Federal Register Vol. 83, No.179,

Federal Register Volume 83, Issue 179 (September 14, 2018)

Page Range46627-46848
FR Document

83_FR_179
Current View
Page and SubjectPDF
83 FR 46843 - Imposing Certain Sanctions in the Event of Foreign Interference in a United States ElectionPDF
83 FR 46768 - Sunshine Act MeetingsPDF
83 FR 46712 - Sunshine Act MeetingsPDF
83 FR 46734 - Sunshine Act MeetingsPDF
83 FR 46777 - New Car Assessment Program Public Meeting; ReschedulePDF
83 FR 46772 - Delegation of Authority to the Director of the Office of U.S. Foreign Assistance Resources Under Section 7076(b)(3) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2018PDF
83 FR 46771 - Delegation of Authority to the Under Secretary of State for Arms Control and International To Concur With the Use the Afghanistan Security Forces FundPDF
83 FR 46772 - Delegation of Authority to the Under Secretary of State for Arms Control and International Security To Concur With the Use of the Coalition Support Fund, Including the Coalition Readiness Support ProgramPDF
83 FR 46773 - Delegation to the Under Secretary of State for Arms Control and International Security To Concur With the Use of the Authority To Provide Support to Certain Governments for Border Security OperationsPDF
83 FR 46773 - Delegation of Authority to the Under Secretary of State for Arms Control and International Security To Concur With the Use of the Joint Improvised Explosive Device Defeat Fund AuthorityPDF
83 FR 46772 - Delegation of Authority to the Under Secretary of State for Arms Control and International Security To Concur With the Use of Security Assistance for Baltic Nations for a Joint Program for Interoperability and Deterrence Against AggressionPDF
83 FR 46772 - Delegation of Authority to the Under Secretary of State for Arms Control and International Security To Concur With the Use of the Southeast Asia Maritime Security Initiative AuthorityPDF
83 FR 46773 - Delegation of Authority to the Under Secretary of State for Arms Control and International Security To Concur With the Use of the Authority for Training Eastern European National Security Forces in the Course of Multilateral ExercisesPDF
83 FR 46772 - Delegation of Authority to the Under Secretary of State for Arms Control and International Security To Concur With the Use of the Counter-Isis Train and Equip FundPDF
83 FR 46771 - Rescission of Social Security Rulings 62-47, 65-33c, 66-19c, 67-54c, 68-47c, 71-23c, 72-14c, 72-31c, 82-19c, and 86-10cPDF
83 FR 46747 - Certificate of Alternative Compliance for the TUG JUDY MORAN Hull 123PDF
83 FR 46639 - Telemarketing Sales Rule FeesPDF
83 FR 46768 - Wealthn LLC and TigerShares TrustPDF
83 FR 46700 - Information Collection; Understanding Value Trade-Offs Regarding Fire Hazard Reduction Programs in the Wildland-Urban InterfacePDF
83 FR 46701 - Beaverhead-Deerlodge National Forest, Madison Ranger District; Montana; Strawberry to Cascade Allotment Management PlansPDF
83 FR 46701 - Bridger-Teton National Forest, Jackson Ranger District, Teton County, Wyoming; Snow King Mountain Resort On-Mountain Improvements Project Environmental Impact StatementPDF
83 FR 46659 - Drawbridge Operation Regulation; Sacramento River, Sacramento, CAPDF
83 FR 46754 - Adoption and Recirculation of the Final Environmental Impact Statement for the Wilton Rancheria Fee-to-Trust and Casino ProjectPDF
83 FR 46747 - Meeting of the Advisory Committee on Minority HealthPDF
83 FR 46660 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the Recticon/Allied Steel Superfund SitePDF
83 FR 46732 - Proposed Information Collection Request; Comment Request; Information Collection Request for Green Power Partnership and Combined Heat and Power Partnership; EPA ICR Number 2173.07 (Renewal), OMB Control No. 2060-0578PDF
83 FR 46711 - Privacy Act of 1974; System of Records; CorrectionPDF
83 FR 46709 - Procurement List; Additions and DeletionsPDF
83 FR 46710 - Procurement List; Proposed DeletionsPDF
83 FR 46712 - Notice of Public MeetingPDF
83 FR 46748 - 60-Day Notice of Proposed Information Collection: Continuum of Care Program Assistance Grant ApplicationPDF
83 FR 46704 - Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam: Final Results of Antidumping Duty Administrative Review, 2016-2017PDF
83 FR 46707 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingsPDF
83 FR 46760 - Agency Information Collection Activities; Comment Request; Unemployment Compensation for Federal Employees Handbook No. 391PDF
83 FR 46708 - Gulf of Mexico Fishery Management Council; Public MeetingPDF
83 FR 46708 - North Pacific Fishery Management Council; Public MeetingPDF
83 FR 46737 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP)-CE19-001, Injury Control Research Centers; Amended Notice of MeetingPDF
83 FR 46735 - Formations of, Acquisitions by, and Mergers of Savings and Loan Holding CompaniesPDF
83 FR 46735 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
83 FR 46776 - Agency Information Collection Activities; Revision of an Information Collection Request: Financial Responsibility, Trucking and Freight ForwardingPDF
83 FR 46711 - Defense Advisory Committee on Military Personnel Testing; Notice of Federal Advisory Committee MeetingPDF
83 FR 46733 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
83 FR 46745 - Product-Specific Guidances; Draft and Revised Draft Guidances for Industry; AvailabilityPDF
83 FR 46735 - Solicitation of Nominations for Appointment to the Board of Scientific Counselors Office of Public Health Preparedness and ResponsePDF
83 FR 46736 - Advisory Board on Radiation and Worker Health (ABRWH or the Advisory Board), Subcommittee on Procedures Review (SPR), National Institute for Occupational Safety and Health (NIOSH)PDF
83 FR 46736 - Advisory Board on Radiation and Worker Health (ABRWH or the Advisory Board), National Institute for Occupational Safety and Health (NIOSH)PDF
83 FR 46698 - Announcement of Intent To Establish the 2020 Dietary Guidelines Advisory Committee and Solicitation of Nominations for MembershipPDF
83 FR 46752 - Foreign Endangered Species; Receipt of Permit ApplicationsPDF
83 FR 46749 - Foreign Endangered Species; Marine Mammals; Receipt of Permit ApplicationsPDF
83 FR 46750 - Foreign Endangered Species; Receipt of Permit ApplicationsPDF
83 FR 46751 - Foreign Endangered Species; Receipt of Permit ApplicationsPDF
83 FR 46762 - Advisory Committee on Presidential Library-Foundation PartnershipsPDF
83 FR 46755 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
83 FR 46756 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
83 FR 46756 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
83 FR 46759 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Currently Approved Collection: Records Modification Form (FD-1115)PDF
83 FR 46758 - Importer of Controlled Substances Application: Alcami Carolinas CorporationPDF
83 FR 46762 - Advisory Committee on the Presidential Library-Foundation PartnershipsPDF
83 FR 46713 - Combined Notice of Filings #1PDF
83 FR 46714 - Notice of Complaint; East Texas Electric Cooperative, Inc. v. Public Service Company of Oklahoma, Southwestern Electric Power Company, AEP Oklahoma Transmission Company, AEP Southwestern Transmission CompanyPDF
83 FR 46714 - Notice of Request for Partial Waiver; Kansas Power PoolPDF
83 FR 46731 - Notice of Applications; Adelphia Gateway, LLCPDF
83 FR 46715 - Combined Notice of Filings #1PDF
83 FR 46715 - Order Rejecting Proposed Tariff Revisions, Providing Guidance and Providing Limited Compliance PeriodPDF
83 FR 46740 - Recognition and Withdrawal of Voluntary Consensus Standards; Draft Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
83 FR 46742 - 510(k) Third-Party Review Program; Draft Guidance for Industry, Food and Drug Administration Staff, and Third-Party Review Organizations; AvailabilityPDF
83 FR 46763 - Committee on Equal Opportunities in Science and Engineering; Notice of MeetingPDF
83 FR 46763 - Advisory Committee for Geosciences; Notice of MeetingPDF
83 FR 46738 - Appropriate Use of Voluntary Consensus Standards in Premarket Submissions for Medical Devices; Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
83 FR 46642 - Mergers and Transfers Between Multiemployer PlansPDF
83 FR 46757 - Large Residential Washers From Korea and Mexico; Scheduling of a Full Five-Year ReviewPDF
83 FR 46761 - Cumulative Report of Rescissions Proposals Pursuant to the Congressional Budget and Impoundment Control Act of 1974PDF
83 FR 46703 - Notice of Recommended Standard Methods for Use as Soil Health Indicator MeasurementsPDF
83 FR 46627 - Establishing a Performance Standard for Authorizing the Importation and Interstate Movement of Fruits and VegetablesPDF
83 FR 46770 - Administrative Declaration of an Economic Injury Disaster for the State of FloridaPDF
83 FR 46770 - Administrative Declaration of an Economic Injury Disaster for the State of CaliforniaPDF
83 FR 46639 - Amendment of Class D Airspace and Class E Airspace, and Revocation of Class E Airspace: New Smyrna Beach, FLPDF
83 FR 46763 - Exelon Generation Company, LLC; Oyster Creek Nuclear Generating StationPDF
83 FR 46775 - Agency Information Collection Activities: Requests for Comments; Clearance of Reinstate Approval of Information Collection: Aviation InsurancePDF
83 FR 46773 - Petition for Exemption; Summary of Petition Received; Russell TimmermanPDF
83 FR 46766 - Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7.23E, Obligations of Market MakersPDF
83 FR 46760 - Notice of Lodging of Proposed Consent Decree Under the Clean Water ActPDF
83 FR 46774 - Petition for Exemption; Summary of Petition Received; Silver Wings Drone Services, LLCPDF
83 FR 46774 - Petition for Exemption; Summary of Petition Received; Powers Flight GroupPDF
83 FR 46699 - Notice of New Fee Site; Federal Lands Recreation Enhancement ActPDF
83 FR 46699 - Notice of New Fee Sites; Federal Lands Recreation Enhancement ActPDF
83 FR 46702 - Notice of Proposed New Fee Sites; Federal Lands Recreation Enhancement ActPDF
83 FR 46701 - Notice of Proposed New Fee Sites; Federal Lands Recreation Enhancement ActPDF
83 FR 46762 - Agency Information Collection Activities: Comment RequestPDF
83 FR 46703 - Proposed Information Collection; Comment Request; License Transfer and Duplicate License ServicesPDF
83 FR 46761 - Earth Science Advisory Committee; MeetingPDF
83 FR 46753 - Notice of Availability of the Draft Environmental Impact Statement for the Rossi Mine Expansion Project, Elko County, NevadaPDF
83 FR 46681 - The Standard for Determining Joint-Employer StatusPDF
83 FR 46737 - Intent To Award a Single-Source Supplement; NoticePDF
83 FR 46733 - Environmental Impact Statements; Notice of AvailabilityPDF
83 FR 46698 - Agency Information Collection Activities: Proposed Collection; Comment Request-Generic Clearance To Conduct Pre-Testing of SurveysPDF
83 FR 46666 - Airworthiness Directives; The Boeing Company AirplanesPDF
83 FR 46641 - Allocation of Assets in Single-Employer Plans; Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Valuing and Paying BenefitsPDF
83 FR 46661 - 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; Proposed Amendment to Marketing Order 929 and Referendum OrderPDF
83 FR 46664 - Airworthiness Directives; Honeywell International Inc. Turbofan EnginesPDF
83 FR 46679 - Airworthiness Directives; Zodiac Seats France, Cabin Attendant SeatsPDF
83 FR 46677 - Airworthiness Directives; Airbus SAS AirplanesPDF
83 FR 46670 - Airworthiness Directives; Bombardier, Inc., AirplanesPDF
83 FR 46780 - Designation of Product Categories for Federal ProcurementPDF
83 FR 46812 - Accelerating Wireline and Wireless Broadband Deployment by Removing Barriers to Infrastructure InvestmentPDF

Issue

83 179 Friday, September 14, 2018 Contents Agricultural Marketing Agricultural Marketing Service PROPOSED RULES Marketing Orders: Cranberries Grown in Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in New York, 46661-46664 2018-19834 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Animal and Plant Health Inspection Service

See

Food and Nutrition Service

See

Forest Service

See

Natural Resources Conservation Service

See

Procurement and Property Management Office, Agriculture Department

NOTICES Intent to Establish the 2020 Dietary Guidelines Advisory Committee and Solicitation of Nominations for Membership, 46698 2018-20013
Animal Animal and Plant Health Inspection Service RULES Establishing a Performance Standard for Authorizing the Importation and Interstate Movement of Fruits and Vegetables, 46627-46639 2018-19984 Centers Disease Centers for Disease Control and Prevention NOTICES Meetings: Advisory Board on Radiation and Worker Health, National Institute for Occupational Safety and Health, 46736 2018-20015 Advisory Board on Radiation and Worker Health, Subcommittee on Procedures Review, National Institute for Occupational Safety and Health, 46736-46737 2018-20016 Disease, Disability, and Injury Prevention and Control Special Emphasis Panel; Amendment, 46737 2018-20024 Requests for Nominations: Board of Scientific Counselors, Office of Public Health Preparedness and Response, 46735-46736 2018-20017 Coast Guard Coast Guard RULES Drawbridge Operations: Sacramento River, Sacramento, CA, 46659-46660 2018-20043 NOTICES Certificates of Alternate Compliance: TUG JUDY MORAN Hull 123, 46747-46748 2018-20049 Commerce Commerce Department See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 46709-46711 2018-20033 2018-20034 Community Living Administration Community Living Administration NOTICES Award of a Single-Source Supplement: National Aging Network, 46737-46738 2018-19925 Defense Department Defense Department See

Navy Department

NOTICES Meetings: Defense Advisory Committee on Military Personnel Testing, 46711 2018-20020
Defense Nuclear Defense Nuclear Facilities Safety Board NOTICES Meetings; Sunshine Act, 46712 2018-20154 Drug Drug Enforcement Administration NOTICES Importers of Controlled Substances; Applications: Alcami Carolinas Corp., 46758-46759 2018-20001 Employment and Training Employment and Training Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Unemployment Compensation for Federal Employees Handbook No. 391., 46760-46761 2018-20027 Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Meetings: Water Security, 46712-46713 2018-20032
Environmental Protection Environmental Protection Agency RULES National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the Recticon/Allied Steel Superfund Site, 46660 2018-20039 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Request for Green Power Partnership and Combined Heat and Power Partnership, 46732-46733 2018-20036 Environmental Impact Statements; Availability, etc.: Weekly Receipts, 46733 2018-19923 Federal Aviation Federal Aviation Administration RULES Class D and E Airspace, Amendments; Class E Airspace, Revocations: New Smyrna Beach, FL, 46639 2018-19978 PROPOSED RULES Airworthiness Directives: Airbus SAS Airplanes, 46677-46679 2018-19767 Bombardier, Inc. Airplanes, 46670-46676 2018-19759 Honeywell International Inc. Turbofan Engines, 46664-46666 2018-19798 The Boeing Company Airplanes, 46666-46669 2018-19838 Zodiac Seats France, Cabin Attendant Seats, 46679-46681 2018-19797 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Aviation Insurance, 46775-46776 2018-19975 Petitions for Exemptions; Summaries: Powers Flight Group, 46774-46775 2018-19967 Russell Timmerman, 46773-46774 2018-19971 Silver Wings Drone Services, LLC, 46774 2018-19968 Federal Bureau Federal Bureau of Investigation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Records Modification Form, 46759 2018-20003 Federal Communications Federal Communications Commission RULES Accelerating Wireline and Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 46812-46840 2018-19547 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 46733-46734 2018-20019 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Adelphia Gateway, LLC, 46731-46732 2018-19996 Combined Filings, 46713-46715 2018-19995 2018-19999 Complaints: East Texas Electric Cooperative, Inc. v. Public Service Co. of Oklahoma, Southwestern Electric Power Co., AEP Oklahoma Transmission Co., AEP Southwestern Transmission Co., 46714-46715 2018-19998 Orders: Commonwealth Edison Co.; Delmarva Power and Light Co.; Atlantic City Electric Co.; Potomac Electric Power Co.; PJM Interconnection, LLC, 46715-46731 2018-19994 Requests for Partial Waivers: Kansas Power Pool, 46714 2018-19997 Federal Maritime Federal Maritime Commission NOTICES Meetings; Sunshine Act, 46734 2018-20151 Federal Motor Federal Motor Carrier Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Financial Responsibility, Trucking and Freight Forwarding, 46776-46777 2018-20021 Federal Reserve Federal Reserve System NOTICES Change in Bank Control Notices: Acquisitions of Shares of a Bank or Bank Holding Company, 46735 2018-20022 Formations of, Acquisitions by, and Mergers of Savings and Loan Holding Companies, 46735 2018-20023 Federal Trade Federal Trade Commission RULES Telemarketing Sales Rule Fees, 46639-46641 2018-20048 Fish Fish and Wildlife Service NOTICES Permit Applications: Foreign Endangered Species, 46749-46753 2018-20008 2018-20009 2018-20010 2018-20011 Food and Drug Food and Drug Administration NOTICES Guidance: 510(k) Third-Party Review Program, 46742-46745 2018-19992 Appropriate Use of Voluntary Consensus Standards in Premarket Submissions for Medical Devices, 46738-46740 2018-19989 Product-Specific Guidances, 46745-46747 2018-20018 Recognition and Withdrawal of Voluntary Consensus Standards, 46740-46742 2018-19993 Food and Nutrition Food and Nutrition Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Generic Clearance To Conduct Pre-Testing of Surveys, 46698-46699 2018-19910 Forest Forest Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Understanding Value Trade-Offs Regarding Fire Hazard Reduction Programs in the Wildland-Urban Interface, 46700-46701 2018-20046 Environmental Impact Statements; Availability, etc.: Beaverhead-Deerlodge National Forest, Madison Ranger District; Montana; Strawberry to Cascade Allotment Management Plans, 46701-46702 2018-20045 Bridger-Teton National Forest, Jackson Ranger District, Teton County, Wyoming; Snow King Mountain Resort On-Mountain Improvements Project, 46701 2018-20044 New Fee Sites, 46699-46702 2018-19963 2018-19964 2018-19965 2018-19966 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Community Living Administration

See

Food and Drug Administration

NOTICES Intent to Establish the 2020 Dietary Guidelines Advisory Committee and Solicitation of Nominations for Membership, 46698 2018-20013 Meetings: Advisory Committee on Minority Health, 46747 2018-20040
Homeland Homeland Security Department See

Coast Guard

Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Continuum of Care Program Assistance Grant Application, 46748 2018-20031 Industry Industry and Security Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: License Transfer and Duplicate License Services, 46703-46704 2018-19956 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Indian Gaming Commission

See

National Park Service

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam, 46704-46707 2018-20030 International Trade Com International Trade Commission NOTICES Complaints: Obstructive Sleep Apnea Treatment Mask Systems and Components Thereof, 46756-46757 2018-20005 Investigations; Determinations, Modifications, and Rulings, etc.: Large Residential Washers From Korea and Mexico, 46757-46758 2018-19987 Justice Department Justice Department See

Drug Enforcement Administration

See

Federal Bureau of Investigation

NOTICES Proposed Consent Decrees: Clean Water Act, 46760 2018-19969
Labor Department Labor Department See

Employment and Training Administration

Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Rossi Mine Expansion Project, Elko County, NV, 46753-46754 2018-19940 Management Management and Budget Office NOTICES Cumulative Report of Rescissions Proposals Pursuant to the Congressional Budget and Impoundment Control Act of 1974, 46761 2018-19986 NASA National Aeronautics and Space Administration NOTICES Meetings: Earth Science Advisory Committee, 46761-46762 2018-19953 National Archives National Archives and Records Administration NOTICES Charter Renewals: Advisory Committee on the Presidential Library-Foundation Partnerships, 46762 2018-20000 Meetings: Advisory Committee on Presidential Library-Foundation Partnerships, 46762 2018-20007 National Highway National Highway Traffic Safety Administration NOTICES Meetings: New Car Assessment Program Public Meeting; Reschedule, 46777 2018-20116 National Indian National Indian Gaming Commission NOTICES Environmental Impact Statements; Availability, etc.: Wilton Rancheria Fee-to-Trust and Casino Project, 46754-46755 2018-20042 National Labor National Labor Relations Board PROPOSED RULES Definition of Joint Employer, 46681-46697 2018-19930 National Oceanic National Oceanic and Atmospheric Administration NOTICES Meetings: Gulf of Mexico Fishery Management Council, 46708 2018-20026 Mid-Atlantic Fishery Management Council, 46707-46708 2018-20028 North Pacific Fishery Management Council, 46708-46709 2018-20025 National Park National Park Service NOTICES National Register of Historic Places: Pending Nominations and Related Actions, 46755-46756 2018-20004 2018-20006 National Science National Science Foundation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 46762-46763 2018-19957 Meetings: Advisory Committee for Geosciences, 46763 2018-19990 Committee on Equal Opportunities in Science and Engineering, 46763 2018-19991 National Resources Natural Resources Conservation Service NOTICES Recommended Standard Methods for use as Soil Health Indicator Measurements, 46703 2018-19985 Navy Navy Department NOTICES Privacy Act; Systems of Records; Correction, 46711-46712 2018-20035 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Environmental Assessments; Availability, etc.: Exelon Generation Company, LLC; Oyster Creek Nuclear Generating Station, 46763-46766 2018-19976 Pension Benefit Pension Benefit Guaranty Corporation RULES Allocation of Assets in Single-Employer Plans: Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Valuing and Paying Benefits, 46641-46642 2018-19835 Mergers and Transfers Between Multiemployer Plans, 46642-46659 2018-19988 Presidential Documents Presidential Documents EXECUTIVE ORDERS Elections, U.S.; Imposing Sanctions in the Event of Foreign Interference (EO 13848), 46841-46848 2018-20203 Procurement Procurement and Property Management Office, Agriculture Department PROPOSED RULES Designation of Product Categories for Federal Procurement, 46780-46810 2018-19681 Securities Securities and Exchange Commission NOTICES Applications: Wealthn LLC and TigerShares Trust, 46768-46770 2018-20047 Meetings; Sunshine Act, 46768 2018-20179 Self-Regulatory Organizations; Proposed Rule Changes: NYSE American LLC, 46766-46768 2018-19970 Small Business Small Business Administration NOTICES Disaster Declarations: California; Declaration of Economic Injury, 46770-46771 2018-19979 Florida; Declaration of Economic Injury, 46770 2018-19981 2018-19982 Social Social Security Administration NOTICES Rulings: Rescission of Social Security Rulings, 46771 2018-20050 State Department State Department NOTICES Delegations of Authority, 46771-46773 2018-20054 2018-20056 2018-20057 2018-20058 2018-20059 2018-20060 2018-20061 2018-20062 2018-20053 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

National Highway Traffic Safety Administration

Separate Parts In This Issue Part II Agriculture Department, Procurement and Property Management Office, Agriculture Department, 46780-46810 2018-19681 Part III Federal Communications Commission, 46812-46840 2018-19547 Part IV Presidential Documents, 46841-46848 2018-20203 Reader Aids

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

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

83 179 Friday, September 14, 2018 Rules and Regulations DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Parts 318 and 319 [Docket No. APHIS-2010-0082] RIN 0579-AD71 Establishing a Performance Standard for Authorizing the Importation and Interstate Movement of Fruits and Vegetables AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Final rule.

SUMMARY:

We are amending our regulations governing the importation of fruits and vegetables by broadening our existing performance standard to provide for approval of all new fruits and vegetables for importation into the United States using a notice-based process. We are also removing the region- or commodity-specific phytosanitary requirements currently found in these regulations. Likewise, we are making an equivalent revision of the performance standard in our regulations governing the interstate movement of fruits and vegetables from Hawaii and the U.S. territories (Guam, Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands) and removing the commodity-specific phytosanitary requirements from those regulations. This action will allow for the approval of requests to authorize the importation or interstate movement of new fruits and vegetables in a manner that enables a more flexible and responsive regulatory approach to evolving pest situations in both the United States and exporting countries. It will not, however, alter the science-based process in which the risk associated with importation or interstate movement of a given fruit or vegetable is evaluated or the manner in which risks associated with the importation or interstate movement of a fruit or vegetable are mitigated.

DATES:

Effective October 15, 2018.

FOR FURTHER INFORMATION CONTACT:

Regarding the commodity import request evaluation process, contact Mr. Benjamin J. Kaczmarski, Assistant Director, Regulatory Coordination and Compliance, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231; (301) 851-2127.

Regarding import conditions for particular commodities, contact Mr. Tony Román, Senior Regulatory Policy Specialist, Regulatory Coordination and Compliance, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231; (301) 851-2242.

SUPPLEMENTARY INFORMATION:

Background

Under the regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-83, referred to below as the regulations or the fruits and vegetables regulations), the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA) prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world to prevent plant pests from being introduced into and spread within the United States.

The regulations in 7 CFR part 318, “State of Hawaii and Territories Quarantine Notices” (referred to below as the Hawaii and territories regulations), prohibit or restrict the interstate movement of fruits, vegetables, and other products from Hawaii, Puerto Rico, the U.S. Virgin Islands, and Guam to the continental United States to prevent the spread of plant pests and noxious weeds that occur in Hawaii and the territories.

Under our current process for authorizing importation of fruits or vegetables under the fruits and vegetables regulations or interstate movement under the Hawaii and territories regulations, when APHIS receives a request from a country's national plant protection organization (NPPO) or a State department of agriculture to allow importation or interstate movement of a fruit or vegetable whose importation or interstate movement is currently not authorized, that NPPO or State department of agriculture must first gather and submit information to APHIS concerning that fruit or vegetable. In the case of imports, a description of the required information is contained in 7 CFR 319.5(d). This information, in addition to our own research, allows APHIS to conduct a pest risk analysis.

The pest risk analysis usually contains two main components: (1) A pest risk assessment (PRA), pest list, or other pest risk document to determine what pests of quarantine significance are associated with the proposed fruit or vegetable and which of those are likely to follow the import or interstate movement pathway, and (2) a risk management document (RMD), to identify phytosanitary measures that could be applied to the fruit or vegetable and evaluate the potential effectiveness of those measures. When the PRA, pest list, or other pest risk document is complete, if quarantine pests are associated with the fruit or vegetable in the country, State, or other region of origin,1 APHIS then evaluates whether the risk posed by each quarantine pest can be mitigated by one or more of the designated phytosanitary measures of the fruits and vegetables regulations or the designated phytosanitary measures of the Hawaii and territories regulations. If the designated phytosanitary measures alone are not sufficient to mitigate the risk posed by the importation or interstate movement of the commodity, any further action on approving the fruit or vegetable for importation or interstate movement is undertaken using the rulemaking process, which entails publishing a proposed and final rule. The pest risk analysis is made available to the public for review and comment at the time of the publication of the proposed rule.

1 Pest risk assessments can consider a country, part of a country, all or parts of several countries, a State or territory, part of a State or territory, or all or parts of several States or territories.

However, if APHIS determines in an RMD that the risk posed by each identified quarantine pest associated with the fruit or vegetable in the country, State, or other region of origin can be mitigated by one or more of the designated phytosanitary measures listed in § 319.56-4(b) of the fruits and vegetables regulations or § 318.13-4(b) of the Hawaii and territories regulations (these measures are referred to elsewhere in this document as designated phytosanitary measures or designated phytosanitary measures of the fruits and vegetables regulations), the findings are communicated using the notice-based process.

Under the notice-based process, APHIS publishes in the Federal Register, a notice announcing the availability of the pest risk analysis for a minimum of 60 days public comment. Each pest risk analysis made available for public comment through a notice specifies which of the designated phytosanitary measures APHIS would require to be applied. APHIS evaluates comments received in response to the notice of availability of the pest risk analysis. In the event that APHIS receives no comments, or in the event that commenters do not provide APHIS with analysis or data that indicate that the conclusions of the pest risk analysis are incorrect and that changes to the pest risk analysis are necessary, APHIS then publishes another notice in the Federal Register announcing that the Administrator has determined that, based on the information available, the application of one or more of the designated phytosanitary measures (as specified in a given pest risk analysis) is sufficient to mitigate the risk that quarantine pests could be introduced or disseminated within the United States via the importation or interstate movement of the fruit or vegetable. APHIS then authorizes the importation or interstate movement of the particular fruit or vegetable, subject to the conditions described in the pest risk analysis, on the date specified in the Federal Register notice.

In the event that commenters provide APHIS with information that shows that changes to the pest risk analysis are necessary, and if the changes made affect the conclusions of the analysis (e.g., that the application of the identified phytosanitary measures will not be sufficient to mitigate the risk posed by the identified pests), APHIS proceeds as follows:

• If additional phytosanitary measures beyond the designated phytosanitary measures are determined to be necessary to mitigate the risk posed by the particular fruit or vegetable, any further action on the fruit or vegetable follows the rulemaking process.

• If additional risk mitigation measures beyond those evaluated in the pest risk analysis are determined to be necessary, but the added measures only include one or more of the designated phytosanitary measures of the fruits and vegetables regulations or the designated phytosanitary measures of the Hawaii and territories regulations, APHIS may publish another notice announcing that the Administrator has determined that the application of one or more of the designated phytosanitary requirements will be sufficient to mitigate the risk that quarantine pests could be disseminated within the United States via the importation or interstate movement of the fruit or vegetable. The notice also explains the additional mitigation measures required for the importation or interstate movement of the fruit or vegetable to be authorized and how APHIS made its determination. APHIS then begins allowing the importation or interstate movement of the particular fruit or vegetable, subject to the conditions described in the revised pest risk analysis, beginning on the date specified in the Federal Register notice. Alternatively, if APHIS believes that the revisions to the pest risk analysis are substantial, and there may be continued uncertainty as to whether the designated measures are sufficient to mitigate the risk posed by importation of the fruit or vegetable, APHIS may elect to make the revised pest risk analysis available for public comment via a notice in the Federal Register, or may make any further action on approving the commodity for importation subject to rulemaking.

When commodities are approved for importation or interstate movement, either through rulemaking or the notice-based process, all permits issued list the commodity-specific importation requirements as determined by the pest risk analyses. Those requirements are also listed in Fruits and Vegetables Import Requirements (FAVIR) database,2 in the case of imported fruits and vegetables, as well as the appropriate manual, in the case of fruits and vegetables that are moved interstate from Hawaii and the U.S. territories. In order to ensure producer compliance with the listed procedures, an APHIS inspector or an official authorized by APHIS monitors any treatments (e.g., cold treatment, fumigation, irradiation) that are required. Upon arrival, consignments are inspected to ensure compliance with any particular shipping requirements, such as arrangement of fruits or vegetables on pallets or pest-exclusionary packaging, as well as for the presence of any pests of concern. In the event that a pest is discovered upon inspection at the port of first arrival, APHIS works with the inspectors and, in the case of imports, the NPPO of the exporting country, in order to investigate and, if necessary, re-evaluate shipments of the fruit or vegetable in question from that country or State.

2 You may search FAVIR at http://www.aphis.usda.gov/favir/.

On September 9, 2014, we published in the Federal Register (79 FR 53346-53352, Docket No. APHIS-2010-0082) a proposal3 to amend the regulations by expanding the use of the notice-based process to all decisions related to the importation and interstate movement of new fruits and vegetables. We also proposed to remove the remaining region- or commodity-specific phytosanitary requirements currently found in §§ 319.56-13, 319.56-20 through 319.56-70, 318.13-16, and 318.13-20 through 318.13-26. Since that time, § 319.56-71 through § 319.56-83 have been added to the regulations. This rule will remove those commodity-specific sections as well.

3 To view the proposed rule and the comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2010-0082.

We solicited comments concerning our proposal for 60 days ending November 10, 2014. We reopened and extended the deadline for comments until January 29, 2015, in a document published in the Federal Register on December 4, 2014 (79 FR 71973, Docket No. APHIS-2014-0082) and reopened and extended the deadline for comments a second time ending March 10, 2015, in a document published in the Federal Register on February 6, 2015 (80 FR 6665, Docket No. APHIS-2010-0082). We received 22 comments on the proposed rule by that date. They were from representatives of State and foreign governments, industry organizations, importers and exporters, distributors, and private citizens. Two comments were supportive. The remainder of the comments are discussed below by topic.

Comments on the Comment Period

Several commenters requested that we extend the comment period for the proposed rule. As stated previously, we extended the comment period twice. Along with the initial comment period on the proposed rule, these extensions gave the public 180 days in which to review the proposal and submit comments.

In addition to the comment period extension, several commenters said that APHIS should issue an additional notice to clarify the scope and application of the proposed rule.

One commenter observed that, in 2006 when we proposed a notice-based process for a limited number of fruit and vegetable import requests, APHIS provided four public field hearings to ensure adequate interested-party input. The commenter said that similar efforts were warranted in this case as well. Two commenters suggested that APHIS convene a stakeholder working group in association with the extension of the comment period in order to review the proposed rule. The commenters requested that special attention be paid to addressing significant barriers that impact trade within certain countries. The commenters argued that this working group would allow stakeholders to provide greater input for the proposed action.

While we did not issue an informational notice as suggested by the first commenters or convene a working group, we did host a webinar open to the public. This briefing provided an overview of the proposed changes and gave stakeholders an opportunity to learn more about the rule and to ask questions. Additionally, APHIS published an explanatory questions and answers (Q&A) document on the APHIS website.4 Unlike our 2006 action, which represented a new rulemaking procedure, we did not hold public meetings in association with the proposed rule because the noticed-based process has been successfully employed since that time and the proposed action was merely an expansion of the existing program.

4 You may view the Q&A document as well as slides from the webinar on the internet at http://www.aphis.usda.gov/wps/portal/aphis/ourfocus/planthealth/sa_import/sa_permits/sa_plant_plant_products/sa_fruits_vegetables/ct_q56-streamlining-questions-answers/!ut/p/a0/04_Sj9CPykssy0xPLMnMz0vMAfGjzOK9_D2MDJ0MjDzd3V2dDDz93HwCzL29jAx8TfULsh0VAY_1WkE!/.

General Comments

Several commenters stated that the proposed rule did not make clear which administrative review steps would be eliminated if APHIS adopted a notice-based process.

Since notices are not considered rulemaking documents, we anticipate that the primary administrative time-savings will be a result of procedural steps that apply to rulemaking in the Federal Government, such as the development and publication of a proposed rule or final rule. The notice-based process is an informal adjudication process in that the Code of Federal Regulations (7 CFR parts 318 and 319) sets out general mitigation measures and criteria that will be applied for the interstate movement or importation of fruits and vegetables into the United States. For each interstate movement or import request, the agency will conduct a risk assessment applicable to the specific commodity/place of origin and adjudicate the matter through the publication of a notice announcing the availability of the risk analysis and the solicitation of comments. The final notice published in the Federal Register constitutes a final agency action which may be subject to challenge in court under the Administrative Procedure Act.

Another commenter stated that since the proposed changes would include a broad list of most or all available risk mitigation measures, which is far beyond currently established treatments, inspections, and certifications, APHIS should explain how efficacy and performance will be measured within each commodity import request in order to evaluate whether the notice-based process will enhance trade.

The commenter's characterization of the proposed designated measures as being beyond established treatments is incorrect. Any phytosanitary treatment required must be among those that appear in the Plant Protection and Quarantine (PPQ) treatment manual. Any additions to the listed treatments in the treatment manual are done so only after we provide notice via a Federal Register notice and evaluate any comments received on that notice. Mitigations apart from phytosanitary treatments will continue to be recognized as parts of systems approaches via FAVIR, which will include information on all other required mitigations.

One commenter cited the 2010-2015 APHIS Strategic Plan's characterization of the Agency's mission to “Protect the health and value of U.S. agricultural, natural and other resources.” The commenter claimed that the proposal was in contradiction with that statement and requested clarification on how the action aligns with the APHIS mission, particularly as it relates to benefits to U.S. agricultural resources.

This rule does not alter the way in which APHIS carries out its mission to protect the health and value of U.S. agricultural, natural, and other resources. Our risk-based decisionmaking will not change as a result of this rule, nor will the level of phytosanitary security provided by the mitigation measures we will assign to address identified risks. U.S. consumers and businesses will benefit from more timely access to fruits and vegetables, and the more timely approval of the interstate movement of fruits and vegetables from Hawaii and the U.S. territories will be beneficial to U.S. producers.

Comments on Alternatives and Additions to the Proposed Action

One commenter suggested that, as an alternative approach, APHIS should consider import requests for each commodity in a way that encompasses at least three different perspectives: Pests and diseases, economic impact, and possible environmental impact.

The process for developing PRAs and determining mitigation measures would remain the same, giving the public opportunity to review, evaluate, and comment. Additionally, the requirements of the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.) will still apply. As such, for each additional fruit or vegetable approved for importation, APHIS will make available to the public documentation related to our analysis of the potential environmental effects of such new imports. This documentation will likely be made available at the same time and via the same Federal Register notice as the risk analysis for the proposed new import. Finally, while the notices published using the notice-based approach will not contain economic analyses, we will certainly continue to consider the potential economic consequences of pest introduction in the pest risk analysis. Similarly, we will document our consideration of trade volume and other economic factors. We commit to inclusion of an evaluation of the economic impacts of those actions that would have been deemed “economically significant” under Executive Order 12866 prior to the effective date of this final rule.

Several commenters said that APHIS should consider maintaining a dual track approach to considering import requests. The commenters suggested that requests that depend on a systems approach for risk mitigation be reviewed by APHIS so that APHIS could then make a determination as to whether a notice-based or rulemaking-based decision was appropriate based on a set of criteria that evaluate relative level of risk, the probability of success of the mitigation measures, and the economic impact of the associated pests in the event that an introduction took place. The commenters concluded that APHIS should then make the rationale for that determination available for public comment.

Under the expanded notice-based process, the development of pest risk analyses and determination of mitigation measures would remain the same, giving the public opportunity to review, evaluate, and comment. This action will not alter our science-based process for approval. If a risk analysis is conducted, the first step of which is typically a PRA or pest list, stakeholders will continue to have 30 days to consult on draft PRAs or pest lists before APHIS initiates the notice-based process. Once APHIS and the foreign NPPO have reached agreement on the PRA, the exporting country will notify APHIS about the mitigation measures they will be implementing. APHIS will then develop an RMD which includes specific requirements for addressing the pests of concern highlighted in the PRA or pest list. Market access requests developed via the notice-based process involving a systems approach will not be any less effective than rulemaking and will not compromise phytosanitary security.

Another commenter recommended that APHIS apply the expanded notice-based approach only to the importation of fruits and vegetables authorized after the regulations are finalized. The commenter added that market access requests currently under review should remain subject to the existing rulemaking process as transferring those requests from the existing rulemaking process into the new notice-based process could result in possible lost opportunities for the industry to review and provide comment. A second commenter wanted to know if the notice-based process would apply to pending decisions where draft PRAs have already been issued for public comment or only to new requests.

We disagree with the first commenter's suggestion. As stated in the proposed rule, initial notices in the Federal Register will be available for review and comment for a minimum of 60 days, which is identical to the comment period we typically set out for proposed rules. We also have the option of extending that comment period if necessary. This provides ample time for stakeholder review and engagement. As to the second commenter's question: This rule will be applied to all pending requests. If an importation or interstate movement request has already been submitted and the results of our pest risk analysis lead us to conclude that the commodity can be safely imported or moved interstate under one or more designated measures, then we will follow the notice-based approach. The final notice published in the Federal Register constitutes a final agency action which may be subject to challenge in court under the Administrative Procedure Act.

One commenter stated that APHIS should provide annual reports to the House and Senate Committees on Agriculture detailing import requests petitions addressed and granted each calendar year under the notice-based process. The commenter stated that these reports should be provided either annually or bi-annually.

While APHIS does not supply such reports currently, if either committee were to request documentation along these lines, we would supply it.

Comments on Notice-Based Process

One commenter asked if rulemaking would still be an option after this final rule became effective, and, if so, what the threshold would be for initiating rulemaking.

As stated in the proposed rule, we are removing the region- or commodity-specific phytosanitary requirements currently found in the regulations concerning importation or interstate movement from Hawaii and the Territories. The rulemaking process regarding importation or interstate movement of commodities will be replaced by the notice-based process.

Two commenters asked if the notice-based process would apply only to amendments of existing importation and interstate movement requirements or to all decisions related to the importation and interstate movement of fruits and vegetables.

The notice-based process will apply to all decisions related to the importation and interstate movement of fruits and vegetables, both to changes in requirements for those already allowed under the regulations and new requests for importation or interstate movement.

One commenter stated that it is unclear how the process will work if the new approval of a commodity or a change in requirement involves a phytosanitary measure that is listed in the proposed list of designated phytosanitary measures, but is not aligned to some other subpart elsewhere in the APHIS regulations.

Under the revised regulations, all phytosanitary measures pertaining to the importation of fruits and vegetables would be removed from the regulations. As stated previously, importation and interstate movement requirements would be found in FAVIR, in the case of imported fruits and vegetables, as well as the appropriate manual, in the case of fruits and vegetables that are moved interstate from Hawaii and the U.S. territories. Treatments would continue to be listed in the PPQ Treatment Manual and new treatments would continue to be approved in accordance with 7 CFR part 305.

The same commenter asked for clarification regarding reference to treatments within the CFR. As an example of this scenario, the commenter wondered whether the acceptance of a new phytosanitary treatment depends on the availability of this treatment option under the treatments listed in 7 CFR part 305.

Section 305.3 of the regulations sets forth a notice-based process for adding, revising, and removing treatments contained in the PPQ Treatment Manual. Under those regulations, APHIS will publish in the Federal Register a notice describing our reasons for adding, revising, or removing a treatment schedule and provide for public comment on the action. After the close of the comment period APHIS will publish a notice announcing our final determination and, if appropriate, make available the final treatment schedule if any changes were made as a result of public comments.

One commenter suggested that communication regarding import requests in the form of notices might not receive the same careful attention from industry representatives as is currently given to proposals issued under the traditional rulemaking process.

We disagree. Stakeholders and other interested parties have reason to attend to any potential changes in their industries or other areas of interest. We will continue to provide our draft PRAs on the APHIS website for review and comment before publication of an initial notice. We will also continue to provide alerts via the PPQ Stakeholder Registry and issue press releases. Finally, the initial notice will include a comment period of at least 60 days. These actions provide the public ample opportunity to submit opinions and information on any given action.

Another commenter said that statements by APHIS personnel made in the webinar described previously appeared to indicate that the notice-based process will be of use for revisions to existing regulations that are minor in nature. The commenter also cited the questions and answers document as supporting this impression. The commenter was therefore puzzled by the broad scope of the process as described in the proposal.

We proposed to use the notice-based approach for all commodity import requests. Any reference to the time it takes APHIS to address minor changes to the regulations under traditional rulemaking was intended to serve as an example of how even a straightforward alteration to the regulations may end up taking a very long time under the current system. More complicated rulemakings are typically even more time-consuming. It is the success of our more limited notice-based process that indicates that this broad process may be successfully implemented.

One commenter stated that we should expand upon our explanation of which measure out of the previous list of designated measures APHIS no longer finds sufficient to mitigate the phytosanitary risk posed by importation or interstate movement and how this will affect existing approved measures.

We believe the commenter misunderstood our characterization of the action as it was set out in the proposed rule. None of the five designated phytosanitary measures that had been previously approved for use with the notice-based process were determined to be inadequate to mitigate the pest risks for which they have been used, we instead proposed to expand and reorganize the categories of designated measures in conjunction with an expanded notice-based process.

Another commenter asked how APHIS intends to handle importation situations that include a disease or pest not previously dealt with in connection with the commodity under consideration for importation or interstate movement.

The same commenter wanted to know how APHIS will address a situation where a substantial importation volume of a given commodity is expected when the commodity originates in an area where one or more pests and diseases of quarantine significance exist. The commenter observed that high volumes of an export put pressure on both the exporter to adhere to the required systems approach, and on inspections in the exporting country and the United States.

Systems approaches allow for flexibility in modifying mitigation requirements when evolving pest situations both in the United States and in exporting countries occur. As stated previously, the scientific basis for the application of mitigations will not change. A novel or high import volume situation such as the one described by the commenter would be thoroughly analyzed in the PRA and RMD prior to the approval of any importation or interstate movement. APHIS considers that market access requests through notice-based process involving a systems approach will not be any less effective than rulemaking and will not compromise phytosanitary security.

One commenter wanted to know when the proposed systems approach would be described under the notice-based process in order to allow for stakeholder input. As described in the proposed rule, the process for developing PRAs and determining mitigation measures will remain the same, giving the public opportunity to review, evaluate, and comment. PPQ will continue to make the draft PRAs, pest lists, or other pest risk documents available for review and comment by stakeholders upon completion. After incorporating any changes to the draft PRA, APHIS will then publish in the Federal Register, a notice announcing the availability of the pest risk analysis for a minimum of 60 days public comment. Each pest risk analysis made available for public comment through a notice specifies which of the designated phytosanitary measures APHIS would require to be applied, giving interested parties a chance to specifically comment on those measures. As previously mentioned, the final notice published in the Federal Register constitutes a final agency action which may be subject to challenge in court under the Administrative Procedure Act.

The same commenter stated that the operational workplans developed for use by APHIS and the NPPO of the exporting country are documents that can be changed quickly if the need arises. The commenter said that operational workplans are therefore not legally binding documents, particularly as compared to the weight and authority of traditional rulemaking. The commenter asked what the consequences would be if an exporting country were to violate the terms of the operational workplan.

Contrary to the commenter's assertion, operational workplans are binding documents. Every operational workplan includes a detailed description of the objectives, proposed activities, and expected results and benefits of the importation of a specific commodity and the related roles responsibilities, and resources contributed by each signatory. Penalties for violations of the terms of an operational workplan vary depending upon the violation in question, but can include such things as temporary or permanent ban on the importation of the commodity from the violating country.

The same commenter observed that the proposed rule did not address the way in which APHIS intends to handle or incorporate treatment of pest free areas under the expanded notice-based process.

The requirements regarding pest free area recognition are found in § 319.56-5 of the regulations and remain unchanged by this rule.

The same commenter asked what the principle source of information regarding a given commodity would be under the expanded notice-based system. The commenter hypothesized that this information would be kept in FAVIR and asked if that database would be updated and kept current with the issuance of final notices regarding imports.

As stated in the proposed rule, fruits or vegetables approved for import under this approach will be listed in FAVIR, which is available on the APHIS website. Similarly, approved fruits and vegetables from Hawaii and the territories and their corresponding movement requirements will be listed in APHIS' Hawaii and Puerto Rico/U.S. Virgin Islands manuals, which are available for viewing and download on APHIS' website. All information in these sources will be updated as new commodities are approved for import or interstate movement.

The same commenter said that we did not specify when a preclearance program in the exporting country would be required. The commenter observed that preclearance is an important aspect of import requests, made more so as systems approaches become more complex.

Under some circumstances, we find that inspection prior to exportation is a necessary part of mitigating pest risk and the exporting country would need to inspect the commodity. Such an inspection requirement would be one of the mitigations included in the pest risk analysis and determination of need would be made on a case-by-case basis.

Comments on Pest Risk Analyses

One commenter observed that the PRA is simply a list of the pests and diseases present in the country requesting access to the U.S. market, while the more important issue for U.S. growers concerns the mitigation measures that will be required to address those pests and diseases. The commenter stated that this information should be made available in detail at the same time as the draft PRA is released for comment. The commenter also stated that, even if the RMD were to be released simultaneous to the draft PRA, it is fairly general in nature and does not provide details about the proposed systems approach.

As the commenter noted, mitigation measures for the pests of concern identified in the PRA are addressed in the RMD that is made available with the initial notice. This document is then subject to public comment for at least 60 days. As stated previously, we will continue to provide our draft PRAs on the APHIS website for review and comment before publication of an initial notice. Comments submitted during the 30 day review period for the draft PRA will be considered and may result in changes to the final PRA. The PRA also informs the process of country consultation, which occurs after development of the PRA. The RMD is drafted after this consultation has concluded. Generally, the measures included in the RMD are those that have been certified as effective, standardized, and proven via use on similar or identical pest complexes. Information on the specific steps necessary to meet the requirements of the systems approaches are located in the operational workplan established between APHIS and the exporting country. Copies of the operational workplan may be requested from APHIS.

The same commenter said that the removal of the PRA from the APHIS website after the close of the comment period makes no sense to stakeholders and industry observers. The commenter suggested that all PRAs remain available on the APHIS website for all interested parties to access.

The PRA to which the commenter refers is a draft document. We post all draft PRAs on the APHIS website for comment for 30 days prior to finalizing the PRA and RMD and subsequently publishing any rule or notice concerning those PRAs. After the close of the comment period we remove the PRA from the APHIS website in order to make any necessary changes. Subsequent versions of the PRA are made available for review and comment in association with the Federal Register notice on Regulations.gov. The draft PRA and a summary of any comments we received are preserved and are available upon request.

The same commenter noted that it is impossible to determine the priority assigned by APHIS to any specific import request, and thus the PRA that addresses that request, from the information available on the APHIS website. The commenter asked that APHIS provide some indication of the order in which the PRAs are being considered.

APHIS handles market access requests in the order that they are received. However, issues such as the need for additional information from the requesting country may delay a given request, at which point we often move on to the next request while awaiting necessary information.

Another commenter said that we should make the data underlying PRAs and RMDs more readily available to stakeholders. The commenter suggested that, where proprietary data issues occur, data summaries or other forms of explanation should be provided to stakeholders.

We disagree. PRAs and RMDs represent a synthesis of research, knowledge, and experience. As such, they offer the most complete picture of the pest and disease situation in any potential production area as well as the best representation of the measures APHIS believes will mitigate any phytosanitary risks. We do note that we include references in the completed documents, which interested parties may examine if they so choose.

Two commenters asked if details such as the credibility of the foreign NPPO, infrastructure of programs, and facilities being employed would be made available. The commenters particularly cited the State of Florida as having requested on many occasions to have the opportunity to work more closely with APHIS to lend expertise and increase their level of knowledge regarding import programs. The commenters concluded that it is not acceptable for the State of Florida to concur with a list of phytosanitary measures without knowing firsthand what is being done to assure compliance.

PPQ and the National Plant Board work together to utilize our respective Federal and State authorities, assets, and expertise to safeguard plant health and enable safe trade. While it is not appropriate from a policy standpoint nor practicable from a scheduling standpoint for individual States to directly participate in such activities on a regular basis, we do note that representatives from the State of Florida accompanied APHIS on a site visit to Peru in November 2014 in order to examine the cold treatment program for citrus from that country. In past years, representatives of other States such as California have been included in similar visits.

One commenter said that we should develop procedures for facilitating stakeholder consultation into the process prior to publication of the draft PRA, including a defined period for review and public comment on pest and disease lists.

With respect to allowing the public to comment on pest and disease lists during the drafting phase of the pest risk analyses, such a process would have a serious adverse impact on the timely preparation of these documents. We believe a process in which an analysis is prepared, reviewed, and brought to a point where wider circulation and publication for comment is appropriate yields constructive comments that can be considered before any analysis is finalized. Therefore, we do not plan to take comments on pest and disease lists while they are under development.

The same commenter suggested we include regulated non-quarantine pests and other pests of concern in the PRA in addition to pests of quarantine significance.

The pests described by the commenter are currently included in every PRA prepared by APHIS.

Another commenter observed that the expanded notice-based process will not provide time efficiencies in the pest risk analysis development process, which is responsible for long delays in the processing of pending import applications for fruit and vegetables. The commenter suggested that APHIS consider this part of the approval process with the goal of identifying options to create further efficiencies.

In 2011, APHIS began a business process improvement initiative to identify and ameliorate inefficiencies in the manner in which we evaluate and respond to import applications for fruits and vegetables. While this initiative does not pertain solely to pest risk analyses, we have been working on an ongoing basis to improve the pest risk analysis development process since the initiative began.

One commenter expressed concern that the time reduction associated with the notice-based process may negatively impact the scientific scrutiny needed for the assurance of safety against potential exotic pests and diseases. The commenter urged APHIS to ensure that any time reduction does not also include a less thorough review of the scientific and technical review process.

We agree with the commenter's point that APHIS should ensure that any time reduction does not result in a less thorough review. As stated in the proposed rule, we will continue our specific reviews following market access requests as we have always done and provide the public opportunity to review and comment on the documents produced as a result of those reviews. The amount of time we devote to developing these pest risk analyses will not change. The shortened time period discussed in the proposed rule was in reference to that portion of the rulemaking process that begins after the pest risk analysis is finalized.

Another commenter stated that the proposed expansion of the notice-based process increases the types of measures that may be used as part of approved systems approaches. The commenter questioned whether the additional measures, either alone or in concert, would maintain the efficacy of the more limited notice-based system currently in use. The commenter asked that APHIS clarify how a given performance standard would be set and where stakeholders would look in order to understand how the efficacy of these standards was measured. The commenter concluded that, while the RMD is supposedly where some of this information will be located, such documents do not necessarily include all of the data required for stakeholders to evaluate efficacy.

The documentation provided in support of an acceptable level of phytosanitary risk reduction will not change under the new process. The RMDs used for noticed-based process are identical to those used in traditional rulemaking. For new treatments we will also utilize a Treatment Evaluation Document, which specifically addresses the efficacy of those treatments with which we have less experience. We would note, however, that most treatments and mitigations required by APHIS are not novel. Various types of treatments (e.g., fumigation, heat treatment, and irradiation) and mitigations (e.g., pest-exclusionary structures, use of clean boxes for transit, and waxing) are effective against a wide variety of pests and diseases.

One commenter stated that we should consider limiting consignments of fruits and vegetables into States that have crops that are highly susceptible to infestation by pests and diseases from countries which do not have equivalent plant pest agencies. The commenter also stated that pest and risk information should be supplied to regulatory officials in those vulnerable States and regions.

We will continue to consider limiting distribution of imports on a case-by-case basis when the findings of pest risk analysis indicate that such an action might be necessary and if it is operationally feasible. Limited distribution is specifically cited as an example of a safeguarding and movement mitigation that may be applied. We provide our expertise via analysis in the form of pest risk assessments and other risk documentation, which is available to all interested parties via publication of material in the Federal Register as well as through PPQ's stakeholder registry.

Comments on Other Supporting Analyses

Several commenters asked if economic impact studies and determinations of significance or economic significance would remain part of the streamlined process.

Our determination as to whether a new agricultural commodity can be safely imported is based on the findings of the pest risk analysis, not on economic factors. However, we will continue to consider the potential economic consequences of pest introduction in the PRA. Similarly, we will document our consideration of trade volume and other economic factors.

One commenter said that the proposal appeared to create disparity in the consideration of the importation of fruits and vegetables versus other commodities, such as meat, citing a lack of interagency review and economic analysis as two such examples. The commenter stated that the import review process for all commodities should currently be of equivalent depth and rigor. Finally, the commenter concluded that the rulemaking process across all of APHIS' activities, not only those concerning the importation of fruits and vegetables, must be similarly time-consuming and therefore all in need of streamlining so that importations of all commodities may be treated equivalently.

We disagree with the commenter that market access requests for fruits and vegetables would be subject to less rigor and interagency review under the proposed rule than market access requests for other agricultural commodities, live animals, or animal products. As we stated previously in this document, we will continue to conduct PRAs, and these PRAs will continue to evaluate the potential economic consequences of pest introduction associated with the importation of the fruit or vegetable.

We agree with the commenter, however, regarding the need to evaluate and, if possible, streamline our processes regarding the importation of other agricultural commodities, live animals and animal products. Indeed, there is an ongoing APHIS initiative to do precisely that. The initiative has yielded a final rule 5 (83 FR 11845-11867, Docket No. APHIS-2008-0011) to restructure our plants for planting regulations to make them less cumbersome to change, and we are currently evaluating our regulations regarding the importation of live animals and animal products to identify how they could potentially be streamlined.

5 To view the final rule, its supporting documents, or the comments that we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2008-0011.

Another commenter said that it is crucial to maintain a review of specific varieties of fruits and vegetables in connection with the origin of the commodity in order to properly analyze the risks associated with exporting the commodity to the United States. The commenter stated that each region and crop variety poses different risks and should be reviewed separately in order to identify proper phytosanitary mitigation measures and receive relevant public comment.

We agree with the commenter. Our proposal was not to eliminate review of specific varieties of fruits and vegetables in connection with those varieties' country or region of origin, it was merely to remove those specific references from the regulations. We will continue our specific reviews following market access requests as we have always done and provide the public opportunity to review and comment on the documents produced as a result of those reviews. However, the requirements for the importation of specific commodities will no longer be found in the regulations themselves. The requirements will continue to be located in the FAVIR database or APHIS' Hawaii and Puerto Rico/U.S. Virgin Islands manuals.

One commenter cited the World Trade Organization's (WTO) Article 5, “Assessment of Risk and Determination of the Appropriate Level of Sanitary or Phytosanitary Protection,” which states: “In assessing the risk to animal or plant life or health and determining the measure to be applied for achieving the appropriate level of sanitary or phytosanitary protection from such risk, Members shall take into account as relevant economic factors: the potential damage in terms of loss of production or sales in the event of the entry, establishment or spread of a pest or disease; the costs of control or eradication in the territory of the importing Member; and the relative cost-effectiveness of alternative approaches to limiting risks.” The commenter argued that the elimination of the economic impact analysis is in conflict with the WTO mandate, as it will impact APHIS' ability to consider such consequences. The commenter concluded that, given the rapid changes to global fruit and vegetable production patterns, it is not reasonable for APHIS to make a blanket determination that the future economic impact of unspecified foreign imports entering the United States will always be of little significance.

We disagree that our actions are in conflict with WTO Article 5. As stated previously, we will continue to consider the potential economic consequences of pest introduction in the PRAs. This shift to a fully notice-based system will not alter that approach.

Comments on Phytosanitary Security

One commenter expressed concern regarding the varying capabilities of countries seeking to export fruit and vegetables to the United States to meet the proposed expanded mitigation measures APHIS may recommend. The commenter recommended that APHIS proceed cautiously on approving new market access from countries with regulatory agencies that have questionable capacity in meeting the scientifically based import requirements needed to ensure the phytosanitary security of U.S. produce.

Several commenters noted that the more steps that are included in a systems approach, the more chance that exists for error in its application. One of the commenters suggested that, therefore, particular attention should be paid to the way in which systems approaches are designed, executed, and enforced.

We disagree with the commenters that the number of steps in a systems approach is necessarily correlated to the likelihood of error in its application. Most mitigation measures that are included in systems approaches, such as packinghouse inspections, follow generally applicable standard operating procedures that typically do not vary significantly from systems approach to systems approach or country to country. In our experience, a systems approach that consists solely of such routine measures is unlikely to encounter errors in its application.

Rather, in our experience, the likelihood of error in the application of mitigation measures most often occurs in those relatively rare instances where the application of a mitigation measure in the systems approach does vary from country to country or site to site, with the chance for error increasing relative to the degree to which those measures differ from more routine measures. In such instances, to address this possibility for error, we exercise a higher degree of APHIS oversight to implement those particular mitigation measures. We also are more likely to conduct a follow-up site visit in the exporting country to monitor the implementation of the operational workplan.

The same commenter stated that it is impossible to test systems approaches designed to address complex pest and disease situations, some of which are being used for the first time, until a considerable volume of fruits or vegetables are imported under the requirements.

Many of these systems are already utilized by U.S. domestic producers to meet requirements required by our trading partners when exporting commodities from the United States. Further, as stated above, very few if any of the elements of the systems approaches will be novel; their effects are well known to APHIS and backed by years of research, knowledge, and experience.

Another commenter said that part of the reduction in the overall timeframe for consideration of import requests comes from the elimination of the Office of Management and Budget's (OMB's) ability to review APHIS rules. The commenter asked how APHIS will ensure that adequate resources are being devoted to mitigation measures in exporting countries or that the appropriate standards for approval of import requests are being achieved if OMB is precluded from undertaking a review of APHIS' actions.

As stated previously, the standards set by APHIS are phytosanitary in nature and, as such, are solely based on sound science. APHIS generally reviews its operational workplans and importation agreements on a yearly basis to ensure that exporting countries are able to continue to meet those requirements. In addition, APHIS will continue to apprise OMB of all notice-based import or interstate movement actions.

Comments on Stakeholder Engagement

One commenter stated that the domestic industry must be provided sufficient time for review and evaluation of any importation request and questioned whether the reduced timeframe afforded by the proposed streamlining process would provide adequate time for APHIS to properly conduct a pest risk analysis. The commenter also noted the absence of OMB review from the streamlined process.

Another commenter proposed that the expanded notice-based process would create a need for increased communication with U.S. stakeholders, specifically when those stakeholders are potentially impacted by specific commodities imported subject to phytosanitary mitigations. The commenter supposed that there would be an increased need for extended public comment periods as well as greater opportunity for stakeholders to evaluate the risk assessment process, including the data supporting inclusion of a given action within the required systems approach.

Another commenter questioned whether 60 days is sufficient time for the industry and other stakeholders to adequately review the science behind the PRA and risk mitigation document. The commenter argued that, depending upon the time of year that the notice is provided, the ability to gather adequate stakeholders with the technical expertise to provide useful input on APHIS' documents may be limited. The commenter asked whether APHIS intends to formally notify the industry upon receipt of a market access request and the beginning of the pest risk analysis development process. If not, the commenter wanted to know if an extension beyond the 60-day review period will be possible. A second commenter stated that stakeholders should be provided opportunities for comment and consultation prior to publication of the draft PRA.

In addition to the draft PRA review period of 30 days, the notices would provide for a comment period of at least 60 days, which would give interested parties a total of 90 days to review and comment on various aspects of the proposed action. While we will not be issuing notification when we first receive a market access request, as the pest risk analysis development process can be quite lengthy depending on the country, the pest situation, and the commodity, the notice-based process does not preclude us from extending the comment period when necessary. During the comment period for the initial notice, stakeholders will have further opportunity to comment on any aspect of the PRA they deem necessary. We have no plans to incorporate stakeholder review and consultation into the process prior to posting the draft PRA. The time savings and regulatory flexibility we anticipate as a result of this change will be realized only through shortening of the rule development process. We will continue to prepare scientific documentation with the same rigor as we have always utilized. In addition to the economic considerations required to be included in the PRA, APHIS will continue to apprise OMB of all notice-based import or interstate movement actions. Further, if the information that will be disseminated in a pest risk analysis is determined to be “influential” or “highly influential” as those terms are used in the Office of Management and Budget's “Final Information Quality Bulletin for Peer Review,” (see 70 FR 2664-2667, published January 14, 2005), then a peer review will be conducted in accordance with USDA's peer review guidance (see http://www.ocio.usda.gov/document/usdas-peer-review-guidelines).

The same commenter requested clarification of the current criteria for stakeholder notification in the event that a phytosanitary mitigation measure is no longer sufficient. The commenter also wanted to know how APHIS reaches such a conclusion via evaluation or review of technical data.

Interception of even one target quarantine pest for a commodity (usually those pests rated high or medium risk in the PRA) at a port of entry triggers an immediate review of the risk mitigations for that commodity. Other factors that may trigger review are an increase in the pest population in the exporting country and reports of a new pest in the exporting country. The procedures for adding or removing measures would be the same regardless of whether or not the fruit or vegetable in question was approved prior to the implementation of the proposed process.

Regarding our current process for notifying stakeholders in the event that we change the risk mitigations for a certain commodity, we issue a Federal Order alerting the general public to the changes in the mitigation measures; this Federal Order is issued through the APHIS Stakeholder Registry, among other means. Federal Orders constitute final agency action under the Administrative Procedure Act and may be subject to challenge in court. A Federal Order is usually accompanied by a letter to State plant regulatory officials regarding its issuance. As soon as possible, we update FAVIR and contact existing permit holders regarding the change. If the change in the mitigation structure will be permanent in nature, we initiate rulemaking to codify that change. The new process will be an initial and final notice regarding any permanent change to established mitigations.

Another commenter wanted to know what the process would be in the event that one or more of the designated phytosanitary measures is found insufficient to mitigate the phytosanitary risk associated with a given commodity or the pest risk analysis requires amendments as a result of stakeholder consultation.

Any necessary changes to the PRA based on stakeholder input would be made either at the end of the 30 day comment period specific to the PRA (prior to the publication of the initial notice) or following the close of the comment period on the initial Federal Register notice. Changes to the risk mitigation document would be made following the close of the comment period on the initial Federal Register notice. If information is provided during that time that leads us to conclude that the proposed mitigation measures are insufficient to mitigate the phytosanitary risk posed by the pests of concern, we would have the option of adding additional requirements to mitigate that risk or not finalizing the proposed action. We would notify stakeholders of our decision via Federal Register notice as well as other methods such as the PPQ Stakeholder Registry. Likewise, if the mitigation measures assigned to an already approved fruit or vegetable are found to be no longer sufficient, we will take measures appropriate to addressing the risk and communicate them through the same channels. In an emergency situation a Federal Order may be issued to alter the conditions of movement or halt it completely.

One commenter requested that APHIS provide more opportunity for stakeholders to provide input regarding import requests. The commenter argued that, in cases where exporting countries are less sophisticated in their agricultural practices than the United States, U.S. industry expertise would prove vital in designing an effective systems approach.

We disagree with the commenter's suggestion. If, based on the findings of our pest risk analysis, we determine that the fruit or vegetable cannot be imported safely, then we would not propose to allow for its importation. Our analyses have always included not only the efficacy of any required treatments or handling methods, but the ability of the exporting country to meet those standards. As stated previously, after initial approval for importation, we examine each program periodically to ensure that the NPPO and foreign exporters are operating according to established standards. The opportunity for public input, which is at least 60 days, is ample time in which stakeholders may address any concerns, questions, or additional necessary information to APHIS.

Comments on Trade Issues

One commenter expressed concern about a potential trade imbalance due to the requirement for cost recovery associated with preclearance and verification inspections through trust fund arrangements. The commenter stated that this obligation creates high administrative cost for U.S. importers and creates an imbalance in relation with trading partners, such as the European Union, that do not engage in cost recovery for phytosanitary inspections undertaken in the United States.

APHIS employs trust fund agreements only for countries that operate under preclearance programs that require APHIS personnel to be stationed in the country. Only a few countries have such programs, and the programs themselves pertain only to a few commodities exported to the United States from those countries. For these reasons, we believe that the commenter overstated the trade imbalances associated with the use of trust fund agreements and cost recovery.

It is worth noting, moreover, that the United States generally does not require such programs, but enters into them typically at the request of the exporting country or an export group from that country. Countries or export groups that request such programs do so based on a belief that the time and cost savings associated with preclearance inspections, rather than inspection at the port of first arrival into the United States, will justify the costs associated with the preclearance inspections. In instances where concern has been raised about the costs of the preclearance program, APHIS has worked with the NPPO to explore ways to minimize those costs.

Another commenter asked what assurances domestic producers have that facilitating our import approval process will prompt a similar response from foreign countries. The commenter also noted that a review of imports and exports of fruits and vegetables in recent years reveals that while imports into the United States continue to grow, exports of U.S. fruits and vegetables lag at a considerable pace. The commenter stated that this result is in direct opposition to assurances made regarding the United States concurrence with the WTO Sanitary and Phytosanitary (SPS) Agreement.

USDA actively and vigorously pursues foreign market access for U.S. products. These efforts have yielded a significant increase in U.S. exports of agricultural products in recent years; indeed, between 2006 and 2014, U.S. agricultural exports more than doubled. Under the SPS Agreement, signatory countries may set the level of phytosanitary protection that they consider appropriate, as long as there is a scientific justification. The level of phytosanitary protection often has direct bearing on how long it takes to approve a market access request. In some instances, USDA has successfully worked with foreign governments to set new terms for market access, thereby facilitating the import approval process for U.S. products.

The same commenter asked that APHIS provide the number of staff hours currently dedicated to fruit and vegetable importation issues and compare that to the number of staff hours that have been dedicated to working on new export opportunities for the U.S. fruit and vegetable industry.

We cannot provide such an accounting given that a number of APHIS staff members work on multiple import and export requests simultaneously. Without clear benefit to associated with keeping such a record, to do so would be time-consuming and overly burdensome. Streamlining our administrative processes will allow the agency to concentrate its expertise on more complex tasks. As stated previously, we also view this rule as a measure for improving the timeliness of our action on import requests, and of our emphasis on science as a basis for decisionmaking while maintaining the fullest practicable opportunity for all interested parties to participate in the process.

The same commenter stated that APHIS indicated during the December webinar that approximately 34 requests for imports into the United States have been handled under the notice-based process since its inception in 2007. The commenter said that APHIS should provide information on how much progress has been made with respect to exports from the United States in that time.

As noted above, U.S. agricultural exports more than doubled between 2006 and 2014.

Another commenter observed that during the webinar, APHIS indicated that U.S. agricultural export interests would benefit due to future reciprocity from trading partners. The commenter said that domestic fruit and vegetable exporters currently face plant quarantine barriers in foreign markets that appear to have little scientific basis, but there is no basis for the assumption that foreign markets will follow the U.S. lead in facilitating the importation process for U.S. commodities. The commenter inquired if APHIS has undertaken any studies to determine whether this claim involving foreign market reciprocity is correct or if APHIS has received assurances from trading partners that they will provide reciprocal access.

APHIS has not performed any studies analyzing the trade reciprocity factor. As stated previously, we are obligated to follow the principles and procedures of the SPS Agreement, including the obligation to base our regulations on science. Other signatories of the SPS Agreement are obligated to do so as well.

Miscellaneous Changes

We note that the proposed rule made reference to the fruit and vegetables manual PPQ maintained related to the importation of fruits and vegetables into the United States. Since the publication of the proposed rule, we have expanded the scope and detail of FAVIR, which rendered the fruit and vegetables manual unnecessarily duplicative. We have therefore discontinued that manual and removed references to it from this rule.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with that one change.

Executive Orders 12866, 13563, 13771 and Regulatory Flexibility Act

This final rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget. APHIS considers this rule to be a deregulatory action under Executive Order 13771 as the action will allow the public faster access to fruits and vegetables not previously approved for importation or movement from Hawaii and U.S. territories. This will benefit importers by allowing more timely access to U.S. markets. Quicker approval of requests to import fruits and vegetables will also benefit consumers. Details are provided in the economic analysis prepared for this rule.

The economic analysis provides a cost-benefit analysis, as required by Executive Orders 12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The economic analysis also provides a final regulatory flexibility analysis that examines the potential economic effects of this rule on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. Copies of the full analysis are available on the Regulations.gov website (see footnote 3 in this document for a link to Regulations.gov) or by contacting the person listed under FOR FURTHER INFORMATION CONTACT.

Requirements for the importation of fruits and vegetables include risk mitigation measures such as treatments, inspections, and certifications. A fruit or vegetable is not allowed to be imported until APHIS has completed the rulemaking process or the notice-based process to approve entry of the fruit or vegetable, based on specific phytosanitary measures. This rule will establish a single performance standard that, when met, will allow notice-based approval of fruits and vegetables for importation into the United States. The region- and commodity-specific phytosanitary requirements currently in the regulations will be removed and replaced with this single performance standard. The rule will also establish an equivalent single performance standard that will govern the interstate movement of fruits and vegetables from Hawaii and U.S. territories.

The rule will benefit both APHIS in its operations and U.S. businesses and consumers. APHIS will be able to use its resources more efficiently and the public will have quicker access to fruits and vegetables newly approved for importation or movement from Hawaii and U.S. territories.

APHIS has already established a notice-based process for allowing the importation or movement from Hawaii and U.S. territories of certain fruits and vegetables, subject to one or more specified phytosanitary measures. For fruits and vegetables for which the risks are not adequately mitigated by these specified measures and thereby do not qualify under the current notice-based process, the rulemaking process can range from 18 months to over 3 years. The time needed for approval under the notice-based process ranges from 6 to 12 months, that is, 6 months to 2.5 years sooner.

Consumers and businesses will benefit from more timely access to fruits and vegetables for which entry or movement approval currently requires rulemaking. While certain businesses will face increased competition at an earlier time for the subject fruits and vegetables, if they are produced domestically, overall economic impacts of the rule will be positive. The rule will not alter the manner in which the risks associated with a fruit or vegetable import or interstate movement request are evaluated and mitigated. Principal industries that could be affected by the rule, fruit and vegetable farms and fruit and vegetable importers, are largely composed of small entities.

As a measure of the net benefit of the rule to U.S. businesses and consumers, we estimate net welfare gains that could have been realized for a set of past import actions (11 import rules allowing 8 commodities from 7 countries or regions, in various combinations) if the quicker, notice-based process for acquiring market access had been possible. The rules were in preparation or promulgated over the 7 year period, 2012 through 2018. The 7 year sum of annual net welfare gains is estimated to range from about $13.7 million to $47.5 million, yielding annual average net welfare gains from these import actions of $2.0 million to $6.8 million.

Net welfare gains that could have been realized under this rule for this set of import actions range from about $1 million to $17 million (calculated as the low-range annual net welfare gain multiplied by half year and the high-range annual net welfare gain multiplied by 2.5 years). These estimates are derived based on the time period and commodities specified, and are considered representative of future welfare gains that will be attributable to the rule. Net welfare gains actually realized will depend on the particular commodities that acquire market access, their source countries, and market conditions at that time.

Interpreting these gains as cost savings accrued by using the quicker notice-based process rather than having to wait for rule promulgation, and in accordance with guidance on complying with Executive Order 13771, the primary cost savings estimate for this rule is $562,500. This value is the mid-point estimate of cost savings annualized in perpetuity using a 7 percent discount rate.

Executive Order 12988

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

Executive Order 13175

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

APHIS has assessed the impact of this rule on Indian Tribes and determined that this rule does not, to our knowledge, have Tribal implications that require tribal consultation under Executive Order 13175. If a Tribe requests consultation, APHIS will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.

National Environmental Policy Act

The majority of the regulatory changes in this document are nonsubstantive, and would therefore have no effects on the environment. However, this rule will allow APHIS to approve certain new fruits and vegetables for importation into the United States without undertaking rulemaking. Despite the fact that those fruits and vegetable imports will no longer be contingent on the completion of rulemaking, the requirements of the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.) will still apply. As such, for each additional fruit or vegetable approved for importation, APHIS will make available to the public documentation related to our analysis of the potential environmental effects of such new imports. This documentation will likely be made available at the same time and via the same Federal Register notice as the risk analysis for the proposed new import.

Paperwork Reduction Act

In accordance with section 3507 (d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), some of the information collection requirements included in this final rule are approved by OMB under control number 0579-0346. In addition, on January 29, 2018, APHIS published a 60-day notice in the Federal Register (83 FR 4023-4024, Docket No. APHIS-2017-0108), to reinstate OMB control number 0579-0049 which includes burden activities implemented by this rule. In accordance with the procedure for reinstating an information collection, USDA will be publishing a 30-day notice in the Federal Register. Once OMB control number 0579-0049 is approved, as fruits and vegetables are approved for importation or interstate movement based on this rule, their associated burden activities and burden will be added to the information collection via the submission of a quarterly report to OMB.

E-Government Act Compliance

The Animal and Plant Health Inspection Service is committed to compliance with the EGovernment 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. For information pertinent to E-Government Act compliance related to this rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2483.

List of Subjects 7 CFR Part 318

Cotton, Cottonseeds, Fruits, Guam, Hawaii, Plant diseases and pests, Puerto Rico, Quarantine, Transportation, Vegetables, Virgin Islands.

7 CFR Part 319

Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.

Accordingly, we are amending 7 CFR parts 318 and 319 as follows:

PART 318—STATE OF HAWAII AND TERRITORIES QUARANTINE NOTICES 1. The authority citation for part 318 continues to read as follows: Authority:

7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, and 371.3.

§ 318.13-2 [Amended]
2. Section 318.13-2 is amended by removing the definition for “Approved growing media”. 3. Section 318.13-4 is revised to read as follows:
§ 318.13-4 Authorization of certain fruits and vegetables for interstate movement.

(a) Determination by the Administrator. No fruit or vegetable is authorized for interstate movement from Hawaii or the territories unless the Administrator has determined that the risk posed by each quarantine pest associated with the fruit or vegetable can be reasonably mitigated by the application of one or more phytosanitary measures designated by the Administrator.

(b) Designated phytosanitary measures. (1) The fruits and vegetables are subject to phytosanitary treatments, which could include, but are not limited to, pest control treatments in the field or growing site, and post-harvest treatments.

(2) The fruits and vegetables are subject to growing area pest mitigations, which could include, but are not limited to, detection surveys, trapping requirements, pest exclusionary structures, and field inspections.

(3) The fruits and vegetables are subject to safeguarding and movement mitigations, which could include, but are not limited to, safeguarded transport, box labeling, limited distribution, insect-proof boxes, and importation as commercial consignments only.

(4) The fruits and vegetables are subject to administrative mitigations, which could include, but are not limited to, registered fields or orchards, registered growing sites, registered packinghouses, inspection in the State of origin by an inspector, and operational workplan monitoring.

(5) The fruits and vegetables are subject to any other measures deemed appropriate by the Administrator.

(c) Authorized fruits and vegetables—(1) Comprehensive list. The name and origin of all fruits and vegetables authorized for interstate movement under this section, as well as the applicable requirements for their movement, may be found on the internet at https://www.aphis.usda.gov/aphis/ourfocus/planthealth/complete-list-of-electronic-manuals.

(2) Fruits and vegetables authorized for interstate movement prior to October 15, 2018. Fruits and vegetables that were authorized for interstate movement under this subpart as of October 15, 2018 may continue to be moved interstate under the same requirements that applied before October 15, 2018, except as provided in paragraph (c)(4) of this section.

(3) Other fruits and vegetables. Fruits and vegetables not already authorized for interstate movement as described in paragraph (c)(2) of this section may be authorized for interstate movement only after:

(i) APHIS has analyzed the pest risk posed by the interstate movement of a fruit or vegetable and has determined that the risk posed by each quarantine pest associated with the fruit or vegetable can be reasonably mitigated by the application of one or more phytosanitary measures;

(ii) APHIS has made its pest risk analysis and determination available for public comment for at least 60 days through a notice published in the Federal Register; and

(iii) The Administrator has announced his or her decision in a subsequent Federal Register notice to begin allowing interstate movement of the fruit or vegetable subject to the phytosanitary measures specified in the notice.

(4) Changes to phytosanitary measures. (i) If the Administrator determines that the phytosanitary measures required for a fruit or vegetable that has been authorized interstate movement under this subpart are no longer sufficient to reasonably mitigate the pest risk posed by the fruit or vegetable, APHIS will prohibit or further restrict interstate movement of the fruit or vegetable. APHIS will also publish a notice in the Federal Register advising the public of its finding. The notice will specify the amended interstate movement requirements, provide an effective date for the change, and invite public comment on the subject.

(ii) If the Administrator determines that any of the phytosanitary measures required for a fruit or vegetable that has been authorized interstate movement under this subpart are no longer necessary to reasonably mitigate the pest risk posed by the fruit or vegetable, APHIS will make new pest risk documentation available for public comment, in accordance with paragraph (c)(3) of this section, prior to allowing interstate movement of the fruit or vegetable subject to the phytosanitary measures specified in the notice.

(Approved by the Office of Management and Budget under control number 0579-0346)
§ 318.13-13 [Amended]
4. Section 318.13-13 is amended by removing the last sentence.
§ 318.13-16 [Removed]
5. Section 318.13-16 is removed.
§ 318.13-17 [Redesignated as § 318.13-16]
6. Section 318.13-17 is redesignated as § 318.13-16.
§ 318.13-16 [Amended]
7. In newly redesignated § 318.13-16, paragraph (a)(1) is amended by removing the word “under” and adding the words “in accordance with” in its place.
§§ 318.13-18 through 318.13-22 [Removed]
8. Sections 318.13-18 through 318.13-22 are removed.
§ 318.13-23 [Redesignated as § 318.13-17]
9. Section 318.13-23 is redesignated as § 318.13-17.
§§ 318.13-24 through 318.13-26 [Removed]
10. Sections 318.13-24 through § 318.13-26 are removed. PART 319—FOREIGN QUARANTINE NOTICES 11. The authority citation for part 319 continues to read as follows: Authority:

7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

Subpart—Citrus Fruit [Removed] 12. Subpart—Citrus Fruit, consisting of § 319.28, is removed.
§ 319.56-2 [Amended]
13. Section 319.56-2 is amended by removing the definitions for “Above ground parts,” “Cucurbits”, “Field”, “Place of production”, “Production site”, and “West Indies”. 14. Section 319.56-4 is revised to read as follows:
§ 319.56-4 Authorization of certain fruits and vegetables for importation.

(a) Determination by the Administrator. No fruit or vegetable is authorized importation into the United States unless the Administrator has determined that the risk posed by each quarantine pest associated with the fruit or vegetable can be reasonably mitigated by the application of one or more phytosanitary measures designated by the Administrator and the fruit or vegetable is imported into the United States in accordance with, and as stipulated in, the permit issued by the Administrator.

(b) Designated phytosanitary measures. (1) The fruits and vegetables are subject to phytosanitary treatments, which could include, but are not limited to, pest control treatments in the field or growing site, and post-harvest treatments.

(2) The fruits and vegetables are subject to growing area pest mitigations, which could include, but are not limited to detection surveys, trapping requirements, pest exclusionary structures, and field inspections.

(3) The fruits and vegetables are subject to safeguarding and movement mitigations, which could include, but are not limited to, safeguarded transport, box labeling, limited distribution, insect-proof boxes, and importation as commercial consignments only.

(4) The fruits and vegetables are subject to administrative mitigations, which could include, but are not limited to, registered fields or orchards, registered growing sites, registered packinghouses, inspection in the country of origin by an inspector or an official of the national plant protection organization of the exporting country, and operational workplan monitoring.

(5) The fruits and vegetables are subject to any other measures deemed appropriate by the Administrator.

(c) Authorized fruits and vegetables—(1) Comprehensive list. The name and origin of all fruits and vegetables authorized importation under this section, as well as the applicable requirements for their importation, may be found on the internet at https://epermits.aphis.usda.gov/manual.

(2) Fruits and vegetables authorized importation prior to October 15, 2018. Fruits and vegetables that were authorized importation under this subpart either directly by permit or by specific regulation as of October 15, 2018 may continue to be imported into the United States under the same requirements that applied before October 15, 2018, except as provided in paragraph (c)(4) of this section.

(3) Other fruits and vegetables. Fruits and vegetables not already authorized for importation as described in paragraph (c)(2) of this section may be authorized importation only after:

(i) APHIS has analyzed the pest risk posed by the importation of a fruit or vegetable from a specified foreign region and has determined that the risk posed by each quarantine pest associated with the fruit or vegetable can be reasonably mitigated by the application of one or more phytosanitary measures;

(ii) APHIS has made its pest risk analysis and determination available for public comment for at least 60 days through a notice published in the Federal Register; and

(iii) The Administrator has announced his or her decision in a subsequent Federal Register notice to authorize the importation of the fruit or vegetable subject to the phytosanitary measures specified in the notice.

(4) Changes to phytosanitary measures. (i) If the Administrator determines that the phytosanitary measures required for a fruit or vegetable that has been authorized importation under this subpart are no longer sufficient to reasonably mitigate the pest risk posed by the fruit or vegetable, APHIS will prohibit or further restrict importation of the fruit or vegetable. APHIS will also publish a notice in the Federal Register advising the public of its finding. The notice will specify the amended importation requirements, provide an effective date for the change, and will invite public comment on the subject.

(ii) If the Administrator determines that any of the phytosanitary measures required for a fruit or vegetable that has been authorized importation under this subpart are no longer necessary to reasonably mitigate the pest risk posed by the fruit or vegetable, APHIS will make new pest risk documentation available for public comment, in accordance with paragraph (c)(3) of this section, prior to allowing importation of the fruit or vegetable subject to the phytosanitary measures specified in the notice.

(Approved by the Office of Management and Budget under control number 0579-0049)
§§ 319.56-13 through 319.56-83 [Removed]
15. Sections 319.56-13 through 319.56-83 are removed. Done in Washington, DC, this 10th day of September 2018. Greg Ibach, Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2018-19984 Filed 9-13-18; 8:45 am] BILLING CODE 3410-34-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0328; Airspace Docket No. 18-ASO-7] RIN 2120-AA66 Amendment of Class D Airspace and Class E Airspace, and Revocation of Class E Airspace: New Smyrna Beach, FL AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule, correction.

SUMMARY:

This action corrects a final rule published in the Federal Register on August 23, 2018, amending Class D airspace and Class E airspace extending upward from 700 feet or more above the surface at New Smyrna Beach Municipal Airport, New Smyrna Beach, FL. The longitude coordinate symbols for Massey Ranch Airpark listed in Class E airspace areas extending upward from 700 feet were typed as degrees, minutes, minutes instead of degrees, minutes, and seconds. Also, a parenthesis was excluded from the airport's geographic coordinates.

DATES:

Effective 0901 UTC, November 8, 2018. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

FOR FURTHER INFORMATION CONTACT:

John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Av., College Park, GA 30337; telephone (404) 305-6364.

SUPPLEMENTARY INFORMATION:

History

The FAA published a final rule in the Federal Register (83 FR 42585, August 23, 2018) for Doc. No. FAA-2018-0328, amending Class D airspace, and Class E airspace extending upward from 700 feet or more above the surface at New Smyrna Beach Municipal Airport, New Smyrna Beach, FL. Subsequent to publication, the FAA found that the symbols of the longitude coordinate for Massey Ranch Airpark, listed in the description under Class E airspace extending upward from 700 feet or more above the surface, was printed incorrectly. Also, a parenthesis was omitted from the geographic coordinates of New Smyrna Beach Municipal Airport. This action corrects these errors.

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

Correction to Final Rule

Accordingly, pursuant to the authority delegated to me, in the Federal Register of August 23, 2018 (83 FR 42585) FR Doc. 2018-18035, Amendment of D Airspace and Class E Airspace, and Revocation of Class E Airspace; New Smyrna Beach, FL, is corrected as follows:

§ 71.1 [Amended]
ASO FL E5 New Smyrna Beach, FL [Corrected] On page 42586, column 3 line 53, remove Lat. 29°03′21″ N, long. 80°56′56″ W) and add in its place (Lat. 29°03′21″ N, long. 80°56′56″ W). On page 42586, column 3 line 55, remove (Lat. 28°58′44″ N, long. 80°55′29′ W) and add in its place (Lat. 28°58′44″ N, long. 80°55′29″ W) Issued in College Park, Georgia, on September 6, 2018. Ken Brissenden, Acting Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
[FR Doc. 2018-19978 Filed 9-13-18; 8:45 am] BILLING CODE 4910-13-P
FEDERAL TRADE COMMISSION RIN 3084-AA98 16 CFR Part 310 Telemarketing Sales Rule Fees AGENCY:

Federal Trade Commission.

ACTION:

Final rule.

SUMMARY:

The Federal Trade Commission (the “Commission”) is amending its Telemarketing Sales Rule (“TSR”) by updating the fees charged to entities accessing the National Do Not Call Registry (the “Registry”) as required by the Do-Not-Call Registry Fee Extension Act of 2007.

DATES:

This final rule (the revised fees) will become effective October 1, 2018.

ADDRESSES:

Copies of this document are available on the internet at the Commission's website: https://www.ftc.gov.

FOR FURTHER INFORMATION CONTACT:

Ami Joy Dziekan, (202) 326-2648, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Room CC-9225, Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

To comply with the Do-Not-Call Registry Fee Extension Act of 2007 (Pub. L. 110-188, 122 Stat. 635) (“Act”), the Commission is amending the TSR by updating the fees entities are charged for accessing the Registry as follows: The revised rule increases the annual fee for access to the Registry for each area code of data from $62 to $63 per area code; and increases the maximum amount that will be charged to any single entity for accessing area codes of data from $17,021 to $17,406. Entities may add area codes during the second six months of their annual subscription; the fee for those additional area codes of data increases from $31 to $32.

These increases are in accordance with the Act, which specifies that beginning after fiscal year 2009, the dollar amounts charged shall be increased by an amount equal to the amounts specified in the Act, multiplied by the percentage (if any) by which the average of the monthly consumer price index (for all urban consumers published by the Department of Labor) (“CPI”) for the most recently ended 12-month period ending on June 30 exceeds the CPI for the 12-month period ending June 30, 2008. The Act also states that any increase shall be rounded to the nearest dollar and that there shall be no increase in the dollar amounts if the change in the CPI since the last fee increase is less than one percent. For fiscal year 2009, the Act specified that the original annual fee for access to the Registry for each area code of data was $54 per area code, or $27 per area code of data during the second six months of an entity's annual subscription period, and that the maximum amount that would be charged to any single entity for accessing area codes of data would be $14,850.

The determination whether a fee change is required and the amount of the fee change involves a two-step process. First, to determine whether a fee change is required, we measure the change in the CPI from the time of the previous increase in fees. There was an increase in the fees for fiscal year 2018. Accordingly, we calculated the change in the CPI since last year, and the increase was 2.25 percent. Because this change is over the one percent threshold, the fees will change for fiscal year 2019.

Second, to determine how much the fees should increase this fiscal year, we use the calculation specified by the Act set forth above: The percentage change in the baseline CPI applied to the original fees for fiscal year 2009. The average value of the CPI for July 1, 2007 to June 30, 2008 was 211.702; the average value for July 1, 2017 to June 30, 2018 was 248.126, an increase of 17.21 percent. Applying the 17.21 percent increase to the base amount from fiscal year 2009, leads to a $63 fee for access to a single area code of data for a full year for fiscal year 2019, an increase of $1 from last year. The actual amount is $63.29, but when rounded, pursuant to the Act, $63 is the appropriate fee. The fee for accessing an additional area code for a half year increases from $31 to $32 (rounded from $31.65). The maximum amount charged increases to $17,406 (rounded from $17,405.69).

Administrative Procedure Act; Regulatory Flexibility Act; Paperwork Reduction Act. The revisions to the Fee Rule are technical in nature and merely incorporate statutory changes to the TSR. These statutory changes have been adopted without change or interpretation, making public comment unnecessary. Therefore, the Commission has determined that the notice and comment requirements of the Administrative Procedure Act do not apply. See 5 U.S.C. 553(b). For this reason, the requirements of the Regulatory Flexibility Act also do not apply. See 5 U.S.C. 603, 604.

Pursuant to the Paperwork Reduction Act, 44 U.S.C. 3501-3521, the Office of Management and Budget (“OMB”) approved the information collection requirements in the Amended TSR and assigned the following existing OMB Control Number: 3084-0169. The amendments outlined in this Final Rule pertain only to the fee provision (§ 310.8) of the Amended TSR and will not establish or alter any record keeping, reporting, or third-party disclosure requirements elsewhere in the Amended TSR.

List of Subjects in 16 CFR Part 310

Advertising, Consumer protection, Reporting and recordkeeping requirements, Telephone, Trade practices.

Accordingly, the Federal Trade Commission amends part 310 of title 16 of the Code of Federal Regulations as follows:

PART 310—TELEMARKETING SALES RULE 1. The authority citation for part 310 continues to read as follows: Authority:

15 U.S.C. 6101-6108; 15 U.S.C. 6151-6155.

2. In § 310.8, revise paragraphs (c) and (d) to read as follows:
§ 310.8 Fee for access to the National Do Not Call Registry.

(c) The annual fee, which must be paid by any person prior to obtaining access to the National Do Not Call Registry, is $63 for each area code of data accessed, up to a maximum of $17,406; provided, however, that there shall be no charge to any person for accessing the first five area codes of data, and provided further, that there shall be no charge to any person engaging in or causing others to engage in outbound telephone calls to consumers and who is accessing area codes of data in the National Do Not Call Registry if the person is permitted to access, but is not required to access, the National Do Not Call Registry under this Rule, 47 CFR 64.1200, or any other Federal regulation or law. No person may participate in any arrangement to share the cost of accessing the National Do Not Call Registry, including any arrangement with any telemarketer or service provider to divide the costs to access the registry among various clients of that telemarketer or service provider.

(d) Each person who pays, either directly or through another person, the annual fee set forth in paragraph (c) of this section, each person excepted under paragraph (c) from paying the annual fee, and each person excepted from paying an annual fee under § 310.4(b)(1)(iii)(B), will be provided a unique account number that will allow that person to access the registry data for the selected area codes at any time for the twelve month period beginning on the first day of the month in which the person paid the fee (“the annual period”). To obtain access to additional area codes of data during the first six months of the annual period, each person required to pay the fee under paragraph (c) of this section must first pay $63 for each additional area code of data not initially selected. To obtain access to additional area codes of data during the second six months of the annual period, each person required to pay the fee under paragraph (c) of this section must first pay $32 for each additional area code of data not initially selected. The payment of the additional fee will permit the person to access the additional area codes of data for the remainder of the annual period.

By direction of the Commission.

Donald S. Clark, Secretary.
[FR Doc. 2018-20048 Filed 9-13-18; 8:45 am] BILLING CODE 6750-01-P
PENSION BENEFIT GUARANTY CORPORATION 29 CFR Parts 4022 and 4044 Allocation of Assets in Single-Employer Plans; Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Valuing and Paying Benefits AGENCY:

Pension Benefit Guaranty Corporation.

ACTION:

Final rule.

SUMMARY:

This final rule amends the Pension Benefit Guaranty Corporation's regulations on Benefits Payable in Terminated Single-Employer Plans and Allocation of Assets in Single-Employer Plans to prescribe interest assumptions under the benefit payments regulation for valuation dates in October 2018 and interest assumptions under the asset allocation regulation for valuation dates in the fourth quarter of 2018. The interest assumptions are used for valuing and paying benefits under terminating single-employer plans covered by the pension insurance system administered by PBGC.

DATES:

Effective October 1, 2018.

FOR FURTHER INFORMATION CONTACT:

Melissa Rifkin ([email protected]), Attorney, Regulatory Affairs Division, Pension Benefit Guaranty Corporation, 1200 K Street NW, Washington, DC 20005, 202-326-4400, ext. 6563. (TTY users may call the Federal relay service toll free at 1-800-877-8339 and ask to be connected to 202-326-4400, ext. 6563.)

SUPPLEMENTARY INFORMATION:

PBGC's regulations on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) and Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974 (ERISA). The interest assumptions in the regulations are also published on PBGC's website (http://www.pbgc.gov).

The interest assumptions in appendix B to part 4044 are used to value benefits for allocation purposes under ERISA section 4044. PBGC uses the interest assumptions in appendix B to part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in appendices B and C of the benefit payment regulation are the same.

The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the asset allocation regulation are updated quarterly; assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for October 2018 and updates the asset allocation interest assumptions for the fourth quarter (October through December) of 2018.

The fourth quarter 2018 interest assumptions under the allocation regulation will be 2.84 percent for the first 20 years following the valuation date and 2.76 percent thereafter. In comparison with the interest assumptions in effect for the third quarter of 2018, these interest assumptions represent a decrease of 5 years in the select period (the period during which the select rate (the initial rate) applies), an increase of 0.31 percent in the select rate, and an increase of 0.12 percent in the ultimate rate (the final rate).

The October 2018 interest assumptions under the benefit payments regulation will be 1.25 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for September 2018, these interest assumptions represent no change in the immediate rate and no changes in i1, i2, or i3.

PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.

Because of the need to provide immediate guidance for the valuation and payment of benefits under plans with valuation dates during October 2018, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

List of Subjects 29 CFR Part 4022

Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.

29 CFR Part 4044

Employee benefit plans, Pension insurance, Pensions.

In consideration of the foregoing, 29 CFR parts 4022 and 4044 are amended as follows:

PART 4022—BENEFITS PAYABLE IN TERMINATED SINGLE-EMPLOYER PLANS 1. The authority citation for part 4022 continues to read as follows: Authority:

29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.

2. In appendix B to part 4022, Rate Set 300 is added at the end of the table to read as follows: Appendix B to Part 4022—Lump Sum Interest Rates For PBGC Payments Rate set For plans with a valuation date On or after Before Immediate
  • annuity rate
  • (percent)
  • Deferred annuities
  • (percent)
  • i 1 i 2 i 3 n 1 n 2
    *         *         *         *         *         *         * 300 10-1-18 11-1-18 1.25 4.00 4.00 4.00 7 8
    3. In appendix C to part 4022, Rate Set 300 is added at the end of the table to read as follows: Appendix C to Part 4022—Lump Sum Interest Rates For Private-Sector Payments Rate set For plans with a valuation date On or after Before Immediate
  • annuity rate
  • (percent)
  • Deferred annuities
  • (percent)
  • i 1 i 2 i 3 n 1 n 2
    *         *         *         *         *         *         * 300 10-1-18 11-1-18 1.25 4.00 4.00 4.00 7 8
    PART 4044—ALLOCATION OF ASSETS IN SINGLE-EMPLOYER PLANS 4. The authority citation for part 4044 continues to read as follows: Authority:

    29 U.S.C. 1301(a), 1302(b)(3), 1341, 1344, 1362.

    5. In appendix B to part 4044, an entry for “October-December 2018” is added at the end of the table to read as follows: Appendix B to Part 4044—Interest Rates Used to Value Benefits For valuation dates occurring in the month— The values of i t are: i t for t = i t for t = i t for t = *         *         *         *         *         *         * October-December 2018 0.0284 1-20 0.0276 >20 N/A N/A

    Issued in Washington, DC.

    Hilary Duke, Assistant General Counsel, Pension Benefit Guaranty Corporation.
    [FR Doc. 2018-19835 Filed 9-13-18; 8:45 am] BILLING CODE 7709-02-P
    PENSION BENEFIT GUARANTY CORPORATION 29 CFR Part 4231 RIN 1212-AB31 Mergers and Transfers Between Multiemployer Plans AGENCY:

    Pension Benefit Guaranty Corporation.

    ACTION:

    Final rule.

    SUMMARY:

    PBGC is issuing a final rule amending its regulation on Mergers and Transfers Between Multiemployer Plans to implement procedures and information requirements for a request for a facilitated merger. This final rule also reorganizes and updates provisions in the existing regulation.

    DATES:

    This rule is effective October 15, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Theresa B. Anderson ([email protected]), Deputy Assistant General Counsel, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street NW, Washington DC 20005-4026; 202-326-4400, ext. 6353. (TTY users may call the Federal relay service toll-free at 800-877-8339 and ask to be connected to 202-326-4400, extension 6353.)

    SUPPLEMENTARY INFORMATION:

    Executive Summary Purpose of the Regulatory Action

    This final rule is needed to implement statutory changes under the Multiemployer Pension Reform Act of 2014 (MPRA) affecting mergers of multiemployer plans under title IV of the Employee Retirement Income Security Act of 1974 (ERISA) and to update PBGC's existing regulatory requirements applicable to mergers and transfers between multiemployer plans. On June 6, 2016, PBGC published a proposed rule to amend its regulation on Mergers and Transfers Between Multiemployer Plans (81 FR 36229). In this final rule, PBGC adopts its proposed changes implementing MPRA, with some modifications in response to public comments, and some of its proposed changes updating and reorganizing the existing regulation. To allow more consideration of the concerns raised by the public comments, PBGC is not adopting its proposed changes to provisions of the existing regulation related to plan solvency.

    PBGC's legal authority for this action is based on section 4002(b)(3) of ERISA, which authorizes PBGC to issue regulations to carry out the purposes of title IV of ERISA, and section 4231 of ERISA, which sets forth the statutory requirements for mergers and transfers between multiemployer plans.

    Major Provisions of the Regulatory Action

    This final rule makes one major and numerous minor changes to PBGC's regulation on Mergers and Transfers Between Multiemployer Plans. The major change is the addition of procedures and information requirements for a voluntary request for a facilitated merger to implement MPRA's changes to section 4231 of ERISA. This final rule also reorganizes and updates existing provisions of PBGC's regulation. The changes to part 4231 and the related public comments are discussed below.

    Background In General

    The Pension Benefit Guaranty Corporation (PBGC) is a Federal corporation created under title IV of Employee Retirement Income Security Act of 1974 (ERISA) to guarantee the payment of pension benefits under private-sector defined benefit pension plans.

    PBGC administers two insurance programs—one for single-employer pension plans, and one for multiemployer pension plans. This final rule applies only to the multiemployer program.

    Under section 4231(b) of ERISA, mergers of two or more multiemployer plans and transfers of assets and liabilities between multiemployer plans must comply with four requirements:

    (1) The plan sponsor must notify PBGC at least 120 days before the effective date of the merger or transfer;

    (2) No participant's or beneficiary's accrued benefit may be lower immediately after the effective date of the merger or transfer than the benefit immediately before that date;

    (3) The benefits of participants and beneficiaries must not be reasonably expected to be subject to suspension as a result of plan insolvency under section 4245 of ERISA; and

    (4) An actuarial valuation of the assets and liabilities of each of the affected plans must have been performed during the plan year preceding the effective date of the merger or transfer, based upon the most recent data available as of the day before the start of that plan year, or as prescribed by PBGC's regulation.

    Section 4231(a) of ERISA grants PBGC authority to vary these requirements by regulation. Part 4231 of PBGC's regulations implements and interprets these requirements by providing a procedure under which plan sponsors must notify PBGC of any merger or transfer between multiemployer plans and may request a compliance determination from PBGC.

    Under section 4261 of ERISA, PBGC provides financial assistance to multiemployer plans that are or will be insolvent under section 4245 of ERISA. Generally, a plan is insolvent when it is unable to pay benefits when due during the plan year. PBGC provides financial assistance to an insolvent plan in the form of a loan sufficient to pay its participants' and beneficiaries' guaranteed benefits.

    In a few cases before the enactment of MPRA, PBGC provided financial assistance (within the meaning of section 4261 of ERISA) to facilitate the merger of a soon-to-be insolvent multiemployer plan into a larger, more financially secure multiemployer plan. The financial assistance provided was a single payment that generally covered the cost of guaranteed benefits under the failing plan. In exchange, the larger, more financially secure plan assumed responsibility for paying the full plan benefits of the participants and beneficiaries in the failing plan with which it merged. As a result, the participants and beneficiaries in the failing plan received more than they would have in the absence of a facilitated merger from a financially secure plan that was more likely to remain ongoing. In addition, the financial assistance provided was generally less than PBGC's valuation of the present value of future financial assistance to the failing plan.

    Multiemployer Pension Reform Act of 2014

    MPRA was enacted in December 2014 and contains several statutory reforms to assist financially troubled multiemployer plans and to improve the financial condition of PBGC's multiemployer insurance program. Sections 121 and 122 of MPRA provide that PBGC may assist financially troubled multiemployer plans under certain conditions.1 This rule is necessitated by section 121 of MPRA.

    1 Section 122 of MPRA amended section 4233 of ERISA to provide a new statutory framework for partitions. PBGC issued an interim final rule under section 4233 of ERISA on June 19, 2015 (80 FR 35220), and a final rule on December 23, 2015 (80 FR 79687).

    Section 121 of MPRA authorizes PBGC to facilitate multiemployer plan mergers. Facilitation includes various forms of technical assistance as well as financial assistance (within the meaning of section 4261) if certain statutory conditions are met. The decision to facilitate a merger is within PBGC's discretion. Furthermore, before PBGC may exercise this discretion, it must first determine—in consultation with the Participant and Plan Sponsor Advocate 2 —that the merger is in the interests of the participants and beneficiaries of at least one of the plans and is not reasonably expected to be adverse to the overall interests of the participants and beneficiaries of any of the plans.

    2 The Participant and Plan Sponsor Advocate position was created in 2012 by the Moving Ahead for Progress in the 21st Century Act (MAP-21), Public Law 112-141 (126 Stat. 405 (2012)). See section 4004 of ERISA for the rules governing this position. PBGC is not defining the Participant and Plan Sponsor Advocate's consultative role in determining how the merger affects the interests of the participants and beneficiaries of the plans involved but believes that role should evolve based on experience in implementing this rule.

    As added by MPRA, section 4231(e)(1) of ERISA provides that, upon request by the plan sponsors, PBGC may take such actions as it deems appropriate to promote and facilitate the merger of two or more multiemployer plans. Facilitation may include training, technical assistance, mediation, communication with stakeholders, and support with related requests to other government agencies.

    Under section 4231(e)(2), PBGC may also provide financial assistance (within the meaning of section 4261) to facilitate a merger that it determines is necessary to enable one or more of the plans involved to avoid or postpone insolvency, if the following statutory conditions are satisfied:

    Critical and declining status. Under section 4231(e)(2)(A) of ERISA, one or more of the plans involved in the merger must be in critical and declining status as defined in section 305(b)(6). Generally, a plan is in critical and declining status if it is in critical status under any subparagraph of section 305(b)(2) and is projected to become insolvent within 15-20 years.

    Long-term loss and plan solvency. Under section 4231(e)(2)(B), PBGC must reasonably expect that—

    • Financial assistance will reduce PBGC's expected long-term loss with respect to the plans involved; and

    • Financial assistance is necessary for the merged plan to become or remain solvent.

    Certification. Under section 4231(e)(2)(C), PBGC must certify to Congress that its ability to meet existing financial assistance obligations to other plans will not be impaired by the financial assistance.

    Source of funding. Under section 4231(e)(2)(D), financial assistance must be paid exclusively from the PBGC fund for basic benefits guaranteed for multiemployer plans.

    In addition, section 4231(e)(2) requires that, not later than 14 days after the provision of financial assistance, PBGC provide notice of the financial assistance to the Committee on Education and the Workforce of the House of Representatives; the Committee on Ways and Means of the House of Representatives; the Committee on Finance of the Senate; and the Committee on Health, Education, Labor, and Pensions of the Senate.

    RFI and Proposed Rule

    On February 18, 2015, PBGC published in the Federal Register (80 FR 8712) a request for information (RFI) to solicit information on issues PBGC should consider for a proposed rule; PBGC received 20 comments in response to the RFI.3 In general, commenters expressed strong support for MPRA's changes to the merger rules under section 4231 of ERISA, and urged PBGC to issue timely guidance to the public on the types of information, documents, data, and actuarial projections needed for a request to be complete.

    3 The RFI and comments are accessible at http://www.pbgc.gov/prac/pg/other/guidance/multiemployer-notices.html.

    On June 6, 2016, PBGC published (81 FR 36229) a proposed rule to amend PBGC's regulation on Mergers and Transfers Between Multiemployer Plans (29 CFR part 4231) to implement MPRA's changes to section 4231 of ERISA.4 PBGC also proposed to reorganize and update provisions of the existing regulation to reflect other changes in law.

    4 The proposed rule and comments are accessible at https://www.pbgc.gov/prac/pg/other/guidance/pending-proposed-rules.

    PBGC provided a 60-day comment period for the proposed rule and received 10 comments from: Employers contributing to multiemployer plans; a union; and associations representing multiemployer plans, pension practitioners, and employers contributing to multiemployer plans. With some modifications in response to public comments it received, PBGC adopts in this final rule its proposed changes implementing MPRA. PBGC also adopts some of its proposed changes updating and reorganizing the existing regulation. To allow more consideration of public comments, PBGC is not adopting its proposed changes to provisions of the existing regulation related to plan solvency. The comments, PBGC's responses to the comments, and the changes adopted in this final rule are discussed below.

    Overview

    This final rule makes one major and numerous minor changes to PBGC's regulation on Mergers and Transfers Between Multiemployer Plans. The major change is the addition of procedures and information requirements for a voluntary request for a facilitated merger under section 4231(e) of ERISA, added by MPRA. This final rule also reorganizes and updates existing provisions of PBGC's regulation. The changes and the related public comments are discussed below.

    Under this final rule, like the proposed, part 4231 provides guidance on: (1) The process for submitting a notice of merger or transfer, and a request for a compliance determination or facilitated merger; (2) the information required in such notices and requests; (3) the notification process for PBGC decisions on requests for facilitated mergers; and (4) the scope of PBGC's jurisdiction over a merged plan that has received financial assistance. This final rule reorganizes part 4231 by dividing it into subparts. Subpart A contains the general merger and transfer rules. Subpart B provides guidance on procedures and information requirements for facilitated mergers, including those involving financial assistance.

    Section 4231 of ERISA and part 4231 do not address the requirements of title I of ERISA (other than section 406(a) and (b)(2), in the event of a compliance determination). In most instances, implementation of the mergers and transfers addressed in this final rule, including facilitated mergers, will involve conduct that is also subject to the fiduciary responsibility standards of part 4 of subtitle B of title I of ERISA. Among other things, these standards, which are enforced by the Department of Labor (DOL), require that a fiduciary with respect to a plan act prudently, solely in the interest of the participants and beneficiaries, and for the exclusive purpose of providing benefits to participants and their beneficiaries and defraying reasonable expenses of administering the plan. The fact that a merger or transfer, including a facilitated merger, may satisfy title IV of ERISA and the regulations thereunder is not determinative of whether it satisfies the requirements of part 4 of subtitle B of title I of ERISA (other than section 406(a) and (b)(2), in the event of a compliance determination).

    Discussion of Comments Plan Solvency Demonstrations

    Most comments to PBGC's proposed rule addressed PBGC's proposed changes to provisions in its existing regulation—in particular, changes to the safe harbor solvency tests and to which plans must satisfy the more rigorous test for “significantly affected plans.” PBGC's regulation provides “plan solvency” tests under § 4231.6 that operate as regulatory safe harbors under section 4231(b)(3) of ERISA. Section 4231(b)(3) of ERISA prohibits a merger or transfer unless “the benefits of participants and beneficiaries are not reasonably expected to be subject to suspension under section 4245.” Section 4245, in turn, provides that an insolvent plan must suspend benefits that are above the level guaranteed by PBGC to the extent the plan has insufficient assets to pay such benefits. PBGC's experience suggests that its proposed changes to the “plan solvency” tests would result in a more reliable demonstration that benefits are not reasonably expected to be subject to suspension under section 4245 of ERISA because of insolvency.

    For a plan that is not a significantly affected plan, § 4231.6(a) provides two alternative “plan solvency” tests. PBGC proposed to change the test in § 4231.6(a)(1) by increasing the multiple by which plan assets after the transaction must equal or exceed benefit payments for the plan year before the transaction from “five times the benefit payments” to “ten times the benefit payments.” PBGC also proposed to change the test in § 4231.6(a)(2) by increasing the number of years after the transaction for which assets, contributions, and investment earnings must cover expenses and benefit payments from “five plan years” to “ten plan years.” 5

    5 PBGC also proposed to transpose § 4231.6(a)(1) and (2).

    PBGC proposed similar changes to the “plan solvency” test in § 4231.6(b) for significantly affected plans. PBGC proposed to change the requirement in § 4231.6(b)(1) that contributions satisfy the minimum funding requirement for the first “five plan years” after the transaction to the first “ten plan years.” PBGC also proposed to change the requirement in § 4231.6(b)(2) that assets cover the total benefit payments for the first “five plan years” after the transaction to “ten plan years.” Finally, PBGC proposed to change the amortization period in § 4231.6(b)(4)(i) from 25 to 15 years to reflect the amortization period generally applicable to changes in funding of multiemployer plans under PPA.6

    6See section 304(b) of ERISA.

    PBGC also proposed to change which plans would be subject to the more rigorous test for significantly affected plans. PBGC proposed to amend the definition of “significantly affected plan” in § 4231.2 to include a plan in endangered or critical status, as defined in section 305(b) of ERISA,7 that engages in a transfer (other than a de minimis transfer). In PBGC's view, endangered and critical status plans generally present a greater risk of insolvency, and when these plans engage in non-de minimis transfers their risk of insolvency may increase.

    7 “Endangered” and “critical” are plan categories established by the Pension Protection Act of 2006, Public Law 109-280 (120 Stat. 780 (2006) (PPA)).

    Eight commenters responded to PBGC's proposed changes to the “plan solvency” tests and to the definition of a “significantly affected plan.” The commenters stated, in part, that PBGC's proposed changes to the “plan solvency” tests would make mergers and transfers more difficult or prohibit them, would substantially expand burden for plan sponsors, and would restrict options for plans. For example, commenters stated that two critical and declining status plans engaging in a merger, resulting in a merged plan projected to become insolvent in more than five but less than 10 years, would likely satisfy the applicable “plan solvency” test in § 4231.6(a) of the existing regulation but not the proposed regulation. In addition, commenters stated that a critical status plan engaging in a transfer would be unlikely to satisfy PBGC's proposed changes to the “plan solvency” test for a significantly affected plan—specifically, the requirement in § 4231.6(b)(1) that contributions satisfy the minimum funding requirement for 10 plan years after the transaction.

    These commenters also considered PBGC's proposed change to the definition of a “significantly affected plan” unduly restrictive. Some commenters agreed with PBGC's assessment of the heightened risk of insolvency associated with transfers by endangered and critical status plans. But commenters suggested that PBGC could address this risk directly by requiring that the transaction postpone the date when the plan is projected to become insolvent.

    In addition, these commenters stated that PBGC's proposed change to the definition of a “significantly affected plan” would prohibit transfers permitted under PBGC's existing regulation, even if the transfers would be beneficial for the plans and their participants. For example, a critical and declining status plan engaging in a non-de minimis transfer of accrued benefits and less than 15% of its assets would not be a significantly affected plan under PBGC's existing regulation and would likely satisfy the applicable “plan solvency” test in § 4231.6(a). But under PBGC's proposed changes, a critical and declining status plan that engages in a non-de minimis transfer would be a significantly affected plan and would not satisfy the applicable “plan solvency” test in § 4231.6(b). According to commenters, such a transfer from a critical and declining status plan could postpone the date the plan is projected to become insolvent and would effectively eliminate the risk of loss associated with the transferred benefits.

    Moreover, four commenters stated that PBGC should otherwise update the solvency test for significantly affected plans. According to one commenter, the solvency test in § 4231.6(b) of the existing regulation is very difficult to demonstrate for most significantly affected plans. These commenters agreed that the requirement in § 4231.6(b)(3)—that contributions cover benefit payments in the first plan year after the transaction—could not be demonstrated for most mature plans, including plans that are well funded and projected to remain solvent indefinitely.

    Four commenters also requested guidance on how an enrolled actuary may “otherwise demonstrate” solvency. PBGC's existing regulation provides that an enrolled actuary may “otherwise demonstrate” under § 4231.3(a)(3)(ii) that benefits under the plan are not reasonably expected to be subject to suspension under section 4245 of ERISA. This option is an alternative to the applicable “plan solvency” test under § 4231.6. Three of these commenters requested this guidance even if PBGC doesn't adopt its proposed changes. PBGC is considering these comments and whether to propose guidance on how an enrolled actuary may “otherwise demonstrate” solvency.

    Seven commenters advocated for PBGC to change its existing regulation to provide a means for plans facing insolvency to satisfy the solvency requirement under section 4231(b)(3) of ERISA. According to commenters, PBGC could exercise its regulatory authority under section 4231(a) of ERISA to allow these plans to engage in transactions that may be beneficial. For example, as two commenters stated, a critical and declining status plan that cannot show that it will avoid insolvency with benefit suspensions under section 305(e)(9) of ERISA may be able to make that showing after it engages in a transfer (or the transfer might lessen the amount of benefit suspensions needed to avoid insolvency). A critical and declining status plan (which, among other criteria, is projected to become insolvent) may not, however, satisfy the solvency requirement under section 4231(b)(3) of ERISA and PBGC's regulation for a transfer. Even so, as one commenter stated, most plans can satisfy the solvency test in PBGC's regulation for plans that are not significantly affected—that assets equal or exceed five times the benefit payments—including many plans that are projected to be insolvent several years in the future.

    PBGC continues to consider these comments to its proposed changes and to provisions of the existing regulation interpreting the solvency requirement under section 4231(b)(3) of ERISA. To allow more consideration of the concerns raised by the public comments, PBGC will not adopt its proposed changes to the “plan solvency” tests under § 4231.6 and to the definition of a “significantly affected plan” under § 4231.2. PBGC may eventually re-propose changes to provisions in the existing regulation interpreting the solvency requirement under section 4231(b)(3) of ERISA in consideration of these comments.

    In addition, PBGC proposed to amend § 4231.3 to provide that plan sponsors may engage in informal consultations with PBGC to discuss proposed mergers and transfers. Two commenters supported this change. One of the commenters stated that having access to PBGC for informal consultation will be extremely helpful and may result in a more efficient process. Thus, PBGC is adopting its proposed voluntary option for assistance in this final rule.

    Facilitated Mergers

    PBGC proposed new rules to implement the facilitated merger provisions added by MPRA. Two commenters requested examples of the types of facilitation, other than financial assistance, that PBGC might approve for a facilitated merger. Section 4231(e)(1) of ERISA provides examples of facilitation that PBGC may provide if it makes a determination, in consultation with the Participant and Plan Sponsor Advocate, about the interests of the participants and beneficiaries. One example of facilitation is “communication with stakeholders.” In that regard, PBGC could, for example, participate in meetings or a town hall to discuss or answer questions about a potential merger with stakeholders.

    The other comments to the facilitated merger provisions in PBGC's proposed rule addressed mergers facilitated with financial assistance (financial assistance mergers). In the preamble of the proposed rule, PBGC discussed the amount of financial assistance it generally expects to be available for financial assistance mergers. PBGC stated that, while it imposes no additional limitations on the amount of financial assistance available, MPRA requires PBGC to certify that its ability to meet existing financial obligations to other plans will not be impaired by the financial assistance provided for a merger or partition.8 In addition, PBGC stated that it anticipates that the amount of financial assistance available to a critical and declining status plan for a financial assistance merger generally will not exceed the amount available to that plan for a partition (and could be less). This is because the funds available for financial assistance mergers under section 4231(e), partitions under section 4233, and financial assistance to insolvent plans under 4261, are derived from the same source—the revolving fund for basic benefits guaranteed under section 4022A (the multiemployer revolving fund). Finally, although PBGC will decide the structure of financial assistance on a case-by-case basis, PBGC stated that it expects that in most cases the financial assistance it provides in a facilitated merger will be in the form of periodic payments.

    8See sections 4231(e)(2)(C) and 4233(b)(4) of ERISA. PBGC may approve a partition of an eligible multiemployer plan under section 4233 of ERISA to provide for a transfer of liabilities from an original plan to a successor plan that is created by a partition order. PBGC provides financial assistance to pay for the guaranteed benefits under the successor plan.

    One commenter requested a more complete discussion of PBGC's rationale for linking the amount of financial assistance available to a critical and declining status plan for a financial assistance merger to the amount available to that plan for a partition. The commenter noted that the financial assistance available to a plan for a partition “relates only to a portion of the plan's liabilities.” The commenter suggested that it would be more appropriate to limit financial assistance to an amount generally less than the present value of the amount of future financial assistance to the critical and declining status plan.

    This comment overlooks a statutory condition on PBGC's provision of financial assistance for a merger. While MPRA requires PBGC to reasonably expect that the financial assistance provided for a merger will reduce PBGC's expected long-term loss with respect to the plans involved,9 MPRA also requires that the financial assistance provided for a merger not impair PBGC's ability to meet existing financial obligations to other plans.

    9 Section 4231(e)(2)(B)(i) of ERISA.

    Since publication of the proposed rule, PBGC has provided its interpretation of the statutory condition that the financial assistance provided for a merger will not impair PBGC's ability to meet existing financial obligations to other plans.10 Looking at the statute as a whole, PBGC interprets this condition to require that the financial assistance provided for a merger not materially advance the date when PBGC's multiemployer insurance fund is projected to become insolvent. This interpretation is based on PBGC's current understanding of the universe of potentially eligible multiemployer plans, and the financial condition of the multiemployer insurance program, which can change over time.

    10See “Partition FAQs for Practitioners,” accessible at https://www.pbgc.gov/prac/pg/mpra/partition-faqs-for-practitioners#impairment.

    Although application of the non-impairment condition may result in limiting financial assistance for a merger to the amount available for a partition, there may be situations where it does not. Therefore, PBGC will rely on the non-impairment test described above. PBGC's analysis of the non-impairment condition is highly fact-specific. PBGC encourages plans to engage in informal consultation with PBGC to help determine how much financial assistance would be permitted by the statute.

    Under §§ 4231.12 through 4231.16, PBGC proposed information requirements for a request for a facilitated merger. PBGC requires the information proposed so that it could determine whether the statutory conditions are satisfied. One commenter stated that a plan would incur considerable cost to provide the information PBGC requires for a financial assistance merger “solely for purposes of showing PBGC that the financial assistance is no more than the cost of a hypothetical partition.” Financial assistance mergers, unlike partitions, seek assistance to continue to pay plan benefits. Accordingly, the commenter suggested that plans shouldn't have to provide the same substantiation as with partition, unless the request is coupled with a request to the Department of the Treasury (Treasury) for approval of benefit suspensions.

    In consideration of this comment, PBGC will not adopt its proposed information requirements about the maximum benefit suspensions permissible under section 305(e)(9) of ERISA, which are required for partition. Thus, PBGC will not adopt its proposed requirement under § 4231.15 that each critical and declining status plan provide a projection of benefit disbursements reflecting maximum benefit suspensions. Also, PBGC will not adopt its proposed requirement under § 4231.16 to include with participant census data the monthly benefit reduced by the maximum benefit suspension. If the amount of financial assistance requested for a merger is at the margins of satisfying the statutory condition that PBGC's ability to meet existing financial obligations to other plans will not be impaired, PBGC may request this information to help the critical and declining status plan(s) determine whether a partition is more likely to satisfy this statutory condition.

    Under § 4231.15, PBGC proposed guidance on the required demonstration that financial assistance is necessary for the merged plan to become or remain solvent. One commenter stated that requiring a merged plan to project solvency for a minimum of 20-30 years for a financial assistance merger is inconsistent with MPRA's purpose. The commenter suggested that the demonstration should be that the plans will postpone insolvency with the financial assistance merger. While PBGC may exercise its discretion to approve a financial assistance merger that it determines necessary to allow one or more of the plans to avoid or postpone insolvency,11 section 4231(e)(2)(B)(ii) of ERISA requires that PBGC reasonably expect that the financial assistance is necessary for the merged plan to become or remain solvent. PBGC interprets the requirement that the merged plan become or remain solvent to mean that solvency must be demonstrated for the merged plan over a period, not that insolvency is postponed.

    11See section 4231(e)(2) of ERISA.

    PBGC proposed differentiated solvency demonstrations based on the financial health of the merged plan, allowing flexibility for healthier merged plans. Under § 4231.15, the type of projection required depends on whether the merged plan would be in critical status under section 305(b) of ERISA immediately after the merger (without taking the proposed financial assistance into account), as reasonably determined by the actuary. For example, if a critical and declining status plan merges into an endangered status plan, and the actuary anticipates that the merged plan would be in critical status under section 305(b)(2) of ERISA immediately after the merger without financial assistance, then the merged plan would be in critical status for purposes of the projections. Alternatively, if the actuary anticipates that the merged plan would not satisfy the criteria for critical status under section 305(b)(2) of ERISA immediately after the merger, then the merged plan would not be in critical status for purposes of the projections (even if the merged plan could elect to be in critical status).

    PBGC proposed that the plan's enrolled actuary may use any reasonable estimation method for determining the expected funded status of the merged plan. The preamble of the proposed rule also suggested that the funded status of the merged plan could be determined based on the combined data and projections underlying the status certifications of each of the plans for the plan year immediately preceding the merger (including any selected updates in the data based on the experience of the plans in the immediately preceding plan year). PBGC requested comments on this issue. Two commenters responded in favor of each approach. One commenter suggested that PBGC should take care to allow the enrolled actuary to make reasonable adjustments to the data and projections from the most recent status certifications if the above alternative is included in the final regulations. PBGC agrees with these comments. Because the use of status certifications for the preceding year is intended to provide a simpler and cost-effective alternative, PBGC will allow, but not require, reasonable adjustments to be made. Thus, § 4231.15 of this final rule adopts the option, supported by commenters, for the enrolled actuary to base the determination on the combined data and projections underlying the status certifications of each of the plans for the plan year immediately preceding the merger, including any selected updates in the data based on the experience of the plans in the immediately preceding plan year (reasonable adjustments are permitted but not required).

    To encourage the merger of critical and declining status plans into financially stable plans, PBGC proposed a solvency demonstration based on the circumstances and challenges specific to the merged plan. For a merged plan that would not be in critical status and for which solvency could be demonstrated for 20 years without taking financial assistance into account (or with less than the full amount taken into account), PBGC proposed a demonstration that financial assistance is necessary to mitigate the adverse effects of the merger on the merged plan's ability to remain solvent. In the preamble of the proposed rule, PBGC provided as examples that the merger might have an impact on the plan's funding requirements, increase the ratio of inactive to active participants, or decrease the funded percentage of the healthy plan in a manner that can be demonstrated to adversely affect the merged plan's ability to remain solvent long-term. PBGC requested comments on this issue.

    One commenter stated that, “the solvency measure should be that the merger does not increase the risk of insolvency for the merged plan.” If the merger would have no effect on the merged plan's ability to remain solvent, financial assistance would not be necessary for the merged plan to become or remain solvent as required by the statute.

    Two commenters were concerned that a financially stable plan for which solvency is projected after the merger (without taking financial assistance into account) would not be able to show adverse effects of the merger on the merged plan's ability to remain solvent. One of these commenters provided the example of a financially stable plan that would have a lower funded percentage after the merger but for which solvency would still be projected. The commenter stated that the financially stable plan would likely not agree to that merger without financial assistance, because the merger would increase the plan's risk of insolvency if there were adverse plan experience in the future. The commenters suggested that the demonstration focus on the merger's impact on metrics such as the financially stable plan's ability to satisfy funding requirements or its funded percentage. The commenters also suggested permitting consideration of unfavorable future experience. One of these commenters suggested that PBGC provide that the demonstration may be based on stress testing over a long-term period (which could consider unfavorable future experience).

    To demonstrate that financial assistance is necessary for the merged plan to become or remain solvent, the enrolled actuary must show that the merger has adverse effects on the merged plan's ability to remain solvent. If no adverse effect on solvency can be demonstrated, financial assistance is not necessary. In response to the above comments, PBGC will allow this demonstration to consider unfavorable future experience. Thus, PBGC will add in this final rule that the demonstration that financial assistance is necessary to mitigate the adverse effects of the merger on the merged plan's ability to remain solvent may be based on stress testing over a long-term period (and may reflect reasonable future adverse experience), using a reasonable method in accordance with generally accepted actuarial standards.

    For example, one possible demonstration that financial assistance is necessary to mitigate the adverse effects of the merger on the merged plan's ability to remain solvent could be based on a projection of the merged plan's insolvency within 30 years using an investment return assumption no less than one-half of a standard deviation less than the best estimate assumption, and using a current set of capital market assumptions from a recognized investment consultant and the plans' current asset allocation.

    This demonstration may also be based on stochastic modeling. For example, while not a threshold, a possible demonstration may be based on stochastic modeling showing that the merged plan's probability of insolvency within 30 years of the merger exceeds 65% without the requested financial assistance.

    Interaction Between Benefit Suspension and Merger

    Plans in critical and declining status may suspend benefits under section 305(e)(9) of ERISA under certain conditions. Treasury has interpretative jurisdiction over the subject matter in section 305. In the preamble of the proposed rule, PBGC suggested that plan sponsors must carefully consider how the various requirements under sections 305(e)(9) and 4231 would apply.

    For example, a critical and declining status plan could merge into a large, well-funded multiemployer plan. In such a case, to the extent any of the benefits previously provided by the critical and declining status plan had been subject to suspension under section 305(e)(9) or become subject to suspension concurrently with the merger, the plan sponsor of the merged plan would become responsible for making the annual determinations necessary for continued benefit suspensions under section 305(e)(9) and the implementing regulations. Under section 305(e)(9)(C)(ii) of ERISA, benefits may continue to be suspended for a plan year only if the plan sponsor determines, in a written record to be maintained throughout the period of the benefit suspension, that although all reasonable measures to avoid insolvency have been and continue to be taken, the plan is still projected to become insolvent unless benefits are suspended.12 PBGC suggested that, absent these determinations, restoration of the suspended benefits would be required.

    12 The required projection under Treasury's regulation is that “[t]he plan would not be projected to avoid insolvency . . . if no suspension of benefits were applied under the plan.” 26 CFR 1.432(e)(9)-1(c)(4)(i)(B).

    Four commenters stated that it is contrary to MPRA's remedial intent to restore suspended benefits following a merger if the merged plan could not demonstrate that continued suspensions are required to avoid insolvency. The commenters urged PBGC to work with Treasury to issue guidance so that the statute is not interpreted to require restoration under these circumstances. In addition, the commenters stated that critical and declining status plans that suspend benefits would be significantly more likely to attract merger partners, who may view benefit suspensions as a necessary condition to merger. Commenters suggested that, for purposes of the annual determination required for suspensions, Treasury could permit a separate accounting of assets and liabilities attributable to the “plan” that suspended benefits before the merger. The suspended benefits would be restored only if the annual determination couldn't be made for this notional plan. These comments are beyond the scope of this final rule and should be addressed to Treasury, which has jurisdiction over section 305 of ERISA.

    One of these commenters stated that section 4231(b)(2) of ERISA isn't implicated if the benefit suspensions under section 305(e)(9) of ERISA occur before a merger. Section 4231(b)(2) of ERISA requires that no accrued benefit is lower immediately after a merger or transfer than the benefit immediately before the transaction. This requirement would, however, prohibit a merger or transfer that is contemporaneous with benefit suspensions. To allow this transaction, PBGC adds in this final rule under § 4231.4 that it may waive this requirement to the extent the accrued benefit is suspended under section 305(e)(9) of ERISA contemporaneously with a merger or transfer.

    Section-by-Section Discussion Subpart A—General Provisions Section 4231.1

    Section 4231.1 describes the purpose and scope of part 4231, which is to prescribe notice requirements for mergers and transfers of assets or liabilities among multiemployer plans and to interpret other requirements under section 4231 of ERISA. In this final rule, PBGC adopts the minor changes it proposed to § 4231.1.13

    13 PBGC proposed to remove the reference in § 4231.1(a) of the existing regulation to the OMB control number 1212-0022 under which information collection in part 4231 has been approved. PBGC also proposed to reorganize § 4231.1 and to refer in paragraph (b) of this section to the additional requirements and procedures in subpart B of part 4231 for a request for a facilitated merger.

    Section 4231.2

    Section 4231.2 defines terms for purposes of part 4231. In this final rule, like the proposed, PBGC amends the existing regulation by adding new definitions, and by moving existing definitions elsewhere in the regulation to § 4231.2. For example, this final rule moves the existing definition of “effective date” from § 4231.8(a) to § 4231.2.14 In response to comments and pending further consideration, PBGC will not adopt its proposed change to the existing definition of a “significantly affected plan” (see above, “Discussion of Comments”).

    14 This final rule, like the proposed, also changes § 4231.2 of the existing regulation to add the following to the terms defined in § 4001.2 of PBGC's regulations: Annuity, guaranteed benefit, normal retirement age, and plan sponsor. In addition, this final rule, like the proposed, adds in § 4231.2 definitions for the following terms: Advocate, critical and declining status, critical status, facilitated merger, financial assistance, financial assistance merger, insolvent, and merged plan. Furthermore, this final rule, like the proposed, adds in § 4231.2 the terms “de minimis merger,” and “de minimis transfer” and refers to their existing definitions in § 4231.7(b) and (c), respectively. Finally, this final rule, like the proposed, moves the definition of “certified change of collective bargaining representative” from § 4231.2 of the existing regulation to § 4231.3(c).

    Section 4231.3

    Section 4231.3 provides guidance on the statutory requirements for mergers and transfers. PBGC proposed to clearly provide that plan sponsors may engage in informal consultations with PBGC to discuss proposed mergers and transfers. Two commenters supported this change. PBGC agrees with those comments. Thus, PBGC is adopting its proposed voluntary option for assistance in this final rule.15

    15 This final rule also incorporates by reference in § 4231.3(a)(1) the waiver to the preservation of accrued benefits added under a new § 4231.4(b) in the event of a contemporaneous suspension of benefits under section 305(e)(9) of ERISA. In addition, this final rule, like the proposed, moves the definition of “certified change of collective bargaining representative” from § 4231.2 of the existing regulation to § 4231.3(c). Finally, this final rule, like the proposed, changes § 4231.3 to conform references to other sections of part 4231 to the reorganization of this final rule.

    Section 4231.4

    PBGC did not propose any changes to § 4231.4 of the existing regulation. That section provides guidance on the requirement under section 4231(b)(2) of ERISA that no participant's or beneficiary's accrued benefit may be lower immediately after the effective date of a merger or transfer than the benefit immediately before that date.

    In this final rule, PBGC maintains this existing guidance without change in a new paragraph (a). To allow a merger or transfer that is coupled with benefit suspensions under section 305(e)(9) of ERISA, PBGC provides in a new paragraph (b) that it may waive the requirement under section 4231(b)(2) of ERISA to the extent the participant's or beneficiary's accrued benefit is suspended under section 305(e)(9) of ERISA contemporaneously with a merger or transfer (see above, “Discussion of Comments”). Section 4231.4(b) also provides that, if PBGC grants this waiver, the plan provision described under § 4231.4(a) may exclude accrued benefits only to the extent those benefits are suspended under section 305(e)(9) of ERISA contemporaneously with the merger or transfer.

    Section 4231.5

    Section 4231.5 provides guidance on the actuarial valuation requirement under section 4231(b)(4) of ERISA. Under § 4231.5(a) of the existing regulation, a plan that is not a significantly affected plan (or that is a significantly affected plan only because the transaction involves a plan terminated by mass withdrawal under section 4041A(a)(2) of ERISA) satisfies this requirement if an actuarial valuation has been performed for the plan based on the plan's assets and liabilities as of a date not more than three years before the date on which the notice of the merger or transfer is filed. Under § 4231.5(b) of the existing regulation, a significantly affected plan (other than a plan that is a significantly affected plan only because the transaction involves a plan terminated by mass withdrawal) must have an actuarial valuation performed for the plan year preceding the proposed effective date of the merger or transfer.

    Multiemployer plans are now generally required to perform actuarial valuations not less frequently than once every year.16 Thus, PBGC proposed to amend § 4231.5 to require, as section 4231(b)(4) of ERISA states, that each plan involved in a merger or transfer have an actuarial valuation performed for the plan year preceding the proposed effective date of the merger or transfer. PBGC also proposed to provide that if the valuation is not complete as of the date the plan sponsors file the notice of merger or transfer, the plan sponsors may provide the most recent actuarial valuation performed for the plans with the notice, and the required valuations when complete. PBGC received no comments on these proposed changes and adopts them in this final rule.17

    16See section 304(c)(7) of ERISA.

    17 This final rule, like the proposed, also reorganizes § 4231.5 of the existing regulation by removing its division into paragraphs (a) and (b).

    Section 4231.6

    Section 4231.6 provides guidance on “plan solvency” tests that operate as safe harbors under section 4231(b)(3) of ERISA. PBGC proposed changes to the tests in § 4231.6(a) and (b) (see above, “Discussion of Comments”). Pending further consideration, PBGC is not adopting in this final rule the major changes it proposed to the tests in § 4231.6(a) and (b) (see above, “Discussion of Comments”). In this final rule, PBGC is adopting the minor changes it proposed to the tests in § 4231.6(a) and (b); PBGC received no comments about these minor changes.18

    18 For example, PBGC proposed to update a statutory reference in § 4231.6(b)(1) of the existing regulation.

    Section 4231.6(c) provides rules for determinations about the requirements set forth under § 4231.6. PBGC proposed to amend § 4231.6(c)(1) by requiring withdrawal liability payments to be listed separately from contributions. PBGC received no comments on its proposed change to § 4231.6(c)(1) and adopts this change in this final rule.

    Section 4231.7

    PBGC did not propose any changes to § 4231.7 of the existing regulation. That section continues to set forth special rules for de minimis mergers and transfers.

    Section 4231.8

    Section 4231.8 provides guidance on the requirement under section 4231(b)(1) of ERISA that the plan sponsor notify PBGC of a merger or transfer, and on requests for compliance determinations under section 4231(c). In general, a notice of a merger or transfer must be filed well in advance of the transaction's effective date (or not less than 45 days in advance in the case of a merger for which a compliance determination is not requested). Section 4231.8(f) permits PBGC to waive the timing of the notice requirements under certain circumstances.

    In the case of a facilitated merger, PBGC proposed to amend § 4231.8(a) to require that notice of a proposed facilitated merger be filed not less than 270 days before the proposed effective date of a facilitated merger. PBGC received no comments on its proposed changes to § 4231.8 and adopts them in this final rule.19

    19 PBGC also proposed to clarify that a request for a compliance determination or facilitated merger must be filed within the timing specified in § 4231.8(a) for a notice. In addition, PBGC proposed to clarify that a request for a compliance determination or facilitated merger, like a notice, is not considered filed until all the required information is submitted. PBGC also proposed to clarify that the waiver provided in § 4231.8(f) of the existing regulation relates to the timing requirements in § 4231.8(a). Furthermore, PBGC proposed to move the definition of “effective date” from § 4231.8(a)(1) of the existing regulation to § 4231.2, and to move the information requirements contained in § 4231.8(e) of the existing regulation to § 4231.9. Finally, PBGC proposed to reorganize § 4231.8 of the existing regulation, to conform references to other sections of part 4231 to the reorganization of this final rule, and to add that the guidance on who must file is applicable to a request for a facilitated merger.

    Section 4231.9

    Section 4231.9 of this final rule, like the proposed, generally retains the information requirements under § 4231.8(e) of the existing regulation, with minor modifications. For example, the de minimis exception under § 4231.8(e)(6) of the existing regulation does not apply to a request for a financial assistance merger. PBGC received no comments on its proposed changes to § 4231.9 and adopts them in this final rule.20

    20 PBGC also proposed to add that the statement required in § 4231.8(e)(5)(i) of the existing regulation about the plan's satisfaction of the applicable solvency test must include the supporting data, calculations, assumptions, and methods.

    Section 4231.10

    Section 4231.10 of this final rule, like the proposed, describes the additional information required for a request for a compliance determination.21 In addition to some minor changes, PBGC proposed to amend this section to make clear that a request for a compliance determination must be filed contemporaneously with a notice of merger or transfer.22 PBGC received no comments on its proposed changes to § 4231.10 and adopts them in this final rule.

    21 PBGC proposed to move these requirements from § 4231.9 of the existing regulation, except certain information requirements.

    22 PBGC also proposed to delete the “place of filing” provision under § 4231.9(a)(1) of the existing regulation. Section 4231.8(e) of this final rule, like the proposed, provides guidance about where to file. In addition, PBGC proposed to delete certain information requirements under § 4231.9(b) of the existing regulation because those requirements are contained in § 4231.9(e) of this final rule. Finally, PBGC proposed to conform references to other sections of part 4231 to the reorganization of this final rule.

    Section 4231.11

    Section 4231.11 of this final rule, like the proposed, describes the requirements for actuarial calculations and assumptions.23 PBGC proposed to conform these requirements to section 304(c)(3) of ERISA, to specify that calculations must be performed by an enrolled actuary, and to expand the bases upon which PBGC may require updated calculations. PBGC received no comments on its proposed changes under § 4231.11 and adopts them in this final rule.

    23 PBGC proposed to move these requirements from § 4231.10 of the existing regulation.

    Subpart B—Additional Rules for Facilitated Mergers Section 4231.12

    Section 4231.12 of this final rule, like the proposed, provides general guidance on a request for a facilitated merger. A request for a facilitated merger, including a financial assistance merger, must satisfy the requirements of section 4231(b) of ERISA and the general provisions of subpart A of the regulation, in addition to section 4231(e) of ERISA and the additional rules for facilitated mergers of subpart B. The procedures set forth in this final rule represent the exclusive means by which PBGC will approve a request for a facilitated merger, including a financial assistance merger. Any financial assistance provided by PBGC will be limited by section 4261 of ERISA and based on the guaranteed benefits of the plans involved in the merger that are in critical and declining status.

    Section 4231.12 of this final rule, like the proposed, states that a request must include the information required for a notice of merger or transfer (§ 4231.9) and request for compliance determination (§ 4231.10), as well as a detailed narrative description with supporting documentation demonstrating that the proposed merger is in the interests of participants and beneficiaries of at least one of the plans, and is not reasonably expected to be adverse to the overall interests of the participants and beneficiaries of any of the plans. The narrative description and supporting documentation should reflect, among other things, any material efficiencies expected as a result of the merger and the basis for those expectations.

    In addition, a request for a financial assistance merger must contain information about the plans (§ 4231.13), information about the proposed financial assistance merger (§ 4231.14), actuarial and financial information (§ 4231.15), and participant census data (§ 4231.16). This final rule, like the proposed, provides that PBGC may require additional information to determine whether the requirements of section 4231(e) of ERISA are met or to enable it to facilitate the merger. As with the proposed, this final rule also imposes an affirmative obligation on plan sponsors to promptly notify PBGC in writing if a plan sponsor discovers that any material fact or representation contained in or relating to the request for a facilitated merger, or in any supporting documents, is no longer accurate, or has been omitted.

    PBGC received no comments on its proposed § 4231.12 and adopts it in this final rule.

    Section 4231.13

    Section 4231.13 of this final rule, like the proposed, provides guidance on the various categories of plan-related information required for a request for a financial assistance merger, such as trust agreements, plan documents, summary plan descriptions, summaries of material modifications, and rehabilitation or funding improvement plans. PBGC expects that most, if not all, of the information required under this section should be readily available and accessible by plan sponsors. PBGC received no comments on its proposed § 4231.13 and adopts it in this final rule.

    Section 4231.14

    Section 4231.14 of this final rule, like the proposed, sets forth information requirements relating to the proposed structure of a financial assistance merger. The information required includes a detailed description of the financial assistance merger, including any larger integrated transaction of which the proposed merger is a part (including, but not limited to, an application for suspension of benefits under section 305(e)(9)(G) of ERISA), and the estimated total amount of financial assistance the plan sponsors request for each year. It also requires a narrative description of the events that led to the sponsors' decision to request a financial assistance merger, and the significant risks and assumptions relating to the proposed financial assistance merger and the projections provided. PBGC received no comments on its proposed § 4231.14 and adopts it in this final rule.

    Section 4231.15

    Section 4231.15 of this final rule, like the proposed, identifies the actuarial and financial information required for a request for a financial assistance merger. Section 4231.15(a) and (b) of this final rule, like the proposed, relate to plan actuarial reports and actuarial certifications, which should ordinarily be within the possession of the plan sponsors or plan actuaries. Section 4231.15(c)-(e) of this final rule, like the proposed, requires the submission of certain actuarial and financial information specific to the proposed financial assistance merger, which are necessary for PBGC to evaluate the solvency requirements under section 4231(e)(2) of ERISA. PBGC adopts its proposed § 4231.15 in this final rule with the modifications discussed below, which respond to comments it received (see above, “Discussion of Comments”).

    Section 4231.15 of this final rule, like the proposed, provides that each critical and declining status plan must demonstrate that its projected date of insolvency without the merger is sooner than the projected date of insolvency of the merged plan. The plan(s) may take the proposed financial assistance into account in this demonstration.

    Section 4231.15 of this final rule, like the proposed, also provides guidance on the required demonstration that financial assistance is necessary for the merged plan to become or remain solvent. The type of projection required depends on whether the merged plan would be in critical status under section 305(b) of ERISA immediately following the merger (without taking the proposed financial assistance into account), as reasonably determined by the actuary. This final rule adds the option, supported by commenters, for the enrolled actuary to base the determination of whether the merged plan would be in critical status on the combined data and projections underlying the status certifications of each of the plans for the plan year immediately preceding the merger, including any selected updates in the data based on the experience of the plans in the immediately preceding plan year (reasonable adjustments are permitted but not required) (see above, “Discussion of Comments”). This final rule also clarifies that the statement of whether the merged plan would be in critical status must be certified by an enrolled actuary.

    Under § 4231.15 of this final rule, like the proposed, if the merged plan would be in critical status under section 305(b) of ERISA (without taking the proposed financial assistance into account), the plans must demonstrate that financial assistance is necessary for the merged plan to “avoid insolvency” under section 305(e)(9)(D)(iv) of ERISA and the regulations thereunder (excluding stochastic projections). This solvency standard is consistent with the “emergence” test under section 305(e)(4)(B) of ERISA, which requires a plan in critical status to show that it is not projected to become insolvent for any of the 30 succeeding plan years.

    If the merged plan would not be in critical status under section 305(b) of ERISA (without taking the proposed financial assistance into account), under § 4231.15 of this final rule, like the proposed, the plans must demonstrate that the merged plan is not projected to become insolvent during the 20 years beginning after the proposed effective date of the merger with the proposed financial assistance. In this final rule, like the proposed, if this demonstration can be satisfied without taking the proposed financial assistance into account, or if the amount of financial assistance requested exceeds the amount that satisfies this demonstration, the plan sponsors must demonstrate that financial assistance is necessary to mitigate the adverse effects of the merger on the merged plan's ability to remain solvent. In response to comments, PBGC adds in this final rule that the demonstration that financial assistance is necessary to mitigate the adverse effects of the merger on the merged plan's ability to remain solvent may be based on stress testing over a long-term period (and may reflect reasonable future adverse experience), using a reasonable method in accordance with generally accepted actuarial standards (see above, “Discussion of Comments”).

    In response to a comment, PBGC will not adopt in this final rule its proposed requirement that each critical and declining status plan provide a projection of benefit disbursements reflecting maximum benefit suspensions (see above, “Discussion of Comments”).

    Finally, to provide a cost-effective alternative, PBGC adds the option to estimate benefit disbursements to satisfy the requirement that each critical and declining status plan provide a projection of benefit disbursements reflecting reduced benefit disbursements at the PBGC-guarantee level. This final rule also clarifies that the projection of benefit disbursements must include the supporting data, calculations, assumptions, and, if applicable, a description of estimates used.

    Section 4231.16

    Under § 4231.16, PBGC proposed that a request for a financial assistance merger include certain types of participant census data. In response to a comment, PBGC will not adopt in this final rule its proposed requirement that this participant census data include the monthly benefit reduced by the maximum benefit suspension permissible under section 305(e)(9) of ERISA (see above, “Discussion of Comments”). Otherwise, in this final rule, PBGC adopts its proposed § 4231.16 with the clarification that the projections for which the census data must be provided include the projection in § 4231.15(d).

    Section 4231.17

    Section 4231.17 of this final rule, like the proposed, describes how PBGC will notify a plan sponsor(s) of PBGC's decision on a request for a facilitated merger. PBGC will approve or deny a request for a facilitated merger in writing and in accordance with the standards set forth in section 4231(e) of ERISA.24 If PBGC denies a request, PBGC's written decision will state the reason(s) for the denial. If PBGC approves a request for a financial assistance merger, PBGC will provide a financial assistance agreement detailing the total amount and terms of the financial assistance as soon as practicable after notifying the plan sponsor(s) in writing of its approval. The decision to approve or deny a request for facilitated merger under section 4231(e) of ERISA is within PBGC's discretion and constitutes a final agency action not subject to PBGC's rules for reconsideration or administrative appeal. PBGC received no comments on its proposed § 4231.17 and adopts it in this final rule.

    24 As noted above, section 4231(e)(1) of ERISA requires a determination by PBGC in consultation with the Participant and Plan Sponsor Advocate to approve a facilitated merger. Section 4231(e)(2) of ERISA sets forth four additional statutory conditions that must be satisfied before PBGC may approve a request for a financial assistance merger. PBGC will review each request for a facilitated merger, including a financial assistance merger, on a case-by-case basis in accordance with the statutory criteria in section 4231(e) of ERISA.

    Section 4231.18

    Section 4231.18 of this final rule, like the proposed, describes PBGC's jurisdiction over the merged plan resulting from a financial assistance merger. PBGC has determined that maintaining oversight is necessary to ensure compliance with financial assistance agreements, and proper stewardship of PBGC financial assistance. Based on the foregoing, § 4231.18(a) provides that PBGC will continue to have jurisdiction over the merged plan resulting from a financial assistance merger to carry out the purposes, terms, and conditions of the financial assistance merger, sections 4231 and 4261 of ERISA, and the regulations thereunder. Section 4231.18(b) states that PBGC may, upon notice to the plan sponsor, make changes to the financial assistance agreement(s) in response to changed circumstances consistent with sections 4231 and 4261 of ERISA and the regulations thereunder. PBGC received no comments on its proposed § 4231.18 and adopts it in this final rule.

    Cost-Benefit Analysis In general

    Because this rulemaking relates to transfer payments, it is not subject to the requirements of Executive Order 13771. PBGC further notes that it results in no more than de minimis net costs. The rule has been determined to be “significant” under Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has reviewed this final rule under E.O. 12866.

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, and public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

    Executive Orders 12866 and 13563 require a comprehensive regulatory impact analysis to be performed for any economically significant regulatory action, defined as an action that would result in an annual effect of $100 million or more on the national economy or that would have other substantial impacts. It has been determined that this final rule is not economically significant. Thus, a comprehensive regulatory impact analysis is not required. But PBGC has examined the economic and policy implications of this rule and has concluded that the net effect of the action is to reduce costs in relation to benefits.

    This final rule will enable plans to request a facilitated merger, including a request for financial assistance. Given the limits on PBGC's financial assistance for mergers and partitions imposed by the requirement that such assistance not impair PBGC's existing financial assistance obligations,25 PBGC expects that fewer than 20 plans would be approved for either financial assistance merger or partition over the next three years (about six plans per year), and that the total financial assistance PBGC would provide under both provisions for basic benefits guaranteed for multiemployer plans would be less than $60 million per year.

    25See sections 4231(e)(2)(C) and 4233(b)(4) of ERISA. Under section 4231(e)(2) of ERISA, PBGC cannot provide financial assistance to facilitate a merger unless its expected long-term loss with respect to the plans involved will be reduced, and its ability to meet existing financial obligations to other plans will not be impaired by the financial assistance.

    Even with the limits on PBGC's resources for multiemployer plans, which are financed by insurance premiums, facilitated mergers under this final rule will help plans preserve retirement benefits for America's workers and retirees. In addition to receiving enough financial assistance to remain solvent, merged plans may gain efficiencies from lower administration and investment expenses. As a result, benefits in the merged plan would be more secure.

    This final rule has new information requirements pertaining to financial assistance mergers, but the benefits of these facilitated mergers greatly outweigh the costs of the new filing requirements. PBGC estimates that the transfer impacts of this final rule will be about $65.19 million, and the net costs of the final rule will be about $184,500, as shown in the following table and as explained in more detail below.

    Annual transfer amounts Before final rule After final rule Net transfer PBGC financial assistance $0 $60 million $60 million. Benefits preserved above PBGC-guarantee $0, assumes plan insolvent $4.68 million $4.68 million. Reduced basic plan administrative expenses ($60,000) ($30,000) $30,000. Reduced investment management fees ($300,000) ($150,000) $150,000. Reduced valuation and actuarial fees ($300,000) ($150,000) $150,000. Reduced plan audit and Form 5500 expenses ($360,000) ($180,000) $180,000. Total transfer amounts ($1.02 million) $64.17 million $65.19 million. Annual cost amounts Before final rule After final rule Net cost Filing requirements 26 $43,550 $228,050 $184,500.

    The “net” column shows the effect of this final rule (the “after” column minus the “before” column). The estimated net transfer amounts and net costs of this final rule are based on financial assistance mergers. The benefits preserved, reduced expenses, and costs are explained in more detail below.

    26 The collection of information under part 4231, before this final rule, is approved by OMB under control number 1212-0022.

    In addition to preserving benefits and enabling administrative efficiencies, this final rule may provide qualitative benefits. First, the merged plan may be able to have additional investment diversification opportunities because of its larger pool of assets. Second, the employer contribution base generally expands and may be more diverse and, thus, less at risk to localized problems.

    Benefits Preserved

    This final rule preserves participants' benefits that would be reduced if the plan did not merge and became insolvent. When a multiemployer plan becomes insolvent, PBGC guarantees benefits up to the legal limit of $12,870 per year for an individual with 30 years of service. A PBGC study shows that, 54 percent of the time, participants facing a benefit reduction, in plans that have terminated and that are expected to become insolvent, are projected to lose 10 percent or more of their benefits.27 In 2010, the average monthly benefit received by retirees in all multiemployer plans was $922.28 PBGC estimates $1,200/participant per year in benefits preserved based on an estimate of $100/participant per month—10 percent of the $922 average monthly benefit (rounded). PBGC further estimates that about 50 percent of participants 29 in the merged plans, or about 650 participants 30 per plan, will have their benefits preserved for an estimated total of $4,680,000 per year ($1,200 × 650 participants × 6 plans).

    27See “PBGC's Multiemployer Guarantee” (March 2015) at 7, Figure 6, accessible at https://www.pbgc.gov/documents/2015-ME-Guarantee-Study-Final.pdf. This PBGC study of its guarantee for multiemployer plans covered current plans, plans that are insolvent and receiving financial assistance, and plans that have terminated and which PBGC believes are likely to require future financial assistance (future plans).

    28See “Multiemployer Pension Plans: Report to Congress Required by the Pension Protection Act of 2006” (Jan. 22, 2013) at 10, accessible at https://www.pbgc.gov/documents/pbgc-report-multiemployer-pension-plans.pdf. The average monthly benefit is determined by dividing benefits paid under all plans by the number of retired participants under all plans. The average is somewhat inflated because benefits paid during the year include lump sum payments (mostly de minimis lump sums of $5,000 or less). The average monthly benefit received in 2010 is higher in transportation industry plans ($1,324), where an annual benefit can reach $30,000 or more for a participant with 30 years of service, and in construction industry plans ($1,279); it is lower in retail trade and service industry plans ($620).

    29See “PBGC's Multiemployer Guarantee” (March 2015) at 7, Figure 5, accessible at https://www.pbgc.gov/documents/2015-ME-Guarantee-Study-Final.pdf. Figure 5 shows that 49 percent of participants in future plans receive their full benefit, and 51 percent of participants in future plans face a benefit reduction.

    30 PBGC estimates that the average plan has 1,300 participants, based on PBGC's experience and participant data from plans that merged in 2014.

    Reduced Administrative and Investment Expenses

    Merged plans may gain administrative and investment efficiencies, preserving assets to pay plan benefits. While expenses vary depending on plan size, PBGC estimates the following expenses would be reduced for each financial assistance merger:

    • Basic administrative expenses (estimated $5,000) • Investment management fees and expenses (estimated $25,000-$35,000) • One plan valuation instead of two (estimated $10,500-$35,000) • One plan audit and Form 5500 filing instead of two (estimated $15,000-$40,000) Filing Requirements

    Plan sponsors are required under section 4231(b)(1) of ERISA to file with PBGC notices of proposed merger or transfer. As discussed in this final rule, plan sponsors requesting financial assistance mergers must prepare and file additional information, including the compilation of merger information, plan information, actuarial and financial information, and participant census data information. As discussed further in the Paperwork Reduction Act section (see below), the cost to prepare the notices to PBGC, excluding financial assistance mergers, is $43,550. PBGC assumes that it will receive a total of six requests for financial assistance mergers, with a cost of $184,500.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act 31 imposes certain requirements with respect to rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act and that are likely to have a significant economic impact on a substantial number of small entities. Unless an agency determines that a final rule is not likely to have a significant economic impact on a substantial number of small entities, section 603 of the Regulatory Flexibility Act requires that the agency present a final regulatory flexibility analysis at the time of the publication of the final rule describing the impact of the rule on small entities and seeking public comment on such impact. Small entities include small businesses, organizations, and governmental jurisdictions.

    31 5 U.S.C. 601 et seq.

    Small Entities

    For purposes of the Regulatory Flexibility Act requirements with respect to this final rule, PBGC considers a small entity to be a plan with fewer than 100 participants. This is substantially the same criterion PBGC uses in other regulations 32 and is consistent with certain requirements in title I of ERISA 33 and the Internal Revenue Code (Code),34 as well as the definition of a small entity that DOL has used for purposes of the Regulatory Flexibility Act.35

    32See, e.g., special rules for small plans under part 4007 (Payment of Premiums).

    33See, e.g., section 104(a)(2) of ERISA, which permits the Secretary of Labor to prescribe simplified annual reports for pension plans that cover fewer than 100 participants.

    34See, e.g., section 430(g)(2)(B) of the Code, which permits single-employer plans with 100 or fewer participants to use valuation dates other than the first day of the plan year.

    35See, e.g., DOL's final rule on Prohibited Transaction Exemption Procedures, 76 FR 66637, 66644 (Oct. 27, 2011).

    Thus, PBGC believes that assessing the impact of this final rule on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business based on size standards promulgated by the Small Business Administration 36 under the Small Business Act. PBGC requested comments on the appropriateness of the size standard used in evaluating the impact of its proposed rule on small entities. PBGC received no comments on this point.

    36See, 13 CFR 121.201.

    Certification

    Based on its definition of small entity, PBGC certifies under section 605(b) of the Regulatory Flexibility Act that the amendments in this rule will not have a significant economic impact on a substantial number of small entities. Based on data for the most recent premium filings, PBGC estimates that only 38 plans of the approximately 1,400 plans covered by PBGC's multiemployer program are small plans. Furthermore, plans may, but are not required to, merge or request financial assistance to merge. As discussed above, plans that merge will obtain economic benefits from reduced expenses and preserved plan benefits. A facilitated merger can improve the plans' ability to remain solvent and to continue paying participants' benefits. Merger may be particularly useful for small plans due to economies of scale. Accordingly, as provided in section 605 of the Regulatory Flexibility Act, sections 603 and 604 do not apply.

    Paperwork Reduction Act

    PBGC is submitting the information collection requirements under part 4231 to OMB for review and approval under the Paperwork Reduction Act. The collection of information under part 4231 is currently approved under OMB control number 1212-0022 (expires September 30, 2020). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    Multiemployer plans requesting a merger or transfer are required to file a notice with PBGC with required information under part 4231. PBGC needs the information submitted by plans to provide a basis for determining whether a merger or transfer satisfies statutory requirements. Plans may also request a compliance determination by providing additional information to enable PBGC to make an explicit finding that the merger or transfer requirements have been satisfied.

    PBGC's current approval for the collection of information under part 4231 is for an estimated 14 transactions each year for which plan sponsors submit notices and requests for a compliance determination. Changes in this final rule that affect mergers and transfers that are not subject to the new requirements for facilitated mergers are not expected to have an impact on the burden of the information collection. The current approved annual burden for the collection of information is 10 hours in-house and $42,800 for work done by outside contractors, including attorneys and actuaries.

    Most of the information filing requirements under part 4231 are for financial assistance mergers. PBGC estimates that under this final rule there will be six requests for a financial assistance merger. The estimated annual burden is 60 hours in-house (10 hours per application) with an estimated dollar equivalent of $4,500, based on an assumed blended hourly rate of $75 for administrative, clerical, and supervisory time. The estimated annual cost burden is $180,000 ($30,000 per application) for work done by outside contractors, including attorneys and actuaries. This estimate is based on 450 contracted hours (six applications x 75 hours) and assumes an average hourly rate of $400.

    The total annual burden for the collection of information under part 4231 to prepare the notices and comply with the additional requirements for financial assistance mergers is 70 hours and $222,800, as shown in the following table:

    Respondents Hour burden
  • (hours)
  • Hour burden—equivalent cost Cost burden
    Current approved respondents: 14 10 $750 $42,800 Facilitated mergers: 6 60 4,500 180,000 Totals: 20 respondents 70 5,250 222,800
    List of Subjects in 29 CFR Part 4231

    Employee benefit plans, Pension insurance, Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, PBGC is amending 29 CFR chapter XL by revising part 4231 to read as follows: PART 4231—MERGERS AND TRANSFERS BETWEEN MULTIEMPLOYER PLANS Subpart A—General Provisions Sec. 4231.1 Purpose and scope. 4231.2 Definitions. 4231.3 Requirements for mergers and transfers. 4231.4 Preservation of accrued benefits. 4231.5 Valuation requirement. 4231.6 Plan solvency tests. 4231.7 De minimis mergers and transfers. 4231.8 Filing requirements; timing and method of filing. 4231.9 Notice of merger or transfer. 4231.10 Request for compliance determination. 4231.11 Actuarial calculations and assumptions. Subpart B—Additional Rules for Facilitated Mergers 4231.12 Request for facilitated merger. 4231.13 Plan information for financial assistance merger. 4231.14 Description of financial assistance merger. 4231.15 Actuarial and financial information for financial assistance merger. 4231.16 Participant census data for financial assistance merger. 4231.17 PBGC action on a request for facilitated merger. 4231.18 Jurisdiction over financial assistance merger. Authority:

    29 U.S.C. 1302(b)(3)

    PART 4231—MERGERS AND TRANSFERS BETWEEN MULTIEMPLOYER PLANS Subpart A—General Provisions
    § 4231.1 Purpose and scope.

    (a) General—(1) Purpose. The purpose of this part is to prescribe notice requirements under section 4231 of ERISA for mergers and transfers of assets or liabilities among multiemployer pension plans. This part also interprets the other requirements of section 4231 of ERISA and prescribes special rules for de minimis mergers and transfers.

    (2) Scope. This part applies to mergers and transfers among multiemployer plans where all of the plans immediately before and immediately after the transaction are multiemployer plans covered by title IV of ERISA.

    (b) Additional requirements. Subpart B of this part sets forth the additional requirements for and procedures specific to a request for a facilitated merger.

    § 4231.2 Definitions.

    The following terms are defined in § 4001.2 of this chapter: annuity, Code, EIN, ERISA, fair market value, guaranteed benefit, IRS, multiemployer plan, normal retirement age, PBGC, plan, plan sponsor, plan year, and PN. In addition, the following terms are defined for purposes of this part:

    Actuarial valuation means a valuation of assets and liabilities performed by an enrolled actuary using the actuarial assumptions used for purposes of determining the charges and credits to the funding standard account under section 304 of ERISA and section 431 of the Code.

    Advocate means the Participant and Plan Sponsor Advocate under section 4004 of ERISA.

    Critical and declining status has the same meaning as the term has under section 305(b)(6) of ERISA and section 432(b)(6) of the Code.

    Critical status has the same meaning as the term has under section 305(b)(2) of ERISA and section 432(b)(2) of the Code, and includes “critical and declining status” as defined in section 305(b)(6) of ERISA and section 432(b)(6) of the Code.

    De minimis merger is defined in § 4231.7(b).

    De minimis transfer is defined in § 4231.7(c).

    Effective date means, with respect to a merger or transfer, the earlier of—

    (1) The date on which one plan assumes liability for benefits accrued under another plan involved in the transaction; or

    (2) The date on which one plan transfers assets to another plan involved in the transaction.

    Facilitated merger means a merger of two or more multiemployer plans facilitated by PBGC under section 4231(e) of ERISA, including a merger that is facilitated with financial assistance under section 4231(e)(2) of ERISA.

    Fair market value of assets has the same meaning as the term has for minimum funding purposes under section 304 of ERISA and section 431 of the Code.

    Financial assistance means periodic or lump sum financial assistance payments from PBGC under section 4261 of ERISA.

    Financial assistance merger means a merger facilitated by PBGC for which PBGC provides financial assistance (within the meaning of section 4261 of ERISA) under section 4231(e)(2) of ERISA.

    Insolvent has the same meaning as insolvent under section 4245(b) of ERISA.

    Merged plan means a plan that is the result of the merger of two or more multiemployer plans.

    Merger means the combining of two or more plans into a single plan. For example, a consolidation of two plans into a new plan is a merger.

    Significantly affected plan means a plan that—

    (1) Transfers assets that equal or exceed 15 percent of its assets before the transfer,

    (2) Receives a transfer of unfunded accrued benefits that equal or exceed 15 percent of its assets before the transfer,

    (3) Is created by a spinoff from another plan, or

    (4) Engages in a merger or transfer (other than a de minimis merger or transfer) either—

    (i) After such plan has terminated by mass withdrawal under section 4041A(a)(2) of ERISA, or

    (ii) With another plan that has so terminated.

    Transfer and transfer of assets or liabilities mean a diminution of assets or liabilities with respect to one plan and the acquisition of these assets or the assumption of these liabilities by another plan or plans (including a plan that did not exist prior to the transfer). However, the shifting of assets or liabilities pursuant to a written reciprocity agreement between two multiemployer plans in which one plan assumes liabilities of another plan is not a transfer of assets or liabilities. In addition, the shifting of assets between several funding media used for a single plan (such as between trusts, between annuity contracts, or between trusts and annuity contracts) is not a transfer of assets or liabilities.

    Unfunded accrued benefits means the excess of the present value of a plan's accrued benefits over the plan's fair market value of assets, determined on the basis of the actuarial valuation required under § 4231.5.

    § 4231.3 Requirements for mergers and transfers.

    (a) General requirements. A plan sponsor may not cause a multiemployer plan to merge with one or more multiemployer plans or transfer assets or liabilities to or from another multiemployer plan unless the merger or transfer satisfies all of the following requirements:

    (1) No participant's or beneficiary's accrued benefit is lower immediately after the effective date of the merger or transfer than the benefit immediately before that date (except as provided under § 4231.4(b)).

    (2) Actuarial valuations of the plans that existed before the merger or transfer have been performed in accordance with § 4231.5.

    (3) For each plan that exists after the transaction, an enrolled actuary—

    (i) Determines that the plan meets the applicable plan solvency requirement set forth in § 4231.6; or

    (ii) Otherwise demonstrates that benefits under the plan are not reasonably expected to be subject to suspension under section 4245 of ERISA.

    (4) The plan sponsor notifies PBGC of the merger or transfer in accordance with §§ 4231.8 and 4231.9.

    (b) Compliance determination. If a plan sponsor requests a determination that a merger or transfer that may otherwise be prohibited by section 406(a) or (b)(2) of ERISA satisfies the requirements of section 4231 of ERISA, the plan sponsor must submit the information described in § 4231.10 in addition to the information required by § 4231.9. PBGC may request additional information if necessary to determine whether a merger or transfer complies with the requirements of section 4231 and subpart A of this part. Plan sponsors are not required to request a compliance determination. Under section 4231(c) of ERISA, if PBGC determines that the merger or transfer complies with section 4231 of ERISA and subpart A of this part, the merger or transfer will not constitute a violation of the prohibited transaction provisions of section 406(a) and (b)(2) of ERISA.

    (c) Certified change in bargaining representative. Transfers of assets and liabilities pursuant to a change of collective bargaining representative certified under the Labor-Management Relations Act of 1947 or the Railway Labor Act, as amended, are governed by section 4235 of ERISA. Plan sponsors involved in such transfers are not required to comply with subpart A of this part. However, under section 4235(f)(1) of ERISA, the plan sponsors of the plans involved in the transfer may agree to a transfer that complies with sections 4231 and 4234 of ERISA. Plan sponsors that elect to comply with sections 4231 and 4234 of ERISA must comply with the rules in subpart A of this part.

    (d) Informal consultation. A plan sponsor may contact PBGC on an informal basis to discuss a potential merger or transfer.

    § 4231.4 Preservation of accrued benefits.

    (a) General. Section 4231(b)(2) of ERISA and § 4231.3(a)(1) require that no participant's or beneficiary's accrued benefit may be lower immediately after the effective date of the merger or transfer than the benefit immediately before the merger or transfer. Except as provided in paragraph (b) of this section, a plan that assumes an obligation to pay benefits for a group of participants satisfies this requirement only if the plan contains a provision preserving all accrued benefits. The determination of what is an accrued benefit must be made in accordance with section 411 of the Code and the regulations thereunder.

    (b) Waiver. PBGC may waive the requirement of paragraph (a) of this section, § 4231.3(a)(1), and section 4231(b)(2) of ERISA to the extent the accrued benefit is suspended under section 305(e)(9) of ERISA contemporaneously with the merger or transfer. If waived, the plan provision described under paragraph (a) of this section may exclude accrued benefits only to the extent those benefits are suspended under section 305(e)(9) of ERISA contemporaneously with the merger or transfer.

    § 4231.5 Valuation requirement.

    The actuarial valuation requirement under section 4231(b)(4) of ERISA and § 4231.3(a)(2) is satisfied if an actuarial valuation has been performed for the plan based on the plan's assets and liabilities as of a date not earlier than the first day of the last plan year ending before the proposed effective date of the transaction. If the actuarial valuation required under this section is not complete when the notice of merger or transfer is filed, the plan sponsor may provide the most recent actuarial valuation for the plan with the notice, and the actuarial valuation required under this section when complete. For a significantly affected plan involved in a transfer (other than a plan that is a significantly affected plan only because the transfer involves a plan that has terminated by mass withdrawal under section 4041A(a)(2) of ERISA), the valuation must separately identify assets, contributions, and liabilities being transferred and must be based on the actuarial assumptions and methods that are expected to be used for the plan for the first plan year beginning after the transfer.

    § 4231.6 Plan solvency tests.

    (a) General. For a plan that is not a significantly affected plan, the plan solvency requirement of section 4231(b)(3) of ERISA and § 4231.3(a)(3)(i) is satisfied if—

    (1) The plan's expected fair market value of assets immediately after the merger or transfer equals or exceeds five times the benefit payments for the last plan year ending before the proposed effective date of the merger or transfer; or

    (2) In each of the first five plan years beginning on or after the proposed effective date of the merger or transfer, the plan's expected fair market value of assets as of the beginning of the plan year plus expected contributions and investment earnings equal or exceed expected expenses and benefit payments for the plan year.

    (b) Significantly affected plans. The plan solvency requirement of section 4231(b)(3) of ERISA and § 4231.3(a)(3)(i) is satisfied for a significantly affected plan if all of the following requirements are met:

    (1) Expected contributions equal or exceed the estimated amount necessary to satisfy the minimum funding requirement of section 431 of the Code for the five plan years beginning on or after the proposed effective date of the transaction.

    (2) The plan's expected fair market value of assets immediately after the transaction equals or exceeds the total amount of expected benefit payments for the first five plan years beginning on or after the proposed effective date of the transaction.

    (3) Expected contributions for the first plan year beginning on or after the proposed effective date of the transaction equal or exceed expected benefit payments for that plan year.

    (4) Expected contributions for the amortization period equal or exceed the unfunded accrued benefits plus expected normal costs for the period. The enrolled actuary may select as the amortization period either—

    (i) The first 25 plan years beginning on or after the proposed effective date of the transaction, or

    (ii) The amortization period for the resulting base when the combined charge base and the combined credit base are offset under section 431(b)(5) of the Code.

    (c) Rules for determinations. In determining whether a transaction satisfies the plan solvency requirements set forth in this section, the following rules apply:

    (1) Expected contributions after a merger or transfer must be determined by assuming that contributions for each plan year will equal contributions for the last full plan year ending before the date on which the notice of merger or transfer is filed with PBGC. If expected contributions include withdrawal liability payments, such payments must be shown separately. If the withdrawal liability payments are not the assessed amounts, or are not in accordance with the schedule of payments, or include future assessments, include the basis for such differences, with supporting data, calculations, assumptions, and methods. In addition, contributions must be adjusted to reflect—

    (i) The merger or transfer;

    (ii) Any change in the rate of employer contributions that has been negotiated (whether or not in effect); and

    (iii) Any trend of changing contribution base units over the preceding five plan years or other period of time that can be demonstrated to be more appropriate.

    (2) Expected normal costs must be determined under the funding method and assumptions expected to be used by the plan actuary for purposes of determining the minimum funding requirement under section 431 of the Code. If an aggregate funding method is used for the plan, normal costs must be determined under the entry age normal method.

    (3) Expected benefit payments must be determined by assuming that current benefits remain in effect and that all scheduled increases in benefits occur.

    (4) The plan's expected fair market value of assets immediately after the merger or transfer must be based on the most recent data available immediately before the date on which the notice is filed.

    (5) Expected investment earnings must be determined using the same interest assumption to be used for determining the minimum funding requirement under section 431 of the Code.

    (6) Expected expenses must be determined using expenses in the last plan year ending before the notice is filed, adjusted to reflect any anticipated changes.

    (7) Expected plan assets for a plan year must be determined by adjusting the most current data on the plan's fair market value of assets to reflect expected contributions, investment earnings, benefit payments and expenses for each plan year between the date of the most current data and the beginning of the plan year for which expected assets are being determined.

    § 4231.7 De minimis mergers and transfers.

    (a) Special plan solvency rule. The determination of whether a de minimis merger or transfer satisfies the plan solvency requirement in § 4231.6(a) may be made without regard to any other de minimis mergers or transfers that have occurred since the most recent actuarial valuation.

    (b) De minimis merger defined. A merger is de minimis if the present value of accrued benefits (whether or not vested) of one plan is less than 3 percent of the other plan's fair market value of assets.

    (c) De minimis transfer defined. A transfer of assets or liabilities is de minimis if—

    (1) The fair market value of assets transferred, if any, is less than 3 percent of the fair market value of assets of all of the transferor plan's assets;

    (2) The present value of the accrued benefits transferred (whether or not vested) is less than 3 percent of the fair market value of assets of all of the transferee plan's assets; and

    (3) The transferee plan is not a plan that has terminated under section 4041A(a)(2) of ERISA.

    (d) Value of assets and benefits. For purposes of paragraphs (b) and (c) of this section, the value of plan assets and accrued benefits may be determined as of any date prior to the proposed effective date of the transaction, but not earlier than the date of the most recent actuarial valuation.

    (e) Aggregation required. In determining whether a merger or transfer is de minimis, the assets and accrued benefits transferred in previous de minimis mergers and transfers within the same plan year must be aggregated as described in paragraphs (e)(1) and (2) of this section. For the purposes of those paragraphs, the value of plan assets may be determined as of the date during the plan year on which the total value of the plan's assets is the highest.

    (1) A merger is not de minimis if the total present value of accrued benefits merged into a plan, when aggregated with all prior de minimis mergers of and transfers to that plan effective within the same plan year, equals or exceeds 3 percent of the value of the plan's assets.

    (2) A transfer is not de minimis if, when aggregated with all previous de minimis mergers and transfers effective within the same plan year—

    (i) The value of all assets transferred from a plan equals or exceeds 3 percent of the value of the plan's assets; or

    (ii) The present value of all accrued benefits transferred to a plan equals or exceeds 3 percent of the plan's assets.

    § 4231.8 Filing requirements; timing and method of filing.

    (a) When to file. Except as provided in paragraph (g) of this section, a notice of a proposed merger or transfer, and, if applicable, a request for a compliance determination or facilitated merger (which may be filed separately or combined), must be filed not less than the following number of days before the proposed effective date of the transaction—

    (1) 270 days in the case of a facilitated merger under § 4231.12;

    (2) 120 days in the case of a merger (other than a facilitated merger) for which a compliance determination under § 4231.10 is requested, or a transfer; or

    (3) 45 days in the case of a merger for which a compliance determination under § 4231.10 is not requested.

    (b) Method of filing. PBGC applies the rules in subpart A of part 4000 of this chapter to determine permissible methods of filing with PBGC under this part.

    (c) Computation of time. PBGC applies the rules in subpart D of part 4000 of this chapter to compute any time period for filing under this part.

    (d) Who must file. The plan sponsors of all plans involved in a merger or transfer, or the duly authorized representative(s) acting on behalf of the plan sponsors, must jointly file the notice required by subpart A of this part, and, if applicable, a request for a facilitated merger under § 4231.12.

    (e) Where to file. See § 4000.4 of this chapter for information on where to file.

    (f) Date of filing. PBGC applies the rules in subpart C of part 4000 of this chapter to determine the date a submission under this part was filed with PBGC. For purposes of paragraph (a) of this section, the notice, and, if applicable, a request for a compliance determination or facilitated merger, is not considered filed until all of the information required under this part has been submitted.

    (g) Waiver of timing of notice. PBGC may waive the timing requirements of paragraph (a) of this section and section 4231(b)(1) of ERISA if—

    (1) A plan sponsor demonstrates to the satisfaction of PBGC that failure to complete the merger or transfer in less than the applicable notice period set forth in paragraph (a) of this section will cause harm to participants or beneficiaries of the plans involved in the transaction;

    (2) PBGC determines that the transaction complies with the requirements of section 4231 of ERISA; or

    (3) PBGC completes its review of the transaction.

    § 4231.9 Notice of merger or transfer.

    Each notice of proposed merger or transfer required under section 4231(b)(1) of ERISA and this subpart must contain the following information:

    (a) For each plan involved in the merger or transfer—

    (1) The name of the plan;

    (2) The name, address and telephone number of the plan sponsor and of the plan sponsor's duly authorized representative, if any; and

    (3) The plan sponsor's EIN and the plan's PN and, if different, the EIN or PN last filed with PBGC. If no EIN or PN has been assigned, the notice must so indicate.

    (b) Whether the transaction being reported is a merger or transfer, whether it involves any plan that has terminated under section 4041A(a)(2) of ERISA, whether any significantly affected plan is involved in the transaction (and, if so, identifying each such plan), and whether it is a de minimis transaction as defined in § 4231.7 (and, if so, including an enrolled actuary's certification to that effect).

    (c) The proposed effective date of the transaction.

    (d) Except as provided under § 4231.4(b), a copy of each plan provision stating that no participant's or beneficiary's accrued benefit will be lower immediately after the effective date of the merger or transfer than the benefit immediately before that date.

    (e) For each plan that exists after the transaction, one of the following statements, certified by an enrolled actuary:

    (1) A statement that the plan satisfies the applicable plan solvency test set forth in § 4231.6, indicating which is the applicable test, and including the supporting data, calculations, assumptions, and methods.

    (2) A statement of the basis on which the actuary has determined under § 4231.3(a)(3)(ii) that benefits under the plan are not reasonably expected to be subject to suspension under section 4245 of ERISA, including the supporting data, calculations, assumptions, and methods.

    (f) For each plan that exists before a transaction (unless the transaction is de minimis and does not involve either a request for financial assistance, or any plan that has terminated under section 4041A(a)(2) of ERISA), a copy of the most recent actuarial valuation report that satisfies the requirements of § 4231.5.

    (g) For each significantly affected plan that exists after the transaction, the following information used in making the plan solvency determination under § 4231.6(b):

    (1) The present value of the accrued benefits and plan's fair market value of assets under the valuation required by § 4231.5, allocable to the plan after the transaction.

    (2) The fair market value of assets in the plan after the transaction (determined in accordance with § 4231.6(c)(4)).

    (3) The expected benefit payments for the plan for the first plan year beginning on or after the proposed effective date of the transaction (determined in accordance with § 4231.6(c)(3)).

    (4) The contribution rates in effect for the plan for the first plan year beginning on or after the proposed effective date of the transaction.

    (5) The expected contributions for the plan for the first plan year beginning on or after the proposed effective date of the transaction (determined in accordance with § 4231.6(c)(1)).

    § 4231.10 Request for compliance determination.

    (a) General. The plan sponsor(s) of one or more plans involved in a merger or transfer, or the duly authorized representative(s) acting on behalf of the plan sponsor(s), may file a request for a determination that the transaction complies with the requirements of section 4231 of ERISA. If the plan sponsor(s) requests a compliance determination, the request must be filed with the notice of merger or transfer under § 4231.3(a)(4), and must contain the information described in paragraph (c) of this section, as applicable.

    (b) Single request permitted for all de minimis transactions. A plan sponsor may submit a single request for a compliance determination covering all de minimis mergers or transfers that occur between one plan valuation and the next. However, the plan sponsor must still notify PBGC of each de minimis merger or transfer separately, in accordance with §§ 4231.8 and 4231.9. The single request for a compliance determination may be filed concurrently with any one of the notices of a de minimis merger or transfer.

    (c) Contents of request. A request for a compliance determination concerning a merger or transfer that is not de minimis must contain—

    (1) A copy of the merger or transfer agreement; and

    (2) For each significantly affected plan, other than a plan that is a significantly affected plan only because the merger or transfer involves a plan that has terminated by mass withdrawal under section 4041A(a)(2) of ERISA, copies of all actuarial valuations performed within the 5 years preceding the date of filing the notice required under § 4231.3(a)(4).

    § 4231.11 Actuarial calculations and assumptions.

    (a) Most recent valuation. All calculations required by this part must be based on the most recent actuarial valuation as of the date of filing the notice, updated to show any material changes.

    (b) Assumptions. All calculations required by this part must be performed by an enrolled actuary based on methods and assumptions each of which is reasonable (taking into account the experience of the plan and reasonable expectations), and which, in combination, offer the actuary's best estimate of anticipated experience under the plan.

    (c) Updated calculations. PBGC may require updated calculations and representations based on the actual effective date of a merger or transfer if that date is more than one year after the notice is filed, based on revised actuarial assumptions, or based on other good cause.

    Subpart B—Additional Rules for Facilitated Mergers
    § 4231.12 Request for facilitated merger.

    (a) General. (1) The plan sponsors of the plans involved in a proposed merger may request that PBGC facilitate the merger. Facilitation may include training, technical assistance, mediation, communication with stakeholders, and support with related requests to other government agencies. Facilitation may also include financial assistance to the merged plan. PBGC has discretion under section 4231(e) of ERISA to take such actions as it deems appropriate to facilitate the merger of two or more multiemployer plans if it determines, after consultation with the Advocate, that the proposed merger is in the interests of the participants and beneficiaries of at least one of the plans, and is not reasonably expected to be adverse to the overall interests of the participants and beneficiaries of any of the plans involved in the proposed merger. For a facilitated merger, including a financial assistance merger, the requirements of section 4231(b) of ERISA and subpart A of this part must be satisfied in addition to the requirements of section 4231(e) of ERISA and this subpart. The procedures set forth in this subpart represent the exclusive means by which PBGC will approve a request for a facilitated merger under section 4231(e) of ERISA.

    (2) Financial assistance. Subject to the requirements in section 4231(e) of ERISA and this subpart, in the case of a request for a financial assistance merger, PBGC may in its discretion provide financial assistance (within the meaning of section 4261 of ERISA). Such financial assistance will be with respect to the guaranteed benefits payable under the critical and declining status plan(s) involved in the facilitated merger.

    (b) Information requirements. (1) A request for a facilitated merger, including a request for a financial assistance merger, must be filed with the notice of merger under § 4231.3(a)(4), and must contain the information described in § 4231.10, and a detailed narrative description with supporting documentation demonstrating that the proposed merger is in the interests of participants and beneficiaries of at least one of the plans, and is not reasonably expected to be adverse to the overall interests of the participants and beneficiaries of any of the plans. If a financial assistance merger is requested, the narrative description and supporting documentation may consider the effect of financial assistance in making these demonstrations.

    (2) If a financial assistance merger is requested, the request must contain the information required in §§ 4231.13 through 4231.16 in addition to the information required in paragraph (b)(1) of this section.

    (3) PBGC may require the plan sponsors to submit additional information to determine whether the requirements of section 4231(e) of ERISA are met or to enable it to facilitate the merger.

    (c) Duty to amend and supplement. During any time in which a request for a facilitated merger, including a request for a financial assistance merger, is pending final action by PBGC, the plan sponsors must promptly notify PBGC in writing of any material fact or representation contained in or relating to the request, or in any supporting documents, that is no longer accurate or was omitted.

    § 4231.13 Plan information for financial assistance merger.

    A request for a financial assistance merger must include the following information for each plan involved in the merger:

    (a) The most recent trust agreement, including all amendments adopted since the last restatement.

    (b) The most recent plan document, including all amendments adopted since the last restatement.

    (c) The most recent summary plan description (SPD), and all summaries of material modification issued since the most recent SPD.

    (d) If applicable, the most recent rehabilitation plan (or funding improvement plan), including all subsequent amendments and updates, and the percentage of total contributions received under each schedule of the rehabilitation plan (or funding improvement plan) for the most recent plan year available.

    (e) A copy of the plan's most recent IRS determination letter.

    (f) A copy of the plan's most recent Form 5500 (Annual Report Form) and all schedules and attachments (including the audited financial statement).

    (g) A current listing of employers who have an obligation to contribute to the plan, and the approximate number of participants for whom each employer is currently making contributions.

    (h) A schedule of withdrawal liability payments collected in each of the most recent five plan years.

    (i) If applicable, a copy of the plan sponsor's application for suspension of benefits under section 305(e)(9)(G) of ERISA (including all attachments and exhibits).

    § 4231.14 Description of financial assistance merger.

    A request for a financial assistance merger must include the following information about the proposed financial assistance merger:

    (a) A detailed description of the proposed financial assistance merger, including any larger integrated transaction of which the merger is a part (including, but not limited to, an application for suspension of benefits under section 305(e)(9)(G) of ERISA).

    (b) A narrative description of the events that led to the plan sponsors' decision to submit a request for a financial assistance merger.

    (c) A narrative description of significant risks and assumptions relating to the proposed financial assistance merger and the projections provided in support of the request.

    (d) A detailed description of the estimated total amount of financial assistance the plan sponsors request for each year, including the supporting data, calculations, assumptions, and a description of the methodology used to determine the estimated amounts.

    § 4231.15 Actuarial and financial information for financial assistance merger.

    A request for a financial assistance merger must include the following actuarial and financial information for the plans involved in the merger:

    (a) A copy of the actuarial valuation performed for each of the two plan years before the most recent actuarial valuation filed in accordance with § 4231.9(f).

    (b) If applicable, a copy of the plan actuary's most recent annual actuarial certification under section 305(b)(3) of ERISA, including a detailed description of the assumptions used in the certification, and the basis under which they were determined. The description must include information about the assumptions used for the projection of future contributions, withdrawal liability payments, and investment returns, and any other assumption that may have a material effect on projections.

    (c) A detailed statement certified by an enrolled actuary that the merger is necessary for one or more of the plans involved to avoid or postpone insolvency, including the basis for the conclusion, supporting data, calculations, assumptions, and a description of the methodology. This statement must demonstrate for each critical and declining status plan involved in the merger that the date the plan projects to become insolvent (without reflecting the merger) is earlier than the date the merged plan projects to become insolvent (the merged plan may reflect the proposed financial assistance). Include as an exhibit annual cash flow projections for each critical and declining status plan involved in the merger through the date the plan projects to become insolvent (using an open group valuation and without reflecting the merger). Annual cash flow projections must reflect the following information:

    (1) Fair market value of assets as of the beginning of the year.

    (2) Contributions and withdrawal liability payments.

    (3) Benefit payments organized by participant type (e.g., active, retiree, terminated vested).

    (4) Administrative expenses.

    (5) Fair market value of assets as of the end of the year.

    (d) For each critical and declining status plan involved in the merger, a long-term projection (at least 50 to 90 years) of benefit disbursements by participant type (e.g., active, retiree, terminated vested) (without reflecting the merger) reflecting reduced benefit disbursements at the PBGC-guarantee level (which may be estimated) beginning with the proposed effective date of the merger (using a closed group valuation and no accruals after the proposed effective date of the merger). Include the supporting data, calculations, assumptions, and, if applicable, a description of estimates used for this projection.

    (e) A detailed statement certified by an enrolled actuary that financial assistance is necessary for the merged plan to become or remain solvent, including the basis for the conclusion, supporting data, calculations, assumptions, and a description of the methodology. Include as an exhibit annual cash flow projections for the merged plan with the proposed financial assistance (based on the actuarial assumptions and methods that will be used under the merged plan). Annual cash flow projections must reflect the information listed in paragraphs (c)(1) through (5) of this section. In addition, include as an exhibit a statement certified by an enrolled actuary of whether the merged plan would be in critical status for purposes of paragraph (e)(1) or (2) of this section, including the basis for the conclusion.

    (1) If the merged plan would be in critical status immediately following the merger without the proposed financial assistance (as reasonably determined by the enrolled actuary or as set forth in this paragraph), the enrolled actuary's certified statement must demonstrate that the merged plan will avoid insolvency under section 305(e)(9)(D)(iv) of ERISA and the regulations thereunder (excluding stochastic projections) with the proposed financial assistance. The enrolled actuary may determine whether the merged plan would be in critical status based on the combined data and projections underlying the status certifications of each of the plans for the plan year immediately preceding the merger, including any selected updates in the data based on the experience of the plans in the immediately preceding plan year (reasonable adjustments are permitted but not required).

    (2) If the merged plan would not be in critical status immediately following the merger without the proposed financial assistance (as reasonably determined by the enrolled actuary or as set forth in paragraph (e)(1) of this section), the enrolled actuary's certified statement must demonstrate that the merged plan is not projected to become insolvent during the 20 plan years beginning after the proposed effective date of the merger with the proposed financial assistance (using the methodologies set forth under section 305(b)(3)(B)(iv) of ERISA and the regulations thereunder). If such a demonstration is possible without the proposed financial assistance, or if the amount of financial assistance requested exceeds the amount needed to satisfy this demonstration, the enrolled actuary's certified statement must demonstrate that financial assistance is necessary to mitigate the adverse effects of the merger on the merged plan's ability to remain solvent. The demonstration that financial assistance is necessary to mitigate the adverse effects of the merger on the merged plan's ability to remain solvent may be based on stress testing over a long-term period (and may reflect reasonable future adverse experience), using a reasonable method in accordance with generally accepted actuarial standards.

    (f) If applicable, a copy of the plan actuary's certification under section 305(e)(9)(C)(i) of ERISA.

    (g) The rules in § 4231.6(c) apply to the solvency projections described in paragraphs (c) and (e) of this section, unless section 305(e)(9)(D)(iv) of ERISA and the regulations thereunder apply and specify otherwise.

    § 4231.16 Participant census data for financial assistance merger.

    A request for a financial assistance merger must include a copy of the census data used for the projections described in § 4231.15(c) through (e), including:

    (a) Participant type (retiree, beneficiary, disabled, terminated vested, active, alternate payee).

    (b) Gender.

    (c) Date of birth.

    (d) Credited service for guarantee calculation (i.e., number of years of participation).

    (e) Vested accrued monthly benefit.

    (f) Monthly benefit guaranteed by PBGC.

    (g) Benefit commencement date (for participants in pay status and others for which the reported benefit will not be payable at normal retirement age).

    (h) For each participant in pay status—

    (1) Form of payment, and

    (2) Data relevant to the form of payment, including:

    (i) For a joint-and-survivor benefit, the beneficiary's benefit amount and the beneficiary's date of birth;

    (ii) For a Social Security level income benefit, the date of any change in the benefit amount, and the benefit amount after such change;

    (iii) For a 5-year certain or 10-year certain benefit (or similar benefit), the relevant defined period; or

    (iv) For a form of payment not otherwise described in this section, the data necessary for the valuation of the form of payment.

    (i) If an actuarial increase for postponed retirement applies, or if the form of annuity is a Social Security level income benefit, the monthly vested benefit payable at normal retirement age in normal form of annuity.

    § 4231.17 PBGC action on a request for facilitated merger.

    (a) General. PBGC may approve or deny a request for a facilitated merger, including a request for a financial assistance merger, at its discretion if the requirements of section 4231 of ERISA are satisfied. PBGC will notify the plan sponsor(s) in writing of its decision on a request. If PBGC denies the request, PBGC's written decision will state the reason(s) for the denial. If PBGC approves a request for a financial assistance merger, PBGC will provide a financial assistance agreement detailing the total amount and terms of the financial assistance as soon as practicable after notifying the plan sponsor(s) in writing of its approval.

    (b) Final agency action. PBGC's decision to approve or deny a request for a facilitated merger, including a request for a financial assistance merger, is a final agency action for purposes of judicial review under the Administrative Procedure Act (5 U.S.C. 701 et seq.).

    § 4231.18 Jurisdiction over financial assistance merger.

    (a) General. PBGC will retain jurisdiction over the merged plan resulting from a financial assistance merger to carry out the purposes, terms, and conditions of the financial assistance merger, the financial assistance agreement, sections 4231 and 4261 of ERISA, and the regulations thereunder.

    (b) Financial assistance agreement. PBGC may, upon providing notice to the plan sponsor, make changes to the financial assistance agreement in response to changed circumstances consistent with sections 4231 and 4261 of ERISA and the regulations thereunder.

    William Reeder, Director, Pension Benefit Guaranty Corporation.
    [FR Doc. 2018-19988 Filed 9-13-18; 8:45 am] BILLING CODE 7709-02-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2018-0871] Drawbridge Operation Regulation; Sacramento River, Sacramento, CA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Tower Drawbridge across the Sacramento River, mile 59.0, at Sacramento, CA. The deviation is necessary to allow the community to participate in the Farm-to-Fork Dinner event. This deviation allows the bridge to remain in the closed-to-navigation position during the deviation period.

    DATES:

    This deviation is effective from 12 noon through 10 p.m. on September 30, 2018.

    ADDRESSES:

    The docket for this deviation, USCG-2018-0871, is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Carl T. Hausner, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510-437-3516; email [email protected]

    SUPPLEMENTARY INFORMATION:

    The California Department of Transportation has requested a temporary change to the operation of the Tower Drawbridge over the Sacramento River, mile 59.0, at Sacramento, CA. The drawbridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw operates as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.

    The drawspan will be secured in the closed-to-navigation position from 12 noon through 10 p.m. on September 30, 2018, to allow the community to participate in the Farm-to-Fork Dinner event. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.

    Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies with a 2-hour notification to the bridge owner and there are no immediate alternate routes for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

    In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

    Dated: September 11, 2018. Carl T. Hausner, District Bridge Chief, Eleventh Coast Guard District.
    [FR Doc. 2018-20043 Filed 9-13-18; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [EPA-HQ-SFUND-1989-0011; FRL-9983-74—Region 3] National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the Recticon/Allied Steel Superfund Site AGENCY:

    Environmental Protection Agency.

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) Region 3 announces the deletion of the Recticon/Allied Steel Corp Superfund Site (Site) located in East Coventry Twp, PA, from the National Priorities List (NPL). The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the Commonwealth of Pennsylvania, through the Pennsylvania Department of Environmental Protection, have determined that all appropriate response actions under CERCLA, have been completed. However, this deletion does not preclude future actions under Superfund.

    DATES:

    This action is effective September 14, 2018.

    ADDRESSES:

    Docket: EPA has established a docket for this action under Docket Identification No. EPA-HQ-SFUND-1989-0011. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the site information repositories.

    Locations, contacts, phone numbers and viewing hours are:

    USEPA Region III Administrative Records Room, 1650 Arch Street—6th Floor, Philadelphia, PA 19103-2029, 215-814-3157. Business Hours: Monday through Friday, 8:00 a.m.-4:30 p.m.; by appointment only. Local Repository, East Coventry Township Municipal Building, 855 Ellis Woods Road, Pottstown, PA 19464, 610-495-5443. Call for Business Hours.
    FOR FURTHER INFORMATION CONTACT:

    Andrew Hass, Remedial Project Manager, U.S. Environmental Protection Agency, Region 3, 3HS21 1650 Arch Street, Philadelphia, PA 19103, (215) 814-2049, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The site to be deleted from the NPL is: Recticon/Allied Steel Corp Superfund Site, East Coventry Twp, PA. A Notice of Intent to Delete for this Site was published in the Federal Register (83 FR 33186-33191) on July 17, 2018.

    The closing date for comments on the Notice of Intent to Delete was August 16, 2018. No adverse or site-specific public comments were received. As a result, a responsiveness summary was not prepared.

    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.

    List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

    Dated: August 31, 2018. Cosmo Servidio, Regional Administrator, Region III.

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

    PART 300—NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION CONTINGENCY PLAN 1. The authority citation for part 300 continues to read as follows: Authority:

    33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.

    Appendix B to Part 300—[Amended] 2. Table 1 of appendix B to part 300 is amended by removing the listing under Pennsylvania for “Recticon/Allied Steel Corp”.
    [FR Doc. 2018-20039 Filed 9-13-18; 8:45 am] BILLING CODE 6560-50-P
    83 179 Friday, September 14, 2018 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 929 [Doc. No. AMS-SC-18-0017; SC18-929-3 PR] 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; Proposed Amendment to Marketing Order 929 and Referendum Order AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule and referendum order.

    SUMMARY:

    This rulemaking proposes an amendment to Marketing Order No. 929, which regulates 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. The Cranberry Marketing Committee (Committee), recommended adding authority to accept contributions from domestic sources for research and development activities authorized under the marketing order and that would be free from any encumbrances as to their use by the donor.

    DATES:

    The referendum will be conducted from October 29, 2018 through November 19, 2018. The representative period for the referendum is September 1, 2016 through August 31, 2017.

    ADDRESSES:

    Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237.

    FOR FURTHER INFORMATION CONTACT:

    Geronimo Quinones, Marketing Specialist, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or email: [email protected]

    Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This proposal, pursuant to 5 U.S.C. 553, proposes an amendment to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposal is issued under Marketing 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.” Section 608c(17) of the Act and the applicable rules of practice and procedure governing the formulation of marketing agreements and orders (7 CFR part 900) authorizes amendment of the order through this informal rulemaking action.

    The Department of Agriculture (USDA) is issuing this 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 proposed 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 proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.

    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 no later than 20 days after the date of entry of the ruling.

    Section 1504 of the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill) (Pub. L. 110-246) amended section 608c(17) of the Act, which in turn required the addition of supplemental rules of practice to 7 CFR part 900 (73 FR 49307; August 21, 2008). The amendment of section 8c(17) of the Act and additional supplemental rules of practice authorize the use of informal rulemaking (5 U.S.C. 553) to amend Federal fruit, vegetable, and nut marketing agreements and orders. USDA may use informal rulemaking to amend marketing orders based on the nature and complexity of the proposed amendments, the potential regulatory and economic impacts on affected entities, and any other relevant matters.

    AMS has considered these factors and has determined that the amendment proposed is not unduly complex and the nature of the proposed amendment is appropriate for utilizing the informal rulemaking process to amend the Order.

    The proposed amendment was unanimously recommended by the Committee following deliberations at a public meeting held August 2017. The proposal would amend the Order by giving the Committee the authority to accept and expend voluntary contributions from domestic sources to fund research and development projects. All voluntary donations must be free from any restrictions on use by the donor, and the Committee would retain control over the use of all donated funds.

    A proposed rule soliciting comments on the proposed amendment was issued on April 19, 2018, and published in the Federal Register on April 27, 2018 (83 FR 18460). One comment was received. AMS will conduct a producer and processor referendum to determine support for the proposed amendment. If appropriate, a final rule will then be issued to effectuate the amendment favored by producers and processors in the referendum.

    The Committee's proposed amendment would amend the Order by authorizing the Committee to receive and expend voluntary contributions from domestic sources for research and development activities.

    Proposal—Voluntary Contributions

    This proposal would add a new section, § 929.43, Contributions, to the Order. If implemented, this section would authorize the Committee to accept voluntary financial contributions. Such contributions could only be accepted from domestic sources and must be free from any restrictions on their use by the donor. When received, the Committee would retain complete control of their use. The use of contributed funds would be limited to funding program activities authorized under § 929.45, Research and development.

    Currently, program operations are solely financed through assessments collected from handlers regulated under the Order. Sources not subject to the Order have expressed an interest in supporting many of the research and development projects currently funded by the Order. However, without the ability to accept financial contributions, the Committee has had to decline these offers. This proposal would authorize the Committee to accept financial contributions. With the potential for additional funding, more research and development projects could be undertaken.

    For the reasons stated above, it is proposed that § 929.43, Contributions, be added to authorize the Committee to accept voluntary financial contributions.

    Final Regulatory Flexibility Analysis

    Pursuant to the 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 producers 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 crop year was $23.50 per barrel, and total sales were around 9.5 million barrels. The value of cranberries that crop 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 (1,100) provides an average return per grower of $202,955. Based on USDA's Market News reports, the average free on board (f.o.b.) price for cranberries was around $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.

    The amendment proposed by the Committee would add a new section, § 929.43, Contributions, to the Order. If implemented, this section would authorize the Committee to accept voluntary financial contributions. Such contributions could only be accepted from domestic sources and must be free from any encumbrances or restrictions on their use by the donor. When received, the Committee would retain complete control of their use. The use of contributed funds would be limited to funding program activities authorized under § 929.45, Research and development.

    If the proposal is approved in referendum, there would be no direct financial effect on growers or handlers. This proposal would authorize the Committee to accept financial contributions. With the potential for additional funding, more research and promotional projects could be undertaken.

    Therefore, it is anticipated that both small and large producer and handler businesses would benefit from implementation of this proposal. Additionally, a past referendum concerning a similar action was supported by most eligible producers and processors. However, that referendum failed because the handlers that voted in the referendum did not represent the required minimum 50 percent of the total volume of cranberries processed during the representative period (82 FR 36991).

    Alternatives to this proposal, including making no changes at this time, were considered. However, the Committee believes it would be beneficial to authorize the acceptance of financial contributions from domestic sources which would help support research and promotional activities.

    Paperwork Reduction Act

    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, “Generic Fruit Crops.” No changes in those requirements as a result of this action would be necessary. Should any changes become necessary, they would be submitted to OMB for approval.

    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. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this 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.

    The Committee's meeting was widely publicized throughout the cranberry production area. All interested persons were invited to attend the meeting and encouraged to participate in Committee deliberations on all issues. The Committee meeting was public, and all entities, both large and small, were encouraged to express their views on this proposal.

    A proposed rule concerning this action was published in the Federal Register on April 27, 2018 (83 FR 18460). Copies of the proposed rule were mailed or sent via facsimile to all Committee members and cranberry handlers. Finally, the rule was made available through the internet by USDA and the Office of the Federal Register. A 60-day comment period ending June 26, 2018, was provided to allow interested persons to respond to the proposal. One comment was received. The comment submitted was not related to this proposal, therefore, no changes have been made to the proposed amendment.

    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/MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Richard Lower at his previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

    Findings and Conclusions

    The findings and conclusions and general findings and determinations included in the proposed rule set forth in the April 27, 2018, issue of the Federal Register are hereby approved and adopted.

    Marketing Order

    Annexed hereto and made a part hereof is the document entitled “Order Amending the Order 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.” This document has been decided upon as the detailed and appropriate means of effectuating the foregoing findings and conclusions. It is hereby ordered, that this entire rule be published in the Federal Register.

    Referendum Order

    It is hereby directed that a producer and processor referendum be conducted in accordance with the procedure for the conduct of referenda (7 CFR 900.400-900.407) to determine whether the annexed order amending the Order 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 is approved by producers as well as by processors who have frozen or canned cranberries grown within the production area during the representative period. The representative period for the conduct of such referendum is hereby determined to be September 1, 2016 through August 31, 2017.

    The agents of the Secretary of Agriculture to conduct such referendum are designated to be Doris Jamieson and Christian D. Nissen, Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, or email: [email protected] or [email protected] respectively.

    Order Amending the Order 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 1

    1 This order shall not become effective unless and until the requirements of § 900.14 of the rules of practice and procedure governing proceedings to formulate marketing agreements and marketing orders have been met.

    Findings and Determinations

    The findings hereinafter set forth are supplementary to the findings and determinations which were previously made in connection with the issuance of the marketing order; and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.

    1. The Order, as amended, and as hereby proposed to be further amended, and all of the terms and conditions thereof, would tend to effectuate the declared policy of the Act;

    2. The Order, as amended, and as hereby proposed to be further amended, regulates 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 in the same manner as, and are applicable only to, persons in the respective classes of commercial and industrial activity specified in the Order;

    3. The Order, as amended, and as hereby proposed to be further amended, is limited in application to the smallest regional production area which is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;

    4. The Order, as amended, and as hereby proposed to be further amended, prescribe, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of cranberries produced in the production area; and

    5. All handling of cranberries produced in the production area as defined in the Order is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.

    Order Relative to Handling

    It is therefore ordered, that on and after the effective date hereof, all 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 shall be in conformity to, and in compliance with, the terms and conditions of the said order as hereby proposed to be amended as follows:

    The provisions of the proposed marketing order amending the Order contained in the proposed rule issued by the Administrator on April 19, 2018, and published in the Federal Register (83 FR 18460) on April 27, 2018, will be and are the terms and provisions of this order amending the Order and are set forth in full herein.

    List of Subjects in 7 CFR Part 929

    Cranberries, Marketing agreements, Reporting and recordkeeping requirements.

    Dated: September 7, 2018. Bruce Summers, Administrator, Agricultural Marketing Service.

    For the reasons discussed in the preamble, AMS proposes to amend 7 CFR part 929 as follows:

    PART 929—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 1. The authority citation for 7 CFR part 929 continues to read as follows: Authority:

    7 U.S.C. 601-674.

    2. Add § 929.43 to read as follows:
    § 929.43 Contributions.

    The Committee may accept voluntary contributions to pay expenses incurred pursuant to § 929.45, Research and development. Such contributions may only be accepted if they are sourced from domestic contributors and are free from any encumbrances or restrictions on their use by the donor. The Cranberry Marketing Committee shall retain complete control of their use.

    [FR Doc. 2018-19834 Filed 9-13-18; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0719; Product Identifier 2016-NE-24-AD] RIN 2120-AA64 Airworthiness Directives; Honeywell International Inc. Turbofan Engines AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede Airworthiness Directive (AD) 2017-20-01, which applies to certain Honeywell International Inc. (Honeywell) TFE731-20 and TFE731-40 turbofan engines. AD 2017-20-01 requires removing the affected fan disk and replacing it with a fan disk eligible for installation. Since we issued AD 2017-20-01, we determined that some turbofan engine models were omitted from the applicability of AD 2017-20-01. This proposed AD would add these turbofan engine models to the applicability, remove the Honeywell TFE731-20 turbofan engine from the applicability, and prohibit installation of affected fan disks. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by October 29, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Honeywell International Inc., 111 S. 34th Street, Phoenix, AZ, 85034-2802; phone: 800-601-3099 (Toll Free U.S.A./Canada); 602-365-3099 (International Direct); website: www.myaerospace.com; email: [email protected] You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA, 01803. For information on the availability of this material at the FAA, call (781) 238-7759.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0719; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800-647-5527) is listed above. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Joseph Costa, Aerospace Engineer, Los Angeles ACO Branch, FAA, 3960 Paramount Boulevard, Lakewood, CA, 90712-4137; phone: 562-627-5246; fax: 562-627-5210; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0719; Product Identifier 2016-NE-24-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

    Discussion

    We issued AD 2017-20-01, Amendment 39-19058 (82 FR 45173, September 28, 2017), (“AD 2017-20-01”), for certain Honeywell TFE731-20 and TFE731-40 turbofan engines with fan disk part number, (P/N) 3060287-2, and a serial number (S/N) listed in Table 9 of Honeywell Service Bulletin (SB) TFE731-72-5256, Revision 0, dated October 7, 2016. AD 2017-20-01 requires removing the affected fan disk and replacing it with a part eligible for installation. AD 2017-20-01 resulted from two fan disks found with surface rollovers in the dovetail slot area. We issued AD 2017-20-01 to address the unsafe condition on these products.

    Actions Since AD 2017-20-01 Was Issued

    Since we issued AD 2017-20-01, we determined that Honeywell TFE731-20R, -20AR, -20BR, and TFE731-40R, -40AR, and -40BR turbofan engine models listed in Honeywell SB TFE731-72-5256, Revision 0, dated October 7, 2016, were omitted from the applicability of AD 2017-20-01. We also determined that the Honeywell TFE731-20 turbofan engine model was never produced and should be removed from the applicability; and that affected fan disks, P/N 3060267-2, should be prohibited from installation unless they have “T43374” marked adjacent to the engine P/N or S/N. This proposed AD would add Honeywell TFE731-20R, -20AR, -20BR, and TFE731-40R, -40AR, and -40BR turbofan engine models to the applicability, remove the Honeywell TFE731-20 turbofan engine from the applicability, and prohibit installation of affected fan disks.

    Related Service Information Under 1 CFR Part 51

    We reviewed Honeywell SB TFE731-72-5256, Revision 0, dated October 7, 2016. The SB identifies affected fan disks by S/N and describes procedures for removing, inspecting, and replacing the affected fan disks. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would retain certain requirements of AD 2017-20-01. This proposed AD would add Honeywell TFE731-20R, -20AR, -20BR, and TFE731-40AR, -40BR, and -40R turbofan engines with fan disk, P/N 3060287-2, and a S/N listed in Table 9 of Honeywell SB TFE731-72-5256, Revision 0, dated October 7, 2016. This proposed AD would also remove the Honeywell TFE731-20 turbofan engine from the applicability and prohibit installation of affected fan disks that do not have “T43374” marked adjacent to the engine P/N or S/N.

    Costs of Compliance

    We estimate that this proposed AD affects 61 engines installed on airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Remove fan disk and send to Honeywell for inspection 8 work-hours × $85 per hour = $680 $0 $680 $41,480 Install reworked or new fan disk 26 work-hours × $85 per hour = $2,210 0 2,210 134,810

    The new requirements of this proposed AD add no additional economic burden. We estimate the following costs to do any necessary fan disk replacements that would be required based on the results of the proposed inspection. We estimate that 6 engines will need this replacement.

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Replace the non-serviceable disk with a new fan disk 1 work-hour × $85 per hour = $85 $50,000 $50,085

    According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify that the proposed regulation:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2017-20-01, Amendment 39-19058; (82 FR 45173, September 28, 2017), and adding the following new AD: Honeywell International Inc. (Type Certificate previously held by AlliedSignal Inc.): Docket No. FAA-2018-0719; Product Identifier 2016-NE-24-AD. (a) Comments Due Date

    The FAA must receive comments on this AD action by October 29, 2018.

    (b) Affected ADs

    This AD replaces AD 2017-20-01, Amendment 39-19058 (82 FR 45173, September 28, 2017).

    (c) Applicability

    This AD applies to all Honeywell International Inc. (Honeywell) TFE731-20R, -20AR, -20BR, and TFE731-40, -40AR, -40BR, and -40R turbofan engines with a fan disk, part number (P/N) 3060287-2, and with a serial number (S/N) listed in Table 9 of Honeywell Service Bulletin (SB) TFE731-72-5256, Revision 0, dated October 7, 2016, that do not have “T43374” marked adjacent to the engine P/N or S/N.

    (d) Subject

    Joint Aircraft System Component (JASC) Code 7230, Turbine Engine Compressor Section.

    (e) Unsafe Condition

    This AD was prompted by a report of two fan disks found with surface rollovers in the dovetail slot area. We are issuing this AD to prevent uncontained failure of the fan disks. The unsafe condition, if not addressed, could result in uncontained fan disk release, damage to the engine, and damage to the airplane.

    (f) Compliance

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

    (g) Required Actions

    Remove the affected fan disk using the following criteria:

    (1) Remove fan disks with 9,000 cycles-since-new (CSN) or more as of the effective date of this AD, within 100 cycles-in-service (CIS), or at the next engine shop visit, or at next access, whichever occurs first, after the effective date of this AD.

    (2) Remove fan disks with between 8,000 and 8,999 CSN, inclusive, as of the effective date of this AD, within 9,100 CSN or within 1,000 CIS, or at the next engine shop visit, or at next access, whichever occurs first, after the effective date of this AD.

    (3) Remove fan disks with fewer than 8,000 CSN as of the effective date of this AD, before exceeding 9,000 CSN, or at the next engine shop visit, or at next access, whichever occurs first, after the effective date of this AD.

    (4) Replace any removed fan disk with a part eligible for installation.

    (h) Installation Prohibition

    Do not install an affected fan disk, P/N 3060267-2, unless “T43374” is marked adjacent to the engine P/N or S/N.

    (i) Definitions

    (1) For the purposes of this AD, an “engine shop visit” is defined as the removal of the tie-shaft nut from the engine.

    (2) For the purposes of this AD, “access” is defined as the removal of the fan rotor assembly from the engine.

    (3) For the purposes of this AD, a “part eligible for installation” is:

    (i) a fan disk not listed in the Accomplishment Instructions, Table 9, in Honeywell SB TFE731-72-5256, Revision 0, dated October 7, 2016; or

    (ii) a fan disk listed in Table 9, in Honeywell SB TFE731-72-5256, Revision 0, dated October 7, 2016, that has been inspected, reworked, and marked with “T43374” adjacent to the P/N or S/N. Guidance on returning affected parts to Honeywell for inspection and rework is found in the Accomplishment Instructions, paragraph 3.D., of Honeywell SB TFE731-72-5256, Revision 0, dated October 7, 2016.

    (j) Alternative Methods of Compliance (AMOCs)

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

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

    (k) Related Information

    (1) For more information about this AD, contact Joseph Costa, Los Angeles ACO Branch, FAA, 3960 Paramount Boulevard, Lakewood, CA, 90712-4137; phone: 562-627-5246; fax: 562-627-5210; email: [email protected]

    (2) For service information identified in this AD, contact Honeywell International Inc., 111 S. 34th Street, Phoenix, AZ, 85034-2802; phone: 800-601-3099 (Toll Free U.S.A./Canada); phone: 602-365-3099 (International Direct); website: www.myaerospace.com; email: [email protected] You may view this referenced service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA, 01803. For information on the availability of this material at the FAA, call 781-238-7759.

    Issued in Burlington, Massachusetts, on September 6, 2018. Robert J. Ganley, Manager, Engine and Propeller Standards Branch, Aircraft Certification Service.
    [FR Doc. 2018-19798 Filed 9-13-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9189; Product Identifier 2016-NM-114-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Supplemental notice of proposed rulemaking (SNPRM); reopening of comment period.

    SUMMARY:

    We are revising an earlier proposal for certain The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. This action revises the notice of proposed rulemaking (NPRM) by adding airplanes to the applicability and adding a measurement of the distance between the hooks of the torsion spring of the lanyard assembly. We are proposing this airworthiness directive (AD) to address the unsafe condition on these products. Since these actions would impose an additional burden over those in the NPRM, we are reopening the comment period to allow the public the chance to comment on these changes.

    DATES:

    The comment period for the NPRM published in the Federal Register on October 13, 2016 (81 FR 70647), is reopened.

    We must receive comments on this SNPRM by October 29, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this SNPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet https://www.myboeingfleet.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9189.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9189; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this SNPRM, the regulatory evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Scott Craig, Aerospace Engineer, Cabin Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3566; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9189; Product Identifier 2016-NM-114-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this SNPRM. We will consider all comments received by the closing date and may amend this SNPRM because of those comments.

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

    Discussion

    We issued an NPRM to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. The NPRM published in the Federal Register on October 13, 2016 (81 FR 70647). The NPRM was prompted by reports of passenger service units (PSUs) becoming detached from the supporting airplane structure in several Model 737 airplanes during survivable accidents. The NPRM proposed to require modifying the PSUs and life vest panels by replacing the existing inboard lanyard and installing two new lanyards on the outboard edge of the PSUs and life vest panels.

    Actions Since the NPRM Was Issued

    Since we issued the NPRM, we have determined that additional airplanes are subject to the unsafe condition. In addition, we have determined that the torsion spring of a certain lanyard assembly may be manufactured incorrectly and have an inadequate distance between the hooks of the torsion spring. Since the discrepant torsion springs may have been installed in production, as well as on airplanes modified in accordance with Boeing Service Bulletin 737-25-1707, dated September 24, 2015, we have determined that it is necessary to measure the distance between the hooks of the torsion spring of the lanyard assembly and replace discrepant lanyard assemblies.

    Comments

    We gave the public the opportunity to comment on the NPRM. The following presents the comments received on the NPRM and the FAA's response to each comment.

    Support for the NPRM

    The National Transportation Safety Board (NTSB) and commenter London Smith expressed their support for the NPRM.

    Effect of Winglets on Accomplishment of the Proposed Actions

    Aviation Partners Boeing stated that the installation of winglets per Supplemental Type Certificate (STC) ST00830SE does not affect the accomplishment of the manufacturer's service instructions.

    We agree with the commenter that STC ST00830SE does not affect the accomplishment of the manufacturer's service instructions. Therefore, the installation of STC ST00830SE does not affect the ability to accomplish the actions that would be required by this SNPRM. We have not changed this SNPRM in this regard.

    Request To Extend the Compliance Time

    Japan Airlines (JAL) and American Airlines (AA) requested that the compliance time in paragraph (g) of the proposed AD be extended from 60 months to 84 months. JAL suggested that, due to Boeing's manufacturing schedule for the kits, Boeing might not manufacture an adequate number of kits within the proposed compliance time. AA stated that extending the compliance time would allow operators to perform the modification during regularly scheduled heavy maintenance checks, thereby reducing the financial burden on operators.

    We disagree with the requests. In developing an appropriate compliance time for this action, we considered the urgency of the unsafe condition along with the practical aspect of accomplishing the required modification at a time corresponding to the normal scheduled maintenance for most operators. According to the manufacturer, an adequate number of modification kits will be available to modify the affected fleet within the proposed compliance time. However, under the provisions of paragraph (i) of this SNPRM, we will consider requests for approval of an extension of the compliance time if sufficient data are submitted to substantiate that the new compliance time would provide an acceptable level of safety. We have not changed this SNPRM in this regard.

    Request To Clarify Service Information Requirements

    AA requested that we clarify that data notes (b) and (d) to Figure 1 of Boeing Service Bulletin 737-25-1707, dated September 24, 2015, can be complied with in accordance with an operator's procedures. AA noted paragraph 3.B.1.b. of the Accomplishment Instructions of Boeing Service Bulletin 737-25-1707, dated September 24, 2015, which requires the installation of new lanyards in accordance with Figure 1 of the service information, is a Required for Compliance (RC) step. AA added that data notes (b) and (d) to Figure 1 of Boeing Service Bulletin 737-25-1707, dated September 24, 2015, provide latitude when the operator has an accepted alternative procedure by using the term “refer to.”

    We agree to clarify that the operator is allowed latitude in accomplishing work steps that use the term “refer to.” If a step is marked RC and a procedure or document may be followed to accomplish an action (e.g., the design approval holder's procedure or document may be used, but an FAA-accepted procedure could also be used), the appropriate terminology to use to cite the procedure or document is “refer to . . . as an accepted procedure.” We have not changed this SNPRM in this regard.

    Request To Add Airplanes to the Applicability

    United Airlines (UAL) noted that the proposed AD did not refer to the PSUs on Model 757-200 and -300 airplanes, which can have the same part numbers as the airplanes addressed by the proposed AD. UAL stated that operators who operate both of these fleet types need to review the risk of having both pre- and post-AD parts in their inventory. UAL added that they will mitigate the risk of potential parts intermingling by modifying their Model 757-200 and -300 airplanes with the same PSU modification.

    We infer that UAL requests that Model 757-200 and -300 series airplanes should be included in the applicability of this proposed AD. We agree to investigate whether a similar unsafe condition exists on Model 757-200 and -300 series airplanes. We will take appropriate action based on the result of that investigation. However, delaying this SNPRM in order to determine if Model 757 airplanes should be added to the applicability would be inappropriate given that we have determined that an unsafe condition exists and that the modifications must be done to ensure continued safety. We have not changed this SNPRM in this regard.

    Request To Change Text To Match the Service Information

    Boeing requested that we change wording in the proposed AD that discusses “. . . removing the existing lanyard and installing two new lanyards. . .” to instead read “. . . replacing the existing lanyard and installing two new lanyards. . . .” Boeing stated that the proposed text more accurately describes the modification required by the service bulletin.

    We agree with the request. We have updated the wording of the applicable sentence in the Discussion and Related Service Information under 1 CFR part 51 sections of this SNPRM.

    Request To Clarify Language Describing What Prompted the AD

    Boeing requested that the word “incidents” be changed to “accidents” in language describing what prompted the proposed AD. Boeing noted that the events in which PSUs became detached were accidents, not incidents, as defined by the NTSB and International Civil Aviation Organization (ICAO) Annex 13.

    We agree to make this change, which will more accurately define these events according to industry standards. We have updated the Discussion section and paragraph (e) of this SNPRM to reflect this change.

    Request To Refer to New Service Information

    Boeing requested that we update the proposed AD to refer to Boeing Service Bulletin 737-25-1707, Revision 1, dated May 18, 2018, which was recently released. Boeing stated that the service bulletin would be revised to include the 737NG Boeing Business Jet (BBJ) aircraft effectivity blocks, which were omitted in the original revision of the service bulletin.

    We agree with the commenter's request. Boeing Service Bulletin 737-25-1707, Revision 1, dated May 18, 2018, adds airplanes to the effectivity, adds a new measurement of the torsion spring of the lanyard assembly, and clarifies the instructions for attaching the lanyard assembly torsion spring to the PSU rail. For these reasons, we have updated this SNPRM to refer to Boeing Service Bulletin 737-25-1707, Revision 1, dated May 18, 2018.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Service Bulletin 737-25-1707, Revision 1, dated May 18, 2018. This service information describes procedures for modifying the PSUs and life vest panels by replacing the existing inboard lanyard and installing two new lanyards on the outboard edge of the PSUs and life vest panels, measuring the distance between the hooks of the torsion spring of the lanyard assembly, replacing any discrepant lanyard assemblies, and re-identifying serviceable lanyard assemblies. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

    We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. Certain changes described above expand the scope of the NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this SNPRM.

    Proposed Requirements of This SNPRM

    This SNPRM would require accomplishment of the actions identified as “RC” (required for compliance) in the Accomplishment Instructions of Boeing Service Bulletin 737-25-1707, Revision 1, dated May 18, 2018, described previously, except as discussed under “Differences Between this SNPRM and the Service Information,” and except for any differences identified as exceptions in the regulatory text of this proposed AD. For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9189.

    Differences Between This SNPRM and the Service Information

    The effectivity of Boeing Service Bulletin 737-25-1707, Revision 1, dated May 18, 2018, is limited to Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes, line numbers 1 through 6009, without a Boeing Sky Interior (BSI). However, the applicability of this proposed AD includes all Boeing Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes without a BSI. Because the affected lanyard assemblies are rotable parts, we have determined that these parts could later be installed on airplanes that were initially delivered with acceptable lanyard assemblies, thereby subjecting those airplanes to the unsafe condition. This difference has been coordinated with Boeing.

    Costs of Compliance

    We estimate that this proposed AD affects 2,015 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S.
  • operators
  • Inspection and modification Up to 75 work-hours × $85 per hour = Up to $6,375 Up to $11,760 Up to $18,135 Up to $36,542,025

    According to the manufacturer, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all known costs in our cost estimate.

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2016-9189; Product Identifier 2016-NM-114-AD. (a) Comments Due Date

    We must receive comments by October 29, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes, certificated in any category, without a Boeing Sky Interior (BSI).

    (d) Subject

    Air Transport Association (ATA) of America Code 25, Equipment/furnishings.

    (e) Unsafe Condition

    This AD was prompted by reports of passenger service units (PSUs) becoming detached from the supporting airplane structure in several Model 737 series airplanes during survivable accidents. We are issuing this AD to address PSUs and life vest panels detaching from the supporting airplane structure, which could lead to passenger injuries and impede passenger and crew egress during evacuation.

    (f) Compliance

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

    (g) Required Actions

    Within 60 months after the effective date of this AD, do all applicable actions identified as “RC” (required for compliance) in, and in accordance with, the Accomplishment Instructions of Boeing Service Bulletin 737-25-1707, Revision 1, dated May 18, 2018.

    (h) Parts Installation Prohibition

    As of the applicable time specified in paragraph (h)(1) or (h)(2) of this AD, no person may install on any airplane a PSU or life vest panel, unless the lanyard assembly has been updated as required by paragraph (g) of this AD.

    (1) For airplanes that have PSUs or life vest panels without the updated lanyard assemblies installed: After modification of the airplane as required by this AD.

    (2) For airplanes that have PSUs or life vest panels with the updated lanyard assemblies installed: As of the effective date of this AD.

    (i) Alternative Methods of Compliance (AMOCs)

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

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

    (3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (4) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (i)(4)(i) and (i)(4)(ii) of this AD apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

    (ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

    (j) Related Information

    (1) For more information about this AD, contact Scott Craig, Aerospace Engineer, Cabin Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3566; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on August 29, 2018. Jeffrey E. Duven, Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-19838 Filed 9-13-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0790; Product Identifier 2018-NM-078-AD] RIN 2120-AA64 Airworthiness Directives; Bombardier, Inc., Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede Airworthiness Directive (AD) 2010-14-05, which applies to certain Bombardier, Inc., Model CL-600-1A11 (600), CL-600-2A12 (601), and CL-600-2B16 (601-3A, 601-3R, and 604 Variants) airplanes. AD 2010-14-05 requires inspection for the part numbers of the system and brake accumulators, and repetitive replacement of affected accumulators. Since we issued AD 2010-14-05, we have determined that new or more restrictive airworthiness limitations, as well as additional actions, are necessary to address the unsafe condition. In addition to the requirements of AD 2010-14-05, this proposed AD would require relocating the accumulators and revising the maintenance or inspection program to incorporate new or more restrictive airworthiness limitations. This proposed AD would also add optional terminating action for certain airplanes. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by October 29, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1-866-538-1247 or direct-dial telephone 1-514-855-2999; fax 514-855-7401; email [email protected]; internet http://www.bombardier.com. You may view this referenced service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0790; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Neil Doh, Aerospace Engineer, Aviation Safety Section AIR-7B1, Boston ACO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; telephone 781-238-7757.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0790; Product Identifier 2018-NM-078-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

    Discussion

    We issued AD 2010-14-05, Amendment 39-16350 (75 FR 37994, July 1, 2010) (“AD 2010-14-05”), for certain Bombardier Model CL-600-1A11 (600), CL-600-2A12 (601), CL-600-2B16 (601-3A, 601-3R, and 604 Variants (including CL-605 Marketing Variant)) airplanes. AD 2010-14-05 requires an inspection to determine the part numbers of the system accumulators numbers 1, 2, and 3 and brake accumulators numbers 2 and 3, and repetitive replacement of the accumulator. AD 2010-14-05 resulted from reports of the on-ground failure of the hydraulic accumulator screw cap or end cap, resulting in loss of the associated hydraulic system and high-energy impact damage to adjacent systems and structure. We issued AD 2010-14-05 to address failure of one of the brake accumulator screw caps/end caps, resulting in impact damage causing loss of both hydraulic systems No. 2 and No. 3, with consequent loss of both braking and nose wheel steering and the potential for a runway excursion.

    Actions Since AD 2010-14-05 Was Issued

    Since we issued AD 2010-14-05, we have determined that new or more restrictive airworthiness limitations and additional actions are necessary to address the unsafe condition.

    Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2009-39R1, issued October 13, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model CL-600-1A11 (600), CL-600-2A12 (601), and CL-600-2B16 (601-3A, 601-3R, and 604 Variants) airplanes. The MCAI states:

    Seven cases of on-ground hydraulic accumulator screw cap or end cap failure have been experienced on CL-600-2B19 (CRJ) aircraft, resulting in loss of the associated hydraulic system and high-energy impact damage to adjacent systems and structure. The lowest number of flight cycles accumulated at the time of failure, to date, has been 6991 flight cycles.

    Although there have been no failures to date on any CL-600-1A11, CL-600-2A12 or CL-600-2B16 aircraft, the same accumulators as those installed on the CL-600-2B19, Part Numbers (P/N) 08-60163-002 and 08-60164-002 are installed on some of the aircraft listed in the Applicability section of this directive.

    Notes:

    1. Earlier accumulators, P/Ns 2770571-102, 2770571-103, 2770571-104 and 2770571-105, were installed in production on the following aircraft: CL-600-1A11 [all Serial Numbers (S/Ns)], CL-600-2A12 (all S/Ns) and CL-600-2B16 (S/Ns 5001 through 5194 and 5301 through 5524 only). These accumulators do not require inspection or replacement. However, if any of the accumulators with the above P/Ns have been replaced in-service by P/Ns 08-60163-002 and 08-60164-002, these latter accumulators require replacement.

    2. Prior to issuance of [Canadian] AD CF-2009-39, the only accumulators ever installed in production on CL-600-2B16 aircraft, S/Ns 5525 through 5665 and 5701 through 5908, are P/Ns 08-60163-002 and 08-60164-002; these accumulators require replacement.

    3. After issuance of [Canadian] AD CF-2009-39 [which corresponded to FAA AD 2010-14-05, Amendment 39-16350 (75 FR 37994, July 1, 2010)], accumulators with P/Ns specified in Note 2, above, began to feature various S/N suffixes. Only accumulators with S/N suffix “TNAE” do not require replacement, but they are subject to other mandatory actions detailed in this AD.

    4. Stainless steel accumulators P/Ns 601R75139-3 (11094-4) and 601R75139-1 (11093-4) were installed in production on CL-600-2B16 aircraft, S/Ns 5909 and subsequent. These accumulators do not require replacement, but they are subjected to other mandatory actions detailed in this AD.

    A detailed analysis of the systems and structure in the potential line of trajectory of a failed screw cap/end cap for each accumulator, P/Ns 08-60163-002 and 08-60164-002, has been conducted. On the Challengers, it has been identified that the worst case scenario would be a failure of system No. 1, 2 or 3 accumulator screw caps/end caps (depending on the model), resulting in a potential uncontrolled fire in a non-designated fire zone.

    The original version of this [Canadian] AD gave instructions to perform identification and records checks, where applicable, and replace accumulators, P/Ns 08-60163-002 and 08-60164-002 within the time compliance specified.

    The unsafe condition is potential impact damage that could cause loss of both hydraulic systems No. 2 and No. 3, and the consequent loss of both braking and nose wheel steering, the potential for a runway excursion, and damage to the airplane. Required actions include relocating certain accumulators. You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0790.

    Related Service Information Under 1 CFR Part 51

    The following Bombardier service information describes procedures for replacing hydraulic system accumulators with new, overhauled, or refurbished accumulators. These documents are distinct since they apply to different airplane models.

    • Service Bulletin 600-742, Revision 4, dated June 11, 2015 • Service Bulletin 601-597, Revision 4, dated June 11, 2015 • Service Bulletin 604-29-008, Revision 4, dated June 11, 2015 • Service Bulletin 605-29-001, Revision 4, dated June 10, 2015

    The following Bombardier service information describes procedures for relocating hydraulic system accumulators. These documents are distinct since they apply to different airplane models in different configurations.

    • Service Bulletin 600-0764, dated October 8, 2015 • Service Bulletin 600-0767, dated August 25, 2016 • Service Bulletin 601-0633, dated October 8, 2015 • Service Bulletin 601-0637, dated August 25, 2016 • Service Bulletin 604-29-013, Revision 2, dated April 18, 2016 • Service Bulletin 605-29-006, Revision 2, dated April 19, 2016

    The following Bombardier Time Limits/Maintenance Checks describe certain systems life limits of the safe life items. These documents are distinct since they apply to different airplane models in different configurations.

    • Bombardier Challenger 600 Time Limits/Maintenance Checks, PSP 605, Revision 39, dated January 8, 2018 • Bombardier Challenger 601 Time Limits/Maintenance Checks, PSP 601-5, Revision 46, dated January 8, 2018 • Bombardier Challenger 601 Time Limits/Maintenance Checks, PSP 601A-5, Revision 42, dated January 8, 2018 • Bombardier Challenger 604 CL-604 Time Limits/Maintenance Checks, Revision 30, dated December 4, 2017 • Bombardier Challenger CL-605 Time Limits/Maintenance Checks, Revision 18, dated December 4, 2017

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

    FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type designs.

    This proposed AD would require revisions to certain operator maintenance documents to include new actions (e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (n)(1) of this proposed AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane.

    Difference Between Proposed AD and MCAI

    Although the MCAI placed no restrictions on special flight permits, this proposed AD would limit ferry flights by requiring an engineering recommendation from Bombardier as well as approval from the Flight Standards District Office. This difference has been coordinated with TCCA.

    Costs of Compliance

    We estimate that this proposed AD affects 130 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs for Required Actions Labor cost Parts cost Cost per product Cost on U.S. operators Retained actions: 20 work-hours × $85 per hour = $,1,700 $7,717 $9,417 $1,224,210. New actions: Up to 170 work-hours × $85 per hour = Up to $14,450 Up to $41,635 Up to $56,085 Up to $7,291,050.

    For the new maintenance/inspection program revision, we have determined that this action takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet, we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours x $85 per work-hour).

    According to the manufacturer, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all known costs in our cost estimate.

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska, and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2010-14-05, Amendment 39-16350 (75 FR 37994, July 1, 2010), and adding the following new AD: Bombardier, Inc.: Docket No. FAA-2018-0790; Product Identifier 2018-NM-078-AD. (a) Comments Due Date

    We must receive comments by October 29, 2018.

    (b) Affected ADs

    This AD replaces AD 2010-14-05, Amendment 39-16350 (75 FR 37994, July 1, 2010) (“AD 2010-14-05”).

    (c) Applicability

    This AD applies to the Bombardier, Inc., airplanes, certificated in any category, identified in paragraphs (c)(1) through (c)(5) of this AD.

    (1) Model CL-600-1A11 (600) airplanes, serial numbers 1004 through 1085 inclusive.

    (2) Model CL-600-2A12 (601) airplanes, serial numbers 3001 through 3066 inclusive.

    (3) Model CL-600-2B16 airplanes (601-3A Variant), serial numbers 5001 through 5134 inclusive.

    (4) Model CL-600-2B16 airplanes (601-3R Variant), serial numbers 5135 through 5194 inclusive.

    (5) Model CL-600-2B16 airplanes (604 Variant), serial numbers 5301 through 5665 inclusive and 5701 and subsequent.

    Note 1 to paragraph (c) of this AD:

    Certain Model CL-600-2B16 (604 Variant) airplanes might be referred to by the marketing designation CL-605.

    (d) Subject

    Air Transport Association (ATA) of America Code 29, Hydraulic power.

    (e) Reason

    This AD was prompted by reports of on-ground hydraulic accumulator screw cap or end cap failure that resulted in the loss of the associated hydraulic system and high-energy impact damage to adjacent systems and structure. We are issuing this AD to address failure of one of the brake accumulator screw caps/end caps, which could result in impact damage causing loss of both hydraulic systems No. 2 and No. 3, and the consequent loss of both braking and nose wheel steering, the potential for a runway excursion, and damage to the airplane.

    (f) Compliance

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

    (g) Retained Part Number Inspection and Accumulator Replacement, With Revised Formatting, Service Information, and Affected Part Numbers

    This paragraph restates the requirements of paragraph (g) of AD 2010-14-05, with revised formatting, service information, and affected part numbers. Do the following actions as applicable.

    (1) Within 50 flight hours after August 5, 2010 (the effective date of AD 2010-14-05), inspect to determine the part numbers of the system accumulators numbers 1, 2, and 3, and brake accumulators numbers 2 and 3 that are installed on the airplane. A review of airplane maintenance records is acceptable in lieu of this inspection if the part number of each accumulator can be conclusively determined from that review. If all of the installed accumulators have part number (P/N) 2770571-102, 2770571-103, 2770571-104, 2770571-105, 601R75139-3 (11094-4), or 601R75139-1 (11093-4), no further action is required by paragraph (g) of this AD.

    (2) Except as provided in paragraph (g)(1) of this AD: At the applicable time in paragraph (g)(2)(i), (g)(2)(ii), or (g)(2)(iii) of this AD, replace the accumulator with a new, overhauled, or refurbished accumulator with the same part number, in accordance with the Accomplishment Instructions of the applicable service bulletin listed in figure 1 to paragraphs (g)(2) and (g)(3) of this AD.

    (i) For each accumulator having P/Ns 08-60163-002 (601R75138-1), and 08-60164-002 (601R75138-3), as applicable, that has accumulated more than 3,650 total flight cycles as of August 5, 2010 (the effective date of AD 2010-14-05): Replace the accumulator within 100 flight cycles after August 5, 2010.

    (ii) For each accumulator having P/N 08-60163-002 (601R75138-1), and 08-60164-002 (601R75138-3), as applicable, that has accumulated 3,650 total flight cycles or fewer as of August 5, 2010: Replace the accumulator before the accumulation of 3,750 total flight cycles on the accumulator.

    (iii) For each accumulator having P/N 08-60163-002 (601R75138-1), and 08-60164-002 (601R75138-3), as applicable, for which it is not possible to determine the number of flight cycles accumulated: Replace the accumulator within 100 flight cycles after August 5, 2010.

    EP14SE18.000

    (3) Thereafter, before the accumulation of 3,750 total flight cycles on any accumulator having P/Ns 08-60163-002 (601R75138-1), and 08-60164-002 (601R75138-3), as applicable, replace the accumulator with a new, overhauled, or refurbished accumulator having the same part number, in accordance with the Accomplishment Instructions of the applicable service bulletin listed in figure 1 to paragraphs (g)(2) and (g)(3) of this AD.

    (h) New Provision of This AD: Terminating Action for Certain Accumulators

    For each accumulator with one of the following part number and serial number (S/N) suffixes, the repetitive replacement specified in paragraphs (g)(2) and (g)(3) of this AD is not required.

    (1) P/N 08-60163-002 with S/N suffix TNAE (2) P/N 08-601-002 with S/N suffix TNAE (3) P/N 601R75139-3 (11094-4) (4) P/N 601R75139-1 (11093-4) (i) New Requirement of This AD: Relocation of Accumulators

    Within 60 months or 2,400 flight cycles, whichever occurs first after the effective date of this AD, relocate the hydraulic system accumulators as specified in paragraphs (i)(1) through (i)(4) of this AD, as applicable. Relocation of the hydraulic system accumulators as required by this paragraph does not terminate any repetitive replacement required by paragraph (g)(2) or (g)(3) of this AD.

    (1) For Model CL-600-1A11 (600) airplanes, S/Ns 1004 through 1085 inclusive: Relocate accumulators as specified in paragraphs (i)(1)(i) and (i)(1)(ii) of this AD.

    (i) Relocate hydraulic system Nos. 1 and 2 accumulators, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 601-0764, dated October 8, 2015.

    (ii) Relocate hydraulic system No. 3 accumulator, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 600-0767, dated August 25, 2016.

    (2) For Model CL-600-2A12 (601) airplanes, S/Ns 3001 through 3066 inclusive, and Model CL-600-2B16 (601-3A and 601-3R Variants) airplanes, S/Ns 5001 through 5194 inclusive: Relocate accumulators as specified in paragraphs (i)(2)(i) and (i)(2)(ii) of this AD.

    (i) Relocate hydraulic system Nos. 1 and 2 accumulators, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 601-0633, dated October 8, 2015.

    (ii) Relocate hydraulic system No. 3 accumulator, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 601-0637, dated August 25, 2016.

    (3) For Model CL-600-2B16 (604 Variant) airplanes, S/Ns 5301 through 5665 inclusive: Relocate hydraulic system No. 3 accumulator, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 604-29-013, Revision 2, dated April 18, 2016.

    (4) For Model CL-600-2B16 (605) airplanes, S/Ns 5701 and subsequent (i.e., Model CL-600-2B16 (604 Variant), referred to by the marketing designation CL-605): Relocate hydraulic system No. 3 accumulator, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 605-29-006, Revision 2, dated April 19, 2016.

    (j) New Requirement of This AD: Revision of Maintenance/Inspection Program

    Within 50 flight hours after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the tasks specified in figure 2 to paragraph (j) of this AD.

    EP14SE18.001 (k) No Alternative Actions or Intervals

    After the maintenance or inspection program has been revised as required by paragraph (j) of this AD, no alternative actions (e.g., inspections) or intervals may be used unless the actions or intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (n)(1) of this AD.

    (l) Credit for Previous Actions

    (1) Replacement of an accumulator with a new accumulator having the same part number is also acceptable for compliance with the requirements of paragraphs (g)(2) and (g)(3) of this AD, if done before August 5, 2010 (the effective date of AD 2010-14-05), in accordance with the applicable service bulletin listed in figure 3 to paragraph (l)(1) of this AD. This service information is not incorporated by reference in this AD.

    EP14SE18.002

    (2) Replacement of an accumulator with a new accumulator having the same part number is also acceptable for compliance with the requirements of paragraphs (g)(2) and (g)(3) of this AD, if done before the effective date of this AD in accordance with the applicable service bulletin listed in figure 4 to paragraph (l)(2) of this AD. This service information is not incorporated by reference in this AD.

    EP14SE18.003

    (3) This paragraph provides credit for actions required by paragraph (i)(3) of this AD, if those actions were performed before the effective date of this AD, in accordance with Bombardier Service Bulletin 604-29-013, dated April 30, 2015; or Bombardier Service Bulletin 604-29-013, Revision 1, dated October 19, 2015. This service information is not incorporated by reference in this AD.

    (4) This paragraph provides credit for actions required by paragraph (i)(4) of this AD, if those actions were performed before the effective date of this AD, in accordance with Bombardier Service Bulletin 605-29-006, dated April 30, 2015; or Bombardier Service Bulletin 605-29-006, Revision 1, dated October 19, 2015. This service information is not incorporated by reference in this AD.

    (m) Special Flight Permit

    Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the airplane can be modified, provided the following conditions are met:

    (1) An engineering recommendation must be obtained via the Bombardier process Service Request for Product Support Action (SRPSA) at [email protected]

    (2) Approval of the special flight permit must be obtained from the Flight Standards District Office.

    (n) Other FAA AD Provisions

    (1) Alternative Methods of Compliance (AMOCs): The Manager, New York ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO Branch.

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

    (ii) AMOC 15-76R1 and AMOC 15-53, approved previously for AD 2010-14-05, are approved as AMOCs for the corresponding provisions of paragraph (g)(2) of this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, New York ACO Branch, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier's TCCA Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.

    (o) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF-2009-39R1, dated October 13, 2017, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0790.

    (2) For more information about this AD, contact Neil Doh, Aerospace Engineer, Aviation Safety Section AIR-7B1, Boston ACO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; telephone 781-238-7757.

    (3) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1-866-538-1247 or direct-dial telephone 1-514-855-2999; fax 514-855-7401; email [email protected]; internet http://www.bombardier.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on August 24, 2018. James Cashdollar, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-19759 Filed 9-13-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0791; Product Identifier 2018-NM-043-AD] RIN 2120-AA64 Airworthiness Directives; Airbus SAS Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Airbus SAS Model A350-941 airplanes. This proposed AD was prompted by a determination that certain holes for the vertical tail plane (VTP) tension bolts connection are not properly protected against corrosion. This proposed AD would require modifying the VTP tension bolts connection by adding sealant and protective treatment to the head of the connection, at the barrel nut cavities, and in the surrounding area. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by November 13, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For the incorporation by reference (IBR) material described in the “Related IBR material under 1 CFR part 51” section in SUPPLEMENTARY INFORMATION, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 89990 1000; email [email protected]; internet www.easa.europa.eu. You may find this IBR material on the EASA website at https://ad.easa.europa.eu. You may view this IBR material at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available in the AD docket on the internet at http://www.regulations.gov.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0791; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Kathleen Arrigotti, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3218.

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0791; Product Identifier 2018-NM-043-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM based on those comments.

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

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0045, dated February 15, 2018; corrected February 22, 2018 (“EASA AD 2018-0045”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A350-941 airplanes. The MCAI states:

    It was identified that the section 19 holes for the Vertical Tail Plane (VTP) tension bolts connection are not properly protected against corrosion.

    This condition, if not corrected, could reduce the structural integrity of the VTP [and could ultimately lead to reduced controllability of the airplane].

    To address this unsafe condition, Airbus developed production mod 108307 and mod 110696 to improve protection against corrosion, and issued the SB [Service Bulletin A350-55-P002] to provide in-service modification instructions.

    For the reasons described above, this [EASA] AD requires a modification by adding sealant and protective treatment to the head of the section 19 VTP tension bolts connection, at the barrel nut cavities and in the surrounding area.

    This [EASA] AD was corrected to clarify the text of the “Modification”.

    Related IBR Material Under 1 CFR Part 51

    EASA AD 2018-0045, dated February 15, 2018; corrected February 22, 2018, describes procedures for modifying the VTP tension bolts connection by adding sealant and protective treatment to the head of the connection, at the barrel nut cavities, and in the surrounding area. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section and it is publicly available through the EASA website.

    FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

    Explanation of Required Compliance Information

    In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. As a result, EASA AD 2018-0045 will be incorporated by reference in the FAA final rule. This proposed AD would, therefore, require compliance with the provisions specified in EASA AD 2018-0045, except for any differences identified as exceptions in the regulatory text of this proposed AD. Service information referenced in EASA AD 2018-0045 that is required for compliance with EASA AD 2018-0045 will be available at http://www.regulations.gov under Docket No. FAA-2018-0791 after the FAA final rule is published.

    Explanation of “RC” (Required for Compliance)

    EASA AD 2018-0045 might refer to service information that contains procedures or tests that are identified as RC. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an alternative method of compliance (AMOC), provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition.

    Explanation of Change to Applicability

    We have revised the applicability of this AD to identify model designations as published in the most recent type certificate data sheet for the affected model.

    Costs of Compliance

    We estimate that this proposed AD affects 6 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs for Required Actions Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • 50 work-hours × $85 per hour = $4,250 $9,200 $13,450 $80,700

    According to the manufacturer, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Airbus SAS: Docket No. FAA-2018-0791; Product Identifier 2018-NM-043-AD. (a) Comments Due Date

    We must receive comments by November 13, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Airbus SAS Model A350-941 airplanes, certificated in any category, as identified in the European Aviation Safety Agency (EASA) Airworthiness Directive 2018-0045, dated February 15, 2018; corrected February 22, 2018 (“EASA AD 2018-0045”).

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage; 55, Stabilizers.

    (e) Reason

    This AD was prompted by a determination that the section 19 holes for the vertical tail plane (VTP) tension bolts connection are not properly protected against corrosion. We are issuing this AD to address corrosion of the VTP tension bolts connection, which could reduce the structural integrity of the VTP, and could ultimately lead to reduced controllability of the airplane.

    (f) Compliance

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

    (g) Requirements

    Except as specified by paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, EASA AD 2018-0045.

    (h) Exceptions to EASA AD 2018-0045

    (1) For purposes of determining compliance with the requirements of this AD, where EASA AD 2018-0045 refers to its effective date, this AD requires using the effective date of this AD.

    (2) The “Remarks” section of EASA AD 2018-0045 does not apply.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (j)(2) of this AD. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain instructions from a manufacturer, the instructions must be accomplished using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Airbus SAS's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (3) Required for Compliance (RC): Any RC procedures and tests identified in the service information referenced in EASA AD 2018-0045 must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.

    (j) Related Information

    (1) For information about EASA AD 2018-0045, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 89990 6017; email [email protected]; Internet www.easa.europa.eu. You may find this EASA AD on the EASA website at https://ad.easa.europa.eu. You may view this EASA AD at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. EASA AD 2018-0045 may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0791.

    (2) For more information about this AD, contact Kathleen Arrigotti, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3218.

    Issued in Des Moines, Washington, on August 16, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-19767 Filed 9-13-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0839; Product Identifier 2017-NE-31-AD] RIN 2120-AA64 Airworthiness Directives; Zodiac Seats France, Cabin Attendant Seats AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all Zodiac Seats France 536-Series Cabin Attendant Seats. This proposed AD was prompted by potential risk of premature corrosion on the seat structure and clamps. This proposed AD would require inspection and modification of all Zodiac Seats France 536-Series Cabin Attendant Seats. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by October 29, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Zodiac Service Europe, 61, rue Pierre Curie, 78 373 Plaisir, France; phone: +33 (0)1 61 34 19 58; email: [email protected]; website: https://www.zodiacaerospace.com/en/zodiac-aerospace-services/contacts.You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7759.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0839; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the mandatory continuing airworthiness information (MCAI), the regulatory evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800-647-5527) is listed above. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Dorie Resnik, Aerospace Engineer, Boston ACO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7693; fax: 781-238-7199; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2017-0839; Product Identifier 2017-NE-31-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2016-0167, dated August 17, 2016 (referred to after this as “the MCAI”), to address the unsafe condition on these products. The MCAI states:

    Cases of corrosion and cracks were found on Zodiac Seats France CAS 536 rear cabin attendant seats installed on some ATR 42 and ATR 72 aeroplanes. The detected damage was located on the lower parts of the attendant seat, at the level of the seat-to-floor interface. This condition, if not detected and corrected, could lead to failure of the seat occupied by the cabin attendant, possibly resulting in injury to the seat occupant. To address this potential unsafe condition, Zodiac Seats France issued Service Bulletin (SB) No. 536-25-002 to provide inspection instructions.

    For the reason described above, this [EASA] AD requires repetitive inspections of the affected attendant seats, and, depending on findings, accomplishment of the temporary corrective action(s). This [EASA] AD is considered as interim action and further [EASA] AD action may follow. Zodiac Seats France is developing a solution preventing this kind of damage.

    You may obtain further information by examining the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0839.

    Related Service Information Under 1 CFR Part 51

    We reviewed Zodiac Seats France Service Bulletin (SB) No. 536-25-002, Revision 3, dated September 30, 2016. The SB describes procedures for inspection, repair, or replacement of the seat structure and clamps known to be installed on the main structure. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

    This product has been approved by EASA, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all the relevant information provided by EASA and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

    Proposed AD Requirements

    This proposed AD would require inspection and modification of all Zodiac Seats France 536-Series Cabin Attendant Seats.

    Costs of Compliance

    We estimate that this proposed AD affects 55 seat structures installed on, but not limited to, ATR 42 and ATR 72 airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    Estimated costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Seat inspection, visual (on-wing) 0.2 work-hours × $85 per hour = $17 $0 $17 $935 Seat inspection, (shop visit) 0.5 work-hours × $85 per hour = $42.50 0 42.50 2,337.50 Part replacement/repair 2.0 work-hours × $85 per hour = $170 2,000 2,170 119,350

    According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Zodiac Seats France (formerly SICMA Aero Seat): Docket No. FAA-2017-0839; Product Identifier 2017-NE-31-AD. (a) Comments Due Date

    We must receive comments by October 29, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all Zodiac Seats France, 536-Series Cabin Attendant Seats, part number (P/N) 53600, all dash numbers, all serial numbers. These appliances are installed on, but not limited to, Avions de transport regional (ATR) 42 and ATR 72 airplanes of U.S. registry.

    (d) Subject

    Joint Aircraft System Component (JASC) Code 2500, Cabin Equipment/Furnishings.

    (e) Unsafe Condition

    This AD was prompted by corrosion found on the seat structure or on clamps of the Zodiac Seats France 536-Series Cabin Attendant Seats. We are issuing this AD to prevent failure of these seats. The unsafe condition, if not addressed, could result in failure of the seat occupied by the cabin attendant, and possible injury to the seat occupant.

    (f) Compliance

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

    (g) Required Actions

    (1) Within 14 months after the first installation of the seat on an aircraft, or within three months after the effective date of this AD, whichever occurs later, remove the seat from the aircraft and perform a detailed visual inspection in accordance with the Accomplishment Instructions, Paragraph 2.B., of Zodiac Seats France Service Bulletin (SB) No. 536-25-002, Revision 3, dated September 30, 2016. If the date of the first installation of a seat on an airplane is unknown, use the date of manufacture of the seat (which can be found on the ID placard of the seat) to determine when the inspection must be accomplished.

    (2) Within three months after the inspection required by paragraph (g)(1) of this AD, and, thereafter, at intervals not to exceed three months, perform a detailed visual inspection in accordance with the Accomplishment Instructions, Paragraphs 2.A. and 2.B., of Zodiac Seats France SB No. 536-25-002, Revision 3, dated September 30, 2016.

    (3) If corrosion or other damage is found, before further flight or before reinstallation of the seat on an aircraft, as applicable, repair the seat in accordance with the Accomplishment Instructions, Paragraphs 2.B. and 2.C., of Zodiac Seats France SB No. 536-25-002, Revision 3, dated September 30, 2016.

    (4) Temporarily stowing and securing a damaged attendant seat in a retracted position to prevent occupancy, in accordance with the provisions and limitations applicable Master Minimum Equipment List item, is an acceptable alternative method to defer compliance with the requirements of paragraph (g)(3) of this AD.

    (h) Installation Prohibition

    After the effective date of this AD, do not install an affected Zodiac Seats France 536-Series Cabin Attendant Seat on any aircraft, unless having accumulated more than 14 months since first installation on any aircraft, provided that before installation, it has passed an inspection in accordance with the Accomplishment Instructions, Paragraph 2.B., of Zodiac Seats France SB No. 536-25-002, Revision 3, dated September 30, 2016.

    (i) Credit for Previous Actions

    You may take credit for actions required by paragraph (g) of this AD if you performed these actions before the effective date of this AD using Zodiac Seats France SB No. 536-25-002, Revision 2, dated August 29, 2016.

    (j) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Boston ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO Branch, send it to the attention of the person identified in paragraph (k)(1) of this AD.

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

    (k) Related Information

    (1) For more information about this AD, contact Dorie Resnik, Aerospace Engineer, Boston ACO Branch, FAA, 1200 District Avenue, Burlington, MA, 01803; phone: 781-238-7693; fax: 781-238-7199; email: [email protected]

    (2) Refer to European Aviation Safety Agency AD 2016-0167, dated August 17, 2016, for more information. You may examine the EASA AD in the AD docket on the internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2017-0839.

    (3) For service information identified in this AD, contact Zodiac Service Europe, 61, rue Pierre Curie, 78 373 Plaisir, France; phone: +33 (0)1 61 34 19 58; email: [email protected]; website: https://www.zodiacaerospace.com/en/zodiac-aerospace-services/contacts. You may view this referenced service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA, 01803. For information on the availability of this material at the FAA, call 781-238-7759.

    Issued in Burlington, Massachusetts, on September 5, 2018. Robert J. Ganley, Manager, Engine and Propeller Standards Branch, Aircraft Certification Service.
    [FR Doc. 2018-19797 Filed 9-13-18; 8:45 am] BILLING CODE 4910-13-P
    NATIONAL LABOR RELATIONS BOARD 29 CFR Chapter I RIN 3142-AA13 The Standard for Determining Joint-Employer Status AGENCY:

    National Labor Relations Board.

    ACTION:

    Notice of proposed rulemaking; request for comments.

    SUMMARY:

    In order to more effectively enforce the National Labor Relations Act (the Act or the NLRA) and to further the purposes of the Act, the National Labor Relations Board (the Board) proposes a regulation establishing the standard for determining whether two employers, as defined in Section 2(2) of the Act, are a joint employer of a group of employees under the NLRA. The Board believes that this rulemaking will foster predictability and consistency regarding determinations of joint-employer status in a variety of business relationships, thereby promoting labor-management stability, one of the principal purposes of the Act. Under the proposed regulation, an employer may be considered a joint employer of a separate employer's employees only if the two employers share or codetermine the employees' essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. More specifically, to be deemed a joint employer under the proposed regulation, an employer must possess and actually exercise substantial direct and immediate control over the essential terms and conditions of employment of another employer's employees in a manner that is not limited and routine.

    DATES:

    Comments regarding this proposed rule must be received by the Board on or before November 13, 2018. Comments replying to comments submitted during the initial comment period must be received by the Board on or before November 20, 2018. Reply comments should be limited to replying to comments previously filed by other parties. No late comments will be accepted.

    ADDRESSES:

    Internet—Federal eRulemaking Portal. Electronic comments may be submitted through http://www.regulations.gov.

    Delivery—Comments should be sent by mail or hand delivery to: Roxanne Rothschild, Associate Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001. Because of security precautions, the Board continues to experience delays in U.S. mail delivery. You should take this into consideration when preparing to meet the deadline for submitting comments. The Board encourages electronic filing. It is not necessary to send comments if they have been filed electronically with regulations.gov. If you send comments, the Board recommends that you confirm receipt of your delivered comments by contacting (202) 273-2917 (this is not a toll-free number). Individuals with hearing impairments may call 1-866-315-6572 (TTY/TDD).

    Only comments submitted through http://www.regulations.gov, hand delivered, or mailed will be accepted; ex parte communications received by the Board will be made part of the rulemaking record and will be treated as comments only insofar as appropriate. Comments will be available for public inspection at http://www.regulations.gov and during normal business hours (8:30 a.m. to 5 p.m. EST) at the above address.

    The Board will post, as soon as practicable, all comments received on http://www.regulations.gov without making any changes to the comments, including any personal information provided. The website http://www.regulations.gov is the Federal eRulemaking portal, and all comments posted there are available and accessible to the public. The Board requests that comments include full citations or internet links to any authority relied upon. The Board cautions commenters not to include personal information such as Social Security numbers, personal addresses, telephone numbers, and email addresses in their comments, as such submitted information will become viewable by the public via the http://www.regulations.gov website. It is the commenter's responsibility to safeguard his or her information. Comments submitted through http://www.regulations.gov will not include the commenter's email address unless the commenter chooses to include that information as part of his or her comment.

    FOR FURTHER INFORMATION CONTACT:

    Roxanne Rothschild, Associate Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001, (202) 273-2917 (this is not a toll-free number), 1-866-315-6572 (TTY/TDD).

    SUPPLEMENTARY INFORMATION:

    Whether one business is the joint employer of another business's employees is one of the most important issues in labor law today. There are myriad relationships between employers and their business partners, and the degree to which particular business relationships impact employees' essential terms and conditions of employment varies widely.

    A determination by the Board regarding whether two separate businesses constitute a “joint employer” as to a group of employees has significant consequences for the businesses, unions, and employees alike. When the Board finds a joint-employer relationship, it may compel the joint employer to bargain in good faith with a Board-certified or voluntarily recognized bargaining representative of the jointly-employed workers. Additionally, each joint employer may be found jointly and severally liable for unfair labor practices committed by the other. And a finding of joint-employer status may determine whether picketing directed at a particular business is primary and lawful, or secondary and unlawful.

    The last three years have seen much volatility in the Board's law governing joint-employer relationships. As detailed below, in August 2015, a divided Board overruled longstanding precedent and substantially relaxed the evidentiary requirements for finding a joint-employer relationship. Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015) (Browning-Ferris), petition for review docketed Browning-Ferris Indus. of Cal. v. NLRB, No. 16-1028 (D.C. Cir. filed Jan. 20, 2016). Then, in December 2017, a different Board majority restored the prior, more stringent standard. In February 2018, the Board vacated its December 2017 decision, effectively changing the law back again to the relaxed standard of Browning-Ferris. A petition for review challenging Browning-Ferris's adoption of the relaxed standard as beyond the Board's statutory authority is currently pending in the United States Court of Appeals for the District of Columbia Circuit. In light of the continuing uncertainty in the labor-management community created by these adjudicatory variations in defining the appropriate joint-employer standard under the Act, and for the reasons explained below, the Board proposes to address the issue through the rulemaking procedure.

    I. Background

    Under Section 2(2) of the Act, “the term `employer' includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act [45 U.S.C. 151 et seq.], as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.” Under Section 2(3) of the Act, “the term `employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter [of the Act] explicitly states otherwise . . . .”

    Section 7 of the Act grants employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7],” and Section 8(a)(5) of the Act makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees . . . .” (emphasis added).

    The Act does not contain the term “joint employer,” much less define it, but the Board and reviewing courts have over the years addressed situations where the working conditions of a group of employees are affected by two separate companies engaged in a business relationship. Boire v. Greyhound Corp., 376 U.S. 473 (1964) (holding that Board's determination that bus company possessed “sufficient control over the work” of its cleaning contractor's employees to be considered a joint employer was not reviewable in federal district court); Indianapolis Newspapers, Inc., 83 NLRB 407, 408-409 (1949) (finding that two newspaper businesses, Star and INI, were not joint employers, despite their integration, because “there [wa]s no indication that Star, by virtue of such integration, t[ook] an active part in the formulation or application of the labor policy, or exercise[d] any immediate control over the operation, of INI”).

    When distinguishing between an “employee” under Section 2(3) of the Act and an “independent contractor” excluded from the Act's protection, the Supreme Court has explained that the Board is bound by common-law principles, focusing on the control exercised by one employer over a person performing work for it. NLRB v. United Insurance Co. of America, 390 U.S. 254, 256 (1968); see also Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 322-323 (1992) (“[W]hen Congress has used the term `employee' without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common law agency doctrine.”) (citations omitted). Similarly, it is clear that the Board's joint-employer standard, which necessarily implicates the same focus on employer control, must be consistent with the common law agency doctrine.

    The Development of the Joint-Employment Doctrine Under the NLRA

    Under the Act, there has been a longstanding consensus regarding the general formulation of the Board's joint-employer standard: Two employers are a joint employer if they share or codetermine those matters governing the employees' essential terms and conditions of employment. See CNN America, Inc., 361 NLRB 439, 441, 469 (2014), enf. denied in part 865 F.3d 740 (D.C. Cir. 2017); Southern California Gas Co., 302 NLRB 456, 461 (1991). The general formulation derives from language in Greyhound Corp., 153 NLRB 1488, 1495 (1965), enfd. 368 F.2d 778 (1966), and was endorsed in NLRB v. Browning-Ferris Industries, 691 F.2d 1117, 1122-1123 (3d Cir. 1982), where the United States Court of Appeals for the Third Circuit carefully explained the differences between the Board's joint-employer and single-employer doctrines, which had sometimes been confused.1

    1 As the Third Circuit explained, a “single employer” relationship exists where two nominally separate employers are actually part of a single integrated enterprise so that, for all purposes, there is in fact only a “single employer.” The question in the “single employer” situation, then, is whether two nominally independent enterprises constitute, in reality, only one integrated enterprise. In answering that question, the Board examines four factors: (1) Functional integration of the operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership. In contrast, the “joint employer” concept assumes that the two companies are indeed independent employers, and the four-factor standard is inapposite. Rather, as stated above, the Board has analyzed whether the two separate employers share or codetermine essential terms and conditions of employment.

    At certain points in its history, the Board has discussed the relevance of an employer's direct control over the essential employment conditions of another company's employees, as compared with its indirect control or influence, in determining whether joint-employer status has been established. For example, in Floyd Epperson, 202 NLRB 23, 23 (1973), enfd. 491 F.2d 1390 (6th Cir. 1974), the Board found that a dairy company (United) was the joint employer of truck drivers supplied to it by an independent trucking firm (Floyd Epperson) based on evidence of both United's direct control and indirect control over the working conditions of Epperson's drivers. The Board relied on “all the circumstances” of the case, including the fact that United dictated the specific routes that Epperson's drivers were required to take when transporting its goods, “generally supervise[d]” Epperson's drivers, and had authority to modify their work schedules. Id. at 23. The Board also relied in part on United's “indirect control” over the drivers' wages and discipline.2 Id. Importantly, in Floyd Epperson and like cases, the Board was not called upon to decide, and did not assert, that a business's indirect influence over another company's workers' essential working conditions, standing alone, could establish a joint-employer relationship.3

    2 In Floyd Epperson, the Board found that United had indirect control over the drivers' wages because wage increases to Epperson's drivers came from raises given by United to Epperson, a sole proprietor. The Board found that United had indirect influence over discipline because Epperson replaced a certain driver on a route after United complained that the driver had been constantly late. 202 NLRB at 23.

    3 See also Sun-Maid Growers of California, 239 NLRB 346 (1978) (finding that food-processing company was joint employer of maintenance electricians supplied by a subcontractor where company actually directed electricians by making specific assignments to individual electricians and determined which of those assignments took precedence when all could not be timely completed; the Board also relied on indirect impact on other terms), enfd. 618 F.2d 56 (9th Cir. 1980); Hamburg Industries, Inc., 193 NLRB 67, 67 (1971) (finding remanufacturer of railroad cars was a joint employer of labor force supplied by subcontractor where remanufacturer used subcontractor's supervisors as conduit to convey work instructions while “constantly check[ing] the performance of the workers and the quality of the work” and where remanufacturer also indirectly affected employees' other terms) (emphasis added). The Board's decision in Clayton B. Metcalf, 223 NLRB 642 (1976), appears to be the closest the Board has come to finding a joint-employment relationship in the absence of some exercise of direct and immediate control over essential terms. There, the Board found that a mine operator did not exercise direct supervisory authority over the employees of a subcontractor engaged to remove “overburden” atop coal seams. However, the Board found that the subcontractor's entire operation in removing the overburden, as well as other collateral duties performed by it, depended entirely on the mine operator's site plan, and, “[a]s a result, [the mine operator] exercised considerable control over the manner and means by which [the subcontractor] performed its operations.” Id. at 644 (emphasis added).

    In fact, more recently, the Board, with court approval, has made clear that “the essential element” in a joint-employer analysis “is whether a putative joint employer's control over employment matters is direct and immediate.” Airborne Express, 338 NLRB 597, 597 fn. 1 (2002) (citing TLI, Inc., 271 NLRB 798, 798-799 (1984), enfd. mem. sub nom. General Teamsters Local Union No. 326 v. NLRB, 772 F.2d 894 (3d Cir. 1985)); see also NLRB v. CNN America, Inc., 865 F.3d 740, 748-751 (D.C. Cir. 2017) (finding that Board erred by failing to adhere to the Board's “direct and immediate control” standard); SEIU Local 32BJ v. NLRB, 647 F.3d 435, 442-443 (2d Cir. 2011) (“ `An essential element' of any joint employer determination is `sufficient evidence of immediate control over the employees.' ”) (quoting Clinton's Ditch Co-op Co. v. NLRB, 778 F.2d 132, 138 (2d Cir. 1985)); Summit Express, Inc., 350 NLRB 592, 592 fn. 3 (2007) (finding that the General Counsel failed to prove direct and immediate control and therefore dismissing joint-employer allegation); Laerco Transportation, 269 NLRB 324 (1984) (dismissing joint-employer allegation where user employer's supervision of supplied employees was limited and routine).

    Accordingly, for at least 30 years (from no later than 1984 to 2015), evidence of indirect control was typically insufficient to prove that one company was the joint employer of another business's workers. Even direct and immediate supervision of another's employees was insufficient to establish joint-employer status where such supervision was “limited and routine.” Flagstaff Medical Center, Inc., 357 NLRB 659, 667 (2011); AM Property Holding Corp., 350 NLRB 998, 1001 (2007), enfd. in relevant part sub nom. SEIU, Local 32 BJ v. NLRB, 647 F.3d 435 (2d Cir. 2011); G. Wes Ltd. Co., 309 NLRB 225, 226 (1992). The Board generally found supervision to be limited and routine where a supervisor's instructions consisted mostly of directing another business's employees what work to perform, or where and when to perform the work, but not how to perform it. Flagstaff Medical Center, 357 NLRB at 667.

    The Board's treatment of a company's contractually reserved authority over an independent company's employees also evolved over the years. In the 1960s, the Board found that a contractual reservation of authority, standing alone, could establish a joint-employer relationship even where that reserved authority had never been exercised. For example, in Jewel Tea Co., 162 NLRB 508, 510 (1966), the Board found that a department store (the licensor) was a joint employer of the employees of two independent companies licensed to operate specific departments of its store. The text of the license agreements between the store and the departments provided, inter alia, that “employees shall be subject to the general supervision of the licensor,” that the licensee “shall at all times conform to a uniform store policy with reference to wages, hours and terms, and conditions of employment for all sales and stock personnel,” that the licensor shall approve employees hired by the licensee, and that the licensor “may request discharge and the licensee will immediately comply with such request.” The Board found it “clear beyond doubt” that the license agreements gave the store the “power to control effectively the hire, discharge, wages, hours, terms, and other conditions of employment” of the other two companies' employees. According to the Board, “[t]hat the licensor has not exercised such power is not material, for an operative legal predicate for establishing a joint-employer relationship is a reserved right in the licensor to exercise such control, and we find such right of control adequately established by the facts set out above.” Id.; see also Thriftown, Inc., 161 NLRB 603, 607 (1966) (“Since the power to control is present by virtue of the operating agreement, whether or not exercised, we find it unnecessary to consider the actual practice of the parties regarding these matters as evidenced by the record.”).

    However, even during the same period, not all contractual reservations of authority were found sufficient to establish a joint-employer relationship. For example, in Hy-Chem Constructors, Inc., 169 NLRB 274 (1968), the Board found that a petrochemical manufacturer was not a joint employer of its construction subcontractor's employees even though their cost-plus agreement reserved to the manufacturer a right to approve wage increases and overtime hours and the right to require the subcontractor to remove any employee whom the manufacturer deemed undesirable. The Board found that the first two reservations of authority “are consistent with the [manufacturer's] right to police reimbursable expenses under its cost-plus contract and do not warrant the conclusion that [the manufacturer] has thereby forged an employment relationship, joint or otherwise, with the [subcontractor's] employees.” Id. at 276. Additionally, the Board found the manufacturer's “yet unexercised prerogative to remove an undesirable . . . employee” did not establish a joint-employment relationship. Id.

    Over time, the Board shifted position, without expressly overruling precedent, and held that joint-employer status could not be established by the mere existence of a clause in a business contract reserving to one company authority over its business partner's employees absent evidence that such authority had ever been exercised. For example, in AM Property Holding Corp., the Board found that a “contractual provision giving [a property owner] the right to approve [its cleaning contractor's] hires, standing alone, is insufficient to show the existence of a joint employer relationship.” 350 NLRB at 1000. The Board explained that “[i]n assessing whether a joint employer relationship exists, the Board does not rely merely on the existence of such contractual provisions, but rather looks to the actual practice of the parties.” Id. (citing TLI, 271 NLRB at 798-799). Because the record in AM Property failed to show that the property owner had ever actually participated in the cleaning contractor's hiring decisions, the Board rejected the General Counsel's contention that the two employers constituted a joint employer. See also Flagstaff Medical Center, 357 NLRB at 667 (finding that business contract's reservation of hospital's right to require its subcontractor to “hire, discharge, or discipline” any of the subcontractor's employees did not establish a joint-employer relationship absent evidence that the hospital had ever actually exercised such authority); TLI, 271 NLRB at 798-799 (finding that paper company's actual practice of only limited and routine supervision of leased drivers did not establish a joint-employer relationship despite broad contractual reservation of authority that paper company “will solely and exclusively be responsible for maintaining operational control, direction and supervision” over the leased drivers).

    The law governing joint-employer relationships changed significantly in August 2015. At that time, a divided Board overruled the then-extant precedent described above and substantially relaxed the requirements for proving a joint-employer relationship. Specifically, a Board majority explained that it would no longer require proof that a putative joint employer has exercised any “direct and immediate” control over the essential working conditions of another company's workers. Browning-Ferris, 362 NLRB No. 186, slip op. at 2, 13-16. The majority in Browning-Ferris explained that, under its new standard, a company could be deemed a joint employer even if its “control” over the essential working conditions of another business's employees was indirect, limited and routine, or contractually reserved but never exercised. Id., slip op. at 15-16.

    The Browning-Ferris majority agreed with the core of the Board's long-recognized joint-employer standard: whether two separate employers “share” or “codetermine” those matters governing the essential terms and conditions of employment. Elaborating on the core “share” or “codetermine” standard, the Browning-Ferris majority noted that, in some cases, two companies may engage in genuinely shared decision-making by conferring or collaborating directly to set an essential term or condition of employment. Alternatively, each of the two companies “may exercise comprehensive authority over different terms and conditions of employment.” Id., slip op. at 15 fn. 80.

    While agreeing with the core standard, the Browning-Ferris majority believed that the Board's joint-employer precedents had become “increasingly out of step with changing economic circumstances, particularly the recent dramatic growth in contingent employment relationships.” Id., slip op. at 1. The Browning-Ferris majority's expressed aim was “to put the Board's joint-employer standard on a clearer and stronger analytical foundation, and, within the limits set out by the Act, to best serve the Federal policy of `encouraging the practice and procedure of collective-bargaining.' ” Id., slip op. at 2 (quoting 29 U.S.C. 151).

    According to the Browning-Ferris majority, during the period before Laerco and TLI were decided in 1984, the Board had “typically treated the right to control the work of employees and their terms of employment as probative of joint-employer status.” Id., slip op. at 9 (emphasis in original). Also during that time, “the Board gave weight to a putative joint employer's `indirect' exercise of control over workers' terms and conditions of employment.” Id. (citing Floyd Epperson, 202 NLRB at 23).

    The Browning-Ferris majority viewed Board precedent, starting with Laerco and TLI, that expressly required proof of some exercise of direct and immediate control as having unjustifiably and without explanation departed from the Board's pre-1984 precedent. Specifically, the Browning-Ferris majority asserted that, in cases such as Laerco, TLI, AM Property, and Airborne Express, the Board had “implicitly repudiated its earlier reliance on reserved control and indirect control as indicia of joint-employer status.” Id., slip op. at 10. Further, the Browning-Ferris majority viewed those decisions as “refus[ing] to assign any significance to contractual language expressly giving a putative employer the power to dictate workers' terms and conditions of employment.” Id. (emphasis added).

    In short, the Browning-Ferris majority viewed Board precedent between 1984 and 2015 as having unreasonably “narrowed” the Board's joint-employer standard precisely when temporary and contingent employment relationships were on the rise. Id., slip op. at 11. In its view, under changing patterns of industrial life, a proper joint-employer standard should not be any “narrower than statutorily required.” Id. According to the Browning-Ferris majority, the requirement of exercise of direct and immediate control that is not limited and routine “is not, in fact, compelled by the common law—and, indeed, seems inconsistent with common-law principles.” Id., slip op. at 13. The Browning-Ferris majority viewed the common-law concept of the “right to control” the manner and means of a worker's job performance—used to distinguish a servant (i.e., employee) from an independent contractor—as precluding, or at least counseling against, any requirement of exercise of direct and immediate control in the joint-employment context. Id.

    Browning-Ferris reflects a belief that it is wise, and consistent with the common law, to include in the collective-bargaining process an employer's independent business partner that has an indirect or potential impact on the employees' essential terms and conditions of employment, even where the business partner has not itself actually established those essential employment terms or collaborated with the undisputed employer in setting them. The Browning-Ferris majority believed that requiring such a business partner to take a seat at the negotiating table and to bargain over the terms that it indirectly impacts (or could, in the future, impact under a contractual reservation) best implements the right of employees under Section 7 of the Act to bargain collectively through representatives of their own choosing. The Browning-Ferris majority conceded that deciding joint-employer allegations under its stated standard would not always be an easy task, id., slip op. at 12, but implicitly concluded that the benefit of bringing all possible employer parties to the bargaining table justified its new standard.

    In dissent, two members argued that the majority's new relaxed joint-employer standard was contrary to the common law and unwise as a matter of policy. In particular, the Browning-Ferris dissenters argued that by permitting a joint-employer finding based solely on indirect impact, the majority had effectively resurrected intertwined theories of “economic realities” and “statutory purpose” endorsed by the Supreme Court in NLRB v. Hearst Publications, 322 U.S. 111 (1944), but rejected by Congress soon thereafter. In Hearst, the Supreme Court went beyond common-law principles and broadly interpreted the Act's definition of “employee” with reference to workers' economic dependency on a putative employer in light of the Act's goal of minimizing industrial strife. In response, Congress enacted the Taft-Hartley Amendments of 1947, excluding “independent contractors” from the Act's definition of “employee” and making clear that common-law principles control.

    Additionally, the Browning-Ferris dissenters disagreed with the majority's understanding of the common law of joint-employment relationships. The dissenters argued that the “right to control” in the joint-employment context requires some exercise of direct and immediate control.

    Then, accepting for argument's sake that the common law does not preclude the relaxed standard of Browning-Ferris, the dissenters found that practical considerations counseled against its adoption. They found the relaxed standard to be impermissibly vague and asserted that the majority had failed to provide adequate guidance regarding how much indirect or reserved authority might be sufficient to establish a joint-employment relationship. Additionally, the dissenters believed that the majority's test would “actually foster substantial bargaining instability by requiring the nonconsensual presence of too many entities with diverse and conflicting interests on the `employer' side.” Id., slip op. at 23.

    The Browning-Ferris dissenters also complained that the relaxed standard made it difficult not only to correctly identify joint-employer relationships but also to determine the bargaining obligations of each employer within such relationships. Under the relaxed standard, an employer is only required to bargain over subjects that it controls (even if the control is merely indirect). The dissenters expressed concern that disputes would arise between unions and joint employers, and even between the two employers comprising the joint employer, over which subjects each employer-party must bargain. Further, the dissenters found such fragmented bargaining to be impractical because subjects of bargaining are not easily severable, and the give-and-take of bargaining frequently requires reciprocal movement on multiple proposals to ultimately reach a comprehensive bargaining agreement. Finally, the dissenters were suspicious about the implications of Browning-Ferris for identifying an appropriate bargaining unit in cases involving a single supplier employer that contracts with multiple user employers and with potential subversion of the Act's protection of neutral employers from secondary economic pressure exerted by labor unions. Accordingly, the dissenters would have adhered to Board precedent as reflected in cases such as Laerco, TLI, and Airborne Express.

    Recent Developments

    In December 2017, after a change in the Board's composition and while Browning-Ferris was pending on appeal in the D.C. Circuit, a new Board majority overruled Browning-Ferris and restored the preexisting standard that required proof that a joint employer actually exercised direct and immediate control in a manner that was neither limited nor routine. Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017). Soon thereafter, the charging parties in Hy-Brand filed a motion for reconsideration. The Board granted that motion and vacated its earlier decision for reasons unrelated to the substance of the joint-employer issue, effectively returning the law to the relaxed joint-employer standard adopted in Browning-Ferris. Hy-Brand, 366 NLRB No. 26 (2018). Subsequently, the Board in Hy-Brand denied the respondents' motion for reconsideration and issued a decision finding it unnecessary to address the joint-employer issue in that case because, in any event, the two respondents constituted a single employer under Board precedent and were therefore jointly and severally liable for each other's unfair labor practices. 366 NLRB No. 93 (2018); 366 NLRB No. 94 (2018). As stated above, a petition for review of the Board's Browning-Ferris decision remains pending in the court of appeals.

    II. Validity and Desirability of Rulemaking; Impact Upon Pending Cases

    Section 6 of the Act, 29 U.S.C. 156, provides, “The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by subchapter II of chapter 5 of Title 5 [the Administrative Procedure Act, 5 U.S.C. 553], such rules and regulations as may be necessary to carry out the provisions of this Act.” The Board interprets Section 6 as authorizing the proposed rule and invites comments on this issue.4

    4 As previously stated, Secs. 2(2) and 2(3) of the Act define, respectively, “employer” and “employee,” but neither these provisions nor any others in the Act define “joint employer.”

    Although the Board historically has made most substantive policy determinations through case adjudication, the Board has, with Supreme Court approval, engaged in substantive rulemaking. American Hospital Assn. v. NLRB, 499 U.S. 606 (1991) (upholding Board's rulemaking on appropriate bargaining units in the healthcare industry); see also NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974) (“[T]he choice between rulemaking and adjudication lies in the first instance within the Board's discretion.”).

    The Board finds that establishing the joint-employer standard in rulemaking is desirable for several reasons. First, given the recent oscillation on the joint-employer standard, the wide variety of business relationships that it may affect (e.g., user-supplier, contractor-subcontractor, franchisor-franchisee, predecessor-successor, creditor-debtor, lessor-lessee, parent-subsidiary, and contractor-consumer), and the wide-ranging import of a joint-employer determination for the affected parties, the Board finds that it would be well served by public comment on the issue. Interested persons with knowledge of these widely varying relationships can have input on our proposed change through the convenient comment process; participation is not limited, as in the adjudicatory setting, to legal briefs filed by the parties and amici. Second, using the rulemaking procedure enables the Board to clarify what constitutes the actual exercise of substantial direct and immediate control by use of hypothetical scenarios, some examples of which are set forth below, apart from the facts of a particular case that might come before the Board for adjudication. In this way, rulemaking will provide unions and employers greater “certainty beforehand as to when [they] may proceed to reach decisions without fear of later evaluations labeling [their] conduct an unfair labor practice,” as the Supreme Court has instructed the Board to do. First National Maintenance Corp. v. NLRB, 452 U.S. 666, 679 (1981). Third, by establishing the joint-employer standard in the Board's Rules & Regulations, employers, unions, and employees will be able to plan their affairs free of the uncertainty that the legal regime may change on a moment's notice (and possibly retroactively) through the adjudication process. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 777 (1969) (“The rule-making procedure performs important functions. It gives notice to an entire segment of society of those controls or regimentation that is forthcoming.”) (Douglas, J., dissenting).

    III. The Proposed Rule

    Under the proposed rule, an employer may be considered a joint employer of a separate employer's employees only if the two employers share or codetermine the employees' essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees' essential terms and conditions of employment in a manner that is not limited and routine.

    The proposed rule reflects the Board's preliminary view, subject to potential revision in response to comments, that the Act's purposes of promoting collective bargaining and minimizing industrial strife are best served by a joint-employer doctrine that imposes bargaining obligations on putative joint employers that have actually played an active role in establishing essential terms and conditions of employment. Stated alternatively, the Board's initial view is that the Act's purposes would not be furthered by drawing into an employer's collective-bargaining relationship, or exposing to joint-and-several liability, a business partner of the employer that does not actively participate in decisions setting unit employees' wages, benefits, and other essential terms and conditions of employment. The Board's preliminary belief is that, absent a requirement of proof of some “direct and immediate” control to find a joint-employment relationship, it will be extremely difficult for the Board to accurately police the line between independent commercial contractors and genuine joint employers. The Board is inclined toward the conclusion that the proposed rule will provide greater clarity to joint-employer determinations without leaving out parties necessary to meaningful collective bargaining.

    The proposed rule is consistent with the common law of joint-employer relationships. The Board's requirement of exercise of direct and immediate control, as reflected in cases such as Airborne Express, supra, has been met with judicial approval . See, e.g., SEIU Local 32BJ v. NLRB, 647 F.3d at 442-443.

    The Board believes that the proposed rule is likewise consistent with Supreme Court precedent and that of lower courts, which have recognized that contracting enterprises often have some influence over the work performed by each other's workers without destroying their status as independent employers. For example, in NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 689-690 (1951), the Supreme Court held that a contractor's exercise of supervision over a subcontractor's work “did not eliminate the status of each as an independent contractor or make the employees of one the employees of the other,” emphasizing that “[t]he business relationship between independent contractors is too well established in the law to be overridden without clear language doing so.”

    The requirement of “direct and immediate” control seems to reflect a commonsense understanding that two contracting enterprises will, of necessity, have some impact on each other's operations and respective employees. As explained in Southern California Gas Co., 302 NLRB at 461:

    An employer receiving contracted labor services will of necessity exercise sufficient control over the operations of the contractor at its facility so that it will be in a position to take action to prevent disruption of its own operations or to see that it is obtaining the services it contracted for. It follows that the existence of such control, is not in and of itself, sufficient justification for finding that the customer-employer is a joint employer of its contractor's employees. Generally a joint employer finding is justified where it has been demonstrated that the employer-customer meaningfully affects matters relating to the employment relationship such as hiring, firing, discipline, supervision, and direction.

    Notably, the Board is presently inclined to find, consistent with prior Board cases, that even a putative joint employer's “direct and immediate” control over employment terms may not give rise to a joint-employer relationship where that control is too limited in scope. See, e.g., Flagstaff Medical Center, 357 NLRB at 667 (dismissing joint-employer allegation even though putative joint employer interviewed applicants and made hiring recommendations, evaluated employees consistent with criteria established by its supplier employer, and disciplined supplied employees for unscheduled absences); Lee Hospital, 300 NLRB 947, 948-950 (1990) (putative joint employer's “limited hiring and disciplinary authority” found insufficient to establish that it “shares or codetermines those matters governing the essential terms and conditions of employment to an extent that it may be found to be a joint employer”) (emphasis added). Cases like Flagstaff Medical Center and Lee Hospital are consistent with the Board's present inclination to find that a putative joint employer must exercise substantial direct and immediate control before it is appropriate to impose joint and several liability on the putative joint employer and to compel it to sit at the bargaining table and bargain in good faith with the bargaining representative of its business partner's employees.5

    5 Even the Browning-Ferris majority acknowledged that “it is certainly possible that in a particular case, a putative joint employer's control might extend only to terms and conditions of employment too limited in scope or significance to permit meaningful collective bargaining.” 362 NLRB No. 186, slip op. at 16.

    Accordingly, under the proposed rule, there must exist evidence of direct and immediate control before a joint-employer relationship can be found. Moreover, it will be insufficient to establish joint-employer status where the degree of a putative joint employer's control is too limited in scope (perhaps affecting a single essential working condition and/or exercised rarely during the putative joint employer's relationship with the undisputed employer).

    The proposed rule contains several examples, set forth below, to help clarify what constitutes direct and immediate control over essential terms and conditions of employment. These examples are intended to be illustrative and not as setting the outer parameters of the joint-employer doctrine established in the proposed rule.

    The Board seeks comment on all aspects of its proposed rule. In particular, the Board seeks input from employees, unions, and employers regarding their experience in workplaces where multiple employers have some authority over the workplace. This may include (1) experiences with labor disputes and how the extent of control possessed or exercised by the employers affected those disputes and their resolution; (2) experiences organizing and representing such workplaces for the purpose of collective bargaining and how the extent of control possessed or exercised by the employers affected organizing and representational activities; and (3) experiences managing such workplaces, including how legal requirements affect business practices and contractual arrangements. What benefits to business practices and collective bargaining do interested parties believe might result from finalization of the proposed rule? What, if any, harms? Additionally, the Board seeks comments regarding the current state of the common law on joint-employment relationships. Does the common law dictate the approach of the proposed rule or of Browning-Ferris? Does the common law leave room for either approach? Do the examples set forth in the proposed rule provide useful guidance and suggest proper outcomes? What further examples, if any, would furnish additional useful guidance? As stated above, comments regarding this proposed rule must be received by the Board on or before November 13, 2018. Comments replying to comments submitted during the initial comment period must be received by the Board on or before November 20, 2018.

    Our dissenting colleague, who was in the majority in Browning-Ferris and in the dissent in the first Hy-Brand decision, would adhere to the relaxed standard of Browning-Ferris and refrain from rulemaking. She expresses many of the same points made in furtherance of her position in those cases. We have stated our preliminary view that the Act's policy of promoting collective bargaining to avoid labor strife and its impact on commerce is not best effectuated by inserting into a collective-bargaining relationship a third party that does not actively participate in decisions establishing unit employees' wages, benefits, and other essential terms and conditions of employment. We look forward to receiving and reviewing the public's comments and, afterward, considering these issues afresh with the good-faith participation of all members of the Board.

    VI. Dissenting View of Member Lauren McFerran

    Today, the majority resumes the effort to overrule the Board's 2015 joint-employer decision in Browning-Ferris, which remains pending on review in the United States Court of Appeals for the District of Columbia Circuit.6 An initial attempt to overrule Browning-Ferris via adjudication—in a case where the issue was neither raised nor briefed by the parties 7 —failed when the participation of a Board member who was disqualified required that the decision be vacated.8 Now, the Board majority, expressing new support for the value of public participation, proposes to codify the same standard endorsed in Hy-Brand I9 via a different route: rulemaking rather than adjudication. The majority tacitly acknowledges that the predictable result of the proposed rule would be fewer joint employer findings.10

    6Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015), petition for review docketed Browning-Ferris Indus. of Cal. v. NLRB, No. 16-1028 (D.C. Cir filed Jan. 20, 2016).

    7 See Hy-Brand Industrial Contractors, Ltd (Hy-Brand I), 365 NLRB No. 156 (2017). In a departure from what had become established practice, the majority there also declined to issue a public notice seeking amicus briefing before attempting to reverse precedent. See id. at 38-40 (dissenting opinion).

    8 See Hy-Brand Industrial Contractors, Ltd., 366 NLRB No. 26 (2018) (Hy-Brand II), granting reconsideration in part and vacating order reported at 365 NLRB No. 156 (2017) (Hy-Brand I). See also Hy-Brand Industrial Contractors, Ltd., 366 NLRB No. 63 (2018) (Hy-Brand III) (order denying motion for reconsideration of order vacating).

    9Hy-Brand I was decided by a majority comprising then-Chairman Miscimarra, Member Kaplan, and Member Emanuel (who was later determined to have been disqualified). The majority today, proposing what is essentially an identical standard in rulemaking, comprises Chairman Ring, Member Kaplan, and Member Emanuel. Thus, a majority of today's majority has considered and endorsed the proposed outcome of this rulemaking process before.

    10 The majority observes that under the proposed rule, “fewer employers may be alleged as joint employers, resulting in lower costs to some small entities.”

    The Board has recently made or proposed sweeping changes to labor law in adjudications going well beyond the facts of the cases at hand and addressing issues that might arguably have been better suited to consideration via rulemaking.11 Here, in contrast, the majority has chosen to proceed by rulemaking, if belatedly.12 Reasonable minds might question why the majority is pursuing rulemaking here and now. 13 It is common knowledge that the Board's limited resources are severely taxed by undertaking a rulemaking process.14 But whatever the rationale, and whatever process the Board may use, the fact remains that there is no good reason to revisit Browning-Ferris, much less to propose replacing its joint-employer standard with a test that fails the threshold test of consistency with the common law and that defies the stated goal of the National Labor Relations Act: “encouraging the practice and procedure of collective bargaining.” 15

    11 See The Boeing Company, 365 NLRB No.154, slip op. at 33-34 (2017) (dissenting opinion); Caesars Entertainment Corp. d/b/a Rio All-Suites Hotel & Casino, Case 28-CA-060841, Notice & Invitation to File Briefs (Aug. 1, 2018) (dissenting opinion), available at www.nlrb.gov.

    12 After Hy-Brand I was vacated (in Hy-Brand II) and after reconsideration of the order vacating was denied (in Hy-Brand III), the Chairman announced that the Board was contemplating rulemaking on the joint-employer standard, as reflected in a submission to the Unified Agenda of Federal Regulatory and Deregulatory Actions. See NLRB Press Release, NLRB Considering Rulemaking to Address Joint-Employer Standard (May 9, 2018), available at www.nlrb.gov. That step did not reflect my participation or that of then-Member Pearce, as the press release discloses.

    13See, e.g., May 29, 2018 Letter from Senators Warren, Gillibrand, and Sanders to Chairman Ring, available at https://www.warren.senate.gov/imo/media/doc/2018.05.29%20Letter%20to%20NLRB%20on%20Joint%20Employer%20Rulemaking.pdf (expressing concern that the rulemaking effort could be an attempt “to evade the ethical restrictions that apply to adjudications”). Chairman Ring has provided assurances “that any notice-and-comment rulemaking undertaken by the NLRB will never be for the purpose of evading ethical restrictions.” See June 5, 2018 Letter from Chairman Ring to Senators Warren, Gillibrand, and Sanders at 1, available at https://www.nlrb.gov/news-outreach/news-story/nlrb-chairman-provides-response-senators-regarding-joint-employer-inquiry.

    Notably, under the Standards of Ethical Conduct for Executive Branch Employees, rulemaking implicates different recusal considerations than does case adjudication, because a rulemaking of general scope is not regarded as a “particular matter” for purposes of determining disqualifying financial interests. See 5 CFR 2635.402. By pursuing rulemaking rather than adjudication with respect to the joint-employer standard, the Board is perhaps able to avoid what might otherwise be difficult ethical issues, as the Hy-Brand case illustrates. See generally Peter L. Strauss, Disqualifications of Decisional Officials in Rulemaking, 80 Columbia L. Rev. 990 (1980); Administrative Conference of the United States, Decisional Officials' Participation in Rulemaking Proceedings, Recommendation 80-4 (1980).

    14 See Jeffrey M. Hirsch, Defending the NLRB: Improving the Agency's Success in the Federal Courts of Appeals, 5 FIU L. Rev. 437, 457 (2010) (explaining that rulemaking at the Board would consume significant resources, especially “given that the NLRB is banned from hiring economic analysts”).

    What is striking here is that the Board majority has opted to use this resource-intensive process to address an issue that has never been addressed through rulemaking before, and that the majority observes is implicated in fewer than one percent of Board filings and (by the majority's own analysis) directly affects only “.028% of all 5.9 million business firms.” The majority observes that the number of employers affected is “very small.” In contrast for example, consider the standards governing employer rules and handbooks at issue in Boeing, supra, which presumably affect the overwhelming number of private-sector employers in the country, but which the Board majority chose to establish by adjudication and without public participation.

    15 National Labor Relations Act, Sec. 1, 29 U.S.C. 151.

    A. The Majority's Justification for Revisiting Browning-Ferris Is Inadequate.

    Since August 2015, the joint-employer standard announced in Browning-Ferris has been controlling Board law. It remains so today, and the majority properly acknowledges as much.16 After laying out the checkered history of the effort to overrule Browning-Ferris, the majority points to the “continuing uncertainty in the labor-management community created by these adjudicatory variations in defining the appropriate joint-employer standard” as the principal reason for proposing to codify not Browning-Ferris (existing Board law) but the pre-Browning-Ferris standard resurrected in Hy-Brand I. The majority cites no evidence of “continuing uncertainty in the labor-management community,” 17 and to the extent such uncertainty exists, it has only itself to blame for the series of missteps undertaken in seeking to hurriedly reverse BFI.

    16 As the Board recently observed in Hy-Brand II, because the original Hy-Brand decision and order was vacated, the “overruling of the Browning-Ferris decision is of no force or effect.” 366 NLRB No. 26, slip op. at 1. The majority here states that “[i]n February 2018, the Board vacated its December 2017 decision [in Hy-Brand], effectively changing the law back again to the relaxed standard of Browning-Ferris.”

    17 To the extent that the majority is relying on anything other than anecdotal evidence of this alleged uncertainty, it is required to let the public know the evidentiary basis of its conclusion. “It is not consonant with the purpose of a rule-making proceeding to promulgate rules on the basis of inadequate data, or on data that, to a critical degree, is known only to the agency.” Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973).

    More to the point, the best way to end uncertainty over the Board's joint-employer standard would be to adhere to existing law, not to upend it. The majority's decision to pursue rulemaking ensures the Board's standard will remain in flux as the Board develops a final rule and as that rule, in all likelihood, is challenged in the federal courts. And, of course, any final rule could not be given retroactive effect, a point that distinguishes rulemaking from adjudication.18 Thus, cases arising before a final rule is issued will nonetheless have to be decided under the Browning-Ferris standard.

    18 See generally Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988). There is no indication in Sec. 6 of the National Labor Relations Act that Congress intended to give the Board authority to promulgate retroactive rules. Sec. 6 authorizes the Board “to make . . . in the manner prescribed by [the Administrative Procedure Act] . . . such rules and regulations as may be necessary to carry out the provisions of” the National Labor Relations Act. 29 U.S.C. 156. The Administrative Procedure Act defines a “rule” as an “agency statement of general or particular applicability and future effect. . . .” 5 U.S.C. 551(4) (emphasis added). See also See June 5, 2018 Letter from Chairman Ring to Senators Warren, Gillibrand, and Sanders at 2, available at https://www.nlrb.gov/news-outreach/news-story/nlrb-chairman-provides-response-senators-regarding-joint-employer-inquiry (acknowledging that “final rules issued through notice-and-comment rulemaking are required by law to apply prospectively only”).

    The majority's choice here is especially puzzling given that Browning-Ferris remains under review in the District of Columbia Circuit. When the court's decision issues, it will give the Board relevant judicial guidance on the contours of a permissible joint-employer standard under the Act. The Board would no doubt benefit from that guidance, even if it was not required to follow it. Of course, if the majority's final rule could not be reconciled with the District of Columbia Circuit's Browning-Ferris decision, it presumably would not survive judicial review in that court.19 The Board majority thus proceeds at its own risk in essentially treating Browning-Ferris as a dead letter.

    19 If the District of Columbia Circuit were to uphold the Board's Browning-Ferris standard (in whole or in part) as compelled by—or at least consistent with—the Act, but the Board, through rulemaking, rejected Browning-Ferris (in whole or in part) as not permitted by the Act, then the Board's final rule would be premised on a legal error. Moreover, insofar as the court might hold the Browning-Ferris standard to be permitted by the Act, then the reasons the Board gave for not adopting that standard would have to be consistent with the court's understanding of statutory policy and common-law agency doctrine insofar as they govern the joint-employer standard.

    B. The Proposed Rule Is Inconsistent With Both the Common Law and the Goals of the NLRA

    No court has held that Browning-Ferris does not reflect a reasonable interpretation of the National Labor Relations Act. Nor does the majority today assert that its own, proposed joint-employer standard is somehow compelled by the Act. As the majority acknowledges, the “Act does not contain the term `joint employer,' much less define it.” The majority also acknowledges, as it must, that “it is clear that the Board's joint-employer standard . . . must be consistent with common law agency doctrine.” The joint-employer standard adopted in Browning-Ferris, of course, is predicated on common-law agency doctrine, as the decision explains in careful detail.20 As the Browning-Ferris Board observed:

    20 362 NLRB No. 186, slip op. at 12-17. Notably, the Browning-Ferris Board rejected a broader revision of the joint-employer standard advocated by the General Counsel because it might have suggested “that the applicable inquiry is based on `industrial realities' rather than the common law.” 362 NLRB No. 186, slip op. at 13 fn. 68. The General Counsel had urged the Board to find joint-employer status:

    where, under the totality of the circumstances, including the way the separate entities have structured their commercial relationships, the putative joint employer wields sufficient influence over the working conditions of the other entity's employees such that meaningful collective bargaining could not occur in its absence.

    Id.

    In determining whether a putative joint employer meets [the] standard, the initial inquiry is whether there is a common-law employment relationship with the employees in question. If this common-law employment relationship exists, the inquiry then turns to whether the putative joint employer possesses sufficient control over employees' essential terms and conditions of employment to permit meaningful collective bargaining.

    362 NLRB No. 186, slip op. at 2 (emphasis added).21

    21 This approach, as the Browning-Ferris Board explained, was consistent with the Board's traditional joint-employer doctrine, as it existed before 1984. 362 NLRB No. 186, slip op. at 8-11. In tracing the evolution of the Board's joint-employer standard, the Browning-Ferris Board observed that:

    Three aspects of that development seem clear. First, the Board's approach has been consistent with the common-law concept of control, within the framework of the National Labor Relations Act. Second, before the current joint-employer standard was adopted, the Board (with judicial approval) generally took a broader approach to the concept of control. Third, the Board has never offered a clear and comprehensive explanation for its joint-employer standard, either when it adopted the current restrictive test or in the decades before.

    Id. at 8.

    In contrast, the Board's prior standard (which the majority revives today) had never been justified in terms of common-law agency doctrine. For the 31 years between 1984 (when the Board, in two decisions, narrowed the traditional joint-employer standard) 22 and 2015 (when Browning-Ferris was decided), the Board's approach to joint-employer cases was not only unexplained, but also inexplicable with reference to the principles that must inform the Board's decision-making. Common-law agency doctrine simply does not require the narrow, pre-Browning-Ferris standard to which the majority now seeks to return. Nor is the “practice and procedure of collective bargaining” encouraged by adopting a standard that reduces opportunities for collective bargaining and effectively shortens the reach of the Act.

    22TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985), and Laerco Transportation, 269 NLRB 324 (1984).

    Thus, it is not surprising that two labor-law scholars have endorsed Browning-Ferris as “the better approach,” “predicated on common law principles” and “consistent with the goals of employment law, especially in the context of a changing economy.” 23 Browning-Ferris, the scholars observe, “was not a radical departure from past precedent;” rather, despite “reject[ing] limitations added to the joint employer concept from a few cases decided in the 1980s,” it was “consistent with earlier precedents.” 24 The crux of the Browning-Ferris decision, and the current majority's disagreement with it, is whether the joint-employer standard should require: (1) That a joint employer “not only possess the authority to control employees' terms and conditions of employment, but also exercise that authority;” (2) that the employer's control “must be exercised directly and immediately;” and (3) that control not be “limited and routine.” 25 The Browning-Ferris Board carefully explained that none of these limiting requirements is consistent with common-law agency doctrine, as the Restatement (Second) of Agency makes clear.26 It is the Restatement on which the Supreme Court has relied in determining the existence of a common-law employment relationship for purposes of the National Labor Relations Act.27 The Court, in turn, has observed that the “Board's departure from the common law of agency with respect to particular questions and in a particular statutory context, [may] render[] its interpretation [of the Act] unreasonable.” 28

    23 Charlotte Garden & Joseph E. Slater, Comments on Restatement of Employment Law (Third), Chapter 1, 21 Employee Rights & Employment Policy Journal 265, 276 (2017).

    24 Id. at 276-277.

    Id.

    25Browning-Ferris, supra, 362 NLRB No. 186, slip op. at 2 (emphasis in original).

    26 Id. at 13-14. See also Hy-Brand I, supra, 365 NLRB No. 156, slip op. at 42-45 (dissenting opinion).

    As to whether authority must be exercised, Section 220(1) of the Restatement (Second) of Agency defines a “servant” as a “person employed to perform services . . . who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control” (emphasis added). Section 220(2), in turn, identifies as a relevant factor in determining the existence of an employment relationship “the extent of control which, by the agreement, the master may exercise over the details of the work” (emphasis added). See, e.g., Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751 (1989) (“In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished.”); Singer Mfg. Co. v. Rahn, 132 U.S. 518, 523 (1889) (observing that the “relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done”).

    As to whether control must be direct and immediate, the Restatement observes that the “control needed to establish the relation of master and servant may be very attenuated.” Restatement (Second) of Agency Section 220(l), comment d. The Restatement specifically recognizes the common-law “subservant” doctrine, addressing cases in which one employer's control is or may be exercised indirectly, while a second employer directly controls the employee. Restatement (Second) of Agency Sections 5, 5(2), comment e. See, e.g., Kelley v. Southern Pacific Co., 419 U.S. 3218, 325 (1974) (recognizing subservant doctrine for purposes of Federal Employers' Liability Act); Allbritton Communications Co. v. NLRB, 766 F.2d 812, 818-819 (3d Cir. 1985) (applying subservant doctrine under National Labor Relations Act), cert. denied, 474 U.S. 1081 (1986).

    As to the issue of control that is limited and routine, the Restatement makes clear that if an entity routinely exercises control “over the details of the work,” it is more likely to be a common-law employer. See Restatement (Second) of Agency Section 220(2)(a). That control might be routine, in the sense of not requiring special skill, does not suggest the absence of an employment relationship; to the contrary, an unskilled worker is more likely to be an employee, rather than an independent contractor. See id., Section 220(2)(d) and comment i.

    27 See, e.g., NLRB v. United Insurance Co. of America, 390 U.S. 254, 256-258 (1968) (interpreting Act's exclusion of independent contractors from coverage).

    28NLRB v. Town & Country Electric, Inc., 516 U.S. 85, 94 (1995), citing United Insurance, supra, 390 U.S. at 256.

    Hy-Brand I impermissibly departed from the common law of agency as the dissent there demonstrated,29 and the majority's proposed rule does so again. Remarkably, the majority makes no serious effort here to refute the detailed analysis of common-law agency doctrine advanced in Browning-Ferris and in the Hy-Brand I dissent. The majority fails to confront the Restatement (Second) of Agency, for example, or the many decisions cited in Browning-Ferris (and then in the Hy-Brand I dissent) that reveal that at common law, the existence of an employment relationship does not require that the putative employer's control be (1) exercised (rather than reserved); (2) direct and immediate (rather than indirect, as through an intermediary); and not (3) limited and routine (rather than involving routine supervision of at least some details of the work). None of these restrictions, much less all three imposed together, is consistent with common-law agency doctrine.30

    29 See Hy-Brand I, supra, 365 NLRB No. 156, slip op. at 42-47 (dissenting opinion).

    30 The majority observes that in some cases, courts have upheld the Board's application of the “direct and immediate”-control restriction. But as the Hy-Brand I dissent explained, no federal appellate court has addressed the argument that this restriction is inconsistent with common-law agency principles. 365 NLRB No. 156, slip op. at 46.

    Nor, as the majority suggests, is the restriction supported by the Supreme Court's decision in NLRB v. Denver Building & Construction Trades Council, 341 NLRB 675 (1951). As the Hy-Brand I dissent explained:

    The issue in . . . Denver Building & Construction Trades Council . . . was whether (as the Board had found) a labor union violated Sec. 8(b)(4)(A) of the Act “by engaging in a strike, an object of which was to force the general contractor on a construction project to terminate its contract with a certain subcontractor on the project.” Id. at 677. The relevant statutory language prohibits a strike “where an object thereof is . . . forcing or requiring . . . any employer or other person . . . to cease doing business with any other person.” Id. at 677 fn. 1 (citing 29 U.S.C. 158(b)(4)(A), current version at 29 U.S.C. 158(b)(4)(i)(B)). The Court agreed with the Board's conclusion that the general contractor and the subcontractor were “doing business” with each other. Id. at 690.

    It was in that context that the Court observed that “the fact that the contractor and the subcontractor were engaged on the same construction project, and that the contactor had some supervision over the subcontractor's work, did not eliminate the status of each as an independent contractor or make the employees of one the employees of the other,” such that the “doing business” element could not be satisfied. Id. at 689-690. The Court's decision in no way implicated the common-law test for an employment relationship or the Board's joint-employer standard. As a general matter, to say that a general contractor and a subcontractor are independent entities (e.g., not a “single employer”) is not to say that they can never be joint employers, if it is proven that the general contractor retains or exercises a sufficient degree of control over the subcontractor's workers to satisfy the common-law test of an employment relationship.

    Hy-Brand I, supra, 365 NLRB No. 156, slip op. at 46 fn. 63 (dissenting opinion).

    Instead of demonstrating that its proposed rule is consistent with the common law (an impossible task), the majority simply asserts that it is—and then invites public comment on the “current state of the common law on joint-employment relationships” and whether the “common law dictate[s] the approach of the proposed rule or of Browning-Ferris” or instead “leave[s] room for either approach.” The answers to these questions have been clear for quite some time: The restrictive conditions for finding joint-employer status proposed by the majority simply restore the pre-Browning Ferris standard, which the Board had never presented as consistent with, much less compelled by, common-law agency doctrine.31 The majority, in short, seeks help in finding a new justification for an old (and unsupportable) standard. But the proper course is for the Board to start with first principles, as the Browning-Ferris decision did, and then to derive the joint-employer standard from them.

    31 With respect to the issue of reserved control, the majority acknowledges that “[o]ver time, the Board shifted position, without expressly overruling precedent, and held that joint-employer status could not be established by the mere existence of a clause in a business contract reserving to one company authority over its business partner's employees absent evidence that such authority had ever been exercised.” The Board, however, is required to adhere to its precedent or to explain why it chooses to deviate from it. See, e.g., ABM Onsite Services-West, Inc. v. NLRB, 849 F.3d 1137, 1146 (D.C. Cir. 2017). Here, too, the Board's pre-Browning-Ferris approach fell short of the standard for reasoned decision-making.

    Just as the majority fails to reconcile the proposed rule with common-law agency doctrine—a prerequisite for any viable joint-employer standard under the National Labor Relations Act—so the majority fails to explain how its proposed standard is consistent with the actual policies of the Act. There should be no dispute about what those policies are. Congress has told us. Section 1 of the Act states plainly that:

    It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate those obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise of workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

    29 U.S.C. 151 (emphasis added). The Supreme Court has explained that:

    Congress' goal in enacting federal labor legislation was to create a framework within which labor and management can establish the mutual rights and obligations that govern the employment relationship. “The theory of the act is that free opportunity for negotiation with accredited representatives of employees is likely to promote industrial peace and may bring about the adjustments and agreements which the act in itself does not attempt to compel.”

    NLRB v. J. Weingarten, Inc., 420 U.S. 251, 271 (1975) (emphasis added), quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45 (1937).

    The Browning-Ferris standard—current Board law—clearly “encourage[s] the practice and procedure of collective bargaining” (in the words of the Act) by eliminating barriers to finding joint-employer relationships that have no basis in the common-law agency doctrine that Congress requires the Board to apply. The predictable result is that more employees will be able to engage in “free opportunities for negotiation” (in the Supreme Court's phrase) with the employers who actually control the terms and conditions of their employment—as Congress intended—and that orderly collective bargaining, not strikes, slowdowns, boycotts, or other “obstructions to the free flow of commerce” will prevail in joint-employer settings.

    The question for the majority is why it would preliminarily choose to abandon Browning-Ferris for a standard that, by its own candid admission, is intended to—and will—result in fewer joint employer findings and thus in a greater likelihood of economically disruptive labor disputes. Where collective bargaining under the law is not an option, workers have no choice but to use other means to improve their terms and conditions of employment. Economic pressure predictably will be directed at the business entities that control a workplace, whether or not the Board recognizes them as employers. History shows that when employees' right to have effective union representation is obstructed, they engage in alternative and more disruptive means of improving their terms of employment.32 Resort to such economic weapons is hardly a relic of the past. Recent examples include nationwide strikes by employees unable to gain representation in fast food, transportation, retail, and other low-pay industries, often directed at parent companies, franchisors, investors, or other entities perceived by the workers as having influence over decisions that ultimately impact the workers' well-being.33 Congress enacted the NLRA in order to minimize the disruption of commerce and to provide employees with a structured, non-disruptive alternative to such action. In blocking effective representation by unreasonably narrowing the definition of joint employer, the majority thwarts that goal and invites disruptive economic activity.

    32 Between 1936 and 1939, when the NLRA was in its infancy and still meeting massive resistance from employers, American employees engaged in 583 sit-down strikes of at least one day's duration. Jim Pope, Worker Lawmaking, Sit-Down Strikes, and the Shaping of American Industrial Relations, 1935—1938, Law and History Review, Vol. 24, No. 1 at 45, 46 (Spring 2006). See also NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939). For many years after plant occupations were found illegal by the Supreme Court, employees resorted to wildcat, “quickie,” “stop-and-go,” and partial strikes; slowdowns; and mass picketing. Id at 108-111.

    33 E.g., Michael M. Oswalt, The Right to Improvise in Low-Wage Work, 38 Cardozo L. Rev. 959, 961-986 (2017); Steven Greenhouse and Jana Kasperkevic, Fight For $15 Swells Into Largest Protest By Low-wage Workers in US History, The Guardian/U.S. News (April 15, 2015); Dominic Rushe, Fast Food Workers Plan Biggest US Strike to Date Over Minimum Wage, The Guardian/U.S. News (September 1, 2014). Strikes, walkouts, and other demonstrations of labor unrest have also been seen in recent years in the college and university setting among graduate teaching assistants and similar workers responding to their academic employers' refusal to recognize unions and engage in collective bargaining. See, e.g., Danielle Douglas-Gabrielle, Columbia Graduate Students Strike Over Refusal to Negotiate a Contract, The Washington Post (April 24, 2018); David Epstein, On Strike: In a showdown over TA unions at private universities, NYU grad students walk off the job, Inside Higher Ed (November 10, 2005). Here, again, the common thread is workers resort to more disruptive channels when they are denied the ability to negotiate directly about decisions impacting their employment.

    The majority does not explain its choice in any persuasive way. It asserts that codifying the Hy-Brand I, pre-Browning-Ferris standard “will foster predictability and consistency regarding determinations of joint-employer status in a variety of business relationships, thereby promoting labor-management stability, one of the principal purposes of the Act.” But, as already suggested, “predictability and consistency” with respect to the Board's joint-employer standard could be achieved just as well by codifying the Browning-Ferris standard—which, crucially, is both consistent with common-law agency doctrine and promotes the policy of the Act (in contrast to the Hy-Brand I standard).

    As for “labor-management stability,” that notion does not mean the perpetuation of a state in which workers in joint-employer situations remain unrepresented, despite their desire to unionize, because Board doctrine prevents it. “The object of the National Labor Relations Act is industrial peace and stability, fostered by collective-bargaining agreements providing for the orderly resolution of labor disputes between workers and employe[r]s.” 34 Congress explained in Section 1 of the Act that it is the “denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining” that “lead to strikes and other forms of industrial strife or unrest.” 35 A joint-employer standard that predictably and consistently frustrates the desire of workers for union representation is a recipe for workplace instability—for just the sort of conflict that Congress wanted to eliminate. Whether it proceeds by adjudication or by rulemaking, the Board is not free to substitute its own idea of proper labor policy for the Congressional policy embodied in the statute.

    34Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 785 (1996) (emphasis added).

    35 29 U.S.C. 151.

    The majority expresses the “preliminary belief . . . that absent a requirement of proof of some ‘direct and immediate’ control to find a joint-employment relationship, it will be extremely difficult for the Board to accurately police the line between independent commercial contractors and genuine joint employers.” But any such difficulty is a function of applying common-law agency doctrine, which the Board is not free to discard, whether in the interests of administrative convenience or a so-called predictability that insulates employers from labor-law obligations. In holding that Congress had made common-law agency doctrine controlling under the Act, the Supreme Court itself has noted the “innumerable situations which arise in the context of the common law where it is difficult to say whether a particular individual is an employee or an independent contractor.” 36 To quote the Hy-Brand I majority, “[t]he Board is not Congress.” 37 It is not free to decide that the common law is simply too difficult to apply, despite the Congressional instruction to do so.

    36United Insurance, supra, 390 U.S. at 258. See also Restatement (Second) of Agency Section 220, comment c (“The relation of master and servant is one not capable of exact definition. . . . [I]t is for the triers of fact to determine whether or not there is a sufficient group of favorable factors to establish the relation.”).

    37Hy-Brand I, supra, 365 NLRB No. 156, slip op. at 33.

    Notably, the majority's proposed inclusion of a “direct and immediate” control requirement in the joint-employer standard would hardly result in an easy-to-apply test. The majority takes pains to say that while the exercise of “direct and immediate” control is necessary to establish a joint-employer relationship, it is not sufficient. 38 As for the “examples” set forth in the proposed rule, they are “intended to be illustrative and not as setting the outer parameters of the joint-employer doctrine established in the proposed rule.” 39 Even with respect to those examples that illustrate the exercise of “direct and immediate” control, the proposed rule does not actually state that a joint-employer relationship is demonstrated. Here, too, the majority's ostensible goal of predictability is elusive. The proposed rule, if ultimately adopted by the Board, will reveal its true parameters only over time, as it is applied case-by-case through adjudication. What purpose, then, does codifying the Hy-Brand I standard via rulemaking actually serve?

    38 “Direct and immediate” control “will be insufficient,” the majority observes, “where the degree of a putative employer's control is too limited in scope (perhaps affecting a single essential working condition and/or exercised rarely during the putative joint employer's relationship with the undisputed employer).” In comparison, Browning-Ferris explained that a joint employer “will be required to bargain only with respect to those terms and conditions over which it possesses sufficient control for bargaining to be meaningful.” 362 NLRB No. 186, slip op. at 2 fn. 7. The decision acknowledged that a “putative joint employer's control might extend only to terms and conditions of employment too limited in scope or significance to permit meaningful collective bargaining.” Id. at 16. The difference between the proposed rule and Browning-Ferris is that the former treats joint employment as an all-or-nothing proposition, while the latter permits joint-employer determinations that are tailored to particular working arrangements, allowing collective bargaining to the extent that it can be effective.

    39 Of course, illustrating a legal standard is not the same as explaining it: In this case, demonstrating that the proposed joint-employer standard, as illustrated by a particular example, is consistent with common-law agency doctrine and promotes statutory policies.

    The majority's examples, rather than helping “clarify” what constitutes “direct and immediate control,” confirm that joint employment cannot be determined by any simplistic formulation, let alone the majority's artificially restrictive one. This is because additional circumstances in each of the provided examples could change the result. In example 1(a), the majority declares that under its proposed rule a “cost-plus” service contract between two businesses that merely establishes a maximum reimbursable labor expense does not, by itself, justify finding that the user business exercises direct control. But if, under that contract, the user also imposes hiring standards; prohibits individual pay to exceed that of the user's own employees; determines the provider's working hours and overtime; daily adjusts the numbers of employees to be assigned to respective production areas; determines the speed of the worksite's assembly or production lines; conveys productivity instructions to employees through the provider's supervisors; or restricts the period that provided employees are permitted to work for the user—all as in Browning-Ferris—does the result change? Would some but not all of these additional features change the result? If not, under common-law principles, why not?

    In example 2(a), the majority declares that under its proposed rule, a user business does not exercise direct control over the provider's employees simply by complaining that the product coming off its assembly line worked by those employees is defective. Does the result change if the user also indicates that it believes certain individual employees are partly responsible for the defects? Or if it also demands those employees' reassignment, discipline, or removal? Or if it demands that provided employees be allocated differently to different sections of the line?

    And in example 6(a), the majority declares that where a service contract reserves the user's right to discipline provided employees, but the user has never exercised that authority, the user has not exercised direct control. Again, does the result change if the user indicates to the supplier which employees deserve discipline, and/or how employees should be disciplined? And, assuming that the actual exercise of control is necessary, when is it sufficient to establish a joint-employer relationship? How many times must control be exercised, and with respect to how many employees and which terms and conditions of employment?

    The majority's simplified examples, meanwhile, neither address issues of current concern implicating joint employment—such as, for example—the recent revelation that national fast-food chains have imposed “no poaching” restrictions on their franchisees that limit the earnings and mobility of franchise employees 40 —nor accurately reflect the complicated circumstances that the Board typically confronts in joint-employer cases, where the issue of control is raised with respect to a range of employment terms and conditions and a variety of forms of control.41

    40 “AG Ferguson Announces Fast-Food Chains Will End Restrictions on Low-Wage Workers Nationwide,” Press Release, Office of the Attorney General, Washington State (July 12, 2018) (explaining that “seven large corporate fast-foods chains will immediately end a nationwide practice that restricts worker mobility and decreases competition for labor by preventing workers from moving among the chains' franchise locations”), available at www.atg.wa.gov/news/news-releases; “AG Ferguson: Eight More Restaurant Chains Will End No-Poach Practices Nationwide,” Press Release, Office of the Attorney General, Washington State (Aug. 20, 2018), available at www.atg.wa.gov/news/news-releases. See also generally Rachel Abrams, “Why Aren't Paychecks Growing? A Burger-Joint Clause Offers a Clue,” The New York Times (Sept. 27, 2017); Alan B. Krueger & Orley C. Ashenfelter, “Theory and Evidence on Employer Collusion in the Franchise Sector,” Princeton University Working Paper No. 614 (Sept. 28, 2017), available at http://arks.princeton.edu/ark:/88435/dsp014f16c547g.

    41 In Browning-Ferris, for example, the Board found that BFI Newby Island Recyclery (BFI) was a joint employer with Leadpoint Business Services (Leadpoint) of sorters, screen cleaners, and housekeepers at a recycling facility. That finding was based on a range of evidence reflecting both direct and indirect control, both reserved and exercised, over various terms and conditions of employment.

    First, the Board found that under its agreement with Leadpoint, BFI “possesse[d] significant control over who Leadpoint can hire to work at its facility,” with respect to both hiring and discipline, and at least occasionally exercised that authority in connection with discipline. 362 NLRB No. 16, slip op. at 18.

    Second, BFI “exercised control over the processes that shape the day-to-day work” of the employees, particularly with respect to the “speed of the [recycling] streams and specific productivity standards for sorting,” but also by assigning specific tasks that need to be completed, specifying where Leadpoint workers were to be positioned, and exercising oversight of employees' work performance.” Id. at 18-19. (footnote omitted).

    Third, BFI “played a significant role in determining employees' wages” by (1) “prevent[ing] Leadpoint from paying employees more than BFI employees performing comparable work; and (2) entering into a cost-plus contract with Leadpoint coupled with an “apparent requirement of BFI approval over employee pay raises.” Id. at 19.

    Example 1(a) of the proposed rule suggests that the majority would give no weight to BFI's cost-plus contract, but it is not clear how the majority would analyze BFI's veto power over pay raises. Example 1(b) suggests that this power might be material. Example 2(b), meanwhile, suggests that BFI's control over day-to-day work processes supports a joint-employer finding. Finally, Example 6(b), apparently would support finding that BFI exercised direct and immediate disciplinary control over Leadpoint employees. Ironically, then, it is far from clear that adoption of the majority's proposed rule would lead to a different result in Browning-Ferris.

    The majority's examples and their possible variations therefore illustrate why the issue of joint employment is particularly suited to individual adjudication under common-law principles. As the majority acknowledges, “[t]here are myriad relationships between employers and their business partners, and the degree to which particular business relationships impact employees' essential terms and conditions of employment varies widely.” This being true, the majority's simplistic examples are of limited utility in providing guidance, and merely serve to illustrate the impossibility of predetermining with “clarity” all of the situations in which a joint employment relationship does or does not exist. This is why the Board's best course of action may well be to continue to define the contours of the correct standard, re-established in Browning-Ferris, through the usual process of adjudication. This process will provide a more nuanced understanding of the contours of potential joint employment relationships that is difficult to achieve in the abstract via rulemaking.

    C. The Majority's Proposed Rulemaking Process Is Flawed

    For all of these reasons, I dissent from the majority's decision to issue the notice of proposed rulemaking (NPRM). To be sure, if the majority is determined to revisit Browning-Ferris, then permitting public participation in the process is preferable to the approach taken in the now-vacated Hy-Brand I, where the majority overruled Browning-Ferris sua sponte and without providing the parties or the public with notice and an opportunity to file briefs on that question. Having chosen to proceed, however, the majority should at the very least encourage greater public participation in the rulemaking process, by holding one or more public hearings.

    There is no indication that the Board intends to hold a public hearing on the proposed rule, in addition to soliciting written comments. In the past, the Board has held such hearings to enhance public participation in the rulemaking process,42 and there is no good reason why it should not do so again. Despite the Chairman's publicly professed desire to hear from “thousands of commentators . . . including individuals and small businesses that may not be able to afford to hire a law firm to write a brief for them, yet have valuable insight to share from hard-won experience,” 43 the process outlined by the majority—with limited time for public comment and no public hearings—seems ill-designed to provide the broad range of public input the majority purportedly seeks.

    42 See Representation-Case Procedures, 79 FR 74308 (2014) (the Board held four days of oral hearings with live questioning by Board members that resulted in over 1,000 pages of testimony); Union Dues Regulations, 57 FR 43635 (1992) (the Board held one hearing); Collective-Bargaining Units in the Health Care Industry, 53 FR 33900 (1988), (the Board held four hearings—two in Washington, DC, one in Chicago, IL, and one in San Francisco, CA—that over the course of 14 days resulted in the appearance of 144 witnesses and 3,545 pages of testimony).

    43 See June 5, 2018 Letter from Chairman Ring to Senators Warren, Gillibrand, and Sanders, available at https://www.nlrb.gov/news-outreach/news-story/nlrb-chairman-provides-response-senators-regarding-joint-employer-inquiry.

    Regardless of my views on the desirability of rulemaking on the joint-employer standard in the wake of Hy-Brand I, I will give careful consideration to the public comments that the Board receives and to the views of my colleagues. It is worth recalling that the Hy-Brand I majority, in overruling Browning-Ferris, asserted that the decision “destabilized bargaining relationships and created unresolvable legal uncertainty,” “dramatically changed labor law sales and successorship principles and discouraged efforts to rescue failing companies and preserve employment,” “threatened existing franchising arrangements,” and “undermined parent-subsidiary relationships.” 44 The Hy-Brand I majority cited no actual examples from the Board's case law applying BFI, or empirical evidence of any sort, to support its hyperbolic claims, instead recycling Member Miscimarra's dissent in Browning-Ferris practically verbatim.45 Browning-Ferris was issued more than 3 years ago, on August 27, 2015. Today's notice specifically solicits empirical evidence from the public: information about real-world experiences, not desk-chair hypothesizing. And so the question now is whether the record in this rulemaking ultimately will support the assertions made about Browning-Ferris and its supposed consequences—or, instead, will reveal them to be empty rhetoric.

    44Hy-Brand I, supra, 365 NLRB No.156, slip op. at 20, 26, 27, and 29.

    45 The relationship between Member Miscimarra's dissent in Browning-Ferris and the majority opinion in Hy-Brand is examined in a February 9, 2018 report issued by the Board's Inspector General, which is posted on the Board's website (“OIG Report Regarding Hy-Brand Deliberations” available at www.nlrb.gov).

    V. Regulatory Procedures The Regulatory Flexibility Act A. Initial Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (“RFA”), 5 U.S.C. 601, et seq. ensures that agencies “review rules to assess and take appropriate account of the potential impact on small businesses, small governmental jurisdictions, and small organizations, as provided by the [RFA].” 46 It requires agencies promulgating proposed rules to prepare an Initial Regulatory Flexibility Analysis (“IRFA”) and to develop alternatives wherever possible, when drafting regulations that will have a significant impact on a substantial number of small entities. However, an agency is not required to prepare an IRFA for a proposed rule if the agency head certifies that, if promulgated, the rule will not have a significant economic impact on a substantial number of small entities.47 The RFA does not define either “significant economic impact” or “substantial number of small entities.” 48 Additionally, “[i]n the absence of statutory specificity, what is `significant' will vary depending on the economics of the industry or sector to be regulated. The agency is in the best position to gauge the small entity impacts of its regulations.” 49

    46 E.O. 13272, Sec. 1, 67 FR 53461 (“Proper Consideration of Small Entities in Agency Rulemaking”).

    47 5 U.S.C. 605(b).

    48 5 U.S.C. 601.

    49 Small Business Administration Office of Advocacy, “A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act” (“SBA Guide”) at 18, https://www.sba.gov/sites/default/files/advocacy/How-to-Comply-with-the-RFA-WEB.pdf.

    The Board has elected to prepare an IRFA to provide the public the fullest opportunity to comment on the proposed rule. An IRFA describes why an action is being proposed; the objectives and legal basis for the proposed rule; the number of small entities to which the proposed rule would apply; any projected reporting, recordkeeping, or other compliance requirements of the proposed rule; any overlapping, duplicative, or conflicting Federal rules; and any significant alternatives to the proposed rule that would accomplish the stated objectives, consistent with applicable statutes, and that would minimize any significant adverse economic impacts of the proposed rule on small entities. Descriptions of this proposed rule, its purpose, objectives, and the legal basis are contained earlier in the Summary and Supplemental Information sections and are not repeated here.

    The Board believes that this rule will likely not have a significant economic impact on a substantial number of small entities. While we assume for purposes of this analysis that a substantial number of small employers and small entity labor unions will be impacted by this rule, we anticipate low costs of compliance with the rule, related to reviewing and understanding the substantive changes to the joint-employer standard. There may be compliance costs that are unknown to the Board; perhaps, for example, employers may incur potential increases in liability insurance costs. The Board welcomes comments from the public that will shed light on potential compliance costs or any other part of this IRFA.

    B. Description and Estimate of Number of Small Entities to Which the Rule Applies

    In order to evaluate the impact of the proposed rule, the Board first identified the entire universe of businesses that could be impacted by a change in the joint-employer standard. According to the United States Census Bureau, there were approximately 5.9 million business firms with employees in 2015.50 Of those, the Census Bureau estimates that about 5,881,267 million were firms with fewer than 500 employees.51 While this proposed rule does not apply to employers that do not meet the Board's jurisdictional requirements, the Board does not have the data to determine the number of excluded entities.52 Accordingly, the Board assumes for purposes of this analysis that the great majority of the 5,881,267 million small business firms could be impacted by the proposed rule.

    50 “Establishments” refer to single location entities—an individual “firm” can have one or more establishments in its network. The Board has used firm level data for this IRFA because establishment data is not available for certain types of employers discussed below. Census Bureau definitions of “establishment” and “firm” can be found at https://www.census.gov/programs-surveys/susb/about/glossary.html.

    51 The Census Bureau does not specifically define small business, but does break down its data into firms with 500 or more employees and those with fewer than 500 employees. See U.S. Department of Commerce, Bureau of Census, 2015 Statistics of U.S. Businesses (“SUSB”) Annual Data Tables by Establishment Industry, https://www.census.gov/data/tables/2015/econ/susb/2015-susb-annual.html (from downloaded Excel Table entitled “U.S., 6-digit NAICS”). Consequently, the 500-employee threshold is commonly used to describe the universe of small employers. For defining small businesses among specific industries, the standards are defined by the North American Industry Classification System (NAICS), which we set forth below.

    52 Pursuant to 29 U.S.C. 152(6) and (7), the Board has statutory jurisdiction over private sector employers whose activity in interstate commerce exceeds a minimal level. NLRB v. Fainblatt, 306 U.S. 601, 606-07 (1939). To this end, the Board has adopted monetary standards for the assertion of jurisdiction that are based on the volume and character of the business of the employer. In general, the Board asserts jurisdiction over employers in the retail business industry if they have a gross annual volume of business of $500,000 or more. Carolina Supplies & Cement Co., 122 NLRB 88 (1959). But shopping center and office building retailers have a lower threshold of $100,000 per year. Carol Management Corp., 133 NLRB 1126 (1961). The Board asserts jurisdiction over non-retailers generally where the value of goods and services purchased from entities in other states is at least $50,000. Siemons Mailing Service, 122 NLRB 81 (1959).

    The following employers are excluded from the NLRB's jurisdiction by statute:

    • Federal, state and local governments, including public schools, libraries, and parks, Federal Reserve banks, and wholly-owned government corporations. 29 U.S.C. 152(2).

    • Employers that employ only agricultural laborers, those engaged in farming operations that cultivate or harvest agricultural commodities, or prepare commodities for delivery. 29 U.S.C. 153(3).

    • Employers subject to the Railway Labor Act, such as interstate railroads and airlines. 29 U.S.C. 152(2).

    The proposed rule will only be applied as a matter of law when small businesses are alleged to be joint employers in a Board proceeding. Therefore, the frequency that the issue comes before the Board is indicative of the number of small entities most directly impacted by the proposed rule. A review of the Board's representation petitions and unfair labor practice (ULP) charges provides a basis for estimating the frequency that the joint-employer issue comes before the Agency. During the five-year period between January 1, 2013 and December 31, 2017, a total of 114,577 representation and unfair labor practice cases were initiated with the Agency. In 1,598 of those filings, the representation petition or ULP charge filed with the Agency asserted a joint-employer relationship between at least two employers.53 Accounting for repetitively alleged joint-employer relationships in these filings, we identified 823 separate joint-employer relationships involving an estimated 1,646 employers.54 Accordingly, the joint-employer standard most directly impacted approximately .028% of all 5.9 million business firms (including both large and small businesses) over the five-year period. Since a large share of our joint-employer cases involves large employers, we expect an even lower percentage of small businesses to be most directly impacted by the Board's application of the rule.

    53 This includes initial representation case petitions (RC petitions) and unfair labor practice charges (CA cases) filed against employers.

    54 Since a joint-employer relationship requires at least two employers, we have estimated the number of employers by multiplying the number of asserted joint-employer relationships by two. Some of these filings assert more than two joint employers; but, on the other hand, some of the same employers are named multiple times in these filings. Additionally, this number is certainly inflated because the data does not reveal those cases where joint-employer status is not in dispute.

    Irrespective of an Agency proceeding, we believe the proposed rule may be more relevant to certain types of small employers because their business relationships involve the exchange of employees or operational control.55 In addition, labor unions, as organizations representing or seeking to represent employees, will be impacted by the Board's change in its joint-employer standard. Thus, the Board has identified the following five types of small businesses or entities as those most likely to be impacted by the rule: Contractors/subcontractors, temporary help service suppliers, temporary help service users, franchisees, and labor unions.

    55 The Board acknowledges that there are other types of entities and/or relationships between entities that may be affected by a change in the joint-employer rule. Such relationships include but are not limited to: Lessor/lessee, and parent/subsidiary. However, the Board does not believe that entities involved in these relationships would be impacted more than the entities discussed below.

    (1) Businesses commonly enter into contracts with vendors to receive a wide range of services that may satisfy their primary business objectives or solve discrete problems that they are not qualified to address. And there are seemingly unlimited types of vendors who provide these types of contract services. Businesses may also subcontract work to vendors to satisfy their own contractual obligations—an arrangement common to the construction industry. Businesses that contract to receive or provide services often share workspaces and sometimes share control over workers, rendering their relationships subject to application of the Board's joint-employer standard. The Board does not have the means to identify precisely how many businesses are impacted by contracting and subcontracting within the U.S., or how many contractors and subcontractors would be small businesses as defined by the SBA.56

    56 The only data known to the Board relating to contractor business relationships involve businesses that contract with the Federal Government. In 2014, the Department of Labor reported that approximately 500,000 federal contractor firms were registered with the General Services Administration. Establishing a Minimum Wage for Contractors, 79 FR 60634, 60697. However, the Board is without the means to identify the precise number of firms that actually receive federal contracts or to determine what portion of those are small businesses as defined by the SBA. Even if these data were available, given that the Board does not have jurisdiction over government entities, business relationships between federal contractors and the federal agencies will not be impacted by the Board's joint-employer rule. The business relationships between federal contractors and their subcontractors could be subject to the Board's joint-employer rule. However, we also lack the means for estimating the number of businesses that subcontract with federal contractors or determine what portion of those would be defined as small businesses. Input from the public in this regard is welcome.

    (2) Temporary help service suppliers (North American Industry Clarification System (“NAICS”) #561320), are primarily engaged in supplying workers to supplement a client employer's workforce. To be defined as a small business temporary help service supplier by the SBA, the entity must generate receipts of less than $27.5 million annually.57 In 2012, there were 13,202 temporary service supplier firms in the U.S.58 Of these business firms, 6,372 had receipts of less than $1,000,000; 3,947 had receipts between $1,000,000 and $4,999,999; 1,639 had receipts between $5,000,000 and $14,999,999; and 444 had receipts between $15,000,000 and $24,999,999. In aggregate, at least 12,402 temporary help service supplier firms (93.9% of total) are definitely small businesses according to SBA standards. Since the Board cannot determine how many of the 130 business firms with receipts between $25,000,000-$29,999,999 fall below the $27.5 million annual receipt threshold, it will assume that these are small businesses as defined by the SBA. For purposes of this IRFA, the Board assumes that 12,532 temporary help service suppliers firms (94.9% of total) are small businesses.

    57 13 CFR 121.201.

    58 The Census Bureau only provides data about receipts in years ending in 2 or 7. The 2017 data has not been published, so the 2012 data is the most recent available information regarding receipts. See U.S. Department of Commerce, Bureau of Census, 2012 SUSB Annual Data Tables by Establishment Industry, NAICS classification #561320, https://www2.census.gov/programs-surveys/susb/tables/2012/us_6digitnaics_r_2012.xlsx.

    (3) Entities that use temporary help services in order to staff their businesses are widespread throughout many types of industries, and include both large and small employers. A 2012 survey of business owners by the Census Bureau revealed that at least 266,006 firms obtained staffing from temporary help services in that calendar year.59 This survey provides the only gauge of employers that obtain staffing from temporary help services and the Board is without the means to estimate what portion of those are small businesses as defined by the NAICS. For purposes of this IRFA, the Board assumes that all users of temporary services are small businesses.

    59See U.S. Department of Commerce, Bureau of Census, 2012 Survey of Business Owners, https://factfinder.census.gov/bkmk/table/1.0/en/SBO/2012/00CSCB46.

    (4) Franchising is a method of distributing products or services, in which a franchisor lends its trademark or trade name and a business system to a franchisee, which pays a royalty and often an initial fee for the right to conduct business under the franchisor's name and system.60 Franchisors generally exercise some operational control over their franchisees, which renders the relationship subject to application of the Board's joint-employer standard. The Board does not have the means to identify precisely how many franchisees operate within the U.S., or how many are small businesses as defined by the SBA. A 2012 survey of business owners by the Census Bureau revealed that at least 507,834 firms operated a portion of their business as a franchise. But, only 197,204 of these firms had paid employees.61 In our view, only franchisees with paid employees are potentially impacted by the joint-employer standard. Of the franchisees with employees, 126,858 (64.3%)) had sales receipts totaling less than $1 million. Based on this available data and the SBA's definitions of small businesses, which generally define small businesses as having receipts well over $1 million, we assume that almost two-thirds of franchisees would be defined as small businesses.62

    60See International Franchising Establishments FAQs, found at https://www.franchise.org/faqs-about-franchising.

    61See U.S. Department of Commerce, Bureau of Census, 2012 Survey of Business Owners, https://factfinder.census.gov/bkmk/table/1.0/en/SBO/2012/00CSCB67.

    62See 13 CFR 121.201.

    (5) Labor unions, as defined by the NLRA, are entities “in which employees participate and which exist for the purpose . . . of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” 63 By defining which employers are joint employers under the NLRA, the proposed rule impacts labor unions generally, and more directly impacts those labor unions that organize the specific business sectors discussed above. The SBA's “small business” standard for “Labor Unions and Similar Labor Organizations” (NAICS #813930) is $7.5 million in annual receipts.64 In 2012, there were 13,740 labor union firms in the U.S.65 Of these firms, 11,245 had receipts of less than $1,000,000; 2,022 labor unions had receipts between $1,000,000 and $4,999,999, and 141 had receipts between $5,000,000 and $7,499,999. In aggregate, 13,408 labor union firms (97.6% of total) are small businesses according to SBA standards.

    63 29 U.S.C. 152(5).

    64 13 CFR 121.201.

    65See U.S. Department of Commerce, Bureau of Census, 2012 SUSB Annual Data Tables by Establishment Industry, NAICS classification #722513, https://www2.census.gov/programs-surveys/susb/tables/2012/us_6digitnaics_r_2012.xlsx.

    Based on the foregoing, the Board assumes there are 12,532 temporary help supplier firms, 197,204 franchise firms, and 13,408 union firms that are small businesses; and further that all 266,006 temporary help user firms are small businesses. Therefore, among these four categories of employers that are most interested in the proposed rule, 489,150 business firms are assumed to be small businesses as defined by the SBA. We believe that all of these small businesses, and also those businesses regularly engaged in contracting/subcontracting, have a general interest in the rule and would be impacted by the compliance costs discussed below, related to reviewing and understanding the rule. But, as previously noted, employers will only be directly impacted when they are alleged to be a joint employer in a Board proceeding. Given our historic filing data, this number is very small relative to the number of small employers in these five categories.

    C. Recordkeeping, Reporting, and Other Compliance Costs

    The RFA requires an agency to consider the direct burden that compliance with a new regulation will likely impose on small entities.66 Thus, the RFA requires the Agency to determine the amount of “reporting, recordkeeping and other compliance requirements” imposed on small entities.67

    66See Mid-Tex Elec. Co-op v. FERC, 773 F.2d 327, 342 (D.C. Cir. 1985) (“[I]t is clear that Congress envisioned that the relevant `economic impact' was the impact of compliance with the proposed rule on regulated small entities.”).

    67See 5 U.S.C. 603(b)(4), 604(a)(4).

    We conclude that the proposed rule imposes no capital costs for equipment needed to meet the regulatory requirements; no costs of modifying existing processes and procedures to comply with the proposed rule; no lost sales and profits resulting from the proposed rule; no changes in market competition as a result of the proposed rule and its impact on small entities or specific submarkets of small entities; and no costs of hiring employees dedicated to compliance with regulatory requirements.68 The proposed rule also does not impose any new information collection or reporting requirements on small entities.

    68See SBA Guide at 37.

    Small entities may incur some costs from reviewing the rule in order to understand the substantive changes to the joint-employer standard. We estimate that a labor compliance employee at a small employer who undertook to become generally familiar with the proposed changes may take at most one hour to read the summary of the rule in the introductory section of the preamble. It is also possible that a small employer may wish to consult with an attorney which we estimated to require one hour as well.69 Using the Bureau of Labor Statistics' estimated wage and benefit costs, we have assessed these labor costs to be $124.37.70

    69 We do not believe that more than one hour of time by each would be necessary to read and understand the rule. This is because the new standard constitutes a return to the pre-Browning-Ferris standard with which most employers are already knowledgeable if relevant to their businesses, and with which we believe labor-management attorneys are also familiar.

    70 For wage figures, see May 2017 National Occupancy Employment and Wage Estimates, found at https://www.bls.gov/oes/current/oes_nat.htm. The Board has been administratively informed that BLS estimates that fringe benefits are approximately equal to 40 percent of hourly wages. Thus, to calculate total average hourly earnings, BLS multiplies average hourly wages by 1.4. In May 2017, average hourly wages for labor relations specialists (BLS #13-1075) were $31.51. The same figure for a lawyer (BLS #23-1011) is $57.33. Accordingly, the Board multiplied each of those wage figures by 1.4 and added them to arrive at its estimate.

    As for other potential impacts, it is possible that liability and liability insurance costs may increase for small entities because they may no longer have larger entities with which to share the cost of any NLRA backpay remedies ordered in unfair labor practice proceedings. Such a cost may arguably fall within the SBA Guide's category of “extra costs associated with the payment of taxes or fees associated with the proposed rule.” Conversely, fewer employers may be alleged as joint employers, resulting in lower costs to some small entities. The Board is without the means to quantify such costs and welcomes any comment or data on this topic.71 Nevertheless, we believe such costs are limited to very few employers, considering the limited number of Board proceedings where joint-employer status is alleged, as compared with the number of employers subject to the Board's jurisdiction. Moreover, the proposed rule may make it easier for employers to collectively bargain without the complications of tri-partite bargaining, and further provide greater certainty as to their bargaining responsibilities. We consider such positive impacts as either indirect, or impractical to quantify, or both.

    71 The RFA explains that in providing initial and final regulatory flexibility analyses, “an agency may provide either a quantifiable or numerical description of the effects of a proposed rule or alternatives to the proposed rule, or more general descriptive statements if quantification is not practicable or reliable.” 5 U.S.C. 607 (emphasis added).

    As to the impact on unions, we anticipate they may also incur costs from reviewing the rule. We believe a union would consult with an attorney, which we estimate to require no more than one hour of time ($80.26, see n.45) because union counsel should already be familiar with the pre-Browning-Ferris standard. Additionally, the Board expects that the additional clarity of the proposed rule will serve to reduce litigation expenses for unions and other small entities. Again, the Board welcomes any data on any of these topics.

    The Board does not find the estimated $124.37 cost to small employers and the estimated $80.26 cost to unions in order to review and understand the rule to be significant within the meaning of the RFA. In making this finding, one important indicator is the cost of compliance in relation to the revenue of the entity or the percentage of profits affected.72 Other criteria to be considered are the following:

    72See SBA Guide at 18.

    —Whether the rule will cause long-term insolvency, i.e., regulatory costs that may reduce the ability of the firm to make future capital investment, thereby severely harming its competitive ability, particularly against larger firms; —Whether the cost of the proposed regulation will (a) eliminate more than 10 percent of the businesses' profits; (b) exceed one percent of the gross revenues of the entities in a particular sector, or (c) exceed five percent of the labor costs of the entities in the sector.73

    73Id. at 19.

    The minimal cost to read and understand the rule will not generate any such significant economic impacts.

    Since the only quantifiable impact that we have identified is the $124.37 or $80.26 that may be incurred in reviewing and understanding the rule, we do not believe there will be a significant economic impact on a substantial number of small entities associated with this proposed rule.

    D. Duplicate, Overlapping, or Conflicting Federal Rules

    The Board has not identified any federal rules that conflict with the proposed rule. It welcomes comments that suggest any potential conflicts not noted in this section.

    E. Alternatives Considered

    Pursuant to 5 U.S.C. 603(c), agencies are directed to look at “any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities.” The Board considered two primary alternatives to the proposed rules.

    First, the Board considered taking no action. Inaction would leave in place the Browning-Ferris joint-employer standard to be applied in Board decisions. However, for the reasons stated in Sections II and III above, the Board finds it desirable to revisit the Browning-Ferris standard and to do so through the rulemaking process. Consequently, we reject maintaining the status quo.

    Second, the Board considered creating exemptions for certain small entities. This was rejected as impractical, considering that an exemption for small entities would substantially undermine the purpose of the proposed rule because such a large percentage of employers and unions would be exempt under the SBA definitions. Moreover, as this rule often applies to relationships involving a small entity (such as a franchisee) and a large enterprise (such as a franchisor), exemptions for small businesses would decrease the application of the rule to larger businesses as well, potentially undermining the policy behind this rule. Additionally, given the very small quantifiable cost of compliance, it is possible that the burden on a small business of determining whether it fell within a particular exempt category might exceed the burden of compliance. Congress gave the Board very broad jurisdiction, with no suggestion that it wanted to limit coverage of any part of the Act to only larger employers.74 As the Supreme Court has noted, “[t]he [NLRA] is federal legislation, administered by a national agency, intended to solve a national problem on a national scale.” 75 As such, this alternative is contrary to the objectives of this rulemaking and of the NLRA.

    74 However, there are standards that prevent the Board from asserting authority over entities that fall below certain jurisdictional thresholds. This means that extremely small entities outside of the Board's jurisdiction will not be affected by the proposed rule. See CFR 104.204.

    75NLRB v. Nat. Gas Util. Dist. of Hawkins Cty., Tenn., 402 U.S. 600, 603-04 (1971) (quotation omitted).

    Neither of the alternatives considered accomplished the objectives of proposing this rule while minimizing costs on small businesses. Accordingly, the Board believes that proceeding with this rulemaking is the best regulatory course of action. The Board welcomes public comment on any facet of this IRFA, including issues that we have failed to consider.

    Paperwork Reduction Act

    The NLRB is an agency within the meaning of the Paperwork Reduction Act (PRA). 44 U.S.C. 3502(1) and (5). This Act creates rules for agencies when they solicit a “collection of information.” 44 U.S.C. 3507. The PRA defines “collection of information” as “the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format.” 44 U.S.C. 3502(3)(A). The PRA only applies when such collections are “conducted or sponsored by those agencies.” 5 CFR 1320.4(a).

    The proposed rule does not involve a collection of information within the meaning of the PRA; it instead clarifies the standard for determining joint-employer status. Outside of administrative proceedings (discussed below), the proposed rule does not require any entity to disclose information to the NLRB, other government agencies, third parties, or the public.

    The only circumstance in which the proposed rule could be construed to involve disclosures of information to the Agency, third parties, or the public is when an entity's status as a joint employer has been alleged in the course of Board administrative proceedings. However, the PRA provides that collections of information related to “an administrative action or investigation involving an agency against specific individuals or entities” are exempt from coverage. 44 U.S.C. 3518(c)(1)(B)(ii). A representation proceeding under section 9 of the NLRA as well as an investigation into an unfair labor practice under section 10 of the NLRA are administrative actions covered by this exemption. The Board's decisions in these proceedings are binding on and thereby alter the legal rights of the parties to the proceedings and thus are sufficiently “against” the specific parties to trigger this exemption.76

    76 Legislative history indicates Congress wrote this exception to broadly cover many types of administrative action, not just those involving “agency proceedings of a prosecutorial nature.” See S. REP. 96-930 at 56, as reprinted in 1980 U.S.C.C.A.N. 6241, 6296. For the reasons more fully explained by the Board in prior rulemaking, 79 FR 74307, 74468-69 (2015), representation proceedings, although not qualifying as adjudications governed by the Administrative Procedure Act, 5 U.S.C. 552b(c)(1), are nonetheless exempt from the PRA under 44 U.S.C. 3518(c)(1)(B)(ii).

    For the foregoing reasons, the proposed rule does not contain information collection requirements that require approval by the Office of Management and Budget under the PRA.

    Congressional Review Act

    The provisions of this rule are substantive. Therefore, the Board will submit this rule and required accompanying information to the Senate, the House of Representatives, and the Comptroller General as required by the Small Business Regulatory Enforcement Fairness Act (Congressional Review Act or CRA), 5 U.S.C. 801-808.

    This rule is a “major rule” as defined by Section 804(2) of the CRA because it will have an effect on the economy of more than $100 million, at least during the year it takes effect. 5 U.S.C. 804(2)(A).77 Accordingly, the rule will become effective no earlier than 60 days after publication of the final rule in the Federal Register.

    77 A rule is a “major rule” for CRA purposes if it will (A) have an annual effect on the economy of $100 million or more; (B) cause a major increase in costs or prices for consumers, individual industries, government agencies, or geographic regions; or (C) result in significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. 5 U.S.C. 804. The proposed rule is a “major rule” because, as explained in the discussion of the Regulatory Flexibility Act above, the Board has estimated that the average cost of compliance with the rule would be approximately $124.37 per affected employer and approximately $80.26 per union. Because there are some 5.9 million employers and 13,740 unions that could potentially be affected by the rule, the total cost to the economy of compliance with the rule will exceed $100 million ($733,783,000 + $1,102,772.4 = $734,885,772.4) in the first year after it is adopted. Since the costs of compliance are incurred in becoming familiar with the legal standard adopted in the proposed rule, the rule would impose no additional costs in subsequent years. Additionally, the Board is confident that the rule will have none of the effects enumerated in 5 U.S.C. 804(2)(B) and (C), above.

    List of Subjects in 29 CFR Part 103

    Colleges and universities, Health facilities, Joint-employer standard, Labor management relations, Military personnel, Music, Sports.

    Text of the Proposed Rule

    For the reasons discussed in the preamble, the Board proposes to amend 29 CFR part 103 as follows:

    PART 103—OTHER RULES 1. The authority citation for part 103 continues to read as follows: Authority:

    29 U.S.C. 156, in accordance with the procedure set forth in 5 U.S.C. 553.

    2. Add § 103.40 to read as follows:
    § 103.40: Joint employers.

    An employer, as defined by Section 2(2) of the National Labor Relations Act (the Act), may be considered a joint employer of a separate employer's employees only if the two employers share or codetermine the employees' essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees' essential terms and conditions of employment in a manner that is not limited and routine.

    Example 1 to § 103.40.

    Company A supplies labor to Company B. The business contract between Company A and Company B is a “cost plus” arrangement that establishes a maximum reimbursable labor expense while leaving Company A free to set the wages and benefits of its employees as it sees fit. Company B does not possess and has not exercised direct and immediate control over the employees' wage rates and benefits.

    Example 2 to § 103.40.

    Company A supplies labor to Company B. The business contract between Company A and Company B establishes the wage rate that Company A must pay to its employees, leaving A without discretion to depart from the contractual rate. Company B has possessed and exercised direct and immediate control over the employees' wage rates.

    Example 3 to § 103.40.

    Company A supplies line workers and first-line supervisors to Company B at B's manufacturing plant. On-site managers employed by Company B regularly complain to A's supervisors about defective products coming off the assembly line. In response to those complaints and to remedy the deficiencies, Company A's supervisors decide to reassign employees and switch the order in which several tasks are performed. Company B has not exercised direct and immediate control over Company A's lineworkers' essential terms and conditions of employment.

    Example 4 to § 103.40.

    Company A supplies line workers and first-line supervisors to Company B at B's manufacturing plant. Company B also employs supervisors on site who regularly require the Company A supervisors to relay detailed supervisory instructions regarding how employees are to perform their work. As required, Company A supervisors relay those instructions to the line workers. Company B possesses and exercises direct and immediate control over Company A's line workers. The fact that Company B conveys its supervisory commands through Company A's supervisors rather than directly to Company A's line workers fails to negate the direct and immediate supervisory control.

    Example 5 to § 103.40.

    Under the terms of a franchise agreement, Franchisor requires Franchisee to operate Franchisee's store between the hours of 6:00 a.m. and 11:00 p.m. Franchisor does not participate in individual scheduling assignments or preclude Franchisee from selecting shift durations. Franchisor has not exercised direct and immediate control over essential terms and conditions of employment of Franchisee's employees.

    Example 6 to § 103.40.

    Under the terms of a franchise agreement, Franchisor and Franchisee agree to the particular health insurance plan and 401(k) plan that the Franchisee must make available to its workers. Franchisor has exercised direct and immediate control over essential employment terms and conditions of Franchisee's employees.

    Example 7 to § 103.40.

    Temporary Staffing Agency supplies 8 nurses to Hospital to cover during temporary shortfall in staffing. Over time, Hospital hires other nurses as its own permanent employees. Each time Hospital hires its own permanent employee, it correspondingly requests fewer Agency-supplied temporary nurses. Hospital has not exercised direct and immediate control over temporary nurses' essential terms and conditions of employment.

    Example 8 to § 103.40.

    Temporary Staffing Agency supplies 8 nurses to Hospital to cover for temporary shortfall in staffing. Hospital manager reviewed resumes submitted by 12 candidates identified by Agency, participated in interviews of those candidates, and together with Agency manager selected for hire the best 8 candidates based on their experience and skills. Hospital has exercised direct and immediate control over temporary nurses' essential terms and conditions of employment.

    Example 9 to § 103.40.

    Manufacturing Company contracts with Independent Trucking Company (“ITC”) to haul products from its assembly plants to distribution facilities. Manufacturing Company is the only customer of ITC. Unionized drivers—who are employees of ITC—seek increased wages during collective bargaining with ITC. In response, ITC asserts that it is unable to increase drivers' wages based on its current contract with Manufacturing Company. Manufacturing Company refuses ITC's request to increase its contract payments. Manufacturing Company has not exercised direct and immediate control over the drivers' terms and conditions of employment.

    Example 10 to § 103.40.

    Business contract between Company and a Contractor reserves a right to Company to discipline the Contractor's employees for misconduct or poor performance. Company has never actually exercised its authority under this provision. Company has not exercised direct and immediate control over the Contractor's employees' terms and conditions of employment.

    Example 11 to § 103.40.

    Business contract between Company and Contractor reserves a right to Company to discipline the Contractor's employees for misconduct or poor performance. The business contract also permits either party to terminate the business contract at any time without cause. Company has never directly disciplined Contractor's employees. However, Company has with some frequency informed Contractor that particular employees have engaged in misconduct or performed poorly while suggesting that a prudent employer would certainly discipline those employees and remarking upon its rights under the business contract. The record indicates that, but for Company's input, Contractor would not have imposed discipline or would have imposed lesser discipline. Company has exercised direct and immediate control over Contractor's employees' essential terms and conditions.

    Example 12 to § 103.40.

    Business contract between Company and Contractor reserves a right to Company to discipline Contractor's employees for misconduct or poor performance. User has not exercised this authority with the following exception. Contractor's employee engages in serious misconduct on Company's property, committing severe sexual harassment of a coworker. Company informs Contractor that offending employee will no longer be permitted on its premises. Company has not exercised direct and immediate control over offending employee's terms and conditions of employment in a manner that is not limited and routine.

    Dated: September 10, 2018. Roxanne Rothschild, Deputy Executive Secretary.
    [FR Doc. 2018-19930 Filed 9-13-18; 8:45 am] BILLING CODE 7545-01-P
    83 179 Friday, September 14, 2018 Notices DEPARTMENT OF AGRICULTURE DEPARTMENT OF HEALTH AND HUMAN SERVICES Announcement of Intent To Establish the 2020 Dietary Guidelines Advisory Committee and Solicitation of Nominations for Membership AGENCY:

    U.S. Department of Agriculture (USDA), Food, Nutrition and Consumer Services (FNCS) and Research, Education and Economics (REE); and U.S. Department of Health and Human Services (HHS), Office of the Assistant Secretary for Health.

    ACTION:

    Notice; correction.

    SUMMARY:

    The Departments of Agriculture and Health and Human Services published a document in the Federal Register of September 6, 2018 concerning solicitation of nominations for membership on the 2020 Dietary Guidelines Advisory Committee. The document contained incorrect dates.

    FOR FURTHER INFORMATION CONTACT:

    Eve Stoody (telephone 703-305-7600), Center for Nutrition Policy and Promotion, 3101 Park Center Drive, Room 1034, Alexandria, Virginia 22302, or, Richard Olson (telephone 240-453-8280), Office of Disease Prevention and Health Promotion, 1101 Wootton Parkway, Suite LL100, Rockville, Maryland 20852. Additional information is available on the internet at www.dietaryguidelines.gov.

    SUPPLEMENTARY INFORMATION:

    Correction

    In the Federal Register of September 6, 2018, in FR Doc. 2018-19302, on page 45206, in the first column, correct the DATES caption to read:

    Nominations must be submitted by midnight Eastern Time on October 6, 2018.

    Dated: September 7, 2018. Donald Wright, Deputy Assistant Secretary for Health, Office of Disease Prevention and Health Promotion, Office of the Assistant Secretary for Health, U.S. Department of Health and Human Services. Dated: September 11, 2018. Jackie Haven, Deputy Director, Center for Nutrition Policy and Promotion, Food and Nutrition Service, U.S. Department of Agriculture.
    [FR Doc. 2018-20013 Filed 9-13-18; 8:45 am] BILLING CODE 3410-30-P
    DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities: Proposed Collection; Comment Request—Generic Clearance To Conduct Pre-Testing of Surveys AGENCY:

    Food and Nutrition Service (FNS), USDA.

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is an extension, without change, of a currently approved collection to conduct various procedures to test questionnaires and survey procedures to improve the quality and usability of information collection instruments.

    DATES:

    Written comments must be received on or before November 13, 2018.

    ADDRESSES:

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments may be sent to: Planning and Regulatory Affairs Office, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302. Comments will also be accepted through the Federal eRulemaking Portal. Go to http://www.regulations.gov, and follow the online instructions for submitting comments electronically.

    All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m. Monday through Friday) at 3101 Park Center Drive, Room 1014, Alexandria, Virginia 22302.

    All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of this information collection should be directed to either Rachelle Ragland-Greene at 703-305-2586, or the Planning and Regulatory Affairs Office at 703-305-2017.

    SUPPLEMENTARY INFORMATION:

    Title: Generic Clearance to Conduct Pre-Testing of Surveys.

    OMB Number: 0584-0606.

    Expiration Date: March 31, 2019.

    Type of Request: Extension of a currently approved information collection request, without change.

    Abstract: The Food and Nutrition Service (FNS) intends to request approval from the Office of Management and Budget (OMB) for a generic clearance that will allow FNS to conduct a variety of data-gathering activities aimed at improving the quality and usability of information collection instruments associated with research and analysis activities.

    The data-gathering activities utilized to this effect include but are not limited to experiments with levels of incentives for study participants, tests of various types of survey operations, focus groups, cognitive laboratory activities, pilot testing, exploratory interviews, experiments with questionnaire design, and usability testing of electronic data collection instruments. FNS envisions using a variety of techniques including field tests, respondent debriefing questionnaires, cognitive interviews, and focus groups in order to identify questionnaire and procedural problems, suggest solutions, and measure the relative effectiveness of alternative solutions.

    Following standard OMB requirements, FNS will submit a change request to OMB for each data collection activity undertaken under this generic clearance. FNS will provide OMB with the instruments and supporting materials describing the research project and specific pre-testing activities.

    Affected Public: The respondents will be identified at the time that each change request is submitted to OMB. Respondents will include State, Local and Tribal Government; Individual/Households; and/or Businesses.

    Estimated Number of Respondents: 2,200.

    Estimated Number of Responses per Respondent: 1.

    Estimated Total Annual Responses: 2,200.

    Estimated Time per Response: 0.682.

    Estimated Total Annual Burden on Respondents: 2,200.

    Respondent Estimated number of
  • respondents
  • Responses
  • annually per respondent
  • Total annual
  • responses
  • (col. bxc)
  • Estimated
  • average number
  • of hours per
  • response
  • Estimated
  • total hours (col. dxe)
  • Reporting Burden: Pretesting Respondents (State, Local and Tribal Government; Individual/Households; and/or Businesses) 2,200.00 1.00 2,200.00 0.682 1,500.00 Grand Total Burden Estimates for 3 years 6,600.00 4,500.00
    Dated: September 6, 2018. Brandon Lipps, Administrator, Food and Nutrition Service.
    [FR Doc. 2018-19910 Filed 9-13-18; 8:45 am] BILLING CODE 3410-30-P
    DEPARTMENT OF AGRICULTURE Forest Service Notice of New Fee Sites; Federal Lands Recreation Enhancement Act AGENCY:

    Coronado National Forest, USDA Forest Service, Tucson, Arizona.

    ACTION:

    Notice of new fee sites.

    SUMMARY:

    The Coronado National Forest is proposing new recreation fees at 13 day use sites at $8 a day or $40 for an annual pass, four campgrounds at $15 a day, and six group camping sites and one group picnic site at $50 a day, plus $10 per vehicle per day. Fees are assessed based on the level of amenities and services provided, cost of operations and maintenance, and market assessment. Fee revenue would be used for the continued operation and maintenance as well as improvements to the facilities within the recreation sites.

    DATES:

    New fees would be implemented no sooner than six months from publication of this notice.

    FOR FURTHER INFORMATION CONTACT:

    Joe Winfield at (520) 388-8422 or by email at [email protected]

    Information about the fee proposal can also be found on the Coronado National Forest website at: http://www.fs.usda.gov/goto/coronado/feereview.

    SUPPLEMENTARY INFORMATION:

    The Federal Lands Recreation Enhancement Act (Title VII, P.L. 108-447) directs the Secretary of Agriculture to publish a six month advance notice in the Federal Register whenever new recreation fee areas are established. Currently, about one-third of Coronado National Forest's developed recreation sites collect fees. This notice is part of a comprehensive fee proposal to restructure developed recreation on the Coronado National Forest. More information can be found at: http://www.fs.usda.gov/goto/coronado/feereview.

    The new proposed fee sites are:

    Day Use Sites: Bigelow Trailhead, Brown Canyon Ranch and Trailhead, Butterfly Trailhead, Carr Canyon Picnic Area, Gordon Hirabayashi Interpretive Site and trailhead, Herb Martyr Trailhead, Parker Canyon Lake Fishing and Boating Site (and nature trail), Pena Blanca Lake Fishing and Boating Site, Red Rock Picnic Area, Riggs Lake Fishing and Boating Site, Rucker Forest Camp Trailhead, Upper and Lower Thumb Rock Picnic Area, Whipple Picnic Area and Trailhead.

    Campgrounds: Herb Martyr, Noon Creek, Stockton Pass, Sycamore.

    Group Sites: Columbine Visitor Center Ramada, Gordon Hirabayashi Horse Camp, Stockton Pass, Twilight, Upper Arcadia, Treasure Park.

    This new fee proposal will be reviewed by the Bureau of Land Management—Arizona Recreation Resource Advisory Council prior to final decision and implementation.

    Dated: August 27, 2018. Chris French, Acting Deputy Chief, National Forest System.
    [FR Doc. 2018-19965 Filed 9-13-18; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Notice of New Fee Site; Federal Lands Recreation Enhancement Act AGENCY:

    Rogue River-Siskiyou National Forest, Forest Service, USDA.

    ACTION:

    Notice of new recreation fees.

    SUMMARY:

    The Rogue River-Siskiyou National Forest will be implementing new fees at four cabin/lookout rentals, six campgrounds, two group campsites, and nine day use sites. Fees are assessed based on the level of amenities and services provided, cost of operation and maintenance, market assessment, and public comment. Fee receipts will be used to improve customer services, operate and maintain facilities and to make needed improvements.

    A complete list of the site fees can be found at: https://www.fs.usda.gov/detail/rogue-siskiyou/home/?cid=FSEPRD571220.

    DATES:

    Implementation of the new fees will occur no sooner than 180 days from date of publication in the Federal Register.

    Public comment for these new fee proposals was completed on February 16, 2018. The Rogue-Umpqua Resource Advisory Committee and/or the Siskiyou Resource Advisory Board reviewed and offered recommendations on these new fees on April 4, 2018 and April 25, 2018 respectively. The Region 6 Regional Forester decided to move forward with these new fees on May 22, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Brian White, Recreation, Engineering, Lands, Heritage, and Minerals Staff Officer at 541-618-2061 or email [email protected]

    SUPPLEMENTARY INFORMATION:

    New fees will be implemented at the following sites:

    Campgrounds:

    Butler Bar, Eden Valley, Laird Lake, Little Redwood, Oak Flat/Gravel Bar, Sunshine Bar.

    Depending on the site, the new recreation fee will be $8 or $10 per night.

    Group Campsites:

    Six Mile and Winchuck. Group camping fees will be $50 per night.

    Cabins/lookouts:

    Ferris Ford Cabin, Store Gulch Guard Station, and Squaw Peak Lookout. Depending on the facility, the overnight fee will be $65 to $125. The pricing difference reflects variables such as the number of people who can use the sites, and whether electricity, running water and other amenities are provided.

    Day use areas/interpretive/picnic sites:

    Diver's Hole, Foster Bar, Lobster Creek, Quosatana, River Bench, Six Mile, Store Gulch, Union Wayside, Natural Bridge, and Rogue Gorge. These day use sites will be $5 per day. The Northwest Forest Pass and all America the Beautiful—the National Parks and Federal Recreational Lands passes will be honored at these sites.

    The Federal Recreation Lands Enhancement Act (Title VII, Pub. L. 108-447) directed the Secretary of Agriculture to publish a six month advance notice in the Federal Register whenever new recreation fee areas are established.

    Dated: September 6, 2018. Chris French, Acting Deputy Chief, National Forest System.
    [FR Doc. 2018-19966 Filed 9-13-18; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Information Collection; Understanding Value Trade-Offs Regarding Fire Hazard Reduction Programs in the Wildland-Urban Interface AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice; request for comment.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the renewal of a currently approved information collection, Understanding Value Trade-offs regarding Fire Hazard Reduction Programs in the Wildland-Urban Interface (OMB # 0596-0189), with a revision for the removal of in-depth phone interviews and minor changes in questionnaire.

    DATES:

    Comments must be received in writing on or before November 13, 2018 to be assured of consideration. Comments received after that date will be considered to the extent practicable.

    ADDRESSES:

    Comments concerning this notice should be addressed to José Sánchez, USDA Forest Service, Pacific Southwest Research Station, 4955 Canyon Crest Drive, Riverside, California 92507. Comments may also be submitted via facsimile to 951-680-1501, or by email to [email protected]

    The public may inspect comments received at the Pacific Southwest Research Station, during normal business hours. Visitors are encouraged to call ahead to facilitate entry to the building.

    FOR FURTHER INFORMATION CONTACT:

    José Sánchez, by phone at 951-680-1560. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 twenty-four hours a day, every day of the year, including holidays.

    SUPPLEMENTARY INFORMATION:

    Title: Understanding Value Trade-offs Regarding Fire Hazard Reduction Programs in the Wildland-Urban Interface.

    OMB Number: 0596-0189.

    Expiration Date of Approval: November 30, 2018.

    Type of Request: Renewal with revision.

    Abstract: Forest Service and university researchers will collect information from members of the public via a brief phone questionnaire followed by the respondent's choice of a mail questionnaire or an online questionnaire to help forest and fire managers understand value trade-offs regarding fire hazard reduction programs in the wildland-urban interface. Researchers will evaluate the responses of Arizona, Colorado, New Mexico, and Texas residents to different scenarios related to fire-hazard reduction programs, determine how effective residents think the programs are, and calculate how much residents would be willing to pay to implement the alternatives presented to them. This information will help researchers provide better information to natural resource, forest, and fire managers when they are contemplating the type of fire-hazard reduction program to implement to achieve forestland management planning objectives.

    A random sample of residents of Arizona, Colorado, New Mexico, and Texas will be contacted via random-digit dialed telephone calls and asked to participate in the research study. If they are willing to participate in the study, they will elect to receive an online or paper questionnaire and will provide the appropriate address. Though different forms, these questionnaires have the same set of questions. In this initial call, we will also ask those willing to participate a brief set of questions to determine pre-existing knowledge of fuels reduction treatments. After completion of the mail or online questionnaire, no further contact with the participants will occur. The in-depth phone interviews approved in the prior version of this information collection will be removed from the protocol in this renewal. Additionally, we anticipate adding several questions to the questionnaire on emerging issues, including how scenic quality impacts resident support for fire-hazard reduction programs.

    A university research-survey center will collect the information for the mail and online questionnaires. A Forest Service researcher and collaborators at a cooperating university will analyze the data collected. Researchers are experienced in applied economic non-market valuation research and survey research methods.

    The Forest Service, Bureau of Land Management, Bureau of Indian Affairs, National Park Service, Fish and Wildlife Service, as well as many state agencies with fire protection responsibilities will benefit from this information collection. At present, many of these agencies with fire protection responsibilities continue an ambitious and costly fuels reduction program for fire risk reduction and will benefit from public opinion on which treatments are most effective or desirable.

    Estimate of Annual Burden per Respondent: 40 minutes.

    Type of Respondents: Members of the public.

    Estimated Annual Number of Respondents: 1,675.

    Estimated Annual Number of Responses per Respondent: 1.

    Estimated Total Annual Burden on Respondents: 690 hours.

    Comment is Invited:

    Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the Agency, including whether the information will have practical or scientific utility; (2) the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request toward Office of Management and Budget approval.

    Dated: August 29, 2018. Carlos Rodriguez-Franco, Deputy Chief, Research & Development.
    [FR Doc. 2018-20046 Filed 9-13-18; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Bridger-Teton National Forest, Jackson Ranger District, Teton County, Wyoming; Snow King Mountain Resort On-Mountain Improvements Project Environmental Impact Statement AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice to reopen the public scoping period.

    SUMMARY:

    The USDA Forest Service, Bridger-Teton National Forest is issuing this notice to advise the public that the public scoping period for the preparation of an Environmental Impact Statement on the Snow King Mountain Resort On-mountain Improvements Project has been reopened.

    DATES:

    Comments concerning the scope of the analysis must be received by October 4, 2018.

    ADDRESSES:

    Send written comments to: Bridger-Teton National Forest—Jackson Ranger District, P.O. Box 1689, Jackson, WY 83001—attention District Ranger Mary Moore. Comments may be hand-delivered to 340 N. Cache St. between 8 a.m. and 4:30 p.m., Monday through Friday, excluding holidays. Comments may be sent via email to: [email protected], or via facsimile to 307-739-5010.

    FOR FURTHER INFORMATION CONTACT:

    Mary Moore, Jackson District Ranger, [email protected] or (307) 739-5410. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The original Notice of Intent for public comment on the Snow King Mountain Resort On-mountain Improvements Project was published in the Federal Register on August 3, 2018 (83 FR 38117), announcing a 30-day public scoping period. A corrected notice was published on August 14, 2018 (83 FR 40215), providing a correction to the contact information and clarifying the end date of the scoping period. Recognizing a 30-day comment period may be insufficient for comment preparation from all interested parties, the comment period is being extended until October 4, 2018. A detailed description of the proposed action, including maps, and additional information, is available at: http://www.fs.usda.gov/project/?project=54201.

    Dated: September 5, 2018. Allen Rowley, Acting Associate Deputy Chief, National Forest System.
    [FR Doc. 2018-20044 Filed 9-13-18; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Notice of Proposed New Fee Sites; Federal Lands Recreation Enhancement Act AGENCY:

    Monongahela National Forest, Forest Service, USDA.

    ACTION:

    Notice of proposed new fee sites.

    SUMMARY:

    The Monongahela National Forest is proposing to charge a reservation fee at the newly constructed Seneca Rocks Picnic Shelter of $75 per day plus a $10 service fee. Advance reservations for the shelter will be available through www.recreation.gov or by calling 1-877-444-6777. Use of the shelter during unreserved times will remain free of charge. The final fee price will be determined upon further analysis and public comment. An analysis of nearby shelters with similar amenities shows that the proposed fee is reasonable and typical of similar sites in the area. Funds from the fee would be used for the continued operation, maintenance, and improvements of this site.

    DATES:

    Comments will be accepted by September 30, 2018 so comments can be compiled, analyzed, and shared with the Eastern Region Recreation Resource Advisory Committee. The applicable date of implementation of the proposed new fee will be no earlier than six months after publication of this notice.

    ADDRESSES:

    Cheat-Potomac Ranger District, Attn: Alex Schlueter, 2499 North Fork Hwy., Petersburg, WV 26847.

    FOR FURTHER INFORMATION CONTACT:

    Alex Schlueter, North Zone Recreation Staff Officer, 304-257-4488 x7114. Information about proposed fee changes can also be found on the Monongahela National Forests' website: https://www.fs.usda.gov/mnf.

    SUPPLEMENTARY INFORMATION:

    The Federal Recreation Lands Enhancement Act (Title VII, Pub. L. 108-447) directed the Secretary of Agriculture to publish a six month advance notice in the Federal Register whenever new recreation fee areas are established.

    Once public involvement is complete, this new fee will be reviewed by the Eastern Region Recreation Resource Advisory Committee prior to a final decision and implementation.

    Dated: August 28, 2018. Chris French, Acting Deputy Chief, National Forest System.
    [FR Doc. 2018-19963 Filed 9-13-18; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Beaverhead-Deerlodge National Forest, Madison Ranger District; Montana; Strawberry to Cascade Allotment Management Plans AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of intent to prepare an environmental impact statement.

    SUMMARY:

    The U.S. Department of Agriculture, Forest Service will prepare an environmental impact statement (EIS) for the Strawberry to Cascade allotment management plans (AMPs). The proposed project would revise grazing management on the Barnett, Black Butte, Coal Creek, Cottonwood, Fossil-Hellroaring, Lyon-Wolverine, Poison Basin, and Upper Ruby allotments (sheep grazing portions) in the Gravelly Mountain Range on the Madison Ranger District of the Beaverhead-Deerlodge National Forest (B-D NF).

    DATES:

    Comments concerning the scope of the analysis must be received by October 15, 2018. The draft EIS is expected to be published March 2019 and the final EIS is expected to be published October 2019.

    ADDRESSES:

    Send written comments to Dale Olson, District Ranger, Madison Ranger District, 5 Forest Service Road, Ennis, MT 59729. Comments may also be sent via email to [email protected] or via facsimile to 406-682-4233. For all forms of comment, make sure to include your name, physical address, phone number, and a subject title of “Strawberry to Cascade AMPs.”

    FOR FURTHER INFORMATION CONTACT:

    Dale Olson, District Ranger, Madison Ranger District, 5 Forest Service Road, Ennis, MT 59729. Phone: 406-682-4253. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION: Purpose and Need for Action

    The purpose and need for this EIS is to revise grazing management, as necessary, on the Barnett, Black Butte, Coal Creek, Cottonwood, Fossil-Hellroaring, Lyon-Wolverine, Poison Basin, and Upper Ruby allotments sheep grazing portions to ensure consistency with all law, regulation and policy, including direction from the Rescissions Act of 1995 [Pub. L. 104-19]. Section 504(a) of the Rescissions Act; and, the 2004 Appropriations Act (P.L. 108-108) Section 325, require the Secretary of Agriculture to schedule when national forests will complete environmental analysis and documentation required under the National Environmental Policy Act for all grazing allotments.

    Proposed Action

    The proposed action would authorize domestic livestock (sheep) grazing on eight allotments and proposes no change to existing grazing management.

    Possible Alternatives

    A `no grazing' alternative will be analyzed in detail in addition to the proposed action.

    Responsible Official

    The responsible official will be the Madison District Ranger.

    Nature of Decision To Be Made

    The decision to be made is whether or not to implement the proposed action, another alternative, or a combination of the alternatives.

    Preliminary Issues

    Issues of concern are the effects of domestic sheep grazing on the wild Bighorn Sheep populations found on the B-D NF. There is concern that domestic sheep grazing is a disease transmission risk to the wild Bighorn sheep. Additional issues will be identified through scoping.

    Scoping Process

    This notice of intent initiates the scoping process, which guides the development of the environmental impact statement.

    It is important that reviewers provide their comments in a manner that are useful to the agency's preparation of the environmental impact statement. Comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.

    Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered.

    Dated: August 23, 2018. Chris French, Associate Deputy Chief, National Forest System.
    [FR Doc. 2018-20045 Filed 9-13-18; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Notice of Proposed New Fee Sites; Federal Lands Recreation Enhancement Act AGENCY:

    Huron-Manistee National Forests, USDA Forest Service.

    ACTION:

    Notice of proposed new fee sites.

    SUMMARY:

    The Huron-Manistee National Forests proposes to charge fees at several campsites and special recreation areas. Fees range from $5 per day to $60 per day based on the level of amenities and services provided, cost of operations and maintenance, and market assessment. A new day use fee of $5 per vehicle is proposed for Iargo Springs Interpretive Site, McKinley Horse Trailhead, Luzerne Horse Trailhead, and Eagle Run Cross Country Ski Trailhead. New camping fees of $10 per night are proposed for Red Bridge Access, Sulak Recreation Area, McKinley Horse Trail Campsites, Buttercup Backcountry Campsites, Cathedral Pines Backcountry Group Campsite, Meadow Springs Backcountry Campsites, Bear Island Backcountry Campsites, River Dune Backcountry Campsites, Luzerne Horse Trail Campground, and Government Landing Access Campsites. New group campground fees of $45 per night are proposed for the group sites at AuSable Loop Recreation Area Campground, Mack Lake ORV Campground, Kneff Lake Recreation Area, and Gabions Campground.

    New group campground fee of $60 per night is proposed for the group sites at McKinley Horse Trail Campground, Luzerne Horse Trail Campground, and River Road Horse Trail Camp.

    Fees will be determined upon further analysis and public comment. An analysis of nearby campsites with similar amenities shows that the proposed fees are reasonable and typical of similar sites in the area. Funds from fees would be used for the continued operation and maintenance and improvements of these sites.

    DATES:

    Comments will be accepted through September 28, 2018. New fees would begin May 2019, if approved.

    ADDRESSES:

    Leslie M. Auriemmo, Forest Supervisor, Huron-Manistee National Forests, 1755 South Mitchell Street, Cadillac, MI 49601.

    FOR FURTHER INFORMATION CONTACT:

    Kristen Thrall, Recreation Program Manager, 231-775-2421. Information about proposed fee changes can also be found on the Huron-Manistee National Forests' website: http://www.fs.usda.gov/hmnf/.

    SUPPLEMENTARY INFORMATION:

    The Federal Recreation Lands Enhancement Act (Title VII, Pub. L. 108-447) directed the Secretary of Agriculture to publish a six-month advance notice in the Federal Register whenever new recreation fee areas are established.

    Once public involvement is complete, these new fees will be reviewed by a Recreation Resource Advisory Committee prior to a final decision and implementation.

    Dated: August 28, 2018. Chris French, Acting Deputy Chief, National Forest System.
    [FR Doc. 2018-19964 Filed 9-13-18; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Natural Resources Conservation Service [Docket No. NRCS-2018-0006] Notice of Recommended Standard Methods for Use as Soil Health Indicator Measurements AGENCY:

    Natural Resources Conservation Service (NRCS), U.S. Department of Agriculture (USDA).

    ACTION:

    Notice of availability of proposed technical note “Recommended Soil Health Indicators and Associated Laboratory Procedures” for public review and comment.

    SUMMARY:

    Notice is hereby given of the intention of NRCS to issue a technical note on a group of recommended standard methods for soil health indicators selected by a collaborative multi-organizational effort, as described in the document. USDA/NRCS and partner efforts to assess soil health problems and impacts of management nationally, as part of conservation planning and implementation, will be facilitated if soil health indicators are measured using a standard set of methods. Soil health is defined as the capacity of the soil to function as a vital living ecosystem to sustain plants, animals, and humans. Six key soil physical and biological processes were identified that must function well in a healthy soil, and therefore would especially benefit from measurement methods standardization: (1) Organic matter dynamics and carbon sequestration, (2) soil structural stability, (3) general microbial activity, (4) C food source, (5) bioavailable N, and (6) microbial community diversity. The chosen methods met several criteria including indicator effectiveness with respect to management sensitivity and process interpretability, ease of use, cost effectiveness, measurement repeatability, and ability to be used for agricultural management decisions. The soil health indicator methods included are soil organic carbon (dry combustion), water-stable aggregation (Mikha and Rice, 2004), short-term mineralizable carbon (Schindelbeck et al., 2016), four enzymes: β-glucosidase (Deng and Popova, 2011), N-acetyl-β-D-glucosaminidase (Deng and Popova, 2011), acid or alkaline phosphatase (Acosta-Martínez and Tabatabai, 2011), and arylsulfatase (Klose et al., 2011), permanganate oxidizable carbon (Schindelbeck et al. 2016), autoclaved citrate extractable (ACE) protein (Schindelbeck et al. 2016), and phospholipid fatty acid analysis (Buyer and Sasser 2012). Standard operating procedures to be used in laboratories have been provided in the appendices.

    DATES:

    Applicable Date: This is Applicable September 14, 2018.

    Comment Date: Submit comments on or before December 13, 2018. A final version of this technical note will be published after the close of the 90-day period and after consideration of all comments.

    ADDRESSES:

    Obtaining Documents: You may download the draft Technical Note at https://go.usa.gov/xUFJE.

    Comments should be submitted, identified by Docket Number NRCS-2018-0006, using any of the following methods:

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

    Mail or hand-delivery: Public Comments Processing, Attention: Regulatory and Agency Policy Team, Strategic Planning and Accountability, Natural Resources Conservation Service, 5601 Sunnyside Avenue, Building 1-1112D, Beltsville, Maryland 20705.

    NRCS will post all comments on http://www.regulations.gov. In general, personal information provided with comments will be posted. If your comment includes your address, phone number, email, or other personal identifying information (PII), your comments, including PII, may be available to the public. You may ask in your comment that your PII be withheld from public view, but this cannot be guaranteed.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Diane Stott, National Soil Health Specialist, Soil Health Division, U.S. Department of Agriculture, Natural Resources Conservation Service, 915 W State Street, West Lafayette, IN 47907, [email protected]

    Electronic copies can be downloaded or printed from https://go.usa.gov/xUFJE.

    Requests for paper versions may be directed to: Public Comments Processing, Attention: Regulatory and Agency Policy Team, Strategic Planning and Accountability, Natural Resources Conservation Service, 5601 Sunnyside Avenue, Building 1-1112D, Beltsville, Maryland 20705.

    Signed this 28th day of August 2018, in Washington, DC. Leonard Jordan, Acting Chief, Natural Resources Conservation Service.
    [FR Doc. 2018-19985 Filed 9-13-18; 8:45 am] BILLING CODE 3410-16-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security Proposed Information Collection; Comment Request; License Transfer and Duplicate License Services AGENCY:

    Bureau of Industry and Security (BIS), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    To ensure consideration, written comments must be submitted on or before November 13, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, 1401 Constitution Avenue NW, Room 6616, Washington, DC 20230 (or via the internet at [email protected])

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Mark Crace, BIS ICB Liaison, (202) 482-8093 or at [email protected]

    SUPPLEMENTARY INFORMATION: I. Abstract

    The collection is necessary under Section 750.9 of the Export Administration Regulation (EAR) which outlines the process for obtaining a duplicate license when a license is lost or destroyed. Section 750.10 of the EAR explains the procedure for transfer of ownership of validated export licenses. Both activities are services provided after the license approval process. The supporting statement will use the terms “transfer” and “duplicate” to distinguish the unique activities of each. When no distinction is made, the response supports both activities.

    II. Method of Collection

    Transfer: When a request to transfer a license or licenses is received, BIS reviews the proposed transfer, and if approved, submits a validated letter authorizing the transfer of ownership.

    Duplicate: When a request for a duplicate license is received, the original license is found in BIS's Export Control Automated Support System (ECASS) and the duplicate is then issued by ECASS. The request for a duplicate license is a written submission; the output is electronic.

    III. Data

    OMB Control Number: 0694-0126.

    Form Number(s): N/A.

    Type of Review: Regular submission.

    Affected Public: Private Sector.

    Estimated Number of Respondents: 110.

    Estimated Time per Response: 1 to 30 minutes.

    Estimated Total Annual Burden Hours: 31.

    Estimated Total Annual Cost to Public: $0. (This is not the cost of respondents' time, but the indirect costs respondents may incur for such things as purchases of specialized software or hardware needed to report, or expenditures for accounting or records maintenance services required specifically by the collection.)

    Respondent's Obligation: Voluntary.

    Legal Authority: Export Administration Act of 1979, Section 15(b) of the EAR, Section 750.9 and 750.10 of the EAR.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-19956 Filed 9-13-18; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-552-802] Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam: Final Results of Antidumping Duty Administrative Review, 2016-2017 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) determines that Fimex VN sold certain frozen warmwater shrimp from the Socialist Republic of Vietnam (Vietnam) at less than normal value (NV) during the period of review (POR), February 1, 2016, through January 31, 2017.

    DATES:

    Applicable September 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Irene Gorelik or Josh Simonidis, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6905 or (202) 482-0608, respectively.

    SUPPLEMENTARY INFORMATION:

    On March 12, 2018, Commerce published the Preliminary Results.1 On August 9, 2018, we invited interested parties to comment on the Preliminary Results.2 For events since the Preliminary Results, see Issues and Decision Memorandum.3

    1See Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2016-2017, 83 FR 10673 (March 12, 2018) (Preliminary Results) and accompanying Preliminary Decision Memorandum.

    2See Memorandum re: “Case and Rebuttal Brief Schedule,” dated August 9, 2018.

    3See Memorandum re: “Issues and Decision Memorandum for the Final Results” (Issues and Decision Memorandum), dated concurrently with, and hereby adopted by, this notice.

    Scope of the Order 4

    4See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, 70 FR 5152 (February 1, 2005) (Order).

    The merchandise subject to the Order is certain frozen warmwater shrimp. The product is currently classified under the following Harmonized Tariff Schedule of the United States item numbers: 0306.17.00.03, 0306.17.00.06, 0306.17.00.09, 0306.17.00.12, 0306.17.00.15, 0306.17.00.18, 0306.17.00.21, 0306.17.00.24, 0306.17.00.27, 0306.17.00.40, 1605.21.10.30, and 1605.29.10.10. The written description of the scope of the Order is dispositive. A full description of the scope of the Order is available in the accompanying Issues and Decision Memorandum.

    Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties to this review are addressed in the accompanying Issues and Decision Memorandum. A list of the issues which parties raised, and to which we respond in the Issues and Decision Memorandum is attached at Appendix I. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov and in the Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the internet at http://enforcement.trade.gov/frn/index.html. The signed Issues and Decision Memorandum and the electronic version of the Issues and Decision Memorandum are identical in content.

    Final Determination of No Shipments

    In the Preliminary Results, Commerce determined that the following companies, as initiated, did not have any reviewable transactions during the POR: (1) Au Vung One Seafood Processing Import & Export Joint Stock Company; (2) Bien Dong Seafood Co., Ltd.; (3) BIM Seafood Joint Stock Company; (4) Cafatex Corporation and its claimed aka names (a) Taydo Seafood Enterprise and (b) Xi Nghiep Che Bien Thuy Sue San Xuat Cantho; (5) Cam Ranh Seafoods; (6) Ngo Bros, also initiated as, Ngo Bros Seaproducts Import-Export One Member Company Limited, and NGO BROS Seaproducts Import-Export One Member Company Limited; (7) Quang Minh Seafood Co., Ltd., also initiated as Quang Minh Seafood Co LTD; (8) Tacvan Frozen Seafood Processing Export Company, also initiated as Tacvan Seafoods Company, Tacvan Seafoods Company (“TACVAN”), and Tacvan Seafoods Company (TACVAN); (9) Thong Thuan Seafood Company Limited; (10) Trong Nhan Seafood Company Limited, also initiated as Trong Nhan Seafood Co., Ltd. (“Trong Nhan”); and (11) Vinh Hoan Corp. As we have not received any information to contradict this preliminary determination, we determine for these final results that the above-named companies did not have any reviewable entries of subject merchandise during the POR and will issue appropriate instructions that are consistent with our “automatic assessment” clarification.5

    5See Non-Market Economy Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 65694 (October 24, 2011) (Assessment of AD Duties).

    Changes Since the Preliminary Results

    Commerce made changes to Fimex VN's preliminary dumping margin based on verification findings. For detailed information, see the Issues and Decision Memorandum.

    Final Results of Review

    In the Preliminary Results, Commerce found that 30 companies for which a review was requested had not established eligibility for a separate rate and were considered to be part of the Vietnam-wide entity.6 We continue to find, for the final results, that these 30 companies are ineligible for a separate rate (see Appendix II). Commerce's change in policy regarding conditional review of the Vietnam-wide entity applies to this administrative review.7 Under this policy, the Vietnam-wide entity will not be under review unless a party specifically requests, or Commerce self-initiates, a review of the entity. Because no party requested a review of the Vietnam-wide entity, the entity is not under review and the entity's rate is not subject to change. For companies for which a review was requested and that have established eligibility for a separate rate, Commerce determines that the following weighted-average dumping margins exist:

    6See Appendix II for a full list of the 30 companies (accounting for duplicate names initiated upon); see also Preliminary Results at Appendix II.

    7See Antidumping Proceedings: Announcement of Change in Department Practice for Respondent Selection in Antidumping Duty Proceedings and Conditional Review of the Nonmarket Economy Entity in NME Antidumping Duty Proceedings, 78 FR 65963 (November 4, 2013).

    Exporter 8 Weighted-
  • average
  • margin
  • (percent)
  • Fimex VN 4.58 Au Vung Two Seafood Processing Import & Export Joint Stock Company, aka AU VUNG TWO SEAFOOD 4.58 Bac Lieu Fisheries Joint Stock Company 4.58 Bentre Forestry and Aquaproduct Import-Export Joint Stock Company, aka FAQUIMEX 4.58 C.P. Vietnam Corporation 4.58 Cadovimex Seafood Import-Export and Processing Joint Stock Company 4.58 Camau Frozen Seafood Processing Import Export Corporation, aka Camimex 4.58 Camau Seafood Processing and Service Joint Stock Corporation, aka Camau Seafood Processing and Service Joint-Stock Corporation, aka CASES 4.58 Can Tho Import Export Fishery Limited Company, aka CAFISH 4.58 Cuulong Seaproducts Company, aka Cuulong Seapro 4.58 Fine Foods Co, aka FFC 4.58 Green Farms Seafood Joint Stock Company 4.58 Hai Viet Corporation, aka HAVICO 4.58 Investment Commerce Fisheries Corporation 4.58 Khanh Sung Company, Ltd 4.58 Kim Anh Company Limited 4.58 Minh Hai Export Frozen Seafood Processing Joint-Stock Company, aka Minh Hai Jostoco 4.58 Minh Hai Joint-Stock Seafoods Processing Company, aka Sea Minh Hai, aka Seaprodex Minh Hai, aka Minh Hai Joint Stock Seafoods 4.58 Ngoc Tri Seafood Joint Stock Company 4.58 Nha Trang Seaproduct Company, aka NT Seafoods Corporation, aka Nha Trang Seafoods-F89 Joint Stock Company, aka NTSF Seafoods Joint Stock Company 4.58 Phuong Nam Foodstuff Corp 4.58 Seaprimexco Vietnam, aka Seaprimexco 4.58 Taika Seafood Corporation 4.58 Tan Phong Phu Seafood Co., Ltd 4.58 Thanh Doan Sea Products Import & Export Processing Joint-Stock Company, aka THADIMEXCO 4.58 Thong Thuan-Cam Ranh Seafood Joint Stock Company 4.58 Thong Thuan Company Limited 4.58 Thuan Phuoc Seafoods and Trading Corporation 4.58 Trung Son Seafood Processing Joint Stock Company, aka Trung Son Seafood Processing JSC 4.58 UTXI Aquatic Products Processing Corporation 4.58 Viet Foods Co., Ltd 4.58 Vietnam Clean Seafood Corporation, aka Vina Cleanfood, aka Viet Nam Clean Seafood Corporation 4.58 Vietnam Fish One Co., Ltd 4.58
    Rate for Non-Selected Companies

    Under section 735(c)(5)(A) of the Tariff Act of 1930, as amended (Act), the all-others rate is normally an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and de minimis margins, and any margins determined entirely on the basis of facts available. Accordingly, under Commerce's practice, in an administrative review of a nonmarket economy antidumping order, when only one weighted-average dumping margin for an individually investigated respondent is above de minimis and not based entirely on facts available, the separate rate will be equal to that single, above de minimis rate. In these final results, Commerce calculated a rate for Fimex VN that is not zero, de minimis, or based entirely on facts available. Therefore, Commerce has assigned to the companies that have not been individually examined but have demonstrated their eligibility for a separate rate a margin of 4.58 percent, which is the final dumping margin calculated for Fimex VN.

    8 Due to the issues we have had in the past with variations of exporter names related to this Order, we remind exporters that the names listed below are the exact names, including spelling and punctuation, which Commerce will provide to CBP and which CBP will use to assess POR entries and collect cash deposits.

    Disclosure and Public Comment

    We will disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding in accordance with 19 CFR 351.224(b).

    Assessment Rates

    Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b), Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. Commerce intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review.

    For Fimex VN, Commerce will calculate importer-specific assessment rates on the basis of the ratio of the total amount of dumping calculated for the importer's examined sales and the total entered value of sales. Where we do not have entered values for all U.S. sales to a particular importer/customer, we will calculate a per-unit assessment rate by aggregating the antidumping duties due for all U.S. sales to that importer (or customer) and dividing this amount by the total quantity sold to that importer (or customer).9 To determine whether the duty assessment rates are de minimis, in accordance with the requirement set forth in 19 CFR 351.106(c)(2), we will calculate importer- (or customer-) specific ad valorem ratios based on the estimated entered value. Where either a respondent's weighted average dumping margin is zero or de minimis, or an importer- (or customer-) specific ad valorem rate is zero or de minimis, we will instruct CBP to liquidate appropriate entries without regard to antidumping duties.10

    9See 19 CFR 351.212(b)(1).

    10See 19 CFR 352.106(c)(2); Antidumping Proceeding: Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain Antidumping Proceedings; Final Modification, 77 FR 8101, 8103 (February 14, 2012) (Final Modification for Reviews).

    For the companies receiving a separate rate, we intend to assign an ad valorem assessment rate of 4.58 percent, consistent with the methodology described above. With regard to the companies identified in Appendix II as part of the Vietnam-Wide Entity, we will instruct CBP to apply an ad valorem assessment rate of 25.76 percent to all entries of subject merchandise during the POR which were produced and/or exported by those companies.11

    11See Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic of Vietnam, 69 FR 71005 (December 8, 2004).

    Additionally, consistent with its assessment practice in non-market economy (NME) cases, for any exporter under review which Commerce determined had no shipments of the subject merchandise during the POR, any suspended entries that entered under that exporter's case number (i.e., at that exporter's rate) will be liquidated at the NME-wide rate.12

    12 For a full discussion of this practice, see Assessment of AD Duties, 76 FR at 65694-65695.

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from Vietnam entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(2)(C) of the Act: (1) For the companies listed above, which have a separate rate, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or de minimis, then zero cash deposit will be required); (2) for previously investigated or reviewed Vietnamese and non-Vietnamese exporters not listed above that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the existing exporter-specific rate; (3) for all Vietnamese exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be that for the Vietnam-wide entity; and (4) for all non-Vietnamese exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the Vietnamese exporter that supplied that non-Vietnamese exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

    Reimbursement of Duties

    This notice also serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

    Administrative Protective Orders

    This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

    This determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, 19 CFR 351.213(h) and 19 CFR 351.221(b)(5).

    Dated: September 7, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix I—List of Issues Discussed in the Final Decision Memorandum I. Summary II. Background III. Scope of the Order IV. Discussion of the Issues Comment 1: Fresh Shrimp Surrogate Value Comment 2: Fimex VN Shrimp Input Conversion Comment 3: Separate Rate Status for Trade Names A. Thuan Phuoc Seafoods and Trading Corporation B. Seaprodex Minh Hai C. Camau Frozen Seafood Processing Import Export Corporation D. Can Tho Import Export Fishery Limited Company E. Minh Hai Export Frozen Seafood Processing Joint-Stock Company F. Fine Foods Co. G. Bentre Forestry and Aquaproduct Import-Export Joint Stock Company H. UTXI Aquatic Products Processing Corporation I. Abbreviated Names for Other Companies V. Recommendation Appendix II—Companies Subject to Review Determined To Be Part of the Vietnam-Wide Entity 1. Amanda Seafood Co., Ltd. 2. Asia Food Stuffs Import Export Co., Ltd. 3. Binh Thuan Import-Export Joint Stock Company (THAIMEX) 4. B.O.P. Limited Co. 5. Coastal Fisheries Development Corporation (“COFIDEC”) 6. CJ Freshway (FIDES Food System Co., Ltd.) 7. Dong Hai Seafood Limited Company 8. Duc Cuong Seafood Trading Co., Ltd. 9. Frozen Seafoods Factory No. 32 (Tho Quang Seafood Processing and Export Company) 10. Gallant Dachan Seafood Co., Ltd. 11. Gallant Ocean (Vietnam) Co. Ltd., also initiated under Gallant Ocean (Viet Nam) Co., Ltd. (“Gallant Ocean Vietnam”) 12. Hanh An Trading Service Co., Ltd. 13. Hoang Phuong Seafood Factory 14. Huynh Huong Seafood Processing 15. JK Fish Co., Ltd. 16. Khai Minh Trading Investment Corporation 17. Long Toan Frozen Aquatic Products Joint Stock Company 18. Minh Cuong Seafood Import-Export Processing (“MC Seafood”) 19. Minh Phu Seafood Corporation 20. Nam Hai Foodstuff and Export Company Ltd 21. New Wind Seafood Co., Ltd. 22. Nha Trang Fisheries Joint Stock Company (“Nha Trang Fisco”), also initiated under Nha Trang Fisheries Joint Stock Company 23. Nhat Duc Co., Ltd. 24. Phu Cuong Jostoco Seafood Corporation 25. Quoc Ai Seafood Processing Import Export Co., Ltd. 26. Saigon Food Joint Stock Company 27. Tan Thanh Loi Frozen Food Co., Ltd. 28. Thinh Hung Co., Ltd. 29. Trang Khan Seafood Co., Ltd. 30. Xi Nghiep Che Bien Thuy Suc San Xuat Kau Cantho
    [FR Doc. 2018-20030 Filed 9-13-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG483 Mid-Atlantic Fishery Management Council (MAFMC); Public Meetings AGENCY:

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

    ACTION:

    Notice of public meetings.

    SUMMARY:

    The Mid-Atlantic Fishery Management Council (Council) will hold public meetings of the Council and its Committees.

    DATES:

    The meetings will be held Monday, October 1, 2018 through Thursday, October 4, 2018. For agenda details, see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    The meeting will be held at the Congress Hall, 200 Congress Place, Cape May, NJ 08204, telephone: (609) 884-8421.

    Council address: Mid-Atlantic Fishery Management Council, 800 N. State St., Suite 201, Dover, DE 19901; telephone: (302) 674-2331.

    FOR FURTHER INFORMATION CONTACT:

    Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 526-5255. The Council's website, www.mafmc.org also has details on the meeting location, proposed agenda, webinar listen-in access, and briefing materials.

    SUPPLEMENTARY INFORMATION:

    The following items are on the agenda; though agenda items may be addressed out of order (changes will be noted on the Council's website when possible.)

    Monday, October 1, 2018 Executive Committee

    Review 2018 and proposed 2019 implementation plans and develop recommendations for 2019 priorities.

    Tuesday, October 2, 2018 Spiny Dogfish Specifications

    Develop and approve 2019-21 specifications.

    Annual Update on GARFO/NEFSC Fishery Dependent Data Initiative Project (FDDI)

    FDDI overview, update, potential expansion, and enhancement of electronic vessel trip reporting.

    Ecosystem Approach to Fisheries Management Risk Assessment

    Review of Ecosystems and Ocean Planning Committee (EOP) meeting and recommendations; identify high-risk priorities and determine next steps; overview of EOP Committee comments on draft Northeast Regional Ecosystems-Based Fishery Management Implementation Plan.

    Risk Policy Framework

    Update on summer flounder economic Risk Policy analysis and discuss next steps on Risk Policy Framework.

    2020-24 Strategic Plan

    Discuss timeline and approach.

    Wednesday, October 3, 2018 Squids and Butterfish Specifications

    Review 2019-20 specifications and adopt modifications if needed.

    Industry Funded Monitoring Amendment

    Review history, pilot electronic monitoring results, and New England actions and discuss next steps.

    Illex Amendment

    Review and approve scoping document.

    Chub Mackerel Amendment

    Review Fishery Management Action Team, Advisory Panel, and Committee recommendations for range of alternatives, review, and approve public hearing document.

    Thursday, October 4, 2018 South East Regional Office (SERO) Party/Charter Reporting Requirement

    Presentation on pending electronic reporting requirements for vessels with for-hire South Atlantic federal permits.

    HMS Permits and Law Enforcement Issues

    Discuss how permits are issued with respect to USCG safety regulations and law enforcement responsibilities of the USCG and NOAA.

    Business Session

    Committee Reports (SSC); Executive Director's Report (Summer Flounder, Scup, and Black Sea Bass Framework and addendum on conservation equivalency, Block Island Sound transit, and slot limits and review and approve modification to alternatives); Organization Reports; and, Liaison Reports.

    Continuing and New Business

    Although non-emergency issues not contained in this agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during these meetings. Actions will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.

    Dated: September 11, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-20028 Filed 9-13-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG480-X Gulf of Mexico Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The Gulf of Mexico Fishery Management Council will hold a two-day meeting of its Standing, Reef Fish and Socioeconomic Scientific and Statistical Committees (SSC).

    DATES:

    The meeting will convene on Tuesday, October 2, 2018, from 8:30 a.m. to 5:15 p.m. and Wednesday, October 3, 2018, from 8:30 a.m. to 12:15 p.m. EDT.

    ADDRESSES:

    The meeting will be held at the Gulf Council's new office, located at 4107 W Spruce Street, Suite 200, Tampa, FL 33607.

    Council address: Gulf of Mexico Fishery Management Council, 4107 W Spruce Street, Suite 200, Tampa, FL 33607; telephone: (813) 348-1630.

    FOR FURTHER INFORMATION CONTACT:

    Dr. John Froeschke, Deputy Director, Gulf of Mexico Fishery Management Council; [email protected]; telephone: (813) 348-1630.

    SUPPLEMENTARY INFORMATION: Tuesday, October 2, 2018: 8:30 a.m.-5:15 p.m. I. Introductions and Adoption of Agenda II. Election of Chair and Vice-Chair III. Approval of August 2, 2018 SSC Minutes IV. Selection of SSC representative at October 22-25, 2018 Council meeting in Mobile, AL V. Discussion of “Best Scientific Information Available” a. Presentation—NMFS b. Presentation—SSC VI. Update on Red Grouper Interim Analysis VII. Briefing on Marine Recreation Information Program (MRIP) Transition to Improved Survey Designs VIII. Presentation: The Great Red Snapper Count IX. Summary of the SEDAR Steering Committee Meeting X. Discussion on “right-sizing” Stock Assessments XI. Review Gulf SEDAR Stock Assessment Schedule 2021 Wednesday, October 3, 2018: 8:30 a.m.-12:15 p.m. XII. Gulf of Mexico Allocation Review Triggers XIII. Specify the Terms of Reference (TORs) for the 2020 Operational Assessments for Gag and Greater Amberjack XIV. Discussion on Gulf Council Fishery Monitoring and Research Priorities for 2020-25 XV. Discussion of “Something's Fishy” Red Grouper Questionnaire XVI. Other Business —Meeting Adjourns

    The meeting will be broadcast via webinar. You may register for the webinar by visiting www.gulfcouncil.org and clicking on the SSC meeting on the calendar.

    The Agenda is subject to change, and the latest version along with other meeting materials will be posted on www.gulfcouncil.org as they become available.

    Although other non-emergency issues not on the agenda may come before the Scientific and Statistical Committee for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Scientific and Statistical Committee will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Gulf Council Office (see ADDRESSES), at least 5 working days prior to the meeting.

    Dated: September 11, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-20026 Filed 9-13-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG481 North Pacific Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of public meetings of the North Pacific Fishery Management Council and its advisory committees.

    SUMMARY:

    The North Pacific Fishery Management Council (Council) and its advisory committees will meet October 1, 2018 through October 9, 2018.

    DATES:

    The Council will begin its plenary session at 8 a.m. in the Aleutian Room on Wednesday, October 3, 2018 continuing through Tuesday, October 9, 2018. The Scientific and Statistical Committee (SSC) will begin at 8 a.m. in the King Salmon/Iliamna Room on Monday, October 1, 2018 and continue through Wednesday, October 3, 2018. The Council's Advisory Panel (AP) will begin at 8 a.m. in the Dillingham/Katmai Room on Tuesday, October 2, 2018 and continue through Friday, October 5, 2018. The Ecosystem Committee will meet on Tuesday, October 2, 2018 in the Birch/Willow room from 1 p.m. to 5 p.m.

    ADDRESSES:

    The meeting will be held at the Anchorage Hilton Hotel, 500 W 3rd Ave., Anchorage, AK 99501.

    Council address: North Pacific Fishery Management Council, 605 W 4th Ave., Suite 306, Anchorage, AK 99501-2252; telephone (907) 271-2809.

    FOR FURTHER INFORMATION CONTACT:

    Diana Evans, Council staff; telephone: (907) 271-2809.

    SUPPLEMENTARY INFORMATION: Agenda Monday, October 1, 2018 through Tuesday, October 9, 2018

    Council Plenary Session: The agenda for the Council's plenary session will include the following issues. The Council may take appropriate action on any of the issues identified.

    1. Executive Director's Report (including report on ideas for public forums, SSC survey workgroup report) 2. NMFS Management Report (including report on ACLIM and the IPCC climate meeting (T)) 3. NOAA GC Report 4. ADF&G Report 5. USCG Report 6. USFWS Report 7. Protected Species Report 8. Halibut Decksorting EFP—Report on 2018 9. BSAI Crab Specifications for 4 stocks—Final Specifications, PT report 10. Groundfish Harvest Specifications—Proposed Specifications, PT reports 11. 2019 Observer Program Annual Deployment Plan—Review; FMAC, EMC Reports 12. Halibut retention in BSAI pots—Final action 13. Bering Sea Fishery Ecosystem Plan—Initial Review 14. BSAI Halibut Abundance-based Management PSC Limits—Preliminary Review 15. AI Pacific cod set aside adjustment—Initial Review 16. IFQ medical lease, beneficiary designation provisions—Initial Review 17. IFQ CQE fish up in 3A—Discussion paper 18. Small sablefish retention—Discussion paper 19. Unguided halibut rental boats—Discussion paper

    The Advisory Panel will address Council agenda items (9) through (19). The SSC agenda will include the following issues:

    1. SSC survey workgroup report 2. BSAI Crab Specifications for 4 stocks—Final Specifications, PT report 3. Groundfish Harvest Specifications—Proposed Specifications, PT reports 4. 2019 Observer Program Annual Deployment Plan—Review 5. BSAI Halibut Abundance-based Management PSC Limits—Preliminary Review 6. Bering Sea Fishery Ecosystem Plan—Initial Review 7. AI Pacific cod set aside adjustment—Initial Review 8. IFQ medical lease, beneficiary designation provisions—Initial Review

    The Ecosystem Committee agenda will include review of the Bering Sea Fishery Ecosystem Plan, NOAA Ecosystem-Based Fisheries Management Implementation Plan, and other business.

    In addition to providing ongoing scientific advice for fishery management decisions, the SSC functions as the Council's primary peer review panel for scientific information, as described by the Magnuson-Stevens Act section 302(g)(1)(e), and the National Standard 2 guidelines (78 FR 43066). The peer review process is also deemed to satisfy the requirements of the Information Quality Act, including the OMB Peer Review Bulletin guidelines.

    The Agendas are subject to change, and the latest versions will be posted at http://www.npfmc.org/.

    Public Comment

    Public comment letters will be accepted and should be submitted either electronically via the eCommenting portal at: meetings.npfmc.orgor through the mail: North Pacific Fishery Management Council, 605 W 4th Ave., Suite 306, Anchorage, AK 99501-2252.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shannon Gleason at (907) 271-2809 at least 7 working days prior to the meeting date.

    Dated: September 11, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-20025 Filed 9-13-18; 8:45 am] BILLING CODE 3510-22-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Additions and Deletions AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Additions to and deletions from the Procurement List.

    SUMMARY:

    This action adds products and a service to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products and services from the Procurement List previously furnished by such agencies.

    DATES:

    Date added to and deleted from the Procurement List: October 14, 2018.

    ADDRESSES:

    Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia, 22202-4149.

    FOR FURTHER INFORMATION CONTACT:

    Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email [email protected]

    SUPPLEMENTARY INFORMATION:

    Additions

    On 5/18/2018 (83 FR 97), 5/25/2018 (83 FR 102), 6/4/2018 (83 FR 107), and 6/8/2018 (83 FR111), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.

    After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and a service and impact of the additions on the current or most recent contractors, the Committee has determined that the products and a service listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

    Regulatory Flexibility Act Certification

    I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

    1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and service to the Government.

    2. The action will result in authorizing small entities to furnish the products and service to the Government.

    3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and service proposed for addition to the Procurement List.

    End of Certification

    Accordingly, the following products and service are added to the Procurement List:

    Products NSN(s)—Product Name(s): 7920-00-655-5290—Pad, Scouring, Synthetic, Heavy Duty, Yellow and Green, 4-1/2″ × 3″ × 1/2 Mandatory for: Total Government Requirement Mandatory Source(s) of Supply: The Lighthouse for the Blind in New Orleans, Inc., New Orleans, LA Contracting Activity: General Services Administration, Fort Worth, TX Distribution: A-List NSN(s)—Product Name(s): 7025-00-NIB-0013—PC Keyboard, USB, Black Mandatory for: Broad Government Requirement Mandatory Source of Supply: LC Industries, Inc., Durham, NC Contracting Activity: General Services Administration, New York, NY Distribution: B-List Note:

    The Committee for Purchase From People Who Are Blind or Severely Disabled published a document in the Federal Register of May 25, 2018, concerning an incorrect notice of deletion for PC Keyboard, USB, Black. As shown immediately above, the notice should read.

    Mandatory for: Broad Government Requirement and Distribution: B-List. NSN(s)—Product Name(s): 4330-01-189-1007—Filter-Separator, Liquid Fuel Mandatory Source(s) of Supply: Georgia Industries for the Blind, Bainbridge, GA Mandatory for: 100% of the requirement of the Department of Defense Contracting Activity: Defense Logistics Agency Land and Maritime Distribution: C-List NSN(s)—Product Name(s): 2540-01-165-6136—Chock, Wheel-Track, Wood, 7-3/4″ × 5-3/4 Mandatory Source(s) of Supply: NewView Oklahoma, Inc., Oklahoma City, OK Mandatory for: 100% of the requirement of the Department of Defense Contracting Activity: Defense Logistics Agency Land and Maritime Distribution: C-List Service Service Type: Grounds Maintenance and Snow Removal Service Mandatory for: U.S. Navy, NAVFAC Mid-Atlantic Division: Naval Station Newport Complex, Newport, RI; Naval Undersea Warfare Center Division, Newport, RI; Fishers Island, NY & Dodge Pond, NY; Naval Health Clinic New England, Newport, RI; 9324 Virginia Avenue, Norfolk, VA Mandatory Source of Supply: CW Resources, Inc., New Britain, CT Contracting Activity: Dept. of the Navy, Naval FAC Engineering CMD MID LANT
    Deletions

    On 7/27/2018 (83 FR 145) and 8/3/2018 (83 FR 150), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed deletions from the Procurement List.

    After consideration of the relevant matter presented, the Committee has determined that the products and services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

    Regulatory Flexibility Act Certification

    I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

    1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.

    2. The action may result in authorizing small entities to furnish the products and services to the Government.

    3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and services deleted from the Procurement List.

    End of Certification

    Accordingly, the following products and services are deleted from the Procurement List:

    Products NSN(s)—Product Name(s): 6230-01-617-3776—Kit, Safety Flare, Programmable Flicker Pattern, Red LED, 8in Diameter, AA Battery Operated 6230-01-617-6959—Kit, Safety Flare, Programmable Flicker Pattern, Red LED, 8in Diameter, Rechargeable Power Unit Mandatory Source(s) of Supply: Tarrant County Association for the Blind, Fort Worth, TX Contracting Activity: Defense Logistics Agency Troop Support NSN(s)—Product Name(s): 6545-07-000-0762—USMC Individual First Aid Kit, Complete 6545-09-000-2727—Minor First Aid Kit, USMC Individual First Aid Kit Mandatory Source(s) of Supply: Chautauqua County Chapter, NYSARC, Jamestown, NY Contracting Activity: Commander, Quantico, VA Services Service Type: Janitorial Service Mandatory for: Customs and Border Protection, B.P. Maintenance, 398 E. Aurora Drive, El Centro, CA Mandatory Source(s) of Supply: ARC-Imperial Valley, El Centro, CA Contracting Activity: U.S. Customs and Border Protection, Border Enforcement Contracting Division Service Type: Janitorial/Custodial Service Mandatory for: Naval Reserve Center: 85 Sea Street, Quincy, MA Mandatory Source(s) of Supply: Community Workshops, Inc., Boston, MA Contracting Activity: Dept. of the Navy, Navy Crane Center Michael R. Jurkowski, Business Management Specialist, Business Operations.
    [FR Doc. 2018-20034 Filed 9-13-18; 8:45 am] BILLING CODE 6353-01-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Proposed Deletions AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Proposed deletions from the Procurement List.

    SUMMARY:

    The Committee is proposing to delete a product and services from the Procurement List that was previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.

    DATES:

    Comments must be received on or before: October 14, 2018.

    ADDRESSES:

    Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia, 22202-4149.

    FOR FURTHER INFORMATION CONTACT:

    For further information or to submit comments contact: Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email [email protected]

    SUPPLEMENTARY INFORMATION:

    This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.

    Deletions

    The following product and services are proposed for deletion from the Procurement List:

    Product NSN(s)—Product Name(s): 6545-00-853-6309—First Aid Kit, Eye Dressing Mandatory Source of Supply: Suburban Adult Services, Inc., Elma, NY Contracting Activity: Defense Logistics Agency Troop Support Services Service Type: Reproduction and Courier Service Mandatory for: Naval Facilities Engineering Command, Chesapeake, Engineering Field Activity Chesapeake, 1314 Harwood Avenue SE, Washington, DC Mandatory Source of Supply: Linden Resources, Inc., Arlington, VA Contracting Activity: Dept. of the Navy, U.S. Fleet Forces Command Service Type: Janitorial/Custodial Service Mandatory for: Naval & Marine Corps Reserve Center (NMCRC), 1201 N 35th Avenue, Phoenix, AZ Mandatory Source of Supply: The Centers for Habilitation/TCH, Tempe, AZ Contracting Activity: Dept. of the Navy, NAVFAC Southwest Service Type: Janitorial/Custodial Service Mandatory for: Cherry Capital Airport System Support Center, General Aviation Terminal Bldg, 1220, Airport Access Road, 2nd Floor, Traverse City, MI Mandatory Source of Supply: Grand Traverse Industries, Inc., Traverse City, MI Contracting Activity: Federal Aviation Administration, FAA Service Type: Grounds Maintenance Service Mandatory for: Naval Air Warfare Center Weapons Division: Buildings 456 (N97) and 1438 (Main Post Area), White Sands Missile, NM Mandatory Source of Supply: Tresco, Inc., Las Cruces, NM Contracting Activity: Dept. of the Navy, U.S. Fleet Forces Command Service Type: Food Service Attendant Service Mandatory for: Schofield Barracks: Building 3004, Fort Shafter, HI Mandatory Source of Supply: Opportunities and Resources, Inc., Wahiawa, HI Contracting Activity: Dept. of the Army, 0413 AQ HQ Michael R. Jurkowski, Business Management Specialist, Business Operations.
    [FR Doc. 2018-20033 Filed 9-13-18; 8:45 am] BILLING CODE 6353-01-P
    DEPARTMENT OF DEFENSE Office of the Secretary Defense Advisory Committee on Military Personnel Testing; Notice of Federal Advisory Committee Meeting AGENCY:

    Under Secretary of Defense for Personnel and Readiness, Department of Defense.

    ACTION:

    Notice of Federal advisory committee meeting.

    SUMMARY:

    The Department of Defense (DoD) is publishing this notice to announce that the following Federal Advisory Committee meeting of the Defense Advisory Committee on Military Personnel Testing will take place.

    DATES:

    Thursday, September 20, 2018 and Friday, September 21, 2018. Open to the public Day 1 from 9:00 a.m. to 4:30 p.m.; Day 2 from 9:00 a.m. to 12:00 p.m.

    ADDRESSES:

    Hyatt Place, 425 7th Street South, Minneapolis, MN 55415.

    FOR FURTHER INFORMATION CONTACT:

    Stephanie Miller, (703) 695-5525 (Voice), 703 614-9272 (Facsimile), [email protected] (Email). Mailing address is Assistant Director, Accession Policy, Office of the Under Secretary of Defense for Personnel and Readiness, Room 3D1066, The Pentagon, Washington, DC 20301-4000.

    SUPPLEMENTARY INFORMATION:

    Due to circumstances beyond the control of the Department of Defense (DoD) and the Designated Federal Officer, the Defense Advisory Committee on Military Personnel Testing was unable to provide public notification required by 41 CFR 102-3.150(a) concerning the meeting on September 20 through 21, 2018 of the Defense Advisory Committee on Military Personnel Testing. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.

    This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.140 and 102-3.150.

    Purpose of the Meeting: The purpose of the meeting is to review planned changes and progress in developing computerized tests for military enlistment screening.

    Agenda Day 1, Thursday, September 20, 2018 9:00 a.m. to 9:15 a.m. Welcome and Opening Remarks Chris Arendt, OASD(M&RA)AP 9:15 a.m. to 9:45 a.m. Accession Policy Update Chris Arendt, Deputy Director, AP 9:45 a.m. to 10:15 a.m. ASVAB Milestones and Project Matrix, Dr. Mary Pommerich, DPAC/OPA 10:15 a.m. to 10:30 a.m. Break 10:30 a.m. to 11:00 a.m. Next Generation ASVAB and ETP Update, Dr. Mary Pommerich 11:00 a.m. to 11:30 a.m. Validity Framework Update Dr. Art Thacker, the Human Resources Research Organization (HumRRO) 11:30 a.m. to 12:15 p.m. Mental Counters Dr. Ping Yin, HumRRO 12:15 p.m. to 1:15 p.m. Lunch 1:15 p.m. to 1:45 p.m. CAT-ASVAB Form 10 Equating Study Dr. Matt Trippe, HumRRO 1:45 p.m. to 2:30 p.m. Sparse Data Dimensionality Assessment Dr. Furong Guo with application to the Cyber Test, HumRRO 2:30 p.m. to 2:45 p.m. Break 2:45 p.m. to 3:15 p.m. Development of New Cyber Test Items and Pools Dr. Matt Trippe 3:15 p.m. to 3:45 p.m. TAPAS Expert Panel Update Dr. Tim McGonigle, HumRRO 3:45 p.m. to 4:30 p.m. Adverse Impact Dr. Greg Manley, DPAC/OPA 4:30 p.m. Adjourn Day 2, Friday, September 21, 2018 9:00 a.m. to 9:45 a.m. Device Evaluation Dr. Tia Fechter, DPAC/OPA 9:45 a.m. to 10:30 a.m. WK Automated Item Generation Dr. Isaac Bejar, ETS 10:30 a.m. to 10:45 a.m. Break 10:45 a.m. to 11:30 a.m. CEP Update Dr. Shannon Salyer, DPAC/OPA 11:30 a.m. to 11:45 a.m. Future Topics Dr. Daniel Segall 11:45 a.m. to 12:00 p.m. Closing Comments Dr. Neal Schmitt 12:00 p.m. Adjourn

    Meeting Accessibility: Pursuant to 5 U.S.C. 552b, as amended and 41 CFR 102-3.140 through 102-3.165, and subject to the availability of space, the meeting is open to the public. Seating is based on a first-come, first-served basis. All members of the public who wish to attend the public meeting must contact the Designated Federal Officer, not later than 12:00 p.m. on Monday, September 17, 2018, as listed in the FOR FURTHER INFORMATION CONTACT section.

    Written Statements: Pursuant to 41 CFR 102-3.105(j) and 102-3.140 and section 10(a)(3) of the FACA, interested persons may submit written statements to the Committee at any time about its approved agenda or at any time on the Committee's mission. Written statements should be submitted to the Committee's Designated Federal Officer at the address or facsimile number listed in the FOR FURTHER INFORMATION CONTACT section. If statements pertain to a specific topic being discussed at the planned meeting, then these statements must be submitted no later than five (5) business days prior to the meeting in question. Written statements received after this date may not be provided to or considered by the Committee until its next meeting. The Designated Federal Officer will review all timely submitted written statements and provide copies to all the committee members before the meeting that is the subject of this notice. Please note that since the Committee operates under the provisions of the FACA, all submitted comments and public presentations will be treated as public documents and will be made available for public inspection.

    Dated: September 11, 2018. Aaron T. Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2018-20020 Filed 9-13-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Department of the Navy [Docket ID: USN-2018-HQ-0013] Privacy Act of 1974; System of Records; Correction AGENCY:

    Department of the Navy, DoD.

    ACTION:

    Notice of a modified system of records; correction.

    SUMMARY:

    On August 28, 2018, the Department of Defense published a system of records notice that proposed to modify Data Warehouse Business Intelligence System (DWBIS), N05220-1. Subsequent to the publication of the notice, DoD discovered that the docket ID had published incorrectly. This notice corrects that error.

    DATES:

    This correction is effective on September 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Patricia Toppings, 571-372-0485.

    SUPPLEMENTARY INFORMATION:

    Correction

    On August 28, 2018 (83 FR 43857-43860), the Department of Defense published a system of records notice, FR Doc. 2018-18587, that proposed to modify Data Warehouse Business Intelligence System (DWBIS), N05220-1. Subsequent to the publication of the notice, DoD discovered that the docket ID had published incorrectly. The docket ID incorrectly published as “USN-2018-OS-0013.”

    The docket ID is corrected to read as set forth in this notice.

    Dated: September 11, 2018. Aaron T. Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2018-20035 Filed 9-13-18; 8:45 am] BILLING CODE 5001-06-P
    DEFENSE NUCLEAR FACILITIES SAFETY BOARD Sunshine Act Meetings TIME AND DATE:

    1:45 p.m.-4:00 p.m., September 17, 2018.

    PLACE:

    Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW, Suite 700, Washington, DC 20004.

    STATUS:

    Closed. During the closed meeting, the Board Members will discuss issues dealing with potential Recommendations to the Secretary of Energy. The Board is invoking the exemptions to close a meeting described in 5 U.S.C. 552b(c)(3) and (9)(B) and 10 CFR 1704.4(c) and (h). The Board has determined that it is necessary to close the meeting since conducting an open meeting is likely to disclose matters that are specifically exempted from disclosure by statute, and/or be likely to significantly frustrate implementation of a proposed agency action. In this case, the deliberations will pertain to potential Board Recommendations which, under 42 U.S.C. 2286d(b) and (h)(3), may not be made publicly available until after they have been received by the Secretary of Energy or the President, respectively.

    MATTERS TO BE CONSIDERED:

    The meeting will proceed in accordance with the closed meeting agenda which is posted on the Board's public website at www.dnfsb.gov. Technical staff may present information to the Board. The Board Members are expected to conduct deliberations regarding potential Recommendations to the Secretary of Energy.

    CONTACT PERSON FOR MORE INFORMATION:

    Glenn Sklar, General Manager, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW, Suite 700, Washington, DC 20004-2901, (800) 788-4016. This is a toll-free number.

    Dated: September 12, 2018. Joseph Bruce Hamilton, Acting Chairman.
    [FR Doc. 2018-20154 Filed 9-12-18; 4:15 pm] BILLING CODE 3670-01-P
    DEPARTMENT OF ENERGY Notice of Public Meeting AGENCY:

    Office of Energy Efficiency and Renewable Energy, Department of Energy.

    ACTION:

    Notice of public meeting.

    SUMMARY:

    The U.S. Department of Energy (DOE) is hosting a workshop to develop new prizes, competitions, and related initiatives that advance water security in the United States and globally. The workshop will inform a DOE-led Grand Challenge that seeks breakthroughs on a set of critical water issues through a coordinated suite of prizes, competitions, early-stage research and development, and related programs.

    DATES:

    The public meeting will be held on October 25, 2018 from 8 a.m. to 4 p.m.

    ADDRESSES:

    The public meeting will be held at DOE's National Renewable Energy Laboratory, 15301 Denver West Parkway, Golden, CO 80401.

    FOR FURTHER INFORMATION CONTACT:

    Questions may be directed to Andre de Fontaine, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, 1000 Independence Avenue SW, Washington, DC 20585. Telephone (202) 586-6585. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Water is a critical resource for human health, economic growth, and agricultural productivity. The United States has benefitted from access to low-cost water supplies—however, new challenges are emerging that, if left unaddressed, could shift this paradigm.

    In the U.S., a growing number of regions are competing for fresh water sources and water quality problems are impacting human health and the environment. Municipal water and wastewater treatment systems face billions of dollars in unmet infrastructure investment needs, which will likely increase as population grows, and water and wastewater treatment requirements become more stringent.

    Lack of safe and secure water supplies is also a global problem. According to the World Health Organization, more than 2 billion people globally lack access to safe, readily available water at home.1 Aside from the humanitarian implications, water security is also an issue of national security.

    1 World Health Organization, “2.1 billion people lack safe drinking water at home, more than twice as many lack safe sanitation,” July 2017. http://www.who.int/news-room/detail/12-07-2017-2-1-billion-people-lack-safe-drinking-water-at-home-more-than-twice-as-many-lack-safe-sanitation.

    On March 13, 2018, U.S. Department of Energy (“DOE”) Secretary Perry led a roundtable discussion on the use of challenges and prize competitions to drive innovation on critical water issues. In conjunction with this, DOE's Office of Energy Efficiency and Renewable Energy (“EERE”) published in the Federal Register a request for information (RFI) seeking input on the possible use of challenges and prize competitions to address technical and other barriers that may prevent long-term access to low-cost water supplies. Through the RFI responses, a series of internal DOE meetings, and conversations with external experts, DOE identified the following set of key issues to address through this effort:

    1. Cost-competitive desalination technologies 2. Transforming produced water from a waste to a resource 3. Reducing water impacts in the power sector 4. Lowering energy costs in wastewater treatment 5. Developing off-grid, modular energy-water systems 6. Cross-cutting, or open issues

    The RFI can be found at https://www.federalregister.gov/documents/2018/03/19/2018-05472/notice-of-request-for-information-rfi-on-critical-water-issues-prize-competition. DOE is now announcing a public meeting to gather additional, focused input on the use of prize competitions to make progress on these water issues.

    The purpose of this public meeting is to solicit feedback from industry, academia, research laboratories, government agencies and other stakeholders on potential prize competitions that could be developed to address these key water issues. Participants will spend much of the day in breakout sessions aligned with the six topic areas identified above. Participants will be asked to brainstorm specific prize ideas aligned with the breakout topics and report the results of their discussion out to the group. DOE's goal is to produce a number of different prize ideas through the workshop that it and its partners may pursue in the future.

    Public Participation Attendance at Public Meeting

    The time, date and location of the public meeting are listed in the DATES and ADDRESSES sections at the beginning of this document. Please register at www.nrel.gov/waterchallenge to attend the meeting. DOE plans to cap attendance to about 60 participants and will handle registration on a first-come, first-served basis.

    Please note, foreign nationals (including Canadian citizens, permanent resident aliens and resident aliens) visiting NREL are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If you are a foreign national, contact Sarah Barba at [email protected] or (303) 275-3023 for the necessary foreign national paperwork. All foreign national data cards must be received by close of business Friday, September 21, 2018. Foreign national data cards received after this date will be reviewed on a case by case basis.

    U.S. citizens must show government issued photo I.D. (such as a driver's license, passport, or military ID) to NREL Security upon arrival.

    Conduct of Public Meeting

    DOE will designate a DOE official to preside over the public meeting. DOE reserves the right to schedule the order of presentations, determine the composition of the breakout sessions and to establish the procedures governing the conduct of the public meeting.

    The public meeting will be conducted in an informal style, with a mix of plenary presentations and breakout sessions. Following one or two opening plenary addresses in the morning, DOE will split the audience into breakout groups aligned with the six critical water issue topic areas described above, with one or two breakout groups per topic area. Participants in each breakout group will discuss potential prize ideas aligned with the topic area, and report the results of their discussions out to the full group of attendees. DOE will use the results of these discussions to inform the development of potential prize competitions and challenges.

    Signed in Washington, DC, on September 10, 2018. Alex Fitzsimmons, Chief of Staff, Office of Energy Efficiency & Renewable Energy.
    [FR Doc. 2018-20032 Filed 9-13-18; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric corporate filings:

    Docket Numbers: EC18-152-000.

    Applicants: Puget Sound Energy, Inc., PGGM Vermogensbeheer B.V., Alberta Investment Management Corporation, OMERS Administration Corporation, British Columbia Investment Management Corporation.

    Description: Joint Application for Authorization Under Section 203 of the Federal Power Act, et al. of Puget Sound Energy, Inc., et al.

    Filed Date: 9/7/18.

    Accession Number: 20180907-5166.

    Comments Due: 5 p.m. ET 9/28/18.

    Docket Numbers: EC18-153-000.

    Applicants: Mid-Atlantic Interstate Transmission, LLC.

    Description: Application for Authorization Under Section 203 of the Federal Power Act, et al. of Mid-Atlantic Interstate Transmission, LLC.

    Filed Date: 9/7/18.

    Accession Number: 20180907-5175.

    Comments Due: 5 p.m. ET 9/28/18.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER18-1244-002.

    Applicants: Emera Maine.

    Description: Tariff Amendment: 2nd Deficiency Response (ER18-1213-000 and ER18-1244-001) to be effective 6/1/2018.

    Filed Date: 9/10/18.

    Accession Number: 20180910-5017.

    Comments Due: 5 p.m. ET 10/1/18.

    Docket Numbers: ER18-2398-000.

    Applicants: California Independent System Operator Corporation.

    Description: Compliance filing: 2018-09-07 Order No. 844 Compliance to be effective 1/1/2019.

    Filed Date: 9/7/18.

    Accession Number: 20180907-5101.

    Comments Due: 5 p.m. ET 9/28/18.

    Docket Numbers: ER18-2399-000.

    Applicants: GenOn Holdco 10, LLC.

    Description: § 205(d) Rate Filing: normal name change to be effective 9/8/2018.

    Filed Date: 9/7/18.

    Accession Number: 20180907-5130.

    Comments Due: 5 p.m. ET 9/28/18.

    Docket Numbers: ER18-2400-000.

    Applicants: New York Independent System Operator, Inc.

    Description: Compliance filing: Compliance Order 844 Uplift Cost Reporting to be effective 12/31/9998.

    Filed Date: 9/7/18.

    Accession Number: 20180907-5139.

    Comments Due: 5 p.m. ET 9/28/18.

    Docket Numbers: ER18-2401-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: Compliance filing: Compliance Filing Pursuant to Order No 844 re Uplift to be effective 1/1/2019.

    Filed Date: 9/7/18.

    Accession Number: 20180907-5145.

    Comments Due: 5 p.m. ET 9/28/18.

    Docket Numbers: ER18-2402-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Revisions to the Market Monitoring Services Agreement to be effective 1/1/2020.

    Filed Date: 9/7/18.

    Accession Number: 20180907-5158.

    Comments Due: 5 p.m. ET 9/28/18.

    Docket Numbers: ER18-2403-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Revisions to the Market Monitor Service Level Agreement to be effective 11/6/2018.

    Filed Date: 9/7/18.

    Accession Number: 20180907-5159.

    Comments Due: 5 p.m. ET 9/28/18.

    Docket Numbers: ER18-2404-000.

    Applicants: Southwest Power Pool, Inc.

    Description: Petition for Tariff Waiver of Southwest Power Pool, Inc.

    Filed Date: 9/10/18.

    Accession Number: 20180910-5057.

    Comments Due: 5 p.m. ET 10/1/18.

    Docket Numbers: ER18-2405-000.

    Applicants: Midcontinent Independent System Operator, Inc., Wolverine Power Supply Cooperative, Inc.

    Description: § 205(d) Rate Filing: 2018-09-10_SA 3165 Wolverine-Consumers Energy IFA (Stoney Corners) to be effective 9/11/2018.

    Filed Date: 9/10/18.

    Accession Number: 20180910-5093.

    Comments Due: 5 p.m. ET 10/1/18.

    Take notice that the Commission received the following electric securities filings:

    Docket Numbers: ES18-60-000.

    Applicants: New England Power Company.

    Description: Application Under Section 204 of the Federal Power Act for Authorization to Issue Securities of New England Power Company.

    Filed Date: 9/10/18.

    Accession Number: 20180910-5110.

    Comments Due: 5 p.m. ET 10/1/18.

    Docket Numbers: ES18-61-000.

    Applicants: Consolidated Edison Company of New York, Inc.

    Description: Application of Consolidated Edison Company of New York, Inc. under ES18-61. for an order pursuant to Section 204 of the Federal Power Act authorizing the issue and sale of short-term debt.

    Filed Date: 9/10/18.

    Accession Number: 20180910-5111.

    Comments Due: 5 p.m. ET 10/1/18.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: September 10, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-19999 Filed 9-13-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL18-198-000] Notice of Request for Partial Waiver; Kansas Power Pool

    Take notice that on September 6, 2018, pursuant to section 292.402 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure,1 the Kansas Power Pool (KPP) on behalf of itself and its authorizing member municipal cities (Authorizing Members), filed a request for partial waiver of certain obligations imposed on KPP and its Authorizing Members through the Commission's regulations 2 implementing section 210 of the Public Utility Regulatory Policies Act of 1978, all as more fully explained in the request.

    1 18 CFR 292.402.

    2 18 CFR 292.303(a) and 292.303(b).

    Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.

    The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.

    This filing is accessible on-line at http://www.ferc.gov, using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected], or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Comment Date: 5:00 p.m. Eastern time on September 27, 2018.

    Dated: September 7, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-19997 Filed 9-13-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL18-199-000] Notice of Complaint; East Texas Electric Cooperative, Inc. v. Public Service Company of Oklahoma, Southwestern Electric Power Company, AEP Oklahoma Transmission Company, AEP Southwestern Transmission Company

    Take notice that on September 6, 2018, pursuant to sections 206, 306, and 309 of the Federal Power Act, 16 U.S.C. 824e and 825h, and Rules 206 and 212 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206 and 385.212, East Texas Electric Cooperative, Inc. (Complainant) filed a formal complaint against Public Service Company of Oklahoma, Southwestern Electric Power Company, AEP Oklahoma Transmission Company, and AEP Southwestern Transmission Company (Respondents or AEP West Companies) alleging that the 10.70 percent base return on common equity currently included in the formula transmission rates of the AEP West Companies is unjust and unreasonable and should be reduced as of the date of the complaint, all as more fully explained in the complaint.

    The Complainant certifies that copies of the complaint were served on the contacts for the Respondents as listed on the Commission's list of Corporate Officials, in accordance with Rule 206(c).

    Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainant.

    The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.

    This filing is accessible on-line at http://www.ferc.gov, using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected], or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Comment Date: 5:00 p.m. Eastern Time on October 16, 2018.

    Dated: September 7, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-19998 Filed 9-13-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER18-2390-000.

    Applicants: Chubu TT Energy Management Inc.

    Description: Tariff Cancellation: Chubu TT MBRA Cancellation to be effective 9/30/2018.

    Filed Date: 9/7/18.

    Accession Number: 20180907-5001.

    Comments Due: 5 p.m. ET 9/28/18.

    Docket Numbers: ER18-2391-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: Tariff Cancellation: Notice of Cancellation of WMPA SA No. 3688; Queue No. Y2-117 to be effective 10/1/2018.

    Filed Date: 9/7/18.

    Accession Number: 20180907-5031.

    Comments Due: 5 p.m. ET 9/28/18.

    Docket Numbers: ER18-2392-000.

    Applicants: Ohio Power Company, AEP Ohio Transmission Company, Inc., PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: AEP Ohio submits revised ILDSA, Service Agreement No. 1420 and City of Clyde FA to be effective 8/14/2018.

    Filed Date: 9/7/18.

    Accession Number: 20180907-5037.

    Comments Due: 5 p.m. ET 9/28/18.

    Docket Numbers: ER18-2393-000.

    Applicants: Mid-Atlantic Interstate Transmission, LLC, PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: MAIT submits four ECSAs, Service Agreement Nos. 4991, 5017, 5018, and 5026 to be effective 11/7/2018.

    Filed Date: 9/7/18.

    Accession Number: 20180907-5056.

    Comments Due: 5 p.m. ET 9/28/18.

    Docket Numbers: ER18-2394-000.

    Applicants: ISO New England Inc., New England Power Pool Participants Committee.

    Description: Compliance filing: Revisions to ISO-NE Tariff in Compliance with FERC Order No. 844 to be effective 1/1/2019.

    Filed Date: 9/7/18.

    Accession Number: 20180907-5067.

    Comments Due: 5 p.m. ET 9/28/18.

    Docket Numbers: ER18-2395-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Original ISA SA No. 5159, Queue No. AB2-040 to be effective 8/8/2018.

    Filed Date: 9/7/18.

    Accession Number: 20180907-5080.

    Comments Due: 5 p.m. ET 9/28/18.

    Docket Numbers: ER18-2396-000.

    Applicants: Nevada Power Company.

    Description: § 205(d) Rate Filing: Rate Schedule No. 162 NPC/DesertLink Agr. to be effective 9/8/2018.

    Filed Date: 9/7/18.

    Accession Number: 20180907-5083.

    Comments Due: 5 p.m. ET 9/28/18.

    Docket Numbers: ER18-2397-000.

    Applicants: Midcontinent Independent System Operator, Inc.

    Description: Compliance filing: 2018-09-07_Order 844 Compliance Uplift Cost Allocation and Transparency to be effective 1/1/2019.

    Filed Date: 9/7/18.

    Accession Number: 20180907-5085.

    Comments Due: 5 p.m. ET 9/28/18.

    Take notice that the Commission received the following electric reliability filings:

    Docket Numbers: RD18-8-000.

    Applicants: North American Electric Reliability Corporation.

    Description: Petition of the North American Electric Reliability Corporation for Approval of Proposed Reliability Standard VAR-001-5.

    Filed Date: 9/6/18.

    Accession Number: 20180906-5137.

    Comments Due: 5 p.m. ET 9/27/18.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: September 7, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-19995 Filed 9-13-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Order Rejecting Proposed Tariff Revisions, Providing Guidance and Providing Limited Compliance Period Before Commissioners: Kevin J. McIntyre, Chairman; Cheryl A. LaFleur, Neil Chatterjee, and Richard Glick. Docket Nos. Commonwealth Edison Company ER18-899-000.
  • ER18-899-001.
  • Delmarva Power & Light Company ER18-903-000.
  • ER18-903-001.
  • Atlantic City Electric Company ER18-904-000.
  • ER18-904-001.
  • Potomac Electric Power Company ER18-905-000.
  • ER18-905-001.
  • PJM Interconnection, L.L.C (Not Consolidated).

    1. On February 23, 2018, as amended on July 9, 2018, Commonwealth Edison Company (ComEd), Delmarva Power & Light Company (Delmarva), Atlantic City Electric Company (ACE) and Potomac Electric Power Company (PEPCO) (together, Exelon Companies), submitted separate but nearly identical filings pursuant to section 205 of the Federal Power Act (FPA).1 Exelon Companies propose revisions to their formula transmission rates (Formula Rates), contained in Attachments H-13A, H-3D, H-1A and H-9A of the PJM Interconnection, L.L.C. (PJM) Open Access Transmission Tariff (OATT),2 to provide a mechanism to refund or recover, as appropriate, certain deferred income tax excesses and deficiencies that they previously recorded on their books and that they will record on an ongoing basis. In particular, Exelon Companies propose to recover or refund in their Formula Rates: (1) Excess or deficient Accumulated Deferred Income Taxes (ADIT) related to tax rate changes (Excess/Deficient Deferred Taxes); (2) the tax effect of the Allowance for Funds Used During Construction (AFUDC) equity portion of depreciation expense (AFUDC Equity); and (3) amounts related to Exelon Companies' switch years ago from the flow-through method for income tax treatment in ratemaking to the tax normalization method (Flow-Through Items).

    1 16 U.S.C. 824d (2012).

    2 PJM Interconnection, L.L.C., Intra-PJM Tariffs, OATT ATT H-13A, OATT Attachment H-13A—Commonwealth Edison Company, 13.0.0, OATT ATT H-3D, OATT Attachment H-3D—Delmarva Power & Light Company, 5.0.0, OATT ATT H-1A, OATT Attachment H-1A—Atlantic City Electric Company, 4.0.0, and OATT ATT H-9A, OATT Attachment H-9A—Potomac Electric Power Company, 6.0.0.

    2. In this order, we find that Exelon Companies have not shown that their proposed Formula Rate provisions allowing for the recovery of previously incurred income tax amounts are just and reasonable. Therefore, as discussed below, we reject Exelon Companies' filings, but we provide guidance that Exelon Companies may submit new filings with a mechanism to refund or recover, as appropriate, deferred income tax excesses and deficiencies related to the recent Tax Cuts and Jobs Act 3 and any future income tax changes, any new originations of past income tax changes, and taxes on AFUDC Equity associated with current and future years' depreciation expense. As described below, we also announce a limited compliance period under Order No. 144 during which other utilities may make FPA section 205 filings to recover past ADIT under certain conditions.

    3 Tax Cuts and Jobs Act, Public Law 115-97, 131 Stat. 2054 (2017).

    I. Background

    3. Under a tax normalization policy, tax savings and increases that result from different treatment for ratemaking and income tax purposes are not immediately flowed through to customers, but are instead recognized in rates over time. In 1981, the Commission amended its regulations to require companies to determine the income tax allowance included in jurisdictional rates on a fully normalized basis.4 The Commission in Order No. 144 recognized that the adoption of full normalization, as well as tax rate changes, might result in excesses or deficiencies in the deferred tax accounts and required rate applicants to make provision in the income tax component of their cost of service for any such excess or deficiency. Order No. 144 stated that rate applicants must “begin the process of making up deficiencies in or eliminating excesses in their deferred tax account reserves so that, within a reasonable period of time to be determined on a case-by-case basis, they will be operating under a full normalization policy.” 5 Order No. 144 further specified that a rate applicant must make adjustments pertaining to reversals from prior flow-through or tax rate changes in “the applicant's next rate case following the applicability of [Order No. 144].” 6

    4See 18 CFR 35.24 (2017); see also Tax Normalization for Certain Items Reflecting Timing Differences in the Recognition of Expenses or Revenues for Ratemaking and Income Tax Purposes, Order No. 144, FERC Stats. & Regs. ¶ 30,254 (1981), order on reh'g, Order No. 144-A, FERC Stats. & Regs. ¶ 30,340 (1982).

    5 Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,560.

    6Id. at 31,519.

    4. In 1992, the Financial Accounting Standards Board issued Financial Accounting Standards Board Statement No. 109 (FAS 109), which required public utilities to make certain changes to their balance sheets. Among other things, FAS 109 required: (1) Recognition in the deferred tax accounts for changes in tax laws or tax rates in the period that the change is enacted; (2) recognition of a deferred tax liability for the equity component of AFUDC depreciation expense; and (3) recognition of a deferred tax liability for timing differences under normalization even if the deferred tax liability was previously flowed through to ratepayers prior to adopting normalization. Addressing the implementation of FAS 109, the Commission's Chief Accountant explained that if as a result of action by a regulator, it was probable that a tax deficiency would be recovered from customers or any tax excess would be returned to customers in rates, an asset or liability must be recognized in the appropriate account. The Chief Accountant also explained that the asset or liability is a temporary difference for which a deferred tax asset or liability must be recognized in the appropriate deferred tax account.7 The Chief Accountant further stated that if an entity's billing determinations would be affected by adoption of FAS 109, the entity shall make a filing with the proper rate regulatory authorities prior to implementing the change for tariff billing purposes.8

    7See Accounting for Income Taxes, Docket No. AI93-5-000 (April 23, 1993).

    8Id. at 11.

    II. Related Proceedings A. BGE Proceeding

    5. On November 16, 2017, the Commission rejected Baltimore Gas and Electric Company's (BGE) proposed revisions to its formula transmission rate to provide a mechanism to refund or recover, as appropriate, certain deferred income tax excesses and deficiencies previously recorded and on an ongoing basis.9 In the instant proceedings, Exelon Companies state that their proposed revisions to their Formula Rates are “essentially identical” to those proposed by BGE, which is also a subsidiary of Exelon.10

    9PJM Interconnection, L.L.C., 161 FERC ¶ 61,163 (2017) (November 16 Order).

    10See, e.g., ComEd Transmittal at 33.

    6. In the November 16 Order, the Commission found that BGE failed to demonstrate that its proposed mechanisms for the recovery of previously incurred tax amounts were just and reasonable.11 In particular, the Commission found that BGE should have captured the accumulated amounts associated with AFUDC Equity that has already been depreciated and prior period tax balances associated with Flow-Through Items in its formula rate since its implementation in 2005, consistent with the directive in Order No. 144 that utilities make such adjustments in their next rate case, or at least “within a reasonable period of time.” 12 The Commission further found BGE's proposal to be inconsistent with the principle of matching (i.e., the recognition in rates of the tax effects of expenses and revenues with the expenses and revenues themselves) because the Flow-Through Items related to certain pre-1976 plant that could be either fully depreciated or retired by 2016, and because the additional taxes associated with AFUDC Equity are applicable only to the relevant year's depreciation expense.13 Finding that BGE failed to explain why it did not make provision for recovery of the deferred amounts for nearly 12 years after implementing its formula rate and that the proceedings cited by BGE in support of its proposal do not establish binding precedent, the Commission rejected BGE's proposed formula rate revisions.14

    11 November 16 Order, 161 FERC ¶ 61,163 at P 18.

    12Id. PP 18-19 (citing Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,519, 31,560).

    13Id. P 20.

    14Id. PP 21-22.

    7. On December 18, 2017, BGE requested rehearing of the November 16 Order regarding recovery of past deferred tax liabilities and assets. It also requested clarification that it could recover: (1) Amounts for new tax liabilities and assets that were originated on or after the February 11, 2017 effective date that BGE originally proposed; and (2) amounts for past deferred tax liabilities and assets that would not have been collected until after February 11, 2017, even if its formula rate had been amended in 2005 to include such recovery. In support of its rehearing request, BGE raised similar arguments to those now advanced in Exelon Companies' filings regarding the timing of recovering deferred amounts, matching, and prior Commission precedent. The Commission denies all rehearing requests,15 but grants clarification in part, of the November 16 Order in an order being issued concurrently with this one in Docket No. ER17-528-002.16

    15 The Maryland Public Service Commission and the Edison Electric Institute also filed requests for rehearing.

    16PJM Interconnection L.L.C., 164 FERC ¶ 61,173.

    B. Notice of Inquiry

    8. On March 15, 2018, the Commission sought industry-wide comment on the effect of the Tax Cuts and Jobs Act on Commission-jurisdictional rates.17 In particular, the Commission sought comment whether, and if so how, the Commission should address changes related to ADIT and bonus depreciation in Commission-jurisdictional rates. That proceeding remains pending.

    17Inquiry Regarding the Effect of the Tax Cuts and Jobs Act on Commission-Jurisdictional Rates, FERC Stats. & Regs. ¶ 35,582 (2018) (Notice of Inquiry).

    III. Exelon Companies' Filings A. Original Filings

    9. Exelon Companies propose to implement three tax-related changes (Excess/Deficient Deferred Taxes, AFUDC Equity and Flow-Through Items) to their Formula Rates to more accurately track expenses arising from tax liabilities and to clarify the timing for recovery of various accrued tax liabilities. Exelon Companies assert that the proposed changes do not alter the amount of taxes to be recovered, but instead provide clarity to ratepayers as to when various tax liabilities and assets will be recovered or refunded, and ensure that the proper amounts will be recovered or refunded over a timeframe that is consistent with Commission policies. Exelon Companies request that the Commission accept the revised tariff sheets with an effective date of April 24, 2018, although these proposed tax changes would be reflected for the first time in the rate levels charged to customers in Exelon Companies' June 1, 2019 Annual Update of their Formula Rates (2019 Annual Update) (with the resulting rate levels charged for service on and after June 1, 2019).

    10. First, Exelon Companies propose an adjustment to their Formula Rates for Excess/Deficient Deferred Taxes that are the result of enacted changes in tax laws or rates. Exelon Companies explain that, due to changes in state and federal tax rates that occur from time to time, such as the Tax Cuts and Jobs Act, Exelon Companies' deferred income tax balances do not match their actual tax liabilities. Rather than allowing such mismatches to accumulate over time, Exelon Companies propose to correct the mismatches by including a mechanism in their Formula Rates that will automatically return any future excess deferred income taxes to customers, as well as recover any future deficiencies in deferred income taxes from customers. Exelon Companies state that the automatic adjustments would reflect the tax rate changes from the Tax Cuts and Jobs Act and past federal and state income tax rate changes that are not yet fully accounted for, and would also provide an automatic mechanism to capture the impact of any future tax rate changes that may be enacted at the state or federal level. Exelon Companies state that, consistent with the “South Georgia method” 18 and Commission precedent, Exelon Companies propose to amortize the relevant balances over the remaining useful life of the assets impacted by the tax rate change.19

    18See South Georgia Natural Gas Co., Docket No. RP77-32 (May 5, 1978) (delegated order). Under the South Georgia method, a calculation is taken of the difference between the amount actually in the deferred account and the amount that would have been in the account had normalization continuously been followed. This difference is collected from ratepayers over the remaining depreciable life of the plant that caused the difference. When the deferred account is fully funded at the end of this transition period, the annual increment ceases. Memphis Light, Gas & Water Div. v. FERC, 707 F.2d 565, 569 (D.C. Cir. 1983).

    19See, e.g., ComEd Transmittal Letter at 24-28 (citing Virginia Elec. Power Co., Docket No. ER16-2116-000 (August 2, 2016) (delegated order) (VEPCO); Midcontinent Indep. Sys. Operator, Inc., 153 FERC ¶ 61,374 (2015) (ITC); DATC Midwest Holdings, LLC, 144 FERC ¶ 61,015 (2013) (DATC); American Transmission Co., LLC, 93 FERC ¶ 61,335 (2000) (ATC); Michigan Gas Storage Co., 83 FERC ¶ 63,001 (1998), order on initial decision, 87 FERC ¶ 61,038 (1999)).

    11. Second, Exelon Companies propose an adjustment to their Formula Rates for the tax effect of AFUDC Equity, which would automatically amortize in rates the accumulated tax balances for past AFUDC Equity originations that have not flowed through rates and future AFUDC Equity originations. Exelon Companies explain that federal income tax rules do not permit the deduction of AFUDC Equity on the income tax return, but that AFUDC Equity is included in depreciation expense for financial reporting purposes. Under FAS 109, this difference between the cost basis calculated for income tax and financial statement reporting purposes is recorded as a deferred regulatory asset and associated tax liability. Thus, Exelon Companies propose to modify their Formula Rates to recover this tax difference on an ongoing basis, as well as to use a South Georgia catch-up provision to recover all previously unrecovered FAS 109 amounts associated with AFUDC Equity over the remaining life of the transmission assets. Exelon Companies assert that the Commission has recognized that AFUDC Equity requires adjustment in the income tax calculation 20 and that this modification is consistent with the tax recovery mechanisms that the Commission has allowed in other transmission rate filings.21

    20Id. at 29 (citing Order No. 144-A, FERC Stats. & Regs. ¶ 30,340 at 30,136).

    21Id. at 28-30 (citing Indianapolis Power & Light, 162 FERC ¶ 61,134 (2018) (IPL), Wisconsin Power & Light Co., Docket No. ER18-216-000 (Feb. 13, 2018) (delegated order) (WPL), VEPCO, Docket No. ER16-2116-000 (Aug. 2, 2016) (delegated order); ITC, 153 FERC ¶ 61,374; ATC, 93 FERC ¶ 61,335; DATC, 144 FERC ¶ 61,015).

    12. Third, Exelon Companies propose an adjustment to their Formula Rates for tax benefits flowed through to customers at the time that they originated (Flow-Through Items). Exelon Companies explain that, in the past, they recovered substantially all of their transmission revenue requirements through bundled retail rates. Exelon Companies state that they sold their generating facilities and now recover their transmission revenue requirements through the Formula Rates regulated by this Commission. Exelon Companies explain that, while their Formula Rates now employ the tax normalization methodology (i.e., Exelon Companies use comprehensive tax normalization for ratemaking purposes), Exelon Companies previously employed flow-through ratemaking for property placed in service (i.e., Exelon Companies immediately reflected the tax benefits of accelerated depreciation and cost of removal in their bundled retail rates). 22 Exelon Companies state that both the flow-through and normalization methodologies will recover the proper amount of taxes from ratepayers over time. However, the switch from one methodology to another creates timing differences that lead to a difference between a utility's deferred tax account balance and its future tax liability. Thus, Exelon Companies propose to modify their Formula Rates using the South Georgia methodology to amortize the tax balances associated with flow-through ratemaking over the remaining life of the transmission assets in place at the time they implemented their Formula Rates.23

    22 ComEd states that small excesses remain to be passed through in ComEd's accounting resulting from the pre-2007 use of the flow-through method. ComEd Transmittal at 8. Delmarva, ACE, and PEPCO state that shortfalls remain to be passed through in their accounting resulting from the pre-2005 use of the flow-through method. Delmarva Transmittal at 8; ACE Transmittal at 7; and PEPCO Transmittal at 8.

    23See, e.g., ComEd Transmittal Letter at 32 (citing Duquesne Light Co., Docket No. ER13-1220-000 (April 26, 2013) (delegated order) (Duquesne); PPL Elec. Util. Corp., Docket No. ER12-1397-000 (May 23, 2012) (delegated order) (PPL); San Diego Gas & Elec. Co., 105 FERC ¶ 61,301 (2003)).

    13. Exelon Companies state that the timing of their filings was influenced by a number of factors, in particular the desire to unlock as soon as possible customer benefits from the Tax Cuts and Jobs Act. Exelon Companies explain that they assume that recovery occurred for of an amortized portion of the FAS 109 amounts each year until their Formula Rate settlements in either 2005 or 2007, depending on the individual company. They further assert that per the Formula Rate settlements, recovery of the FAS 109 amounts were expressly excluded. Therefore, they now seek authorization for recovery of the unamortized portion of amounts from the dates the Formula Rates became effective and any new originations since the Formula Rates were effective.

    14. Exelon Companies state that the rate impact from the Formula Rate revisions on the annual transmission revenue requirements for the Formula Rates will vary from year to year. Exelon Companies estimated the one-year impact of the Formula Rate revisions using 2017 data,24 as shown in the following table:

    24See ComEd Transmittal at 47; Delmarva Transmittal at 42; ACE Transmittal at 40; and PEPCO Transmittal at 42.

    25 This column represents Exelon Companies' estimates of the benefits that customers will receive, beginning June 1, 2019, from excess ADIT from the Tax Cuts and Jobs Act. The methods for recovery of these excess ADIT amounts are being explored through the Commission's Notice of Inquiry.

    26 This column represents a one year example of the net rate increases resulting from the Exelon Companies' proposals. The net rate increases would occur each year over the remaining lives of the assets at issue.

    Company ADIT-related rate decrease from Tax Cuts and Jobs Act 25
  • ($ million)
  • Net rate
  • increase from prior period ADIT amounts 26
  • ($ million)
  • Overall net rate reduction
  • ($ million)
  • Annual
  • revenue
  • requirement
  • ($ million)
  • ComEd 18 1 17 709 Delmarva 4.1 0.7 3.4 127.9 ACE 4.2 0.6 3.6 132.7 PEPCO 5.3 0.9 4.4 161.7

    15. Exelon Companies assert that their filings are timely and should be accepted. Exelon Companies assert that the primary basis for the Commission's rejection of BGE's filing in the November 16 Order was that the BGE filing was untimely.27 They point out that one issue raised in the November 16 Order was the suggestion that BGE was seeking recovery of “decades” old amounts that should have been recovered prior to the adoption of BGE's formula rates in 2005.28 They state that BGE's rehearing request explained that BGE was not seeking recovery of these out-dated amounts and they likewise are not seeking recovery of out-dated amounts. In particular, Exelon Companies explain that they assumed that an amortized portion of the FAS 109 amounts were recovered each year until 2005 (for Delmarva, ACE and PEPCO) or 2007 (for ComEd) when the Formula Rates took effect, and they do not seek recovery of those amounts prior to 2005 or 2007, respectively. Exelon Companies state that they assumed that their black-box stated rates in place prior to the Formula Rates included recovery of FAS 109 amounts. Exelon Companies assert that this treatment is consistent with Stingray, 29 cited in the November 16 Order, in which the Commission held that it would assume that FAS 109 amounts were being amortized during the pendency of a settled stated rate that did not address the FAS 109 issue.

    27 Exelon Companies state that because their amendments to their Formula Rates are essentially identical to BGE's, which the Commission rejected in the November 16 Order, Exelon Companies arguments in support of their amendments are similar to those which BGE submitted in its rehearing request of the November 16 Order. See, e.g., ComEd Transmittal at 33.

    28Id. at 34 (citing November 16 Order, 161 FERC ¶ 61,163 at P 19).

    29Id. at 34 (citing November 16 Order, 161 FERC ¶ 61,163 at P 19 & n.25 (citing Stingray Pipeline, Co., 50 FERC ¶ 61,159, at 61,469 (1990) (Stingray)).

    16. Exelon Companies argue that their Formula Rates were settled rates, and thus did not violate the “next rate case” rule in Order No. 144. Exelon Companies explain that the November 16 Order found that BGE should have addressed FAS 109 recovery in its 2005 formula rate because it was the “next rate case” concerning FAS 109 amounts.30 Just as with BGE, Exelon Companies argue that the “next rate case” rule cannot be applied to Exelon Companies because their Formula Rates filings resulted in settlements that expressly excluded FAS 109 amounts from current rates, thus leaving the issue to be decided in some later proceeding. Exelon Companies argue that no provision in the settlement requires them to eliminate or reduce FAS 109 recovery, and it would be unlawful to read such a provision into the settlement.31

    30Id. at 35 (citing November 16 Order, 161 FERC ¶ 61,163 at PP 18-19). Order No. 144 specified that a rate applicant must make adjustments pertaining to reversals from prior flow-through or tax rate changes in “the applicant's next rate case following the applicability of [Order No. 144].” Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,519.

    31 ComEd Transmittal at 35-36.

    17. Exelon Companies also argue that Order No. 144 permits resolution of the FAS 109 issue by settlement, and recognizes that parties may reach a settlement that would defer litigation of the timing of tax recoveries. In support of this position, they point out that after Order No. 144 states that the applicants should address ratemaking treatment in the “next rate case,” it states that: “The rule, of course, leaves undisturbed the ability of the parties to reach a settlement on any of the issues covered by the rule.” 32 They also assert that the Commission explained in Order No. 144 that it wanted to ensure that “agreement by the parties not to litigate the issue in future cases is preserved and encouraged.” 33 They assert that because this is the first rate case after settlement of the Formula Rates, Exelon Companies have not violated the “next rate case” rule.

    32Id. at 36 (citing Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,519).

    33Id. (citing Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,561).

    18. Exelon Companies assert that the “reasonable period of time” standard in Order No. 144 applies to the period of time for normalization, and not the period of time in which the utility must make its rate filing to implement normalization. They assert that, in the November 16 Order, the Commission partially quoted and misconstrued a sentence in Order No. 144 when it stated that: “In Order No. 144, the Commission specifically directed utilities `to begin the process of making up deficiencies or eliminating excesses in their deferred tax reserves . . . within a reasonable period of time to be determined on a case-by-case basis.' ” 34 They state that the full sentence in Order No. 144 reads:

    34Id. at 37 (citing November 16 Order, 161 FERC ¶ 61,163 at P 19 (quoting Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,560)).

    As revised, the final rule requires rate applicants to begin the process of making up deficiencies in or eliminating excesses in their deferred tax reserves so that, within a reasonable period of time to be determined on a case-by-case basis, they will be operating under a full normalization policy.35

    35Id. at 37 (citing Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,560).

    19. Exelon Companies argue that this Order No. 144 language does not direct when utilities must make a rate case filing, as the Commission asserts in the November 16 Order, but instead it explains the standards for evaluation of “rate applicants” when their next rate case filing is made.36 Exelon Companies assert that their proposal to normalize the recovery of deficient or excess amounts over the remaining life of the assets meets Order No. 144's requirement for seeking full normalization over a reasonable period of time. Exelon Companies also point out that the definition of “rate applicant” and other portions of Order No. 144 do not specify when the next rate case must be filed.37 Exelon Companies also explain that subsequent cases clarify that recovery “in a reasonable period of time” meant recovery over the remaining life of the assets.38 Exelon Companies therefore assert that, consistent with Order No. 144, this is the first rate case after their settlement of the Formula Rates in which the issue could be addressed, and their filings provide for recovery over the remaining life of the assets, which is a reasonable period of time for recovery.

    36Id. at 38.

    37Id.

    38Id. at 39 (citing Northern States Power Co. (Wisconsin), Opinion No. 345, 50 FERC ¶ 61,377, at 62,148 (1990) (“Opinion No. 345”), and Nat. Gas Pipeline of America, Opinion No. 108, 13 FERC ¶ 61,266 (1980)).

    20. Exelon Companies argue that, in the November 16 Order, the Commission “suggested” that BGE's filing violated the Commission's matching policy because it sought recovery of amounts long after the underlying assets have been retired or have stopped being depreciated.39 They contend that, like BGE, they meet the matching test because the filings are tied to recovery over the remaining life of appropriately chosen assets.40 They conclude there is no basis for concern that “matching” of costs and asset lives has somehow been violated.41 Moreover, Exelon Companies argue that their use of the industry standard PowerTax software verifies that the Flow-Through Items regulatory asset is linked to assets that are still in service.42

    39See ComEd Transmittal at 40 & n.85 (citing November 16 Order, 161 FERC ¶ 61,163 at P 20); Delmarva Transmittal at 35 & n.83; Atlantic City Transmittal at 33 & n.83; and PEPCO Transmittal at 35 & n.83.

    40See, e.g., ComEd Transmittal at 40.

    41Id. at 41.

    42Id.

    21. Exelon Companies next argue that recovery of the amounts from 2005 (for Delmarva, ACE and PEPCO) or 2007 (for ComEd) and going forward is consistent with Order No. 144, with FAS 109 and the 1993 FAS 109 Guidance Letter, with the 2014 Staff Guidance on Formula Rate Updates, and with the orders in PPL, Duquesne, VEPCO, and ITC. In this regard, they briefly discuss each of these cases. They state that, in PPL, four years had elapsed since PPL had implemented its formula rate, and the entire regulatory asset amount, as of the date the formula rate was implemented, was authorized for recovery. In Duquesne, seven years had elapsed since its formula rate was filed, and the utility was similarly authorized to recover the amount as of the date of its formula rate. Regarding ITC and VEPCO, Exelon Companies state that these cases similarly involved a formulaic mechanism for recovery of an amortized amount, each year, of transmission-related FAS 109 amounts up through the date in which each year's rates are calculated. Unlike PPL and Duquesne, the adjustments in ITC and VEPCO also included new originating FAS 109 amounts that had been recorded after their formula rates were put in place. Taken together, Exelon Companies argue that these proceedings make it clear that formulaic recovery of FAS 109 amounts from prior to, and after, implementation of the formula rate is appropriate, which Exelon Companies argue is exactly what they propose here.

    22. While conceding that the PPL, Duquesne, and VEPCO orders were delegated letter orders, Exelon Companies point out that the ITC order was not a delegated letter order and argue that the delegated orders should be given weight as they are consistent with ITC. 43

    43Id. at 42-43.

    23. Finally, Exelon Companies argue that recovery of the past expenses would not present a problem of retroactive ratemaking because on appeal of Order No. 144, the court held that a provision for recovery of deficient deferred taxes relating to prior years is not retroactive.44 Exelon Companies assert that because customers' rates in past years did not reflect these expenses, if the FAS 109 amounts flow through rates, Exelon Companies' proposals will place customers in exactly the same position as if they had included a formulaic rate recovery of FAS 109 amounts in past rates.45

    44Id. at 44 & n.98 (citing Public Systems v. FERC, 709 F.2d 73, 85 (D.C. Cir. 1983) (Public Systems)).

    45Id. at 44.

    B. Deficiency Letter

    24. On April 24, 2018, Commission staff issued a deficiency letter advising Exelon Companies that their February 23, 2018 filings were deficient and requiring additional information to evaluate their Formula Rate revisions.46 Commission staff sought additional information from the Exelon Companies about when they changed to full tax normalization, whether the AFUDC Equity relates to current year's depreciation expense, the method used to allocate FAS 109 amounts to transmission-related components, past FAS 109 amortization collection in rate base, the Tax Reform Act of 1986, and an explanation for why the Exelon Companies decided to exclude FAS 109 recovery in their Formula Rates and why they delayed in seeking recovery.

    46PJM Interconnection, L.L.C., Deficiency Letter, Docket Nos. ER18-899-000, et al. (Apr. 24, 2018) (Deficiency Letter).

    25. On May 3, 2018, Exelon Companies filed motions for additional time to respond to the Deficiency Letter, so that their responses would be due on July 9, 2018.47 On May 14, 2018, the Commission granted Exelon Companies' motions.48

    47 ComEd Motion for Additional Time, Docket No. ER18-899-00 (filed May 3, 2018); Delmarva Motion for Additional Time, Docket No. ER18-903-00 (filed May 3, 2018); ACE Motion for Additional Time, Docket No. ER18-904-00 (filed May 3, 2018); and PEPCO Motion for Additional Time, Docket No. ER18-905-00 (filed May 3, 2018).

    48 Notice of Extension of Time, Docket No. ER18-899-000 (May 14, 2018); Notice of Extension of Time, Docket No. ER18-903-000 (May 14, 2018); Notice of Extension of Time, Docket No. ER18-904-000 (May 14, 2018); and Notice of Extension of Time, Docket No. ER18-905-000 (May 14, 2018).

    C. Deficiency Letter Responses

    26. On July 9, 2018, Exelon Companies filed responses to the Commission staff's Deficiency Letter, which amended their filings.

    27. In their response to the Deficiency Letter, the Exelon Companies largely reiterated arguments and pointed to data in their filed cases. In response to staff's question as to when full tax normalization had occurred at the retail level, the Exelon Companies explain that, prior to their Formula Rate filings, the Exelon Companies' rate filings historically resulted from black box settlements. According to the Exelon Companies, these black box settlements, prior to the implementation of Formula Rates, made it impossible to determine whether the [stated] 49 rates incorporated full tax normalization. Exelon Companies contend that only after the adoption of the subject Formula Rates were they effectively approved to implement full tax normalization.

    49 Under stated rates, utilities are assumed to be recovering all of their fixed costs, including any excess or deficiency in the deferred income tax accounts.

    28. With respect to staff's question as to whether the AFUDC Equity includes prior years' depreciation expense, Exelon Companies explain that they propose to include South Georgia catchup provisions to recover all unrecovered FAS 109 amounts associated with AFUDC Equity. The Exelon Companies explain that they intend to track the relevant assets and their relevant lives and retirements using their PowerTax and PowerPlant software, which track each plant item and associated tax expense, and thus will allow a FAS 109 amortization that properly adjusts each year based on the remaining lives of the relevant assets.

    29. In response to staff's request on the net plant allocation method used to determine the transmission-related component of FAS 109 regulatory asset, Exelon Companies explain that they generally use composite transmission depreciation rates or group rates by account. Exelon Companies explain that the ADIT reversal is calculated by multiplying the AFUDC Debt and Equity components in depreciation expense by the applicable composite income tax rate.

    30. In response to staff's request as to whether there was any accumulated FAS 109 collections associated with prior flow-through items, the Exelon Companies cite to their Formula Rate settlements which specifically exclude FAS 109 amounts from rate base, and state that their proposed Formula Rates continue to exclude FAS 109 amounts, and thus FAS 109 does not impact rate base.

    31. In response to staff's request about the Tax Reform Act of 1986, Exelon Companies explain that they assume that they have been refunding or recovering such amounts from their customers through stated rates (either retail or Commission rates). However, due to the fact that the stated rates prior to the effectiveness of their Formula Rates were black box settlements, there is no rate order that expressly spells out that such recovery is occurring.

    32. With respect to why the Exelon Companies decided to exclude FAS 109 recovery from their Formula Rates, they explain that exclusion of FAS 109 amounts was the product of settlement. Nevertheless, they suggest that it was reasonable given that the Commission's accounting policies provide that recovery of FAS 109 amounts could only happen pursuant to a FERC rate filing addressing those amounts. Further, they explain that while it is clear today that recovery of such amounts can occur formulaicly, it was not clear at the time that such automatic flow through would be acceptable.

    IV. Notices of Filings and Responsive Pleadings A. Original Filings

    33. Notice of ComEd's filing in Docket No. ER18-899-000 was published in the Federal Register, 83 FR 8986 (2018), with interventions and protests due on or before March 16, 2018. Timely motions to intervene were filed by FirstEnergy Service Company, Old Dominion Electric Cooperative, PPL Electric Utilities Corporation and Public Service Electric and Gas Company. The Illinois Commerce Commission (Illinois Commission) filed a notice of intervention and comments. On March 29, 2018, ComEd filed an answer.

    34. Notice of Delmarva's filing in Docket No. ER18-903-000 was published in the Federal Register, 83 FR 8986 (2018), with interventions and protests due on or before March 16, 2018. Timely motions to intervene were filed by Delaware Municipal Electric Corporation, Inc. (DEMEC), Delaware Division of the Public Advocate, Maryland Office of People's Counsel (Md People's Counsel), FirstEnergy Service Company, Old Dominion Electric Cooperative, PPL Electric Utilities Corporation and Public Service Electric and Gas Company. DEMEC filed a timely protest. MD People's Counsel filed timely comments. On March 29, 2018, Delmarva filed an answer. On April 13, 2018, DEMEC filed an answer to the answer.

    35. Notice of ACE's filing in Docket No. ER18-904-000 was published in the Federal Register, 83 FR 8986 (2018), with interventions and protests due on or before March 16, 2018. Timely motions to intervene were filed by FirstEnergy Service Company, the New Jersey Division of Rate Counsel (Rate Counsel), PPL Electric Utilities Corporation, Public Service Electric and Gas Company, and Vineland Municipal Electric Utility (Vineland). Rate Counsel and Vineland filed timely protests. On March 29, 2018, ACE filed an answer. On April 10, 2018, Rate Counsel filed an answer to the answer.

    36. Notice of PEPCO's filing in Docket No. ER18-905-000 was published in the Federal Register, 83 FR 8986 (2018), with interventions and protests due on or before March 16, 2018. Timely motions to intervene were filed by FirstEnergy Service Company, MD People's Counsel, Office of the People's Counsel for the District of Columbia (DC People's Counsel), Old Dominion Electric Cooperative, PPL Electric Utilities Corporation Public Service Electric and Gas Company, and Southern Maryland Electric Cooperative, Inc. (SMECO). DC People's Counsel and MD People's Counsel filed timely comments. SMECO filed a timely protest. On March 29, 2018, PEPCO filed an answer. On April 13, 2018, SMECO filed an answer to the answer.

    B. Deficiency Letter Responses

    37. Notice of ComEd's Deficiency Letter response in Docket No. ER18-899-001 was published in the Federal Register, 83 FR 32,662 (2018), with interventions and protests due on or before July 30, 2018. None were filed.

    38. Notice of Delmarva's Deficiency Letter response in Docket No. ER18-903-001 was published in the Federal Register, 83 FR 32,662 (2018), with interventions and protests due on or before July 30, 2018. DEMEC filed a timely protest. On August 13, 2018, Delmarva filed an answer.

    39. Notice of ACE's Deficiency Letter response in Docket No. ER18-904-001 was published in the Federal Register, 83 FR 32,662 (2018), with interventions and protests due on or before July 30, 2018. None were filed.

    40. Notice of PEPCO's Deficiency Letter response in Docket No. ER18-905-001 was published in the Federal Register, 83 FR 32,662 (2018), with interventions and protests due on or before July 30, 2018. DC People's Counsel filed timely comments. On August 13, 2018, PEPCO filed an answer.

    V. Responsive Pleadings A. ComEd Proceeding, Docket Nos. ER18-899-000 and ER18-899-001

    41. The Illinois Commission filed comments in support of ComEd's filing and noted ComEd's assertion that the filing represents an overall rate reduction that will directly benefit customers. It urges the Commission to allow ComEd's Formula Rate to include any necessary adjustments so that ComEd's customers fully realize these savings in a timely manner.50 In response, ComEd argues that the Commission should approve its filing without delay.

    50 Illinois Commission March 16, 2018 Comments at 1.

    B. Delmarva Proceeding, Docket Nos. ER18-903-000 and ER18-903-001 1. Protest of DEMEC

    42. DEMEC argues that Delmarva's proposal to recover FAS 109 amounts for prior periods (2005-2017) is contrary to the 2006 settlement of Delmarva's Formula Rate (2006 Settlement) and Commission precedent. DEMEC argues that contrary to Delmarva's claim that the 2006 Settlement left the issue of FAS 109 amount recovery to some later proceeding, there is no provision in the 2006 Settlement that expressly provides for addressing these amounts at some future date, and thus, Delmarva unlawfully seeks to read into the 2006 Settlement a provision that was not expressly contained in that 2006 Settlement.51 DEMEC points out that the 2006 Settlement expressly proposed to remove FAS 109 amounts, and does not include any notice or agreement to retroactively refund to Delmarva deferred tax liabilities recorded as of December 31, 2004 or any other date. Further, DEMEC asserts that Delmarva's 2005 formula rate filing was the next rate case after Order No. 144 and FAS 109 was issued, since Delmarva did make a section 205 filing with its formula rate on January 31, 2005.52 DEMEC argues that Order No. 144 did not permit utilities to forego explaining in their settlement agreements their intentions regarding implementation of Order No. 144.

    51 DEMEC March 16, 2018 Protest at 8.

    52Id. at 9-10.

    43. DEMEC argues that Delmarva's filing inappropriately attempts to tie the reductions due to transmission customers as a result of the Tax Cuts and Jobs Act to an unjust and unreasonable request for retroactive recovery of deferred tax amounts that it did not preserve to recover in subsequent periods. DEMEC asserts that the Commission should summarily reject any aspect of Delmarva's filing that would permit recovery of deferred tax adjustments for prior periods, including any proposal for inclusion of the amortization of regulatory assets and amortization of prior flow-through amounts which were incurred in the past. DEMEC argues that Delmarva's proposal pertaining to Flow-Through Items violates the matching principle, as the Commission found in the November 16 Order.53

    53Id. at 12-13 (citing November 16 Order, 161 FERC ¶ 61,163 at P 20 & n.30 (citing Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,522)).

    44. DEMEC asserts that even if Delmarva's filing is considered on a forward-looking basis, it is not consistent with Commission precedent, is lacking in adequate cost support, and contains various other errors that render it unjust and unreasonable. For these reasons, DEMEC asserts that Delmarva's filing should be set for hearing and settlement procedures and an FPA section 206 investigation should be opened to determine if further rate decreases would be appropriate.54

    54Id. at 10-11.

    45. Specifically, DEMEC argues that the Commission's policy and guidance reflects the need to differentiate between unfunded versus funded ADIT balances and to exclude FAS 109 amounts absent a demonstrated impact on billing determinations and express Commission approval, noting the 2014 Staff Guidance on Formula Rate Updates.55 DEMEC also asserts that Delmarva's proposal lacks cost support for its amortization periods and fails to pass back tax benefits to ratepayers in a reasonable amount of time.56 For example, DEMEC suggests a five-year amortization period for Non-Protected Excess ADIT amounts, as the Commission proposed in its Notice of Inquiry.57 Additionally, DEMEC asserts that Delmarva's filing fails to adjust the Account 190 ADIT amount to reflect the tax rate change from 35 percent to 21 percent, fails to exclude ADIT amounts related to the Net Operating Loss Carryforward, and fails to justify the removal of certain components from Attachment 5 of its Formula Rate.

    55Id. at 11-12 (citing 2014 Staff Guidance on Formula Rate Updates (July 17, 2014) at 1-2).

    56Id. at 15-16.

    57Id. at 17 (citing Notice of Inquiry, FERC Stats. & Regs. ¶ 35,582 at P 17).

    46. DEMEC argues that Delmarva's request for including the AFUDC Equity amount in its income tax calculation will result in double recovery of costs. DEMEC explains that Delmarva's proposal would result in not only permitting Delmarva to recover the depreciation expense in rates which exceed depreciation expenses allowed by the Internal Revenue Service (IRS), but to also recover the income taxes associated with this over-recovery of depreciation expenses. Further, DEMEC argues the Commission should ensure that even on a prospective basis, Delmarva is not permitted to double recover costs associated with depreciation expense related income taxes.58 DEMEC also argues that AFUDC Equity is a permanent tax difference, rather than a temporary tax difference, and that the Commission has required support to demonstrate that recovery of permanent tax differences is just and reasonable.59

    58Id. at 18.

    59Id. at 19.

    47. DEMEC argues Delmarva's filing does not include a number of Tax Cuts and Jobs Act provisions that would further reduce Delmarva's transmission rates, including the following: (1) The Federal corporate rate reduction from 35 percent to 21 percent; (2) employee-related deductions; and (3) various other reductions. Additionally, DEMEC asserts that the Commission should require Delmarva to reflect the refunds caused by all the rate reductions resulting from the Tax Cuts and Jobs Act as of the effective date of the Tax Cuts and Jobs Act, which is January 1, 2018.60

    60Id. at 15.

    2. Comments of MD People's Counsel

    48. MD People's Counsel argues that the Commission should consider requiring Delmarva to include an interest provision for refunds from the Tax Cuts and Jobs Act. MD People's Counsel also argues that Delmarva's filing lacks sufficient details and supporting workpapers for MD People's Counsel to understand the impact and accuracy of Delmarva's ADIT calculations providing for flow-back of excess ADIT to customers or recovery of deficient ADIT from customers. MD People's Counsel notes that these were both issues raised in the Commission's Notice of Inquiry.

    49. MD People's Counsel disagrees with Delmarva that the FAS 109 mechanism for deferred tax assets qualifies for single-issue rate treatment.61 MD People's Counsel explains that the Commission has limited the use of single-issue rate treatment to “ADIT treatment in formula rates when such revisions are only considered mere differences in timing.” 62 MD People's Counsel asserts that Delmarva's revisions to the treatment of FAS 109 deferred tax assets are more than differences in timing and represent a significant departure from previous Commission-approved accounting methods. MD People's Counsel also explains that Delmarva's Formula Rate protocols only allow single-issue rate treatment for certain issues, which does not include the proposed FAS 109 mechanism, and therefore Delmarva's next section 205 general rate cases are the appropriate venue to consider this change.

    61 MD People's Counsel March 16, 2018 Comments to Delmarva at 5-7.

    62Id. at 5 (citing Indicated RTO Owners, 161 FERC ¶ 61,018, at P 14 (2017)).

    3. Answer of Delmarva

    50. Delmarva responds that its request is permitted under the Commission's single-issue ratemaking policy, which allows “limited revisions addressing [ADIT] treatment in formula rates when such revisions are only considered mere differences in timing.” 63 Further, Delmarva asserts that severing the formula rate adjustments pertaining to the Tax Cuts and Jobs Act from other portions of Delmarva's proposal, as requested by the MD People's Counsel, would transform its filing into a new rate scheme and violate the FPA.64 Delmarva asserts that DEMEC and MD People's Counsel have failed to demonstrate any problem with the Formula Rates, aside from issues raised in Delmarva's filing, and therefore the Commission should follow its single-issue ratemaking policy and grant Delmarva's request.65

    63 Delmarva March 29, 2018 Answer at 4 (citing Indicated RTO Owners, 161 FERC ¶ 61,018 at P 14).

    64Id. at 12 & n.39 (citing NRG Power Mktg., LLC v. FERC, 862 F.3d 108 (D.C. Cir. 2017) (NRG) (rejecting Commission orders transforming a rate scheme in a section 205 filing into an entirely new rate scheme of the Commission's making)).

    65Id. at 4-6.

    51. Delmarva also disagrees with DEMEC's allegation that recovery of FAS 109 amounts would violate the 2006 Settlement Agreement and would result in retroactive ratemaking. Delmarva states that if the 2006 Settlement Agreement precluded future recovery of FAS 109 amounts as DEMEC asserts, then DEMEC's request—to recognize in rates excess/deficient deferred taxes arising from the Tax Cuts and Jobs Act effective January 1, 2018—would also be precluded.66 Delmarva reiterates its previously stated positions on Order No. 144, FAS 109 and the 1993 FAS 109 Guidance Letter, the 2014 Staff Guidance on Formula Rate Updates, and the November 16 Order. In particular, Delmarva explains that since the issuance of Order No. 144, the Commission has recognized that deferred taxes are not like other rate elements that can only be recovered during the applicable test period rate year, but that the Commission allows accrual of deferred tax excesses and shortfalls until later rate years, with the recovery to be determined in later rate cases on a “case by case basis.” 67 Delmarva also points out that an appellate court has explicitly rejected the argument that later recovery of deferred taxes is retroactive ratemaking.68

    66Id. at 6-7.

    67Id. at 8.

    68Id. at 8 & n.28 (citing Public Systems, 709 F.2d at 85).

    52. Delmarva argues that its filing does not remove any components of Attachment 5 of Delmarva's Formula Rate and that DEMEC's assertions that it has deleted these components is erroneous.

    53. Delmarva also argues that DEMEC's claim that rate recovery of FAS 109 amounts associated with the equity component of the AFUDC somehow amount to double recovery are incorrect. Delmarva states that DEMEC's claim seems to be premised on the fact that AFUDC Equity is a “permanent tax difference” rather than a “temporary timing difference.” Delmarva argues the Commission has repeatedly recognized that formula recovery of FAS 109 amounts associated with AFUDC Equity is appropriate and DEMEC has not addressed this precedent or provided a reason for the Commission to rule differently.69

    69Id. at 14.

    54. Delmarva argues that DEMEC's challenges to the specifics of Delmarva's FAS 109 calculations 70 and to non-FAS issues 71 should be addressed as part of the Annual Update process.

    70 Delmarva notes that, for example, DEMEC raises questions about whether Delmarva's FAS 109 accounting factors in the distinctions between “funded” and “unfunded” assets and liabilities. Id. at 14 & n.46 (citing DEMEC March 16, 2018 Protest at 11-12).

    71 Delmarva notes that DEMEC raises various questions about whether Delmarva will properly calculate its Formula Rate, such as whether Delmarva's rate base calculations will properly reflect Account 190 and whether its rates will include various tax deductions from the Tax Cuts and Jobs Act. Id. at 15-16 & n.48 (citing DEMEC March 16, 2018 Protest at 14, 19-20).

    4. DEMEC's Answer to the Answer

    55. DEMEC reiterates that Delmarva has failed to provide cost support, workpapers or justification for its proposed amount and timing of its Excess/Deficient Deferred Taxes adjustment and associated amortization periods, AFUDC Equity permanent tax difference adjustment, and Flow-Through Items adjustment. DEMEC states that it cannot rely on the Annual Update process for this information, as the Annual Update process does not allow DEMEC to challenge the Formula Rate itself.

    56. DEMEC asserts that Delmarva misstates the terms of the 2006 Settlement. DEMEC points out that Attachment H-3D of the Formula Rate only includes the instruction to exclude FAS 109 amounts from the Formula Rate.72 DEMEC also argues that section 6.11 of the 2006 Settlement provides that the settling parties are not to rely on any term not expressly set forth in the 2006 Settlement. DEMEC argues that there is nothing in the 2006 Settlement that permits Delmarva to recover excluded FAS 109 amounts in future years. DEMEC therefore argues that Delmarva unravels the 2006 Settlement by now seeking recovery of FAS 109 amounts back to 2005. Further, DEMEC states that the Formula Rate protocols provide that the Annual Updates are final and no longer subject to change or challenge on the later of the passage of the challenge period or a final Commission order on the Annual Update, subject to judicial review.73

    72 DEMEC April 13, 2018 Answer to the Answer at 4. In particular, Attachment 1 of Attachment H-3D of Delmarva's Formula Rate states: “Less FASB 109 Above if not separately removed.”

    73Id. at 6.

    57. DEMEC reiterates that Delmarva's 2005 Formula Rate filing was the “next rate case” after Order No. 144 to obtain FAS 109 recovery, and Delmarva's current proposal, filed 13 years after its Formula Rate was implemented, was not filed within “a reasonable period of time” required by Order No. 144 to obtain FAS 109 recovery.74 DEMEC argues that Public Systems does not support Delmarva's case, because Delmarva's filing is seeking to recover shortfalls in prior rates going back over 13 years and therefore Delmarva is engaged in retroactive ratemaking.75 DEMEC therefore requests that the Commission reject Delmarva's proposal to recover deferred tax amounts back to 2005.

    74Id. at 5-6.

    75Id. at 7-8.

    58. DEMEC states that, contrary to Delmarva's assumption, DEMEC's argument about double recovery of AFUDC Equity is not based on a claim that the request represents a permanent tax difference.76 Rather, DEMEC explains that the AFUDC Equity adjustments results from the fact that the IRS does not allow depreciation expense associated with AFUDC Equity to be deducted on the tax return, while the Commission does permit recovery of this depreciation expense in transmission rates.77 DEMEC states that Delmarva includes AFUDC Equity as a part of its rate base, and it recovers depreciation associated with the AFUDC Equity as well as a return on it with associated income taxes at the full statutory tax rate. DEMEC asserts that Delmarva's proposal would permit Delmarva to recover the depreciation expense in rates, which exceed depreciation expenses allowed by the IRS, and also recover the income taxes associated with this over-recovery of depreciation expenses.78

    76Id. at 11 (citing Delmarva March 29, 2018 Answer at 14).

    77Id.; DEMEC March 16, 2018 Protest at 18.

    78 DEMEC April 13, 2018 Answer to the Answer at 11.

    59. DEMEC also asserts that Delmarva is incorrect that single-issue rate making is applicable to its filing, because its filing is not limited to addressing ADIT timing differences in the current or future test years. DEMEC argues that any proposed change to this component of the Formula Rate retroactive to 2005 would require investigation of the justness and reasonableness of the provisions of the existing Formula Rate that Delmarva has not proposed to change.79

    79Id.

    5. DEMEC Protest of Deficiency Letter Response

    60. DEMEC reiterates its position that the 2006 Settlement contains no provision that supports Delmarva's proposed treatment of FAS 109 amounts, AFUDC equity, and excess/deficient deferrals amounts. DEMEC maintains that recovery of these amounts for prior periods would be contrary to the filed rate doctrine, and that Delmarva's claims pertaining to recovery in the “next rate case” are contrary to relevant Commission precedent and guidance.80

    80 DEMEC July 30, 2018 Protest of Deficiency Letter Response at 6.

    61. DEMEC also argues that Delmarva's Deficiency Response amplifies the unreasonableness of its AFUDC equity proposal, because the proposal implicates potential double-recovery or previously bargained-for compromises. DEMEC restates that Delmarva's proposal runs afoul of the rationales articulated by the court in Public Systems, and that PPL, Duquesne, and VEPCO are inapt. DEMEC notes that Delmarva failed to respond to Commission staff's question regarding the retail rate orders approving Delmarva's full tax normalization and any catchup provisions similar to the South Georgia catchup provision. DEMEC asserts that Delmarva's reliance on discovery protocols in the annual update process for post-2005 originations is insufficient as it is Delmarva's burden to prove the reasonableness of its section 205 application.81

    81Id. at 10-11.

    62. Finally, DEMEC emphasizes that Delmarva did not clarify whether the “weighted average expected service lives” it references in its Deficiency Response are equal to the lives used by Delmarva for depreciating the assets and amortizing the Investment Tax Credits. DEMEC requests that the Commission require Delmarva to do so.82

    82Id. at 11.

    6. Delmarva Answer to DEMEC Protest of Deficiency Response

    63. Delmarva reiterates its arguments that the 2006 Settlement expressly recognizes the existence of the FAS 109 regulatory asset or liability.83

    83 Delmarva August 13, 2018 Answer to DEMEC Protest of Deficiency Response at 5.

    64. With respect to DEMEC's concern that the AFUDC equity component of Delmarva's filing amounts to double recovery or over recovery, Delmarva argues that as the Commission explained in Ameren, the Commission's guiding principle is that it limits the allowance charged to ratepayers to an amount equal to the costs the company incurs in serving them.84 Delmarva argues there is no serious dispute that the AFUDC Equity amounts at issue here, even those that originated pre-2005, are real costs incurred by Delmarva in serving ratepayers and thus, Delmarva is entitled to recover those costs.85

    84Id. at 13 (citing Midcontinent Indep. Syst. Operator, 163 FERC ¶ 61,163, at P 63 (2018) (Ameren)).

    85Id.

    65. In response to DEMEC's argument that there is something unclear about the amortization proposed in the filing, Delmarva argues its filing was clear.86 Delmarva asserts that as explained in the response to Question 2(iii), Delmarva will amortize post-2005 amounts based on the remaining lives of the relevant assets. For pre-2005 assets, Delmarva argues it proposes an amortization based on the average remaining life of all of its transmission assets as of 2005-25 years, which it argues is consistent with the methodologies the Commission accepted in PPL and Duquesne. 87 Delmarva asserts that if questions arise about whether Delmarva has properly implemented the rates in any rate year, those questions can be raised as part of the annual rate update process.88

    86Id. at 13-14.

    87Id. at 14.

    88Id.

    C. ACE Proceeding, Docket Nos. ER18-904-000 and ER18-904-001 1. Protests of Vineland and Rate Counsel

    66. Vineland concurs with the ACE Formula Rate amendments to the extent that they provide a mechanism to refund to customers the excess ADIT created when the Tax Cuts and Jobs Act reduced the ACE corporate tax rate.89

    89 Vineland March 16, 2018 Protest at 1-2.

    67. However, Vineland objects to ACE's proposal to amend its Formula Rate to recover deficient ADIT predating the Tax Cuts and Jobs Act. Vineland argues that the proposals by ACE on: (1) Excess/Deficient Deferred Taxes; (2) AFUDC Equity; and (3) Flow-Through Items were specifically considered and rejected in the BGE case. Vineland argues the same logic that led the Commission to reject those proposals in BGE should prevail here.90

    90Id. at 2.

    68. Vineland argues that ACE's proposed amortization period for refund of the excess ADIT related to the Tax Cuts and Jobs Act, set forth in Exhibit D-2 of ACE's Filing, is not well documented and Vineland seeks Commission review and approval of the amortization period proposed. Vineland notes that ACE proposes a 35-year amortization period which it states equates to the average remaining book life of the assets that were initially taxed. Vineland seeks Commission review and confirmation that the amortization period is properly related to the transmission plant giving rise to the refund of excess ADIT brought about by the Tax Cuts and Jobs Act.91

    91Id. at 5-6.

    69. Rate Counsel argues that as the changes sought by ACE are substantively identical changes to those sought previously—and unsuccessfully—by BGE, the Comission should summarily reject them.92 Rate Counsel disagrees that the precedent cited by ACE—Duquesne, PPL, VEPCO and ITC—is applicable. Rate Counsel argues that the ITC proceeding related to a 2011 tax change that occurred four years prior to the filing in that case and the VEPCO proceeding related to a 2013 tax change that occurred three years prior to the filing in that case. Rate Counsel states that in contrast, while the identity of the events that have given rise to the changes ACE wishes to implement are not obvious from ACE's filing, it appears that ACE—much like its affiliate BGE, which the Commission condemned for seeking recoveries related to pre-1976 plant—is here seeking recoveries associated with items dating back to the 1970s. Similarly, Rate Counsel argues ACE's reliance on other Commission letter orders, such as the one issued in Wisconsin Power & Light Co., do not justify approval here.93

    92 Rate Counsel March 16, 2018 Protest at 4.

    93Id. at 4.

    70. Rate Counsel notes that FAS 109, established in 1992, required public utilities to make changes to their balance sheet to account for the proper recording of (i) changes in tax laws or tax rates in the period that the change is enacted and reflected in the utilities' deferred tax accounts, (ii) a deferred tax liability for the equity component of AFUDC depreciation expense, and (iii) a deferred tax liability for any unfunded tax benefits previously flowed through to ratepayers. Rate Counsel notes that in implementing FAS 109, the Chief Accountant advised that if a utility's billing determinations would be affected by adoption of FAS 109, then the utility must file with the proper rate regulatory authorities before implementing the change in tariff billings. Thus, Rate Counsel argues that contrary to ACE's request here, filings implementing FAS 109 changes for billing purposes were to be prospective—not retrospective.94

    94Id. at 5.

    71. Rate Counsel next argues that ACE, like BGE, failed to comply with the requirement to make a filing within a reasonable period of time. Rate Counsel argues ACE has previously recorded all amortizations of the FAS 109 regulatory assets and liabilities on its books and records for the period 2005-2017. Rate Counsel argues ACE's claim that it is making this adjustment to reverse the prior accounting treatment of amortizing the FAS 109 assets and liabilities for 2005-2017 period to “properly match the ratemaking” is illogical.95 Rate Counsel argues ACE's existing transmission formula rate template already appropriately reflects the removal (i.e., exclusion) of FAS 109's current year balance from ADIT.96 Rate Counsel argues ACE has already properly excluded FAS 109 balances for ratemaking purposes in prior year periods, and has also properly amortized the FAS 109 assets and liabilities each year for the 2005-2017 period.97

    95Id. at 6.

    96Id. at 6-7.

    97Id. at 7.

    72. Rate Counsel argues the 2006 Settlement Agreement did not contemplate that ACE would defer these FAS 109 amounts and seek recovery in a subsequent rate case. Rather, in the 2006 Settlement Agreement, the settling parties agreed on a revenue formula that was accepted as just and reasonable, and which specifically excluded the recovery of FAS 109 ADIT and annual amortization amounts.98 Rate Counsel asserts that ACE has offered no basis that would justify a unilateral amendment of the settled formula rate.99

    98Id.

    99Id. at 9.

    73. Rate Counsel asserts ACE cannot leverage the tax law change into a basis for belated recovery of unrelated dollars. While Rate Counsel agrees that a mechanism should be added to the formula to account for the flow back of prospective Excess/Deficient Deferred Income Taxes associated with federal income tax and state income tax rate changes, especially in light of the recent significant reduction of the federal income tax rate, Rate Counsel argues that it is not appropriate to include amortization of Excess/Deficient Income Taxes from prior periods. Rate Counsel argues that in addition to dating back as much as 44 years, many of these items appear to be temporary in nature and thereby create only temporary timing differences. Rate Counsel argues ACE has not provided a detailed description of each of the “Other Flow Through Items,” nor a detailed explanation supporting a special formula adjustment to accommodate them. Rate Counsel argues ACE has also not demonstrated that transmission customers benefited from the prior flow-through. Therefore, Rate Counsel argues ACE has not demonstrated that the transmission customers should now fund the “deficiency” in deferred income tax liabilities.100

    100Id. at 11-13.

    74. Rate Counsel argues that ACE's claim that all FAS 109 items must flow through the formula is unfounded and asserts FAS 109 includes numerous items, each of which needs Commission approval. Rate Counsel argues that a new line item can be added in Account 283 to record the excess deferred taxes related to the federal income tax rate change.101

    101Id. at 13.

    75. Rate Counsel argues ACE has not demonstrated that the ten-year amortization period is appropriate for transmission customers. Rate Counsel argues the use of such a lengthy amortization period may cause cross-generational cost allocation issues.102

    102Id. at 14.

    2. Answer of ACE

    76. ACE filed in its answer nearly identical responses to Delmarva's answer in response to protesters' arguments on the following three issues: (1) Single-issue rate treatment; (2) the allegation that recovery of FAS 109 amounts would violate the 2006 Settlement Agreement and would result in retroactive ratemaking; and (3) severing formula rate adjustments pertaining to the Tax Cuts and Jobs Act from other portions of ACE's proposal.

    77. ACE argues that Vineland's suggestion—that ACE seek Commission approval for each and every FAS 109 amount as it arises—would be burdensome and extreme because FAS 109 amounts arise frequently, thus requiring multiple section 205 filings for every such expense. ACE states that the Commission has repeatedly recognized that formula recovery of FAS 109 amounts is just and reasonable.103

    103 ACE March 29, 2018 Answer at 12-13.

    78. ACE asserts that Rate Counsel failed to cite precedent that precludes ACE from correcting accounting errors, such as ACE's reversal of amortizations of FAS 109 amounts. ACE instead argues that Duquesne and PPL support its proposal to correct these amortizations to align rate treatment of FAS 109 amounts, and therefore Rate Counsel's argument should be summarily rejected.104

    104Id. at 13-14.

    79. Finally, ACE argues that various challenges raised by Rate Counsel regarding numerical values in the proposal are more appropriately raised within the annual formula rate update and challenge process. ACE states that the formula rate protocols provide a robust process for obtaining discovery on and challenging particular items included in the annual rate update, and therefore the Commission should reject Rate Counsel's arguments without prejudice to their right to raise those issues in that forum.105

    105Id. at 15.

    3. Rate Counsel's Answer to the Answer

    80. Rate Counsel argues that contrary to ACE's claims, the ACE accounting department did not make an error, but instead correctly amortized the FAS 109 amounts in ACE's books and records from 2006 through 2016, consistent with Generally Accepted Accounting Principles (GAAP).106 Further, Rate Counsel argues that if ACE's intention was to defer FAS 109 amortizations from 2006-2016, then ACE should have requested authorization from the Commission to implement such accounting treatment.107

    106 Rate Counsel April 10, 2018 Answer to the Answer at 3.

    107Id. at 3-4.

    81. Rate Counsel also argues that contrary to ACE's claims, it is not asking the Commission to make an impermissible retroactive change to ACE's rates. To this point, Rate Counsel argues that the FAS 109 current balances, after reflecting all prior period amortizations and those amortizations that should have been expensed annually, are the appropriate basis for any current or future amortizations and only after the Commission approves each FAS 109 component.108

    108Id. at 4.

    D. PEPCO Proceeding, Docket Nos. ER18-905-000 and ER18-905-001 1. Protest of SMECO

    82. SMECO asserts that PEPCO's proposal to recover FAS 109 amounts from prior periods is not just and reasonable for four reasons. First, SMECO argues that PEPCO's proposal violates the filed rate doctrine and the rule against retroactive ratemaking. SMECO reasons that the 2006 Settlement Agreement adopted a formula rate template that specifically excluded these amounts and that PEPCO did not expressly reserve a right to defer these amounts for future recovery.109 SMECO also contends that, contrary to PEPCO's assertion, the 2006 Settlement Agreement constituted the “next rate case” following Order No. 144.110 Alternatively SMECO argues that to the extent PEPCO wanted to attempt to recover these FAS 109 amounts, it should have done so immediately after the rate moratorium (which resulted from settlement) that ended on June 1, 2009. SMECO notes that accepting PEPCO's proposal now would also contradict precedent set in the November 16 Order involving BGE.111

    109 SMECO March 16, 2018 Protest at 3-4.

    110Id. at 5.

    111Id. at 6-7.

    83. Secondly, SMECO notes that, for accounting purposes, PEPCO has already been amortizing FAS 109 regulatory assets and liabilities for the 2005-2017 period. SMECO states that PEPCO's proposal to reverse all these amortizations “to properly match the ratemaking” is illogical because PEPCO's formula rate already appropriately reflects the exclusion of FAS 109 current year balances from ADIT.112

    112Id. at 8.

    84. Thirdly, SMECO argues that for PEPCO to properly seek rate recovery of prior FAS 109 amounts for AFUDC Equity Origination/Depreciation, it would have needed to create a deferred regulatory asset on its books to record the annual AFUDC Equity depreciation amount, which it did not. SMECO contends that PEPCO is effectively attempting to revise its books to create these deferred regulatory assets retrospectively.113

    113Id. at 9.

    85. Finally, SMECO agrees that a mechanism in the formula rate is necessary to flow back Excess/Deficient Deferred Taxes associated with federal and state income tax changes. However, SMECO claims that PEPCO has not adequately supported its proposed amortization and that it is inappropriate to include amortization of Excess/Deficient Income Taxes from prior periods.114

    114Id. at 10-11.

    86. SMECO alleges that many of the “Other Flow Through Items” appear to be temporary in nature, and that PEPCO has failed to sufficiently support its basis for making a special adjustment to income taxes in the formula rate for these items. SMECO maintains that, as with the other prior-period FAS 109 amounts, it is inappropriate for PEPCO to recover these amounts from prior periods in its current and future formula rates, and that PEPCO could have dealt with these items in the 2006 Settlement Agreement.115

    115Id. at 11-12.

    87. SMECO states that the entire FAS 109 amounts (including deferred tax amounts from prior periods) do not need to be included in rates in order to effectuate the Tax Cuts and Jobs Act. SMECO argues that PEPCO can instead create a new line item in Account 283 to implement the excess deferred taxes related to the adjustment of the federal income tax rate, or that the regulatory liability balance for the excess deferred tax reserve recorded in Account 254 can be included as an adjustment to rate base.116

    116Id. at 12-13.

    88. SMECO also argues that PEPCO has not supported its claim that the Flow-Through Items regulatory asset is linked to assets that are still in service. SMECO further argues that the Commission should reject PEPCO's attempt to shift the burden of proof regarding the reasonableness of its proposal to transmission customers via the formula rate protocols.117 SMECO also notes that PEPCO does not address the overall tax rate change from 35 percent to 21 percent in its filing.118

    117Id. at 13.

    118Id. at 14.

    89. SMECO argues that PEPCO has not sufficiently supported the amortization periods it proposes to apply for Excess Deferred Taxes Decrease/(Increase) to deferred tax assets for Protected Property Rate Base, Non-Protected Property Rate Base, Non-Protected Non-Property Rate Base, and Non-Protected Non-Rate Base balances. SMECO also specifically disputes PEPCO's proposed 10-year amortization period for Non-Protected Non-Property and Non-Protected Non-Rate Base items, alleging that this may cause intergenerational cost allocation issues, wherein the customers that contributed to the excess deferred income taxes may not necessarily be the same customers that receive the flow back of excess deferred income taxes.119

    119Id. at 14-15.

    2. Comments of MD People's Counsel and DC People's Counsel

    90. MD People's Counsel filed comments in response to PEPCO's filing that were identical to the comments it filed in response to Delmarva's filing.120

    120 MD People's Counsel March 16, 2018 Comments to PEPCO at 1, 3-7.

    91. DC People's Counsel agrees with PEPCO's proposal to apply the average rate assumption method in calculating excess ADIT on Protected Property Rate Base balances, but requests that the Commission utilize its discretion to institute a shorter amortization period for excess ADIT on Non-Protected Rate Base and Non-Rate Base balances. DC People's Counsel specifically requests a 10-year amortization period for excess ADIT on Non-Protected Property Rate Base balances, and a 5-year amortization period for excess ADIT on Non-Protected Non-Property Rate Base and Non-Protected Non-Rate Base balances.121

    121 DC People's Counsel March 16, 2018 Comments to PEPCO at 5-6.

    92. DC People's Counsel argues that amending the formula rate to recover historical FAS 109 amounts and provide for automatic pass through of ongoing FAS 109 amounts is unnecessary to return tax savings to ratepayers resulting from the Tax Cuts and Jobs Act. DC People's Counsel notes that although PEPCO argues the instant case is the “next rate case” following the 2006 Settlement Agreement, the requested 60-day schedule is insufficient to thoroughly explore the ramifications of PEPCO's proposal.122 DC People's Counsel also states that it would be unwise to approve PEPCO's proposal until the Commission completes its review of ADIT issues implicated by the Tax Cuts and Jobs Act under Docket No. RM18-12-000.123

    122Id. at 7-8.

    123Id. at 9.

    93. DC People's Counsel argues that PEPCO's proposal does not meet the Commission's criteria for single-issue treatment of ratemaking. DC People's Counsel states that the Commission has limited the use of single-issue treatment to “ADIT treatment in formula rates when such revisions are only considered mere differences in timing,” and that PEPCO's proposal represents a significant departure from previous Commission-approved accounting methods. DC People's Counsel further argues that the proposed treatment of FAS 109 amounts will likely result in changes in other component costs that warrant the Commission's full understanding, which is not possible in a single-issue rate case.124

    124Id. at 9-10.

    3. Answer of PEPCO

    94. PEPCO filed in its answer nearly identical responses to Delmarva's responses to protesters' arguments on the following three issues: (1) Single-issue rate treatment; (2) the allegation that recovery of FAS 109 amounts would violate the 2006 Settlement Agreement and would result in retroactive ratemaking; and (3) severing formula rate adjustments pertaining to the Tax Cuts and Jobs Act from other portions of ACE's proposal.

    95. PEPCO asserts that SMECO failed to cite precedent that precludes PEPCO from correcting accounting errors, such as PEPCO's reversal of amortizations of FAS 109 amounts. PEPCO instead argues that Duquesne and PPL support its proposal to correct these amortizations to align rate treatment of FAS 109 amounts, and therefore SMECO's argument should be summarily rejected.125

    125 PEPCO March 29, 2018 Answer at 13-14.

    96. Finally, PEPCO argues that various challenges raised by SMECO regarding numerical values in the proposal are more appropriately raised within the annual formula rate update and challenge process. PEPCO states that the formula rate protocols provide a robust process for obtaining discovery on and challenging particular items included in the annual rate update, and therefore the Commission should reject SMECO's arguments without prejudice to their right to raise those issues in that forum.126

    126Id. at 14.

    4. SMECO's Answer to the Answer

    97. SMECO argues that there is no provision in Attachment 1 of Attachment H-9A or any other portion of the settlement agreement or Formula Rate established as part of the 2006 Settlement that preserves PEPCO's ability to collect FAS 109 deferred tax amounts at a future date. Further, SMECO argues that Section 6.11 of the 2006 Settlement makes clear that the Settling Parties are not to rely on any term not expressly set forth in the Settlement by stating, “none of the Settling Parties has relied upon any representation, express or implied, not contained in this Settlement.” 127 Additionally, SMECO argues that until PEPCO revised its formula rate protocols effective December 3, 2015, the formula rate protocols provided that PEPCO's annual updates would become final and no longer subject to change or challenge by any entity on the latter of the passage of the challenge period or final FERC order on the annual update, subject to judicial review.128

    127 SMECO April 13, 2018 Answer to Answer at 3-4.

    128Id. at 4.

    98. SMECO argues that PEPCO misstates the applicability of Order No. 144 and associated cases and Commission guidance to its filing in this proceeding. SMECO further argues that even if PEPCO's erroneous interpretation of the 2006 Settlement and the Order No. 144 precedent is considered in a light most favorable to PEPCO, recovering deferred tax liabilities thirteen years after they could have been captured in the Formula Rate since its implementation on 2005, is not a reasonable period.129

    129Id. at 6.

    99. SMECO argues that it is not seeking to prevent PEPCO from recovering prior FAS 109 amounts due to “erroneous accounting” that has now been corrected. SMECO argues that while PEPCO describes it as an “accounting error,” PEPCO's amortization of FAS 109 amounts in fact reflects that PEPCO's accounting department recognized that PEPCO had not sought or received Commission approval for the deferral of FAS 109 amounts and must amortize the FAS 109 amounts as required under GAAP.130

    130Id at 7-8.

    100. SMECO argues PEPCO does not meet its FPA section 205 burden of proof in this proceeding when it argues that the issues SMECO has raised in its protest should be deferred to the annual update process. SMECO asserts that the issues it has raised are pertinent to the justness and reasonableness of PEPCO's Formula Rate revisions and should be addressed in the instant proceeding.131

    131Id. at 8.

    5. DC People's Counsel Comments on Deficiency Letter Response

    101. In its response to PEPCO's response to the Deficiency Letter, DC People's Counsel reiterates its opposition to PEPCO's proposal to recover FAS 109 deferred tax assets.132

    132 DC People's Counsel July 30, 2018 Comments on Deficiency Letter Response at 1-2.

    102. DC People's Counsel states that PEPCO's current transmission Formula Rate plan does not include FAS 109 deferred tax assets. However, PEPCO's application proposes a modification to the Formula Rate plan that would include historical FAS 109 deferred tax assets in the Formula Rate plan dating back to December 31, 2004.133 DC People's Counsel expresses concern regarding PEPCO's request to modify its Formula Rate plan to now include these historical FAS 109 deferred asset balances going back to December 31, 2004 and to provide for automatic pass through in formula-based transmission rates of similar deferred assets.134

    133Id. at 5.

    134Id. at 6.

    103. DC People's Counsel concludes that the explanations provided in PEPCO's response are insufficient to justify inclusion of such FAS 109 deferred asset balances in PEPCO's revised Formula Rate plan at this time. Given PEPCO's history of “black box” settlements and the lengthy period (from mid-2005 through 2017) over which PEPCO has accumulated such balances, DC People's Counsel recommends excluding the FAS 109 deferred asset amortizations from the adjustment to PEPCO's transmission rates at this time, to allow for detailed scrutiny and analysis of those balances in a complete rate case.135

    135Id. at 7.

    6. PEPCO Answer to DC People's Counsel Comments on Deficiency Response

    104. PEPCO argues DC People's Counsel has not alleged, much less supported, an argument that formula elements outside of the proposed FAS 109 modifications are incorrect and that there is no basis for ordering a complete rate case that goes beyond the issues raised in PEPCO's filing.136 PEPCO argues that the Commission accepted a single issue filing considering amendments to a formula rate to provide for rate recovery of FAS 109 amounts in May 2018 in Ameren. 137

    136 PEPCO August 13, 2016 Answer to DC People's Counsel Comments on Deficiency Letter Response at 5.

    137Id. at 5 (citing Ameren, 163 FERC ¶ 61,163).

    105. PEPCO argues the Commission's policy and precedent permitting rate flow through of FAS 109 amounts is clear and argues the Commission's recent ruling in its Pipeline Tax Final Rule describes and summarizes the Commission's relevant tax ratemaking policies, and makes clear that PEPCO's filing is well founded.138 PEPCO argues the findings in the Pipeline Tax Final Rule concerning FAS 109 adjustments are directly applicable in this proceeding, because PEPCO's filing relies on the exact same policies and precedent. PEPCO argues that it is subject to the Commission's accounting rules that require accrual of FAS 109 amounts to a regulatory asset or liability, and the precedent providing for later rate pass through.139

    138Id. at 5-6 (citing Interstate and Intrastate Natural Gas Pipelines; Rate Changes Relating to Federal Income Tax Rate, Order No. 849, FERC Stats. & Regs. ¶ 31,404 2018)).

    139Id. at 7.

    106. With respect to DC People's Counsel's argument to accept certain aspects of PEPCO's filing, while rejecting others, PEPCO argues that neither the FPA nor Commission precedent permit the Commission to somehow sever the adjustments related to the Tax Cuts and Jobs Act from the other portion of the FAS 109 modifications in the filing. PEPCO argues that in doing so, it would transform the filing from a fair and evenhanded amendment intended to have taxes flowing through rates match actual tax liabilities over time into an entirely different rate scheme in which tax liabilities of the utility would not be adequately reflected in rates. Further, PEPCO argues there is no basis for rejecting, delaying, or otherwise preventing the effectiveness of the proposed FAS 109 amendments.140

    140Id. at 8.

    VI. Discussion A. Procedural Matters

    107. Pursuant to Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2018), the notices of intervention and the timely, unopposed motions to intervene serve to make the entities that filed them parties to the specific proceeding in which they intervened.

    108. Rule 213(a)(2) of the Commission's Rules of Practice and Procedure, 18 CFR 385.213(a)(2) (2018), prohibits an answer to a protest and an answer to an answer unless otherwise ordered by the decisional authority. We will accept the answers to the protests and the answers to the answers in the specific proceeding in which they were filed because they have provided information that assisted us in the decision-making process.

    B. Substantive Matters

    109. We find that Exelon Companies have not shown that their proposed Formula Rates provisions allowing for the recovery of previously incurred income tax amounts are just and reasonable and therefore we reject their filings. While we do not find Exelon Companies' proposal to refund deferred amounts related to the recent Tax Cuts and Jobs Act or its proposal to recover or return deferred income tax amounts on an ongoing basis to be unjust and unreasonable, we reject Exelon Companies' proposal as a whole, in recognition of Exelon Companies' statements that accepting only certain aspects of its proposal would “transform this filing into an entirely new rate scheme.” 141

    141E.g., ComEd Transmittal at n.8.

    110. As described below, our rejection of the Exelon Companies' filings is without prejudice to Exelon Companies submitting new filings with a mechanism to refund or recover, as appropriate, deferred income tax excesses and deficiencies related to the recent Tax Cuts and Jobs Act and any future income tax changes, any new originations of past income tax changes, and taxes on AFUDC Equity associated with current and future years' depreciation expense.142 As described below, we also announce a limited compliance period under Order No. 144 for other utilities to make section 205 filings to recover past ADIT in certain circumstances.

    142 Further, our action here is not intended to prejudge future action by the Commission in the Notice of Inquiry concerning the Tax Cuts and Jobs Act.

    1. Timing of Exelon Companies Filings

    111. As the Commission found in the November 16 Order involving BGE, we find that the deferred amounts Exelon Companies seek to recover here should have been captured when Exelon Companies' Formula Rates were implemented in 2005 (for Delmarva, ACE and PEPCO) and 2007 (for ComEd).143 While Order No. 144 put ratepayers on notice that companies may make adjustments for recovery of certain tax deficiencies, the Commission required such adjustments to be made for the purpose of transitioning to full normalization in “the applicant's next rate case following the applicability of the rule.” 144 Exelon Companies' initial Formula Rate filings included line items that expressly excluded recovery of these items in their Formula Rates.145 Exelon Companies thus failed to comply with the requirement in Order No. 144 that recovery should be addressed in the “next rate case” at the time they initially filed their Formula Rates.

    143 November 16 Order, 161 FERC ¶ 61,163 at P 18.

    144 Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,519. This requirement is reflected in the Commission's regulations regarding tax normalization, which state that, if the public utility has not provided deferred taxes in the same amount that would have accrued had tax normalization been applied for transactions occurring any time before the test period, or if tax rate changes cause the accumulated provision for deferred income to become deficient or in excess, the public utility is required to compute the income tax component in its cost of service by making provision for any excess or deficiency in deferred taxes. 18 CFR 35.24(c) (2018).

    145 For ComEd, see Formula Rate Filing, Docket No. ER07-583-000, Appendix A, Attachment H-13, at line 40 (filed Mar. 1, 2007) (line item for “ADIT net of FASB 106 and 109”) (emphasis added). For ACE, Delmarva and PEPCO, see Formula Rate Filing, Docket No. ER05-515-000, Appendix A, Attachments H-1, H-3 and H-9, at line 40 (filed Jan. 31, 2005) (line item for “ADIT net of FASB 106 and 109”) (emphasis added).

    112. Exelon Companies insist that they did not run afoul of this guidance because their Formula Rate filings in 2005 (for Delmarva, ACE and PEPCO) and 2007 (for ComEd) resulted in settlements 146 that expressly excluded FAS 109 amounts from current rates,147 and the settlement for Delmarva, ACE and PEPCO included a rate moratorium preventing them from filing a further rate case until 2009.148 While it is true that the Formula Rate proceedings in 2005 (for Delmarva, ACE and PEPCO) and 2007 (for ComEd) were resolved via settlements that expressly excluded FAS 109 amounts, we disagree with Exelon Companies' characterization of this exclusion as “leaving the issue to be addressed in some later proceeding.” 149 Exelon Companies argue that interpreting the settlements to require them to eliminate or reduce their FAS 109 regulatory assets, instead of deferring recovery for the future, reads extraneous provisions into the settlements.150 However, the settlements did not expressly reserve deferred income tax issues, as Exelon Companies contend; rather, the settlements were silent on this point. The Exelon Companies' settlements were thus not analogous to the Stingray settlement, which expressly provided a compromise level of adjustment to deferred tax accounts.151 Accordingly, in finding that the Exelon Companies' 2005 and 2007 Formula Rate cases constituted the “next rate case” for purposes of Order No. 144, we are not disregarding the settlement, but rather interpreting the references to line items being “net of” or “less” FAS 109 amounts to mean that the Exelon Companies did not intend to pursue recovery of these amounts, whether at the time of the settlement or 10 years later. Moreover, because Exelon Companies did not request recovery of FAS 109 amounts in their initial filings of their Formula Rate cases, Exelon Companies could not have deferred recovery of FAS 109 amounts for the next rate case unless they expressly addressed this issue in the settlements of their Formula Rates.

    146 Order No. 144 states that “[t]he rule, of course, leaves undisturbed the ability of the parties to reach a settlement on any of the issues covered by the rule.” Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,519.

    147 For ComEd, see Offer of Settlement, Docket No. ER07-583-000, (filed October 5, 2007) (Attachment H-13, at line 40 (line item for “ADIT net of FASB 106 and 109”) (emphasis added) and Attachment 1—ADIT Worksheet, which states: “Less FASB 109 Above if not separately removed”). For ACE, Delmarva and PEPCO, see Offer of Settlement, Docket No. ER05-515-000, (filed March 20, 2006) (Attachments H-1, H-3 and H-9, at line 40 (line item for “ADIT net of FASB 106 and 109”) (emphasis added) and Attachment 1—ADIT Worksheets, which state: “Less FASB 109 Above if not separately removed”).

    148E.g., Delmarva Transmittal at 19.

    149E.g., ComEd Transmittal at 35.

    150Id. at 35-36.

    151Id. at 34-35.

    113. In addition, Exelon Companies failed to comply with the directive in Order No. 144 to begin the process of adjusting its deferred tax deficiencies and excesses “so that, within a reasonable period of time to be determined on a case-by-case basis, [it would] be operating under a full normalization policy.” 152 According to Exelon Companies, even after its 2005 and 2007 Formula Rate proceedings were resolved by settlement, and after the rate moratorium established in the settlements for Delmarva, ACE and PEPCO ended in 2009, this is the first rate case since to address these issues.153 Exelon Companies still do not explain why they waited an additional nine and a half years to make their February 23, 2018 filings. And Exelon Companies' apparent conclusion that they could hold these amounts in reserve indefinitely conflicts with the language of Order No. 144. Order No. 144 also established that rate applicants must “begin the process of making up deficiencies in or eliminating excesses in their deferred tax account reserves so that, within a reasonable period of time to be determined on a case-by-case basis, they will be operating under a full normalization policy.” 154 We find that the “reasonable period of time” language was intended to work in conjunction with the “next rate case” requirement, not as an alternative. In other words, requiring applicants to begin the process of making up deficiencies or returning excesses so as to be operating under a full normalization policy “within a reasonable period of time” does not negate the requirement that applicants must seek recovery in their next rate case. As explained above, Exelon Companies failed to file for recovery in its next rate case as required by Order No. 144 or reserve the issue for future consideration through settlement. Having failed to meet that requirement, they cannot now claim that their filing would provide for recovery within a “reasonable period of time.”

    152 Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,560.

    153 ComEd Transmittal at 39; Delmarva Transmittal at 34-35; ACE Transmittal at 33; PEPCO Transmittal at 35.

    154 Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,560 (emphasis added).

    114. We further disagree with Exelon Companies' assertion that Order No. 144 did not impose any requirement on utilities to make a rate filing. Exelon Companies suggest that by using the term “rate applicant,” defined in the regulation text as a utility “that makes a rate filing,” the Commission was signaling in Order No. 144 that utilities need only begin the process of recovering deficiencies or refunding excesses after they filed a rate case, without imposing any requirements as to when that rate case must be filed.155 Exelon Companies' reading is inconsistent with the intent of the quoted sentence, which requires rate applicants to begin the process “so that, within a reasonable period of time to be determined on a case-by-case basis, they will be operating under a full normalization policy.” 156 If, as the sentence suggests, the goal was for utilities to begin operating under a full normalization policy within a reasonable time, interpreting this “reasonable period of time” requirement to be triggered only after a rate case is filed with no parameters as to when the rate case must be filed defeats this purpose. Additionally, while Exelon Companies stress that Order No. 144 did not actually direct utilities to make a rate filing,157 the Commission directed utilities to “begin the process” of making up deficiencies or eliminating excesses, and required a rate applicant to compute the income tax component in its cost of service by making provision for any excess or deficiency in its deferred tax reserves resulting both from the prior flow through treatment of timing differences and from tax rate changes, which would require a rate filing.158 In sum, while the language in Order No. 144 recognizes that the reasonable timing for implementing tax normalization may vary and thus provides some flexibility, Exelon Companies' reading would render the timing purely discretionary.

    155 ComEd Transmittal at 38; Delmarva Transmittal at 33; ACE Transmittal at 32; PEPCO Transmittal at 33.

    156 Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,560.

    157 ComEd Transmittal at 37-38; Delmarva Transmittal at 33; ACE Transmittal at 32; PEPCO Transmittal at 33.

    158 Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,560.

    115. Exelon Companies further assert that subsequent cases interpreting Order No. 144 have established that recovery in a “reasonable period of time” means that deferred tax amounts should be flowed back “over the remaining life of the property that generated the deferred tax reserve.” 159 However, we disagree with Exelon Companies' position that the Commission's use of a “reasonable period of time” referred solely to the time period to amortize the tax deficiencies.160 Rather, the Commission expressed the intention in Order No. 144 that utilities take the necessary steps to ensure that they would be operating under a full normalization policy within a reasonable period of time, that to be operating under full normalization, the method to be used should be a Commission-approved method, and that provision for such differences be included in the income tax component of cost of service. While the choice of normalization method is certainly relevant to this objective,161 so is the timely proposal of provisions to recover deficiencies and excesses of deferred income tax (including the proposed choice of normalization method) to be adjudicated in the companies' next rate case. In other words, requiring applicants to select normalization methods that will ensure a timely transition to full normalization would be meaningless if the applicants can defer filing those proposed methods over the course of several rate cases.

    159 ComEd Transmittal at 39; Delmarva Transmittal at 34; ACE Transmittal at 32-33; PEPCO Transmittal at 34 (citing Opinion No. 345, 50 FERC at 62,148, and Nat. Gas Pipeline of America, 13 FERC ¶ 61,266).

    160 In the proceedings underlying Opinion No. 345, intervenors used the term “reasonable period of time” to question whether the speed at which deficiencies would be flowed back to customers using the Average Rate Assumption Method (ARA Method) would comply with the policy expressed in Order No. 144. See Opinion No. 345, 50 FERC at 62,148. The Commission found that it was reasonable to flow back the two percent of deferred taxes related to timing differences using the ARA Method (required under the Tax Reform Act of 1986 for the other amounts), because the ARA Method provided a reasonable way to flow back deferred amounts “over the remaining life of the assets that generated the deferred taxes” and because the impact on customers would be so minor. Id. at 62,149. The Commission did not comment on intervenors' characterization of the term “reasonable period of time” nor apply Order No. 144 in reaching this result.

    161See Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,560 (“Since the appropriateness of any method to accomplish the objective of full normalization at current tax rates has not been analyzed by the Commission on a generic basis, the Commission is, at this time, requiring resolution of this problem on a case-by-case basis.”).

    116. In the November 16 Order, the Commission held that “[c]ontrary to BGE's assertions, . . . utilities do not have unfettered discretion to defer these [deferred] tax amounts on their books for decades without timely seeking regulatory approval to collect them.” 162 Exelon Companies take umbrage to the suggestion that they are seeking to recover decades-old amounts.163 As Exelon Companies assert, deferred income taxes necessarily reflect a timing difference in the recognition of current income tax effects on the tax return and recognition on the books in future periods. However, as Exelon Companies accede, these items were amortized and recovery of these items was included in rates through black box settlements through 2005 (for Delmarva, ACE and PEPCO) and 2007 (for ComEd), then expressly excluded by Exelon Companies until their February 23, 2018 filings, more than a decade later. In other words, our concern is not that deferred income taxes are, by definition, collected over a period of time, but that the Exelon Companies are now seeking to recover amounts that should have been recovered between 2005 or 2007 and 2018.

    162 November 16 Order, 161 FERC ¶ 61,163 at P 19.

    163 ComEd Transmittal at 34-35; Delmarva Transmittal at 30; ACE Transmittal at 28-29; PEPCO Transmittal at 30.

    117. In the November 16 Order, the Commission cited Stingray  164 for the proposition that recording a deferred tax liability does not guarantee that the utility will be able to recover this amount, as express approval is needed from the Commission.165 Exelon Companies state that the Commission recognized in Stingray that there could be remaining unamortized amounts that were properly recoverable in rates on an ongoing basis in the years after the settlement.166 Exelon Companies claim that they similarly assumed that an amortized portion of the FAS 109 regulatory asset was recovered in rates prior to 2005 (for Delmarva, ACE and PEPCO) and 2007 (for ComEd), and has limited their filings to seeking recovery of remaining balances and new accruals as of 2005 and 2007 respectively.167 As we recognized in Stingray, recovery of remaining unamortized balances of regulatory deferrals is permissible on an ongoing basis, provided that the utility properly addresses the manner of recovery. Exelon Companies present no arguments in their applications that have persuaded us that deferred income tax amounts were reserved for future collection.

    164Stingray, 50 FERC ¶ 61,159.

    165 November 16 Order, 161 FERC ¶ 61,163 at P 19.

    166 ComEd Transmittal at 34-35; Delmarva Transmittal at 30; ACE Transmittal at 29-30; and PEPCO Transmittal at 30.

    167Id.

    2. Matching

    118. As the Commission explained in Order No. 144 168 and in the November 16 Order,169 the primary rationale for tax normalization is matching the costs of plant (i.e., tax benefits from depreciation expense) to the periods to which they are allocated in rates. To operate properly, “tax normalization allocates the tax benefits of an expense to the same time periods that the expense itself is allocated.” 170 The Commission found in Order No. 144 that the properly applied tax normalization method was more equitable than the flow-through method, which, through its inequitable allocation of tax costs over time, distorted the Commission's pricing policies.171

    168 Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,522.

    169 November 16 Order, 161 FERC ¶ 61,163 at n.30.

    170 Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,522.

    171Id.

    119. In the cases before us, Exelon Companies argue that, in the November 16 Order, the Commission “suggested” that BGE's filing violated the Commission's matching policy because it sought recovery of amounts long after the underlying assets have been retired or have stopped being depreciated.172 They contend that, like BGE, they meet the matching test because the filings are tied to recovery over the remaining life of appropriately chosen assets.173 They conclude there is no basis for concern that “matching” of costs and asset lives has somehow been violated.174

    172 ComEd Transmittal at 40 & n.85 (citing November 16 Order, 161 FERC Stats. & Regs. ¶ 61,163 at P 20).

    173Id. at 40.

    174Id. at 41.

    120. In the November 16 Order, the Commission made a finding that “[b]ecause BGE did not address the tax deficiency in a reasonable time, its proposal no longer has the requisite matching of the amortization period with the relevant transmission assets.” Thus, the Commission found that it was “not appropriate for BGE to propose, at this late date, a mechanism to recover years of accumulated deferred tax liability amounts.” 175

    175 November 16 Order, 161 FERC ¶ 61,163 at P 21.

    The Commission found it troublesome to allow recovery of these amounts for plant that was either fully depreciated or retired by the time BGE submitted its filing.176

    176Id. P 20.

    121. Exelon Companies argue that their instant proposals, and BGE's proposal in Docket No. ER17-528, are all consistent with the Commission's matching policy. Exelon Companies' arguments, however, mischaracterize the Commission's matching policy. The Commission's matching policy does not, as suggested, hinge on whether the regulatory assets are “linked to assets that are still in service.” Exelon Companies' basis for contending that their proposals do not violate matching principles is that their use of the industry standard PowerTax software verifies that the Flow-Through Items regulatory asset is linked to assets that are still in service.177 This ignores, however, that assets often can and do remain in service after the amortization period has expired and the assets are fully depreciated. This was an important factor in the Commission's findings in the November 16 Order that Exelon Companies' arguments ignore.

    177Id.

    122. For example, Exelon Companies propose to recover the Flow-Through Items over the remaining life of the assets in place at the time they implemented their Formula Rates (i.e., in 2005 or 2007). However, they have failed to show that these assets have not been fully depreciated and that they are still in service. The correct time period for recovery of the tax benefits from the depreciation expenses for these assets was over the remaining life of the assets in place at the time the switch to full normalization occurred (i.e., in the 1970s). The Commission has never approved such a re-amortization period as proposed by the Exelon Companies for the regulatory assets at issue here, and nothing presented here convinces us that this would be appropriate. Further, with regard to AFUDC Equity, the Exelon Companies propose to develop new South Georgia tax provisions for each year's new AFUDC Equity origination and adjust the amortization for any retirements or changes in depreciation rates. However, South Georgia catch-up provisions are not supposed to change unless the tax rates change.

    123. Exelon Companies also propose to recover accumulated amounts associated with AFUDC Equity that has already been depreciated.178 However, to ensure consistency with the matching principle, only the additional taxes associated with the relevant year's depreciation of AFUDC Equity are eligible for recovery.179

    178 In response to the Deficiency Letter, Exelon Companies explain that the requisite formulaic data inputs to determine the taxes associated with the current year's depreciation expense (i.e., gross accumulated AFUDC Equity in transmission plant, depreciation rates and applicable income tax rates) do exist, but the proposed tax adjustments for the tax effects associated with AFUDC Equity do not match their current year's depreciation expense.

    179 November 16 Order, 161 FERC ¶ 61,163 at P 20.

    3. Prior Precedent

    124. We find unpersuasive the arguments by Exelon Companies that recovery of the amounts from 2005 or 2007 and going forward is consistent with Order No. 144, FAS 109 and the 1993 FAS 109 Guidance Letter, the 2014 Staff Guidance on Formula Rate Updates, and the orders in PPL, Duquesne, VEPCO, and ITC.

    125. In support of their argument, Exelon Companies briefly discuss each of these cases. They state that, in PPL, four years had elapsed since PPL had implemented its formula rate, and the entire regulatory asset amount, as of the date the formula rate was implemented, was authorized for recovery. In Duquesne, they state that seven years had elapsed since its formula rate was filed, and the utility was similarly authorized to recover the amount as of the date of its formula rate. Regarding ITC and VEPCO, Exelon Companies state that these cases similarly involved a formulaic mechanism for recovery of an amortized amount, each year, of transmission-related FAS 109 amounts up through the date in which each year's rates are calculated. Unlike PPL and Duquesne, Exelon Companies state that the adjustments in ITC and VEPCO also included new originating FAS 109 amounts that had been recorded after their formula rates were put in place. Taken together, Exelon Companies argue that these proceedings make it clear that formulaic recovery of FAS 109 amounts from prior to, and after, implementation of the formula rate is appropriate, which, Exelon Companies argue, is exactly what they propose here.

    126. In addition, while conceding that the PPL, Duquesne, and VEPCO orders were delegated letter orders, Exelon Companies point out that ITC was not a delegated letter order and argues the delegated orders should be given weight as they are consistent with ITC. 180 These same arguments were also raised on rehearing in Docket No. ER17-528-002. Consistent with the November 16 Order and rehearing order being issued concurrently in that proceeding, we disagree with the Exelon Companies for the reasons stated in the November 16 Order, the rehearing order and reasons discussed below. As we stated in the November 16 Order, the records in the ITC and VEPCO proceedings “do not reflect that either VEPCO or ITC requested a South Georgia catch-up provision to recover prior period accumulated amounts related to AFUDC Equity.” 181

    180See, e.g., ComEd Transmittal at 42-43.

    181 November 16 Order, 161 FERC ¶ 61,163 at P 22.

    127. First, we note that three of the orders relied on by Exelon Companies are delegated letter orders, which do not establish binding precedent on the Commission.182 Nor are we convinced that the Commission's finding in ITC provides support for Exelon Companies' proposals. While ITC did involve a request to recover AFUDC Equity deficiencies, the record in this case does not support BGE's claim that the recovery granted in this proceeding included deferred amounts. ITC did not directly address this issue, merely finding that “[t]he proposed Attachment O revisions and related depreciation rates provide for a more accurate annual revenue requirement for the ITC Companies.” 183

    182 We will not repeat our discussion from our order on rehearing in BGE (being issued concurrently with this order) citing numerous cases upholding the long-standing principle that delegated letter orders do not establish binding Commission precedent. Nor will we repeat here the basis for our conclusion that, even if we assumed arguendo that PPL, Duquesne, and VEPCO constitute binding precedent, they would not require the Commission to accept BGE's proposal. However, that same logic applies equally here.

    183ITC, 153 FERC ¶ 61,374.

    128. Exelon Companies also contend that, while PPL, Duquesne, ITC and VEPCO did not expressly address AFUDC Equity, the catchup provisions in these cases were calculated based on their entire FAS 109 balances and recovery provisions would have included the cumulative AFUDC Equity amounts among other things. The implementation of FAS 109 standards for regulatory purposes should be revenue neutral because the regulatory assets and regulatory liabilities are offsetting book keeping entries. In Idaho Power Co., 184 the Commission summarily removed the FAS 109 amounts from rate base because the proposed amounts in rate base were not revenue neutral and did not result in equal and offsetting changes to total assets and liabilities. We also noted that accumulated FAS 109 amounts only relate to future cash flows, which are not appropriately included in rate base. However, to the extent that PPL and Duquesne did accept offsetting amounts of FAS 109 regulatory assets and liabilities in South Georgia calculations for transitions from the flow-through practices of the Pennsylvania Public Utility Commission, they should not have affected the calculation and would not have included amounts for prior AFUDC Equity amortization. In contrast, Exelon Companies' proposed South Georgia amendments—which are not revenue neutral—are amortized over the average remaining life of the plant in service, as calculated using their PowerTax and PowerPlant software, as of the effective date of their Formula Rate, and include in the catch-up provision amounts for AFUDC Equity amortization for prior period depreciation since the inception of their formula rates. By contrast, Commission accounting policies and precedents provide that FAS 109 amortizations are to be collected concurrently with the collection of the associated depreciation expense in rates.

    184 115 FERC ¶ 61,281, at P 27 (2006) (Idaho Power).

    129. Finally, Exelon Companies argue that recovery of the past expenses would not present a problem of retroactive ratemaking because, on appeal of Order No. 144, the court held that a provision for recovery of deficient deferred taxes relating to prior years is not retroactive.185 In this regard Exelon Companies argue that, because customers' rates in past years did not reflect these expenses, if the FAS 109 amounts flow through rates, Exelon Companies proposals will place customers in exactly the same position as if they had included a formulaic rate recovery of FAS 109 amounts in past rates.186 As discussed above, while we recognize that deficient deferred taxes, by their nature, will be recovered over a period of years, our concern is that the Exelon Companies are seeking to recover amounts that should have been recovered in prior periods.

    185 ComEd Transmittal at 44 & n.98 (citing Public Systems, 709 F.2d at 85).

    186Id. at 44.

    4. Guidance

    130. We note that our rejection of Exelon Companies' filings for the reasons stated herein does not prohibit them from recovering all prior period tax deficiencies and AFUDC Equity. To the extent that public utilities have undepreciated AFUDC Equity, even if the related assets were placed into service in prior years, they may file to recover the tax effect on an ongoing basis if properly supported under FPA section 205. In addition, we note that several of the Exelon Companies experienced recent tax increases at the state level (e.g., increases in the Illinois state income tax rate occurred in 2011 and 2015, and increases in the Maryland state corporate income tax rate occurred in 2001 and 2008), and a portion of the deficient ADIT may still be eligible for recovery, given the lengthy amortization period associated with excess or deficient ADIT.187 Should Exelon Companies seek recovery of such amounts, they should fully support these amounts by providing detailed workpapers, as well as provide for the reduction of the associated ADIT liabilities from rate base.

    187 The guidance that we are providing does not address Flow Through Items. While Exelon Companies have not specified the date on which they adopted full normalization, we do not expect that, if Exelon Companies had begun amortization as of the date on which full normalization occurred, ADIT associated with the adoption of full normalization remains to be recovered.

    131. Exelon Companies may submit, for example, new FPA section 205 filings with a mechanism to refund or recover, as appropriate, deferred income tax excesses and deficiencies related to the recent Tax Cuts and Jobs Act and any future income tax changes, any new originations of past income tax changes, and taxes on AFUDC Equity associated with current and future years' depreciation expense. Should Exelon Companies seek recovery of ADIT amounts in new FPA section 205 filings, they may obtain such recovery or refund of excess or deficient ADIT to be calculated as of the effective date in the new filings.

    5. Limited Compliance Period

    132. We take this opportunity to provide guidance on what would constitute a “reasonable period of time” to file for recovery under Order No. 144. Consistent with the requirement in Order No. 144 that FAS 109 recovery for ADIT excesses and deficiencies should at least be addressed in the “next rate case,” we announce a limited period in which public utilities may file to recover past ADIT if the public utility did not file a rate case subsequent to the Commission's issuance of Order No. 144 or if the public utility properly preserved 188 its right to recover past ADIT through settlement terms.189 If one of these two conditions are met, we will permit a public utility to make a FPA section 205 filing to revise its formula rate provisions to allow for the refund or recovery of all previously incurred income tax amounts as a result of full tax normalization within one year after this order is published in the Federal Register, i.e. this one-year time period continues to constitute “a reasonable period of time” under Order No. 144 to file for recovery.

    188 By “properly preserved,” we mean that the settlement of the “next rate case” included terms that expressly reserved the right of the utility to file to recover past ADIT in a future rate case.

    189 While we find Exelon Companies did not expressly reserve recovery of deferred income tax amounts for future consideration in their settlements, we note that Order No. 144 permits a company to reserve in a settlement such issues for future consideration. Order No. 144 states that “[t]he rule, of course, leaves undisturbed the ability of the parties to reach a settlement on any of the issues covered by the rule.” Order No. 144, FERC Stats. & Regs. ¶ 30,254 at 31,519. Reading this sentence in the context of the rule, parties may reach a settlement on any of the issues concerning the ratemaking method for deferred income tax recovery, and if the Commission approves the settlement, it complies with Order No. 144.

    133. Regarding the recovery of ADIT amounts incurred in the future after the expiration of this limited compliance period, we also clarify that it is the Commission's expectation that public utilities will make FPA section 205 filings to recover such ADIT amounts within two years after they are incurred.

    The Commission orders:

    The revisions to Exelon Companies' Formula Rates are hereby rejected, as discussed in the body of this order.

    By the Commission.

    Issued: September 7, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-19994 Filed 9-13-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP18-46-001] Notice of Applications; Adelphia Gateway, LLC

    Take notice that on August 31, 2018, Adelphia Gateway, LLC (Adelphia), 1415 Wyckoff Road Wall, New Jersey 07719, filed an amendment to its January 12, 2018 application under section 7(c) of the Natural Gas Act (NGA) and Part 157 of the Commission's rules and regulations requesting certificate authority to reflect an increase in its design capacity on Zone North A from 175,000 dekatherms per day (Dth/d) to 250,000 Dth/d. In light of the increased Zone North A design capacity, Adelphia proposes to modify its initial transportation rates in the pro forma FERC Gas Tariff. Adelphia also proposes to amend the Usage-2 Rate under Rate Schedule FTS to reflect the 100 percent load factor rates, all as more fully described in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC at [email protected] or call toll-free, (866) 208-3676 or TTY, (202) 502-8659.

    Any questions regarding this application should be directed to William P. Scharfenberg, Assistant General Counsel, Adelphia Gateway, LLC, 1415 Wyckoff Road, Wall, NJ 07719, or call (732) 938-1134, or email: [email protected]

    There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 5 copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.

    However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.

    Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.

    The Commission strongly encourages electronic filings of comments, protests, and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy regulatory Commission, 888 First Street NE, Washington, DC 20426.

    Comment Date: 5:00 p.m. Eastern Time on September 28, 2018.

    Dated: September 7, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-19996 Filed 9-13-18; 8:45 am] BILLING CODE 6717-01-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OAR-2004-0501; FRL-9983-76-OAR] Proposed Information Collection Request; Comment Request; Information Collection Request for Green Power Partnership and Combined Heat and Power Partnership; EPA ICR Number 2173.07 (Renewal), OMB Control No. 2060-0578 AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    The Environmental Protection Agency is planning to submit an information collection request (ICR), “Information Collection Request for Green Power Partnership and Combined Heat and Power Partnership” (EPA ICR Number 2173.07 (Renewal), OMB Control No. 2060-0578) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. Before doing so, EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a proposed extension of the ICR, which is currently approved through March 31, 2019. An Agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

    DATES:

    Comments must be submitted on or before November 13, 2018.

    ADDRESSES:

    Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2004-0501, online using www.regulations.gov (our preferred method), by email to [email protected] or by mail to: EPA Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460. EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

    FOR FURTHER INFORMATION CONTACT:

    Christopher Kent, Climate Protection Partnerships Division, Office of Atmospheric Programs, MC 6202A Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-343-9046; fax number: 202-343-2208; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at www.regulations.gov or in person at the EPA Docket Center, WJC West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The telephone number for the Docket Center is 202-566-1744. For additional information about EPA's public docket, visit http://www.epa.gov/dockets.

    Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval. At that time, EPA will issue another Federal Register notice to announce the submission of the ICR to OMB and the opportunity to submit additional comments to OMB.

    Abstract: In 2002, EPA's Energy Supply and Industry Branch (ESIB) launched two partnership programs with industry and other stakeholders: The Green Power Partnership (GPP) and the Combined Heat and Power Partnership (CHPP). These voluntary partnership programs, along with others in the ESIB, encourage organizations to invest in clean, efficient energy technologies, including renewable energy and combined heat and power. To continue to be successful, it is critical that EPA collect information from these program stakeholders to ensure these organizations are meeting their clean energy goals and to assure the credibility of these voluntary non-regulatory programs.

    EPA has developed this ICR to obtain authorization to collect information from organizations participating in the GPP and CHPP, and other ESIB voluntary programs. Organizations that join these programs voluntarily agree to the following respective actions: (1) Designating a Green Power or CHP liaison and filling out a Partnership Agreement or Letter of Intent (LOI) respectively, (2) for the GPP, reporting to EPA, on an annual basis, their progress toward their green power commitment via a 3-page reporting form; (3) for the CHP Partnership, reporting to EPA information on their existing CHP projects, new project development, and other CHP-related activities via a one-page reporting form (for projects) or via an informal email or phone call (for other CHP-related activities). In addition to these actions, organizations may voluntarily apply for recognition to the programs' established annual recognition events, which require submitting additional information. EPA uses the data obtained from its Partners to assess the success of these programs in achieving their national energy and greenhouse gas (GHG) reduction goals. Partners are organizational entities that have volunteered to participate in either Partnership program.

    Respondents/affected entities: Entities potentially affected by this action are company, institutional, and public-sector organizations that voluntarily participate in the EPA's Green Power Partnership (GPP) or Combined Heat and Power Partnership (CHPP). These include both service and goods providing industries, educational institutions and non-governmental organizations, commercial and industrial organizations, and local, state, or federal government agencies.

    Forms: EPA-430-K-013, EPA-430-F-05-034; EPA-5900-353.

    Respondent's obligation to respond: Voluntary.

    Estimated number of respondents: 6,871 (total).

    Frequency of response: Annually, on occasion, one time.

    Total estimated burden: 6,598 hours (per year). Burden is defined at 5 CFR 1320.03(b).

    Total estimated cost: $731,382 (per year), includes annualized capital or operation & maintenance costs.

    Changes in estimates: There is minimal decrease in hours in the total estimated respondent burden compared with the ICR currently approved by OMB. Since the last ICR renewal, both the GPP and CHPP have introduced program efficiencies to reduce program burden and simplified collection forms into pre-populated spreadsheets or documents. As a result of these changes, the average number of hours per Partner has decreased from 3.2 hours to 2.87 hours, but the total hourly burden for Partners still increased because of an increase in the number of Partners. For perspective on the magnitude of Partner growth, the number of Partners at the end of 2008 was 1,308, whereas by year-end 2018 there was an estimated 1959 (GPP has 1546, and CHP has 413). The previous ICR also overestimated the growth of both programs and as such, the out year's number of respondents was larger than the program actually achieved. The GPP program is also re-evaluating program requirements which may have an impact on the number of respondents in the future. EPA will update the estimated respondent burden before submission to OMB for review.

    Dated: September 4, 2018. Carolyn Snyder, Director, Climate Protection Partnership Division.
    [FR Doc. 2018-20036 Filed 9-13-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [ER-FRL-9041-3] Environmental Impact Statements; Notice of Availability

    Responsible Agency: Office of Federal Activities, General Information (202) 564-5632 or https://www.epa.gov/nepa/.

    Weekly receipt of Environmental Impact Statements Filed 09/03/2018 Through 09/07/2018 Pursuant to 40 CFR 1506.9. Notice

    Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at: https://cdxnodengn.epa.gov/cdx-enepa-public/action/eis/search.

    EIS No. 20180209, Final, GSA, MD, 2018 Master Plan for the Consolidation of the U.S. FDA HQ Final Environmental Impact Statement, Review Period Ends: 10/15/2018, Contact: Paul Gyamfi 202-440-3405 EIS No. 20180210, Final, USN, VA, Atlantic Fleet Training and Testing, Review Period Ends: 10/15/2018, Contact: Todd Kraft 757-836-2943 EIS No. 20180211, Adoption, NIGC, CA, Final Environmental Impact Statement—Wilton Rancheria, Review Period Ends: 10/15/2018, Contact: Austin Badger 202-632-7003 Dated: September 10, 2018. Robert Tomiak, Director, Office of Federal Activities.
    [FR Doc. 2018-19923 Filed 9-13-18; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-0139] Information Collection Being Submitted for Review and Approval to the Office of Management and Budget AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including Whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

    The Commission may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.

    DATES:

    Written comments should be submitted on or before October 15, 2018. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts listed below as soon as possible.

    ADDRESSES:

    Direct all PRA comments to Nicholas A. Fraser, OMB, via email [email protected]; and to Cathy Williams, FCC, via email [email protected] and to [email protected] Include in the comments the OMB control number as shown in the SUPPLEMENTARY INFORMATION below.

    FOR FURTHER INFORMATION CONTACT:

    For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page http://www.reginfo.gov/public/do/PRAMain, (2) look for the section of the web page called “Currently Under Review,” (3) click on the downward-pointing arrow in the “Select Agency” box below the “Currently Under Review” heading, (4) select “Federal Communications Commission” from the list of agencies presented in the “Select Agency” box, (5) click the “Submit” button to the right of the “Select Agency” box, (6) when the list of FCC ICRs currently under review appears, look for the OMB control number of this ICR and then click on the ICR Reference Number. A copy of the FCC submission to OMB will be displayed.

    SUPPLEMENTARY INFORMATION:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

    OMB Control Number: 3060-0139.

    Title: Application for Antenna Structure Registration.

    Form Number: FCC Form 854.

    Type of Review: Extension of a currently approved collection.

    Respondents: Individuals or households, business or other for-profit entities, not-for-profit institutions, and State, local, or Tribal governments.

    Number of Respondents and Responses: 2,400 respondents; 57,100 responses.

    Estimated Time per Response: .33 hours to 2.5 hours.

    Frequency of Response: On occasion reporting requirement, recordkeeping requirement and third-party disclosure reporting requirement.

    Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in sections 1, 2, 4(i), 303, and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 303, and 309(j), section 102(C) of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4332(C), and section 1506.6 of the regulations of the Council on Environmental Quality, 40 CFR 1506.6.

    Total Annual Burden: 25,682 hours.

    Total Annual Cost: $1,176,813.

    Privacy Act Impact Assessment: Yes. This information collection contains personally identifiable information on individuals which is subject to the Privacy Act of 1974. Information on the FCC Form 854 is maintained in the Commission's System of Records, FCC/WTB-1, “Wireless Services Licensing Records.” These licensee records are publicly available and routinely used in accordance of subsection b of the Privacy Act, 5 U.S.C. 552a(b), as amended. Taxpayer Identification Numbers (TINs) and materials that are afforded confidential treatment pursuant to a request made under 47 CFR 0.459 of the Commission's rules will not be available for public inspection.

    Nature and Extent of Confidentiality: Respondents may request materials or information submitted to the Commission be withheld from public inspection under 47 CFR 0.459 of the Commission's rules. The Commission has in place the following policy and procedures for records retention and disposal: Records will be actively maintained as long as the entity remains a tower owner. Paper records will be archived after being keyed or scanned into the Antenna Structure Registration (ASR) database and destroyed when twelve (12) years old.

    Needs and Uses: The purpose of FCC Form 854 (Form 854) is to register antenna structures that are used for radio communication services which are regulated by the Commission; to make changes to existing antenna structure registrations or pending applications for registration; or to notify the Commission of the completion of construction or dismantlement of such structures, as required by Title 47 of the Code of Federal Regulations, Chapter 1, Sections 1.923, 1.1307, 1.1311, 17.1, 17.2, 17.4, 17.5, 17.6, 17.7, 17.57 and 17.58.

    Any person or entity proposing to construct or alter an antenna structure that is more than 60.96 meters (200 feet) in height, or that may interfere with the approach or departure space of a nearby airport runway, must notify the Federal Aviation Administration (FAA) of proposed construction. The FAA determines whether the antenna structure constitutes a potential hazard and may recommend appropriate painting and lighting for the structure. The Commission then uses the FAA's recommendation to impose specific painting and/or lighting requirements on radio tower owners and subject licensees. When an antenna structure owner for one reason or another does not register its structure, it then becomes the responsibility of the tenant licensees to ensure that the structure is registered with the Commission.

    Section 303(q) of the Communications Act of 1934, as amended, gives the Commission authority to require painting and/or illumination of radio towers in cases where there is a reasonable possibility that an antenna structure may cause a hazard to air navigation. In 1992, Congress amended Sections 303(q) and 503(b)(5) of the Communications Act to make radio tower owners, as well as Commission licensees and permittees responsible for the painting and lighting of radio tower structures, and to provide that non-licensee radio tower owners may be subject to forfeiture for violations of painting or lighting requirements specified by the Commission.

    Federal Communications Commission. Marlene Dortch, Secretary, Office of the Secretary.
    [FR Doc. 2018-20019 Filed 9-13-18; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL MARITIME COMMISSION Sunshine Act Meetings TIME AND DATE:

    September 19, 2018; 10:00 a.m.

    PLACE:

    800 N. Capitol Street NW, First Floor Hearing Room, Washington, DC.

    STATUS:

    This meeting will be open to the public.

    MATTERS TO BE CONSIDERED:

    Open Session 1. Fact Finding No. 28—Interim—Briefing by Commissioner Rebecca F. Dye 2. Regulatory Reform Task Force Update 3. Demonstration of www.fmc.gov Redesign CONTACT PERSON FOR MORE INFORMATION:

    Rachel Dickon, Secretary, (202) 523-5725.

    Rachel Dickon, Secretary.
    [FR Doc. 2018-20151 Filed 9-12-18; 4:15 pm] BILLING CODE 6731-AA-P
    FEDERAL RESERVE SYSTEM Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company

    The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).

    The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than October 2, 2018.

    A. Federal Reserve Bank of St. Louis (David L. Hubbard, Senior Manager) P.O. Box 442, St. Louis, Missouri 63166-2034. Comments can also be sent electronically to [email protected]:

    1. Stephen B. Clark, Pittsburg, Illinois; to acquire shares of Main Street Bancshares, Inc., Harrisburg, Illinois, and thereby indirectly acquire shares of Grand Rivers Community Bank, Grand Chain, Illinois.

    Board of Governors of the Federal Reserve System, September 11, 2018. Yao-Chin Chao, Assistant Secretary of the Board.
    [FR Doc. 2018-20022 Filed 9-13-18; 8:45 am] BILLING CODE P
    FEDERAL RESERVE SYSTEM Formations of, Acquisitions by, and Mergers of Savings and Loan Holding Companies

    The companies listed in this notice have applied to the Board for approval, pursuant to the Home Owners' Loan Act (12 U.S.C. 1461 et seq.) (HOLA), Regulation LL (12 CFR part 238), and Regulation MM (12 CFR part 239), and all other applicable statutes and regulations to become a savings and loan holding company and/or to acquire the assets or the ownership of, control of, or the power to vote shares of a savings association and nonbanking companies owned by the savings and loan holding company, including the companies listed below.

    The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the HOLA (12 U.S.C. 1467a(e)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 10(c)(4)(B) of the HOLA (12 U.S.C. 1467a(c)(4)(B)). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.

    Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 10, 2018.

    A. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690-1414:

    1. 1895 Bancorp of Wisconsin, MHC; to become a mutual savings and loan holding company; and 1895 Bancorp of Wisconsin, Inc., to become a mid-tier stock savings and loan holding company by acquiring 100 percent of PyraMax Bank, FSB, all of Greenfield, Wisconsin.

    Board of Governors of the Federal Reserve System, September 11, 2018. Yao-Chin Chao, Assistant Secretary of the Board.
    [FR Doc. 2018-20023 Filed 9-13-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention Solicitation of Nominations for Appointment to the Board of Scientific Counselors Office of Public Health Preparedness and Response ACTION:

    Notice.

    SUMMARY:

    The Centers for Disease Control and Prevention (CDC) is seeking nominations for membership on the BSC OPHPR. The BSC OPHPR consists of 11 experts in fields associated with business, crisis leadership, emergency response and management, engineering, epidemiology, health policy and management, informatics, laboratory science, medicine, mental and behavioral health, public health law, public health practice, risk communication and social science.

    Nominations are being sought for individuals who have expertise and qualifications necessary to contribute to the accomplishments of the committee's objectives. Nominees will be selected based on expertise in the fields of engineering, medicine, emergency response, and risk communication. Members may be invited to serve for four-year terms.

    Selection of members is based on candidates' qualifications to contribute to the accomplishment of BSC OPHPR objectives (https://www.cdc.gov/phpr/bsc/index.htm).

    DATES:

    Nominations for membership on the BSC OPHPR must be received no later than October 15, 2018. Packages received after this time will not be considered for the current membership cycle.

    ADDRESSES:

    All nominations should be emailed to the OPHPR BSC Coordinator, [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Rebecca Hall, MPH, BSC Coordinator, OPHPR, CDC, 1600 Clifton Rd., MS D-44, Atlanta, GA, 30329-4027. Telephone (404) 718-4772; email [email protected]

    SUPPLEMENTARY INFORMATION:

    The U.S. Department of Health and Human Services policy stipulates that committee membership be balanced in terms of points of view represented, and the committee's function. Appointments shall be made without discrimination on the basis of age, race, ethnicity, gender, sexual orientation, gender identity, HIV status, disability, and cultural, religious, or socioeconomic status. Nominees must be U.S. citizens, and cannot be full-time employees of the U.S. Government. Current participation on federal workgroups or prior experience serving on a federal advisory committee does not disqualify a candidate; however, HHS policy is to avoid excessive individual service on advisory committees and multiple committee memberships. Committee members are Special Government Employees, requiring the filing of financial disclosure reports at the beginning and annually during their terms. CDC reviews potential candidates for BSC OPHPR membership each year, and provides a slate of nominees for consideration to the Secretary of HHS for final selection. HHS notifies selected candidates of their appointment near the start of the term in September, or as soon as the HHS selection process is completed. Note that the need for different expertise varies from year to year and a candidate who is not selected in one year may be reconsidered in a subsequent year.

    Nominees must be U.S. citizens. Candidates should submit the following items:

    Current curriculum vitae, including complete contact information (telephone numbers, mailing address, email address).

    At least one letter of recommendation from person(s) not employed by the U.S. Department of Health and Human Services. (Candidates may submit letter(s) from current HHS employees if they wish, but at least one letter must be submitted by a person not employed by an HHS agency (e.g., CDC, NIH, FDA, etc.).

    Nominations may be submitted by the candidate him- or herself, or by the person/organization recommending the candidate.

    The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities for both CDC and the Agency for Toxic Substances and Disease Registry.

    Sherri Berger, Chief Operating Officer, Centers for Disease Control and Prevention.
    [FR Doc. 2018-20017 Filed 9-13-18; 8:45 am] BILLING CODE 4163-18-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention Advisory Board on Radiation and Worker Health (ABRWH or the Advisory Board), National Institute for Occupational Safety and Health (NIOSH) AGENCY:

    Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).

    ACTION:

    Notice of meeting.

    SUMMARY:

    In accordance with the Federal Advisory Committee Act, the CDC announces the following meeting of the Advisory Board on Radiation and Worker Health (ABRWH). This meeting is open to the public, but without a public comment period. The public is welcome to submit written comments in advance of the meeting, to the contact person below. Written comments received in advance of the meeting will be included in the official record of the meeting. The public is also welcome to listen to the meeting by joining the audio conference (information below). The audio conference line has 150 ports for callers.

    DATES:

    The meeting will be held on October 17, 2018, 11:00 a.m. to 1:00 p.m. EDT.

    ADDRESSES:

    Audio Conference Call via FTS Conferencing. The USA toll-free dial-in number is 1-866-659-0537; the pass code is 9933701.

    FOR FURTHER INFORMATION CONTACT:

    Theodore Katz, MPA, Designated Federal Officer, NIOSH, CDC, 1600 Clifton Road, Mailstop E-20, Atlanta, Georgia 30333, Telephone (513)533-6800, Toll Free 1(800)CDC-INFO, Email [email protected]

    SUPPLEMENTARY INFORMATION:

    Background: The Advisory Board was established under the Energy Employees Occupational Illness Compensation Program Act of 2000 to advise the President on a variety of policy and technical functions required to implement and effectively manage the new compensation program. Key functions of the Advisory Board include providing advice on the development of probability of causation guidelines which have been promulgated by the Department of Health and Human Services (HHS) as a final rule, advice on methods of dose reconstruction which have also been promulgated by HHS as a final rule, advice on the scientific validity and quality of dose estimation and reconstruction efforts being performed for purposes of the compensation program, and advice on petitions to add classes of workers to the Special Exposure Cohort (SEC). In December 2000, the President delegated responsibility for funding, staffing, and operating the Advisory Board to HHS, which subsequently delegated this authority to the CDC. NIOSH implements this responsibility for CDC. The charter was issued on August 3, 2001, renewed at appropriate intervals, rechartered under Executive Order 13811 on February 12, 2018, and will terminate on September 30, 2020.

    Purpose: This Advisory Board is charged with a) providing advice to the Secretary, HHS, on the development of guidelines under Executive Order 13179; b) providing advice to the Secretary, HHS, on the scientific validity and quality of dose reconstruction efforts performed for this program; and c) upon request by the Secretary, HHS, advising the Secretary on whether there is a class of employees at any Department of Energy facility who were exposed to radiation but for whom it is not feasible to estimate their radiation dose, and on whether there is reasonable likelihood that such radiation doses may have endangered the health of members of this class.

    Matters to be Considered: The agenda will include discussions on: Work Group and Subcommittee Reports; Update on the Status of SEC Petitions; Plans for the December 2018 Advisory Board Meeting; and Advisory Board Correspondence. Agenda items are subject to change as priorities dictate.

    The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and: The Agency for Toxic Substances and Disease Registry.

    Sherri Berger, Chief Operating Officer, Centers for Disease Control and Prevention.
    [FR Doc. 2018-20015 Filed 9-13-18; 8:45 am] BILLING CODE 4163-19-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention Advisory Board on Radiation and Worker Health (ABRWH or the Advisory Board), Subcommittee on Procedures Review (SPR), National Institute for Occupational Safety and Health (NIOSH) AGENCY:

    Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).

    ACTION:

    Notice of meeting.

    SUMMARY:

    In accordance with the Federal Advisory Committee Act, the CDC announces the following meeting for the Subcommittee for Procedure Reviews (SPR) of the Advisory Board on Radiation and Worker Health (ABRWH). This meeting is open to the public, but without a public comment period. The public is welcome to submit written comments in advance of the meeting, to the contact person below. Written comments received in advance of the meeting will be included in the official record of the meeting. The public is also welcome to listen to the meeting by joining the audio conference (information below). The audio conference line has 150 ports for callers.

    DATES:

    The meeting will be held on October 31, 2018, 10:30 a.m. to 3:30 p.m. ET.

    ADDRESSES:

    Audio Conference Call via FTS Conferencing. The USA toll-free dial-in number is 1-866-659-0537; the pass code is 9933701.

    FOR FURTHER INFORMATION CONTACT:

    Theodore Katz, MPA, Designated Federal Officer, NIOSH, CDC, 1600 Clifton Road, Mailstop E-20, Atlanta, Georgia 30329, Telephone (513) 533-6800, Toll Free 1 (800) CDC-INFO, Email [email protected]

    SUPPLEMENTARY INFORMATION:

    Background: The Advisory Board was established under the Energy Employees Occupational Illness Compensation Program Act of 2000 to advise the President on a variety of policy and technical functions required to implement and effectively manage the new compensation program. Key functions of the Advisory Board include providing advice on the development of probability of causation guidelines that have been promulgated by the Department of Health and Human Services (HHS) as a final rule; advice on methods of dose reconstruction, which have also been promulgated by HHS as a final rule; advice on the scientific validity and quality of dose estimation and reconstruction efforts being performed for purposes of the compensation program; and advice on petitions to add classes of workers to the Special Exposure Cohort (SEC).

    In December 2000, the President delegated responsibility for funding, staffing, and operating the Advisory Board to HHS, which subsequently delegated this authority to CDC. NIOSH implements this responsibility for CDC. The charter was issued on August 3, 2001, renewed at appropriate intervals, rechartered on February 12, 2018, pursuant to Executive Order 13708, and will terminate on September 30, 2019.

    Purpose: The Advisory Board is charged with (a) providing advice to the Secretary, HHS, on the development of guidelines under Executive Order 13179; (b) providing advice to the Secretary, HHS, on the scientific validity and quality of dose reconstruction efforts performed for this program; and (c) upon request by the Secretary, HHS, advise the Secretary on whether there is a class of employees at any Department of Energy facility who were exposed to radiation but for whom it is not feasible to estimate their radiation dose, and on whether there is reasonable likelihood that such radiation doses may have endangered the health of members of this class. SPR is responsible for overseeing, tracking, and participating in the reviews of all procedures used in the dose reconstruction process by the NIOSH Division of Compensation Analysis and Support (DCAS) and its dose reconstruction contractor (Oak Ridge Associated Universities—ORAU).

    Matters to be Considered: The agenda will include discussions on the following dose reconstruction procedures: (a) Procedures associated specifically with the following sites: Norton Company, Paducah, Blockson Chemical Company, DuPont Deepwater Works, Huntington Pilot Plan, Y-12, Aliquippa Forge, Hooker Electrochemical Plant; (b) procedures associated with Atomic Weapons Employers generally; and, (c) general procedures for dose reconstructions. Agenda items are subject to change as priorities dictate.

    The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.

    Sherri Berger, Chief Operating Officer, Centers for Disease Control and Prevention.
    [FR Doc. 2018-20016 Filed 9-13-18; 8:45 am] BILLING CODE 4163-19-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP)—CE19-001, Injury Control Research Centers; Amended Notice of Meeting

    Notice is hereby given of a change in the meeting of the Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP)—CE19-001, Injury Control Research Centers; October 30 and November 2, 2018, 8:30 a.m.-5:00 p.m., EDT, in the original FRN.

    The Georgian Terrace, 659 Peachtree St. NE, Atlanta, GA 30308 which was published in the Federal Register on August 23, 2018, Volume 83, Number 164, pages 42655-42656.

    The meeting is being amended to change the location and time to the Sheraton Atlanta Hotel, 165 Courtland Street NE, Atlanta, GA 30303; October 30-November 2, 2018, 8:00 a.m.-5:30 p.m., EDT. The meeting is closed to the public.

    FOR FURTHER INFORMATION CONTACT:

    Mikel L. Walters, M.A., Ph.D., Scientific Review Official, NCIPC, CDC, 4770 Buford Highway NE, Mailstop F-63, Atlanta, Georgia 30341, (404) 639-0913; [email protected].

    The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.

    Sherri Berger, Chief Operating Officer, Centers for Disease Control and Prevention.
    [FR Doc. 2018-20024 Filed 9-13-18; 8:45 am] BILLING CODE 4163-18-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Administration for Community Living Intent To Award a Single-Source Supplement; Notice ACTION:

    Announcing the Intent to Award a Single-Source Supplement to provide the National Aging Network with timely, relevant, high quality opportunities to further enhance their knowledge and skills related to nutrition services.

    SUMMARY:

    The Administration for Community Living (ACL) announces the intent to award a single-source supplement to the current cooperative agreement held by Meals on Wheels America for the project Enhancing the Knowledge and Skills of the Aging Network.

    FOR FURTHER INFORMATION CONTACT:

    For further information or comments regarding this program supplement, contact Keri Lipperini, U.S. Department of Health and Human Services, Administration for Community Living, Administration on Aging, Office of Nutrition and Health Promotion Programs, 202-795-7422, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The purpose of this supplement is to: (1) Support the development and dissemination of resources for experienced and inexperienced Aging Network Nutrition Program providers; and (2) enhance peer-learning opportunities for State Units on Aging (SUAs), Area Agencies on Aging (AAAs), and Nutrition Program providers.

    The administrative supplement for FY 2018 will be in the amount of $175,242, bringing the total award for FY 2018 to $400,001.

    The additional funding will not be used to begin new projects, but it will be used to enhance existing efforts. The grantee will continue to provide appropriate, quality nutrition-related resources, address new opportunities to embed nutrition services within the home and community-based service systems, and engage successfully in emerging models of integrated health care.

    Program Name: Enhancing the Knowledge and Skills of the Aging Network.

    Recipient: Meals on Wheels America.

    Period of Performance: The supplement award will be issued for the second year of a three year project period of Sept 1, 2017 to August 31, 2020.

    Total Award Amount: $400,001 in FY 2018.

    Award Type: Cooperative Agreement Supplement.

    Statutory Authority: The Older Americans Act (OAA) of 1965, as amended, Public Law 114-144.

    Basis for Award: Meals on Wheels America (MOWA) is currently funded to carry out the objectives of this project through its current project entitled, National Resource Center on Nutrition and Aging for the period of September 1, 2017 through August 31, 2020. Since the project's implementation, the grantee has made satisfactory progress toward its approved work plan. The supplement will enable the grantee to carry their work even further, enhancing the support they provide to the Aging Network Nutrition Program Providers. The additional funding will not be used to begin new projects or activities, but rather to enhance efforts specific to tribal populations and congregate meal settings.

    MOWA is uniquely positioned to complete the work called for under this project. They have an already established infrastructure and are a known and trusted organization in the Aging Network. Prior to this current award, MOWA competed and was awarded the National Nutrition Center for 6 years. They have an established presence within much of the Aging Network. Under this current award period, they are providing educational opportunities for the Aging Network Nutrition Program Providers, including webinars and live trainings. They have a comprehensive, interactive web-based repository (www.nutritionandaging.org) with tools and resources, including—but not limited to—issues briefs, policy and practice models, and toolkits. They have also presented to the Aging Network locally and on a national level. They have reached thousands of providers using their: (1) Comprehensive database of SUAs, AAAs, and other Nutrition Program Providers; and (2) Leadership Academy, which provides expert consultation around nutrition program delivery and the use of technology to enhance services. In addition, they have developed partnerships with organizations, universities, and other entities to provide education and support for the Aging Network.

    Establishing an entirely new grant project at this time would be potentially disruptive to the current work already well under way. More importantly, it could cause confusion among the Aging Network Nutrition Program Providers, which could have a negative effect on training and support opportunities. If this supplement were not provided, the project would be unable to address the significant unmet educational needs of the Aging Network Nutrition Program Providers.

    Dated: September 5, 2018. Mary Lazare, Principal Deputy Administrator.
    [FR Doc. 2018-19925 Filed 9-13-18; 8:45 am] BILLING CODE 4154-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2014-D-0456] Appropriate Use of Voluntary Consensus Standards in Premarket Submissions for Medical Devices; Guidance for Industry and Food and Drug Administration Staff; Availability AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice of availability.

    SUMMARY:

    The Food and Drug Administration (FDA or Agency) is announcing the availability of a final guidance entitled “Appropriate Use of Voluntary Consensus Standards in Premarket Submissions for Medical Devices.” Voluntary consensus standards can be a valuable resource for industry and FDA staff because such standards can increase predictability, streamline premarket review, provide clearer regulatory expectations, and facilitate market entry for safe and effective medical products. FDA developed this document to provide guidance to industry and FDA reviewers about the appropriate use of voluntary consensus standards in the preparation and evaluation of premarket submissions for medical devices. This guidance applies to all articles that meet the definition of a “device” under the Federal Food, Drug, and Cosmetic Act (FD&C Act).

    DATES:

    The announcement of the guidance is published in the Federal Register on September 14, 2018.

    ADDRESSES:

    You may submit either electronic or written comments on Agency guidances at any time as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2014-D-0456 for “Appropriate Use of Voluntary Consensus Standards in Premarket Submissions for Medical Devices.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).

    An electronic copy of the guidance document is available for download from the internet. See the SUPPLEMENTARY INFORMATION section for information on electronic access to the guidance. Submit written requests for a single hard copy of the guidance document entitled “Appropriate Use of Voluntary Consensus Standards in Premarket Submissions for Medical Devices” to the Office of the Center Director, Guidance and Policy Development, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5431, Silver Spring, MD 20993-0002 or the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request.

    FOR FURTHER INFORMATION CONTACT:

    Scott Colburn, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5514, Silver Spring, MD 20993-0002, 301-796-6287; or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993, 240-402-7911.

    SUPPLEMENTARY INFORMATION:

    I. Background

    In 1996, Congress passed the National Technology Transfer and Advancement Act (NTTAA) (Pub. L. 104-113). The NTTAA codified guidance previously issued by the Office of Management and Budget (OMB), which had established a policy to use voluntary consensus standards in lieu of government-unique standards except where voluntary consensus standards are inconsistent with law or otherwise impractical. Section 514(c) of the FD&C Act provides FDA the authority to recognize voluntary consensus standards and accept declarations of conformity to such standards (see 21 U.S.C. 360d(c)).

    Voluntary consensus standards can be a valuable resource for industry and FDA staff because such standards can increase predictability, streamline premarket review, provide clearer regulatory expectations, and facilitate market entry for safe and effective medical products. The Agency developed this document to provide guidance to industry and FDA staff about the appropriate use of voluntary consensus standards in the preparation and evaluation of premarket submissions for medical devices. This guidance applies to all articles that meet the definition of a “device” under section 201(h) of the FD&C Act (21 U.S.C. 321(h)).

    FDA considered comments received on the draft guidance that appeared in the Federal Register of May 13, 2014 (79 FR 27311). FDA revised the guidance as appropriate in response to the comments. This guidance supersedes: (1) “Guidance for Industry and FDA Staff; Recognition and Use of Consensus Standards,” issued on September 17, 2007; (2) “Frequently Asked Questions on Recognition of Consensus Standards,” issued on September 17, 2007; and (3) “Guidance for Industry and for FDA Staff: Use of Standards in Substantial Equivalence Determinations,” issued on March 12, 2000.

    II. Significance of Guidance

    This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on “Appropriate Use of Voluntary Consensus Standards in Premarket Submissions for Medical Devices.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.

    III. Electronic Access

    Persons interested in obtaining a copy of the guidance may do so by downloading an electronic copy from the internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at https://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/default.htm. Guidance documents are also available at https://www.fda.gov/BiologicsBloodVaccines/GuidanceComplianceRegulatoryInformation/Guidances/default.htm or https://www.regulations.gov. Persons unable to download an electronic copy of “Appropriate Use of Voluntary Consensus Standards in Premarket Submissions for Medical Devices” may send an email request to [email protected] to receive an electronic copy of the document. Please use the document number 1770 to identify the guidance you are requesting.

    IV. Paperwork Reduction Act of 1995

    This guidance refers to previously approved collections of information. These collections of information are subject to review by the OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in the following FDA regulations, guidance, and form have been approved by OMB as listed in the following table:

    21 CFR part. guidance, or FDA form Topic OMB
  • control
  • No.
  • 807, subpart E and Form FDA 3654 Premarket Notification 0910-0120 814, subparts A through E Premarket Approval 0910-0231 814, subpart H Humanitarian Device Exemption 0910-0332 “Requests for Feedback on Medical Device Submissions: The Pre-Submission Program and Meetings with Food and Drug Administration Staff“ Q-Submissions 0910-0756 820 Current Good Manufacturing Practice; Quality System Regulation 0910-0073 312 Investigational New Drug Regulation 0910-0014 601 Biologics License Application 0910-0338
    Dated: September 10, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-19989 Filed 9-13-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2018-D-2936] Recognition and Withdrawal of Voluntary Consensus Standards; Draft Guidance for Industry and Food and Drug Administration Staff; Availability AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice of availability.

    SUMMARY:

    The Food and Drug Administration (FDA, Agency, or we) is announcing the availability of the draft guidance entitled “Recognition and Withdrawal of Voluntary Consensus Standards.” This draft guidance identifies the principles FDA uses for recognizing a standard, and it explains the extent of recognition and other supplementary information. It provides information on how you may request recognition as well as circumstances under which FDA may withdraw recognition. This draft guidance also responds to a provision of the 21st Century Cures Act (Cures Act) by updating published guidance on these topics. This draft guidance is not final nor is it in effect at this time.

    DATES:

    Submit either electronic or written comments on the draft guidance by November 13, 2018 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance. Submit either electronic or written comments on the collection of information by November 13, 2018.

    ADDRESSES:

    You may submit comments on any guidance at any time as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand Delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2018-D-2936 for “Recognition and Withdrawal of Voluntary Consensus Standards.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).

    An electronic copy of the guidance document is available for download from the internet. See the SUPPLEMENTARY INFORMATION section for information on electronic access to the guidance. Submit written requests for a single hard copy of the draft guidance document entitled “Recognition and Withdrawal of Voluntary Consensus Standards” to the Office of the Center Director, Guidance and Policy Development, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5431, Silver Spring, MD 20993-0002 or the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request.

    FOR FURTHER INFORMATION CONTACT:

    Scott Colburn, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5514, Silver Spring, MD 20993-0002, 301-796-6287, or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.

    SUPPLEMENTARY INFORMATION:

    I. Background

    FDA's standards recognition program furthers the aim of international harmonization because the same standards (or international equivalents) are relied upon by sponsors to meet other countries' regulatory requirements when appropriate. This draft guidance describes the procedures that FDA follows and the actions FDA may take during its review and evaluation of requests for standards recognition or the withdrawal of recognition. This draft guidance provides further clarity and explanation about the regulatory framework, policies, and practices when evaluating requests for recognition. This draft guidance also responds to section 3053 of the Cures Act by updating published guidance on these topics (Pub. L. 114-255). When final, this draft guidance will supersede the guidance “CDRH Standard Operating Procedures for the Identification and Evaluation of Candidate Consensus Standards for Recognition,” issued on September 17, 2007.

    FDA generally considers for recognition voluntary consensus standards, which are created by standards development organizations that follow a consensus process. A document issued by the Office of Management and Budget (OMB) entitled “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” commonly called OMB Circular A-119, defines the attributes or elements of a consensus process (Ref. 1). This draft guidance explains those elements and how they pertain to FDA's consideration of a standard for recognition.

    The draft guidance describes the process leading up to and including recognition. We list common purposes to recognize voluntary consensus standards as well as the essential information that FDA will provide in the supplemental information sheet for the recognition of a standard. This draft guidance also discusses when FDA may withdraw recognition.

    You may also request that FDA recognize a specific voluntary consensus standard. This draft guidance recommends the information you would submit to do so, and it summarizes the actions we may take to act on such a request.

    II. Significance of Guidance

    This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on recognition and withdrawal of voluntary consensus standards. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.

    III. Electronic Access

    Persons interested in obtaining a copy of the draft guidance may do so by downloading an electronic copy from the internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at https://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/default.htm. This draft guidance is also available at https://www.fda.gov/BiologicsBloodVaccines/GuidanceComplianceRegulatoryInformation/Guidances/default.htm or https://www.regulations.gov. Persons unable to download an electronic copy of “Recognition and Withdrawal of Voluntary Consensus Standards” may send an email request to [email protected] to receive an electronic copy of the document. Please use the document number 616 to identify the guidance you are requesting.

    IV. Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the OMB for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information before submitting the collection to OMB for approval. To comply with this requirement, FDA is publishing notice of the proposed collection of information set forth in this document.

    With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.

    Request for Recognition of a Voluntary Consensus Standard OMB Control Number 0910—NEW

    The draft guidance for industry and FDA staff entitled “Recognition and Withdrawal of Voluntary Consensus Standards” provides guidance to industry and FDA staff about the procedures the Center for Devices and Radiological Health follows when a request for recognition of a voluntary consensus standard is received. The guidance outlines justifications for why a standard may be recognized wholly, partly, or not at all, as well as reasons and rationales for withdrawing a standard. The guidance also provides that any interested party may request recognition of a standard. The draft guidance recommends that for recognition of a standard the request should, at a minimum, contain the following information:

    • Name and electronic or mailing address of the requestor;

    • Title of the standard;

    • Any reference number and date;

    • Proposed list of devices for which a declaration of conformity should routinely apply;

    • Basis for recognition, e.g., including the scientific, technical, regulatory, or other basis for such request; and

    • A brief identification of the testing or performance or other characteristics of the device(s) or process(es), that would be addressed by a declaration of conformity.

    Based on previous requests for recognition of standards, we estimate that FDA will receive nine requests annually. We estimate that each request will take less than 1 hour to prepare.

    FDA estimates the burden of this collection of information as follows:

    Table 1—Estimated Annual Reporting Burden 1 Activity Number of
  • respondents
  • Number of
  • responses per respondent
  • Total annual responses Average
  • burden per
  • response
  • Total hours
    Request for recognition of a voluntary consensus standard 9 1 9 1 9 1 There are no capital costs or operating and maintenance costs associated with this collection of information.
    V. Reference

    The following reference is on display with the Dockets Management Staff (see ADDRESSES) and is available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; it is also available electronically at https://www.regulations.gov. FDA has verified the website address, as of the date this document publishes in the Federal Register, but websites are subject to change over time.

    1. OMB, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” Circular A-119 (revised). January 22, 2016. Available at: https://www.nist.gov/sites/default/files/revised_circular_a-119_as_of_01-22-2016.pdf. Dated: September 10, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-19993 Filed 9-13-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2016-D-2565] 510(k) Third-Party Review Program; Draft Guidance for Industry, Food and Drug Administration Staff, and Third-Party Review Organizations; Availability AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice of availability.

    SUMMARY:

    The Food and Drug Administration (FDA or Agency) is announcing the availability of the draft guidance entitled “510(k) Third-Party Review Program; Draft Guidance for Industry, Food and Drug Administration Staff, and Third-Party Review Organizations.” This draft guidance provides a comprehensive look into FDA's current thinking regarding the 510(k) Third-Party (3P) Review Program authorized under the Federal Food, Drug, and Cosmetic Act (FD&C Act). Under the FDA Reauthorization Act of 2017 (FDARA), FDA was directed to issue draft guidance on the factors that will be used in determining whether a class I or class II device type, or subset of such device types, is eligible for review by an accredited person. The 3P Review Program is intended to allow review of devices by 3P Review Organizations to provide manufacturers of these devices an alternative review process that allows FDA to best utilize our resources on higher risk devices. This draft guidance is not final nor is it in effect at this time.

    DATES:

    Submit either electronic or written comments on the draft guidance by December 13, 2018 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance. Submit either electronic or written comments on the collection of information by November 13, 2018.

    ADDRESSES:

    You may submit comments on any guidance at any time as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand Delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2016-D-2565 for “510(k) Third-Party Review Program.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).

    An electronic copy of the guidance document is available for download from the internet. See the SUPPLEMENTARY INFORMATION section for information on electronic access to the guidance. Submit written requests for a single hard copy of the draft guidance document entitled “510(k) Third-Party Review Program” to the Office of the Center Director, Guidance and Policy Development, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5431, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request.

    FOR FURTHER INFORMATION CONTACT:

    Gregory Pishko, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5659, Silver Spring, MD 20993-0002, 240-402-6635.

    SUPPLEMENTARY INFORMATION: I. Background

    FDA's implementation of section 523 of the FD&C Act (21 U.S.C. 360m) establishes a process for recognition of qualified third parties to conduct the initial review of premarket notification (510(k)) submissions for certain low-to-moderate risk devices eligible under the 3P Review Program. Under FDARA (Pub. L. 115-52), the criteria used to establish device eligibility in the 3P Review Program changed and FDA was directed to issue draft guidance on the factors that will be used in determining whether a class I or class II device type, or subset of such device types, is eligible for review by an accredited person. The objectives of this draft guidance are: (1) To describe the factors FDA will use in determining device type eligibility for review by 3P Review Organizations; (2) to outline FDA's process for the recognition, re-recognition, suspension, and withdrawal of recognition for 3P Review Organizations; and (3) to ensure consistent quality of work among 3P Review Organizations through Medical Device User Fee Amendments IV commitments authorized under FDARA. This draft guidance also outlines FDA's current thinking on leveraging the International Medical Device Regulators Forum's requirements for the Medical Device Single Audit Program.

    Upon issuance, this draft guidance will replace the draft guidance entitled “510(k) Third-Party Review Program—Draft Guidance for Industry, Food and Drug Administration Staff, and Third-Party Review Organizations” (81 FR 62744) issued on September 12, 2016.

    This draft guidance, when finalized, will supersede “Implementation of Third-Party Programs Under the FDA Modernization Act of 1997; Final Guidance for Staff, Industry, and Third Parties” issued on February 2, 2001, and “Guidance for Third Parties and FDA Staff; Third-Party Review of Premarket Notifications” issued on September 28, 2004.

    II. Significance of Guidance

    This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on the “510(k) Third-Party Review Program.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.

    III. Electronic Access

    Persons interested in obtaining a copy of the draft guidance may do so by downloading an electronic copy from the internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at https://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/default.htm. This guidance document is also available at https://www.regulations.gov. Persons unable to download an electronic copy of “510(k) Third-Party Review Program” may send an email request to [email protected] to receive an electronic copy of the document. Please use the document number 17-028 to identify the guidance you are requesting.

    IV. Paperwork Reduction Act of 1995

    Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information before submitting the collection to OMB for approval. To comply with this requirement, FDA is publishing notice of the proposed collection of information set forth in this document.

    With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.

    510(k) Third-Party Review Program (Formerly Medical Devices; Third-Party Review Under the Food and Drug Administration Modernization Act) OMB Control Number 0910-0375—Revision

    Information collections (ICs) associated with the 510(k) Third-Party Review Program have been approved under OMB control number 0910-0375, “Medical Devices; Third-Party Review Under the Food and Drug Administration Modernization Act.” When finalized, the draft guidance entitled “510(k) Third-Party Review Program; Draft Guidance for Industry, Food and Drug Administration Staff, and Third-Party Review Organizations” will necessitate revisions to the burden estimates in OMB control number 0910-0375.

    Section 210 of the Food and Drug Administration Modernization Act (FDAMA) established section 523 of the FD&C Act (21 U.S.C. 360m), directing FDA to accredit persons in the private sector to review certain premarket notifications (510(k)s). Participation in this third-party review program by accredited persons is entirely voluntary. A third party wishing to participate will submit a request for accreditation to FDA. Accredited third-party reviewers have the ability to review a manufacturer's 510(k) submission for selected devices. After reviewing a submission, the reviewer will forward a copy of the 510(k) submission, along with the reviewer's documented review and recommendation, to FDA. Third-party reviewers should maintain records of their 510(k) reviews and a copy of the 510(k) for a reasonable period of time, usually a period of 3 years.

    Respondents to this information collection are businesses or other for-profit organizations.

    FDA estimates the burden of this IC as follows:

    Estimated Annual Reporting Burden

    Requests for accreditation (initial): On average, the Agency has received one application for accreditation for 3P review per year. There is no change to this IC from the currently approved burden estimate.

    Requests for accreditation (re-recognition): We have added an IC for re-recognition requests to be consistent with the guidance which states that requests for re-recognition will be handled in the same manner as initial recognition requests. Based on the estimated number of 3P Review Organizations (7) and the frequency of re-recognition (3 years), we expect to receive approximately 2 re-recognition requests per year. We expect the average burden per response to be the same as an initial request (24 hours).

    510(k) reviews conducted by accredited third parties: Based on FDA's recent experience with this program, we estimate the number of 510(k)s submitted for third-party review to be 147 annually; approximately 21 annual reviews for each of the 7 3P Review Organizations. This IC has been adjusted based on current trends, however, there is no program change to this IC.

    Complaints: The guidance recommends that the 3P Review Organization should forward to FDA information on any complaint (e.g., whistleblowing) it receives about a 510(k) submitter that could indicate an issue related to the safety or effectiveness of a medical device or a public health risk. Therefore, we have added an IC for complaints to the reporting burden. We expect to receive one forwarded complaint per year. Based on similar information collections, we estimate the average burden per complaint to be 0.25 hours (15 minutes).

    Table 1—Estimated Annual Reporting Burden  1 Activity Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Total annual
  • responses
  • Average
  • burden per
  • response
  • Total hours
    Requests for accreditation (initial) 3 1 1 1 24 24 Requests for accreditation (re-recognition) 5 2 1 2 24 48 510(k) reviews conducted by accredited third parties 4 7 21 147 40 5,880 Complaints 5 1 1 1 0.25 1 Total 5,952 1 There are no capital costs or operating and maintenance costs associated with this IC. (15 minutes)
    Estimated Annual Recordkeeping Burden

    510(k) Reviews: 3P Review Organizations should retain copies of all 510(k) reviews and associated correspondence. Based on FDA's recent experience with this program, we estimate the number of 510(k)s submitted for 3P review to be 147 annually; approximately 21 annual reviews for each of the 7 3P Review Organizations. We estimate the average burden per recordkeeping to be 10 hours. The estimated number of records and recordkeepers have been adjusted based on current trends, however, there is no program change to this IC.

    Records regarding qualifications to receive FDA recognition as a 3P Review Organization: Under section 704(f) of the FD&C Act (21 U.S.C. 374(f)), a 3P Review Organization must maintain records that support their initial and continuing qualifications to receive FDA recognition, including documentation of the training and qualifications of the 3P Review Organization and its personnel; the procedures used by the 3P Review Organization for handling confidential information; the compensation arrangements made by the 3P Review Organization; and the procedures used by the 3P Review Organization to identify and avoid conflicts of interest. Additionally, the draft guidance states that 3P Review Organizations should retain information on the identity and qualifications of all personnel who contributed to the technical review of each 510(k) submission and other relevant records. Therefore, we have added an IC for “Records regarding qualification to receive FDA recognition as a 3P Review Organization.” Because most of the burden of compiling the records is expressed in the reporting burden for requests for accreditation, we estimate the maintenance of such records to be 1 hour per recordkeeping annually.

    Recordkeeping system regarding complaints: Section 523(b)(3)(E)(iv) of the FD&C Act requires 3P Review Organizations to agree in writing that they will promptly respond and attempt to resolve complaints regarding their activities. The draft guidance recommends that 3P Review Organizations establish a recordkeeping system for tracking the submission of those complaints and how those complaints were resolved, or attempted to be resolved. Therefore, we have added an IC for “Recordkeeping system regarding complaints.” Based on our experience with the program and the recommendations in the guidance, we estimate the average burden per recordkeeping to be 2 hours.

    Table 2—Estimated Annual Recordkeeping Burden  1 Activity Number of
  • recordkeepers
  • Number of
  • records per
  • recordkeeper
  • Total annual
  • records
  • Average
  • burden per
  • recordkeeping
  • Total hours
    510(k) reviews 3 7 21 147 10 1,470 Records regarding qualifications to receive FDA recognition as a 3P Review Organization 4 7 1 7 1 7 Recordkeeping system regarding complaints 4 7 1 7 2 14 Total 1,491 1 There are no capital costs or operating and maintenance costs associated with this IC.

    We revised our estimates for OMB control number 0910-0375 by adding new ICs, changing the title of the ICR, and adjusting the existing ICs based on current trends. Despite the addition of new ICs, the estimated burden reflects an overall decrease of 5,581 hours. We attribute this adjustment to a decrease in the number of submissions we received over the last few years.

    The draft guidance also refers to previously approved ICs found in FDA regulations. The ICs in 21 CFR part 807, subpart E have been approved under OMB control number 0910-0120; the ICs regarding 3P Review of medical devices under FDAMA have been approved under OMB control number 0910-0375; the ICs for the device appeals processes have been approved under OMB control number 0910-0738; the ICs in the guidance document “Requests for Feedback on Medical Device Submissions: The Pre-Submission Program and Meetings with Food and Drug Administration Staff” have been approved under OMB control number 0910-0756.

    Dated: September 10, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-19992 Filed 9-13-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2007-D-0369] Product-Specific Guidances; Draft and Revised Draft Guidances for Industry; Availability AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice of availability.

    SUMMARY:

    The Food and Drug Administration (FDA or Agency) is announcing the availability of additional draft and revised draft product-specific guidances. The guidances provide product-specific recommendations on, among other things, the design of bioequivalence (BE) studies to support abbreviated new drug applications (ANDAs). In the Federal Register of June 11, 2010, FDA announced the availability of a guidance for industry entitled “Bioequivalence Recommendations for Specific Products” that explained the process that would be used to make product-specific guidances available to the public on FDA's website. The guidances identified in this notice were developed using the process described in that guidance.

    DATES:

    Submit either electronic or written comments on the draft guidance by November 13, 2018 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.

    ADDRESSES:

    You may submit comments on any guidance at any time as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2007-D-0369 for “Product-Specific Guidances; Draft and Revised Draft Guidances for Industry.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)). Submit written requests for single copies of the draft guidances to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the SUPPLEMENTARY INFORMATION section for electronic access to the draft guidance documents.

    FOR FURTHER INFORMATION CONTACT:

    Wendy Good, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 75, Rm. 4714, Silver Spring, MD 20993-0002, 240-402-9682.

    SUPPLEMENTARY INFORMATION:

    I. Background

    In the Federal Register of June 11, 2010 (75 FR 33311), FDA announced the availability of a guidance for industry entitled “Bioequivalence Recommendations for Specific Products” that explained the process that would be used to make product-specific guidances available to the public on FDA's website at https://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/default.htm.

    As described in that guidance, FDA adopted this process as a means to develop and disseminate product-specific guidances and provide a meaningful opportunity for the public to consider and comment on those guidances. Under that process, draft guidances are posted on FDA's website and announced periodically in the Federal Register. The public is encouraged to submit comments on those recommendations within 60 days of their announcement in the Federal Register. FDA considers any comments received and either publishes final guidances or publishes revised draft guidances for comment. Guidances were last announced in the Federal Register on July 20, 2018. This notice announces draft product-specific guidances, either new or revised, that are posted on FDA's website.

    II. Drug Products for Which New Draft Product-Specific Guidances Are Available

    FDA is announcing the availability of a new draft product-specific guidances for industry for drug products containing the following active ingredients:

    Table 1—New Draft Product-Specific Guidances for Drug Products Abemaciclib Albuterol sulfate Allopurinol; Lesinurad Amantadine hydrochloride Amphetamine aspartate; Amphetamine sulfate; Dextroamphetamine saccharate; Dextroamphetamine sulfate Azelaic acid Benznidazole Brigatinib Brimonidine tartrate; Timolol maleate Chlorzoxazone Ciprofloxacin hydrochloride Dapagliflozin propanediol; Saxagliptin hydrochloride Delafloxacin meglumine Desonide Deutetrabenazine Diazepam Efinaconazole Enasidenib mesylate Glecaprevir; Pibrentasvir Ibuprofen; Pseudoephedrine hydrochloride Ivermectin Lamotrigine Luliconazole Midostaurin Miltefosine Morphine sulfate Neratinib maleate Olaparib Olive oil; Soybean oil Oxycodone hydrochloride Penciclovir Perflutren Pilocarpine hydrochloride Pitavastatin magnesium Pitavastatin sodium Pregabalin Secnidazole Sofosbuvir; Velpatasvir; Voxilaprevir Spironolactone Sulfur hexafluoride lipid-type a microspheres Talc Tavaborole III. Drug Products for Which Revised Draft Product-Specific Guidances Are Available

    FDA is announcing the availability of revised draft product-specific guidances for industry for drug products containing the following active ingredients:

    Table 2—Revised Draft Product-Specific Guidances for Drug Products Acetazolamide Chlorpromazine hydrochloride Doxorubicin hydrochloride Morphine sulfate Nicotine polacrilex (multiple Reference Listed Drugs) Nisoldipine Oxycodone Raltegravir potassium Tacrolimus (multiple strengths)

    For a complete history of previously published Federal Register notices related to product-specific guidances, go to https://www.regulations.gov and enter Docket No. FDA-2007-D-0369.

    These draft guidances are being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). These draft guidances, when finalized, will represent the current thinking of FDA on, among other things, the product-specific design of BE studies to support ANDAs. They do not establish any rights for any person and are not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.

    IV. Electronic Access

    Persons with access to the internet may obtain the draft guidances at either https://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/default.htm or https://www.regulations.gov.

    Dated: September 10, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-20018 Filed 9-13-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Meeting of the Advisory Committee on Minority Health AGENCY:

    Office of Minority Health, Office of the Secretary, Department of Health and Human Services.

    ACTION:

    Notice of meeting.

    SUMMARY:

    As stipulated by the Federal Advisory Committee Act, the Department of Health and Human Services (HHS) is hereby giving notice that the Advisory Committee on Minority Health (ACMH) will hold a meeting conducted as a telephone conference call. This call will be open to the public. Preregistration is required for both public participation and comment. Any individual who wishes to participate in the call should email [email protected] by October 11, 2018. Instructions regarding participating in the call and how to provide verbal public comments will be given at the time of preregistration. Information about the meeting is available from the designated contact and will be posted on the website for the Office of Minority Health (OMH), www.minorityhealth.hhs.gov. Information about ACMH activities can be found on the OMH website under the heading About OMH.

    DATES:

    The conference call will be held on October 16, 2018, 1 p.m. to 3 p.m. EST.

    ADDRESSES:

    Instructions regarding participating in the call will be given at the time of preregistration.

    FOR FURTHER INFORMATION CONTACT:

    Violet Woo, Designated Federal Officer, Advisory Committee on Minority Health, Office of Minority Health, Department of Health and Human Services, Tower Building, 1101 Wootton Parkway, Suite 600, Rockville, Maryland 20852. Phone: 240-453-8222; fax: 240-453-8223; email [email protected]

    SUPPLEMENTARY INFORMATION:

    In accordance with Public Law 105-392, the ACMH was established to provide advice to the Deputy Assistant Secretary for Minority Health on improving the health of each racial and ethnic minority group and on the development of goals and specific program activities of the OMH.

    The topics to be discussed during the teleconference include finalizing recommendations regarding innovative systems of care, barriers to effective data collection, and primary prevention related serious mental illness; discussing the framework and speakers for the following disparities-themed report that will include recommendations; and discussing the agenda for the next meeting. The recommendations will be given to the Deputy Assistant Secretary for Minority Health.

    This call will be limited to 125 participants. The OMH will make every effort to accommodate persons with special needs. Individuals who have special needs for which special accommodations may be required should contact Professional and Scientific Associates at (703) 234-1700 and reference this meeting. Requests for special accommodations should be made at least ten (10) business days prior to the meeting.

    Members of the public will have an opportunity to provide comments at the meeting. Public comments will be limited to two minutes per speaker during the time allotted. Individuals who would like to submit written statements should email, mail, or fax their comments to the designated contact at least seven (7) business days prior to the meeting.

    Any members of the public who wish to have electronic or printed material distributed to ACMH members should email [email protected] or mail their materials to the Designated Federal Officer, ACMH, Tower Building, 1101 Wootton Parkway, Suite 600, Rockville, Maryland 20852, prior to close of business on October 11, 2018.

    Dated: September 5, 2018. Violet Woo, Designated Federal Officer, Advisory Committee on Minority Health.
    [FR Doc. 2018-20040 Filed 9-13-18; 8:45 am] BILLING CODE 4150-29-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard [Docket No. USCG-2018-0801] Certificate of Alternative Compliance for the TUG JUDY MORAN Hull 123 AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notification of issuance of a certificate of alternative compliance.

    SUMMARY:

    The Coast Guard announces that the U. S. Coast Guard First District Prevention Division has issued a certificate of alternative compliance from the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), for the TUG JUDY MORAN, Hull 123. We are issuing this notice because its publication is required by statute. Due to the construction and placement of the vessel's side lights and stern lights, TUG JUDY MORAN cannot fully comply with the light, shape, or sound signal provisions of the 72 COLREGS without interfering with the vessel's design and construction. This notification of issuance of a certificate of alternative compliance promotes the Coast Guard's marine safety mission.

    DATES:

    The Certificate of Alternative Compliance was issued on 26 July, 2018.

    FOR FURTHER INFORMATION CONTACT:

    For information or questions about this notice call or email Mr. Kevin Miller, First District Towing Vessel/Barge Safety Specialist, U.S. Coast Guard; telephone (617) 223-8272, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The United States is signatory to the International Maritime Organization's International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), as amended. The special construction or purpose of some vessels makes them unable to comply with the light, shape, or sound signal provisions of the 72 COLREGS. Under statutory law, however, specified 72 COLREGS provisions are not applicable to a vessel of special construction or purpose if the Coast Guard determines that the vessel cannot comply fully with those requirements without interfering with the special function of the vessel.1

    1 33 U.S.C. 1605.

    The owner, builder, operator, or agent of a special construction or purpose vessel may apply to the Coast Guard District Office in which the vessel is being built or operated for a determination that compliance with alternative requirements is justified,2 and the Chief of the Prevention Division would then issue the applicant a certificate of alternative compliance (COAC) if he or she determines that the vessel cannot comply fully with 72 COLREGS light, shape, and sound signal provisions without interference with the vessel's special function.3 If the Coast Guard issues a COAC, it must publish notice of this action in the Federal Register.4

    2 33 CFR 81.5.

    3 33 CFR 81.9.

    4 33 U.S.C. 1605(c) and 33 CFR 81.18.

    The First District Prevention Department, U.S. Coast Guard, certifies that the TUG JUDY MORAN, Washburn & Doughty Hull 123, is a vessel of special construction or purpose, and that, with respect to the position of the vessels side lights, it is not possible to comply fully with the requirements of the provisions enumerated in the 72 COLREGS, without interfering with the normal operation, construction, or design of the vessel. The First District Prevention Division further finds and certifies that the vessel's sidelights (13′ 5″ from the vessel's side mounted on the pilot house) and the vessel's stern light and towing lights (3′ 6″ aft of frame 20) are in the closet possible compliance with the applicable provisions of the 72 COLREGS.5

    5 33 U.S.C. 1605(a); 33 CFR 81.9.

    This notice is issued under authority of 33 U.S.C. 1605(c) and 33 CFR 81.18.

    Dated: September 11, 2018. Richard J. Schultz, Captain, U.S. Coast Guard, Chief, Prevention Division, First Coast Guard District.
    [FR Doc. 2018-20049 Filed 9-13-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT [Docket No. FR-7002-N-11] 60-Day Notice of Proposed Information Collection: Continuum of Care Program Assistance Grant Application AGENCY:

    Office of Community Planning and Development, HUD.

    ACTION:

    Notice.

    SUMMARY:

    HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.

    DATES:

    Comments Due Date: November 13, 2018.

    ADDRESSES:

    Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Anna P. Guido, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-5534 (this is not a toll-free number) or email at [email protected] for a copy of the proposed forms or other available information. Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at (800) 877-8339.

    FOR FURTHER INFORMATION CONTACT:

    Sherri Boyd, Senior Program Specialist, Office of Special Needs Assistance Programs, Office of Community Planning and Development, Department of Housing and Urban Development, 451 7th Street SW, Room 7264, Washington, DC 20410; telephone (202) 402-6070 (This is not a toll-free number). Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at (800) 877-8339. Copies of available documents submitted to OMB may be obtained from Ms. Boyd.

    SUPPLEMENTARY INFORMATION:

    This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.

    A. Overview of Information Collection

    Title of Information Collection: Continuum of Care Program Application.

    OMB Approval Number: 2506-0112.

    Type of Request: Revision of a currently approved collection.

    Form Number: Certification of Lobbying.

    Description of the need for the information and proposed use: The regulatory authority to collect this information is contained in 24 CFR part 578, and is authorized by the McKinney-Vento Act, as amended by S. 896 The Homeless Emergency Assistance and Rapid Transition to Housing (HEARTH) Act of 2009 (42 U.S.C. 11371 et seq.) which states that “The Secretary shall award grants, on a competitive basis, and using the selection criteria described in section 427, to carry out eligible activities under this subtitle for projects that meet the program requirements under section 426, either by directly awarding funds to project sponsors or by awarding funds to unified funding agencies.” (SEC.422(a))

    The CoC Program Application (OMB 2506-0112) is the second phase of the information collection process to be used in HUD's CoC Program Competition authorized by the HEARTH Act. During this phase, HUD collects information from the state and local Continuum of Cares (CoCs) through the CoC Consolidated Application which is comprised of the CoC Application, and the Priority Listing which includes the individual project recipients' project applications.

    The CoC Consolidated Grant Application is necessary for the selection of proposals submitted to HUD (by State and local governments, public housing authorities, and nonprofit organization) for the grant funds available through the Continuum of Care Program, in order to make decisions for the awarding CoC Program funds.

    Respondents (i.e. affected public): Nonprofit organizations, states, local governments, and instrumentalities of state and local governments, and Public Housing Authorities.

    Estimated Number of Respondents: 4,577 applicants.

    Estimated Number of Responses: 8,869 applications.

    Frequency of Response: 1 response per year.

    Average Hours per Response: 22.75 hours.

    Total Estimated Burdens: 201,779.87 hours.

    B. Solicitation of Public Comment

    This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:

    (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

    (2) The accuracy of the agency's estimate of the burden of the proposed collection of information;

    (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

    (4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

    HUD encourages interested parties to submit comment in response to these questions.

    Authority:

    Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.

    Dated: September 4, 2018. Lori Michalski, Acting General Deputy Assistant Secretary for Community Planning and Development.
    [FR Doc. 2018-20031 Filed 9-13-18; 8:45 am] BILLING CODE 4210-67-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service [Docket No. FWS-HQ-IA-2018-0024; FXIA16710900000-178-FF09A30000] Foreign Endangered Species; Marine Mammals; Receipt of Permit Applications AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Notice of receipt of permit applications.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service, invite the public to comment on applications to conduct certain activities with foreign species that are listed as endangered under the Endangered Species Act (ESA) and foreign or native species for which the Service has jurisdiction under the Marine Mammal Protection Act (MMPA). With some exceptions, the ESA and the MMPA prohibit activities with listed species unless Federal authorization is acquired that allows such activities. The ESA and MMPA also require that we invite public comment before issuing permits for endangered species or marine mammals.

    DATES:

    We must receive comments by October 15, 2018.

    ADDRESSES:

    Obtaining Documents: The applications, application supporting materials, and any comments and other materials that we receive will be available for public inspection at http://www.regulations.gov in Docket No. FWS-HQ-IA-2018-0024.

    Submitting Comments: When submitting comments, please specify the name of the applicant and the permit number at the beginning of your comment. You may submit comments by one of the following methods:

    Internet: http://www.regulations.gov. Search for and submit comments on Docket No. FWS-HQ-IA-2018-0024.

    U.S. mail or hand-delivery: Public Comments Processing, Attn: Docket No. FWS-HQ-IA-2018-0024; U.S. Fish and Wildlife Service Headquarters, MS: BPHC; 5275 Leesburg Pike; Falls Church, VA 22041-3803.

    For more information, see Public Comment Procedures under SUPPLEMENTARY INFORMATION.
    FOR FURTHER INFORMATION CONTACT:

    Brenda Tapia, by phone at 703-358-2104, via email at [email protected], or via the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    I. Public Comment Procedures A. How do I comment on submitted applications?

    You may submit your comments and materials by one of the methods in ADDRESSES. We will not consider comments sent by email or fax, or to an address not in ADDRESSES. We will not consider or include in our administrative record comments we receive after the close of the comment period (see DATES).

    When submitting comments, please specify the name of the applicant and the permit number at the beginning of your comment. Please make your requests or comments as specific as possible, confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Provide sufficient information to allow us to authenticate any scientific or commercial data you include. The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) those that include citations to, and analyses of, the applicable laws and regulations.

    B. May I review comments submitted by others?

    You may view and comment on others' public comments on http://www.regulations.gov, unless our allowing so would violate the Privacy Act (5 U.S.C. 552a) or Freedom of Information Act (5 U.S.C. 552).

    C. Who will see my comments?

    If you submit a comment via http://www.regulations.gov, your entire comment, including any personal identifying information, will be posted on the website. If you submit a hardcopy comment that includes personal identifying information, such as your address, phone number, or email address, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.

    II. Background

    To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.), and section 104(c) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.), we invite public comments on permit applications before final action is taken. With some exceptions, the ESA and MMPA prohibit activities with listed species unless Federal authorization is acquired that allows such activities. Permits issued under section 10 of the ESA allow activities for scientific purposes or to enhance the propagation or survival of the affected species.

    Concurrent with publishing this notice in the Federal Register, we are forwarding copies of the marine mammal applications to the Marine Mammal Commission and the Committee of Scientific Advisors for their review.

    III. Permit Applications

    We invite the public to comment on the following applications.

    A. Endangered Species Applicant: St. Catherine's Island, Midway, GA; Permit No. 89124A

    The applicant requests re-issuance of a captive-bred wildlife registration under 50 CFR 17.21(g) for ring-tailed lemurs (Lemur catta), to enhance the propagation or survival of the species. This notification covers activities to be conducted by the applicant over a 5-year period.

    Trophy Applicants

    Each of the following applicants requests a permit to import a sport-hunted trophy of one male bontebok (Damaliscus pygargus pygargus) culled from a captive herd maintained under the management program of the Republic of South Africa, for the purpose of enhancing the propagation or survival of the species.

    Applicant: Thomas Spell, Simpsonville, SC; Permit No. 63017C Applicant: Gene McQuown, Dallas, TX; Permit No. 69233C B. Marine Mammals Applicant: Sea to Shore Alliance, Sarasota, FL; Permit No. 37808A

    The applicant requests authorization to renew and amend their permit to take and import both wild and formerly captive West Indian manatees (Trichechus manatus) that are being released into the wild for the purpose of scientific research. This notification covers activities to be conducted by the applicant over a 5-year period.

    IV. Next Steps

    If we issue permits to any of the applicants listed in this notice, we will publish a notice in the Federal Register. You may locate the notice announcing the permit issuance date by searching http://www.regulations.gov for the permit number listed above in this document (e.g., 12345A).

    V. Authority

    We issue this notice under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), and the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.), and their implementing regulations.

    Brenda Tapia, Program Analyst/Data Administrator, Branch of Permits, Division of Management Authority.
    [FR Doc. 2018-20010 Filed 9-13-18; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service [Docket No. FWS-HQ-IA-2018-0017; FXIA16710900000-178-FF09A30000] Foreign Endangered Species; Receipt of Permit Applications AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Notice of receipt of permit applications.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service, invite the public to comment on applications to conduct certain activities with foreign species that are listed as endangered under the Endangered Species Act (ESA). With some exceptions, the ESA prohibits activities with listed species unless Federal authorization is acquired that allows such activities. The ESA also requires that we invite public comment before issuing permits for endangered species.

    DATES:

    We must receive comments by October 15, 2018.

    ADDRESSES:

    Obtaining Documents: The applications, application supporting materials, and any comments and other materials that we receive will be available for public inspection at http://www.regulations.gov in Docket No. FWS-HQ-IA-2018-0017.

    Submitting Comments: When submitting comments, please specify the name of the applicant and the permit number at the beginning of your comment. You may submit comments by one of the following methods:

    Internet: http://www.regulations.gov. Search for and submit comments on Docket No. FWS-HQ-IA-2018-0017.

    U.S. mail or hand-delivery: Public Comments Processing, Attn: Docket No. FWS-HQ-IA-2018-0017; U.S. Fish and Wildlife Service Headquarters, MS: BPHC; 5275 Leesburg Pike; Falls Church, VA 22041-3803.

    For more information, see Public Comment Procedures under SUPPLEMENTARY INFORMATION.

    FOR FURTHER INFORMATION CONTACT:

    Brenda Tapia, by phone at 703-358-2104, via email at [email protected], or via the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    I. Public Comment Procedures A. How do I comment on submitted applications?

    You may submit your comments and materials by one of the methods in ADDRESSES. We will not consider comments sent by email or fax, or to an address not in ADDRESSES. We will not consider or include in our administrative record comments we receive after the close of the comment period (see DATES).

    When submitting comments, please specify the name of the applicant and the permit number at the beginning of your comment. Please make your requests or comments as specific as possible, confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Provide sufficient information to allow us to authenticate any scientific or commercial data you include. The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) those that include citations to, and analyses of, the applicable laws and regulations.

    B. May I review comments submitted by others?

    You may view and comment on others' public comments on http://www.regulations.gov, unless our allowing so would violate the Privacy Act (5 U.S.C. 552a) or Freedom of Information Act (5 U.S.C. 552).

    C. Who will see my comments?

    If you submit a comment via http://www.regulations.gov, your entire comment, including any personal identifying information, will be posted on the website. If you submit a hardcopy comment that includes personal identifying information, such as your address, phone number, or email address, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.

    II. Background

    To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.), we invite public comments on permit applications before final action is taken. With some exceptions, the ESA prohibits activities with listed species unless Federal authorization is acquired that allows such activities. Permits issued under section 10 of the ESA allow activities for scientific purposes or to enhance the propagation or survival of the affected species.

    III. Permit Applications

    We invite the public to comment on the following applications.

    Applicant: Gorilla Doctors, Baltimore, MD; Permit No. 77544C

    The applicant requests a permit to import scientific samples from wild mountain gorillas (Gorilla beringei beringei), eastern lowland gorillas (Gorilla beringei graueri), western lowland gorillas (Gorilla gorilla gorilla), bonobos (Pan paniscus), common chimps (Pan troglodytes), and L'hoest's monkeys (Cercopithecus l'hoesti) from the Democratic Republic of the Congo, Rwanda, and Uganda, for the purpose of scientific research. This notification covers activities to be conducted by the applicant over a 5-year period.

    Trophy Applicants

    The following applicants requests permits to import a sport-hunted trophies of male bontebok (Damaliscus pygargus pygargus) culled from a captive herd maintained under the management program of the Republic of South Africa, for the purpose of enhancing the propagation or survival of the species.

    Applicant: Carolyn Kimbro, Smyrna, GA; Permit No. 77185C

    Applicant: Mark Pirkle, Blanket, TX; Permit No. 76772C

    Applicant: Stewart Schanzenbach, Grand Forks, ND; Permit No. 73080C

    Applicant: Bruce Pultz, Watertown, NY; Permit No. 63052C

    Applicant: Timothy Cerow, Watertown, NY; Permit No. 63051C

    Applicant: Geoffrey Corn, Springfield, CO; Permit No. 70482C

    Applicant: David Sanson, Walnut Creek, CA; Permit No. 73144C

    Applicant: Janelle Manion, Anchorage, AK; Permit No. 74740C

    Applicant: Matthew Severs, Park City, KY; Permit No. 75883C

    Applicant: Stephen Leblanc, Parker, CO; Permit No. 75904C

    Applicant: AnnMarie Meyer, Macomb, IL; Permit No. 75905C

    Applicant: Brian Johnson, Tucson, AZ; Permit No. 69508C

    Applicant: Mark Hettervig, Oregon City, OR; Permit No. 69673C

    Applicant: Ernest Dosio, Lodi, CA; Permit No. 62557C

    Applicant: Christian Rothermel, Mohnton, PA; Permit No. 54295C

    IV. Next Steps

    If we issue permits to any of the applicants listed in this notice, we will publish a notice in the Federal Register. You may locate the notice announcing the permit issuance date by searching http://www.regulations.gov for the permit number listed above in this document (e.g., #####X).

    V. Authority

    We issue this notice under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), and its implementing regulations.

    Brenda Tapia, Program Analyst/Data Administrator, Branch of Permits, Division of Management Authority.
    [FR Doc. 2018-20009 Filed 9-13-18; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service [Docket No. FWS-HQ-IA-2018-0077; FXIA16710900000-178-FF09A30000] Foreign Endangered Species; Receipt of Permit Applications AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Notice of receipt of permit applications.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service, invite the public to comment on applications to conduct certain activities with foreign species that are listed as endangered under the Endangered Species Act (ESA). With some exceptions, the ESA prohibits activities with listed species unless Federal authorization is issued that allows such activities. The ESA also requires that we invite public comment before issuing permits for endangered species.

    DATES:

    We must receive comments by October 15, 2018.

    ADDRESSES:

    Obtaining Documents: The applications, application supporting materials, and any comments and other materials that we receive will be available for public inspection at http://www.regulations.gov in Docket No. FWS-HQ-IA-2018-0077.

    Submitting Comments: When submitting comments, please specify the name of the applicant and the permit number at the beginning of your comment. You may submit comments by one of the following methods:

    Internet: http://www.regulations.gov. Search for and submit comments on Docket No. FWS-HQ-IA-2018-0077.

    U.S. mail or hand-delivery: Public Comments Processing, Attn: Docket No. FWS-HQ-IA-2018-0077; U.S. Fish and Wildlife Service Headquarters, MS: BPHC; 5275 Leesburg Pike; Falls Church, VA 22041-3803.

    For more information, see Public Comment Procedures under SUPPLEMENTARY INFORMATION.

    FOR FURTHER INFORMATION CONTACT:

    Brenda Tapia, by phone at 703-358-2104, via email at [email protected], or via the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    I. Public Comment Procedures A. How do I comment on submitted applications?

    You may submit your comments and materials by one of the methods in ADDRESSES. We will not consider comments sent by email or fax, or to an address not in ADDRESSES. We will not consider or include in our administrative record comments we receive after the close of the comment period (see DATES).

    When submitting comments, please specify the name of the applicant and the permit number at the beginning of your comment. Please make your requests or comments as specific as possible, and explain the basis for your comments. Provide sufficient information to allow us to authenticate any scientific or commercial data you include. The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) those that include citations to, and analyses of, the applicable laws and regulations.

    B. May I review comments submitted by others?

    You may view and comment on others' public comments on http://www.regulations.gov, unless our allowing so would violate the Privacy Act (5 U.S.C. 552a) or Freedom of Information Act (5 U.S.C. 552).

    C. Who will see my comments?

    If you submit a comment at http://www.regulations.gov, your entire comment, including any personal identifying information, will be posted on the website. If you submit a hardcopy comment that includes personal identifying information, such as your address, phone number, or email address, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. Moreover, all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.

    II. Background

    To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.), we invite public comments on permit applications before final action is taken. With some exceptions, the ESA prohibits activities with listed species unless Federal authorization is acquired that allows such activities. Permits issued under section 10 of the ESA allow activities for scientific purposes or to enhance the propagation or survival of the affected species. Regulations regarding permit issuance under the ESA are in title 50 of the Code of Federal Regulations in part 17.

    III. Permit Applications

    We invite comments on the following applications:

    Applicant: Zoological Society of San Diego, San Diego, CA; Permit No. 98983C

    The applicant requests a permit to export one captive-bred male giant panda (Ailuropoda melanoleuca) to China Conservation and Research Center for the Giant Panda, Dujiangyan City, China, for the purpose of enhancing the propagation or survival of the species. This notification is for a single export.

    Applicant: Zoological Society of San Diego, San Diego, CA; Permit No. 98985C

    The applicant requests a permit to re-export one captive-bred female giant panda (Ailuropoda melanoleuca) to China Conservation and Research Center for the Giant Panda, Dujiangyan City, China, for the purpose of enhancing the propagation or survival of the species. This notification is for a single export.

    IV. Next Steps

    If we issue either of the permits listed in this notice, we will publish a notice in the Federal Register. You may locate the notice announcing the permit issuance by searching http://www.regulations.gov for the permit number listed above in this document. For example, to find information about the potential issuance of Permit No. 98983C, you would go to regulations.gov and search for “98983C”.

    V. Authority

    We issue this notice under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), and its implementing regulations.

    Brenda Tapia, Program Analyst/Data Administrator, Branch of Permits, Division of Management Authority.
    [FR Doc. 2018-20008 Filed 9-13-18; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service [Docket No. FWS-HQ-IA-2018-0031; FXIA16710900000-178-FF09A30000] Foreign Endangered Species; Receipt of Permit Applications AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Notice of receipt of permit applications.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service, invite the public to comment on applications to conduct certain activities with foreign species that are listed as endangered under the Endangered Species Act (ESA). With some exceptions, the ESA prohibits activities with listed species unless Federal authorization is acquired that allows such activities. The ESA also requires that we invite public comment before issuing permits for endangered species.

    DATES:

    We must receive comments by October 15, 2018.

    ADDRESSES:

    Obtaining Documents: The applications, application supporting materials, and any comments and other materials that we receive will be available for public inspection at http://www.regulations.gov in Docket No. FWS-HQ-IA-2018-0031.

    Submitting Comments: When submitting comments, please specify the name of the applicant and the permit number at the beginning of your comment. You may submit comments by one of the following methods:

    Internet: http://www.regulations.gov. Search for and submit comments on Docket No. FWS-HQ-IA-2018-0031.

    U.S. mail or hand-delivery: Public Comments Processing, Attn: Docket No. FWS-HQ-IA-2018-0031; U.S. Fish and Wildlife Service Headquarters, MS: BPHC; 5275 Leesburg Pike; Falls Church, VA 22041-3803.

    For more information, see Public Comment Procedures under SUPPLEMENTARY INFORMATION.
    FOR FURTHER INFORMATION CONTACT:

    Brenda Tapia, by phone at 703-358-2104, via email at [email protected], or via the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    I. Public Comment Procedures A. How do I comment on submitted applications?

    You may submit your comments and materials by one of the methods in ADDRESSES. We will not consider comments sent by email or fax, or to an address not in ADDRESSES. We will not consider or include in our administrative record comments we receive after the close of the comment period (see DATES).

    When submitting comments, please specify the name of the applicant and the permit number at the beginning of your comment. Please make your requests or comments as specific as possible, confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Provide sufficient information to allow us to authenticate any scientific or commercial data you include. The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) those that include citations to, and analyses of, the applicable laws and regulations.

    B. May I review comments submitted by others?

    You may view and comment on others' public comments on http://www.regulations.gov, unless our allowing so would violate the Privacy Act (5 U.S.C. 552a) or Freedom of Information Act (5 U.S.C. 552).

    C. Who will see my comments?

    If you submit a comment via http://www.regulations.gov, your entire comment, including any personal identifying information, will be posted on the website. If you submit a hardcopy comment that includes personal identifying information, such as your address, phone number, or email address, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.

    II. Background

    To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.), we invite public comment on permit applications before final action is taken. With some exceptions, the ESA prohibits activities with listed species unless Federal authorization is acquired that allows such activities. Permits issued under section 10 of the ESA allow activities for scientific purposes or to enhance the propagation or survival of the affected species.

    III. Permit Applications

    We invite the public to comment on the following applications.

    Applicants: Erich D. Jarvis and Olivier Fedrigo, Rockefeller University, New York, NY; Permit No. 43635C

    The applicants request a permit to import biological samples of all endangered vertebrate species worldwide for the purposes of scientific research. This notification covers activities to be conducted by the applicant over a 5-year period.

    Applicant: North Carolina State University, Raleigh, NC; Permit No. 53023C

    The applicant requests a permit to import hawksbill sea turtle (Eretmochelys imbricata) biological samples for the purposes of scientific research. This notification covers activities to be conducted by the applicant over a 5-year period.

    Applicant: Robert Temple, East Stroudsburg, PA; Permit No. 66265C

    The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the golden parakeet (Guarouba guarouba) to enhance species propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.

    Applicant: Viktoria Oelze, University of California Santa Cruz, Santa Cruz, CA; Permit No. 70671C

    The applicant requests a permit to import 70 hair samples derived from wild chimpanzees (Pan troglodytes verus) from the Max Planck Institute for Evolutionary Anthropology, Leipzig, Germany, to enhance the propagation or survival of the species through scientific research. This notification is for a single import.

    Applicant: Regents of University of Minnesota, St. Paul, MN; Permit No. 78622C

    The applicant requests a permit to import one non-viable egg from a Galapagos hawk (Buteo galapagoensis) from the Galapagos, Ecuador, for the purpose of scientific research. This notification is for a single import.

    Applicant: Indiana University-Purdue University Fort Wayne, Fort Wayne, IN; Permit No. 59230C

    The applicant requests a permit to import 10 skin biopsy samples derived from wild leatherback sea turtles (Dermochelys coriacea) from the Goldring-Gund Marine Biology Station, Playa Grande, Santa Cruz, Costa Rica, for scientific research. This notification is for a single import.

    Applicant: Noel Garcia, Sterling, VA; Permit No. 60345C

    The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the golden parakeet (Guarouba guarouba) to enhance species propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.

    Applicant: Rancho Santa Ana Botanic Garden, Claremont, CA; Permit No. 15316B

    The applicant requests renewal of a permit to export and reimport nonliving museum/herbarium specimens of endangered and threatened species (excluding animals) previously legally accessioned into the applicant's collection for scientific research. This notification covers activities to be conducted by the applicant over a 5-year period.

    Applicant: Field Museum of Natural History, Chicago, IL; Permit No. 698170

    The applicant requests renewal of a permit to export and reimport nonliving museum specimens of endangered and threatened species previously accessioned into the applicant's collection for scientific research. This notification covers activities to be conducted by the applicant over a 5-year period.

    Multiple Trophy Applicants

    Each of the following applicants requests a permit to import a sport-hunted trophy of a male bontebok (Damaliscus pygargus pygargus) culled from a captive herd maintained under the management program of the Republic of South Africa, for the purpose of enhancing the propagation or survival of the species.

    Applicant: James Wilson, Meridian, ID; Permit No. 79707C Applicant: Louis Wickas, Gallipolis, OH; Permit No. 78075C Applicant: Scott Goeddel, Waterloo, IL; Permit No. 80972C Applicant: Ray Penner, North Newton, KS; Permit No. 80975C IV. Next Steps

    If we issue permits to any of the applicants listed in this notice, we will publish a notice in the Federal Register. You may locate the notice announcing the permit issuance date by searching http://www.regulations.gov for the permit number listed above in this document (e.g., Permit No. 12345A).

    V. Authority

    We issue this notice under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Brenda Tapia, Program Analyst/Data Administrator, Branch of Permits, Division of Management Authority.
    [FR Doc. 2018-20011 Filed 9-13-18; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR Bureau of Land Management [LLNVE02000-L5110.0000-GN.0000-LV.EM.F1503680-15X MO# 4500119719] Notice of Availability of the Draft Environmental Impact Statement for the Rossi Mine Expansion Project, Elko County, Nevada AGENCY:

    Bureau of Land Management, Interior.

    ACTION:

    Notice of availability.

    SUMMARY:

    In accordance with the National Environmental Policy Act of 1969 (NEPA), as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) has prepared a Draft Environmental Impact Statement (EIS) for the Rossi Mine Expansion Project. This notice announces the availability of the Draft EIS and the opening of the comment period.

    DATES:

    To ensure that comments will be considered, the BLM must receive written comments on the Draft EIS for the Rossi Mine Expansion Project within 45 days following the date the Environmental Protection Agency publishes its Notice of Availability in the Federal Register. The BLM will announce future meetings and any other public involvement activities at least 15 days prior to the close of the comment period through public notices, media releases and/or mailings.

    ADDRESSES:

    You may submit comments related to the Rossi Mine Expansion Project by any of the following methods:

    Email: