Federal Register Vol. 83, No.185,

Background

The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 provides for the regulation of certain biological agents that have the potential to pose a severe threat to both human and animal health, to animal health, to plant health, or to animal and plant products. The Animal and Plant Health Inspection Service (APHIS) has the primary responsibility for implementing the provisions of the Act within the U.S. Department of Agriculture. Veterinary Services (VS) select agents and toxins are those that have been determined to have the potential to pose a severe threat to animal health or animal products. Plant Protection and Quarantine (PPQ) select agents and toxins are those that have the potential to pose a severe threat to plant health or plant products. Overlap select agents and toxins are those that have been determined to pose a severe threat to both human and animal health or animal products. Overlap select agents are subject to regulation by both APHIS and the Centers for Disease Control and Prevention, which has the primary responsibility for implementing the provisions of the Act for the Department of Health and Human Services.

On October 5, 2012, we published in the Federal Register (77 FR 61056-61081, Docket No. APHIS-2009-0070) a final rule 1 that amended and republished the list of select agents and toxins that have the potential to pose a severe threat to animal or plant health, or to animal or plant products; and amended the regulations in order to add definitions and clarify language concerning security, training, biosafety, biocontainment, and incident response.

In that rule, we removed bovine spongiform encephalopathy agent from the list of VS select agents and toxins set out in 9 CFR 121.3(b). However, paragraph (f)(3)(i) of that section continues to list bovine spongiform encephalopathy agent among those VS select agents and toxins whose seizure by any Federal law enforcement agency must be reported within 24 hours by telephone, facsimile, or email. We are removing this outdated reference. Additionally, in paragraph (d)(9) of that section we reference pigeon paramyxovirus-1, but the numerical suffix appears as “-12” instead of “-1.” We are correcting that.

The list of PPQ select agents and toxins is set out in 7 CFR 331.3(b) and includes the fungal plant pathogen, Phoma glycinicola (formerly Pyrenochaeta glycines). Recent molecular and phylogenetic studies have resulted in the reclassification of this pathogen as Coniothyrium glycines. 2 We are updating the regulations accordingly.

The regulations in 7 CFR 331.11 and 9 CFR 121.11 require development of a security plan that provides for measures sufficient to safeguard the select agent or toxin against unauthorized access, theft, loss, or release. In paragraph (g) of those sections, we recommend that an individual or entity consider the document entitled, “Security Guidance for Select Agent or Toxin Facilities” when developing the required plan.

We are correcting the name of that document, which has been shortened to “Security Plan Guidance,” in its most recent update.

Accordingly, 7 CFR part 331 and 9 CFR part 121 are amended as follows:

I. Background

The NRC's regulations in part 140 of title 10 of the Code of Federal Regulations (10 CFR), “Financial Protection Requirements and Indemnity Agreements,” implement the financial protection requirements of certain licensees and other persons under section 170 of the AEA, also known as the Price-Anderson Act (Pub. L. 85-256, 71 Stat. 576), as amended and codified at 42 U.S.C. 2210. In 2005, Congress amended section 170 of the AEA (Pub. L. 109-58, 119 Stat. 780) to require the NRC to adjust for inflation the maximum total and annual standard deferred premiums that may be charged to a licensee following a nuclear incident. These adjustments must be performed not less than once during each 5-year period following August 20, 2003, in accordance with the aggregate percentage change in the Consumer Price Index (CPI) (https://www.bls.gov/cpi) for all urban consumers published by the Secretary of Labor. The NRC made the first periodic inflation adjustment required by this section on September 29, 2008 (73 FR 56451). The NRC last adjusted this amount in 2013, establishing the current maximum total deferred premium at $121,255,000, and the maximum annual deferred premium at $18,963,000 (78 FR 41835; July 12, 2013). This final rule makes the third required periodic inflation adjustment and results in a maximum total premium of $131,056,000 and an annual standard deferred premium of $20,496,000.

Section 170(t) of the AEA (42 U.S.C. 2210(t)) requires the NRC to “adjust the amount of the maximum total and annual standard deferred premium not less than once during each 5-year period following August 20, 2003, in accordance with the aggregate percentage change in the Consumer Price Index,” since the previous adjustment. These amounts are codified in § 140.11, “Amounts of financial protection for certain reactors.” Accordingly, the NRC is amending § 140.11(a)(4) to adjust for the increase in inflation, since the last adjustment to these amounts was made in 2013.

The inflation adjustment that the NRC made on July 12, 2013 (78 FR 41835) and which took effect on September 10, 2013, raised the maximum total deferred premium in § 140.11(a)(4) to $121,255,000 and the maximum annual deferred premium to $18,963,000. The CPI figure used in calculating this adjustment was 232.773 (March 2013). The inflation adjustment in this final rule are based on a CPI figure of 251.588 (May 2018). This represents an increase of approximately 8.08 percent. The adjustment methodology used to calculate these values is described on the Bureau of Labor Statistics' website (https://www.bls.gov). When this increase is applied to the maximum total and annual standard deferred premiums and rounded to the nearest thousand, the new maximum total deferred premium is $131,056,000, and the maximum annual deferred premium is $20,496,000. Section 140.11(a)(4) is amended accordingly.

This final rule is being issued without prior public notice or opportunity for public comment. The Administrative Procedure Act (5 U.S.C. 553(b)(B)) does not require an agency to use the public notice and comment process “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” In this instance, the NRC finds, for good cause, that solicitation of public comment on this final rule is unnecessary because the Price-Anderson Act requires these non-discretionary adjustments in the maximum total and annual standard deferred premiums. Requesting public comment on these adjustments, which are made pursuant to a formula required by statute, would not result in a change to the adjusted amount. Consistent with this finding of good cause, and as permitted by 5 U.S.C. 808(2), the NRC has determined that the effective date of this rule will be November 1, 2018.

A regulatory analysis has not been prepared for this final rule. As discussed in this document under Section III, “Rulemaking Procedure,” the Price-Anderson Act requires that the NRC perform this rulemaking according to a formula required by statute. This final rule does not involve an exercise of Commission discretion.

The Regulatory Flexibility Act does not apply to regulations for which a Federal agency is not required by law, including the rulemaking provisions of the Administrative Procedure Act, 5 U.S.C 553(b), to publish a general notice of proposed rulemaking (5 U.S.C. 604). As discussed in this document under Section III, “Rulemaking Procedure,” the NRC is not publishing this final rule for notice and comment. Accordingly, the NRC has determined that the requirements of the Regulatory Flexibility Act do not apply to this final rule.

The NRC has not prepared a backfit analysis for this final rule. This final rule does not involve any provision that would impose a backfit, nor is it inconsistent with any issue finality provision, as those terms are defined in 10 CFR chapter I. These mandatory adjustments are non-discretionary, required by statute, and do not represent any change in position by the NRC with respect to the design, construction, or operation of a licensed facility.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).

The NRC has determined that this final rule is the type of action described in § 51.22(c)(1). Therefore, neither an environmental impact statement nor environmental assessment has been prepared for this final rule.

This final rule does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Existing collections of information were approved by the Office of Management and Budget (OMB), approval number 3150-0039.

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

This final rule is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). The Office of Management and Budget has found it to be a major rule as defined in the Congressional Review Act. As explained in Section III, the NRC has found good cause that solicitation of public comment on this final rule is unnecessary. Therefore, consistent with 5 U.S.C. 808(2), the NRC has determined that the effective date of this rule will be November 1, 2018, in lieu of the customary 60-day delay in effectiveness for “major rules” under the Congressional Review Act.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendment to 10 CFR part 140:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A350-941 airplanes. The NPRM published in the Federal Register on June 11, 2018 (83 FR 26880). The NPRM was prompted by a report of an overheat failure mode of the hydraulic engine-driven pump, which could cause a fast temperature rise of the hydraulic fluid. The NPRM proposed to require modifying the HMCA software. We are issuing this AD to address high hydraulic fluid temperature combined with an inoperative fuel tank inerting system, which could result in uncontrolled overheating of the hydraulic system and consequent ignition sources inside the fuel tank, which, combined with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0200, dated October 10, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A350-941 airplanes. The MCAI states:

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-2018-0505.

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

The Air Line Pilots Association, International (ALPA) expressed support for the NPRM.

Delta Air Lines (Delta) requested that Airbus Service Bulletin A350-29-P012, Revision 01, dated February 1, 2018, be included in paragraph (h) of the proposed AD because the effectivity identified in Airbus Service Bulletin A350-29-P012, dated October 6, 2017, is incomplete. Delta added that Revision 01 of the service information was issued to include all airplanes affected by the HMCA software update that were embodied in production.

We agree with the commenter's request. We have included Airbus Service Bulletin A350-29-P012, Revision 01, dated February 1, 2018, in this AD. We have added paragraph (k) to this AD to provide credit for actions done in accordance with the original issue of the referenced service information. Revision 01 of the service information updates certain manufacturer serial numbers, but specifies that no additional work is necessary.

Delta asked that we revise the definition of Group 2 airplanes in paragraph (g)(2) of the proposed AD, from “post-mod 112090 airplanes on which the HMCA SW S4.2 is installed” to “airplanes on which the HMCA SW S4.2 is installed in production by embodiment of Mod 112090 or as retrofit, per Airbus Service Bulletin A350-29-P012, Revision 01, dated February 1, 2018.” Delta stated that this addition will define the connection between the mod 112090 and Airbus Service Bulletin A350-29-P012, and clarify that the post-mod condition could be driven by production embodiment or retrofit per the referenced service bulletin.

We agree with the commenter's request. We have clarified the definition in paragraph (g)(2) of this AD to include the commenter's suggested language with minor revisions.

Delta asked that we clarify the prohibited parts language specified in paragraph (i) of the proposed AD, from “an HMCA software pre-mod HMCA SW S4.2” to “an HMCA software prior to Standard 4.2.” Delta stated that this change will properly identify the HMCA software nomenclature.

We agree with the commenter's request to clarify the prohibited parts language specified in paragraph (i) of this AD. We have revised paragraph (i) of this AD to refer to “HMCA software prior to HMCA SW S4.2.” While we acknowledge that SW S4.2 constitutes a software standard, we have not included the phrase “Standard 4.2” in this AD because that term is not used in the MCAI.

Delta asked that paragraph (c), “Applicability,” of the proposed AD be changed from “all A350-941 airplanes” to exclude “airplanes on which the Mod 112090 has been accomplished in production or retrofit via Airbus Service Bulletin A350-29-P012, Revision 01, dated February 1, 2018.” Airbus stated that this exclusion will limit the applicability and reduce engineering work-hours required for administrative paperwork for future delivery of new airplanes.

We disagree with the commenter's request to limit the applicability. Although the requirement to install updated software, as specified in paragraph (h) of this AD, is limited to airplanes without that software, the prohibition against installing earlier software, as specified in paragraph (i) of this AD, applies to all Model A350-941 airplanes. Without that restriction on all airplanes, installation of earlier software would be allowed on airplanes delivered in the future. Therefore, we have not changed this AD in this regard.

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

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

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

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

Airbus SAS has issued Service Bulletin A350-29-P012, Revision 01, dated February 1, 2018. This service information describes procedures for modifying HMCA software by installing HMCA software S4.2 upgrades. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 7 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A300 series airplanes. The NPRM published in the Federal Register on May 25, 2018 (83 FR 24240). The NPRM was prompted by a revision of a certain ALI document, which specifies new or more restrictive instructions and airworthiness limitations. The NPRM proposed to require revising the maintenance or inspection program, as applicable, to incorporate new or revised structural inspection requirements.

We are issuing this AD to address fatigue cracking, damage, and corrosion in principal structural elements; such fatigue cracking, damage, and corrosion could result in reduced structural integrity of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0207, dated October 12, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A300 series airplanes. The MCAI states:

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-2018-0414.

We gave the public the opportunity to participate in developing this final rule. We have considered the comment received. Laney Azevedo stated that he supports the NPRM.

We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. We have determined that these minor changes:

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

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

Airbus SAS has issued Airbus A300 Airworthiness Limitations Section (ALS), Part 2—Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 03, dated August 28, 2017. This service information describes airworthiness limitations applicable to the DT-ALI. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 6 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We have determined that revising the maintenance or inspection program 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(s), 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 × $85 per work-hour).

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

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

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

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

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

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

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

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

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

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

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C.) authorizes agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking. The FAA finds good cause to issue this final rule without seeking prior comment for the reasons explained below.

FAA regulations limit the number of commercial air tours certain operators may conduct over the Grand Canyon. Existing regulations at 14 CFR 93.323 require certain operators to file visual flight rule (VFR) flight plans with the FAA prior to each commercial Special Flight Rules Area operation (commercial SFRA operation) 1 in the Grand Canyon National Park Special Flight Rules Area (GCNP SFRA), ostensibly so that the FAA can verify the number of commercial tours the operator conducts. The FAA has found VFR flight plans to be an unreliable method for verifying compliance, however, and no longer uses them for this purpose. Instead, the FAA relies on documents required by other FAA regulations to provide an accurate count of the number of commercial air tour flights these operators conduct. Continuing to require these flight plans constitutes an unjustified burden on GCNP SFRA commercial tour operators because the FAA does not use them for any other purpose.

Accordingly, the FAA has determined that good cause exists to forego notice and comment under Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.) because it is unnecessary and contrary to the public interest. Seeking prior comment is unnecessary because, irrespective of the public response, the VFR flight plans would remain redundant and obsolete. In addition, it would be contrary to the public interest to expend resources seeking comment under these circumstances. Considering that there is no way for FAA to use the required filings for the purpose intended, it would not be a prudent use of resources to ask for comment on whether the requirement should remain in place. Finally, it is unnecessary to seek public comment on the remaining technical amendments in this rule because they merely update references to appropriate FAA offices.

The FAA's authority to issue rules on aviation safety is found in title 49 of the United States Code (U.S.C.). Subtitle I, sections 106(f) and (g), describe the authority of the FAA Administrator. Subtitle VII of title 49, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the general authority described in 49 U.S.C. 106(f) and 44701 and the specific authority found in Section 3 of Public Law 100-91 (August 18, 1987).

Section 3 directed the Department of the Interior (DOI) to submit recommendations, and the FAA to implement those recommendations, regarding actions necessary for the protection of resources in the Grand Canyon from adverse impacts associated with aircraft overflights. Congress directed that the recommendations provide for substantial restoration of the natural quiet and experience of the park and protection of public health and safety from adverse effects associated with aircraft overflight. Subsequently, in a 1996 Memorandum for the Heads of Executive Departments and Agencies to address the impact of transportation in national parks, the President directed the Secretary of Transportation to issue regulations for the GCNP that would place appropriate limits on sightseeing aircraft to reduce noise immediately, and to make further substantial progress towards restoration of natural quiet, as defined by the DOI, while maintaining aviation safety in accordance with Public Law 100-91.2

This regulation is within the scope of the FAA's authority under the statutes cited previously, because it removes an unnecessary paperwork burden on affected certificate holders that is not necessary to promote the safety of flight of civil aircraft in air commerce or to further efforts to restore the natural quiet of the park environment, as described in this final rule.

On April 4, 2000, the FAA published the Commercial Air Tour Limitation in the Grand Canyon National Park Special Flight Rules Area final rule (65 FR 17708). That rule limited the number of commercial air tours that may be conducted in the GCNP SFRA and revised the reporting requirements for commercial air tours in that area. It was one part of a collaborative effort by the FAA and the NPS to control aircraft noise in the park environment and to assist the NPS in achieving the statutory mandate imposed by Public Law 100-91 to provide substantial restoration of the natural quiet and experience of the park.

As part of the 2000 final rule, § 93.325 requires certificate holders to report to the FAA the total number of commercial SFRA operations conducted in the GCNP SFRA each quarter and to specify the types of commercial SFRA operations conducted. Section 93.323 prescribes that each certificate holder conducting commercial SFRA operations in the GCNP SFRA must file a VFR flight plan prior to each flight, except for those operations conducted under IFR in accordance with § 93.309(g). The 2000 final rule stated, “The information obtained from the flight plan will be used to ensure compliance with the commercial air tours operation limitation” (65 FR 17708, 17722).

Following the 2000 final rule, the FAA began using a different method of evaluating compliance with commercial tour allocations because VFR flight plans do not necessarily correlate to actual flights conducted and reported on quarterly reports. When it is necessary to evaluate a certificate holder's compliance, the FAA reviews documents required by other FAA regulations, such as aircraft operational and maintenance logs as well as customer receipts. Receipts and logs provide an accurate count of the number of commercial air tour flights operated by a given certificate holder in the GCNP SFRA, which can then be compared with the number of commercial air tour flights that the certificate holder reported in the quarterly reports required under § 93.325. In conducting oversight of the operations, the FAA typically performs such evaluations only when a concern arises about a certificate holder's compliance with its number of commercial air tour allocations.

The FAA has granted several exemptions from § 93.323 to allow certificate holders relief from the requirement to file a VFR flight plan. In its grant of exemption to Sundance Helicopters,3 the FAA noted that the VFR flight plan requirement in § 93.323 was written into FAA regulations in 2000 to help the agency evaluate the accuracy of Grand Canyon flight allocation data reporting. However, the FAA subsequently developed better methods of evaluating certificate holders' compliance with their number of commercial air tour allocations for the GCNP SFRA. The FAA noted that, with other methods used to evaluate the accuracy of quarterly data reporting, granting an exemption from the requirements of § 93.323 would not undermine the FAA's data evaluation capabilities. The FAA acknowledged that the filing of VFR flight plans by the petitioner for each of its commercial air tour flight operations over the Grand Canyon resulted in an unnecessary paperwork burden for both the petitioner and the FSS.

In this final rule, the FAA removes § 93.323, in its entirety, from part 93. The FAA has determined that flight plans filed in accordance with the requirements of § 93.323 are an unreliable source of information for evaluating certificate holders' compliance with their number of commercial air tour allocations. The number of VFR flight plans filed under § 93.323 is not necessarily an accurate reflection of the number of commercial SFRA operations actually conducted. For example, if a § 93.323 flight plan was filed without the flight actually being operated, the number of § 93.323 flight plans filed would be greater than the number of commercial SFRA operations actually conducted. Consequently, comparing the number of § 93.323 plans filed for commercial SFRA operations in the GCNP SFRA with the quarterly reports that certificate holders must file under 14 CFR 93.325 may yield incorrect results in terms of actual commercial air tour allocation compliance. The FAA has no other use for the VFR flight plans, rendering this requirement unnecessary.

As previously described, when necessary to evaluate a concern about compliance with a certificate holder's number of commercial air tour allocations, the FAA reviews documents required by other FAA regulations rather than VFR flight plans. Eliminating the requirement to file VFR flight plans under § 93.323 removes an unnecessary paperwork burden that currently affects some small businesses without providing any safety benefit or advancing efforts to restore the natural quiet of the park environment.

This final rule does not affect the number of commercial air tour allocations that certificate holders receive for the GCNP SFRA, the frequency of flight operations in the GCNP SFRA, the location of those flights, or other requirements that commercial air tour operators must meet to operate in the GCNP SFRA. The FAA also clarifies that this rulemaking does not affect the current quarterly reporting requirements of § 93.325, which remain in place.

This final rule also makes several technical amendments including striking references to the “Flight Standards District Office” and replacing them with references to “the relevant Flight Standards Office” in subpart U, Special Flight Rules in the Vicinity of Grand Canyon National Park, AZ, of part 93 of title 14 CFR, to reflect current agency practice.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Agreements Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

In conducting these analyses, FAA has determined that this final rule: (1) Has benefits that justify its costs, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is not “significant” as defined in DOT's Regulatory Policies and Procedures; (4) will not create unnecessary obstacles to the foreign commerce of the United States; and (5) will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector by exceeding the threshold identified previously. These analyses are summarized below. As notice and comment under 5 U.S.C. 553 are not required for this final rule, the regulatory flexibility analyses described in 5 U.S.C. 603 and 604 regarding impacts on small entities are not required.

This final rule removes the requirement for certain certificate holders conducting commercial SFRA operations within the GCNP SFRA to file a visual flight rules flight plan under § 93.323. The FAA has determined that these flight plans are an unnecessary and unreliable source of information for evaluating certificate holders' compliance with their number of commercial air tour allocations. This final rule removes, without affecting safety or efforts to restore the natural quiet of the park environment, this paperwork burden from affected certificate holders. Therefore, the final rule has no additional costs, and has minimal cost savings by removing an unnecessary paperwork burden.

The FAA has therefore, determined that this final rule is not a “significant regulatory action,” as defined in section 3(f) of Executive Order 12866.

The Regulatory Flexibility Act (RFA), in 5 U.S.C. 603, requires an agency to prepare an initial regulatory flexibility analysis describing impacts on small entities whenever an agency is required by 5 U.S.C. 553, or any other law, to publish a general notice of proposed rulemaking for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to prepare a final regulatory flexibility analysis when an agency issues a final rule under 5 U.S.C. 553, after being required by that section or any other law to publish a general notice of proposed rulemaking. The FAA found good cause to forgo notice and comment for this rule. As notice and comment under 5 U.S.C. 553 are not required in this situation, the regulatory flexibility analyses described in 5 U.S.C. 603 and 604 are not required.

The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to this Act, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the potential effect of this final rule and has determined that it has a legitimate domestic objective, in that it removes an unnecessary paperwork burden on certain certificate holders that conduct commercial SFRA operations in the GCNP SFRA. The removal of this requirement does not operate in a manner that excludes imports. The final rule therefore has no effect on international trade.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155.0 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule, as the rule modifies an existing information collection by removing an unnecessary paperwork requirement.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined this rulemaking is consistent with ICAO Standards.

FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances.

This final rule removes an unnecessary paperwork burden from affected certificate holders. This action does not affect the frequency or location of commercial air tours in the GCNP SFRA and does not negatively affect efforts to restore the natural quiet of the park environment. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6f and involves no extraordinary circumstances.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, will not have Federalism implications.

The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 13609, Promoting International Regulatory Cooperation, (77 FR 26413, May 4, 2012) promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action will not have an effect on international regulatory cooperation.

This final rule is considered an E.O. 13771 deregulatory action. Details on the estimated cost savings can be found in the rule's economic analysis.

An electronic copy of rulemaking documents may be obtained from the internet by—

• Searching the Federal eRulemaking Portal (http://www.regulations.gov);

• Visiting the FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies; or

• Accessing the Government Publishing Office's web page at http://www.fdsys.gov.

Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. Requestors must identify the docket or amendment number of this rulemaking.

All documents the FAA considered in developing this final rule, including economic analyses and technical reports, may be accessed from the internet through the Federal eRulemaking Portal previously referenced.

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

In consideration of the foregoing, the Federal Aviation Administration amends part 93, in chapter I of title 14, Code of Federal Regulations as follows:

I. Background

The Recycled Oil Rule, mandated by the Energy Policy and Conservation Act (“EPCA”) (42 U.S.C. 6363), contains testing and labeling requirements for recycled engine oil. As indicated in the statute, the Rule's purpose is to encourage oil recycling, promote recycled oil use, reduce new oil consumption, and reduce environmental hazards and wasteful practices associated with used oil disposal.1 Initially promulgated in 1995 (60 FR 55414 (Oct. 31, 1995)), the Rule allows manufacturers to represent that processed used engine oil is substantially equivalent to new oil as long as they substantiate such claims using American Petroleum Institute (API) Publication 1509 (“Engine Oil Licensing and Certification System”).2 The Rule does not require manufacturers to explicitly state their engine oil is substantially equivalent to new oil, nor does it mandate other specific qualifiers or disclosures.3

The Commission reviews its rules and guides periodically to seek information about their costs and benefits, regulatory and economic impact, and general effectiveness in protecting consumers and helping industry avoid deceptive claims. These reviews assist the Commission in identifying rules and guides warranting modification or rescission. When it last reviewed the Rule in 2007, the Commission updated the reference to API Publication 1509, Fifteenth Edition, and added an explanation of incorporation by reference in Section 311.4.4

In a December 20, 2017 proposed rule (82 FR 60334), the Commission initiated a new review and sought comments on, among other things, the need for the Rule, its economic impact, its benefits to consumers, and its burdens on industry members, including small businesses. The Commission also specifically asked whether it should update the Rule's reference to API Publication 1509 to reflect the most recent version. In response to the proposed rule, the Commission received seven comments.5

After reviewing the comments, the Commission updates the Rule's reference to API Publication 1509 and the Rule's incorporation by reference language. Otherwise the Commission retains the Rule in its current form. A discussion of the comments and the amendments follow.6

As discussed below, commenters indicated the Commission should retain the Rule because it continues to serve its purpose, benefits both consumers and industry, imposes no unwarranted costs, and has high compliance rates.7

Several commenters indicated the Rule continues to serve EPCA's purposes. For example, NORA explained that the Rule encourages used oil recycling, promotes recycled oil use, reduces consumption of new oil, and reduces hazards and waste associated with used oil disposal. In addition, in NORA's view, the Rule's substantiation requirements for recycled oil have helped remedy a general perception that recycled oil is inferior to new oil. NORA also indicated that the Rule's provisions help encourage consumer demand for recycled oil, which creates environmental benefits through oil collection and reuse in place of costly disposal.8 ILMA added that, without the Rule, some states may impose their own labeling requirements, potentially creating inconsistencies, which could confuse consumers nationwide. It further explained that the Rule furnishes “an effective regulatory tool” to prevent the marketing of “junk” oil.9 Safety-Kleen concluded the Rule has “helped to increase acceptance of re-refined oil by creating an objective benchmark by which all oil can be measured.”

In addition to serving the enumerated purposes of the statute, commenters indicated the Rule provides significant benefits to consumers and industry members. ILMA and API stated it helps consumers by providing an additional marketplace choice, backed by the API performance standards. NORA asserted that competition encouraged by the Rule keeps prices low. It also noted the Rule helps assure consumers that “substantially similar” claims for re-refined lubricants are accurate and supported by test data. Regarding industry benefits, API commented the Rule aids companies by allowing sellers to market re-refined base stocks without concern that consumers will view recycled oil as a lower quality product. Similarly, NADA contended the Rule aids sellers by encouraging growing market acceptance of recycled oil while affording processors marketing flexibility. According to Avista, the Rule has “incentivized domestic re-refiners to pioneer new technology.” NORA also indicated that recycled oil has a “reduced carbon dioxide footprint.” Finally, Safety-Kleen stated that a standardized testing and certification process decreases industry costs. No commenter identified any unwarranted costs associated with the Rule.10

No commenters identified significant compliance issues with the Rule. Safety Kleen explained that the Rule provides a standardized, objectively verifiable test that can be used to refute false claims. In addition, NORA and ILMA asserted that companies have little incentive to engage in deceptive conduct given the potential penalties involved. Furthermore, several commenters described ongoing industry efforts to monitor engine oil quality. For example, ILMA explained that it runs a program to randomly test engine oil marketed by its members and has found high compliance rates. Similarly, Safety-Kleen noted that API conducts an After Market Audit Program that tests products “for compliance against the original fluid certification testing,” and API did not identify any significant compliance problems.11

Comments: Commenters recommended several Rule amendments, including updating the reference to API Publication 1509, permitting automatic updates to the API publication, expanding the claims covered by the Rule, and changing several definitions.

Commenters agreed the Commission should update the Rule's reference to API Publication 1509 to reflect the seventeenth edition, as the Commission proposed in its December 2017 proposed rule.12 For instance, Safety-Kleen explained that this update will “ensure both virgin and re-refined quality levels meet the most current standard.” ILMA identified no significant costs to industry for this updated reference. No commenters opposed the conforming change.

In addition, three commenters (API, NORA, and ILMA) recommended amending the Rule to allow for automatic updates to the “most recent version” of the API publication. In the commenters' view, such a change would preclude the need for the Commission to publish future Rule updates. Similarly, API supported automatic Rule updates, noting Publication 1509 is generally updated every three to five years.

Aside from updating the API Publication, several commenters urged the Commission to refrain from making any other changes.13 For instance, Safety Kleen stated that all the current provisions are “necessary and appropriate.” Similarly, no commenters identified technological changes that necessitate Rule amendments; nor did they note any conflicts between the Rule and other requirements. NADA advised that any proposed Rule changes should comport with the statute's goals.

Other commenters, however, recommended additional revisions. First, Avista suggested the Rule allow recycled oil marketers to label their products as “equal in quality” to new oil (i.e., oil manufactured from crude oil). In its view, technological improvements in the industry during the last decade have rendered recycled oil of equal or better quality than refined oil, and this fact “must be reflected in the new Rule.”

Some commenters also recommended changing the Rule's definitions to make them more consistent with existing industry usage and practice. NORA explained that, in the oil recycling industry, the term “recycled oil” generally refers not only to oil processed for use as an engine oil (i.e., lubricant) but also to used oil processed for fuel.14 However, in the Rule, “recycled oil” only means re-refined oil successfully tested pursuant to the API publication (which addresses engine oil, not fuel). NORA also noted overlap in the Rule's definitions of “processed used oil,” “recycled oil,” and “re-refined oil.” Although NORA did not provide specific suggestions, its comments implied that the Commission should harmonize the Rule's terms with common industry understanding and otherwise define the terms more precisely to avoid confusion.

Similarly, API recommended amending the Rule to clearly distinguish base stock “manufacturers” from “oil marketers” (i.e., organizations “responsible for identifying the standard met by an engine oil”).” 15 Specifically, it urged the Commission to use the term “oil marketer” in lieu of “manufacturer” wherever the Rule addresses entities responsible for oil branding. API also suggested the Commission amend the definition of “manufacturer” to exclude entities that blend processed used oil with new oil or additives by limiting the definition to entities that re-refine or otherwise process “used oil to remove physical or chemical impurities acquired through use.”

API also urged the Commission to change the definition for “recycled oil” so that it refers to oil “deposited, collected, and managed in accordance with” EPA's used oil management standards (40 CFR part 279), instead of oil determined to be “substantially equivalent to new oil for use as engine oil” under Publication 1509, as currently required by the Rule. API explained that this change would “clarify oil disposition once it has been introduced” into a vehicle engine. In clarifying the common industry understanding of various terms, API noted that the term “used oil” identifies the oil drained from a crankcase; “recycled oil” refers to the used oil once it has entered the used oil management stream; “re-refined oil” is one method used to repurpose used oil; and “processed used oil” is a broad term that covers all potential methods used to repurpose used oil.

Discussion: The Commission amends the Rule to update the reference to API Publication 1509, including the regulatory language for incorporation by reference. With the exception of this minor update, the Commission retains the Rule in its current form. As discussed below, the Commission does not propose making other changes suggested by commenters, including providing for automatic updates to the test procedures incorporated by reference, addressing “equal in quality” claims for recycled oil in the Rule, or changing the Rule's definitions.

The Commission does not amend the Rule to include automatic updates because such an approach is inconsistent with Office of Federal Register (OFR) requirements. Under OFR rules, incorporation by reference is “limited to the edition of the publication that is approved” and cannot include future amendments or revisions.16 While the Commission cannot include such a perpetual update mechanism, it will consider future updates to the test procedures in the Rule as part of its periodic reviews. In the interim, stakeholders may petition the Commission if there is a pressing need for a particular update.

Likewise, the Commission declines to amend the Rule to address whether recycled oil marketers can label their products as “equal in quality” to new oil. The record does not clearly establish the basis and need for additional affirmative labeling provisions beyond the statutory requirement that representations of substantial equivalency be based on the NIST standards.17 Furthermore, the FTC Act (15 U.S.C. 45(a)) does not restrict the scope of truthful advertising claims sellers may make for recycled oil. Indeed, marketers may make recycled oil claims beyond those covered by the Rule, as long as such representations are supported by competent and reliable evidence and do not otherwise violate the FTC Act.18

Further, the Commission declines to amend the Rule's definitions. Specifically, the proposed clarification to the definition of “processed used oil” does not appear necessary. Although industry members may understand the term as applying to oil processed for engine lubrication and fuel, the Rule's principal provisions clearly involve oil recycled “for use as engine oil.” 19 Moreover, the record provides little evidence that the narrow application of this term in the Rule has caused significant problems in the regulated community or for consumers.

Additionally, the Commission declines to alter the term “manufacturer” or add the term “oil marketer” as API recommended. The Rule's definition for “manufacturer” is consistent with the statutory language for that term, which encompasses not only entities that process used oil to remove impurities, but also entities that blend processed used oil with new oil. Although the statute's definition may stretch beyond industry's conventional use of the term, API did not detail any problems, for consumers or industry members, caused by the current language, nor did it delineate its proposal's benefits. Likewise, there appears to be no need to add a definition of “oil marketer” or to change the scope of “manufacturer.” The Rule's core provisions already apply broadly to “any manufacturer or other seller,” thus negating the need to expand the Rule's existing terms.20

Finally, the Commission does not change the definition of “recycled oil” to tie the term to EPA's used oil management regulations (instead of the substantial equivalency determination) as suggested by API. This change would be inconsistent with the statute, which specifically defines the term “recycled oil” as used oil the manufacturer has determined to be substantially equivalent to new oil under the procedures set out in the Rule.

The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601-612, requires an agency to provide a Final Regulatory Flexibility Analysis with the final rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 603-605. The amendment, which merely updates the Rule's reference to the API publication, does not increase the Rule's burdens.21 Accordingly, the Commission certifies that the amendment will not have a significant economic impact on a substantial number of small entities. This document serves as notice of that determination to the Small Business Administration.

Under the Paperwork Reduction Act (“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” means agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. 44 U.S.C. 3502(3); 5 CFR 1320.3(c). The amended Rule does not involve the “collection of information” under the PRA and, therefore, OMB approval is not required.

Consistent with 5 U.S.C. 552(a) and 1 CFR part 51, the Commission incorporates the specifications of the following document published by the American Petroleum Institute: API 1509, “Engine Oil Licensing and Certification System,” Seventeenth Edition, September 2012 (Addendum 1, October 2014, Errata, March 2015). According to API, this publication “describes the API Engine Oil Licensing and Certification System (EOLCS), a voluntary licensing and certification program designed to define, certify, and monitor engine oil performance deemed necessary for satisfactory equipment life and performance by vehicle and engine manufacturers.” API 1509 is reasonably available to interested parties. Members of the public can obtain copies of API Publication 1509 from API, 1220 L Street NW, Washington, DC 20005; telephone: (202) 682-8000; internet address: https://www.api.org.

These standards are also available for inspection at the FTC Library, (202) 326-2395, Federal Trade Commission, Room H-630, 600 Pennsylvania Avenue NW, Washington, DC 20580.

For the reason set forth in the preamble, 16 CFR part 311 is amended as follows:

A. Background 1. The Danny Keysar Child Product Safety Notification Act

Section 104(b)(1)(B) of the CPSIA, also known as the Danny Keysar Child Product Safety Notification Act, requires the Commission to promulgate consumer product safety standards for durable infant or toddler products. The law requires that these standards are to be “substantially the same as” applicable voluntary standards or more stringent than the voluntary standards if the Commission concludes that more stringent requirements would further reduce the risk of injury associated with the product.

The CPSIA also sets forth a process for updating CPSC's durable infant or toddler standards when the voluntary standard upon which the CPSC standard was based is changed. Section 104(b)(4)(B) of the CPSIA provides that if an organization revises a standard that has been adopted, in whole or in part, as a consumer product safety standard under this subsection, it shall notify the Commission. In addition, the revised voluntary standard shall be considered to be a consumer product safety standard issued by the Commission under section 9 of the Consumer Product Safety Act (15 U.S.C. 2058), effective 180 days after the date on which the organization notifies the Commission (or such later date specified by the Commission in the Federal Register) unless, within 90 days after receiving that notice, the Commission notifies the organization that it has determined that the proposed revision does not improve the safety of the consumer product covered by the standard and that the Commission is retaining the existing consumer product safety standard.

Pursuant to section 104(b)(1) and section 104(c) of the CPSIA, on March 28, 2016, the Commission published a mandatory consumer product safety standard that incorporated by reference ASTM F1235-15, Standard Consumer Safety Specification for Portable Hook-On Chairs. (81 FR 17062, Mar. 28, 2016).

On July 19, 2018, ASTM officially notified the CPSC that it has published ASTM F1235-18, Standard Consumer Safety Performance Specification for Hook-On Chairs, a revised 2018 version approved on May 1, 2018. ASTM F1235-18 is the first revision to ASTM F1235 since publication of ASTM F1235-15. The ASTM F1235-18 standard contains performance requirements as described below:

• Requirements for wood parts;

• Requirements for latching and locking mechanisms;

• Requirements to prevent scissoring, shearing, and pinching (including during detachment from table support surface);

• Requirements for covering exposed coil springs;

• Size requirements for openings;

• Warning labeling requirements;

• Requirements for protective components; and

• Marking, labeling, and instructional literature requirements.

As discussed below, the Commission has reviewed the differences between the CPSC standard, 16 CFR part 1233, and ASTM F1235-18.

ASTM F1235-18 contains one safety-related revision underlined below:

6.7.1.1 The passive crotch restraint shall be installed on the product at the time of shipment in a manner such that it cannot be removed without the use of a tool.

The ASTM subcommittee made this change to address products with fabric passive crotch restraints that are not permanently attached. The ASTM standard defines a “passive crotch restraint” as a “component that separates the openings for the legs of the occupant into two separate bounded openings and requires no action on the part of the caregiver to use.” The ASTM subcommittee was concerned that a passive crotch restraint that could be removed without tools could easily disengage. Therefore, the subcommittee considered the use of a tool in order to remove a passive crotch restraint to be an appropriate requirement for such a restraint in order to prevent accidental disengagement. We conclude that this change reduces the likelihood that the passive crotch restraint will be removed, thereby improving the safety of portable hook-on chairs.

ASTM also added language, which it intends to add to all of its voluntary standards, stating that ASTM developed the standard in accordance with principles recognized by the World Trade Organization. Adding this text does not affect the safety of portable hook-on chairs. ASTM F1235-18 also includes several non-substantive changes that do not affect safety, such as grammatical changes, 1 spacing, and formatting. We determined that each change made in ASTM F1235-18 is either neutral or will improve the safety of the product, and collectively, these changes improve safety.

The Office of the Federal Register (OFR) has regulations concerning incorporation by reference. 1 CFR part 51. Under these regulations, agencies must discuss, in the preamble to the final rule, ways that the materials the agency incorporates by reference are reasonably available to interested persons and how interested parties can obtain the materials. In addition, the preamble to the final rule must summarize the material. 1 CFR 51.5(b).

In accordance with the OFR's requirements, section A3 of this preamble summarizes the major provisions of the ASTM F1235-18 standard that the Commission incorporates by reference into 16 CFR part 1233. The standard is reasonably available to interested parties, and interested parties may purchase a copy of the standard from ASTM International, 100 Barr Harbor Drive, PO Box C700, West Conshohocken, PA 19428-2959 USA; phone: 610-832-9585; http://www.astm.org/. A copy of the standard can also be inspected at CPSC's Division of the Secretariat, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814, telephone 301-504-7923.

Section 14(a) of the CPSA requires that products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard, or regulation under any other act enforced by the Commission, be certified as complying with all applicable CPSC requirements. 15 U.S.C. 2063(a). Such certification must be based on a test of each product, or on a reasonable testing program, or, for children's products, on tests on a sufficient number of samples by a third party conformity assessment body accepted by the Commission to test according to the applicable requirements. As noted in the preceding discussion, standards issued under section 104(b)(1)(B) of the CPSIA are “consumer product safety standards.” Thus, they are subject to the testing and certification requirements of section 14 of the CPSA.

Because portable hook-on chairs are children's products, samples of these products must be tested by a third party conformity assessment body whose accreditation has been accepted by the Commission. These products also must comply with all other applicable CPSC requirements, such as the lead content requirements in section 101 of the CPSIA, the phthalates prohibitions in section 108 of the CPSIA and 16 CFR part 1307, the tracking label requirement in section 14(a)(5) of the CPSA, and the consumer registration form requirements in the Danny Keysar Child Product Safety Notification Act.

In accordance with section 14(a)(3)(B)(iv) of the CPSA, the Commission has previously published a notice of requirements (NOR) for accreditation of third party conformity assessment bodies for portable hook-on chairs (81 FR 17062 (Mar. 28, 2016)). The NOR provided the criteria and process for our acceptance of accreditation of third party conformity assessment bodies for testing portable hook-on chairs to 16 CFR part 1233 (which incorporated ASTM F1235-15). The NOR is listed in the Commission's rule, “Requirements Pertaining to Third Party Conformity Assessment Bodies.” 16 CFR part 1112.

As discussed in section B of this document, the revision to 6.7.1.1, concerning the passive crotch restraint, clarifies the existing standard and does not require a new test. The requirement that the passive crotch restraint be attached in a manner requiring tools to remove it can be assessed by visual inspection. Accordingly, there is no change in the way that third party conformity assessment bodies test these products for compliance with the portable hook-on chairs standard. Laboratories would begin testing to the new standard when ASTM F1235-18 goes into effect, and the existing accreditations that the Commission has accepted for testing to this standard previously would also cover testing to the revised standard. Therefore, the existing NOR for this standard will remain in place, and CPSC-accepted third party conformity assessment bodies are expected to update the scope of the testing laboratories' accreditation to reflect the revised standard in the normal course of renewing their accreditation.

The Commission is issuing this rule as a direct final rule. Although the Administrative Procedure Act (APA) generally requires notice and comment rulemaking, section 553 of the APA provides an exception when the agency, for good cause, finds that notice and public procedure are “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). The Commission concludes that when the Commission updates a reference to an ASTM standard that the Commission has incorporated by reference under section 104(b) of the CPSIA, notice and comment is not necessary.

Under the process set out in section 104(b)(4)(B) of the CPSIA, when ASTM revises a standard that the Commission has previously incorporated by reference as a Commission standard for a durable infant or toddler product under section 104(b)(1)(b) of the CPSIA, that revision will become the new CPSC standard, unless the Commission determines that ASTM's revision does not improve the safety of the product. Thus, unless the Commission makes such a determination, the ASTM revision becomes CPSC's standard by operation of law. The Commission is allowing ASTM F1235-18 to become CPSC's new standard. The purpose of this direct final rule is merely to update the reference in the Code of Federal Regulations so that it accurately reflects the version of the standard that takes effect by statute. Public comment will not impact the substantive changes to the standard or the effect of the revised standard as a consumer product safety standard under section 104(b) of the CPSIA. Under these circumstances, notice and comment is not necessary. In Recommendation 95-4, the Administrative Conference of the United States (ACUS) endorsed direct final rulemaking as an appropriate procedure to expedite promulgation of rules that are noncontroversial and that are not expected to generate significant adverse comment. See 60 FR 43108 (August 18, 1995). ACUS recommended that agencies use the direct final rule process when they act under the “unnecessary” prong of the good cause exemption in 5 U.S.C. 553(b)(B). Consistent with the ACUS recommendation, the Commission is publishing this rule as a direct final rule because we do not expect any significant adverse comments.

Unless we receive a significant adverse comment within 30 days, the rule will become effective on January 15, 2019. In accordance with ACUS's recommendation, the Commission considers a significant adverse comment to be one where the commenter explains why the rule would be inappropriate, including an assertion challenging the rule's underlying premise or approach, or a claim that the rule would be ineffective or unacceptable without change.

Should the Commission receive a significant adverse comment, the Commission would withdraw this direct final rule. Depending on the comments and other circumstances, the Commission may then incorporate the adverse comment into a subsequent direct final rule or publish a notice of proposed rulemaking, providing an opportunity for public comment.

Under the procedure set forth in section 104(b)(4)(B) of the CPSIA, when a voluntary standard organization revises a standard upon which a consumer product safety standard issued under the Danny Keysar Child Product Safety Notification Act was based, the revision becomes the CPSC standard within 180 days of notification to the Commission, unless the Commission determines that the revision does not improve the safety of the product, or the Commission sets a later date in the Federal Register. For the reasons explained below, the Commission is not setting a different effective date.

The Juvenile Products Manufacturers Association (JPMA) typically allows 6 months for products in their certification program to shift to a new voluntary standard once that new voluntary standard is published. Therefore, juvenile product manufacturers are accustomed to adjusting to new voluntary standards within this time frame. ASTM F1235-18 has been approved since May 1, 2018, so by January 15, 2019, manufacturers should already be producing products that meet this standard. Finally, there is only one significant change to the voluntary standard, which the ASTM subcommittee considers a clarification, as further support that manufacturers should already be producing products that meet this standard. Thus, in accordance with this provision, this rule takes effect 180 days after we received notification from ASTM of revisions to these standards. As discussed in the preceding section, this is a direct final rule. Unless we receive a significant adverse comment within 30 days, the rule will become effective on January 15, 2019.

The Regulatory Flexibility Act (RFA) generally requires that agencies review proposed and final rules for their potential economic impact on small entities, including small businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603 and 604. The RFA applies to any rule that is subject to notice and comment procedures under section 553 of the APA. Id. As explained above, the Commission has determined that notice and comment is not necessary for this direct final rule. Thus, the RFA does not apply. We also note the limited nature of this document, which updates the incorporation by reference to reflect the mandatory CPSC standard that takes effect under section 104 of the CPSIA.

The portable hook-on chairs standard contains information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The revision made no changes to that section of the standard. Thus, the revision will not have any effect on the information collection requirements related to the standard.

Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that where a “consumer product safety standard under [the Consumer Product Safety Act (CPSA)]” is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a requirement dealing with the same risk of injury, unless the state requirement is identical to the federal standard. Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to the Commission for an exemption from this preemption under certain circumstances.

The Danny Keysar Child Product Safety Notification Act (at section 104(b)(1)(B) of the CPSIA) refers to the rules to be issued under that section as “consumer product safety standards,” thus, implying that the preemptive effect of section 26(a) of the CPSA would apply. Therefore, a rule issued under section 104 of the CPSIA will invoke the preemptive effect of section 26(a) of the CPSA when it becomes effective.

The Commission's regulations provide a categorical exclusion for the Commission's rules from any requirement to prepare an environmental assessment or an environmental impact statement because they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(2). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required.

For the reasons stated above, the Commission amends title 16 CFR chapter II as follows:

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The Coast Guard received information regarding the size and location of the safety zone with insufficient time to publish an NPRM and receive public comments. Because of the potential hazards associated with the aerobatic demonstrations, the safety zone is necessary to provide for the safety of event participants and vessels transiting in proximity to the event area. For these reasons, it would be impracticable and contrary to the public interest to publish an NPRM.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to potential safety hazards associated with the event.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP has determined that potential hazards associated with aerobatic helicopter demonstrations will be a safety concern for persons and vessels traveling underneath the demonstrations. This rule is needed to protect persons, vessels, and the marine environment in the navigable waters contained within the safety zone during aerial demonstrations.

This rule establishes a safety zone for three, 30-minute periods commencing at 2:30 p.m., 4 p.m., and 5:30 p.m. on October 20, 2018, and for three, 30-minute periods commencing at 12:30 p.m., 2 p.m., and 3:30 p.m. on October 21, 2018. The safety zone will cover certain navigable waters of Biscayne Bay east of Bayfront Park in Miami, FL. The duration of the safety zone is intended to protect persons, vessels, and the marine environment in these navigable waters during aerial demonstrations. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic will be temporarily interrupted and prevented from transiting a short section of the Intracoastal Waterway and Fisherman's Channel in Miami, FL during demonstrations. The interruptions would affect a small designated area of Biscayne Bay for 30-minute periods, three times each day the safety zone is in effect. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting approximately 90 minutes (three, 30-minute periods) each day of the two-day event. During each 30-minute period the safety zone is in effect, boating traffic will be temporarily interrupted and prevented from transiting the Intracoastal Waterway or Fisherman's Channel east of Bayfront Park in Miami, FL. The rule is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

In Public Law 114-840, the NDAA designates the SBA as the Federal Agency responsible for creating regulations governing ownership and control. This rule amends VA's verification regulations in order to implement the NDAA as regulations relating to and clarifying ownership and control are no longer the responsibility of VA.

On January 10, 2018, VA published in the Federal Register (83 FR 1203) a proposed rule to amend its regulations governing its VOSB Program. The proposed rule allowed for a comment period ending on March 12, 2018. During the comment period, VA received several comments from 17 commenters.

VA received several comments that described the commenters' views and experiences without any reference to a proposed regulatory provision. VA is unable to respond to these comments as they did not address the proposed provisions at issue here. One commenter questions the VA's authority with regards to the verification process and disagrees that the VA is authorized to issue regulations and make determinations of ownership and control. The commenter contends that VA's function with respect to verification should be limited to verifying veteran and disability status, and maintaining the VA list of verified SDVOSBs and VOSBs. Although the authority to issue regulations setting forth the ownership and control criteria for SDVOSBs and VOSBs now rests with the Administrator of the SBA, the Secretary is still charged with verifying that each applicant complies with those regulatory provisions prior to granting verified status and including the applicant in the VA list of verified firms. As the Secretary still maintains this authority and responsibility, VA finds the commenter's proposed limitation without merit. However, to eliminate any confusion as to whether the Secretary is attempting to regulate ownership and control requirements, VA will refer directly to SBA's regulations where appropriate. This will additionally allow VA's regulation to be immediately updated should SBA make regulatory changes related to ownership and control. Several other commenters discussed their personal difficulties with the verification process, how regulatory provisions are interpreted, and the manner by which the verification process is administered. As these comments do not address the proposed regulation, VA is unable to respond to these comments.

For consistency, § 74.1 proposed removing all references to VetBiz and replacing the words Center for Verification and Evaluation, service-disabled veteran-owned small business, the Department of Veterans Affairs, Vendor Information Pages, and veteran-owned small business, and uses in their place the respective abbreviations—CVE, SDVOSB, VA, VIP, and VOSB in titles and the body of the regulation, respectively. VA received no comments on this proposed change and is therefore adopting the abbreviations exactly as proposed. As these abbreviations are used through the proposed amendments, all such abbreviations as they appear will be adopted as proposed.

VA proposed amending § 74.1, which sets forth definitions important to the Vendor Information Pages (VIP) Verification Program, to remove six (6) definitions from § 74.1 that relate to and clarify ownership and control. Specifically, VA proposed removing the following definitions: day-to-day management, day-to-day operations, immediate family member, negative control, same or similar line of business, and unconditional ownership. VA proposed deleting one additional definition, Vet.Biz.gov, to account for changes to the location of the Vendor Information Pages (VIP) database. VA did not receive any comments on these proposed removals and is therefore adopting these removals as proposed.

VA additionally proposed amending § 74.1 to add three new definitions. Specifically, VA proposed to add a definition for “applicant” in order to clarify the use of the term throughout the regulation, a new definition “application days” in order to clarify how the time period in § 74.11(a) is computed, and a definition http://www.va.gov/osdbu is added to identify the hosting website as VA is replacing VetBiz.gov as the host of the VIP database. VA did not receive any comments regarding the new definition http://www.va.gov/osdbu. Therefore, VA is adopting that definition exactly as proposed. VA received one comment regarding the new definition “applicant” that it should be renamed participant since it is a benefit Veterans earn. In response, the definition of applicant refers to a business concern that applies for verified status, but has not yet completed the process and received an approval letter from CVE. Additionally, the regulations already set forth a unique definition for participant. Therefore, VA is not changing the definition of `applicant' and will adopt the definition as proposed. VA received one comment on the proposed definition for “application days”. The comment requested additional clarity as to the period that would be counted as `application days'. Though not in direct response to the definition of application days, VA received additional comments concerning when the 90-day application period begins. In response to these comments, VA agrees that additional clarification is needed. Accordingly, the commenters' recommendations are accepted in part and VA is further revising the language of § 74.1 to add a new definition “register” to clarify when the 90-day application period begins to run.

VA additionally proposed amending § 74.1 the following sixteen (16) definitions: Center for Veterans Enterprise, joint venture, Office of Small and Disadvantaged Business Utilization, non-veteran, participant, primary industry classification, principal place of business, service-disabled veteran, service-disabled veteran-owned small business, small business concern, surviving spouse, vendor information pages, verification eligibility period, veteran, veterans affairs acquisition regulation, and veteran-owned small business.

VA received no comments on the proposed changes to the following four definitions: Center for Veterans Enterprise, non-veteran, vendor information pages, and Veterans Affairs acquisition regulation. Therefore, VA is adopting those definitions exactly as proposed.

VA did not receive any specific comments on the definitions participant and small business concern. However, the NDAA has removed the responsibility of issuing regulations governing ownership and control from VA and transferred the responsibility to the SBA. The SBA has issued proposed regulations governing ownership and control which includes definitions for participant and small business concern. To eliminate any confusion, VA will refer directly to SBA's regulations when defining the terms participant and small business concern.

VA proposed amending the definition joint venture to conform to the amendments to 13 CFR part 125. VA received several comments from one commenter regarding this proposed change. The commenter expressed support of VA's proposed definition, but expressed concern it would lead to VA and SBA having conflicting rules on the definition of joint venture. This concern appears to be based on an assumption that VA will not apply the applicable joint venture requirements, and exceptions, found in SBA's regulations. However, this is not the case. Proposed § 74.5 would provide further guidance on joint ventures and refers to SBA's regulations directly. Accordingly, VA and SBA will treat joint ventures the same way. Though the commenter expressed concern that the SBA's regulations would, in certain circumstances, allow a large business to partner with a small business, the NDAA requires that VA and SBA create uniform eligibility criteria for SDVOSB firms, which includes those firms structured as joint ventures. Accordingly, VA will not alter the definition of joint venture and is adopting it exactly as proposed. VA proposed amending the definition of Office of Small and Disadvantaged Business Utilization to more accurately reflect the role fulfilled by this office with respect to VOSB matters. The definition included a provision stating that “[t]he Executive Director, OSDBU, is the VA liaison with the SBA. Information copies of correspondence sent to the SBA seeking a certificate of competency determination must be concurrently provided to the Director, OSDBU.” VA received one comment that authorizations regarding certificates of competency should be removed or addressed as part of the VAAR. Though certificates of competency do relate to contracting matters, VA sought to create a definition that fully describes that functions of the Office of Small and Disadvantaged Business Utilization. In addition, due to the overlapping nature of the verification and acquisition programs, there will be occasions where the regulation speaks to issues relating to contracting as well as verification. Accordingly, VA will not alter the definition of Office of Small and Disadvantaged Business Utilization and is adopting it exactly as proposed. VA proposed amending the definition of primary industry classification to make a technical change to use the acronym NAICS as it has already been defined in a parenthetical earlier in the definition. VA received two comments on the definition primary industry classification. Both commenters stated the definition was unnecessary. VA responds that this definition was not a new addition, and the only proposed change was to make a technical change to utilize the acronym `NAICS'. Moreover, VA believes the definition is warranted as firms list their business type and associated NAICS codes on the firm's business profile. Therefore, VA will not make any changes to this definition and is adopting it exactly as proposed.

VA proposed amending the definition of principal place of business to change day-to-day operations to daily business operations in order to match the wording in 13 CFR 125.13. VA received two comments to the definition principal place of business. Specifically, one commenter sought to expand the definition to refer not only to day-to-day operations but long-term operations as well. Another commenter questioned the need for the definition. VA responds that the proposed change was intended to create uniformity between the VA and SBA regulations as SBA is now responsible for issuing regulations governing the ownership and control requirements for SDVOSBs. Accordingly, the commenter's proposed expansion is outside of VA's authority to regulate and therefore VA is adopting the definition exactly as proposed.

VA proposed to amend the definitions for service-disabled veteran, service-disabled veteran owned small business, surviving spouse, veteran, and veteran owned small business to align with SBA's proposed definitions for these terms. Initially, VA proposed to amend these definitions by incorporating the exact language contained in the NDAA and utilized by SBA in its proposed rule. VA received numerous comments on the proposed revisions. One commenter expressed concern that SBA's definitions did not provide sufficient guidance. Several commenters requested that VA include clarifying language when referencing ESOPs within the definitions. Two other commenters requested VA clarify the term “permanent and severe” disability as used in the definitions. Numerous commenters recommended additional revisions to the proposed definition for surviving spouse, primarily requesting the VA expand the eligibility criteria for individuals attempting to qualify as a surviving spouse. VA responds that the NDAA transferred the authority from VA to the SBA to make such substantive changes to definitions that impact ownership and control of SDVOSBs. Rather, VA's charge is verifying that firms meet the ownership and control requirements promulgated by SBA. Accordingly, VA finds the revisions suggested by the commenters are outside the scope of the proposed rule. However, VA acknowledges the potential that SBA may in the future amend these regulatory requirements, either as a result of statutory changes or on its own. To account for these potential changes, and eliminate any confusion as to whether VA is attempting to create unique definitions, VA will alter the language of the above definitions to explicitly state the terms will have the same meaning as set forth in SBA's regulations.

VA proposed amending the definition of verification eligibility period to reflect the current eligibility period of 3 years, which was effectuated via publication in the Federal Register on July 12, 2017 at 82 FR 32137. VA received one comment regarding this proposed change. The commenter expressed concern that the eligibility period subjects verified concerns to onerous and expensive re-certifications. VA responds that the proposed change is only a technical change to align the definition with the actual eligibility period that was made effective in a final rule published in the Federal Register on July 12, 2017 (82 FR 32137), which amended § 74.15 to reflect the current three-year eligibility period. Therefore, VA will not alter the language of the definition and is adopting it exactly as proposed.

VA proposed amending § 74.2(a) to add the clause “submitted required supplemental documentation at http://www.va.gov/osdbu” to clearly explain the key steps necessary to submit an application and obtain verification. VA received one comment that the proposed additional language referencing “required supplemental documentation” is unnecessary. The provision providing for submitting supplemental documentation is not a new concept to the regulation. It is a recognized method for verifying applicants and was previously described in § 74.11. As the amendment is merely reordering the regulation to provide more clarity and the comment does not propose a substantive change, VA will adopt the language of § 74.2(a) exactly as proposed.

VA proposed amending § 74.2(b) to amend the title to reference the System for Award Management, to address the impact of criminal activity on eligibility, to grant the VA authority to exclude all principals of the concern, and to specify that the debarment of any individual will impact the concern's eligibility. VA received one general comment on all circumstances where there is an immediate removal and that any such removal should have an appeals process where no final action should not be taken until the appeal is resolved. VA additionally received several comments on § 74.2(b). One comment is that there are sufficient legal certifications, statutes and remedies that would render offerors ineligible. A second is that the terms are ambiguous and invite arbitrary and capricious judgement that can lead to denial of due process. Another commenter suggested that the definition be revised to be brought in line with the requirements for the SBA's 8(a) Program, to provide for reviewing criminal violations on a case-by-case basis. In response, the amendments to § 74.2(b), currently titled “good character” are merely to provide clarity to circumstances under which a company is currently subject to removal on the grounds of good character as opposed to cancellation. Persons found guilty of, or found to be involved in criminally related matters or debarment proceedings have received due process through whatever administrative or criminal proceeding giving rise to the removal. VA is not an additional level of review, but merely acting on determinations issued by courts or other administrative bodies or processes. Additionally, VA has mirrored the causes for immediate removal on those set forth in FAR 9.4, which sets forth means by which concerns can be deemed ineligible to receive any federal contract. The concept of immediate removal has been an integral component of § 74.2 since 2010. It has been used as a streamlined method of removing companies found ineligible for VA's set aside procurement program. In both 2010 and 2012, GAO published reports tasking VA with reducing potential instances of fraud and abuse. VA has found in its administration of the verification program that the use of the procedures identified in § 74.2 protects VA acquisition integrity and diminishes ongoing exposure to fraud, waste, and abuse. The United States Court of Federal Claims in the case of Veterans Contracting Group, Inc., v. United States, No. 17-1015C, pg. 10 (Dec. 21, 2017) recognizes that immediate removal does not necessarily trigger a loss of due process protections. Finally, all examinations of business entities, concerning issues of criminality or otherwise, are conducted on a case-by-case basis and take into account all relevant facts. Amending the regulation to further mirror the SBA's 8(a) program regulations is unnecessary. As VA views the proposed amendments as merely adding clarity to the current process and that no other comments have been received on the other amendments to § 74.2(b), VA adopts the amendments exactly as proposed.

VA proposed amending § 74.2(c) by adding the phrase “false statements or information” to reference the title and to provide further clarification on eligibility requirements. VA additionally proposed amending § 74.2(c) to clarify that removal is immediate and to remove the word “the” before CVE in the last sentence of the section. One commenter supports the amendment stating that submitting false statements should be stringently enforced. VA received a comment that submitting false statements is a felony and that an independent VA determination that a company made false statements can lead to denial of due process. VA received another comment that a determination by CVE as to whether false statements exists is redundant, ambiguous, could be subjectively arbitrary, and is not authorized. In response, the amendments to § 74.2(c) are intended to clarify current interpretation and policy. The current language of § 74.2(c) has always been interpreted to allow for immediate removal upon a determination that a concern knowingly submitted false information. The proposed amendment adds the word immediate to remove any ambiguity. With respect to potential due process issues, VA offers the response provided in VA's response to comments made to § 74.2(b). As VA views the proposed amendments as merely adding clarity to the current process and that no other comments have been received on the other amendments to § 74.2(c), VA adopts the amendments as proposed.

VA proposed amending § 74.2(d) by including tax liens and unresolved debts owed to governmental entities outside of the Federal government as disqualifying an applicant. VA also proposed amending the title of the section to remove the word federal to reflect that both federal and local obligations may disqualify an applicant and to provide that participants that no longer qualify under § 74.2(d) will be removed in accordance with § 74.22. VA received one comment that expanding unresolved debts owed to government entities outside the Federal government is overreaching and outside the expertise of the VA. VA received another comment that including outstanding obligations of all state and local jurisdictions where a company does business is impractical, invites arbitrary and capricious determinations and can lead to a denial of due process. VA received two additional comments that the proposed language could potentially disqualify both a business entity that has either a legitimate tax dispute or a business entity that entered into a payment plan. Including unresolved debts owed to state and local governmental units is an appropriate amendment to the regulation considering the significant governmental benefits that a verified concern may become eligible. Furthermore, failure to qualify on the grounds of outstanding financial obligations is not an immediate disqualifying event which may trigger due process considerations. Specifically, in accordance with § 74.22, a business concern may provide any explanation deemed appropriate to explain the circumstances of any outstanding financial obligation, regardless of the jurisdiction. Thus, so long as the business entity provides an adequate response to a cancellation proceeding, the business will not be removed from the VIP database. VA does not find that expanding the regulation to include unresolved debts owed to state and local governmental units as overly burdensome or that there is a potential due process violation. Therefore, as there are no other comments, VA is adopting § 74.2(d) as proposed.

VA proposed amending § 74.2(e) to clarify the consequences of SBA protest decisions and other negative findings and to amend the title of the section. VA received one comment that supports immediate removal on the basis of negative findings, but recommends that more examples should be provided because it is otherwise overly broad. VA received a second comment that there should be a clear process to determine ineligibility including during an appeal to prevent due process violations. VA received another comment that there is clear law and regulation on the ramifications of SBA protests decisions and negative findings. The proposed amendments to § 74.2(e) merely seek to clarify CVE's current process and to confirm that SBA decisions and other negative finding are subject to immediate removal as opposed to cancellation. Other than reordering the language and clarifying the treatment of status protests and other negative findings, § 74.2(e) does not propose any substantive changes. Treatment of negative findings is not a new concept in the regulation rather the proposed change is written to encompass all negative findings, regardless of origin. In addition, as immediate removal is not a new concept, the proposed change does not implicate any new due process issues. Moreover, the potential negative determinations would be the result of a proceeding in which the aggrieved party would have been given notice and an opportunity to be heard. As VA views the proposed amendments as merely adding clarity to the current process and that no other comments have been received on the other remaining amendments to § 74.2(e), VA adopts the amendments as proposed.

VA proposed amending § 74.2 to include paragraph (f) that specifically requires that all applicants for VIP verification must be registered in the System for Award Management (SAM). As VA did not receive any comments on this change, VA adopts the amendment as proposed.

VA proposed amending § 74.3 to reflect that ownership is to be determined in accordance with 13 CFR part 125 as the result of the requirements outlined in the NDAA. To put into effect this legislative change, VA proposed amending § 74.3(e) to redesignate it as § 74.3(b) to account for the removal of paragraphs (a)-(d). As VA did not receive any comments on this change, VA adopts the amendment as proposed.

VA proposed amending § 74.3(b)(1) and (3) by a technical change to replace “application” with “VA Form 0877” in order to clarify the requirement and conform language to the rest of the regulation. VA also proposed amending § 74.3(b)(1) to add a 30-day time period for submission of a new application after a change in ownership. This time period provides CVE the ability to definitively and accurately track changes of ownership. VA received one comment that recommends that the time a business should notify VA of a change in ownership should be clarified to begin on the date the concern finalizes the change within the business's corporate documents. VA understands the comment, but further clarification would not change the basic notification requirement. A business organization should provide notice of a change at the time is occurs. VA received additional comments on § 74.3 recommending that § 74.3(b)(2) and (3) be removed and addressed in the VAAR as these provisions relate to functions of contracting officers. In response, the amendment to § 74.3(b)(2) is merely a renumber of an existing regulation with no change in content. Additionally, while this provision may also implicate contracting issues, VA believes it is important for applicant firms to understand how future changes can impact eligibility. Similarly, § 74.3(b)(3) is nearly identical to the prior provision except for a technical change that indicates that a new application is filed with VA and not the contracting officer. VA sees no basis in making any additional amendments to the regulations based on the comments. As no other comments on the remaining proposed amendments to § 74.3(b) were received, VA is adopting the amendments exactly as proposed.

VA proposed amending § 74.4(a) to state that control is determined in accordance with 13 CFR part 125 pursuant to the NDAA. VA also proposed removing paragraphs (b) through (i) upon that same basis. Although VA did not expressly note that it was removing the designation for paragraph (a), since there will not be any other paragraphs, VA proposes removing the designation for paragraph (a), as it is unnecessary. VA did not receive any comments on the proposed amendment to § 74.4 other than as previously discussed. Therefore, VA is adopting the amendments as proposed.

VA proposed amending § 74.5 to include joint ventures. The section is additionally reworded to clearly establish that 38 CFR part 74 does not supersede 13 CFR part 121 with respect to size determinations. VA adds paragraph (b) to specifically address eligibility of joint ventures. Paragraphs (b)(1) and (2) are added to provide notice of applicable requirements outlined elsewhere in VA regulation. VA did not receive any comments on the proposed amendment to § 74.5 other than as previously discussed and is therefore adopting the amendment as proposed.

VA proposed amending § 74.10 to remove reference to the physical address for CVE so to allow address changes without the need for an amendment to the regulation. VA did not receive any comments on the proposed amendment to § 74.10 and is therefore adopting the amendment as proposed.

VA proposed amending § 74.11(a) to outline its new application processing procedures and various editorial non-substantive conforming changes. Additionally, VA proposed amending § 74.11(a) to incorporate the term `application days' and to increase the application processing time to 90 application days, when practicable. VA received comments that expressed a concern that the term registration as referenced in § 74.11(a) is unclear. VA provided a response above which addresses this concern. Specifically, VA agrees that that the regulation could be clearer, and has included a definition for the term register. VA believes the additional definition adequately addresses the commenter's concerns, and therefore does not find any additional revision to § 74.11(a) to be necessary. VA proposed adding a new § 74.11(c) to address instances where CVE does not receive all requested documentation. In order to comply with VA's statutory charge to verify applicants for the VIP database, VA requires documentation to demonstrate eligibility. VA received comments on § 74.11(a) and (c), respectively, that subjectivity should be removed from the meaning of “conforming documentation” and the meaning of “to adequately respond.” In response, there is no one requirement for conforming documentation or providing adequate responses. Conforming documents are documents that respond to a specific request. Adequate responses are responses that provide answers to a specific inquiry. For example, if a request is to provide the last three years' business income tax returns and only one year is provided, without providing the other two years or a letter of explanation, conforming documents have not been provided. It can also be said that the response was not adequate. VA sees no basis in making any additional amendments to the regulations based on the comments. As no other comments on the remaining proposed amendments to § 74.11(a) and (c) were received, VA is adopting the amendments exactly as proposed.

VA proposed redesignating § 74.11(c) as § 74.11(d) and adding the term “totality of circumstances” as the standard of review for reviewing an applicant's eligibility. VA also proposed amending § 74.11(d) by referencing §§ 74.11(b) and (c) and 74.13(a) as exceptions to the totality of circumstances standard and to state that the burden of establishing VOSB status is on the applicant. VA received one comment on § 74.11(d) but it was mislabeled and should have been a comment to § 74.11(h). As VA did not receive any comments on the proposed amendment to § 74.11(d), VA is therefore adopting the amendment as proposed.

VA proposed redesignating § 74.11(d) as § 74.11(e) and proposed amending the first and second sentences by removing the word “adversely.” VA also proposed removing the third sentence as it refers to withdrawal or removal of verified status. This scenario is addressed in § 74.21 in cancellations, which specifically outlines participants can exit the VIP database. This proposed removal helps to eliminate redundancy and reduce the likelihood of confusion. VA also proposed adding new § 74.11(e)(1) to specifically address bankruptcy as a changed circumstance. As VA did not receive any comments on the proposed amendments to § 74.11(e), VA is therefore adopting the amendments as proposed.

VA proposed redesignating § 74.11(e) as § 74.11(f). Section 74.11(f) outlines the CVE Director's options in issuing determination letters. VA received one comment on § 74.11(f) that voluntary withdrawals should be included as a third decision option. In response, other than redesignating the section numbering, § 74.11(f) does not propose any substantive changes. Furthermore, § 74.11(f) only speaks to decisions by CVE. As a withdrawal would be the choice of the applicant, made available to applicants prior to a formal adverse decision being issued by CVE, VA does not believe it should be addressed in this subsection. As § 74.11(f) is only meant to speak to final determinations, no revisions will be made to § 74.11(f). VA is therefore adopting the amendments as proposed.

VA proposed redesignating § 74.11(f) and (g) as § 74.11(g) and (h), respectively. Section 74.11(h) outlines the methods for delivering determination letters. VA also proposed amending § 74.11(h) to add a second sentence requiring firms to update their contact information. VA received one comment on § 74.11(h) that VA should remove all reference to alternative means of transmitting decisions since the VA only uses electronic mail. In response, while is it true that VA routinely transmits decisions by email, alternate delivery options are always available and might be necessary to account for unforeseen circumstances. As no additional comments on the remaining proposed amendments to § 74.11(g) and (h) were received, VA is adopting the amendments exactly as proposed.

VA proposed amending § 74.12 to expand the list of required documentation routinely requested by CVE. This list includes documents previously referenced in § 74.20(b). VA additionally proposed amending § 74.12 so that the term “electronic form” would be changed to “VA Form 0877” and the term “attachments” would be changed to “supplemental documentation.” VA also proposed amending § 74.12 by removing the last two sentences in the section. VA received several comments on the proposed revisions to § 74.12. However, none of the comments spoke to the proposed amendments. One comment questioned the need for the terms “principal place of business” and “primary place of business” in § 74.12. In response, the term “principal place of business” is used to identify the place where a complete copy of all supplemental documentation used in verification examinations is to be retained. The term “primary place of business” is not used in § 74.12. Another comment is that the required documents outlined in § 74.12 are not required for every set of circumstances and that the regulations do not provide for exceptions for unavailable or irrelevant documents. In response, VA understands that not all documents are available or required for every business structure. In such cases, VA accepts letters of explanation. If the explanation reasonably explains the unavailability of the document or information, the document will not be required. For example, if a corporation does not have an operating agreement and an explanation is provided that operating agreements are not required for corporations, VA would accept that explanation. One commenter suggested that there should be an appeal process when an applicant believes that the document request is overreaching. In response, VA states that there is an appeals process. However, the process relates to final determinations made by CVE. Ultimately, a firm bears the burden of demonstrating eligibility with the verification requirements. If CVE does not receive sufficient documentation to allow the office to conclude the firm satisfies the verification requirements, it will deny the concern verified status. In accordance with the NDAA, appeals are to be filed with SBA's Office of Hearings and Appeals (OHA) in accordance with 13 CFR part 134. VA sees no basis to make any additional amendments or adjustments to the regulations based on the comments to § 74.12. Accordingly, VA is adopting the amendments exactly as proposed.

VA proposed amending § 74.13 to modify the title and to remove references to the reconsideration process. In accordance with the NDAA, appeals of initial denials on the grounds of ownership and control will be adjudicated by SBA OHA. VA additionally proposed amending § 74.13(a) to refer to the appeal process set forth in 13 CFR part 134. VA additionally proposed redesignating § 74.13(e) as § 74.13(b), and removing existing paragraphs (b) through (d), (f) and (g) as they are no longer relevant. VA also proposed removing the phrase `service-disabled veteran' as the term veteran would be used to refer to both veterans and service-disabled veterans. VA received one comment that the reconsideration process saves time and money. Effective October 1, 2018, in accordance with the NDAA, the VA post determination process will be transferred to SBA OHA. All appeals will be adjudicated in accordance with 13 CFR part 134. Therefore, VA will not alter the language of § 74.13 and is adopting the amendments exactly as proposed.

VA proposed redesignating § 74.14 as § 74.14(a) and to remove references to requests for reconsideration. VA further proposed amending the list of occurrences that the six-month waiting period applies before an applicant may submit a new application. These occurrences include notices of verified status cancellation and appeals filed with OHA that sustain initial denial letters and verified status cancellations issued by CVE. VA further proposed adding a new § 74.14(b) to clarify that a finding of ineligibility during a reapplication will result in the immediate removal of the participant. VA did not receive any comments on the proposed amendment to § 74.14 and is therefore adopting the amendments as proposed.

VA proposed amending § 74.15(a) by splitting the paragraph into paragraphs (a), (b), and (c). VA proposed removing current § 74.15(b) because it deals with affiliation and is therefore addressed in § 74.5. VA proposed amending newly designated § 74.15(a) to improve specificity. VA proposed amending new designated § 74.15(b) to require participants to inform CVE within 30 days of changes affecting eligibility. VA proposed amending redesignated § 74.15(c) to include all situations in which the eligibility period may be shortened. VA proposed redesignating (c), (d), and (e) as (d), (e), and (f), respectively. VA further proposed amending the redesignated § 74.15(e) to reference immediate removals pursuant to § 74.2. VA received one comment that agrees with the process in § 74.15(b), requiring firms to inform VA within thirty days of changes affecting eligibility, but expressed a concern that VA should provide guidance on which changes would affect eligibility, since most firms would not be aware of which changes are material. In response, VA has published guidance on the OSDBU website. The same guidance which affects companies applying for the verification program would likewise apply to a company seeking to modify aspects of ownership and control in its business documents. In addition, VA has a list of trained verification counselors, who are available to assist with issues concerning a company's eligibility. VA received another comment that a company may lose its eligibility by no longer qualifying as a small business, but under an existing award, it remains eligible to perform a long-term contract. The fear is that the business would no longer appear as an eligible concern on the VIP database. In response, eligibility for a long-term contract is a contracting issue that should be managed through the contracting officer. Verification for the VIP database speaks to current eligibility under existing standards. The regulations do not contain an exception for companies performing long-term contracts. Thus, VA sees no basis in making additional amendments to the regulations based on these comments. As there are no other comments to § 74.15(a) through (c) and (e), VA is adopting the amendments exactly as proposed.

VA received a comment on § 74.15(d) that firms should be informed of the nature and facts against them when VA initiates a verification examination upon receipt of credible evidence concerning its eligibility. In response, VA informs a participant concerning issues of eligibility when it initiates cancellation proceedings. Upon the issuance of a Notice of Proposed Cancellation, the concern receives notice of the nature and specific facts which VA considers to adversely impact the firm's eligibility and is provided an opportunity to provide a response. VA received another comment that there should be an appeals process if a company is removed from the VIP database on the grounds of ineligibility and the company should remain eligible in the database pending resolution of the appeal. VA responds that, in the event a participant is removed as the result of a verified status cancellation, it has a right of appeal. Specifically, in accordance with the NDAA, the VA post decision process will be transferred to SBA OHA. All appeals will be adjudicated in accordance with 13 CFR part 134. However, the regulation does not allow concerns to retain their eligibility during the appeal process. Upon a finding that a company no longer qualifies for the VIP database, it is removed immediately. VA sees no basis in making any additional amendments to the regulations based on these comments. As there are no other comments on § 74.15(d), VA is adopting the amendments exactly as proposed.

VA proposed amending the first three sentences of § 74.20(b). In the first sentence, VA proposed removing the phrase “or parts of the program examination”. In the second sentence, VA proposed changing “location” to “location(s)” and in the third sentence, VA proposed changing the word “[e]xaminers” to “CVE”. As the proposed revisions to § 74.12 fully address the required documentation necessary for verification, VA proposed removing the list of documents from § 74.20. VA did not receive any comments on the proposed amendment to § 74.20 and is therefore adopting the amendments as proposed.

VA proposed amending § 74.21 to reorder changes made to other sections of this part. VA proposed amending § 74.21(a) to remove reference to the “ ‘verified' status button” in order to reflect the current user interface of the VIP database. VA proposed amending § 74.21(c) by referencing the immediate removal provisions established in § 74.2. VA additionally proposed redesignating § 74.21(c) as § 74.21(d). VA received one comment on § 74.21(d)(4) that it is redundant and therefore irrelevant, since it is covered under § 74.21(d)(1) and (2). In response, VA agrees with the commenter that § 74.21(d)(4) may overlap with § 74.21(d)(1) and (2) to some degree. However, § 74.21(d)(4) contains a specific control requirement which is highlighted to ensure clarity. VA proposed removing § 74.21(c)(5) and (8) as involuntary exclusions are now addressed in § 74.2. VA also proposes redesignating § 74.21(c)(6), (7), and (10) and (d) as § 74.21(d)(5), (6), and (7) and (e), respectively. VA proposed adding § 74.21(d)(8) to notify the public that failure to report changed circumstances within 30 days is good cause to initiate cancellation proceedings. VA received one comment that § 74.21(d)(9) should provide for a cure period prior to the issuance of a Notice of Proposed Cancellation and that the regulations should take into consideration the varying nature of licenses. In response, the comment to § 74.21(d)(9) is not the subject of the proposed change to the regulation. Additionally, the cancellation proceedings provide the concern an opportunity to respond and refute the proposed bases for cancellation prior to any adverse action being taken. As it is each participant's obligation to remain eligible for the program in accordance with the applicable verification requirements, and the current procedures contain procedural safeguards, VA sees no need to create an additional cure period.

In addition, VA proposed removing the term “ ‘verified' status button” to reflect the current user interface of the database and adding the phrase “or its agents” to clarify who may request documents. VA proposed deleting the words “a pattern of” to clarify the requirements necessary to remove a company for failure to provide requested information. VA also proposed removing the term “application” as VA Form 0877 reflects current program requirements. VA additionally proposed changing the phrase ‘60 days' to ‘30 days' to conform with revised § 74.3(f)(1). Considering the comments received on § 74.21(d), VA sees no basis in making any additional amendments to the regulations based on these comments. As there are no other comments on § 74.21(d), VA is adopting the amendments exactly as proposed.

VA proposed amending § 74.22(a) to note the beginning of the relevant 30-day time period as the date on which CVE sends notice of proposed cancellation of verified status. VA additionally proposed to amend § 74.22(e) to implement the new appeals procedure to OHA prescribed in the NDAA. VA did not receive any comments on the proposed amendment to § 74.22 and is therefore adopting the amendments as proposed.

VA proposed amending § 74.25 to replace “the Department” with “VA” and amending § 74.26 to add more specificity to the regulation concerning the information to be submitted for verification. VA received one comment on the proposed revision to § 74.26 which stated that it needed OMB authorization. In response, without more specific information, VA is unaware of the requirement for obtaining OMB authorization for § 74.26 other than the ordinary review process. Moreover, there are no material amendments to § 74.26 as the language is merely being refined. Therefore, VA sees no basis in making any additional amendments to the regulations based on the comment. As no other comments to §§ 74.25 and 74.26 were received, VA is adopting the amendments exactly as proposed.

VA amends § 74.27 to outline document storage requirements. VA received one comment on § 74.27 that it needed OMB authorization. In response, without more specific information, VA is unaware of the requirement for obtaining OMB authorization for the provisions contained § 74.27 other than the ordinary review process. Moreover, the amendment to § 74.27 is not substantive. There are no material amendments to § 74.27. VA proposed amending § 74.27 to reword the first sentence to specify that all documents submitted will be stored electronically. “Vendor Information Pages” is changed to “CVE” and the location reference is removed. The second sentence is revised to indicate that owner information will be compared to available records. In addition, information is added regarding records management procedures and data breaches. Therefore, VA sees no basis in making any additional amendments to the regulations based on the comment. As no other comments on the amendments to § 74.27 were received, VA is adopting the amendments exactly as proposed.

VA proposed amending § 74.28 to replace ‘Department of Veterans Affairs' and ‘Center for Veterans Enterprise' with VA and CVE, respectively and § 74.29 to refer to VA's records management procedures. VA did not receive any comments on the proposed amendments to §§ 74.28 and 74.29 and is therefore adopting the amendments as proposed.

The Code of Federal Regulations, as proposed to be revised by this rulemaking, would represent the exclusive legal authority on this subject. No contrary rules or procedures would be authorized. All VA guidance would be read to conform with the rule finally adopted if possible or, if not possible, such guidance would be superseded.

The Administrative Procedure Act (APA) requires that “publication or service of a substantive rule shall be made not less than 30 days before its effective date, except . . . as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The purpose of the APA provision delaying the effective date of a rule for 30 days after publication is to provide interested and affected members of the public sufficient time to adjust their behavior before the rule takes effect. For the reasons set forth below, VA finds that good cause exists to make this final rule become effective on October 1, 2018, less than 30 days after it is published in the Federal Register.

As noted above, VA and the SBA have been working together to jointly implement the provisions of NDAA 2017. In doing so, VA and the SBA believe a single date on which all of the changes go into effect is the most effective path for implementation. VA and the SBA consider October 1, 2018 to be the best date for implementation of new unified rules for the programs. October 1, 2018 is the start of the new fiscal year, and is therefore the best date for separation of contract actions between different sets of regulations. Having contract actions applying different regulations in the same fiscal year can often lead to confusion among contracting officials, and program participants. Procurements conducted in fiscal year 2018 will generally follow the old rules, while all new procurements in fiscal year 2019 will follow the new jointly developed regulations which VA believes will lead to less confusion.

In addition to the joint effort in implementing these provisions of NDAA 2017, VA has in a related rule making process implemented Sections 1932 and 1833 of NDAA 2017. These sections dealt with the transition of certain protest and appeal functions from the VA to SBA's Office of Hearings and Appeals. The final rule implementing those sections also has an implementation date of October 1, 2018. 83 FR 13626.

VA and SBA believe that a uniform transition combining the programs ownership and control requirements is extremely important. As such, VA believes that an earlier effective date that aligns with the new fiscal year for contracting, and with the other changes implementing NDAA 2017 is the best course of action.

This rule contains no provision constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. Small entities include small businesses, small not-for-profit organizations, and small governmental jurisdictions. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

This rule making has an average cost to the small business of $803, and it would apply only to applying for verified status in the VIP database. The regulation merely clarifies and streamlines the existing rule and adds no additional burdens or restrictions on applicants or participants regarding VA's VOSB Verification Program. The overall impact of the rule is of benefit to small businesses owned by veterans or service-disabled veterans.

The overall impact of the rule will not affect small businesses owned and controlled by veterans and service-disabled veterans. The rule removes ownership and control from 38 CFR part 74 which will be assumed under a separate set of regulations promulgated by SBA. The rule also refines and clarifies process steps and removes post examination review. Post examination review will also be assumed under a separate set of regulations.

Examination of businesses seeking verification as veteran-owned small businesses or service-disabled veteran-owned small businesses seeking VA set aside contract opportunities is through the examination model. The examination model revises the verification process by assigning dedicated case analysts and providing applicants with additional access to VA staffers during verification.

From December 2016 through February 2017, 352 small businesses that completed the process and received determination letters participated in a follow-up survey detailing their costs and the attribution of the costs. Seventy-three (73) percent of participating businesses had either $0 costs or responded not applicable; 14 percent estimated costs between $1 and $1,000; 3 percent responded with a cost estimate between $1,001 and $2,000; 3 percent responded with a cost estimate between $2,001 and $3,000; 2 percent responded with a cost estimate between $3,001 and $4,000; 2 percent responded with a cost estimate between $4,001 and $5,000; and 4 percent responded with a cost estimate over $5,000. The average cost of all businesses providing survey responses was $803 per business. The largest cost categories were employee costs, attorney costs, travel/printing, consultants, and accountants. Currently, there are 14,560 verified companies in VA's database and approximately 2,100 companies with applications in process. In addition, no comments were received regarding RFA issues. Therefore, the Secretary certifies that the adoption of this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act. Therefore, under 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages, distributive impacts and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by the Office of Management and Budget (OMB), as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm by following the link for VA Regulations Published from FY 2004 through FYTD. This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This rule will not have such effect on State, local, and tribal governments, or on the private sector.

This rule will affect the verification guidelines of veteran-owned small businesses, for which there is no Catalog of Federal Domestic Assistance program number.

The Secretary of Veterans Affairs approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Wilkie, Secretary, Department of Veterans Affairs, approved this document on September 12, 2018, for publication.

For the reasons set forth in the preamble, we amend 38 CFR part 74 as follows:

Background

In June 2018, the Postal Service proposed to amend its Freedom of Information Act (FOIA) and Privacy Act regulations. 83 FR 27933 (June 15, 2018). Most of these changes were minor, intended to improve clarity and make technical corrections. In addition to these technical changes, the Postal Service proposed substantive changes intended to create a definition of “information of a commercial nature” as it pertains to the Postal Reorganization Act's provisions concerning disclosure of information under the FOIA, add guidance for determining what information qualifies as commercial information under the Act, and provide specific examples. The Postal Service received three sets of comments. The Postal Service has considered these comments and addresses them below.

The Postal Reorganization Act of 1970 (PRA) subjected the newly formed United States Postal Service to certain federal statutes, including the FOIA. See 39 U.S.C. 410(b). The PRA was the result of over two years of congressional deliberation and debate seeking to reestablish the Postal Service as an independent executive organization that would “be run more like a business than had its predecessor, the Post Office Department.” Franchise Tax Bd. of Cal. v. U.S. Postal Serv., 467 U.S. 512, 520 (1984); see also Nat'l Ass'n of Greeting Card Publishers v. U.S. Postal Serv., 462 U.S. 810, 822 (1983) (noting that under the Act “Congress sought to ensure that the Postal Service would be managed in a businesslike way”). In recognition of these new mandates and expectations, Congress specifically exempted the Postal Service from disclosing six types of operational information under the FOIA. See 39 U.S.C. 410(c). In particular, Congress exempted “information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed.” 39 U.S.C. 410(c)(2). The original form of the PRA's final iteration, H.R. 17070, would not have subjected the Postal Service to the FOIA at all. Id. However, the Senate conditioned its approval of H.R 17070 on the inclusion of several significant amendments embodied in S. 3842, including Section 410. S. 3842, 91st Cong. (1970); see also e.g., S. Rep. No. 91-912 (1970); H.R. Rep. No. 91-1363 (1970). This section both subjects the Postal Service to the FOIA and contains certain specific exemptions from disclosure. The House accepted the amendments in S. 3842 with few changes and minimal discussion. See H.R. Rep. No. 91-1363 (1970) and Public Law 91-375 (August 12, 1970). In addition, despite the fact that the inclusion of Section 410 was demanded by the Senate, the Senate record is devoid of specific discussion of this provision and its relationship to the FOIA. These omissions from the congressional record make it difficult to discern, beyond the plain language, how Congress intended the Postal Service to interpret section 410—specifically, what constitutes “information of a commercial nature” under section 410(c)(2).

The Postal Service's FOIA regulations were originally promulgated in 1975. See U.S. Postal Service, Freedom of Information Act Regulations, 40 FR 7330 (Feb. 19, 1975). Just as Congress did not define commercial information in Section 410, the original Federal Register notice concerning 39 CFR 265.14(b)(3) did not define, nor even discuss, commercial information or the proposed exemption of certain categories of records. Id. Despite some minor clarifying edits, the regulatory language of § 265.14(b)(3) has remained substantially unchanged since 1975. See 51 FR 26385 (July 23, 1986) (adding two categories of records without discussion). Several courts have observed the absence of such definition, from either Congress or Postal Service regulations, as they endeavored to define the term themselves. See e.g., Carlson v. U.S. Postal Serv., 504 F.3d 1123, 1128 (9th Cir. 2007) (noting that neither Congress nor Postal Service regulations have defined “information of a commercial nature”); Nat'l W. Life Ins. Co. v. U.S., 512 F. Supp. 454, 459-60 (N.D. Tex. 1980) (stating that there is “no authority as to what constitutes commercial information”); Carlson v. U.S. Postal Serv., No. 13-CV-06017-JSC, 2015 WL 9258072, at *4 (N.D. Cal. Dec. 18, 2015) (stating that “without a statutory or regulatory definition,” the courts have been forced to turn to the dictionary for the common meaning). It was with these criticisms in mind that the Postal Service endeavored to make the proposed changes to its regulations at question here. See proposed § 265.14(b)(3).

Commenter A made several thoughtful comments in response to the proposed rule changes. Chiefly, Commenter A questions the necessity of making any changes at all to § 265.14 under the assumption that “there has been relatively little litigation over the scope of either 39 U.S.C. 410(c)(2) or 39 CFR 265.14(b)(3).” The Postal Service disagrees. The scope of Section 410(c)(2), and more precisely how to define commercial information, has been the subject of numerous court decisions. See e.g., Wickwire Gavin, P.C. v. U.S. Postal Serv., 356 F.3d 588, 594-596 (4th Cir. 2004); Carlson, 504 F.3d at 1128; Nat'l W. Life Ins. Co., 512 F. Supp. at 459-60; Piper & Marbury v. U.S. Postal Serv., No. CIV. A. 99-2383JMFCKK, 2001 WL 214217, at *1 (D.D.C. Mar. 6, 2001); Carlson, No. 13-CV-06017-JSC, 2015 WL 9258072, at *4. This topic has also been the subject of several other filed complaints that either never, or have not yet, reached judicial decision. Moreover, the scope of section 410(c)(2) is constantly a topic of controversy in the administrative appeal decisions the Postal Service issues under the FOIA. Therefore, the Postal Service believes that the level of controversy surrounding the scope of section 410(c)(2) merits regulatory clarification.

Commenter A next posits that the Postal Service's proposed definition of “information of a commercial nature” would do more to confuse rather than clarify the scope of section 410(c)(2). The Postal Service proposes to amend § 265.14(b)(3) to state “information is of a commercial nature if it relates to commerce, trade, profit, or the Postal Service's ability to conduct itself in a businesslike manner.” 83 FR 27934, proposed § 265.14(b)(3). The Postal Service's proposed amendments follow this subsection with six factors to evaluate in determining whether particular information meets this definition. Commenter A, while recognizing that this “is generally consistent with case law,” opines that the definition “is so broad as to be meaningless.” Again, the Postal Service disagrees. The proposed definition is clear, concise, and places new parameters on the scope of section 410(c)(2) where none previously existed. Furthermore, it is considerably narrower than both the current regulatory language of § 265.14(b)(3) and the relatively boundless statutory text of section 410(c)(2). Moreover, the addition of six factors to apply in making a determination of information's commercial nature provide further clarity to the proposed definition while also providing guidance as to its application in real world circumstances.

In addition to the proposed definition of “information of a commercial nature” and the six evaluation factors, the proposed amendment to § 265.14 also includes a demonstrative, non-exclusive list of 21 examples of specific types of information the Postal Service has determined meets that definition. 83 FR 27934, proposed § 265.14(b)(3)(ii). The remainder of Commenter A's comments argue that certain of these listed examples would not qualify for withholding, including “Facility-specific volume, revenue, and cost information,” proposed § 265.14(b)(3)(ii)(J), “Country-specific international mail volume and revenue data,” proposed § 265.14(b)(3)(ii)(K), and “Parties to Negotiated Service Agreements,” proposed § 265.14(b)(3)(ii)(O).

Courts have identified several characteristics that tend to weigh either in favor of or against a determination that information is commercial in nature. Some of those characteristics include whether and to what extent the information: Is publicly available, is intrinsically economic or financial, is transactional, involves cost and pricing, would be useful to competitors, or could cause competitive harm if disclosed. See e.g., Carlson, 504 F.3d at 1130 (taking note that most of the requested information was already publicly available); Nat'l W. Life Ins. Co., 512 F. Supp. at 459-60 (noting that the information requested was not “intrinsically economic or financial”); Carlson, No. 13-CV-06017-JSC, 2015 WL 9258072, at *7 (noting the transactional nature of the requested information, its potential utility to competitors, and recognizing that other courts have protected cost and pricing information); Wickwire Gavin, 356 F.3d at 595 (rejecting an “implied additional requirement” of competitive harm, but noting that “competitive harm [is] one of many considerations” in determining the commercial nature of information).

Facility-specific and country-specific volume, revenue, and cost information share many of those characteristics. It is non-public, intrinsically economic and financial, and involves cost and pricing. Likewise, the Postal Service does not make the parties to its Negotiated Service Agreements public. The Postal Service uses these agreements to offer customized pricing and classifications to certain mailers to compete for those mailers' business. Neither of these items would typically be released “under good business practice.” Other businesses, including the Postal Service's competitors, do not release facility-specific or country-specific volume, revenue and cost information. Customers who hold Negotiated Service Agreements with the Postal Service do not publicly disclose such agreements.

As such, the Postal Service declines making changes to its proposed amendments in response Commenter A's comments.

Likewise, Commenter B made several thoughtful comments in response to the proposed rule changes. All of Commenter B's comments relate to proposed § 265.14(b)(3)(ii)(Q) which deems “negotiated terms in leases” commercial information under section 410(c)(2). Commenter B asks that the Postal Service delete this item from the list of examples included at proposed § 265.14(b)(3)(ii). Commenter B's comments do not contest that negotiated terms in leases qualify as commercial information under section 410(c)(2), rather, it asserts that withholding this information is not “consistent with good business practices for the commercial and business sector.”

The PRA exempted from disclosure under the FOIA “information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed.” 39 U.S.C. 410(c)(2). Section 410(c)(2) creates a two-pronged inquiry; first, whether the information is commercial in nature, and second, whether it would be publicly disclosed under good business practice. See e.g., Wickwire Gavin, 356 F.3d at 594-95; Carlson No. 13-cv-06017-JSC, 2015 WL 9258072, at *8. In order to determine whether commercial information would be disclosed under good business practice, courts look to the common practices of other businesses. See id. The Postal Service notes that its regulatory changes only encompass the definition of “commercial information.” To the extent that Commenter B asserts that this information is not information that falls within the second prong of this inquiry, the Postal Service submits that such an assertion is outside the scope of this rulemaking. However, to the extent Commenter B's comments have any bearing on the instant rulemaking, the Postal Service declines to make changes to 39 CFR 265.14(b) that conform to Commenter B's comments for the reasons discussed below.

First, Commenter B asserts that leasing information should not be exempt from public disclosure because this type of information is “routinely made publicly available in the commercial leasing industry,” citing searchable databases provided by third-party companies. The Postal Service is not aware of any of its competitors publicly releasing the terms of their commercial leases. In fact, it is common practice for parties to a commercial lease to require non-disclosure agreements as part of their lease terms for the very purpose of insuring that terms do not become public. As such, the Postal Service disagrees that this is a routine procedure in keeping with good business practice.

Commenter B next points out that the United States General Services Administration (GSA) provides a searchable database containing information on the terms of its leases. While true, the Postal Service occupies a different position than GSA. GSA is not required to operate in a businesslike manner as its costs are paid through appropriated funds, whereas the Postal Service is self-funded by revenue it generates through operations. Congress enacted section 410(c)(2) in recognition of the Postal Service's dual role as both a government entity and a business competing in the market. This provision only applies to the Postal Service. Quite simply, GSA does not enjoy these same protections that Congress saw fit to provide the Postal Service. Moreover, section 410(c)(2) references withholding information “under good business practice” with courts looking to the practices of other businesses. GSA is not a business. Thus, GSA's practices regarding lease terms do not warrant altering the proposed amendments to 39 CFR 265.14(b).

Commenter B also asserts that the past practice of releasing Postal Service lease information “has benefited both the Postal Service and the lessors of postal buildings.” The Postal Service agrees that such practice has benefited lessors—but to the detriment of the Postal Service's bargaining position as lessee. It has been the Postal Service's experience that negotiations in which the lessor has access to extensive Postal Service lease information for other properties result in less-favorable economic terms for the Postal Service. In other words, the Postal Service is disadvantaged when lessors know exactly what rents, concessions, and other terms were accepted by the Postal Service for other properties in the Postal Service's lease portfolio. The circumstances surrounding the acceptance of less than optimal terms in one lease do not necessarily support the Postal Service's acceptance of similar terms in other leases. However, lessors can use the knowledge of the former to insist on the same non-beneficial terms in their leases to the detriment of the Postal Service.

Finally, Commenter B posits that without public access to the Postal Service's negotiated lease terms, insurance underwriters will have a more difficult time accurately estimating risk, causing premiums to increase. Commenter B asserts that this is especially so for “loss of rent coverage.” In theory, an increase in premiums will lead to an increase in rents. The Postal Service will not speculate on what factors impact pricing in insurance markets. However, it should be noted that insurance coverage is the responsibility of the lessor. Moreover, Postal Service leases do not require lessors to carry loss of rent coverage as this coverage solely benefits the lessor—protecting the lessor's income stream. The commercial real estate market dictates what rents are paid. While a hypothetical increase in insurance rates for lessors may somewhat increase the lessor's costs, the market will determine whether such an increase in cost can be passed on to tenants. In this case, the Postal Service does not believe that this will cause a significant increase in the rents it pays as determined by relevant commercial real estate market conditions. Regardless, even if such a hypothetical cost increase to the lessor were to trickle into the actual rents paid, the Postal Service estimates that any increase would be far offset by its improved bargaining position as a result of not publicly disclosing its lease information. As such, the Postal Service declines Commentator B's invitation to change the proposed amendments.

Commenter C submitted comments supporting the Postal Service's proposed changes to 39 CFR 265.14(b). While Commenter C recognizes the importance of the FOIA's goal of promoting transparency in government, Commenter C also underlines the importance of ensuring that the Postal Service can adequately protect third party sensitive business information. Commenter C notes that the disclosure of such information may allow an unfair advantage to a business's competitors. Moreover, Commenter C notes that businesses in the private sector would be much more hesitant to conduct business with the Postal Service if they faced uncertainty as to whether the Postal Service could protect their confidential business information from public disclosure.

The Postal Service appreciates and agrees with Commenter C. In order to effectively operate in a competitive commercial environment, the Postal Service must not only protect its own sensitive business information but must also have the ability to give its partners adequate assurances that the Postal Service can maintain the confidentiality of their information. The Postal Service believes that the edits to 39 CFR 265.14(b) achieve a balance between the goals of the FOIA and the Postal Service's ability to conduct itself in a business-like manner.

For the reasons stated in the preamble, the Postal Service amends 39 CFR chapter I as follows:

I. Background

South Carolina and Tennessee submitted infrastructure SIPs that relied on having fully-approved regional haze plans to satisfy the visibility transport provision of Clean Air Act section 110(a)(2)(D)(i)(II).1 The CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by EPA, commonly referred to as an “infrastructure SIP.” This visibility provision, known as “prong 4,” prohibits any source or other type of emissions activity in a state from emitting any air pollutant in amounts which will interfere with measures required to be included in the applicable SIP for any other state to protect visibility. Specifically, South Carolina submitted infrastructure SIPs for the 2008 8-Hour Ozone (July 17, 2012), 2010 NO2 (April 30, 2014), 2010 SO2 (May 8, 2014), and 2012 annual PM2.5 (December 18, 2015) NAAQS, and Tennessee submitted infrastructure SIPs for the 2010 NO2 (March 13, 2014), 2010 SO2 (March 13, 2014), and 2012 annual PM2.5 (December 16, 2015) NAAQS.2 However, at the time of these submissions, EPA had not fully approved South Carolina's or Tennessee's regional haze plan, as the Agency had issued limited disapprovals of these States' original regional haze plans on June 7, 2012 (77 FR 33642) for South Carolina and April 4, 2012 (77 FR 24392) for Tennessee due to these plans' reliance on CAIR. In conjunction with the limited disapprovals, EPA promulgated FIPs replacing reliance on CAIR with reliance on CSAPR to address the deficiencies in the regional haze plans for South Carolina and Tennessee. See 77 FR 33642 (June 7, 2012).

EPA conditionally approved the aforementioned infrastructure SIP submittals based on letters from South Carolina and Tennessee committing to submit SIP revisions revising their regional haze plans to replace reliance on CAIR with reliance on CSAPR.3 See 81 FR 56512 (August 22, 2016) (South Carolina) and 82 FR 27428 (June 15, 2017) (Tennessee). In accordance with these commitments to correct the deficiencies in their regional haze plans in order to obtain approval of their infrastructure SIP submittals that rely on fully-approved regional haze plans, South Carolina and Tennessee submitted SIP revisions on September 5, 2017, and November 22, 2017, respectively, to replace reliance on CAIR with reliance on CSAPR for certain regional haze requirements.

On June 4, 2018 (83 FR 25604) and June 20, 2018 (83 FR 28582), EPA published notices of proposed rulemaking (NPRMs) proposing to approve the regional haze portions of South Carolina's September 5, 2017, and Tennessee's November 22, 2017 SIP revisions, respectively; fully approve South Carolina's and Tennessee's regional haze plans; remove the regional haze FIPs addressing the deficiencies in these plans; and approve the prong 4 elements of these states' infrastructure SIP submissions. The specific details of South Carolina's September 5, 2017, and Tennessee's November 22, 2017 SIP revisions and the rationale for EPA's proposed approvals are discussed in the respective NPRMs. EPA received no relevant comments on the NPRMs for South Carolina or Tennessee.

EPA finds that the relevant portions of South Carolina's September 5, 2017, and Tennessee's November 22, 2017 SIP revisions satisfy the SO2 and nitrogen oxides (NOX) best available retrofit technology (BART) requirements; the states' reasonable progress obligations with respect to SO2 emissions from electric generating units that were previously subject to CAIR; and, in part, the requirement that the states' long-term strategies contain the measures necessary to achieve reasonable progress.4 Accordingly, EPA is approving the regional haze portions of these SIP revisions, determining that the revisions correct the deficiencies that led to EPA's limited approvals/limited disapprovals of these states' regional haze SIPs, and converting EPA's previous actions on South Carolina's and Tennessee's regional haze SIPs from limited approvals/limited disapprovals to full approvals. EPA is also removing the FIPs for South Carolina and Tennessee that replaced reliance on CAIR with reliance on CSAPR to address the limited disapprovals. With the approval of the portions of South Carolina's September 5, 2017, and Tennessee's November 22, 2017 SIP revisions related to regional haze requirements, these states' implementation plans now provide for the measures needed to ensure that their emissions do not interfere with measures required to be included in other states' plans to protect visibility. Therefore, EPA is also converting the conditional approvals to full approvals for the prong 4 portions of Tennessee's 2012 annual PM2.5, 2010 NO2, and 2010 SO2 infrastructure SIP submittals and South Carolina's 2012 annual PM2.5, 2010 NO2, 2010 SO2, and 2008 ozone infrastructure SIP submittals. All other applicable infrastructure requirements for the infrastructure SIP submissions have been or will be addressed in separate rulemakings.

These actions are not significant regulatory actions and were therefore not submitted to the Office of Management and Budget (OMB) for review.

These actions are not Executive Order 13771 regulatory actions because these actions are not significant under Executive Order 12866.

These actions do not impose an information collection burden under the provisions of the Paperwork Reduction Act, because they do not contain any information collection activities.

I certify that these actions will not have a significant economic impact on a substantial number of small entities under the RFA. These actions will not impose any requirements on small entities.

These actions do not contain any unfunded mandates as described in UMRA, 2 U.S.C. 1531-1538, and do not significantly or uniquely affect small governments. These actions impose no enforceable duty on any state, local or tribal governments or the private sector.

These actions do not have federalism implications. They will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

These actions do not have tribal implications, as specified in Executive Order 13175, in Tennessee or South Carolina. It will not have substantial direct effects on tribal governments. EPA has determined these actions do not have substantial direct effects on tribal governments because, as it relates to prong 4, these actions are not approving any specific rule, but rather determining that the approved SIPs for these states meet certain CAA requirements. As it relates to the regional haze SIPs, replacing reliance on CAIR with reliance on CSAPR has no substantial direct effects because the reliance on CSAPR for regional haze purposes in these states already existed through FIPs. The Catawba Indian Nation Reservation is located within the boundary of York County, South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120, “all state and local environmental laws and regulations apply to the [Catawba Indian Nation] and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” However, EPA has determined that the actions related to South Carolina do not have substantial direct effects on the Catawba Indian Nation for the reasons discussed above. EPA notes today's actions will not impose substantial direct costs on Tribal governments or preempt Tribal law.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. These actions are not subject to Executive Order 13045 because they do not concern an environmental health risk or safety risk.

These actions are not subject to Executive Order 13211, because they are not significant regulatory actions under Executive Order 12866.

These rulemakings do not involve technical standards.

EPA believes that these actions do not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of these actions must be filed in the United States Court of Appeals for the appropriate circuit by November 23, 2018. Filing a petition for reconsideration by the Administrator of these final rules does not affect the finality of these actions for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. These actions may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).

40 CFR part 52 is amended as follows:

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

On July 18, 2018, the EPA proposed to approve Idaho as meeting the requirement that each SIP contain adequate provisions to prohibit emissions that will contribute significantly to nonattainment or interfere with maintenance of the 2012 PM2.5 NAAQS in any other state (83 FR 33892). An explanation of the Clean Air Act requirements, a detailed analysis of the submittal, and the EPA's reasons for proposing approval were provided in the notice of proposed rulemaking, and will not be restated here. The public comment period for the proposal ended August 17, 2018.

We received two comments on the rulemaking. After reviewing the comments, we have determined that the comments are outside the scope of our proposed action and fail to identify any material issue necessitating a response. For more information, please see our memorandum included in the docket for this action.

The EPA is approving Idaho's December 23, 2015, submission certifying that the SIP is sufficient to meet the interstate transport requirements of Clean Air Act section 110(a)(2)(D)(i)(I), specifically prongs one and two, as set forth in the proposed rulemaking for this action.

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

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

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

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

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

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

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

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

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

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 23, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (See section 307(b)(2)).

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

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

On May 3, 2018, the EPA proposed to approve the state's change from a reliance on CAIR to a reliance on CSAPR to meet certain Regional Haze planning obligations; to convert the EPA's limited approval/limited disapproval of the state's Regional Haze Plan to a full approval; to approve the prong 4 elements of the state's 2008 Ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS infrastructure SIP submittals; and to remove EPA's existing regional haze FIP from 40 CFR 52.1339(c) and (d). See 83 FR 19479. The EPA received six sets of comments prior to the close of the comment period; all six sets of comments were not directly related to the action. The EPA's rationale for approving those SIP submissions, was provided in the proposal action and will not be restated here. See 83 FR 19479.

The state's submission met the public notice requirements for the Ozone infrastructure SIP submission in accordance with 40 CFR 51.102. The state held a public comment period from April 30, 2013, to June 6, 2013. The EPA provided comments on May 23, 2013, and was the only commenter. A public hearing was held on May 30, 2013. The submission satisfied the completeness criteria of 40 CFR part 51, appendix V, for all elements except 110(a)(2)(D)(i)(I)—significant contribution to nonattainment (prong 1), interfering with maintenance of the NAAQs (prong 2). The EPA published a document in the Federal Register, “Findings of Failure to Submit a Section 110 State Implementation Plan for Interstate Transport for the 2008 National Ambient Air Quality Standards for Ozone”. 1 The state was included in this finding because it had not made a complete “good neighbor” SIP submittal to meet the prong 1 and 2 elements.

I. What action is EPA taking?

On May 28, 2009, TDEC submitted a SIP revision to EPA for approval that contains changes to Tennessee's SIP-approved major NSR permitting regulations at Tennessee Air Pollution Control Regulations (TAPCR) 1200-3-9-.01—“Construction Permits,” including the adoption of federal requirements and the modification of certain other provisions. In this action, EPA is approving the portions of this SIP submission that make changes to the definitions of “baseline actual emissions” in Tennessee's SIP-approved Prevention of Significant Deterioration (PSD) and nonattainment NSR (NNSR) regulations at TAPCR 1200-3-9-.01(4)—“Prevention of Significant Air Quality Deterioration” and 1200-3-9-.01(5)(b)—“Nonattainment Areas,” respectively. Tennessee's NSR regulations at TAPCR 1200-3-9-.01 were last revised in the SIP on July 25, 2013 (78 FR 44886).

On June 20, 2018 (83 FR 28577), EPA published a notice of proposed rulemaking (NPRM) proposing to approve the portions of Tennessee's SIP revision described in Section II, below. The details of Tennessee's SIP revision and the rationale for EPA's actions are further explained in the NPRM. EPA received no adverse comments on the proposed approval.

Tennessee's May 28, 2009, submittal revises the SIP-approved definitions of “baseline actual emissions” at TAPCR 1200-3-9-.01(4)(b)(45)(i)(III) and 1200-3-9-.01(4)(b)(45)(ii)(IV) for PSD, and 1200-3-9-.01(5)(b)(1)(xlvii)(I)III and 1200-3-9-.01(5)(b)(1)(xlvii)(II)IV for NNSR. The revised definitions read as follows (strikethrough indicates language removed from the SIP in this action and underlined text indicates language added):

The changes mean that a project involving multiple emissions units is no longer subject to major NSR permitting under the revised definitions if it meets the limiting criteria identified above for the use of pollutant-specific baseline periods. EPA's major NSR rules do not contain such limiting criteria. Under the federal major NSR rules, a state must adopt the federal definitions into its SIP unless the state's definitions are more stringent than, or at least as stringent as, the federal definitions. See 40 CFR 51.165(a)(1) and 51.166(b). EPA finds that Tennessee's changes to its SIP-approved definitions of “baseline actual emissions” are more stringent than the federal definitions given the limiting criteria and are therefore allowable changes to Tennessee's SIP-approved NSR program pursuant to 40 CFR 51.165(a)(1) and 51.166(b).

Section 110(l) of the CAA prohibits EPA from approving a SIP revision that would interfere with any applicable requirement concerning attainment and RFP (as defined in section 171), or any other applicable requirement of the CAA. EPA has determined that the changes to the Tennessee SIP, as described above, would not violate section 110(l) for the following reasons: (1) Tennessee's changes will maintain the State program at a more stringent level than the federal NSR requirements; 4 (2) the State is currently attaining all of the NAAQS except for the 2010 1-hour sulfur dioxide (SO2) NAAQS in a portion of Sullivan County; 5 and (3) any projects that would not qualify as major modifications under the revised definitions would still be subject to the preconstruction review and permitting requirements of Tennessee's SIP-approved minor NSR regulations at TAPCR 1200-3-9-.01(1). For a more complete discussion, see the NPRM.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the portions of TAPCR 1200-3-9-.01—“Construction Permits,” 6 which specifically revise the definitions of “baseline actual emissions” in Tennessee's SIP-approved PSD and NNSR regulations as discussed in Section II above,7 state effective April 24, 2013. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.8

EPA is approving the changes to the definitions of “baseline actual emissions” in Tennessee's SIP-approved PSD and NNSR regulations at TAPCR 1200-3-9-.01(4)—“Prevention of Significant Air Quality Deterioration” and 1200-3-9-.01(5)(b)—“Nonattainment Areas,” respectively, because they are consistent with the CAA and federal regulations.

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

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 23, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

On September 16, 2015, the State of West Virginia via the West Virginia Department of Environmental Protection (WVDEP) submitted a revision to its SIP to update its regional haze plan and to meet the visibility protection requirement in section 110(a)(2)(D)(i)(II) of the CAA for the 2010 SO2 NAAQS. EPA is also addressing as part of this rulemaking action two SIP revisions submitted by West Virginia on October 16, 2014 and May 12, 2017 addressing the visibility protection requirement in section 110(a)(2)(D)(i)(II) for the 2010 SO2 and 2012 PM2.5 NAAQS, respectively.

On March 23, 2012, EPA finalized a limited approval and a limited disapproval of a West Virginia SIP revision submitted on June 18, 2008 addressing regional haze program requirements.1 The limited disapproval of this SIP revision was based upon West Virginia's reliance on CAIR as an alternative to best available retrofit technology (BART) and as a measure for reasonable progress. On June 7, 2012, EPA promulgated a FIP for West Virginia that replaced reliance on CAIR with reliance on CSAPR to meet BART and reasonable progress requirements, to address the deficiency in the State's CAIR-dependent regional haze SIP.2 Consequently, this particular aspect of West Virginia's regional haze requirements was satisfied by EPA's issuance of a FIP (hereafter referred to as partial Regional Haze FIP).

On September 16, 2015, the State of West Virginia submitted a SIP revision to change its present reliance from CAIR to CSAPR for the purpose of meeting BART for regional haze and addressing reasonable progress requirements, thereby eliminating West Virginia's need for the partial Regional Haze FIP. The SIP revision was also submitted to meet the outstanding visibility protection requirement under section 110(a)(2)(D)(i)(II) of the CAA for the 2010 SO2 NAAQS, also known as prong 4. The prong 4 requirement under the CAA requires that a state's SIP include adequate provisions prohibiting any source or other type of emissions activity in one state from interfering with measures to protect visibility required to be included in another state's overall SIP. One way in which prong 4 can be satisfied is if a state has a fully approved regional haze program within its SIP. The September 16, 2015 SIP revision amends the portion of West Virginia's October 16, 2014 infrastructure SIP submission for the 2010 SO2 NAAQS addressing prong. On May 12, 2017, West Virginia submitted another SIP revision addressing infrastructure requirements under section 110(a)(2) for the 2012 PM2.5 NAAQS, including prong 4 for visibility protection. The May 12, 2017 relies on the September 16, 2015 SIP revision to meet prong 4.

On June 14, 2018 (83 FR 27734), EPA published a notice of proposed rulemaking (NPR) addressing West Virginia's three SIP revisions submitted to address certain regional haze requirements and the visibility provisions of section 110(a)(2)(D)(i) of the CAA for the 2010 SO2 and the 2012 PM2.5 NAAQS. In the NPR, EPA proposed to take the following actions: (1) To approve West Virginia's September 16, 2015 SIP revision that changed West Virginia's reliance on CAIR to reliance on CSAPR for certain elements of West Virginia's regional haze program; (2) to convert EPA's limited approval/limited disapproval 3 of West Virginia's regional haze program to a full approval; (3) to remove the partial Regional Haze FIP for West Virginia that addressed the deficiencies associated with the Agency's prior limited disapproval; and (4) to approve portions of West Virginia's October 16, 2014 and May 12, 2017 infrastructure SIP revisions for the 2010 SO2 and the 2012 PM2.5 NAAQS, respectively, addressing the visibility protection provisions of section 110(a)(2)(D)(i) of the CAA.

The September 16, 2015 SIP revision from West Virginia corrects the deficiencies identified by EPA in the June 7, 2012 limited disapproval of West Virginia's regional haze program, by replacing reliance on CAIR with reliance on CSAPR in its regional haze SIP. Specifically, the September 16, 2015 SIP submittal changes the West Virginia regional haze program to specify that the State is relying on CSAPR in its regional haze SIP to meet the best available retrofit technology (BART) for certain electric generating units (EGUs) and reasonable progress requirements to support visibility improvement progress goals for West Virginia's Class I areas, Dolly Sods and Otter Creek Wilderness Areas.

As did EPA's partial Regional Haze FIP for West Virginia, the State's September 16, 2015 regional haze SIP revision relies on CSAPR to address the deficiencies identified in EPA's June 2012 limited disapproval of West Virginia's regional haze SIP. As discussed in the NPR in greater detail, EPA finds that this SIP revision satisfies West Virginia's BART requirements for its EGUs and reasonable progress requirements and therefore allows for a fully approvable regional haze program. With today's final approval, the State has a SIP in place to address all of its regional haze requirements. EPA finds that West Virginia's reliance in its SIP upon CSAPR for certain BART and reasonable progress requirements is in accordance with the CAA and regional haze rule requirements (including 40 CFR 51.308(e)(2)), as EPA has recently affirmed that CSAPR remains an appropriate alternative to source-specific BART controls for EGUs participating in CSAPR.4 Because the deficiencies in West Virginia's regional haze SIP associated with the State's reliance on CAIR that were identified in EPA's prior limited disapproval are addressed through West Virginia's revised SIP, the Agency is now fully approving the State's regional haze SIP.

Additionally, EPA finds that the prong 4 portions of West Virginia's infrastructure SIP revision submittals for the 2010 SO2 NAAQS and the 2012 PM2.5 NAAQS, respectively, are fully approvable as West Virginia now has a fully approved regional haze SIP.5 The specific details of West Virginia's September 16, 2015 SIP revision and the rationale for EPA's approval of the three SIP revisions are discussed in the NPR (83 FR 27734, June 14, 2018) and will not be restated here.

EPA received a total of three comments on the June 2018 NPR. Two of those did not concern any of the specific issues raised in the NPR, nor did they address EPA's rationale for the proposed approval of West Virginia's SIP revision submittals; therefore, EPA is not responding to those comments. EPA did receive one relevant comment. That comment, and EPA's response are discussed below. All comments received are included in the docket for this rulemaking action.

EPA received an anonymous comment considered to be adverse and relevant to this rulemaking action. The commenter states that EPA did not act on West Virginia's SIP revisions by the required statutory deadline of 12 months after each of the SIP revisions became complete. Commenter also asserts that by EPA not approving West Virginia's SIP revisions timely, and consequently the underlying requirements not being federally enforceable for nearly 4 years, human health and the environment have been negatively impacted. Commenter questions why EPA has taken so long to act on these SIP revisions and requests an explanation of how visibility was protected in the last 3 to 4 years when the SIP revisions were deficient and unapprovable.

Response: EPA acknowledges that it missed the statutory deadlines to take action on the three West Virginia SIP revisions addressed in this rulemaking action. However, at this time, EPA is taking final action on these SIP revisions, and by doing so it would meet all such outstanding obligations under the CAA. EPA disagrees with commenter's assertion that delayed action on the three West Virginia SIP revisions concerning visibility protection has impacted human health and the environment. As explained in the NPR, West Virginia's regional haze requirements addressing visibility protection have been satisfied since 2012 by our limited approval of portions of West Virginia's June 18, 2008 comprehensive regional haze SIP revision and by EPA's promulgation of the partial Regional Haze FIP addressing BART for EGUs. EPA's limited approval of West Virginia's regional haze SIP and the partial Regional Haze FIP are federally enforceable and have been since 2012, and they have addressed fully West Virginia's regional haze obligations under CAA section 169A and 40 CFR 51.308. As discussed in the NPR, EPA finalized a limited approval and limited disapproval of West Virginia's June 18, 2008 SIP revision on March 23, 2012, disapproving only the portions of the SIP revision where West Virginia relied on CAIR as an alternative to BART for EGUs and as a measure for reasonable progress, since CAIR had been remanded to EPA by 2012. On June 7, 2012, EPA had promulgated partial Regional Haze FIPs for states that had relied on CAIR to replace reliance on CAIR with reliance on CSAPR for haze requirements, including West Virginia.

Thus, EPA's action on the portions of West Virginia's infrastructure SIP revisions for the 2010 SO2 and the 2012 PM2.5 NAAQS addressing visibility protection (prong 4) did not have any impact on implementation of required regional haze measures, given that EPA had already limitedly approved West Virginia's regional haze SIP and promulgated the partial Regional Haze FIP for BART and regional progress purposes for EGUs.

Because West Virginia was already subject to a FIP addressing West Virginia's reliance on CAIR for certain regional haze elements, EPA's disapproval of the State's infrastructure elements for visibility protection (prong 4) under either the 2010 SO2 or the 2012 PM2.5 NAAQS: (1) would not have imposed any mandatory sanctions under section 179 of the CAA, as neither infrastructure nor regional haze SIPs are subject to CAA 179 sanctions; and (2) would not have subjected EPA to any additional FIP duties, because a FIP addressing the underlying deficiency (i.e. the partial Regional Haze FIP) was already in place. Thus, earlier action by EPA on West Virginia's prong 4 SIP revisions for the 2010 SO2 or the 2012 PM2.5 NAAQS would not have further protected public health or the environment.

EPA is taking the following final actions: (1) Approving West Virginia's September 16, 2015 SIP revision that changes the State's reliance on CAIR to reliance on CSAPR for certain elements of West Virginia's regional haze program; (2) converting EPA's limited approval/limited disapproval of West Virginia's regional haze program to a full approval; (3) withdrawing the partial Regional Haze FIP provisions that address the limited disapproval of West Virginia's regional haze program; and (4) approving the portions of West Virginia's October 16, 2014 infrastructure SIP revision for the 2010 SO2 NAAQS and the May 12, 2017 infrastructure SIP revision for the 2012 PM2.5 NAAQS addressing the visibility provisions of CAA section 110(a)(2)(D)(i) for each NAAQS.

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities because small entities are not subject to the requirements of this rule. 83 FR 27734 (June 14, 2018).

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, will result from this action.

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

This action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. There are no Indian reservation lands in West Virginia. Thus, Executive Order 13175 does not apply to this rule.

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

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

Pursuant to CAA section 307(d)(1)(B), this action is subject to the requirements of CAA section 307(d), as it revises a FIP under CAA section 110(c).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action, addressing West Virginia's regional haze requirements and visibility protection for the 2010 SO2 and 2012 PM2.5 NAAQS and the withdrawal of the West Virginia partial Regional Haze FIP, must be filed in the United States Court of Appeals for the appropriate circuit by November 23, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).

40 CFR part 52 is amended as follows:

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

On March 26, 2018 (83 FR 12917), the EPA published a Notice of Proposed Rulemaking (NPRM) that proposed approval of NH DES's amended rules in Env-A 1800, “Asbestos Management and Control,” effective as of May 5, 2017, as a partial rule substitution for the Asbestos NESHAP, for all sources in New Hampshire except for inactive waste disposal sites not operated after July 9, 1981.

Under CAA section 112(l), the EPA may approve state or local rules or programs to be implemented and enforced in place of certain otherwise applicable Federal rules, emissions standards, or requirements. The Federal regulations governing EPA's approval of state and local rules or programs under section 112(l) are located at 40 CFR part 63, subpart E. See 58 FR 62262 (November 26, 1993), as amended by 65 FR 55810 (September 14, 2000). Under these regulations, a state air pollution control agency has the option to request EPA's approval to substitute a state rule for the applicable Federal rule (e.g., the National Emission Standards for Hazardous Air Pollutants). Upon approval by the EPA, the state agency is authorized to implement and enforce its rule in place of the Federal rule, and the state rule becomes federally enforceable in that state.

The EPA first promulgated standards to regulate asbestos emissions on April 6, 1973. See 38 FR 8826. These standards have since been amended several times and re-codified in 40 CFR part 61, subpart M, “National Emission Standard for Asbestos” (Asbestos NESHAP). On January 11, 2013, the EPA approved the New Hampshire regulation Env-A 1800 titled “Asbestos Management and Control” (Asbestos Management and Control Rule) as a rule adjustment for the Asbestos NESHAP, applicable to all sources in New Hampshire except for inactive waste disposal sites not operated after July 9, 1981. See 78 FR 2333.1 These inactive disposal sites are regulated by other State rules that were also approved by the EPA on January 11, 2013. See id. 2

In a letter dated July 21, 2017, supplemented on August 21, 2017, September 21, 2017, and March 1, 2018, NH DES requested approval of its amended rules pertaining to asbestos management in New Hampshire. Specifically, NH requested approval of Parts Env-A 1801-1807 and Appendices B, C and D of Env-A 1800 titled “Asbestos Management and Control,” 3 effective as of May 5, 2017.

The details of NH's submission and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here.

We received a number of anonymous comments on the proposed action that were not germane to the proposal and/or did not specify what changes should be made to our proposed approval of New Hampshire's Asbestos Management and Control Rule. Many of the comments identified and pertained to issues that are outside the scope of, and do not reference, the proposed action. Therefore, the EPA will not provide any further specific responses to these comments. The EPA did however receive one comment which could be construed to refer to the proposed approval of New Hampshire's Asbestos Management and Control Rule.

Comment: A single anonymous comment discussed EPA's use of certain data relating to greenhouse gas emissions. In this context, the comment also stated that “The Rule created potentially unduly burdensome requirements [sic] Given the extremely limited pollutant loadings and relative high costs, according to EPA's own analysis, the requirements appear to be ripe for substantial reduction or elimination this [sic] entire subcategory would be excluded by rule given the de minimis amount of pollution.”

Response: The EPA believes this comment is not relevant as the proposed action does not use data relating to or regulate greenhouse gas emissions. Read in context, the commenter's reference to “[t]he Rule” appears to refer to a different, unspecified action relating to greenhouse gas emissions. However, to the extent that the reference is to the proposed rule we are finalizing in this action, the EPA disagrees with the comment because this action merely approves the State's requirements in place of Federal requirements and does not impose additional requirements beyond those imposed by state law.

EPA is also revising certain regulations that incorporate by reference New Hampshire rules regulating inactive asbestos disposal sites not operated after July 9, 1981 (“Inactive Asbestos Disposal Rules”).4 These revisions are minor, non-substantive clarifications to 40 CFR 63.14(l)(6)(i) and 63.99(a)(30)(iii) and (a)(30)(iii)(A). Therefore, EPA is promulgating these revisions without notice and comment. Section 553(b)(B) of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for finalizing this portion of the rule without prior proposal and opportunity for comment because such notice and opportunity for comment is unnecessary as these revisions correct minor, non-substantive, clerical errors.

EPA published a direct final rule approving the Inactive Asbestos Disposal Rules on January 11, 2013. See 78 FR 2333. We received no adverse comments. That rule correctly incorporated the State's Inactive Asbestos Disposal Rules by reference in both 40 CFR parts 61 and 63. In part 63, EPA codified its approval at 40 CFR 63.99(a)(30)(iii) and (a)(30)(iii)(A), and incorporated the State rule by reference at 40 CFR 63.14(d)(5)(i). Subsequently, on February 27, 2014, EPA, consistent with the then-policy of the Office of Federal Register, published a final rule revising 40 CFR 63.14 “to arrange the materials that are incorporated by reference in alpha-numeric order.” See 79 FR 11233. As a result, the Inactive Asbestos Disposal Rules were moved from paragraph (d)(5)(i) to paragraph (k)(6). Subsequently, in a rulemaking on September 18, 2015, EPA redesignated paragraph (k) as paragraph (l). See 80 FR 56699. These revisions also inadvertently created two clerical errors. First, EPA amended the IBR text, now at 40 CFR 63.14(l)(6), to refer to earlier versions of the State's Inactive Asbestos Disposal Rules, which EPA had approved in prior actions. Second, EPA neglected to amend the text at 40 CFR 63.99(a)(30)(iii), which continues to refer to 40 CFR 63.14(d). This action undoes both inadvertent errors. EPA revises 40 CFR 63.14(l)(6) to refer to the more recent version of the Inactive Asbestos Disposal Rules, and in substance, reverts to the text as originally and correctly promulgated in our 2013 approval. We also update the cross-reference at 40 CFR 63.99(a)(30)(iii) to refer to the correct provision consistent with the re-ordering and redesignating performed in the 2014 and 2015 rules.

Providing notice and comment for these revisions is unnecessary for three reasons. First, as explained above, this is a minor technical correction that simply undoes a subsequent clerical error and reverts the regulatory text back to its original form. Second, this action does not subject any new or existing parties to additional regulation, or otherwise alter the regulatory scheme. The relevant sources in New Hampshire remain subject to the same State Inactive Asbestos Disposal Rules, regardless of this correction. Third, this action does not affect the federal enforceability of the Inactive Asbestos Disposal Rules. Notwithstanding the clerical error introduced in the 2014 update, the Inactive Asbestos Disposal Rules remain federally enforceable under the existing regulations, because they are correctly incorporated by reference under part 61. See 40 CFR 61.04(c)(1)(i), 61.18(e)(1)(i). EPA properly promulgated those provisions in our 2013 approval, and they were not altered by the 2014 and 2015 updates that introduced the clerical error into the incorporation by reference in 40 CFR 63.14.

In addition, these revisions make additional, clerical corrections to 40 CFR 63.99(a)(30)(iii) and (a)(30)(iii)(A), to conform to the current policy of the Office of the Federal Register regarding citation format and placement of references. In 40 CFR 63.99(a)(30)(iii), we are changing the phrase “New Hampshire Regulations Applicable to Hazardous Air Pollutants” to “New Hampshire Regulations Chapter Env-Sw 2100: Management and Control of Asbestos Disposal Sites Not Operated after July 9, 1981, effective February 16, 2010.” This duplicates the precise citation to the State's regulations that is already present in paragraph (a)(30)(iii)(A). We are also changing the phrase “as specified in” to “see.” In 40 CFR 63.99(a)(30)(iii)(A), we are changing the phrase “material incorporated into the New Hampshire Regulations at Env-Sw 2100” to “material incorporated from Chapter Env-Sw 2100.” In addition, we are moving the reference to the effective date of the Inactive Asbestos Disposal Rules from paragraph (a)(30)(iii)(A) to paragraph (a)(30)(iii). We are also changing the word “pertains” to “pertaining.” See the full regulatory text of these paragraphs later in this notice. In addition, a strikeout display of the revised version against the existing version is provided in the public docket. These revisions have no legal effect, and therefore notice-and-comment is also unnecessary.

The EPA is approving NH DES's amended rules in Parts Env-A 1801-1807 and Appendices B, C, and D of Env-A 1800, “Asbestos Management and Control,” effective as of May 5, 2017 (excluding the following provisions: 1801.02(e), 1801.07, 1802.02, 1802.04, 1802.07-1802.09, 1802.13, 1802.15-1802.17, 1802.25, 1802.31, 1802.37, 1802.40, 1802.44, and 1803.05-1803.09) as a partial rule substitution for the Asbestos NESHAP, for all sources in New Hampshire except for inactive waste disposal sites not operated after July 9, 1981. In addition, the EPA is correcting clerical errors in our regulations that incorporate by reference New Hampshire rules regulating inactive waste disposal sites.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of New Hampshire's Env-A 1800, “Asbestos Management and Control,” effective as of May 5, 2017, Parts Env-A 1801-1807, Appendices B, C, and D; excluding the following provisions: 1801.02(e), 1801.07, 1802.02, 1802.04, 1802.07-1802.09, 1802.13, 1802.15-1802.17, 1802.25, 1802.31, 1802.37, 1802.40, 1802.44, and 1803.05-1803.09. An attached letter from Clark B. Freise, Assistant Commissioner, Department of Environmental Services, State of New Hampshire, to David J. Alukonis, Interim Director, Office of Legislative Services, dated June 23, 2017, certifies that the copy of the chapter Env-A 1800 is the official version of this rule. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at the EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the CAA, the Administrator has the authority to approve section 112(l) submissions that comply with the provisions of the Act and applicable Federal regulations. In reviewing section 112(l) submissions, EPA's role is to approve state choices, provided that they meet the criteria and objectives of the CAA and of EPA's implementing regulations. Accordingly, this action merely approves the State's request as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

• Is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

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

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

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

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

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

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

In addition, this rule is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA. It also does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). And it does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the EPA is not approving the submitted rule to apply in Indian country located in the State, and because the submitted rule will not impose substantial direct costs on Tribal governments or preempt Tribal law.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 23, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review, or extend the time within which a petition for judicial review may be filed, or postpone the effectiveness of the action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Title 40 CFR parts 61 and 63 are amended as follows:

The site to be deleted from the NPL is: Dorney Road Landfill Superfund Site, Longswamp and Upper Macungie Townships, in Berks and Lehigh Counties, Pennsylvania. A Notice of Intent to Delete for this Site was published in the Federal Register (83 FR 33177) on July 17, 2018.

The closing date for comments on the Notice of Intent to Delete was August 16, 2018. No adverse or Site related public comments were received during the comment period. Therefore, no responsiveness summary was 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.

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

On April 25, 2018, VA published a proposed rule in the Federal Register (83 FR 17979) which announced VA's intent to amend regulations for VAAR Case RIN 2900-AQ04 (parts 829, 846, and 847). In particular, this final rule revises the 829 authorities to include the applicable U.S. code citations where the Secretary of the Treasury has exempted spirits and alcohol purchases by the Federal government, pursuant to 26 U.S.C. 5214(a)(2), 26 U.S.C. 5271, and 26 U.S.C. 7510; removes section 829.202-70, Tax exemptions for alcohol products, updates and moves it to the VAAM; adds a new section to provide the legislative authorities for withdrawal of distilled spirits from bonded premises free of tax or without payment of tax by, and for the use of, the VA; removes section 829.302, Application of State and local taxes to the Government, to the VAAM; removes 829.302-70, Purchases made from patients' funds, and the clause it prescribes, 852.229-70, Sales or Use Taxes.

In part 846, Quality Assurance, this rule adds a definition of “rejected goods” as used in a revised clause; revises subpart 846.3 to prescribe clauses 852.236-74, Inspection of Construction, 852.246-71, Rejected Goods, 852.246-72, Frozen Processed Foods, 852.246-73, Noncompliance with Packaging, Packing, and/or Marking Requirements, and 852.246-76, Purchase of Shellfish; it reduces subpart 846.4 to three sections, 846.408-70, Inspection of subsistence, 846.470, Use of commercial organizations for inspections and grading services, and 846.471, Food service equipment; it removes a warranty clause because there are sufficient FAR warranty clauses that could be used; removes policy requiring USDA inspections for subsistence since the Department of Agriculture no longer requires this type of inspection; removes coverage requiring inspection of repairs for properties under the Loan Guaranty Program and Direct Loan Programs, as such sections are unnecessary given that a private contractor performs such inspection and repair functions on VA's behalf; and provides coverage to state VA's policy regarding guarantee period services.

This rule adds guidance in part 847 to contracting officers for VA transportation contracts and transportation-related services and subsequent payments on those contracts; provides guidance on contractual requirements for insurance provisions and contractor personnel performing on VA transportation contracts; provides consignment instructions; and adds a clause providing packing instructions to ensure acceptance by common carriers and safe delivery at destination.

This rule also removes all remaining sections of part 870 as the guidance included therein was either moved to other parts, out of date, or duplicative of the FAR.

VA provided a 60-day comment period for the public to respond to the proposed rule. The comment period for the proposed rule ended on June 25, 2018 and VA received no comments. This document adopts as a final rule the proposed rule published in the Federal Register on April 25, 2018, with minor formatting and/or grammatical edits. This final rule has Federal Register administrative format changes in the amendatory text which make no substantive text changes at the affected sections.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal Governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal Governments or on the private sector.

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

This final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule will generally be small business neutral. The overall impact of the rule will be of benefit to small businesses owned by Veterans or service-disabled Veterans as the VAAR is being updated to remove extraneous procedural information that applies only to VA's internal operating procedures. VA is merely adding existing and current regulatory requirements to the VAAR and removing any guidance that is applicable only to VA's internal operation processes or procedures. VA estimates no cost impact to individual businesses will result from these rule updates. This rulemaking does not change VA's policy regarding small businesses, does not have an economic impact to individual businesses, and there are no increased or decreased costs to small business entities. On this basis, the final rule will not have an economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, under 5 U.S.C. 605(b), this regulatory action is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Executive Orders (E.O.) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 12866, Regulatory Planning and Review defines “significant regulatory action” to mean any regulatory action that is likely to result in a rule that may: “(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.”

VA has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action, and it has been determined not be a significant regulatory action under E.O. 12866 because it does not raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.

VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm by following the link for VA Regulations Published from FY 2004 Through Fiscal Year to Date. This final rule is not subject to the requirements of E.O. 13771 because this final rule is expected to result in no more than de minimis costs.

The Secretary of Veterans Affairs approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Wilkie, Secretary, Department of Veterans Affairs, approved this document on August 24, 2018, for publication.

For the reasons set out in the preamble, VA amends 48 CFR parts 829, 846, 847, 852, and 870 as follows:

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

The annual apportionment of the 2018 Pacific cod total allowable catch (TAC) allocated to catcher/processors using pot gear in the BSAI is 2,720 metric tons (mt) as established by the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018).

In accordance with § 679.20(d)(1)(iii), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the annual apportionment of the 2018 Pacific cod TAC allocated as a directed fishing allowance to catcher/processors using pot gear in the BSAI will soon be reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by pot catcher/processors in the BSAI. While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for Pacific cod by pot catcher/processors in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 18, 2018.

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

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