The provision allowing handlers to process a portion of their excess cranberries also helps provide some flexibility.

With this action, only those handlers carrying inventory are subject to meeting the allotment requirement. In reviewing the Committee's recommendation and other available industry information, USDA has determined that existing inventories in excess of 9 million barrels are putting the most downward pressure on returns to both growers and handlers. Consequently, this rule puts more focus on reducing the volume in inventory.

Section 929.125 provides authority for a grower to request a review by an appeals subcommittee if the grower is dissatisfied with his or her sales history calculation provided by the Committee. The grower must request the review within 30 days after receipt of the Committee's determination of sales history and must submit documentation showing why he or she believes the calculation is inaccurate. Within 15 days after notification of the appeals subcommittee's decision, if the grower is not satisfied with the decision, the grower may further appeal to the Secretary.

A grower may transfer all or part of their allotment to another grower, provided that the transferred allotment remains assigned to the same handler. Transfers of allotment between growers having different handlers may occur with the consent of both handlers. All such transfers have to be reported to the Committee. After all allotment transfers have occurred, any unused allotment would be transferred to the Committee. The Committee would then redistribute any unused allotment to handlers having excess cranberries in an amount proportionate to each handler's total allotment. These provisions help ensure that excess supply is utilized, to the extent possible, through unfilled allotment.

The Committee considered the estimated level of production and anticipated demand, and determined that without some action on the part of the Committee, inventory levels will continue to increase throughout the 2018-19 season. The Committee believes using the volume control authorities in the Order will help stabilize marketing conditions for cranberries by helping to adjust supply to meet market demand and improve grower returns.

Accordingly, this final rule establishes a grower allotment at 75 percent for the 2018-19 season. It also gives handlers the option to process up to 50 percent of the excess cranberries they receive above their growers' allotment, provided they divert an equivalent amount of 2018-19 cranberry processed products. This final rule also exempts organically grown cranberries, specifies handlers subject to the regulation, revises the definition of outlets for excess fruit, and revises dates by which certain actions are due.

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

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 1,100 cranberry growers in the regulated area and approximately 65 cranberry handlers subject to regulation under the Order. Small agricultural growers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).

According to industry and Committee data, the average grower price for cranberries during the 2016-17 season was $23.50 per barrel and total sales were approximately 9.5 million barrels. The value for cranberries that year totaled $223,250,000 ($23.50 per barrel multiplied by 9.5 million barrels). Taking the total value of production for cranberries and dividing it by the total number of cranberry growers provides an average return per grower of $202,955. Using the average price and utilization information, and assuming a normal distribution, the majority of cranberry growers receive less than $750,000 annually.

According to USDA's Market News report, the average free on board (f.o.b.) price for cranberries was approximately $30.00 per barrel. Multiplying the f.o.b. price by total utilization of 9.5 million barrels results in an estimated handler-level cranberry value of $285 million. Dividing this figure by the number of handlers (65) yields an estimated average annual handler receipt of $4.3 million, which is below the SBA threshold for small agricultural service firms. Therefore, the majority of growers and handlers of cranberries may be classified as small entities.

While cranberry production has continued to rise, demand has failed to keep pace, and inventories have been increasing. In an industry such as cranberries, product can be stored in inventory for long periods of time. Large inventories are costly to maintain, difficult to market, and have a price-depressing effect. When supply outpaces demand and results in high levels of inventories, grower and handler returns can be negatively impacted.

Demand for cranberries is inelastic, meaning changes in price have a minimal effect on total sales volume. However, grower prices are very sensitive to changes in supply. A grower allotment program results in a decrease in supply as handlers can only purchase a portion of a grower's production, which is based on the grower's past sales history. Even a small shift in supply can have a positive effect on grower prices. Therefore, using a grower allotment program to reduce supply should increase grower prices and revenues.

This final rule establishes a grower allotment of 75 percent for the 2018-19 crop year. It also allows handlers to process up to 50 percent of the excess cranberries they receive above their growers' allotment, provided they divert an equivalent amount of 2018-19 cranberry processed products. In addition, this rule exempts organically grown cranberries, specifies handlers subject to the regulation, revises the definition of outlets for excess fruit, and revises dates by which certain actions are due. These actions are designed to help stabilize marketing conditions, reduce burdensome inventories, and improve grower and handler returns. This rule revises §§ 929.104 and 929.105 and establishes new §§ 929.159 and 929.253. The authority for these actions is provided for in §§ 929.48, 929.49, 929.51, 929.52, 929.58, 929.59, 929.61, and 929.62. These changes are based on Committee recommendations from meetings on August 4 and August 31, 2017, and a February 18, 2018, email vote.

While these actions could result in some additional costs to the industry, the benefits are expected to outweigh them. The purpose of establishing an allotment percentage is to address oversupply conditions and to stabilize grower prices. The industry has a significant volume in inventory, and this has had a negative impact on grower and handler returns. Without volume control, inventories will likely continue to increase, further lowering returns.

Inventories have significantly increased since 2011. In 2011, existing inventories were around 4.6 million barrels. By the end of the 2016-17 season, inventories were approximately 9.9 million barrels, and by the end of the 2017-18 season, inventories are projected to be approximately 10.9 million barrels. Inventories as a percentage of total sales have also been increasing from approximately 50 percent in 2010 to approximately 103 percent in 2016, and could reach an anticipated 115 percent after the 2017-18 season. These inventories have had a depressing effect on grower prices, which for many growers have fallen below their cost of production.

Retail demand for cranberries is highly inelastic, which indicates changes in consumer prices do not result in significant changes in the quantity demanded. Consumer prices are also not significantly impacted by minor changes in cranberry supplies. Therefore, this action should have little or no effect on consumer prices and should not result in a reduction in retail sales. However, even a small shift in supply could increase grower and handler returns. The use of allotment percentages will likely have a positive impact on grower and handler returns for this crop year.

This rule will result in some fruit being taken off the market. However, a sufficient amount of fruit will still be available to supply all aspects of the market. In addition, allowing handlers the option to process up to 50 percent of the excess cranberries they receive above their growers' allotment, provided they divert an equivalent amount of 2018-19 cranberry processed products, provides handlers some additional flexibility and may help reduce inventories of juice concentrate, one of the largest segments of existing inventory.

There are also secondary outlets available for excess fruit, including foreign markets except Canada, charitable institutions, nonhuman food use, and research and development projects. While these alternatives may provide different levels of return than sales to primary markets, they play an important role for the industry. In addition, if demand is greater than anticipated, there are significant amounts of fruit in inventory that can be utilized to meet demand.

This action also exempts small handlers who processed less than 125,000 barrels in 2017-18 from the allotment percentage. Consequently, small handlers whose acquired volume is 125,000 barrels or less are exempt from the allotment volume restriction. This will reduce the burden the volume restriction has on small handlers and their growers.

In addition, handlers who did not have carryover inventory at the end of the 2017-18 fiscal year are also exempt from the allotment percentage. This allows handlers that have matched their production with market demand to continue to serve their customer base and maintain their market share. Handlers subject to the restriction should be able to meet any shortfalls by utilizing cranberries or cranberry products they have in inventory.

Further, making the recommendation to regulate the volume handled under a grower allotment program could result in some cost savings for growers depending upon what actions they may take to adjust supply.

As the allotment represents a percentage of the grower's sales history, the costs, when applicable, are proportionate and should not place an extra burden on small entities as compared to large entities. Likewise, growers and handlers, regardless of size, benefit from the stabilizing effects of this action.

One alternative considered by the Committee was not to impose a volume regulation during the 2018-19 crop year. However, Committee members believed that inventory levels were such that some form of volume control was necessary to help stabilize marketing conditions.

The Committee also considered other allotment percentage levels. However, some members were concerned that setting an allotment percentage that was too restrictive could negatively impact small growers. The Committee also considered not recommending a provision to allow a percentage of excess cranberries to be processed into cranberry products. The Committee determined that allowing handlers to process up to 50 percent of the excess cranberries they receive above their growers' allotment would provide additional volumes of fresh cranberries for processing and would provide handlers some flexibility while not adding additional juice concentrate to the existing inventory levels. Therefore, for the reasons mentioned above, these alternatives were rejected by the Committee.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0189, Fruit Crops. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This final rule will not impose any additional reporting or recordkeeping requirements on either small or large cranberry growers or handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

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

In addition, the Committee's meetings were widely publicized throughout the cranberry industry and all interested persons were invited to attend the meetings and participate in Committee deliberations on all issues. Like all Committee meetings, the August 4, 2017 and August 31, 2017 meetings were public meetings and all entities, both large and small, were able to express views on these issues.

A proposed rule concerning this action was published in the Federal Register on April 27, 2018 (83 FR 18462). Copies of the proposed rule were sent via email to Committee members and cranberry handlers. Additionally, the rule was made available through the internet by USDA and the Office of the Federal Register. A 30-day comment period ending May 29, 2018, was provided to allow interested persons to respond to the proposal.

During the comment period, 24 comments were received in response to the proposal. Of the comments received, 12 were in support of the regulation, but also requested some changes to the proposal, 11 were opposed to the regulation, and 1 took no position.

Comments: In the comments that supported volume regulation, but with changes from what was included in the proposed rule, the 12 commenters stated the volume regulation was a way to reduce supply and benefit the industry. These 12 comments also specifically supported the handler's flexibility to divert excess fruit, stating it would help handlers maximize the value of the fruit.

The 12 comments also suggested handlers be allowed to divert 100 percent of their excess fruit in processed form, rather than the 50 percent allowed under the proposed rule. They stated that with a significant amount of the current inventory in the form of juice concentrate, this would help prevent additional build-up of inventory.

Response: While a significant portion of existing inventory is concentrate, not all handlers produce concentrate or concentrate as a byproduct of SDC production. Allowing the use of 50 percent of 2018-19 cranberry products to meet the excess fruit restriction recognizes the need to reduce cranberry concentrate inventory, while also addressing the overall oversupply facing the industry.

Comments: Eleven of these commenters also expressed that the exemption for small handlers does not help small growers. These commenters asked USDA to reconsider its decision to do away with the 2,500 barrel exemption for each grower as recommended by the Committee.

Response: In reviewing the Committee's recommendation and other available industry information, USDA has determined that existing inventories in excess of 9 million barrels are putting the most downward pressure on returns to both growers and handlers. Consequently, this rule puts more focus on reducing the volume in inventory, which should benefit both small growers and small handlers.

Rather than provide an exemption of 2,500 barrels for each grower, an action which would have exempted nearly 2.75 million barrels, this action exempts small handlers who processed less than 125,000 barrels during the 2017-18 fiscal year from the allotment requirement. Small handlers processing less than 125,000 barrels make up nearly 88 percent of all handlers, yet combined, account for less than 10 percent of the total volume of cranberries processed. Based on Committee data, these small handlers were holding little or no volume in inventory at the end of the 2016-17 season. USDA's revisions to the Committee's proposal therefore exempts these handlers from the allotment requirement. Although focused on handlers, this change is expected to have a positive impact on grower returns by reducing overall supply in the market. Additionally, small growers would have the option of delivering their fruit to handlers who are not subject to the regulation.

In addition, handlers who did not have carryover inventory at the end of the 2017-18 fiscal year are also exempt. USDA believes that this will allow handlers who have matched their production with market demand to continue to serve their customer base and maintain their market share. Only those handlers carrying inventory will be subject to meeting the allotment requirement.

Handlers subject to the allotment percentage should be able to meet any market shortfalls by utilizing cranberries or cranberry products available in inventory. The provision allowing handlers to process a portion of their excess cranberries also helps provide some flexibility.

Comment: Another comment stated they did not support using 2017 deliveries to determine the 2018 exemptions, and that the no carryover inventory exemption is flawed.

Response: Regarding using 2017-18 information to determine 2018-19 exemptions, this is a grower's production allotment volume regulation. As such, it is important for growers to have an idea of what their allotment will be for the upcoming season. Growers can then use that information to make determinations regarding their production. By using the information from 2017-18, USDA provided growers with exemptions they could use to determine whether their production would be subject to the allotment, or the potential opportunity to choose to deliver their production to an exempt handler.

Comments: Of the 11 comments in opposition of the proposed rule, five support the reinstatement of the 2,500 barrel exemption for each grower as discussed above. Four stated the proposed change would do little or nothing to accomplish USDA's stated goal of controlling the overage of cranberry concentrate.

Response: Concentrate represents a large portion of existing inventory. However, at the end of the 2016-17 fiscal year, of the estimated 9.7 million barrels in inventory, approximately 4.2 million barrels were frozen berries, while approximately 3.7 million barrels were concentrate. The rule provides for the diversion of processed product to meet 50 percent of the restriction as a way to reduce the inventory of concentrate. However, reducing overall supply, including whole fruit, is also important in addressing the current level of inventory.

Comments: Six comments stated that the proposed regulation would negatively impact independent growers and another stated that this would hurt small growers. Four commenters stated this regulation would adversely affect midsize handlers.

Response: While these actions could result in some additional costs to the industry, the allotment percentage established by this rule applies uniformly to all those regulated, regardless of size. A grower's allotment is the total volume a handler may purchase from, or handle on behalf of, that grower during a year of volume regulation. Each grower's allotment volume is calculated by multiplying the individual's sales history by the allotment percentage. As the allotment percentage is applied to each grower's sales history, the costs, when applicable, are proportionate and should not place an extra burden on small entities as compared to large entities.

Further, the benefits are expected to outweigh any additional costs and positively impact all growers and handlers, regardless of size. The industry has a significant volume in inventory, and this has had a negative impact on all grower and handler returns. If steps are not taken to reduce the level of inventory, these downward pressures will persist. The purpose of establishing the allotment percentage is to address the oversupply conditions which are negatively impacting industry returns. Generally, reducing supply levels results in prices increasing for growers and handlers. Therefore, lowering inventory levels is expected to result in positive returns for the entire industry.

Comments: Four comments stated the shortage in the 2017 crop makes the grower allotment unnecessary and harmful, and the rule will create an artificial spike in market price for finished goods. Another commenter questioned regulating cranberries when Canadian production is not subject to the allotment.

Response: In reviewing the Committee's recommendation and other available industry information, USDA has determined that existing inventory is putting the most downward pressure on returns to both growers and handlers. Even with the shortfall in the 2017 crop and the handler withhold established for the 2017-18 season, the industry will enter the 2018-19 season with inventory levels that will continue to negatively affect industry returns. In addition, existing inventory, combined with an additional 9 million barrels of anticipated 2017 domestic production, will provide a more than ample domestic supply to meet sales requirements. Consequently, this regulation should have little effect on consumer prices. Moreover, while the Order does not regulate the volume of imports, given the current levels of available domestic supply, this rule is not expected to lead to an increase in imported product.

Comment: One comment in opposition to the proposal stated it would be implemented too late, as growers have already made their production decisions. It further stated the rule should be implemented next season when they have more time to make economic decisions relating to their crop.

Response: Utilizing a production allotment allows growers to make adjustments to reduce their costs. Given the oversupply, it is important to take action on this issue. Further, growers have been aware of this recommendation for some time, and the proposed rule on this action published on April 27, 2018.

Comment: Another commenter stated the proposed regulation originated from the major cooperative.

Response: As stated above, the proposal for production allotment was discussed and ultimately recommended by the Committee for USDA's consideration at the August 4, 2017 and August 31, 2017 meetings. The Committee is comprised of growers of cranberries operating within the production area and a public member, and all meetings are open to industry and public participation.

Comment: The one comment taking a neutral position on the proposed action also indicated support for reestablishing the 2,500-barrel exemption for each grower, as recommended by the Committee, should USDA decide to go forward with the regulation.

Response: For the reasons given above, the 2,500-barrel exemption for growers will not be reestablished.

Comments: Additional comments were received that addressed issues outside the scope of the proposed rule.

For the reasons discussed above, no changes will be made to the rule as proposed, based on the comments received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant matter presented, including the information and recommendation of the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

For the reasons set forth in the preamble, 7 CFR part 929 is amended as follows:

The revision reads as follows:

The Bureau first published the procedures used by the public to obtain information from it under the Freedom of Information Act, the Privacy Act of 1974, and in legal proceedings in an interim final rule on July 28, 2011, 76 FR 45371 (Jul. 28, 2011). This was followed by a final rule on February 15, 2013, 78 FR 11483 (Feb. 15, 2013). Based on its experience over the last several years, the Bureau published a notice of proposed rulemaking on August 24, 2016, 81 FR 58310 (Aug. 24, 2016), that proposed to amend the rule to clarify, correct, and amend certain provisions of the rule, and it solicited comments on the proposal. The Bureau is issuing this final rule in response to the comments. The Bureau's August 24, 2016 notice of proposed rulemaking also proposed to amend the Bureau's rule regarding the confidential treatment of information obtained from persons in connection with the exercise of its authorities under Federal consumer financial law. This final rule only pertains to portions of the Bureau's proposal related to the Freedom of Information Act, the Privacy Act of 1974, and requests for Bureau information in legal proceedings.

The final rule revises subparts A, B, C, and E of section 1070 of title 12 of the Code of Federal Regulations.

The revisions to subpart A address procedures related to the certification of authenticity of Bureau records and the service of summonses or complaints on the Bureau. Subpart A also contains definitions of terms used throughout the remainder of the part, and the final rule revises the definition of “Chief FOIA Officer.”

Subpart B implements the Freedom of Information Act, 5 U.S.C. 552 (the FOIA). The Bureau has revised this subpart to clarify its practices, provide additional flexibility for requesters, and reflect recent changes made to the FOIA by the FOIA Improvement Act of 2016 (Pub. L. 114-185). Additionally, these changes streamline the Bureau's process for assessing FOIA fees and notifying requesters of such fees. These changes will allow the Bureau to process FOIA requests more efficiently and provide records to requesters more quickly. The Bureau has made some minor revisions to its proposal in response to comments.

The final rule does not revise subpart D.

Subpart C (sometimes referred to as Touhy Regulations) sets forth procedures for requests for information from the Bureau in connection with legal proceedings between others, and describes the Bureau's procedures for considering such requests or demands for official information. The Bureau has made organizational and clarifying revisions to the provisions previously set forth in this subpart. The Bureau received no comments on this subpart and it finalizes the proposed subpart without modification.

Subpart E contains the Bureau's rule implementing the Privacy Act of 1974, 5 U.S.C. 552a. The Bureau has revised the subpart to clarify the Chief Privacy Officer's authority, to provide additional flexibility for requestors, and to make technical corrections. The Bureau received no comments on this subpart and it finalizes the proposed subpart without modification.

The Bureau received eight comment letters that pertained to its proposal regarding FOIA implementation. These included three comment letters from industry trade associations; and one comment letter each from an individual; an opposition research and communication organization; a financial institution; a consumer advocacy organization; and a Federal agency with responsibilities related to implementation of the FOIA. These comment letters largely proposed minor modifications to the proposed rule in order to clarify it and/or facilitate public access to information. The Bureau also received input from another Federal agency during the comment period. These suggestions primarily focused on procedural and technical changes to the proposed rule. The Bureau made some changes to the final rule based on this input.

The Bureau received no comment letters regarding its proposed revisions to subpart C or subpart E, regarding its Touhy Regulations and implementation of the Privacy Act of 1974, respectively.1

The Bureau proposed the rule pursuant to its authority under (1) Title X of the Dodd-Frank Act, 12 U.S.C. 5481 et seq., including (a) Section 1022(b)(1), 12 U.S.C. 5512(b)(1); (b) Section 1022(c)(6)(A), 12 U.S.C. 5512(c)(6)(A); and (c) Section 1052(d), 12 U.S.C. 5562(d); (2) the Freedom of Information Act, 5 U.S.C. 552; (3) the Privacy Act of 1974, 5 U.S.C. 552a; (4) the Right to Financial Privacy Act, 12 U.S.C. 3401 et seq.; (5) the Trade Secrets Act, 18 U.S.C. 1905; (6) 18 U.S.C. 641; (7) the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and (8) the Federal Records Act, 44 U.S.C. 3101. The Bureau received no comments on the applicability of these statutes, and it promulgates the final rule pursuant to these authorities.

The Bureau had proposed no change to the defined term, “Chief FOIA Officer.” However, a Federal agency noted that the Bureau's status quo definition permitted a broader delegation of the Chief FOIA Officer's authority than is permitted by the FOIA. The previous definition allowed the Chief Operating Officer to delegate the Chief FOIA Officer's authority to “any employee,” but the FOIA requires that the Chief FOIA Officer be at the assistant secretary level or above. The Bureau agrees that this provision allowed a broader delegation of authority than is permissible under the FOIA and has removed the phrase “or any CFPB employee to whom the Chief Operating Officer has delegated authority to act under this part” from the final rule. The Bureau believes that this provision, in conjunction with § 1070.2(d), provides the Bureau with the necessary flexibility to delegate some of the responsibilities of the Chief FOIA Officer to other CFPB employees without delegating more authority than is permissible under the FOIA.

Section 1070.3(b) authorizes the Bureau's Chief Operating Officer to certify the authenticity of any Bureau record or any copy of such record. The Bureau proposed revising the rule to clarify that the Chief Operating Officer can also certify the absence of a record. Such certification is contemplated in Rule 44 of the Federal Rules of Civil Procedure and Rule 902 of the Federal Rules of Evidence. See also Federal Rule of Evidence 803(10). The Bureau received no comments regarding this proposal, and it finalizes the proposal without modification.

The Bureau proposed moving § 1070.31—which provides the process for serving the Bureau with summonses or complaints—to a new section in subpart A for clarity, in order to separate the rule governing service when the Bureau is a party from the remaining provisions in subpart C, which deal with requests for information for other proceedings. In addition, the Bureau proposed revising paragraph (d)'s requirement that documents be “stamped” “Service Accepted for Official Capacity Only” by replacing the word “stamped” with the word “marked.” This proposal was intended to clarify that the documents may be labeled using a variety of methods. The Bureau received no comments regarding these proposals, and it finalizes them without modification.

The Bureau received several general comments concerning its proposed changes to the regulations implementing the FOIA and the Bureau's FOIA process. Some commenters expressed support for the Bureau's proposed changes to the extent that they would expedite the FOIA process. Some of these commenters also raised concerns about the timeliness of the Bureau's FOIA process and its commitment to openness and transparency. The Bureau remains committed to open government and strives to be a leader by being transparent with respect to its own activities. In addition, the Bureau will continue to improve its FOIA process to ensure that all requests are responded to in a timely fashion.

The Bureau also made several technical and typographical revisions to the rule in response to comments, including updating cross-referenced provisions, ensuring consistent spelling of certain terms, and ensuring the consistent use of terminology throughout the rule.

Section 1070.11(a)(2) identifies a category of information and records that the FOIA requires Federal agencies to make publicly available. The Bureau proposed to remove the phrase “and copying” and replace it with “in an electronic format.” The Bureau proposed similar revisions to § 1070.13. These changes are required by the FOIA Improvement Act of 2016. The Bureau received no comments on this proposal and it finalizes the proposal without modification.

Section 1070.11(b) says that, even if a FOIA exemption applies to requested information or records, the Bureau has discretion to disclose it to the extent that the disclosure is not otherwise precluded by law. The paragraph further notes that such disclosures are not precedential. The Bureau proposed no revisions to this paragraph. However, another Federal agency suggested that the phrase “but is merely an indication that, in the processing of the particular request, the CFPB finds no necessity for applying the exemption” is unnecessary. The phrase at issue is contained in the part of § 1070.11(b) noting that the Bureau's decision to discretionarily disclose a record in one case has no precedential value in the processing of another request. The Bureau agrees that this phrase is unnecessary and has removed it from the final rule.

Section 1070.13 addresses the requirement that the Bureau make certain records available on its public website, and paragraph (d) addresses privacy-related redaction of those records. The Bureau proposed no revisions to this paragraph. However, one commenter noted that although § 1070.13(d) discusses redacting records in the Bureau's FOIA reading room for personal privacy, it does not mention any other FOIA exemptions. Although the commenter is correct that § 1070.13(d) does not mention any other FOIA exemptions, the Bureau does not believe any changes to this provision are warranted because § 1070.13(a) already informs requesters that documents published in the Bureau's FOIA reading room are “[s]ubject to the application of the FOIA exemptions and exclusions . . . .” The Bureau finalizes the provision in the final rule without modification.

Section 1070.14(b) specifies the form of FOIA requests, and it previously distinguished between requests made in writing and by electronic means. The Bureau proposed a technical change to this provision, to remove the phrase “or by electronic means” and add “as follows:” in its place. The Bureau also proposed changes to § 1070.14(b)(1) and (2) to clarify how requesters must submit FOIA requests to the Bureau. The Bureau proposed similar changes to the following sections: 1070.17(b)(1); 1070.21(c); and 1070.22(e)(1)(i). The Bureau received no comments on these proposals and it finalizes them without modification.

Section 1070.14(c) specifies the content of FOIA requests. Although the Bureau did not propose revisions to paragraphs (c)(1), (3), and (6), it received several suggestions from another Federal agency concerning these provisions. First, the agency suggested revising paragraph (c)(1) to say that a “FOIA request must describe the records that the requester seeks in sufficient detail.” The Bureau agrees and will make this edit as it is a core requirement of a perfected FOIA request.

The agency also suggested removing the phrase “[a]s a general rule” from the last sentence of paragraph (c)(1) because it is unnecessary. The Bureau agrees and has removed this text from the final rule.

Next, the agency suggested removing the part of paragraph (c)(3) that concerns requests to inspect records. The Bureau agrees that this provision is unnecessary and that, as a practical matter, requesters do not seek to inspect records prior to production. In response, the Bureau has removed the provision concerning the inspection of records and added a provision directing that the “request should state whether the requester wishes to receive the records in a specific format.”

Finally, the agency suggested changing paragraph (c)(6) to allow requesters to seek expedited processing at any time during the processing. The Bureau's rule previously required requesters to seek expedited processing with their initial requests. The agency noted that this provision could frustrate requesters by requiring them to withdraw and resubmit a request that includes a request for expedited processing. The Bureau agrees with the agency's suggestion, but has instead changed § 1070.17(b)(1) in the final rule to address this concern. As such, revision to § 1070.14(c)(6) is not necessary in response to this suggestion.

Section 1070.14(c)(4) provides that a FOIA requester should indicate in the request whether the requester is a commercial user, an educational institution, non-commercial scientific institution, representative of the news media or “other” requester, as those terms are defined in § 1070.22(b). The section also informs requesters that they may contact the Bureau's FOIA Public Liaison to seek assistance in determining the appropriate fee category. Previously, the provision only permitted the Bureau to use information provided to the FOIA Public Liaison by a requester for the purpose of determining the requester's fee category. The Bureau proposed to remove this limitation so that it could use this information for other purposes, such as aiding a requester in clarifying the scope of a request, assisting in identifying records sought by a requester, and helping to resolve disputes related to a request.

The Bureau received two comment letters regarding this provision. One commenter noted that the section included a fee category, “governmental entity,” which is not recognized under the FOIA and is not defined anywhere in the Bureau's regulations. The Bureau agrees and has removed this fee category from the final rule. Another commenter raised concerns about the removal of language limiting the purposes for which the FOIA Public Liaison could use information provided by a requester. The commenter suggested that the Bureau narrow its proposal to codify certain specified uses for which the FOIA Public Liaison could use the information. The Bureau declines to make this change. The purpose of this proposal was to provide the FOIA Public Liaison with additional flexibilities in using the information to assist requesters in the processing of their requests. The Bureau removed this provision with the goal of maximizing the FOIA Public Liaison's ability to assist requesters with the processing of their requests and it believes that placing restrictions on the FOIA Public Liaison will hamper those efforts. For the aforementioned reasons, the Bureau finalizes the proposal without modification.

Section 1070.14(c)(5) provides that if a requester seeks a waiver or reduction of fees associated with processing a request, then the request shall include a statement to that effect. The text previously included a statement that any request that does not seek a waiver or reduction of fees constitutes an agreement of the requester to pay all fees up to $25. The Bureau proposed to remove this language in light of other proposed fee-related revisions. Under the Bureau's proposed revisions to § 1070.22(d) and (f), FOIA requesters could still specify an upper limit on the fees that they are willing to pay to process a request and the Bureau would notify a requester of any potential fees beyond that limit before processing the request. The Bureau received no comments on this proposal and it finalizes the proposal without modification.

Section 1070.14(e) directs individuals who wish to inspect or obtain records pertaining to themselves to seek access to the records pursuant to the Bureau's regulations that implement the Privacy Act of 1974, in subpart E of the rule. The Bureau proposed no revisions to this provision. However, another Federal agency suggested that the Bureau directly reference its Privacy Act request identity verification procedures at § 1070.53(c) for first-party FOIA requests. It is the Bureau's practice to use the same identity verification procedures outlined in § 1070.53(c) for both Privacy Act requests and first-party FOIA requests, and such a change would codify the Bureau's current practice in its regulations. As such, the Bureau agrees with the commenter's suggestion and has made this change in the final rule.

Section 1070.14 instructs requesters on how to request records from the Bureau under the FOIA. The Bureau received a suggestion from another Federal agency suggesting that it make the FOIA Public Liaison available more broadly to assist requesters. The Bureau agrees with the commenter's suggestion and has added a new provision to its final rule, § 1070.14(g), which informs requesters that they can contact the FOIA Public Liaison to resolve any problems that arise during the processing of their requests. The Bureau believes that this change renders the reference to the FOIA Public Liaison in § 1070.14(c)(4) unnecessary and has removed it from the final rule.

Section 1070.15 addresses, among other things, the process by which the Bureau consults with other agencies regarding FOIA requests and/or refers FOIA requests to other agencies. The Bureau did not propose any revisions to this provision. However, one commenter noted that the Bureau separately proposed a new definition of “agency” in § 1070.2(a) that included entities that are not subject to the FOIA. Were § 1070.15 to be read in conjunction with this proposed definition, the rule would seem to allow the Bureau to refer FOIA requests to agencies that are not subject to the FOIA. Because the Bureau is not finalizing the proposed definitions in § 1070.2 in this final rule, this comment is moot.

In addition, a Federal agency suggested that the Bureau update and clarify its process for referrals and consultations, and that the Bureau allow for an additional process whereby the Bureau would coordinate with another agency when referral and consultation are not appropriate. The Bureau agrees with this suggestion and has added language to the final rule concerning referrals, consultations, and coordination. The changes to the rule clarify when it is appropriate for the Bureau to refer a request to, consult, or coordinate with another agency when processing a FOIA request. It also clarifies how the Bureau will document referrals and notify requesters when the Bureau has decided to refer a request to another agency.

Section 1070.16(d) addresses circumstances where the Bureau requires an extension to respond to a FOIA request. The Bureau proposed no revisions to this provision. However, one commenter suggested that the Bureau add language to § 1070.16(d) stating that it will notify requesters of the availability of the services provided by the Bureau's FOIA Public Liaison and the National Archives and Records Administration (NARA), Office of Government Information Services (OGIS) when the Bureau requires an extension due to “unusual circumstances” under this provision. The Bureau agrees with this suggestion and has revised the final rule to incorporate this change.

In addition, a Federal agency suggested that the Bureau remove several of the references to FOIA appeals in this paragraph. Although “unusual circumstances” may apply to the processing of a FOIA appeal, the agency pointed out that in such circumstances the Bureau would not give the requester an opportunity to modify the scope of the appeal. The Bureau agrees with this suggestion and has implemented it in the final rule, as this part of the paragraph is intended to apply to requests, not FOIA appeals.

Section 1070.17(b) instructs requesters on how to request expedited processing of a FOIA request. The Bureau proposed no revisions to this section. However, as explained above with respect to § 1070.14(c), in response to a suggestion from another Federal agency, the Bureau has revised § 1070.17(b)(1) of the final rule to state that requesters may request expedited processing at any time during the processing of their requests.

In addition, the Federal agency recommended that the Bureau revise § 1070.17(b)(2)(ii) to clarify what a requester must show to obtain expedited processing of the requested records. The Bureau agrees and has revised the rule accordingly. The FOIA provides for expedited processing of a request upon a showing of a “compelling need,” which includes a request by a “person primarily engaged in disseminating information” where there is an “urgency to inform the public concerning actual or alleged Federal Government activity.” 5 U.S.C. 552(a)(6)(E). The rule did not previously explain what requesters must show to demonstrate that they are persons “primarily engaged in disseminating information.” The revised rule clarifies that a requester who is not a full-time member of the media must establish that the requester is a person “whose primary professional activity or occupation is information dissemination.” The revised rule also informs requesters that the existence of numerous articles on a given subject can be helpful in establishing that there is an “urgency to inform” the public on the topic of the request.

Section 1070.17(c) states that the Bureau will decide requests for expedited processing within ten calendar days of its receipt of the request, and that it will notify the requester of its decision in writing. The Bureau proposed no revisions to this section. However, one commenter suggested that the Bureau revise the provision to require the Bureau to process requests for expedited processing within five business days, and to require the Bureau to provide requested records within three business days of granting a request for expedited processing. The Bureau declines to adopt this recommendation. The current rule requires the Bureau to decide whether to grant a request for expedited processing in ten calendar days, which is what the FOIA requires. Additionally, the Bureau notes that, as reflected in its most recent Annual FOIA Report, the average amount of time it takes the Bureau to adjudicate a request for expedited processing is one day.

The Bureau also declines to commit itself to releasing requested records within three business days of granting a request for expedited processing. When the Bureau grants a request for expedited processing, it processes the request as quickly and efficiently as possible. As noted above, the Bureau, on average, adjudicates requests for expedited processing in one day. Processing a request within three days after expedited processing is granted will not be feasible in many cases, particularly in cases involving a large number of responsive records.

For the aforementioned reasons, the Bureau finalizes the provision without modification.

Section 1070.18(a) requires the Bureau to acknowledge its receipt of FOIA requests. The provision previously created this requirement only for perfected requests. A Federal agency recommended that the Bureau delete the word “perfected,” thus requiring the Bureau to also acknowledge and provide requesters with tracking numbers for requests that have not been perfected. The Bureau agrees with this recommendation. This is the Bureau's current practice, and it has revised the final rule to adopt this suggestion.

Section 1070.18(a)(4) specifies what fee-related information the Bureau will include in acknowledgement letters it sends to requesters. The Bureau proposed to make a technical change to this provision, removing the phrase “(of not less than $25)” to account for the proposed revisions to fee-related provisions in § 1070.22(d) and (f). The Bureau received no comments on this proposal and it finalizes the proposal without modification.

Section 1070.18(b)(2) addresses the Bureau's response to a request that has been granted in full or in part. The Bureau proposed no revisions to this provision. However, a Federal agency recommended that the Bureau revise § 1070.18(b)(2) to notify requesters that they can seek assistance from the Bureau's FOIA Public Liaison when the Bureau grants a request in full or in part. The Bureau agrees with this recommendation and has revised the final rule to incorporate it.

Section 1070.18(b)(4) addresses the Bureau's response to a request that it determines should be denied in whole or in part. The Bureau proposed to add a new provision at § 1070.18(b)(4)(iv) requiring it to inform requesters of the right to seek dispute resolution services from the Bureau's FOIA Public Liaison or OGIS. The Bureau also proposed to renumber the existing provisions under § 1070.18(b)(4) to accommodate this change. The Bureau noted in its proposal that this change is required by the FOIA Improvement Act of 2016. The Bureau received no comments on this proposal and it finalizes the proposal without modification.

The Bureau proposed a new paragraph in § 1070.18 to inform requesters about the resources available to resolve any disputes that may arise during the request process. These resources are the Bureau's FOIA Public Liaison and mediation services provided by OGIS. One commenter suggested that the Bureau remove a provision in § 1070.18(c)(2) stating that the Bureau will not “defer to OGIS mediation decision in particular cases.” The commenter reasoned that this provision is not necessary because OGIS does not issue decisions. The Bureau agrees and it has revised the final rule to incorporate this recommendation.

The Bureau proposed a new paragraph to inform requesters that they may request records in a particular format. Under this proposal, the Bureau would provide records in a requested format when the requested format can readily be reproduced from the original file. The Bureau received no comments on this proposal and it finalizes the proposal without modification.

Section 1070.20(f) provides a submitter of business information with ten business days to object to the Bureau's disclosure of the submitter's business information. The Bureau proposed to make two technical changes to this provision clarifying that the Bureau will delay any release of information to afford the submitter ten business days to object to the disclosure. The Bureau received one comment in support of this proposed change and it finalizes the proposal without modification.

Section 1070.21(b) provides the time limits for filing administrative appeals. The Bureau proposed to revise this provision to clarify that the time period for filing an appeal begins on the day after the date the initial determination is sent to the requester or the date of the letter transmitting the last records released, whichever is later. The Bureau also proposed to change the time limit for filing an administrative appeal from 45 days to 90 days. This change is required by the FOIA Improvement Act of 2016. The Bureau received no comments on these proposals and it finalizes them without modification.

Section 1070.21(d) specifies how the Bureau will process administrative appeals. The Bureau proposed to remove the requirement that appeals be stamped with the date of their receipt by the FOIA Office. The FOIA Office does not stamp an appeal with the date the Bureau received it, but the date is recorded in the Bureau's system for tracking FOIA requests. This requirement is outmoded and the Bureau proposed to remove it to account for its current practice.

Section 1070.21(d) also previously provided that appeals would be processed in the order in which they are received. Since adopting this provision in 2011, the Bureau has found that it is not always practicable to complete action on appeals in the order in which they are received, and sometimes has chosen to act on a simple later-received appeal rather than delay action pending completion of a more complex earlier-received appeal. In order to better align the regulation with current practice, the Bureau proposed to delete the provision calling for first-in-first-out processing of appeals.

The Bureau received no comments on these proposals and it finalizes them without modification.

Section 1070.21(e) authorizes the General Counsel to decide administrative appeals, and § 1070.21(e)(3) allows for remand of a FOIA determination as one option for the General Counsel's disposition of an appeal. The Bureau proposed to amend the first sentence of § 1070.21(e) to add a reference to remands so that all options for disposition of appeals are listed in that sentence. The Bureau received no comments on its proposed revision and it finalizes the revision without modification. In addition, one commenter recommended that the Bureau also include a provision in § 1070.21(e) committing the Bureau to work as an active partner during the OGIS dispute resolution process when the Bureau agrees to participate in the process concerning a particular request. The Bureau agrees with this recommendation and has revised the final rule to incorporate it.

Section 1070.22(a) directs the Bureau to determine whether and to what extent to charge a requester fees for processing a FOIA request. Among other things, the provision previously stated that the Bureau charges certain fees “unless circumstances exist . . . that render fees inapplicable or inadvisable or unless the requester has requested and the [Bureau] has granted a reduction in or waiver of fees. . . .” The Bureau proposed no revisions to this provision. However, a Federal agency recommended that the Bureau remove the phrase “or inadvisable” from § 1070.22(a) because it is not clear what the phrase means in this context. The Bureau agrees and has removed this phrase from the final rule.

Section 1070.22(b) identifies appropriate fee categories for requesters. One commenter suggested that community-based organizations and non-profits “be added to the category that would obtain the lowest fees” or, alternatively, that the Bureau create a new fee category for such groups where they would pay the lowest processing fees. The Bureau declines to adopt this recommendation. The fee categories are defined by statute and the Office of Management and Budget's fee guidance, and the Bureau does not believe it would be appropriate for it to create a new fee category that was not contemplated by the FOIA. The Bureau also cannot commit to placing all non-profits and community based organizations in the lowest fee categories because not all such organizations will meet the requirements for placement in these fee categories. The Bureau believes that the current FOIA fee categories and the fee waiver provisions in the Bureau's rule are sufficient to address the concerns raised by the commenter.

Section 1070.22(b)(1)(i) defines the “Commercial user” category of requester. The Bureau proposed to amend this provision to clarify that the Bureau's decision to place a requester in the commercial user category will be made on a case-by-case basis based on how the requester will use the information. The Bureau proposed this change to clarify how it will make decisions whether to place a requester in the commercial user category. The Bureau received no comments on this proposal and it finalizes the proposal without modification.

Section 1070.22(b)(1)(ii) defines the “Educational institution” category of requester. Several commenters suggested that the Bureau update the definition to more accurately reflect the text of the FOIA and recent case law expanding the scope of the term “educational institution” to include students at educational institutions who submit a FOIA request in furtherance of coursework or other school-sponsored activities. See Sack v. U.S. Dep't of Defense, 823 F.3d 687 (D.C. Cir. 2016). The Bureau agrees with the commenters and has so revised this provision in the final rule, including by adding three examples of requesters to clarify under which circumstances a requester would fall within the scope of this fee category. The Bureau has also made corresponding changes to § 1070.22(c)(2), removing information that is no longer necessary in light of the revisions to § 1070.22(b)(1)(ii).

Section 1070.22(b)(2) provides that the Bureau will notify a requester of its determination as to the proper fee category to apply to the requester. The provision previously provided that the Bureau make its determination based on a review of the requester's submission and the Bureau's own records. The Bureau proposed to delete this limitation to clarify that it may base its determination on other appropriate information, including phone conversations with the requester and publicly available information. The Bureau received no comments on this proposal and it finalizes the proposal without modification.

Section 1070.22(d) provides certain circumstances where the Bureau may not charge a requester a fee for processing a FOIA request. The Bureau proposed to insert a new paragraph at § 1070.22(d)(2) and to renumber § 1070.22(d) to accommodate the new paragraph. The Bureau explained in its proposal that the new paragraph would provide that it will not charge a requester any fees when the fee, excluding duplication costs, is less than $250. The Bureau proposed this change as part of its larger goal of revising the process for how it assesses FOIA processing fees and how the Bureau notifies requesters of such fees. The Bureau explained that this new provision would streamline its process for assessing FOIA fees. This change would allow the Bureau to process FOIA requests more quickly and efficiently because the Bureau would no longer need to contact a FOIA requester concerning processing fees when the cost to process the request is less than $250. As such, this provision would provide information to these requesters more quickly and at a reduced cost to the requesters.

A Federal agency suggested that the Bureau should remove § 1070.22(d)(1) because it is no longer necessary given other revisions the Bureau has proposed to its FOIA regulations. The agency also recommended that the Bureau clarify § 1070.22(d)(2) because it is not clear from the proposed revisions whether duplication costs would be included in the proposed $250 threshold.

The Bureau intended its proposed $250 fee threshold to only apply to search and review costs, not duplication costs. Under its proposal, the Bureau would not charge any fees if the search and review fees were less than $250, but it did not intend for duplication costs to be subject to this threshold. The Bureau intended to subject duplication costs to § 1070.22(d)(1), which provides that the Bureau will not charge a requester any FOIA processing fee when the cost of collecting the fee is equal to or greater than the fee itself. The Bureau intended to make this distinction because most of its FOIA responses are transmitted to requesters electronically and result in no duplication costs. The Bureau did not intend to offer requesters up to $250 worth of duplication without charge when the Bureau can almost always provide records in an electronic format. The Bureau has made clarifying revisions to its rule to address the agency's comments.

Section 1070.22(d)(4) addresses miscellaneous circumstances where the Bureau may not assess fees. The Bureau proposed to revise this provision to prohibit it from charging search fees, or in certain cases duplication fees, when the Bureau has failed to comply with time limits under § 1070.16 or § 1070.21, unless (1) unusual circumstances apply to the processing of the request; (2) the Bureau has provided timely written notice of the unusual circumstances to the requester; (3) more than 5,000 pages are necessary to respond to the request; and (4) the Bureau has discussed with the requester (or made three good-faith attempts to do so) how the requester could effectively limit the scope of the request. These changes are required by the FOIA Improvement Act of 2016.

A Federal agency recommended that the Bureau revise § 1070.22(d)(4), reasoning that the proposal's exception to when the Bureau can charge FOIA processing fees when it does not meet FOIA timelines was technically broader than the FOIA's requirements. In addition, the Federal agency recommended revising the paragraph to account for a scenario where a court determines that exceptional circumstances apply to a request. The Federal agency also noted a technical error in a cross-reference in the paragraph. The Bureau had intended for proposed § 1070.22(d)(4) to be coextensive with the FOIA. In response to these suggestions, the Bureau has revised the provision to more closely align with the FOIA's requirements, and it has added a paragraph to address a potential court determination that exceptional circumstances apply. It has also fixed the identified cross-reference. The Bureau otherwise finalizes its proposal.

Section 1070.22(e)(5) provides that the Bureau will decide whether to grant or deny a request to reduce or waive fees prior to processing the FOIA request and that the Bureau will notify the requester of such a determination in writing. The Bureau proposed to delete this requirement because it is unnecessary in light of other proposed fee-related revisions. The Bureau explained in its proposal that in many cases involving requests for fee waivers, the Bureau would be able to process the FOIA request without deciding the merits of the fee waiver request because the processing fees would be less than $250. It further reasoned that removing this requirement would allow the Bureau to process FOIA requests more efficiently and provide information to requesters more quickly. Under the Bureau's proposal, the Bureau would notify a requester when it had denied a fee waiver request and processing the request would incur fees. The Bureau received no comments on this proposal and it finalizes the proposal without modification.

Section 1070.22(e)(6) specifies what information the Bureau will include in the letter it sends notifying the requester that the Bureau has denied a request for a waiver or reduction of fees. The Bureau proposed to make a technical change to this provision, removing the phrase “(of not less than $25)” to account for other newly proposed fee-related provisions. The Bureau received no comments on this proposal and it finalizes the proposal without modification.

Section 1070.22(f) describes the Bureau's process for notifying a requester of any processing fees associated with a FOIA request. The Bureau proposed several changes to this provision to clarify and streamline its process for assessing FOIA processing fees and for notifying requesters of such fees. First, the Bureau proposed to revise § 1070.22(f) to provide that the Bureau would notify a requester of the estimated fees to process a FOIA request when the estimated fees are $250 or more and the estimated fees exceed the limit set by the requester, the requester has not specified a limit, or the Bureau has denied a request for a reduction or waiver of fees. Next, the Bureau proposed to revise § 1070.22(f) to raise the fee threshold above which a requester must pre-pay estimated processing fees from $250 to $1000. The Bureau explained in its proposal that this change was necessary because of the Bureau's proposed change to § 1070.22(d): The Bureau proposed raising its previous pre-payment threshold of $250 because it would no longer charge fees for processing a request when the fees are $250 or less. The Bureau further explained that its proposed revisions to § 1070.22(f) would require a requester to agree to pay processing fees before the Bureau began processing the request. The Bureau said that such an agreement would provide sufficient assurance of payment for fees less than $1000, and that this change was in accordance with the Bureau's practice for requiring pre-payment of fees. Furthermore, the Bureau explained that this change would allow it to process FOIA requests more efficiently and provide records to requesters more quickly. The Bureau received no comments on these proposals and it finalizes them with only technical changes to the numbering of paragraphs in the section.

Section 1070.22(a) discusses the role of the Bureau's Chief FOIA Officer. The Bureau proposed inserting two new paragraphs. The first concerns the Chief FOIA Officer's responsibility to offer training to Bureau staff regarding their responsibilities under the FOIA, and the second concerns the Chief FOIA Officer's role as the primary Bureau liaison with the OGIS and the Department of Justice's Office of Information Policy. The Bureau also proposed to renumber the provisions in this section to accommodate these changes. These changes are required by the FOIA Improvement Act of 2016. The Bureau received no comments on these proposals and it finalizes them without modification.

Subpart C addresses the disclosure of Bureau information in connection with legal proceedings. The Bureau proposed several technical corrections throughout the subpart. The Bureau received no comments regarding these technical corrections, and it finalizes them without modification.

Section 1070.30(a) defines the circumstances for which the procedures outlined in subpart C apply. The Bureau proposed to delete paragraph (a)(1) from this provision and to renumber the section accordingly. This was intended as a technical change to account for moving § 1070.31 to subpart A. The Bureau received no comments regarding this proposal, and it finalizes the proposal without modification.

Section 1070.30(e)(2) defines the term “legal proceeding” for subpart C. The Bureau proposed to add the phrase “their agents” to the last sentence of this provision to clarify that this definition applies to formal and informal requests made by both attorneys and their agents. The Bureau received no comments regarding this proposal, and it finalizes the proposal without modification.

Former § 1070.31 provided the process for serving the Bureau with summonses or complaints. As discussed above with respect to proposed § 1070.5, the Bureau proposed to delete § 1070.31 from subpart C and move it to a new § 1070.5 in subpart A. The Bureau also proposed to renumber sections and cross-references in subpart C to account for this change. The Bureau received no comments regarding these proposals, and it finalizes them without modification.

Proposed § 1070.31(d)

Proposed § 1070.31(d) (formerly § 1070.32(d)) provides that the Bureau is not authorized to accept on behalf of its employees any subpoenas, orders, or other demands or requests, which are not related to the employees' official duties. The previous text of the provision implied that it is the Bureau's practice to accept such demands or requests “upon the express, written authorization of the individual CFPB employee to whom such demand or request is directed.” The Bureau proposed to delete this part of the provision because it is not the general practice of the Bureau to accept service on behalf of individual employees. The Bureau further proposed deleting the paragraph's introductory caveat, “[e]xcept as otherwise provided in this subpart,” because the subpart does not otherwise provide for the Bureau to act as an agent for service for subpoenas, orders, or other demands or requests that do not relate to employees' official conduct. The Bureau received no comments regarding these proposals, and it finalizes them without modification.

Section 1070.33(b) provides that the General Counsel may require a party seeking official information through testimony, Bureau records, or other material, to describe all reasonably foreseeable demands for such information. The Bureau proposed to make several technical changes to clarify this provision. The Bureau received no comments regarding these changes, and it finalizes the proposal without modification.

Section 1070.51 specifies the authority and responsibilities of the Bureau's Chief Privacy Officer. The Bureau proposed to add a new paragraph at § 1070.51(a) authorizing the Chief Privacy Officer to “[d]evelop, implement, and maintain an organization-wide privacy program” and to renumber the other paragraphs in § 1070.51 to reflect this change. This change is in accordance with National Institute of Standards and Technology (NIST) Special Publication 800-53 Revision 4, which provides that agencies should “[appoint] a Senior Agency Official for Privacy (SAOP)/Chief Privacy Officer (CPO) accountable for developing, implementing, and maintaining an organization-wide governance and privacy program to ensure compliance with all applicable laws and regulations regarding the collection, use, maintenance, sharing, and disposal of personally identifiable information (PII) by programs and information systems. . . .” The Bureau proposed this change to clarify the authority of its Chief Privacy Officer. The Bureau received no comments on this proposal, and it finalizes the proposal without modification.

Section 1070.53(a) specifies the procedures for making Privacy Act requests for records. The previous text distinguished between requests made in writing and by electronic means. The Bureau proposed a technical change to this provision, to remove the phrase “or by electronic means” and add “as follows:” in its place. The Bureau also proposed changes to § 1070.53(a)(1) to clarify how requesters must submit Privacy Act requests to the Bureau. The Bureau proposed similar changes to §§ 1070.56(a) and 1070.58(b). The Bureau received no comments on this proposal and it finalizes the proposal without modification.

Section 1070.56(a)(2)(i) provides that an individual requesting an amendment of a record must identify the system of records containing the record. The Bureau proposed to revise this provision to allow an individual to provide a description of the record in sufficient detail to allow Bureau personnel to locate the system of records containing the record. This revision was intended to provide a requester with more flexibility in the event that the requester does not know the precise name of the applicable system of records. Furthermore, this proposal was consistent with § 1070.53(b)(2), which specifies requirements for requests for access to records. The Bureau received no comments on this proposal, and it finalizes the proposal without modification.

Section 1070.61 addresses, among other things, the Bureau's obligations to conduct privacy-related training and establish rules of conduct related to privacy. The Bureau proposed to replace references to “employees of Government contractors” with the term “contract personnel” to avoid confusion with respect to § 1070.2(k) (proposed § 1070.2(l)), which defines the term “employee.” The Bureau received no comments on this proposal, and it finalizes the proposal without modification.

In developing this final rule, the Bureau has considered the potential benefits, costs, and impacts as required by section 1022(b)(2)(A) of the Dodd-Frank Act.2 This analysis describes these impacts solely for the Touhy procedures as the remaining provisions of this rule are not promulgated under federal consumer financial protection laws. The benefits and costs of those provisions are discussed above. The Bureau has consulted, or offered to consult with, the prudential regulators and the Federal Trade Commission, including consultation regarding consistency with any prudential, market, or systemic objectives administered by such agencies.

The Bureau has chosen to consider the benefits, costs, and impacts of the final rule as compared to the status quo, namely the Bureau's regulations as set forth by the Bureau on February 15, 2013, 78 FR 11483 (Feb. 15, 2013).3 The Bureau does not have data with which to quantify the benefits or costs of the final rule, nor were any data provided by commenters. As such, the discussion below considers the qualitative costs, benefits, and impacts that the Bureau anticipates from the rule. The Bureau also notes that the discussion below should be read in conjunction with the discussion of benefits and costs in the Section-by-Section discussion above.

As relevant, the final rule revises subparts A and C of part 1070 of title 12 of the Code of Federal Regulations: The revisions to Subpart A offer clarifications of procedures related to the certification of authenticity of Bureau records and the service of summonses or complaints on the Bureau; the revisions to Subpart C include organizational and clarifying revisions to the provisions related to the Bureau's Touhy regulations.

As these revisions mainly include clarifications, corrections and technical changes, they will have limited impacts on consumers and covered persons.

The final rule will not have an appreciable impact on consumers' access to consumer financial products or services, as the scope of the final rule is limited to matters related to access to certain types of information, and does not relate to credit access.

The final rule will not have a unique impact on insured depository institutions or insured credit unions with $10 billion or less in assets as described in section 1026(a) of the Dodd-Frank Act as the rule does not distinguish information regarding such institutions or procedures applicable to such institutions.

The final rule will not have a unique impact on consumers in rural areas as the rule does not distinguish information regarding consumers in rural areas or procedures applicable to such consumers.

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (the RFA), requires each agency to consider the potential impact of its regulations on small entities, including small businesses, small governmental units, and small not-for-profit organizations, unless the head of the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The undersigned so certifies. The rule does not impose any obligations or standards of conduct for purposes of analysis under the RFA, and it therefore does not give rise to a regulatory compliance burden for small entities.

Finally, the Bureau has determined that this rule does not impose any new recordkeeping, reporting, or disclosure requirements on members of the public that would be collections of information requiring approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), the Bureau 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 the rule's published effective date. The Office of Information and Regulatory Affairs has designated this rule as not a “major rule” as defined by 5 U.S.C. 804(2).

For the reasons set forth in the preamble, the Bureau amends 12 CFR part 1070 to read as follows:

The substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. The FAA, therefore, finds it unnecessary to delay the effective date and finds that good cause exists for making these special conditions effective upon publication in the Federal Register.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

On November 22, 2017, Boeing applied for a change to Type Certificate No. T00021SE for the installation of oblique (side-facing) passenger seats with or without airbag devices or 3-point restraints in the Boeing Model 787-8, 787-9, and 787-10 series airplanes. The Boeing Model 787-8, 787-9, and 787-10 series airplanes are twin-engine, transport category airplanes with a maximum certified passenger capacity of up to 440, and a maximum takeoff weight of approximately 476,000 lbs.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 787-8, 787-9, and 787-10 series airplanes, as changed, continue to meet the applicable provisions of the regulations listed in Type Certificate No. T00021SE or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 787-8, 787-9, and 787-10 series airplanes because of novel or unusual design features, special conditions are prescribed under the provisions of § 21.16.

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

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 787-8, 787-9, and 787-10 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

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

The business-class seating configuration Boeing proposes is novel or unusual due to the seat installation at 30 degrees to the airplane centerline, the airbag-system installation, and the seat/occupant interface with the surrounding furniture that introduces occupant alignment and loading concerns. The proposed business-class seating configuration is also beyond the limits of current acceptable equivalent-level-of-safety findings. These oblique (side-facing) seats may be installed at an angle of 18 to 45 degrees to the airplane centerline and may include a 3-point or airbag restraint system, or both, for occupant restraint and injury protection.

The existing regulations do not provide adequate or appropriate safety standards for occupants of oblique-angled seats with airbag systems. To provide a level of safety that is equivalent to that afforded occupants of forward- and aft-facing seats, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement part 25 and, more specifically, supplement §§ 25.562 and 25.785.

The requirements contained in these special conditions consist of both test conditions and injury pass/fail criteria.

The FAA has been conducting and sponsoring research on appropriate injury criteria for oblique (side-facing) seat installations. However, the FAA research program is not complete and we may update these criteria as we obtain further research results. To reflect current research findings, the FAA issued policy statement PS-ANM-25-03-R1 to update injury criteria for fully side-facing seats, and policy statement PS-AIR-25-27, to define injury criteria for oblique (side-facing) seats.

The proposed Boeing Model 787-8, 787-9, and 787-10 series airplanes business-class seat installation is novel such that the current Boeing Model 787-8, 787-9, and 787-10 series airplanes certification basis does not adequately address protection of the occupant's neck and spine for seat configurations that are positioned at an angle greater than 18 degrees from the airplane centerline. The FAA issued special conditions No. 25-580-SC for Model 787-9 airplanes on April 14, 2015, and special conditions No. 25-626-SC for certain Model 787-9 airplanes on July 27, 2016. These special conditions contained injury criteria for oblique seats based on the best knowledge the FAA had at the time. These special conditions for oblique seat installations do not adequately address oblique seats, reflecting the current research results, with or without 3-point or airbag restraint systems. Therefore, Boeing's proposed configuration will require amended special conditions.

The installation of passenger seats at angles of 18 to 45 degrees to the airplane centerline are unique due to the seat/occupant interface with the surrounding furniture that introduces occupant alignment/loading concerns with or without the installation of a 3-point or airbag restraint system, or both. On-going research has invalidated previously released special conditions for oblique (side-facing) seat installations. These updated special conditions further address potential injuries to the occupant's neck and spine. As a result, these special conditions replace special conditions 25-580-SC and 25-626-SC.

FAA-sponsored research has found that an un-restrained flailing of the upper torso, even when the pelvis and torso are nearly aligned, can produce serious spinal and torso injuries. At lower impact severities, even with significant misalignment between the torso and pelvis, these injuries did not occur. Tests with an FAA H-III anthropomorphic test device (ATD) have identified a level of lumbar spinal tension corresponding to the no-injury impact severity. This level of tension is included as a limit in the special conditions. The spine tension limit selected is conservative with respect to other aviation injury criteria since it corresponds to a no-injury loading condition.

As noted in the special conditions for each airbag restraint system, because an airbag restraint system is essentially a single use device, there is the potential that it could deploy under crash conditions that are not sufficiently severe as to require head injury protection from the airbag restraint system. Since an actual crash is frequently composed of a series of impacts before the airplane comes to rest, this could render the airbag restraint system useless if a larger impact follows the initial impact. This situation does not exist with energy absorbing pads or upper torso restraints, which tend to provide protection according to the severity of the impact. Therefore, the installation of the airbag restraint system should be such that the airbag restraint system will provide protection when it is required, and will not expend its protection when it is not needed.

Because these airbag restraint systems may or may not activate during various crash conditions, the injury criteria listed in these special conditions and in § 25.562 must be met in an event that is slightly below the activation level of the airbag restraint system. If an airbag restraint system is included with the oblique seats, the system must meet the requirements in one of the airbag (inflatable restraint) special conditions applicable to the Boeing Model 787-8, 787-9, and 787-10 series airplanes.

These amended special conditions will provide head injury criteria, neck injury criteria, spine injury criteria, and body-to-wall contact criteria. They contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Boeing Model 787-8, 787-9, and 787-10 series airplanes. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

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

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Boeing Model 787-8, 787-9, and 787-10 series airplanes.

In addition to the requirements of § 25.562:

Compliance with § 25.562(c)(5) is required, except that, if the ATD has no apparent contact with the seat/structure but has contact with an airbag, a head-injury criterion (HIC) unlimited score in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.

If a seat is installed aft of structure (e.g., an interior wall or furnishing) that does not provide a homogenous contact surface for the expected range of occupants and yaw angles, then additional analysis and/or test(s) may be required to demonstrate that the injury criteria are met for the area that an occupant could contact. For example, if different yaw angles could result in different airbag performance, then additional analysis or separate test(s) may be necessary to evaluate performance.

The seating system must protect the occupant from experiencing serious neck injury. The assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck-injury potential would be higher for impacts below the airbag-device deployment threshold.

a. The Nij (calculated in accordance with 49 CFR 571.208) must be below 1.0, where Nij = Fz/Fzc + My/Myc, and Nij critical values are:

b. In addition, peak Fz must be below 937 lb in tension and 899 lb in compression.

c. Rotation of the head about its vertical axis, relative to the torso, is limited to 105 degrees in either direction from forward-facing.

d. The neck must not impact any surface that would produce concentrated loading on the neck.

a. The lumbar spine tension (Fz) cannot exceed 1,200 lb.

b. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X direction) acceleration exceeding 20g must be less than 3 milliseconds as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E filtered in accordance with SAE International (SAE) recommended practice J211/1, “Instrumentation for Impact Test—Part 1-Electronic Instrumentation.”

c. The occupant must not interact with the armrest or other seat components in any manner significantly different than would be expected for a forward-facing seat installation.

Any part of the load-bearing portion of the bottom of the ATD pelvis must not translate beyond the edges of the seat bottom seat-cushion supporting structure.

Axial rotation of the upper leg (about the z-axis of the femur per SAE Recommended Practice J211/1) must be limited to 35 degrees from the nominal seated position. Evaluation during rebound does not need to be considered.

Longitudinal tests conducted to measure the injury criteria above must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01-1609, “A Lumbar Spine Modification to the Hybrid III ATD for Aircraft Seat Tests.” The tests must be conducted with an undeformed floor, at the most-critical yaw cases for injury, and with all lateral structural supports (e.g. armrests or walls) installed.

If inflatable airbag restraint systems are installed, the airbag systems must meet the requirements in one of the airbag (inflatable restraint) special conditions applicable to the Boeing Model 787-8, 787-9 and 787-10 series airplanes.

The substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. The FAA therefore finds it unnecessary to delay the effective date and finds that good cause exists for making these special conditions effective upon publication in the Federal Register.

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

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

On November 22, 2017, Boeing applied for an amendment to Type Certificate No. T00001SE for the installation of oblique (side-facing) passenger seats with or without airbag devices or 3-point restraints in the Boeing Model 777 series airplanes. The Boeing Model 777 series airplanes are twin-engine, transport category airplanes with a maximum certified passenger capacity of up to 550 and a maximum takeoff weight of approximately 775,000 lbs.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 777 series airplanes meet the applicable provisions of the regulations listed in Type Certificate No. T00001SE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 777 series airplanes because of novel or unusual design features, special conditions are prescribed under the provisions of § 21.16.

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

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

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

The business-class seating configuration Boeing proposes is novel or unusual due to the seat installation at 30 degrees to the airplane centerline, the airbag-system installation, and the seat/occupant interface with the surrounding furniture that introduces occupant alignment and loading concerns. The proposed business-class seating configuration is also beyond the limits of current acceptable equivalent-level-of-safety findings. These oblique (side-facing) seats may be installed at an angle of 18 to 45 degrees to the airplane centerline and may include a 3-point or airbag restraint system, or both, for occupant restraint and injury protection.

The existing regulations do not provide adequate or appropriate safety standards for occupants of oblique-angled seats with airbag systems. To provide a level of safety that is equivalent to that afforded occupants of forward- and aft-facing seats, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement part 25 and, more specifically, supplement §§ 25.562 and 25.785.

The requirements contained in these special conditions consist of both test conditions and injury pass/fail criteria.

The FAA has been conducting and sponsoring research on appropriate injury criteria for oblique (side-facing) seat installations. However, the FAA research program is not complete and we may update these criteria as we obtain further research results. To reflect current research findings, the FAA issued policy statement PS-ANM-25-03-R1 to update injury criteria for fully side-facing seats, and policy statement PS-AIR-25-27, to define injury criteria for oblique (side-facing) seats.

The proposed Boeing Model 777 series airplanes business-class seat installation is novel such that the current Boeing Model 777 series airplanes certification basis does not adequately address protection of the occupant's neck and spine for seat configurations that are positioned at an angle greater than 18 degrees from the airplane centerline. The FAA issued special conditions No. 25-569-SC for Model 777-300ER airplanes on September 25, 2014, and special conditions No. 25-621-SC for certain Model 777-300ER airplanes on August 3rd, 2016. These special conditions contained injury criteria for oblique seats based on the best knowledge the FAA had at the time. These special conditions for oblique seat installations do not adequately address oblique seats, reflecting the current research results, with or without 3-point or airbag restraint systems. Therefore, Boeing's proposed configuration will require amended special conditions.

The installation of passenger seats at angles of 18 to 45 degrees to the airplane centerline are unique due to the seat/occupant interface with the surrounding furniture that introduces occupant alignment/loading concerns with or without the installation of a 3-point or airbag restraint system, or both. On-going research has invalidated previously released special conditions for oblique (side-facing) seat installations. These updated special conditions further address potential injuries to the occupant's neck and spine. As a result, these special conditions replace special conditions 25-569-SC and 25-621-SC.

FAA-sponsored research has found that an un-restrained flailing of the upper torso, even when the pelvis and torso are nearly aligned, can produce serious spinal and torso injuries. At lower impact severities, even with significant misalignment between the torso and pelvis, these injuries did not occur. Tests with an FAA H-III anthropomorphic test device (ATD) have identified a level of lumbar spinal tension corresponding to the no-injury impact severity. This level of tension is included as a limit in the special conditions. The spine tension limit selected is conservative with respect to other aviation injury criteria since it corresponds to a no-injury loading condition.

As noted in the special conditions for each airbag restraint system, because an airbag restraint system is essentially a single use device, there is the potential that it could deploy under crash conditions that are not sufficiently severe as to require head injury protection from the airbag restraint system. Since an actual crash is frequently composed of a series of impacts before the airplane comes to rest, this could render the airbag restraint system useless if a larger impact follows the initial impact. This situation does not exist with energy absorbing pads or upper torso restraints, which tend to provide protection according to the severity of the impact. Therefore, the installation of the airbag restraint system should be such that the airbag restraint system will provide protection when it is required, and will not expend its protection when it is not needed.

Because these airbag restraint systems may or may not activate during various crash conditions, the injury criteria listed in these special conditions and in § 25.562 must be met in an event that is slightly below the activation level of the airbag restraint system. If an airbag restraint system is included with the oblique seats, the system must meet the requirements in one of the airbag (inflatable restraint) special conditions applicable to the Boeing Model 777 series airplanes.

These amended special conditions will provide head injury criteria, neck injury criteria, spine injury criteria, and body-to-wall contact criteria. They contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Boeing Model 777 series airplane. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

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

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Boeing Model 777 series airplanes.

In addition to the requirements of § 25.562:

Compliance with § 25.562(c)(5) is required, except that, if the ATD has no apparent contact with the seat/structure but has contact with an airbag, a HIC unlimited score in excess of 1,000 is acceptable, provided the HIC15 score for that contact (calculated in accordance with 49 CFR 571.208) is less than 700.

If a seat is installed aft of structure (e.g., interior wall or furnishings) that does not provide a homogenous contact surface for the expected range of occupants and yaw angles, then additional analysis and tests may be required to demonstrate that the injury criteria are met for the area which an occupant could contact. For example, different yaw angles could result in different airbag device performance, then additional analysis or separate tests may be necessary to evaluate performance.

The seating system must protect the occupant from experiencing serious neck injury. The assessment of neck injury must be conducted with the airbag device activated, unless there is a reason to also consider that the neck-injury potential would be higher for impacts below the airbag-device deployment threshold.

a. The Nij, calculated in accordance with 49 CFR 571.208, must be below 1.0, where Nij = Fz/Fzc + My/Myc, and Nij critical values are:

b. In addition, peak upper-neck Fz must be below 937 lbs. in tension and 899 lbs. in compression.

c. Rotation of the head about its vertical axis, relative to the torso is limited to 105 degrees in either direction from forward-facing.

d. The neck must not impact any surface that would produce concentrated loading on the neck.

a. The lumbar spine tension (Fz) cannot exceed 1,200 lbs.

b. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X direction) acceleration exceeding 20 g must be less than 3 milliseconds as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E, filtered in accordance with SAE recommended practice J211/1, “Instrumentation for Impact Test-Part 1—Electronic Instrumentation.”

c. The occupant must not interact with the armrest or other seat components in any manner significantly different than would be expected for a forward-facing seat installation.

Any part of the load-bearing portion of the bottom of the ATD pelvis must not translate beyond the edges of the seat bottom seat-cushion supporting structure.

Axial rotation of the upper leg (about the z-axis of the femur per SAE Recommended Practice J211/1) must be limited to 35 degrees from the nominal seated position. Evaluation during rebound does not need to be considered.

Longitudinal tests conducted to measure the injury criteria above must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01-1609, “A Lumbar Spine Modification to the Hybrid III ATD for Aircraft Seat Tests.” The tests must be conducted with an undeformed floor, at the most-critical yaw cases for injury, and with all lateral structural supports (e.g., armrests or walls) installed.

Table of Contents I. Background and Discussion II. Legal Authority III. Analysis of Environmental Impact IV. Paperwork Reduction Act of 1995 I. Background and Discussion

In the Federal Register of September 17, 2015, FDA published the final rule, “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food” (80 FR 55908; the “rule establishing part 117”). Among other things, in the final rule establishing part 117 (21 CFR part 117), we modernized and placed in part 117, subpart B the longstanding current good manufacturing practice requirements (CGMPs) codified in part 110 (21 CFR part 110). We staggered the compliance dates for part 117 based on business size. We also instructed the Federal Register to remove and reserve part 110 effective September 17, 2018, the latest of the staggered compliance dates, which we treated as a conforming amendment (see instruction number 13 at 80 FR 55908 at 56144).

Subsequently, in a final rule published in the Federal Register of August 24, 2016 (81 FR 57784; the “compliance date final rule”), among other things, we extended by up to 16 months the part 117 compliance dates for certain facilities, to address concerns about the practicality of compliance, consider changes to the regulatory text, and better align compliance dates across various rules. The compliance date final rule extended the part 117 compliance dates for the following establishments, as set out in table 1:

A small business is a business (including any subsidiaries and affiliates) employing fewer than 500 full-time equivalent employees. A very small business is a business (including any subsidiaries and affiliates) averaging less than $1 million, adjusted for inflation, per year, during the 3-year period preceding the applicable calendar year in sales of human food plus the market value of human food manufactured, processed, packed or held without sale (e.g., held for a fee). (See § 117.3.)

After issuing the compliance date final rule, FDA announced that as a matter of enforcement policy it did not intend to enforce certain part 117 requirements for certain facilities, including some of the facilities in table 1 whose compliance dates had been extended by the compliance date final rule. See the January 2018 guidance entitled “Policy Regarding Certain Entities Subject to the Current Good Manufacturing Practice and Preventive Controls, Produce Safety, and/or Foreign Supplier Verification Programs” (https://www.fda.gov/downloads/food/guidanceregulation/guidancedocumentsregulatoryinformation/ucm590661.pdf). The present rulemaking does not change the policies contained in this guidance.

As mentioned above, in the final rule establishing part 117 we instructed the Federal Register to remove and reserve part 110, effective September 17, 2018, which at the time was the latest of the staggered compliance dates. The goal was to have firms subject to the Human Food CGMP regulation until the Preventive Controls for Human Food regulation took its place, leaving no gap in public health protection. However, in the compliance date final rule we extended the compliance dates for part 117 by up to 16 months but failed to revise the previous instruction to remove part 110. Without the current action, the small and very small facilities described in table 1 will not be subject to any CGMPs until, respectively, January 28, 2019, and January 27, 2020. However, FDA's intent always has been that part 110 would remain unchanged and in effect until all establishments have reached the date when they must be in compliance with part 117. Therefore, we are amending the rule establishing part 117 to remove the instruction to the Federal Register to remove and reserve part 110. We intend to remove part 110 in a separate action after all establishments have reached their compliance dates for the part 117 CGMPs.

When FDA conducts rulemaking, it normally does so using notice-and-comment procedures established under the Administrative Procedure Act (APA) and FDA regulations. These procedures allow the public an opportunity to participate in Agency rulemaking by submitting written comments on proposed rules. FDA considers these comments as it finalizes rules. (5 U.S.C. 553(b) and (c); § 10.40 (21 CFR 10.40.)) The APA, however, does not require an agency to use notice-and-comment procedures in all rulemaking. For example, the APA provides that Agencies shall not use notice-and-comment procedures, and shall proceed with a final rule, when the Agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to public interest, and incorporates the finding and a brief statement of reasons therefor in the rules issued. (5 U.S.C. 553(b)(B).) Likewise, FDA's regulations provide that the requirements of notice and public procedure do not apply when the Commissioner of Food and Drugs determines for good cause that they are impracticable, unnecessary, or contrary to the public interest, in which case, the notice issuing the regulation will state the reasons for the determination, and provide an opportunity for comment to determine whether the regulation should subsequently be modified or revoked. (§ 10.40(e)(1).) Pursuant to this regulation, FDA requests comments on the timing for the removal of part 110.

In this instance, for several reasons, FDA finds good cause for issuing this final rule without notice and comment.

Notice and comment are unnecessary because this final rule is a minor and technical repair of an obvious oversight in the compliance date final rule, maintains the CGMP regulatory status quo for industry, affirms FDA's plan for transitioning from part 110 to part 117 as outlined in the rule establishing part 117, and is not expected to generate public concern. FDA is addressing the gap in CGMP regulatory coverage from September 17, 2018, to January 27, 2020, by issuing a narrowly tailored amendment to remove instruction 13 from the rule to establish part 117. The result of this amendment will be that the part 110 CGMPs will continue in effect for establishments that have not reached their part 117 compliance date. This action will serve to correct an obvious oversight made in the compliance date final rule. FDA does not anticipate public concern with this action. The Agency previously sought public comment on its proposal to remove part 110 in coordination with the compliance dates for part 117 and received no comments that disagreed. The present continuation and planned eventual removal of part 110 is a repeat of what was previously proposed without public objection. Furthermore, it is clear from the rule establishing part 117 that we intended for facilities to remain subject to part 110 until their part 117 compliance date (80 FR 55908 at 56127). Thus, we do not believe there was ever any reasonable expectation on the part of the establishments listed in table 1 that they would not be continuously subject to CGMPs. For these various reasons, we have determined that notice and comment is unnecessary.

FDA finds further good cause for issuing this final rule without notice and comment because notice and comment are contrary to the public interest and impracticable. There could be negative public health implications if there were a temporal gap in CGMP coverage; for example, there have been outbreaks associated with the types of facilities still subject to part 110 (e.g., listeria in cantaloupe). Many of the establishments listed in table 1 are not required to comply with the replacement CGMPs in part 117 until January 2019 or January 2020, depending on business size. This means that these establishments would have no applicable CGMP requirements for 4 to 16 months. CGMP requirements have existed for all human food manufacturers since at least 1970 (see 34 FR 6977) and serve as a significant basis for FDA's determination of what constitutes an insanitary food production environment that may result in food that is injurious to public health under section 402(a)(4) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 342(a)(4)), among other authorities. It would be contrary to the public interest to allow the temporal gap in CGMP coverage.

To summarize, a gap in CGMP coverage would leave FDA without a primary tool to execute its function of ensuring that food manufacturing establishments follow basic food safety practices, potentially endangering the public health, in order to provide the public an opportunity to comment on a non-controversial technical matter. For these reasons, we are issuing this amendment to the final rule establishing part 117 without prior notice and comment. (5 U.S.C. 553(b)(3)(B)).

In addition, we find good cause for this amendment to the rule establishing part 117 to become effective on the date of publication. The APA allows an effective date less than 30 days after publication as provided by the Agency for good cause found and published within the rule (5 U.S.C. 553(d)(3)). As provided at 80 FR 55908, September 17, 2015, the amendment removing part 110 was to take effect on September 17, 2018. In order to continue part 110 for an interim period, this final rule needs to be effective on or before September 16, 2018, and therefore it is not possible for this rule to take effect 30 days after publication in the Federal Register. As previously described, in order to prevent a gap in CGMP coverage for certain establishments, an immediate effective date is necessary to remove, before September 17, 2018, the instruction to remove and reserve part 110. Further, because the facilities' responsibility to comply with CGMP requirements remains unchanged, this rule places no burden on affected parties for which they would need a reasonable time to prepare. Therefore, the Commissioner finds good cause under 5 U.S.C. 553(d)(3) and § 10.40(c)(4)(ii) for this amendment to become effective on the date of publication.

We are issuing this final rule removing instruction number 13 of the rule to establish part 117 under the same authority for which the rule containing instruction number 13 was originally issued. That analysis may be found in section II, “Legal Authority,” of the rule to establish part 117 (80 FR 55908 at 55917 to 55920).

FDA has determined that the removal of instruction 13 will not change the status quo and, therefore, is not a major Federal action significantly affecting the quality of the human environment within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4321 et seq.). Therefore, neither an environmental assessment nor an environmental impact statement is required.

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA.

On April 13, 2018, EPA published a direct final rule and accompanying proposal approving the updated delegation of authority for implementation and enforcement of NSPS and NESHAPs for all sources (both part 70 and non-part 70 sources) to the NMED. The direct final rule and proposal were published without prior proposal because EPA anticipated no relevant adverse comments. See 83 FR 15964 and 83 FR 16027, respectively. EPA stated in the direct final rule that if we receive relevant adverse comments by May 14, 2018, we would publish a timely withdrawal in the Federal Register, and all public comments received would be addressed in a subsequent final rule based on the proposed rule.

EPA received an adverse comment on May 14, 2018, and accordingly withdrew the direct final rule on June 5, 2018, pursuant to sections 111 and 112 of the CAA. See 83 FR 25936. The comment and our response to that comment follows below.

Comment: EPA received an anonymous adverse comment in response to the proposed rulemaking. The comment includes several personal observations and statements critical of New Mexico's ability to maintain and oversee its air quality programs. The commenter recommends that the proposed update to New Mexico's NESHAP delegation not be approved until EPA investigates the commenter's allegations and New Mexico has addressed the alleged deficiencies. See Docket for the entire comment.

EPA's Response: We thank the commenter for the comment. Section 112(l) of the Act and EPA's implementing regulations at 40 CFR part 63, subpart E primarily govern EPA's actions on State requests for delegation of authority to implement and enforce the NESHAP program. CAA section 112(l)(5)(B) states that EPA shall disapprove a NESHAP program submitted by a State if we find that adequate resources are not available to implement the program. See also 40 CFR 63.91(d)(3)(iii). Several concerns expressed by the commenter relate to the adequacy of resources (including the lack of technically experienced and qualified staff) maintained by the NMED Air Quality Bureau. NMED provided EPA with a response to those comments that included a description of current resources and experience within the Air Quality Bureau. See Docket for NMED's response. In addition, consistent with 40 CFR 63.91(d)(2), New Mexico's delegation update request included a reference to its previous demonstration and a reaffirmation that the up-front approval criteria for delegation are still being met. Based on this information as well as discussions with the Compliance and Enforcement Division and the Criminal Investigation Division within EPA Region 6, we have not identified sufficient information to support the necessary finding for disapproval of the requested NESHAP delegation update. The remainder of the commenter's concerns (e.g., meeting the requirements of EPA's compliance monitoring plan) relate to matters that are more appropriately addressed as part of our oversight responsibilities. EPA oversees NMED's decisions to ensure the delegated authorities are being adequately implemented and enforced. We integrate oversight of the delegated authorities into the existing mechanisms and resources for oversight currently in place. If, during oversight, we determine that NMED made decisions which decreased the stringency of the delegated standards, then NMED would be required to take corrective actions and the source(s) affected by the decisions will be notified, as required by 40 CFR 63.91(g)(1)(ii). Our oversight authorities allow us to initiate withdrawal of the program delegation if the corrective actions taken are insufficient.

The EPA is providing notice that it is approving NMED's request updating the delegation for the implementation and enforcement of certain NSPS. The EPA is also taking final action to approve NMED's request updating the delegation of certain NESHAP. With this delegation, NMED has the primary responsibility to implement and enforce the delegated standards. See sections VII and VIII, below, for a discussion of which standards are being delegated and which are not being delegated.

Upon the EPA's finding that the procedures submitted by a State for the implementation and enforcement of standards of performance for new sources located in the State are adequate, Section 111(c)(1) of the Clean Air Act (CAA) authorizes the EPA to delegate its authority to implement and enforce such standards. The new source performance standards are codified at 40 CFR part 60.

Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorize the EPA to delegate authority for the implementation and enforcement of emission standards for hazardous air pollutants to a State that satisfies the statutory and regulatory requirements in subpart E. The hazardous air pollutant standards are codified at 40 CFR parts 61 and 63.

In order to receive delegation of NSPS, a State must develop and submit to the EPA a procedure for implementing and enforcing the NSPS in the state, and their regulations and resources must be adequate for the implementation and enforcement of the NSPS. The EPA initially approved New Mexico's program for the delegation of NSPS on June 6, 1986 (51 FR 20648). The EPA reviewed the laws of the State and the rules and regulations of the New Mexico Environmental Improvement Division (now the NMED) and determined the State's procedures, regulations and resources adequate for the implementation and enforcement of the Federal standards. The NSPS delegation was most recently updated on February 2, 2015 (80 FR 5475). This action notifies the public that the EPA is updating NMED's delegation to implement and enforce certain additional NSPS.

Section 112(l)(5) of the CAA requires the EPA to disapprove any program submitted by a State for the delegation of NESHAP standards if the EPA determines that:

(A) The authorities contained in the program are not adequate to assure compliance by the sources within the State with respect to each applicable standard, regulation, or requirement established under section 112;

(B) adequate authority does not exist, or adequate resources are not available, to implement the program;

(C) the schedule for implementing the program and assuring compliance by affected sources is not sufficiently expeditious; or

(D) the program is otherwise not in compliance with the guidance issued by the EPA under section 112(l)(2) or is not likely to satisfy, in whole or in part, the objectives of the CAA.

In carrying out its responsibilities under section 112(l), the EPA promulgated regulations at 40 CFR part 63, subpart E setting forth criteria for the approval of submitted programs. For example, in order to obtain approval of a program to implement and enforce Federal section 112 rules as promulgated without changes (straight delegation), a State must demonstrate that it meets the criteria of 40 CFR 63.91(d). 40 CFR 63.91(d)(3) provides that interim or final title V program approval will satisfy the criteria of 40 CFR 63.91(d).1

The NESHAP delegation was most recently approved on February 2, 2015 (80 FR 5475).

As to the NSPS standards in 40 CFR part 60, NMED adopted the Federal standards via incorporation by reference. The NMED regulations are, therefore, at least as stringent as the EPA's rules. See 40 CFR 60.10(a). Also, in the EPA initial approval of NSPS delegation, we determined that the State developed procedures for implementing and enforcing the NSPS in the State, and that the State's regulations and resources are adequate for the implementation and enforcement of the Federal standards. See 51 FR 20648 (June 6, 1986).

As to the NESHAP standards in 40 CFR parts 61 and 63, as part of its Title V submission NMED stated that it intended to use the mechanism of incorporation by reference to adopt unchanged Federal section 112 standards into its regulations. This commitment applied to both existing and future standards as they applied to part 70 sources. The EPA's final interim approval of New Mexico's Title V operating permits program delegated the authority to implement certain NESHAP, effective December 19, 1994 (59 FR 59656). On November 26, 1996, the EPA promulgated final full approval of the State's operating permits program, effective January 27, 1997 (61 FR 60032). These interim and final title V program approvals satisfy the upfront approval criteria of 40 CFR 63.91(d). Under 40 CFR 63.91(d)(2), once a state has satisfied the up-front approval criteria, it needs only to reference the previous demonstration and reaffirm that it still meets the criteria for any subsequent submittals for delegation of the section 112 standards. NMED has affirmed that it still meets the up-front approval criteria. With respect to non-Title V sources, the EPA has previously approved delegation of NESHAP authorities to NMED after finding adequate authorities to implement and enforce the NESHAP for non-Title V sources. See 68 FR 69036 (December 11, 2003).

By letter dated January 22, 2016, the EPA received a request from NMED to update its NSPS delegation and NESHAP delegation. With certain exceptions noted in section VIII below, NMED's request included NSPS in 40 CFR part 60, as amended between September 24, 2013 and September 15, 2015; NESHAP in 40 CFR part 61, as amended between January 1, 2011 and September 15, 2015; and NESHAP in 40 CFR part 63, as amended between August 30, 2013 and September 15, 2015.

By letter dated June 9, 2017, the EPA received a request from NMED to update its NSPS delegation and NESHAP delegation. With certain exceptions noted in section VIII below, NMED's request included NSPS in 40 CFR part 60, as amended between September 15, 2015 and January 15, 2017; NESHAP in 40 CFR part 61, as amended between September 15, 2015 and January 15, 2017; and NESHAP in 40 CFR part 63, as amended between September 15, 2015 and January 15, 2017. This action is being taken in response to NMED's requests noted above.

All authorities not affirmatively and expressly delegated by this action are not delegated. These include the following part 60, 61 and 63 authorities listed below:

• 40 CFR part 60, subpart AAA (Standards of Performance for New Residential Wood Heaters);

• 40 CFR part 60, subpart QQQQ (Standards of Performance for New Residential Hydronic Heaters and Forced-Air Furnaces);

• 40 CFR part 61, subpart B (National Emission Standards for Radon Emissions From Underground Uranium Mines);

• 40 CFR part 61, subpart H (National Emission Standards for Emissions of Radionuclides Other Than Radon From Department of Energy Facilities);

• 40 CFR part 61, subpart I (National Emission Standards for Radionuclide Emissions From Federal Facilities Other Than Nuclear Regulatory Commission Licensees and Not Covered by Subpart H);

• 40 CFR part 61, subpart K (National Emission Standards for Radionuclide Emissions From Elemental Phosphorus Plants);

• 40 CFR part 61, subpart Q (National Emission Standards for Radon Emissions From Department of Energy facilities);

• 40 CFR part 61, subpart R (National Emission Standards for Radon Emissions From Phosphogypsum Stacks);

• 40 CFR part 61, subpart T (National Emission Standards for Radon Emissions From the Disposal of Uranium Mill Tailings);

• 40 CFR part 61, subpart W (National Emission Standards for Radon Emissions From Operating Mill Tailings); and

• 40 CFR part 63, subpart J (National Emission Standards for Polyvinyl Chloride and Copolymers Production).

In addition, the EPA regulations provide that we cannot delegate to a State any of the Category II authorities set forth in 40 CFR 63.91(g)(2). These include the following provisions: § 63.6(g), Approval of Alternative Non-Opacity Standards; § 63.6(h)(9), Approval of Alternative Opacity Standards; § 63.7(e)(2)(ii) and (f), Approval of Major Alternatives to Test Methods; § 63.8(f), Approval of Major Alternatives to Monitoring; and § 63.10(f), Approval of Major Alternatives to Recordkeeping and Reporting. Also, some Part 61 and Part 63 standards have certain provisions that cannot be delegated to the States. Furthermore, no authorities are delegated that require rulemaking in the Federal Register to implement, or where Federal overview is the only way to ensure national consistency in the application of the standards or requirements of CAA section 112. Finally, this action does not delegate any authority under section 112(r), the accidental release program.

All inquiries and requests concerning implementation and enforcement of the excluded standards in the State of New Mexico should be directed to the EPA Region 6 Office.

In addition, this delegation to NMED to implement and enforce certain NSPS and NESHAP authorities does not extend to sources or activities located in Indian country, as defined in 18 U.S.C. 1151. Under this definition, the EPA treats as reservations, trust lands validly set aside for the use of a Tribe even if the trust lands have not been formally designated as a reservation. Consistent with previous Federal program approvals or delegations, the EPA will continue to implement the NSPS and NESHAP in Indian country because NMED has not submitted information to demonstrate authority over sources and activities located within the exterior boundaries of Indian reservations and other areas in Indian country.

In approving the NSPS delegation, NMED will obtain concurrence from the EPA on any matter involving the interpretation of section 111 of the CAA or 40 CFR part 60 to the extent that implementation or enforcement of these provisions have not been covered by prior EPA determinations or guidance. See 51 FR 20649 (June 6, 1986).

In approving the NESHAP delegation, NMED will obtain concurrence from the EPA on any matter involving the interpretation of section 112 of the CAA or 40 CFR parts 61 and 63 to the extent that implementation or enforcement of these provisions have not been covered by prior EPA determinations or guidance.

We retain the right, as provided by CAA section 111(c)(2), to enforce any applicable emission standard or requirement under section 111.

We retain the right, as provided by CAA section 112(l)(7) and 40 CFR 63.90(d)(2), to enforce any applicable emission standard or requirement under section 112. In addition, the EPA may enforce any federally approved State rule, requirement, or program under 40 CFR 63.90(e) and 63.91(c)(1)(i). The EPA also has the authority to make decisions under the General Provisions (subpart A) of parts 61 and 63. We are delegating to NMED some of these authorities, and retaining others, as explained in sections V and VI above. In addition, the EPA may review and disapprove State determinations and subsequently require corrections. See 40 CFR 63.91(g)(1)(ii). EPA also has the authority to review NMED's implementation and enforcement of approved rules or programs and to withdraw approval if we find inadequate implementation or enforcement. See 40 CFR 63.96.

Furthermore, we retain any authority in an individual emission standard that may not be delegated according to provisions of the standard. Also, listed in footnote 2 of the part 63 delegation table at the end of this rule are the authorities that cannot be delegated to any State or local agency which we therefore retain.

Finally, we retain the authorities stated in the original delegation agreement. See 51 FR 20648-20650 (June 6, 1986).

NMED must provide any additional compliance related information to EPA, Region 6, Office of Enforcement and Compliance Assurance, within 45 days of a request under 40 CFR 63.96(a). In receiving delegation for specific General Provisions authorities, NMED must submit to EPA Region 6, on a semi-annual basis, copies of determinations issued under these authorities. See 40 CFR 63.91(g)(1)(ii). For 40 CFR part 63 standards, these determinations include: Section 63.1, Applicability Determinations; Section 63.6(e), Operation and Maintenance Requirements—Responsibility for Determining Compliance; Section 63.6(f), Compliance with Non-Opacity Standards—Responsibility for Determining Compliance; Section 63.6(h), Compliance with Opacity and Visible Emissions Standards—Responsibility for Determining Compliance; Sections 63.7(c)(2)(i) and (d), Approval of Site-Specific Test Plans; Section 63.7(e)(2)(i), Approval of Minor Alternatives to Test Methods; Section 63.7(e)(2)(ii) and (f), Approval of Intermediate Alternatives to Test Methods; Section 63.7(e)(iii), Approval of Shorter Sampling Times and Volumes When Necessitated by Process Variables or Other Factors; Sections 63.7(e)(2)(iv), (h)(2), and (h)(3), Waiver of Performance Testing; Sections 63.8(c)(1) and (e)(1), Approval of Site-Specific Performance Evaluation (Monitoring) Test Plans; Section 63.8(f), Approval of Minor Alternatives to Monitoring; Section 63.8(f), Approval of Intermediate Alternatives to Monitoring; Section 63.9 and 63.10, Approval of Adjustments to Time Periods for Submitting Reports; Section 63.10(f), Approval of Minor Alternatives to Recordkeeping and Reporting; and Section 63.7(a)(4), Extension of Performance Test Deadline.

The EPA oversees NMED's decisions to ensure the delegated authorities are being adequately implemented and enforced. We will integrate oversight of the delegated authorities into the existing mechanisms and resources for oversight currently in place. If, during oversight, we determine that NMED made decisions that decreased the stringency of the delegated standards, then NMED shall be required to take corrective actions and the source(s) affected by the decisions will be notified. See 40 CFR 63.91(g)(1)(ii) and 63.91(b). Our oversight authorities allow us to initiate withdrawal of the program delegation if the corrective actions taken are insufficient.

Sources located outside the boundaries of Bernalillo County and outside of Indian country should submit all information required pursuant to the delegated authorities in the Federal NSPS and NESHAP (40 CFR parts 60, 61 and 63) directly to the NMED at the following address: New Mexico Environment Department, P.O. Box 5469, Santa Fe, New Mexico 87502-5469. The NMED is the primary point of contact with respect to delegated NSPS and NESHAP authorities. Sources do not need to send a copy to the EPA. The EPA Region 6 waives the requirement that notifications and reports for delegated authorities be submitted to the EPA in addition to NMED in accordance with 40 CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii).2 For those authorities not delegated, sources must continue to submit all appropriate information to the EPA.

In the future, NMED will only need to send a letter of request to update their delegation to EPA, Region 6, for those NSPS which they have adopted by reference. The EPA will amend the relevant portions of the Code of Federal Regulations showing which NSPS standards have been delegated to NMED. Also, in the future, NMED will only need to send a letter of request for approval to EPA, Region 6, for those NESHAP regulations that NMED has adopted by reference. The letter must reference the previous up-front approval demonstration and reaffirm that it still meets the up-front approval criteria. We will respond in writing to the request stating that the request for delegation is either granted or denied. A Federal Register action will be published to inform the public and affected sources of the delegation, indicate where source notifications and reports should be sent, and to amend the relevant portions of the Code of Federal Regulations showing which NESHAP standards have been delegated to NMED.

We are approving the request by the NMED for the updated delegation of certain NSPS to NMED, and taking final action to approve the delegation of certain NESHAP to NMED, for all sources (both Title V and non-Title V sources). These updated regulations apply to certain NSPS promulgated by the EPA at 40 CFR part 60, as amended between September 24, 2013 and January 15, 2017; certain NESHAP promulgated by the EPA at 40 CFR part 61, as amended between January 1, 2011 and January 15, 2017; and other NESHAP promulgated by the EPA at 40 CFR part 63, as amended between August 30, 2013 and January 15, 2017, as adopted by the NMED (See the amendatory language at the end of this document for the specific standards delegated). The delegation of authority under this action does not apply to sources located in Bernalillo County, New Mexico, or to sources located in areas defined as Indian Country.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866. This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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). The EPA believes that this action does not have disproportionately high and adverse human health or 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 delegation is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

This action also does not have Federalism implications because it does 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state request to receive delegation of certain Federal standards, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing delegation submissions, EPA's role is to approve submissions, provided that they meet the criteria of the Clean Air Act. This action is not subject to the 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. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 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. 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 November 13, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR parts 60, 61, and 63 are 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 EPA-HQ-OPP-2017-0705 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 November 13, 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-2017-0705, 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 21, 2018 (83 FR 12311) (FRL-9974-76), 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 7E8560) by IR-4, Rutgers, The State University of New Jersey, 500 College Rd. East, Suite 201 W, Princeton, NJ 08540. The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of the microbial pesticide Metschnikowia fructicola strain NRRL Y-27328 in or on stone fruit group 12-12; small fruit vine climbing, except fuzzy kiwifruit subgroup 13-07F; and low growing berry subgroup 13-07G. That document referenced a summary of the petition prepared by the petitioner IR-4 and available in the docket via http://www.regulations.gov. There were no 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 of 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.”

EPA evaluated the available toxicological and exposure data on Metschnikowia fructicola strain NRRL Y-27328 and considered their validity, completeness, and reliability, as well as the relationship of this information to human risk. A full explanation of the data upon which EPA relied and its risk assessment based on those data can be found within the document entitled “Federal Food, Drug, and Cosmetic Act (FFDCA) Safety Determination for Metschnikowia fructicola strain NRRL Y-27328.” This document, as well as other relevant information, is available in the docket for this action as described under ADDRESSES.

The available data demonstrated that Metschnikowia fructicola strain NRRL Y-27328 is not significantly toxic, pathogenic, or infective via any route of exposure. Although there may be some exposure to residues when Metschnikowia fructicola strain NRRL Y-27328 is used on certain food commodities in accordance with label directions and good agricultural practices, there is a lack of concern due to the lack of potential for adverse effects. EPA also determined that retention of the Food Quality Protection Act (FQPA) safety factor was not necessary as part of the qualitative assessment conducted for Metschnikowia fructicola strain NRRL Y-27328.

Based upon its evaluation, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Metschnikowia fructicola strain NRRL Y-27328. Therefore, an exemption from the requirement of a tolerance is established for residues of Metschnikowia fructicola strain NRRL Y-27328 in or on the stone fruit group (group 12-12); the small fruit vine climbing subgroup, except fuzzy kiwifruit (subgroup 13-07F); and the low growing berry subgroup (subgroup 13-07G) when used in accordance with label directions and good agricultural practices.

An analytical method is not required because EPA is establishing an exemption from the requirement of a tolerance without any numerical limitation.

This action establishes a tolerance exemption 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:

The site to be deleted from the NPL is: the Old Southington Landfill Superfund Site located at Old Turnpike Road, Southington, Connecticut. A Notice of Intent to Delete for this Site was published in the Federal Register (83 FR 34513) on July 20, 2018.

The closing date for comments on the Notice of Intent to Delete was August 20, 2018. No public comments were received. Therefore, a responsiveness summary was not prepared and not placed in the docket, EPA-HQ-SFUND-2005-0011, on www.regulations.gov, nor in the local repositories listed above. EPA still believes the deletion action is still appropriate.

EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Deletion from the NPL does not preclude further remedial action. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system. Deletion of a site from the NPL does not affect responsible party liability in the unlikely event that future conditions warrant further actions.

For reasons set out in the preamble, 40 CFR part 300 is amended as follows:

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

The 2018 allocation of yellowfin sole total allowable catch for vessels participating in the BSAI trawl limited access fishery in the BSAI is 18,351 metric tons (mt) as established by the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018). In accordance with § 679.20(d)(1)(iii), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2018 allocation of yellowfin sole total allowable catch allocated as a directed fishing allowance for vessels participating in the BSAI trawl limited access fishery in the BSAI will soon be reached. Consequently, NMFS is prohibiting directed fishing for yellowfin sole for vessels participating in the BSAI trawl limited access fishery in the BSAI.

While this closure remains in effect, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for yellowfin sole by vessels fishing in the BSAI trawl limited access fishery in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 6, 2018.

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

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