Federal Register Vol. 83, No.188,

Federal Register Volume 83, Issue 188 (September 27, 2018)

Page Range48703-48904
FR Document

83_FR_188
Current View
Page and SubjectPDF
83 FR 48903 - National Hunting and Fishing Day, 2018PDF
83 FR 48859 - 60-Day Notice of Proposed Information Collection: HUD Technical Assistance AssessmentPDF
83 FR 48861 - 60-Day Notice of Proposed Information Collection: Contractor's Requisition-Project Mortgages; HUD-92448PDF
83 FR 48787 - Hours of ServicePDF
83 FR 48861 - 60-Day Notice of Proposed Information Collection: Personal Financial and Credit StatementPDF
83 FR 48817 - Clean Air Act Operating Permit Program; Petition for Objection to State Operating Permit for the Phillips 66 San Francisco RefineryPDF
83 FR 48817 - Clinical Laboratory Improvement Advisory Committee (CLIAC); MeetingPDF
83 FR 48809 - Privacy Act of 1974; System of RecordsPDF
83 FR 48869 - Notice of Lodging of Proposed Consent Decree Under the Clean Air ActPDF
83 FR 48884 - Distillate Capital Partners LLC, et al.PDF
83 FR 48795 - Submission for OMB Review; Comment RequestPDF
83 FR 48798 - Meeting of the Advisory Committee on Commercial Remote SensingPDF
83 FR 48896 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Multiple FinCEN Information Collection RequestsPDF
83 FR 48895 - Agency Information Collection Activities; Proposed Collection; Comment Request; Generic Clearance for Meaningful Access Information CollectionsPDF
83 FR 48868 - Bulk Manufacturer of Controlled Substances Application: Absolute Standards, Inc.PDF
83 FR 48867 - Bulk Manufacturer of Controlled Substances Application: Nanosyn, Inc.PDF
83 FR 48863 - Notice of Availability of the Proposed Notice of Sale for Gulf of Mexico Outer Continental Shelf Oil and Gas Region-Wide Lease Sale 252PDF
83 FR 48869 - Privacy Act of 1974; System of RecordsPDF
83 FR 48799 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to U.S. Navy's Office of Naval Research Arctic Research ActivitiesPDF
83 FR 48898 - VA Voluntary Service National Advisory Committee, Notice of MeetingsPDF
83 FR 48811 - Combined Notice of Filings #1PDF
83 FR 48797 - Utility Scale Wind Towers From the Socialist Republic of Vietnam: Notice of Rescission of Antidumping Duty Administrative Review; 2017-2018PDF
83 FR 48797 - Utility Scale Wind Towers From the People's Republic of China: Notice of Rescission of Antidumping Duty Administrative Review; 2017-2018PDF
83 FR 48894 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Multiple IRS Information Collection RequestsPDF
83 FR 48721 - General Technical, Organizational, Conforming, and Correcting Amendments to the Federal Motor Carrier Safety RegulationsPDF
83 FR 48813 - Lake Upchurch Power, Inc., Lake Upchurch Dam Preservation Association, Inc.; Notice of Transfer of ExemptionPDF
83 FR 48815 - Notice of Complaint; Louisiana Public Service Commission v. Entergy Services, Inc., Entergy Arkansas, Inc., Entergy Louisiana, LLC, Entergy Mississippi, Inc., Entergy New Orleans, LLC, Entergy Texas, Inc.PDF
83 FR 48809 - Winooski Hydroelectric Company; Notice of Intent To File License Application, Filing of Pre-Application Document, and Approving Use of the Traditional Licensing ProcessPDF
83 FR 48815 - EasTex TransCo, LLC; Notice of Petition for Declaratory OrderPDF
83 FR 48815 - Consumers Energy Company and DTE Electric Company; Notice of Availability of Environmental AssessmentPDF
83 FR 48748 - Safety Zone; The Gut, South Bristol, MEPDF
83 FR 48897 - Enhanced-Use Lease of the U.S. Department of Veterans Affairs Real Property for the Development of a Permanent Supportive Housing Facility at the Clement J. Zablocki VA Medical Center in Milwaukee, WisconsinPDF
83 FR 48810 - Notice of Intent To File License Application, Filing of Pre-Application Document (PAD), Commencement of Pre-Filing Process, and Scoping; Request for Comments on the PAD and Scoping Document, and Identification of Issues and Associated Study Requests; Brookfield White Pine Hydro LLC & Errol Hydroelectric Co., LLCPDF
83 FR 48812 - Georgia Power Company; Notice of Modification of Procedural Schedule and Waiver of the Commission's Regulatory Deadline for Scoping and Environmental Site ReviewPDF
83 FR 48813 - Commission Information Collection Activities (FERC-725); Comment Request; Extension September 21, 2018PDF
83 FR 48779 - Broker and Freight Forwarder Financial ResponsibilityPDF
83 FR 48793 - Notice of Intent To Request Renewal of a Currently Approved Information CollectionPDF
83 FR 48863 - Uncoated Groundwood Paper From CanadaPDF
83 FR 48714 - Drawbridge Operation Regulation; Newark Bay, Newark, NJPDF
83 FR 48715 - Drawbridge Operation Regulation; Hackensack River, Jersey City, NJPDF
83 FR 48838 - Agency Information Collection Activities: General DeclarationPDF
83 FR 48837 - Agency Information Collection Activities: Customs DeclarationPDF
83 FR 48809 - Meeting of the Board of Visitors of Marine Corps UniversityPDF
83 FR 48711 - Obstetrical and Gynecological Devices; Reclassification of Single-Use Female Condom, To Be Renamed Single-Use Internal CondomPDF
83 FR 48893 - Submission for OMB Review Comment RequestPDF
83 FR 48825 - Public Availability of Lists of Retail Consignees To Effectuate Certain Human and Animal Food Recalls; Draft Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
83 FR 48824 - Coronary Drug-Eluting Stents-Nonclinical and Clinical Studies and Companion Guidance Document; Draft Guidance for Industry and Food and Drug Administration Staff; Availability; Reopening of the Comment PeriodPDF
83 FR 48875 - Approval of Special Withdrawal Liability Rules: Alaska Electrical Pension Plan of the Alaska Electrical Pension FundPDF
83 FR 48819 - Agency Information Collection Activities; Proposed Collection; Comment Request; Financial Disclosure by Clinical InvestigatorsPDF
83 FR 48822 - Agency Information Collection Activities; Proposed Collection; Comment Request; Assessment of Combination Product Review PracticesPDF
83 FR 48874 - Proposal Review Panel for International Science and Engineering; Notice of MeetingPDF
83 FR 48873 - Advisory Committee for Polar Programs; Notice of MeetingPDF
83 FR 48868 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Currently Approved Collection: Records Modification Form (FD-1115)PDF
83 FR 48826 - Fee for Using a Rare Pediatric Disease Priority Review Voucher in Fiscal Year 2019PDF
83 FR 48703 - Airworthiness Directives; Rolls-Royce plc Turbofan EnginesPDF
83 FR 48898 - Agency Information Collection Activity Under OMB Review: Notice of Lapse, Notice of Past Due PaymentPDF
83 FR 48897 - Agency Information Collection Activity: VA Educational Assistance Program FeedbackPDF
83 FR 48850 - Virginia; Emergency and Related DeterminationsPDF
83 FR 48841 - Hawaii; Emergency and Related DeterminationsPDF
83 FR 48840 - Alaska; Major Disaster and Related DeterminationsPDF
83 FR 48854 - South Carolina; Emergency and Related DeterminationsPDF
83 FR 48851 - Hawaii; Amendment No. 2 to Notice of an Emergency DeclarationPDF
83 FR 48845 - California; Amendment No. 2 to Notice of a Major Disaster DeclarationPDF
83 FR 48854 - Iowa; Major Disaster and Related DeterminationsPDF
83 FR 48840 - Montana; Major Disaster and Related DeterminationsPDF
83 FR 48853 - Commonwealth of the Northern Mariana Islands; Emergency and Related DeterminationsPDF
83 FR 48845 - Havasupai Tribe; Major Disaster and Related DeterminationsPDF
83 FR 48839 - North Carolina; Amendment No. 1 to Notice of a Major Disaster DeclarationPDF
83 FR 48856 - North Carolina; Emergency and Related DeterminationsPDF
83 FR 48858 - Extension of Agency Information Collection Activity Under OMB Review: TSA Airspace Waiver ProgramPDF
83 FR 48855 - Agency Information Collection Activities: Proposed Collection; Comment Request; Disaster Assistance RegistrationPDF
83 FR 48856 - Changes in Flood Hazard DeterminationsPDF
83 FR 48841 - Changes in Flood Hazard DeterminationsPDF
83 FR 48719 - Suspension of Community EligibilityPDF
83 FR 48848 - Changes in Flood Hazard DeterminationsPDF
83 FR 48846 - Proposed Flood Hazard DeterminationsPDF
83 FR 48851 - Proposed Flood Hazard DeterminationsPDF
83 FR 48874 - In the Matter of Crow Butte Resources, Inc. (Marsland Expansion Area); Amended Notice of Hearing (Correcting Facsimile Transmission Number in Notice of Evidentiary Hearing and Opportunity To Provide Oral, Written, and Audio-Recorded Limited Appearance Statements)PDF
83 FR 48865 - Certain Dental Ceramics, Products Thereof, and Methods of Making the Same; Commission Decision To Review in Part a Final Initial Determination Finding No Violation of Section 337; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; Extension of the Target DatePDF
83 FR 48765 - Air Plan Approval; New Hampshire; Transport Element for the 2010 Sulfur Dioxide National Ambient Air Quality StandardPDF
83 FR 48895 - Agency Information Collection Activities; Proposed Collection; Comment Request; Multiple Departmental Offices Information Collection RequestsPDF
83 FR 48893 - Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of MONTANAPDF
83 FR 48894 - Open Meeting of the Taxpayer Advocacy Panel Notices and Correspondence Project Committee; CorrectionPDF
83 FR 48867 - Invitation for Membership on Advisory CommitteePDF
83 FR 48890 - Self-Regulatory Organizations; Fixed Income Clearing Corporation; Order Approving Proposed Rule Change To Apply the Government Securities Division Corporation Default Rule to Sponsored Members and Make Other ChangesPDF
83 FR 48885 - Self-Regulatory Organizations; National Securities Clearing Corporation; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Clarify and Update Certain Sections of the RulesPDF
83 FR 48877 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 1 and Order Approving on an Accelerated Basis a Proposed Rule Change, as Modified by Amendment No. 1, To List and Trade Shares of the GraniteShares Gold MiniBAR Trust Pursuant to NYSE Arca Rule 8.201-EPDF
83 FR 48880 - Self-Regulatory Organizations; National Securities Clearing Corporation; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Clarify the Rules That Describe the Buy-In ProcessPDF
83 FR 48737 - Expanding Employment, Training, and Apprenticeship Opportunities for 16- and 17-Year-Olds in Health Care Occupations Under the Fair Labor Standards ActPDF
83 FR 48818 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
83 FR 48862 - Indian Gaming; Approval of Tribal-State Class III Gaming Compact Amendment in the State of OregonPDF
83 FR 48862 - Environmental Impact Statement for the Proposed Fort Mojave Solar Project on the Fort Mojave Indian Reservation, Mohave County, Arizona, and Clark County, NevadaPDF
83 FR 48727 - Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2017-2018 Biennial Specifications and Management Measures; Inseason AdjustmentsPDF
83 FR 48864 - Aluminum Wire and Cable From China; Institution of Anti-Dumping and Countervailing Duty Investigations and Scheduling of Preliminary Phase InvestigationsPDF
83 FR 48831 - Request for Public Comment: 60-Day Proposed Information Collection: Addendum to Declaration for Federal Employment, Child Care and Indian Child Care Worker PositionsPDF
83 FR 48730 - Proposed Amendment and Establishment of Multiple Air Traffic Service (ATS) Routes in the Vicinity of Houston, TXPDF
83 FR 48893 - FAA Order 2150.3C, Compliance and Enforcement ProgramPDF
83 FR 48794 - Information Collection: Post-Hurricane Research and Assessment of Agriculture, Forestry, and Rural Communities in the U.S. CaribbeanPDF
83 FR 48832 - National Institute on Minority Health and Health Disparities; Notice of Closed MeetingPDF
83 FR 48832 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 48836 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 48834 - National Center for Advancing Translational Sciences; Notice of Closed MeetingPDF
83 FR 48834 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 48837 - National Eye Institute; Notice of Closed MeetingPDF
83 FR 48829 - Dilip Patel; Denial of Hearing; Final Debarment OrderPDF
83 FR 48788 - Snapper-Grouper Fishery of the South Atlantic Region; Management Measures To End Overfishing of Golden TilefishPDF
83 FR 48777 - Air Plan Approval; Minnesota; Commercial and Industrial Solid Waste Incineration Units and Other Solid Waste Incineration Units Negative Declarations for Designated Facilities and PollutantsPDF
83 FR 48716 - Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Permits for Construction and Major Modification of Major Stationary Sources for the Prevention of Significant Deterioration of Air QualityPDF
83 FR 48795 - Large Diameter Welded Pipe From Greece: Amended Preliminary Determination of Sales at Less Than Fair ValuePDF
83 FR 48733 - Amendment to Single Issuer Exemption for Broker-DealersPDF
83 FR 48751 - Emissions Monitoring Provisions in State Implementation Plans Required Under the NOXPDF
83 FR 48779 - Petition for Reconsideration of Action in Rulemaking ProceedingPDF
83 FR 48816 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Comment Request; State Program Adequacy Determination (Renewal)PDF
83 FR 48708 - Airworthiness Directives; The Boeing Company AirplanesPDF
83 FR 48706 - Airworthiness Directives; Dassault Aviation AirplanesPDF
83 FR 48715 - Adequacy Determination for the Missoula PM10PDF

Issue

83 188 Thursday, September 27, 2018 Contents Agriculture Agriculture Department See

Economic Research Service

See

Forest Service

Centers Disease Centers for Disease Control and Prevention NOTICES Meetings: Clinical Laboratory Improvement Advisory Committee, 48817-48818 2018-21083 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 48818-48819 2018-20994 Coast Guard Coast Guard RULES Drawbridge Operations: Hackensack River, Jersey City, NJ, 48715 2018-21048 Newark Bay, Newark, NJ, 48714 2018-21049 PROPOSED RULES Safety Zones: The Gut, South Bristol, ME, 48748-48750 2018-21057 Commerce Commerce Department See

International Trade Administration

See

National Oceanic and Atmospheric Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 48795 2018-21079
Defense Department Defense Department See

Navy Department

NOTICES Privacy Act; Systems of Records, 48809 2018-21082
Drug Drug Enforcement Administration NOTICES Bulk Manufacturer of Controlled Substances Applications: Absolute Standards, Inc., 48868 2018-21075 Nanosyn, Inc., 48867-48868 2018-21074 Economic Research Economic Research Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 48793-48794 2018-21051 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Adequacy Determinations: Montana; Missoula PM10 Limited Maintenance Plan for Transportation Conformity Purposes, 48715-48716 2018-20446 Air Quality State Implementation Plans; Approvals and Promulgations: West Virginia; Permits for Construction and Major Modification of Major Stationary Sources for the Prevention of Significant Deterioration of Air Quality, 48716-48719 2018-20966 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Minnesota; Commercial and Industrial Solid Waste Incineration Units and Other Solid Waste Incineration Units Negative Declarations for Designated Facilities and Pollutants, 48777-48779 2018-20967 New Hampshire; Transport Element for 2010 Sulfur Dioxide National Ambient Air Quality Standard, 48765-48777 2018-21006 Emissions Monitoring Provisions in State Implementation Plans Required under the NOX SIP Call, 48751-48765 2018-20858 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: State Program Adequacy Determination, 48816-48817 2018-20635 Clean Air Act Operating Permit Program: Petition for Objection to State Operating Permit for the Phillips 66 San Francisco Refinery, 48817 2018-21085 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Dassault Aviation Airplanes, 48706-48708 2018-20630 Rolls-Royce plc Turbofan Engines, 48703-48706 2018-21032 The Boeing Company Airplanes, 48708-48711 2018-20631 PROPOSED RULES Amendment and Establishment of Multiple Air Traffic Service Routes: Vicinity of Houston, TX, 48730-48733 2018-20988 NOTICES Compliance and Enforcement Program, 48893 2018-20987 Federal Bureau Federal Bureau of Investigation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Records Modification Form, 48868-48869 2018-21035 Federal Communications Federal Communications Commission PROPOSED RULES Petitions for Reconsideration of Action in Rulemaking Proceeding, 48779 2018-20677 Federal Emergency Federal Emergency Management Agency RULES Suspension of Community Eligibility, 48719-48721 2018-21013 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Disaster Assistance Registration, 48855-48856 2018-21016 Emergency and Related Determinations: Commonwealth of the Northern Mariana Islands, 48853-48854 2018-21021 Hawaii, 48841 2018-21028 North Carolina, 48856 2018-21018 South Carolina, 48854-48855 2018-21026 Virginia, 48850-48851 2018-21029 Emergency Declarations: Hawaii; Amendment No. 2, 48851 2018-21025 Flood Hazard Determinations; Changes, 48841-48845, 48848-48850, 48856-48858 2018-21012 2018-21014 2018-21015 Major Disaster and Related Determinations: Alaska, 48840 2018-21027 Havasupai Tribe, 48845 2018-21020 Iowa, 48854 2018-21023 Montana, 48840-48841 2018-21022 Major Disaster Declarations: California; Amendment No. 2, 48845-48846 2018-21024 North Carolina; Amendment No. 1, 48839 2018-21019 Proposed Flood Hazard Determinations, 48846-48848, 48851-48853 2018-21009 2018-21010 Federal Energy Federal Energy Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 48813-48814 2018-21053 Applications: Brookfield White Pine Hydro, LLC and Errol Hydroelectric Co., LLC, 48810-48811 2018-21055 Winooski Hydroelectric Co., 48809-48810 2018-21061 Combined Filings, 48811-48812 2018-21068 Complaints: Louisiana Public Service Commission v. Entergy Services, Inc, et al., 48815 2018-21062 Declaratory Orders; Petitions: EasTex TransCo, LLC, 48815 2018-21059 Environmental Assessments; Availability, etc.: Consumers Energy Co. and DTE Electric Co., 48815-48816 2018-21058 Hydroelectric Applications: Georgia Power Co., 48812-48813 2018-21054 Transfer of Exemption: Lake Upchurch Power, Inc.; Lake Upchurch Dam Preservation Association, Inc., 48813 2018-21063 Federal Motor Federal Motor Carrier Safety Administration RULES General Technical, Organizational, Conforming, and Correcting Amendments to the Federal Motor Carrier Safety Regulations, 48721-48726 2018-21064 PROPOSED RULES Broker and Freight Forwarder Financial Responsibility, 48779-48787 2018-21052 Meetings: Hours of Service; Public Listening Sessions, 48787-48788 2018-21087 Food and Drug Food and Drug Administration RULES Obstetrical and Gynecological Devices: Reclassification of Single-Use Female Condom, To Be Renamed Single-Use Internal Condom, 48711-48714 2018-21044 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Assessment of Combination Product Review Practices, 48822-48824 2018-21038 Financial Disclosure by Clinical Investigators, 48819-48822 2018-21039 Debarment Orders: Dilip Patel, 48829-48831 2018-20977 Fee for Using a Rare Pediatric Disease Priority Review Voucher in Fiscal Year 2019, 48826-48829 2018-21033 Guidance: Coronary Drug-Eluting Stents—Nonclinical and Clinical Studies and Companion Guidance Document, 48824-48825 2018-21041 Public Availability of Lists of Retail Consignees to Effectuate Certain Human and Animal Food Recalls, 48825-48826 2018-21042 Forest Forest Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Post-Hurricane Research and Assessment of Agriculture, Forestry, and Rural Communities in the U.S. Caribbean, 48794-48795 2018-20986 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

Indian Health Service

See

National Institutes of Health

Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

Transportation Security Administration

See

U.S. Customs and Border Protection

Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Contractor's Requisition-Project Mortgages, 48861 2018-21088 Personal Financial and Credit Statement, 48861-48862 2018-21086 Technical Assistance Assessment, 48859-48860 2018-21098 Indian Affairs Indian Affairs Bureau NOTICES Environmental Impact Statements; Availability, etc.: Proposed Fort Mojave Solar Project on the Fort Mojave Indian Reservation, Mohave County, AZ, and Clark County, NV, 48862 2018-20992 Indian Gaming: Approval of Tribal-State Class III Gaming Compact Amendment in Oregon, 48862-48863 2018-20993 Indian Health Indian Health Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Addendum to Declaration for Federal Employment, Child Care and Indian Child Care Worker Positions, 48831-48832 2018-20989 Interior Interior Department See

Indian Affairs Bureau

See

Ocean Energy Management Bureau

Internal Revenue Internal Revenue Service NOTICES Meetings: Taxpayer Advocacy Panel Notices and Correspondence Project Committee; Correction, 48894 2018-21002 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Utility Scale Wind Towers from the People's Republic of China, 48797 2018-21066 Utility Scale Wind Towers from the Socialist Republic of Vietnam, 48797-48798 2018-21067 Determinations of Sales at Less Than Fair Value: Large Diameter Welded Pipe from Greece, 48795-48797 2018-20935 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Aluminum Wire and Cable from China, 48864-48865 2018-20990 Certain Dental Ceramics, Products Thereof, and Methods of Making Same, etc., 48865-48867 2018-21007 Uncoated Groundwood Paper from Canada, 48863-48864 2018-21050 Joint Joint Board for Enrollment of Actuaries NOTICES Requests for Applications: Advisory Committee, 48867 2018-21001 Justice Department Justice Department See

Drug Enforcement Administration

See

Federal Bureau of Investigation

NOTICES Proposed Consent Decree under the Clean Air Act, 48869 2018-21081
Labor Department Labor Department See

Wage and Hour Division

National Archives National Archives and Records Administration NOTICES Privacy Act; Systems of Records, 48869-48873 2018-21072 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 48832-48837 2018-20978 2018-20980 2018-20982 2018-20983 National Center for Advancing Translational Sciences, 48834 2018-20981 National Eye Institute, 48837 2018-20979 National Institute on Minority Health and Health Disparities, 48832 2018-20984 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries Off West Coast States: Pacific Coast Groundfish Fishery; 2017-2018 Biennial Specifications and Management Measures; Inseason Adjustments, 48727-48729 2018-20991 PROPOSED RULES Snapper-Grouper Fishery of the South Atlantic Region: Management Measures to End Overfishing of Golden Tilefish, 48788-48792 2018-20976 NOTICES Meetings: Advisory Committee on Commercial Remote Sensing, 48798-48799 2018-21078 Takes of Marine Mammals Incidental to Specified Activities: Navy's Office of Naval Research Arctic Research Activities, 48799-48809 2018-21070 National Science National Science Foundation NOTICES Meetings: Advisory Committee for Polar Programs, 48873-48874 2018-21036 Proposal Review Panel for International Science and Engineering, 48874 2018-21037 Navy Navy Department NOTICES Meetings: Board of Visitors of Marine Corps University, 48809 2018-21045 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Meetings: Crow Butte Resources, Inc. (Marsland Expansion Area); Correction, 48874-48875 2018-21008 Ocean Energy Management Ocean Energy Management Bureau NOTICES Notice of Sale for Gulf of Mexico Outer Continental Shelf Oil and Gas Region-wide Lease Sale 252, 48863 2018-21073 Pension Benefit Pension Benefit Guaranty Corporation NOTICES Special Withdrawal Liability Rules: Alaska Electrical Pension Plan of the Alaska Electrical Pension Fund, 48875-48877 2018-21040 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: National Hunting and Fishing Day (Proc. 9790), 48901-48904 2018-21244 Securities Securities and Exchange Commission PROPOSED RULES Amendment to Single Issuer Exemption for Broker-Dealers, 48733-48737 2018-20880 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 48893 2018-21043 Applications: Distillate Capital Partners, LLC, et al., 48884-48885 2018-21080 Self-Regulatory Organizations; Proposed Rule Changes: Fixed Income Clearing Corp., 48890-48893 2018-21000 National Securities Clearing Corp., 48880-48890 2018-20997 2018-20999 NYSE Arca, Inc., 48877-48880 2018-20998 Small Business Small Business Administration NOTICES Major Disasters: Montana; Amendment 1, 48893 2018-21004 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

Security Transportation Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: TSA Airspace Waiver Program, 48858-48859 2018-21017 Treasury Treasury Department See

Internal Revenue Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 48894-48897 2018-21005 2018-21065 2018-21077 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Generic Clearance for Meaningful Access Information Collections, 48895 2018-21076
Customs U.S. Customs and Border Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Customs Declaration, 48837-48838 2018-21046 General Declaration, 48838-48839 2018-21047 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Educational Assistance Program Feedback, 48897-48898 2018-21030 Notice of Lapse, Notice of Past Due Payment, 48898 2018-21031 Enhanced-Use Leases of Real Property: Clement J. Zablocki VA Medical Center, Milwaukee, WI, 48897 2018-21056 Meetings: Voluntary Service National Advisory Committee, 48898-48899 2018-21069 Wage Wage and Hour Division PROPOSED RULES Expanding Employment, Training, and Apprenticeship Opportunities for 16- and 17-Year-Olds in Health Care Occupations under the Fair Labor Standards Act, 48737-48748 2018-20996 Separate Parts In This Issue Part II Presidential Documents, 48901-48904 2018-21244 Reader Aids

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

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83 188 Thursday, September 27, 2018 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0650; Product Identifier 2017-NE-19-AD; Amendment 39-19394; AD 2018-18-15] RIN 2120-AA64 Airworthiness Directives; Rolls-Royce plc Turbofan Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Rolls-Royce plc (RR) RB211-Trent 875-17, RB211-Trent 877-17, RB211-Trent 884-17, RB211-Trent 884B-17, RB211-Trent 892-17, RB211-Trent 892B-17, and RB211-Trent 895-17 turbofan engines. This AD was prompted by low-pressure compressor (LPC) case A-frame hollow locating pins that may have reduced integrity due to incorrect heat treatment. This AD requires replacement of the LPC case A-frame hollow locating pins. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD becomes effective November 1, 2018.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 1, 2018.

ADDRESSES:

For service information identified in this final rule, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, DE24 8BJ, United Kingdom; phone: 011-44-1332-242424; fax: 011-44-1332-249936; email: http://www.rolls-royce.com/contact/civil_team.jsp; internet: https://customers.rolls-royce.com/public/rollsroycecare. You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA, 01803. For information on the availability of this material at the FAA, call 781-238-7759. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0650.

Examining the AD Docket

You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0650; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the mandatory continuing airworthiness information (MCAI), the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is Docket Operations, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Kevin M. Clark, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7088; fax: 781-238-7199; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain RR RB211-Trent 875-17, RB211-Trent 877-17, RB211-Trent 884-17, RB211-Trent 884B-17, RB211-Trent 892-17, RB211-Trent 892B-17, and RB211-Trent 895-17 turbofan engines. The NPRM published in the Federal Register on September 28, 2017 (82 FR 45218). The NPRM was prompted by LPC case A-frame hollow locating pins that may have reduced integrity due to incorrect heat treatment. The NPRM proposed to require replacement of the LPC case A-frame hollow locating pins. We are issuing this AD to address the unsafe condition on these products.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2017-0096, dated June 1, 2017 (referred to after this as “the MCAI”), to address the unsafe condition on these products. The MCAI states:

All low pressure compressor (LPC) case A-frame hollow locating pins, Part Number (P/N) FK11612, manufactured between 01 January 2012 and 31 May 2016, have potentially been subjected to incorrect heat treatment. This may have reduced the integrity of the pin such that in a Fan Blade Off (FBO) event it is unable to withstand the applied loads.

This condition, if not corrected, could lead to loss of location of the A-frame following an FBO event, possibly resulting in engine separation, loss of thrust reverser unit, release of high-energy debris, or an uncontrolled fire.

To address this potential unsafe condition, RR identified the affected engines that have these A-frame hollow locating pins installed and published Alert Non-Modification Service Bulletin (NMSB) RB.211-72-AJ463, providing instructions for replacement of these pins. The NMSB was recently revised to correct an error in Section 1.A., where ESN 51477 was inadvertently omitted. That ESN was correctly listed in Section 1.D.(1)(f) for the compliance time.

For the reason described above, this AD requires a one-time replacement of the affected A-frame hollow locating pins P/N FK11612. This AD also prohibits installation of pins that were released to service before 05 July 2016.

You may obtain further information by examining the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0650.

Comments

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.

Request To Address Spare Engines

Delta Air Lines (Delta) commented that the NPRM requirement to replace each A-frame pin at next on-wing maintenance opportunity within the compliance time specified in RR NMSB RB.211-72-AJ463, Section 1.D(1), or at next engine shop visit, does not address spare engines. Delta noted that, based on the Installation Prohibition in the NPRM, one could infer that affected spare engines must comply with this AD prior to installation. However, Delta finds that this statement conflicts with NMSB RB.211-72-AJ463, Section 1.D(1)(g)(ii), which allows replacement of A-frame pins on serviceable spare engines prior to the engine's installation on-wing. EASA AD 2017-0096, paragraph 2, has the same allowance for spare engines.

Delta, therefore, requested that we add a new paragraph (g)(3) that would read: “If any engine listed in the applicability of this AD, paragraph (c), is held as a serviceable spare engine, or is removed from the airplane after the effective date of this AD and then held as a serviceable spare engine, replace each affected LPC case A-frame hollow locating pin using Section 3, Accomplishment Instructions, of RR Alert NMSB RB.211-72-AJ463, Revision 2, dated June 28, 2017, before reinstallation of that engine onto an aircraft.”

We partially agree. We agree that affected LPC case A-frame hollow locating pins do not have to be replaced on spare engines until the spare engine is installed on an airplane. We disagree with the suggested addition of a new paragraph (g)(3). Instead, we revised paragraph (g)(1) of this AD to refer only to engines installed on-wing on an airplane. Based on this change, spare engines are not affected by the requirements of paragraph (g)(1) of this AD.

Request To Remove “Maintenance Opportunity” From Compliance Time

American Airlines and Delta requested the reference to “maintenance opportunity” be removed from paragraph (g)(1) of this AD, as the NPRM already indicated that compliance should be performed based on the times specified in Section 1.D(1), Planning Information, in RR NMSB RB.211 72 AJ463, Revision 2, dated June 28, 2017. The commenters saw the potential for confusion and the risk of non-compliance if this phrase is misunderstood.

We agree. We find that specifying replacement of the LPC case A-frame hollow locating pins at the next on-wing maintenance opportunity requirement is unnecessary because we already specify to comply within the times listed in the RR NMSB. We revised paragraph (g)(1) of this AD to remove this reference from the AD.

Request To Revise Compliance Time

Delta commented that paragraph (g)(1) of the NPRM requires replacing the A-frame pins within the compliance times listed in Planning Information, Section 1.D.(1), in RR NMSB RB.211-72-AJ463, Revision 2, dated June 28, 2017, except for those listed in Sections 1.D.(1)(a) and (b) which have a compliance requirement of November 13, 2017. Delta recommended rewording this sentence to clarify that engine serial numbers listed in Sections 1.D.(1)(a) and (b) will have their existing deadlines replaced with a new compliance deadline as a part of this AD. American Airlines recommended a compliance deadline of 30 days after the effective date of the AD.

We agree. We revised paragraph (g)(1) of this AD to indicate the compliance time is within the times specified in RR Alert NMSB RB.211-72-AJ463, Planning Information, Section 1.D.(1), or within 30 days after the effective date of this AD, whichever occurs later.

Request To Allow Use of Alternative RR-Approved Tool

American requested a paragraph be added to this AD to allow the use of alternative RR-authorized pin replacement tooling. American indicated that RR is currently pursuing an alternative tooling design for improved reliability.

We disagree. Allowing the use of alternate tooling would require changes to the instructions for use, and a corresponding revision to, the RR NMSB. If RR revises its approved tooling, and publishes a revised NMSB, we will consider alternate method of compliance (AMOC) requests. We did not change this AD.

Request To Revise Installation Prohibition

American requested that the Installation Prohibition paragraph of this AD be revised to allow installation of an engine with an affected pin providing replacement is accomplished before engine operation. American asked that this installation be allowed to provide favorable pin loading for replacement and to allow operators to install an engine on-wing in order to replace the affected parts with parts eligible for installation. American indicated that pin loads in an engine stand adversely affect replacement, and Rolls Royce has advised operators not to attempt the A-frame pin replacement while engine is in an engine stand.

We agree. The proposed changes meet our safety objectives. We revised the Installation Prohibition to allow installation of an engine with an affected pin if the pin is replaced with a part eligible for installation before engine operation.

Request To Modify Installation Prohibition

American also requested we revise the Installation Prohibition by deleting “unless the pin is eligible for installation.” American commented that this change would improve the clarity of the AD.

We disagree. Requiring that the replacement part is eligible for installation is the intent of the AD. We did not change this AD.

Request To Add Credit for Previous Actions Paragraph

American requested that we add a Credit For Previous Actions paragraph to give credit for eligible A-frame pins, P/N FK11612, installed in an engine prior to June 28, 2017. American commented that prior to the issuance of RR NMSB RB.211-72-AJ463, Revision 2, dated June 28, 2017, RR had issued work instructions for engines at overhaul bases to have the A-frame pins replaced with eligible pins.

We disagree. If an operator installed an eligible LPC case A-frame hollow locating pin prior to the effective date of this AD, this meets the requirements of paragraph (f) of this AD, which states “Comply with this AD within the compliance times specified, unless already done.” This AD does not require use of a particular service bulletin to install an eligible LPC case A-frame hollow locating pin, therefore no change is needed. We did not change this AD.

Support for the AD

The Air Line Pilots Association expressed support for this AD.

Conclusion

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.

Related Service Information Under 1 CFR Part 51

We reviewed RR Alert NMSB RB.211-72-AJ463, Revision 2, dated June 28, 2017. The Alert SB describes procedures for replacement of all non-conforming LPC case A-frame hollow locating pins. 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.

Costs of Compliance

We estimate that this AD affects 95 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • LPC case A-frame hollow locating pin replacement 9.5 work-hours × $85 per hour = $807.50 $453.00 $1,260.50 $119,747.50
    Authority for This Rulemaking

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

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

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

    Regulatory Findings

    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 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.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-18-15 Rolls-Royce plc: Amendment 39-19394; Docket No. FAA-2017-0650; Product Identifier 2017-NE-19-AD. (a) Effective Date

    This AD is effective November 1, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to certain Rolls-Royce plc (RR) RB211-Trent 875-17, 877-17, 884-17, 884B-17, 892-17, 892B-17 and 895-17 turbofan engines with an engine serial number listed in Section 1.A., Effectivity, of RR Alert Non-Modification Service Bulletin (NMSB) RB.211-72-AJ463, Revision 2, dated June 28, 2017.

    (d) Subject

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

    (e) Reason

    This AD was prompted by low-pressure compressor (LPC) case A-frame hollow locating pins that may have reduced integrity due to incorrect heat treatment. We are issuing this AD to prevent failure of the locating pins, engine separation, and loss of the airplane.

    (f) Compliance

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

    (g) Required Actions

    (1) For engines installed on-wing, after the effective date of this AD, replace each affected LPC case A-frame hollow locating pin, part number (P/N) FK11612, within the compliance times specified in RR Alert NMSB RB.211-72-AJ463, Planning Information, Section 1.D.(1), or within 30 days after the effective date of this AD, whichever occurs later, with a part eligible for installation.

    (2) After the effective date of this AD, unless already accomplished by paragraph (g)(1) of this AD, at the next engine shop visit, replace each affected LPC case A-frame hollow locating pin, P/N FK11612, with a part eligible for installation.

    (3) Use Section 3, Accomplishment Instructions, of RR Alert NMSB RB.211-72-AJ463, Revision 2, dated June 28, 2017, to perform the replacements required by paragraphs (g)(1) and (2) of this AD.

    (h) Installation Prohibition

    After the effective date of this AD, an engine with an affected LPC case A-frame hollow location pin, P/N FK11612, may not be installed on an airplane and subsequently operated. It is permissible to install an engine on an airplane with an affected pin if it is replaced with a part eligible for installation before engine operation.

    (i) Definitions

    For the purposes of this AD:

    (1) An affected part is an LPC case A-frame hollow locating pin, P/N FK11612, except those with an original RR authorized release certificate dated July 5, 2016, or later.

    (2) A part eligible for installation is an LPC case A-frame hollow locating pin, P/N FK11612, with an original RR authorized release certificate dated July 5, 2016, or later.

    (3) An engine shop visit is when the engine is subject to a serviceability check and repair, rebuild, or overhaul.

    (j) Alternative Methods of Compliance (AMOCs)

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

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

    (k) Related Information

    (1) Kevin M. Clark, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7088; fax: 781-238-7199; email: [email protected]

    (2) Refer to European Aviation Safety Agency (EASA) AD 2017-0096, dated June 1, 2017, for more information. You may examine the EASA AD in the AD docket on the internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2017-0650.

    (l) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.

    (i) Rolls-Royce plc (RR) Alert Non Modification Service Bulletin RB.211-72-AJ463, Revision 2, dated June 28, 2017.

    (ii) Reserved.

    (3) For RR service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, DE24 8BJ, United Kingdom; phone: 011-44-1332-242424; fax: 011-44-1332-249936; email: http://www.rolls-royce.com/contact/civil_team.jsp; internet: https://customers.rolls-royce.com/public/rollsroycecare.

    (4) You may view this service information at FAA, Engine & Propeller Standards Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7759.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Burlington, Massachusetts, on September 17, 2018. Robert J. Ganley, Manager, Engine and Propeller Standards Branch, Aircraft Certification Service.
    [FR Doc. 2018-21032 Filed 9-26-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0496; Product Identifier 2018-NM-031-AD; Amendment 39-19414; AD 2018-19-14] RIN 2120-AA64 Airworthiness Directives; Dassault Aviation Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Dassault Aviation Model FALCON 2000 and FALCON 2000EX airplanes. This AD was prompted by reports of metallic debris found in the wing slat piccolo tubes; investigation revealed that the debris originated from the flow guide of the ball joint of the wing anti-ice valve. This AD requires repetitive inspections for metallic debris and damage of the flow guide of the ball joint of the wing anti-ice valve, and related investigative and corrective actions if necessary. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective November 1, 2018.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 1, 2018.

    ADDRESSES:

    For service information identified in this final rule, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet http://www.dassaultfalcon.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0496.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0496; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax 206-231-3226.

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Dassault Aviation Model FALCON 2000 and FALCON 2000EX airplanes. The NPRM published in the Federal Register on June 1, 2018 (83 FR 25417). The NPRM was prompted by reports of metallic debris found in the wing slat piccolo tubes; investigation revealed that the debris originated from the flow guide of the ball joint of the wing anti-ice valve. The NPRM proposed to require repetitive inspections for metallic debris and damage of the flow guide of the ball joint of the wing anti-ice valve, and related investigative and corrective actions if necessary.

    We are issuing this AD to address restricted airflow of the piccolo tubes, leading to insufficient wing anti-ice capability and significant undetected ice accretion on the wing, which could result in loss of control 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 Airworthiness Directive 2018-0022, dated January 29, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model FALCON 2000 and FALCON 2000EX airplanes. The MCAI states:

    Occurrences were reported on Falcon 2000 and Falcon 2000EX aeroplanes, where metallic debris was found in slat piccolo tubes. The technical investigation revealed that debris originated from the flow guide of the ball joint located downstream of the wing anti-ice valve. It was also determined that small debris gathers at the end of the piccolo tube, but larger pieces of debris may stop before, in the distribution piping, restricting the airflow and potentially leading to undetected insufficient wing anti-ice capability.

    This condition, if not detected and corrected, could lead to undetected significant ice accretion on the wing, possibly resulting in loss of control of the aeroplane.

    To address this potential unsafe condition, Dassault Aviation issued Service Bulletin (SB) F2000EX-413 for Falcon 2000EX and SB F2000-441 for Falcon 2000, providing applicable instructions.

    For the reasons described above, this [EASA] AD requires repetitive [detailed] inspections [for discrepancies including cracks and loss of material] of the affected ball joint and, depending on findings, accomplishment of applicable [related investigative and] corrective actions * * *.

    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-2018-0496.

    Comments

    We gave the public the opportunity to participate in developing this final rule. We received no comments on the NPRM or on the determination of the cost to the public.

    Conclusion

    We reviewed the relevant data 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.

    Related Service Information Under 1 CFR Part 51

    Dassault Aviation has issued Service Bulletins F2000-441, dated June 20, 2017; and F2000EX-413, dated July 10, 2017. This service information describes procedures for repetitive inspections for metallic debris and damage of the flow guide of the ball joint located downstream of the wing anti-ice valve. This service information also describes procedures for replacing the ball joint and pipe, and performing borescope inspections of damaged wing anti-ice pipes and removal of any debris from the flow guide. These documents are distinct since they apply to different airplane models. 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.

    Costs of Compliance

    We estimate that this AD affects 348 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated Costs for Required Actions Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    6 work-hours × $85 per hour = $510 $0 $510 $177,480

    We have received no definitive data that enables us to provide cost estimates for the on-condition actions specified in this AD.

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

    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.

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-19-14 Dassault Aviation: Amendment 39-19414; Docket No. FAA-2018-0496; Product Identifier 2018-NM-031-AD. (a) Effective Date

    This AD is effective November 1, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Dassault Aviation Model FALCON 2000 and FALCON 2000EX airplanes, certificated in any category, all serial numbers equipped with any anti-ice pipe having part number (P/N) F2MA724561A1 or P/N F2MA724561A2, except airplanes on which Dassault Modification (mod) M5000 or Dassault mod M5001 has been embodied in production.

    (d) Subject

    Air Transport Association (ATA) of America Code 30, Ice and Rain Protection.

    (e) Reason

    This AD was prompted by reports of metallic debris found in the wing slat piccolo tubes; investigation revealed that the debris originated from the flow guide of the ball joint located downstream of the wing anti-ice valve. We are issuing this AD to address restricted airflow of the piccolo tubes, leading to insufficient wing anti-ice capability and significant undetected ice accretion on the wing, which could result in loss of control of the airplane.

    (f) Compliance

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

    (g) Repetitive Inspections and Corrective Actions

    Within 25 months after the effective date of this AD: Perform a detailed inspection for discrepancies of the flow guide of the ball joint located downstream of the wing anti-ice valve, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Dassault Aviation Service Bulletin F2000-441, dated June 20, 2017; or Dassault Aviation Service Bulletin F2000EX-413, dated July 10, 2017; as applicable. Repeat the detailed inspection thereafter at intervals not to exceed 25 months. Do all applicable corrective actions before further flight.

    (h) No Reporting Requirement

    Although the service information identified in paragraph (g) of this AD specifies to submit certain information to the manufacturer, this AD does not include that requirement.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (j)(2) of this AD. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or Dassault Aviation's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018-0022, dated January 29, 2018, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0496.

    (2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax 206-231-3226.

    (k) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (i) Dassault Aviation Service Bulletin F2000-441, dated June 20, 2017.

    (ii) Dassault Aviation Service Bulletin F2000EX-413, dated July 10, 2017.

    (3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet http://www.dassaultfalcon.com.

    (4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Des Moines, Washington, on September 7, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-20630 Filed 9-26-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-1026; Product Identifier 2017-NM-097-AD; Amendment 39-19422; AD 2018-19-21] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 707 airplanes, and Model 720 and 720B series airplanes. This AD was prompted by fuel system reviews conducted by the manufacturer. This AD requires revising the maintenance or inspection program to include new airworthiness limitations. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective November 1, 2018.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 1, 2018.

    ADDRESSES:

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone: 562-797-1717; internet: https://www.myboeingfleet.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1026.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1026; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is Docket Operations, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Samuel Lee, Aerospace Engineer, Propulsion Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5262; fax: 562-627-5210; email: [email protected].

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 707 airplanes, and Model 720 and 720B series airplanes. The NPRM published in the Federal Register on November 20, 2017 (82 FR 55057). The NPRM was prompted by fuel system reviews conducted by the manufacturer. The NPRM proposed to require revising the maintenance or inspection program to include new airworthiness limitations.

    We are issuing this AD to detect and correct potential ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

    Comments

    We gave the public the opportunity to participate in developing this final rule. We have considered the comment received. Boeing supported the NPRM.

    Clarification of Alternative Wire Types and Sleeving

    Paragraph (h) of this AD allows alternative wire types and sleeving materials for certain wire types and sleeving materials identified in AWL No. 28-AWL-03. AWL No. 28-AWL-03 was originally mandated by AD 2008-04-11 R1, Amendment 39-16147 (74 FR 68505, December 28, 2009) (“AD 2008-04-11 R1”). Since the issuance of AD 2008-04-11 R1, which is terminated by this AD, we received numerous requests for approval of alternative methods of compliance (AMOCs) from operators and supplemental type certificate (STC) holders (or applicants) to allow the installation of the alternative wire types and sleeving. We evaluated certain attributes of those alternative wire types and sleeving for each installation, and issued numerous AMOC approvals for AD 2008-04-11 R1, based on our determination that the installation of those wire types and sleeving would provide an acceptable level of safety. The alternative wire types and sleeving specified in paragraph (h) of this AD were previously approved as an AMOC for AD 2008-04-11 R1. Although paragraph (h) of this AD provides certain allowances, it does not provide approval of alternative wire types and sleeving that are installed as part of an aircraft design change. Each applicant for any design change is responsible to show that the installation of alternative wire types and sleeving identified in paragraphs (h)(l) and (h)(2) of this AD complies with all applicable regulatory requirements. This responsibility includes, but is not limited to, substantiation of compliance with flammability requirements, and substantiation to show that sleeve installation, including the selection of sleeve thickness, is adequate to protect wires from chafing for the life of installation.

    Conclusion

    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.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing 707/720 Airworthiness Limitations (AWLs), D6-7552-AWL, dated October 2016, which addresses fuel systems ignition prevention and impact-resistant fuel tank access doors. 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.

    Costs of Compliance

    We estimate that this AD affects 9 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).

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

    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 DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-19-21 The Boeing Company: Amendment 39-19422; Docket No. FAA-2017-1026; Product Identifier 2017-NM-097-AD. (a) Effective Date

    This AD is effective November 1, 2018.

    (b) Affected ADs

    This AD affects the ADs specified in paragraphs (b)(1) and (b)(2) of this AD.

    (1) AD 2008-04-11 R1, Amendment 39-16147 (74 FR 68505, December 28, 2009) (“AD 2008-04-11 R1”).

    (2) AD 2013-24-07, Amendment 39-17681 (78 FR 72550, December 3, 2013) (“AD 2013-24-07”).

    (c) Applicability

    This AD applies to all The Boeing Company airplanes, certificated in any category, identified in paragraphs (c)(1) and (c)(2) of this AD.

    (1) Model 707-100 long body, -200, -100B long body, -100B short body, -300, -300B, -300C, and -400 series airplanes.

    (2) Model 720 and 720B series airplanes.

    (d) Subject

    Air Transport Association (ATA) of America Code 28, Fuel.

    (e) Unsafe Condition

    This AD was prompted by fuel system reviews conducted by the manufacturer. We are issuing this AD to detect and correct potential ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

    (f) Compliance

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

    (g) Revision of Maintenance or Inspection Program

    Within 60 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information in Section A, including Subsections A.1, A.2, and Appendix A, as specified in Boeing 707/720 Airworthiness Limitations (AWLs), D6-7552-AWL, dated October 2016; except as provided in paragraph (h) of this AD. The initial compliance times for the AWL tasks are within the applicable compliance times specified in paragraphs (g)(1) through (g)(5) of this AD.

    (1) AWL No. 28-AWL-01, External Wires Over Center Fuel Tank, as specified in Boeing 707/720 Airworthiness Limitations (AWLs), D6-7552-AWL, dated October 2016. The initial compliance time for accomplishment of the actions specified by AWL No. 28-AWL-01 is specified in paragraph (g)(1)(i) or (g)(1)(ii) of this AD, as applicable.

    (i) For airplanes that have been previously inspected as specified in 28-AWL-01 as of the effective date of this AD: Conduct the inspection within 120 months after the most recent inspection.

    (ii) For airplanes that have not been inspected as specified in 28-AWL-01 as of the effective date of this AD: Conduct the inspection within 12 months after the effective date of this AD.

    (2) AWL No. 28-AWL-18, AC Fuel Boost Pump Bonding Installation, as specified in Boeing 707/720 Airworthiness Limitations (AWLs), D6-7552-AWL, dated October 2016. The initial compliance time for accomplishment of the actions specified by AWL No. 28-AWL-18 is specified in paragraph (g)(2)(i) or (g)(2)(ii) of this AD, as applicable.

    (i) For airplanes that have been previously inspected as specified in 28-AWL-18 as of the effective date of this AD: Conduct the inspection within 72 months after the most recent inspection.

    (ii) For airplanes that have not been inspected as specified in 28-AWL-18 as of the effective date of this AD: Conduct the inspection within 12 months after the effective date of this AD.

    (3) AWL No. 28-AWL-19, Fuel Valve Bonding Jumper Installation—Engine Fuel Shutoff, Defuel, Reserve Tank Transfer, Fuel Dump, and Fuel Manifold Valves, as specified in Boeing 707/720 Airworthiness Limitations (AWLs), D6-7552-AWL, dated October 2016. The initial compliance time for accomplishment of the actions specified by AWL No. 28-AWL-19 is specified in paragraph (g)(3)(i) or (g)(3)(ii) of this AD, as applicable.

    (i) For airplanes that have been previously inspected as specified in 28-AWL-19 as of the effective date of this AD: Conduct the inspection within 72 months after the most recent inspection.

    (ii) For airplanes that have not been inspected as specified in 28-AWL-19 as of the effective date of this AD: Conduct the inspection within 12 months after the effective date of this AD.

    (4) AWL No. 28-AWL-21, Dry Bay Fuel Manifold Assembly—Bonding Jumper Installation, as specified in Boeing 707/720 Airworthiness Limitations (AWLs), D6-7552-AWL, dated October 2016. The initial compliance time for accomplishment of the actions specified by AWL No. 28-AWL-21 is specified in paragraph (g)(4)(i) or (g)(4)(ii) of this AD, as applicable.

    (i) For airplanes that have been previously inspected as specified in 28-AWL-21 as of the effective date of this AD: Conduct the inspection within 72 months after the most recent inspection.

    (ii) For airplanes that have not been inspected as specified in 28-AWL-21 as of the effective date of this AD: Conduct the inspection within 12 months after the effective date of this AD.

    (5) AWL No. 28-AWL-23, Reserve Tank Transfer Piping Assembly—Bonding Jumper Installation, as specified in Boeing 707/720 Airworthiness Limitations (AWLs), D6-7552-AWL, dated October 2016. The initial compliance time for accomplishment of the actions specified by AWL No. 28-AWL-23 is specified in paragraph (g)(5)(i) or (g)(5)(ii) of this AD, as applicable.

    (i) For airplanes that have been previously inspected as specified in 28-AWL-23 as of the effective date of this AD: Conduct the inspection within 72 months after the most recent inspection.

    (ii) For airplanes that have not been inspected as specified in 28-AWL-23 as of the effective date of this AD: Conduct the inspection within 12 months after the effective date of this AD.

    (h) Additional Acceptable Wire Types and Sleeving

    As an option, when accomplishing the actions required by paragraph (g) of this AD, the changes specified in paragraphs (h)(1) and (h)(2) of this AD are acceptable.

    (1) Where AWL No. 28-AWL-03 identifies wire types BMS 13-48, BMS 13-58, and BMS 13-60, the following wire types are acceptable: MIL-W-22759/16, SAE AS22759/16 (M22759/16), MIL-W-22759/32, SAE AS22759/32 (M22759/32), MIL-W-22759/34, SAE AS22759/34 (M22759/34), MIL-W-22759/41, SAE AS22759/41 (M22759/41), MIL-W-22759/86, SAE AS22759/86 (M22759/86), MIL-W-22759/87, SAE AS22759/87 (M22759/87), MIL-W-22759/92 and SAE AS22759/92 (M22759/92); and MIL-C-27500 and NEMA WC 27500 cables constructed from these military or SAE specification wire types identified above.

    (2) Where AWL No. 28-AWL-03 identifies TFE-2X Standard wall for wire sleeving, the following sleeving materials are acceptable: Roundit 2000NX and Varglas Type HO, HP, or HM.

    (i) No Alternative Actions and Intervals

    Except as provided in paragraph (h) of this AD, after the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (e.g., inspections) or intervals may be used unless the actions or intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (k) of this AD.

    (j) Terminating Action for Other ADs

    (1) Accomplishment of the actions required by paragraph (g) of this AD terminates all requirements of AD 2008-04-11 R1.

    (2) Accomplishment of the actions required by paragraph (g) of this AD terminates the requirements of paragraph (h) of AD 2013-24-07.

    (k) Alternative Methods of Compliance (AMOCs)

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

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

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

    (l) Related Information

    For more information about this AD, contact Samuel Lee, Aerospace Engineer, Propulsion Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5262; fax: 562-627-5210; email: [email protected]

    (m) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.

    (i) Boeing 707/720 Airworthiness Limitations (AWLs), D6-7552-AWL, dated October 2016. (Subsection A.2 of this document includes pages 33 and 34, which are not identified in the Table of Contents.)

    (ii) Reserved.

    (3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone: 562-797-1717; internet: https://www.myboeingfleet.com.

    (4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Des Moines, Washington, on September 10, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-20631 Filed 9-26-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 884 [Docket No. FDA-2017-N-6538] Obstetrical and Gynecological Devices; Reclassification of Single-Use Female Condom, To Be Renamed Single-Use Internal Condom AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA or the Agency) is issuing a final order to reclassify single-use female condoms, renaming the device to “single-use internal condom,” a postamendments class III device (regulated under product code MBU), into class II (special controls) subject to premarket notification (510(k)). FDA is also identifying the special controls that the Agency believes are necessary to provide a reasonable assurance of safety and effectiveness of the device. FDA is finalizing this reclassification on its own initiative based on new information. FDA is also amending the existing device identification for “female condom,” a preamendments class III device (product code OBY), by renaming the device “multiple-use female condom,” to distinguish it from the “single-use internal condom.” This order reclassifies single-use internal condoms from class III to class II and reduces regulatory burden because these types of devices will no longer be required to submit a premarket approval application (PMA), but can instead submit a less burdensome 510(k) before marketing their device.

    DATES:

    This order is effective October 29, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Monica Garcia, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. G215, Silver Spring, MD 20993, 240-402-2791, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Federal Food, Drug, and Cosmetic Act (FD&C Act), as amended, establishes a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the FD&C Act (21 U.S.C. 360c) established three categories (classes) of devices, reflecting the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval).

    Devices that were not in commercial distribution prior to May 28, 1976 (generally referred to as postamendments devices) are automatically classified by section 513(f)(1) of the FD&C Act into class III without any FDA rulemaking process. Those devices remain in class III and require premarket approval unless, and until, the device is reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and 21 CFR part 807.

    A postamendments device that has been initially classified in class III under section 513(f)(1) of the FD&C Act may be reclassified into class I or class II under section 513(f)(3) of the FD&C Act. Section 513(f)(3) of the FD&C Act provides that FDA acting by order can reclassify the device into class I or class II on its own initiative, or in response to a petition from the manufacturer or importer of the device. To change the classification of the device, the proposed new class must have sufficient regulatory controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use.

    Reevaluation of the data previously before the Agency is an appropriate basis for subsequent action where the reevaluation is made in light of newly available regulatory authority (see Bell v. Goddard, 366 F.2d 177, 181 (7th Cir. 1966); Ethicon, Inc. v. FDA, 762 F. Supp. 382, 388-391 (D.D.C. 1991)), or in light of changes in “medical science” (Upjohn Co. v. Finch, 422 F.2d 944, 951 (6th Cir. 1970)). Whether data before the Agency are old or new, the “new information” to support reclassification under section 513(f)(3) must be “valid scientific evidence,” as defined in section 513(a)(3) of the FD&C Act and 21 CFR 860.7(c)(2). (See, e.g., General Medical Co. v. FDA, 770 F.2d 214 (D.C. Cir. 1985); Contact Lens Mfrs. Assoc. v. FDA, 766 F.2d 592 (D.C. Cir.1985), cert. denied, 474 U.S. 1062 (1986)).

    FDA relies upon “valid scientific evidence” in the classification process to determine the level of regulation for devices. To be considered in the reclassification process, the “valid scientific evidence” upon which the Agency relies must be publicly available. Publicly available information excludes trade secret and/or confidential commercial information, e.g., the contents of a pending PMA (see section 520(c) of the FD&C Act (21 U.S.C. 360j(c)). Section 520(h)(4) of the FD&C Act provides that FDA may use, for reclassification of a device, certain information in a PMA 6 years after the application has been approved. This includes information from clinical and preclinical tests or studies that demonstrate the safety or effectiveness of the device, but does not include descriptions of methods of manufacture or product composition and other trade secrets.

    Section 510(m) of the FD&C Act provides that a class II device may be exempted from the 510(k) premarket notification requirements, if the Agency determines that premarket notification is not necessary to reasonably assure the safety and effectiveness of the device.

    On December 4, 2017, FDA published a proposed order in the Federal Register to reclassify the device (82 FR 57174) (the “proposed order”). The period for public comment on the proposed order closed on February 2, 2018. FDA received and has considered 78 comments on the proposed order, as discussed in section II.

    II. Comments on the Proposed Order and FDA Response A. Introduction

    FDA received 78 public comments in response to the December 4, 2017, proposed order. These comments originated from individual consumers, academia, healthcare professionals, healthcare associations, local governments, and industry. The overwhelming majority of commenters supported the proposed reclassification, name change, and the general effort to increase patient access to single-use internal condoms.

    We describe and respond to the comments in section B, below. The order of response to the commenters is purely for organizational purposes and does not signify the comment's value or importance nor the order in which comments were received. Certain comments are grouped together under a single number because the subject matter is similar.

    B. Description of Comments and FDA Response

    (Comment 1) Several commenters supported the reclassification and name change, but did not think a contraceptive effectiveness study should be required as a special control. These commenters believe that an acute failure modes study would be sufficient to ensure the safety and effectiveness of single-use internal condoms. The commenters indicated that requiring a contraceptive effectiveness study is burdensome and that the contraceptive effectiveness rate of a previously approved internal condom (FC1 Female Condom) should be leveraged in lieu of this special control. Another commenter suggested that single-use internal condoms be evaluated based on data from an acute failure modes study because this is the clinical evidence used to support clearance of male condoms made of synthetic materials. Finally, a different commenter agreed with FDA that there are unique considerations for the female condom, and that FDA should carefully consider each single-use internal condom to determine the appropriate method for clinical validation. The commenter noted that the majority of clinical studies published worldwide are conducted using male condoms, and that analysis by FDA, National Institutes of Health, and the Centers for Disease Control and Prevention re-confirmed the safety and effectiveness of male condoms. This commenter recommended that FDA consider developing a medical device development tool to find less burdensome ways of evaluating internal condom effectiveness using biomarkers.

    (Response 1) While the probable risks to health and risk mitigations are similar between male and single-use internal condoms, the failure modes are not the same between these two types of condoms. Male condoms have failure modes from slippage and breakage, while single-use internal condoms have failure modes that include slippage, breakage, misdirection, and invagination. FDA believes that a contraceptive effectiveness study is necessary to mitigate the risk of an undesired pregnancy because internal condoms have distinct design features from male condoms (e.g., internal and external retaining mechanisms) and from other internal condoms that can only be evaluated through a contraceptive effectiveness study. Accordingly, FDA believes that the clinical evidence from male condoms and other internal condoms cannot be leveraged to mitigate the risk of undesired pregnancy for an individual single-use internal condom. The contraceptive effectiveness rate of an individual internal condom is important because internal condoms are intended for the prevention of pregnancy, and this contraceptive effectiveness rate is important for consumers when deciding which method of contraception is most appropriate for them. FDA is not aware of any information, and none was provided to the docket, supporting that a biomarker method could be used in lieu of a contraceptive effectiveness study.

    (Comment 2) One commenter generally agreed with FDA's proposed reclassification, name change, and the proposed special controls for single-use internal condoms. This commenter stated that, in addition to FDA's proposed special controls, a pre-clearance good manufacturing practices (GMP) inspection should be required under section 513(f)(5) of the FD&C Act.

    (Response 2) FDA may withhold 510(k) clearance under section 513(f)(5) of the FD&C Act if there is a substantial likelihood that failure to comply with GMPs will potentially present a serious risk to human health. FDA does not believe the threshold for pre-clearance GMP inspections is met for single-use internal condoms. Single-use internal condoms will be required to comply with GMPs under the quality system regulation per 21 CFR part 820 that will, in part, mitigate the identified probable risks to health. FDA believes that the special controls identified in this final order, in addition to general controls, including compliance with GMPs, will provide reasonable assurance of safety and effectiveness for single-use internal condoms.

    (Comment 3) Multiple commenters requested that FDA not change contraceptive coverage policies for single-use internal condoms.

    (Response 3) Contraceptive coverage policies by private insurance payers and the Centers for Medicare & Medicaid Services are outside the scope of FDA's reclassification process. FDA is required to classify devices based on the regulatory controls necessary to provide reasonable assurance of device safety and effectiveness. FDA believes that sufficient information exists to establish special controls that, in addition to general controls, can provide reasonable assurance of safety and effectiveness for single-use internal condoms.

    (Comment 4) Several comments received were related to consumer access and education. One commenter expressed concerns that consumers “believe that all medical-like devices that are placed on the shelves have been reviewed and tested.” Based on safety and effectiveness information provided to the docket, the commenter believes that more attention should be geared towards educating consumers on the proper use and effectiveness of single-use internal condoms. Conversely, several different commenters stated that single-use internal condoms should be made over-the-counter (OTC) devices.

    (Response 4) The single-use internal condom is not restricted to prescription use in accordance with 21 CFR 801.109. Single-use internal condoms are OTC devices because FDA believes that adequate directions for lay use can be developed in accordance with 21 CFR 801.5. Adequate directions for use are those under which the layman can use a device safely and for the purposes for which it is intended. This information helps consumers understand how to appropriately use the device and make informed decisions regarding its use. While the devices are OTC, single-use internal condoms will be subject to FDA premarket review in accordance with section 510(k) of the FD&C Act. In accordance with section 513(i) of the FD&C Act, FDA reviews appropriate clinical or scientific data as part of the substantial equivalence determination.

    (Comment 5) One commenter stated that single-use internal condoms should be class III “based on medical evidence of its effectiveness in disease prevention as well as a safe and effective family planning method.” The commenter believed that the reclassification is not based on science, that the reclassification is based on a political stance on birth control, and that science should be the only reason for reclassification. Three commenters included a combination of scientific literature, marketing data, non-public clinical data, and anecdotal information on one single-use internal condom used in the United States and another used outside the United States as additional evidence in support of FDA's reclassification.

    (Response 5) FDA is only authorized to use valid scientific evidence to support device reclassification, in accordance with 513(a)(3) of the FD&C Act and 21 CFR 860.7(c)(2). The commenter not supportive of the proposed reclassification did not provide specific information or rationales regarding why FDA's proposal to reclassify was not based on valid scientific evidence. As outlined in the proposed order, sufficient valid scientific evidence exists to establish special controls to provide reasonable assurance of the safety and effectiveness for single-use internal condoms, despite these condoms being for a use which is of substantial importance in preventing impairment of human health. Therefore, FDA believes that single-use internal condoms meet the statutory definition of class II (special controls).

    (Comment 6) One commenter requested clarification regarding differences in how male condoms are regulated in comparison to single-use internal condoms.

    (Response 6) A male condom is comprised of a sheath which completely covers the penis with a closely fitting membrane. Male condoms are regulated under 21 CFR 884.5300 and are class II (special controls). As of the effective date of this reclassification order, single-use internal condoms are class II (special controls). FDA has identified distinct special controls for single-use internal condoms because they have different failure modes due to differences in technological characteristics compared to male condoms.

    III. The Final Order

    FDA is adopting its findings under section 513(f)(3) of the FD&C Act, as published in the preamble to the proposed order (82 FR 57174). FDA is issuing this final order to reclassify single-use female condoms from class III to class II, rename them “single-use internal condoms,” and establish special controls by revising 21 CFR part 884. In this final order, the Agency has identified the special controls under section 513(a)(1)(B) of the FD&C Act that, together with general controls, provide a reasonable assurance of the safety and effectiveness for single-use internal condoms. FDA is also amending the existing device identification for female condoms to distinguish them from single-use internal condoms, by renaming the device “multiple-use female condom.” The Agency is making two minor modifications to the identification for single-use internal condoms by confirming that they are OTC devices and that the device is intended to “prevent the transmission of sexually transmitted infections,” not “prevent sexually transmitted infections.”

    FDA may exempt a class II device from the premarket notification requirements, under section 510(m) of the FD&C Act, if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the devices. FDA has determined that premarket notification is necessary to provide reasonable assurance of safety and effectiveness of single-use internal condoms, and therefore, this device type is not exempt from premarket notification requirements.

    The device is assigned the generic name single-use internal condom, and it is identified as an OTC sheath-like device that lines the vaginal or anal wall and is inserted into the vagina or anus prior to the initiation of coitus. At the conclusion of coitus, it is removed and discarded. It is indicated for contraception and/or prophylactic (preventing the transmission of sexually transmitted infections) purposes.

    Under this final order, the single-use internal condom is an OTC device. OTC devices must bear adequate directions for lay use as outlined in 21 CFR 801.5. Under 21 CFR 807.81, the device would continue to be subject to 510(k) requirements.

    IV. Analysis of Environmental Impact

    We have determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    V. Paperwork Reduction Act of 1995

    This final administrative order establishes special controls that refer to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 807, subpart E, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 814, subparts A through E, have been approved under OMB control number 0910-0231; the collections of information in 21 CFR part 820 have been approved under OMB control number 0910-0073; and the collections of information under 21 CFR part 801 have been approved under OMB control number 0910-0485.

    List of Subjects in 21 CFR Part 884

    Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 884 is amended as follows:

    PART 884—OBSTETRICAL AND GYNECOLOGICAL DEVICES 1. The authority citation for part 884 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.

    2. Amend § 884.5330 by revising the section heading and paragraph (a) to read as follows:
    § 884.5330 Multiple-use female condom.

    (a) Identification. A multiple-use female condom is a sheath-like device that lines the vaginal wall and is inserted into the vagina prior to the initiation of coitus. At the conclusion of coitus, the device can be reused. It is indicated for contraception and prophylactic (preventing the transmission of sexually transmitted infections) purposes.

    3. Add § 884.5340 to subpart F to read as follows:
    § 884.5340 Single-use internal condom.

    (a) Identification. A single-use internal condom is an over-the-counter sheath-like device that lines the vaginal or anal wall and is inserted into the vagina or anus prior to the initiation of coitus. At the conclusion of coitus, it is removed and discarded. It is indicated for contraception and/or prophylactic (preventing the transmission of sexually transmitted infections) purposes.

    (b) Classification. Class II (special controls). The special controls for this device are:

    (1) Clinical performance testing must evaluate the following:

    (i) Rate of clinical failure of the device and rate of individual failure modes of the device based on an acute failure modes study evaluating the intended use (vaginal and/or anal intercourse); and

    (ii) Cumulative pregnancy rate when using the device based on a contraceptive effectiveness study (when the device is indicated for vaginal intercourse).

    (2) Viral penetration testing must demonstrate the device is an effective barrier to sexually transmitted infections.

    (3) Nonclinical performance testing must demonstrate that the device performs as intended under anticipated conditions of use. The following performance characteristics must be evaluated:

    (i) Mechanical testing must demonstrate the device can withstand forces under anticipated use conditions, include evaluation of tensile, tear, and burst properties of the device; and

    (ii) Compatibility testing with personal lubricants must determine whether the physical properties of the device are adversely affected by use of additional lubricants.

    (4) The device must be demonstrated to be biocompatible.

    (5) Shelf-life testing must demonstrate that the device maintains its performance characteristics and the packaging of the device must maintain integrity for the duration of the shelf-life.

    (6) Labeling of the device must include:

    (i) Contraceptive effectiveness table comparing typical use and perfect use pregnancy rates with the device to other available methods of birth control;

    (ii) Statement regarding the adverse events associated with the device, including potential transmission of infection, adverse tissue reaction, and ulceration or other physical trauma;

    (iii) Expiration date; and

    (iv) Statement regarding compatibility with additional types of personal lubricants.

    Dated: September 21, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-21044 Filed 9-26-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2018-0836] Drawbridge Operation Regulation; Newark Bay, Newark, NJ AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Lehigh Valley Bridge across the Newark Bay, mile 4.3, at Newark, New Jersey. The deviation is necessary to replace bridge timber on the lift span. This deviation allows the bridge to remain in the closed-to navigation position during the construction periods.

    DATES:

    This deviation is effective from 6 a.m. on October 14, 2018, to 6 p.m. on November 12, 2018.

    ADDRESSES:

    The docket for this deviation, USCG-2018-0836 is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Judy Leung-Yee, Bridge Management Specialist, First District Bridge Branch, U.S. Coast Guard, telephone 212-514-4336, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The owner of the bridge, Consolidated Rail Corporation, requested a temporary deviation from the normal operating schedule to replace bridge timber on the lift span. The Lehigh Valley Bridge across the Newark Bay, mile 4.3, at Newark, New Jersey is a lift bridge with a vertical clearance in the closed position of 35 feet at mean high water and 39 feet at mean low water. The existing bridge operating regulations are listed at §§ 117.5 and 117.735.

    Under this temporary deviation, the Lehigh Valley Bridge shall remain in the closed position from 6 a.m. on October 14, 2018 to 6 p.m. on October 15, 2018; from 6 a.m. on October 21 to 6 p.m. on October 22, 2018; and from 6 a.m. on October 28, 2018 to 6 p.m. on October 29, 2018. Should inclement weather occur, the following rain dates may be used: (a) From 6 a.m. on November 4, 2018 to 6 p.m. on November 5, 2018; or (b) from 6 a.m. on November 11, 2018 to 6 p.m. on November 12, 2018.

    The waterway is transited by recreational and commercial vessels. Coordination with known waterway users has indicated no objection to the closure. Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will not be able to open for emergencies and there is no immediate alternate route for vessels to pass.

    The Coast Guard will inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

    Dated: September 21, 2018. C.J. Bisignano, Supervisory Bridge Management Specialist, First Coast Guard District.
    [FR Doc. 2018-21049 Filed 9-26-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2018-0835] Drawbridge Operation Regulation; Hackensack River, Jersey City, NJ AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Hack-Freight Railroad Bridge across the Hackensack River, mile 3.1, at Jersey City, New Jersey. The deviation is necessary to replace four counterweight sheave assemblies on the west tower of the bridge. This temporary deviation allows the bridge to remain in the closed-to navigation position during the construction period.

    DATES:

    This deviation is effective from 6 a.m. on September 30, 2018, until 6 a.m. on October 7, 2018.

    ADDRESSES:

    The docket for this deviation, USCG-2018-0835, is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Judy K. Leung-Yee, Bridge Management Specialist, First District Bridge Branch, U.S. Coast Guard; telephone 212-514-4336, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The owner of the bridge, Consolidated Rail Corporation, requested a temporary deviation in order to replace four counterweight sheave assemblies on the west tower of the bridge.

    The Hack-Freight Railroad Bridge across the Hackensack River, mile 3.1, at Jersey City, New Jersey is a vertical lift bridge with a vertical clearance of 11 feet at mean high water and 16 feet at mean low water in the closed position. The existing drawbridge operating regulation is listed at 33 CFR 117.723(c).

    This temporary deviation will allow the Hack-Freight Railroad Bridge to remain in the closed position from 6 a.m. on September 30, 2018, to 6 a.m. on October 7, 2018. The waterway is transited by recreational and commercial vessels. Coordination with known waterway users has indicated no objection to the closure of the draw. Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will not be able to open for emergencies. There is no immediate alternate route for vessels to pass.

    The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

    Dated: September 21, 2018. C.J. Bisignano, Supervisory Bridge Management Specialist, First Coast Guard District.
    [FR Doc. 2018-21048 Filed 9-26-18; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2018-0608; FRL-9983-40—Region 8] Adequacy Determination for the Missoula PM10 Limited Maintenance Plan for Transportation Conformity Purposes; State of Montana AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Adequacy determination.

    SUMMARY:

    In this announcement, the Environmental Protection Agency (EPA) is notifying the public that the EPA has found the Missoula PM10 National Ambient Air Quality Standard (NAAQS) Limited Maintenance Plan (LMP) adequate for transportation conformity purposes. As more fully explained in the Supplementary Information section of this notice, this finding will affect future transportation conformity determinations.

    DATES:

    This finding is effective on October 12, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Tim Russ, Air Program, EPA, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6479, or [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Transportation conformity is required by section 176(c) of the Clean Air Act to ensure that federally funded highway and transit projects are consistent with the air quality goals established by the state implementation plan (SIP). The EPA's conformity rule provisions at 40 CFR part 93, subpart A, establish the criteria and procedures for determining whether transportation plans, programs and projects conform to the SIP. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the applicable NAAQS. 1

    1 The applicable PM10 NAAQS is found in 40 CFR part 50, section 50.6: “The level of the national primary and secondary 24-hour ambient air quality standards for particulate matter is 150 micrograms per cubic meter (µg/m3), 24-hour average concentration. The standards are attained when the expected number of days per calendar year with a 24-hour average concentration above 150 µg/m3, as determined in accordance with appendix K to this part, is equal to or less than one.”

    The criteria by which the EPA determines whether a SIP revision's LMP 2 or motor vehicle emission budgets (MVEBs) are adequate for transportation conformity purposes are outlined at 40 CFR 93.118(e)(4), and the adequacy review process is described at 40 CFR 93.118(f)(1). We applied these criteria and followed this process in making the determinations announced in this notice.

    2 On August 9, 2001, EPA issued a guidance memorandum titled “Limited Maintenance Plan Option for Moderate PM10 Nonattainment Areas.” https://www.epa.gov/sites/production/files/2016-06/documents/2001lmp-pm10.pdf.

    This document is simply an announcement of findings that the EPA has already made, as described below.

    The State of Montana submitted the Missoula PM10 LMP 3 on August 1, 2016. As part of our adequacy review, we announced receipt of the Missoula PM10 LMP and posted an announcement of availability on the EPA Office of Transportation and Air Quality's transportation conformity website https://www.epa.gov/state-and-local-transportation/adequacy-review-state-implementation-plan-sip-submissions-conformity. The EPA requested public comments by May 30, 2018. We did not receive any comments. We sent a letter to the Montana Department of Environmental Quality on July 23, 2018, that stated that the submitted Missoula PM10 LMP was adequate for transportation conformity purposes.

    3 Particulate matter less than or equal to 10 microns in diameter.

    Following the effective date listed in the DATES section of this notice, the Missoula County-City Metropolitan Planning Organization, the Montana Department of Transportation, and the U.S. Department of Transportation are required to use the provisions of the Missoula PM10 LMP for future transportation conformity determinations for projects in the Missoula PM10 nonattainment area. Please refer to 40 CFR 81.327 for a description of the nonattainment area boundary. On the effective date of this adequacy determination, the previously-approved PM10 MVEB of 16,119 pounds per day of PM10 4 for the Missoula PM10 NAAQS nonattainment area will no longer be applicable for transportation conformity purposes.

    4 The PM10 MVEB was originally derived from the motor vehicle source category of the emissions inventory for the Missoula PM10 nonattainment area; see the EPA 's SIP approvals of December 13, 1994 (59 FR 64133) and August 30, 1995 (60 FR 45051.)

    Please note that our adequacy review of the LMP for transportation conformity is separate from our future rulemaking action on the Missoula PM10 redesignation request and LMP SIP revision and should not be used to prejudge our ultimate approval or disapproval of that SIP revision. Even if we find the Missoula PM10 LMP adequate for transportation conformity purposes now, we may later find it necessary to disapprove the SIP revision. Should this situation arise, we would revisit our adequacy finding.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: September 14, 2018. Douglas Benevento, Regional Administrator, EPA Region 8.
    [FR Doc. 2018-20446 Filed 9-26-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2017-0502; FRL-9984-48—Region 3] Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Permits for Construction and Major Modification of Major Stationary Sources for the Prevention of Significant Deterioration of Air Quality AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the State of West Virginia. This revision pertains to West Virginia's Prevention of Significant Deterioration (PSD) program. This action is being taken under the Clean Air Act (CAA).

    DATES:

    This final rule is effective on October 29, 2018.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2017-0502. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the For Further Information Contact section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    David Talley, (215) 814-2117, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    On July 5, 2018 (83 FR 31348), EPA published a notice of proposed rulemaking (NPRM) for the State of West Virginia. In the NPRM, EPA proposed approval of a revision to the PSD regulations found at title 45, chapter 14 of the Code of State Rules (CSR) as a revision to the West Virginia SIP. The formal SIP revision was submitted by West Virginia Department of Environmental Protection (WVDEP) on behalf of the State of West Virginia on June 6, 2017.

    WVDEP's June 6, 2017 SIP submittal included a number of revisions to West Virginia's PSD regulations under 45CSR14. The revisions were largely non-substantive and administrative in nature. However, as discussed in subsequent sections of this notice, WVDEP's SIP submittal also contained revisions to PSD provisions relating to the regulation of greenhouse gases (GHGs).

    In a June 3, 2010 final rulemaking action, EPA promulgated regulations known as “the Tailoring Rule,” which phased in permitting requirements for GHG emissions from stationary sources under the CAA PSD and title V permitting programs. See 75 FR 31514. For Step 1 of the Tailoring Rule, which began on January 2, 2011, PSD or title V requirements applied to sources of GHG emissions only if the sources were subject to PSD or title V “anyway” due to their emissions of non-GHG pollutants. These sources are referred to as “anyway sources.” Step 2 of the Tailoring Rule, which began on July 1, 2011, applied the PSD and title V permitting requirements under the CAA to sources that were classified as major, and, thus, required to obtain a permit, based solely on their potential GHG emissions. Step 2 also applied to modifications of otherwise major sources that required a PSD permit because they increased only GHGs above applicable levels in the EPA regulations.

    On June 23, 2014, the United States Supreme Court, in Utility Air Regulatory Group (UARG) v. Environmental Protection Agency, 1 issued a decision addressing the Tailoring Rule and the application of PSD permitting requirements to GHG emissions. The Supreme Court said that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also said that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT). The Supreme Court decision effectively upheld PSD permitting requirements for GHG emissions under Step 1 of the Tailoring Rule for “anyway sources” and invalidated PSD permitting requirements for Step 2 sources.

    1See 134 S.Ct. 2427.

    In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued an amended judgment vacating the regulations that implemented Step 2 of the Tailoring Rule, but not the regulations that implement Step 1 of the Tailoring Rule.2 The amended judgment preserves, without the need for additional rulemaking by the EPA, the application of the BACT requirement to GHG emissions from sources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs (i.e., the “anyway” sources). The D.C. Circuit's judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v), “to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emissions increase from a modification.” 3

    2Coalition for Responsible Regulation v. EPA, D.C. Cir., No. 09-1322, 06/26/20, judgment entered for No. 09-1322 on 04/10/2015.

    3Id.

    In response to these court decisions, EPA took final action on August 19, 2015 to remove the vacated elements from the federal PSD program. See 80 FR 50199. As discussed further in Section II of this notice, WVDEP's June 6, 2017 submittal included revisions enacted in order to make WVDEP's PSD program consistent with the federal program.

    II. Summary of SIP Revision and EPA Analysis

    WVDEP's June 6, 2017 submittal included revisions to the definition of “subject to regulation” at subdivision 2.80 of 45-14-2. Specifically, subdivisions 2.80.e, 2.80.f, and 2.80.g were deleted in their entirety. These subdivisions were the mechanism through which WVDEP implemented the Tailoring Rule Step 2 provisions which were vacated and revised by EPA as a result of the UARG v. EPA decision discussed in Section I of this notice. WVDEP's revised definition of “subject to regulation” is consistent with the federal definition at 40 CFR 51.166(b)(48)(v) and 52.21(b)(49)(v), and ensures that the preconstruction permitting requirements of WVDEP's PSD program will be applied to GHG sources in a manner consistent with the Supreme Court decision in UARG v. EPA. Further, EPA finds that these deletions are in accordance with section 110(l) of the CAA because they will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable CAA requirement.

    In addition to the previously discussed revisions, WVDEP's June 6, 2017 submittal included a number of non-substantive, clarifying or administrative revisions. These include the filing date and effective date at subdivisions 45-14-1.3 and 45-14-1.4, and the removal of references to the deleted subdivisions discussed in Section II.A of this notice. WVDEP provided an underline/strikeout version of 45CSR14 so that all of the revisions can be tracked. A copy of this is included in the docket for today's action.

    Other specific requirements of West Virginia's June 6, 2017 submittal and the rationale for EPA's proposed action are explained in the NPR and will not be restated here.

    III. Public Comments

    EPA received one set of comments on the July 5, 2018 NPR. These comments are included in the docket for this action. However, the comments did not concern any of the specific issues raised in the NPR, nor did they address EPA's rationale for the proposed approval of WVDEP's submittal. Therefore, EPA is not addressing them here.

    IV. Final Action

    EPA is approving WVDEP's June 6, 2017 submittal as a revision to the West Virginia SIP.

    V. Incorporation by Reference

    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 West Virginia rules regarding definitions and permitting requirements discussed in Section II of this preamble. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region III 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 SIP, 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.4

    4 62 FR 27968 (May 22, 1997).

    VI. Statutory and Executive Order Reviews A. General Requirements

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

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

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

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

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

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

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

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

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

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

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

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

    B. Submission to Congress and the Comptroller General

    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).

    C. Petitions for Judicial Review

    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 26, 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 pertaining to West Virginia's PSD program may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 10, 2018. Cecil Rodrigues, Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart XX—West Virginia 2. In § 52.2520, the table entitled “EPA-Approved Regulations in the West Virginia SIP” in paragraph (c) is amended by revising the entries for sections 45-14-1 through 45-14-21, 45-14-25, and 45-14-26 to read as follows:
    § 52.2520 Identification of plan.

    (c) * * *

    EPA-Approved Regulations in the West Virginia SIP State citation
  • [Chapter 16-20 or 45 CSR]
  • Title/subject State
  • effective
  • date
  • EPA approval date Additional explanation/
  • citation at
  • 40 CFR 52.2565
  • *         *         *         *         *         *         * [45CSR] Series 1 Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration Section 45-14-1 General 6/1/17 9/27/2018 [Insert Federal Register citation] Administrative changes. Section 45-14-2 Definitions 6/1/17 9/27/2018 [Insert Federal Register citation] Administrative changes; revised definition of “subject to regulation”. Section 45-14-3 Applicability 6/1/17 9/27/2018 [Insert Federal Register citation] New state effective date. Section 45-14-4 Ambient Air Quality Increments and Ceilings 6/1/17 9/27/2018 [Insert Federal Register citation] New state effective date. Section 45-14-5 Area Classification 6/1/17 9/27/2018 [Insert Federal Register citation] New state effective date. Section 45-14-6 Prohibition of Dispersion Enhancement Techniques 6/1/17 9/27/2018 [Insert Federal Register citation] New state effective date. Section 45-14-7 Registration, Report and Permit Requirements for Major Stationary Sources and Major Modifications 6/1/17 9/27/2018 [Insert Federal Register citation] Administrative changes. Section 45-14-8 Requirements Relating to Control Technology 6/1/17 9/27/2018 [Insert Federal Register citation] Administrative changes. Section 45-14-9 Requirements Relating to the Source's Impact on Air Quality 6/1/17 9/27/2018 [Insert Federal Register citation] Administrative changes. Section 45-14-10 Modeling Requirements 6/1/17 9/27/2018 [Insert Federal Register citation] New state effective date. Section 45-14-11 Air Quality Monitoring Requirements 6/1/17 9/27/2018 [Insert Federal Register citation] Administrative changes. Section 45-14-12 Additional Impacts Analysis Requirements 6/1/17 9/27/2018 [Insert Federal Register citation] New state effective date. Section 45-14-13 Additional Requirements and Variances for Source Impacting Federal Class 1 Areas 6/1/17 9/27/2018 [Insert Federal Register citation] Administrative changes. Section 45-14-14 Procedures for Sources Employing Innovative Control Technology 6/1/17 9/27/2018 [Insert Federal Register citation] Administrative changes. Section 45-14-15 Exclusions From Increment Consumption 6/1/17 9/27/2018 [Insert Federal Register citation] Administrative changes. Section 45-14-16 Specific Exemptions 6/1/17 9/27/2018 [Insert Federal Register citation] Administrative changes. Section 45-14-17 Public Review Procedures 6/1/17 9/27/2018 [Insert Federal Register citation] Administrative changes. Section 45-14-18 Public Meetings 6/1/17 9/27/2018 [Insert Federal Register citation] New state effective date. Section 45-14-19 Permit Transfer, Cancellation and Responsibility 6/1/17 9/27/2018 [Insert Federal Register citation] Administrative changes. Section 45-14-20 Disposition of Permits 6/1/17 9/27/2018 [Insert Federal Register citation] New state effective date. Section 45-14-21 Conflict with Other Permitting Rules 6/1/17 9/27/2018 [Insert Federal Register citation] Administrative changes. Section 45-14-25 Actual PALs 6/1/17 9/27/2018 [Insert Federal Register citation] Administrative changes. Section 45-14-26 Inconsistency Between Rules 6/1/17 9/27/2018 [Insert Federal Register citation] Administrative changes. *         *         *         *         *         *         *
    [FR Doc. 2018-20966 Filed 9-26-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 64 [Docket ID FEMA-2018-0002; Internal Agency Docket No. FEMA-8549] Suspension of Community Eligibility AGENCY:

    Federal Emergency Management Agency, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    This rule identifies communities where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the Federal Register on a subsequent date. Also, information identifying the current participation status of a community can be obtained from FEMA's Community Status Book (CSB). The CSB is available at https://www.fema.gov/national-flood-insurance-program-community-status-book.

    DATES:

    The effective date of each community's scheduled suspension is the third date (“Susp.”) listed in the third column of the following tables.

    FOR FURTHER INFORMATION CONTACT:

    If you want to determine whether a particular community was suspended on the suspension date or for further information, contact Adrienne L. Sheldon, PE, CFM, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 400 C Street SW, Washington, DC 20472, (202) 212-3966.

    SUPPLEMENTARY INFORMATION:

    The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register.

    In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

    Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

    National Environmental Policy Act. FEMA has determined that the community suspension(s) included in this rule is a non-discretionary action and therefore the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) does not apply.

    Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

    Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

    Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

    Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

    Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

    List of Subjects in 44 CFR Part 64

    Flood insurance, Floodplains.

    Accordingly, 44 CFR part 64 is amended as follows:

    PART 64—[AMENDED] 1. The authority citation for Part 64 continues to read as follows: Authority:

    42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp.; p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp.; p. 376.

    § 64.6 [Amended]
    2. The tables published under the authority of § 64.6 are amended as follows: State and location Community
  • No.
  • Effective date authorization/cancellation
  • of sale of flood insurance in community
  • Current effective
  • map date
  • Date certain
  • Federal
  • assistance no
  • longer available
  • in SFHAs
  • Region IV Georgia: Acworth, City of, Cobb County 130053 March 14, 1974, Emerg; February 15, 1978, Reg; October 5, 2018, Susp Oct. 5, 2018 Oct. 5, 2018. Adairsville, City of, Bartow County 130235 January 5, 1979, Emerg; July 30, 1982, Reg; October 5, 2018, Susp ......do *   Do. Bartow County, Unincorporated Areas 130463 May 10, 1979, Emerg; September 29, 1989, Reg; October 5, 2018, Susp ......do   Do. Cartersville, City of, Bartow County 130209 April 17, 1974, Emerg; June 25, 1982, Reg; October 5, 2018, Susp ......do   Do. Cobb County, Unincorporated Areas 130052 June 12, 1973, Emerg; January 3, 1979, Reg; October 5, 2018, Susp ......do   Do. Emerson, City of, Bartow County 130276 April 19, 1976, Emerg; October 8, 1982, Reg; October 5, 2018, Susp ......do   Do. Euharlee, City of, Bartow County 130570 N/A, Emerg; August 2, 1999, Reg; October 5, 2018, Susp ......do   Do. Kennesaw, City of, Cobb County 130055 July 25, 1975, Emerg; August 1, 1980, Reg; October 5, 2018, Susp ......do   Do. Kingston, City of, Bartow County 130277 N/A, Emerg; November 13, 2002, Reg; October 5, 2018, Susp ......do   Do. Marietta, City of, Cobb County 130226 September 5, 1974, Emerg; February 15, 1978, Reg; October 5, 2018, Susp ......do   Do. Smyrna, City of, Cobb County 130057 December 17, 1973, Emerg; December 15, 1977, Reg; October 5, 2018, Susp ......do   Do. White, City of, Bartow County 130278 June 18, 1976, Emerg; June 4, 1982, Reg; October 5, 2018, Susp ......do   Do. Region VI Louisiana: Baskin, Village of, Franklin Parish 220072 May 15, 1973, Emerg; September 1, 1986, Reg; October 5, 2018, Susp ......do   Do. Epps, Village of, West Carroll Parish 220283 July 28, 1995, Emerg; March 1, 2010, Reg; October 5, 2018, Susp ......do   Do. Forest, Village of, West Carroll Parish 220286 N/A, Emerg; February 6, 2009, Reg; October 5, 2018, Susp ......do   Do. Franklin Parish, Unincorporated Areas 220071 May 2, 1973, Emerg; November 1, 1985, Reg; October 5, 2018, Susp ......do   Do. Gilbert, Village of, Franklin Parish 220073 May 2, 1973, Emerg; September 3, 1980, Reg; October 5, 2018, Susp ......do   Do. Oak Grove, Town of, West Carroll Parish 220342 N/A, Emerg; August 18, 1997, Reg; October 5, 2018, Susp ......do   Do. Pioneer, Village of, West Carroll Parish 220244 N/A, Emerg; July 11, 1997, Reg;October 5, 2018, Susp ......do   Do. West Carroll Parish, Unincorporated Areas 220243 March 14, 1975, Emerg; March 1, 1987, Reg; October 5, 2018, Susp ......do   Do. Winnsboro, City of, Franklin Parish 220074 May 2, 1973, Emerg; September 1, 1978, Reg; October 5, 2018, Susp ......do   Do. Wisner, Town of, Franklin Parish 220075 May 2, 1973, Emerg; July 16, 1980, Reg; October 5, 2018, Susp ......do   Do. Region VII Iowa: Jasper County, Unincorporated Areas 190880 February 23, 1983, Emerg; January 1, 1987, Reg; October 5, 2018, Susp ......do   Do. Kellogg, City of, Jasper County 190164 June 3, 1977, Emerg; June 1, 1987, Reg; October 5, 2018, Susp ......do   Do. Lynnville, City of, Jasper County 190165 N/A, Emerg; January 11, 2018, Reg; October 5, 2018, Susp ......do   Do. Mingo, City of, Jasper County 190166 N/A, Emerg; August 4, 2011, Reg; October 5, 2018, Susp ......do   Do. Monroe, City of, Jasper County 190621 N/A, Emerg; June 18, 2010, Reg; October 5, 2018, Susp ......do   Do. Newton, City of, Jasper County 190628 May 9, 1977, Emerg; April 25, 1980, Reg; October 5, 2018, Susp ......do   Do. Missouri: Lincoln County, Unincorporated Areas 290869 June 9, 1980, Emerg; March 15, 1984, Reg; October 5, 2018, Susp ......do   Do. Troy, City of, Lincoln County 290641 April 17, 1980, Emerg; May 5, 1981, Reg; October 5, 2018, Susp ......do   Do. * -do- and Do = Ditto. Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp.—Suspension.
    Dated: September 14, 2018. Eric Letvin, Deputy Assistant Administrator for Mitigation, Federal Insurance and Mitigation Administration, Department of Homeland Security, Federal Emergency Management Agency.
    [FR Doc. 2018-21013 Filed 9-26-18; 8:45 am] BILLING CODE 9110-12-P
    DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 360, 380, 382, 385, 390, 391, 395, 396, and 397 RIN 2126-AC09 General Technical, Organizational, Conforming, and Correcting Amendments to the Federal Motor Carrier Safety Regulations AGENCY:

    Federal Motor Carrier Safety Administration (FMCSA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    FMCSA amends its regulations by making technical corrections throughout the Federal Motor Carrier Safety Regulations. The Agency makes minor changes to correct inadvertent errors and omissions, remove or update obsolete references, and improve the clarity and consistency of certain regulatory provisions.

    DATES:

    Effective September 27, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Mr. David Miller, Federal Motor Carrier Safety Administration, Regulatory Development Division, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, by telephone at (202) 366-5370 or via email at [email protected] Office hours are from 9:00 a.m. to 5:00 p.m. ET, Monday through Friday, except Federal holidays.

    SUPPLEMENTARY INFORMATION: I. Legal Basis for the Rulemaking

    Congress delegated certain powers to regulate interstate commerce to the United States Department of Transportation (DOT or Department) in numerous pieces of legislation, most notably in section 6 of the Department of Transportation Act (DOT Act) (Pub. L. 89-670, 80 Stat. 931, 937, Oct. 15, 1966). Section 6 of the DOT Act transferred to the Department the authority of the former Interstate Commerce Commission (ICC) to regulate the qualifications and maximum hours of service of employees, the safety of operations, and the equipment of motor carriers in interstate commerce (id. at 639). This authority, first granted to the ICC in the Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, Aug. 9, 1935), now appears in 49 U.S.C. chapter 315. The regulations issued under this (and subsequently enacted) authority became known as the Federal Motor Carrier Safety Regulations (FMCSRs), codified at 49 CFR parts 350-399. The administrative powers to enforce chapter 315 (codified in 49 U.S.C. chapter 5) were also transferred from the ICC to the DOT in 1966, and assigned first to the Federal Highway Administration (FHWA) and then to FMCSA. The FMCSA Administrator has been delegated authority under 49 CFR 1.87 to carry out the motor carrier functions vested in the Secretary of Transportation.

    Between 1984 and 1999, a number of statutes added to FHWA's authority. Various statutes authorize the enforcement of the FMCSRs, the Hazardous Materials Regulations, and the Commercial Regulations, and provide both civil and criminal penalties for violations of these requirements. These statutes include the Motor Carrier Safety Act of 1984 (MCSA) (Pub. L. 98-554, 98 Stat. 2832, Oct. 30, 1984), codified at 49 U.S.C. chapter 311, subchapter III; the Commercial Motor Vehicle Safety Act of 1986 (Pub. L. 99-570, 100 Stat. 3207-170, Oct. 27, 1986), codified at 49 U.S.C. chapter 313; the Hazardous Materials Transportation Uniform Safety Act of 1990, as amended (Pub. L. 101-615, 104 Stat. 3244, Nov. 16, 1990), codified at 49 U.S.C. chapter 51; and the ICC Termination Act of 1995 (ICCTA) (Pub. L. 104-88, 109 Stat. 803, Dec. 29, 1995), codified at 49 U.S.C. chapters 131-149.

    The Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Pub. L. 106-159, 113 Stat. 1748, Dec. 9, 1999) established FMCSA as a new operating administration within DOT, effective January 1, 2000. The motor carrier safety responsibilities previously assigned to both the ICC and FHWA are now assigned to FMCSA.

    Congress expanded, modified, and amended FMCSA's authority in the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 (Pub. L. 107-56, 115 Stat. 272, Oct. 26, 2001); the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144, Aug. 10, 2005); the SAFETEA-LU Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572, June 6, 2008); the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141, 126 Stat. 405, July 6, 2012); and the Fixing America's Surface Transportation Act (FAST Act) (Pub. L. 114-94, 129 Stat. 1312, Dec. 4, 2015).

    The specific regulations amended by this rule are based on the statutes detailed above. Generally, the legal authority for each of those provisions was explained when the requirement was originally adopted and is noted at the beginning of each part in title 49 of the CFR.

    The Administrative Procedure Act (APA) specifically provides exceptions to its notice and comment rulemaking procedures when an agency finds there is good cause to dispense with them, and incorporates the finding and a brief statement of reasons therefore, in the rules issued (5 U.S.C. 553(b)(3)(B)). Generally, good cause exists when the agency determines that notice and public comment procedures are impractical, unnecessary, or contrary to the public interest (id.). The amendments made in this final rule merely correct inadvertent errors and omissions, remove or update obsolete references, and make minor language changes to improve clarity and consistency. The technical amendments do not impose any material new requirements or increase compliance obligations. For these reasons, FMCSA finds good cause that notice and public comment on this final rule are unnecessary.

    The APA also allows agencies to make rules effective immediately with good cause (5 U.S.C. 553(d)(3)), instead of requiring publication 30 days prior to the effective date. For the reasons already stated, FMCSA finds there is good cause for this rule to be effective immediately.

    FMCSA is aware of the regulatory requirements concerning public participation in FMCSA rulemaking (49 U.S.C. 31136(g)). These requirements pertain to certain major rules,1 but, because this final rule is not a major rule, they are not applicable. In any event, the Agency finds that publication of an advance notice of proposed rulemaking under 49 U.S.C. 31136(g)(1)(A), or a negotiated rulemaking under 49 U.S.C. 31136(g)(1)(B), is unnecessary and contrary to the public interest in accordance with the waiver provision in 49 U.S.C. 31136(g)(3).

    1 A “major rule” means any rule that the Administrator of the Office of Information and Regulatory Affairs of the Office of Managment and Budget (OMB) finds has resulted in or is likely to result in (a) an annual effect on the economy of $100 million or more; (b) a major increase in costs or prices for consumers, individual industries, Federal agencies, State agencies, local government agencies, or geographic regions; or (c) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets (5 U.S.C. 804(2)). The term “major rule” does not include any rule promulgated under the Telecommunications Act of 1996 and the amendments made by that Act.

    II. Section-by-Section Analysis A. Sections 360.1 (Suspended) and 360.1T Fees for Registration-Related Services

    FMCSA amends §§ 360.1 (suspended) and 360.1T by revising paragraphs (a) and (d)(2) to correct the name and, where applicable, routing code of the office where certificates of authenticity and information on computer search fees can be obtained. Section 360.1 was revised by the Unified Registration System final rule on August 23, 2013 (78 FR 52644). On January 17, 2017, FMCSA suspended certain regulations relating to the new electronic Unified Registration System and delayed their effective date indefinitely (82 FR 5292). The suspended regulations were replaced by temporary provisions that contain the requirements in place on January 13, 2017. Section 360.1 was one of the sections suspended and § 360.1T, which is currently in effect, was added (82 FR 5297). On May 17, 2018, FMCSA amended § 360.1T to reflect that the Office of Registration and Safety Information (MC-RS) provides certificates of authenticity and information on computer search fees (83 FR 22873). However, the Office of Management Information and Services (MC-MM) is currently the office with those responsibilities. The amendments bring the name of the office and the routing symbol of the responsible office up to date.

    B. Section 380.603 Applicability

    FMCSA amends § 380.603(b) by clarifying that drivers issued a Class A or Class B commercial driver's license (CDL), or a passenger (P), school bus (S), or hazardous materials (H) endorsement before February 7, 2020, are not required to comply with the entry-level driver training (ELDT) requirements, set forth in subpart F of part 380, pertaining to that CDL or endorsement. The Agency makes this change to resolve an unintended inconsistency between § 380.603(b) and the definition of “entry-level driver” in § 380.605. Entry-level driver is defined, in part, as “an individual who must complete the CDL skills test requirements under § 383.71 of this subchapter prior to receiving a CDL for the first time, upgrading to a Class A or Class B CDL, or obtaining a hazardous materials, passenger, or school bus endorsement for the first time” (emphasis added).

    As currently written, § 380.603(b) relieves drivers who hold a “valid” Class A or Class B CDL or a P, S, or H endorsement issued before February 7, 2020, of the burden of completing ELDT for that CDL or endorsement. However, in the preamble of the ELDT final rule, FMCSA noted its intention to delete the term “valid CDL” to make the provision consistent with the scope of the final rule: “Accordingly, the subsection now states that anyone holding a Class A or Class B CDL, or the passenger (P), school bus (S), or hazardous materials (H) endorsement, issued before the compliance date [February 7, 2020,] is not subject to ELDT requirements pertaining to that CDL or endorsement” (81 FR 88774, Dec. 8, 2016). Today's change conforms the language of § 380.603(b) to the Agency's original intention, as expressed in the preamble to the ELDT final rule. An individual to whom a specified CDL or endorsement was issued prior to February 7, 2020, is not subject to ELDT requirements for that CDL or endorsement because the individual is not an “entry-level driver” as that term is defined in § 380.605.

    C. Section 382.107 Definitions

    At the end of paragraph (1) in the definition of “commerce” in § 382.107, FMCSA changes the conjunctive “and” to “or” to be consistent with the definition of “commerce” in 49 U.S.C. 31301(2). This action corrects an error that has been in § 382.107 since the regulation was inherited from the FHWA and later revised by FMCSA on August 17, 2001 (66 FR 43103).

    Paragraph (2) of 49 U.S.C. 31301 provides that “commerce” means trade, traffic, and transportation in the United States between a place in a State and a place outside that State (including a place outside the United States); “or” in the United States that affects trade, traffic, and transportation between a place in a State and a place outside that State. This definition applies to 49 U.S.C. 31306 (“Alcohol and controlled substances testing”), including the definition of “commerce” in § 382.107 of 49 CFR part 382 (“Controlled substances and alcohol use and testing”). To ensure consistency with the applicable statutory authority, the conjunction “and” is replaced with “or” in § 382.107 to correct an inadvertent drafting error.

    D. Appendix B to Part 385—Explanation of Safety Rating Process

    FMCSA revises Appendix B to Part 385 by correcting the entry for “§ 177.835(c)” in section VII, List of Acute and Critical Regulations, to be consistent with 49 CFR 177.835(c). While the current entry in Appendix B to Part 385 references “Division 1.1, 1.2, or 1.3 (explosive) materials,” the introductory text of 49 CFR 177.835(c) only references “Division 1.1 or 1.2 (explosive) materials.” The entry for “§ 177.835(c)” in Appendix B to Part 385 was added in the June 30, 2004, Hazardous Materials Safety Permits final rule (69 FR 39371). The Agency's August 19, 2003, supplemental notice of proposed rulemaking, however, proposed the entry to read without the Division 1.3 reference (see 68 FR 49755). There is no discussion of a need to change the entry for “§ 177.835(c)” in the final rule. Thus, the addition of Division 1.3 materials to the “§ 177.835(c)” entry appears to be an inadvertent error.

    E. Sections 390.5 (Suspended) and 390.5T Definitions

    The definitions of “medical examiner” in §§ 390.5 (suspended) and 390.5T are revised to bring the definitions up to date. On April 20, 2012 (77 FR 24127), FMCSA revised the definition of “medical examiner” in § 390.5 to include the requirements of the National Registry of Certified Medical Examiners final rule. On January 17, 2017 (82 FR 5311, 5314), § 390.5 was suspended indefinitely and § 390.5T was added as part of the rule to delay the effective date of certain provisions of the Unified Registration System rule. Because the May 21, 2014, compliance date for the National Registry of Certified Medical Examiners rule has passed, the current definitions are obsolete. This change clarifies the definition by removing only the language that provided the pre-May 21, 2014, definition of a medical examiner, and leaving the current definition.

    F. Section 391.23 Investigations and Inquiries

    FMCSA amends § 391.23(a)(1) by adding a time frame of 30 days from the date a driver's employment begins, to clarify when an inquiry must be made to a State for the motor vehicle record (MVR). Currently, the time frame is provided in paragraph (b).

    Section 391.23 was adopted on April 22, 1970 (35 FR 6461). Paragraph (a) has not been amended in a relevant way since it was adopted. On November 13, 1970 (35 FR 17420), paragraph (b) was amended to provide that the inquiry to States required by paragraph (a)(1) “must be made within 30 days of the date the driver's employment begins.” Section 391.23(b) was next amended on March 30, 2004 (69 FR 16720) to require that a copy of the driver's MVR obtained in response to the inquiry to each State required by paragraph (a)(1) “be placed in the driver qualification file within 30 days of the date the driver's employment begins.” Therefore, the amendment is consistent with the regulation's history and the language and meaning of paragraph (b). Adding the language also does not impose any additional burden on a motor carrier because the carrier is already required to obtain the MVR.

    G. Section 395.2 Definitions

    The definition of “farm supplies for agricultural purposes” in § 395.2 is amended by removing the italics from the phrase “at any time of the year.” The definition is adopted from a direct quotation of section 4130(c) of SAFETEA-LU (Pub. L. 109-59, 119 Stat. 1144, 1743, Aug. 10, 2005), except that the statute does not italicize the relevant phrase. When the definition was added to § 395.2 on July 5, 2007, the phrase was italicized without an explanation for the need to highlight it (72 FR 36790). Because there is no reason to highlight the phrase “at any time of the year,” the italics are removed.

    In the definition of “transportation of construction material and equipment” in § 395.2, the word “tomovements” is changed to read “to movements” to correct a typographical error. FMCSA revised the definition on July 22, 2016 (81 FR 47721).

    H. Section 397.73 Public Information and Reporting Requirements and Section 397.103 Requirements for State Routing Designations

    FMCSA amends § 397.73(c) by removing the erroneous phrase “in the Federal Register” and correcting the name of the registry to “National Hazardous Materials Route Registry.” The preamble of the final rule modifying § 397.73(c), published on October 2, 2014 (79 FR 59450), accurately stated twice that publication in the Hazardous Materials Route Registry (e.g., not the Federal Register) was required to make a routing designation effective (79 FR 59453). FMCSA amends § 397.103(c)(3) by correcting the name of the registry to “National Hazardous Materials Route Registry.” These errors were present when the paragraphs were adopted (see 79 FR 59457-58) in response to section 33013(b) of MAP-21 (Pub. L. 112-141, 126 Stat. 405, 839, July 6, 2012). As stakeholders have suggested, and consistent with section 33013(b) of MAP-21, language is added to both sections to clarify that a routing designation becomes effective after it is published in the National Hazardous Materials Route Registry on FMCSA's website and to provide the website's address.

    The Agency notes that it will continue to periodically publish notices in the Federal Register summarizing changes to the National Hazardous Materials Route Registry. However, such Federal Register notices do not affect the effective date of changes published in the National Hazardous Materials Route Registry on FMCSA's website. The industry should continue to consult FMCSA's website for the most up-to-date list of all designated and restricted road and preferred highway routes for transportation of highway route controlled quantities of Class 7 radioactive materials and non-radioactive hazardous materials.

    III. Regulatory Analyses A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 (Improving Regulation and Regulatory Review), and DOT Regulatory Policies and Procedures

    FMCSA determined that this final rule is not a significant regulatory action under section 3(f) of E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. Accordingly, OMB has not reviewed it under that Order. It is also not significant within the meaning of DOT regulatory policies and procedures (DOT Order 2100.5, dated May 22, 1980; 44 FR 11034, Feb. 26, 1979). This final rule makes changes to correct inaccurate references and citations, improve clarity, and fix errors. None of the changes in this final rule imposes material new requirements or increases compliance obligations; therefore, this final rule imposes no new costs and a full regulatory evaluation is unnecessary.

    B. E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)

    This rulemaking is not an E.O. 13771 regulatory action and no further action under E.O. 13771 is required.

    C. Regulatory Flexibility Act (Small Entities)

    Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612), FMCSA is not required to complete a regulatory flexibility analysis because, as discussed earlier in the Legal Basis for the Rulemaking section, this action is not subject to notice and public comment under section 553(b) of the APA.

    D. Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this final rule so that they can better evaluate its effects and participate in the rulemaking initiative. If the final rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance; please consult the FMCSA point of contact, David Miller, listed in the For Further Information Contact section of this final rule.

    Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's 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 FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.

    E. Unfunded Mandates Reform Act of 1995

    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 State, local, and tribal governments, in the aggregate, or by the private sector of $156 million (which is the value equivalent of $100,000,000 in 1995, adjusted for inflation to 2015 levels) or more in any 1 year. This final rule will not result in such an expenditure.

    F. Paperwork Reduction Act (Collection of Information)

    This final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

    G. E.O. 13132 (Federalism)

    A rule has implications for federalism under section 1(a) of E.O. 13132 if it has “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.” FMCSA has determined that this rule will not have substantial direct costs on or for States, nor will it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Impact Statement.

    H. E.O. 12988 (Civil Justice Reform)

    This final rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

    I. E.O. 13045 (Protection of Children)

    E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies issuing “economically significant” rules, if the regulation also concerns an environmental health or safety risk that an agency has reason to believe may disproportionately affect children, to include an evaluation of the regulation's environmental health and safety effects on children. The Agency determined this final rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, the Agency does not anticipate that this regulatory action could in any respect present an environmental or safety risk that could disproportionately affect children.

    J. E.O. 12630 (Taking of Private Property)

    FMCSA reviewed this final rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have taking implications.

    K. Privacy

    The Consolidated Appropriations Act, 2005 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note) requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. Because this final rule does not require the collection of personally identifiable information, the Agency is not required to conduct a PIA.

    The E-Government Act of 2002 (Pub. L. 107-347, § 208, 116 Stat. 2899, 2921, Dec. 17, 2002), requires Federal agencies to conduct a PIA for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology would collect, maintain, or disseminate information as a result of this rule. Accordingly, FMCSA has not conducted a PIA.

    L. E.O. 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

    M. E.O. 13211 (Energy Supply, Distribution, or Use)

    FMCSA has analyzed this final rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.

    N. E.O. 13783 (Promoting Energy Independence and Economic Growth)

    E.O. 13783 directs executive departments and agencies to review existing regulations that potentially burden the development or use of domestically produced energy resources, and to appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources. In accordance with E.O. 13783, DOT prepared and submitted a report to the Director of OMB that provides specific recommendations that, to the extent permitted by law, could alleviate or eliminate aspects of agency action that burden domestic energy production. This rule has not been identified by DOT under E.O. 13783 as potentially alleviating unnecessary burdens on domestic energy production.

    O. E.O. 13175 (Indian Tribal Governments)

    This rule does not have tribal implications under E.O. 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.

    P. National Technology Transfer and Advancement Act (Technical Standards)

    The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) are standards that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, FMCSA did not consider the use of voluntary consensus standards.

    Q. Environment (NEPA and CAA)

    FMCSA analyzed this rule for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and determined this action is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1 (69 FR 9680, Mar. 1, 2004), Appendix 2, paragraph 6.b. This Categorical Exclusion (CE) addresses minor corrections such as those found in this rulemaking; therefore, preparation of an environmental assessment or environmental impact statement is not necessary. The CE determination is available for inspection or copying in the docket.

    FMCSA also analyzed this rule under section 176(c) of the Clean Air Act, as amended (CAA) (42 U.S.C. 7406(c)), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement because it does not affect direct or indirect emissions of criteria pollutants.

    List of Subjects 49 CFR Part 360

    Administrative practice and procedure, Brokers, Buses, Freight forwarders, Hazardous materials transportation, Highway safety, Insurance, Motor carriers, Motor vehicle safety, Moving of household goods, Penalties, Reporting and recordkeeping requirements, Surety bonds.

    49 CFR Part 380

    Administrative practice and procedure, Highway safety, Motor carriers, Reporting and recordkeeping requirements.

    49 CFR Part 382

    Administrative practice and procedure, Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor carriers, Penalties, Safety, Transportation.

    49 CFR Part 385

    Administrative practice and procedure, Highway safety, Mexico, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.

    49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.

    49 CFR Part 391

    Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor carriers, Reporting and recordkeeping requirements, Safety, Transportation.

    49 CFR Part 395

    Highway safety, Motor carriers, Reporting and recordkeeping requirements.

    49 CFR Part 396

    Highway safety, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.

    49 CFR Part 397

    Administrative practice and procedure, Hazardous materials transportation, Highway safety, Intergovernmental relations, Motor carriers, Parking, Radioactive materials, Reporting and recordkeeping requirements, Rubber and rubber products.

    In consideration of the foregoing, FMCSA amends 49 CFR chapter III as set forth below:

    PART 360—FEES FOR MOTOR CARRIER REGISTRATION AND INSURANCE 1. The authority citation for part 360 continues to read as follows: Authority:

    31 U.S.C. 9701; 49 U.S.C. 13908; and 49 CFR 1.87.

    2. Amend § 360.1 as follows: a. Lift the suspension of the section; b. Revise paragraphs (a) and (d)(2); and c. Suspend § 360.1 indefinitely.
    § 360.1 Fees for registration-related services.

    (a) Certificate of the Director, Office of Management Information and Services, as to the authenticity of documents, $12;

    (d) * * *

    (2) The fee for computer searches will be set at the current rate for computer service. Information on those charges can be obtained from the Office of Management Information and Services (MC-MM).

    3. Amend § 360.1T by revising paragraphs (a) and (d)(2) to read as follows:
    § 360.1T Fees for registration-related services.

    (a) Certificate of the Director, Office of Management Information and Services, as to the authenticity of documents, $9.00;

    (d) * * *

    (2) The fee for computer searches will be set at the current rate for computer service. Information on those charges can be obtained from the Office of Management Information and Services (MC-MM).

    PART 380—SPECIAL TRAINING REQUIREMENTS 4. The authority citation for part 380 is revised to read as follows: Authority:

    49 U.S.C. 31133, 31136, 31305, 31307, 31308, 31502; sec. 4007(a) and (b), Pub. L. 102-240, 105 Stat. 1914, 2151; sec. 32304, Pub. L. 112-141, 126 Stat. 405, 791; and 49 CFR 1.87.

    5. Amend § 380.603 by revising paragraph (b) to read as follows:
    § 380.603 Applicability.

    (b) Drivers issued a Class A CDL, Class B CDL, or a passenger (P), school bus (S), or hazardous materials (H) endorsement before February 7, 2020, are not required to comply with this subpart pertaining to that CDL or endorsement.

    PART 382—CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING 6. The authority citation for part 382 is revised to read as follows: Authority:

    49 U.S.C. 31133, 31136, 31301 et seq., 31502; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; and 49 CFR 1.87.

    7. Amend § 382.107 by revising paragraph (1) in the definition of “Commerce” to read as follows:
    § 382.107 Definitions.

    Commerce means:

    (1) Any trade, traffic or transportation within the jurisdiction of the United States between a place in a State and a place outside of such State, including a place outside of the United States; or

    PART 385—SAFETY FITNESS PROCEDURES 8. The authority citation for part 385 is revised to read as follows: Authority:

    49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5113, 13901-13905, 13908, 31136, 31144, 31148, 31151, 31502; sec. 350, Pub. L. 107-87, 115 Stat. 833, 864; and 49 CFR 1.87.

    9. Amend Appendix B to Part 385, section VII, by revising the entry for “§ 177.835(c)” to read as follows: Appendix B to Part 385—Explanation of Safety Rating Process VII. List of Acute and Critical Regulations

    § 177.835(c) Accepting for transportation or transporting Division 1.1 or 1.2 (explosive) materials in a motor vehicle or combination of vehicles that is not permitted (acute).

    PART 390—FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL 10. The authority citation for part 390 continues to read as follows: Authority:

    49 U.S.C. 504, 508, 31132, 31133, 31134, 31136, 31137, 31144, 31149, 31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; sec. 212 and 217, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as added and transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743; sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745; secs. 32101(d) and 32934, Pub. L. 112-141, 126 Stat. 405, 778, 830; sec. 2, Pub. L. 113-125, 128 Stat. 1388; secs. 5403, 5518, and 5524, Pub. L. 114-94, 129 Stat. 1312, 1548, 1558, 1560; sec. 2, Pub. L. 115-105, 131 Stat. 2263; and 49 CFR 1.81, 1.81a, 1.87.

    11. Amend § 390.5 as follows: a. Lift the suspension of the section; b. Revise the definition of “Medical examiner”; and c. Suspend § 390.5 indefinitely.
    § 390.5 Definitions.

    Medical examiner means an individual certified by FMCSA and listed on the National Registry of Certified Medical Examiners in accordance with subpart D of this part.

    12. Amend § 390.5T by revising the definition of “Medical examiner” to read as follows:
    § 390.5T Definitions.

    Medical examiner means an individual certified by FMCSA and listed on the National Registry of Certified Medical Examiners in accordance with subpart D of this part.

    PART 391—QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS 13. The authority citation for part 391 continues to read as follows: Authority:

    49 U.S.C. 504, 508, 31133, 31136, 31149, 31502; sec. 4007(b), Pub. L. 102-240, 105 Stat. 1914, 2152; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; sec. 215, Pub. L. 106-159, 113 Stat. 1748, 1767; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; secs. 5403 and 5524, Pub. L. 114-94, 129 Stat. 1312, 1548, 1560; sec. 2, Pub. L. 115-105, 131 Stat. 2263; and 49 CFR 1.87.

    14. Amend § 391.23 by revising paragraph (a)(1) to read as follows:
    § 391.23 Investigations and inquiries.

    (a) * * *

    (1) An inquiry, within 30 days of the date the driver's employment begins, to each State where the driver held or holds a motor vehicle operator's license or permit during the preceding 3 years to obtain that driver's motor vehicle record.

    PART 395—HOURS OF SERVICE OF DRIVERS 15. The authority citation for part 395 is revised to read as follows: Authority:

    49 U.S.C. 504, 31133, 31136, 31137, 31502; sec. 113, Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-159 (as added and transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub. L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432, 122 Stat. 4860-4866; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; sec. 5206(b), Pub. L. 114-94, 129 Stat. 1312, 1537; and 49 CFR 1.87.

    § 395.2 [Amended]
    16. Amend § 395.2, in the definition of “Farm supplies for agricultural purposes” by removing the phrase “at any time of the year” and adding in its place the phrase “at any time of the year”. 17. Amend § 395.2, in the definition of “Transportation of construction material and equipment” by removing the word “tomovements” and adding in its place the words “to movements”. PART 396—INSPECTION, REPAIR, AND MAINTENANCE 18. The authority citation for part 396 is revised to read as follows: Authority:

    49 U.S.C. 504, 31133, 31136, 31151, 31502; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; sec. 5524, Pub. L. 114-94, 129 Stat. 1312, 1560; and 49 CFR 1.87.

    PART 397—TRANSPORTATION OF HAZARDOUS MATERIALS; DRIVING AND PARKING RULES 19. The authority citation for part 397 continues to read as follows: Authority:

    49 U.S.C. 322; 49 CFR 1.87. Subpart A also issued under 49 U.S.C. 5103, 31136, 31502, and 49 CFR 1.97. Subparts C, D, and E also issued under 49 U.S.C. 5112, 5125.

    20. Amend § 397.73 by revising paragraph (c) to read as follows:
    § 397.73 Public information and reporting requirements.

    (c) A State or Tribally-designated route is effective only after it is published in the National Hazardous Materials Route Registry on FMCSA's website at https://www.fmcsa.dot.gov/regulations/hazardous-materials/national-hazardous-materials-route-registry.

    21. Amend § 397.103 by revising paragraph (c)(3) to read as follows:
    § 397.103 Requirements for State routing designations.

    (c) * * *

    (3) The route is published in the National Hazardous Materials Route Registry on FMCSA's website at https://www.fmcsa.dot.gov/regulations/hazardous-materials/national-hazardous-materials-route-registry.

    Issued under the authority delegated in 49 CFR 1.87 on: September 21, 2018. Raymond P. Martinez, Administrator.
    [FR Doc. 2018-21064 Filed 9-26-18; 8:45 am] BILLING CODE 4910-EX-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 160808696-7010-02] RIN 0648-BI47 Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2017-2018 Biennial Specifications and Management Measures; Inseason Adjustments AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Final rule; inseason adjustments to biennial groundfish management measures.

    SUMMARY:

    This final rule announces routine inseason adjustments to management measures in California recreational groundfish fisheries. This action, which is authorized by the Pacific Coast Groundfish Fishery Management Plan, is intended to allow recreational fishing vessels to access more abundant groundfish stocks while protecting overfished and depleted stocks.

    DATES:

    This final rule is effective September 27, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Karen Palmigiano, phone: 206-526-4491 or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Electronic Access

    This rule is accessible via the internet at the Office of the Federal Register website at https://www.federalregister.gov. Background information and documents are available at the Pacific Fishery Management Council's website at http://www.pcouncil.org/.

    Background

    The Pacific Coast Groundfish Fishery Management Plan (PCGFMP) and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subparts C through G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. The Pacific Fishery Management Council (Council) develops groundfish harvest specifications and management measures for two-year periods (i.e., a biennium). NMFS published the final rule to implement harvest specifications and management measures for the 2017-18 biennium for most species managed under the PCGFMP on February 7, 2017 (82 FR 9634). In general, the management measures set at the start of the biennial specifications cycle to help the various sectors of the fishery attain, but not exceed, the catch limits for each stock. The Council, in coordination with the States of Washington, Oregon, and California, recommends adjustments to the management measures during the fishing year to achieve this goal.

    Current estimates indicate higher than anticipated yelloweye rockfish catch in both the Oregon and California recreational groundfish fisheries. This higher mortality is likely the result of favorable weather conditions during the summer months, as well as increased fishing for groundfish due to a decline in salmon harvest opportunities. The most recent estimates indicate that catch may approach or exceed both the Oregon and California Federal recreational harvest guidelines (HG) for yelloweye rockfish for the 2018 fishing year. Yelloweye rockfish is currently rebuilding, but no longer overfished.

    The Oregon Department of Fish and Wildlife will take action through its state inseason processes to address the higher than anticipated catch of yelloweye rockfish. The California Department of Fish and Wildlife (CDFW) has already taken action on August 25, 2018, through public notice, to reduce recreational fishing impacts on yelloweye rockfish through restrictions on recreational fishing depth north of Point Conception. However, CDFW relies on modifications to the federal regulations to codify the adjusted depth restrictions needed to address their higher than anticipated harvest. Inseason changes to depth restrictions for the California recreational fishery are designated as routine management measures at § 660.60(c)(3)(i) and in section 6.2.1 of the PCGFMP.

    Analysis of Potential Impacts

    At the September Council meeting, CDFW notified the Council that information through September 2, 2018, indicated that, without additional intervention beyond the depth restrictions north of Point Conception that were put in place by CDFW on August 25, 2018, the California recreational yelloweye rockfish catch would exceed the state's HG by 20 percent, or 0.81 metric tons (mt), over their 3.9 mt HG in 2018. Based on this new information, and taking into account the higher than anticipated take of yelloweye rockfish in the Oregon recreational fishery, the Council's Groundfish Management Team (GMT) examined the need for additional restrictions to California recreational depth limits by analyzing the risk to the yelloweye rockfish annual catch limit (ACL) from state recreational HG overages. The GMT determined that there is likely to be 2.8 mt of the yelloweye rockfish ACL that will go unused due to lower than anticipated catch under the research and tribal allocations. Therefore, even with catch in excess of the Oregon and California recreational HGs, there is little risk of exceeding the yelloweye rockfish ACL. The overall 2018 catch of yelloweye rockfish for all groundfish fisheries is expected to be 17.2 mt, or 86 percent, of the 20 mt ACL.

    Therefore, the Council recommended and NMFS is implementing, through modifications to regulations at 50 CFR 660.360(c)(3)(i)(A), more restrictive depth limits for the Northern Management Area (between 42° N lat. and 40°10′ N lat.), San Francisco Management Area (between 38°57.50′ N lat. and 37°11′ N lat.), and the Central Management Area (between 37°11′ N lat. and 34°27′ N lat.). The Council did not recommend changes for the Mendocino Management Area (between 40°10′ N lat. and 38°57.50′ N lat.) where fishing is currently restricted to shoreward of the 20 fathom (fm) (37 m) depth contour through December 31, or the Southern Management Area (south of 34°27′ N lat.) where fishing is restricted to shoreward of the 60 fm (109.7 meters [m]) depth contour through December 31.

    Under the current regulations, recreational fishing in the Northern Management Area is prohibited seaward of the 30 fm (55 m) depth contour from May 1 through October 15 and prohibited seaward of 20 fm (37 m) from October 16 through December 31. With the implementation of this rule, recreational fishing in this management area will be restricted to shoreward of the 20 fm depth (37 m) contour (prohibited seaward of the 20 fm depth contour) through December 31.

    Recreational fishing is currently prohibited seaward of the 40 fm depth (73 m) contour in the San Francisco Management Area from April 15 through October 15 and seaward of the 50 fm depth contour in the Central Management Area. This rule will further restrict recreational fishing depths in these areas through December 31, 2018. Recreational fishing in the San Francisco Management Area will be prohibited to seaward of the 30 fm (55 m) depth contour (prohibited seaward of the 30 fm depth contour) and in the Central Management Area recreational fishing will be prohibited seaward of the 40 fm (73 m) depth contour through December 31, 2018.

    Classification

    This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best available information, consistent with the PCGFMP and its implementing regulations.

    This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.

    The aggregate data upon which these actions are based are available for public inspection by contacting Karen Palmigiano in NMFS West Coast Region (see FOR FURTHER INFORMATION CONTACT, above), or view at the NMFS West Coast Groundfish website: http://www.westcoast.fisheries.noaa.gov/fisheries/groundfish/index.html.

    NMFS finds good cause to waive prior public notice and comment on the revisions to groundfish management measures under 5 U.S.C. 553(b) because notice and comment would be impracticable and contrary to the public interest. Also, for the same reasons, NMFS finds good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective September 27, 2018. The adjustments to management measures in this document affect recreational fisheries in California. No aspect of this action is controversial, and changes of this nature were anticipated in the biennial harvest specifications and management measures established through the final rule for the 2017-18 harvest specifications and management measures which published on February 7, 2017 (82 FR 9634).

    At its September 2018 meeting, the Council recommended changes to the depth restrictions for recreational fishery management areas off of California be implemented as soon as possible to conform to action already taken by CDFW to prevent recreational catch from further exceeding the state recreational HG for yelloweye rockfish. Without immediate Federal action, there is the potential that yelloweye rockfish impacts would exceed what is expected under the new restrictions, possibly resulting in harvest beyond the yelloweye rockfish ACL. Exceeding an ACL could result in area closures, reduced bag limits, and, in the worst case, a complete recreational fishery closure. According to CDFW, recreational anglers make, on average, more than 100,000 trips in all five management areas in October and November each year. Prematurely closing the fishery or severely limiting recreational fishing by closing certain areas would result in economic harm to those communities that rely on recreational fishing.

    Additionally, there was not sufficient time after the September 2018 Council meeting for proposed and final rulemaking before this action needs to be in effect. Affording the time necessary for prior notice and opportunity for public comment would prevent NMFS and California taking effective and efficient action to prevent further impacts to yelloweye rockfish and prevent the potential harm that would result from more restrictive fishery management measures (i.e. area restrictions or closures) in October and November. NMFS and the Council used the best available science when considering the risk to the yelloweye ACL and determined that these depth-based restrictions will move vessels to shallower waters where they are less likely to encounter yelloweye rockfish, while also providing the recreational fishing opportunity that benefits local communities.

    It is in the public interest in California to allow the recreational fishery to remain open for the remainder of the year. Recreational fishing in California contributes revenue to the coastal communities of that state, and closing the fishery for a portion or remainder of the year would cause adverse economic impacts to those communities. This action, if implemented quickly, is anticipated to provide recreational fishing opportunity for the duration of the year while keeping yelloweye rockfish harvest within the ACL, and is consistent with the best scientific information available.

    List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, and Indian fisheries.

    Dated: September 21, 2018. Margo B. Schulze-Haugen, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:

    PART 660—FISHERIES OFF WEST COAST STATES 1. The authority citation for part 660 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

    2. In § 660.360, revise paragraphs (c)(3)(i)(A)(1) through (4) to read as follows:
    § 660.360 Recreational fishery—management measures.

    (c) * * *

    (3) * * *

    (i) * * *

    (A) * * *

    (1) Between 42° N lat. (California/Oregon border) and 40°10′ N lat. (Northern Management Area), recreational fishing for all groundfish (except petrale sole, starry flounder, and “other flatfish” as specified in paragraph (c)(3)(iv) of this section) is closed entirely from January 1 through April 30; is prohibited seaward of the 30 fm (55 m) depth contour along the mainland coast and along islands and offshore seamounts from May 1 through September 27, 2018 (shoreward of 30 fm is open); and is prohibited seaward of the 20 fm (37 m) depth contour along the mainland coast and along islands and offshore seamounts from September 27, 2018 through December 31 (shoreward of 20 fm is open). Coordinates for the boundary line approximating the 20 (37 m) and 30 fm (55 m) depth contours are listed in § 660.71.

    (2) Between 40°10′ N lat. and 38°57.50′ N lat. (Mendocino Management Area), recreational fishing for all groundfish (except petrale sole, starry flounder, and “other flatfish” as specified in paragraph (c)(3)(iv) of this section) is closed entirely from January 1 through April 30, and is prohibited seaward of the 20 fm (37 m) depth contour along the mainland coast and along islands and offshore seamounts from May 1 through December 31 (shoreward of 20 fm is open). Coordinates for the boundary line approximating the 20 fm depth contour are listed in § 660.71.

    (3) Between 38°57.50′ N lat. and 37°11′ N lat. (San Francisco Management Area), recreational fishing for all groundfish (except petrale sole, starry flounder, and “other flatfish” as specified in paragraph (c)(3)(iv) of this section) is closed entirely from January 1 through April 14; is prohibited seaward of the boundary line approximating the 40 fm (73 m) depth contour along the mainland coast and along islands and offshore seamounts from April 15 through September 27, 2018; and is prohibited seaward of the boundary line approximating the 30 fm (55 m) depth contour along the mainland coast and along islands and offshore seamounts from September 27, 2018 through December 31. Closures around Cordell Banks (see paragraph (c)(3)(i)(C) of this section) also apply in this area. Coordinates for the boundary line approximating the 30 (55 m) and 40 fm (73 m) depth contours are listed in § 660.71.

    (4) Between 37°11′ N lat. and 34°27′ N lat. (Central Management Area), recreational fishing for all groundfish (except petrale sole, starry flounder, and “other flatfish” as specified in paragraph (c)(3)(iv) of this section) is closed entirely from January 1 through March 31 (i.e., prohibited seaward of the shoreline); is prohibited seaward of a boundary line approximating the 50 fm (91 m) depth contour along the mainland coast and along islands and offshore seamounts from April 1 through September 27, 2018; and, is prohibited seaward of a boundary line approximating the 40 fm (73 m) depth contour along the mainland coast and along islands and offshore seamounts from September 27, 2018 through December 31. Coordinates for the boundary line approximating the 40 fm (73 m) depth contour are specified at § 660.71 and the 50 fm (91 m) depth contour are specified in § 660.72.

    [FR Doc. 2018-20991 Filed 9-26-18; 8:45 am] BILLING CODE 3510-22-P
    83 188 Thursday, September 27, 2018 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0817; Airspace Docket No. 18-ASW-1] RIN 2120-AA66 Proposed Amendment and Establishment of Multiple Air Traffic Service (ATS) Routes in the Vicinity of Houston, TX AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to modify 3 jet routes, 2 high altitude area navigation (RNAV) Q-routes, and 8 VHF Omnidirectional Range (VOR) Federal airways, and establish 4 low altitude RNAV T-routes in the vicinity of Houston, TX, due to the planned decommissioning of the Hobby, TX, VOR/Distance Measuring Equipment (VOR/DME) navigation aid (NAVAID), which provides navigation guidance for portions of the affected ATS routes

    DATES:

    Comments must be received on or before November 13, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1 (800) 647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2018-0817; Airspace Docket No. 18-ASW-1 at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov.

    FAA Order 7400.11C, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11C at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

    FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Colby Abbott, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

    Communications should identify both docket numbers (FAA Docket No. FAA-2018-0817; Airspace Docket No. 18-ASW-1) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

    Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2018-0817; Airspace Docket No. 18-ASW-1.” The postcard will be date/time stamped and returned to the commenter.

    All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Central Service Center, Federal Aviation Administration, 10101 Hillwood Blvd., Fort Worth, TX 76177.

    Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018. FAA Order 7400.11C is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11C lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    Background

    The FAA is planning to decommission the Hobby VOR/DME in April 2019 in support of construction activities for a new international terminal and associated parking garage at the William P. Hobby Airport, Houston, TX. The ATS routes effected by the Hobby VOR/DME decommissioning are jet routes J-37, J-138, and J-177, and VOR Federal airways V-15, V-20, V-68, V-76, V-194, V-198, V-548, and V-558.

    With the planned decommissioning of the Hobby VOR/DME, the remaining ground-based NAVAID coverage in the area is insufficient to enable the continuity of the effected ATS routes. As such, proposed modifications to the effected jet routes and VOR Federal airways would result in gaps in those routes. To overcome the gaps, 2 high altitude RNAV Q-routes (Q-24 and Q-56) are proposed to be amended and 4 low altitude RNAV T-routes (T-200, T-220, T-224, and T-256) are proposed to be established to replace the jet route and VOR Federal airway segments proposed to be removed over the Hobby VOR/DME. The proposed amended Q-routes would provide the route structure necessary for departures from the Austin, Houston, and San Antonio terminal areas to transition to the en route environment. The proposed new T-routes would provide the Tower En Route structure through the airspace delegated to the Houston Terminal Radar Approach Control facility necessary to allow flights to continue along the en route structure that extends from San Antonio along the Gulf Coast into Florida.

    Instrument flight rules (IFR) traffic that cannot fly Q-routes could use adjacent jet routes J-29 between the Palacios, TX, VORTAC and Humble, TX, VORTAC; J-22 between the Palacios, TX, VORTAC and Lake Charles, LA, VORTAC; and J-2, J-86 and J-31 between the San Antonio, TX, VORTAC and Harvey, LA, VORTAC to circumnavigate the affected area. Similarly, IFR traffic that cannot fly T-routes could use adjacent VOR Federal Airways V-70 between the Palacios, TX, VORTAC and Sabine Pass, LA, VOR/DME; V-556 between the Eagle Lake, TX, VOR/DME and Sabine Pass, LA, VOR/DME; and V-212, V-571, and V-222 between the Industry, TX, VORTAC and Beaumont, LA, VOR/DME to circumnavigate the affected area. Additionally, IFR traffic could file point to point through the affected area using fixes that will remain in place, or receive air traffic control (ATC) radar vectors through the area. Visual flight rules pilots who elect to navigate via the airways through the affected area could also take advantage of the adjacent jet routes, VOR Federal airways or ATC services listed previously.

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 to modify 3 jet routes, 2 Q-routes, and 8 VOR Federal airways, and establish 4 T-routes due to the planned decommissioning of the Hobby, TX, VOR/DME. The proposed ATS route amendments are to the descriptions of J-37, J-138, J-177, Q-24, Q-56, V-15, V-20, V-68, V-76, V-194, V-198, V-548, and V-558, and the proposed new T-routes would be designated T-200, T-220, T-224, and T-256. The proposed amended and new ATS route end points are listed below. Full route descriptions are in “The Proposed Amendment” section of this document.

    The proposed jet route amendments are as follows:

    J-37: J-37 currently extends between the Hobby, TX, VOR/DME and the Coyle, NJ, VORTAC; and between the Kennedy, NY, VOR/DME and the Massena, NY, VORTAC. The FAA proposes to remove the airway segment between the Hobby, TX, VOR/DME and the Harvey, LA, VORTAC. The unaffected portions of the existing airway would remain as charted.

    J-138: J-138 currently extends between the Fort Stockton, TX, VORTAC and the Semmes, AL, VORTAC. The FAA proposes to remove the airway segment between the San Antonio, TX, VORTAC and the Lake Charles, LA, VORTAC. The unaffected portions of the existing airway would remain as charted.

    J-177: J-177 currently extends between the Humble, TX, VORTAC and the Tampico, Mexico, VOR/DME, excluding the portion south of lat. 26°00′00″ N. The FAA proposes to remove the airway segment between the Humble, TX, VORTAC and the Palacios, TX, VORTAC. The unaffected portions of the existing airway would remain as charted.

    The proposed Q-route amendments are as follows:

    Q-24: Q-24 currently extends between the Lake Charles, LA, VORTAC and the PAYTN, AL, fix. The FAA proposes to extend the route west of the Lake Charles, LA, VORTAC to the San Antonio, TX, VORTAC. The San Antonio, TX, VORTAC and MOLLR, TX, WP would be added prior to the Lake Charles, LA VORTAC. The unaffected portions of the existing airway would remain as charted.

    Q-56: Q-56 currently extends between the CATLN, AL, fix and the KIWII, VA, WP. The FAA proposes to extend the route south of the CATLN, AL, fix to the San Antonio, TX, VORTAC. The San Antonio, TX, VORTAC; MOLLR, TX, WP; PEKON, LA, fix; Harvey, LA, VORTAC; and Semmes, AL, VORTAC would be added prior to the CATLN, AL, fix. Additionally, the KBLER, GA, WP would be removed between the CATLN, AL, fix and the KELLN, SC, WP. The unaffected portions of the existing airway would remain as charted.

    The proposed VOR Federal airway amendments are as follows:

    V-15: V-15 currently extends between the Hobby, TX, VOR/DME and the Neosho, MO, VOR/DME; and between the Sioux City, IA, VORTAC and the Minot, ND, VORTAC. The FAA proposes to remove the airway segment between the Hobby, TX, VOR/DME and the Navasota, TX, VOR/DME. The unaffected portions of the existing airway would remain as charted.

    V-20: V-20 currently extends between the McAllen, TX, VOR/DME and the Nottingham, MD, VORTAC. The FAA proposes to remove the airway segment between the Palacios, TX, VORTAC and the Beaumont, TX, VOR/DME. The unaffected portions of the existing airway would remain as charted.

    V-68: V-68 currently extends between the Montrose, CO, VOR/DME and the Hobby, TX, VOR/DME. The FAA proposes to remove the airway segment between the Industry, TX, VORTAC and the Hobby, TX, VOR/DME. The unaffected portions of the existing airway would remain as charted.

    V-76: V-76 currently extends between the Lubbock, TX, VORTAC and the Hobby, TX, VOR/DME. The FAA proposes to remove the airway segment between the Industry, TX, VORTAC and the Hobby, TX, VOR/DME. The unaffected portions of the existing airway would remain as charted.

    V-194: V-194 currently extends between the Cedar Creek, TX, VORTAC and the Meridian, MS, VORTAC; and between the Liberty, NC, VORTAC and the intersection of the Cofield, NC, VORTAC 077° and Norfolk, VA, VORTAC 209° radials (SUNNS fix). The FAA proposes to remove the airway segment between the College Station, TX, VORTAC and the Sabine Pass, TX, VOR/DME. The unaffected portions of the existing airway would remain as charted.

    V-198: V-198 currently extends between the San Simon, AZ, VORTAC and the Craig, FL, VORTAC. The FAA proposes to remove the airway segment between the Eagle Lake, TX, VOR/DME and the Sabine Pass, TX, VOR/DME. The unaffected portions of the existing airway would remain as charted.

    V-548: V-548 currently extends between the Hobby, TX, VOR/DME and the Waco, TX, VORTAC. The FAA proposes to remove the airway segment between the Hobby, TX, VOR/DME and the College Station, TX, VORTAC. The unaffected portions of the existing airway would remain as charted.

    V-558: V-558 currently extends between the Llano, TX, VORTAC and the Hobby, TX, VOR/DME. The FAA proposes to remove the airway segment between the Eagle Lake, TX, VOR/DME and the Hobby, TX, VOR/DME. The unaffected portions of the existing airway would remain as charted.

    The proposed new T-routes are as follows:

    T-200: T-200 would extend between the College Station, TX, VORTAC and the Sabine Pass, TX, VOR/DME.

    T-220: T-220 would extend between the Industry, TX, VORTAC and the Sabine Pass, TX, VOR/DME.

    T-224: T-224 would extend between the Palacios, TX, VORTAC and the Lake Charles, LA, VORTAC.

    T-256: T-256 would extend between the San Antonio, TX, VORTAC and the Sabine Pass, TX, VOR/DME.

    All radials in the route descriptions below are unchanged and stated in True degrees.

    Jet routes are published in paragraph 2004, high altitude RNAV Q-routes are published in paragraph 2006, Domestic VOR Federal airways are published in paragraph 6010(a), and low altitude RNAV T-routes are published in paragraph 6011 of FAA Order 7400.11C dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR 71.1. The jet routes, Q-routes, VOR Federal airways, and T-routes listed in this document will be subsequently published in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

    This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018 and effective September 15, 2018, is amended as follows: Paragraph 2004 Jet Routes. J-37 [Amended] From Harvey, LA; Semmes, AL; Montgomery, AL; Spartanburg, SC; Lynchburg, VA; Gordonsville, VA; Brooke, VA; INT Brooke 067° and Coyle, NJ, 226° radials; to Coyle. From Kennedy, NY; Kingston, NY; Albany, NY; to Massena, NY. J-138 [Amended] From Fort Stockton, TX; Center Point, TX; to San Antonio, TX. From Lake Charles, LA; Fighting Tiger, LA; to Semmes, AL. J177 [Amended] From Palacios, TX; to Tampico, Mexico, excluding the portion south of lat. 26°00′00″ N Paragraph 2006 United States Area Navigation Routes. Q-24 San Antonio, TX (SAT) to PAYTN, AL [Amended] San Antonio, TX (SAT) VORTAC (lat. 29°38′38.51″ N, long. 98°27′40.73″ W) MOLLR, TX WP (lat. 29°39′20.23″ N, long. 95°16′35.83″ W) Lake Charles, LA (LCH) VORTAC (lat. 30°08′29.45″ N, long. 93°06′20.05″ W) Fighting Tiger, LA (LSU) VORTAC (lat. 30°29′06.48″ N, long. 91°17′38.64″ W) IRUBE, MS WP (lat. 31°00′15.95″ N, long. 88°56′18.62″ W) PAYTN, AL FIX (lat. 31°28′04.35″ N, long. 87°53′07.91″ W) Q-56 San Antonio, TX (SAT) to KIWII, VA [Amended]

    San Antonio, TX (SAT) VORTAC (lat. 29°38′38.51″ N, long. 98°27′40.73″ W)

    MOLLR, TX WP (lat. 29°39′20.23″ N, long. 95°16′35.83″ W)

    PEKON, LA FIX (lat. 29°37′22.88″ N, long. 92°55′26.37″ W)

    Harvey, LA (HRV) VORTAC (lat. 29°51′00.70″ N, long. 90°00′10.74″ W)

    Semmes, AL (SJI) VORTAC (lat. 30°43′33.53″ N, long. 88°21′33.46″ W)

    CATLN, AL FIX (lat. 31°18′26.03″ N, long. 87°34′47.75″ W)

    KELLN, SC WP (lat. 34°31′33.22″ N, long. 82°10′16.92″ W)

    KTOWN, NC WP (lat. 35°11′49.14″ N, long. 81°03′18.27″ W)

    BYSCO, NC WP (lat. 35°46′09.25″ N, long. 80°04′33.85″ W)

    JOOLI, NC WP (lat. 35°54′55.21″ N, long. 79°49′16.24″ W)

    NUUMN, NC WP (lat. 36°09′53.78″ N, long. 79°23′38.70″ W)

    ORACL, NC WP (lat. 36°28′01.58″ N, long. 78°52′14.80″ W)

    KIWII, VA WP (lat. 36°34′56.91″ N, long. 78°40′03.92″ W)

    Paragraph 6010(a) Domestic VOR Federal Airways. V-15 [Amended] From Navasota, TX; College Station, TX; Waco, TX; Cedar Creek, TX; Bonham, TX; McAlester, OK; Okmulgee, OK; to Neosho, MO. From Sioux City, IA; INT Sioux City 340° and Sioux Falls, SD, 169° radials; Sioux Falls; Huron, SD; Aberdeen, SD; Bismarck, ND; to Minot, ND. V-20 [Amended] From McAllen, TX, INT McAllen 038° and Corpus Christi, TX, 178° radials; 10 miles 8 miles wide, 37 miles 7 miles wide (3 miles E and 4 miles W of centerline), Corpus Christi; INT Corpus Christi 054° and Palacios, TX, 226° radials; to Palacios. From Beaumont, TX; Lake Charles, LA; Lafayette, LA; Reserve, LA; INT Reserve 084° and Gulfport, MS, 247° radials; Gulfport; Semmes, AL; INT Semmes 048° and Monroeville, AL, 231° radials; Monroeville; Montgomery, AL; Tuskegee, AL; Columbus, GA; INT Columbus 068° and Athens, GA, 195° radials; Athens; Electric City, SC; Sugarloaf Mountain, NC; Barretts Mountain, NC; South Boston, VA; Richmond, VA; INT Richmond 039° and Brooke, VA, 132° radials; INT Patuxent, MD, 228° and Nottingham, MD, 174° radials; to Nottingham. The airspace on the main airway above 14,000 feet MSL from McAllen to 49 miles northeast and the airspace within Mexico is excluded. The airspace within R-4007A and R-4007B is excluded. V-68 [Amended] From Montrose, CO; Cones, CO; Dove Creek, CO; Cortez, CO; Rattlesnake, NM; INT Rattlesnake 128° and Albuquerque, NM, 345° radials; Albuquerque; INT Albuquerque 120° and Corona, NM, 311° radials; Corona; 41 miles 85 MSL, Chisum, NM; Hobbs, NM; Midland, TX; San Angelo, TX; Junction, TX; Center Point, TX; San Antonio, TX; INT San Antonio 064° and Industry, TX, 267° radials; to Industry. V-76 [Amended] From Lubbock, TX; INT Lubbock 188° and Big Spring, TX, 286° radials; Big Spring; San Angelo, TX; Llano, TX; Centex, TX; to Industry, TX. V-194 [Amended] From Cedar Creek, TX; to College Station, TX. From Sabine Pass, TX; Lafayette, LA; Fighting Tiger, LA; McComb, MS; INT McComb 055° and Meridian, MS, 221° radials; to Meridian. From Liberty, NC; Raleigh-Durham, NC; Tar River, NC; Cofield, NC; to INT Cofield 077° and Norfolk, VA, 209° radials. V-198 [Amended] From San Simon, AZ, via Columbus, NM; El Paso, TX; 6 miles wide; INT El Paso 109° and Hudspeth, TX, 287° radials; 6 miles wide; Hudspeth; 29 miles, 38 miles, 82 MSL, INT Hudspeth 109° and Fort Stockton, TX, 284° radials; 18 miles, 82 MSL; Fort Stockton; 20 miles, 116 miles, 55 MSL; Junction, TX; San Antonio, TX; Eagle Lake, TX; Hobby, TX; Sabine Pass, TX; White Lake, LA; Tibby, LA; Harvey, LA; 69 miles, 33 miles, 25 MSL; Brookley, AL; INT Brookley 056° and Crestview, FL, 266° radials; Crestview; Marianna, FL; Seminole, FL; Greenville, FL; Taylor, FL; INT Taylor 093° and Craig, FL, 287° radials; to Craig. V-548 [Amended] From College Station, TX; INT College Station 307° and Waco, TX, 173° radials; to Waco. V-558 [Amended] From Llano, TX; INT Llano 088° and Centex, TX, 306° radials; Centex; Industry, TX; to Eagle Lake, TX. Paragraph 6011 United States Area Navigation Routes. T-200 College Station, TX (CLL) to Sabine Pass, TX (SBI) [New] College Station, TX (CLL) VORTAC (lat. 30°36′18.00″ N, long. 96°25′14.45″ W) SEALY, TX FIX (lat. 29°51′15.54″ N, long. 95°56′36.33″ W) MOLLR, TX WP (lat. 29°39′20.23″ N, long. 95°16′35.83″ W) Sabine Pass, TX (SBI) VOR/DME (lat. 29°41′12.19″ N, long. 94°02′16.72″ W) T-220 Industry, TX (IDU) to Sabine Pass, TX (SBI) [New] Industry, TX (IDU) VORTAC (lat. 29°57′21.81″ N, long. 96°33′43.90″ W) SEALY, TX FIX (lat. 29°51′15.54″ N, long. 95°56′36.33″ W) MOLLR, TX WP (lat. 29°39′20.23″ N, long. 95°16′35.83″ W) Sabine Pass, TX (SBI) VOR/DME (lat. 29°41′12.19″ N, long. 94°02′16.72″ W) T-224 Palacios, TX (PSX) to Lake Charles, LA (LCH) [New] Palacios, TX (PSX) VORTAC (lat. 28°45′51.93″ N, long. 96°18′22.25″ W) MOLLR, TX WP (lat. 29°39′20.23″ N, long. 95°16′35.83″ W) Beaumont, TX (BPT) VOR/DME (lat. 29°56′45.80″ N, long. 94°00′58.36″ W) Lake Charles, LA (LCH) VORTAC (lat. 30°08′29.45″ N, long. 93°06′20.05″ W) T-256 San Antonio, TX (SAT) to Sabine Pass, TX (SBI) [New] San Antonio, TX (SAT) VORTAC (lat. 29°38′38.51″ N, long. 98°27′40.73″ W) Eagle Lake, TX (ELA) VOR/DME (lat. 29°39′44.93″ N, long. 96°19′01.65″ W) MOLLR, TX WP (lat. 29°39′20.23″ N, long. 95°16′35.83″ W) Sabine Pass, TX (SBI) VOR/DME (lat. 29°41′12.19″ N, long. 94°02′16.72″ W)
    Issued in Washington, DC, on September 19, 2018. Scott M. Rosenbloom, Acting Manager, Airspace Policy Group.
    [FR Doc. 2018-20988 Filed 9-26-18; 8:45 am] BILLING CODE 4910-13-P
    SECURITIES AND EXCHANGE COMMISSION 17 CFR Part 240 [Release No. 34-84225; File No. S7-21-18] RIN 3235-AM47 Amendment to Single Issuer Exemption for Broker-Dealers AGENCY:

    Securities and Exchange Commission (“Commission”).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Commission is proposing an amendment to the exemption provisions in the broker-dealer annual reporting rule under the Securities Exchange Act of 1934 (“Exchange Act”). The amendment would provide that a broker-dealer is not required to engage an independent public accountant to certify the broker-dealer's annual reports if, among other things, the securities business of the broker-dealer has been limited to acting as broker (agent) for a single issuer in soliciting subscriptions for securities of that issuer.

    DATES:

    Comments should be received on or before October 29, 2018.

    ADDRESSES:

    Comments may be submitted by any of the following methods:

    Electronic Comments

    • Use the Commission's internet comment form (http://www.sec.gov/rules/proposed.shtml); or

    • Send an email to [email protected] Please include File Number S7-21-18 on the subject line.

    Paper Comments

    • Send paper comments to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

    All submissions should refer to File Number S7-21-18. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's internet website (http://www.sec.gov/rules/proposed.shtml). Comments are also available for website viewing and printing in the Commission's Public Reference Room, 100 F Street NE, Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. All comments received will be posted without change. Persons submitting comments are cautioned that the Commission does not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make publicly available.

    Studies, memoranda, or other substantive items may be added by the Commission or staff to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on the Commission's website. To ensure direct electronic receipt of such notifications, sign up through the “Stay Connected” option at www.sec.gov to receive notifications by email.

    FOR FURTHER INFORMATION CONTACT:

    Michael A. Macchiaroli, Associate Director, at (202) 551-5525; Thomas K. McGowan, Associate Director, at (202) 551-5521; Randall W. Roy, Deputy Associate Director, at (202) 551-5522; Timothy C. Fox, Branch Chief, at (202) 551-5687; or Rose Russo Wells, Senior Counsel, at (202) 551-5527, Office of Financial Responsibility, Division of Trading and Markets, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-7010.

    SUPPLEMENTARY INFORMATION: I. Background

    Most broker-dealers registered with the Commission must file annual reports with the Commission.1 The annual reports must include a financial report and either a compliance report or an exemption report.2 In addition, the annual reports generally must include reports prepared by an independent public accountant covering the financial report and, as applicable, the compliance or exemption report.3 The independent public accountant must be registered with the Public Company Accounting Oversight Board (“PCAOB”) if required by the Sarbanes-Oxley Act of 2002.4 In addition, the accountant's reports must be prepared in accordance with standards of the PCAOB.5

    1 15 U.S.C. 78q(a)(1); 15 U.S.C. 78q(e)(1)(A); 17 CFR 240.17a-5(d). See also 17 CFR 240.17a-5(d)(1)(iii) and (iv) (setting forth the limited circumstances under which the annual reports need not be filed).

    2See 17 CFR 240.17a-5(d)(1). The financial report must include a statement of financial condition, a statement of income, a statement of cash flows, a statement of changes in stockholders' or partners' or sole proprietor's equity, a statement of changes in liabilities subordinated to claims of general creditors, and certain supporting schedules. 17 CFR 240.17a-5(d)(2). A broker-dealer that does not claim it was exempt from 17 CFR 240.15c3-3 (“Rule 15c3-3”) throughout the most recent fiscal year must file the compliance report, and a broker-dealer that does claim it was exempt from Rule 15c3-3 throughout the most recent fiscal year must file the exemption report. 17 CFR 240.17a-5(d)(1)(i)(B)(1) and (2). The compliance report must contain statements about the broker-dealer's internal controls over, and compliance with, certain financial responsibility rules. 17 CFR 240.17a-5(d)(3). The exemption report must contain statements about the broker-dealer's exemption from Rule 15c3-3. 17 CFR 240.17a-5(d)(4).

    3 17 CFR 240.17a-5(d)(1)(i)(C).

    4 Public Law 107-204, 116 Stat. 745 (2002). See 17 CFR 240.17a-5(f)(1).

    5 17 CFR 240.17a-5(g).

    However, a broker-dealer is not required to engage an independent public accountant to provide the accountant's reports if, since the date of the registration of the broker-dealer with the Commission or of the previous annual reports filed with the Commission, the securities business of the broker-dealer “has been limited to acting as broker (agent) for the issuer in soliciting subscriptions for securities of the issuer, the broker has promptly transmitted to the issuer all funds and promptly delivered to the subscriber all securities received in connection with the transaction, and the broker has not otherwise held funds or securities for or owed money or securities to customers[.]” 6

    6 17 CFR 240.17a-5(e)(1)(i)(A) (emphasis added).

    The Commission first adopted the exemption in 1957.7 At that time, the pertinent rule text provided that the exemption was available to a broker-dealer if “his or its securities business has been limited to acting as broker (agent) for the issuer in soliciting subscriptions for securities of such issuer, said broker has promptly transmitted to such issuer all funds . . .” 8 The Commission stated in the adopting release that the “exemption is available to a broker who, from the date of his previous report, has limited his securities business to soliciting subscriptions as an agent for issuers, has transmitted funds and securities promptly and has not otherwise held funds or securities for or owed money or securities to customers (i.e. one who would have been exempt during that entire period from the Commission's aggregate-indebtedness-net-capital § 240.15c3-1 (Rule 15c3-1) by reason of paragraph (b)(1) thereof).” 9

    7See Registration of Brokers and Dealers; Preservation of Records and Reports of Certain Stabilizing Activities, 22 FR 6492 (Aug. 14, 1957).

    8Id. at 6493.

    9Id.

    In 1975, as part of a set of comprehensive amendments to broker-dealer reporting rules, the Commission amended the text of the exemption to provide, in pertinent part, that the exemption was available if “the securities business of such broker or dealer has been limited to acting as broker (agent) for the issuer in soliciting subscriptions for securities of such issuer . . .”.10 The Commission did not explain the purpose of the amendment. In 1977, the Commission again amended the text of the exemption to modify the phrase “has been limited to acting as broker (agent) for the issuer” to “has been limited to acting as broker (agent) for an issuer.” 11 Although the Commission did not explain the purpose of the amendment in the adopting release, the Commission later clarified that the exemption applies only to a broker-dealer acting as an agent for a single issuer.12

    10See Announcement of the Adoption of the FOCUS Report, a Program to Streamline the Financial and Operational Reporting of Brokers and Dealers, Including Amendments to Rule 17a-4, Rule 17a-5 and Related Form X-17a-5, Rule 17a-10 and Related Form X-17a-10, Rule 17a-11 and Related Form X-17a-11, and Rule 17a-20 and Related Form X-17a-20 Under the Securities Exchange Act Of 1934, and the Approval of Plans Submitted Pursuant to Rule 17a-5, Rule 17a-10 and Rule 17a-20, Exchange Act Release No. 11935, Dec. 17, 1975, 40 FR 59706 (Dec. 30, 1975). See also Proposal to Adopt the FOCUS Report, a Program to Streamline the Financial and Operational Reporting of Brokers and Dealers, Including Amendments to Rule 17a-4, Rule 17a-5 and Related Form X-17a-5, Rule 17a-10 and Related Form X-17a-10, Rule17a-11 and Related Form X-17a-11, and Rule 17a-20 and Related Form X-17a-20 Under the Securities Exchange Act Of 1934, Exchange Act Release No. 11748 (Oct. 16, 1975), 40 FR 51060 (Nov. 3, 1975).

    11See FOCUS Reporting System, Exchange Act Release No. 13462 (Apr. 22, 1977), 42 FR 23786, 23788 (May 10, 1977) (emphasis added).

    12See In the Matter of the Application of First Nevada Securities., Inc., Exchange Act Release No. 30774, at n.6 (June 4, 1992).

    While the 1977 amendment was published in the Federal Register, an error was made when printing the amended rules in the Code of Federal Regulations. In particular, the Code of Federal Regulations continued to describe the exemption as limited to a broker that acts as an agent “for the issuer.” 13

    13See, e.g., In the Matter of the Application of Sharemaster, Exchange Act Release No. 83138 (Apr. 30, 2018) (“Sharemaster”).

    Finally, in 2013, the exemption provision was amended again, but solely to modernize certain terms in the rule text.14 However, in making these amendments, the release used the rule text as then published in the Code of Federal Regulations and, therefore, inadvertently re-introduced the language of the exemption as it existed prior to 1977 (i.e., amended the exemption provision to provide that the exemption applied if the broker solicited subscriptions for “the issuer” rather than “an issuer”). Today, the Commission is proposing an amendment to correct that error and to clarify that the exemption applies to a broker-dealer whose securities business has been limited to acting as broker (agent) for a single issuer in soliciting subscriptions for securities of that issuer.

    14See Broker-Dealer Reports, Exchange Act Release No. 70073 (Jul. 30, 2013), 78 FR 51910, 51943 (Aug. 21, 2013). For example, the amendment replaced the phrase “such broker or dealer” with “the broker or dealer.”

    II. Proposed Amendment to Rule 17a-5

    Section 17(e)(1)(A) of the Exchange Act, among other things, requires a registered broker-dealer to file certain audited financial statements annually with the Commission.15 Section 17(e)(1)(C) of the Exchange Act provides that the Commission may exempt any registered broker-dealer from any provision of Section 17(e)(1) “if the Commission determines that the exemption is consistent with the public interest and the protection of investors.” 16 The Commission adopted Rule 17a-5 under the Exchange Act (“Rule 17a-5”), in part, under these provisions.

    15See 15 U.S.C. 78q(e)(1)(A).

    16See 15 U.S.C. 78q(e)(1)(C).

    The Commission is proposing to amend the exemption provision in paragraph (e)(1)(i)(A) of Rule 17a-5 to clarify in the rule text that the exemption is limited to a broker-dealer that acts as an agent for a single issuer. Specifically, the Commission is proposing to replace the phrase “has been limited to acting as broker (agent) for the issuer in soliciting subscriptions for securities of the issuer” with the phrase “has been limited to acting as broker (agent) for a single issuer in soliciting subscriptions for securities of that issuer.”

    Broker-dealers serve an important capital formation role by performing numerous services. These services include, among others, underwriting securities issuances, facilitating purchases and sales of securities on behalf of customers, making markets in securities, participating in private placements of securities, and providing investment research and recommendations. The annual reports broker-dealers file with the Commission are used by the Commission and the broker-dealer's designated examining authority to monitor the financial and operational condition of the broker-dealer. The annual reports also are one of the primary means of monitoring compliance with the Commission's broker-dealer financial responsibility rules. The requirement that the annual reports be certified by an independent public accountant is intended to enhance the reliability of the information filed by the broker-dealer, including information relevant to its financial condition and ability to continue as a going concern. This also benefits investors who are customers or potential customers of the broker-dealer and who do not have access to the same level of information about the financial condition and operations of the broker-dealer as the independent public accountant performing the audit. These investors rely on the independent public accountant to audit this information, which—as noted above—is relevant to the broker-dealer's financial condition and ability to continue as a going concern.

    This very limited exemption to the requirement that a broker-dealer's annual reports be certified by an independent public accountant is consistent with the objectives of the rule. In particular, the exemption applies when the broker-dealer's sole reason for being registered with the Commission as a broker-dealer is to act as an agent to solicit subscriptions for the securities of a single issuer—typically an affiliate of the broker-dealer.17 In this case, the issuer is the broker-dealer's only customer. Due to this special relationship, the issuer likely has the ability to access sufficient information about the financial condition and operations of the broker-dealer to make an informed decision about continuing to use the broker-dealer to effect transactions in its securities.18 Therefore, requiring that an independent public accountant audit this information would not provide the single customer of the broker-dealer (i.e., the issuer) a meaningful benefit. The risk of harm from not requiring that an independent public accountant audit the information would be mitigated by the single customer's ability to access any necessary information regarding the broker-dealer's operational and financial condition, as noted above. Moreover, any harm would be limited to the broker-dealer's single customer. Further, based on the annual reports broker-dealers filed with the Commission, it appears that only three broker-dealers have relied on the exemption in the past year.

    17See also 17 CFR 240.3a4-1 (which provides a limited safe harbor from the requirement to register as a broker-dealer for certain associated persons of an issuer that participate in the sale of the securities of the issuer under certain enumerated conditions).

    18See Sharemaster at 10 (“It is the limited nature of the business of a broker that solicits subscriptions for a single issuer and the relationship between the broker and that issuer, such as when the broker is engaged only in underwriting the issues of its parent that renders an audit requirement on the broker-dealer unnecessary.”).

    III. Request for Comment

    The Commission generally requests comment on all aspects of the proposal. This request for comment is limited to the proposed rule amendment; the Commission is not requesting comment on any other aspect of Rule 17a-5.

    IV. Paperwork Reduction Act

    The proposed rule amendment would clarify the scope of an existing exemption available to certain broker-dealers from the requirement to engage an independent public accountant to provide the reports required under paragraph (d)(1)(i)(C) of Rule 17a-5.19 The proposed rule amendment does not create any new, or revise any existing, collection of information pursuant to the Paperwork Reduction Act of 1995.20 Accordingly, no information has been submitted to the Office of Management and Budget for review.

    19See 17 CFR 240.17a-5(d)(1)(i)(C).

    20 44 U.S.C. 3501 et seq.

    The Commission requests comment on the assertion that the proposed rule amendment will not create any new, or revise any existing, collection of information pursuant to the Paperwork Reduction Act.

    V. Economic Analysis

    The Commission is mindful of the costs imposed by, and the benefits obtained from, its rules. Whenever the Commission engages in rulemaking and is required to consider or determine whether an action is necessary or appropriate in the public interest, Section 3(f) of the Exchange Act requires the Commission to consider whether the action would promote efficiency, competition, and capital formation, in addition to the protection of investors. Further, when engaged in rulemaking under the Exchange Act, Section 23(a)(2) of the Exchange Act requires the Commission to consider the impact such rules would have on competition. Section 23(a)(2) of the Exchange Act also prohibits the Commission from adopting any rule that would impose a burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act. The following analysis considers the potential economic effects that may result from the proposed rule amendment, including the benefits and costs to market participants as well as the broader implications of the proposal for efficiency, competition, and capital formation.

    As noted above, broker-dealers serve an important role in capital formation by performing numerous services, including with respect to the distribution of securities. Broker-dealer annual reports are one of the primary means of monitoring compliance with the Commission's broker-dealer financial responsibility rules, and the requirement that the annual reports be certified by an independent public accountant is intended to help enhance the reliability of the information filed by the broker-dealer. The exemption in paragraph (e)(1)(i)(A) of Rule 17a-5 is designed to streamline regulatory compliance for certain broker-dealers by permitting broker-dealers that underwrite offerings by a single issuer—typically an affiliate of the broker-dealer—to do so without needing to meet this requirement.

    With respect to the baseline, broker-dealers rarely rely on the very limited exemption in paragraph (e)(1)(i)(A) of Rule 17a-5. Staff analysis of annual reports filed by broker-dealers revealed that only three broker-dealers—out of approximately 4,000 registered with the Commission—relied on the exemption in the last year. The low level of use suggests that broker-dealers generally do not avail themselves of the existing exemption to compete with one another or to improve the efficiency of their underwriting activities.

    The Commission recognizes the value of requiring that broker-dealer annual reports be certified by an independent public accountant. However, when a broker-dealer is acting solely as an agent for a single issuer's securities, typically an affiliate, the issuer is likely to have sufficient information about the broker-dealer's financial and operational condition. In that case, there would be minimal benefit in a requirement that the broker-dealer-dealer's annual reports be certified by an independent public accountant. At the same time, a broker-dealer required to obtain certification for its annual reports could bear significant costs to do so.21

    21 According to one broker-dealer, the requirement for an audit prepared by a PCAOB-registered accountant was $2,800 in 2010. See Sharemaster, at n. 4. Adjusting this amount for inflation yields approximately $3,200 in 2018 (inflation calculator available at https://www.bls.gov/data/inflation_calculator.htm).

    In cases where a broker-dealer is acting solely as an agent for a single unaffiliated issuer, the benefits of certification are likely to be higher because the larger degree of information asymmetry between the broker-dealer and the unaffiliated issuer makes third-party certification more valuable. The Commission believes the likelihood of such a narrow arrangement between a broker-dealer and a single unaffiliated issuer is low because for such a broker-dealer, the costs of certification are likely lower than the expected benefits from acting as an agent for additional unaffiliated issuers.

    The Commission expects the amendment to benefit issuers that rely on broker-dealers to underwrite securities offerings by providing increased regulatory certainty about a broker-dealer's obligation to have its annual reports certified by an independent public accountant when the broker-dealer acts as an agent for multiple issuers. This will benefit issuers by helping ensure that broker-dealers do not inappropriately rely on the exemption in paragraph (e)(1)(i)(A) of Rule 17a-5. When the broker-dealer is not acting solely as an agent for a single affiliate's securities, the benefits of certification are likely to be more substantial because the issuers are less likely to have sufficient information about the broker-dealer's financial condition.

    The Commission acknowledges that, to the extent this proposal limits use of the exemption, broker-dealers that would no longer be able to use the exemption in the future could bear costs as a result of the proposed amendment. For such a broker-dealer, the Commission believes the cost of a small broker-dealer obtaining certification of its annual reports by an independent public accountant in accordance with paragraph (d)(1)(i)(C) of Rule 17a-5 could be approximately $3,200 per year.22 Based on the low reliance on the exemption currently, and the expectation that the number of broker-dealers relying on the exemption will not materially increase or decrease as a result of the amendment, the overall economic impact of the proposal is likely to be small.

    22Id.

    The Commission expects the proposed amendment to have only a marginal impact on efficiency, competition, and capital formation. This assessment is primarily based on the belief that the amendment does not revise the scope of the exemption or change current practice and that the exemption is claimed by only a few broker-dealers. The Commission nevertheless acknowledges that the proposed amendment may marginally impair capital formation if it prompts broker-dealers to reduce underwriting activity or to increase the price of underwriting activities for potential issuers.

    The Commission considered several alternatives in terms of the scope of the exemption. First, the Commission considered broadening the scope of the exemption to include broker-dealers whose securities business is limited to acting as an agent for multiple issuers. Staff analysis of information provided by broker-dealers indicates that a substantial number of registered broker-dealers underwrite corporate securities or are selling group participants for corporate securities and may otherwise be eligible to take advantage of the exemption if its scope were broadened in this way.23

    23 Commission staff analysis of Form BD data indicates that 971 registered broker-dealers reported engaging in, or expecting to engage in, the underwriting of securities at the end of 2017.

    Rule 17a-5 provides only two exemptions from the requirement that broker-dealer annual reports be certified by an independent public accountant.24 The Commission has provided for only these very limited exemptions from the requirement that annual reports of broker-dealers be audited due to the importance of reliable financial and operational information concerning registered broker-dealers for investor protection and the integrity of the capital markets. Broadening the exemption could benefit broker-dealers by no longer requiring them to engage independent public accountants when they act as an agent for multiple issuers in soliciting subscriptions for securities and thereby reducing their costs. However, an alternative that broadens these exceptions could impose costs on issuers to the extent that making the certification by the independent public accountant voluntary for broker-dealers that serve multiple issuers reduces the reliability of these broker-dealers' annual reports.

    24 One exemption is the “single issuer” exemption provided for in paragraph (e)(1)(i)(A) of Rule 17a-5. The other exemption is contained in paragraph (e)(1)(i)(B) of Rule 17a-5. The second exemption applies to broker-dealers whose securities business is “limited to buying and selling evidences of indebtedness secured by mortgage, deed of trust, or other lien upon real estate or leasehold interests, and the broker or dealer has not carried any margin account, credit balance, or security for any securities customer.” Staff analysis of annual reports filed by broker-dealers revealed that only one broker-dealer claimed this exemption in the last year.

    Given the significance of the verification of a broker-dealer's financial and operational information by an independent public accountant, the Commission is not proposing to broaden the scope of the exemption to include broker-dealers whose securities business is limited to acting as an agent for multiple issuers. When a broker-dealer acts as an agent on behalf of an issuer, the financial condition of the broker-dealer is important to the issuer because if a broker-dealer is financially constrained, it may be less able to bear the risks associated with underwriting activities, such as holding securities in inventory. If a broker-dealer acts as an agent on behalf of multiple issuers, its financial condition is important to capital formation for multiple issuers, and so the benefits of certification are likely higher for the broker-dealer. Moreover, the Commission notes that the benefits to broker-dealers from such an alternative may be limited by competitive effects, because an issuer that is concerned about the reliability of a broker-dealer's financial statements may choose to hire a broker-dealer with certified annual reports to act as its agent.

    Second, the Commission considered eliminating the exemption. While the Commission is mindful of the significance of broker-dealer audits, as explained above, the Commission believes that the cost of this alternative to broker-dealers who are now eligible to take advantage of the exemption does not justify the benefits that would accrue to the broker-dealer's single customer, typically an affiliate of the broker-dealer, as a result of an audit. Therefore, the Commission preliminarily believes the exemption should continue to be available only where a broker-dealer is acting as an agent for a single issuer in soliciting subscriptions for securities of that issuer.

    Finally, the Commission considered further specifying that the limited exemption in paragraph (e)(1)(i)(A) of Rule 17a-5 would apply only if the broker-dealer were engaged in underwriting the securities of an affiliate. While this alternative would narrow the limited exemption, based on its observation of broker-dealers' use of this exemption to date, the Commission does not believe the benefits yielded by narrowing the exemption would be substantial.

    VI. Regulatory Flexibility Act Certification

    Section 3(a) of the Regulatory Flexibility Act requires the Commission to undertake an initial regulatory flexibility analysis of the impact of the proposed rule on small entities unless the Commission certifies that the amendments, if adopted, would not have a significant economic impact on a substantial number of small entities. As discussed above, the proposed rule would not change the status quo in terms of the broker-dealers that would or would not qualify for the exemption from paragraph (d)(1)(i)(C) of Rule 17a-5.25 For additional discussion of the impact of the proposal (including on small entities), please see section V above. The Commission hereby certifies, pursuant to 5 U.S.C. 605(b), that the proposed amendment to Rule 17a-5, if adopted, would not have a significant economic impact on a substantial number of small entities.

    25See 17 CFR 240.17a-5(d)(1)(i)(C).

    The Commission encourages written comments regarding this certification. The Commission solicits comment as to whether the proposed amendments could have an effect that the Commission has not considered and requests that commenters describe the nature of any impact on small entities and provide empirical data to support the extent of the impact.

    VII. Consideration of Impact on the Economy

    For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996,26 a rule is “major” if it has resulted, or is likely to result, in:

    26 Public Law 104-121, Title II, 110 Stat. 857 (1996).

    • An annual effect on the economy of $100 million or more;

    • a major increase in costs or prices for consumers or individual industries; or

    • significant adverse effects on competition, investment, or innovation.

    The Commission requests comment on the potential impact of the proposed rule on the economy on an annual basis. The Commission requests that commenters provide empirical data and other factual support for their views.

    VIII. Statutory Authority

    The Commission is proposing an amendment to Rule 17a-5 under the Exchange Act (17 CFR 240.17a-5) pursuant to the authority conferred by Exchange Act Sections 17(e)(1)(A), 17(e)(1)(C), and 36.27

    27 15 U.S.C. 78q(e)(1)(A); 15 U.S.C. 78q(e)(1)(C); 15 U.S.C. 78mm.

    List of Subjects in 17 CFR Part 240

    Brokers, Reporting and recordkeeping requirements, Securities.

    Text of Proposed Rules

    In accordance with the foregoing, the Commission proposes that Title 17, Chapter II of the Code of Federal Regulation be amended as follows.

    PART 240—GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 1934 1. The authority citation for Part 240 continues to read in part as follows: Authority:

    15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c-3, 78c-5, 78d, 78e, 78f, 78g, 78i, 78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78n-1, 78o, 78o-4, 78o-10, 78p, 78q, 78q-1, 78s, 78u-5, 78w, 78x, 78ll, 78mm, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 80b-11, 7201 et seq.; and 8302; 7 U.S.C. 2(c)(2)(E); 12 U.S.C. 5221(e)(3); 18 U.S.C. 1350; and Pub. L. 111-203, 939A, 124 Stat. 1887 (2010); and secs. 503 and 602, Pub. L. 112-106, 126 Stat. 326 (2012), unless otherwise noted.

    2. Amend § 240.17a-5 by revising paragraph (e) to read as follows.
    § 240.17a-5 Reports to be made by certain brokers and dealers.

    (e) Nature and form of reports.

    (1)(i) The broker or dealer is not required to engage an independent public accountant to provide the reports required under paragraph (d)(1)(i)(C) of this section if, since the date of the registration of the broker or dealer under section 15 of the Act (15 U.S.C. 78o) or of the previous annual reports filed under paragraph (d) of this section:

    (A) The securities business of the broker or dealer has been limited to acting as broker (agent) for a single issuer in soliciting subscriptions for securities of that issuer, the broker has promptly transmitted to the issuer all funds and promptly delivered to the subscriber all securities received in connection with the transaction, and the broker has not otherwise held funds or securities for or owed money or securities to customers; or

    By the Commission.

    Dated: September 20, 2018. Brent J. Fields, Secretary.
    [FR Doc. 2018-20880 Filed 9-26-18; 8:45 am] BILLING CODE 8011-01-P
    DEPARTMENT OF LABOR Wage and Hour Division 29 CFR Part 570 RIN 1235-AA22 Expanding Employment, Training, and Apprenticeship Opportunities for 16- and 17-Year-Olds in Health Care Occupations Under the Fair Labor Standards Act AGENCY:

    Wage and Hour Division, Department of Labor.

    ACTION:

    Notice of proposed rulemaking; request for comments.

    SUMMARY:

    The Department of Labor (Department) is proposing this rule to enhance employment, training, and apprenticeship opportunities for 16- and 17-year-olds in health care occupations in the United States while maintaining worker safety. The changes proposed in this rule also respond to the concerns of a bipartisan, bicameral group of congressional lawmakers. The youth-employment provisions of the Fair Labor Standards Act (FLSA) ensure that when youth work, the work is safe and does not jeopardize their health, well-being, or education. Pursuant to those provisions, 16- and 17-year-old employees generally cannot work in a nonagricultural occupation governed by any of the Department's Hazardous Occupations Orders (HOs). HO 7 prohibits youth from working in occupations involving the operation of a power-driven patient lift. Patient lifts, however, substantially differ in form and function from the other equipment that the HO governs, including forklifts, backhoes, cranes, and other heavy industrial equipment. Additionally, patient lifts are safer for workers than the alternative method of manually lifting patients. In response to significant public input and bipartisan, bicameral requests from Members of Congress, the Department proposes to remove the operation of power-driven patient lifts from the list of activities that HO 7 prohibits. This proposal, if finalized, would increase the participation of young workers in health care occupations and enhance their future career skills and their earning potential, without reducing worker safety.

    DATES:

    Submit written comments on or before November 26, 2018.

    ADDRESSES:

    You may submit comments, identified by Regulatory Information Number (RIN) 1235-AA22, by either of the following methods: Electronic Comments: Submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. Follow the instructions for submitting comments. Mail: Address written submissions to Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210. Instructions: Please submit only one copy of your comments by only one method. All submissions must include the agency name and RIN, identified above, for this rulemaking. Please be advised that comments received will become a matter of public record and will be posted without change to http://www.regulations.gov, including any personal information provided. All comments must be received by 11:59 p.m. on the date indicated for consideration in this rulemaking. Commenters should transmit comments early to ensure timely receipt prior to the close of the comment period, as the Department continues to experience delays in the receipt of mail. For additional information on submitting comments and the rulemaking process, see the “Public Participation” heading of the supplementary information section of this document. For questions concerning the interpretation and enforcement of labor standards related to the FLSA, individuals may contact the Wage and Hour Division (WHD) local district offices (see contact information below). Docket: For access to the docket to read background documents or comments, go to the Federal eRulemaking Portal at http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Smith, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-free number). Copies of this proposed rule may be obtained in alternative formats (Large Print, Braille, Audio Tape or Disc), upon request, by calling (202) 693-0406 (this is not a toll-free number). TTY/TDD callers may dial toll-free 1-877-889-5627 to obtain information or request materials in alternative formats. Questions of interpretation and/or enforcement of the agency's regulations may be directed to the nearest WHD district office. Locate the nearest office by calling WHD's toll-free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto WHD's website for a nationwide listing of WHD district and area offices at http://www.dol.gov/whd/america2.htm.

    Electronic Access and Filing Comments: This proposed rule and supporting documents are available through the Federal Register and the http://www.regulations.gov website. You may also access this document via WHD's website at http://www.dol.gov/whd/. To comment electronically on Federal rulemakings, go to the Federal eRulemaking Portal at http://www.regulations.gov, which will allow you to find, review, and submit comments on Federal documents that are open for comment and published in the Federal Register. You must identify all comments submitted by including “RIN 1235-AA22” in your submission. Commenters should transmit comments early to ensure timely receipt prior to the close of the comment period (11:59 p.m. on the date identified above in the DATES section); comments received after the comment period closes will not be considered. Submit only one copy of your comments by only one method. Please be advised that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

    SUPPLEMENTARY INFORMATION:

    I. Executive Summary

    The youth-employment provisions of the FLSA ensure that when youth work, the work is safe and does not jeopardize their health, well-being, or education.1 Pursuant to those provisions, 16- and 17-year-old employees generally cannot work in a nonagricultural occupation governed by any of the Department's HOs. As relevant to this proposal, HO 7 prohibits 16- and 17-year-old employees from working in occupations involving the operation of a power-driven hoisting apparatus.2 The Department originally issued HO 7 in 1946. It primarily covers devices used in industrial contexts, such as forklifts, backhoes, and cranes—which, as discussed below, differ both in form and function from patient lifts. When originally enacted, HO 7 contained an exemption for electric or air-operated hoists not exceeding a one-ton capacity. HO 7 therefore did not encompass power-driven patient lifts used to transport patients and residents in medical settings such as hospitals, nursing homes, and long-term care facilities. In 2010, however, the Department amended HO 7 to, in part, eliminate the longstanding exemption for electric or air-operated hoists not exceeding a one-ton capacity. As a result, HO 7 now encompasses power-driven patient lifts. Power-driven patient lifts, however, are far less dangerous to workers than the alternative of manual patient lifting, which causes a significant number of worker injuries. Power-driven patient lifts are different in form and function from the other kinds of machines listed in HO 7. Typically speaking, power-driven patient lifts do not have nearly the same size, power, mass, speed, or complexity as many of those other machines; they are used in health care rather than industrial facilities; and from 2012 to 2016 only 1 worker fatality was attributed to a patient hoist or lifting harness, in comparison to 930 worker fatalities associated with cranes, overhead hoists, bucket or basket hoists, manlifts, and forklifts.

    1See generally 29 U.S.C. 203(l), 212, 213(c).

    2 29 CFR 570.58(a).

    After the 2010 expansion of HO 7, numerous stakeholders asked the Department to reconsider the HO's inclusion of patient lifts because, among other things, it severely restricts employment opportunities for 16- and 17-year-olds in the health care industry and the alternative of manually lifting patients is more dangerous to workers than the use of powered lifts. Those stakeholders voicing concerns and requesting changes to HO 7 included multiple members of the Senate and House of Representatives from both political parties. In response to this public input, the Department issued a nonenforcement policy in 2011, specifying that it would not assert a violation of HO 7 when a trained 16- or 17-year-old, under certain specified conditions, assists a trained adult in the operation of patient lifts. The Department, however, has continued to hear concerns from the public and a bipartisan group of legislators that 16- and 17-year-olds' inability to independently operate such devices decreases their employment and training opportunities in health care occupations; often necessitates those who work in such occupations to manually lift patients—a practice that is more dangerous than using a patient lift; and, in some cases, hinders health care providers' ability to care for patients due to a lack of staff available to timely move patients. Given these and other considerations outlined below, the Department is proposing to enhance employment, training, and apprenticeship opportunities for 16- and 17-year-olds in health care by excluding power-driven patient lifts from the scope of HO 7.

    This proposed rule is expected to be an Executive Order (E.O.) 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in the rule's economic analysis.

    II. Need for Rulemaking

    An important task in health care occupations, particularly in facilities that care for the elderly and disabled, is the safe handling and moving of patients. Without patient lifts, health care personnel sometimes manually lift patients who cannot transport themselves. Such practices can lead to musculoskeletal disorders, such as muscle strains and lower back injuries, among manual lifters. Among health care occupations, 40 percent of injuries resulting in days away from work are caused by overexertion or bodily reaction, which includes motions such as lifting, bending, or reaching—motions related to patient handling.3 In contrast, the use of mechanical lifting equipment, such as powered patient lifts or hoists, has been shown to reduce exposure to manual lifting injuries by up to 95 percent.4 Because powered patient lifts significantly reduce the risk of musculoskeletal disorders compared to manual lifting, many facilities encourage or require their use. Since 2010, however, HO 7 has prohibited 16- and 17-year-old youth from operating power-driven patient lifts.5

    3 Bureau of Labor Statistics, Nonfatal cases involving days away from work: Selected characteristics (2011 forward), https://data.bls.gov/PDQWeb/cs.

    4 U.S. Dep't of Labor, Occupational Safety & Health Admin., Safe Patient Handling: Preventing Musculoskeletal Disorders in Nursing Homes, https://www.osha.gov/Publications/OSHA3708.pdf.

    5 29 CFR 570.58(b).

    After hearing significant concerns about the application of HO 7 to power-driven patient lifts from members of the public and a bipartisan group of elected officials, the Department issued a non-enforcement policy in 2011 that applies when trained 16- and 17-year-olds, under specified conditions, assist a trained adult in the operation of patient lifts.6 The nonenforcement policy, however, does not permit these youth to operate patient lifts independently. The Department has received correspondence and other feedback that this continued prohibition adversely affects the ability of youth to receive employment and training opportunities in health care professions, encourages youth who work in health care to engage in unsafe manual lifting, and hampers health care providers' ability to promptly and safely assist patients. The authors of this correspondence have also stated that, in their experience, 16- and 17-year-olds are capable of operating patient lifts safely.

    6See U.S. Dep't of Labor, Wage & Hour Div., Field Assistance Bulletin 2011-3, July 13, 2011, https://www.dol.gov/whd/FieldBulletins/fab2011_3.pdf; see also Field Operations Handbook (FOH) 33h07(e)(5), https://www.dol.gov/whd/FOH/FOH_Ch33.pdf.

    This information, as well as other information discussed below, suggests that the operation of power-driven patient lifts may not be particularly hazardous to youth employed in health care occupations or detrimental to their health or well-being. The Department, therefore, proposes to exclude the operation of power-driven patient lifts from the list of prohibited devices under HO 7. The Department seeks public comment on this proposal, and, specifically, whether the operation of power-driven patient lifts is particularly hazardous to 16- and 17-year-olds or is otherwise detrimental to their health or well-being.

    The Department expects that, if adopted in a final rule, the proposed amendment to HO 7 will encourage the creation of more employment, apprenticeship, and other training opportunities in health care by removing a regulatory restriction that bars 16- and 17-year-olds from operating power-driven patient lifts, a foundational job duty in the health care industry. The Department recognizes the importance of providing young people with opportunities to safely train and work in rewarding and meaningful health care careers. The Department also recognizes that regulatory restrictions on youth operating power-driven patient lifts may unnecessarily impede training and employment opportunities for youth interested in pursuing careers in this fast-growing field.

    Early employment and training opportunities can teach 16- and 17-year-olds workplace safety, responsibility, organization, and time management. These opportunities can also help them establish good work habits, gain valuable experience, expand their networks, and achieve financial stability. Research confirms the many advantages of working during high school—especially for low-income youth—including higher employment rates, higher wages in later years, and a lower probability of dropping out of high school.7 Part-time work during high school correlates with more schooling and work after high school graduation, and also correlates with the receipt of a college degree.8

    7 Marta Tienda and Avner Ahituv, Ethnic Differences in School Departure: Does Youth Employment Promote or Undermine Educational Achievement? Kalamazoo, Michigan: Upjohn Institute (1996), http://research.upjohn.org/up_bookchapters/564/ (last visited on 26 April 2018).

    8 Staff, J., & Mortimer, J.T. (2007). Educational and Work Strategies from Adolescence to Early Adulthood: Consequences for Educational Attainment. Social Forces; a Scientific Medium of Social Study and Interpretation, 85(3), 1169-1194, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1858630/ (last visited on 26 April 2018).

    Opportunities for youth employment can be particularly helpful in reducing the number of youth who become disconnected from school or work. A 2012 study found that each young person who “disconnects” from school or work costs the economy an estimated $704,020 over their lifetime due to lost earnings, lower economic growth, lower tax revenues, and higher government spending.9 Many young people lose their connection to school and work at ages 16 and 17, when high-school dropout and unemployment rates are highest. Early employment and training opportunities can benefit these youth and improve their future employment prospects. In a survey commissioned by the Bill and Melinda Gates Foundation, for example, 81 percent of high school dropouts surveyed reported that having real-world experiences that connected school with work would have helped keep them in school.10 One such program, Career Academies, was shown to increase earnings by 11 percent for as many as eight years after high school.11

    9 Clive Belfield, Henry M. Levin, & Rachel Rosen, The Economic Value of Opportunity Youth (2012), at 2, http://www.civicenterprises.net/MediaLibrary/Docs/econ_value_opportunity_youth.pdf.

    10 John M. Bridgeland, John J. DiIulio, Jr., and Karen Burke Morison, The silent epidemic: Perspectives of high school dropouts (2006), at 13, http://files.eric.ed.gov/fulltext/ED513444.pdf.

    11 Harry Holzer, Workforce Training: What Works? Who Benefits? Wisconsin Family Impact Seminars, 2014, https://www.purdue.edu/hhs/hdfs/fii/wp-content/uploads/2015/07/s_wifis28c02.pdf (last visited on April 26, 2018).

    Consistent with the President's E.O. on expanding apprenticeships in the United States,12 the Department is interested in promoting workforce training program models in health care that offer safe and impactful apprenticeship opportunities. Apprenticeships in high-growth, emerging sectors, such as health care, can yield significant benefits. Research has found, for example, that apprenticeships can lead to better workplace performance, higher wages, reduced worker turnover, and portable occupational credentials. The average starting wage for apprentices is $15.00 per hour, and wages increase as apprentices gain skills and knowledge.13 A study of a cross-section of apprenticeships by Mathematica Policy Research found that participants who participated in an apprenticeship program earned, on average, nearly $100,000 more over their careers than nonparticipants did. For those apprentices who completed their program, the average earnings premium was more than $240,000.14

    12 E.O. 13801 of June 15, 2017, Expanding Apprenticeships in America, 82 FR 28229 (Jun. 15, 2017).

    13 U.S. Dep't of Labor, ApprenticeshipUSA Toolkit, Frequently Asked Questions, https://www.dol.gov/apprenticeship/toolkit/toolkitfaq.htm#2b.

    14 Debbie Reed, Albert Yung-Hsu Liu, Rebecca Kleinman, Annalisa Mastri, Davin Reed, Samina Sattar, and Jessica Ziegler, An Effectiveness Assessment and Cost-Benefit Analysis of Registered Apprenticeship in 10 States, Mathematica Policy Research (July 2012), at xiv, https://wdr.doleta.gov/research/FullText_Documents/etaop_2012_10.pdf.

    The need for safe employment, apprenticeship, and training opportunities for youth is particularly acute in health care, which is among the fastest growing industries in the United States.15 The Bureau of Labor Statistics (BLS) projects that numerous professions in health care will grow either faster or much faster than the national average growth rates in the next decade.16 There are already approximately 1 million job openings in health care and social assistance.17 According to a National Federation of Independent Business poll of its members, the top two reasons that employers did not hire applicants were lack of experience and lack of job-specific/occupational skills.18 This further underscores the need for early employment, training, and apprenticeship opportunities—which help close the skills gap between the skills employers seek and the skills job seekers currently have. Removing unnecessary barriers to entry for youth in health care will give them more opportunities to gain those critical skills. Many jobs in health care, such as certified nursing assistant (CNA) positions, present excellent entry-level positions for young workers, including teens still in high school who seek to begin a career in health care. There are also numerous apprenticeable occupations in health care, such as certified nurse aide, home health aide, rehabilitative aide, licensed practical nurse, and CNA.19 To help ensure that those who need care can receive it from workers who are skilled, qualified, and familiar with continuing advances in technology and service delivery, federal regulations should encourage, and not unnecessarily hinder, opportunities for younger workers to pursue careers in health care.

    15 Projected annual growth for health care and social assistance is 1.9% through 2026. Bureau of Labor Statistics, Employment Projections: Employment by major industry sector, https://www.bls.gov/emp/ep_table_201.htm.

    16See Bureau of Labor Statistics, Occupational Outlook Handbook, https://www.bls.gov/ooh/healthcare/home-health-aides-and-personal-care-aides.htm (home care and personal care aides projected to grow 41 percent); https://www.bls.gov/ooh/healthcare/licensed-practical-and-licensed-vocational-nurses.htm (licensed practical nurses and licensed vocational nurses projected to grow 12 percent); https://www.bls.gov/ooh/healthcare/medical-assistants.htm (medical assistants projected to grow 29 percent); https://www.bls.gov/ooh/healthcare/nursing-assistants.htm (nursing assistants projected to grow 11 percent); https://www.bls.gov/ooh/healthcare/physical-therapist-assistants-and-aides.htm (physical therapist assistants and aides projected to grow 30 percent); https://www.bls.gov/ooh/healthcare/occupational-therapists.htm (occupational therapists projected to grow 24 percent); https://www.bls.gov/ooh/healthcare/physical-therapists.htm (physical therapists projected to grow 28 percent); https://www.bls.gov/ooh/healthcare/occupational-therapy-assistants-and-aides.htm (occupational therapy assistants and aides projected to grow 28 percent).

    17 Bureau of Labor Statistics, Table A. Job openings, hires, and total separations by industry, seasonally adjusted, https://www.bls.gov/news.release/jolts.a.htm (last visited May 7, 2018).

    18 Nat'l Fed. Of Independent Business, Filling the Role, https://www.nfib.com/assets/nfib_fillingtherole3-1.pdf.

    19 For a full list of apprenticeable occupations, see https://www.doleta.gov/OA/occupations.cfm.

    III. Background

    The youth employment provisions of the FLSA, which Congress enacted in 1938, ensure that when young people work, the work is safe and does not jeopardize their health, well-being, or educational opportunities. The FLSA distinguishes between youth employed in agricultural work and youth employed in nonagricultural work. FLSA section 203(l) establishes a minimum age of 16 years for nonagricultural employment and prohibits 16- and 17-year-olds from working in any occupation that the Secretary of Labor (the Secretary) has found to be particularly hazardous or detrimental to their health or well-being. Under this authority, the Secretary has issued 17 HOs for nonagricultural employment.

    HO 7, originally issued on July 16, 1946, prohibits 16- and 17-year-old employees from working in occupations involving a power-driven hoisting apparatus.20 It prohibits 16- and 17-year-old employees from “operating, tending, riding upon, working from, repairing, servicing, or disassembling an elevator, crane, derrick, hoist, or high-lift truck, except operating or riding inside an unattended automatic operation passenger elevator.” 21 It also prohibits such employees from “operating, tending, riding upon, working from, repairing, servicing, or disassembling a manlift or freight elevator, except 16- and 17-year-olds may ride upon a freight elevator operated by an assigned operator.” 22 For purposes of these prohibitions, “[t]ending such equipment includes assisting in the hoisting tasks being performed by the equipment.” 23 The 1946 study that supported these prohibitions concluded that operating hoisting apparatus is “inherently dangerous because it involves complicated mechanical equipment and because of the ever-present danger of falling or being struck by falling material should the load be dropped.” 24

    20 29 CFR 570.58(a).

    21Id.

    22Id. § 570.58(a)(2).

    23Id. §§ 570.58(a)(1), (2).

    24See U.S. Dep't of Labor, Div. of Labor Standards, Occupational Hazards to Young Workers, Report No. 7, The Operation of Hoisting Apparatus, at 6 (1946) (Report No. 7).

    Until 2010, HO 7 did not prohibit 16- and 17-year olds from operating power-driven patient lifts. The study that supported HO 7 did not address patient lifts, but it did conclude that electric or air-operated hoists with a capacity of one ton or less were “much less dangerous to operate than larger hoists,” were used for light work, and were simple to operate.25 The Department accordingly included an exemption in HO 7 for electric or air-operated hoists with a capacity of one ton or less, and patient lifts fall within that category. Thus, between 1946 and 2010, HO 7 did not prohibit the operation of patient lifts.

    25Id. at 13. HO 7 was amended on August 31, 1955 to include riding on a manlift. 20 FR 6386.

    On May 20, 2010, the Department issued a final rule amending several HOs, including HO 7.26 The amendment to HO 7, among other things, eliminated the exemption for hoists with a capacity of one ton or less.27 This decision was informed, in part, by a statement in a 2002 report from the National Institute for Occupational Safety and Health (NIOSH) that “[a] hoisted load weighing less than one ton has the potential to cause injury or death as a result of falling, or being improperly rigged or handled.” 28 The 2010 Final Rule also expanded HO 7 to prohibit repairing, servicing, disassembling, and assisting in the operation of the machines.29

    26 75 FR 28404 (May 20, 2010) (2010 Final Rule).

    27 75 FR at 28433-34. In addition, the 2010 Final Rule amended HO 7 to prohibit youth from riding on any part of a forklift as a passenger (including the forks); to prohibit work from truck-mounted bucket or basket hoists; and to include operating or tending aerial platforms (e.g. scissor lifts) in the definition of manlift. It also revised the definition of “high-lift truck” to incorporate a longstanding enforcement position that industrial trucks such as skid loaders, skid-steer loaders, and Bobcat loaders fall within that definition.

    28 75 FR at 28433; NIOSH, National Institute for Occupational Safety & Health (NIOSH) Recommendations to the U.S. Department of Labor for Changes to Hazardous Orders (May 3, 2002), at 36, https://www.cdc.gov/niosh/docs/nioshrecsdolhaz/pdfs/dol-recomm.pdf (NIOSH Report). The NIOSH Report was issued after the Department had commissioned NIOSH in 1998 to conduct a comprehensive review of literature and data related to workplace hazards and to assess the adequacy of existing child labor protections in preventing them.

    29 75 FR at 28433-34.

    In July 2010, the Department released Fact Sheet 52, which explained that the amended HO 7 barred 16- and 17-year-olds from operating or assisting in the operation of power-driven hoists designed to lift and move patients. The Department thereafter received a number of inquiries from a bipartisan group of legislators regarding this matter. The inquiries raised a number of concerns, including businesses' need to meet critical staff shortages at health care facilities, particularly in rural areas, through 16- and 17-year-old trainees; the continued success of nursing aide education programs; the future careers of youth in health care; the need for staff to use power-driven patient lifts; and the safety of workers and health care facility residents. For example, then-Congressman Michael Michaud (D-ME) noted that many facilities have adopted “zero-lift policies” that prohibit the lifting of patients without safe assistance. As a result of the regulatory change, however, young CNAs' only method to assist a patient may be the unsafe practice of manually lifting the patient. Similarly, a letter from then-Senator Herb Kohl (D-WI), Senator Amy Klobuchar (D-MN), then-Senator Mike Johanns (R-NE), and then-Senator Kent Conrad (D-ND) asserted that the Department's restrictions were “discouraging long-term care facilities from employing and training minors at the very point in time that this employment sector needs to grow rapidly in order to accommodate the needs of our now rapidly-aging population” and “hampering youth employment programs for high school students, and those health care facilities that wish to employ them.” They also asserted that power-driven patient lifts are safe for both residents and workers, including 16- and 17-year-old workers. For example, Senators Kohl, Klobuchar, Johanns, and Conrad stated that power-driven patient lifts are “extremely safe” because they “move quite slowly, and have multiple safety and failsafe features.” Likewise, a letter from then-Congressman Earl Pomeroy (D-ND) stated that “according to the North Dakota Workforce Safety and Insurance (WSI) Department, not one 16- or 17-year-old worker has been found to be injured by using an electronic patient lift.”

    The Department also heard from interested stakeholders, particularly health care providers and their representatives. By way of example, a March 2011 statement by the American Health Care Association and the National Center for Assisted Living noted that some community colleges and apprenticeship programs had ceased accepting 16- and 17-year-olds into their programs as a result of the regulatory change, imperiling the supply of health care workers in nursing homes. Similarly, several small nursing facilities in North Dakota that employed 16- and 17-year-old CNAs expressed concern that the regulatory change may prevent them from employing these individuals as CNAs—which would both create staff shortages and discourage youth from pursuing careers in health care—and may encourage 16- and 17-year-old CNAs to engage in unsafe manual lifting. Some facilities stated that they instituted procedures in which an adult would be summoned to operate a power-driven patient lift when needed. According to these facilities, such procedures not only caused delays and made patients feel that they were unduly burdening staff, but also deprived 16- and 17-year-olds of valuable work experience. Like the legislators, these stakeholders also asserted that power-driven patient lifts were safe for workers, including 16- and 17-year-old workers, to operate. A letter from the Healthcare Education Industry Partnership Council noted that staff using or assisting with lifts, regardless of age, are trained on how to safely operate patient lifts, and receive such training both as part of their nursing assistant curriculum and when hired by health care providers. Another letter from a health care provider stated that the facility had never had an employee injured using power-driven patient lifts, but had countless employees injured from failing to use such equipment.

    In October 2010, the Department asked NIOSH for assistance to determine when 16- and 17-year-old employees could safely operate or assist in the operation of power-driven patient lifts.30 In March 2011, NIOSH opined that 16- and 17-year-olds could only perform these tasks safely when assisting an experienced caregiver.31 NIOSH did not express any specific concerns about the actual operation of the equipment. Rather, it cited the force necessary to place slings under patients and to push a lift loaded with a patient. NIOSH also stated that adolescent workers often underestimate dangers associated with hazardous tasks and concluded that specific training alone is insufficient to protect young workers in this context. NIOSH also agreed that manually lifting patients is far more likely to result in lower back injuries than using a power-driven patient lift, and recommended that WHD consider regulations prohibiting youth under 18 from manually lifting patients.32

    30See Letter by WHD Deputy Administrator Nancy Leppink to NIOSH Director John Howard, Oct. 21, 2010.

    31See NIOSH Assessment of Risks for 16- and 17-Year Old Workers Using Power-Driven Patient Lift Devices, https://www.dol.gov/whd/CL/NIOSH_PatientLifts.pdf (“NIOSH 2011 Report”), at 10-11.

    32 The Department has considered NIOSH's report and discusses it, at pp. 11, 13-14, and 17-18. As discussed below, the Department believes that it is important to separately consider the potential risks and benefits to youth using power-driven patient lifts because of the distinctions between patient lifts and the other covered equipment in HO 7.

    The Department issued a Field Assistance Bulletin (FAB) on July 13, 2011, establishing a nonenforcement policy when, under specified conditions, trained 16- and 17-year-olds assist a trained adult in the operation of power-driven patient lifts/hoists.33 In the FAB, the Department stated that it would not “assert child labor violations involving 16- and 17-year-olds who assist a trained adult worker . . . in the operation of floor-based vertical powered patient/resident lift devices, ceiling-mounted vertical powered patient/resident lift devices, and powered sit-to-stand patient/resident lift devices (lifting devices)” when the youth worker met specific training requirements, was not injured in the process, did not make “hands on” physical contact with the patient during the lifting or transferring process, and, among other things, received necessary documentation in advance.

    33See U.S. Dep't of Labor, Wage & Hour Div., Field Assistance Bulletin 2011-3, July 13, 2011, https://www.dol.gov/whd/FieldBulletins/fab2011_3.pdf; see also FOH 33h07(e)(5), https://www.dol.gov/whd/FOH/FOH_Ch33.pdf.

    Nonetheless, stakeholders and legislators have continued to voice concerns about the strict limitations that HO 7 and the nonenforcement policy place on 16- and 17-year-olds' ability to operate power-driven patient lifts. In general, these stakeholders and legislators have argued that the current limits on the use of power-driven patient lifts are both unnecessary and far too restrictive. They have argued, for instance, that power-driven patient lifts are safer than manual lifting; that the demand for workers in health care can often exceed supply; that the restrictions resulting from the 2010 Final Rule and the 2011 FAB prevent health care facilities from recruiting sufficient employees; and that these restrictions deprive 16- and 17-year-olds of valuable training opportunities.

    These commenters have argued that HO 7 and the 2011 FAB unnecessarily restrict programs that train high school students to become nursing assistants and allow them to apprentice in medical settings such as nursing homes and long-term care facilities. They further argue that the 16- and 17-year-old students in these programs are trained in the operation of power-driven patient lifts and therefore can operate the lifts safely. For example, letters in 2017 from Senator Tammy Baldwin (D-WI), Representative Ron Kind (D-WI), and Senator Ron Johnson (R-WI) cited an organization that enables students in Wisconsin to take college-level nursing courses, receive CNA certifications, and work as apprentices with employers. Highlighting the difficulties such programs have faced, a 2012 survey of vocational schools by the Massachusetts Department of Public Health's Teens at Work Project indicated that nearly 60 percent of respondents said that employers had commented about increased burdens due to restrictions on teens' use of power-driven patient lifts, and that 23 percent of respondents reported that students had to change jobs as a result of the revised HO 7.34 Survey respondents further indicated that the restrictions made it more difficult to place students participating in cooperative education job programs in health care. Notably, some students performed more manual lifting. And even when employers were willing and able to adjust the job duties of youth to comply with the FAB, such adjustments were often extremely time- and resource-consuming.35

    34 Mass. Dep't of Public Health, Occupational Health Surveillance Program, Federal Child Labor Law Hazardous Occupations Order No. 7 (HO7) and Power-driven Patient Lift Assist Devices: Revisions to the Law, at 2.

    35Id.

    IV. Review of Proposed Changes

    The Department has regularly reviewed and revised the criteria for permissible youth employment to address amendments to the FLSA, improvements in workplace safety, the introduction of new processes and technologies, the emergence of new types of businesses in which young workers may find employment opportunities, the existence of differing federal and state standards, divergent views on how best to correlate school and work experiences, and changing needs of employers and businesses in the economy.36 Consistent with these principles, and based on the information provided by stakeholders and available data, the Department is considering whether the operation of power-driven patient lifts is indeed particularly hazardous to youth employed in the health care occupations or detrimental to their health or well-being. This Notice of Proposed Rulemaking proposes to exclude power-driven patient lifts from the list of devices covered under HO 7 and asks for comment on that proposal.

    36 In addition to the proposals herein, the Department is consulting with NIOSH to determine what other updates to the HOs, if any, are appropriate to expand employment, apprenticeship, and training opportunities while maintaining worker protections.

    As explained above, the Department has received numerous letters, including from health care providers and a bipartisan group of Members of Congress, requesting that the Department reconsider its policies with respect to patient lifts to address industry needs and to promote learning opportunities and safety for youth workers. These letters contained useful information in support of their arguments, including indications that the restrictions stemming from HO 7 interfere with facilities' ability to care for patients, potentially encourage 16- and 17-year-olds to engage in less safe manual lifting, and hinder the employment of 16- and 17-year-olds in health care.

    Although they fit within the technical definition of devices covered by HO 7, power-driven patient lifts differ in significant ways from the other devices addressed by that HO. For example, power-driven patient lifts are used in settings far different from the industrial settings in which most of the other devices addressed by that HO are used (and for which HO 7 was principally promulgated).37 Moreover, data from BLS shows that from 2012 through 2016, only one worker fatality was attributed to patient hoists or lifting harnesses. By contrast, during this same period, 221 worker fatalities were associated with cranes, 10 were associated with overhead hoists, 200 were associated with bucket or basket hoists, 35 were associated with manlifts, and 464 were associated with forklifts.38 BLS data also shows that, during the same period, the annual median days lost associated with injuries caused by patient lifts ranged from 5 to 10, compared to 5 to 41 for manlift injuries; 14 to 21 for forklift injuries, 4 to 23 for overhead hoist injuries, 8 to 27 for bucket or basket hoist injuries, and 14 to 34 for crane injuries.39 Put simply, a power-driven patient lift is different, both in form and function, from a forklift, backhoe, crane, and the numerous other industrial devices mentioned in HO 7. The Department believes that it is important to separately consider the potential risks and benefits to youth using this equipment because patient lifts differ so significantly from the other covered equipment in HO 7.

    37 Highlighting the industrial nature of the devices that HO 7 was intended to prohibit 16- and 17-year-olds from operating, the appendix to the 1946 report supporting HO 7 includes a table showing that injuries in one state caused by hoisting apparatus were concentrated primarily in manufacturing, construction, mining and quarrying, and trade, with only 5.8 percent of such injuries occurring in “service industries.” Report No. 7, Appendix II, Table I (1946).

    38See Bureau of Labor Statistics, Census of Fatal Occupational Injuries (2011 forward), https://data.bls.gov/PDQWeb/fw.

    39See Bureau of Labor Statistics, Nonfatal cases involving days away from work: Selected characteristics (2011 forward), https://data.bls.gov/PDQWeb/cs.

    Use of power-driven patient lifts also has important benefits for worker safety. In particular, as NIOSH recognized in its 2011 report, power-driven patient lifts have significantly reduced the risk of lower back injuries to workers, which is much more prevalent when caregivers use their own physical strength to transfer patients manually.40 DOL's Occupational Safety and Health Administration (OSHA) has also recommended that manual lifting of nursing home residents “be minimized in all cases and eliminated when feasible.” 41 Thus, while the operation of power-driven patient lifts is not risk-free, these devices ultimately improve worker safety. Given that power-driven patient lifts are widely regarded as safer for the worker than manual lifting, the Department believes that it is incongruous for 16- and 17-year-olds to be prohibited from independently operating power-driven patient lifts but permitted to manually lift patients without any restrictions (since manual lifting of patients is not prohibited by any HO). Such a framework creates incentives that are inconsistent with worker and patient safety.

    40 NIOSH 2011 Report at 2.

    41 OSHA, Ergonomics for the Prevention of Musculoskeletal Disorders, Guidelines for Nursing Homes (OSHA 3182-3R-2009), at 9, https://www.osha.gov/ergonomics/guidelines/nursinghome/final_nh_guidelines.pdf.

    Additionally, best practices developed by OSHA and other government agencies can help mitigate the risks associated with power-driven patient lifts. NIOSH informed WHD that research has demonstrated that “comprehensive safe patient handling and movement programs that incorporate power-driven patient lifts have made an enormous difference in reducing musculoskeletal disorders among health care workers in the United States.” 42 The Department believes that adhering to such best practices, rather than a blanket prohibition on the independent operation of power-driven patient lifts, may be the best way to ensure that 16- and 17-year-old workers can operate these devices safely. For example, guidance developed in part by the Veterans Health Administration and Department of Defense provides recommendations for the circumstances under which one, two, or three or more caregivers are appropriate to operate a lift.43 Generally, this guidance recommends that two to three caregivers are appropriate when lifting or transferring a patient who cannot bear weight, cannot offer assistance, or is uncooperative, but that under certain circumstances, only one caregiver is needed for a patient who can bear at least partial weight and is cooperative. OSHA's guidelines for nursing homes concur with these recommendations.44 Additional guidance for employers who are considering engaging 16- and 17-year-olds in the operation of power-driven patient lifts is available through NIOSH.45

    42 Letter by NIOSH Director John Howard to WHD Deputy Administrator Nancy Leppink, Mar. 11, 2011, https://www.dol.gov/whd/CL/NIOSH_CoverLetter.pdf.

    43See Patient Safety Center of Inquiry (Tampa, FL), Veterans Health Administration and Department of Defense, Patient Care Ergonomics Resource Guide: Safe Patient Handling and Movement, at 73-78, https://osha.oregon.gov/edu/grants/train/Documents/va-patient-care-ergonomics-resource-guide-part-1-rev-8-2005.pdf.

    44 OSHA Ergonomics for the Prevention of Musculoskeletal Disorders, Guidelines for Nursing Homes, at 13, 15-16.

    45 CDC/NIOSH, Safe Patient Handling and Mobility (SPHM), https://www.cdc.gov/niosh/topics/safepatient/default.html.

    Finally, requirements under other federal and state statutes and regulations may help ensure that 16- and 17-year-olds can operate power-driven patient lifts safely. For example, regulations under the Federal Nursing Home Reform Act, part of the Omnibus Budget Reconciliation Act of 1987, require that nurses' aides in nursing facilities or skilled nursing facilities complete a competency evaluation and receive at least 75 hours of training, including at least 16 hours of supervised practical or clinical training, under the supervision of a registered nurse who has at least two years of nursing experience.46 “Transfers, positioning, and turning” are required parts of the training.47 Over half of states require more training hours than this federal minimum, and 13 states require at least 120 training hours.48 Many states require that CNAs learn about transitioning or moving a patient using power-driven patient lifts as part of their curriculum.

    46 42 CFR 483.152, 483.154.

    47 42 CFR 483.152(b)(3)(viii).

    48 PHI (Paraprofessional Health Care Institute), Nursing Assistant Training Requirements by State, https://phinational.org/advocacy/nurse-aide-training-requirements-state-2016/.

    In light of these considerations, the Department proposes to remove the operation of power-driven patient lifts from HO 7. The Department welcomes comments on this proposal. The proposed rule defines “patient lift” as a power-driven device, either fixed or mobile, used to lift and transport a patient or resident (such as of a medical care, nursing, long-term care, or assisted living facility) in the horizontal or other required position from one place to another, as from a bed to a bath, including any straps and a sling used to support the patient. This definition derives from two definitions of patient lifts in U.S. Food and Drug Administration regulations on medical devices, 21 CFR 880.5500 and 880.5510. The Department welcomes comments on whether the Department's proposed definition is appropriate or, if not, how the proposed definition should be revised. In addition, the Department proposes minor conforming and technical edits to existing paragraph 570.58(c).

    V. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and its attendant regulations, 5 CFR part 1320, require the Department to consider the agency's need for its information collections, their practical utility, the impact of paperwork and other information collection burdens imposed on the public, and how to minimize those burdens. The PRA typically requires an agency to provide notice and seek public comments on any proposed collection of information contained in a proposed rule.49

    49See 44 U.S.C. 3506(c)(2)(B); 5 CFR 1320.8.

    This NPRM does not contain a collection of information subject to OMB approval under the Paperwork Reduction Act. The Department welcomes comments on this determination.

    VI. Analysis Conducted in Accordance With E.O. 12866, Regulatory Planning and Review, and E.O. 13563, Improved Regulation and Regulatory Review A. Introduction

    Under E.O. 12866, OMB's Office of Information and Regulatory Affairs determines whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and OMB review.50 Section 3(f) of E.O. 12866 defines a “significant regulatory action” as an action that is likely to result in a rule that: (1) Has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O. OIRA has determined that this proposed rule is not significant under section 3(f) of E.O. 12866.

    50 58 FR 51735 (Sept. 30, 1993).

    E.O. 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; that it is tailored to impose the least burden on society, consistent with achieving the regulatory objectives; and that, in choosing among alternative regulatory approaches, the agency has selected the approaches that maximize net benefits. E.O. 13563 recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.

    B. Economic Analysis 1. Overview of Proposed Changes

    In this NPRM, the Department proposes to remove the operation of power-driven patient lifts from the list of HO-governed activities. This analysis assumes that federal regulations would govern all entities. The Department does not herein interpret any state laws or regulations that may have greater restrictions on the type of work that 16- and 17-year-olds are allowed to perform, or the hours they are allowed to work. As a result, this analysis may overestimate the number of workers and employers affected by the NPRM. The Department seeks public comment regarding state and local regulations and laws governing 16- and 17-year-olds, and how they differ from these federal regulations.

    2. Increased Earnings for 16- and 17-Year-Olds Who Become Employed

    The proposal to remove the operation of power-driven patient lifts from the list of HO-governed activities is expected to expand employment opportunities in the health care sector for 16- and 17-year-olds. The total universe of 16- and 17-year-olds who could enter these new jobs is the number who are unemployed (that is, jobless, looking for a job, and available for work). Unlike for the general adult population, the Department assumes that 16- and 17-year-olds who are not looking for work—and are, therefore, not in the labor force—are focused on school and would not choose to move into the labor force even if additional employment opportunities became available. According to annual average data from BLS, which includes individuals who are not working but who have looked for a job in the past month, there were 347,000 unemployed 16- and 17-year-olds in 2017.51

    51 BLS Current Population Survey, Annual Averages, Employment status of the civilian noninstitutional population by age, sex, and race. https://www.bls.gov/cps/cpsaat03.htm.

    If 16- and 17-year-olds are no longer prohibited from independently operating power-driven patient lifts, employers may be more likely to hire youth for health care occupations that use these lifts. In the Department's analysis, home health care services (NAICS 6216), hospitals (NAICS 622), and nursing and residential care facilities (NAICS 623) are summed to estimate the portion of the health care industry that relies the most on the use of patient lifts. Going forward in this economic analysis, discussions involving health care calculations refer to these industries, which together constituted 6.7 percent of total employment in the United States in 2017.52

    52 BLS Current Employment Statistics Databases, annual average employment, 2017, Series IDs CEU0000000001, CEU6562160001, CEU6562200001, and CEU6562300001. www.bls.gov/ces/data.htm.

    To determine the number of new 16- and 17-year-old workers that the amendment to HO 7 would add to the economy, it is necessary to estimate the share of unemployed teens who could gain employment in these health care industries. The Department used the employment share discussed above (6.7 percent) and multiplied it by the total number of unemployed teens (347,000) to calculate a proxy for the share of 16- and 17-year-olds who would choose to work in health care given the opportunity. The Department estimates that the change to HO 7 could potentially add up to 23,249 new workers to these industries. The Department seeks public comments regarding the estimated number of 16- and 17-year-olds who would gain employment as a result of the changes proposed in this NPRM.

    To quantify the wages that these new workers would earn, the Department used the average hourly pay rate for 16- and 17-year-olds in health care. BLS data show that, on average, 16- and 17-year-olds in the health care and social assistance industry earned $9.60 per hour in 2017.53

    53 BLS Current Population Survey, results generated through DataFerrett (https://dataferrett.census.gov/) using PTERNH10 for hourly earnings, PRTAGE for age, and PRIMIND1 for industry.

    BLS data show that, on average, 16- and 17-year-olds work 18.2 hours per week.54 In addition, data show that 60 percent of 16- and 17-year olds work 26 or fewer weeks out of the year, with almost 40 percent working less than 14 weeks.55 Therefore, the Department assumes that 16- and 17-year-olds work, on average, 20 weeks per year. If a 16- or 17-year-old works 18.2 hours per week for 20 weeks per year and earns $9.60 per hour, his or her average annual earnings would be $3,494. Multiplying this annual wage by the estimated 23,249 potential new workers in health care yields a total annual wage impact of $81,241,306 at either a 3 or 7 percent discount rate.

    54 BLS Current Population Survey, Average Hours at Work in Nonagricultural Industries, 16 to 17 years. https://www.bls.gov/cps/cpsaat22.htm.

    55 BLS Current Population Survey, unpublished table: Work Experience of the Population by Extent of Employment in 2016, Sex, Race, Hispanic or Latino ethnicity, and Age, March 2017.

    3. Benefits

    In association with the earnings that 16- and 17-year-olds would receive through employment in the health care industry, there are many unquantifiable benefits. As discussed earlier, research has shown that working as a teen correlates with better attachment to the workforce over a person's entire career. By working or participating in an apprenticeship program, 16- and 17-year-olds receive training and develop skills for in-demand jobs. For example, employment in the health care and social assistance sector is projected to add nearly 4 million jobs by 2026, about one-third of all new jobs, creating high demand for skilled workers in this field.56

    56 BLS Employment Projections, https://www.bls.gov/news.release/ecopro.nr0.htm.

    The availability of 16- and 17-year-olds to perform these activities would also benefit society in other ways. For example, if the Department adopts the proposal to remove the operation of power-driven patient lifts from HO 7, these youth workers may be permitted to independently operate a patient lift, so adult employees could work more efficiently, resulting in higher workplace productivity. Additionally, increased earnings for youth, both currently and over their future career, would enable workers to contribute more in the form of income taxes and decrease their reliance on social welfare programs given their steadier employment and income.

    4. Regulatory Familiarization Costs

    Regulatory familiarization costs represent direct costs to businesses associated with reviewing the new regulation. To calculate the cost associated with reviewing the rule, the Department first estimated the number of establishments that would review the rule. The Department used establishment data from the Quarterly Census of Employment and Wages for the three relevant health care industries. The 2016 annual average number of establishments in Home Health Care Services (NAICS 6216) was 34,090, the number of establishments in Hospitals (NAICS 622) was 12,754, and the number of establishments in Nursing and Residential Care Facilities (NAICS 623) was 80,252, totaling 127,096 establishments in the three relevant health care industries.

    Next, the Department estimated the time it would take for an establishment to review the rule. The Department estimates that it would take approximately 15 minutes for a health care establishment to review the provisions related to removing the operation of power-driven patient lifts from the list of HO-governed activities.

    Then, the Department estimated the hourly compensation of the employees who would likely review the rule. The Department assumes that a Human Resources Manager (SOC 11-3121) would review the rule. The mean hourly wage of Human Resources Managers is $59.38.57 The Department adjusted this wage rate to reflect fringe benefits such as health insurance and retirement benefits, as well as overhead costs such as rent, utilities, and office equipment. The Department used a fringe benefits rate of 46 percent 58 and an overhead rate of 17 percent,59 resulting in a fully loaded hourly compensation rate for Human Resources Managers of $96.79 (= $59.38 + ($59.38 × 46%) + ($59.38 × 17%)).

    57 BLS, Occupational Employment Statistics, Occupational Employment and Wages, May 2017, 11-3121 Human Resources Managers, https://www.bls.gov/oes/current/oes113121.htm.

    58 BLS, Employer Costs for Employee Compensation, https://www.bls.gov/ncs/data.htm. Wages and salaries averaged $24.26 per hour worked in 2017, while benefit costs averaged $11.26, which is a benefits rate of 46%.

    59 Cody Rice, U.S. Environmental Protection Agency (June 10, 2002), “Wage Rates for Economic Analyses of the Toxics Release Inventory Program,” at 4. https://www.regulations.gov/document?D=EPA-HQ-OPPT-2014-0650-0005.

    Therefore, regulatory familiarization costs in Year 1 for establishments in the pertinent health care sectors are estimated to be $3,075,386 (= 127,096 establishments × 15 minutes × $96.79), which amounts to a 10-year annualized cost of $350,028 at a discount rate of 3 percent (which is $2.75 per establishment) or $409,220 at a discount rate of 7 percent (which is $3.22 per establishment). The Department seeks public comments regarding the estimated number of establishments that would review the rule, the estimated time to review the rule, and whether a Human Resources Manager would be the most likely staff member to review the rule.

    EP27SE18.000 5. Additional Costs

    If the Department adopts this proposed rule without change, health care employers would likely increase the number of employment, apprenticeship, and training opportunities for 16- and 17-year-olds.

    One potential cost to employers that seek to hire 16- and 17-year-olds in health care occupations through apprenticeship or other training program models is the cost of the training programs themselves. For example, apprenticeship programs vary significantly in length—from one to six years—and in cost. A 2016 study by the Department of Commerce found that the most expensive program in their sample cost $250,000 per apprentice, while the least expensive cost less than $25,000. The study found that apprentices' compensation costs over the duration of the program were the major cost for all companies. Other important costs included program start-up, tuition and educational materials, mentors' time, and overhead.

    The proposed rule, however, would not impose these costs on employers; rather, the above-described costs would only result from employers' voluntary employment decisions as a result of the proposed rule, such as the decision to employ additional apprentices.

    In addition to the potential costs and benefits to employers, the potential costs to youth should be considered. Although power-driven patient lifts are widely regarded as safer for workers than manual lifting, worker injuries have nonetheless been attributed to the use of patient lifts. But while the operation of power-driven patient lifts is not risk-free, these devices do improve worker safety. As discussed, power-driven patient lifts have significantly reduced the risk to workers of musculoskeletal disorders, which can be caused by manually lifting patients. The Department seeks comments and additional data on the potential risks or safety improvements associated with additional apprenticeship and employment opportunities for 16- and 17-year-olds in health care.

    6. Summary of Costs

    Table 2 summarizes the total quantifiable costs.

    EP27SE18.001 C. Analysis of Regulatory Alternatives

    In developing this NPRM, the Department considered one regulatory alternative that would be less restrictive than what is currently proposed and one that would be more restrictive. For the option that would be less restrictive, the Department considered creating an exemption in HO 7 for all hoists with a capacity of two tons or less. But without additional information concerning the safety and potential risks associated with the various hoisting apparatuses that such an exemption would affect, the Department has decided to limit the scope of this proposed rule to address the operation of power-driven patient lifts only.

    For a more restrictive alternative, the Department considered codifying into the regulations the restrictions and conditions in its 2011 nonenforcement policy concerning power-driven patient lifts. To encourage more employers to hire 16- and 17-year-olds in health care-related jobs and to allow youth to safely obtain the training and skills they need for these in-demand careers, however, the Department decided to propose eliminating power-driven patient hoists from the list of prohibited devices in HO 7. The Department believes that the current proposal would increase youth employment and participation in these fields, while also keeping these workers safe.

    D. Initial Regulatory Flexibility Analysis

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (as amended), the Department examined the regulatory requirements of the proposed rule to determine whether they would have a significant economic impact on a substantial number of small entities. As indicated in Section VI.B, Economic Analysis, the annualized burden is estimated to be $3.22 per establishment. At the firm level, each firm in Home Health Care Services (NAICS 6216), Hospitals (NAICS 622), and Nursing and Residential Care Facilities (NAICS 623) has on average 1.94 establishments,60 so the number of firms is estimated to be 65,624. Table 3 shows the estimated number of firms in the three health care subsectors, as well as the annualized cost per firm.

    60 Census Bureau, Statistics of U.S. Businesses, 2015.

    EP27SE18.002

    Table 4 provides the annualized cost per firm as a percentage of revenue by firm size in the health care and social assistance industry. As the table shows, the annualized burden as a percent of the smallest employer's revenue would be far less than 1 percent. Accordingly, the Department certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities.

    BILLING CODE 9110-04-P EP27SE18.003 BILLING CODE 9110-04-C E. Unfunded Mandates Reform Act Analysis

    The Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1532, requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing any Federal mandate that may result in excess of $100 million (adjusted annually for inflation) in expenditures in any one year by state, local, and tribal governments in the aggregate, or by the private sector. This rulemaking is not expected to result in such expenditures by state, local, or tribal governments. While this rulemaking would affect employers in the private sector, it is not expected to result in expenditures greater than $100 million in any one year. Please see Section B for an assessment of anticipated costs and benefits to the private sector.

    F. E.O. 13132, Federalism

    The Department has (1) reviewed this proposed rule in accordance with E.O. 13132 regarding federalism and (2) determined that it does not have federalism implications. The proposed rule would 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.

    G. E.O. 13175, Indian Tribal Governments

    This proposed rule would not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

    H. Effects on Families

    The undersigned hereby certifies that the proposed rule would not adversely affect the well-being of families, as discussed under section 654 of the Treasury and General Government Appropriations Act, 1999.

    I. E.O. 13045, Protection of Children

    E.O. 13045, dated April 21, 1997 (62 FR 19885), applies to any rule that (1) is determined to be “economically significant” as defined in E.O. 12866, and (2) concerns an environmental health or safety risk that the promulgating agency has reason to believe may have a disproportionate effect on children. This proposal is not subject to E.O. 13045 because it is not economically significant as defined in E.O. 12866.

    List of Subjects in 29 CFR Part 570

    Administrative practice and procedure, Agriculture, Child labor, Intergovernmental relations, Occupational safety and health, Reporting and recordkeeping requirements.

    VII. Proposed Regulatory Changes

    For the reasons set forth in the preamble, the Department of Labor proposes to amend part 570 of title 29 of the Code of Federal Regulations as follows:

    PART 570—CHILD LABOR REGULATIONS, ORDERS AND STATEMENTS OF INTERPRETATION Subpart E—Occupations Particularly Hazardous for the Employment of Minors Between 16 and 18 Years of Age or Detrimental to Their Health or Well-Being 1. The authority citation for Subpart E continues to read as follows: Authority:

    29 U.S.C. 203(l), 212, 213(c).

    § 570.58 [Amended]
    2. In § 570.58, add in alphabetical order a definition for “patient lift” paragraph (b) and revise paragraph (c) to read as follows:
    § 570.58 Occupations involved in the operation of power-driven hoisting apparatus (Order 7).

    (b) * * *

    Patient lift is a power-driven device, either fixed or mobile, used to lift and transport a patient or resident (such as of a medical care, nursing, long-term care, or assisted living facility) in the horizontal or other required position from one place to another, as from a bed to a bath, including any straps and a sling used to support the patient or resident.

    (c) Exceptions. (1) Automatic elevators and automatic signal elevators. (i) This section shall not prohibit the operation of an automatic elevator and an automatic signal operation elevator provided that the exposed portion of the car interior (exclusive of vents and other necessary small openings), the car door, and the hoistway doors are constructed of solid surfaces without any opening through which a part of the body may extend; all hoistway openings at floor level have doors which are interlocked with the car door so as to prevent the car from starting until all such doors are closed and locked; the elevator (other than hydraulic elevators) is equipped with a device which will stop and hold the car in case of overspeed or if the cable slackens or breaks; and the elevator is equipped with upper and lower travel limit devices which will normally bring the car to rest at either terminal and a final limit switch which will prevent the movement in either direction and will open in case of excessive over travel by the car.

    (ii) For the purpose of this exception, the term “automatic elevator” shall mean a passenger elevator, a freight elevator, or a combination passenger-freight elevator, the operation of which is controlled by pushbuttons in such a manner that the starting, going to the landing selected, leveling and holding, and the opening and closing of the car and hoistway doors are entirely automatic.

    (iii) For the purpose of this exception, the term “automatic signal operation elevator” shall mean an elevator which is started in response to the operation of a switch (such as a lever or pushbutton) in the car which when operated by the operator actuates a starting device that automatically closes the car and hoistway doors—from this point on, the movement of the car to the landing selected, leveling and holding when it gets there, and the opening of the car and hoistway doors are entirely automatic.

    (2) Patient lifts. This section shall not prohibit the work of operating or assisting in the operation of patient lifts, as defined in this section.

    Signed at Washington, DC, this 21st day of September 2018. Bryan L. Jarrett, Acting Administrator, Wage and Hour Division.
    [FR Doc. 2018-20996 Filed 9-26-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0849] RIN 1625-AA00 Safety Zone; The Gut, South Bristol, ME AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to establish a temporary safety zone for the navigable waters within a 50 yard radius from the center point of The Gut Bridge in South Bristol, ME between Rutherford Island and Bristol Neck. The safety zone is necessary to protect personnel, vessels, and the marine environment from potential hazards created during bedrock removal operations. When enforced, this proposed rule would prohibit entry of vessels or persons into the safety zone unless authorized by the Captain of the Port Northern New England or a designated representative. We invite your comments on this proposed rulemaking.

    DATES:

    Comments and related material must be received by the Coast Guard on or before October 29, 2018.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2018-0849 using the Federal eRulemaking Portal at https://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this proposed rulemaking, call or email LT Matthew Odom, Waterways Management Division, U.S. Coast Guard Sector Northern New England, telephone 207-347-5015, email [email protected]

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register MEDOT Maine Department of Transportation NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

    On October 08, 2014, the Coast Guard published a temporary final rule titled, “Regulated Navigation Area; South Bristol Gut Bridge Replacement, South Bristol, ME.” in the Federal Register (79 FR 60745) to enforce a regulated navigation area during bridge replacement operations. This regulated navigation area allowed the Coast Guard to enforce speed and wake restrictions and prohibit all vessel traffic through the regulated navigation area during bridge replacement operations. This rule was effective until April 30, 2017. No comments were received during the public comment period of this rule making.

    On August 21, 2018, the Maine Department of Transportation (MEDOT) notified the Coast Guard that it will be removing bedrock in the areas between Rutherford Island and Bristol Neck underneath The Gut Bridge. The removal operations include removing bedrock from between the bridge abutments and areas near the navigation channel both upstream and downstream of The Gut Bridge. To remove the bedrock workers will need to utilize the waterway underneath the bridge span and prohibit people and vessels from entering the safety zone at various times. Removal operations are expected to take place between November 2018 and March 2019. However, we only anticipate a continuous 35 day full closure of the waterway. The Captain of the Port (COTP) Northern New England has determined that the potential hazards associated with the removal operations will be a safety concern for anyone transiting within a 50-yard radius of the center point of The Gut Bridge.

    The purpose of this rulemaking is to ensure the safety of vessels and personnel from potential hazards associated with the removal of bedrock within a 50-yard radius of the center point of The Gut Bridge during scheduled bedrock removal operations. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

    III. Discussion of Proposed Rule

    The Captain of the Port (COTP) Northern New England proposes to establish a safety zone from 12:01 a.m. on November 8, 2018 to 11:59 on March 31, 2019. While the safety zone would be effective throughout this period, it would only be enforced during periods of active bedrock removal operations. The safety zone would include all navigable waters from surface to bottom within a 50 yard radius from the center point of The Gut Bridge between Rutherford Island and Bristol Neck in South Bristol, ME. During times of enforcement, no vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

    The Coast Guard will notify the public and local mariners of this safety zone through appropriate means, which may include, but are not limited to, publication in the Federal Register, the Local Notice to Mariners, and Broadcast Notice to Mariners via marine Channel 16 (VHF-FM) in advance of any enforcement.

    IV. Regulatory Analyses

    We developed this proposed 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.

    A. Regulatory Planning and Review

    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 NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM 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 selective enforcement of the safety zone. The safety zone will impact only a small designated portion on The Gut waterway for 143 days. This waterway is typically transited by small recreational craft on an infrequent basis after Labor Day Weekend and prior to Memorial Day Weekend. Vessel traffic would be able to safely transit around this safety zone with a slight delay (approximately 20-60 minutes) by transiting around Rutherford Island to reach any destination on the other side of The Gut. Additionally, the safety zone will only be enforced during active bedrock removal operations necessitating closure of the waterway or during an emergency. Moreover, the rule allows vessels to seek permission to enter the zone. The Coast Guard will notify the public of enforcement of this rule via appropriate means, such as via Local Notice to Mariners and Broadcast Notice to Mariners via marine Channel 16 (VHF-FM)

    B. Impact on Small Entities

    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 proposed rule would 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 IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.

    If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

    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 proposed 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. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

    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 proposed 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 proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

    E. Unfunded Mandates Reform Act

    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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

    F. Environment

    We have analyzed this proposed 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 made a preliminary determination 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 proposed rule involves a safety zone that would prohibit entry within a 50-yard radius of the center point of a bridge. Normally such actions are 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 preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

    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.

    V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

    We accept anonymous comments. All comments received will be posted without change to https://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit https://www.regulations.gov/privacyNotice.

    Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.

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

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Add § 165.T01-0849 to read as follows:
    § 165.T01-0849 Safety Zone[s]; Safety Zone; The Gut, South Bristol, ME.

    (a) Location. The following area is a safety zone: All waters of The Gut, a waterway between Rutherford Island and Bristol Neck in South Bristol, ME, from surface to bottom, encompassed by a 50-yard radius from the center point of The Gut Bridge at position 43°51.720′ N, 069°33.480′ W (NAD 83).

    (b) Definitions. As used in this section:

    Designated representative means any Coast Guard commissioned, warrant, petty officer, or designated Patrol Commander of the U.S. Coast Guard who has been designated by the Captain of the Port, Sector Northern New England (COTP), to act on his or her behalf. The designated representative may be on an official patrol vessel or may be on shore and will communicate with vessels via VHF-FM radio or loudhailer. In addition, members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.

    Official patrol vessels means any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP to enforce this section.

    (c) Enforcement period. This rule will be effective from 12:01 a.m. on November 8, 2018 through 11:59 p.m. on March 31, 2019, but will only be enforced during active bedrock removal operations or other instances which may cause a hazard to navigation, or when deemed necessary by the Captain of the Port (COTP), Northern New England.

    (d) Regulations. When this safety zone is enforced, the following regulations, along with those contained in 33 CFR 165.23 apply:

    (1) No person or vessel may enter or remain in the safety zone described in paragraph (a) of this section unless authorized by the COTP or the COTP's designated representative.

    (2) To obtain permission required by this regulation, individuals may reach the COTP or the COTP's designated representative via Channel 16 (VHF-FM) or (207) 767-0303 (Sector Northern New England Command Center).

    (3) During periods of enforcement, any person or vessel permitted to enter the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.

    (e) Penalties. Those who violate this section are subject to the penalties set forth in 33 U.S.C. 1232.

    (f) Notification. Coast Guard Sector Northern New England will give notice through the Local Notice to Mariners and Broadcast Notice to Mariners for the purpose of enforcement of temporary safety zone. Coast Guard Sector Northern New England will also notify the public to the greatest extent possible of any period in which the Coast Guard will suspend enforcement of this safety zone.

    Dated: September 21, 2018. B.J. LeFebvre, Captain, U.S. Coast Guard, Captain of the Port, Sector Northern New England.
    [FR Doc. 2018-21057 Filed 9-26-18; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 51 and 52 [EPA-HQ-OAR-2018-0595; FRL-9984-19-OAR] RIN 2060-AU08 Emissions Monitoring Provisions in State Implementation Plans Required Under the NOX SIP Call AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to update the regulations that were originally promulgated in 1998 to implement the NOX SIP Call. In place of the current requirement for states to include provisions in their state implementation plans (SIPs) under which certain emissions sources must monitor their mass emissions of nitrogen oxides (NOX) according to 40 CFR part 75, the proposed amendments would allow states to include alternate forms of monitoring requirements in their SIPs. The amendments would also rescind the findings of interstate pollution transport obligations with respect to the 1997 8-hour ozone national ambient air quality standards (NAAQS) under the NOX SIP Call that have been stayed by EPA since 2000. Other revisions would remove additional obsolete provisions and clarify the remaining regulations but would not substantively alter any current regulatory requirements.

    DATES:

    Comments must be received on or before October 29, 2018. To request a public hearing, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section by October 4, 2018. EPA does not plan to conduct a public hearing unless requested.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2018-0595, at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets. Additional materials related to this proposed action, including submitted comments, can be viewed online at regulations.gov under Docket ID No. EPA-HQ-OAR-2018-0595 or in person at the EPA Docket Center Reading Room in Washington, DC. Information on the location and hours of the EPA Docket Center Reading Room is available at https://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    David Lifland, Clean Air Markets Division, Office of Atmospheric Programs, U.S. Environmental Protection Agency, MC 6204M, 1200 Pennsylvania Avenue NW, Washington, DC 20460; 202-343-9151; [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of contents I. Overview of the Proposed Action A. Summary of Proposed Amendments and Projected Impacts B. Potentially Affected Entities C. Statutory Authority and Proposed Determinations Concerning Rulemaking Procedures and Judicial Review D. Proposed Effective Date II. Background A. The NOX SIP Call B. The NOX Budget Trading Program (NBTP) and Related Trading Programs C. The NOX SIP Call's Contributions to Attainment of the NAAQS III. Proposed Amendments to the NOX SIP Call Regulations A. Emissions Monitoring Requirements B. Good Neighbor Obligations Under the 1997 8-Hour Ozone NAAQS C. Emissions Budget and Emissions Inventory Provisions D. Interstate Trading Program Options E. Procedural Provisions F. Editorial Revisions IV. Impacts of the Proposed Amendments V. Request for Comment VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review, and Executive Order 13563: Improving Regulation and Regulatory Review B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs C. Paperwork Reduction Act D. Regulatory Flexibility Act E. Unfunded Mandates Reform Act F. Executive Order 13132: Federalism G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use J. National Technology Transfer Advancement Act K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations I. Overview of the Proposed Action

    This section provides an overview of the proposed action, including a summary of the proposed amendments and their projected impacts as well as information concerning potentially affected entities, statutory authority, EPA's proposed determinations concerning applicable rulemaking and judicial review provisions, and the proposed effective date.

    Section II provides additional background. In section III, EPA describes the proposed amendments and the supporting rationales. Section IV discusses the projected impacts of the proposed amendments. EPA's request for comment is in section V. Section VI addresses reviews required under various statutes and Executive Orders.

    A. Summary of Proposed Amendments and Projected Impacts

    In 1998, EPA promulgated the NOX SIP Call which, as implemented, required 20 states and the District of Columbia to revise their SIPs to reduce seasonal NOX emissions contributing to interstate ozone pollution. Since implementation of emission controls under the NOX SIP Call began in 2003, the regulations have required these jurisdictions to include provisions in their SIPs under which certain large electricity generating units (EGUs) and large non-EGU boilers and turbines must monitor their seasonal NOX emissions according to the procedures in 40 CFR part 75. The sources formerly met these requirements through participation in the NOX Budget Trading Program (NBTP), which was discontinued after 2008. Almost all the affected large EGUs currently participate in the Acid Rain Program or Cross-State Air Pollution Rule (CSAPR) trading programs, which have comparable monitoring requirements, but few of the affected large non-EGUs participate in these other programs. Over time, many of the originally affected large non-EGUs have retired or switched to cleaner fuels, and newly affected large non-EGUs generally have lower emission rates, so total NOX emissions from the group are considerably lower than in the past. Several NOX SIP Call states have expressed interest in establishing alternate, potentially lower-cost monitoring requirements for the remaining large non-EGUs.

    This proposal would revise the existing NOX SIP Call regulations to allow states to amend their SIPs to establish emissions monitoring requirements for NOX SIP Call purposes other than Part 75 monitoring requirements. Ultimately, such alternate monitoring requirements could be made available to approximately 310 units—mostly large non-EGUs—through states' revisions to their SIPs. States, not EPA, would decide whether to revise the monitoring requirements in their SIPs, and EPA lacks complete information on the remaining monitoring requirements that the sources would face, but EPA expects that at least some states would revise their SIPs, resulting in reduced monitoring costs for at least some sources. Almost all the large EGUs would still be required to perform NOX monitoring according to 40 CFR part 75 under the Acid Rain Program or the CSAPR trading programs, thereby providing comparable monitoring data for most of the collective NOX mass emissions from the set of large EGUs and large non-EGU boilers and turbines affected under the NOX SIP Call. Further, the monitoring data for recent years show that the sets of large EGUs and large non-EGU boilers and turbines in all NOX SIP Call states are collectively complying with the portions of the statewide emissions budgets assigned to these types of sources by substantial margins. Given these circumstances, EPA believes that other forms of monitoring for the remaining large EGUs (i.e., those not covered under the Acid Rain Program or the CSAPR trading programs) and large non-EGU boilers and turbines can now provide sufficient assurance that the NOX SIP Call's required emissions reductions will continue to be achieved.

    EPA is also proposing to eliminate several obsolete provisions that no longer have any substantive effect on the regulatory requirements faced by states or sources. For example, the NOX SIP Call originally rested independently on parallel findings regarding interstate ozone pollution that EPA made with respect to two distinct NAAQS: The 1979 1-hour ozone NAAQS and the 1997 8-hour ozone NAAQS. The findings made with respect to the 1997 ozone NAAQS were stayed by EPA in 2000 and have since been superseded by findings made in more recent actions based on updated analyses. In this action, EPA is proposing to rescind the indefinitely stayed findings made in the NOX SIP Call with respect to the 1997 ozone NAAQS. EPA is also proposing to remove obsolete provisions concerning options to revise the NOX SIP Call emissions budgets and baseline emissions inventories, options to issue credits supplementing the emissions budgets, and options to comply with the emissions budgets by using the NBTP or state-developed interstate trading programs. An obsolete provision concerning SIP submission procedures would also be removed.

    Finally, EPA is proposing to make clarifying amendments to the remaining NOX SIP Call regulations. Most notably, existing regulatory text mischaracterizing the incremental emissions reductions required in states' Phase II SIP submissions as “Phase II incremental budget” amounts and “portions of” the final NOX budgets would be replaced by simpler text referencing the Phase I and final NOX budgets. The proposed clarifications would not substantively alter any existing regulatory requirements.

    No substantive amendments are proposed to any existing requirements of the NOX SIP Call except the existing requirement for SIPs to include provisions under which large EGUs and large non-EGU boilers and turbines must monitor their NOX emissions in accordance with 40 CFR part 75. The emissions reductions achieved by the NOX SIP Call have been relied on to support numerous final actions redesignating areas to attainment of a NAAQS, and consistent with that reliance the emissions reductions must be permanent and enforceable. To ensure the permanence and enforceability of the emissions reductions, other existing NOX SIP Call requirements regarding large EGUs and large non-EGU boilers and turbines, including requirements for SIPs to contain provisions establishing some form of enforceable seasonal NOX mass emissions limits for these sources supported by some form of monitoring requirements, are not affected by the proposed amendments and would remain in place, as would all of the more broadly applicable requirements regarding SIPs and the statewide emissions budgets. EPA is not reopening, and thus is not accepting comment on, any of the NOX SIP Call provisions other than the ones proposed for revision. With respect to the NOX SIP Call provisions proposed for revision other than the provision concerning Part 75 monitoring requirements, EPA is not reopening any of the provisions on a substantive basis and is accepting comment solely on whether the provisions proposed for removal as obsolete in fact are obsolete and on whether the proposed clarifications in fact achieve clarification.

    EPA is not proposing to amend any other regulations under which some sources affected under the NOX SIP Call may also face monitoring requirements. Such other regulations include, but are not limited to, regulations for the Acid Rain Program (40 CFR parts 72 through 78) and the CSAPR trading programs (40 CFR part 97, subparts AAAAA through EEEEE). EPA is not reopening, and thus is not accepting comment on, any such other regulations.

    B. Potentially Affected Entities

    This proposed action would not apply directly to any emissions sources but instead would amend existing regulatory requirements applicable to the SIPs of Alabama, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, West Virginia, and the District of Columbia. If an affected jurisdiction chooses to revise its SIP in response to these amendments, sources in the jurisdiction could be indirectly affected if they are subject to emissions monitoring requirements for purposes of the NOX SIP Call and are not independently subject to comparable requirements under another program such as the Acid Rain Program or a CSAPR trading program. Generally, the types of sources that could be affected are fossil fuel-fired boilers and stationary combustion turbines with heat input capacities over 250 million British thermal units per hour (mmBtu/hr) or serving electricity generators with capacities over 25 megawatts (MW). Sources meeting these criteria operate in a variety of industries, including but not limited to the following:

    NAICS * code Examples of industries with
  • potentially affected sources
  • 221112 Fossil fuel-fired electric power generation. 3112 Grain and oilseed milling. 3221 Pulp, paper, and paperboard mills. 3241 Petroleum and coal products manufacturing. 3251 Basic chemical manufacturing. 3311 Iron and steel mills and ferroalloy manufacturing. 6113 Colleges, universities, and professional schools. * North American Industry Classification System.
    C. Statutory Authority and Proposed Determinations Concerning Rulemaking Procedures and Judicial Review

    Statutory authority for the amendments proposed in this action is provided by Clean Air Act (CAA) sections 110 and 301, 42 U.S.C. 7410 and 7601, which also provided statutory authority for issuance of the existing NOX SIP Call regulations that EPA is proposing to amend.

    CAA section 307(d), 42 U.S.C. 7607(d), contains rulemaking and judicial review provisions that apply to certain EPA actions under the CAA including, under section 307(d)(1)(V), “such other actions as the Administrator may determine.” In accordance with section 307(d)(1)(V), the Administrator proposes to determine that the provisions of section 307(d) apply to any final action taken on this proposal. EPA has complied with the procedural requirements of section 307(d) during the course of this rulemaking.

    CAA section 307(b)(1), 42 U.S.C. 7607(b)(1), indicates which United States Courts of Appeals have venue for petitions of review of final actions by EPA. This section provides, in part, that petitions for review must be filed in the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) if (i) the Agency action consists of “nationally applicable regulations promulgated, or final action taken, by the Administrator,” or (ii) the action is locally or regionally applicable, but “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” EPA proposes to find that any final action taken on this proposal is “nationally applicable” or, in the alternative, is based on a determination of “nationwide scope and effect” within the meaning of section 307(b)(1). The proposed rule would amend existing regulations that apply to 20 states and the District of Columbia, and thus the proposed rule would apply to the same jurisdictions. The existing regulations that would be amended were promulgated to address interstate transport of air pollution across the eastern half of the nation and have been relied on as a basis for actions redesignating areas in at least 20 states to attainment with one or more NAAQS. Previous final actions promulgating and amending the existing regulations were nationally applicable and reviewed in the D.C. Circuit,1 and courts have found other similar actions to be nationally applicable.2 Finally, the jurisdictions to which the proposed rule would apply are located in nine federal judicial circuits, and in the report on the 1977 CAA Amendments that revised section 307(b)(1), Congress noted that the Administrator's determination that an action is of “nationwide scope or effect” would be appropriate for any action that has a scope or effect beyond a single judicial circuit.3 For these reasons, the Administrator proposes to determine that any final action related to the proposed rule is nationally applicable or, in the alternative, is based on a determination of nationwide scope and effect for purposes of section 307(b)(1).

    1 The U.S. Court of Appeals for the Fourth Circuit transferred a challenge to one of these actions to the D.C. Circuit after determining that the action was nationally applicable. See W. Va. Chamber of Commerce v. Browner, No. 98-1013, 1998 U.S. App. LEXIS 30621, at *24 (4th Cir. Dec. 1, 1998) (finding the NOX SIP Call to be nationally applicable based on “the nationwide scope and interdependent nature of the problem, the large number of states, spanning most of the country, being regulated, the common core of knowledge and analysis involved in formulating the rule, and the common legal interpretation advanced of section 110 of the Clean Air Act”).

    2See, e.g., Texas v. EPA, No. 10-60961, 2011 U.S. App. LEXIS 5654 (5th Cir. Feb. 24, 2011) (finding a SIP call to 13 states to be nationally applicable and thus transferring the case to the D.C. Circuit in accordance with CAA section 307(b)(1)). Cf. Judgment, Cedar Falls Utils. v. EPA, No. 16-4504 (8th Cir. Feb. 22, 2017) (transferring a petition to review the CSAPR Update to the D.C. Circuit).

    3 H.R. Rep. No. 95-294, at 323-24 (1977), reprinted in 1977 U.S.C.C.A.N. 1402-03.

    D. Proposed Effective Date

    If the amendments proposed in this action are finalized, EPA intends to make them effective immediately upon publication of a final action in the Federal Register. EPA expects that any final action would not be subject to requirements specifying a minimum period between publication and effectiveness under either Congressional Review Act (CRA) section 801(a)(3), 5 U.S.C. 801(a)(3), or Administrative Procedure Act (APA) section 553(d), 5 U.S.C. 553(d).

    CRA section 801(a)(3) generally prohibits a “major rule” from taking effect earlier than 60 days after the rule is published in the Federal Register. Generally, under CRA section 804(2), 5 U.S.C. 804(2), a major rule is a rule that the Office of Management and Budget (OMB) finds has resulted in or is likely to result in (1) an annual effect on the economy of $100 million or more, (2) major cost or price increases, or (3) other significant adverse economic effects. EPA expects that any final rule issued based on this proposal would not be a major rule for CRA purposes.

    As discussed in section I.C., EPA is proposing to issue the amendments under CAA section 307(d). This provision does not include requirements governing the effective date of a rule promulgated under it and, accordingly, EPA has discretion in establishing the effective date. While APA section 553(d) generally provides that rules may not take effect earlier than 30 days after they are published in the Federal Register, CAA section 307(d)(1) clarifies that “[t]he provisions of [APA] section 553 . . . shall not, except as expressly provided in this section, apply to actions to which this subsection applies.” Thus, APA section 553(d) would not apply to the amendments. Nevertheless, in proposing to make any final action taken on this proposal effective immediately upon publication, EPA has considered the purposes underlying APA section 553(d). The primary purpose of the prescribed 30-day waiting period is to give affected parties a reasonable time to adjust their behavior and prepare before a final rule takes effect. The amendments proposed in this action would not impose any new regulatory requirements and therefore would not necessitate time for affected sources to adjust their behavior or otherwise prepare for implementation. Further, APA section 553(d) expressly allows an effective date earlier than 30 days after publication for a rule that “grants or recognizes an exemption or relieves a restriction.” This proposal would relieve an existing restriction and allow EPA to approve SIPs with more flexible monitoring requirements, which in turn could lead to reduced monitoring costs for certain sources. Consequently, making the amendments effective immediately upon publication of a final action would be consistent with the purposes of APA section 553(d).

    II. Background

    This section provides background on the NOX SIP Call, the NOX Budget Trading Program (NBTP) and its successor trading programs, and EPA's and states' reliance on the resulting emissions reductions to support redesignations of areas to attainment of the NAAQS.

    A. The NOX SIP Call

    Under the CAA, EPA establishes and periodically revises NAAQS for certain pollutants, including ground-level ozone, while states have primary responsibility for attaining the NAAQS through the adoption of control measures in their SIPs. Under CAA section 110(a)(2)(D)(i)(I), 42 U.S.C. 7410(a)(2)(D)(i)(I), often called the “good neighbor provision,” each state is required to include provisions in its SIP prohibiting emissions that “will . . . contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any [NAAQS].” In 1998, EPA issued the NOX SIP Call (the Rule) identifying good neighbor obligations with respect to the 1979 1-hour ozone NAAQS and the 1997 8-hour ozone NAAQS and calling for SIP revisions to address those obligations.4 As originally promulgated and codified at 40 CFR 51.121 and 51.122, the Rule required 22 states 5 and the District of Columbia 6 to revise their SIPs to reduce their sources' emissions of NOX, an ozone precursor, during the May-September “ozone season.” The original deadline for implementation of controls to accomplish the required emissions reductions was May 1, 2003.

    4 Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone (NOX SIP Call), 63 FR 57356 (Oct. 27, 1998).

    5 In addition to the jurisdictions currently subject to requirements under the NOX SIP Call as amended, the Rule as originally issued also applied to Georgia and Wisconsin.

    6 For simplicity, this document often refers to all the jurisdictions with obligations under the CAA and the NOX SIP Call, including the District of Columbia, as “states.”

    In the NOX SIP Call rulemaking, EPA developed and applied a 4-step framework that has since formed the basis for all subsequent EPA rulemakings to address the good neighbor provision. The four steps are to: (1) Identify areas that are projected to have problems attaining or maintaining the NAAQS; (2) identify upwind states whose emissions warrant further analysis because of linkages to problematic air quality in downwind areas in other states; (3) determine the amounts of emissions that linked upwind states must eliminate (if any) to meet their good neighbor obligations, considering both air quality and cost factors; and (4) implement the required emissions reductions through enforceable control measures. For purposes of this proposed action, only the third and fourth of these four steps—determination of the amounts of required emissions reductions and implementation of the required reductions—merit discussion.7

    7 The following paragraphs summarize relevant background information from the more detailed description of the rulemaking process in the preamble for the final Rule at 63 FR 57405-76.

    Based on analysis of both air quality and cost factors, as noted above, EPA determined in the NOX SIP Call rulemaking that the amount of each state's required emissions reduction under the Rule should be the portion of the state's projected 2007 emissions inventory 8 that could be eliminated through the application of highly cost-effective controls. The 2007 emissions inventories spanned the full range of economic sectors, including EGU and non-EGU stationary point sources, smaller stationary (area) sources, and highway and nonroad mobile sources. After evaluating potential emission control opportunities across both stationary and mobile sectors, EPA identified sufficiently cost-effective control opportunities and quantified the resulting potential emissions reductions for four categories of fossil fuel-fired combustion devices: EGU boilers and turbines serving electricity generators with capacity ratings greater than 25 MW (large EGUs); non-EGU boilers and turbines with heat input ratings greater than 250 mmBtu/hr (large non-EGU boilers and turbines); stationary internal combustion engines; and cement kilns. In aggregate across all covered states, large EGUs accounted for approximately 83 percent of the total quantified potential emissions reductions, and the other three categories collectively accounted for approximately 17 percent.9

    8 The NOX SIP Call rulemaking made extensive use of 2007 emissions inventory information and air quality modeling results developed through the 1995-1997 Ozone Transport Assessment Group (OTAG) process, a collaborative effort of states, industry, environmental organizations, and EPA to analyze the causes of transported ozone pollution throughout the eastern United States and assess possible mitigation strategies.

    9 Out of the Rule's total quantified potential emissions reductions of 1,156,638 tons, EPA quantified potential emissions reductions from EGUs and non-EGUs of 957,975 tons and 198,663 tons, respectively. See 63 FR at 57434, 57436, and 57440 (differences between “Base” and “Budget” totals in Tables III-5, III-7, and III-11).

    To implement the Rule's emissions reduction requirements, EPA promulgated a “budget” for the statewide seasonal NOX emissions from each covered state. Each state's emissions budget was calculated as the state's projected 2007 emissions inventory minus the state's required emissions reduction. Notwithstanding EPA's own conclusions concerning the types of sources for which highly cost-effective controls were available, the Rule did not mandate that states follow any particular approach for achieving their required emissions reductions. Instead, states retained wide discretion regarding which sources in their states to control and what control measures to employ. Each state was simply required to demonstrate that whatever control measures it chose to include in its SIP revision would be sufficient to ensure that projected 2007 statewide seasonal NOX emissions from its sources would not exceed its emissions budget.

    Besides the general flexibility given to states regarding the choices of sources and control measures, the NOX SIP Call included additional provisions designed to increase compliance flexibility. First, the Rule established a compliance supplement pool of additional credits beyond the emissions budgets. States could issue credits from the pool according to criteria established in the Rule, and sources could use the credits to demonstrate compliance during the first two years in which emission controls were required. Second, the Rule allowed states to adopt interstate emission allowance trading programs as control measures to accomplish some or all of the required emissions reductions. EPA also provided a model rule for an EPA-administered interstate trading program—the NBTP—that would meet all the Rule's SIP approval criteria for a trading program for large EGUs and large non-EGU boilers and turbines.

    While generally oriented toward providing states and sources with compliance flexibility, the NOX SIP Call also included two conditional provisions that would become mandatory SIP requirements for large EGUs and large non-EGU boilers and turbines if states chose to include any emission control measures for these types of sources in their SIP revisions. First, under § 51.121(f)(2), any control measures imposed on these types of sources would be required to include enforceable limits on the sources' seasonal NOX mass emissions. These limits could take several forms, including either limits on individual sources or collective limits on the group of all such sources in a state. Second, under § 51.121(i)(4), these sources would be required to monitor and report their seasonal NOX mass emissions according to the provisions of 40 CFR part 75.10 One way a state could meet these two SIP requirements was to adopt the NBTP, because the NBTP included provisions addressing both requirements and was expressly designed as a potential control measure for these types of sources. However, it is important to recognize that the mandatory SIP requirements for large EGUs and large non-EGU boilers and turbines, once triggered by a state's choice to adopt any control measures for these types of sources into its SIP, exist independently of the NBTP. The mandatory SIP requirements therefore were not eliminated by the later discontinuation of the NBTP.

    10 For brevity, this notice generally refers to the monitoring, recordkeeping, and reporting requirements in 40 CFR part 75 as “Part 75 monitoring requirements.”

    Following initial promulgation, EPA amended the NOX SIP Call several times. One amendment in 2000 was prompted by a D.C. Circuit opinion concerning the 1997 8-hour ozone NAAQS.11 The court's decision created uncertainty concerning EPA's authority to implement this NAAQS, and in response EPA indefinitely stayed the findings of good neighbor obligations under this NAAQS as a basis for the Rule pending resolution of the uncertainty.12 Because all the Rule's requirements rested independently on the findings of good neighbor obligations under the 1979 1-hour ozone NAAQS, the stay—which remains in place—had no consequence for the Rule's implementation.

    11Am. Trucking Assns. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), affirmed in part and reversed in part sub nom. Whitman v. Am. Trucking Assns., 531 U.S. 457 (2001).

    12 65 FR 56245 (Sept. 18, 2000) (codified at 40 CFR 51.121(q)).

    Between 1998 and 2004, EPA made several other amendments to reflect updated information and to respond to other D.C. Circuit opinions and orders concerning the NOX SIP Call itself.13 Collectively, these amendments (1) eliminated emissions reduction requirements for Wisconsin and portions of Alabama, Georgia, Michigan, and Missouri; (2) modified definitions used to classify certain units as EGUs or non-EGUs; (3) revised the projected 2007 emissions inventories and the emissions budgets; (4) accommodated court-imposed deferrals of the Rule's original deadlines for SIP submissions and implementation of emission controls; and (5) divided the Rule's overall emissions reduction requirements into two phases, with implementation of the first and second phases of reductions required by May 31, 2004 and May 1, 2007, respectively.14 In an additional pair of amendments in 2005 and 2008, EPA first stayed and then eliminated emissions reduction requirements for the remaining portion of Georgia.15

    13 Most judicial challenges to the Rule and its amendments were denied, but the court vacated or remanded with respect to certain issues in Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000) and Appalachian Power Co. v. EPA, 251 F.3d 1026 (D.C. Cir. 2001).

    14 For a discussion of all amendments to the NOX SIP Call through 2004, see 69 FR 21604 (Apr. 21, 2004).

    15 For a discussion of the Georgia-related amendments, see 73 FR 21528 (Apr. 22, 2008).

    As amended, the NOX SIP Call applies to Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Massachusetts, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, and West Virginia; portions of Alabama, Michigan, and Missouri; and the District of Columbia. All these jurisdictions except Missouri adopted the NBTP for large EGUs and large non-EGU boilers and turbines as part of their Phase I SIP submissions. Missouri, which was not required to make a Phase I SIP submission, adopted the NBTP for the same types of sources as part of its Phase II SIP submission. By adopting control measures applicable to large EGUs and large non-EGU boilers and turbines into their SIPs, all the affected jurisdictions triggered obligations for their SIPs to include enforceable mass emissions limits and Part 75 monitoring requirements for these types of sources. As noted above, these requirements remain in effect despite the later discontinuation of the NBTP.16

    16 Some states expanded NBTP applicability under their SIPs to include additional sources, primarily smaller EGUs. Unlike large EGUs and large non-EGU boilers and turbines, the additional sources are not subject to the NOX SIP Call's ongoing obligation under § 51.121(i)(4) for SIPs to include part 75 monitoring requirements and therefore would not be affected by the amendments proposed in this action.

    B. The NOX Budget Trading Program (NBTP) and Related Trading Programs

    As described in section II.A., EPA developed the NBTP as a potential control measure for large EGUs and large non-EGU boilers and turbines that states could adopt into their SIPs to achieve some or all of the emissions reductions required under the NOX SIP Call, and all covered states chose to adopt the program into their SIPs as a control measure for these types of sources. To provide further context for the amendments to the NOX SIP Call proposed in this action, this section briefly discusses the relationships and relevant differences between the NBTP and several other interstate emission allowance trading programs that have preceded or followed it.

    The NBTP was implemented starting in 2003, succeeding a similar but geographically narrower interstate trading program called the Ozone Transport Commission (OTC) NOX Budget Program. The OTC trading program, which was developed by several northeastern states with EPA assistance, operated from 1999 through 2002. Like the NBTP, it applied to both large EGUs and large non-EGU boilers and turbines. After issuance of the NOX SIP Call, the northeastern states elected to replace the OTC trading program with the NBTP starting in 2003, approximately one year before the NOX SIP Call's amended deadline for implementation of Phase I emission controls. In 2004, the NBTP expanded to include sources in most of the remaining NOX SIP Call states. Missouri sources joined the NBTP in 2007, and EPA continued to administer the NBTP through the 2008 ozone season.

    Since the 2008 ozone season, EPA has replaced the NBTP with a series of three similar interstate emission allowance trading programs designed to address eastern states' good neighbor obligations with respect to ozone NAAQS more recent than the 1979 1-hour ozone NAAQS that underlies the NOX SIP Call as amended. The NBTP's three successor seasonal NOX trading programs were established under the Clean Air Interstate Rule (CAIR),17 which was remanded by the D.C. Circuit; 18 the original CSAPR,19 which replaced CAIR; and most recently the CSAPR Update.20 The seasonal NOX trading programs established under CAIR and the original CSAPR were both designed to address the 1997 8-hour ozone NAAQS,21 while the trading program established under the CSAPR Update was designed to address the 2008 8-hour ozone NAAQS. The CAIR seasonal NOX trading program operated from 2009 through 2014, the original CSAPR seasonal NOX trading program started operating in 2015,22 and the CSAPR Update trading program started operating in 2017.

    17 70 FR 25162 (May 12, 2005) (SIP requirements); 71 FR 25328 (Apr. 28, 2006) (parallel federal implementation plan requirements).

    18North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), modified on rehearing, 550 F.3d 1176 (D.C. Cir. 2008).

    19 76 FR 48208 (Aug. 8, 2011); see also 76 FR 80760 (Dec. 27, 2011) (adding seasonal NOX emissions reduction requirements for sources in five states), 79 FR 71663 (Dec. 3, 2014) (tolling implementation dates by three years).

    20 81 FR 74504 (Oct. 26, 2016). Consolidated challenges to the CSAPR Update are pending in Wisconsin v. EPA, No. 16-1406 (D.C. Cir. appeal docketed Nov. 23, 2016).

    21 CAIR also established trading programs for sulfur dioxide (SO2) and annual NOX emissions designed to address the 1997 annual fine particulate matter (PM2.5) NAAQS. These additional trading programs were replaced under the original CSAPR by trading programs for SO2 and annual NOX emissions established to address both the 1997 annual PM2.5 NAAQS and the 2006 24-hour PM2.5 NAAQS.

    22 The original CSAPR seasonal NOX trading program remains in effect for sources in Georgia but after 2016 has not applied to sources in any state subject to the NOX SIP Call as amended.

    For purposes of this proposed action, the most important difference between the NBTP and its successor seasonal NOX trading programs concerns the types of sources participating in the various programs. As discussed above, the NBTP was designed to cover both large EGUs and large non-EGU boilers and turbines. In contrast, by default the three successor trading programs have covered only units considered EGUs under those programs, which generally means all units that would be classified as NOX SIP Call large EGUs as well as a small subset of the units that would be classified as NOX SIP Call large non-EGU boilers and turbines.23 Under the CAIR seasonal NOX trading program, most NOX SIP Call states exercised an option to expand program applicability to include all their NOX SIP Call large non-EGU boilers and turbines,24 but the option was eliminated under the original CSAPR seasonal NOX trading program and no state has exercised the restored option made available under the CSAPR Update trading program.25 Consequently, at present most NOX SIP Call large non-EGU boilers and turbines do not participate in a successor trading program to the NBTP.

    23 For example, a unit qualifying as exempt from the Acid Rain Program under the provision for cogeneration units at 40 CFR 72.6(b)(4) could be covered under the CAIR, original CSAPR, and CSAPR Update trading programs as an EGU. Under the NOX SIP Call as amended, such a unit would be classified as a large non-EGU boiler or turbine.

    24See 40 CFR 51.123(aa)(2)(i) and (ee)(1).

    25See 40 CFR 52.38(b)(8)(ii) and (b)(9)(ii).

    The second relevant difference between the NBTP and its successor trading programs concerns the various programs' geographic areas of coverage. In each successive rulemaking to address states' good neighbor obligations, even in instances where the rulemakings concerned the same ozone NAAQS, other factors have changed, including the available data on air quality, emissions inventories, and potential emission control opportunities. Given different inputs to the analytic processes for the successive rulemakings, EPA's determinations regarding which upwind states must reduce emissions to address good neighbor obligations have differed as well. At present, EGUs in fourteen NOX SIP Call states participate in the CSAPR Update trading program.26 EGUs in the remaining seven NOX SIP Call jurisdictions do not currently participate in a successor trading program to the NBTP, although most such units are subject to other EPA programs with comparable part 75 monitoring requirements.27

    26 The CSAPR Update applies to EGUs in the NOX SIP Call states of Alabama, Illinois, Indiana, Kentucky, Maryland, Michigan, Missouri, New Jersey, New York, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia as well as eight additional states that were not subject to the NOX SIP Call as amended.

    27 EGUs in the NOX SIP Call jurisdictions of Connecticut, Delaware, Massachusetts, North Carolina, Rhode Island, South Carolina, and the District of Columbia are not subject to the CSAPR Update. Most NOX SIP Call EGUs in these jurisdictions are subject to the Acid Rain Program, and all NOX SIP Call EGUs in North Carolina and South Carolina participate in trading programs for SO2 and annual NOX emissions established under the original CSAPR.

    In the CAIR rulemaking, EPA amended the NOX SIP Call regulations both to provide that the NBTP would be discontinued coincident with implementation of the CAIR seasonal NOX trading program and to require states to adopt new control measures into their SIPs replacing the portions of their NOX SIP Call emissions reduction requirements that had been met through the NBTP.28 As discussed above, notwithstanding the discontinuation of the NBTP, the NOX SIP Call's requirements for enforceable mass emissions limits and Part 75 monitoring continue to apply to large EGUs and large non-EGU boilers and turbines in all affected states. Since the CAIR rulemaking, EPA has worked with NOX SIP Call states individually to assist them in revising their SIPs to meet these ongoing NOX SIP Call requirements, whether through use of the NBTP's successor trading programs (to the extent those options have been available) or through other replacement control measures.

    28 40 CFR 51.121(r); see also 40 CFR 51.123(bb) and 52.38(b)(10)(ii) (authorizing use of CAIR and CSAPR Update seasonal NOX trading programs as NBTP replacement control measures for large non-EGU boilers and turbines).

    C. The NOX SIP Call's Contributions to Attainment of the NAAQS

    As described in section II.B., implementation of the NBTP began in 2003 for the sources in some affected states and in 2004 for the sources in most remaining affected states, and the program operated through the 2008 ozone season. Between 2000 and 2004, seasonal NOX emissions from all sources participating in the NBTP 29 fell from 1,256,237 tons to 609,029 tons, a decrease of over 50%, and by 2008, seasonal NOX emissions from these sources declined further to 481,420 tons.30 By comparison, the portions of the statewide seasonal NOX emissions budgets assigned to sources participating in the NBTP in all NOX SIP Call states—as indicated by the numbers of emission allowances available for allocation for the 2008 ozone season pursuant to states' SIPs—sum to 528,453 tons.31 EPA believes that the NOX SIP Call as implemented through the NBTP was an important driver of these emissions reductions.

    29 Small portions of these totals represent emissions and budget amounts for sources that participated in the NBTP pursuant to requirements or opt-in provisions in certain states' SIPs but that are not large EGUs or large non-EGU boilers or turbines subject to § 51.121(i)(4). 2017 emissions for these types of sources are shown separately in Table 1 in section III.A. of this notice.

    30See The NOX Budget Trading Program: 2008 Emission, Compliance, and Market Analyses (July 2009) at 14, available in the docket for this proposed action.

    31Id.

    Under CAA section 107(d)(3)(E), 42 U.S.C. 7407(d)(3)(E), redesignation of an area to attainment of a NAAQS requires a determination that the improvement in air quality is due to “permanent and enforceable” emissions reductions. At least 140 EPA final actions redesignating areas in 20 states to attainment with an ozone NAAQS or a PM2.5 NAAQS (because NOX is a precursor to PM2.5 as well as ozone) have relied in part on the Rule's emissions reductions.32 This includes actions redesignating areas to attainment with the 1997 ozone NAAQS, the 2008 ozone NAAQS, the 1997 PM2.5 NAAQS, and the 2006 PM2.5 NAAQS. In response to legal challenges, multiple courts of appeals have held that the Rule's emissions reductions qualify as permanent and enforceable and therefore may be used to support redesignation actions.33

    32See Redesignation Actions Relying on NOX SIP Call Emissions Reductions (August 2018), available in the docket for this proposed action.

    33Sierra Club v. EPA, 774 F.3d 383, 397-99 (7th Cir. 2014) (holding that NOX SIP Call emissions reductions may be relied on as permanent and enforceable for purposes of redesignations); Sierra Club v. EPA, 793 F.3d 656, 665-68 (6th Cir. 2015) (same, but vacating redesignations on other grounds).

    EPA has reinforced the permanence and enforceability of the Rule's emissions reductions by expressly requiring in the implementation rules for both the 1997 ozone NAAQS and the 2008 ozone NAAQS that, first, the NOX SIP Call in general and states' emissions budgets in particular will continue to apply after revocation of the previous ozone NAAQS and, second, any modifications to control requirements approved into a SIP pursuant to the Rule are subject to anti-backsliding requirements under CAA section 110(l), 42 U.S.C. 7410(l).34

    34See 40 CFR 51.905(f) and 51.1105(e).

    In this action, to avoid any possible argument that the proposed changes would result in a lessening of permanence and enforceability that could threaten continued reliance on the NOX SIP Call's emissions reductions to support other actions, EPA is expressly not proposing to substantively amend—and is not reopening for substantive comment—the Rule's key provisions supporting these attributes. These key provisions include the statewide emissions budgets and general enforceability and monitoring requirements as well as the requirements for enforceable limits on seasonal NOX mass emissions from large EGUs and large non-EGU boilers and turbines. As discussed in section III.A., EPA believes that under current circumstances, the proposed amendment to allow states to establish alternate monitoring requirements for large EGUs and large non-EGU boilers and turbines does not undermine assurance that the Rule's required emissions reductions will continue to be achieved and therefore does not pose a risk to the permanence and enforceability of the emissions reductions.

    III. Proposed Amendments to the NOX SIP Call Regulations

    This section describes the amendments being proposed as well as the rationales. In section III.A., EPA discusses a proposed amendment to allow states to revise their SIPs to establish monitoring requirements for large non-EGU boilers and turbines (and some large EGUs not subject to the Acid Rain Program or any CSAPR trading programs) other than Part 75 monitoring requirements. This is the only amendment proposed in this action that would have a substantive impact on existing regulatory requirements.

    Section III.B. discusses a proposed amendment that would rescind the findings of good neighbor obligations with regard to the 1997 8-hour ozone NAAQS that originally constituted a second basis for the NOX SIP Call. These findings have been subject to an indefinite stay by EPA since 2000, and all the NOX SIP Call's requirements as implemented rest independently on findings of good neighbor obligations with regard to the 1979 1-hour ozone NAAQS that would remain in place. The proposed rescission thus would have no substantive effect on the regulatory obligations faced either by states or by sources subject to the states' SIPs.

    Sections III.C., III.D., III.E., and III.F. discuss additional proposed amendments that would remove obsolete provisions or clarify the remaining NOX SIP Call regulations without substantively altering any existing regulatory requirements. Section III.C. addresses provisions relating to emissions budgets and emissions inventories, section III.D. addresses provisions relating to interstate emission allowance trading program options, and section III.E. addresses procedural provisions. Section III.F. identifies the locations of minor editorial revisions not covered in the other sections.

    A. Emissions Monitoring Requirements

    Under § 51.121(i)(4) of the existing NOX SIP Call regulations, where a state's SIP revision contains control measures for large EGUs or large non-EGU boilers and turbines, the SIP must also require part 75 monitoring for these types of sources. As discussed in section II.A., all NOX SIP Call states triggered this requirement by including control measures in their SIPs for these types of sources, and the requirement remains in effect despite the discontinuation of the NBTP after the 2008 ozone season. In this action, for the reasons discussed below, EPA proposes to amend the NOX SIP Call provision at § 51.121(i)(4) to make the inclusion of part 75 monitoring requirements for these sources in SIPs optional rather than mandatory for NOX SIP Call purposes. The SIPs would still need to include some form of emissions monitoring requirements for these types of sources, consistent with the Rule's general enforceability and monitoring requirements at § 51.121(f)(1) and (i)(1), respectively, but states would no longer be required to satisfy these general Rule requirements specifically through the adoption of part 75 monitoring requirements.35 Finalization of this proposed amendment would not in itself eliminate part 75 monitoring requirements for any sources but would enable EPA to approve SIP submittals replacing these requirements with other forms of monitoring requirements.

    35 The proposed revision would not authorize states to create exceptions to any part 75 monitoring requirements that might apply to a source under a different legal authority.

    EPA originally established the condition that SIPs must include part 75 monitoring requirements based on determinations that, first, a requirement for mass emissions limits for large EGUs and large non-EGU boilers and turbines was feasible and provided the greatest assurance that the NOX SIP Call's required emissions reductions would be achieved, and second, part 75 monitoring was a feasible and cost-effective way to ensure compliance with the mass emissions limits for these sources.36 (Part 75 monitoring requirements were also established independently as an essential element of the now-discontinued NBTP, which like EPA's other emission allowance trading programs could function only with timely reporting of consistent, quality-assured mass emissions data by all participating units.) As noted in section II.C., to ensure that the NOX SIP Call's emissions reductions can continue to be relied on as permanent and enforceable for purposes of other actions, EPA is not proposing to amend the Rule's existing requirements regarding enforceable mass emissions limits for these sources. However, EPA believes that under current circumstances, allowing states to establish alternate monitoring requirements for large EGUs and large non-EGU boilers and turbines would not pose a risk to the permanence and enforceability of the Rule's emissions reductions.

    36See 63 FR 57356, 57451-52.

    The first relevant current circumstance is the substantial margins by which all NOX SIP Call states are now complying with the portions of their statewide emissions budgets assigned to large EGUs and large non-EGU boilers and turbines. As shown in Table 1, in 2017, seasonal NOX emissions from sources that would have been subject to the NBTP across the region covered by the NOX SIP Call were approximately 200,000 tons, which is less than 40% of the sum of the relevant portions of the statewide final NOX budgets. Table 1 also shows that no state's emissions exceeded 71% of the relevant portion of its budget.37 These comparisons demonstrate that the Rule's required emissions reductions would continue to be achieved even with substantial increases in emissions from current levels. EPA views the possibility of such large increases as remote because of requirements under other state and federal environmental programs 38 and changes to the fleet of affected sources since 2008.39

    37 2017 emissions from Missouri sources were just over 70% of the relevant portion of the state's budget.

    38 For example, for the 11 states covered in their entirety under both programs—Illinois, Indiana, Kentucky, Maryland, New Jersey, New York, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia—EGU emissions budgets under the current CSAPR Update seasonal NOX trading program range from 17% to 66% of the portions of the respective states' NOX SIP Call emissions budgets based on EGU emissions. Compare 40 CFR 97.810(a) (CSAPR Update budgets) with 65 FR 11222, 11225 (Mar. 2, 2000) (EGU-based portions of NOX SIP Call budgets).

    39 For example, sources responsible for over 40% of 2008 emissions reported under the NBTP have either ceased operation or switched from coal combustion to gas or oil combustion since 2008. See Post-2008 Changes to Units Reporting Under the NOX Budget Trading Program (August 2018), available in the docket for this proposed action.

    Table 1—2017 Emissions and Relevant Emissions Budget Amounts by State State NOX emissions during the 2017 ozone season (tons) from: NBTP sources also subject to Part 75 under other programs Other NBTP
  • large EGUs
  • and large non-
  • EGU boilers
  • and turbines
  • Other NBTP
  • sources
  • subject to
  • Part 75
  • under
  • NSC SIPs
  • Total for all
  • NBTP
  • sources
  • Portion of
  • statewide
  • emissions
  • budget
  • assigned to
  • NBTP sources
  • (tons)
  • Alabama (part) 7,166 1,911 0 9,077 25,497 Connecticut 380 10 39 430 4,477 Delaware 324 511 0 835 5,227 District of Columbia 0 20 0 20 233 Illinois 13,038 1,493 0 14,531 35,557 Indiana 20,396 1,201 823 22,419 55,729 Kentucky 19,978 75 0 20,053 36,109 Maryland 2,422 516 0 2,939 15,466 Massachusetts 734 113 32 879 12,861 Michigan (part) 14,580 205 0 14,785 31,247 Missouri (part) 9,486 0 0 9,486 13,459 New Jersey 1,646 310 0 1,956 13,022 New York 4,062 941 611 5,614 41,385 North Carolina 16,352 1,689 0 18,041 34,703 Ohio 20,012 993 0 21,005 49,842 Pennsylvania 13,616 837 0 14,453 50,843 Rhode Island 193 0 0 193 936 South Carolina 5,030 1,043 0 6,074 19,678 Tennessee 7,785 2,350 0 10,135 31,480 Virginia 7,462 589 0 8,051 21,195 West Virginia 18,187 276 0 18,463 29,507 Total 182,849 15,084 1,505 199,438 528,453 Data sources: Emissions data are from EPA's Air Markets Program Database, https://ampd.epa.gov/ampd. In a few cases where 2017 data are not available, the most recent available data are used instead. Budget data are from The NOX Budget Trading Program: 2008 Emission, Compliance, and Market Analyses (July 2009) at 14, available in the docket for this proposed action.

    The second relevant current circumstance is that even with the amendments proposed in this action, Part 75 monitoring requirements would remain in effect for most NOX SIP Call large EGUs pursuant to other regulatory requirements, including the Acid Rain Program and the CSAPR trading programs, and these large EGUs are responsible for most of the collective emissions of NOX SIP Call large EGUs and large non-EGU boilers and turbines. Table 1 shows the portions of the reported seasonal NOX emissions for each state reported by units that would continue to be subject to Part 75 monitoring requirements even if the amendments proposed in this action are finalized and all states choose to revise their SIPs.40 As indicated in the table, the sources that would continue to report under Part 75 account for over 90% of the overall emissions. If the proposed amendments are finalized and a state chooses to revise its SIP to no longer require Part 75 monitoring for some sources, then under § 51.121(f)(1) and (i)(1)—which EPA is not proposing to amend—the SIP would still have to include provisions requiring all large EGUs and large non-EGU boilers and turbines subject to control measures for purposes of the NOX SIP Call to submit other forms of information on their seasonal NOX emissions sufficient to ensure compliance with the control measures. EPA believes that in the context of the substantial compliance margins discussed above, and given the continued availability of Part 75 monitoring data from sources responsible for most of the relevant emissions, emissions data from the remaining sources submitted pursuant to other forms of monitoring requirements can provide sufficient assurance that the Rule's overall required emissions reductions will continue to be achieved.

    40 Although the Acid Rain Program does not require units to report NOX mass emissions specifically, NOX mass emissions can be calculated from other Part 75 data that are required to be reported.

    B. Good Neighbor Obligations Under the 1997 8-Hour Ozone NAAQS

    As discussed in section II.A., the NOX SIP Call as originally promulgated rested on findings of good neighbor obligations for affected states with respect to both the 1979 1-hour ozone NAAQS and the 1997 8-hour ozone NAAQS, but following an adverse D.C. Circuit decision, EPA amended the Rule to indefinitely stay the findings under the 1997 8-hour ozone NAAQS. In this action, EPA proposes to rescind as obsolete the stayed findings of good neighbor obligations under the 1997 8-hour ozone NAAQS and to remove the corresponding NOX SIP Call regulatory provision at § 51.121(a)(2) along with related language in other provisions, as further discussed below.

    Since the stay of the NOX SIP Call's findings of good neighbor obligations under the 1997 8-hour ozone NAAQS, EPA has addressed states' good neighbor obligations under this NAAQS in both the original CSAPR and the CSAPR Update,41 superseding the stayed findings and making it appropriate to rescind them, as proposed here. First, in the original CSAPR rulemaking, EPA either found no good neighbor obligation or quantified good neighbor requirements under the 1997 8-hour ozone NAAQS for all states originally covered by the NOX SIP Call (including Georgia, Wisconsin, and the portions of Alabama, Michigan, and Missouri not covered by the NOX SIP Call as implemented following amendments), finding for some states that the quantified emissions reduction requirements represented a full remedy for the states' good neighbor obligations and for other states that the quantified emissions reduction requirements might only partially address the states' good neighbor obligations.42 Then, after the D.C. Circuit remanded the CSAPR Phase 2 seasonal NOX budgets for several states,43 in the CSAPR Update EPA again evaluated states' good neighbor obligations with respect to the 1997 8-hour ozone NAAQS, determining that the states with remanded CSAPR seasonal NOX budgets no longer had good neighbor obligations under this NAAQS and that the remaining states' good neighbor obligations under this NAAQS were fully addressed by their CSAPR emissions reduction requirements.44 Thus, for each of the states subject to the stayed findings of good neighbor obligations with respect to the 1997 8-hour ozone NAAQS under the NOX SIP Call, upon further analysis using more recent data in the CSAPR and CSAPR Update rulemakings, EPA has determined that the state either has no good neighbor obligation under this NAAQS or that the state's obligation has been fully addressed through the state's CSAPR seasonal NOX emissions reduction requirements.

    41 EPA also addressed states' good neighbor obligations under the 1997 8-hour ozone NAAQS in CAIR, but as noted earlier the D.C. Circuit remanded CAIR to EPA for replacement.

    42See 76 FR 48208, 48210.

    43EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 138 (D.C. Cir. 2015).

    44See 81 FR 74504, 74523-26.

    In conjunction with the proposed rescission and removal of the findings discussed above, EPA also proposes to remove the regulatory provision at § 51.121(q) staying the findings and to remove phrases in the provisions at § 51.121(c)(1) and (c)(2) referencing the 1979 1-hour ozone NAAQS solely to distinguish that NAAQS from the 1997 8-hour ozone NAAQS. When the findings of good neighbor obligations under the 1997 8-hour ozone NAAQS are rescinded and removed from the regulations, the regulatory provision staying the findings will become obsolete. Similarly, the phrases distinguishing among multiple NAAQS will become superfluous once the regulations only contain language addressing a single NAAQS.

    C. Emissions Budget and Emissions Inventory Provisions

    To simplify and clarify the regulations, EPA proposes to update the NOX SIP Call provisions describing the Rule's Phase I and Phase II emissions budgets and emissions reduction requirements at § 51.121(e)(2)(i) and (e)(3) as well as related language in other provisions. EPA is also proposing to remove obsolete Rule provisions concerning the budgets and emissions inventories at § 51.121(e)(4), (e)(5), and (g)(2)(ii) along with a related cross-reference. The proposed updates and removals would not alter any existing regulatory requirements.

    As discussed in section II.A., in response to a D.C. Circuit opinion remanding the Rule with respect to certain issues, EPA divided the Rule's overall emissions reduction requirements into two phases. As the first step in this phased approach, in April 2000 EPA sent letters to officials in each NOX SIP Call state identifying the portion of the state's overall emissions reduction requirement that was not implicated by the remanded issues and that should therefore be implemented in Phase I.45 The letters expressed each state's Phase I emissions reduction requirement in the form of a Phase I emissions budget that was computed as the state's projected 2007 emissions inventory minus the required Phase I emissions reduction. Then, to complete the phased approach, in April 2004 EPA finalized a rulemaking action determining for each covered state, after reconsideration of all remanded issues, the final overall emissions reduction requirement, the corresponding final budget, and the incremental difference between the Phase I budget and the final budget.46 In the 2004 action, the table of emissions budgets in § 51.121(e)(2)(i) of the NOX SIP Call regulations was revised to show the amounts of the Rule's final emissions budgets. However, reflecting the 2004 amendments' focus on the Phase II requirements, EPA did not include the Phase I budgets in the regulatory text but instead added a new § 51.121(e)(3) with a table showing the amounts of the required incremental Phase II emissions reductions.

    45See Summary of EPA's Approach to the NOX SIP Call in Light of the March 3rd Court Decision (Apr. 11, 2000), available in the docket for this proposed action.

    46 69 FR 21604, 21628-29.

    While the preamble of the 2004 action was clear about the nature of what was being determined in that action, when incorporating the amounts of the required incremental Phase II emissions reductions into the Rule's regulatory text, EPA mischaracterized the amounts as “Phase II incremental budget” amounts and as “portions of” the Phase II final budgets. To eliminate the mischaracterization, EPA proposes in this action to remove § 51.121(e)(3) and in its place to add a column showing the amounts of the Phase I budgets to the existing table in § 51.121(e)(2)(i) that already shows the amounts of the final budgets. The source for the proposed column of Phase I budget amounts is the same table in the preamble for the 2004 action that was the source for both the final budget amounts and the incremental Phase II emissions reduction amounts.47 Relatedly, EPA proposes to revise the definitions of “Phase I SIP submission” and “Phase II SIP submission” at § 51.121(a)(3)(i) and (a)(3)(ii), distinguishing those terms according to the applicable budgets rather than according to the treatment of the mischaracterized incremental Phase II emissions reduction amounts. EPA also proposes to modify the provisions at § 51.121(b)(1) and (b)(1)(i) to refer to “each SIP revision” and “the applicable budget”, respectively, reflecting the fact that most states ultimately made separate Phase I and Phase II SIP submissions addressing the Phase I and final budgets. Collectively, these proposed revisions would express the Rule's existing final requirements, as well as the Phase I requirements, more simply and clearly.

    47 69 FR 21604, 21629 (Table 6). In the table, the incremental emissions reduction amount for each state is shown as the “Phase II incremental difference” between the state's Phase I and final budgets. Missouri is not included in the table because the state did not have a Phase I emissions reduction requirement or corresponding Phase I budget.

    In addition to the clarifying updates to the Rule provisions described above, EPA is proposing to remove as obsolete three other sets of provisions related to the NOX SIP Call budgets and projected 2007 emissions inventories: § 51.121(e)(4), which addresses the compliance supplement pool; § 51.121(e)(5), which sets out a time-limited process for submitting new data that could be used to revise the emissions inventories and budgets published as part of the original Rule; and § 51.121(g)(2)(ii), which as originally promulgated showed the projected 2007 emissions inventory for each state by sector. A phrase in the provision at § 51.121(g)(2)(i) referencing the emissions inventory table would also be removed.

    The Rule's compliance supplement pool provisions at § 51.121(e)(4) allowed each state to issue a certain quantity of credits beyond the state's budget that sources could use for compliance with emission control requirements. Credits were required to be issued no later than the commencement of control measures under the Rule for the state's sources and could be used for compliance only in the first two years of control measures. These deadlines have long passed, making the compliance supplement pool credits and the provisions governing them obsolete.

    The Rule's provisions at § 51.121(e)(5) allow for the submission of new data to be used to revise the original emissions inventories and budgets. The provisions include a February 1999 deadline for such data to be submitted and an April 1999 deadline for EPA to act on the submitted data. Again, these deadlines have long passed, making the provisions governing the submission and use of such new data obsolete.

    As originally promulgated, the NOX SIP Call provision at § 51.121(g)(2)(ii) presented a table of the projected 2007 emissions inventories for each covered state by sector. The table's purpose was to serve as an input to states' required demonstrations that their SIP revisions would achieve sufficient emissions reductions to meet the Rule's requirements. In 1999 and 2000, EPA updated the state budgets and emissions inventories and amended the table,48 but when the Rule's budgets were amended for the final time in 2004, the table was not amended. The information in the table consequently does not correspond to the NOX SIP Call as implemented, most notably because it still includes information for Wisconsin and it includes information for the entire states of Alabama, Michigan, and Missouri instead of only the portions of the states subject to the Rule as amended in 2004.49 Because the preamble of the 2004 action does not include all data necessary to update the table, and because the table's intended purpose has already been fulfilled through EPA's approval of all required Phase I and Phase II SIP submissions, EPA considers it appropriate to remove § 51.121(g)(2)(ii) as obsolete without replacement. Upon removal of the table, the phrase in § 51.121(g)(2)(i) referencing the table will also become obsolete, and that phrase would therefore be removed as well.

    48 The current table incorrectly presents the budget data from the 2000 action, not the “base” projected 2007 emissions inventory data from that action. See 65 FR 11222, 11225-26 (Tables 1 and 2).

    49 In 2008, EPA removed information for Georgia but did not otherwise update the table. 73 FR 21528, 21538.

    D. Interstate Trading Program Options

    The NOX SIP Call regulations include two separate sets of provisions governing the potential use of interstate emission allowance trading programs as control measures in covered states' SIP revisions, one set at § 51.121(b)(2) concerning the use of trading programs in general and one set at § 51.121(p) concerning the use of the NBTP in particular. In this action, EPA is proposing to remove as obsolete both sets of provisions governing the potential use of trading programs and to remove or update references to those provisions in several other locations in the NOX SIP Call regulations and in the CSAPR regulations. EPA is also proposing to clarify the provision at § 51.121(r)(2) setting forth the transition requirements applicable to states following discontinuation of the NBTP.

    As discussed in section II.B., EPA discontinued administration of the NBTP after the 2008 ozone season and has since replaced the program, for some states and types of sources, with successor seasonal NOX trading programs. The NBTP's discontinuation has made the NOX SIP Call provision at § 51.121(p) governing use of the NBTP as a control measure obsolete, and removal of the obsolete provision would in turn make cross-references to it obsolete. Accordingly, EPA would remove certain cross-references to § 51.121(p) from the provisions at § 51.121(r)(1) and § 51.122(c)(1)(ii) and would replace the remaining cross-references to § 51.121(p) in the NOX SIP Call regulations at § 51.121(r)(1) and (r)(2) and in the CSAPR regulations at 40 CFR 52.38(b)(8)(ii), (b)(8)(iii)(A)(2), (b)(9)(ii), and (b)(9)(iii)(A)(2) with cross-references to § 51.121 more broadly.50

    50 Note that EPA is not proposing to remove the NBTP model rule at subparts A through I of 40 CFR part 96 in this action. The model rule is still incorporated by reference into several states' SIPs, where it continues to serve as a state-law mechanism implementing part 75 monitoring requirements for large non-EGU boilers and turbines even though the NBTP's allowance-related provisions are no longer being administered.

    The NOX SIP Call provisions at § 51.121(b)(2) also authorize the use of interstate emission allowance trading programs other than the NBTP as control measures to address states' emissions reduction requirements under the Rule if the trading programs meet certain criteria. In theory, after the NBTP was discontinued, states could have elected to establish one or more alternate interstate trading programs under § 51.121(b)(2) to replace the NBTP for any sources not covered by the NBTP's successor trading programs,51 but no states chose to do so. Further, recent emissions of large EGUs and large non-EGU boilers and turbines in every NOX SIP Call state have been below the collective caps that the states adopted for these sources in their Phase I and Phase II SIP revisions, indicating that there is currently little or no need for a new interstate trading program to help these sources meet NOX SIP Call requirements. EPA is unaware of any current state interest in pursuing this option. Accordingly, EPA considers the provisions at § 51.121(b)(2) functionally obsolete and appropriate for removal. Removal of § 51.121(b)(2) would make a reference to that provision in § 51.121(b)(1)(i) obsolete, and that reference therefore would also be removed.

    51 The option for states to meet their ongoing NOX SIP Call requirements for large non-EGU boilers and turbines by expanding applicability under the CSAPR Update trading program is independently authorized under the CSAPR regulations at 40 CFR 52.38(b)(10)(ii) rather than under § 51.121(b)(2). Similarly, the former option to rely on the CAIR seasonal NOX trading program for this purpose was independently authorized under the CAIR regulations.

    In the CAIR rulemaking, besides adding a provision at § 51.121(r)(1) discontinuing the NBTP upon implementation of the CAIR seasonal NOX trading program, EPA also added a provision at § 51.121(r)(2) establishing transition requirements for states. The basic requirement of § 51.121(r)(2) is that each NOX SIP Call state must adopt replacement control measures into its SIP to achieve the same portion of the state's required emissions reductions under the Rule as the state originally projected the NBTP would achieve. As originally promulgated, the provision included an exception for instances where a state relied on the CAIR seasonal NOX trading program for this purpose. Because the original CSAPR seasonal NOX trading program did not provide an option to expand applicability to cover former NBTP large non-EGU boilers and turbines, in the original CSAPR rulemaking EPA amended the exception at § 51.121(r)(2) to indicate that the option to rely on the CAIR seasonal NOX trading program was expiring and necessarily did not indicate the existence of a new replacement option. In the CSAPR Update rulemaking, although a new replacement option was created in the CSAPR Update regulations authorizing reliance on the new trading program to meet NOX SIP Call obligations for large non-EGU boilers and turbines, EPA neglected to amend the exception language in § 51.121(r)(2) to reference the existence of the new replacement option.

    As noted above, in this action EPA would update obsolete cross-references to § 51.121(p) in both § 51.121(r)(1) and (r)(2). EPA also proposes to update the post-NBTP transition provision at § 51.121(r)(2) in two further respects. First, as a replacement for the obsolete cross-reference identifying the terminated option to rely on the CAIR seasonal NOX trading program to fill gaps created by NBTP discontinuation, a new cross-reference identifying the current option to rely on the CSAPR Update trading program for this purpose would be added. This revision would not create a new option—because the option to rely on the CSAPR Update is already authorized under the CSAPR regulations—but it would clarify the NOX SIP Call regulations. Second, § 51.121(r)(2) would be revised to expressly apply where a state's SIP “includes or included” trading program provisions to achieve the required emissions reductions. The purpose of this proposed revision is to eliminate any possible mistaken inference that a state's obligation to maintain NOX SIP Call emission controls might be contingent on whether its SIP currently includes trading program provisions and to reinforce that the Rule's emissions reductions are permanent and enforceable, as they must be to support other EPA actions. Again, this revision would not alter any existing regulatory requirements but would clarify the regulations.

    E. Procedural Provisions

    EPA proposes to remove as obsolete a provision of the NOX SIP Call regulations setting forth certain procedural requirements for SIP submissions under the Rule. Currently, the Rule's requirements at § 51.121(d) include (1) submission deadlines for Phase I and Phase II SIP submissions, (2) a requirement that submissions satisfy the general criteria for completeness in appendix V to 40 CFR part 51, and (3) a requirement that submissions be made in the form of five paper copies. The submission deadlines are obsolete because all required Phase I and Phase II SIP submissions have been made, and the requirement for five paper copies is obsolete because EPA now allows electronic SIP submissions. Any future SIP submissions under the Rule—such as submissions taking advantage of the more flexible monitoring requirements proposed in this action—would be subject to 40 CFR 51.103(a), a provision of EPA's general SIP regulations that requires SIP submissions to conform to the completeness criteria in appendix V and also identifies the current electronic and paper SIP submission options. Removal of § 51.121(d) therefore would clarify the regulations by removing the obsolete requirement for five paper copies and would not create any gap in procedural requirements for any future SIP submissions under the Rule.

    F. Editorial Revisions

    EPA also proposes to make non-substantive, solely editorial revisions to several provisions of the NOX SIP Call regulations beyond those already discussed. One revision would replace the full-text definition of “fossil fuel-fired” at § 51.121(i)(5) with a cross-reference to an identical definition at § 51.121(f)(3). In addition, minor revisions would be made to § 51.121(b)(1)(ii), (e)(2)(ii)(B), (e)(2)(ii)(E), (f)(2)(i)(B), (f)(2)(ii), (h), (i)(2), (i)(3), (l)(1), (l)(2), (m), (n), and (o) and the section heading. The proposed revisions would not alter any regulatory requirements and would generally improve clarity by reducing redundancy, standardizing terminology, and correcting various editorial errors.

    IV. Impacts of the Proposed Amendments

    The proposed amendments would not change any of the NOX SIP Call's existing regulatory requirements related to statewide emissions budgets or enforceable mass emissions limits for large EGUs and large non-EGU boilers and turbines. Accordingly, EPA expects that the amendments, if finalized, would have no impact on emissions or air quality.

    The only amendment proposed in this action that would substantively alter existing regulatory requirements is the proposal to allow states to revise their SIPs to establish monitoring requirements for large non-EGU boilers and turbines (and some large EGUs not subject to the Acid Rain Program or any CSAPR trading programs) other than part 75 monitoring requirements. Because states, not EPA, would decide whether to revise the monitoring requirements in their SIPs and because EPA lacks complete information on the remaining monitoring requirements that the sources would face, it is currently not possible to predict the amount of monitoring cost reductions that would occur if this proposed rule is finalized. However, EPA expects that at least some affected states would revise their SIPs and at least some sources would experience reductions in monitoring costs.

    The potential cost reduction opportunity for any given unit in a state that chooses to revise its SIP would depend on which of the various monitoring methodologies allowed under part 75 the unit currently uses and what other state and federal monitoring requirements the unit would still face, including monitoring requirements adopted in the state's SIP to replace the part 75 monitoring requirements. EPA's records indicate that currently there are approximately 310 large EGUs and large non-EGU boilers and turbines that are subject to part 75 monitoring requirements pursuant to the existing NOX SIP Call requirement at § 51.121(i)(4) and that are not also subject to comparable part 75 monitoring requirements under the Acid Rain Program or a CSAPR trading program. According to the part 75 monitoring plans submitted for these units,52 approximately 90 units use monitoring methodologies involving continuous emission monitoring systems (CEMS) to measure both stack gas flow rate and the concentrations of certain gases in the effluent gas stream, approximately 140 units use methodologies involving gas concentration CEMS but not stack gas flow rate CEMS, and approximately 80 units use non-CEMS methodologies.53 As a result of the amendments proposed in this action, some of the 230 units currently using CEMS may ultimately be able to discontinue use of stack gas flow rate CEMS, gas concentration CEMS, or both, to the extent that the units do not face similar monitoring requirements under other state or federal regulations, possibly including, but not limited to, the replacement monitoring requirements established by states for NOX SIP Call purposes. Discontinuing usage of one or both types of CEMS has the potential to result in reductions in overall monitoring costs. Further, even if a unit remains subject to requirements to use some type of CEMS under other regulations, the specific CEMS-related requirements under the other regulations may entail lower costs than the specific CEMS-related requirements under part 75.54

    52 The monitoring plans are available at https://www.epa.gov/airmarkets/monitoring-plans-part-75-sources.

    53 Under part 75, options to use alternatives to stack gas flow rate CEMS are available to almost all units that combust only gaseous and liquid fuels, and options to use alternatives to gas concentration CEMS for measuring NOX emissions are available to any such units whose utilization rates or mass emissions fall below specified maximum limits. See 40 CFR 75.19(a)(1), section 1.1 of appendix D to 40 CFR part 75, and section 1.1 of appendix E to 40 CFR part 75; see also 40 CFR 72.2 (definitions of “gas-fired”, “oil-fired”, and “peaking unit”).

    54 For example, other regulations may require less extensive data reporting or less comprehensive quality-assurance testing than would be required under part 75.

    With respect to the 80 units that are subject to part 75 monitoring requirements pursuant to the existing NOX SIP Call requirement at § 51.121(i)(4), that are not also subject to comparable part 75 monitoring requirements under the Acid Rain Program or a CSAPR trading program, and that already use non-CEMS methodologies under Part 75, EPA expects that these units generally would experience little or no reduction in monitoring costs resulting from the amendments proposed in this action. Similarly, the proposed amendments would not lead to any reduction in monitoring costs for units that would remain subject to Part 75 monitoring requirements under the Acid Rain Program or a CSAPR trading program. The proposed amendments also would not lead to any reduction in monitoring costs for units that formerly participated in the NBTP under states' SIPs but that are not large EGUs or large non-EGU boilers or turbines subject to the existing NOX SIP Call requirement at § 51.121(i)(4),55 because the existing NOX SIP Call regulations do not prevent states from revising their SIPs to end Part 75 monitoring requirements for these sources even without the proposed amendments.

    55 According to EPA's records, currently there are approximately 130 such units, of which approximately 110 units already use non-CEMS methodologies under Part 75.

    V. Request for Comment

    EPA requests comment on the proposed amendment discussed in section III.A. to revise the provision at 40 CFR 51.121(i)(4) to allow states to establish monitoring requirements for large EGUs and large non-EGU boilers and turbines in their SIPs other than Part 75 monitoring requirements.

    EPA believes the proposed amendments discussed in sections III.B. through III.F., if finalized, would not substantively alter existing regulatory requirements, and EPA is not reopening the provisions discussed in these sections (or any related provisions) for substantive comment. With respect to these proposed amendments, EPA requests and will accept comment solely on whether the provisions proposed for removal as obsolete in fact are obsolete and on whether the proposed clarifications in fact achieve clarification.

    EPA is expressly not reopening for comment any provisions of the existing NOX SIP Call regulations except the provisions that are proposed to be amended as discussed in section III of this proposal.56

    56 Regulatory findings and requirements that EPA is not proposing to substantively amend and that are not being reopened for substantive comment include (but are not limited to) the findings of good neighbor obligations with respect to the 1979 1-hour ozone NAAQS, the requirements for SIPs to contain control measures addressing these obligations, the final NOX budgets, the requirement for enforceable limits on seasonal NOX mass emissions for large EGUs and large non-EGUs where states have included control measures for these types of sources in their SIPs, the requirement for states to adopt replacement control measures into their SIPs to achieve the emissions reductions formerly projected to be achieved by the NBTP, and the general requirements for enforceability and for monitoring of the status of compliance with the control measures adopted.

    VI. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review, and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to OMB for review.

    B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

    This action is expected to be an Executive Order 13771 deregulatory action. This proposed rule is expected to provide meaningful burden reduction by allowing states to establish lower-cost monitoring requirements in their SIPs for some sources as alternatives to Part 75 monitoring requirements. However, because states, not EPA, would decide whether to revise the monitoring requirements in their SIPs and because EPA lacks complete information on the remaining monitoring requirements that the sources would face, EPA cannot currently predict the amount of monitoring cost reductions that would occur if this proposed rule is finalized. A qualitative discussion of the possible monitoring cost reductions can be found in EPA's analysis of the potential impacts associated with this action in section IV.

    C. Paperwork Reduction Act

    This action does not impose any new information collection burden under the Paperwork Reduction Act. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0445. However, to reflect the proposed amendment allowing states to establish potentially lower-cost monitoring requirements for some sources as alternatives to the current Part 75 monitoring requirements, EPA is submitting an information collection request (ICR) renewal to OMB. The ICR document prepared by EPA, which has been assigned EPA ICR number 1857.08, can be found in the docket for this proposed action. Like the current ICR, the ICR renewal reflects the information collection burden and costs associated with Part 75 monitoring requirements for sources that are subject to Part 75 monitoring requirements under the SIP revisions addressing states' NOX SIP Call obligations and that are not subject to Part 75 monitoring requirements under another program (i.e., the Acid Rain Program or a CSAPR trading program). The ICR renewal is generally unchanged from the current ICR except that the renewal reflects projected decreases in the numbers of sources that would perform Part 75 monitoring for NOX SIP Call purposes based on an assumption (made only for purposes of estimating information collection burden and costs for the ICR renewal) that, over the course of the 3-year renewal period, some states will revise their SIPs to replace Part 75 monitoring requirements for some sources with lower-cost monitoring requirements. As under the current ICR, all information collected from sources under the ICR renewal will be treated as public information.

    Respondents/affected entities: Fossil fuel-fired boilers and stationary combustion turbines that have heat input capacities greater than 250 mmBtu/hr or serve electricity generators with nameplate capacities greater than 25 MW and that are not subject to Part 75 monitoring requirements under another program.

    Respondents' obligation to respond: Mandatory if elected by the state (40 CFR 51.121(i)(4) as proposed to be amended).

    Estimated number of respondents: 340 (average over 2019-2021 renewal period).

    Frequency of response: Quarterly, occasionally.

    Total estimated burden: 131,945 hours (per year). Burden is defined at 5 CFR 1320.3(b).

    Total estimated cost: $19,143,004 (per year), includes $8,256,087 annualized capital or operation & maintenance costs.

    An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

    Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden to EPA using the docket identified at the beginning of this rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs via email to [email protected], Attention: Desk Officer for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after receipt, OMB must receive comments no later than October 29, 2018. EPA will respond to any ICR-related comments in the final rule.

    D. Regulatory Flexibility Act

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden, or otherwise has a positive economic effect on the small entities subject to the rule. This action does not directly regulate any entity, but would simply allow states to establish potentially lower-cost monitoring requirements for some sources and generally streamline existing regulations. EPA has therefore concluded that this action will either relieve or have no net regulatory burden for all affected small entities.

    E. Unfunded Mandates Reform Act

    This action does not contain any unfunded mandate as described in the Unfunded Mandates Reform Act, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector. This action would simply allow states to establish potentially lower-cost monitoring requirements for some sources and generally streamline existing regulations.

    F. Executive Order 13132: Federalism

    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 would simply allow states to establish potentially lower-cost monitoring requirements for some sources and generally streamline existing regulations.

    G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, 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. This action would simply allow states to establish potentially lower-cost monitoring requirements for some sources and generally streamline existing regulations. Thus, Executive Order 13175 does not apply to this action.

    H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

    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 would simply allow states to establish potentially lower-cost monitoring requirements for some sources and generally streamline existing regulations.

    I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

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

    J. National Technology Transfer Advancement Act

    This rulemaking does not involve technical standards.

    K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    EPA believes that this action is not subject to Executive Order 12898 because it does not establish an environmental health or safety standard. This action would simply allow states to establish potentially lower-cost monitoring requirements for some sources and generally streamline existing regulations. Consistent with Executive Order 12898 and EPA's environmental justice policies, EPA considered effects on low-income populations, minority populations, and indigenous peoples while developing the original NOX SIP Call. The process and results of that consideration are described in the Regulatory Impact Analysis for the NOX SIP Call.

    List of Subjects 40 CFR Part 51

    Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide.

    40 CFR Part 52

    Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide.

    Dated: September 13, 2018. Andrew R. Wheeler, Acting Administrator.

    For the reasons stated in the preamble, parts 51 and 52 of chapter I of title 40 of the Code of Federal Regulations are proposed to be amended as follows:

    PART 51—REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS 1. The authority citation for part 51 continues to read as follows: Authority:

    23 U.S.C. 101; 42 U.S.C. 7401-7671q.

    Subpart G—Control Strategy
    § 51.121 [Amended]
    2. Section 51.121 is amended by: a. Revising the section heading; b. Removing and reserving paragraph (a)(2); c. Revising paragraph (a)(3); d. In paragraph (b)(1) introductory text, removing the text “section, the” and adding in its place the text “section, each”; e. In paragraph (b)(1)(i), adding the word “applicable” before the word “budget”, and removing the text “(except as provided in paragraph (b)(2) of this section),” and adding in its place a semicolon “;”; f. In paragraph (b)(1)(ii), removing the period and adding in its place the text “; and”; g. Removing and reserving paragraph (b)(2); h. In paragraph (c)(1), removing the text “With respect to the 1-hour ozone NAAQS:”; i. In paragraph (c)(2), removing the text “With respect to the 1-hour ozone NAAQS, the portions of Missouri, Michigan, and Alabama” and adding in its place the text “The portions of Alabama, Michigan, and Missouri”; j. Removing and reserving paragraph (d); k. Revising paragraph (e)(2)(i); l. In paragraph (e)(2)(ii)(B), removing the text “De Kalb,” and adding in its place the text “DeKalb,”; m. In paragraph (e)(2)(ii)(E), removing the text “St. Genevieve,”, and after the text “St. Louis City,” adding the text “Ste. Genevieve,”; n. Removing paragraphs (e)(3), (e)(4), and (e)(5); o. In paragraph (f)(2)(i)(B), removing the text “mass NOX” and adding in its place the text “NOX mass”; p. In paragraph (f)(2)(ii), removing the text “(b)(1) (i)” and adding in its place the text “(b)(1)(i)”; q. In paragraph (g)(2)(i), removing the text “as set forth for the State in paragraph (g)(2)(ii) of this section,”; r. Removing and reserving paragraph (g)(2)(ii); s. In paragraphs (h), (i)(2), and (i)(3), removing the words “of this part”; t. Revising paragraphs (i)(4) and (i)(5); u. In paragraphs (l)(1), (l)(2), and (m), removing the words “of this part”; v. In paragraph (n), removing the text “§ 52.31(c) of this part” and adding in its place the text “40 CFR 52.31(c)”, and removing the text “§ 52.31 of this part.” and adding in its place the text “40 CFR 52.31.”; w. In paragraph (o), removing the words “of this part”; x. Removing and reserving paragraphs (p) and (q); and y. Revising paragraph (r).

    The revisions read as follows:

    § 51.121 Findings and requirements for submission of State implementation plan revisions relating to emissions of nitrogen oxides.

    (a) * * *

    (3)(i) For purposes of this section, the term “Phase I SIP submission” means a SIP revision submitted by a State on or before October 30, 2000 in compliance with paragraph (b)(1)(ii) of this section to limit projected NOX emissions from sources in the relevant portion or all of the State, as applicable, to no more than the State's Phase I NOX budget under paragraph (e) of this section.

    (ii) For purposes of this section, the term “Phase II SIP submission” means a SIP revision submitted by a State in compliance with paragraph (b)(1)(ii) of this section to limit projected NOX emissions from sources in the relevant portion or all of the State, as applicable, to no more than the State's final NOX budget under paragraph (e) of this section.

    (e) * * *

    (2)(i) The State-by-State amounts of the Phase I and final NOX budgets, expressed in tons, are listed in Table 1 to Paragraph (e)(2)(i)—State NOX Budgets

    Table 1 to Paragraph (e)(2)(i)—State NOX Budgets State Phase I
  • budget
  • Final
  • budget
  • Alabama 124,795 119,827 Connecticut 42,891 42,850 Delaware 23,522 22,862 District of Columbia 6,658 6,657 Illinois 278,146 271,091 Indiana 234,625 230,381 Kentucky 165,075 162,519 Maryland 82,727 81,947 Massachusetts 85,871 84,848 Michigan 191,941 190,908 Missouri 61,406 New Jersey 95,882 96,876 New York 241,981 240,322 North Carolina 171,332 165,306 Ohio 252,282 249,541 Pennsylvania 268,158 257,928 Rhode Island 9,570 9,378 South Carolina 127,756 123,496 Tennessee 201,163 198,286 Virginia 186,689 180,521 West Virginia 85,045 83,921

    (i) * * *

    (4) If the revision contains measures to control fossil fuel-fired NOX sources serving electric generators with a nameplate capacity greater than 25 MWe or boilers, combustion turbines or combined cycle units with a maximum design heat input greater than 250 mmBtu/hr, then the revision may require some or all such sources to comply with the monitoring, recordkeeping, and reporting provisions of 40 CFR part 75, subpart H, provided that nothing in this section creates any exception to any requirements of 40 CFR part 75 that may apply to such a source under any other legal authority. A State requiring such compliance authorizes the Administrator to assist the State in implementing the revision by carrying out the functions of the Administrator under such part.

    (5) For purposes of paragraph (i)(4) of this section, the term “fossil fuel-fired” has the meaning set forth in paragraph (f)(3) of this section.

    (r)(1) Notwithstanding any provisions of subparts A through I of 40 CFR part 96 and any State's SIP to the contrary, with regard to any ozone season that occurs after September 30, 2008, the Administrator will not carry out any of the functions set forth for the Administrator in subparts A through I of 40 CFR part 96 or in any emissions trading program provisions in a State's SIP approved under this section.

    (2) Except as provided in 40 CFR 52.38(b)(10)(ii), a State whose SIP is approved as meeting the requirements of this section and that includes or included an emissions trading program approved under this section must revise the SIP to adopt control measures that satisfy the same portion of the State's NOX emissions reduction requirements under this section as the State projected such emissions trading program would satisfy.

    § 51.122 [Amended]
    3. Section 51.122 is amended by: a. In paragraph (c)(1)(ii), removing the text “pursuant to a trading program approved under § 51.121(p) or”; and b. In paragraph (e), italicizing the heading “Approval of ozone season calculation by EPA.”. PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 4. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart A—General Provisions
    § 52.38 [Amended]
    5. In § 52.38, paragraphs (b)(8)(ii), (b)(8)(iii)(A)(2), (b)(9)(ii), and (b)(9)(iii)(A)(2) are amended by removing the text “§ 51.121(p)” and adding in its place the text “§ 51.121”.
    [FR Doc. 2018-20858 Filed 9-26-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2017-0595; A-1-FRL-9984-00—Region 1] Air Plan Approval; New Hampshire; Transport Element for the 2010 Sulfur Dioxide National Ambient Air Quality Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of New Hampshire. This revision addresses the interstate transport requirements of the Clean Air Act (CAA), referred to as the good neighbor provision, with respect to the 2010 sulfur dioxide (SO2) national ambient air quality standard (NAAQS). This action proposes to approve New Hampshire's demonstration that the State is meeting its obligations regarding the transport of SO2 emissions into other states.

    DATES:

    Written comments must be received on or before October 29, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R01-OAR-2017-0595 at https://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. Publicly available docket materials are available at https://www.regulations.gov or at the U.S. Environmental Protection Agency, EPA Region 1 Regional Office, Office of Ecosystem Protection, Air Permits, Toxics, and Indoor Programs Unit, 5 Post Office Square—Suite 100, Boston, MA. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Leiran Biton, Air Permits, Toxics and Indoor Programs Unit, U.S. Environmental Protection Agency, EPA Region 1, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912, tel. (617) 918-1267, email [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. Background and Purpose II. State Submittal III. Summary of the Basis for the Proposed Action IV. Section 110(a)(2)(D)(i)(I)—Interstate Transport A. General Requirements and Historical Approaches for Criteria Pollutants B. Approach for Addressing the Interstate Transport Requirements for the 2010 Primary SO2 NAAQS in New Hampshire C. Prong 1 Analysis—Significant Contribution to Nonattainment 1. Emissions Trends 2. Ambient Air Quality 3. Assessment of Potential Ambient Impacts of SO2 Emissions From Certain Sources Based on Air Dispersion Modeling and Other Information 4. SIP-Approved Regulations Specific to SO2 5. Other SIP-Approved or Federally-Enforceable Regulations 6. Conclusion D. Prong 2 Analysis—Interference With Maintenance of the NAAQS V. Proposed Action VI. Incorporation by Reference VII. Statutory and Executive Order Reviews I. Background and Purpose

    On June 22, 2010 (75 FR 35520), EPA promulgated a revised primary NAAQS for SO2 at a level of 75 parts per billion (ppb), based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within 3 years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe.1 These SIPs, which EPA has historically referred to as “infrastructure SIPs,” are to provide for the “implementation, maintenance, and enforcement” of such NAAQS, and the requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibility under the CAA. A detailed history, interpretation, and rationale of these SIPs and their requirements can be found, among other citations, in EPA's May 13, 2014 (79 FR 27241) proposed rule titled, “Approval and Promulgation of Air Quality Implementation Plans; Illinois, Michigan, Minnesota, Wisconsin; Infrastructure SIP requirements for the 2008 Lead NAAQS” in the section, “What is the scope of this rulemaking?” Section 110(a) of the CAA imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of individual state submissions may vary depending upon the facts and circumstances, and may also vary depending upon what provisions the state's approved SIP already contains.

    1 This requirement applies to both primary and secondary NAAQS, but EPA's approval in this notice applies only to the 2010 primary NAAQS for SO2 because EPA did not establish in 2010 a new secondary NAAQS for SO2.

    EPA has implemented the 2010 SO2 NAAQS in multiple stages or “rounds.” In our first round of implementation, EPA identified a monitored violation based on 2009-2011 monitoring data for an area around Merrimack Station, a coal-fired power plant in Bow, New Hampshire. Subsequently on August 5, 2013 (78 FR 47191), in concurrence with New Hampshire's recommendation for the area, EPA established the Central New Hampshire Nonattainment Area for the 2010 SO2 NAAQS. On January 31, 2017, EPA received a SIP submittal from the New Hampshire Department of Environmental Service (NHDES) for the Central New Hampshire Nonattainment Area. The central component of the plan is a set of new permit limitations on SO2 emissions from Merrimack Station. On September 28, 2017 (82 FR 45242), EPA proposed to approve the State's January 31, 2017 SIP submittal as meeting all applicable requirements for a nonattainment area SIP submittal. EPA issued a final rule approving New Hampshire's SIP submittal for the Central New Hampshire Nonattainment Area on June 5, 2018 (83 FR 25922). No other areas in New Hampshire or any neighboring state were designated for the 2010 SO2 NAAQS in the first or second rounds of designations. All other areas in New Hampshire and neighboring states have since been designated as Attainment/Unclassifiable as part of EPA's third round of designations on January 9, 2018 (83 FR 1098).

    On September 13, 2013, NHDES submitted a revision to its SIP, certifying its SIP meets most of the requirements of section 110(a)(2) of the CAA with respect to the 2010 SO2 NAAQS. However, this submittal did not address the transport elements of CAA section 110(a)(2)(D)(i)(I). On July 8, 2016 (81 FR 44542) and May 25, 2017 (82 FR 24085), EPA approved NHDES's certification that its SIP was adequate to meet most of the program elements required by section 110(a)(2) of the CAA with respect to the 2010 SO2 NAAQS. However, EPA did not take action related to the requirements of section 110(a)(2)(D)(i)(I) of the CAA because New Hampshire's September 13, 2013 infrastructure SIP submittal did not include provisions for this element.

    On June 16, 2017, NHDES submitted a SIP revision for the transport elements of CAA section 110(a)(2)(D)(i)(I) for the 2010 primary SO2 NAAQS. The title of the State's SIP submittal is “Amendment to New Hampshire 2010 Sulfur Dioxide NAAQS Infrastructure SIP to Address the Good Neighbor Requirements of Clean Air Act Section 110(a)(2)(D)(i)(I).” In this action, EPA is proposing to approve the State's June 16, 2017 submission to address the section 110(a)(2)(D)(i)(I) requirements for the 2010 SO2 NAAQS.

    EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register.

    II. State Submittal

    New Hampshire presented several facts in its SIP submittal on the effect of SO2 emissions from sources within New Hampshire on both adjacent states' air quality and their ability to attain and remain in attainment with the 2010 SO2 NAAQS. The SIP submittal notes that SO2 ambient monitoring data within New Hampshire and in adjacent states were substantially below the 2010 SO2 NAAQS. Specifically, the SIP submittal provided the SO2 “design value” (DV),2 i.e., the ambient concentration statistic appropriate for comparison with the NAAQS, for each monitoring site in New Hampshire, based on the 2013-2015 period. These 2013-2015 DVs were considerably below the NAAQS at all sites, including the two monitors within the Central New Hampshire Nonattainment Area during that period. The highest DV reported by NHDES for that period was 29 ppb, which is about 39% of the NAAQS, at the Peirce Island monitor in Portsmouth, New Hampshire. In addition, the submittal provided source-specific and county-level emissions trends information for 2013-2015 and longer-term statewide trends. Finally, the SIP submittal described air quality modeling information for Schiller Station, a coal- and biomass-fired power plant in Portsmouth, New Hampshire, and nearby Newington Station, an oil-fired power plant in Newington, New Hampshire, which indicated that emissions allowed under new, federally-enforceable emissions limits included in state air permits for those facilities would not result in a violation of the NAAQS in New Hampshire, Maine, or Massachusetts.

    2 A DV is a statistic that describes the air quality status of a given location relative to the level of the NAAQS. The interpretation of the primary 2010 SO2 NAAQS (set at 75 ppb) including the data handling conventions and calculations necessary for determining compliance with the NAAQS can be found in appendix T to 40 CFR part 50.

    III. Summary of the Basis for the Proposed Action

    This proposed approval of New Hampshire's SIP addressing interstate transport of SO2 is based on our assessment that the State is meeting its obligations regarding CAA section 110(a)(2)(D)(i)(I) relative to the 2010 SO2 NAAQS.3 Interstate transport requirements for all NAAQS pollutants prohibit any source—or other type of emissions activity—in one state from emitting any air pollutant in amounts that will contribute significantly to nonattainment, or interfere with maintenance, of the NAAQS in another state. As part of this analysis, and as explained in detail below, EPA has taken several approaches to addressing interstate transport in other actions based on the characteristics of the pollutant, the interstate problem presented by emissions of that pollutant, the sources that emit the pollutant, and the information available to assess transport of that pollutant.

    3 This proposed approval of New Hampshire's SIP under CAA section 110(a)(2)(D)(i)(I) is based on the information contained in the administrative record for this action, and does not prejudge any other future EPA action that may make other determinations regarding New Hampshire's air quality status. Any such future actions, such as area designations under any NAAQS, will be based on their own administrative records and EPA's analyses of information that becomes available at those times. Future available information may include, and is not limited to, monitoring data and information submitted to EPA by states, air agencies, and third party stakeholders such as citizen groups and industry representatives.

    Despite being emitted from a similar universe of point and nonpoint sources, interstate transport of SO2 is unlike the transport of fine particulate matter (PM2.5) or ozone in that SO2 is not a regionally-mixing pollutant for which emissions from multiple sources commonly contribute to widespread nonattainment of the SO2 NAAQS over a large (and often multi-state) area. While transport of SO2 is more analogous to the transport of lead (Pb) because its physical properties result in localized pollutant impacts very near the emissions source, the physical properties and release height of SO2 are such that impacts of SO2 do not experience the same sharp decrease in ambient concentrations as rapidly and as nearby as for Pb. Emissions of SO2 travel further and have sufficiently wider-ranging impacts than emissions of Pb to require a different approach than for handling Pb transport, but not far enough to be treated in a manner similar to regional transport pollutants such as PM2.5 or ozone.

    Put simply, a different approach is needed for interstate transport of SO2: The approaches EPA has adopted for Pb transport (described for background in section IV) are too tightly circumscribed to the source, and the approaches for PM2.5 or ozone transport (also described for background in section IV) are too regionally focused. SO2 transport is therefore a unique case, and EPA's evaluation of whether New Hampshire has met its transport obligations was accomplished in several discrete steps. First, EPA evaluated what universe of sources are likely to be responsible for SO2 emissions that could contribute to interstate transport. An assessment of the 2014 National Emissions Inventory (NEI) for New Hampshire made it clear that the vast majority of SO2 emissions in New Hampshire are from fuel combustion at point and nonpoint sources and that emissions from other sources are small in the absolute sense as well, and therefore it would be reasonable to evaluate the downwind impacts of emissions from the combined fuel combustion source categories to help determine whether the State has met its transport obligations.

    Second, EPA selected a spatial scale—essentially, the geographic area and distance around the point sources in which we could reasonably expect SO2 impacts to occur—that would be appropriate for our analysis, ultimately settling on utilizing an “urban scale” with dimensions from 4 to 50 kilometers (km) from point sources given the usefulness of that range in assessing trends in both area-wide air quality and the effectiveness of pollution control strategies at those point sources. As such, EPA utilized an assessment approach that extended to 50 km from fuel-combustion point sources when considering possible transport of SO2 from New Hampshire to downwind states.

    Third, EPA assessed all available data at the time of this rulemaking regarding SO2 emissions in New Hampshire and their possible impacts in downwind states, including: SO2 ambient air quality; SO2 emissions and SO2 emissions trends; SIP-approved SO2 regulations and permitting requirements; available air dispersion modeling; and other SIP-approved or federally promulgated regulations that may yield reductions of SO2 at New Hampshire's fuel-combustion point and nonpoint sources.

    Fourth, using the universe of information identified in steps 1-3 (i.e., emissions sources, spatial scale and available data, and modeling results and enforceable regulations), EPA then conducted an analysis under CAA section 110(a)(2)(D)(i)(I) to evaluate whether fuel-combustion sources in New Hampshire would significantly contribute to nonattainment in other states, and then whether they would interfere with maintenance of the NAAQS in other states.

    Based on the analysis provided by the State in its SIP submittal and EPA's assessment of the information in that submittal, and EPA's assessment of other relevant information available at the time of this rulemaking, for each of the factors discussed at length below in this action, EPA proposes to find that sources or emissions activity within New Hampshire will not contribute significantly to nonattainment, nor will they interfere with maintenance of, the 2010 primary SO2 NAAQS in any other state.

    IV. Section 110(a)(2)(D)(i)(I)—Interstate Transport A. General Requirements and Historical Approaches for Criteria Pollutants

    Section 110(a)(2)(D)(i)(I) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from emitting any air pollutant in amounts that will contribute significantly to nonattainment, or interfere with maintenance, of a NAAQS in another state. The two clauses of this section are referred to as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance of a NAAQS).

    EPA's most recent infrastructure SIP guidance, the September 13, 2013 memorandum, entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” 4 did not explicitly include criteria for how the Agency would evaluate infrastructure SIP submittals intended to address section 110(a)(2)(D)(i)(I).5 With respect to certain pollutants, such as particulate matter and ozone, EPA has addressed interstate transport in eastern states in the context of regional rulemaking actions that quantify state emission reduction obligations.6 In other actions, such as the EPA action on western state SIPs addressing particulate matter and ozone, EPA has considered a variety of factors on a case-by-case basis to determine whether emissions from one state significantly contribute to nonattainment or interfere with maintenance of the NAAQS in another state. In such actions, EPA has considered available information such as current air quality, emissions data and trends, meteorology, distance between states, and topography.7

    4 Available online at: https://www.epa.gov/sites/production/files/2015-12/documents/guidance_on_infrastructure_sip_elements_multipollutant_final_sept_2013.pdf.

    5 At the time the September 13, 2013 guidance was issued, EPA was litigating challenges raised with respect to our Cross State Air Pollution Rule (CSAPR), (76 FR 48208, August 8, 2011) designed to address the CAA section 110(a)(2)(D)(i)(I) interstate transport requirements with respect to the 1997 ozone and the 1997 and 2006 PM2.5 NAAQS. CSAPR was vacated and remanded by the D.C. Circuit in 2012 pursuant to EME Homer City Generation, L.P. v. EPA, 696 F.3d 7. EPA subsequently sought review of the D.C. Circuit's decision by the Supreme Court, which was granted in June 2013. As EPA was in the process of litigating the interpretation of section 110(a)(2)(D)(i)(I) at the time the infrastructure SIP guidance was issued, EPA did not issue guidance specific to that provision. The Supreme Court subsequently vacated the D.C. Circuit's decision and remanded the case to that court for further review. 134 S.Ct. 1584 (2014). On July 28, 2015, the D.C. Circuit issued a decision upholding CSAPR, but remanding certain elements for reconsideration. 795 F.3d 118.

    6 NOX SIP Call (63 FR 57371, October 27, 1998); Clean Air Interstate Rule (CAIR) (70 FR 25172, May 12, 2005); CSAPR (76 FR 48208, August 8, 2011).

    7See, e.g., Approval and Promulgation of Implementation Plans; State of California; Regional Haze and Interstate Transport; Significant Contribution to Nonattainment and Interference with Maintenance Requirements, Proposed Rule (76 FR 14616, 14616-14626, March 17, 2011); Final Rule (76 FR 34872, June 15, 2011); Approval and Promulgation of State Implementation Plans; State of Colorado; Interstate Transport of Pollution for the 2006 24-Hour PM2.5 NAAQS, Proposed Rule (80 FR 27121, 27124-27125, May 12, 2015); Final Rule (80 FR 47862, August 10, 2015).

    For Pb, EPA has suggested the applicable interstate transport requirements of section 110(a)(2)(D)(i)(I) can be met through a state's assessment as to whether emissions from Pb sources located in close proximity to its borders have emissions that impact a neighboring state such that they contribute significantly to nonattainment or interfere with maintenance in that state. For example, EPA noted in an October 14, 2011 memorandum, entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements Required Under Sections 110(a)(1) and 110(a)(2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS),” 8 that the physical properties of Pb prevent its emissions from experiencing the same travel or formation phenomena as PM2.5 or ozone, and there is a sharp decrease in Pb concentrations, at least in the coarse fraction, as the distance from a Pb source increases. Accordingly, while it may be possible for a source in a state to emit Pb in a location and in quantities that may contribute significantly to nonattainment in, or interfere with maintenance by, any other state, EPA anticipates that this would be a rare situation, e.g., where large sources are in close proximity to state boundaries.9 Our rationale and explanation for approving the applicable interstate transport requirements under section 110(a)(2)(D)(i)(I) for the 2008 Pb NAAQS, consistent with EPA's interpretation of the October 14, 2011 guidance document, can be found, among other instances, in the May 13, 2014 proposed approval (79 FR 27241 and 27249) and a subsequent July 16, 2014 final approval (79 FR 41439) of interstate transport SIPs submitted by Illinois, Michigan, Minnesota, and Wisconsin.

    8 Available online at: https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/20111014_page_lead_caa_110_infrastructure_guidance.pdf.

    9 Id. at pp 7-8.

    B. Approach for Addressing the Interstate Transport Requirements for the 2010 Primary SO2 NAAQS in New Hampshire

    As previously noted, section 110(a)(2)(D)(i)(I) requires an evaluation of how emissions from any source or other type of emissions activity in one state may impact air quality in other states. One reasonable starting point for determining which sources and emissions activities in New Hampshire are likely to impact downwind air quality with respect to the SO2 NAAQS is by using information in the NEI.10 The NEI is a comprehensive and detailed estimate of air emissions of criteria pollutants, criteria pollutant precursors, and hazardous air pollutants from air emissions sources, and is updated every 3 years using information provided by the states. At the time of this rulemaking, the most recently available comprehensive dataset is the 2014 NEI (version 2), and the state summary for New Hampshire is included in Table 1 below.

    10 Available online at: https://www.epa.gov/air-emissions-inventories/national-emissions-inventory-nei.

    Table 1—Summary of 2014 National Emissions Inventory Data for SO2 Emission Source Categories in New Hampshire Category Emissions
  • (tons per year)
  • Fuel Combustion: Electric Generation 2,642 Fuel Combustion: Industrial 817 Fuel Combustion: Other * 4,440 Waste Disposal and Recycling 263 Highway Vehicles 134 Off-Highway 257 Miscellaneous † 6 Total 8,560 * “Other” fuel combustion is nonpoint and includes 3,180 tons per year from residential fuel oil combustion, 1,077 tons per year from commercial/institutional fuel oil combustion, and 182 tons per year from combustion of other fuel types from residential and commercial/institutional sources. † Miscellaneous includes prescribed fires, wildfires, and non-combustion industrial emissions.

    EPA observes that according to the 2014 NEI, the vast majority of SO2 emissions (7,900 tons of 8,560 tons overall, or 92.3%) in New Hampshire originate from fuel combustion at point and nonpoint stationary sources. The emissions from other categories (waste disposal and recycling, mobile sources, and miscellaneous) are also small in an absolute sense, and widely distributed rather than concentrated at a few release points; accordingly, these categories are not further addressed in this notice. Therefore, an assessment of New Hampshire's satisfaction of all applicable requirements under section 110(a)(2)(D)(i)(I) of the CAA for the 2010 SO2 NAAQS may be reasonably based upon evaluating the downwind impacts of emissions from the combined fuel combustion categories (i.e., electric utilities, industrial, and other 11 combustion sources).

    11 As indicated in the notes for Table 1, the “other” category of fuel combustion in New Hampshire is comprised mostly of residential heating through fuel oil combustion.

    Fuel-combustion units in residences and commercial/institutional facilities are considered nonpoint sources. Although SO2 emissions from residential and commercial/institutional fuel oil combustion accounted for 50% of all 2014 SO2 emissions in the NEI for New Hampshire, SO2 emissions from these nonpoint sources are now much lower due to a provision of state law, RSA 125 C:10-d. As of July 2018, fuel oil sold in the State is subject to stricter fuel sulfur limits, and New Hampshire plans to incorporate these limits into the state regulations Env-1600, entitled “Fuel Specifications.” The new limit for number 2 home heating oil of 0.0015% by weight will achieve a 98.5% reduction in residential fuel combustion emissions compared to emissions under the limit of 0.4% that applied in 2014. Because residential fuel combustion in 2014 was about 75% of all nonpoint fuel combustion, this means that the reduction in all nonpoint fuel combustion will be around 75% even with considering an expected decline in commercial/institutional emissions. However, commercial/institutional emissions will also decline because of the new limits on fuel oil sulfur content of 0.25% by weight for number 4 oil (compared to a 2014 limit of 1%), and 0.5% by weight for numbers 5 and 6 oils (compared to 2014 limits ranging between 2% and 2.2% depending on county). Also, the diffuse nature of emissions from these nonpoint sources makes it unlikely that the current and future emissions from nonpoint combustion of fuel oil in New Hampshire will contribute to an exceedance of the NAAQS in a neighboring state. Based on this reasoning, EPA concludes that these nonpoint sources are not significantly contributing to nonattainment or interfering with maintenance in another state. Accordingly, we do not further address nonpoint fuel combustion sources in this notice.

    Regarding the evaluation of impacts from fuel combustion by point sources (electrical generation and industrial sources), the definitions contained in appendix D to 40 CFR part 58 entitled “Sulfur Dioxide (SO2) Design Criteria” are helpful indicators of the transport and fate of SO2 originating from stationary sources in the context of the 2010 primary SO2 NAAQS. Notably, section 4.4 of this appendix provides definitions for SO2 spatial scales for middle scale and neighborhood scale monitors. The middle scale generally represents air quality levels in areas 100 meters to 500 meters from a facility, and may include locations of maximum expected short-term concentrations due to proximity of major SO2 point, nonpoint, and non-road sources. The neighborhood scale characterizes air quality conditions between 500 meters and 4 km from a facility; emissions from stationary point sources may under certain plume conditions result in high SO2 concentrations at this scale. Based on these definitions, we conclude that it is appropriate to examine the impacts of emissions from electric utilities and industrial processes in New Hampshire at locations that are up to 50 km from an emitting facility. In other words, SO2 emissions from stationary point sources in the context of the 2010 primary SO2 NAAQS do not exhibit the same long-distance travel, regional transport, or formation phenomena as either PM2.5 or ozone; rather, these emissions behave more like Pb with localized dispersion. Therefore, an assessment of point fuel combustion sources within 50 km of a border between New Hampshire and an adjacent state would be useful for assessing whether sources in New Hampshire significantly contribute to nonattainment or interfere with maintenance in the adjacent state.12

    12 EPA recognizes in section A.1 of appendix A to EPA's Guideline on Air Quality Models (“the Guideline”), i.e., 40 CFR 51, appendix W, that EPA's regulatory AERMOD model is appropriate for predicting pollutant concentrations up to 50 km. Section 4.1 of the Guideline on Air Quality Models also suggests that 50 km is the maximum distance for which such models should be applied.

    Our current implementation strategy for the 2010 primary SO2 NAAQS includes the flexibility to characterize air quality for stationary point sources via either data collected at ambient air quality monitors sited to capture the points of maximum concentration, or air dispersion modeling.13 Our assessment of SO2 emissions from fuel combustion point sources in New Hampshire and their potential impact on neighboring states is informed by all available data at the time of this rulemaking, specifically: SO2 ambient air quality; SO2 emissions and SO2 emissions trends; SIP-approved SO2 regulations and permitting requirements; available air dispersion modeling; and, other SIP-approved or federally promulgated regulations which may limit emissions of SO2. This notice describes EPA's evaluation of New Hampshire's June 16, 2017 SIP submittal of the transport infrastructure elements of the CAA for the 2010 primary SO2 NAAQS to satisfy the requirements of CAA section 110(a)(2)(D)(i)(I).14

    13See the EPA April 23, 2014 memorandum (EPA 2014) entitled “Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions,” available online at: https://www.epa.gov/sites/production/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf (hereafter, “EPA's April 2014 guidance”).

    14 EPA notes that the evaluation of other states' satisfaction of section 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS can be informed by similar factors found in this proposed rulemaking, but may not be identical to the approach taken in this or any future rulemaking for New Hampshire, depending on available information and state-specific circumstances.

    C. Prong 1 Analysis—Significant Contribution to Nonattainment

    Prong 1 of the good neighbor provision requires state plans to prohibit emissions that will contribute significantly to nonattainment of a NAAQS in another state. EPA proposes to find that New Hampshire's SIP meets the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I), prong 1 for the 2010 SO NAAQS, as discussed below. In order to evaluate New Hampshire's satisfaction of prong 1, EPA evaluated the State's SIP submittal with respect to the following five factors: (1) SO2 emissions information and trends for New Hampshire and neighboring states, i.e., Maine, Massachusetts, and Vermont; (2) SO2 ambient air quality; (3) potential ambient impacts of SO2 emissions from certain facilities in New Hampshire (identified as being of interest from a transport perspective as part of our evaluation of SO2 emissions trends) on neighboring states based on available air dispersion modeling results and other information; (4) SIP-approved regulations specific to SO2 emissions; and (5) other SIP-approved or federally-enforceable regulations that, while not directly intended to address or reduce SO2 emissions, may limit emissions of the pollutant. A discussion of each of these factors is provided below. In this evaluation, EPA did not identify any current air quality problems in nearby areas in the adjacent states relative to the 2010 SO2 NAAQS, and we propose to find that New Hampshire will not significantly contribute to nonattainment of the 2010 SO2 NAAQS in any other state.

    1. Emissions Trends

    As part of the SIP submittal, New Hampshire indicated that for the 2013-2015 period, no sources emitted greater than 2,000 tons per year (tpy), which the State noted was the threshold established in the August 21, 2015 (80 FR 51052) SO2 Data Requirements Rule (DRR), above which sources were required to be characterized. Further, the State provided an inventory of individual point sources in New Hampshire with emissions greater than 10 tpy, and total county point source emissions from 2013-2015. These emissions are presented in Tables 2 and 3, below.

    Table 2—SO2—Point Source Emissions in Tons per Year (tpy) for 2013-2015 for New Hampshire Facilities With Emissions in Any Single Year for 2013-2015 Exceeding 10 tpy, as Provided in the State's SIP Submittal County Facility name 2013
  • Emissions
  • 2014
  • Emissions
  • 2015
  • Emissions
  • Belknap Tilton School 0.0 3.3 11.7 Cheshire Cheshire Medical Center 13.8 9.3 0.2 Cheshire Keene State College 30.9 33.1 34.0 Cheshire Markem Corporation 17.6 5.8 5.8 Cheshire The Cheshire Medical Center 13.8 9.3 0.2 Coos Burgess Biopower LLC 1.6 11.5 14.6 Coos Fraser NH LLC 28.8 29.4 26.2 Coos Mount Carberry Landfill 20.1 13.1 6.6 Coos Mount Washington Hotel 15.5 14.2 14.4 Grafton Dartmouth College 241.7 245.6 241.1 Grafton Dartmouth-Hitchcock Medical Center 124.6 16.7 2.8 Grafton Freudenberg-Nok General Partnership-Bristol 34.1 23.3 4.1 Grafton North Country Environmental Services Inc 42.9 33.1 50.2 Grafton Plymouth State University 28.1 15.2 0.6 Grafton Unifirst Corporation 12.2 11.1 12.4 Hillsborough Four Hills Landfill 14.4 11.1 4.3 Hillsborough Monadnock Paper Mill 156.1 147.9 80.4 Hillsborough Nylon Corporation 2.3 13.7 0.0 Hillsborough Warwick Mills Inc 12.6 5.8 1.1 Merrimack Environmental Soils Management Inc 9.8 16.0 10.9 Merrimack Public Service of New Hampshire (PSNH)—Merrimack Station 1,401.4 1,044.0 636.0 Merrimack Wheelabrator Concord Company LP 52.2 56.6 50.9 Rockingham Granite Ridge Energy LLC 7.7 7.8 10.1 Rockingham New NGC d/b/a National Gypsum Company 15.3 16.0 17.0 Rockingham PSNH—Newington Station 330.6 316.1 294.8 Rockingham PSNH—Schiller Station 1,428.1 1,243.2 856.8 Strafford Turnkey Recycling & Environmental Enterprises 31.7 56.3 30.4 Strafford University of New Hampshire—Durham 12.7 18.7 15.7 Sullivan APC Paper Company 30.3 13.6* 2.1 Sullivan Wheelabrator Claremont Company LP 17.0 0.0 0.0 * The 2014 NEI reports emissions of 153.1 tpy for APC Paper Company.
    Table 3—SO2 Total Point Source Emissions in Tons per Year (tpy) for 2013-2015 for New Hampshire Counties With Emissions in any Single Year for 2013-2015 Exceeding 10 tpy, as Provided in the State's SIP Submittal County 2013
  • Emissions
  • 2014
  • Emissions
  • 2015
  • Emissions
  • Belknap 6.2 3.6 12.0 Carroll 14.3 13.8 9.4 Cheshire 99.1 79.6 64.2 Coos 75.5 74.1 66.2 Grafton 514.2 370.5 331.1 Hillsborough 220.1 201.7 107.8 Merrimack 1,484.8 1,138.2 713.7 Rockingham 1,797.4 1,597.8 1,191.8 Strafford 58.5 91.8 57.5 Sullivan 49.5 16.2 4.7 Total 4,319.5 3,587.3 2,558.6

    Table 3 indicates that total SO2 emissions from point sources in the 10 listed counties have decreased by 1,761 tpy, or about 41%, over the time period from 2013 to 2015. However, as stated above, our focus when reviewing New Hampshire's submittal is on sources within 50 km of the border with another state, not on county-wide or state-wide emissions.

    Six facilities listed in Table 2 have emissions greater than 100 tpy and are within 50 km of a border between New Hampshire and another state. Three of these are electric generating stations: Schiller Station, Merrimack Station, and Newington Station. In particular, Schiller Station and Newington Station are within 1 km of one another and within 0.5 km of the New Hampshire-Maine border. These electric generating facilities were the three highest point source emitters in each of the 3 years in New Hampshire. The combined changes in emissions from these three sources account for 78% of the total decrease in point source emissions during this period. Specifically, based on the information presented in Table 2, combined SO2 emissions from Schiller Station, Merrimack Station, and Newington Station were 3,160 tpy in 2013 compared to 1,788 tpy in 2015, a net decrease of 1,373 tpy.

    The three other major fuel combustion point sources (i.e., sources with emissions higher than 100 tpy) in New Hampshire listed in Table 2 that are within 50 km of the state border are Monadnock Paper Mills Inc. in Bennington in Hillsborough County (147.9 tpy—33 km from Massachusetts, 42 km from Vermont), APC Paper Company Inc. in Claremont in Sullivan County (153.1 tpy—4 km from Vermont), and Dartmouth College in Hanover in Grafton County (245.6 tpy—1 km from Vermont). These three sources are discussed in greater detail in section IV.C.3 of this notice. While Table 2 provides information on SO2 emissions between 2013 and 2015 for the highest emitting sources based on the State's point source inventory, an emissions summary for all electric utilities within the State subject to the Federal Acid Rain Program provides more current information on statewide SO2 emissions from all electric utilities. Data for this purpose can be found in the most recent EPA Air Markets Program Data (AMPD).15 The AMPD is an application that provides both current and historical data collected as part of EPA's emissions trading programs. A summary of all 2016 and 2017 SO2 emissions from electric utilities in New Hampshire subject to the Acid Rain Program is below.

    15 Available online at: https://ampd.epa.gov/ampd/.

    Table 4—2016 and 2017 AMPD Data for all New Hampshire Electric Utilities in Tons per Year [tpy] County Facility name 2016 SO2
  • Emissions
  • (tpy)
  • 2017 SO2
  • Emissions
  • (tpy)
  • Coos Burgess BioPower 21.5 15.4 Rockingham Granite Ridge Energy 7.3 5.9 Merrimack Merrimack Station 228.2 143.6 Rockingham Newington Station 40.6 41.3 Rockingham Newington Energy * 2.9 4.3 Rockingham Schiller Station 272.3 262.6 Total 572.7 473.1 * In 2013 to 2015, Newington Energy had emissions below the State's 10 tpy threshold for the inventory of individual point sources shown in Table 2.

    Table 4 provides two key pieces of information. First, SO2 emissions have generally continued to decrease in 2016 and 2017 for Schiller Station, Merrimack Station, and Newington Station since the State's SIP submittal which analyzed 2013 through 2015 emissions. Second, aggregate SO2 emissions for New Hampshire facilities reporting to AMPD have continued to decrease.

    In addition to the emissions information for New Hampshire sources provided by the State, EPA also compiled 2014 NEI information for major sources in the adjacent states within 50 km of the New Hampshire border. This information, presented in Table 5 below, indicates that major sources in neighboring states near the New Hampshire border are distant from most sources in New Hampshire. (Note that there are no major SO2 sources in Vermont within 50 km of the New Hampshire border based on the 2014 NEI data.) Based on these 2014 data, the only source in New Hampshire (Mount Carberry Landfill in Berlin, New Hampshire) that is within 50 km of a major source (i.e., a source emitting greater than 100 tpy) in a neighboring state (Catalyst Paper Operators in Richmond, Maine) emitted around 13 tpy and is at a distance of 49 km. Furthermore, there are relatively few major SO2 sources in nearby states. This information supports the conclusion that New Hampshire sources within 50 km of a border and emitting below 100 tpy, and thus not including the six major sources already identified, are unlikely to contribute to nonattainment in neighboring states, confirming our focus on the six identified major sources.

    Table 5—Summary of SO2 Major Point Sources Within 50 km of the New Hampshire Border and Potential Interactive New Hampshire Sources State Source 2014
  • Emissions
  • (tpy)
  • Sources in New Hampshire within 50 km
    Massachusetts Mystic Station—Boston 910 None. Massachusetts Logan Airport—Boston 222 None. Massachusetts Veolia Energy Boston LLC—Boston 115 None. Maine Catalyst Paper Operators—Richmond 824 Mount Carberry Landfill—Berlin (13 tpy, 49 km). Data retrieved from 2014 NEI.
    2. Ambient Air Quality

    Data collected at ambient air quality monitors indicate the monitored values of SO2 in the State have remained below the NAAQS since at least 2013. New Hampshire included DVs for 2013-2015 in its SIP submittal. EPA compiled relevant data from Air Quality System (AQS) DV reports for this period and three additional 3-year periods at New Hampshire SO2 monitoring stations; this information is summarized in Table 6 below.16

    16 Available online at: https://www.epa.gov/air-trends/air-quality-design-values.

    Table 6—Trend in SO2 Design Values for AQS Monitors in New Hampshire AQS monitor site Monitor location 2012-2014 DV
  • (ppb)
  • 2013-2015 DV
  • (ppb)
  • 2014-2016 DV
  • (ppb)
  • 2015-2017 DV
  • (ppb)
  • 33-013-1007 Concord—Hazen Drive 9 8 7 * NA 33-015-0018 Londonderry—150 Pillsbury Road 5 6 5 4 33-013-1006 Pembroke—Pleasant Street 23 20 20 15 33-011-5001 Peterborough—Pack Monadnock Summit 5 5 3 3 33-015-0014 Portsmouth—Peirce Island 28 29 22 16 * The DV for this site is invalid due to incomplete data for this period and is not for use in comparison to the NAAQS.

    As shown in Table 6 above, the DVs for the periods from 2012-2014 through 2015-2017 show overall decreases in SO2 concentrations. The highest DV in New Hampshire for 2015-2017 is 16 ppb, which is well below the NAAQS, at the Peirce Island monitor in Portsmouth very close to the border with Maine. An analysis of DV data from these monitors, along with additional data sources (as further discussed below), can partially inform the evaluation of SO2 transport from New Hampshire.

    Table 7—Distances Between the Largest SO2 Emission Sources in New Hampshire and Regulatory Monitors Facility Closest AQS
  • monitor in
  • New Hampshire
  • Distance to
  • closest AQS
  • monitor in
  • New
  • Hampshire
  • (km)
  • Spatial scale 2013-2015 DV
  • (ppb)
  • 2014-2016 DV
  • (ppb)
  • 2015-2017 DV
  • (ppb)
  • Schiller Station Portsmouth—Peirce Island 3.9 Neighborhood 29 22 16 Newington Station Portsmouth—Peirce Island 4.4 Neighborhood 29 22 16 Merrimack Station Pembroke—Pleasant Street 1.3 Neighborhood 20 20 15

    The monitors closest to Merrimack Station (i.e., the Pembroke monitor, AQS no. 33-013-1006) and both Schiller Station and Newington Station (i.e., the Peirce Island monitor, AQS no. 33-015-0014) may not be sited in the area to adequately capture points of maximum concentration from the facilities. However, Table 7 indicates that these monitors are located in the neighborhood spatial scale in relation to the facilities, i.e., emissions from stationary and point sources may under certain plume conditions result in high SO2 concentrations at this scale. EPA's monitoring regulations at 40 CFR part 58, appendix D, section 4.4.4(3) define neighborhood scale as “characterize[ing] air quality conditions throughout some relatively uniform land use areas with dimensions in the 0.5 to 4.0 km range.” The Pembroke monitor has, in prior years, recorded SO2 levels in excess of the 2010 SO2 NAAQS resulting from emissions from Merrimack Station. For example, the DV at the Pembroke monitor was 221 ppb for the 2009-2011 monitoring period. Similarly, the Peirce Island monitor has recorded 1-hour SO2 concentrations higher than the level of the 2010 SO2 NAAQS in prior years, with peak 1-hour impacts in 2006 of 93 ppb and a DV of 60 ppb during the 2005-2007 period, reflecting previous impacts from emissions from Schiller Station and Newington Station. These historic values illustrate the extent to which the Pembroke and Peirce Island monitors were capable of recording high pollutant levels resulting from emissions from Merrimack Station and Schiller and Newington Stations, respectively. However, these three facilities are no longer expected to emit at high levels because each is subject to federally-enforceable requirements that limit allowable SO2 emissions. Therefore, EPA no longer expects high SO2 readings at the Pembroke and Peirce Island monitors. As presented in Table 7, the most recently available DVs at both monitors are now well below the NAAQS based on 2013-2015 data included in the State's SIP submittal and on updated DV data reviewed by EPA.

    However, the absence of a violating ambient air quality monitor within the State is insufficient to demonstrate that New Hampshire has met its interstate transport obligation. While the very low DVs and the spatial relationship between the sources of interest and two of the monitoring sites support the notion that emissions originating within New Hampshire are not contributing to a violation of the NAAQS, prong 1 of section 110(a)(2)(D)(i)(I) specifically addresses the effects that sources within New Hampshire have on air quality in neighboring states. Therefore, the evaluation and analysis of SO2 emissions data from facilities within the State, as previously presented, together with ambient data in neighboring states, as will be presented next, is appropriate.

    In its SIP submittal, New Hampshire provided 2013-2015 SO2 DVs for all monitors in neighboring states, noting that two such monitors reside in counties adjacent to New Hampshire, and also that there are currently no designated nonattainment or maintenance areas for the 2010 SO2 NAAQS in states surrounding New Hampshire. Table 8 contains the 2013-2015 through 2015-2017 SO2 DVs for monitors in the three states neighboring New Hampshire, i.e., Maine, Massachusetts, and Vermont, also noting whether the county is adjacent to New Hampshire. (The State supplied the 2013-2015 DVs in its SIP submittal, and EPA updated the State's analysis to include the 2014-2016 and 2015-2017 SO2 DVs for these monitors.) Several monitors in this dataset have incomplete data for at least one of the DV periods; DVs are reported as “NA” for periods with incomplete data. All of the valid DVs for the monitoring sites listed in Table 8 are well below the NAAQS.

    One monitor with a DV listed as “NA” for the relevant time periods included in the State's SIP submittal is the Sawgrass Lane monitor, AQS site 23-031-0009, located in Eliot, Maine. The Sawgrass Lane monitor collected SO2 concentration data from October 24, 2014 to April 1, 2016. The maximum 1-hour SO2 concentration observed from this monitor was 37.7 ppb on January 8, 2015, when winds came from the direction of Schiller Station and the power plant was operating at near-maximum capacity.17 Though a single maximum 1-hour concentration is not directly comparable to the SO2 NAAQS, which is in the form of the 3-year average of the 99th percentile of daily maximum 1-hour values, EPA notes that the highest concentration observed at the Sawgrass Lane monitor was approximately 50% of the level of the NAAQS,

    17 The Town of Eliot had previously submitted a petition to EPA in August 2013 pursuant to section 126 of the CAA regarding alleged violations of the 2010 SO2 NAAQS within the Town's political boundary due to emissions from Schiller Station. The Sawgrass Lane monitor was sited in an area expected to experience peak SO2 impacts based on modeling information submitted by the Town with the section 126 petition. On November 9, 2017, following the Sawgrass Lane monitoring study, and in light of new permit limitations on SO2 emissions at Schiller Station (described in section IV.C.3.a) and EPA's August 22, 2017 letters stating EPA's intention to designate the Maine and New Hampshire seacoast areas as not being in violation of the NAAQS, the Town of Eliot withdrew its August 2013 section 126 petition. Additional background and results of the Sawgrass Lane monitoring study are described in the report, “Review of 2014-2016 Eliot, Maine Air Quality Monitoring Study,” EPA, the Maine Department of Environmental Protection, and NHDES (September 2016).

    Based on the monitoring data in neighboring states, EPA proposes to conclude that these monitoring data do not provide evidence of violations in the neighboring states.

    Table 8—SO2 DVs for AQS Monitors in Neighboring States and Adjacency to New Hampshire of the County in Which Monitor Is Located State AQS monitor site Monitor location 2013-2015 SO2 DV
  • (ppb)
  • 2014-2016 SO2 DV
  • (ppb)
  • 2015-2017 SO2 DV
  • (ppb)
  • County
  • adjacent to
  • New Hampshire?
  • Maine 23-003-1100 Presque Isle 3 3 NA* No. 23-005-0029 State Street, Portland 12 11 9 No. 23-009-0103 Hancock County 2 1 1 No. 23-011-2005 Pray Street, Gardiner 12 NA* NA* No. 23-031-0009 Sawgrass Lane, Eliot NA* NA* NA* Yes. Massachusetts 25-005-1004 Globe Street, Fall River 28 10 9 No. 25-013-0016 Liberty Street, Springfield 8 NA* NA* No. 25-015-4002 Quabbin Summit, Ware 5 4 3 No. 25-025-0002 Kenmore Square, Boston 9 6 4 No. 25-025-0042 Dudley Square, Roxbury 11 9 6 No. 25-027-0023 Summer Street, Worcester 7 6 5 Yes. Vermont 50-007-0007 Harvey Road, Underhill 3 † 2 2 No. 50-021-0002 State Street, Rutland 9 6 2 No. * The DV for this site is invalid due to incomplete data for this period and is not for use in comparison to the NAAQS. † Value as reported by NH DES. EPA's AQS database indicates no valid DV at this monitor for this year range.
    3. Assessment of Potential Ambient Impacts of SO2 Emissions From Certain Sources Based on Air Dispersion Modeling and Other Information Schiller Station, Newington Station, and Merrimack Station

    In its SIP submittal, New Hampshire referenced air dispersion modeling conducted for Schiller Station and Newington Station used to support the State's recommendation for designations under the 2010 SO2 NAAQS and to meet the State's obligation under the SO2 DRR. The State used the modeling to establish maximum allowable SO2 emission limits for Schiller Station in the June 15, 2017 Title V Operating Permit (TV-0053) and for Newington Station in the December 22, 2016 temporary permit TP-0197. A detailed description of EPA's assessment of the modeling, and associated visualizations, are available in Chapter 27 of the Technical Support Document for EPA's September 5, 2017 (82 FR 41903) Intended Round 3 Area Designations for the 2010 1-Hour SO2 Primary National Ambient Air Quality Standard for New Hampshire, and this description is hereby incorporated for purposes of this action.18 EPA's assessment of the State's modeling indicates that it is suitable for use in evaluating impacts in Maine and Massachusetts from the allowable emissions from Schiller Station and Newington Station under federally-enforceable emission limits for those facilities. The modeling also included representative actual emissions from nearby sources. The maximum predicted concentrations, which are at a level of 74.8 ppb, in the State's modeling based on full load using maximum allowable emissions are located in Eliot, Maine. The modeling also predicted SO2 concentrations in areas of northeast Massachusetts, where levels were predicted to be around 24 ppb. Based on our assessment of this modeling information, EPA proposes to conclude that the federally-enforceable emissions limits for Schiller Station and Newington Station ensure that emissions activity from these sources will not contribute significantly to nonattainment of the SO2 NAAQS in Maine or Massachusetts.

    18 In referencing EPA's Intended Round 3 Area Designations, EPA is not reopening the SO2 area designations action nor incorporating any other materials from those designations into the record for this proposal other than those explicitly described as incorporated. A notice of the final rule for these designations was published on January 9, 2018 (83 FR 1098). Chapter 27 of the Technical Support Document can be found at https://www.epa.gov/sites/production/files/2017-08/documents/27_nh_so2_rd3-final.pdf.

    The State also referenced air dispersion modeling conducted to establish federally-enforceable SO2 emission limits for Merrimack Station in Bow, New Hampshire. The State relied upon these limits with supporting modeling analysis in the attainment demonstration for the Central New Hampshire SO2 Nonattainment Area, as described in the Federal Register on September 28, 2017 (82 FR 45242).19 Merrimack Station was explicitly modeled in this attainment demonstration, while Schiller Station and Newington Station were represented by the selected background concentration. EPA's assessment of the State's modeling indicates that it is suitable for use in evaluating impacts in Maine and Massachusetts under federally-enforceable emission limits from Merrimack Station. The modeling predicted maximum impacts from Merrimack Station of around 11 ppb in Maine and Massachusetts. Based on our assessment of this modeling information, EPA proposes to conclude that the federally-enforceable emissions limits for Merrimack Station ensure emissions activity from this source will not contribute significantly to nonattainment of the SO2 NAAQS in Maine or Massachusetts.

    19 In referencing EPA's approval of New Hampshire's plan and attainment demonstration for the Central New Hampshire Nonattainment Area, EPA is not reopening the nonattainment area plan approval action. A notice of the final rule for the plan approval was published on June 5, 2018 (83 FR 25922).

    The modeling results demonstrate that the points, outside of New Hampshire, of maximum potential impact for Merrimack Station, Schiller Station, and Newington Station are located in Maine, which neighbors New Hampshire to the east, and that these impacts are below the level of the 2010 SO2 NAAQS. Therefore, EPA expects the actual impacts will be no higher than the potential impacts shown in the State's analysis.

    To additionally evaluate the expectation that Schiller Station, Newington Station, and Merrimack Station will not contribute significantly to nonattainment of the SO2 NAAQS in Maine or Massachusetts, EPA assessed the proximity of these facilities to major SO2 emission sources in neighboring states that may cause areas of higher concentration in those states. To do so, EPA examined emissions data for major sources of SO2 emissions in Maine and Massachusetts. (There are no major sources in Vermont within 50 km of the New Hampshire border, so Vermont was excluded this portion of the analysis.20 ) A summary of this information, as it relates to the sources in New Hampshire discussed here, is presented in Table 9 below. Based on the information in Table 9, the distance between the sources modeled by New Hampshire and major sources in nearby states are at least 73 km. Therefore, the large distances between Merrimack Station, Schiller Station, and Newington Station and the nearest major SO2 sources within Maine, Massachusetts, and Vermont, indicate that impacts from New Hampshire are appropriately characterized by the State's modeling, and are very unlikely to contribute significantly to problems with attainment of the 2010 SO2 NAAQS in these neighboring states.

    20 EPA notes that according to the 2014 NEI, Agrimark Inc. in Middlebury, Vermont, at about 79 km from the New Hampshire border, 168 km from Merrimack Station, and 220 km from Shiller Station and Newington Station, is the nearest major SO2 source in Vermont to the New Hampshire border and the major sources in New Hampshire.

    Table 9—Summary of Major Emission Sources in States Adjacent to New Hampshire and Their Corresponding Distance to Merrimack Station, Newington Station, and Schiller Station New Hampshire source 2017
  • emissions
  • (tpy) *
  • Distance to
  • New Hampshire-
  • Massachusetts
  • border
  • (km)
  • Distance to
  • New Hampshire-
  • Maine border
  • (km)
  • Distance to
  • nearest neighboring state
  • major SO2 source
  • (km)
  • Neighboring
  • state source
  • 2014
  • emissions
  • (tpy)
  • Merrimack Station 143.6 44 46 89 (Mystic Station in Boston, Mass.) 910.4 Newington Station 41.3 25 <1 73 (S D Warren Co in Westbrook, Maine) 426.8 Schiller Station 262.6 25 <1 73 (S D Warren Co in Westbrook, Maine) 426.8 * CAMD data for 2017; see Table 4.  Data retrieved from 2014 NEI.

    Based on the modeling provided by New Hampshire and the reasoning presented above, EPA proposes to conclude that SO2 emissions from Merrimack Station, Schiller Station, and Newington Station do not have the potential to violate the 2010 SO2 NAAQS based on currently effective and federally-enforceable permit conditions.

    Monadnock Paper Mills Inc., APC Paper Company Inc., and Dartmouth College

    Regarding Monadnock Paper Mills, APC Paper Company Inc, and Dartmouth College, EPA does not have information at this time suggesting that either Massachusetts or Vermont is impacted by emissions from these sources or other emissions activity originating in New Hampshire in violation of section 110(a)(2)(D)(i)(I). EPA reviewed available information to assess whether these sources may result in such a violation. Specifically, as described below, EPA examined wind rose information, distances from state borders and from major sources in the adjacent states (if any), and the relative emission levels of these three sources.

    EPA examined wind roses for meteorological stations representative of the areas around these three other major sources in New Hampshire, i.e., Monadnock Paper Mills Inc., APC Paper Company Inc., and Dartmouth College.21 For the meteorological stations nearest to Monadnock Paper Mills Inc. and APC Paper Company Inc., the wind roses indicate the predominant winds to be away from the state border, as opposed to toward the state border which would be conducive to interstate transport. For Dartmouth College, the wind rose for a nearby meteorological station indicates a prevailing north-south wind pattern, i.e., along the state border with Vermont, as opposed to an east-west pattern that would be most conducive to interstate transport.

    21 The wind rose data are available in a memorandum to the docket for this action, which can be found on http://www.regulations.gov.

    Additionally, EPA also notes that there are no major SO2 sources in the adjacent states within 50 km of these three New Hampshire sources, which indicates that there are unlikely to be high SO2 concentrations in the adjacent state arising mostly from in-state sources to which these three New Hampshire sources are contributing. Furthermore, Monadnock Paper Mills Inc. is located approximately 30 km from the nearest state border, which indicates that the likelihood of high impacts in another state is extremely low. Finally, all three of these sources are in the range of 100-250 tpy, indicating that these sources have emissions only slightly above the threshold of 100 tpy used by EPA to identify sources for additional analysis. Based on this information, EPA is proposing to determine that emissions from these three sources in New Hampshire will not contribute significantly to nonattainment in Massachusetts or Vermont. These three sources are all at least 85 km from any part of Maine, so EPA is also proposing to determine that emissions from these three sources in New Hampshire will not contribute significantly to nonattainment in Maine.

    4. SIP-Approved Regulations Specific to SO2

    The State has provisions and regulations to limit SO2 emissions. Notably, the New Hampshire Revised Statutes Annotated (RSA) section 125-O, “Multiple Pollutant Reduction Program,” requires the reduction of mercury emissions by at least 80% from baseline mercury input beginning in July 2013 at Merrimack Station in Bow, New Hampshire. This state requirement resulted in the installation and operation of a flue gas desulfurization (FGD) unit at Merrimack Station, and the removal of SO2 occurs as a co-benefit of mercury removal with an FGD. New Hampshire permit TP-0008 contains enforceable conditions for the removal of SO2 by the FDG, and this permit was approved into the SIP as part of the State's Regional Haze SIP on August 22, 2012 (77 FR 50602). Additionally, New Hampshire issued permit TP-0189 in 2016 which incorporated a 7-boiler operating day average combined emission limit for Merrimack's two utility boilers of 0.39 lb/MMBtu as enforceable conditions of the permit. EPA approved these conditions from this permit into the SIP on June 5, 2018 (83 FR 25922) as part of New Hampshire's Nonattainment Plan for the Central New Hampshire Sulfur Dioxide Nonattainment Area.

    The State has SIP-approved regulations limiting the sulfur content in fuel. The current federally-enforceable fuel specifications include limits on the sulfur content of liquid fuel (oil), gaseous fuel (natural and manufactured gas), and solid fuel (coal) purchased or used for heat or power generation. Current federally-enforceable limits on liquid fuel (oil) are 0.4% sulfur by weight for number 2 oil, 1.0% sulfur by weight for number 4 oil, and 2.0% sulfur by weight for numbers 5 and 6 oil and crude oil (except in Coos County where the limit is 2.2% sulfur by weight). (As previously mentioned, a recent state law lowers these limits effective July 2018.) Limits on coal sulfur content include a maximum of 2.8 lb/MMBtu gross heat content for devices existing as of April 15, 1970, or 1.5 lb/MMBtu gross heat content for sources placed in operation after that date. See 40 CFR 52.1520(c), “EPA-Approved New Hampshire Regulations.”

    5. Other SIP-Approved or Federally-Enforceable Regulations

    In addition to the State's SIP-approved regulations, EPA observes that facilities in New Hampshire are also subject to the federal requirements contained in regulations such as the National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters. This regulation limits acid gases, and effectively also reduces SO2 emissions.

    6. Conclusion

    As discussed in more detail above, EPA has considered the following information in evaluating the State's satisfaction of the requirements of prong 1 of CAA section 110(a)(2)(D)(i)(I):

    (1) EPA has not identified any current air quality problems in nearby areas in the adjacent states (Maine, Massachusetts, and Vermont) relative to the 2010 SO2 NAAQS based on emissions trends or ambient monitoring data;

    (2) New Hampshire demonstrated using air dispersion modeling that permitted emissions from its three largest stationary source SO2 emitters, in combination with other nearby sources and background SO2 concentrations, are not expected to cause SO2 air quality violations in other states relative to the 2010 SO2 NAAQS;

    (3) consideration of available information on the only other major sources within 50 km of another state indicates that these sources are unlikely to contribute to NAAQS violations in other nearby states; and

    (4) current SIP provisions and other federal programs will effectively limit SO2 emissions from sources within New Hampshire.

    Based on the analysis provided by the State in its SIP submission and based on each of the factors listed above, EPA proposes to find that sources and other emissions activity within the State will not contribute significantly to nonattainment of the 2010 primary SO2 NAAQS in any other state.

    D. Prong 2 Analysis—Interference With Maintenance of the NAAQS

    Prong 2 of the good neighbor provision requires state implementation plans to prohibit emissions that will interfere with maintenance of a NAAQS in another state.

    Given our proposed conclusion that sources within New Hampshire are not contributing significantly to NAAQS violations in adjacent states because there are no NAAQS violations in the adjacent states, based on the consideration of the factors discussed earlier, EPA believes that a reasonable investigation as to whether sources or emissions activity originating within New Hampshire may interfere with its neighboring states' ability to maintain the NAAQS consists of evaluating whether emissions of sources in New Hampshire and the adjacent states are effectively prevented from increasing in the future.

    The State's SIP submittal provides statewide SO2 emissions trends for multiple source categories. EPA reviewed 2005 and 2014 NEI data to confirm the State's assessment of trends, and these values are summarized below in Table 10. EPA also considered emissions trend information from the states neighboring New Hampshire, as presented in Table 11.

    Table 10—SO2 Emissions in Tons per Year (tpy) and Percent Change in Emissions Between 2005 and 2014 for New Hampshire by Source Category Data Category * 2005 2014 Percent change in emissions Non-electric generating unit point sources 5,571 2,230 −60 Electric generating unit point sources 51,461 2,642 −95 Nonpoint sources 4,275 3,296 −23 Nonroad mobile sources 819 257 −69 Onroad mobile sources 630 134 −79 Total 62,757 8,558 −86 * Excludes emissions from wild fires. Table 11—SO2 Emissions Trends From 2002 to 2014 for States Neighboring New Hampshire, in Tons per Year State 2002 2005 2008 2011 2014 SO2 emissions
  • change
  • 2002-2014
  • (%)
  • Maine 33,585 32,114 23,386 15,555 11,276 −66 Massachusetts 156,778 144,140 76,263 51,372 18,904 −88 Vermont 4,988 4,682 4,052 3,449 1,511 −70 Data retrieved from the 2002, 2005, 2008, 2011, and 2014 NEI datasets.

    The data show statewide SO2 emissions have decreased substantially over time. This trend of decreasing SO2 emissions does not by itself demonstrate that areas in New Hampshire and neighboring states will not have issues maintaining the 2010 SO2 NAAQS. However, as a piece of this weight of evidence analysis for prong 2, it provides further indication (when considered alongside low monitor values in neighboring states) that such maintenance issues are unlikely. Since actual SO2 emissions from sources in New Hampshire have decreased overall between 2005 and 2014, because these decreases are substantial in every source category, and because these decreases are largely the result of state regulatory actions, EPA does not expect current or future emissions from New Hampshire to interfere with neighboring states' ability to maintain the 2010 SO2 NAAQS.

    SO2 emissions from point and nonpoint sources combusting fuel oil in New Hampshire will not increase to historical levels and in fact will be lower due to a provision of state law, RSA 125 C:10-d. As of July 2018, fuel oil sold in the State is subject to stricter fuel sulfur limits, and New Hampshire plans to incorporate these limits into the state regulations Env-1600, entitled “Fuel Specifications.” The state law limits the sulfur content in fuel to 0.0015% by weight for number 2 home heating oil, 0.25% by weight for number 4 oil, and 0.5% by weight for number 5 and 6 oils as of July 1, 2018. These limits decrease current SO2 emissions from point or nonpoint sources combusting fuel oil.

    Lastly, any new large sources of SO2 emissions will be addressed by New Hampshire's SIP-approved new source review (NSR) and prevention of significant deterioration (PSD) program. New minor sources of SO2 emissions will be addressed by the State's minor new source review permit program. The permitting regulations contained within these programs are expected to ensure that ambient concentrations of SO2 in Maine, Massachusetts, and Vermont do not exceed the NAAQS as a result of new facility construction or modification of sources in New Hampshire. The State's SIP-approved NSR and PSD programs are contained in Env-A 600, entitled “Statewide Permit System,” under sections 618 and 619, respectively, as approved in the Federal Register on September 25, 2015 (80 FR 57722). These regulations ensure that SO2 emissions due to new facility construction or modifications at existing facilities will not adversely impact air quality in New Hampshire or in neighboring states.

    In conclusion, for interstate transport prong 2, EPA has incorporated additional information into our evaluation of New Hampshire's submission. In doing so, EPA reviewed information about emission trends in Maine, Massachusetts, and Vermont, as well as the technical information considered for interstate transport prong 1. We find that the combination of the absence of current NAAQS violations in the neighboring states, the large distances between cross-state SO2 sources, the downward trend in SO2 emissions from New Hampshire and neighboring states, more stringent limits on fuel sulfur content, and state measures that prevent new facility construction or modification in New Hampshire from causing SO2 exceedances in downwind states, indicates no interference with maintenance of the 2010 SO2 NAAQS from New Hampshire. Accordingly, we propose to determine that New Hampshire SO2 emission sources will not interfere with maintenance of the 2010 SO2 NAAQS in any other state, per the requirements of CAA section 110(a)(2)(D)(i)(I).

    V. Proposed Action

    In light of the above analyses, EPA is proposing to approve New Hampshire's June 16, 2017 infrastructure submittal for the 2010 SO2 NAAQS as it pertains to section 110(a)(2)(D)(i)(I) of the CAA. EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register.

    VI. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference New Hampshire's June 16, 2017 SIP submittal, entitled “Amendment to New Hampshire 2010 Sulfur Dioxide NAAQS Infrastructure SIP to Address the Good Neighbor Requirements of Clean Air Act Section 110(a)(2)(D)(i)(I),” described in section II of this preamble. EPA has made, and will continue to make, this document generally available electronically through http://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).

    VII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed 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 proposed 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);

    • This action is not expected to be 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 (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 Clean Air Act; and

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Sulfur oxides.

    Dated: September 20, 2018. Alexandra Dunn, Regional Administrator, EPA Region 1.
    [FR Doc. 2018-21006 Filed 9-26-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA-R05-OAR-2018-0588; FRL-9984-57—Region 5] Air Plan Approval; Minnesota; Commercial and Industrial Solid Waste Incineration Units and Other Solid Waste Incineration Units Negative Declarations for Designated Facilities and Pollutants AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is notifying the public that we have received negative declarations from Minnesota pertaining to the presence of Commercial and Industrial Solid Waste Incineration (CISWI) units and Other Solid Waste Incineration (OSWI) units in Minnesota. The Minnesota Pollution Control Agency (MPCA) submitted its CISWI negative declaration by letter dated February 3, 2017, and its OSWI negative declaration by letter dated June 21, 2017. MPCA notified EPA in its negative declaration letters that there are no CISWI or OSWI units subject to the requirements of the Clean Air Act (Act) currently operating in Minnesota.

    DATES:

    Comments must be received on or before October 29, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2018-0588, at http://www.regulations.gov or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Margaret Sieffert, Environmental Engineer, Environmental Protection Agency, Region 5, 77 West Jackson Boulevard (AT-18J), Chicago, Illinois 60604, (312) 353-1151, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

    I. Background A. Sections 111 and 129 of the Act B. Commercial and Industrial Solid Waste Incineration Units C. Other Solid Waste Incineration Units II. Negative Declarations and EPA Analysis A. Commercial and Industrial Solid Waste Incineration Units B. Other Solid Waste Incineration Units III. Proposed EPA Action IV. Statutory and Executive Order Reviews I. Background A. Sections 111 and 129 of the Act

    Sections 111 and 129 of the Act set forth EPA's statutory authority for regulating new and existing solid waste incineration units. Section 111(b) directs EPA to publish and periodically revise a list of categories of stationary sources which cause or significantly contribute to air pollution, and to establish new source performance standards (NSPS) within these categories. Section 111(d) grants EPA statutory authority to require states to submit to the agency implementation plans for establishing performance standards applicable to existing sources belonging to those categories established in section 111(b).

    Section 111(d) of the Act requires states to submit plans to control certain pollutants (designated pollutants) at existing facilities (designated facilities) whenever standards of performance have been established under section 111(b) for new sources of a source category and EPA has established emission guidelines (EGs) for designated facilities. 40 CFR 60.21(a) and (b). Section 129 of the Act is specific to solid waste combustion, and requires EPA to establish performance standards pursuant to section 111 of the Act for each category of solid waste incineration units, which includes the categories addressed in today's action.

    The regulations at 40 CFR part 60, subpart B, contain general provisions applicable to the adoption and submittal of state plans for the control of designated pollutants from designated facilities under section 111(d) of the Act, including those pollutants and facilities designated pursuant to section 129 of the Act. Further, 40 CFR part 62, subpart A, provides the procedural framework by which EPA will approve or disapprove such plans submitted by a state. If a state fails to submit a satisfactory plan, the Act provides EPA with the authority to prescribe a plan for regulating the designated pollutants at the designated facilities. The EPA prescribed plan, also known as a Federal plan, is used to regulate designated facilities when there is no EPA approved state-specific plan. Further, if there are no designated facilities within a state's jurisdiction, the state may submit to EPA a letter of certification to that effect (referred to as a “negative declaration”) in lieu of a state plan to satisfy the state's obligation. 40 CFR 60.23(b) and 62.06. The negative declaration exempts the state from the requirement to submit a state plan for the designated pollutants and facilities. Therefore, if a state submits a negative declaration for a category of solid waste incineration units, the state is not required to submit a state plan for that source category.

    B. Commercial and Industrial Solid Waste Incineration Units

    On December 1, 2000, EPA promulgated new source performance standards for new CISWI units, 40 CFR part 60, subpart CCCC, and EGs for existing CISWI units, 40 CFR part 60, subpart DDDD. 65 FR 75338. On March 21, 2011, EPA, after voluntarily remanding the 2000 CISWI standards and EGs, promulgated final CISWI standards and EGs. 76 FR 15704. Correspondingly, on the same date, EPA promulgated a final rule under the Resource Conservation and Recovery Act (RCRA) to identify which non-hazardous secondary materials, when used as fuels or ingredients in combustion units, are “solid wastes.” 76 FR 15456; see 40 CFR part 241, Solid Wastes Used as Fuels or Ingredients in Combustion Units (also known as the “Non-Hazardous Secondary Material Rule”). The identification of solid waste in the Non-Hazardous Secondary Material Rule is used to determine whether a combustion unit is required to meet the emissions standards for solid waste incineration units issued under sections 111 and 129 of the Act, or meet the emissions standards for commercial, industrial, and institutional boilers issued under section 112 of the Act. EPA subsequently promulgated amendments to both rules on February 7, 2013: Commercial and Industrial Solid Waste Incineration Units: Reconsideration and Final Amendments; Non-Hazardous Secondary Materials That Are Solid Waste; Final Rule. 78 FR 9112. Reconsideration of certain aspects of the final CISWI rule resulted in minor amendments. 81 FR 40956 (June 23, 2016). Pursuant to sections 111(d) and 129 of the Act and 40 CFR part 60, subpart B, states were required to revise their state plans for existing CISWI units to comply with the amended regulations.

    A CISWI unit is defined in 40 CFR 60.2875 as any distinct operating unit of any commercial or industrial facility that combusts, or has combusted in the preceding 6 months, any solid waste, as the term “solid waste” is defined in the Non-Hazardous Secondary Material Rule. A state plan must address all existing CISWI units that commenced construction on or before June 4, 2010, or for which modification or reconstruction was commenced on or before August 7, 2013, with limited exceptions as provided in 40 CFR 60.2555. 40 CFR 60.2550.

    However, as discussed above, if there are no existing designated facilities in a state, the state may submit a negative declaration in lieu of a state plan. EPA will provide public notice of receipt of a state's negative declaration with respect to that solid waste incineration unit category. 40 CFR 60.2530. If any unit of a solid waste incineration category is subsequently identified in a state for which a negative declaration had been submitted, the Federal plan implementing the EGs for that source category would apply to that unit. In the case of a CISWI unit, subpart DDDD would automatically apply to that CISWI unit until a state plan is approved. 40 CFR 60.2530.

    C. Other Solid Waste Incineration Units

    EPA promulgated new source performance standards and EGs for OSWIs on December 16, 2005. 70 FR 74870. The standards and EGs are codified at 40 CFR part 60, subparts EEEE and FFFF, respectively. Thus, states were required to submit plans for existing OSWIs pursuant to sections 111(d) and 129 of the Act and 40 CFR part 60, subpart B.

    An OSWI unit is defined in 40 CFR 60.3078 as a very small municipal waste combustor and institutional waste incinerator. The designated facilities to which the original EGs applied to are existing OSWI units that commenced construction on or before December 9, 2004.

    II. Negative Declarations and EPA Analysis A. Commercial and Industrial Solid Waste Incineration Units

    On February 3, 2017, MPCA submitted its CISWI negative declaration, in which MPCA certified that there are no existing CISWI units currently operating in Minnesota. Two non-waste determinations under the Non-Hazardous Secondary Materials Rule were critical elements of MPCA's February 3, 2017 negative declaration letter. Specifically, on September 25, 2015, in response to a petition to Region 5, the Regional Administrator made a non-waste determination under the Non-Hazardous Secondary Materials Rule provision at 40 CFR 241.3(c), with regard to the poultry litter burned as fuel in the boiler at the Benson Power, LLC power plant in Benson, Minnesota. The Regional Administrator determined that the poultry litter at issue was not a solid waste. Further, by letter dated October 15, 2015, ReConserve of Minnesota Inc., d/b/a Endres Processing, Rosemount, Minnesota, certified to Region 5 that it had made a non-waste self-determination under the Non-Hazardous Secondary Materials Rule provision at 40 CFR 241.3(b), with regard to the refuse derived fuel that it processes, as defined at 40 CFR 241.2, and which meets the legitimacy criteria for fuels at 40 CFR 241.3(d)(1), that the refuse derived fuel is not a solid waste. Correspondingly, by technical review document dated February 23, 2018, Region 5's Land and Chemicals Division reviewed and confirmed the non-waste self-determination. EPA's Office of Resource Conservation and Recovery correspondingly concurred with the Region's review and conclusion.

    B. Other Solid Waste Incineration Units

    On June 21, 2017, MPCA submitted its OSWI negative declaration, in which it certified that there are no existing OSWI units currently operating in Minnesota.

    III. Proposed EPA Action

    EPA is notifying the public of EPA's receipt of MPCA's negative declarations for both CISWI and OSWI facilities and that EPA is amending 40 CFR part 62 to reflect both negative declarations. For CISWI, EPA received the negative declaration on February 3, 2017, and for OSWI, EPA received the negative declaration on June 21, 2017.

    IV. Statutory and Executive Order Reviews General Requirements

    This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and therefore is not subject to review by the Office of Management and Budget under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because this action is not significant under E.O. 12866. This action merely approves state law as meeting Federal requirements and merely notifies the public of EPA's receipt of negative declarations from an air pollution control agency without any existing CISWI or OSWI units in its state. This action imposes no requirements beyond those imposed by the state. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule pertains to pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely provides notice of receipt of negative declarations, and does not alter the relationship or the distribution of power and responsibilities established in the Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it just notifying the public regarding receipt of the negative declarations.

    In reviewing state plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. With regard to negative declarations for designated facilities received by EPA from states, EPA's role is to notify the public of the receipt of such negative declarations and revise 40 CFR part 62 accordingly. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state plan submission or negative declaration for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state plan or negative declaration submission, to use VCS in place of a state plan or negative declaration submission that otherwise satisfies the provisions of the Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

    List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, Air pollution control, Commercial and industrial solid waste incinerators, Intergovernmental relations, Other solid waste incinerator units, Reporting and recordkeeping requirements.

    Dated: September 13, 2018. Cathy Stepp, Regional Administrator, Region 5.
    [FR Doc. 2018-20967 Filed 9-26-18; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 22 [WT Docket No. 12-40; Report No. 3102] Petition for Reconsideration of Action in Rulemaking Proceeding AGENCY:

    Federal Communications Commission.

    ACTION:

    Petition for reconsideration.

    SUMMARY:

    A Petition for Reconsideration (Petition) has been filed in the Commission's Rulemaking proceeding by Kenneth E. Hardman, on behalf of Critical Messaging Association.

    DATES:

    Oppositions to the Petition must be filed on or before October 12, 2018. Replies to an opposition must be filed on or before October 22, 2018.

    ADDRESSES:

    Federal Communications Commission, 445 12th Street SW, Washington, DC 20554.

    FOR FURTHER INFORMATION CONTACT:

    Nina Shafran, Wireless Telecommunications Bureau, at: (202) 418-2781; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's document, Report No. 3102, released September 10, 2018. The full text of the Petition is available for viewing and copying at the FCC Reference Information Center, 445 12th Street SW, Room CY-A257, Washington, DC 20554. It also may be accessed online via the Commission's Electronic Comment Filing System at: http://apps.fcc.gov/ecfs/. The Commission will not send a Congressional Review Act (CRA) submission to Congress or the Government Accountability Office pursuant to the CRA, 5.U.S.C. 801(a)(1)(A), because no rules are being adopted by the Commission.

    Subject: Amendment of parts 1 and 22 of the Commission's Rules with Regard to the Cellular Service, Including Changes in Licensing of Unserved Area, FCC 18-92, published at 83 FR 37760, August 2, 2018, in WT Docket No. 12-40. This document is being published pursuant to 47 CFR 1.429(e). See also 47 CFR 1.4(b)(1) and 1.429(f), (g).

    Number of Petitions Filed: 1.

    Federal Communications Commission. Marlene Dortch, Secretary, <E T="03">Office of the Secretary.</E>
    [FR Doc. 2018-20677 Filed 9-26-18; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 387 [Docket No. FMCSA-2016-0102] RIN 2126-AC10 Broker and Freight Forwarder Financial Responsibility AGENCY:

    Federal Motor Carrier Safety Administration (FMCSA), DOT.

    ACTION:

    Advance notice of proposed rulemaking (ANPRM); request for comments.

    SUMMARY:

    FMCSA announces that it is initiating rulemaking action pertaining to the implementation of the Moving Ahead for Progress in the 21st Century Act (MAP-21). MAP-21 raised the financial security amount for brokers to $75,000 and, for the first time, established financial security requirements for freight forwarders. In this ANPRM, the Agency is considering eight separate areas: Group surety bonds/trust funds, assets readily available, immediate suspension of broker/freight forwarder operating authority, surety or trust responsibilities in cases of broker/freight forwarder financial failure or insolvency, enforcement authority, entities eligible to provide trust funds for form BMC-85 trust fund filings, Form BMC-84 and BMC-85 trust fund revisions, and household goods (HHG). The Agency seeks comments and data in response to this ANPRM.

    DATES:

    Comments on this document must be received on or before November 26, 2018.

    ADDRESSES:

    You may submit comments bearing the Federal Docket Management System Docket ID (FMCSA-2016-0102) using any of the following methods:

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

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

    Hand Delivery or Courier: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal holidays.

    Fax: 1-202-493-2251.

    Confidential Business Information (CBI): Submissions containing CBI and marked in accordance with 49 CFR 389.9 must be sent to Mr. Brian Dahlin, Chief, Regulatory Evaluation Division, 1200 New Jersey Avenue SE, Washington, DC 20590.

    Each submission must include the Agency name and the docket number for this document. Note that DOT posts all comments received without change, except those marked in accordance with 49 CFR 389.9, to www.regulations.gov, including any personal information included in a comment. Please see the Privacy Act heading below.

    Docket: For access to the docket to read background documents or comments, go to www.regulations.gov at any time or visit Room W12-140 on the ground level of the West Building, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The online Federal document management system is available 24 hours each day, 365 days each year. If you would like acknowledgment that the Agency received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments online.

    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

    FOR FURTHER INFORMATION CONTACT:

    For information concerning this ANPRM, contact Mr. Jeff Secrist, Office of Registration and Safety Information, at (202) 385-2367, or by email at [email protected], or Mr. Kenneth Riddle, Office of Registration and Safety Information, at (202) 366-9616 or by email at [email protected]

    If you have questions on viewing or submitting material to the docket, contact Docket Services at 202-366-9826.

    SUPPLEMENTARY INFORMATION:

    This advance notice of proposed rulemaking (ANPRM) is organized as follows:

    I. Public Participation and Request for Comments A. Submitting Comments B. Viewing Comments and Documents II. Legal Basis III. Background A. 2013 Omnibus Final Rule Increased Financial Security Amount B. Other Broker and Freight Forwarder Requirements C. 2014 Advance Notice of Proposed Rulemaking D. 2016 Public Informal Roundtable Discussion IV. New MAP-21, Sec. 32918, Advance Notice of Proposed Rulemaking A. Two Key Issues Stakeholders Want Addressed B. Eight Areas Being Considered 1. Group Surety Bonds/Trust Funds 2. Assets Readily Available 3. Immediate Suspension of Operating Authority 4. Surety or Trust Responsibilities in Cases of Broker/Freight Forwarder Financial Failure or Insolvency 5. Enforcement Authority 6. Eligible BMC-85 Trust Funds 7. BMC-84 and BMC-85 Form Revisions 8. Household Goods V. Rulemaking Analyses A. E.O. 12866 Regulatory Planning and Review and DOT Regulatory Policies and Procedures B. E.O. 13771 Reducing Regulation and Controlling Regulatory Costs C. Small Business Regulatory and Enforcement Fairness Act VI. Comments Sought I. Public Participation and Request for Comments A. Submitting Comments

    If you submit a comment, please include the docket number for this document (FMCSA-2016-0102), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these methods. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that the Agency can contact you if it has questions regarding your submission.

    To submit your comment online, go to http://www.regulations.gov and put the docket number, “FMCSA-2016-0102” in the “Keyword” box, and click “Search”. When the new screen appears, click on the “Comment Now!” button and type your comment into the text box in the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.

    Confidential Business Information

    Confidential Business Information (CBI) is commercial or financial information that is customarily not made available to the general public by the submitter. Under the Freedom of Information Act, CBI is eligible for protection from public disclosure. If you have CBI that is relevant or responsive to this document, it is important that you clearly designate the submitted comments as CBI. Accordingly, please mark each page of your submission as “confidential” or “CBI.” Submissions designated as CBI and meeting the definition noted above will not be placed in the public docket of this document. Submissions containing CBI should be sent to Mr. Brian Dahlin at the address shown above under the heading ADDRESSES. Any commentary that FMCSA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

    FMCSA will consider all comments and materials received during the comment period.

    B. Viewing Comments and Documents

    To view comments, go to http://www.regulations.gov and insert the docket number, “FMCSA-2016-0102” in the “Keyword” box and click “Search”. Next, click the “Open Docket Folder” button and choose the document listed to review. If you do not have access to the internet, you may view the docket by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    II. Legal Basis

    In 2012, Congress enacted the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141, 126 Stat. 405, 822), specifically, section 32918 which contained requirements for the financial security of brokers and freight forwarders that amended 49 U.S.C. 13906.

    III. Background A. 2013 Omnibus Final Rule Increased Financial Security Amount

    Section 32918 raised the financial security amount for brokers to $75,000 and, for the first time, established financial security requirements for freight forwarders. A “broker” is a “person . . . that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” 49 U.S.C. 13102(2); see also 49 CFR 371.2(a)(FMCSA regulatory definition of “Broker”). A “freight forwarder” is defined as “a person holding itself out to the general public (other than as a pipeline, rail, motor, or water carrier) to provide transportation of property for compensation and in the ordinary course of its business” (1) performs certain services including assembly, break-bulk or distribution services, (2) “assumes responsibility for the transportation from the place of receipt to the place of destination” and (3) “uses for any part of the transportation a carrier” such as a motor carrier. 49 U.S.C. 13102(8); see also 49 CFR 387.401(a)(FMCSA regulatory definition of freight forwarder).

    FMCSA implemented those MAP-21 financial responsibility limit requirements in a 2013 Omnibus rulemaking, 78 FR 60226 (Oct. 1, 2013), codified at 49 CFR 387.307(a) (brokers) and 49 CFR 387.403T(c) and 387.405 (freight forwarders). Under the existing regulations, brokers and freight forwarders must have in effect a surety bond or trust fund in the amount of $75,000. As a condition to obtain registration, brokers and freight forwarders must provide evidence of the surety bond by filing a form BMC-84 or the trust fund by filing a form BMC-85 with the Agency.

    B. Other Broker and Freight Forwarder Requirements

    In addition to increasing and extending the minimum financial responsibility requirements, MAP-21 also gave FMCSA the authority to accept a “group surety bond, trust fund, or other financial security” as evidence of financial responsibility (49 U.S.C. 13906(b)(1)(B), (c)(1)(B)). MAP-21 authorized FMCSA to accept trust funds or other financial security only if they consist of “assets readily available to pay claims without resort to personal guarantees or collection of pledged accounts receivable” (49 U.S.C. 13906(b)(1)(C), (c)(1)(D)). The statute also clarified the types of claims that broker and freight forwarder surety bonds/trust funds are designed to cover (49 U.S.C. 13906(b)(2)(A), (c)(2)(A)).

    Section 32918 of MAP-21 requires the Agency to “immediately suspend” broker/freight forwarder operating authority registration if the “available financial security” of the broker or freight forwarder falls below $75,000 (49 U.S.C. 13906(b)(5), (c)(6)), and also established claims payment procedures in the event of broker or freight forwarder “financial failure or insolvency” (49 U.S.C. 13906(b)(6), (c)(7)). Additionally, MAP-21 gave FMCSA the authority to take direct enforcement action against surety providers, through court action, civil penalty proceedings or suspension of providers' ability to make financial security filings with the Agency (49 U.S.C. 13906(b)(7), (c)(8)). Finally, section 32918 clarified that the form of broker/freight forwarder financial responsibility and who provides such security must be approved by FMCSA (49 U.S.C. 13906(b)(1)(A), (c)(1)(A)).1

    1 Compare current 49 U.S.C. 13906(b)(1)(A) (“The Secretary may register a person as a broker . . . only if the person files with the Secretary a surety bond, proof of trust fund . . . in a form and amount, and from a provider, determined by the Secretary to be adequate to ensure financial responsibility”) with previous 13906(b) (“The Secretary may register a person as a broker under section 13904 only if the person files with the Secretary a bond, insurance policy or other type of security approved by the Secretary to ensure that the transportation for which a broker arranges is provided.”).

    C. 2014 Advance Notice of Proposed Rulemaking

    The Agency moved a step further toward implementation of section 32918 in its 2014 Advance Notice of Proposed Rulemaking (2014 ANPRM) pertaining to Financial Responsibility for Motor Carriers, Freight Forwarders and Brokers. 79 FR 70839 (Nov. 28, 2014).2 Although that 2014 ANPRM focused primarily on motor carrier minimum financial responsibility limits, the Agency did ask three questions pertaining to BMC-84/85 filers. Specifically, the Agency sought information pertaining to BMC-85 providers' posting of claims information on their websites, the public notification by BMC-85 providers in the event of broker or freight forwarder financial failure, and the possible need for the BMC-84/85 forms to be adjusted to provide claims handling instructions to the surety or trustee. 79 FR at 70843. The Agency received several comments in response to its request.3 After reviewing all public comments to the ANPRM, FMCSA determined that it had insufficient data or information to support moving forward with a rulemaking proposal, and withdrew the 2014 ANPRM on June 5, 2017. See 82 FR 25753.

    2 On May 9, 2014, the Transportation Intermediaries Association (TIA) filed with FMCSA a “Petition for Rulemaking: Requirements for BMC-84 Bond and BMC-85 Trust Providers.” In its petition, TIA sought to require that trust fund payments be made public, sought “clarification of BMC-85 trust deposits,” and sought “clarification of when a BMC-84 bond or BMC-85 trust may make payments,” among other issues. The Agency met with TIA to discuss its petition in March 2015, and TIA submitted a March 30, 2015, follow-up letter in response to that meeting. FMCSA believes that the issuance of this ANPRM will allow TIA to raise concerns related to its Petition for Rulemaking in the course of this proceeding and accordingly is denying the TIA petition as moot.

    3See Comments of: M. Thomas Ruke, Jr., Docket No. FMCSA-2014-0211-1668, at 3-4 (Feb. 24, 2015); Avalon Risk Management Insurance Agency, LLC., Docket No. FMCSA-2014-0211-1675, at 4-9 (Feb. 25, 2015); Roanoke Insurance Group, Inc., Docket No. FMCSA-2014-0211-1997, at 1-3 (Mar. 2, 2015); Transportation Intermediaries Association, Docket No. FMCSA-2014-0211-2033, at 5-10 (Mar. 2, 2015); Owner-Operator Independent Drivers Association, Inc. and OOIDA Risk Retention Group, Inc., Docket No. FMCSA-2014-0211-2148, at 51-53 (Mar. 3, 2015).

    D. 2016 Public Informal Roundtable Discussion

    On April 27, 2016, the Agency announced that it would host an informal roundtable discussion pertaining to broker and freight forwarder financial responsibility, 81 FR 24935 (Apr. 27, 2016). In its April 27 meeting notice, FMCSA sought comment on denials of claims by BMC-85 providers, the current and prospective composition of BMC-85 trust fund assets, non-FMCSA regulation of BMC-85 providers, actions that FMCSA could take to ensure that motor carriers and shippers can collect on legitimate claims filed with BMC-85 providers, and issues associated with the financial stability of BMC-85 providers. 81 FR at 24937. The Agency received a total of 29 comments in response to the roundtable discussion notice.

    On May 20, 2016, the Agency held the full-day informal roundtable discussion at DOT Headquarters in Washington, DC. Stakeholders from around the country attended the event, along with members of FMCSA's Senior Leadership and staff. Public participants included representatives from the BMC-84 surety bond and BMC-85 trust fund industries, broker and freight forwarder trade associations, and motor carrier trade associations. On October 20, 2016, the Agency placed notes summarizing the public meeting and a list of the meeting attendees in this docket.4

    4 FMCSA-2016-0102-0030 (Oct. 20, 2016).

    IV. New MAP-21, Sec. 32918, Advance Notice of Proposed Rulemaking

    After careful consideration of the public comments the Agency received in response to the 2014 ANPRM and the April 27, 2016 notice, TIA's 2014 Petition for Rulemaking, and the May 20 Roundtable itself, FMCSA has decided to initiate a second rulemaking pertaining to MAP-21 section 32918.5 Accordingly, the Agency is issuing this ANPRM to signal its preliminary intentions in connection with such a rulemaking and to seek additional data or information to support moving forward with a rulemaking proposal. As noted above, this ANPRM will render moot TIA's May 9, 2014 Petition for Rulemaking.

    5 This initiative will not pertain to increasing motor carrier minimum financial responsibility limits pursuant to 49 U.S.C. 31138-31139.

    A. Two Key Issues Stakeholders Want Addressed

    Discussions at the May 20, 2016, informal roundtable revealed that stakeholders are focused on two key issues pertaining to broker/freight forwarder financial responsibility. First, there was widespread agreement among participants that a significant cause of non-payment of motor carriers by brokers or freight forwarders 6 is the ability of brokers and freight forwarders to continue to operate for 30 days after the surety or trust fund provider notifies FMCSA that it is cancelling the broker's or freight forwarder's financial responsibility. FMCSA does not revoke the broker or freight forwarder's operating authority registration pursuant to 49 U.S.C. 13905(e) until that 30-day period has lapsed. In contrast, the MAP-21 provisions pertaining to immediate suspension of broker or freight forwarder operating authority when the “available financial security” falls below $75,000 (49 U.S.C. 13906(b)(5), (c)(6)), appear to be designed to address this lag between surety/trust fund notice of cancellation and removal of the broker/freight forwarders' ability to operate lawfully. The Agency is therefore considering adopting a rule to suspend immediately any broker's/freight forwarder's operating authority when there is an actual drawdown on the bond/trust fund below the $75,000 minimum requirement or when the broker/freight forwarder does not respond after the surety/trust fund provider provides notice of a valid claim.

    6 The stakeholders indicated that few freight forwarders still operate in the industry and that the primary issues being addressed pertain to brokers, not freight forwarders. FMCSA records indicate there were 1,499 active freight forwarders as of August 2017.

    Second, at the roundtable discussion, certain stakeholders made it clear to the Agency that there is concern about the financial wherewithal of BMC-85 trust providers, and the sufficiency of the assets within those funds to pay legitimate claims by motor carriers or shippers. On the other hand, representatives of the BMC-85 trust fund provider community, both at the roundtable discussion and in comments filed after the meeting,7 asserted that, with one limited exception,8 no evidence has been produced showing that BMC-85 providers have failed to pay legitimate claims made on their trusts. While FMCSA acknowledges the BMC-85 providers' position, the Agency must implement the express will of Congress as reflected in the requirement at 49 U.S.C. 13906(b)(1)(C), (c)(1)(D) that trust funds consist of “assets readily available to pay claims without resort to personal guarantees or collection of pledged accounts receivable.”

    7See Comments of: John B. Gilding, Docket No. FMCSA-2016-0102-0021, at 1 (May 31, 2016); Transport Financial Services, LLC, Docket No. FMCSA-2016-0102-0027, at 2-3 (June 20, 2016); Liberty National Financial Corp., Docket No. FMCSA-2016-0102-0029, at 1 (June 28, 2016).

    8 According to certain stakeholders, Oasis Capital, Inc. (Oasis), a BMC-85 trust fund provider, failed to pay claims due to criminal activity. FMCSA revoked Oasis's authorization to file BMC-85 trust funds on behalf of brokers in 2010, and the Agency required those brokers utilizing Oasis BMC-85s as evidence of financial responsibility to file new BMC-84s or BMC-85s or face loss of their operating authority. Bonnie Warren, Oasis's president, ultimately pled guilty to wire fraud in connection with Oasis's conduct, and the court imposed a sentence that included home confinement and other sanctions. https://www.oig.dot.gov/library-item/32968.

    While the Agency always welcomes input on its implementation of statutory mandates, as evidenced by the frank, open, and robust discussions at the May 20, 2016 roundtable, FMCSA's primary mission remains the promotion of motor carrier safety. 49 U.S.C. 113(b). Accordingly, in its implementation of section 32918, FMCSA must avoid unnecessary diversion of scarce resources away from critical safety functions. FMCSA's discussion of approaches in today's ANPRM reflects that statutory and operational reality, and the Agency requests that stakeholders consider such constraints in whatever comments they provide in response to this document.

    B. Eight Areas Being Considered

    After careful consideration, the Agency has decided to focus on eight core areas in this ANPRM: (1) Group surety bonds/trust funds, (2) assets readily available, (3) immediate suspension of broker/freight forwarder operating authority, (4) surety or trust responsibilities in cases of broker/freight forwarder financial failure or insolvency, (5) enforcement authority, (6) entities eligible to provide trust funds for BMC-85 filings, (7) BMC-84 and BMC-85 revisions and (8) HHG.9 The following discussion addresses each of these in turn.

    9 While HHG broker/freight forwarder financial responsibility falls within the scope of MAP-21 Section 32918's new broker/freight forwarder financial security requirements, the Agency has previously recognized that HHG broker financial security as distinct from other property broker financial security. See Brokers of Household Goods Transportation by Motor Vehicle, 75 FR 72987 (Nov. 29, 2010), in which the Agency increased the broker bond/trust fund amount for HHG brokers only, from $10,000 to $25,000. Accordingly, in this ANPRM regarding broker/freight forwarder financial responsibility, the Agency announces it is considering changes specific to HHG broker/freight forwarder financial responsibility and seeks related specific information.

    1. Group Surety Bonds/Trust Funds

    MAP-21 section 32918 authorizes, but does not require, the Agency to accept group surety bonds or trust funds on behalf of brokers or freight forwarders to meet their financial responsibility requirements. 49 U.S.C. 13906(b)(1)(B) and 13906(c)(1)(B). In Registration and Financial Security Requirements for Brokers of Property and Freight Forwarders, 78 FR 54720 (Sep. 5, 2013), the Agency stated that it would not be accepting group instruments at that time. 78 FR at 54721. The Agency indicated it would re-examine the issue, however.

    While the term “group surety bond” does not appear to be commonly used, the Agency has identified and examined a group surety bond provision within the Federal Maritime Commission (FMC) regulations. 46 CFR 515.21. FMC regulates Ocean Transportation Intermediaries (OTIs), consisting of Non-Vessel Operating Common Carriers (NVOCCs) (similar to FMCSA-regulated freight forwarders), and freight forwarders (similar to FMCSA-regulated brokers). These OTIs are required to submit evidence of financial responsibility to FMC and can submit group surety bonds as evidence of such financial responsibility. In a group surety bond arrangement, OTI members pay a fee to belong to a group, which then provides the required surety bond for each member. FMC's group surety bond provision allows the group to establish financial responsibility in the amount required for each individual member or $3,000,000 in aggregate, whichever is less.

    FMCSA is concerned that monitoring whether group instruments comply with MAP-21 will impose a significant administrative burden on the Agency, potentially to the detriment of safety oversight, without providing a commensurate benefit for motor carriers and shippers, the intended beneficiaries of the surety bonds and trust funds. The benefit to these beneficiaries from group instruments likely would be unchanged, as the same total level of financial protection would still be required.

    Further, because FMCSA requires that a trust fund or surety bond cover each broker or freight forwarder for $75,000, the FMC surety bond requirement, with its $3 million cap, does not provide an adequate model for the Agency to ensure levels of financial security as contemplated by the statute. In addition, the Agency has been unable to locate any definition for group trust funds. Therefore, with no adequate model for group surety bonds or trusts funds, the Agency is not currently inclined to accept group sureties or trust funds. Before the Agency considers the matter of group surety or trust arrangements further for purposes of developing a notice of proposed rulemaking (NPRM) in this docket, we specifically seek comment on the definition of “group surety bond” or “group trust fund” and how the Agency could administer such a group surety or trust option given its limited resources.

    2. Assets Readily Available

    As noted above, Congress issued a clear mandate in MAP-21 that broker/freight forwarder trust funds must consist of “assets readily available to pay claims without resort to personal guarantees or collection of pledged accounts receivable.” 49 U.S.C. 13906(b)(1)(C), (c)(1)(D). The Agency is committed to adopting a definition of “assets readily available” that implements the will of Congress and is reasonable for the Agency to administer given its resource constraints.

    Stakeholders provided numerous comments on the definition of “assets readily available” at the roundtable discussion and in associated written comments. Avalon Risk Management Insurance Agency LLC (Avalon), an underwriter of BMC-84 bonds, suggested in its pre-roundtable comments that cash or certain irrevocable letters of credit issued by Federal Deposit Insurance Corporation (FDIC)-insured banks would satisfy the standard.10 The Surety & Fidelity Association of America (SFAA), also in pre-roundtable comments, looked to other federal law or regulation for a standard.11 In particular, SFAA cited Federal Acquisition Regulation (FAR) 28.204, which, according to SFAA, requires that financial security be provided in the form of United States government bonds or notes, a certified or cashier's check, an irrevocable letter of credit, or other options that are easily convertible into cash. SFAA's post-roundtable comment also recommended that $75,000 of broker assets need to be in trust funds.12 In post-roundtable comments, JW Surety Bonds, a company that issues BMC-84 surety bonds, argued for full funding of the trust with non-volatile liquid assets, including cash or an irrevocable letter of credit from an FDIC-insured bank.13

    10See Comments of Avalon Risk Management Insurance Agency LLC, Docket No. FMCSA-2016-0102-0014, at 3-4 (May 18, 2016).

    11See Comments of The Surety & Fidelity Association of America, Docket No. FMCSA-2016-0102-0011, at 2 (May 9, 2016).

    12See Comments of The Surety & Fidelity Association of America, Docket No. FMCSA-2016-0102-0022, at 2-3 (June 7, 2016).

    13See Comments of JW Surety Bonds, Docket No. FMCSA-2016-0102-0023, at 5, 8 (June 10, 2016).

    While FMCSA has heard from multiple representatives of the BMC-84 industry on an appropriate definition of “assets readily available,” it has heard little from the BMC-85 industry. We received only one comment, from the Chief Executive Officer of Pacific Financial Association, Inc. (Pacific Financial), the largest filer of BMC-85s with FMCSA. At the roundtable, Pacific Financial indicated that Congress clearly did not limit the term to cash only. It also suggested that if a trust purchased a bond to cover a $75,000 guarantee, such an arrangement could be sufficient.14 Pacific Financial also filed supplemental materials and pointed to their own “internal letter of credit” as a viable alternative.

    14See Broker and Freight Forwarder Financial Responsibility Roundtable Discussion Notes, Docket No. FMCSA-2016-0102-0030, at 6 (Oct. 20, 2016).

    After a careful analysis and with specific regard for Pacific Financial's comments, the Agency is currently considering proposing a definition of “assets readily available” to include cash or FMCSA-approved letters of credit.15 FMCSA is considering accepting letters of credit from FDIC-approved banks, but is also open to other options.

    15 Before MAP-21, the Agency signaled its view that broker trust funds must consist of cash. In describing a delayed effective date for the increase of the surety bond/trust fund requirement from $10,000 to $25,000 for HHG brokers in its 2010 HHG broker rulemaking, the Agency stated “for those household goods brokers using trust fund agreements, this should give sufficient time for these entities to raise the additional $15,000 of capital to place in escrow with their trust fund managers.” Brokers of Household Goods Transportation by Motor Vehicle. 75 FR 72987, 72992 (Nov. 29, 2010).

    The Agency solicits suggestions from the BMC-85 industry and others about how the Agency could accept letters of credit and other instruments that could meet the “assets readily available” standard without requiring significant oversight or evaluation that would divert scarce safety resources. The Agency also specifically seeks comment from the surety bond industry on that industry's capacity to meet the increased market demand if FMCSA were to adopt a cash-only standard for BMC-85 trust funds, which could potentially drive a significant segment of the broker/forwarder industry into surety bond coverage. Additionally, FMCSA seeks comment from the surety bond industry on the cost to brokers and freight forwarders of BMC-84 surety bonds.

    3. Immediate Suspension of Operating Authority

    MAP-21 section 32918 provides that “[FMCSA] shall immediately suspend the registration of a broker . . . if the available financial security of that person falls below [$75,000].” 49 U.S.C. 13906(b)(5); see also 49 U.S.C. 13906(c)(6) (substantively identical language for freight forwarders). Accordingly, to effectively implement these provisions, FMCSA first needs to determine when the “available financial security” of a broker/freight forwarder is below $75,000. At the roundtable discussion, the Owner-Operator Independent Drivers Association (OOIDA) indicated that as soon as a surety provides notice to a broker in connection with a claim and the broker does not respond to the notice, the broker's operating authority registration should be suspended.16 According to the Roanoke Insurance Group (Roanoke), a series of claims should trigger quicker suspension of the broker's operating authority.17 Roanoke also indicated that quicker suspension should occur where the broker does not respond to communications about the claim.18 In post-meeting comments, Liberty National Financial Corporation said a broker's failure to respond to a surety contact about a claim in 24 hours would be a reasonable trigger for suspension of the broker's authority.19

    16See Broker and Freight Forwarder Financial Responsibility Roundtable Discussion Notes, Docket No. FMCSA-2016-0102-0030, at 2 (Oct. 20, 2016).

    17Id. at 7.

    18Id.

    19See Comments of Liberty National Financial Corp., Docket No. FMCSA-2016-0102-0029, at 2 (June 28, 2016).

    The Agency is considering an approach where it would “immediately suspend” the authority of a broker or freight forwarder in one of two situations. First, it would suspend when it receives notice from the surety or trust fund provider that a drawdown/payout on the bond/trust has occurred, such that the available financial security is less than $75,000. The second situation would be where: (1) A surety/trust fund provider gives reasonable notice of a claim to the broker/freight forwarder, (2) the broker/freight forwarder does not respond, and (3) the surety/trust fund provider determines that the claim is valid and provides notice of these events to FMCSA. In this situation there often may be reason to conclude that, had the unpaid claim actually been paid, the remaining available financial security would have fallen below $75,000. FMCSA seeks comment on the appropriate cushion time for brokers or freight forwarders to respond to claims made to the guarantors, valid or otherwise. Such a grace period would seem to give firms adequate time to adjudicate claims and settlements internally, as well as price in the costs associated with any claims relating to contract noncompliance.

    Suspending broker/freight forwarder operating authority whenever a claim is filed against a broker/freight forwarder or its bond/trust would raise due process concerns, as the Agency would be prohibiting the broker/freight forwarder from lawfully operating, without affording the company a chance to respond. In continuing to develop information to inform an NPRM, the Agency will consider how it can “immediately suspend” broker/freight forwarder operating authority registration in a manner that is consistent with constitutional due process requirements, e.g., by providing an appropriate opportunity for post-deprivation review. FMCSA specifically invites comments responsive to this issue, including documented incidence of actual nonpayment that occurred after problem brokers or freight forwarder were not “immediately” suspended.

    4. Surety or Trust Responsibilities in Cases of Broker/Freight Forwarder Financial Failure or Insolvency

    Section 32918 requires sureties or trust fund providers to commence action to cancel broker or freight forwarder surety bonds or trust funds in the event of broker/freight forwarder “financial failure” or “insolvency.” 49 U.S.C. 13906(b)(6), (c)(7). Accordingly, to effectively implement this provision, the Agency needs to determine what “financial failure” or “insolvency” means. FMCSA has received public comments on these terms.

    In response to the 2014 financial responsibility ANPRM, Avalon indicated “financial failure or insolvency” should mean more than just “bankruptcy or a total disappearance of the principal, but also include a clear pattern of unresolved claims in a sufficient volume to constitute a constructive financial failure.” 20 Avalon reiterated those statements in its pre-roundtable discussion comments and added that “security providers should be allowed to respond in cases where there are three or more claims aggregating in excess of $25,000 which have remained unresolved for at least 30 days.” 21 SFAA, in its post-roundtable discussion letter, says a definition similar to Avalon's position is inadequate, as claims may not need to be paid.22 At the May 20, 2016, roundtable discussion, TIA said perhaps three or more claims aggregating to a certain amount could constitute a financial failure of the broker.23 The claims would have to remain unresolved for a certain amount of days. Avalon stated at the roundtable that financial failure could be established if “X” number of claims accrue in “Y” number of days.24

    20 Comments of Avalon Risk Management Insurance Agency LLC, Docket No. FMCSA-2014-0211-1675, at 8-9 (Feb. 25, 2015).

    21 Comments of Avalon Risk Management Insurance Agency LLC, Docket No. FMCSA-2016-0102-0014, at 6-7 (May 18, 2016).

    22See Comments of The Surety & Fidelity Association of America, Docket No. FMCSA-2016-0102-0022, at 4 (June 7, 2016).

    23See Broker and Freight Forwarder Financial Responsibility Roundtable Discussion Notes, Docket No. FMCSA-2016-0102-0030, at 4 (Oct. 20, 2016).

    24Id. at 7.

    The Agency is considering a definition of “financial failure” or “insolvency” that would apply at a pre-bankruptcy stage. In this regard, a Bankruptcy Court case in the District of Delaware found that 49 U.S.C. 13906(b)(6) did not apply to a broker's bond in a bankruptcy case.25 Consistent with this view, “financial failure or insolvency” under MAP-21 section 32918 would be established where the broker or freight forwarder has claims against its bond/trust, is not responding to notifications from the trust or surety provider within 14 days, and is not in bankruptcy proceedings. FMCSA has suggested these criteria for “financial failure or insolvency” as commenters have suggested that unresolved claims are consistent with a broker's “financial failure or insolvency.” Moreover, through interaction with stakeholders, FMCSA has learned that a broker's failure to respond to notices about claims from a surety or trust often indicates that the broker is out of business. At the same time, giving a broker or freight forwarder 14 days to respond to the surety or trust fund provider before a determination of “financial failure” is made would give the broker or freight forwarder an opportunity to respond if their nonresponse was based on a lack of communication or other short term issue, as opposed to a financial failure. In suggesting a definition of “financial failure or insolvency” that applies outside of bankruptcy, FMCSA is also adopting the holding from the referenced AWI Delaware case. Moreover, given that Section 13906(b)(6) and (c)(7)'s “financial failure or insolvency” provisions require action by the surety or trust fund provider against the broker or freight forwarder's surety bond or trust fund, applying these provisions in bankruptcy could run afoul of the automatic stay provisions of bankruptcy law.

    25AWI Delaware, Inc., et al., Case No. 14-12092 (KJC) (Bankr. D. Del. Nov. 25, 2014).

    Additionally, section 32918 requires that in the event of “financial failure” or “insolvency,” surety providers must “publicly advertise” for claims for 60 days beginning on the date FMCSA publishes the surety's notice to cancel the surety bond/trust. 49 U.S.C. 13906(b)(6)(B), (c)(7)(B). The Agency is considering a definition of “publicly advertise” that could be satisfied through FMCSA's posting of the cancellation notice on its website. The Agency is investigating whether it can flag such “financial failure” cancellations with a special code, so that potential claimants reviewing a broker or freight forwarder's records on the FMCSA website will know that a 60-day period to make a claim has begun to run. The Agency seeks comments on how “financial failure or insolvency” and “publicly advertise” should be defined.

    5. Enforcement Authority

    Under 49 U.S.C. 13906(b)(7), (c)(8), FMCSA has been granted expanded enforcement authority over surety providers. FMCSA has new civil penalty authority to suspend non-compliant surety providers from providing broker or freight forwarder financial responsibility for three years, and further authority to sue non-compliant surety providers in Federal court. FMCSA anticipates that it will revise its regulations to incorporate these new civil penalty provisions. It also intends to modify 49 CFR 387.317 (brokers) and 387.415 (freight forwarders) to incorporate the new surety suspension authority. The Agency expects to establish a procedure for such suspensions where it will issue an order to show cause against a non-compliant surety provider, weigh evidence submitted by the provider, and make a final decision. The Agency seeks input on the development of these surety suspension procedures.

    6. Eligible BMC-85 Trust Funds

    FMCSA has broad authority under MAP-21 to determine who is eligible to provide trust fund services on behalf of brokers or freight forwarders. Under 49 U.S.C. 13906(b)(1)(A), a broker must file a surety bond or trust fund from a provider “determined by the Secretary to be adequate to ensure financial responsibility.” See also 49 U.S.C. 13906(c)(1)(A) for freight forwarders. Under current regulations at 49 CFR 387.307, a “financial institution” may file trust funds. In addition to other types of entities, “loan or finance” companies are considered financial institutions pursuant to 49 CFR 387.307(c)(7).

    Commenters have addressed the suitability of the “loan or finance” company category of “financial institution.” Avalon, in pre-roundtable discussion comments, indicated “loan and finance” companies are “far less regulated if at all.” 26 It also indicated that “FMCSA's refusal to deal with the regulatory gaps is an abrogation of its responsibility to state regulators who do nothing and don't care.” 27 Avalon proposed deleting the “loan or finance company” and the “person subject to supervision by any State or Federal bank supervisory authority” categories from the regulation. (49 CFR 387.307(c)(7) and (8)). Avalon asserted that “these entities are not sufficiently regulated by the states to safeguard the public interest and the FMCSA has neither the staff nor the inclination to regulate them.” 28 JW Surety, in pre-roundtable discussion comments, stated that BMC-85 providers are “operating unregulated by any government agency.” 29 In post-roundtable comments, it agreed with Avalon that § 387.307(c)(7) and (8) should be eliminated.30 SFAA, in its post-roundtable comments, indicated that FMCSA could require that BMC-85 providers be licensed as trust companies by a State regulator.31 JW Surety, in post-meeting comments, argued that BMC-85 providers should be licensed trust companies or FDIC-insured banks.32

    26 Comments of Avalon Risk Management Insurance Agency LLC, Docket No. FMCSA-2016-0102-0014, at 4 (May 18, 2016).

    27Id. at 13.

    28Id.

    29 Comments of JW Surety Bonds, Docket No. FMCSA-2016-0102-0017, at 1 (May 19, 2016).

    30See Comments of JW Surety Bonds, Docket No. FMCSA-2016-0102-0025, at 9 (June 10, 2016).

    31See Comments of The Surety & Fidelity Association of America, Docket No. FMCSA-2016-0102-0022, at 2 (June 7, 2016).

    32See Comments of JW Surety Bonds, Docket No. FMCSA-2016-0102-0025, at 5 (June 10, 2016).

    FMCSA is considering amending the definition of “loan or finance company” to ensure that BMC-85 providers' ability to pay claims out of trust funds is adequately monitored. FMCSA is considering defining “loan or finance company” to include only companies regulated by entities that require certain minimum solvency standards. FMCSA intends to reach out to appropriate State regulators and professional associations as part of the rule development process.

    Given the Agency's primary safety focus, and consistent with its motor carrier financial responsibility regulations at 49 CFR 387.315, FMCSA must rely on other agencies to be the primary regulators of those who file financial responsibility instruments with FMCSA. In the case of BMC-84 surety providers, State insurance regulators and the United States Department of Treasury provide such regulatory oversight. The Agency is concerned, however, that 49 CFR 387.307(c)(7) currently allows entities that are not adequately regulated to administer trust funds. For example, the California Department of Business Oversight, which regulates several BMC-85 providers, provides a California Finance Lender license for a person engaged in the business of making consumer or commercial loans. Similarly, the Florida Office of Financial Regulation, which regulates a large BMC-85 provider, provides a Consumer Finance Company license for entities that solicit, make, and collect small loans. BMC-85 providers serve as trustees, not lenders. Accordingly, being regulated as a lender may not provide sufficient oversight for BMC-85 providers.

    Moreover, given that BMC-85 providers administer trusts on behalf of brokers or freight forwarders, the Agency is considering whether to require BMC-85 providers to be licensed as trust providers. We expressly invite comments in that regard to inform an NPRM.

    7. BMC-84 and BMC-85 Form Revisions

    Surety bond providers file BMC-84 surety bonds with FMCSA as evidence of financial responsibility on behalf of brokers and freight forwarders. Trust fund providers similarly file BMC-85 trust funds with FMCSA. The Agency anticipates the need for revisions to the BMC-84 and BMC-85 forms if rulemaking is proposed. FMCSA invites comments to identify recommended changes to the forms. Changes to the BMC-84/85 will be proposed in any NPRM and, as measures effecting an Agency information collection, will be approved through the Office of Management and Budget in accordance with the Paperwork Reduction Act.

    8. Household Goods

    As part of its mission, FMCSA has jurisdiction over the transportation of household goods (HHG) and the arranging of HHG transportation.33 HHG transportation is significantly different than general property transportation. This is reflected in FMCSA regulations, such as 49 CFR part 375 (Transportation of Household Goods in Interstate Commerce; Consumer Protection Regulations) and 49 CFR part 371 subpart B (Special Rules for Household Goods Brokers), which treat HHG transportation differently than other types of property transportation. Given those differences, FMCSA seeks information on whether HHG brokers and freight forwarders should be regulated differently than general property brokers and freight forwarders in a rulemaking on broker/freight forwarder financial responsibility. FMCSA notes that we have received complaints about HHG brokers,34 and we solicit comments to help determine whether there is a unique market structure that might suggest need for additional fraud protections.

    33 49 U.S.C. 13501. HHG is a kind of property and is defined at 49 U.S.C. 13102(10). FMCSA has jurisdiction over HHG freight forwarder operations pursuant to 49 U.S.C. 13531.

    34 Through its National Consumer Complaint Database (NCCDB), in Fiscal Year 2017, the Agency received 626 valid HHG complaints regarding HHG broker activity, primarily “low ball” estimates, where the broker estimates an artificially low price that the delivering carrier does not honor.

    FMCSA is also seeking information on the payment flows among HHG shippers, brokers and motor carriers. The Agency is aware of arrangements where HHG shippers pay HHG brokers a deposit and then pay the remainder of the transportation charges directly to the HHG motor carrier. Under these arrangements, the Agency believes no monies pass directly between the broker and motor carrier. FMCSA seeks information on the prevailing payment models in the HHG broker industry in this ANPRM.

    V. Rulemaking Analyses A. Executive Order (E.O.) 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures

    Under E.O. 12866, “Regulatory Planning and Review” (issued September 30, 1993, published October 4 at 58 FR 51735), as supplemented by E.O. 13563 and DOT policies and procedures, if a regulatory action is determined to be “significant,” it is subject to Office of Management and Budget (OMB) review. E.O. 12866 defines “significant regulatory action” as one 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.

    (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O.

    The Department has determined this ANPRM is a “significant regulatory action” under E.O. 12866, and significant under DOT regulatory policies and procedures due to significant public interest in the legal and policy issues addressed. Therefore, this document has been reviewed by OMB.

    B. E.O. 13771 Reducing Regulation and Controlling Regulatory Costs

    E.O. 13771 (82 FR 9339, February 3, 2017), Reducing Regulation and Controlling Regulatory Costs, requires that for “every one new [E.O. 13771 regulatory action] issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.” Implementation guidance for E.O. 13771 issued by the Office of Management and Budget (OMB) (Memorandum M-17-21, April 5, 2017) defines two different types of E.O. 13771 actions: An E.O. 13771 deregulatory action, and an E.O. 13771 regulatory action.

    An E.O. 13771 deregulatory action is defined as “an action that has been finalized and has total costs less than zero.”

    An E.O. 13771 regulatory action is defined as:

    (i) A significant action as defined in Section 3(f) of E.O. 12866 that has been finalized, and that imposes total costs greater than zero; or

    (ii) a significant guidance document (e.g., significant interpretive guidance) reviewed by OIRA under the procedures of E.O. 12866 that has been finalized and that imposes total costs greater than zero.

    The Agency action, in this case a rulemaking, must meet both the significance and the total cost criteria to be considered an E.O. 13771 regulatory action. As the Department has determined this ANPRM is a “significant regulatory action” under E.O. 12866, and significant under DOT regulatory policies and procedures due to significant public interest in the legal and policy issues addressed, it meets the significance criterion for being an E.O. 13771 regulatory action; however, the requirements of E.O. 13771 do not apply to pre-notice of proposed rulemakings such as ANPRMs.

    FMCSA specifically seeks comment on how the Agency should analyze various aspects of a possible NPRM in this proceeding and how the Agency could limit possible burdens on entities.

    C. Small Business Regulatory and Enforcement Fairness Act

    FMCSA has not yet determined whether an Initial Regulatory Flexibility Analysis (IRFA) will be required for any of the eight enumerated alternatives listed above. However, if an IRFA is required, FMCSA is considering holding one or more Small Business Regulatory Panels. If you are a small business who would like to be included in such a panel, please submit a comment indicating as such. The Agency also seeks comment on the small business impacts of the Agency's suggested courses of action in this ANPRM.

    VI. Comments Sought

    The Agency specifically seeks comments and data from the public in response to this ANPRM. We request that commenters address their comments specifically to the enumerated list of issues below, and that commenters number their comments to correspond to each issue. FMCSA anticipates some of the information and data sought may include CBI, and these comments should be filed in accordance with the requirements of 49 CFR 389.9 Treatment of confidential business information and the instructions above under the subheading Confidential Business Information under the headings ADDRESSES and Public Participation and Request for Comments.

    1. FMCSA specifically seeks comment on the definition of “group surety bond” or “group trust fund” and how the Agency could administer such a group surety or trust option given its limited resources.

    2. The Agency solicits suggestions from the trust fund industry and others about instruments the Agency could accept that would meet the “assets readily available” standard without requiring significant FMCSA oversight or evaluation that would divert scarce safety oversight resources.

    3. The Agency specifically seeks comment from the surety bond industry on that industry's capacity to meet the increased market demand if FMCSA were to adopt a cash-only standard for BMC-85 trust funds, which could potentially drive a significant segment of the broker/forwarder industry into surety bond coverage.

    4. FMCSA seeks comment and data from the surety bond industry on the cost to brokers and freight forwarders of BMC-84 surety bonds.

    5. The Agency will consider how it could “immediately suspend” broker/freight forwarder operating authority registration in a manner that is consistent with constitutional due process requirements, e.g., by providing an appropriate opportunity for post-deprivation review. FMCSA invites comments responsive to this issue, including documented incidence of actual nonpayment that occurred after problem brokers or freight forwarder were not “immediately” suspended.

    6. FMCSA seeks comment on the appropriate cushion time for brokers or freight forwarders to respond to claims made to the guarantors, valid or otherwise. Such a grace period would seem to give firms adequate time to adjudicate claims and settlements internally, as well as price in the costs associated with any claims relating to contract noncompliance.

    7. The Agency seeks comments on the how “financial failure or insolvency” and “publicly advertise” should be defined under MAP-21 Section 32918.

    8. The Agency seeks input on the development of surety suspension procedures authorized pursuant to 49 U.S.C. 13906(b)(7) and (c)(8).

    9. The Agency requests comments regarding whether FMCSA should require BMC-85 trust fund providers to be licensed as trust providers and how 49 CFR 387.307(c)(7) (loan or finance company) could be amended to ensure that adequate monitoring of BMC-85 providers' ability to pay claims is taking place.

    10. The Agency anticipates the need for revisions to the BMC-84 and BMC-85 forms if rulemaking is proposed. FMCSA requests comments to identify suggested changes to the forms.

    11. FMCSA seeks information on whether HHG brokers and freight forwarders should be regulated differently than general property brokers and freight forwarders in a rulemaking on broker/freight forwarder financial responsibility.

    12. FMCSA solicits comments to help determine whether there is a unique market structure in the HHG broker market that might suggest the need for additional fraud protections for shippers utilizing HHG brokers.

    13. FMCSA seeks information on the prevailing payment models and payment flows among HHG shippers, motor carriers and brokers.

    14. While noting the MAP-21 requirements, FMCSA is seeking comment on whether the market is capable of addressing these issues. For example, if a broker/freight forwarder has a history of noncompliance with contracts, would surety/trust firms be less likely to back them or charge a higher premium/trust management fee? Is there a market failure that is preventing these transactions from taking place efficiently?

    15. FMCSA specifically seeks comment on how the Agency should analyze various requirements for a possible NPRM to meet the requirements of E.O. 12866 and 13771, and how the Agency could limit possible burdens on regulated entities.

    16. FMCSA requests comments on any other aspects of implementing section 32918 that may be necessary and how these areas could be implemented in a way that would not divert scarce safety oversight resources.

    17. FMCSA requests comment on the small business impacts of its suggested courses of action in this ANPRM.

    Issued under the authority of delegation in 49 CFR 1.87: September 21, 2018. Raymond P. Martinez, Administrator.
    [FR Doc. 2018-21052 Filed 9-26-18; 8:45 am] BILLING CODE 4910-EX-P
    DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 395 [Docket No. FMCSA-2018-0248] RIN 2126-AC19 Hours of Service AGENCY:

    Federal Motor Carrier Safety Administration (FMCSA), DOT.

    ACTION:

    Notice of public listening sessions.

    SUMMARY:

    The FMCSA announces two additional public listening sessions on potential changes to its hours-of-service (HOS) rules for truck drivers. On August 23, 2018, FMCSA published an Advance Notice of Proposed Rulemaking (ANPRM) seeking public comment on four specific aspects of the HOS rules for which the Agency is considering changes: The short-haul HOS limit; the HOS exception for adverse driving conditions; the 30-minute rest break provision; and the sleeper berth rule to allow drivers to split their required time in the sleeper berth. In addition, the Agency requested public comment on petitions for rulemaking from the Owner-Operator Independent Drivers Association (OOIDA) and TruckerNation.org (TruckerNation). The Agency encourages vendors of electronic logging devices (ELDs) to participate to address potential implementation issues should changes to the HOS rules be made. The listening sessions will be held in Orlando, FL, and in Joplin, MO, and will be webcast for the benefit of those not able to attend in person. The listening sessions will allow interested persons to present comments, views, and relevant research on topics mentioned above. All comments will be transcribed and placed in the rulemaking docket for the FMCSA's consideration.

    DATES:

    The listening sessions will be September 28, 2018, in Joplin, MO, from 3:30-5 p.m., CDT, and on October 2, 2018, in Orlando, FL, from 9:30-11:30 a.m., EDT. The sessions will end earlier if all participants wishing to express their views have done so.

    ADDRESSES:

    The September 28, 2018, session will be held at 4 State Trucks, 4579 MO-43, Joplin, MO 64804. The October 2, 2018, session will be held at MetroPlan Orlando, 250 S Orange Ave., Suite 200, Orlando, FL 32801.

    You may submit comments identified by Docket Number FMCSA-2018-0248 using any of the following methods:

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

    Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001.

    Hand Delivery or Courier: West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: 202-493-2251.

    Submissions Containing Confidential Business Information (CBI): Mr. Brian Dahlin, Chief, Regulatory Evaluation Division, 1200 New Jersey Avenue SE, Washington, DC 20590.

    To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for instructions on submitting comments, including collection of information comments for the Office of Information and Regulatory Affairs, OMB.

    FOR FURTHER INFORMATION CONTACT:

    For special accommodations for the HOS listening sessions, such as sign language interpretation, contact Ms. Shannon L. Watson, Senior Advisor to the Associate Administrator for Policy, Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, at (202) 385-2395 or [email protected], two weeks in advance of each session to allow us to arrange for such services. For information on the listening sessions, please contact Ms. Watson. For information concerning the HOS rules, contact Mr. Tom Yager, Chief, Driver and Carrier Operations Division, (202) 366-4325, [email protected].

    SUPPLEMENTARY INFORMATION: I. Public Participation and Request for Comments A. Submitting Comments

    If you submit a comment, please include the docket number for this ANPRM (Docket No. FMCSA-2018-0248), indicate the specific section of this document to which each section applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.

    To submit your comment online, go to http://www.regulations.gov, put the docket number, FMCSA-2018-0248, in the keyword box, and click “Search.” When the new screen appears, click on the “Comment Now!” button and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit.

    If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.

    FMCSA will consider all comments and material received during the comment period for the ANPRM. Late comments will be considered to the extent practicable.

    Confidential Business Information

    Confidential Business Information (CBI) is commercial or financial information that is customarily not made available to the public by the submitter. Under the Freedom of Information Act, CBI is eligible for protection from public disclosure. If you have CBI that is relevant or responsive to the ANPRM and associated listening sessions, it is important that you clearly designate the submitted comments as CBI. Accordingly, please mark each page of your submission as “confidential” or “CBI.” Submissions designated as CBI and meeting the definition noted above will not be placed in the public docket for the ANPRM and associated listening sessions. Submissions containing CBI should be sent to Mr. Brian Dahlin, Chief, Regulatory Evaluation Division, 1200 New Jersey Avenue SE, Washington, DC 20590, or via email at [email protected]. Any commentary that FMCSA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

    FMCSA will consider all comments and material received during the comment period for the ANPRM.

    B. Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2018-0248, in the keyword box, and click “Search.” Next, click the “Open Docket Folder” button and choose the document to review. If you do not have access to the internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.

    C. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

    II. Background

    On August 23, 2018 (83 FR 42631), FMCSA published an ANPRM concerning potential changes to its hours-of-service rules. The ANPRM indicated the Agency is considering changes in four areas of the HOS rules: the short-haul HOS limit [49 CFR 395.1(e)(1)(ii)(A)]; the HOS exception for adverse driving conditions [§ 395.1(b)(1)]; the 30-minute rest break provision [§ 395.3(a)(3)(ii)]; and the sleeper berth rule to allow drivers to split their required time in the sleeper berth [§ 395.1(g)(1)(i)(A) and (ii)(A)]. In addition, the Agency requested public comment on petitions for rulemaking from the Owner-Operator Independent Drivers Association (OOIDA) and TruckerNation.org (TruckerNation). The ANPRM provides an opportunity for additional discussion of each of these topics. The listening sessions will provide interested persons an opportunity to share their views on these topics with representatives of the Agency. The Agency encourages ELD vendors to participate to address potential implementation issues should changes to the HOS rules be made.

    III. Meeting Participation

    The listening sessions are open to the public. Speakers' remarks will be limited to 2 minutes each. The public may submit material to the FMCSA staff at each session for inclusion in the public docket, FMCSA-2018-0248. The sessions will be webcast live in their entirety, providing the opportunity for remote participation via the internet. For information on participating in the live webcasts, please go to www.fmcsa.dot.gov.

    IV. Questions for Discussion During the Listening Sessions

    In preparing their comments, meeting participants should consider the questions posed in the ANPRM about the current HOS requirements. Answers to these questions should be based upon the experience of the participants and any data or information they can share with FMCSA.

    Issued on: September 24, 2018. Cathy F. Gautreaux, Deputy Administrator.
    [FR Doc. 2018-21087 Filed 9-26-18; 8:45 am] BILLING CODE 4910-EX-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 180720681-8681-01] RIN 0648-BI38 Snapper-Grouper Fishery of the South Atlantic Region; Management Measures To End Overfishing of Golden Tilefish AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    NMFS proposes to implement management measures described in Regulatory Amendment 28 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP), as prepared and submitted by the South Atlantic Fishery Management Council (Council). If implemented, this proposed rule would revise the commercial and recreational annual catch limits (ACLs) for golden tilefish. The purpose of this proposed rule is to end overfishing of golden tilefish while minimizing, to the extent practicable, adverse socio-economic effects and achieve optimum yield (OY) on a continuing basis in the South Atlantic.

    DATES:

    Written comments must be received by October 12, 2018.

    ADDRESSES:

    You may submit comments on the proposed rule, identified by “NOAA-NMFS-2018-0091,” by either of the following methods:

    Electronic submission: Submit all electronic public comments via the Federal e-Rulemaking Portal: http://www.regulations.gov. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0091 click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Karla Gore, NMFS Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in required fields if you wish to remain anonymous).

    Electronic copies of the environmental assessment (EA), which includes an initial regulatory flexibility analysis (IRFA), may be obtained from the Southeast Regional Office website at http://sero.nmfs.noaa.gov/sustainable_fisheries/s_atl/sg/2017/golden_tilefish_interim/index.html. The EA includes a Regulatory Flexibility Act (RFA) analysis.

    FOR FURTHER INFORMATION CONTACT:

    Karla Gore, NMFS Southeast Regional Office, telephone: 727-551-5753, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The snapper-grouper fishery in the South Atlantic region is managed under the FMP and includes golden tilefish, along with other snapper-grouper species. The FMP was prepared by the Council and is implemented by NMFS through regulations at 50 CFR part 622 under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

    Background

    The Magnuson-Stevens Act requires that NMFS and regional fishery management councils prevent overfishing and achieve, on a continuing basis, the OY from federally managed fish stocks. These mandates are intended to ensure that fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems.

    Golden tilefish are harvested by both commercial and recreational fishermen throughout the South Atlantic, although the majority of landings are attributed to the bottom longline component of the commercial sector. Using data through 2010, the golden tilefish stock was assessed in 2011 through the Southeast Data, Assessment, and Review (SEDAR) stock assessment process (SEDAR 25). SEDAR 25 results indicated that the golden tilefish stock was not subject to overfishing, and it was not overfished. Based upon the results of SEDAR 25, Amendment 18B to the FMP and its implementing final rule allocated the total ACL among the sectors and commercial gear components (i.e., bottom longline and hook-and-line), and specified the ACLs based upon the determined allocation percentages, among other actions (78 FR 23858; April 23, 2013). For golden tilefish, 97 percent of the combined (commercial and recreational sectors together) ACL is allocated to the commercial sector, with 25 percent of the commercial ACL available for harvest by the hook-and-line component and 75 percent of the commercial ACL available for the longline component. The recreational sector is allocated 3 percent of the combined ACL.

    In April 2016, an update to SEDAR 25 was completed for golden tilefish using data through 2014 (SEDAR 25 Update 2016). The SEDAR 25 Update 2016 indicated that golden tilefish is undergoing overfishing but is not overfished. In May 2016, the Council's Scientific and Statistical Committee (SSC) reviewed the SEDAR 25 Update 2016 and indicated that the SEDAR 25 Update 2016 was based on the best scientific information available. The SSC provided an ABC recommendation to the Council at that time.

    During the Council's review of the SEDAR 25 Update 2016 in June 2016, the Council stated their concerns over the large differences between SEDAR 25 and the SEDAR 25 Update 2016 in biological benchmarks such as the maximum sustainable yield calculations, social and economic consequences of the substantial reduction of the ABC (60 percent), and the unusually high buffer (34 percent) estimated between the ABC and the overfishing limit. Based on the Council's concerns over the differences between SEDAR 25 and the SEDAR 25 Update 2016, the NMFS Southeast Fisheries Science Center revised the SEDAR 25 Update 2016 to include a newly developed model. The SSC reviewed the revised assessment at their October 2017 meeting and did not recommend basing stock status and fishing level recommendations on the revised assessment, but rather on the SEDAR 25 Update 2016.

    In a letter dated January 4, 2017, NMFS notified the Council of the updated golden tilefish stock status determination that the stock is undergoing overfishing but is not overfished. As mandated by the Magnuson-Stevens Act, NMFS and the Council must prepare and implement a plan amendment and regulations to end overfishing of golden tilefish within 2 years of such stock status notification. Therefore, the Council began development of a regulatory amendment to end overfishing of golden tilefish. However, the initial acceptable biological catch (ABC) recommendation from the Council's SSC was not available until late October 2017, which provided insufficient time for the Council and NMFS to develop and implement management measures to end overfishing of golden tilefish in time for the start of the 2018 fishing year on January 1, 2018. Consequently, in a letter to NMFS dated June 27, 2017, the Council requested that NMFS implement interim measures to immediately reduce overfishing of golden tilefish while long-term measures could be developed. A temporary rule, published in the Federal Register on January 2, 2018 (83 FR 65), reduced the combined ACL to 323,000 lb (146,510 kg), gutted weight. This catch level was based on a projected yield at 75 percent of the yield produced by the fishing mortality rate at maximum sustainable yield, which was 362,000 lb (164,654 kg) whole weight, converted to gutted weight using a conversion factor of 1.12. On June 19, 2018 (83 FR 28387), the temporary rule was extended for an additional 186 days, through January 3, 2019. The measures in Regulatory Amendment 28, as described in this proposed rule, would replace the current interim measures outlined in the temporary rule and end overfishing of golden tilefish in the South Atlantic. It is necessary to ensure that this rule becomes effective before or by the temporary rule's expiration date, January 4, 2019. Failure to implement Regulatory Amendment 28 by the expiration of the temporary rule may risk overfishing of golden tilefish because ACLs will change back to pre-temporary rule levels and become much higher. This increase in ACLs may cause confusion among fishers and for law enforcement, especially when the ACLs will then lower again once this proposed rule is effective.

    As noted above, the Council's SSC reviewed the SEDAR 25 Update 2016 assessment in May 2016 and provided fishing level recommendations based on a P* (probability of overfishing) value of 30 percent derived from the Council's ABC control rule. However, at the Council's March 2018 meeting, the Council determined that they are willing to accept a risk of overfishing larger than P* = 30 percent. The Council determined that they were willing to accept a risk of overfishing at the ACL level previously implemented through the temporary rule. The ACL implemented through the temporary rule was equal to the yield at a fishing mortality rate (F) equal to 75 percent of the fishing mortality rate at the maximum sustainable yield (FMSY) when the population is at equilibrium. This new ABC value represented a level closer to a P* value of 40 percent. At their May 2018 meeting, the SSC reviewed the Council's request to revise the ABC recommendation and agreed with setting the ABC equal to the value at F = 75 percent FMSY when the population is at equilibrium. Therefore, the SSC's revised ABC recommendation was 362,000 lb (164,200 kg), whole weight. Although it is different than the conversion factor applied for the temporary rule, an updated conversion factor of 1.059, which was used in the SEDAR 25 Update 2016 assessment and is considered the best scientific information available, results in an ABC of 342,000 lb (155,129 kg), gutted weight. This revised ABC recommendation forms the basis for the actions in Regulatory Amendment 28 and this proposed rule, which is intended to end overfishing of golden tilefish in the South Atlantic.

    Management Measures Contained in This Proposed Rule

    This proposed rule would revise the combined ACL for golden tilefish to be 342,000 lb (155,129 kg), gutted weight. The combined ACL is equal to the SSC's final ABC recommendation of the yield at F = 75 percent FMSY. This proposed rule would also specify the commercial and recreational sector ACLs and component commercial quotas using the existing sector allocations of 97 percent commercial and 3 percent recreational, as well as allocating 25 percent of the commercial ACL to the hook-and-line component and 75 percent of the commercial ACL to the longline component. Therefore, the commercial ACL (equivalent to the commercial quota) would be 331,740 lb (150,475 kg), gutted weight. The commercial ACL for the hook-and-line component would be 82,935 lb (37,619 kg), gutted weight, and the commercial ACL for the longline component would be 248,805 lb (112,856 kg), gutted weight. The recreational ACL would be 2,316 fish. The ACL values in this proposed rule would remain in effect in future years unless changed by the South Atlantic Fishery Management Council.

    The current accountability measures (AMs) for golden tilefish require that a sector or commercial gear component close for the remainder of the fishing year if its respective ACL is reached or projected to be reached. The reductions in the sector and commercial gear-component ACLs could result in earlier in-season closures, particularly for the commercial sector as a result of an ACL being reached or projected to be reached during a fishing year. These closures would likely result in short-term adverse socio-economic effects. However, the reduction in the ACLs in this proposed rule is expected to end overfishing of golden tilefish and will likely minimize future adverse socio-economic effects. Adhering to sustainable harvest through an ACL based on information from the most recent stock assessment (SEDAR 25 2016 Update) is expected to be more beneficial to fishermen and fishing communities in the long term because catch limits would be based on the current conditions, even if the updated stock assessment information indicates that reduced ACLs are appropriate to sustain the stock. The reduction in the ACLs in this proposed rule would also provide biological benefits (such as protections against recruitment failure) to the golden tilefish stock by reducing the current levels of fishing mortality. The revised ACL values in Regulatory Amendment 28 and this proposed rule are based on the best scientific information available.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator has determined that this proposed rule is consistent with Regulatory Amendment 28, the FMP, the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

    This proposed rule has been determined to be not significant for purposes of Executive Order (E.O.) 12866. This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

    NMFS prepared an IRFA for this proposed rule, as required by section 603 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 603. The IRFA describes the economic impact that this proposed rule, if implemented, would have on small entities. A description of the proposed rule, why it is being considered, and the objectives of, and legal basis for, this proposed rule are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from the NMFS (see ADDRESSES). A summary of the IRFA follows.

    The Magnuson-Stevens Act provides the statutory basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this proposed rule. Accordingly, this proposed rule does not implicate the Paperwork Reduction Act.

    This proposed rule, if implemented, would be expected to directly affect federally permitted commercial fishermen fishing for golden tilefish in the South Atlantic. Recreational anglers fishing for golden tilefish would also be directly affected by this proposed rule, but anglers are not considered business entities under the RFA. For-hire vessels would also be affected by this rule, but only in an indirect way. Thus, only the effects on federally permitted snapper-grouper commercial fishing vessels will be discussed. For RFA purposes only, the NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.

    From 2012 through 2016, an average of 23 longline vessels per year landed golden tilefish from the South Atlantic. The golden tilefish longline endorsement system started in 2013. Endorsed vessels, combined, averaged 255 trips per year in the South Atlantic on which golden tilefish were landed, and 182 other trips that were either in the South Atlantic but no golden tilefish were caught or took place in other areas (Gulf or Mid-Atlantic) that caught any species including golden tilefish. The average annual total dockside revenue (2016 dollars) for these vessels combined was approximately $1.56 million from golden tilefish, approximately $0.10 million from other species co-harvested with golden tilefish (on the same trips), and approximately $0.43 million from other trips by these vessels on trips in the South Atlantic on which no golden tilefish were harvested or on trips which occurred in other areas. Total average annual revenue from all species harvested by longline vessels landing golden tilefish in the South Atlantic was approximately $2.10 million, or approximately $92,000 per vessel. Longline vessels generated approximately 74 percent of their total revenues from golden tilefish. For the same period, an average of 82 vessels per year landed golden tilefish using other gear types (mostly hook-and-line) in the South Atlantic. These vessels, combined, averaged 483 trips per year in the South Atlantic on which golden tilefish were landed and 2,862 trips taken in the South Atlantic on which golden tilefish were not harvested or trips that took place in other areas and caught any species including golden tilefish. The average annual total dockside revenue (2016 dollars) for these 82 vessels was approximately $0.36 million from golden tilefish, approximately $0.66 million from other species co-harvested with golden tilefish (on the same trips in the South Atlantic), and approximately $4.13 million from the other trips taken by these vessels. The total average annual revenue from all species harvested by these 82 vessels was approximately $5.16 million, or approximately $62,000 per vessel. Approximately 7 percent of these vessels' total revenues came from golden tilefish.

    Based on the foregoing revenue information, all commercial vessels using longlines or hook-and-line affected by the proposed rule may be assumed to be small entities. Because all entities expected to be directly affected by this proposed rule are assumed to be small entities, NMFS has determined that this proposed rule would affect a substantial number of small entities. However, since all affected entities are small entities, the issue of disproportionate effects on small versus large entities does not arise in the present case.

    The proposed rule would reduce the combined stock ACL, and consequently the specific ACLs for the commercial and recreational sectors as well as the longline and hook-and-line component ACLs for the commercial sector. The longline and hook-and-line components of the commercial sector would be expected to lose approximately $592,000 and $217,000, respectively, in annual ex-vessel revenues. This would very likely translate to profit reductions for both the longline and hook-and-line components, particularly for longline vessels as they are more dependent on golden tilefish. As noted above, golden tilefish account for about 74 percent of longline vessel revenues and 7 percent of hook-and-line vessel revenues. There is a good possibility ACLs may be changed in the future if the proposed rule were successful in addressing the overfishing condition for the South Atlantic golden tilefish. Economic benefits would ensue if the ACLs are subsequently increased.

    The following discussion analyzes the alternatives that were considered by the Council, including those that were not selected as preferred by the Council. Unlike the preferred alternative, most of the other alternatives would provide for varying ACLs over 6 years, at least. For this reason, a 6-year period is considered for comparing alternatives. Over a 6-year period, the preferred alternative would be expected to reduce revenues by approximately $3.02 million for the longline segment and $1.11 million for the hook-and-line segment of the commercial sector, using a 7 percent discount rate.

    Ten alternatives, including the preferred alternative as described above, were considered for reducing the South Atlantic golden tilefish ACLs. The first alternative, the no action alternative, would maintain the current economic benefits to all participants in the South Atlantic golden tilefish component of the snapper-grouper fishery. This alternative, however, would not address the need to curtail continued overfishing of the stock, thereby increasing the likelihood that more stringent measures would need to be implemented in the near future.

    With one exception, all the other alternatives would result in larger revenue losses to the longline and hook-and-line vessels than the preferred alternative. Alternatives that would result in larger revenue losses than the preferred alternative would provide for lower ACLs over a 6-year period. Total losses over 6 years from these alternatives would range from $3.17 million to $4.29 million for longline vessels and from $1.16 million to $1.83 million for hook-and-line vessels. The alternative with lower attendant revenue losses than the preferred alternative would be expected to reduce total ex-vessel revenues by approximately $2.65 million for longline vessels and $0.97 million for hook-and-line vessels over 6 years. Relative to the preferred alternative, this alternative would result in larger ex-vessel revenue losses initially but lower revenue losses in subsequent years, because the ACLs in subsequent years would be greater than those of the preferred alternative. Both alternatives would be expected to result in early harvest closure, and in the first fishing year, harvest closure under the preferred alternative would occur at a later date than that of the other alternative. The reverse may be expected for the subsequent years. The Council considered the preferred alternative as affording the best means to end overfishing of golden tilefish in the South Atlantic, because it is based on the best scientific information available.

    List of Subjects in 50 CFR Part 622

    Annual catch limit, Fisheries, Fishing, Golden tilefish, South Atlantic.

    Dated: September 21, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:

    PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. Amend § 622.190 by revising paragraph (a)(2 to read as follows:
    § 622.190 Quotas.

    (a) * * *

    (2) Golden tilefish. (i) Commercial sector (hook-and-line and longline components combined)—331,740 lb (150,475 kg).

    (ii) Hook-and-line component—82,935 lb (37,619 kg).

    (iii) Longline component—248,805 lb (112,856 kg).

    3. Amend § 622.193 by revising paragraph (a) to read as follows
    § 622.193 Annual catch limits (ACLs), annual catch targets (ACTs), and accountability measures (AMs).

    (a) Golden tilefish—(1) Commercial sector—(i) Hook-and-line component. If commercial hook-and-line landings for golden tilefish, as estimated by the SRD, reach or are projected to reach the commercial ACL (commercial quota) specified in § 622.190(a)(2)(ii), the AA will file a notification with the Office of the Federal Register to close the hook-and-line component of the commercial sector for the remainder of the fishing year. Applicable restrictions after a commercial quota closure are specified in § 622.190(c).

    (ii) Longline component. If commercial longline landings for golden tilefish, as estimated by the SRD, reach or are projected to reach the longline commercial ACL (commercial quota) specified in § 622.190(a)(2)(iii), the AA will file a notification with the Office of the Federal Register to close the longline component of the commercial sector for the remainder of the fishing year. After the commercial ACL for the longline component is reached or projected to be reached, golden tilefish may not be fished for or possessed by a vessel with a golden tilefish longline endorsement. Applicable restrictions after a commercial quota closure are specified in § 622.190(c).

    (iii) If all commercial landings of golden tilefish, as estimated by the SRD, exceed the commercial ACL (including both the hook-and-line and longline component quotas) specified in § 622.190(a)(2)(i), and the combined commercial and recreational ACL of 342,000 lb (155,129 kg) is exceeded during the same fishing year, and golden tilefish are overfished based on the most recent Status of U.S. Fisheries Report to Congress, the AA will file a notification with the Office of the Federal Register to reduce the commercial ACL for that following fishing year by the amount of the commercial ACL overage in the prior fishing year.

    (2) Recreational sector. (i) If recreational landings of golden tilefish, as estimated by the SRD, reach or are projected to reach the recreational ACL of 2,316 fish, the AA will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year regardless if the stock is overfished, unless NMFS determines that no closure is necessary based on the best scientific information available. On and after the effective date of such a notification, the bag and possession limits for golden tilefish in or from the South Atlantic EEZ are zero.

    (ii) If recreational landings of golden tilefish, as estimated by the SRD, exceed the recreational ACL specified of 2,316 fish, then during the following fishing year, recreational landings will be monitored for a persistence in increased landings, and if necessary, the AA will file a notification with the Office of the Federal Register to reduce the length of the recreational fishing season and the recreational ACL by the amount of the recreational ACL overage, if the species is overfished based on the most recent Status of U.S. Fisheries Report to Congress, and if the combined commercial and recreational ACL of 342,000 lb (155,129 kg) is exceeded during the same fishing year. The AA will use the best scientific information available to determine if reducing the length of the recreational fishing season and recreational ACL is necessary. When the recreational sector is closed as a result of NMFS reducing the length of the recreational fishing season and ACL, the bag and possession limits for golden tilefish in or from the South Atlantic EEZ are zero.

    [FR Doc. 2018-20976 Filed 9-26-18; 8:45 am] BILLING CODE 3510-22-P
    83 188 Thursday, September 27, 2018 Notices DEPARTMENT OF AGRICULTURE Economic Research Service Notice of Intent To Request Renewal of a Currently Approved Information Collection AGENCY:

    Economic Research Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the Economic Research Service (ERS) to request extension of a currently approved information collection, the Generic Clearance for Survey Research Studies.

    DATES:

    Comments on this notice must be received by November 26, 2018 to be assured of consideration.

    ADDRESSES:

    Address all comments concerning this notice to Pheny Weidman, ERS Clearance Officer, Economic Research Service, Room 4-163B, 1400 Independence Ave. SW, Mail Stop 1800, Washington, DC 20050-1800. Submit electronic comments to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Pheny Weidman at the address in the preamble. Tel. 202-694-5013.

    SUPPLEMENTARY INFORMATION:

    Title: Generic Clearance for Survey Research Studies.

    OMB Number: 0536-0073.

    Expiration Date of Approval: Three years from the date of approval.

    Type of Request: Extension of a currently approved collection.

    Abstract: In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13) and OMB regulations at 5 CFR part 1320 (60 FR 44978, August 29, 1995), this notice announces the ERS' intention to request renewal of approval from the Office of Management and Budget (OMB) for a generic clearance that will allow ERS to rigorously develop, test, and evaluate its survey methodologies, instruments, and administration. The mission of ERS is to provide economic and other social science information and analysis for public and private decisions on agriculture, food, natural resources, and rural America. This request is part of an on-going initiative to improve ERS data product quality, as recommended by both its own guidelines and those of OMB.

    The purpose of this generic clearance is to allow ERS to evaluate, adopt, and use state-of-the-art and multi-disciplinary research to improve and enhance the quality of its current data collections. This clearance will also be used to aid in the development of new surveys. It will help to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.

    ERS envisions using a variety of survey improvement techniques, as appropriate to the individual project under investigation. These include focus groups, market analysis, cognitive and usability laboratory and field techniques, exploratory interviews, behavior coding, and respondent debriefing.

    Following standard OMB requirements, ERS will inform OMB individually in writing of the purpose, scope, time frame, and number of burden hours used for each survey improvement or development project it undertakes under this generic clearance. ERS will also provide OMB with a copy of the data collection instrument (if applicable), and all other materials describing the project.

    Authority: These data will be collected under the authority of 7 U.S.C. 2204(a).

    ERS intends to protect respondent information under the Privacy Act of 1974, Section 1770 of the Food Security Act of 1985, and 7 U.S.C. 2276. ERS has decided not to invoke the Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA). The complexity and cost necessary to invoke CIPSEA is not justified given the nature of the collection; the collections would generally be conducted by ERS' contractors and designed to be hosted in non-government owned computer systems, where CIPSEA compliance could not be assured.

    Specific details regarding information handling will be specified in individual submissions under this generic clearance.

    Estimate of Burden: Public reporting burden for these collections of information is estimated to average from .5 to 1.5 hours per respondent, depending upon the information collection and the technique used to test for that particular collection.

    Respondents: Individuals or households, farms, and businesses or other for-profits.

    Estimated Total Number of Respondents: 3,630.

    Estimated Total Annual Burden on Respondents: 1,820 hours. Public reporting burden for these collections of information is estimated to average from .5 to 1.5 hours per respondent, dependent upon the survey and the technique used to test for that particular survey.

    Copies of this information collection can be obtained from Pheny Weidman at the address in the preamble.

    Comments: Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (b) the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments should be sent to the address in the preamble. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

    Dated: September 19, 2018. Chris Hartley, Interim Administrator, Economic Research Service.
    [FR Doc. 2018-21051 Filed 9-26-18; 8:45 am] BILLING CODE 3410-18-P
    DEPARTMENT OF AGRICULTURE Forest Service Information Collection: Post-Hurricane Research and Assessment of Agriculture, Forestry, and Rural Communities in the U.S. Caribbean AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice; request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the renewal of the currently approved information collection, Post-Hurricane Research and Assessment of Agriculture, Forestry, and Rural Communities in the U.S. Caribbean.

    DATES:

    Comments concerning this notice must be received in writing on or before November 26, 2018 to be assured of consideration. Comments received after that date will be considered to the extent practicable.

    ADDRESSES:

    Comments concerning this information collection should be addressed to Kathleen McGinley, Social Scientist, USDA Forest Service, International Institute of Tropical Forestry (IITF), 1201 Calle Ceiba, Rio Piedras, PR 00926. Comments also may be submitted via facsimile to 787-766-6302, or by email to [email protected] Please put “Comments re: Post-Hurricane Research” in the subject line.

    Comments submitted in response to this notice may be made available to the public through relevant websites and upon request. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. If you send an email comment, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. Please note that responses to this public comment request containing any routine notice about the confidentiality of the communication will be treated as public comments that may be made available to the public notwithstanding the inclusion of the routine notice.

    The public may inspect the draft supporting statement and/or comments received at IITF, 1201 Calle Ceiba, Río Piedras, PR 00926 during normal business hours. Visitors are encouraged to call ahead to 787-764-7790 to facilitate entry to the building. The public may request an electronic copy of the draft supporting statement and/or any comments received be sent via return email. Requests should be emailed to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information should be made to Kathleen McGinley, Social Scientist, USDA Forest Service, by electronic mail to [email protected] or phone 919-600-3108. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 twenty-four hours a day, every day of the year, including holidays.

    SUPPLEMENTARY INFORMATION:

    Title: Post-Hurricane Research and Assessment of Agriculture, Forestry, and Rural Communities in the U.S. Caribbean.

    OMB Number: 0596-0246.

    Expiration Date of Approval: 12/31/2018.

    Type of Request: Renewal.

    Abstract: In September 2017, two major hurricanes passed through the Caribbean, causing catastrophic damage to communities, infrastructure, farms, and forests across Puerto Rico, U.S. Virgin Islands, and many neighboring islands, significantly compromising local livelihoods, food security, and economic stability throughout the region. To date, there is limited information on the impacts of Hurricanes Irma and Maria, particularly in terms of agricultural and forestry systems and the people who depend on them, and likewise, limited information about the effectiveness of related conservation practices or mitigation and adaptation strategies. Such information is critical to the design and implementation of ongoing recovery work and to longer-term resilience efforts in the U.S. Caribbean and in other regions affected by hurricanes or other major disturbances.

    Building on the initial data collection under the emergency approval, USDA Forest Service seeks this renewal to continue to collect information about the effects of Hurricanes Irma and Maria on agriculture, forestry, and rural communities in the U.S. Caribbean and the internal and external factors that affected their vulnerabilities or resilience. This renewal also will permit the investigation of vulnerabilities, resilience, and effects associated with future hurricanes or major storms that may occur within the three year time period for this requested approval. This information is essential to the Department of Agriculture mandate to support agriculture and natural resources that are productive, sustainable, and provide benefits for the American public under the Rural Development Policy Act of 1980, and to the Forest Service mandate to provide expert advice and conduct research on the management of forests outside the National Forest System through the Cooperative Forestry Assistance Act of 1978. Additionally, the importance of gathering, analyzing, and sharing this type of information is reflected in the National Agricultural Research, Extension, and Teaching Policy Act of 1977, as amended, and the Forest and Rangeland Renewable Resources Research Act of 1978.

    Information will be collected through focus groups and interviews with participants selected purposively in line with the collection objectives. This collection will generate scientifically-based, up-to-date information that can be used to inform ongoing and any future recovery efforts and related risk reduction and mitigation and adaptation strategies by USDA, Forest Service, other Federal agencies, local government, civil society, and the private sector.

    Affected Public: Individuals and Households, Private Sector Businesses, Non-Profit and Non-Governmental Organizations, State or Local Government.

    Estimate of Annual Burden per Response: 45 minutes for interviews, 90 minutes for focus groups.

    Estimated Annual Number of Respondents: 550.

    Estimated Annual Number of Responses per Respondent: 1 response/respondent.

    Estimated Total Annual Burden Hours on Respondents: 266 hours.

    Comment Is Invited

    Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the Agency, including whether the information will have practical or scientific utility; (2) the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. USDA Forest Service will consider the comments received and amend the information collection as appropriate.

    All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request toward Office of Management and Budget approval.

    Dated: September 17, 2018. Carlos Rodriguez-Franco, Deputy Chief, Research & Development.
    [FR Doc. 2018-20986 Filed 9-26-18; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: International Trade Administration.

    Title: Interim Procedures for Considering Requests under the Commercial Availability Provision of the United States-Colombia Trade Promotion Agreement.

    Form Number(s): N/A.

    OMB Control Number: 0625-0272.

    Type of Request: Regular submission.

    Burden Hours: 89.

    Number of Respondents: 16 (10 for Requests; 3 for Responses; 3 for Rebuttals).

    Average Hours per Response: 8 hours per Request; 2 hours per Response; and 1 hour per Rebuttal.

    Needs and Uses: Title II, Section 203(o) of the United States-Colombia Trade Promotion Agreement Implementation Act (the “Act”) [Pub. L. 112-42] implements the commercial availability provision provided for in Article 3.3 of the United States-Colombia Trade Promotion Agreement (the “Agreement”). The Agreement entered into force on May 15, 2012. Subject to the rules of origin in Annex 4.1 of the Agreement, and pursuant to the textile provisions of the Agreement, a fabric, yarn, or fiber produced in Colombia or the United States and traded between the two countries is entitled to duty-free tariff treatment. Annex 3-B of the Agreement also lists specific fabrics, yarns, and fibers that the two countries agreed are not available in commercial quantities in a timely manner from producers in Colombia or the United States. The fabrics listed are commercially unavailable fabrics, yarns, and fibers, which are also entitled to duty-free treatment despite not being produced in Colombia or the United States.

    The list of commercially unavailable fabrics, yarns, and fibers may be changed pursuant to the commercial availability provision in Chapter 3, Article 3.3, Paragraphs 5-7 of the Agreement. Under this provision, interested entities from Colombia or the United States have the right to request that a specific fabric, yarn, or fiber be added to, or removed from, the list of commercially unavailable fabrics, yarns, and fibers in Annex 3-B of the Agreement.

    Chapter 3, Article 3.3, paragraph 7 of the Agreement requires that the President “promptly” publish procedures for parties to exercise the right to make these requests. Section 203(o)(4) of the Act authorizes the President to establish procedures to modify the list of fabrics, yarns, or fibers not available in commercial quantities in a timely manner in either the United States or Colombia as set out in Annex 3-B of the Agreement. The President delegated the responsibility for publishing the procedures and administering commercial availability requests to the Committee for the Implementation of Textile Agreements (“CITA”), which issues procedures and acts on requests through the U.S. Department of Commerce, Office of Textiles and Apparel (“OTEXA”) (See Proclamation No. 8818, 77 FR 29519, May 18, 2012).

    The intent of the Commercial Availability Procedures is to foster the use of U.S. and regional products by implementing procedures that allow products to be placed on or removed from a product list, on a timely basis, and in a manner that is consistent with normal business practice. The procedures are intended to facilitate the transmission of requests; allow the market to indicate the availability of the supply of products that are the subject of requests; make available promptly, to interested entities and the public, information regarding the requests for products and offers received for those products; ensure wide participation by interested entities and parties; allow for careful review and consideration of information provided to substantiate requests and responses; and provide timely public dissemination of information used by CITA in making commercial availability determinations.

    CITA must collect certain information about fabric, yarn, or fiber technical specifications and the production capabilities of Colombian and U.S. textile producers to determine whether certain fabrics, yarns, or fibers are available in commercial quantities in a timely manner in the United States or Colombia, subject to Section 203(o) of the Act.

    Affected Public: Business or other for-profit.

    Frequency: Varies.

    Respondent's Obligation: Voluntary.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-21079 Filed 9-26-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-484-803] Large Diameter Welded Pipe From Greece: Amended Preliminary Determination of Sales at Less Than Fair Value AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On August 27, 2018, the Department of Commerce (Commerce) published its preliminary determination in the less-than-fair-value investigation of large diameter welded pipe (welded pipe) from Greece in the Federal Register. Commerce is amending this preliminary determination to correct a significant ministerial error.

    DATES:

    Applicable September 27, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Brittany Bauer, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3860.

    SUPPLEMENTARY INFORMATION:

    Background

    On August 27, 2018, Commerce published in the Federal Register the Preliminary Determination in the less-than-fair-value investigation of welded pipe from Greece,1 and disclosed all calculations to interested parties. On August 27, 2018, Corinth Pipework Pipe Industry S.A. (Corinth), timely filed a ministerial error allegation concerning the Preliminary Determination and requested, pursuant to 19 CFR 351.224(e), that Commerce correct the alleged ministerial error.2 No additional parties submitted comments.

    1See Large Diameter Welded Pipe from Greece: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 83 FR 43640 (August 27, 2018) (Preliminary Determination).

    2See Corinth's Letter re: Antidumping Investigation of Large Diameter Welded Pipe from Greece—Comments Regarding Significant Ministerial Error in Preliminary Determination, dated August 27, 2018 (Corinth Ministerial Error Allegation).

    Scope of the Investigation

    The product covered by this investigation is welded pipe from Greece. For a complete description of the scope of this investigation, see the Appendix.

    Significant Ministerial Error

    In accordance with 19 CFR 351.224(e), Commerce “will analyze any comments received and, if appropriate, correct any significant ministerial error by amending the preliminary determination.” A ministerial error is defined in 19 CFR 351.224(f) as “an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.” A significant ministerial error is defined as a ministerial error, the correction of which, singly or in combination with other errors, would result in: (1) A change of at least five absolute percentage points in, but not less than 25 percent of, the weighted-average dumping margin calculated in the original (erroneous) preliminary determination; or (2) a difference between a weighted-average dumping margin of zero or de minimis and a weighted-average dumping margin of greater than de minimis or vice versa.3

    3See 19 CFR 351.224(g)(1) and (2).

    Ministerial Error Allegation

    Corinth timely alleged that Commerce made a significant ministerial error regarding the calculation of certain freight and storage fees for which Corinth received reimbursement from the customer.4 No other party alleged ministerial errors in Commerce's Preliminary Determination. After analyzing Corinth's allegation, we determine that we made a significant ministerial error in the Preliminary Determination with respect to our treatment of certain freight and storage fees in the U.S. market.5 For a detailed discussion of Corinth's ministerial error allegation, as well as Commerce's analysis of this error, see the Ministerial Error Memorandum.

    4See Corinth Ministerial Error Allegation, at 1-2 and 4.

    5See Memorandum, “Less-Than-Fair-Value Investigation of Large Diameter Welded Pipe from Greece: Allegation of Ministerial Error in the Preliminary Determination,” dated concurrently with, and hereby adopted by, this notice (Ministerial Error Memorandum).

    Pursuant to 19 CFR 351.224(g)(1), Commerce's error in the calculation of Corinth's freight and storage expenses is significant, because its correction results in a change of at least five absolute percentage points in, but not less than 25 percent of, the estimated weighted-average dumping margin calculated in the Preliminary Determination (i.e., a change from an estimated weighted-average dumping margin of 22.51 percent to 7.45 percent). Therefore, we are correcting this ministerial error and amending our Preliminary Determination accordingly.6

    6See Ministerial Error Memorandum.

    Amended Preliminary Determination

    We are amending the Preliminary Determination to reflect the correction of a significant ministerial error made in the margin calculation for Corinth in accordance with 19 CFR 351.224(e). In addition, because the preliminary “All-Others” rate was based on the estimated weighted-average dumping margin calculated for Corinth, we are also amending the “All-Others” rate. As a result of the correction of the ministerial error, the revised estimated weighted-average dumping margins are as follows:

    Exporter/producer Estimated
  • weighted-
  • average
  • dumping
  • margin
  • (percent)
  • Corinth Pipeworks Pipe Industry S.A 7.45 All-Others 7.45
    Amended Cash Deposits and Suspension of Liquidation

    The collection of cash deposits and suspension of liquidation will be revised according to the rates established in this amended preliminary determination, in accordance with section 733(d) of the Tariff Act of 1930, as amended (the Act). Because these amended rates result in reduced cash deposit rates, they will be effective retroactively to August 27, 2018, the date of publication of the Preliminary Determination.

    International Trade Commission Notification

    In accordance with section 733(f) of the Act, we intend to notify the International Trade Commission of our amended preliminary determination.

    Disclosure

    We intend to disclose the calculations performed to parties in this proceeding within five days after public announcement of the amended preliminary determination, in accordance with 19 CFR 351.224.

    This amended preliminary determination is issued and published in accordance with sections 733(f) and 777(i) of the Act and 19 CFR 351.224(e).

    Dated: September 14, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix Scope of the Investigation

    The merchandise covered by this investigation is welded carbon and alloy steel pipe (including stainless steel pipe), more than 406.4 mm (16 inches) in nominal outside diameter (large diameter welded pipe), regardless of wall thickness, length, surface finish, grade, end finish, or stenciling. Large diameter welded pipe may be used to transport oil, gas, slurry, steam, or other fluids, liquids, or gases. It may also be used for structural purposes, including, but not limited to, piling. Specifically, not included is large diameter welded pipe produced only to specifications of the American Water Works Association (AWWA) for water and sewage pipe.

    Large diameter welded pipe used to transport oil, gas, or natural gas liquids is normally produced to the American Petroleum Institute (API) specification 5L. Large diameter welded pipe may also be produced to American Society for Testing and Materials (ASTM) standards A500, A252, or A53, or other relevant domestic specifications, grades and/or standards. Large diameter welded pipe can be produced to comparable foreign specifications, grades and/or standards or to proprietary specifications, grades and/or standards, or can be non-graded material. All pipe meeting the physical description set forth above is covered by the scope of this investigation, whether or not produced according to a particular standard.

    Subject merchandise also includes large diameter welded pipe that has been further processed in a third country, including but not limited to coating, painting, notching, beveling, cutting, punching, welding, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope large diameter welded pipe.

    The large diameter welded pipe that is subject to this investigation is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 7305.11.1030, 7305.11.1060, 7305.11.5000, 7305.12.1030, 7305.12.1060, 7305.12.5000, 7305.19.1030, 7305.19.1060, 7305.19.5000, 7305.31.4000, 7305.31.6010, 7305.31.6090, 7305.39.1000 and 7305.39.5000. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.

    [FR Doc. 2018-20935 Filed 9-26-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-981] Utility Scale Wind Towers From the People's Republic of China: Notice of Rescission of Antidumping Duty Administrative Review; 2017-2018 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) is rescinding its administrative review of utility scale wind towers (wind towers) from the People's Republic of China (China) for the period of review (POR) February 1, 2017, through January 31, 2018, based on the withdrawal of the request for review.

    DATES:

    Applicable September 27, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Maisha Cryor, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5831.

    SUPPLEMENTARY INFORMATION:

    Background

    On February 1, 2018, Commerce published the notice of opportunity to request an administrative review of the antidumping duty order on wind towers from China for the above POR.1 On February 28, 2018, in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213(b), Commerce received a timely request from the Wind Tower Trade Coalition (the petitioner) to conduct an administrative review of this antidumping duty order.2

    1See Antidumping or Countervailing Duty, Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 83 FR 4639 (February 1, 2018).

    2See Letter from the petitioner, “Utility Scale Wind Towers from the People's Republic of China: Request for Administrative Review,” dated February 28, 2018.

    Pursuant to this request, and in accordance with 19 CFR 351.225(c)(1)(i), on April 16, 2018, Commerce published a notice of initiation of an administrative review of the antidumping duty order on wind towers from China.3 On May 23, 2018, the petitioner timely withdrew its request for an administrative review of all 56 companies for which it had requested a review.4

    3See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 83 FR 16298 (April 16, 2018) (Initiation Notice).

    4See Letter from the petitioner, “Utility Scale Wind Towers from the People's Republic of China: Withdrawal of Request for Administrative Review,” dated May 23, 2018.

    Rescission of Review

    Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if the party that requested a review withdraws the request within 90 days of the publication date of the notice of initiation of the requested review. As noted above, the petitioner withdrew its request for review within 90 days of the publication date of the Initiation Notice. No other parties requested an administrative review of the order. Therefore, in accordance with 19 CFR 351.213(d)(1), we are rescinding this review on wind towers from China covering the period February 1, 2017 through January 31, 2018, in its entirety.

    Assessment

    Commerce will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of wind towers from China. Antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions to CBP 15 days after the date of publication of this notice of rescission of administrative review in the Federal Register.

    Notification to Importers

    This notice also serves as a final reminder to importers for whom this review is being rescinded of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties.

    Notification Regarding Administrative Protective Orders

    This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

    This notice is published in accordance with section 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).

    Dated: September 24, 2018. James Maeder, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations performing the duties of Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2018-21066 Filed 9-26-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-552-814] Utility Scale Wind Towers From the Socialist Republic of Vietnam: Notice of Rescission of Antidumping Duty Administrative Review; 2017-2018 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) is rescinding its administrative review of utility scale wind towers (wind towers) from the Socialist Republic of Vietnam (Vietnam) for the period or review (POR) February 1, 2017, through January 31, 2018, based on the withdrawal of request for review.

    DATES:

    Applicable September 27, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Stephen Bailey, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0193.

    SUPPLEMENTARY INFORMATION:

    Background

    On February 1, 2018, Commerce published the notice of opportunity to request an administrative review of the antidumping duty order on wind towers from Vietnam for the above POR.1 On February 28, 2018, in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213(b), Commerce received a timely request from the Wind Tower Trade Coalition (the petitioner) to conduct an administrative review of this antidumping duty order.2

    1See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 83 FR 4639 (February 1, 2018).

    2See Petitioner's Letter, “Utility Scale Wind Towers from the Socialist Republic of Vietnam: Request for Administrative Review,” dated February 28, 2018.

    Pursuant to this request, and in accordance with 19 CFR 351.221(c)(1)(i), on April 16, 2018, Commerce published a notice of initiation of an administrative review of the antidumping duty order on wind towers from Vietnam.3 On May 23, 2018, the petitioner timely withdrew its request for an administrative review of all four companies for which it had requested a review.4

    3See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 83 FR 16298 (April 16, 2018) (Initiation Notice).

    4See Petitioner's Letter, “Utility Scale Wind Towers from the Socialist Republic of Vietnam: Withdrawal of Request for Administrative Review,” dated May 23, 2018.

    Rescission of Review

    Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if the party that requested the review withdraws the request within 90 days of the publication date of the notice of initiation of review. As noted above, the petitioner withdrew its request for review within 90 days of the publication date of the Initiation Notice. No other parties requested an administrative review of the order. Therefore, in accordance with 19 CFR 351.213(d)(1), we are rescinding this review on wind towers from Vietnam covering the period February 1, 2017, through January 31, 2018, in its entirety.

    Assessment

    Commerce will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of wind towers from Vietnam. Antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions to CBP 15 days after the date of publication of this notice of rescission of administrative review in the Federal Register.

    Notification to Importers

    This notice also serves as a final reminder to importers for whom this review is being rescinded of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties.

    Notification Regarding Administrative Protective Order

    This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

    This notice is published in accordance with section 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).

    Dated: September 24, 2018. James Maeder, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations performing the duties of Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2018-21067 Filed 9-26-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Meeting of the Advisory Committee on Commercial Remote Sensing ACTION:

    Notice of meeting.

    SUMMARY:

    The Advisory Committee on Commercial Remote Sensing (“ACCRES” or “the Committee”) will meet October 18, 2018.

    DATES:

    The meeting is scheduled as follows: October 18, 2018, 9:00 a.m.-4:00 p.m. There will be a one hour lunch break from 12:00 p.m.-1:00 p.m.

    ADDRESSES:

    The meeting will be held at the District Architecture Center—421 7th Street NW, Washington, DC 20004.

    FOR FURTHER INFORMATION CONTACT:

    Samira Patel, NOAA/NESDIS/CRSRA, 1335 East-West Highway, G-101, Silver Spring, Maryland 20910; (301) 713-7077 or [email protected]

    SUPPLEMENTARY INFORMATION:

    As required by Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. 2 (FACA) and its implementing regulations, see 41 CFR 102-3.150, notice is hereby given of the meeting of ACCRES. ACCRES was established by the Secretary of Commerce (Secretary) on May 21, 2002, to advise the Secretary of Commerce through the Under Secretary of Commerce for Oceans and Atmosphere on matters relating to the U.S. commercial remote sensing space industry and on the National Oceanic and Atmospheric Administration's activities to carry out the responsibilities of the Department of Commerce set forth in the National and Commercial Space Programs Act of 2010 (51 U.S.C. 60101 et seq.).

    Purpose of the Meeting and Matters To Be Considered

    The meeting will be open to the public pursuant to Section 10(a)(1) of the FACA. During the meeting, the Committee will receive updates on NOAA's Commercial Remote Sensing Regulatory Affairs activities and discuss updates to the commercial remote sensing regulatory regime. The Committee will also discuss updates in the regulations and trends in international regulatory regimes. The Committee will be available to receive public comments on its activities.

    Special Accommodations

    The meeting is physically accessible to people with disabilities. Requests for special accommodations may be directed to Samira Patel, NOAA/NESDIS/CRSRA, 1335 East-West Highway, G-101, Silver Spring, Maryland 20910; (301) 713-7077 or [email protected]

    Additional Information and Public Comments

    Any member of the public who plans to attend the open meeting should RSVP to Samira Patel at (301) 713-7077, or [email protected] by October 15, 2018. Any member of the public wishing further information concerning the meeting or who wishes to submit oral or written comments should contact Tahara Dawkins, Designated Federal Officer for ACCRES, NOAA/NESDIS/CRSRA, 1335 East-West Highway, G-101, Silver Spring, Maryland 20910; (301) 713-3385 or [email protected] Copies of the draft meeting agenda will be posted on the Commercial Remote Sensing Regulatory Affairs Office at https://www.nesdis.noaa.gov/CRSRA/accresMeetings.html.

    ACCRES expects that public statements presented at its meetings will not be repetitive of previously-submitted oral or written statements. In general, each individual or group making an oral presentation may be limited to a total time of five minutes. Written comments sent to NOAA/NESDIS/CRSRA on or before October 10, 2018 will be provided to Committee members in advance of the meeting. Comments received too close to the meeting date will normally be provided to Committee members at the meeting.

    Stephen M. Volz, Assistant Administrator for Satellite and Information Services.
    [FR Doc. 2018-21078 Filed 9-26-18; 8:45 am] BILLING CODE 3510-HR-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG030 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to U.S. Navy's Office of Naval Research Arctic Research Activities AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; issuance of an incidental harassment authorization.

    SUMMARY:

    In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the U.S. Navy's Office of Naval Research (ONR) to incidentally harass, by Level B harassment only, marine mammals during research activities associated with the Arctic Research Activities project in the Beaufort and Chukchi Seas. The Navy's activities are considered military readiness activities pursuant to the MMPA, as amended by the National Defense Authorization Act for Fiscal Year 2004 (NDAA).

    DATES:

    This Authorization is effective from September 20, 2018, through September 19, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Amy Fowler, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities. In case of problems accessing these documents, please call the contact listed above.

    SUPPLEMENTARY INFORMATION:

    Background

    The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed incidental take authorization may be provided to the public for review.

    Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable [adverse] impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the monitoring and reporting of such takings.

    The NDAA (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated above and amended the definition of “harassment” as it applies to a “military readiness activity.” The activity for which incidental take of marine mammals has been authorized qualifies as a military readiness activity. The Navy's action constitutes a military readiness activity because these scientific research activities directly support the adequate and realistic testing of military equipment, vehicles, weapons, and sensors for proper operation and suitability for combat use by providing critical data on the changing natural and physical environment in which such materiel will be assessed and deployed. This scientific research also directly supports fleet training and operations by providing up to date information and data on the natural and physical environment essential to training and operations. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.

    Summary of Request

    On April 6, 2018, NMFS received a request from ONR for an IHA to take marine mammals incidental to Arctic Research Activities in the Beaufort and Chukchi Seas. ONR's application was determined adequate and complete on August 7, 2018. ONR's request is for take of beluga whales (Delphinapterus leucas), bearded seals (Erignathus barbatus), and ringed seals (Pusa hispida hispida) by Level B harassment only. Neither ONR nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.

    This IHA covers one year of a larger project for which ONR intends to request take authorization for subsequent facets of the project. This IHA is valid from September 20, 2018, through September 19, 2019. The larger three-year project involves several scientific objectives which support the Arctic and Global Prediction Program, as well as the Ocean Acoustics Program and the Naval Research Laboratory, for which ONR is the parent command.

    Description of Activity Overview

    ONR's Arctic Research Activities involve scientific experiments conducted in support of the Arctic and Global Prediction Program, the Stratified Ocean Dynamics of the Arctic (SODA), Arctic Mobile Observing System (AMOS), Ocean Acoustics field work, and Naval Research Laboratory (NRL) in the Beaufort and Chukchi Seas in 2018 and 2019. The study area for the Arctic Research Activities is located in the U.S. Exclusive Economic Zone (EEZ) and the high seas north of Alaska (see Figure 1-1 in the IHA application). The total area of the study area is 257,723 square miles (mi2) (667,500 square kilometers (km2)).

    Beginning in late September 2018, the U.S. Coast Guard Cutter (CGC) HEALY and the Research Vessel (R/V) Sikuliaq will be used to tow and deploy acoustic sources. CGC HEALY may also be required to perform icebreaking to deploy the moored and ice-tethered acoustic sources. A maximum of four research cruises (one cruise per vessel in each calendar year) of up to 30 days are expected. Each vessel may tow sources for up to 8 hours per day for 15 days during each cruise in open water or marginal ice. Once deployed, moored and drifting sources would operate intermittently each day for up to three years (only the first year is authorized by this IHA). Icebreaking may occur on up to 4 days.

    A detailed description of the planned Arctic Research Activities project is provided in the Federal Register notice for the proposed IHA (83 FR 40234; August 14, 2018). Since that time, no changes have been made to the planned Arctic Research Activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specified activity.

    Comments and Responses

    A notice of NMFS's proposal to issue an IHA to ONR was published in the Federal Register on August 14, 2018 (83 FR 40234). That notice described, in detail, ONR's activity, the marine mammal species that may be affected by the activity, and the anticipated effects on marine mammals. During the 30-day public comment period, NMFS received a comment from the Marine Mammal Commission (Commission).

    Comment 1: The Commission noted that the Navy used cutoff distances instead of relying on Bayesian biphasic dose response functions (BRFs) to inform take estimates. The Commission asserted that the cutoff distances used by the Navy are unsubstantiated and that the Navy arbitrarily set a cutoff distance of 10 kilometers (km) for pinnipeds, which could effectively eliminate a large portion of the estimated number of takes. The Commission, therefore, recommended that the Navy refrain from using cut-off distances in conjunction with the Bayesian BRFs.

    Response: We disagree with the Navy's recommendation. The derivation of the behavioral response functions and associated cutoff distances is provided in the Navy's Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (Phase III) technical report (Navy 2017a). The consideration of proximity (distance cutoff) was part of criteria developed in consultation with NMFS and was applied within the Navy's BRF. Distance cutoffs beyond which the potential of significant behavioral responses were considered to be unlikely were used in conducting analysis for ONR's Arctic Research Activities. The Navy's BRF applied within these distances is an appropriate method for providing a realistic (but still conservative where some uncertainties exist) estimate of impact and potential take for these activities.

    Comment 2: The Commission also noted that a standard requirement for coordinating vessel presence in the Beaufort Sea with the Alaska Eskimo Whaling Commission (AEWC) to ensure that ONR vessels do not disrupt subsistence hunting was left out of the proposed IHA.

    Response: NMFS has included this requirement to coordinate with the AEWC in the final authorization.

    Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SAR; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS's website (https://www.fisheries.noaa.gov/find-species).

    Table 1 lists all species with expected potential for occurrence in the study area and summarizes information related to the population or stock, including regulatory status under the MMPA and the Endangered Species Act (ESA) and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2017). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.

    Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. 2017 SARs (e.g., Muto et al., 2018, Carretta et al., 2018). All values presented in Table 1 are the most recent available at the time of publication and are available in the 2017 SARs (Muto et al., 2018; Carretta et al., 2018).

    Table 1—Marine Mammal Species Potentially Present in the Project Area Common name Scientific name Stock ESA/MMPA status; strategic
  • (Y/N) 1
  • Stock
  • abundance
  • (CV, Nmin,
  • most recent
  • abundance
  • survey) 2
  • PBR Annual
  • M/SI 3
  • Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family Eschrichtiidae: Gray whale Eschrichtius robustus Eastern North Pacific -/-; N 20,900 (0.05, 20,125, 2011) 624 4.25 Family Balaenidae: Bowhead whale Balaena mysticetus Western Arctic E/D; Y 16,820 (0.052, 16,100, 2011) 161 43 Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae: Beluga whale Delphinapterus leucas Beaufort Sea -/-; N 39,258 (0.229, N/A, 1992) Undet.4 139 Beluga whale Delphinapterus leucas Eastern Chukchi Sea -/-; N 20,752 (0.70, 12.194, 2012) 244 67 Order Carnivora—Superfamily Pinnipedia Family Phocidae (earless seals): Bearded seal 5 Erignathus barbatus Alaska T/D; Y 299,174 (-, 273,676, 2013) 8,210 391 Ribbon seal Histriophoca fasciata Alaska -/-; N 184,000 (-, 163,086, 2013) 9,785 3.8 Ringed seal 5 Pusa hispida hispida Alaska T/D; Y 170,000 (-, 170,000, 2013) 5,100 1,054 Spotted seal Phoca largha Alaska -/-; N 461,625 (-, 423,237, 2013) 12,697 329 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3 These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases. 4 The 2016 guidelines for preparing SARs state that abundance estimates older than 8 years should not be used to calculate PBR due to a decline in the reliability of an aged estimate. Therefore, the PBR for this stock is considered undetermined. 5 Abundances and associated values for bearded and ringed seals are for the U.S. population in the Bering Sea only. NoteItalicized species are not expected or authorized to be taken.

    A detailed description of the species likely to be affected by the Arctic Research Activities, including brief information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register notice for the proposed IHA (83 FR 40234; August 14, 2018). Since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for those descriptions. Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

    Potential Effects of Specified Activities on Marine Mammals and Their Habitat

    The effects of underwater noise from the towed and deployed acoustic sources, as well as icebreaking, have the potential to result in behavioral harassment of marine mammals in the vicinity of the study area. The Federal Register notice for the proposed IHA (83 FR 40234; August 14, 2018) included a discussion of the effects of anthropogenic noise on marine mammals and their habitat, therefore that information is not repeated here; please refer to the Federal Register notice (83 FR 40234; August 14, 2018) for that information.

    Estimated Take

    This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS' consideration of the negligible impact determination.

    Harassment is the only type of take expected to result from these activities. For this military readiness activity, the MMPA defines “harassment” as: (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B harassment).

    Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns and temporary threshold shift (TTS) for individual marine mammals resulting from exposure to acoustic transmissions and icebreaking noise. Based on the nature of the activity, Level A harassment is neither anticipated nor authorized.

    Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (e.g., previous monitoring results or average group size). For this IHA, ONR employed a sophisticated model known as the Navy Acoustic Effects Model (NAEMO) for assessing the impacts of underwater sound. Below, we describe the factors considered here in more detail and present the authorized takes.

    Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed or incur TTS of some degree (equated to Level B harassment) or to incur a permanent threshold shift (PTS) of some degree (equated to Level A harassment).

    Level B Harassment for non-explosive sources—In coordination with NMFS, the Navy developed behavioral thresholds to support environmental analyses for the Navy's testing and training military readiness activities utilizing active sonar sources; these behavioral harassment thresholds are used here to evaluate the potential effects of the active sonar components of the planned action. The response of a marine mammal to an anthropogenic sound will depend on the frequency, duration, temporal pattern and amplitude of the sound as well as the animal's prior experience with the sound and the context in which the sound is encountered (i.e., what the animal is doing at the time of the exposure). The distance from the sound source and whether it is perceived as approaching or moving away can also affect the way an animal responds to a sound (Wartzok et al. 2003). For marine mammals, a review of responses to anthropogenic sound was first conducted by Richardson et al. (1995). Reviews by Nowacek et al. (2007) and Southall et al. (2007) addressed additional studies and focus on observations where the received sound level of the exposed marine mammal(s) was known or could be estimated. Multi-year research efforts have conducted sonar exposure studies for odontocetes and mysticetes (Miller et al. 2012; Sivle et al. 2012). Several studies with captive animals have provided data under controlled circumstances for odontocetes and pinnipeds (Houser et al. 2013a; Houser et al. 2013b). Moretti et al. (2014) published a beaked whale dose-response curve based on passive acoustic monitoring of beaked whales during U.S. Navy training activity at Atlantic Underwater Test and Evaluation Center during actual Anti-Submarine Warfare exercises. This new information necessitated the update of the behavioral response criteria for the U.S. Navy's environmental analyses.

    Southall et al. (2007) synthesized data from many past behavioral studies and observations to determine the likelihood of behavioral reactions at specific sound levels. While in general, the louder the sound source the more intense the behavioral response, it was clear that the proximity of a sound source and the animal's experience, motivation, and conditioning were also critical factors influencing the response (Southall et al. 2007). After examining all of the available data, the authors felt that the derivation of thresholds for behavioral response based solely on exposure level was not supported because context of the animal at the time of sound exposure was an important factor in estimating response. Nonetheless, in some conditions, consistent avoidance reactions were noted at higher sound levels depending on the marine mammal species or group, allowing conclusions to be drawn.

    Odontocete behavioral criteria for U.S. Navy non-impulsive, intermittent sources were updated based on controlled exposure studies for dolphins and sea mammals, sonar, and safety (3S) studies where odontocete behavioral responses were reported after exposure to sonar (Antunes et al., 2014; Houser et al., 2013b); Miller et al., 2011; Miller et al., 2014; Miller et al., 2012). For the 3S study the sonar outputs included 1-2 kilohertz (kHz) up- and down-sweeps and 6-7 kHz up-sweeps; source levels were ramped up from 152-158 decibels (dB) re 1 microPascal (µPa) to a maximum of 198-214 re 1 µPa at 1 m. Sonar signals were ramped up over several pings while the vessel approached the mammals. The study did include some control passes of ships with the sonar off to discern the behavioral responses of the mammals to vessel presence alone versus active sonar. The controlled exposure studies included exposing the Navy's trained bottlenose dolphins to mid-frequency sonar while they were in a pen. Mid-frequency sonar was played at 6 different exposure levels from 125-185 dB re 1 µPa (root mean square (rms)). The behavioral response function for odontocetes resulting from the studies described above has a 50 percent probability of response at 157 dB re 1 µPa. Additionally, distance cutoffs (20 km for MF cetaceans and 10 km for pinnipeds) were applied to exclude exposures beyond which the potential of significant behavioral responses is considered to be unlikely.

    The pinniped behavioral threshold was updated based on controlled exposure experiments on the following captive animals: hooded seal, gray seal, and California sea lion (Götz et al. 2010; Houser et al. 2013a; Kvadsheim et al. 2010). Hooded seals were exposed to increasing levels of sonar until an avoidance response was observed, while the grey seals were exposed first to a single received level multiple times, then an increasing received level. Each individual California sea lion was exposed to the same received level ten times. These exposure sessions were combined into a single response value, with an overall response assumed if an animal responded in any single session. The resulting behavioral response function for pinnipeds has a 50 percent probability of response at 166 dB re 1 μPa. Additional details regarding these criteria may be found in the technical report, Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis (2017a) which may be found at: http://aftteis.com/Portals/3/docs/newdocs/Criteria%20and%20Thresholds_TR_Submittal_05262017.pdf. This technical report was included as part of the Navy's Atlantic Fleet Training and Testing Draft Environmental Impact Statement/Overseas Environmental Impact Statement (EIS/OEIS) (Navy 2017b) which is located at: http://www.aftteis.com/.

    NMFS adopted the Navy's approach to estimating incidental take by Level B harassment from the active acoustic sources for this action, which includes use of these dose response functions. The Navy's dose response functions were developed to estimate take from sonar and similar transducers and are not applicable to icebreaking. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 dB re 1 μPa (rms) for continuous (e.g., vibratory pile-driving, drilling, icebreaking) and above 160 dB re 1 μPa (rms) for non-explosive impulsive (e.g., seismic airguns) or non-impulsive, intermittent (e.g., scientific sonar) sources. Thus, take of marine mammals by Level B harassment due to icebreaking has been calculated using the Navy's NAEMO model using the 120 dB re 1 µPa (rms) received level threshold for behavioral response.

    Level A harassment for non-explosive sources—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). ONR's planned activities involve only non-impulsive sources.

    These thresholds are provided in Table 2 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

    Table 2—Injury (PTS) Thresholds for Underwater Sounds Hearing group PTS onset acoustic thresholds * Impulsive Non-impulsive Low-Frequency (LF) Cetaceans Cell 1: L pk,flat: 219 dB; L E,LF,24h: 183 dB Cell 2: L E,LF,24h: 199 dB. Mid-Frequency (MF) Cetaceans Cell 3: L pk,flat: 230 dB; L E,MF,24h: 185 dB Cell 4: L E,MF,24h: 198 dB. High-Frequency (HF) Cetaceans Cell 5: L pk,flat: 202 dB; L E,HF,24h: 155 dB Cell 6: L E,HF,24h: 173 dB. Phocid Pinnipeds (PW) (Underwater) Cell 7: L pk,flat: 218 dB; L E,PW,24h: 185 dB Cell 8: L E,PW,24h: 201 dB. Otariid Pinnipeds (OW) (Underwater) Cell 9: L pk,flat: 232 dB; L E,OW,24h: 203 dB Cell 10: L E,OW,24h: 219 dB. * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level threshold associated with impulsive sounds, these thresholds should also be considered. Note: Peak sound pressure (L pk) has a reference value of 1 µPa, and cumulative sound exposure level (L E) has a reference value of 1 µPa2s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript “flat” is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. Quantitative Modeling

    The Navy performed a quantitative analysis to estimate the number of marine mammals that could be harassed by the underwater acoustic transmissions during the planned action. Inputs to the quantitative analysis included marine mammal density estimates, marine mammal depth occurrence distributions (Navy 2017a), oceanographic and environmental data, marine mammal hearing data, and criteria and thresholds for levels of potential effects. The quantitative analysis consists of computer modeled estimates and a post-model analysis to determine the number of potential animal exposures. The model calculates sound energy propagation from the planned non-impulsive acoustic sources and icebreaking, the sound received by animat (virtual animal) dosimeters representing marine mammals distributed in the area around the modeled activity, and whether the sound received by animats exceeds the thresholds for effects.

    The Navy developed a set of software tools and compiled data for estimating acoustic effects on marine mammals without consideration of behavioral avoidance or mitigation. These tools and data sets serve as integral components of NAEMO. In NAEMO, animats are distributed non-uniformly based on species-specific density, depth distribution, and group size information and animats record energy received at their location in the water column. A fully three-dimensional environment is used for calculating sound propagation and animat exposure in NAEMO. Site-specific bathymetry, sound speed profiles, wind speed, and bottom properties are incorporated into the propagation modeling process. NAEMO calculates the likely propagation for various levels of energy (sound or pressure) resulting from each source used during the training event.

    NAEMO then records the energy received by each animat within the energy footprint of the event and calculates the number of animats having received levels of energy exposures that fall within defined impact thresholds. Predicted effects on the animats within a scenario are then tallied and the highest order effect (based on severity of criteria; e.g., PTS over TTS) predicted for a given animat is assumed. Each scenario, or each 24-hour period for scenarios lasting greater than 24 hours (which NMFS recommends in order to ensure more consistent quantification of take across actions), is independent of all others, and therefore, the same individual marine animal (as represented by an animat in the model environment) could be impacted during each independent scenario or 24-hour period. In few instances, although the activities themselves all occur within the study area, sound may propagate beyond the boundary of the study area. Any exposures occurring outside the boundary of the study area are counted as if they occurred within the study area boundary. NAEMO provides the initial estimated impacts on marine species with a static horizontal distribution (i.e., animats in the model environment do not move horizontally).

    There are limitations to the data used in the acoustic effects model, and the results must be interpreted within this context. While the best available data and appropriate input assumptions have been used in the modeling, when there is a lack of definitive data to support an aspect of the modeling, conservative modeling assumptions have been chosen (i.e., assumptions that may result in an overestimate of acoustic exposures):

    • Animats are modeled as being underwater, stationary, and facing the source and therefore always predicted to receive the maximum potential sound level at a given location (i.e., no porpoising or pinnipeds' heads above water);

    • Animats do not move horizontally (but change their position vertically within the water column), which may overestimate physiological effects such as hearing loss, especially for slow moving or stationary sound sources in the model;

    • Animats are stationary horizontally and therefore do not avoid the sound source, unlike in the wild where animals would most often avoid exposures at higher sound levels, especially those exposures that may result in PTS;

    • Multiple exposures within any 24-hour period are considered one continuous exposure for the purposes of calculating potential threshold shift, because there are not sufficient data to estimate a hearing recovery function for the time between exposures; and

    • Mitigation measures were not considered in the model. In reality, sound-producing activities would be reduced, stopped, or delayed if marine mammals are detected by visual monitoring.

    Because of these inherent model limitations and simplifications, model-estimated results were further analyzed, considering such factors as the range to specific effects, avoidance, and the likelihood of successfully implementing mitigation measures. This analysis uses a number of factors in addition to the acoustic model results to predict acoustic effects on marine mammals.

    The underwater radiated noise signature for icebreaking in the central Arctic Ocean by CGC HEALY during different types of ice cover was characterized in Roth et al. (2013). The radiated noise signatures were characterized for various fractions of ice cover (represented as the proportion of ice out of 10, with 10/10 being total ice coverage). For modeling, the 8/10 and 3/10 ice cover were used based on the data available. Each modeled day of icebreaking consisted of 16 hours of 8/10 ice cover and 8 hours of 3/10 ice cover, which was considered a fairly conservative way of representing the expected ice cover based on what is known. Icebreaking was modeled for 4 days each year. The sound signature of each of the ice coverage levels was broken into 1-octave bins (Table 3). In the model, each bin was included as a separate source on the modeled vessel. When these independent sources go active concurrently, they simulate the sound signature of CGC HEALY. The modeled source level summed across these bins was 196.2 dB for the 8/10 signature and 189.3 dB for the 3/10 ice signature. These source levels are a good approximation of the icebreaker's observed source level (Roth et al., 2013). Each frequency and source level was modeled as an independent source, and applied simultaneously to all of the animats within the model environment. Each second was summed across frequency to estimate sound pressure level (SPLrms). This value was incorporated into NAEMO using NMFS' 120 dB re 1 µPa continuous sound source threshold to estimate Level B harassment. For PTS and TTS determinations, sound exposure levels were summed over the duration of the test and the transit to the deep water deployment level.

    Table 3—Modeled Bins for Icebreaking in Fractional Ice Coverage on CGC HEALY Frequency
  • (Hz)
  • 8/10 Ice
  • coverage
  • (full power)
  • Source level
  • (dB)
  • 3/10 Ice
  • coverage
  • (quarter power)
  • Source level
  • (dB)
  • 25 189 187 50 188 182 100 189 179 200 190 177 400 188 175 800 183 170 1,600 177 166 3,200 176 171 6,400 172 168 12,800 167 164

    For the other non-impulsive sources, NAEMO calculates the SPL and SEL for each active emission during an event. This is done by taking the following factors into account over the propagation paths: Bathymetric relief and bottom types, sound speed, and attenuation contributors such as absorption, bottom loss, and surface loss. Platforms such as a ship using one or more sound sources are modeled in accordance with relevant vehicle dynamics and time durations by moving them across an area whose size is representative of the testing event's operational area. Table 4 provides range to effects for non-impulsive sources and icebreaking noise planned for the Arctic research activities to mid-frequency cetacean and pinniped specific criteria. Marine mammals within these ranges would be predicted to receive the associated effect. Range to effects is important information in not only predicting non-impulsive acoustic impacts, but also in verifying the accuracy of model results against real-world situations and determining adequate mitigation ranges to avoid higher level effects, especially physiological effects in marine mammals. Therefore, the ranges in Table 4 provide realistic maximum distances over which the specific effects from the use of non-impulsive sources during the planned action would be possible.

    Table 4—Range to PTS, TTS, and Behavioral Effects in the Study Area Source Range to behavioral effects (m) MF cetacean Pinniped Range to TTS effects (m) MF cetacean Pinniped Range to PTS effects (m) MF cetacean Pinniped LF4 towed source 20,000 10,000 0 1 0 0 LF5 towed source 20,000 10,000 0 1 0 0 MF9 towed source 20,000 10,000 4 50 0 4 Navigation and real-time sensing sources 20,000 10,000 0 6 0 0 Tomography sources 20,000 10,000 0 2 0 0 Spherical Wave source 20,000 10,000 0 0 0 0 Icebreaking noise 4,275 4,525 3 12 0 0

    A behavioral response study conducted on and around the Navy range in Southern California (SOCAL BRS) observed reactions to sonar and similar sound sources by several marine mammal species, including Risso's dolphins (Grampus griseus), a mid-frequency cetacean (DeRuiter et al., 2013; Goldbogen et al., 2013; Southall et al., 2011; Southall et al., 2012; Southall et al., 2013; Southall et al., 2014). In preliminary analysis, none of the Risso's dolphins exposed to simulated or real mid-frequency sonar demonstrated any overt or obvious responses (Southall et al., 2012, Southall et al., 2013). In general, although the responses to the simulated sonar were varied across individuals and species, none of the animals exposed to real Navy sonar responded; these exposures occurred at distances beyond 10 km, and were up to 100 km away (DeRuiter et al., 2013; B. Southall pers. comm.). These data suggest that most odontocetes (not including beaked whales and harbor porpoises) likely do not exhibit significant behavioral reactions to sonar and other transducers beyond approximately 10 km. Therefore, the Navy uses a cutoff distance for odontocetes of 10 km for moderate source level, single platform training and testing events, and 20 km for all other events, including the planned Arctic Research Activities (Navy 2017a).

    Southall et al. (2007) report that pinnipeds do not exhibit strong reactions to SPLs up to 140 dB re 1 µPa from non-impulsive sources. While there are limited data on pinniped behavioral responses beyond about 3 km in the water, the Navy uses a distance cutoff of 5 km for moderate source level, single platform training and testing events, and 10 km for all other events, including the planned Arctic Research Activities (Navy 2017a).

    NMFS and the Navy conservatively implemented a distance cutoff of 5.4 nmi (10 km) for pinnipeds, and 10.8 nmi (20 km) for mid-frequency cetaceans (Navy 2017a). Regardless of the received level at that distance, take is not estimated to occur beyond 10 and 20 km from the source for pinnipeds and cetaceans, respectively. Not all sources are likely to result in TTS or PTS for pinnipeds or MF cetaceans. These sources show a range to effects of 0 m (Table 4).

    As discussed above, within NAEMO animats do not move horizontally or react in any way to avoid sound. Furthermore, mitigation measures that reduce the likelihood of physiological impacts are not considered in quantitative analysis. Therefore, the model may overestimate acoustic impacts, especially physiological impacts near the sound source. The behavioral criteria used as a part of this analysis acknowledges that a behavioral reaction is likely to occur at levels below those required to cause hearing loss. At close ranges and high sound levels approaching those that could cause PTS, avoidance of the area immediately around the sound source is the assumed behavioral response for most cases.

    In previous environmental analyses, the Navy has implemented analytical factors to account for avoidance behavior and the implementation of mitigation measures. The application of avoidance and mitigation factors has only been applied to model-estimated PTS exposures given the short distance over which PTS is estimated. Given that no PTS exposures were estimated during the modeling process for this planned action, the quantitative consideration of avoidance and mitigation factors were not included in this analysis.

    If exposure were to occur, beluga whales, bearded seals, and ringed seals could exhibit behavioral responses. Additionally, ringed seals may exhibit a TTS. For the reasons included above, Level A harassment is not anticipated for any of the exposed species or stocks.

    Table 5 shows the exposures expected for the beluga whale, bearded seal, and ringed seal based on NAEMO modeled results. While density estimates for the two stocks of beluga whales are equal (Kaschner et al., 2006; Kaschner 2004), take of the Eastern Chukchi Sea beluga whale stock has been reduced to account for the lower overlap of this stock's range with the study area.

    Table 5—Authorized Takes Species Density
  • estimate within study area
  • (animals per square km) 1
  • Level B
  • harassment
  • from towed
  • and deployed sources
  • Level B
  • harassment
  • from icebreaking
  • Level A
  • harassment
  • Total
  • authorized take
  • Percentage
  • of stock taken
  • Beluga Whale (Beaufort Sea Stock) 0.0087 60 24 0 84 0.21 Beluga Whale (Eastern Chukchi Sea stock) 0.0087 6 2 0 8 0.04 Bearded Seal 0.0332 5 0 0 5 <0.01 Ringed Seal 0.3760 1,826 1,245 0 3,071 1.81 1 Kaschner et al. (2006); Kaschner (2004).
    Effects of Specified Activities on Subsistence Uses of Marine Mammals

    Subsistence hunting is important for many Alaska Native communities. A study of the North Slope villages of Nuiqsut, Kaktovik, and Barrow identified the primary resources used for subsistence and the locations for harvest (Stephen R. Braund & Associates 2010), including terrestrial mammals (caribou, moose, wolf, and wolverine), birds (geese and eider), fish (Arctic cisco, Arctic char/Dolly Varden trout, and broad whitefish), and marine mammals (bowhead whale, ringed seal, bearded seal, and walrus). Bearded seals, ringed seals, and beluga whales are located within the study area during the planned action. The permitted sources would be placed outside of the range for subsistence hunting and the study plans have been communicated to the Native communities. The closest active acoustic source within the study area (aside from the de minimis sources), is approximately 141 mi (227 km) from land. As stated above, the range to effects for acoustic sources in this experiment is relatively small (20 km). In addition, the planned action would not remove individuals from the population. Therefore, there would be no impacts caused by this action to the availability of bearded seal, ringed seal, or beluga whale for subsistence hunting. Therefore, subsistence uses of marine mammals would not be impacted by the planned action.

    Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses. (As explained above, subsistence uses of marine mammals will not be affected.) NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)). The NDAA for FY 2004 amended the MMPA as it relates to military readiness activities and the incidental take authorization process such that “least practicable impact” shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.

    In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:

    (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat, as well as subsistence uses. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned); and

    (2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.

    Mitigation for Marine Mammals and Their Habitat

    Ships operated by or for the Navy have personnel assigned to stand watch at all times, day and night, when moving through the water. While in transit, ships must use extreme caution and proceed at a safe speed such that the ship can take proper and effective action to avoid a collision with any marine mammal and can be stopped within a distance appropriate to the prevailing circumstances and conditions.

    Exclusion zones for active acoustics involve turning off towed sources when a marine mammal is sighted within 200 yards (yd; 183 m) from the source. Active transmission will re-commence if any one of the following conditions are met: (1) The animal is observed exiting the exclusion zone, (2) the animal is thought to have exited the exclusion zone based on its course and speed and relative motion between the animal and the source, (3) the exclusion zone has been clear from any additional sightings for a period of 15 minutes for pinnipeds and 30 minutes for cetaceans, or (4) the ship has transited more than 400 yd (366 m) beyond the location of the last sighting.

    During mooring deployment, visual observation must start 30 minutes prior to and continue throughout the deployment within an exclusion zone of 60 yd (55 m) around the deployed mooring. Deployment will stop if a marine mammal is visually detected within the exclusion zone. Deployment will re-commence if any one of the following conditions are met: (1) The animal is observed exiting the exclusion zone, (2) the animal is thought to have exited the exclusion zone based on its course and speed, or (3) the exclusion zone has been clear from any additional sightings for a period of 15 minutes for pinnipeds and 30 minutes for cetaceans. Visual monitoring will continue through 30 minutes following the deployment of sources.

    Ships must avoid approaching marine mammals head on and maneuver to maintain an exclusion zone of 500 yd (457 m) around observed whales, and 200 yd (183 m) around all other marine mammals, provided it is safe to do so in ice free waters.

    Moored and drifting sources are left in place and cannot be turned off until the following year during ice free months. Once they are programmed, they will operate at the specified pulse lengths and duty cycles until they are either turned off the following year or there is failure of the battery and are not able to operate. Due to the ice covered nature of the Arctic, it is not possible to recover the sources or interfere with their transmit operations in the middle of the year.

    These requirements do not apply if a vessel's safety is at risk, such as when a change of course would create an imminent and serious threat to safety, person, vessel, or aircraft, and to the extent vessels are restricted in their ability to maneuver. No further action is necessary if a marine mammal other than a whale continues to approach the vessel after there has already been one maneuver and/or speed change to avoid the animal. Avoidance measures should continue for any observed whale in order to maintain an exclusion zone of 500 yd (457 m).

    All personnel conducting on-ice experiments, as well as all aircraft operating in the study area, are required to maintain a separation distance of 1,000 ft (305 m) from any sighted pinniped.

    All ships are required to coordinate with the Alaska Eskimo Whaling Commission (AEWC) using established check-in and communication procedures when vessels approach subsistence hunting areas.

    Based on our evaluation of the applicant's planned measures, NMFS has determined that the mitigation measures provide the means of effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses.

    Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.

    Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:

    • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density).

    • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas).

    • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors.

    • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks.

    • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat).

    • Mitigation and monitoring effectiveness.

    While underway, the ships (including non-Navy ships operating on behalf of the Navy) utilizing active acoustics and towed in-water devices will have at least one watch person during activities. Watch personnel undertake extensive training in accordance with the U.S. Navy Lookout Training Handbook or civilian equivalent, including on the job instruction and a formal Personal Qualification Standard program (or equivalent program for supporting contractors or civilians), to certify that they have demonstrated all necessary skills (such as detection and reporting of floating or partially submerged objects). Their duties may be performed in conjunction with other job responsibilities, such as navigating the ship or supervising other personnel. While on watch, personnel employ visual search techniques, including the use of binoculars, using a scanning method in accordance with the U.S. Navy Lookout Training Handbook or civilian equivalent. A primary duty of watch personnel is to detect and report all objects and disturbances sighted in the water that may be indicative of a threat to the ship and its crew, such as debris, or surface disturbance. Per safety requirements, watch personnel also report any marine mammals sighted that have the potential to be in the direct path of the ship as a standard collision avoidance procedure.

    The U.S. Navy has coordinated with NMFS to develop an overarching program plan in which specific monitoring would occur. This plan is called the Integrated Comprehensive Monitoring Program (ICMP) (Navy 2011). The ICMP was developed in direct response to Navy permitting requirements established through various environmental compliance efforts. As a framework document, the ICMP applies by regulation to those activities on ranges and operating areas for which the Navy is seeking or has sought incidental take authorizations. The ICMP is intended to coordinate monitoring efforts across all regions and to allocate the most appropriate level and type of effort based on a set of standardized research goals, and in acknowledgement of regional scientific value and resource availability.

    The ICMP is focused on Navy training and testing ranges where the majority of Navy activities occur regularly as those areas have the greatest potential for being impacted. ONR's Arctic Research Activities in comparison is a less intensive test with little human activity present in the Arctic. Human presence is limited to a minimal amount of days for possible towed source operations and source deployments, in contrast to the large majority (>95%) of time that the sources will be left behind and operate autonomously. Therefore, a dedicated monitoring project is not warranted.

    ONR previously conducted experiments in the Beaufort Sea as part of the Canadian Basin Acoustic Propagation Experiments (CANAPE) project in 2016 and 2017. The goal of the CANAPE project was to determine the fundamental limits to the use of acoustic methods and signal processing imposed by ice and ocean processes in the changing Arctic. The CANAPE project included ten moored receiver arrays (frequencies ranging from 200 Hz to 16 kHz) that recorded 24 hours per day for one year. Recordings from the CANAPE arrays are currently being compiled and analyzed by Defense Research and Development Canada, University of Delaware, and Woods Hole Oceanographic Institute (WHOI). Researchers from WHOI are planning to do marine mammal analysis of the recordings, including density estimation. ONR is planning to release the marine mammal data collected from the CANAPE receivers to other researchers.

    As part of the planned Arctic Research Activities, ONR is deploying a moored receiver array similar to those used in CANAPE. The receiver array would be deployed during the SODA research cruises in 2018 and be recovered one year later. While a single array is a modest effort compared to the ten arrays used in CANAPE, it would provide new marine mammal monitoring data for the 2018-2019 time frame. The array would be deployed at one of the locations labeled on Figure 1-1 in the IHA application. There would be no active sources associated with the array. Once the array is recovered, the recordings would be shared alongside the CANAPE data.

    The Navy is committed to documenting and reporting relevant aspects of research and testing activities to verify implementation of mitigation, comply with permits, and improve future environmental assessments. If any injury or death of a marine mammal is observed during the 2018-19 Arctic Research Activities, the Navy will immediately halt the activity and report the incident to the Office of Protected Resources, NMFS, and the Alaska Regional Stranding Coordinator, NMFS. The following information must be provided:

    • Time, date, and location of the discovery;

    • Species identification (if known) or description of the animal(s) involved;

    • Condition of the animal(s) (including carcass condition if the animal is dead);

    • Observed behaviors of the animal(s), if alive;

    • If available, photographs or video footage of the animal(s); and

    • General circumstances under which the animal(s) was discovered (e.g., during use of towed acoustic sources, deployment of moored or drifting sources, during on-ice experiments, or by transiting vessel).

    ONR will provide NMFS with a draft exercise monitoring report within 90 days of the conclusion of the planned activity. The draft exercise monitoring report will include data regarding acoustic source use and any mammal sightings or detection will be documented. The report will include the estimated number of marine mammals taken during the activity. The report will also include information on the number of shutdowns recorded. If no comments are received from NMFS within 30 days of submission of the draft final report, the draft final report will constitute the final report. If comments are received, a final report must be submitted within 30 days after receipt of comments.

    Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels).

    Underwater acoustic transmissions associated with the Arctic Research Activities, as outlined previously, have the potential to result in Level B harassment of beluga whales, ringed seals, and bearded seals in the form of TTS and behavioral disturbance. No serious injury, mortality, or Level A harassment are anticipated to result from this activity.

    Minimal takes of marine mammals by Level B harassment would be due to TTS since the range to TTS effects is small at only 50 m or less while the behavioral effects range is significantly larger extending up to 20 km (Table 4). TTS is a temporary impairment of hearing and can last from minutes or hours to days (in cases of strong TTS). In many cases, however, hearing sensitivity recovers rapidly after exposure to the sound ends. Though TTS may occur in a single ringed seal, the overall fitness of the individual seal is unlikely to be affected and negative impacts to the entire stock of ringed seals are not anticipated.

    Effects on individuals that are taken by Level B harassment could include alteration of dive behavior, alteration of foraging behavior, effects to breathing rates, interference with or alteration of vocalization, avoidance, and flight. More severe behavioral responses are not anticipated due to the localized, intermittent use of active acoustic sources. Most likely, individuals will simply be temporarily displaced by moving away from the sound source. As described previously in the behavioral effects section, seals exposed to non-impulsive sources with a received sound pressure level within the range of calculated exposures (142-193 dB re 1 µPa), have been shown to change their behavior by modifying diving activity and avoidance of the sound source (Götz et al., 2010; Kvadsheim et al., 2010). Although a minor change to a behavior may occur as a result of exposure to the sound sources associated with the planned action, these changes would be within the normal range of behaviors for the animal (e.g., the use of a breathing hole further from the source, rather than one closer to the source, would be within the normal range of behavior). Thus, even repeated Level B harassment of some small subset of the overall stock is unlikely to result in any significant realized decrease in fitness for the affected individuals, and would not result in any adverse impact to the stock as a whole.

    The project is not expected to have significant adverse effects on marine mammal habitat. While the activities may cause some fish to leave the area of disturbance, temporarily impacting marine mammals' foraging opportunities, this would encompass a relatively small area of habitat leaving large areas of existing fish and marine mammal foraging habitat unaffected. Icebreaking may temporarily affect the availability of pack ice for seals to haul out but the proportion of ice disturbed is small relative to the overall amount of available ice habitat. Icebreaking will not occur during the time of year when ringed seals are expected to be within subnivean lairs or pupping (Chapskii 1940; McLaren 1958; Smith and Stirling 1975). As such, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.

    In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:

    • No injury, serious injury, or mortality is anticipated or authorized;

    • Behavioral Impacts will be limited to Level B harassment of a relatively minor nature;

    • Minimal takes by Level B harassment will be due to TTS; and

    • There will be no permanent or significant loss or modification of marine mammal prey or habitat.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the planned activity will have a negligible impact on all affected marine mammal species or stocks.

    Unmitigable Adverse Impact Analysis and Determination

    Impacts to subsistence uses of marine mammals resulting from the planned action are not anticipated. The closest active acoustic source within the study area is approximately 141 mi (227 km) from land, outside of known subsistence use areas. Based on this information, NMFS has determined that there will be no unmitigable adverse impact on subsistence uses from ONR's planned activities.

    National Environmental Policy Act

    In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), as implemented by the regulations published by the Council on Environmental Quality (40 CFR parts 1500-1508), the Navy prepared an Environmental Assessment/Overseas Environmental Assessment (EA/OEA) to consider the direct, indirect and cumulative effects to the human environment resulting from the Arctic Research Activities project. NMFS made the Navy's EA/OEA available to the public for review and comment, concurrently with the publication of the proposed IHA, on the NMFS website (at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities), in relation to its suitability for adoption by NMFS in order to assess the impacts to the human environment of issuance of an IHA to ONR. Also in compliance with NEPA and the CEQ regulations, as well as NOAA Administrative Order 216-6, NMFS has reviewed the Navy's EA/OEA, determined it to be sufficient, and adopted that EA/OEA and signed a Finding of No Significant Impact (FONSI) on September 20, 2018.

    Endangered Species Act (ESA)

    Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally, in this case with the NMFS Alaska Regional Office (AKR) whenever we propose to authorize take for endangered or threatened species.

    The AKR issued a Biological Opinion on September 7, 2018, which concluded that ONR's Arctic Research Activities and NMFS's issuance of an IHA for those activities are not likely to jeopardize the continued existence of the Beringia DPS bearded seal or Arctic ringed seal or adversely modify any designated critical habitat.

    Authorization

    As a result of these determinations, NMFS has issued an IHA to the U.S. Navy's ONR for the Arctic Research Activities in the Beaufort and Chukchi Seas from September 20, 2018, through September 19, 2019, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

    Dated: September 24, 2018. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-21070 Filed 9-26-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID: DoD-2018-OS-0068] Privacy Act of 1974; System of Records AGENCY:

    Office of the Secretary, DoD.

    ACTION:

    Rescindment of a system of records notice.

    SUMMARY:

    The Office of the Secretary of Defense (OSD) proposes to rescind a system of records, PEGASYS CARDKEY, DWHS D02. This system was used to maintain a list of individuals granted room access to areas of the Pentagon temporarily under the control of Washington Headquarters Services (WHS).

    DATES:

    This action will be effective September 27, 2018. This system was decommissioned on June 30, 2014 when the Pentagon Force Protection Agency (PFPA) accepted access control responsibility for these areas. The Pentagon Facilities Access Control System, DPFPA 01 applies to those individuals who continue to require access to these spaces.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Luz D. Ortiz, Chief, Records, Privacy and Declassification Division (RPDD), 1155 Defense Pentagon, Washington, DC 20301-1155, or by phone at (571) 372-0478. SUPPLEMENTARY INFORMATION:

    This system of records was temporary and was decommissioned on June 30, 2014 when responsibility for access and security for wedge 1, corridors 3 and 4 at the Pentagon were transferred to PFPA. Continued access by personnel originally covered by PEGASYS CARDKEY is now addressed by the Pentagon Facilities Access Control System, DPFPA 01 (May 13, 2011, 76 FR 28001).

    The Office of the Secretary of Defense system of records notices subject to the Privacy Act of 1974, as amended, have been published in the Federal Register and are available from the address in the FOR FURTHER INFORMATION CONTACT section or at the Defense Privacy, Civil Liberties, and Transparency Division website at http://defense.gov/privacy. The proposed systems reports, as required by the Privacy Act of 1974, as amended, were submitted on August 9, 2018, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to Section 6 to OMB Circular No. A-108, “Federal Agency Responsibilities for Review, Reporting, and Publication under the Privacy Act,” revised December 23, 2016 (December 23, 2016, 81 FR 94424).

    SYSTEM NAME AND NUMBER:

    PEGASYS CARDKEY, DWHS D02

    HISTORY:

    November 14, 2011, 76 FR 70425; March 18, 2010, 75 FR 13088.

    Dated: September 20, 2018. Shelly E. Finke, Alternate OSD Federal Register, Liaison Officer, Department of Defense. [FR Doc. 2018-21082 Filed 9-26-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Department of the Navy Meeting of the Board of Visitors of Marine Corps University AGENCY:

    Department of the Navy, DoD.

    ACTION:

    Notice of open meeting.

    SUMMARY:

    The Board of Visitors of the Marine Corps University (BOV MCU) will meet to review, develop and provide recommendations on all aspects of the academic and administrative policies of the University; examine all aspects of professional military education operations; and provide such oversight and advice, as is necessary, to facilitate high educational standards and cost effective operations. The Board will be focusing primarily on the internal procedures of Marine Corps University. All sessions of the meeting will be open to the public.

    DATES:

    The meeting will be held on Thursday, 18 Oct. 2018, from 8:00 a.m. to 4:30 p.m. and Friday, 19 Oct. 2018, from 8:00 a.m. to 12:30 p.m. Eastern Time Zone.

    ADDRESSES:

    The meeting will be held at Marine Corps University in Quantico, Virginia. The address is: 2076 South Street, Quantico, VA 22134.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Kim Florich, Director of Faculty Development and Outreach, Marine Corps University Board of Visitors, 2076 South Street, Quantico, Virginia 22134, 703-432-4682. Dated: September 24, 2018. Meredith Steingold Werner, Lieutenant Commander, Judge Advocate General's Corps, U.S. Navy, Federal Register Liaison Officer. [FR Doc. 2018-21045 Filed 9-26-18; 8:45 am] BILLING CODE 3810-FF-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 6470-006] Winooski Hydroelectric Company; Notice of Intent To File License Application, Filing of Pre-Application Document, and Approving Use of the Traditional Licensing Process

    a. Type of Filing: Notice of Intent to File License Application and Request to Use the Traditional Licensing Process.

    b. Project No.: 6470-006.

    c. Date Filed: July 31, 2018.

    d. Submitted By: Winooski Hydroelectric Company.

    e. Name of Project: Winooski 8 Hydroelectric Project.

    f. Location: On the Winooski River in Washington County, Vermont. No federal lands are occupied by the project works or located within the project boundary.

    g. Filed Pursuant to: 18 CFR 5.3 of the Commission's regulations.

    h. Potential Applicant Contact: Mathew Rubin, General Partner, Winooski Hydroelectric Company, 26 State Street, Montpelier, Vermont 05602; (802) 793-5939; or email at [email protected].

    i. FERC Contact: Mike Tust at (202) 502-6522; or email at [email protected].

    j. Winooski Hydroelectric Company (Winooski Hydro) filed its request to use the Traditional Licensing Process on July 31, 2018. Winooski Hydro provided public notice of its request on July 24, 2018. In a letter dated September 21, 2018, the Director of the Division of Hydropower Licensing approved Winooski Hydro's request to use the Traditional Licensing Process.

    k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service and/or NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR part 402; and NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920. We are also initiating consultation with the Vermont State Historic Preservation Officer, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.

    l. With this notice, we are designating Winooski Hydro as the Commission's non-federal representative for carrying out informal consultation pursuant to section 7 of the Endangered Species Act and section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act; and consultation pursuant to section 106 of the National Historic Preservation Act.

    m. Winooski Hydro filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.

    n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website (http://www.ferc.gov), using the “eLibrary” link. Enter the docket number, excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). A copy is also available for inspection and reproduction at the address in paragraph h.

    o. The licensee states its unequivocal intent to submit an application for a new license for Project No. 6470. Pursuant to 18 CFR 16.8, 16.9, and 16.10 each application for a new license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by July 31, 2021.

    p. Register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filing and issuances related to this or other pending projects. For assistance, contact FERC Online Support.

    Dated: September 21, 2018. Kimberly D. Bose, <E T="03">Secretary.</E>
    [FR Doc. 2018-21061 Filed 9-26-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 3133-032] Notice of Intent To File License Application, Filing of Pre-Application Document (PAD), Commencement of Pre-Filing Process, and Scoping; Request for Comments on the PAD and Scoping Document, and Identification of Issues and Associated Study Requests; Brookfield White Pine Hydro LLC & Errol Hydroelectric Co., LLC

    a. Type of Filing: Notice of Intent to File License Application for a New License and Commencing Pre-filing Process.

    b. Project No.: 3133-032.

    c. Dated Filed: July 31, 2018.

    d. Submitted by: Brookfield White Pine Hydro, LLC & Errol Hydroelectric Co., LLC.

    e. Name of Project: Errol Hydroelectric Project.

    f. Location: On the Androscoggin River and Lake Umbagog in Coos County, New Hampshire and Oxford County Maine. The project occupies an undetermined amount of United States lands under the jurisdiction of the U.S. Fish and Wildlife Service.

    g. Filed Pursuant to: 18 CFR part 5 of the Commission's Regulations.

    h. Potential Applicant Contact: Tom Uncher, Vice President, Brookfield White Pine Hydro, LLC, 339B Big Bay Rd., Qeensbury, NY 12804.

    i. FERC Contact: Kenneth Hogan at (202) 502-8434 or email at: [email protected]

    j. Cooperating agencies: Federal, state, local, and tribal agencies with jurisdiction and/or special expertise with respect to environmental issues that wish to cooperate in the preparation of the environmental document should follow the instructions for filing such requests described in item o below. Cooperating agencies should note the Commission's policy that agencies that cooperate in the preparation of the environmental document cannot also intervene. See 94 FERC ¶ 61,076 (2001).

    k. With this notice, we are initiating informal consultation with: (a) The U.S. Fish and Wildlife Service and/or NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, Part 402 and (b) the State Historic Preservation Officer, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.

    l. With this notice, we are designating Brookfield White Pine Hydro, LLC, and Errol Hydroelectric Co., LLC, as the Commission's non-federal representatives for carrying out informal consultation, pursuant to section 7 of the Endangered Species Act and section 106 of the National Historic Preservation Act.

    m. Brookfield White Pine Hydro, LLC, and Errol Hydroelectric Co., LLC filed with the Commission a Pre-Application Document (PAD; including a proposed process plan and schedule), pursuant to 18 CFR 5.6 of the Commission's regulations.

    n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website (http://www.ferc.gov), using the “eLibrary” link. Enter the docket number, excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). A copy is also available for inspection and reproduction at: Brookfield Renewable, 150 Main Street, Lewiston, ME 04240.

    o. Register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filing and issuances related to this or other pending projects. For assistance, contact FERC Online Support.

    p. With this notice, we are soliciting comments on the PAD and Commission's staff Scoping Document 1 (SD1), as well as study requests. All comments on the PAD and SD1, and study requests should be sent to the address above in paragraph h. In addition, all comments on the PAD and SD1, study requests, requests for cooperating agency status, and all communications to and from Commission staff related to the merits of the potential application must be filed with the Commission.

    The Commission strongly encourages electronic filing. Please file all documents using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support at [email protected] In lieu of electronic filing, you may send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. The first page of any filing should include docket number P-3133-032.

    All filings with the Commission must bear the appropriate heading: “Comments on Pre-Application Document,” “Study Requests,” “Comments on Scoping Document 1,” “Request for Cooperating Agency Status,” or “Communications to and from Commission Staff.” Any individual or entity interested in submitting study requests, commenting on the PAD or SD1, and any agency requesting cooperating status must do so by November 30, 2018.

    p. Although our current intent is to prepare an environmental assessment (EA), there is the possibility that an Environmental Impact Statement (EIS) will be required. Nevertheless, this notice, associated scoping meeting, and our scoping process will satisfy the NEPA scoping requirements, irrespective of whether an EA or EIS is issued by the Commission.

    Scoping Meetings

    Commission staff will hold two scoping meetings in the vicinity of the project at the times and places noted below. The daytime meeting will focus on resource agency, Indian tribes, and non-governmental organization concerns, while the evening meeting is primarily for receiving input from the public. We invite all interested individuals, organizations, and agencies to attend one or both of the meetings, and to assist staff in identifying particular study needs, as well as the scope of environmental issues to be addressed in the environmental document. The times and locations of these meetings are as follows:

    Daytime Scoping Meeting

    Date and Time: Thursday, October 25, 2018 at 1:00 p.m.

    Location: Errol Town Hall, 33 Main St., Errol, New Hampshire 03579.

    Phone Number: (603) 482-3351.

    Evening Scoping Meeting

    Date and Time: Thursday, October 25, 2018 at 7:00 p.m.

    Location: Errol Town Hall, 33 Main St., Errol, New Hampshire 03579.

    Phone Number: (603) 482-3351.

    SD1, which outlines the subject areas to be addressed in the environmental document, was mailed to the individuals and entities on the Commission's mailing list. Copies of SD1 will be available at the scoping meetings, or may be viewed on the web at http://www.ferc.gov, using the “eLibrary” link. Follow the directions for accessing information in paragraph n. Based on all oral and written comments, a Scoping Document 2 (SD2) may be issued. SD2 may include a revised process plan and schedule, as well as a list of issues, identified through the scoping process.

    Environmental Site Review

    The potential applicant and Commission staff will conduct an Environmental Site Review of the project on Wednesday, October 24, 2018, starting at 1:00 p.m. All participants should meet at the Errol Town Hall, located at: 33 Main Street, Errol, New Hampshire 03579. All participants are responsible for their own transportation. Anyone with questions about the site visit should contact Mr. Randy Dorman with Brookfield Renewable at (207) 755-5605.

    Meeting Objectives

    At the scoping meetings, staff will: (1) Initiate scoping of the issues; (2) review and discuss existing conditions and resource management objectives; (3) review and discuss existing information and identify preliminary information and study needs; (4) review and discuss the process plan and schedule for pre-filing activity that incorporates the time frames provided for in Part 5 of the Commission's regulations and, to the extent possible, maximizes coordination of federal, state, and tribal permitting and certification processes; and (5) discuss the appropriateness of any federal or state agency or Indian tribe acting as a cooperating agency for development of an environmental document.

    Meeting participants should come prepared to discuss their issues and/or concerns. Please review the PAD in preparation for the scoping meetings. Directions on how to obtain a copy of the PAD and SD1 are included in item n. of this document.

    Meeting Procedures

    The meetings will be recorded by a stenographer and will be placed in the public records of the project.

    Dated: September 19, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-21055 Filed 9-26-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric corporate filings:

    Docket Numbers: EC18-145-000.

    Applicants: Choice Energy, LLC.

    Description: Amendment to August 29, 2018 Application for Authorization Under Section 203 of the Federal Power Act, et al. of Choice Energy LLC.

    Filed Date: 9/20/18.

    Accession Number: 20180920-5066.

    Comments Due: 5 p.m. ET 10/04/18.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-2718-031; ER10-2719-031.

    Applicants: Cogen Technologies Linden Venture, L.P., East Coast Power Linden Holding, L.L.C.

    Description: Notice of Non-Material Change in Status of Cogen Technologies Linden Venture, L.P.

    Filed Date: 9/21/18.

    Accession Number: 20180921-5085.

    Comments Due: 5 p.m. ET 10/12/18.

    Docket Numbers: ER18-15-002.

    Applicants: Rausch Creek Generation, LLC.

    Description: Report Filing: Refund Report to be effective N/A.

    Filed Date: 9/21/18.

    Accession Number: 20180921-5079.

    Comments Due: 5 p.m. ET 10/12/18.

    Docket Numbers: ER18-1159-002.

    Applicants: Pioneer Transmission, LLC, Midcontinent Independent System Operator, Inc.

    Description: Compliance filing: 2018-09-21_Pioneer Attachment O Compliance Filing to be effective 6/1/2018.

    Filed Date: 9/21/18.

    Accession Number: 20180921-5078.

    Comments Due: 5 p.m. ET 10/12/18.

    Docket Numbers: ER18-1248-002.

    Applicants: Southern California Edison Company.

    Description: Compliance filing: SCE Compliance Filing Revised WDAT ER18-1248 to be effective 5/30/2018.

    Filed Date: 9/21/18.

    Accession Number: 20180921-5163.

    Comments Due: 5 p.m. ET 10/12/18.

    Docket Numbers: ER18-2110-001.

    Applicants: Buckeye Power, Inc., PJM Interconnection, L.L.C.

    Description: Tariff Amendment: Amendment to July 31 Filing re NITSA Among PJM and Buckeye Power, Inc. to be effective 10/1/2018.

    Filed Date: 9/21/2018.

    Accession Number: 20180921-5110.

    Comments Due: 5 p.m. ET 10/3/18.

    Docket Numbers: ER18-2457-000.

    Applicants: ISO New England Inc.

    Description: ISO New England Inc. Resource Termination—Clear River Unit 1.

    Filed Date: 9/20/18.

    Accession Number: 20180920-5149.

    Comments Due: 5 p.m. ET 10/11/18.

    Docket Numbers: ER18-2458-000.

    Applicants: Duke Energy Ohio, Inc., PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Duke submits Amended and Restated Interconnection Agreement, SA No. 3141 to be effective 6/30/2018.

    Filed Date: 9/20/18.

    Accession Number: 20180920-5156.

    Comments Due: 5 p.m. ET 10/11/18.

    Docket Numbers: ER18-2459-000.

    Applicants: Pacific Gas and Electric Company.

    Description: § 205(d) Rate Filing: WAPA Work Performance Agreement for Cottonwood Airport Reconductoring (RS 228) to be effective 9/24/2018.

    Filed Date: 9/21/18.

    Accession Number: 20180921-5103.

    Comments Due: 5 p.m. ET 10/12/18.

    Docket Numbers: ER18-2460-000.

    Applicants: New York Independent System Operator, Inc.

    Description: § 205(d) Rate Filing: 205 filing re: Use of constraint reliability margin values less than 20 MW to be effective 11/21/2018.

    Filed Date: 9/21/18.

    Accession Number: 20180921-5107.

    Comments Due: 5 p.m. ET 10/12/18.

    Docket Numbers: ER18-2461-000.

    Applicants: Mid-Atlantic Interstate Transmission, LLC, PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: MAIT submits five ECSAs, Service Agreement Nos. 5112, 5113, 5116, 5130, and 5131 to be effective 11/21/2018.

    Filed Date: 9/21/18.

    Accession Number: 20180921-5109.

    Comments Due: 5 p.m. ET 10/12/18.

    Docket Numbers: ER18-2462-000.

    Applicants: Mid-Atlantic Interstate Transmission, LLC, PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: MAIT submits five ECSAs, Service Agreement Nos. 5019, 5020, 5021, 5022, and 5023 to be effective 11/21/2018.

    Filed Date: 9/21/18.

    Accession Number: 20180921-5159.

    Comments Due: 5 p.m. ET 10/12/18.

    Docket Numbers: ER18-2463-000.

    Applicants: Midcontinent Independent System Operator, Inc.

    Description: § 205(d) Rate Filing: 2018-09-21_SA 3115 LCM-ELL GIA (C042) to be effective 6/10/2018.

    Filed Date: 9/21/18.

    Accession Number: 20180921-5186.

    Comments Due: 5 p.m. ET 10/12/18.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: September 21, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-21068 Filed 9-26-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 2336-094] Georgia Power Company; Notice of Modification of Procedural Schedule and Waiver of the Commission's Regulatory Deadline for Scoping and Environmental Site Review

    Take notice that the Commission's regulatory deadline for scoping and environmental site review for the following hydroelectric application is waived, and the schedule for processing the hydroelectric application has been modified.

    a. Type of Filing: Notice of Intent to File License Application for a New License and Commencing Pre-filing Process.

    b. Project No.: 2336-094.

    c. Dated Filed: July 3, 2018.

    d. Submitted By: Georgia Power Company (Georgia Power).

    e. Name of Project: Lloyd Shoals Hydroelectric Project.

    f. Location: The project is located on the Ocmulgee River in Butts, Henry, Jasper, and Newton Counties, Georgia. No federal lands have been identified within the project boundary.

    g. Filed Pursuant to: 18 CFR part 5 of the Commission's Regulations.

    h. Potential Applicant Contact: Courtenay R. O'Mara, P.E., Hydro Licensing and Compliance Supervisor, Southern Company Generation, 241 Ralph McGill Boulevard NE, BIN 10193, Atlanta, GA 30308-3374; (404) 506-7219; or [email protected]

    i. FERC Contact: Navreet Deo at (202) 502-6304, or email at [email protected]

    j. Scoping Meetings: The Commission's August 20, 2018, Notice of Commencement of Proceedings, and Commission staff's Scoping Document 1, established September 13, 2018, as the date for the public scoping meetings, and September 14, 2018, as the date for the environmental site review. The Commission's September 12, 2018, Notice of Cancellation of Scoping and Site Review canceled the meetings until further notice due to Hurricane Florence. With this notice, the Commission waives the regulatory deadline of scoping and site review within 30 days of the Notice of Commencement of Proceedings and Scoping Document 1, and establishes the following revised dates and locations for the scoping meetings and site review:

    Daytime Scoping Meeting—Jackson, Georgia Date & Time: Tuesday, October 9, 2018, at 1 p.m. Location: Pepper Sprout Barn, 562 Old Bethel Road, Jackson, Georgia 30233, (678) 752-1550 Evening Scoping Meeting—Jackson, Georgia Date & Time: Tuesday, October 9, 2018, at 6:30 p.m. Location: Pepper Sprout Barn, 562 Old Bethel Road, Jackson, Georgia 30233, (678) 752-1550 Environmental Site Review

    The potential applicant and Commission staff will conduct an environmental site review of the project on Wednesday, October 10, 2018, consisting of facility tours from 9:00 a.m. to 12:00 p.m., and boat tours from 1:00 p.m. to 4:00 p.m. All participants should meet at the Jackson Land Management Office located at 180 Dam Road, Jackson, Georgia 30233. Participants must notify Courtenay O'Mara at [email protected], or (404) 506-7219, on or before October 3, 2018, if they plan to attend the environmental site review.

    k. Procedural Schedule: The application will be processed according to the following schedule. Revisions to the schedule may be made as appropriate. If a date falls on a weekend or holiday, the due date will be the following business day.

    Milestone Target date Public Scoping Meetings and Environmental Site Review October 9, 2018 & October 10, 2018. File Comments on PAD, SD1, and Study Requests November 5, 2018. Commission Issues SD2, if necessary December 20, 2018. File Proposed Study Plan December 20, 2018. Study Plan Meetings January 22, 2019. File Comments on Proposed Study Plan March 20, 2019. File Revised Proposed Study Plan April 19, 2019. File Comments on Revised Proposed Study Plan May 6, 2019. Commission Issues Study Plan Determination May 20, 2019. Dated: September 20, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-21054 Filed 9-26-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 6619-022] Lake Upchurch Power, Inc., Lake Upchurch Dam Preservation Association, Inc.; Notice of Transfer of Exemption

    1. By letter filed August 1, 2018 and supplemented on August 17 and September 4, 2018, Lake Upchurch Dam Preservation Association, Inc., informed the Commission that the exemption from licensing for the Raeford Dam Hydroelectric Project No. 6619, originally issued October 22, 1982 1 has been transferred to Lake Upchurch Dam Preservation Association, Inc. The project is located on Rockfish Creek in Cumberland County, North Carolina. The transfer of an exemption does not require Commission approval.

    1 Notice of Exemption From Licensing. Raeford Hydropower Corporation, 21 FERC ¶ 62,114 (1982).

    2. Lake Upchurch Dam Preservation Association, Inc. is now the exemptee of the Raeford Dam Hydroelectric Project No. 6619. All correspondence should be forwarded to: Ms. Melissa Melvin, Secretary, Lake Upchurch Dam Preservation Association, Inc., 127 Bayshore Drive, Parkton, NC 28371, Phone: 910-864-3191, email: [email protected].

    Dated: September 20, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-21063 Filed 9-26-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. IC18-19-000] Commission Information Collection Activities (FERC-725); Comment Request; Extension September 21, 2018 AGENCY:

    Federal Energy Regulatory Commission, DOE.

    ACTION:

    Notice of information collection and request for comments.

    SUMMARY:

    In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection, FERC-725 (Certification of Electric Reliability Organization; Procedures for Electric Reliability Standards).

    DATES:

    Comments on the collection of information are due November 26, 2018.

    ADDRESSES:

    You may submit comments (identified by Docket No. IC18-19-000) by either of the following methods:

    eFiling at Commission's Website: http://www.ferc.gov/docs-filing/efiling.asp.

    Mail/Hand Delivery/Courier: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426.

    Instructions: All submissions must be formatted and filed in accordance with submission guidelines at: http://www.ferc.gov/help/submission-guide.asp. For user assistance, contact FERC Online Support by email at [email protected], or by phone at: (866) 208-3676 (toll-free), or (202) 502-8659 for TTY.

    Docket: Users interested in receiving automatic notification of activity in this docket or in viewing/downloading comments and issuances in this docket may do so at http://www.ferc.gov/docs-filing/docs-filing.asp.

    FOR FURTHER INFORMATION CONTACT:

    Ellen Brown may be reached by email at [email protected], telephone at (202) 502-8663, and fax at (202) 273-0873.

    SUPPLEMENTARY INFORMATION:

    Title: FERC-725, Certification of Electric Reliability Organization; Procedures for Electric Reliability Standards.

    OMB Control No.: 1902-0225.

    Type of Request: Three-year extension of the FERC-725 information collection requirements with no changes to the current reporting and recordkeeping requirements.1

    1 As of 9/19/2018, a package for the “non-substantive” changes to FERC-725, implemented in the Final Rule in Docket No. RM18-2-000, is pending review at the Office of Management and Budget (OMB). The burden estimates provided in this Notice use those same burden estimates.

    Abstract: The FERC-725 contains the following information collection elements:

    Self Assessment and ERO (Electric Reliability Organization) Application: The Commission requires the ERO to submit to FERC a performance assessment report every five years. The next assessment is due in 2019. Each Regional Entity submits a performance assessment report to the ERO.

    Submitting an application to become the ERO is also part of this collection.2

    2 The Commission does not expect any new ERO applications to be submitted in the next five years and is not including any burden for this requirement in the burden estimate. FERC still seeks to renew the regulations pertaining to a new ERO application under this renewal but is expecting the burden to be zero for the foreseeable future. 18 CFR 39.3 contains the regulation pertaining to ERO applications.

    Reliability Assessments: 18 CFR 39.11 requires the ERO to assess the reliability and adequacy of the Bulk-Power System in North America. Subsequently, the ERO must report to the Commission on its findings. Regional entities perform similar assessments within individual regions. Currently the ERO submits to FERC three assessments each year: Long term, winter, and summer. In addition, the North American Electric Reliability Corporation (NERC, the Commission-approved ERO) also submits various other assessments as needed.

    Reliability Standards Development: Under section 215 of the FPA, the ERO is charged with developing Reliability Standards. Regional Entities may also develop regional specific standards.

    Reliability Compliance: Reliability Standards are mandatory and enforceable upon approval by the Commission. In addition to the specific information collection requirements contained in each standard (cleared under other information collections), there are general compliance, monitoring and enforcement information collection requirements imposed on applicable entities. Audits, spot checks, self-certifications, exception data submittals, violation reporting, and mitigation plan confirmation are included in this area.

    Stakeholder Survey: The ERO uses a stakeholder survey to solicit feedback from registered entities 3 in preparation for its three year and five year self-performance assessment. The Commission assumes that the ERO will perform another survey prior to the 2019 self-assessment.

    3 A “registered entity” is an entity that is registered with the ERO. All Bulk-Power System owners, operators and users are required to register with the ERO. Registration is the basis for determining the Reliability Standards with which an entity must comply. See http://www.nerc.com/page.php?cid=3%7C25 for more details.

    Other Reporting: This category refers to all other reporting requirements imposed on the ERO or regional entities in order to comply with the Commission's regulations. For example, FERC may require NERC to submit a special reliability assessment. This category captures these types of one-time filings required of NERC or the Regions. The Commission implements its responsibilities through 18 CFR part 39.

    Type of Respondent: Electric Reliability Organization, Regional entities, and registered entities.

    Estimate of Annual Burden4 : The Commission estimates the total annual burden and cost 5 for this information collection in the table below. For hourly cost (for wages and benefits), we estimate that 70% of the time is spent by Electrical Engineers (code 17-2071, at $66.90/hr.), 20% of the time is spent by Legal (code 23-0000, at $143.68/hr.), and 10% by Office and Administrative Support (code 43-0000, at $41.34/hr.). Therefore, we use the weighted hourly cost (for wages and benefits) of $79.70 {or [(0.70) * ($66.90/hr.)] + [(0.20) * $143.68/hr.] + [(0.10) * $41.34/hr.]}.

    4 “Burden” is the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. For further explanation of what is included in the information collection burden, refer to Title 5 Code of Federal Regulations 1320.3.

    5 Costs (for wages and benefits) are based on wage figures from the Bureau of Labor Statistics (BLS) for May 2017 (at https://www.bls.gov/oes/current/naics2_22.htm) and benefits information (at https://www.bls.gov/news.release/ecec.nr0.htm).

    6 In instances where the number of responses per respondent is “1,” the Commission Staff thinks that the actual number of responses varies and cannot be estimated accurately.

    FERC-725 Type of respondent Type of reporting
  • requirement
  • Number of
  • respondents
  • Annual
  • number of
  • responses per
  • respondent
  • Total
  • number of
  • responses
  • Average burden hours &
  • cost ($) per response
  • (rounded)
  • Estimated total annual
  • burden hours & cost ($)
  • (rounded)
  • (A) (B) 6 (A) × (B) = (C) (D) (C) × (D) Electric Reliability Organization (ERO) Self-Assessment 1 .2 .2 4,160 hrs.; $331,552 832 hrs.; $66,310. Reliability Assessments 5.5 5.5 15,600 hrs.; $1,243,320 85,800 hrs.; $6,838,260. Reliability Compliance 2 2 20,280 hrs.; $1,616,316 40,560 hrs.; $3,232,632. Standards Development 1 1 21,840 hrs.; $1,740,648 21,840 hrs.; $1,740,648. Other Reporting 1 1 2,080 hrs.; $165,776 2,080 hrs.; $165,776. ERO, Sub-Total 151,112 hrs.; $12,043,626. Regional Entities Self-Assessment 7 .2 1.4 4,160 hrs.; $331,552 5,824 hrs.; $464,173. Reliability Assessments 1 7 15,600 hrs.; $1,243,320 109,200 hrs.; $8,703,240. Reliability Compliance 1 7 37,440 hrs.; $2,983,968 262,080 hrs.; $20,887,776. Standards Development 1 7 2,340 hrs.; $186,498 16,380 hrs.; $1,305,486. Other Reporting 1 7 1,040 hrs.; $82,888 7,280 hrs.; $580,216. Regional Entities, Sub-Total 400,764 hrs.; $31,940,891. Registered Entities Stakeholder Survey estimated 1,409 .2 281.8 8 hrs.; $637.60 2,254 hrs.; $179,676. Reliability Compliance 1 1,409 400 hrs.; $31,880 563,600 hrs.; $44,918,920. Registered Entities, Sub-Total 565,854 hrs.; $45,098,596. Total Burden Hrs. and Cost 1,117,730 hrs.; $89,083,113.

    As indicated in the table, there was a decrease from eight to seven in the number of Regional Entities because the Southwest Power Pool dissolved in 2018. Other changes from previous estimates are based on new data in the proposed NERC 2019 Business Plan and Budget to reflect changes in the number of FTEs (full-time equivalent employees) working in applicable areas. Reviewing the NERC Compliance database, we determined the number of unique U.S. entities is 1,409 (compared to the previous value of 1,446). Lastly, in several instances, the amount of time an FTE devotes to a given function may have been increased or decreased.

    Comments: Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.

    Dated: September 21, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-21053 Filed 9-26-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL18-201-000] Notice of Complaint; Louisiana Public Service Commission v. Entergy Services, Inc., Entergy Arkansas, Inc., Entergy Louisiana, LLC, Entergy Mississippi, Inc., Entergy New Orleans, LLC, Entergy Texas, Inc.

    Take notice that on September 19, 2018, pursuant to sections 206, 306, and 309 of the Federal Power Act, 16 U.S.C. 824e, 825e, and 825h, and Rule 206 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206, the Louisiana Public Service Commission (Complainant) filed a formal complaint (Complaint) against Entergy Services, Inc., Entergy Arkansas, Inc., Entergy Louisiana, LLC, Entergy Mississippi, Inc. Entergy New Orleans, LLC, and Entergy Texas, Inc. (collectively, Respondents) alleging that the failure of the Respondents to include 100 percent of the costs of Transmission Control Centers that are owned by Entergy Services Inc. in the Respondents' Midcontinent Independent System Operator, Inc. Attachment O expenses is unjust, unreasonable and unduly discriminatory, as more fully explained in the Complaint.

    The Complainant certifies that copies of the Complaint were served on contacts for the Respondents.

    Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondents' answer and all interventions, or protests must be filed on or before the comment date. The Respondents' answer, motions to intervene, and protests must be served on the Complainants.

    The Commission encourages electronic submission of protests and interventions in lieu of paper using the eFiling link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.

    This filing is accessible on-line at http://www.ferc.gov, using the eLibrary link and is available for electronic review in the Commission's Public Reference Room in Washington, DC There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected], or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Comment Date: 5:00 p.m. Eastern Time on October 9, 2018.

    Dated: September 20, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-21062 Filed 9-26-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL18-202-000] EasTex TransCo, LLC; Notice of Petition for Declaratory Order

    Take notice that on September 20, 2018, pursuant to Rule 207 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.207, EasTex TransCo, LLC (EasTex TransCo or Petitioner) filed a petition for declaratory order (Petition) authorizing EasTex TransCo to recover 100 percent of the costs it prudently incurs associated with the Hartburg-Sabine Junction 500kV Competitive Transmission Project (Project), if it is abandoned or cancelled for reasons beyond EasTex TransCo's control. EasTex TransCo also seeks authorization to recover 50 percent of the prudently incurred Project costs expended, as more fully explained in the Petition. In addition, EasTex TransCo requests that the Commission waive any and all other requirements under Part 35 of the Commission's Regulations and any other applicable rules, all as more fully explained in the Petition.

    Any person desiring to intervene or to protest in this proceeding must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.

    The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

    Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.

    The filings in the above proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected] call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Comment Date: 5:00 p.m. Eastern time on October 22, 2018.

    Dated: September 21, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-21059 Filed 9-26-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 2680-113] Consumers Energy Company and DTE Electric Company; Notice of Availability of Environmental Assessment

    In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission (Commission or FERC) regulations, 18 CFR part 380 (Order No. 486, 52 FR 47897), the Office of Energy Projects has reviewed the application for a new license for the 1,785-megawatt Ludington Pumped Storage Project (FERC Project No. 2680-113) and has prepared a single environmental assessment (EA). The project consists of an upper reservoir and a lower reservoir located on the east shore of Lake Michigan in the townships of Pere Marquette and Summit, Mason County, Michigan and in Port Sheldon, Ottawa County, Michigan.

    In the EA, Commission staff analyzes the potential environmental effects of relicensing the project and concludes that issuing a new license for the project, with appropriate environmental measures, would not constitute a major federal action significantly affecting the quality of the human environment.

    A copy of the EA is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at www.ferc.gov using the eLibrary link. Enter the docket number, excluding the last three digits, in the docket number field to access the document. For assistance, contact FERC Online Support at [email protected]; toll-free at 1-866-208-3676; or for TTY, (202) 502-8659.

    You may also register online at www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances related to this or other pending projects. For assistance, contact FERC Online Support.

    Any comments should be filed within 30 days from the date of this notice. The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support. In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. The first page of any filing should include docket number P-2680-113.

    For further information, contact Shana Wiseman at (202) 502-8736 or by email at [email protected]

    Dated: September 20, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-21058 Filed 9-26-18; 8:45 am] BILLING CODE 6717-01-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OLEM-2018-0012; FRL-9984-13-OEI] Agency Information Collection Activities; Submission to OMB for Review and Approval; Comment Request; State Program Adequacy Determination (Renewal) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    The Environmental Protection Agency has submitted an information collection request (ICR), “State Program Adequacy Determination (Renewal).” (EPA ICR No. 1608.08, OMB Control No. 2050-0152) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through September 30, 2018. Public comments were previously requested via the Federal Register on May 08, 2018 during a 60-day comment period. This notice allows for an additional 30 days for public comments. A fuller description of the ICR is given below, including its estimated burden and cost to the public. An Agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

    DATES:

    Additional comments may be submitted on or before October 29, 2018.

    ADDRESSES:

    Submit your comments, referencing Docket ID Number EPA-HQ-OLEM-2018-0012, to (1) EPA online using www.regulations.gov (our preferred method), by email to [email protected], or by mail to: EPA Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460, and (2) OMB via email to [email protected] Address comments to OMB Desk Officer for EPA.

    EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

    FOR FURTHER INFORMATION CONTACT:

    Craig Dufficy, Materials Recovery and Waste Management Division, Office of Resource Conservation and Recovery, mail code 5304P, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (703) 308-9037; fax number: (703) 308-8686; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at www.regulations.gov or in person at the EPA Docket Center, WJC West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The telephone number for the Docket Center is 202-566-1744. For additional information about EPA's public docket, visit http://www.epa.gov/dockets.

    Abstract: Section 4010(c) of the Resource Conservation and Recovery Act (RCRA) of 1976 requires that EPA revise the landfill criteria promulgated under paragraph (1) of Section 4004(a) and Section 1008(a)(3). Section 4005(c) of RCRA, as amended by the Hazardous Solid Waste Amendments (HSWA) of 1984, requires states to develop and implement permit programs to ensure that MSWLFs and non-municipal, non-hazardous waste disposal units that receive household hazardous waste or CESQG hazardous waste are in compliance with the revised criteria for the design and operation of non-municipal, non-hazardous waste disposal units under 40 CFR part 257, subpart B and MSWLFs under 40 CFR part 258. (40 CFR part 257, subpart B and 40 CFR part 258 are henceforth referred to as the “revised federal criteria”.) Section 4005(c) of RCRA further mandates the EPA Administrator to determine the adequacy of state permit programs to ensure owner and/or operator compliance with the revised federal criteria. A state program that is deemed adequate to ensure compliance may afford flexibility to owners or operators in the approaches they use to meet federal requirements, significantly reducing the burden associated with compliance.

    In response to the statutory requirement in § 4005(c), EPA developed 40 CFR part 239, commonly referred to as the State Implementation Rule (SIR). The SIR describes the state application and EPA review procedures and defines the elements of an adequate state permit program.

    The collection of information from the state during the permit program adequacy determination process allows EPA to evaluate whether a program for which approval is requested is appropriate in structure and authority to ensure owner or operator compliance with the revised federal criteria. The SIR does not require the use of a particular application form. Section 239.3 of the SIR, however, requires that all state applications contain the following five components:

    (1) A transmittal letter requesting permit program approval.

    (2) A narrative description of the state permit program, including a demonstration that the state's standards for non-municipal, non-hazardous waste disposal units that receive CESQG hazardous waste are technically comparable to the Part 257, Subpart B criteria and/or that its MSWLF standards are technically comparable to the Part 258 criteria.

    (3) A legal certification demonstrating that the state has the authority to carry out the program.

    (4) Copies of state laws, regulations, and guidance that the state believes demonstrate program adequacy.

    (5) Copies of relevant state-tribal agreements if the state has negotiated with a tribe for the implementation of a permit program for non-municipal, non-hazardous waste disposal units that receive CESQG hazardous waste and/or MSWLFs on tribal lands.

    The EPA Administrator has delegated the authority to make determinations of adequacy, as contained in the statute, to the EPA Regional Administrator. The appropriate EPA Regional Office, therefore, will use the information provided by each state to determine whether the state's permit program satisfies the statutory test reflected in the requirements of 40 CFR part 239. In all cases, the information will be analyzed to determine the adequacy of the state's permit program for ensuring compliance with the federal revised criteria.

    Form Numbers: None.

    Respondents/affected entities: State, Local, or Tribal Governments.

    Respondent's obligation to respond: Mandatory under Section 4005(c) of RCRA.

    Estimated number of respondents: 12.

    Frequency of response: On occasion.

    Total estimated burden: 968 hours (per year). Burden is defined at 5 CFR 1320.03(b).

    Total estimated cost: $57,872 (per year), which includes $57,872 for annual labor and $0 for annualized capital or operation & maintenance costs.

    Changes in the Estimates: There is no change in the total estimated burden currently identified in the OMB Inventory of Approved ICR Burdens.

    Courtney Kerwin, Director, Regulatory Support Division.
    [FR Doc. 2018-20635 Filed 9-26-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [FRL-9984-26—Region 9] Clean Air Act Operating Permit Program; Petition for Objection to State Operating Permit for the Phillips 66 San Francisco Refinery AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of final Order on Petition for objection to Clean Air Act title V operating permit.

    SUMMARY:

    The Environmental Protection Agency (EPA) Administrator signed an Order dated August 8, 2018, denying a Petition dated March 19, 2018, from Communities for a Better Environment, San Francisco Baykeeper, Center for Biological Diversity, Friends of the Earth, Stand.earth, and Sierra Club. The Petition requested that the EPA object to a Clean Air Act (CAA) title V operating permit issued by the Bay Area Air Quality Management District (BAAQMD or the District) to Facility No. A0016, the Phillips 66 San Francisco Refinery (Phillips 66 or the facility), located in Contra Costa County, California.

    ADDRESSES:

    The EPA requests that you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view copies of the final Order, the Petition, and other supporting information. You may review copies of the final Order, the Petition, and other supporting information at the EPA Region IX Office, 75 Hawthorne Street, San Francisco, California 94105. You may view the hard copies Monday through Friday, from 9 a.m. to 3 p.m., excluding federal holidays. If you wish to examine these documents, you should make an appointment at least 24 hours before the visiting day. Additionally, the final Order and Petition are available electronically at: https://www.epa.gov/title-v-operating-permits/title-v-petition-database.

    FOR FURTHER INFORMATION CONTACT:

    Shaheerah Kelly, EPA Region IX, (415) 947-4156, [email protected].

    SUPPLEMENTARY INFORMATION:

    The CAA affords the EPA a 45-day period to review and object to, as appropriate, operating permits proposed by state permitting authorities under title V of the CAA. Section 505(b)(2) of the CAA authorizes any person to petition the EPA Administrator to object to a title V operating permit within 60 days after the expiration of the EPA's 45-day review period if the EPA has not objected on its own initiative. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise such objections during the comment period or unless the grounds for such objections arose after this period.

    The EPA received the Petition from Communities for a Better Environment, San Francisco Baykeeper, Center for Biological Diversity, Friends of the Earth, Stand.earth, and Sierra Club dated March 19, 2018, requesting that the EPA object to the issuance of operating permit for Facility No. A0016, issued by the BAAQMD to Phillips 66 in Contra Costa County, California. The Petition raised various claims centered around the allegation that the District improperly and unlawfully issued a title V permit renewal because it included an approval of permitted capacity increases for two hydrocracking emission units without providing adequate notice to the public and without a legal or factual basis for the approval.

    On August 8, 2018, the EPA Administrator issued an Order denying the Petition. The Order explains the basis for the EPA's decision.

    Sections 307(b) and 505(b)(2) of the CAA provide that a petitioner may request judicial review of those portions of an order that deny issues in a petition. Any petition for review shall be filed in the United States Court of Appeals for the appropriate circuit no later than November 26, 2018.

    Dated: September 6, 2018. Deborah Jordan, Acting Regional Administrator, Region IX.
    [FR Doc. 2018-21085 Filed 9-26-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention Clinical Laboratory Improvement Advisory Committee (CLIAC); Meeting AGENCY:

    Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).

    ACTION:

    Notice of meeting.

    SUMMARY:

    In accordance with the Federal Advisory Committee Act, the CDC announces the following meeting for the Clinical Laboratory Improvement Advisory Committee (CLIAC). This meeting is open to the public, limited only by the space available. The meeting room accommodates approximately 100 people. The public is also welcome to view the meeting by webcast. Check the CLIAC website on the day of the meeting for the webcast link http://cdclabtraining.adobeconnect.com/cliac/.

    DATES:

    The meeting will be held on November 7, 2018, 8:30 a.m. to 5:30 p.m., EST and November 8, 2018, 8:30 a.m. to 1:00 p.m., EST.

    ADDRESSES:

    CDC, 2500 Century Parkway NE, Rooms 1200/1201, Atlanta, Georgia 30345 and http://cdclabtraining.adobeconnect.com/cliac/.

    FOR FURTHER INFORMATION CONTACT:

    Nancy Anderson, MMSc, MT(ASCP), Senior Advisor for Clinical Laboratories, Division of Laboratory Systems, Center for Surveillance, Epidemiology and Laboratory Services, Office of Public Health Scientific Services, Centers for Disease Control and Prevention, 1600 Clifton Road NE, Mailstop F-11, Atlanta, Georgia 30329-4027, telephone (404) 498-2741; [email protected].

    SUPPLEMENTARY INFORMATION:

    All people attending the CLIAC meeting in-person are required to register for the meeting online at least five business days in advance for U.S. citizens and at least 15 business days in advance for international registrants. Register at: https://wwwn.cdc.gov/cliac/. Register by scrolling down and clicking the “Register for this Meeting” button and completing all forms according to the instructions given. Please complete all the required fields before submitting your registration and submit no later than October 30, 2018 for U.S. registrants and October 20, 2018 for international registrants.

    It is the policy of CLIAC to accept written public comments and provide a brief period for oral public comments on agenda items. Public comment periods for each agenda item are scheduled immediately prior to the Committee discussion period for that item. In general, each individual or group requesting to make oral comments will be limited to a total time of five minutes (unless otherwise indicated). To assure adequate time is scheduled for public comments, speakers should notify the contact person below at least five business days prior to the meeting date. For individuals or groups unable to attend the meeting, CLIAC accepts written comments until the date of the meeting (unless otherwise stated). However, it is requested that comments be submitted at least five business days prior to the meeting date so that the comments may be made available to the Committee for their consideration and public distribution. Written comments, one hard copy with original signature, should be provided to the contact person at the mailing or email address below, and will be included in the meeting's Summary Report.

    The CLIAC meeting materials will be made available to the Committee and the public in electronic format (PDF) on the internet instead of by printed copy. Check the CLIAC website on the day of the meeting for materials: https://wwwn.cdc.gov/cliac/.

    Purpose: This Committee is charged with providing scientific and technical advice and guidance to the Secretary of Health and Human Services (HHS); the Assistant Secretary for Health; the Director, Centers for Disease Control and Prevention; the Commissioner, Food and Drug Administration (FDA); and the Administrator, Centers for Medicare and Medicaid Services (CMS). The advice and guidance pertain to general issues related to improvement in clinical laboratory quality and laboratory medicine practice and specific questions related to possible revision of the Clinical Laboratory Improvement Amendment (CLIA) standards. Examples include providing guidance on studies designed to improve safety, effectiveness, efficiency, timeliness, equity, and patient-centeredness of laboratory services; revisions to the standards under which clinical laboratories are regulated; the impact of proposed revisions to the standards on medical and laboratory practice; and the modification of the standards and provision of non-regulatory guidelines to accommodate technological advances, such as new test methods, the electronic transmission of laboratory information, and mechanisms to improve the integration of public health and clinical laboratory practices.

    Matters To Be Considered: The agenda will include agency updates from CDC, CMS, and FDA. Presentations and discussions will focus on an update from the CDC's Office of Infectious Diseases Board of Scientific Counselors meeting; updates on laboratory interoperability; updates on antibiotic resistance activities; the Clinical Laboratory Improvement Amendments personnel requirements; the role of the laboratory in the opioid crisis; and the role of the laboratory in improving diagnoses. Agenda items are subject to change as priorities dictate.

    The Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.

    Sherri Berger, Chief Operating Officer, Centers for Disease Control and Prevention.
    [FR Doc. 2018-21083 Filed 9-26-18; 8:45 am] BILLING CODE 4163-19-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services [Document Identifier: CMS-10599] Agency Information Collection Activities: Submission for OMB Review; Comment Request AGENCY:

    Centers for Medicare & Medicaid Services, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the Federal Register concerning each proposed collection of information, including each proposed extension or reinstatement of an existing collection of information, and to allow a second opportunity for public comment on the notice. Interested persons are invited to send comments regarding the burden estimate or any other aspect of this collection of information, including the necessity and utility of the proposed information collection for the proper performance of the agency's functions, the accuracy of the estimated burden, ways to enhance the quality, utility, and clarity of the information to be collected, and the use of automated collection techniques or other forms of information technology to minimize the information collection burden.

    DATES:

    Comments on the collection(s) of information must be received by the OMB desk officer by October 29, 2018.

    ADDRESSES:

    When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395-5806 OR,

    Email: [email protected].

    To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:

    1. Access CMS' website address at http://www.cms.hhs.gov/PaperworkReductionActof1995.

    2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to [email protected].

    3. Call the Reports Clearance Office at (410) 786-1326.

    FOR FURTHER INFORMATION CONTACT:

    William Parham at (410) 786-4669.

    SUPPLEMENTARY INFORMATION:

    Under the Paperwork Reduction Act of 1995 (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. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the Federal Register concerning each proposed collection of information, including each proposed extension or reinstatement of an existing collection of information, before submitting the collection to OMB for approval. To comply with this requirement, CMS is publishing this notice that summarizes the following proposed collection(s) of information for public comment:

    1. Type of Information Collection Request: Revision of a currently approved collection; Title of Information Collection: Pre-Claim Review Demonstration for Home Health Services; Use: Section 402(a)(1)(J) of the Social Security Amendments of 1967 (42 U.S.C. 1395b-1(a)(1)(J)) authorizes the Secretary to “develop or demonstrate improved methods for the investigation and prosecution of fraud in the provision of care or services under the health programs established by the Social Security Act (the Act).” Pursuant to this authority, the CMS seeks to develop and implement a Medicare demonstration project, which CMS believes will help assist in developing improved procedures for the identification, investigation, and prosecution of Medicare fraud occurring among Home Health Agencies (HHA) providing services to Medicare beneficiaries.

    This revised demonstration would help assist in developing improved procedures for the identification, investigation, and prosecution of potential Medicare fraud. The demonstration would help make sure that payments for home health services are appropriate through either pre-claim or postpayment review, thereby working towards the prevention and identification of potential fraud, waste, and abuse; the protection of Medicare Trust Funds from improper payments; and the reduction of Medicare appeals. CMS proposes initially implementing the demonstration in Illinois, Ohio, North Carolina, Florida, and Texas with the option to expand to other states in the Palmetto/JM jurisdiction. CMS proposes starting the demonstration in Illinois on December 10, 2018. Under this demonstration, CMS proposes to offer choices for providers to demonstrate their compliance with CMS' home health policies. Providers in the demonstration states may participate in either 100 percent pre-claim review or 100 percent postpayment review. These providers will continue to be subject to a review method until the HHA reaches the target affirmation or claim approval rate. Once a HHA reaches the target pre-claim review affirmation or post-payment review claim approval rate, it may choose to be relieved from claim reviews, except for a spot check of their claims to ensure continued compliance. Providers who do not wish to participate in either 100 percent pre-claim or postpayment reviews have the option to furnish home health services and submit the associated claim for payment without undergoing such reviews; however, they will receive a 25 percent payment reduction on all claims submitted for home health services and may be eligible for review by the Recovery Audit Contractor.

    The information required under this collection is required by Medicare contractors to determine proper payment or if there is a suspicion of fraud. Under the pre-claim review option, HHA will send the pre-claim review request along with all required documentation to the Medicare contractor for review prior to submitting the final claim for payment. If a claim is submitted without a pre-claim review decision on file, the Medicare contractor will request the information from the HHA to determine if payment is appropriate. For the postpayment review option, the Medicare contractor will also request the information from the HHA that submitted the claim for payment, to determine if payment was appropriate. Comments were received in response to the 60-day notice. Form Number: CMS-10599 (OMB control number: 0938-1311); Frequency: Occasionally; Affected Public: Private Sector (Business or other for-profits and Not-for-profits); Number of Respondents: 941,287; Total Annual Responses: 1,330,980; Total Annual Hours: 670,375. (For questions regarding this collection contact Jennifer McMullen (410) 786-7635).

    Dated: September 21, 2018. William N. Parham, III, Director, Paperwork Reduction Staff, Office of Strategic Operations and Regulatory Affairs.
    [FR Doc. 2018-20994 Filed 9-26-18; 8:45 am] BILLING CODE 4120-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2012-N-0280] Agency Information Collection Activities; Proposed Collection; Comment Request; Financial Disclosure by Clinical Investigators AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the Federal Register concerning each proposed collection of information, including each proposed extension of an existing collection of information, and to allow 60 days for public comment in response to the notice. This notice solicits comments on information collections regarding financial disclosure by clinical investigators.

    DATES:

    Submit either electronic or written comments on the collection of information by November 26, 2018.

    ADDRESSES:

    You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before November 26, 2018. The https://www.regulations.gov electronic filing system will accept comments until midnight Eastern Time at the end of November 26, 2018. Comments received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand Delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2012-N-0280 for “Agency Information Collection Activities; Proposed Collection; Comment Request; Financial Disclosure by Clinical Investigators.” Received comments, those filed in a timely manner (see ADDRESSES), will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-8867, [email protected]

    SUPPLEMENTARY INFORMATION:

    Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information, including each proposed extension of an existing collection of information, before submitting the collection to OMB for approval. To comply with this requirement, FDA is publishing notice of the proposed collection of information set forth in this document.

    With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.

    Financial Disclosure by Clinical Investigators—21 CFR Part 54 OMB Control Number 0910-0396—Extension

    Respondents to this collection are sponsors of marketing applications that contain clinical data from studies covered by the applicable regulations. These sponsors represent pharmaceutical, biologic, and medical device firms. Respondents are also clinical investigators who provide financial information to the sponsors of marketing applications.

    Table 1 shows information that is the basis of the estimated number of respondents in tables 2 through 4.

    Table 1—Estimated Number of Applications, Clinical Trials, and Investigators Subject to the Regulation by Type of Application 1 Application type Total
  • number of
  • applications
  • Number of
  • applications
  • affected
  • Number of
  • trials
  • Number of
  • investigators
  • Drugs: New drug application (NDA), new molecular entity (NME) 35 26 3 to 10 3 to 100. NDA non-NME: NDA efficacy supplement 173 86 1 to 3 10 to 30. Abbreviated new drug application (ANDA) 1,152 250 1.1 2. ANDA supplement 6,774 383 1 2. Biologics: Biologics license application (BLA) 22 19 3 to 10 3 to 100. BLA efficacy supplement 16 14 1 to 3 10 to 30. Medical Devices: Premarket approval (PMA) 48 48 1 to 3 10 to 20. PMA supplement 23 23 1 to 3 3 to 10. Reclassification devices 3 1 1 3 to 10. 510(k) 4,000 200 1 3 to 10. 1 Source: Agency estimates.

    FDA estimates the burden of this collection of information as follows:

    Reporting Burden

    Under § 54.4(a) (21 CFR 54.4(a)), applicants submitting an application that relies on clinical studies must submit a complete list of clinical investigators who participated in a covered clinical study, and must either certify to the absence of certain financial arrangements with clinical investigators (Form FDA 3454) or, under § 54.4(a)(3), disclose to FDA the nature of those arrangements and the steps taken by the applicant or sponsor to minimize the potential for bias (Form FDA 3455).

    FDA estimates that almost all applicants submit a certification statement under § 54.4(a)(1) and (2). Preparation of the statement using Form FDA 3454 should require no more than 1 hour per study. The number of respondents is based on the estimated number of affected applications.

    When certification is not possible, and disclosure is made using Form FDA 3455, the applicant must describe, under § 54.4(a)(3), the financial arrangements or interests and the steps that were taken to minimize the potential for bias in the affected study. As the applicant would be fully aware of those arrangements and the steps taken to address them, describing them will be straightforward. The Agency estimates that it will take about 5 hours to prepare this narrative. Based on our experience with this collection, FDA estimates that approximately 10 percent of the respondents with affected applications will submit disclosure statements.

    Table 2—Estimated Annual Reporting Burden  1 21 CFR section Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Total annual
  • responses
  • Average
  • burden per
  • response
  • Total hours
    Certification—54.4(a)(1) and (2)—Form FDA 3454 1,050 1 1,050 1 1,050 Disclosure—54.4(a)(3)—Form FDA 3455 105 1 105 5 525 Total 1,575 1 There are no capital costs or operating and maintenance costs associated with this collection of information.
    Recordkeeping Burden

    Under § 54.6, the sponsors of covered studies must maintain complete records of compensation agreements with any compensation paid to nonemployee clinical investigators, including information showing any financial interests held by the clinical investigator, for 2 years after the date of approval of the applications. Sponsors of covered studies maintain many records regarding clinical investigators, including protocol agreements and investigator résumés or curriculum vitae. FDA estimates that an average of 15 minutes will be required for each recordkeeper to add this record to the clinical investigators' file.

    Table 3—Estimated Annual Recordkeeping Burden  1 21 CFR section Number of
  • recordkeepers
  • Number of
  • records per
  • recordkeeper
  • Total annual
  • records
  • Average burden per recordkeeping Total hours 2
    Recordkeeping—54.6 1,050 1 1,050 0.25 (15 minutes) 263 1 There are no capital costs or operating and maintenance costs associated with this collection of information. 2 Numbers have been rounded.
    Third-Party Disclosure Burden

    Under § 54.4(b), clinical investigators supply to the sponsor of a covered study financial information sufficient to allow the sponsor to submit complete and accurate certification or disclosure statements. Clinical investigators are accustomed to supplying such information when applying for research grants. Also, most people know the financial holdings of their immediate family and records of such interests are generally accessible because they are needed for preparing tax records. For these reasons, FDA estimates that the time required for this task may range from 5 to 15 minutes; we used the mean, 10 minutes, for the average burden per disclosure. The number of respondents is the sum of the number of affected applications multiplied by the mean (rounded) of the estimated number of investigators for each application type (see table 1).

    Table 4—Estimated Annual Third-Party Disclosure Burden  1 21 CFR section Number of
  • respondents
  • Number of
  • disclosures
  • per
  • respondent
  • Total annual
  • disclosures
  • Average burden per disclosure Total hours 2
    54.4(b)—Clinical Investigators 7,894 1 7,894 0.17 (10 minutes) 1,342 1 There are no capital costs or operating and maintenance costs associated with this collection of information. 2 Numbers have been rounded.

    Our estimated burden for the information collection reflects an overall increase of 222 hours and a corresponding increase of 893 responses/records. We attribute this adjustment to an increase in the number of affected applications and the number of investigators. No program changes were made.

    Dated: September 21, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-21039 Filed 9-26-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2018-N-2969] Agency Information Collection Activities; Proposed Collection; Comment Request; Assessment of Combination Product Review Practices AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the Federal Register concerning each proposed collection of information and to allow 60 days for public comment in response to the notice. This notice solicits comments on a proposed information collection involving interviews with entities that submit a Request for Designation (RFD) or pre-RFD, an Investigational New Drug (IND) application or pre-IND request, or a New Drug Application (NDA) or Biologics License Application (BLA) for a combination product to FDA.

    DATES:

    Submit either electronic or written comments on the collection of information by November 26, 2018.

    ADDRESSES:

    You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before November 26, 2018. The https://www.regulations.gov electronic filing system will accept comments until midnight Eastern Time at the end of November 26, 2018. Comments received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand Delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2018-N-2969 for “Assessment of Combination Product Review Practices.” Received comments, those filed in a timely manner (see ADDRESSES), will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Ila S. Mizrachi, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-7726, [email protected]

    SUPPLEMENTARY INFORMATION:

    Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information before submitting the collection to OMB for approval. To comply with this requirement, FDA is publishing notice of the proposed collection of information set forth in this document.

    With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.

    Assessment of Combination Product Review Practices OMB Control Number 0910—NEW

    In 1991, FDA's Center for Biologics Evaluation and Research (CBER), Center for Drug Evaluation and Research (CDER), and Center for Devices and Radiological Health (CDRH) entered into “Intercenter Agreements” to provide guidance on the classification and assignment of medical products and to clarify jurisdiction over combination product reviews. With the enactment of the Medical Device User Fee and Modernization Act (MDUFMA) of 2002, FDA aimed to achieve prompt assignment of combination products, timely and effective premarket reviews, and consistent and appropriate postmarket regulation through the establishment of the Office of Combination Products (OCP). Since then, OCP has operated to further standardize combination product guidance to FDA and industry and facilitate coordination between FDA's medical product review Centers. As part of the 2017 reauthorization of the Prescription Drug User Fee Act (PDUFA), FDA committed to advance the development of drug-device and biologic-device combination products regulated by CDER and CBER through modernization of the combination product review program. To that end, FDA committed to contracting with an independent third party to assess current practices for combination drug product review, to include interviews with combination product sponsors and applicants. The contractor for the assessment of combination drug product review practices is Eastern Research Group, Inc. (ERG).

    Therefore, in accordance with the PDUFA VI Commitment Letter, FDA proposes to have ERG conduct independent interviews of combination product sponsors and applicants during the data collection period as follows:

    • Sponsors with a Request For Designation (RFD) or pre-RFD submitted during the data collection period.

    • Sponsors with a combination product Investigational New Drug (IND) or pre-IND submitted during the data collection period.

    • Applicants with a combination product New Drug Application (NDA) or Biologics License Application (BLA) that receives a first-cycle action from FDA during the data collection period.

    The purpose of these interviews is to collect voluntary feedback from combination product sponsors and applicants on their experience with FDA during the development and review of their products, including any challenges or best practices. ERG will anonymize and aggregate sponsor/applicant responses prior to inclusion in the assessment. ERG will use interview responses to complement and supplement data on combination product review parameters obtained through other means, such as extraction of data from FDA corporate databases and interviews with FDA review staff. FDA will publish ERG's assessment (with interview results and findings) on the Agency's public website and a link to the assessment in the Federal Register for public comment.

    Sponsors submit approximately 150 to 180 RFDs/pre-RFDs and 200 to 240 combination product original INDs/pre-INDs per year. ERG will interview 1 to 3 sponsor representatives at a time for up to 35 RFDs/pre-RFDs and 48 INDs received by FDA—up to 105 RFD/pre-RFD and 144 IND/pre-IND sponsor representatives per year. FDA typically reviews approximately 25 to 30 combination product original NDAs and original BLAs per year. ERG will interview 1 to 3 applicant representatives at a time for each application that receives a first-cycle action from FDA—up to 90 representatives per year. Thus, FDA estimates the burden of this collection of information as follows:

    Table 1—Estimated Annual Reporting Burden 1 Portion of study Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Total annual
  • responses
  • Average
  • burden per
  • response
  • Total hours 1
    Pre-test 5 1 5 1.5 7.5 Interviews 339 1 339 1.5 508.5 Total 516 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

    ERG will conduct a pretest of the interview protocol with five respondents. FDA estimates that it will take 1.0 to 1.5 hours to complete the pretest, for a total of a maximum of 7.5 hours. FDA estimates that up to 339 respondents will take part in the interviews each year, with each interview lasting 1.0 to 1.5 hours, for a total of a maximum of 508.5 hours. Thus, the total estimated annual burden is 516 hours. FDA's burden estimate is based on prior experience with similar interviews with the regulated community.

    Dated: September 21, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-21038 Filed 9-26-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2008-D-0180] Coronary Drug-Eluting Stents—Nonclinical and Clinical Studies and Companion Guidance Document; Draft Guidance for Industry and Food and Drug Administration Staff; Availability; Reopening of the Comment Period AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice; reopening of the comment period.

    SUMMARY:

    The Food and Drug Administration (FDA or the Agency) is reopening the comment period for the notice of availability, published in the Federal Register of March 27, 2008. In that document, FDA requested comments on two draft guidance documents entitled “Coronary Drug-Eluting Stents—Nonclinical and Clinical Studies” and “Coronary Drug-Eluting Stents—Nonclinical and Clinical Studies Draft Companion Guidance Document.” The Agency is reopening the comment period to allow interested persons to provide updated comments and any new information.

    DATES:

    FDA is reopening the comment period on the notice of availability published March 27, 2008 (73 FR 16311). Submit either electronic or written comments on the draft guidances by December 26, 2018, to ensure that the Agency considers your comment on the draft guidances before it begins work on the final version of the guidances.

    ADDRESSES:

    You may submit comments on any guidance at any time as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand Delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2008-D-0180 for “Coronary Drug-Eluting Stents—Nonclinical and Clinical Studies” and “Coronary Drug-Eluting Stents—Nonclinical and Clinical Studies Draft Companion Guidance Document.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).

    An electronic copy of the guidance documents is available for download from the internet. See the SUPPLEMENTARY INFORMATION section for information on electronic access to the guidances. Submit written requests for a single hard copy of the draft guidance documents entitled “Coronary Drug-Eluting Stents—Nonclinical and Clinical Studies” and “Coronary Drug-Eluting Stents—Nonclinical and Clinical Studies Draft Companion Guidance Document” to the Office of the Center Director, Guidance and Policy Development, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5431, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request.

    FOR FURTHER INFORMATION CONTACT:

    Michael John, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1224, Silver Spring, MD 20993-0002, 301-796-6329, [email protected] or Kimberly Peters, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 4314, Silver Spring, MD 20993-0002, 301-796-6350, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    In the Federal Register of March 27, 2008, FDA published a notice of availability with a 120-day comment period to request comments on the draft guidances entitled “Coronary Drug-Eluting Stents—Nonclinical and Clinical Studies” and “Coronary Drug-Eluting Stents—Nonclinical and Clinical Studies Draft Companion Guidance Document.”

    The draft guidances are being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidances, when finalized, will represent the current thinking of FDA on coronary drug-eluting stents—nonclinical and clinical studies. They do not establish any rights for any person and are not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. The guidances are not subject to Executive Order 12866.

    FDA is reopening the comment period to consider any new information and intends to issue revised versions of these draft guidances for further consideration. This action will help the Center for Devices and Radiological Health fulfill its commitment to finalize, withdraw, or reopen the comment period for 50 percent of existing draft guidances issued prior to October 1, 2012 (82 FR 58429, December 12, 2017).

    FDA is reopening the comment period for 90 days. The Agency believes that a 90-day extension allows adequate time for interested parties to submit comments. Previously submitted comments do not need to be resubmitted for consideration.

    II. Electronic Access

    Persons interested in obtaining a copy of the draft guidances may do so by downloading an electronic copy from the internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at https://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/default.htm. The draft guidance documents are also available at https://www.regulations.gov. Persons unable to download an electronic copy of “Coronary Drug-Eluting Stents—Nonclinical and Clinical Studies” and “Coronary Drug-Eluting Stents—Nonclinical and Clinical Studies Draft Companion Guidance Document” may send an email request to [email protected] to receive an electronic copy of the document. Please use the document number 6255 to identify the guidance you are requesting.

    Dated: September 21, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-21041 Filed 9-26-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2018-D-1752] Public Availability of Lists of Retail Consignees To Effectuate Certain Human and Animal Food Recalls; Draft Guidance for Industry and Food and Drug Administration Staff; Availability AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice of availability.

    SUMMARY:

    The Food and Drug Administration (FDA, we, or Agency) is announcing the availability of a draft guidance for industry and FDA staff entitled “Public Availability of Lists of Retail Consignees to Effectuate Certain Human and Animal Food Recalls.” The draft guidance, when finalized, establishes guidance for industry and FDA staff on how and when FDA intends to collect, compile, and publicize retail consignees that may have received recalled foods. While FDA intends to focus on recalls where there is a reasonable probability that the use of, or exposure to, the food will cause serious adverse health consequences or death to humans or animals (Class I recalls), FDA may also publicize retail consignee lists for other food recalls as described in the draft guidance. FDA's goal is to publicize retail consignee lists for these food recalls where providing this additional information will be of the most use to consumers to help them identify recalled food and to determine whether that food is in their possession as effectively and quickly as possible.

    DATES:

    Submit either electronic or written comments on the draft guidance by November 26, 2018 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.

    ADDRESSES:

    You may submit comments as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand Delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2018-D-1752 for “Public Availability of Lists of Retail Consignees to Effectuate Certain Human and Animal Food Recalls; Draft Guidance for Industry and FDA Staff.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).

    Submit written requests for single copies of the draft guidance to the Office of Strategic Planning and Operational Policy, Office of Regulatory Affairs, Food and Drug Administration, 12420 Parklawn Dr., Element Building, Rockville, MD 20857. Send one self-addressed adhesive label to assist that office in processing your requests. See the SUPPLEMENTARY INFORMATION section for electronic access to the draft guidance document.

    FOR FURTHER INFORMATION CONTACT:

    Chris Henderson, Office of Regulatory Affairs, Division of Operational Policy, Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20857, 240-402-8186, [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    FDA is announcing the availability of a draft guidance for industry and FDA staff entitled “Public Availability of Lists of Retail Consignees to Effectuate Certain Human and Animal Food Recalls.” The draft guidance, when finalized, establishes guidance for industry and FDA staff on how and when FDA intends to publicize retail consignees that may have received recalled foods. FDA's goal is to publicize retail consignee lists for these food recalls, especially those that are likely to be classified as Class I recalls, where providing this additional information will be of the most use to consumers to help them identify recalled food and to determine whether that food is in their possession as effectively and quickly as possible. FDA seeks comment on this draft guidance, including scope of the term “retail consignee” as used in this document, the situations where providing retail consignee lists would be of the most use to consumers to identify recalled food in their possession, and additional information that would be of the most use to consumers to help them identify recalled food in their possession.

    This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA regarding publicizing retail consignees to effectuate certain food recalls. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This draft guidance is not subject to Executive Order 12866.

    II. Paperwork Reduction Act of 1995

    This draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Any collections of information under 21 CFR 7.46, 7.49, 7.53, 7.55, and 7.59 have been approved under OMB control number 0910-0249.

    III. Electronic Access

    Persons with access to the internet may obtain the draft guidance at either https://www.fda.gov/Safety/Recalls/default.htm or https://www.regulations.gov.

    Dated: September 21, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-21042 Filed 9-26-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2018-N-0007] Fee for Using a Rare Pediatric Disease Priority Review Voucher in Fiscal Year 2019 AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The Food and Drug Administration (FDA or the Agency) is announcing the fee rate for using a rare pediatric disease priority review voucher for fiscal year (FY) 2019. The Federal Food, Drug, and Cosmetic Act (FD&C Act), as amended by the Food and Drug Administration Safety and Innovation Act (FDASIA), authorizes FDA to determine and collect rare pediatric disease priority review user fees for certain applications for review of human drug or biological products when those applications use a rare pediatric disease priority review voucher. These vouchers are awarded to the applicants of rare pediatric disease product applications that meet all of the requirements of this program and that are submitted 90 days or more after July 9, 2012, upon FDA approval of such applications. The amount of the fee for using a rare pediatric disease priority review voucher is determined each FY, based on the difference between the average cost incurred by FDA to review of a human drug application designated as priority review in the previous FY and the average cost incurred in the review of an application that is not subject to priority review in the previous FY. This notice establishes the rare pediatric disease priority review fee rate for FY 2019 and outlines the payment procedures for such fees.

    FOR FURTHER INFORMATION CONTACT:

    Lola Olajide, Office of Financial Management, Food and Drug Administration, 8455 Colesville Rd., COLE-14541B, Silver Spring, MD 20993-0002, 240-402-4244.

    SUPPLEMENTARY INFORMATION: I. Background

    Section 908 of FDASIA (Pub. L. 112-144) added section 529 to the FD&C Act (21 U.S.C. 360ff). In section 529 of the FD&C Act, Congress encouraged development of new human drugs and biological products for prevention and treatment of certain rare pediatric diseases by offering additional incentives for obtaining FDA approval of such products. Under section 529 of the FD&C Act, the applicant of an eligible human drug application submitted 90 days or more after July 9, 2012, for a rare pediatric disease (as defined in section 529(a)(3)) shall receive a priority review voucher upon approval of the rare pediatric disease product application. The recipient of a rare pediatric disease priority review voucher may either use the voucher for a future human drug application submitted to FDA under section 505(b)(1) of the FD&C Act (21 U.S.C. 355(b)(1)) or section 351(a) of the Public Health Service Act (42 U.S.C. 262(a)), or transfer (including by sale) the voucher to another party. The voucher may be transferred (including by sale) repeatedly until it ultimately is used for a human drug application submitted to FDA under section 505(b)(1) of the FD&C Act or section 351(a) of the Public Health Service Act. A priority review is a review conducted with a Prescription Drug User Fee Act (PDUFA) goal date of 6 months after the receipt or filing date, depending on the type of application. Information regarding PDUFA goals is available at https://www.fda.gov/downloads/forindustry/userfees/prescriptiondruguserfee/ucm511438.pdf.

    The applicant that uses a rare pediatric disease priority review voucher is entitled to a priority review of its eligible human drug application, but must pay FDA a rare pediatric disease priority review user fee in addition to any user fee required by PDUFA for the application. Information regarding the rare pediatric disease priority review voucher program is available at: https://www.fda.gov/Drugs/DevelopmentApprovalProcess/DevelopmentResources/ucm375479.htm.

    This notice establishes the rare pediatric disease priority review fee rate for FY 2019 at $2,457,140 and outlines FDA's procedures for payment of rare pediatric disease priority review user fees. This rate is effective on October 1, 2018, and will remain in effect through September 30, 2019.

    II. Rare Pediatric Priority Review User Fee for FY 2019

    Under section 529(c)(2) of the FD&C Act, the amount of the rare pediatric disease priority review user fee is determined each fiscal year based on the difference between the average cost incurred by FDA in the review of a human drug application subject to priority review in the previous fiscal year, and the average cost incurred by FDA in the review of a human drug application that is not subject to priority review in the previous fiscal year.

    A priority review is a review conducted with a PDUFA goal date of 6 months after the receipt or filing date, depending on the type of application. Under the PDUFA goals letter, FDA has committed to reviewing and acting on 90 percent of the applications granted priority review status within this expedited timeframe. Normally, an application for a human drug or biological product will qualify for priority review if the product is intended to treat a serious condition and, if approved, would provide a significant improvement in safety or effectiveness. An application that does not receive a priority designation receives a standard review. Under the PDUFA goals letter, FDA has committed to reviewing and acting on 90 percent of standard applications within 10 months of the receipt or filing date depending on the type of application. A priority review involves a more intensive level of effort and a higher level of resources than a standard review.

    FDA is setting a fee for FY 2019, which is to be based on standard cost data from the previous fiscal year, FY 2018. However, the FY 2018 submission cohort has not been closed out yet, thus the cost data for FY 2018 are not complete. The latest year for which FDA has complete cost data is FY 2017. Furthermore, because FDA has never tracked the cost of reviewing applications that get priority review as a separate cost subset, FDA estimated this cost based on other data that the Agency has tracked. FDA uses data that the Agency estimates and publishes on its website each year—standard costs for review. FDA does not publish a standard cost for “the review of a human drug application subject to priority review in the previous fiscal year.” However, we expect all such applications would contain clinical data. The standard cost application categories with clinical data that FDA publishes each year are: (1) New drug applications (NDAs) for a new molecular entity (NME) with clinical data and (2) biologics license applications (BLAs).

    The standard cost worksheets for FY 2017 show standard costs of $5,340,560 for an NME NDA, and $4,596,936 for a BLA. Based on these standard costs, the total cost to review the 57 applications in these two categories in FY 2017 (31 NME NDAs with clinical data and 26 BLAs) was $285,077,688. (Note: These numbers exclude the President's Emergency Plan for AIDS Relief NDAs; no investigational new drug (IND) review costs are included in this amount.) Thirty-three of these applications (20 NDAs and 13 BLAs) received priority review, which would mean that the remaining 24 received standard reviews. Because a priority review compresses a review schedule that ordinarily takes 10 months into 6 months, FDA estimates that a multiplier of 1.67 (10 months ÷ 6 months) should be applied to non-priority review costs in estimating the effort and cost of a priority review as compared to a standard review. This multiplier is consistent with published research on this subject which supports a priority review multiplier in the range of 1.48 to 2.35 (Ref. 1). Using FY 2017 figures, the costs of a priority and standard review are estimated using the following formula:

    (33 α × 1.67) + (24α) = $285,077,688 where “α” is the cost of a standard review and “α times 1.67” is the cost of a priority review. Using this formula, the cost of a standard review for NME NDAs and BLAs is calculated to be $3,603,561 (rounded to the nearest dollar) and the cost of a priority review for NME NDAs and BLAs is 1.67 times that amount, or $6,017,946 (rounded to the nearest dollar). The difference between these two cost estimates, or $2,414,386, represents the incremental cost of conducting a priority review rather than a standard review.

    For the FY 2019 fee, FDA will need to adjust the FY 2017 incremental cost by the average amount by which FDA's average costs increased in the 3 years prior to FY 2018, to adjust the FY 2017 amount for cost increases in FY 2018. That adjustment, published in the Federal Register on August 1, 2018 (83 FR 37504), setting the FY 2019 PDUFA fee, is 1.7708 percent for the most recent year, not compounded. Increasing the FY 2017 incremental priority review cost of 2,414,386 by 1.7708 percent (or 0.017708) results in an estimated cost of $2,457,140 (rounded to the nearest dollar). This is the rare pediatric disease priority review user fee amount for FY 2019 that must be submitted with a priority review voucher for a human drug application in FY 2019, in addition to any PDUFA fee that is required for such an application.

    III. Fee Schedule for FY 2019

    The fee rate for FY 2019 is set out in table 1:

    Table 1—Rare Pediatric Disease Priority Review Schedule for FY 2019 Fee category Fee rate for
  • FY 2019
  • Application submitted with a rare pediatric disease priority review voucher in addition to the normal PDUFA fee $2,457,140
    IV. Implementation of Rare Pediatric Disease Priority Review User Fee

    Under section 529(c)(4)(A) of the FD&C Act, the priority review user fee is due (i.e., the obligation to pay the fee is incurred) when a sponsor notifies FDA of its intent to use the voucher. Section 529(c)(4)(B) of the FD&C Act specifies that the application will be considered incomplete if the priority review user fee and all other applicable user fees are not paid in accordance with FDA payment procedures. In addition, section 529(c)(4)(C) specifies that FDA may not grant a waiver, exemption, reduction, or refund of any fees due and payable under this section of the FD&C Act.

    The rare pediatric disease priority review fee established in the new fee schedule must be paid for any application that is received on or after October 1, 2018. In order to comply with this requirement, the sponsor must notify FDA 90 days prior to submission of the human drug application that is the subject of a priority review voucher of an intent to submit the human drug application, including the date on which the sponsor intends to submit the application.

    Upon receipt of this notification, FDA will issue an invoice to the sponsor who has incurred a rare pediatric disease priority review voucher fee. The invoice will include instructions on how to pay the fee via wire transfer or check.

    As noted in section II, if a sponsor uses a rare pediatric disease priority review voucher for a human drug application, the sponsor would incur the rare pediatric disease priority review voucher fee in addition to any PDUFA fee that is required for the application. The sponsor would need to follow FDA's normal procedures for timely payment of the PDUFA fee for the human drug application.

    Payment must be made in U.S. currency by electronic check, check, bank draft, wire transfer, credit card, or U.S. postal money order payable to the order of the Food and Drug Administration. The preferred payment method is online using electronic check (Automated Clearing House (ACH) also known as eCheck). Secure electronic payments can be submitted using the User Fees Payment Portal at https://userfees.fda.gov/pay. (Note: only full payments are accepted. No partial payments can be made online.) Once you search for your invoice, select “Pay Now” to be redirected to Pay.gov. Note that electronic payment options are based on the balance due. Payment by credit card is available for balances that are less than $25,000. If the balance exceeds this amount, only the ACH option is available. Payments must be made using U.S bank accounts as well as U.S. credit cards.

    If paying with a paper check the invoice number should be included on the check, followed by the words “Rare Pediatric Disease Priority Review.” All paper checks must be in U.S. currency from a U.S. bank made payable and mailed to: Food and Drug Administration, P.O. Box 979107, St. Louis, MO 63197-9000.

    If checks are sent by a courier that requests a street address, the courier can deliver the checks to: U.S. Bank, Attention: Government Lockbox 979107, 1005 Convention Plaza, St. Louis, MO 63101. (Note: This U.S. Bank address is for courier delivery only. If you have any questions concerning courier delivery contact the U.S. Bank at 314-418-4013. This telephone number is only for questions about courier delivery.) The FDA post office box number (P.O. Box 979107) must be written on the check. If needed, FDA's tax identification number is 53-0196965.

    If paying by wire transfer, please reference your invoice number when completing your transfer. The originating financial institution may charge a wire transfer fee. If the financial institution charges a wire transfer fee it is required to add that amount to the payment to ensure that the invoice is paid in full. The account information is as follows: U.S. Dept. of Treasury, TREAS NYC, 33 Liberty St., New York, NY 10045, Account Number: 75060099, Routing Number: 021030004, SWIFT: FRNYUS33.

    V. Reference

    The following reference is on display at the Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852) and is available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; it is not available electronically at https://www.regulations.gov as this reference is copyright protected. FDA has verified the website address, as of the date this document publishes in the Federal Register, but websites are subject to change over time.

    1. Ridley, D.B., H.G. Grabowski, and J.L. Moe, “Developing Drugs for Developing Countries,” Health Affairs, vol. 25, no. 2, pp. 313-324, 2006, available at: https://faculty.fuqua.duke.edu/~willm/HSM_RA/Documents/HA2006_Ridley_Vouchers.pdf. Dated: September 20, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-21033 Filed 9-26-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2009-N-0329] Dilip Patel; Denial of Hearing; Final Debarment Order AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The Food and Drug Administration (FDA or Agency) is denying a request for a hearing submitted by Dilip Patel and is issuing an order under the Federal Food, Drug, and Cosmetic Act (FD&C Act) debarring Patel for 5 years from providing services in any capacity to a person that has an approved or pending drug product application. FDA bases this order on a finding that Patel was convicted of a conspiracy to commit a felony under Federal law for conduct relating to the regulation of a drug product under the FD&C Act and that the conduct underlying the conviction undermines the process for the regulation of drugs. In determining the appropriateness and period of Patel's debarment, FDA considered the relevant factors listed in the FD&C Act. Patel failed to file with the Agency information and analyses sufficient to create a basis for a hearing concerning this action.

    DATES:

    The order is applicable September 27, 2018.

    ADDRESSES:

    Any application for termination of debarment by Patel under section 306(d) of the FD&C Act (application) may be submitted as follows:

    Electronic Submissions

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. An application submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your application will be made public, you are solely responsible for ensuring that your application does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your application, that information will be posted on https://www.regulations.gov.

    • If you want to submit an application with confidential information that you do not wish to be made available to the public, submit the application as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand Delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For a written/paper application submitted to the Dockets Management Staff, FDA will post your application, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: Your application must include the Docket No. FDA-2009-N-0329. An application will be placed in the docket and, unless submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit an application with confidential information that you do not wish to be made publicly available, submit your application only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of your application. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your application and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852 between 9 a.m. and 4 p.m., Monday through Friday. Publicly available submissions may be seen in the docket.

    FOR FURTHER INFORMATION CONTACT:

    Rachael Vieder Linowes, Office of Scientific Integrity, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4206, Silver Spring, MD 20993, 240-402-5931.

    SUPPLEMENTARY INFORMATION: I. Background

    Section 306(b)(2)(B)(i)(II) of the FD&C Act (21 U.S.C. 335a(b)(2)(B)(i)(II)) permits FDA to debar an individual if it finds: (1) That the individual has been convicted of a conspiracy to commit a felony under Federal law for conduct relating to the regulation of any drug product under the FD&C Act and (2) that the type of conduct which served as the basis for the conviction undermines the process for the regulation of drugs.

    On April 24, 2007, Patel pled guilty to one count of conspiracy to distribute misbranded and adulterated drugs, in violation of 18 U.S.C. 371. On December 9, 2010, the U.S. District Court for the District of New Jersey entered the conviction, sentenced Patel to 2 years of probation, and imposed a $3,000 fine. Patel's conviction stemmed from his employment at Able Laboratories, Inc. (Able), where he was a Supervisor of Analytical Control and later a Quality Control Manager in the Quality Control Department. Patel and his co-conspirators conspired and agreed with others to cause the introduction of misbranded and adulterated drugs into interstate commerce with an intent to defraud and mislead the United States, in violation of sections 301(a) and 303(a)(2) of the FD&C Act (21 U.S.C. 331(a) and 333(a)(2)). Specifically, according to the criminal information to which he pled guilty, Patel supervised the falsification and manipulation of assay test results for atenolol, a prescription medication for cardiac conditions, and he directed a subordinate chemist to falsify and manipulate dissolution test results for methylphenidate hydrochloride extended-release tablets, a prescription medication for attention deficit and hyperactivity disorder.

    By letter dated January 10, 2012, FDA's Office of Regulatory Affairs (ORA) notified Patel of its proposal to debar him for 5 years from providing services in any capacity to a person having an approved or pending drug product application. ORA concluded that Patel should be debarred for 5 years based on the four applicable considerations in section 306(c)(3) of the FD&C Act: (1) The nature and seriousness of his offense, (2) the nature and extent of management participation, (3) the nature and extent of voluntary steps taken to mitigate the impact on the public, and (4) prior convictions involving matters within FDA's jurisdiction. ORA found that the nature and seriousness of the offense, the nature and extent of management participation, the nature and extent of voluntary steps to mitigate the impact on the public were unfavorable factors for Patel. ORA found that the absence of prior convictions involving matters within FDA's jurisdiction was a favorable factor for Patel. ORA concluded, “Weighing all the factors, the Agency has determined that the unfavorable factors far outweigh the favorable factor, and therefore warrant the imposition of a five-year permissible debarment.”

    In a letter dated January 31, 2012, through counsel, Patel requested a hearing. In a letter dated March 1, 2012, through counsel, Patel submitted a short summary of arguments to support his hearing request.

    Under the authority delegated to him by the Commissioner of Food and Drugs, the Director of the Office of Scientific Integrity (OSI) has considered Patel's submission. Hearings are granted only if there is a genuine and substantial issue of fact. Hearings will not be granted on issues of policy or law, on mere allegations, denials or general descriptions of positions and contentions, or on data and information insufficient to justify the factual determination urged (see 21 CFR 12.24(b)).

    OSI has considered Patel's arguments and concludes that Patel's arguments are unpersuasive and fail to raise a genuine and substantial issue of fact requiring a hearing.

    II. Arguments

    In his hearing request, Patel generally denies: (1) Violating good manufacturing practice requirements; (2) violating standard operating procedures by failing to properly investigate, log, and archive questionable, aberrant, and unacceptable laboratory results, so that Able could conceal improprieties and continue to distribute and sell its drug products; (3) manipulating and falsifying testing data and information to conceal from FDA failing laboratory results relating to Able's generic drug products; (4) creating and maintaining false, fraudulent, and inaccurate test results to make it appear that drug products had requisite identity, strength, quality, and purity characteristics; and (5) creating and maintaining false, fraudulent, and inaccurate data and records to obtain FDA approval to market new product lines. Patel also denies that he was in a managerial position and asserts that he took voluntary steps to mitigate the impact of his offenses on the public by cooperating with law enforcement officials during the investigation and subsequent prosecution.

    It is unclear whether Patel's five enumerated denials are challenges to ORA's finding that he is subject to debarment under section 306(b)(2)(B)(i)(II) of the FD&C Act or its finding with respect to the consideration under section 306(c)(3)(A), the nature and seriousness of his offense. Regardless of how these denials are directed, they do not create a genuine and substantial issue of fact suitable for a hearing. Section 306(l) of the FD&C Act defines conviction a Federal or State court's entry of a judgment of conviction or acceptance of a guilty plea. In pleading guilty, Patel stated that he was voluntarily entering his guilty plea based on an understanding of the charges listed in the information, which included the factual allegations that he now disputes. The court then entered a judgment of conviction after accepting Patel's guilty plea. By pleading guilty to the charges in the information, Patel has already admitted and been convicted on the basis of the actions he now denies. Patel does not dispute that the court entered a judgment of conviction or that the court accepted his guilty plea and the factual admissions underlying it. Therefore, Patel's denials, whether directed at the Agency's authority to debar him or the appropriateness or period of debarment, fail to raise a genuine and substantial issue of fact warranting a hearing.

    Patel next argues that he was not in a managerial role at the time of the offenses and thereby appears to be challenging ORA's finding to the contrary under section 306(c)(3)(B) of the FD&C Act. In the attachment to Patel's plea agreement, Patel stipulated that he “was an organizer, leader, manager or supervisor of the relevant criminal activity.” Patel is bound by his stipulation from the criminal proceedings and cannot now deny his managerial role. Further, Patel does not provide any new information that would overcome his stipulation that he was in a managerial role; therefore, OSI concludes that Patel has failed to raise a genuine and substantial issue of fact requiring a hearing with respect to ORA's finding.

    Lastly, Patel claims that he took voluntary steps to mitigate the impact on the public by cooperating with law enforcement officials during the investigation and subsequent prosecution of the conduct surrounding his offense. Patel appears to be responding to ORA's finding under section 306(c)(3)(C) of the FD&C Act that there is no information demonstrating such voluntary steps, but he does not provide any specific information or arguments to support his bare assertion that he cooperated with law enforcement officials. His unsupported statement that he took voluntary steps to mitigate the effect of his offense on the public through cooperation with law enforcement officials does not create a genuine and substantial issue of fact that warrants a hearing.

    Based on the factual findings in the proposal to debar and on the record, OSI finds that the proposed 5-year debarment is appropriate. In particular, the nature and seriousness of Patel's offense weighs significantly in favor of debarment. As stated in the proposal to debar, “[His] conduct created a risk of injury, undermined the Agency's oversight of an approved drug product, undermined the development or approval, including the process for development or approval, of a drug product, and seriously undermined the integrity of the Agency's regulation of drug products.” The nature and extent of management participation and lack of voluntary steps to mitigate the impact on the public also weigh in favor of debarment. Although Patel does not appear to have prior criminal convictions involving matters within FDA's jurisdiction, this sole favorable factor is not enough to outweigh the factors supporting debarment.

    III. Findings and Order

    Therefore, the Director of OSI, under section 306(b)(2)(B)(i)(II) of the FD&C Act and under authority delegated to him by the Commissioner of Food and Drugs, finds that: (1) Patel has been convicted of a conspiracy to commit a felony under Federal law for conduct relating to the regulation of a drug product under the FD&C Act and (2) that the conduct which served as the basis for the conviction undermines the process for the regulation of drugs. FDA has considered the applicable factors listed in section 306(c)(3) of the FD&C Act and determined that a debarment of 5 years is appropriate.

    As a result of the foregoing findings, Patel is debarred for 5 years from providing services in any capacity to a person with an approved or pending drug product application under sections 505, 512, or 802 of the FD&C Act (21 U.S.C. 355, 360b, or 382), or under section 351 of the Public Health Service Act (42 U.S.C. 262), effective September 27, 2018 (see 21 U.S.C. 335a(c)(1)(B) and (c)(2)(A)(iii) and 21 U.S.C. 321(dd)). Any person with an approved or pending drug product application, who knowingly uses the services of Patel, in any capacity during his period of debarment, will be subject to civil money penalties (section 307(a)(6) of the FD&C Act (21 U.S.C. 335b(a)(6))). If Patel, during his period of debarment, provides services in any capacity to a person with an approved or pending drug product application, he will be subject to civil money penalties (section 307(a)(7) of the FD&C Act). In addition, FDA will not accept or review any abbreviated new drug applications submitted by or with the assistance of Patel during his period of debarment (section 306(c)(1)(B) of the FD&C Act).

    Dated: September 21, 2018. George M. Warren, Director, Office of Scientific Integrity.
    [FR Doc. 2018-20977 Filed 9-26-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Indian Health Service [OMB NO. 0917-0028] Request for Public Comment: 60-Day Proposed Information Collection: Addendum to Declaration for Federal Employment, Child Care and Indian Child Care Worker Positions AGENCY:

    Indian Health Service, HHS.

    ACTION:

    Notice and request for comments. Request for extension of approval.

    SUMMARY:

    In compliance with the Paperwork Reduction Act of 1995, which requires 60 days for public comment on proposed information collection projects, the Indian Health Service (IHS) invites the general public to take this opportunity to comment on the information collection titled, “Addendum to Declaration for Federal Employment, Child Care and Indian Child Care Worker Positions,” Office of Management and Budget (OMB) Control Number 0917-0028.

    DATES:

    November 26, 2018. Your comments regarding this information collection are best assured of having full effect if received within 60 days of the date of this publication.

    ADDRESSES:

    Send your written comments, requests for more information on the proposed collection, or requests to obtain a copy of the data collection instrument and instructions to Evonne Bennett-Barnes by one of the following methods:

    Mail: Evonne Bennett-Barnes, Information Collection Clearance Officer, 5600 Fishers Lane, Mail stop: 09E21B, Rockville, MD 20857.

    Email: [email protected]

    Phone: 301-443-4750.

    SUPPLEMENTARY INFORMATION:

    This previously approved information collection project was last published in the Federal Register (80 FR 53812) on September 8, 2015, and allowed 30 days for public comment. No public comment was received in response to the notice. This notice announces our intent to submit this collection, which expires November 30, 2018, to OMB for approval of an extension, and to solicit comments on specific aspects for the proposed information collection.

    A copy of the supporting statement is available at www.regulations.gov (see Docket ID IHS_FRDOC_0001).

    Proposed Collection: Title: Addendum to Declaration for Federal Employment, Child Care and Indian Child Care Worker Positions (OMB No. 0917-0028). Type of Information Collection Request: Extension, without revision, of currently approved information collection, 0917-0028, Addendum to Declaration for Federal Employment, Child Care and Indian Child Care Worker Positions. There are no program changes or adjustments in burden hours. Form(s): Addendum to Declaration for Federal Employment, Child Care and Indian Child Care Worker Positions. Need and Use of Information Collection: This is a request for approval of the collection of information as required by section 408 of the Indian Child Protection and Family Violence Prevention Act, Public Law (Pub. L.) 101-630, 104 Stat. 4544, and 25 United States Code (U.S.C.) §§ 3201-3210.

    The IHS is required to compile a list of all authorized positions within the IHS where the duties and responsibilities involve regular contact with, or control over, Indian children; and to conduct an investigation of the character of each individual who is employed, or is being considered for employment, in a position having regular contact with, or control over, Indian children. 25 U.S.C. 3207(a)(1) and (2). Title 25 U.S.C. 3207(a)(3) requires regulations prescribing the minimum standards of character for individuals appointed to positions involving regular contact with, or control over, Indian children, and section 3207(b) provides that such standards shall ensure that no such individuals have been found guilty of, or entered a plea of nolo contendere or guilty to any felonious offense, or any two or more misdemeanor offenses, under Federal, State, or Tribal law involving crimes of violence; sexual assault, molestation, exploitation, contact or prostitution; crimes against persons; or offenses committed against children.

    In addition, 34 U.S.C. 20351 (formerly codified at 42 U.S.C. 13041, which was transferred to 34 U.S.C. 20351) requires each agency of the Federal Government, and every facility operated by the Federal Government (or operated under contract with the Federal Government), that hires (or contracts for hire) individuals involved with the provision of child care services to children under the age of 18 to assure that all existing and newly hired employees undergo a criminal history background check. The background investigation is to be initiated through the personnel program of the applicable Federal agency. This section requires employment applications for individuals who are seeking work for an agency of the Federal Government, or for a facility or program operated by (or through contract with) the Federal Government, in positions involved with the provision of child care services to children under the age of 18, to contain a question asking whether the individual has ever been arrested for or charged with a crime involving a child, and if so, requiring a description of the disposition of the arrest or charge.

    Affected Public: Individuals and households. Type of Respondents: Individuals.

    The table below provides: Types of data collection instruments, Estimated number of respondents, Number of responses per respondent, Average burden hour per response, and Total annual burden hour(s).

    Estimated Annual Burden Hours Data collection instrument(s) Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Average
  • burden per
  • response
  • (in hours)
  • Total
  • annual burden
  • responses
  • (in hours)
  • Addendum to Declaration for Federal Employment (OMB 0917-0028) 3000 1 12/60 600 Total 3000 600

    There are no Capital Costs, Operating Costs, and/or Maintenance Costs to report.

    Requests for Comments: Your written comments and/or suggestions are invited on one or more of the following points:

    (a) Whether the information collection activity is necessary to carry out an agency function;

    (b) whether the agency processes the information collected in a useful and timely fashion;

    (c) the accuracy of the public burden estimate (the estimated amount of time needed for individual respondents to provide the requested information);

    (d) whether the methodology and assumptions used to determine the estimates are logical;

    (e) ways to enhance the quality, utility, and clarity of the information being collected; and

    (f) ways to minimize the public burden through the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Dated: September 20, 2018. RADM Michael D. Weahkee, Assistant Surgeon General, USPHS, Acting Director, Indian Health Service.
    [FR Doc. 2018-20989 Filed 9-26-18; 8:45 am] BILLING CODE 4165-16-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health National Institute on Minority Health and Health Disparities; Notice of Closed Meeting

    Pursuant to section 10(d) of the Federal Advisory Committee Act