Federal Register Vol. 83, No.189,

The NRC published the proposed Agreement in the Federal Register for comment once each week for 4 consecutive weeks on June 26, 2018 (83 FR 29828), July 3, 2018 (83 FR 31174), July 10, 2018 (83 FR 31981), and July 17, 2018 (83 FR 33257), as required by the Act. The comment period ended on July 26, 2018. The Commission received 11 comment letters and responses—two supporting the Agreement, three opposing the Agreement, and the remaining not stating an opinion or providing statements related to the proposed Agreement. The comments did not alter the NRC staff's finding that the Wyoming Agreement State program is adequate to protect public health and safety and compatible with the NRC's program. The Wyoming Agreement is consistent with Commission policy and thus meets the criteria for an Agreement with the Commission.

After considering the request for an Agreement by the Governor of Wyoming, the supporting documentation submitted with the request for an Agreement, and its interactions with the staff of the Wyoming Department of Environmental Quality, the NRC staff completed an assessment of the Wyoming program. The agency made a copy of the staff assessment available in the NRC's Public Document Room (PDR) and electronically on the NRC's Web site. Based on the staff's assessment, the Commission determined on September 10, 2018, that the Wyoming program for control of radiation hazards is adequate to protect public health and safety and compatible with the Commission's program. This Agreement is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

WHEREAS, The United States Nuclear Regulatory Commission (hereinafter referred to as “the Commission”) is authorized under Section 274 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. Section 2011 et seq. (hereinafter referred to as “the Act”), to enter into agreements with the Governor of any State providing for discontinuance of the regulatory authority of the Commission within the State under Chapters 6, 7, and 8, and Section 161 of the Act with respect to byproduct material as defined in Section 11e.(2) of the Act and source material involved in the extraction or concentration of uranium or thorium in source material or ores at milling facilities; and,

WHEREAS, The Governor of the State of Wyoming is authorized under Wyoming Statute Section 35-11-2001 to enter into this Agreement with the Commission; and,

WHEREAS, The Governor of the State of Wyoming certified on November 14, 2017, that the State of Wyoming (hereinafter referred to as “the State”) has a program for the control of radiation hazards adequate to protect public health and safety with respect to the materials within the State covered by this Agreement and that the State desires to assume regulatory responsibility for such materials; and,

WHEREAS, The Commission found on September 10, 2018, that the program of the State for the regulation of the materials covered by this Agreement is compatible with the Commission's program for the regulation of such materials and is adequate to protect public health and safety; and,

WHEREAS, The State and the Commission recognize the desirability and importance of cooperation between the Commission and the State in the formulation of standards for protection against hazards of radiation and in assuring that State and Commission programs for protection against hazards of radiation will be coordinated and compatible; and,

WHEREAS, The Commission and the State recognize the desirability of the reciprocal recognition of licenses, and of the granting of limited exemptions from licensing of those materials subject to this Agreement; and,

WHEREAS, This Agreement is entered into pursuant to the Act;

NOW, THEREFORE, It is hereby agreed between the Commission and the Governor of the State of Wyoming acting on behalf of the State as follows:

Subject to the exceptions provided in Articles II, IV, and V, the Commission shall discontinue, as of the effective date of this Agreement, the regulatory authority of the Commission in the State under Chapters, 7, and 8, and Section 161 of the Act with respect to the following materials:

The State and the Commission agree to keep each other informed of proposed changes in their respective rules and regulations and to provide each other the opportunity for early and substantive contribution to the proposed changes. The State and the Commission agree to keep each other informed of events, accidents, and licensee performance that may have generic implication or otherwise be of regulatory interest.

The Vets First Contracting Program within the Department of Veterans Affairs (VA) was created under the Veterans Benefits, Health Care, and Information Technology Act of 2006 (Pub. L. 109-461), 38 U.S.C. 501, 513. This contracting program was created for Veteran-Owned Small Businesses and expanded the Service-Disabled Veteran-Owned contracting program for VA procurements. Approved firms are eligible to participate in Veteran-Owned Small Business (VOSB) and Service-Disabled Veteran-Owned Small Business (SDVOSB) set-asides issued by VA. More information regarding the Vets First Contracting Program can be found on the Department of Veterans Affairs website at https://www.va.gov/osdbu/faqs/109461.asp.

This rule complies with the directive in the National Defense Authorization Act of 2017 (Pub. L. 114-328), section 1832, to standardize definitions for VOSBs and SDVOSBs between VA and SBA. As required by section 1832, the Secretary of Veterans Affairs will use SBA's regulations to determine ownership and control of VOSBs and SDVOSBs. The Secretary would continue to determine whether individuals are veterans or service-disabled veterans and would be responsible for verification of applicant firms. Challenges to the status of a VOSB or SDVOSB based upon issues of ownership or control would be decided by the administrative judges at the SBA's Office of Hearings and Appeals (OHA).

The VA proposed its companion rule, VA Veteran-Owned Small Business (VOSB) Verification Guidelines (RIN 2900-AP97) on January 10, 2018 (83 FR 1203)(Docket Number: VA-2018-VACO-0004). Their proposed rule sought to remove all references related to ownership and control and to add and clarify certain terms and references that are currently part of the verification process. The NDAA also provides that in certain circumstances a firm can qualify as VOSB or Service-Disabled Veteran Owned Small Business (SDVOSB) when there is a surviving spouse or an employee stock ownership plan (ESOP). The final VA rule was issued on September 24, 2018 and is effective October 1, 2018. 83 FR 48221.

Similarly, SBA has finalized another related rule on March 30, 2018. SBA Final Rule: Rules of Practice for Protests and Appeals Regarding Eligibility for Inclusion in the U.S. Department of Veterans Affairs Center for Verification and Evaluation Database (83 FR 13626; RIN: 3245-AG87; Docket Number: SBA-2017-0007). This rule, also effective October 1, 2018, amends the rules of practice of SBA's Office of Hearings and Appeals (OHA) to implement procedures for protests of eligibility for inclusion in the Department of Veterans Affairs (VA) Center for Verification and Evaluation (CVE) database, and procedures for appeals of denials and cancellations of inclusion in the CVE database. OHA added two subparts to 13 CFR part 134: one for protests; the other for appeals. These amendments are issued in accordance with sections 1832 and 1833 of the National Defense Authorization Act for Fiscal Year 2017 (NDAA 2017).

SBA proposed this rule on January 29, 2018 (83 FR 4005; Docket Number: SBA-2018-0001). Sixty-eight comments were received, not all of which were germane to the rulemaking.

SBA received several comments related to this rulemaking as a whole. Two comments were supportive of the rule because the rule would align SBA's and VA's regulations, and would help to define elements previously addressed only outside the regulations through OHA decisions or case-by-case determinations. Six commenters opposed the proposed rule for addressing issues beyond just standardizing SBA's and VA's definitions. As explained in the section-by-section analysis, this rule codifies standards and practices that SBA has applied consistently through determinations and OHA decisions. SBA believes it benefits VOSB and SDVOSBs to have these standards and practices reflected in the regulations.

One commenter stated that SBA and VA should jointly issue regulations. SBA has consulted with VA in order to properly understand VA's positions and implement the statutory requirements in a way that is consistent with both SBA's and VA's interpretations. SBA and VA will each issue regulations effective on October 1, 2018, which will have the effect of creating a single ownership and control rule for both agencies.

In response to the NDAA 2017 changes, SBA proposed to amend the definitions in §  125.11 by incorporating language from VA's regulations and also from SBA's 8(a) Business Development (BD) program regulations. 13 CFR part 124, subpart A. SBA is defining a surviving spouse and the requirements for a surviving spouse-owned SDVO SBC to maintain program eligibility. Further, SBA is adding definitions for Daily Business Operations, Negative Control, Participant, and Unconditional Ownership. The added definitions are being adopted from SBA's 8(a) BD regulations found in part 124. SBA received two comments on the proposed definition of “Daily business operations.” One comment advised that “setting of the strategic direction of the firm” is better categorized as long-term operations. SBA agrees and has deleted the reference to “setting of the strategic direction of the firm” from the definition of “daily business operations.” A second comment objected to the inclusion of executive oversight, company policy, and strategic direction. SBA's deletion of strategic direction addresses this comment because, although the definition includes executive supervision and policy implementation, the definition does not address oversight or the creation of policy.

SBA received one comment on the “unconditional ownership” definition stating that it should be subject to the same conditions as extraordinary circumstances. SBA does not see a reason to conflate ownership and control requirements, and therefore is not changing the “unconditional ownership” definition.

SBA is adding a definition for Employee Stock Ownership Plan (ESOP). This definition is adopted from section 1832(a)(6). SBA is also replacing the definitions of permanent caregiver, service-disabled veteran, and surviving spouse. SBA is adding a new definition for service-disabled veteran with a permanent and severe disability. These definitions are being updated in consultation with VA in an effort to ensure consistency across programs at both Agencies. SBA is also adding a definition for small business concerns. Concerns will need to meet all the requirements of part 121, including §  121.105(a)(1), which requires that the firm be organized for profit, “with a place of business located in the United States, and which operates primarily within the United States or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor.” This definition will address how to generally determine the size of a concern. VO and SDVO SBCs will still be required to meet size standards corresponding to the NAICS code assigned to each contract pursuant to §§  125.14 and 125.15. SBA did not receive any comments on these definitions.

SBA proposed to add a definition for “extraordinary circumstances” under which a service disabled veteran owner would not have full control over a firm's decision-making process, but would not render the firm ineligible as a firm owned and controlled by one or more service disabled veterans. This definition will be used to identify discrete circumstances that SBA views as rare. The new definition will be used to allow minority equity holders to have negative control over these enumerated instances. SBA listed five limited circumstances in which a service-disabled veteran owner will not have full control over the decision making process. These five circumstances are exclusive, and SBA will not recognize any other facts or circumstances that would allow negative control by individuals that are not service-disabled. SBA received four comments on the definition for “extraordinary circumstances.” One comment was supportive, and three comments suggested that SBA either eliminate the list, or add more protection for non-service-disabled-veteran owners. One commenter cited two SBA Office and Hearing Appeals size decisions to argue that the new rule is more restrictive than SBA's affiliation regulations. Upon reviewing those two cases, Size Appeal of EA Engineering, Science and Technology, Inc., SBA No. SIZ-4973 (2008), and Size Appeal of Carntribe-Clement 8AJV #1, LLC, SBA No. SIZ-5357 (2012), SBA does not agree that they govern the matter of control of an SDVO SBC by a service-disabled veteran. In Firewatch Contracting of Florida, LLC, SBA No. VET-137 (2008), OHA specifically stated that EA Engineering does not interpret the SDVO SBC regulations. The “extraordinary circumstances” definition already includes both of the powers addressed in Carntribe-Clement, adding a new stakeholder and dissolution. Other cases involving the SDVO SBC regulations, including Apex Ventures, LLC, VET-219 (2011), show that SBA's current regulation requiring that the service-disabled veteran control “all” decisions is stricter than the proposed definition. SBA believes that current definition strikes a clear balance in favor of ensuring that SDVO SBCs are actually controlled by the service-disabled veteran. SBA has decided not to change the definition of “extraordinary circumstances.”

SBA proposed to amend §  125.12(b), which pertains to the requirement for ownership of a partnership. SBA's prior regulation required service-disabled veterans to own at least 51% of each type of partnership interest. Therefore, if a partnership had general partners and limited partners it was required that the service disabled veteran be both a general and limited partner. SBA is changing the requirement so that service-disabled veterans will need to own at least 51% of the aggregate voting interest in the partnership. SBA received one comment on this change that stated that the proposed rule was inconsistent with the treatment of corporations. SBA does not find that the treatment of partnership and corporations must be identical, and therefore SBA is adopting § 125.12(b) as proposed.

SBA proposed to add coverage to §  125.12(d) to address statutory language with regard to public companies and ownership. This language does not include any equity held by an ESOP when determining ownership for a publicly owned business. SBA did not receive any comments on this change.

SBA proposed to add a new §  125.12(g) to provide clarity with regard to requirements for dividends and distributions. In general, one's right to receive benefits, compensation, and the ultimate value of one's equity should be consistent with the purported amount of equity. For example, it is not consistent with SBA's regulations for a firm to state that a service-disabled veteran owns 60 percent of the equity but records show that he or she is entitled only to a smaller amount of the firm's profit, or that the residual value of that equity is less than 60 percent if the firm is sold. SBA received two comments on § 125.12(g). One commenter argued that this new rule would be inconsistent with SBA's regulations for joint ventures which require profit distribution based on workshare. SBA does not find that the SDVO SBC regulation needs to be consistent with the joint venture regulations, which address an entirely different situation. A joint venture is not itself an SDVO SBC and is therefore treated differently. SBA does not see a benefit of treating joint ventures and SDVO SBCs as if they were the same. One commenter indicated that requiring that the service-disabled veteran be entitled to the full value of the veteran's stated equity would prevent the veteran from being able to secure commercial loans. As noted from the proposed rule, the proposed language is similar to already existing 8(a) BD requirements. Through experience with that program, SBA has not witnessed the adverse effects predicted by this comment. The commenter presented no evidence to support the prediction, so SBA is adopting the proposed rule.

Under the new §  125.12(h), ownership decisions will be decided without regard to community property laws. This provision is similar to SBA's ownership regulations for women owned businesses. See 13 CFR 127.201. SBA did not receive any comments on this change.

The new §  125.12(i) allows the transfer of ownership in a SDVO SBC from a service-disabled veteran to his or her spouse upon the death of the service-disabled veteran without adversely affecting the firm's status as a SDVO SBC. SBA received two comments requesting that SBA extend survivor benefits beyond 100% service-disabled veterans. This allowance is taken from statute and can be seen in the definition of Surviving spouse in the proposed changes to § 125.11. As noted in the definition, the statutory provision can be found at 38 U.S.C. 101(3). SBA does not believe it has the authority to modify the definition and its application in the manner requested by the commenters. As such SBA is retaining the proposed language as is.

SBA proposed to add several new paragraphs to §  125.13 to incorporate provisions from SBA's 8(a) BD program and VA's former ownership and control regulations. SBA will continue to rely on the 8(a) program rules in part 124 for guidance in interpreting these control requirements.

SBA proposed to add language to describe how to determine if a service-disabled veteran controls the Board of Directors in §  125.13(e). This language is adopted from SBA's 8(a) BD regulations and is added to provide more clarity. In § 125.13(f), SBA added language that will require firms to provide notification of supermajority voting requirements. This regulation will simplify the procedures for reviewing eligibility criteria related to super majority requirements. SBA did not receive any comments on these changes.

SBA proposed that §  125.13(g), (h), (i), and (j) would adopt policies and language from SBA's 8(a) BD program and VA's regulations. These provisions provide guidance on when SBA may find that a non-service-disabled veteran controls the firm. These regulations add more clarity and detail to specific issues such as quorum requirements and loan arrangements with non-service-disabled veterans. SBA received several comments on § 125.13(i). One comment recommended that SBA present the requirement as a rebuttable presumption. SBA agrees that language about a rebuttable presumption adds clarity and consistency. As such, SBA has adopted the suggestion.

SBA received three comments on the provision in § 125.13(i)(1) that a non-service-disabled veteran owner or manager not be a former employer or principal of a former employer. Specifically, the commenters mentioned that as written the requirement is not easily understood. One commenter recommended that SBA add “current” employer to the requirement because being a current employer is even more likely to lead to issues than being a former employer. SBA agrees and is adding “current.” SBA also agrees that that the regulation could be clearer, and as such SBA has changed the language based on the suggestions in the comments. SBA does not believe that these changes affect the intent of the requirement.

SBA received three comments on the provision in § 125.13(i)(2) that a non-service-disabled veteran cannot receive higher compensation than the highest officer. One comment requested that SBA remove the requirement in its entirety. SBA believes this rule is necessary and has enough options for high payment of sought-after professionals to not hinder business progress. VA's regulations had a similar regulation, and SBA's 8(a) BD program currently includes this regulation. Two commenters requested changes to the language without challenging the intent of the regulation. One of these commenters requested that SBA adopt VA's position that a non-service-disabled veteran that is the highest-compensated employee should not be an officer or a manager. The proposed language mirrors language from SBA's 8(a) BD program. SBA believes that this language has a track record of providing clarity to participants about compensation expectations, while also allowing the flexibility for firms to make business decisions that benefit the concern without harming the service-disabled veteran.

SBA received two comments on § 125.13(i)(3), relating to when an SDVO SBC is co-located with another firm. One comment suggested a revision and another suggested deletion. SBA believes the co-location regulation is necessary to address a common situation where a service-disabled veteran is not in control of the concern because of reliance on the co-located firm. Like the other elements in the control regulation, this co-location element is a rebuttable presumption, so it is still possible to find control by the service-disabled veteran if the SDVO SBC presents sufficient evidence to rebut the presumption. SBA changed the last word in the proposed regulation to clarify that the regulation will apply when the co-located firm or individual has an equity interest in the concern seeking SDVO SBC status.

SBA proposed to add rebuttable presumptions to §  125.13(k) and (l). Paragraph (k) adds a rebuttable presumption that a person not working for a firm regularly during normal working hours does not control the firm. As a rebuttable presumption, this is not a full-time devotion requirement and can be rebutted by providing evidence of control. SBA received four comments on this proposed rule. All commenters stated that this regulation was a new hindrance placed on SDVO SBCs and should not be included. The rule, however, reflects a control element that SBA and VA are already applying to current SDVO SBCs. This has always been a factor that SBA will consider, but now it is clearly rebuttable by providing evidence of control. If a service-disabled veteran is not working during the firm's normal hours or has outside employment, SBA may presume that another individual is assuming the management role not being filled by the service-disabled veteran. This recognizes the reality of day-to-day control. SBA's regulations have always required that the day-to-day management and administration of SDVO SBC business operations must be conducted by one or more service-disabled veterans. The rebuttable presumption in paragraph (k) provides clarity on how SBA has always viewed the “day-to-day management” requirement and such is not a new requirement. Day-to-day management typically requires that an individual manage on a daily basis. In this case, if a firm does not require, and does not have an individual providing, management on a daily basis, the firm may provide that evidence to SBA to rebut the presumption.

Similarly, SBA proposed §  125.13(l) to add a rebuttable presumption regarding place of work. SBA received four comments on this proposed rule. All commenters stated that this regulation was a new hindrance placed on SDVO SBCs and should not be included. As with § 125.13(k), this is not a new policy by SBA. This is how SBA has been treating this issue already, and how SBA would treat this issue even if this paragraph was not included. A case from OHA supports SBA's position. See In the Matter of First Capital Interiors, Inc., VET-2006-10-25-07 (2006). That decision makes clear that an inquiry into how an individual manages a firm remotely is reasonable, and that it is the SDVO SBC's responsibility to demonstrate that a service-disabled veteran actually controls the firm. With this regulation, SBA is attempting to address the situation where no service-disabled veteran owner lives or works near the firm's headquarters or worksites. SBA will presume that this indicates a lack of control because there is work at the headquarters and jobsites being managed and directed by individuals that are not service-disabled veterans. All of the comments focused on the ability to work remotely in today's current environment, but this does not address SBA's main concern. As noted in SBA's proposed regulation, the main issue in these place of work instances is not remote management, but over-delegation of authority to non-service-disabled-veteran individuals who work at the office and who are at the work sites, namely, when there is evidence that individuals located at the headquarters and onsite are providing day-to-day management that should be provided by a service-disabled veteran. SBA's regulations require control over day-to-day operations, but remote observation and over-delegation do not meet this requirement. As noted in the proposed rule, this is a rebuttable presumption in which the firm may present evidence that the service-disabled has not abdicated authority to others to run the firm. Therefore, SBA is adopting the rule as proposed.

SBA is adopting § 125.13(m) and (n) as proposed. SBA did not receive comments on either subsection. The new §  125.13(m) is an exception to the control requirements in “extraordinary circumstances.” As noted above, SBA has defined extraordinary circumstances to include a limited and exhaustive list of five circumstances. The rule will allow an exception to the general requirement that SDVs control long term decision making. The new §  125.13(n) is an exception to the control requirements when an individual in the reserves is recalled to active duty. SBA and VA do not think a firm owned by a service-disabled veteran should lose its status due to the necessary military commitments of its owner when serving the nation.

SBA had proposed to make technical changes to §§ 125.22 and 125.23. These technical changes along with several others have already been implemented pursuant to other rulemaking. 83 FR 13849. As such, SBA has removed the proposed changes from this final rule.

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

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

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

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

OMB has determined that this rule does not constitute a “significant regulatory action” under Executive Order 12866. This rule is also not a major rule under the Congressional Review Act, 5 U.S.C. 800. This rule amends the rules concerning ownership and control of VO and SDVO SBCs. As such, the rule has no effect on the amount or dollar value of any Federal contract requirements or of any financial assistance provided through SBA or VA. Therefore, the rule is not likely to have an annual economic effect of $100 million or more, result in a major increase in costs or prices, or have a significant adverse effect on competition or the United States economy. In addition, this rule does not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency, materially alter the budgetary impact of entitlements, grants, user fees, loan programs or the rights and obligations of such recipients, nor raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

This rule is part of a joint effort by the VA and SBA to reduce the regulatory burden on the veteran business community. This rule consolidates ownership and control requirements in one regulation thus eliminating duplicate functions. Prior to the enactment of this regulation business owners had the burden of complying with both regulations. This regulation will eliminate that burden. The single rule helps streamline the verification and certification processes which will save business owners time and money. This will also lead to less confusion.

This action meets applicable standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.

This rule does not have Federalism implications as defined in Executive Order 13132. 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, as specified in the Executive Order. As such it does not warrant the preparation of a Federalism Assessment.

This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

The SBA has determined that this rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C. Chapter 35. However, this rule does include an information collection for the VA and the OMB approval number for this collection is 2900-0675.

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

This rule merges SBA and VA regulations concerning ownership and control of VO and SDVO SBCs as directed by Congress. The regulation is not attempting to create new regulation, but to streamline two already existing regulations into a single regulatory framework. In SBA's determination, this rule will not have a significant economic impact on any small business.

There are approximately 21,000 firms registered as SDVO SBCs in the System for Award Management (SAM) and approximately 13,000 firms that have been certified by the VA. To a large extent SBA's and the VA's ownership and control rules were substantially similar in terms of the regulatory language, and in many instances identical. Thus, the vast majority of these firms will not be impacted by this rule. For example, this rule will not impact firms that are 100% owned and control by a service-disabled veteran. To the extent there are differences in SBA's and the VA's ownership and control rules, this rule will reduce cost and positively impact all SDVO firms, because there will be one set of criteria to measure service-disabled-veteran ownership and control throughout the Federal government. Further, SBA's current rules do not ignore ESOPs when determining ownership, which means firms that are majority owned by ESOPs are not eligible for SDVO set-asides or sole source awards. We have no data on the number of firms that this rule will be impact, but the number is very small. After consulting with industry representatives, many firms owned by ESOPs are entirely owned by the ESOP, especially those that operate in industries with employee based size standards. Those firms will still not qualify if this rule is finalized because there is still a 51% service-disabled-veteran ownership requirement of the remaining ownership interest, not including ESOPs. However, some firms that intend to institute an ESOP may do so in way that allows the firm to qualify under this rule. With respect to surviving spouse, SBA's current rules do not recognize ownership or control by a surviving spouse. Although the VA does allow firms owned and controlled by surviving spouses to qualify under its certification program, the number of firms that qualify under the exception is extremely small. To the extent firms qualify under the surviving spouse exception the benefit will be positive, not negative. Firms that were previously not eligible to continue as SDVO firms will be able to continue for a period of time.

Therefore, the Administrator of SBA determines, under 5 U.S.C. 605(b), that this rule would not have a significant economic impact on a substantial number of small entities.

Accordingly, for the reasons stated in the preamble, SBA amends 13 CFR part 125 as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 727C, 727-100, 727-100C, 727-200, and 727-200F series airplanes. The NPRM published in the Federal Register on May 29, 2018 (83 FR 24433). The NPRM was prompted by the results of a fleet survey on retired Model 737 airplanes, which revealed cracking in bulkhead frame webs at a certain body station. No cracks have been reported on Model 727 airplanes but Model 727 and Model 737 airplanes have a similar frame installation at station 259.5. The NPRM proposed to require repetitive inspections of the bulkhead frame web at a certain body station and applicable on-condition actions.

We are issuing this AD to address cracking in the station 259.5 bulkhead frame web from the first stiffener above stringer S-10 to S-13. Such cracking may lead to subsequent failure of the skin and cockpit window surround structure, and could result in rapid decompression.

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.

Boeing concurred with the NPRM.

The commenter, Lynise Hogue, indicated that the reports mentioned in the Discussion section of the NPRM revealed cracking in the bulkhead frame of retired Boeing Model 737 airplanes but there was no evidence of cracking in the bulkhead frame of Boeing Model 727 airplanes, despite those airplanes having a similar frame installation. The commenter stated this posed concerns and asked how often would “. . . said repetitive inspections be conducted?”

We infer the commenter is asking about the repetitive inspections required by this AD and agree to clarify the inspection interval. As stated in paragraph (g) of this AD inspections are done at the applicable times specified in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 727-53A0235 RB, dated October 12, 2017, which is at intervals not to exceed 8,600 flight cycles. We have determined that these intervals and inspections are adequate to address the unsafe condition. This AD has not been changed in this regard.

The commenter, Lynise Hogue, inquired if the unsafe product was confined to a certain batch or if it is an overall poor product. The commenter further questioned that if it is indeed an overall poor product, what measures other than an annual inspection are being taken to prevent cracking in additional bulkhead frames.

We agree to clarify. Airplane maintenance and inspection programs include many types of inspections, which are designed to detect and address potential unsafe conditions. However, when those inspections are not adequate to prevent an unsafe condition, we issue an AD to address the identified unsafe condition, such as this one. We are currently not planning additional rulemaking on other bulkhead frames. However, as we obtain and analyze additional data, we might consider further rulemaking. This AD has not been changed in this regard.

The commenter, Lynise Hogue, requested that we change the applicability to all Boeing airplanes because the proposed AD addresses “an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.” The commenter provided no further justification for the request.

We do not agree with the commenter's request to change the applicability of this AD. The commenter has not provided any additional data, views, or arguments to support this request. Furthermore, such a change would expand the scope of this AD and therefore require additional public review and delay issuance of this final rule. This AD applies only to those airplanes affected by the identified unsafe condition. We are currently not planning additional rulemaking for other airplanes. However, as we obtain and analyze additional data, we might consider further rulemaking. We have not changed this AD in this regard.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule 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.

We reviewed Boeing Alert Requirements Bulletin 727-53A0235 RB, dated October 12, 2017. The service information describes procedures for repetitive high frequency eddy current inspections and low frequency eddy current inspections for cracks of the station 259.5 bulkhead frame web from the first stiffener above S-10 to S-13, on the left and right sides of the airplane, and applicable on-condition actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 106 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

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

On Gulfstream Model GVI airplanes, the FCC and the remote electronics unit (REU) communicate with each other by means of bi-directional data buses, referred to as BD429. Gulfstream notified us that loss of bi-directional (Transmit/Receive) BD429 communication, due to wire/connector failures, between the REU and the FCC would result in the display of a cyan “FCS MAINTENANCE REQUIRED” advisory message on the crew alerting system (CAS). Because this cyan advisory message does not directly indicate that BD429 communication has failed, the aircraft can be dispatched with this advisory message. The Model GVI system depends on the BD429 bus to assure signal transmission to address a linear variable differential transformer (LVDT) disconnect monitor and/or surface oscillatory monitor event.

During recent developmental testing, Gulfstream discovered that certain BD429 failures prevent the shutdown of a flight control surface that would normally occur during an oscillatory or LVDT disconnect event. The only indication of the failure is a cyan “FCS MAINTENANCE REQUIRED” advisory message on the CAS.

If the FCC cannot receive information from the REU that a particular flight control surface had an event, then the FCC cannot issue a command to place that particular flight control surface into standby/damped bypass mode. The REU will still receive flight control commands from the FCC via the secondary (receive only) bus; however, because the secondary bus is receive-only for certain REUs, the FCC will no longer receive REU data needed for the LVDT disconnect monitor and/or surface oscillatory monitor for the impacted flight control surface.

This condition (results in a cyan CAS message, but does not indicate the exact reason) can remain latent for up to one year. To date, there have been no known events or failures of the BD429 communications bus wiring or connectors in the field. However, the Gulfstream GVI fleet has experienced multiple in-flight flight control events requiring a standby command sent over the BD429 bus to keep the airplane safe. Since the GVI system uses these monitors to mitigate potentially unsafe failure modes, dispatch with their loss leaves the aircraft one failure away from a potential loss of control event.

This condition, if not addressed, could result in the FCC's inability to identify when a problematic flight control surface needs to be damped, which could result in loss of control of the airplane.

We reviewed Gulfstream Aerospace G650 AFM Supplement No. G650-2018-01, dated August 14, 2018; and Gulfstream Aerospace G650ER AFM Supplement No. G650ER-2018-01, dated August 14, 2018. For each applicable airplane configuration, the AFM supplement provides instructions and warnings to the Normal Procedures and Abnormal Procedures section of the AFM for the pilot to follow if a cyan “FCS MAINTENANCE REQUIRED” CAS message displays with the airplane on the ground or in flight. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This AD requires revising the Normal and Abnormal Procedures sections of the AFM by adding instructions and warnings for the pilot if a cyan “FCS MAINTENANCE REQUIRED” CAS message displays with the airplane on the ground or in flight.

We consider this AD interim action. Gulfstream is analyzing the failures and working to develop a terminating action that will address the unsafe condition identified in this AD. Once this action is developed, approved, and available, we might consider additional rulemaking.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the inability of the FCC to send a standby command when the BD429 bus is in a failed state could leave the airplane with only one level of protection from a catastrophic flight control failure. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reason stated above, we find that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2018-0870 and Product Identifier 2018-CE-047-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. We will consider all comments received by the closing date and may amend this final rule because of those comments.

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

We estimate that this AD affects 213 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 98-18-24, Amendment 39-10740 (63 FR 49272, September 15, 1998) (“AD 98-18-24”). AD 98-18-24 applied to certain Airbus SAS Model A320 series airplanes. The NPRM published in the Federal Register on May 30, 2018 (83 FR 24690). The NPRM was prompted by a report of cracks on the inner flange of door frame 66 at stringer positions 18 and 20, and by the results of a full scale fatigue test that indicated the intervals for the repetitive inspections required by AD 98-18-24 must be reduced. The NPRM proposed to continue to require the repetitive inspections of the inner flange of a certain door frame, with reduced repetitive inspection intervals, and corrective actions if necessary. We are issuing this AD to address fatigue cracking in the inner flange of door frame 66, which could result in reduced structural integrity of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0128, dated July 24, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A320-211 and A320-231 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0455.

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.

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.

Airbus has issued Service Bulletin A320-53-1071, Revision 03, dated July 20, 2017. This service information describes procedures for detailed inspections of the gusset plate attachment holes at door frame 66 for cracking and corrective action.

Airbus also issued Service Bulletin A320-53-1072, Revision 02, dated May 5, 2016. This service information describes procedures for modification of the gusset frame attachment at door frame 66.

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

We estimate that this AD affects 3 airplanes of U.S. registry.

The actions required by AD 98-18-24, and retained in this AD, take about 8 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 98-18-24 is $680 per product.

We estimate that it would take about 19 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $4,845, or $1,615 per product.

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

In addition, we estimate that the optional terminating action would take about 20 work-hours per product, at an average labor rate of $85 per work-hour. Required parts costs would be about $60. Based on these figures, the estimated cost of the optional terminating action would be $1,760 per product.

We also estimate that it would take about 1 work-hour per product to comply with the proposed reporting requirement in this AD. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of reporting the inspection results on U.S. operators to be $255, or $85 per product.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW, Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

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.

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Dassault Aviation Model FALCON 2000 airplanes. The NPRM published in the Federal Register on April 30, 2018 (83 FR 18749). The NPRM was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The NPRM proposed to require revising the maintenance or inspection program, as applicable, to incorporate new maintenance requirements and airworthiness limitations.

We are issuing this AD to prevent reduced controllability of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0236, dated November 30, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model FALCON 2000 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0306.

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.

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.

Dassault Aviation has issued Chapter 5-40, Airworthiness Limitations, DGT 113876, Revision 19, dated November 2017, of the Dassault Falcon 2000 Maintenance Manual. This service information describes instructions applicable to airworthiness and safe life limitations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 195 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 this figure may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

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

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

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, 720, and 720B series airplanes. The NPRM published in the Federal Register on June 7, 2018 (83 FR 26383). The NPRM was prompted by a report indicating that a fracture of the midspar fitting resulted in the separation of the inboard strut and engine from the airplane, and a determination that existing inspections are not sufficient for timely detection of cracking. The NPRM proposed to require repetitive inspections of certain nacelle strut spar and overwing fittings, and diagonal braces and associated fittings; replacement of the diagonal brace assembly on certain airplanes; and applicable related investigative and corrective actions.

We are issuing this AD to address cracks, which if not detected and corrected, could grow beyond a critical length, allowing the strut fitting to fail and reducing the structural integrity of the nacelle. This, in combination with damage to adjacent attachment structure, could result in the loss of an engine from the airplane.

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

Boeing requested that we revise paragraph (k) of the proposed AD to specify outboard diagonal brace end fitting (forward or aft) attach holes that have been oversized as specified in Boeing 707 Alert Service Bulletin A3364, “Revision 3, dated May 29, 1981,” rather than “Revision 4, dated February 21, 2017.” Boeing noted that Boeing 707 Alert Service Bulletin A3364, Revision 4, dated February 21, 2017, does not contain instructions for oversizing the attach holes, but instead refers to oversizing done as specified in Revision 3. Boeing added that, as written, the proposed AD would not require operators to replace a diagonal brace assembly with attach holes that were oversized as specified in Boeing 707 Alert Service Bulletin A3364, Revision 3, dated May 29, 1981, potentially allowing an unsafe condition to continue.

We agree with the commenter's request. We have revised paragraph (k) of this AD to specify “. . . outboard diagonal brace end fitting (forward or aft) attach holes have been oversized as specified in Boeing 707 Alert Service Bulletin A3364, Revision 3, dated May 29, 1981.”

We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this final rule with the change 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.

We reviewed the following service information.

• Boeing 707 Alert Service Bulletin A3364, Revision 4, dated February 21, 2017. This service information describes procedures for repetitive detailed inspections of the diagonal brace tube for any crack; repetitive detailed inspections and high frequency eddy current (HFEC) inspections of the nacelle strut diagonal brace end fittings, forward mating fitting, and aft mating fitting for any crack; an alternative dye penetrant inspection of vertical webs on aft mating fitting for any crack; an HFEC inspection of the diagonal brace tube for any crack; and corrective actions.

• Boeing 707 Alert Service Bulletin A3365, Revision 3, dated March 9, 2017. This service information describes procedures for repetitive detailed, HFEC, and ultrasonic inspections of the overwing support fittings for any crack at the bolt hole forward of the wing front spar and at the holes for the four fasteners attaching the fitting to the spar, and related investigative and corrective actions.

• Boeing 707 Alert Service Bulletin A3514, Revision 1, dated November 9, 2016. This service information describes procedures for repetitive detailed and surface HFEC inspections of the front spar fittings at nacelle struts numbers 1, 2, 3, and 4 for cracks, and replacement of cracked front spar fittings.

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

We estimate that this AD affects 65 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

We estimate that any necessary replacement of affected fittings would take about 96 work-hours for a cost of $8,160 per fitting. We have received no definitive data on the parts costs of the affected fittings. We have no way of determining the number of aircraft that might need this replacement.

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

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

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

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

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A310 series airplanes. The NPRM published in the Federal Register on June 1, 2018 (83 FR 25412). The NPRM was prompted by a determination that new or more restrictive maintenance requirements and airworthiness limitations are necessary. The NPRM proposed to require revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and airworthiness limitations.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0206, dated October 12, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A310 series airplanes. The MCAI states:

The unsafe condition is fatigue cracking, damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane. 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-2018-0491.

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.

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.

Airbus SAS has issued A310 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Revision 02, dated August 28, 2017. This service information describes airworthiness limitations applicable to the DT-ALIs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). The NPRM published in the Federal Register on April 30, 2018 (83 FR 18756). The NPRM was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. The NPRM proposed to require revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and airworthiness limitations.

We are issuing this AD to prevent fatigue cracking, damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD EASA AD 2017-0205, dated October 12, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0360.

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

United Parcel Service (UPS) requested that we provide approval for alternative methods of compliance (AMOCs) that were previously approved for AD 2013-13-13, Amendment 39-17501 (79 FR 48957, August 19, 2014) (“AD 2013-13-13”); and AD 2018-01-07, Amendment 39-19148 (83 FR 2042, January 16, 2018) (“AD 2018-01-07”).

We agree that AMOCs previously approved for AD 2018-01-07 and AD 2013-13-13 should be approved for this AD. The FAA has reviewed the related AMOCs, and it is acceptable to give credit for previous AMOCs approved for AD 2018-01-07, which will be terminated by this AD. AD 2018-01-07 approved the use of AMOCs for AD 2013-13-13, and those AMOCs remain in force. As a result, we have revised paragraph (j)(1) of this AD accordingly.

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

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

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

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

Airbus SAS has issued A300-600 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Revision 02, dated August 28, 2017. This service information describes airworthiness limitations applicable to the DT-ALIs. 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.

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

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

The MCAI specifies that if there are findings from the ALS inspection tasks, corrective actions must be accomplished in accordance with Airbus SAS maintenance documentation. However, this AD does not include that requirement. Operators of U.S.-registered airplanes are required by general airworthiness and operational regulations to perform maintenance using methods that are acceptable to the FAA. We consider those methods to be adequate to address any corrective actions necessitated by the findings of ALS inspections required by this AD.

We estimate that this AD affects 125 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Embraer S.A. Model ERJ 190-100 STD, -100 LR, -100 ECJ, and -100 IGW airplanes; and Model ERJ 190-200 STD, -200 LR, and -200 IGW airplanes. The NPRM published in the Federal Register on June 11, 2018 (83 FR 26877). The NPRM was prompted by reports of bushing migration and loss of nut torque on the engine pylon lower inboard and outboard link fittings. The NPRM proposed to require modification of the attaching parts of the LH and RH pylon lower link fittings, inboard and outboard positions. The NPRM also specified that accomplishing certain proposed actions would terminate certain requirements in AD 2014-16-16, Amendment 39-17940 (79 FR 48018, August 15, 2014).

We are issuing this AD to address loss of integrity of the engine pylon lower link fittings, possibly resulting in separation of the engine from the wing.

Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian AD 2017-04-01, effective April 25, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Embraer S.A. Model ERJ 190-100 STD, -100 LR, -100 ECJ, and -100 IGW airplanes; and Model ERJ 190-200 STD, -200 LR, and -200 IGW airplanes. The MCAI states:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all BAE Systems (Operations) Limited Model 4101 airplanes. The NPRM published in the Federal Register on June 28, 2018 (83 FR 30377).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0212, dated October 25, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all BAE Systems (Operations) Limited Model 4101 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0555.

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.

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.

BAE Systems (Operations) Limited has issued Service Bulletin J41-26-009, dated November 23, 2016. This service information describes procedures for a general visual inspection of the cartridge electrical connector and the aircraft electrical connector for missing or excessive spacers, and corrective actions including removing excessive spacers or replacing the fire bottle extinguisher cartridge. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 4 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. We have no way of determining the number of aircraft that might need these on-condition actions:

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

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

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

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

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

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

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

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

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

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

I. Approval Actions

FDA is amending the animal drug regulations to reflect approval actions for NADAs and ANADAs during January, February, and March 2018, as listed in table 1. In addition, FDA is informing the public of the availability, where applicable, of documentation of environmental review required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOI Summaries) under the Freedom of Information Act (FOIA). These public documents may be seen in the office of the Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. Persons with access to the internet may obtain these documents at the CVM FOIA Electronic Reading Room: https://www.fda.gov/AboutFDA/CentersOffices/OfficeofFoods/CVM/CVMFOIAElectronicReadingRoom/default.htm. Marketing exclusivity and patent information may be accessed in FDA's publication, Approved Animal Drug Products Online (Green Book) at: https://www.fda.gov/AnimalVeterinary/Products/ApprovedAnimalDrugProducts/default.htm.

Virbac AH, Inc., 3200 Meacham Blvd., Ft. Worth, TX 76137, has requested that FDA withdraw approval of the NADAs listed in the following table because the products are no longer manufactured or marketed:

Therefore, under authority delegated to the Commissioner of Food and Drugs, and in accordance with § 514.116 Notice of withdrawal of approval of application (21 CFR 514.116), notice is given that approval of NADAs 011-779, 040-205, 042-116, 043-215, 046-700, 091-260, 097-258, 102-942, 113-748, 135-941, 136-116, and 140-869, and all supplements and amendments thereto, is hereby withdrawn, effective October 9, 2018.

Elsewhere in this issue of the Federal Register, FDA is amending the animal drug regulations to reflect the voluntary withdrawal of approval of these applications.

Background and Legal Authority

The United States is a party to the Single Convention on Narcotic Drugs, 1961 (Single Convention), and other international conventions designed to establish effective control over international and domestic traffic in controlled substances. 21 U.S.C. 801(7). The Single Convention entered into force for the United States on June 24, 1967, after the Senate gave its advice and consent to the United States' accession. See Single Convention, 18 U.S.T. 1407. The enactment and enforcement of the Controlled Substances Act (CSA) are the primary means by which the United States carries out its obligations under the Single Convention.1 Various provisions of the CSA directly reference the Single Convention. One such provision is 21 U.S.C. 811(d)(1), which relates to scheduling of controlled substances.

As stated in subsection 811(d)(1), if control of a substance is required “by United States obligations under international treaties, conventions, or protocols in effect on October 27, 1970, the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations, without regard to the findings required by [subsections 811(a) or 812(b)] and without regard to the procedures prescribed by [subsections 811(a) and (b)].” This provision is consistent with the Supremacy Clause of the U.S. Constitution (art. VI, sec. 2), which provides that all treaties made under the authority of the United States “shall be the supreme Law of the Land.” In accordance with this constitutional mandate, under section 811(d)(1), Congress directed the Attorney General (and the Administrator of DEA, by delegation) 2 to ensure that compliance by the United States with our nation's obligations under the Single Convention is given top consideration when it comes to scheduling determinations.

Section 811(d)(1) is relevant here because, on June 25, 2018, the Food and Drug Administration (FDA) announced that it approved a drug that is subject to control under the Single Convention. Specifically, the FDA announced that it approved the drug Epidiolex for the treatment of seizures associated with two rare and severe forms of epilepsy, Lennox-Gastaut syndrome and Dravet syndrome, in patients two years of age and older. www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm611046.htm. Epidiolex is an oral solution that contains cannabidiol (CBD) extracted from the cannabis plant. This is the first FDA-approved drug made from the cannabis plant.3 Now that Epiodiolex has been approved by the FDA, it has a currently accepted medical use in treatment in the United States for purposes of the CSA. Accordingly, Epidiolex no longer meets the criteria for placement in schedule I of the CSA. See 21 U.S.C. 812(b) (indicating that while substances in schedule I have no currently accepted medical use in treatment in the United States, substances in schedules II-V do); see also United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 491-92 (2001) (same). DEA must therefore take the appropriate scheduling action to remove the drug from schedule I.

In making this scheduling determination, as section 811(d)(1) indicates, it is necessary to assess the relevant requirements of the Single Convention. Under the treaty, cannabis, cannabis resin, and extracts and tinctures of cannabis are listed in Schedule I.4 The cannabis plant contains more than 100 cannabinoids. Among these are tetrahydrocannabinols (THC) and CBD.5 Material that contains THC and CBD extracted from the cannabis plant falls within the listing of extracts and tinctures of cannabis for purposes of the Single Convention.6 Thus, such material, which includes, among other things, a drug product containing CBD extracted from the cannabis plant, is a Schedule I drug under the Single Convention.

Parties to the Single Convention are required to impose a number of control measures with regard to drugs listed in Schedule I of the Convention. These include, but are not limited to, the following:

• Limiting exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of such drugs. Article 4.

• Furnishing to the International Narcotics Control Board (INCB) annual estimates of, among other things, quantities of such drugs to be consumed for medical and scientific purposes, utilized for the manufacture of other drugs, and held in stock. Article 19.

• Furnishing to the INCB statistical returns on the actual production, utilization, consumption, imports and exports, seizures, and stocks of such drugs during the prior year. Article 20.

• Requiring that licensed manufacturers of such drugs obtain quotas specifying the amounts of such drugs they may manufacture to prevent excessive production and accumulation beyond that necessary to satisfy legitimate needs. Article 29.

• Requiring manufacturers and distributors of such drugs to be licensed. Articles 29 & 30.

• Requiring medical prescriptions for the dispensing of such drugs to patients. Article 30.

• Requiring importers and exporters of such drugs to be licensed and requiring each individual importation or exportation to be predicated on the issuance of a permit. Article 31.

• Prohibiting the possession of such drugs except under legal authority. Article 33.

• Requiring those in the legitimate distribution chain (manufacturers, distributors, scientists, and those who lawfully dispense such drugs) to keep records that show the quantities of such drugs manufactured, distributed, dispensed, acquired, or otherwise disposed of during the prior two years. Article 34.

Because the CSA was enacted in large part to satisfy United States obligations under the Single Convention, many of the CSA's provisions directly implement the foregoing treaty requirements. None of the foregoing obligations of the United States could be satisfied for a given drug if that drug were removed entirely from the CSA schedules. At least one of the foregoing requirements (quotas) can only be satisfied if the drug that is listed in Schedule I of the Single Convention is also listed in schedule I or II of the CSA because, as 21 U.S.C. 826 indicates, the quota requirements generally apply only to schedule I and II controlled substances.

The permit requirement warrants additional explanation. As indicated above, the Single Convention obligates parties to require a permit for the importation and exportation of drugs listed in Schedule I of the Convention. This permit requirement applies to a drug product containing CBD extracted from the cannabis plant because, as further indicated above, such a product is a Schedule I drug under the Single Convention. However, under the CSA 7 and DEA regulations, the import/export permit requirement does not apply to all controlled substances. Rather, a permit is required to import or export any controlled substance in schedule I and II as well as certain controlled substances in schedules III, IV, and V. See 21 U.S.C. 952 and 953; 21 CFR 1312.11, 1312.12, 1312.21, 1312.22. Thus, in deciding what schedule is most appropriate to carry out the United States' obligations under the Single Convention with respect to the importation and exportation of Epidiolex, I conclude there are two options:

(i) Control the drug in schedule II, which will automatically require an import/export permit under existing provisions of the CSA and DEA regulations or

(ii) control the drug in schedule III, IV, or V, and simultaneously amend the regulations to require a permit to import or export Epidiolex.

It bears emphasis that where, as here, control of a drug is required by the Single Convention, the DEA Administrator “shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations, without regard to the findings required by [21 U.S.C. 811 (a) or 812(b)] and without regard to the procedures prescribed by [21 U.S.C. 811 (a) or (b)].” 21 U.S.C. 811(d)(1) (emphasis added). Thus, in such circumstances, the Administrator is not obligated to request a medical and scientific evaluation or scheduling recommendation from the Department of Health and Human Services (HHS) (as is normally done pursuant to section 811(b)).8 Nonetheless, DEA did seek such an evaluation and recommendation from HHS with respect to the Epidiolex formulation. In responding to that request, HHS advised DEA that it found the Epidiolex formulation to have a very low potential for abuse and, therefore, recommended that, if DEA concluded that control of the drug was required under the Single Convention, Epidiolex should be placed in schedule V of the CSA.9 Although I am not required to consider this HHS recommendation when issuing an order under section 811(d)(1), because I believe there are two legally viable scheduling options (listed above), both of which would satisfy the United States' obligations under the Single Convention, I will exercise my discretion and choose the option that most closely aligns to the HHS recommendation. Namely, I am hereby ordering that the Epidiolex formulation (and any future FDA-approved generic versions of such formulation made from cannabis) be placed in schedule V of the CSA.

As noted, this order placing the Epidiolex formulation in schedule V will only comport with section 811(d)(1) if all importations and exportations of the drug remain subject to the permit requirement. Until now, since the Epidiolex formulation had been a schedule I controlled substance, the importation of the drug from its foreign production facility has always been subject to the permit requirement. To ensure this requirement remains in place (and thus to prevent any lapse in compliance with the requirements of the Single Convention), this order will amend the DEA regulations (21 CFR 1312.30) to add the Epidiolex formulation to the list of nonnarcotic schedule III through V controlled substances that are subject to the import and export permit requirement.

Finally, a brief explanation is warranted regarding the quota requirement in connection with the Single Convention. As indicated above, for drugs listed in Schedule I of the Convention, parties are obligated to require that licensed manufacturers of such drugs obtain quotas specifying the amounts of such drugs they may manufacture. The purpose of this treaty requirement is to prevent excessive production and accumulation beyond that necessary to satisfy legitimate needs. Under this scheduling order, the United States will continue to meet this obligation because the bulk cannabis material used to make the Epidiolex formulation (as opposed to the FDA-approved drug product in finished dosage form) will remain in schedule I of the CSA and thus be subject to all applicable quota provisions under 21 U.S.C. 826.10

As noted, until now, Epidiolex has been a schedule I controlled substance. By virtue of this order, Epidiolex (and any generic versions of the same formulation that might be approved by the FDA in the future) will be a schedule V controlled substance. Thus, all persons in the distribution chain who handle Epidiolex in the United States (importers, manufacturers, distributors, and practitioners) must comply with the requirements of the CSA and DEA regulations relating to schedule V controlled substances. As further indicated, any material, compound, mixture, or preparation other than Epidiolex that falls within the CSA definition of marijuana set forth in 21 U.S.C. 802(16), including any non-FDA-approved CBD extract that falls within such definition, remains a schedule I controlled substance under the CSA.11 Thus, persons who handle such items will continue to be subject to the requirements of the CSA and DEA regulations relating to schedule I controlled substances.

The CSA provides for an expedited scheduling action where control of a drug is required by the United States' obligations under the Single Convention. 21 U.S.C. 811(d)(1). Under such circumstances, the Attorney General must “issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations,” without regard to the findings or procedures otherwise required for scheduling actions. Id. (emphasis added). Thus, section 811(d)(1) expressly requires that this type of scheduling action not proceed through the notice-and-comment rulemaking procedures governed by the Administrative Procedure Act (APA), which generally apply to scheduling actions; it instead requires that such scheduling action occur through the issuance of an “order.”

Although the text of section 811(d)(1) thus overrides the normal APA considerations, it is notable that the APA itself contains a provision that would have a similar effect. As set forth in 21 U.S.C. 553(a)(1), the section of the APA governing rulemaking does not apply to a “foreign affairs function of the United States.” An order issued under section 811(d)(1) may be considered a foreign affairs function of the United States because it is for the express purpose of ensuring that the United States carries out its obligations under an international treaty.

This action is not a significant regulatory action as defined by Executive Order 12866 (Regulatory Planning and Review), section 3(f), and the principles reaffirmed in Executive Order 13563 (Improving Regulation and Regulatory Review), and, accordingly, this action has not been reviewed by the Office of Management and Budget (OMB).

This order is not an Executive Order 13771 regulatory action.

This action meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.

This action does not have federalism implications warranting the application of Executive Order 13132. This action 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.

This action does not have tribal implications warranting the application of Executive Order 13175. The action does 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.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) applies to rules that are subject to notice and comment under section 553(b) of the APA or any other law. As explained above, the CSA exempts this order from the APA notice-and-comment rulemaking provisions. Consequently, the RFA does not apply to this action.

This action does not impose a new collection of information requirement under the Paperwork Reduction Act of 1995. 44 U.S.C. 3501-3521. 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.

As noted above, this action is an order, not a rulemaking. Accordingly, the Congressional Review Act (CRA) is inapplicable, as it applies only to rules. However, the DEA has submitted a copy of this final order to both Houses of Congress and to the Comptroller General, although such filing is not required under the Small Business Regulatory Enforcement Fairness Act of 1996 (CRA), 5 U.S.C. 801-808.

For the reasons set out above, DEA amends 21 CFR parts 1308 and 1312 as follows:

The Coast Guard will enforce the special local regulation for the annual San Francisco Bay Navy Fleet Week Parade of Ships and Blue Angels Demonstration in 33 CFR 100.1105.

Regulations for the Navy Parade of Ships will be enforced from 10:30 a.m. until 12:30 p.m. on October 5, 2018; the U.S. Navy Blue Angels Activities will be enforced from 12:50 p.m. until 5 p.m. on October 4, 2018, and from 12:50 p.m. until 4 p.m. on October 5, 2018, and from 12:35 p.m. until 4 p.m. on October 6 through 7, 2018. Under the provisions of 33 CFR 100.1105, except for persons or vessels authorized by the PATCOM, in regulated area “Alpha” no person or vessel may enter or remain within 500 yards ahead of any Navy parade vessel. No person or vessel shall anchor, block, loiter in, or impede the through transit of ship parade participants or official patrol vessels in regulated area “Alpha.”

Except for persons or vessels authorized by the PATCOM, no person or vessel may enter or remain within regulated area “Bravo.”

When hailed and/or signaled by U.S. Coast Guard patrol personnel by siren, radio, flashing light, or other means, a person or vessel shall come to an immediate stop. Persons or vessels shall comply with all directions given; failure to do so may result in expulsion from the area, citation for failure to comply, or both. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco, California. The PATCOM is empowered to forbid and control the movement of all vessels in the regulated area.

This notice of enforcement is issued under authority of 33 U.S.C. 1233. In addition to this notification in the Federal Register, the Coast Guard will provide the maritime community with extensive advance notification of the regulated area and its enforcement period via the Local Notice to Mariners, and Broadcast Notice to Mariners.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. On September 16, 2018, a vessel allided with the Sabula Railroad Drawbridge and immediate action is needed to respond to the potential hazards associated with emergency bridge repairs. It is impracticable to publish an NPRM because we must establish this regulated navigation area as soon as possible. The NPRM process would delay establishment of the regulated navigation area until after the emergency repairs are necessary and compromise public safety. However, the Coast Guard is providing an opportunity to comment while the rule is in effect and may amend the rule after it becomes effective, if necessary.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to public interest because immediate action is needed to respond to the potential safety hazards associated with emergency bridge repairs.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Eighth District Commander has determined that potential hazards associated with emergency bridge repairs following an allision will be a safety concern for vessels transiting southbound through the right descending span, also known as Iowa span, of the Sabula Railroad Drawbridge. This rule is necessary to protect persons, vessels, and the marine environment on the navigable waters of the Upper Mississippi River while the bridge is being repaired. The duration of this rule is intended to cover the period of emergency repairs.

This rule establishes a temporary regulated navigation area from September 21, 2018 through November 30, 2018, or until the emergency bridge repairs are completed, whichever occurs first. The regulated area covers all navigable waters of the Upper Mississippi River under the right descending bank span, also known as the Iowa span, of the Sabula Railroad Drawbridge at mile marker (MM) 535. This rule applies only to southbound vessel transits through the RNA, and depending on the water flow as measured from Lock and Dam 12, this regulation either prohibits transit or establishes operating requirements unless a deviation is authorized by the Captain of the Port Sector Upper Mississippi River or a designated representative.

When the water flow rate as measured from Lock and Dam 12 is 100kcfs or greater, vessels are prohibited from transiting southbound through the RNA unless authorized by the Captain of the Port Sector Upper Mississippi River (COTP) or a designated representative. When the water flow rate as measured from Lock and Dam 12 is less than 100kcfs, vessels may transit southbound through the RNA only if navigating at their slowest safe speed and avoiding contact with any part of the Sabula Railroad Drawbridge and the unprotected rest pier located on the right descending side of the Sabula Railroad Drawbridge.

When the water flow rate as measured from Lock and Dam 12 is less than 100kcfs, vessels engaged in towing may transit southbound through the RNA only if the size of the tow does not exceed 15 barges, the towing vessels possess a minimum of 250 horsepower per loaded barge in the tow, and the towing vessel uses an assist vessel of at least 1,000 horsepower when pushing three or more barges. If an assist vessel is required by this rule, the assist vessel and the towing vessel must discuss a plan to transit through the RNA before doing so and both the assist vessel and the towing vessel must be capable of continuous two-way voice communication during the transit.

The COTP or a designated representative may review, on a case-by-case basis, alternatives to the minimum operating or towing requirements set forth in this rule and may approve a deviation from these requirements should they provide an equivalent level of safety. The COTP or a designated representative may determine, on a case-by-case basis, that although the conditions triggering the RNA may be met, the current potential hazards do not require that each requirement of the RNA be enforced and that only certain of the above-prescribed restrictions are necessary under the circumstances. The COTP or a designated representative may consider environmental factors, the water flow rate at Lock and Dam 12, mitigating safety factors, and the completion progress of the bridge repairs among other factors. The COTP or a designated representative will broadcast notice of such determination and any subsequent changes. Notice that these vessel operational conditions are anticipated to be put into effect, or are in effect, will be given by Broadcast Notice to Mariners, Local Notices to Mariners, Marine Safety Information Broadcasts, and/or actual notice, as appropriate.

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

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

This regulatory action determination is based on the limited applicability of rule, the availability of an alternate route, and the ability of the COTP to issue a deviation from the requirements of this rule or suspend enforcement of this rule on a case-by-case basis. This rule only affects southbound vessel transits through the RNA; northbound vessels may transit the RNA at any time without restrictions. In addition, the regulated area only covers the navigable waters under the span of the Sabula Railroad Drawbridge that was damaged in the allision, the right descending span, or Iowa span, of the bridge. Vessels may transit north or southbound through the left descending span, or Illinois span, at any time without restriction. Finally, this rule allows vessels to seek permission to transit through the RNA and/or deviate from the operating requirements, and also allows the COTP to suspend enforcement of particular provisions of the RNA under appropriate circumstances.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a regulated navigation area lasting approximately two months that prohibits entry or establishes vessel operating requirements for southbound transits through the right descending span of the Sabula Railroad Drawbridge on the Upper Mississippi River while emergency repairs are made to the bridge. It is categorically excluded from further review under paragraph L60(d) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination will be made available in the docket where indicated under ADDRESSES.

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

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. The Coast Guard may amend this temporary final rule if we receive comments from the public that indicate that a change is warranted. 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.

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 http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit http://www.regulations.gov/privacyNotice.

Documents mentioned in this temporary final rule as being available in the docket, and all public comments, will be in our online docket at http://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.

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

I. Background

The BLM has specific authority to charge fees for processing applications and other documents relating to public lands under section 304 of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1734. In 2005, the BLM published a final cost recovery rule (70 FR 58854) establishing or revising fees and service charges for processing documents related to its minerals programs (2005 Cost Recovery Rule). In addition, the 2005 Cost Recovery Rule also established the method the BLM would use to adjust those fees and service charges on an annual basis.

At 43 CFR 3000.12(a), the regulations provide that the BLM will annually adjust fees established in subchapter C (43 CFR parts 3000 through 3900) according to changes in the Implicit Price Deflator for Gross Domestic Product (IPD-GDP), which is published quarterly by the U.S. Department of Commerce. See also 43 CFR 3000.10. This final rule updates those fees and service charges consistent with that direction. The fee adjustments in this rule are based on the mathematical formula set forth in the 2005 Cost Recovery Rule. The public had an opportunity to comment on that adjustment procedure as part of the 2005 rulemaking. Accordingly, the Department of the Interior for good cause finds under 5 U.S.C. 553(b)(B) and (d)(3) that notice and public comment procedures are unnecessary and that the fee adjustments in this rule may be effective less than 30 days after publication. See 43 CFR 3000.10(c).

As set forth in the 2005 Cost Recovery Rule, the fee updates are based on the change in the IPD-GDP. The BLM's minerals program publishes the updated cost recovery fees, which become effective on October 1, the start of the fiscal year (FY).

Since the BLM did not publish a fee update for FY 2018, this rule updates the cost recovery fees from FY 2017 for FY 2019. The update is based on the change in the IPD-GDP from the 4th Quarter of 2015 to the 4th Quarter of 2017 and reflects the rate of inflation over a two-year time period (or eight calendar quarters).

Under this rule, 17 fees will remain the same and 31 fees will increase. Of the 31 fees that are being increased by this rule, 18 of the increases are equal to $5 each. The largest increase, $105, will be applied to the fee for adjudicating a mineral patent application containing more than 10 claims, which will increase from $3,110 to $3,215. The fee for adjudicating a patent application containing 10 or fewer claims will increase by $50, from $1,555 to $1,605.

The calculations that resulted in the new fees are included in the table below:

The BLM took the base values (or “existing values”) upon which it derived the FY 2017 cost recovery fees (or “existing fees”) and multiplied it by the percent change in the IDP-GDP (3.4 percent for this update) to generate the “IDP-GDP increases” (in dollars). The BLM then added the “IDP-GDP increases” to the “existing values” to generate the “new values.” The BLM then calculated the “new fees” by rounding the “new values” to the closest multiple of $5 for fees equal to or greater than $1, or to the nearest cent for fees under $1. The “new fees” are the updated cost recovery fees for FY 2019.

This document is not a significant rule, and the Office of Management and Budget has not reviewed this rule under Executive Order 12866.

The BLM has determined that the rule will not have an annual effect on the economy of $100 million or more. It will not 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. The changes in this rule are much smaller than those in the 2005 final rule, which did not approach the threshold in Executive Order 12866. For instructions on how to view a copy of the analysis prepared in conjunction with the 2005 final rule, please contact one of the persons listed in the FOR FURTHER INFORMATION CONTACT section above.

This rule will not create inconsistencies or otherwise interfere with an action taken or planned by another agency. This rule does not change the relationships of the onshore minerals programs with other agencies' actions. These relationships are included in agreements and memoranda of understanding that will not change with this rule.

In addition, this final rule does not materially affect the budgetary impact of entitlements, grants, or loan programs, or the rights and obligations of their recipients. This rule applies an inflationary adjustment factor to existing user fees for processing certain actions associated with the onshore minerals programs.

Finally, this rule will not raise novel legal or policy issues. As explained above, this rule simply implements an annual process to account for inflation that was adopted by and explained in the 2005 Cost Recovery Rule.

This action is not an E.O. 13771 regulatory action because it is not significant under E.O. 12866.

This final rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). As a result, a Regulatory Flexibility Analysis is not required. The Small Business Administration defines small entities as individual, limited partnerships, or small companies considered to be at arm's length from the control of any parent companies if they meet the following size requirements as established for each North American Industry Classification System (NAICS) code:

The SBA would consider many, if not most, of the operators with whom the BLM works in the onshore minerals programs to be small entities. The BLM notes that this final rule does not affect service industries, for which the SBA has a different definition of “small entity.”

The final rule may affect a large number of small entities because 31 fees for activities on public lands will be increased. The adjustments result in no increase in the fees for processing 17 actions relating to the BLM's minerals programs. The highest adjustment, in dollar terms, is for adjudications of mineral patent applications involving more than 10 mining claims; that fee will increase by $105. Accordingly, the BLM has concluded that the economic effect of the rule's changes will not be significant, even for small entities.

For the 2005 Cost Recovery Rule, the BLM completed a Regulatory Flexibility Act threshold analysis, which is available for public review in the administrative record for that rule. For instructions on how to view a copy of that analysis, please contact one of the persons listed in the FOR FURTHER INFORMATION CONTACT section above. The analysis for the 2005 rule concluded that the fees would not have a significant economic effect on a substantial number of small entities. The fee increases implemented in this rule are substantially smaller than those provided for in the 2005 rule.

This final rule is not a “major rule” as defined at 5 U.S.C. 804(2). The final rule will not have an annual effect on the economy greater than $100 million; it will not result in major cost or price increases for consumers, industries, government agencies, or regions; and it will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Accordingly, a Small Entity Compliance Guide is not required.

This final rule 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. In accordance with Executive Order 13132, the BLM therefore finds that the final rule does not have federalism implications, and a federalism assessment is not required.

This rule does not contain information collection requirements that require a control number from the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). After the effective date of this rule, the new fees may affect the non-hour burdens associated with the following control numbers:

As required by Executive Order 12630, the BLM has determined that this rule will not cause a taking of private property. No private property rights will be affected by a rule that merely updates fees. The BLM therefore certifies that this final rule does not represent a governmental action capable of interference with constitutionally protected property rights.

In accordance with Executive Order 12988, the BLM finds that this final rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.

The BLM has determined that this final rule qualifies as a routine financial transaction and a regulation of an administrative, financial, legal, or procedural nature that is categorically excluded from environmental review under NEPA pursuant to 43 CFR 46.205 and 46.210(c) and (i). The final rule does not meet any of the 12 criteria for exceptions to categorical exclusions listed at 43 CFR 46.215. Therefore, neither an environmental assessment nor an environmental impact statement is required in connection with the rule (40 CFR 1508.4).

The BLM has determined that this final rule is not significant under the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., because it will not result in State, local, private sector, or tribal government expenditures of $100 million or more in any one year, 2 U.S.C. 1532. This rule will not significantly or uniquely affect small governments. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act.

In accordance with Executive Order 13175, the BLM has determined that this final rule does not include policies that have tribal implications. Specifically, the rule would not have substantial direct effects on one or more Indian tribes. Consequently, the BLM did not utilize the consultation process set forth in Section 5 of the Executive Order.

In developing this rule, the BLM did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).

In accordance with Executive Order 13211, the BLM has determined that this final rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It merely adjusts certain administrative cost recovery fees to account for inflation.

The principal author of this rule is Mark Purdy of the Division of Regulatory Affairs, Bureau of Land Management.

For reasons stated in the preamble, the Bureau of Land Management amends 43 CFR part 3000 as follows:

This is a summary of the Order adopted by the Commission's Managing Director, DA 18-976, adopted on September 21, 2018, and released on September 21, 2018. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW, Washington, DC 20554, or at https://www.fcc.gov/edocs.

1. In this Order, the Managing Director makes non-substantive revisions to authority citations in title 47 of the Code of Federal Regulations. These authority citations are required by the rules of the Administrative Committee of the Federal Register (ACFR), and their format is prescribed by the Document Drafting Handbook of the Office of the Federal Register. Certain of the authority citations currently in the Commission's rules may not conform to those specifications.

2. The changes effected by this Order are intended only to bring the authority citations into conformance with the ACFR regulations and Document Drafting Handbook of the Office of the Federal Register. None of these changes should be construed to change the substantive requirements of the affected rules or the sources of Commission authority for those requirements.

3. Regulatory Flexibility Act. Because we adopt this Order without notice and comment, the Regulatory Flexibility Act (RFA) does not apply.

4. Paperwork Reduction Act. The Order does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002.

5. Congressional Review Act. Because this Order affects only rules of agency organization, procedure, or practice and does not substantially affect the rights or obligations of non-agency parties, it is not subject to the Congressional Review Act.

6. Petitions for reconsideration pursuant to 47 CFR 1.429 or applications for review pursuant to 47 CFR 1.115 of this Order may be filed within thirty days of publication of a summary of this Order in the Federal Register. Should no petitions for reconsideration or applications for review be timely filed, this proceeding shall be terminated and its docket closed.

7. Accordingly, it is ordered that, pursuant to the authority contained in sections 4(i), 4(j), and 5 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 155, and § 0.231(b) of the rules of the Federal Communications Commission, 47 CFR 0.231(b), this Order is adopted, effective immediately upon publication in the Federal Register.

8. It is further ordered that title 47 of the Code of Federal Regulations is amended as set forth in the regulatory text hereto.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR chapter I as follows:

This final rule is organized as follows:

For access to docket FMCSA-2017-0047 to read background documents and comments received, go to http://www.regulations.gov at any time, or to Docket Services at U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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.transportation.gov/privacy.

This rule allows, but does not require, SDLAs to waive the knowledge test requirements and tests required for some endorsements with proof of experience for certain individuals who are regularly employed, or were regularly employed within the last year, in a military position requiring the operation of a vehicle that would be classified as a CMV pursuant to 49 CFR 383.5, if operated in a civilian context. This rulemaking implements part of section 5401 of the Fixing America's Surface Transportation (FAST) Act (Pub. L. 114-94).

In combination with a recent rulemaking—Commercial Driver's License Requirements of the Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Military Commercial Driver's License Act of 2012 (2012 Act), published on October 13, 2016 (81 FR 70634), hereafter referred to as the Military CDL I Rule—this rule gives States the option to waive both the CDL knowledge and driving skills tests for certain current and former military service members who received training to operate CMVs during active-duty, National Guard or reserve service in military vehicles that are comparable to CMVs. The combined effect of the Military CDL I Rule and this rule will allow certain current or former military drivers, domiciled in participating States, to transition to a civilian CDL more quickly due to their armed forces training and experience.

FMCSA evaluated potential costs and benefits associated with this rulemaking. The Agency concluded that the final rule would result in a 10-year cost savings of $16.66 million undiscounted, $14.21 million discounted at 3 percent, $11.70 million discounted at 7 percent, and $1.67 million on an annualized basis at both 7 percent and 3 percent discount rates. FMCSA has determined that this final rule is a deregulatory action under Executive Order (E.O.) 13771.

This final rule rests on the authority of the Commercial Motor Vehicle Safety Act of 1986 (CMVSA), as amended, codified at 49 U.S.C. chapter 313 and 49 CFR parts 382, 383, and 384. The rule also responds to section 5401(a) of the FAST Act [Pub. L. 114-94, 129 Stat. 1312, 1546, December 4, 2015]. This section requires FMCSA to modify the minimum testing standards of its CDL regulations to credit the training and knowledge received by certain current or former military drivers in the armed forces, including the reserve components and National Guard, to drive military vehicles similar to civilian CMVs [49 U.S.C. 31305(d)(1)(C)].

The CMVSA provides broadly that “[t]he Secretary of Transportation shall prescribe regulations on minimum standards for testing and ensuring the fitness of an individual operating a commercial motor vehicle” [49 U.S.C. 31305(a)]. In general, those regulations must include the following: (1) Minimum standards for knowledge and driving (skills) tests; (2) use of a representative vehicle to take the driving test; (3) minimum testing standards; and (4) working knowledge of CMV regulations and vehicle safety systems [49 U.S.C. 31305(a)(1)-(4)].

Section 5401(a) of the FAST Act, as amended by section (3)(1) of the Jobs for Our Heroes Act (Pub. L. 115-105, 131 Stat. 2263, January 8, 2018) added 49 U.S.C. 31305(d): “Standards for Training and Testing of Operators Who Are Members of the Armed Forces, Reservists, or Veterans.” Section 31305(d)(1)(A) requires the Agency to modify its CDL regulations to “exempt a covered individual from all or a portion of a driving test if the covered individual had experience in the armed forces or reserve components driving vehicles similar to a commercial motor vehicle.” Section 31305(d)(1)(B), as also amended by the Jobs for Our Heroes Act, requires FMCSA to “ensure that a covered individual may apply for an exemption under subparagraph (A)—(i) while serving in the armed forces or reserve components; and (ii) during, at least, the 1-year period beginning on the date on which such individual separates from services in the armed forces or reserve components.” The term “reserve components” includes the Army and Air National Guard, as well as the normal reserve units of all branches of the military service. Section 5401(c) of the FAST Act also directed the Agency to adopt regulations allowing certain military personnel an exemption from the normal CDL domicile requirement, as authorized by the 2012 Act and codified at 49 U.S.C. 31311(a)(12)(C). These three provisions were implemented by the Military CDL I Rule.

The last element of section 5401(a), which was not addressed in the Military CDL I Rule, directed the Agency to “credit the training and knowledge a covered individual received in the armed forces or reserve components driving vehicles similar to a commercial motor vehicle for purposes of satisfying minimum standards for training and knowledge” [49 U.S.C. 31305(d)(1)(C)]. That requirement is the subject of this final rule. It should be noted that section 31305(d)(2)(B) originally defined a “covered individual” as someone over 21 years of age who is “(i) a former member of the armed forces; or (ii) a former member of the reserve components.” However, section 3(3) of the Jobs for Our Heroes Act amended section 31305(d)(2)(B) to define a “covered individual” as someone over 21 years of age who is “(i) a current or former member of the armed forces; or (ii) a current or former member of one of the reserve components.” Using the broad authority of 49 U.S.C. 31315(b), the Agency implicitly took the same position in granting all SDLAs the temporary option (for a 2-year period) of waiving the CLP knowledge test for current or former members of the military services, including the reserves and National Guard, who had completed certain formal military driver training (81 FR 74861, Oct. 27, 2016). [See “Knowledge Test Exemption Request” discussion below.]

Federal training standards for CDL drivers were adopted only recently. Section 32304 of MAP-21 [Pub. L. 112-141, July 6, 2012, 126 Stat. 405, 791] required entry-level driver training (ELDT) of CDL applicants [49 U.S.C. 31305(c)]. That requirement was promulgated on December 8, 2016 [81 FR 88732]. However, the ELDT rule provides that “[v]eterans with military CMV experience who meet all the requirements and conditions of § 383.77” are not required to complete the new entry-level training program [49 CFR 380.603(a)(3)]. Because § 383.77 authorizes the States to exempt CDL applicants with military CMV experience from the driving skills test, those drivers are also exempt from ELDT.

Under 49 CFR 383.77, as amended by the Military CDL I Rule, the Agency now provides credit for military drivers' training and knowledge by allowing States to exempt from the CDL driving skills test those employees who are or were regularly employed within the last year in a military position requiring the operation of a military vehicle that is comparable to a CMV.

This rule implements 49 U.S.C. 31305(d)(1)(C) by giving States limited discretion, to exempt CDL applicants with military CMV experience from the knowledge test required for a CLP. This final rule completes the requirement of section 31305(d)(1)(C) to “credit the training and knowledge a covered individual received in the armed forces or reserve components driving vehicles similar to a commercial motor vehicle for purposes of satisfying minimum standards for training and knowledge.”

As specified in 49 CFR 383.71(a)(2)(ii), any individual applying for a CDL is first required to take and pass a general knowledge test, which authorizes the issuance of a CLP. The general knowledge test must meet the Federal standards contained in subparts F, G, and H of part 383 for the commercial vehicle group that person operates or expects to operate.

Any individual applying for a CDL is required to take and pass a general skills test, but only after passing the knowledge test and obtaining a CLP. A final rule published on May 9, 2011 [“Commercial Driver's License Testing and Commercial Learner's Permit Standards” (76 FR 26854)] added a new 49 CFR 383.77, which allows the States to substitute CDL applicants' eligible military CMV experience for the skills test.

The Military CDL I Rule addressed the requirements of 49 U.S.C. 31305(d)(1)(A) and (B) (81 FR 70634, Oct. 13, 2016) and allows States to extend the period to apply for a skills test waiver after leaving the military from 90 days to 1 year for an individual who is regularly employed or was regularly employed in a military position requiring operation of a CMV.

Additionally, the Military CDL I Rule allows the SDLA in the State where military personnel are stationed (State of duty station) to coordinate with the State of domicile to expedite the processing of applications and administer the knowledge and skills tests for a CLP or CDL. The SDLA in the State of domicile could then issue the CLP or CDL based on tests performed by the SDLA in the State of duty station.

The Missouri Department of Revenue (DOR) submitted a request for an exemption from the FMCSA regulation that requires any driver to pass the general knowledge test before being issued a CLP or CDL. The exemption request is available in docket FMCSA-2016-0130, at: https://www.regulations.gov/document?D=FMCSA-2016-0130-0004. The Missouri DOR asked FMCSA to waive the knowledge test requirement for qualified veterans who participated in dedicated training through approved military programs. The Missouri DOR contended that qualified personnel who participated in such programs had already received the numerous hours of classroom training, practical skills, and one-on-one road training that are essential for safe driving. FMCSA agrees with Missouri DOR's reasoning and granted a 2-year exemption on October 27, 2016 (81 FR 74861), which the Agency extended to allow all SDLAs, at their discretion, to waive the knowledge test requirements to qualified veterans, reservists, National Guard, and active-duty personnel. FMCSA does not have data from all of the States utilizing this exemption. However, since January 1, 2018, Illinois has granted more than 75 exemptions through this program. There have been no reports of serious incidents about any of these drivers.

On June 12, 2017, FMCSA published an NPRM (82 FR 26894) that proposed allowing SDLAs to waive the requirements for the CLP knowledge tests for certain individuals who are, or were, regularly employed within the last year in a military position that requires, or required, the operation of a CMV.

FMCSA received 17 comments on the NPRM. Of these, 15 supported the proposal, though some requested alterations. The rule was supported by the American Trucking Associations (ATA), the Owner-Operator Independent Drivers Association (OOIDA), the American Bus Association (ABA), the International Foodservice Distributors Association (IFDA), the Propane Gas Association of New England (PGANE), the National Propane Gas Association (NPGA), the Commercial Vehicle Training Association (CVTA), the Oregon Driver and Motor Vehicle Service (Oregon), the Virginia Department of Motor Vehicles (Virginia DMV), the National School Transportation Association (NSTA), a motor carrier, and several individuals. Commenters in favor of the NPRM argued that it would: Build on the success of past waiver programs and recent complementary regulations; reduce the burden to enter the industry for qualified military and veterans; remove duplicative requirements and reduce the time to get licensed; reduce problems in recruiting qualified employees; establish a standard of safety equivalent to that of the CLP knowledge test requirement of the CDL exam; and codify already existing practices by individual SDLAs. Several commenters lauded the Agency, saying the provisions of the proposed rule ensured that individuals receiving a waiver would be well-qualified.

One commenter, the Bureau of Driver and Vehicle Programs for the Michigan Department of State (Michigan), agreed with the need to help veterans, but not with a waiver of the knowledge test.

One commenter opposed the NPRM, claiming that there is no way to know if someone meets the knowledge test requirements unless that individual takes the test.

Several individuals commented on the licensing process, medical standards, and other issues outside the scope of the NPRM.

The NPRM did not address the question of waiving the knowledge tests for endorsements, nor did it discuss license classes or license restrictions for current service personnel or veterans.

The ABA requested clarification on whether the proposed testing waiver would apply to endorsements as well, and stated that it did not support exemptions from the knowledge tests for endorsements.

Citing an inconsistency between §§ 383.79(c)(1) and 383.111, Oregon asked whether the Agency intended to allow waivers for all knowledge tests or just the general CDL knowledge test. Oregon pointed out that allowing a waiver only of the general knowledge test would limit the type of license that could be issued and acknowledged the concern about waiving other knowledge tests.

The NPGA and PGANE asked that the proposal be amended to allow SDLAs to waive the knowledge test for the H endorsement for veterans and military service members with applicable experience. They argued that this change would not reduce safety and would increase opportunities for service men and women. One commenter pointed out that military training and experience would likely exceed civilian training and experience, due to military concerns over the transportation of hazardous materials. CVTA stated that many military drivers haul materials that would be considered hazardous in a non-military setting, and that they should have access to the H endorsement via a testing waiver, though only for a Class A license.

The NSTA asked that the passenger and school bus endorsements be waived only for drivers with applicable experience. CVTA stated that FMCSA should consider a restricted license for a military driver who operated only an automatic, not a manual, transmission.

FMCSA Response: FMCSA believes that a waiver of certain endorsement tests is appropriate, given that many service members operate vehicles and transport loads using an equivalent endorsement on a civilian CDL.

In response to these comments, this final rule explicitly allows SDLAs to waive the knowledge tests for H and N endorsements, and the knowledge and driving skills tests for the P endorsement. Several Military Occupational Specialties (MOS) include training that corresponds to the knowledge tests for H, N, and P endorsements. If applicants can demonstrate that they have received such training, SDLAs may waive one or more of these knowledge tests. FMCSA provides regulatory language with which SDLAs must comply to waive the testing requirements for these three endorsements.

As the D.C. Circuit said in National Mining Ass'n v. Mine Safety and Health Admin., 116 F.3d 520 (1997), “[a]gencies are not limited to adopting final rules identical to proposed rules. No further notice and comment is required if a regulation is a `logical outgrowth' of the proposed rule . . . Our cases offer no precise definition of what counts as a `logical outgrowth.' We ask `whether “the purposes of notice and comment have been adequately served.” ' . . . Notice was inadequate when `the interested parties could not reasonably have “anticipated the final rulemaking from the draft [rule] (internal citations omitted).” ' ” Id. at 531. In this case, the purposes of the NPRM were more than adequately served. Many commenters not only anticipated the possibility that the final rule might waive the knowledge tests for certain endorsements, some argued that the Agency had overlooked that obvious implication of the proposed rule while others, although accepting that implication, argued that such knowledge tests should not be waived, at least in certain cases. The inclusion of three endorsement waivers in this final rule is therefore a logical outgrowth of the purpose and structure of the NPRM.

No waivers of endorsements are allowed beyond the three discussed above because the various military services provide training equivalent to that required to pass the written endorsement tests only for H, N, and P. Additionally, because this rule is voluntary, SDLAs may decide not to adopt it at all, or may adopt it but decline to offer waivers for the H or N knowledge tests, or P knowledge or driving skills tests. FMCSA believes that allowing waivers for endorsement knowledge testing will resolve nearly all concerns expressed by commenters about the class of licensure, as SDLAs will be able to issue CDLs with certain endorsements.

There is no need to require restricted licenses based upon the type of transmission installed on military vehicles, because FMCSA recognizes that many military vehicles are fitted with automatic transmissions. However, all service branches have vehicles with manual transmissions in their fleet inventory. Each service branch has documentation of drivers' training, experience, and certification in vehicles with manual transmissions that can be provided to the SDLA when the driver applies for a CDL. The same proof of experience with different braking systems exists, including air brakes and air over hydraulics. As this rule is voluntary, SDLAs are still allowed to test these drivers' brake and manual transmission abilities, if they wish, and to impose a license restriction.

The NPRM provided examples of training and certification for four MOS: Army—88M—Motor Transport, Operator; Air Force—2T1—Vehicle Operations; Marine Corps—3531—Motor Vehicle Operator; and Navy—EO—Equipment Operator. The NPRM proposed allowing SDLAs to waive the knowledge test for current service members or veterans who are or were regularly employed in a military position requiring operation of a CMV, and are or were operating a vehicle representative of the CMV the driver applicant expects to operate after receiving a CDL, or who operated such a vehicle immediately preceding separation from the military, regardless of MOS.

The ABA requested that a list of MOS be put into regulatory language or the driver's SDLA record, and suggested that it would be appropriate to add such a list to an appendix to the final rule, a website, or a new ELDT rule. The ABA stated that a driver's use of the waiver and potentially his or her MOS should be included in the driver's record for prospective employers to review and evaluate during pre-employment screening.

Oregon asked for a list of specific MOS to which the knowledge test waivers would apply and provided a list it said should be used. Oregon stated that the list could be expanded in the future, but was necessary for SDLAs' use.

Virginia DMV asked if the Agency's intent was to allow test waivers only for the MOS listed in the NPRM; if so the regulatory language should be amended to refer to “a military position occupation specialty requiring completion of a military driver training program that has been approved by FMCSA and operation of a CMV.”

FMCSA Response: FMCSA agrees with the commenters and has included in the regulatory language a full list of MOS that are eligible for a waiver of the general knowledge test.

The list of MOS in this final rule has been expanded to include the following:

• 88M (Army), motor transport operator.

• 14T (Army), PATRIOT launching station operator.

• 92F (Army), fueler.

• 2T1 (Air Force), vehicle operator.

• 2F0 (Air Force), fueler.

• 3E2 (Air Force), pavement and construction equipment operator.

• 3531 (Marine Corps), motor vehicle operator.

• EO (Navy), equipment operator.

The Agency has concluded that these programs enable drivers likely to achieve a level of safety equivalent to, or greater than, the level that would be achieved by requiring them to pass the CLP knowledge test. The Army, Air Force, Marine Corps, and Navy provide specific training dedicated to operating heavy-duty vehicles.1

There are three basic military job training classifications, with additional training for other types of heavy-duty specialty vehicles (e.g., fuel haulers, construction vehicles, and military equipment transport oversize/overweight [non-track vehicles]).

The four core training programs for heavy vehicle operations, based on the occupational specialty code of the service member, are:

• Army—88M—Motor Transport Operator.

• Air Force—2T1—Vehicle Operations.

• Marine Corps—3531—Motor Vehicle Operator.

• Navy—EO—Equipment Operator.

The 88M Instructor Training Manual is 142 pages long. The student manual—STP 55-88M14-SM-TG Soldier's Manual and Trainer's Guide 88M, Motor Transport Operator—is 229 pages long and includes four levels of training. The 6-week core curriculum of the Army 88M course contains a total of 221 hours of training, including:

• Lecture—32 classroom hours.

• Practical application—road driving—189 hours.

Motor Transport Operators are responsible primarily for operating wheeled vehicles to transport personnel and cargo. Motor Transport Operator duties include: Interior components/controls and indicators; basic vehicle control; driving vehicles over all types of roads and terrain, traveling alone or in convoys; braking, coupling, backing, and alley docking; adverse/tactical driving operations; pre-trip inspections; reading load plans; checking oil, fuel and other fluid levels, as well as tire pressure; operations in automatic and manual modes; crash prevention; safety check procedures; basic vehicle maintenance and repairs; transporting hazardous materials; and keeping mileage records.

A fueler for the Army, a driver with an Army classification of 92F, has completed the Army 88M course and additional training specific to the job of a fueler.

A PATRIOT Launching Station Operator, a driver with an Army classification of 14T, has completed the Army 88M course and additional training specific to the both the vehicle and systems the vehicle transports. Total training for this MOS exceeds 264 hours.

The Air Force Tractor Trailer Plan of Instruction (POI) is 226 pages long. The minimum length of instruction for the basic school is 84 hours, including:

• 22 hours of classroom.

• 62 hours of hands-on activity, both alone on a training pad and on the road with an instructor.

The core curriculum is based on the material in the American Association of Motor Vehicle Administrators (AAMVA) CDL Manual—2005 edition (2014 revised). Students participating in the basic 2T1 curriculum learn general principles in the classroom. Specialized training occurs at the installation using the Tractor Trailer Plan of Instruction. A minimum of 40 hours over-the-road time is expected on each vehicle/trailer type.

Topics covered in the Air Force Vehicle Operations course include: Overview of training and Federal requirements; Federal motor vehicle safety standards; tractor/trailer design; hazards and human factors relative to the environment where used; safety clothing and equipment; driving safely; pre- and post-trip vehicle inspection; basic vehicle control; shifting gears; managing space and speed; driving in mountains, fog, winter, very hot weather, and at night; railroad crossings; defensive awareness to avoid hazards and emergencies; skid control and recovery; what to do in case of a crash; fires; staying alert and fit to drive; hazardous materials—rules for all commercial drivers; preparing, inspecting, and transporting cargo safely; inspecting and driving with air brakes; driving combination vehicles safely; and coupling and uncoupling.

Air Force fuelers holding 2F0, and Air Force pavement and construction equipment operators holding 3E2, must first complete training for 2T1, before completing additional training specific to the roles of 2F0 and 3E2.

The core curriculum of the Marine Corps 3531 course—TM 11240-15/3G contains three training areas:

• Lecture—24 classroom hours.

• Demonstration—classroom/training pad—35 hours.

• Practical application—road driving—198 hours.

Instructional breakout includes:

• Demonstration: 35 hours.

• Guided discussion: 1.5 hours.

• Lecture: 24 hours.

• Performance examination: 62 hours.

• Practical application (individual): 198 hours.

• Knowledge examination: 7 hours.

Classroom instruction includes lectures, demonstration, and practice time for the specific tasks identified. Each classroom session includes knowledge and performance evaluations to ensure students have mastered all learning objectives for the specialty proficiency. Training includes simulators and actual vehicle operation. Practical training includes on-the-road and skills operations, ground guide procedures, and operating a vehicle with a towed load. Students practice their driving and backing, with and without a trailer. Instructors ride with the students as they operate on approved road routes. Specific training areas (pads) are provided for the students to practice their backing skills and ground guide procedures safely.

The Marine Corps training curriculum includes emergency procedures and cargo loading.

The core curriculum of the USN Heavy Vehicle Operator (Truck Driver) (EO) course (53-3032.00) is designed to train Navy personnel to operate passenger and cargo vehicles to rated capacity. They palletize, containerize, load and safely transport various types of cargo and demonstrate knowledge and skills to qualify as a driver journeyman. The complete program covers topics including:

• Hazardous materials transportation.

• Line haul planning.

• Manual tractor-truck operations.

• Vehicle Recovery Operations.

The course is taught over 160 hours including 30 hours of classroom and 130 hours of lab (behind the wheel). Upon completion of this course, the Navy driver will be able to:

• Perform the duties of normal, non-combat conditions driving in accordance with the local State driver licensing agency's CDL driver handbook;

• Manage hazardous petroleum, oils and lubricants (POL) material required during line haul and worksite activities, to support normal, non-combat operations;

• Perform preventive maintenance on a non- or up-armored manual truck tractor with drop-neck trailer, consisting of pre-start, during-operations, and after-operations equipment checks, to support normal, non-combat operations, in accordance with local State Driver License Agency CDL handbooks;

• Operate vehicle controls of a non- or up-armored manual truck-tractor, to support normal, non-combat operations; and

• Be proficient with the components and controls of a drop-neck trailer relative to a detached/attached gooseneck and a coupled/uncoupled trailer.

Other topics covered within the Navy EO training program include:

• Development and maintenance of operational records.

• Operation of high mobility multi-purpose wheeled vehicles.

• Weight distribution and load securement.

• Loading bulk and container cargo.

• Preventive maintenance.

• Pre- and post-trip vehicle safety inspections.

The military training programs described above are thorough and comprehensive, incorporating most of the elements recommended by the Professional Truck Driver Institute, which has been the principal standard-setting organization for private-sector motor carrier training for decades. They are entirely compatible with the requirements of FMCSA's ELDT rule. Although geared to heavy-duty military vehicles, military training is readily transferrable to a civilian context, as the operational characteristics of large military and civilian vehicles are very similar and, in some cases, identical. The Agency believes that exempting these drivers from the CLP knowledge test, in addition to the skills test, will have no adverse effect on highway safety.

This final rule also provides for waivers involving H, N, and P endorsements of drivers who hold an MOS listed above. Though military service members are not required to comply with 49 CFR, including hazardous materials training (part 172, subpart H), several service branches offer a training curriculum that meets or exceeds FMCSA testing requirements for endorsements. Proof of such training can be confirmed at the SDLA, for example by providing a copy of the U.S. Air Force motor vehicle identification card (AF 2293) which includes an identification of the class of vehicle operated, any endorsement held by the operator, and any restrictions to which he or she are subject. The identification card also includes a list of the vehicles the person is authorized to operate. Similar cards are authorized by the Navy and Marine Corps (both designated as OF 346), and Army (DA 5984). This rule is not applicable to school bus endorsement but, as noted above, is acceptable for the P endorsement if the service member verifies his/her military Passenger credential.

FMCSA recognizes that military vehicles can carry a variety of hazardous materials. Military personnel who carry fuel and other types of hazardous materials, including powder, weapons, and ammunition, are trained and certified to transport these materials. FMCSA clarifies that service members applying for waivers from the H endorsement knowledge test must still undergo the Hazardous Materials Endorsement Threat Assessment Program through the Transportation Security Administration (TSA) (49 CFR part 1572). SDLAs may not issue the H endorsement until TSA has completed its background check and approved the driver.

The Agency's ELDT final rule has a compliance date of February 7, 2020. Under 49 CFR 383.603(a)(3) of that rule, “[v]eterans with military CMV experience who meet all the requirements and conditions of § 383.77” are exempt from the rule's training requirements [81 FR 88732, 88790, December 8, 2016]. Section 383.77 allows States to waive the skills test for certain drivers with military CMV experience. This final rule allows a comparable waiver of the knowledge test. However, this rule does not affect 49 CFR 391.31, under which motor carriers must require their drivers to complete a road test before operating a CMV, unless the carrier chooses to accept a valid CDL in lieu of the road test (though it may not waive the road test if the driver has an N endorsement) [49 CFR 391.33]. In short, employers may still require drivers with military CMV experience who obtain a CDL without completing either the skills test or the knowledge test to complete a road test.

FMCSA proposed to allow States to exempt from the knowledge test for a CLP or CDL certain current or former military service members who were regularly employed in a military position requiring the operation of a CMV during a 1-year period immediately prior to the application. There would be no time limit for military personnel while on active duty or serving actively within a reserve component or the National Guard to apply for the waiver.

The NPGA and the PGANE asked that the proposal's 1-year waiver period be extended to 5 years. These commenters argued that the nature of CMV driving does not change so rapidly that a 5-year period would make training obsolete, even if the applicant had not driven in the past year.

Oregon thought that the time limits for the knowledge and skills test waivers should be identical. Oregon stated that, as proposed, the NPRM did not match the length of the skills test waiver.

FMCSA Response: FMCSA declines to extend the 1-year waiver period. This rule's intended effect is to allow qualified veterans and service members to waive the knowledge and skills tests simultaneously to obtain licensure. The Military CDL I rule used a 1-year period; FMCSA believes that is appropriate here as well, as the two are now synchronized.

One commenter requested that the proposal be extended to non-military personnel. Another stated that veterans should have licenses granted automatically, as they are driving on behalf of the U.S. Military.

FMCSA Response: The application process for what might be called an “even exchange” of a military truck or bus license for a civilian CDL was directed by the 2012 Act and section 5401 of the FAST Act. That process is limited explicitly to military service members with appropriate experience. As amended by section 5401(a), 49 U.S.C. 31305(d)(1)(C) requires FMCSA to “credit the training and knowledge a covered individual received in the armed forces or reserve components driving vehicles similar to a commercial motor vehicle for purposes of satisfying minimum standards for training and knowledge.” Only individuals currently serving on active duty, including the National Guard and reserve components, or recently separated service men and women with comparable training and experience, will be eligible for a waiver of the knowledge test. There is no equivalent requirement to waive knowledge tests for non-military personnel. In any case, that step would take this rule far beyond its original purpose and scope.

Federal regulations already exempt active duty military personnel from the need to hold a CDL when driving while on duty in a military vehicle on official military orders (49 CFR 383.3(c)). This final rule, in combination with the Military CDL I final rule, will allow States to make the licensing of current or former military personnel as close to automatic as possible. Other Federal requirements for licensure, like a medical examiner's certification, must be met and cannot be waived. However, qualified current and separated service members will now have significantly reduced obstacles to earning non-military licenses.

The Agency's June 12, 2017, NPRM proposed that SDLAs may waive the knowledge test; it would be entirely voluntary.

The CVTA asked FMCSA to consider setting guidelines for the process to increase consistency between SDLAs. ABA asked how the driver's SDLA record will reflect whether certain tests were waived.

Several commenters, including the two propane gas organizations, supported a voluntary waiver program and stated that a 3-year compliance date for States was appropriate.

ATA suggested that FMCSA work with AAMVA to develop a required form to verify that a driver has been trained in the ELDT elements to a level at least equivalent to that reflected by passage of the knowledge exam. Oregon asked several questions regarding coordination between the State of duty station and the State of domicile. Oregon asked if it was the Agency's intention to allow a State to administer all knowledge tests for certain military service members not domiciled there, but to limit that provision to just the general knowledge test for all other non-domiciled applicants.

The Virginia DMV stated that the process outlined in the proposed rule regarding testing for and obtaining a civilian CDL seems unnecessary and burdensome to the applicant because the 2012 Act already allows a State to issue a CDL to military personnel stationed but not domiciled there. The commenter called attention to the CDL rule prohibiting a driver from holding more than one license, noting that issuance of a CDL by the State of domicile would invalidate any other license held by the driver, making it illegal for him or her to drive for a period of several days until the newly-issued CDL arrived. Moreover, the commenter added that the proposed rule did not require States that decide to participate in the program to change their laws, if necessary, and invalidate or destroy the non-CDL, even before the CDL document is delivered to the applicant.

Another concern of the Virginia DMV was the requirement of 49 CFR 383.71(b)(9) for applicants to provide a proof of citizenship or lawful residency in a State of domicile in cases where they do not have such identification. Moreover, the commenter believed that FMCSA should provide an exception for applicants who do not have an active residential or mailing address in the State of domicile and allow such applicants' CDL or CLP to show an address located in the State of duty station.

The Virginia DMV was concerned with the provision that permits the State of duty station to accept an application for a CLP or CDL, including an application for waiver of the knowledge test or skills test, only if the State of duty station obtains prior approval from the State of domicile. The commenter wrote that “this creates an excessive burden on States to go state by State in obtaining prior approval agreements with other States. DMV is also concerned that if a duty station State does not obtain prior approval from a State of domicile before proceeding or the duty station State misunderstands what is approved[,] this will result in an undue hardship on military service members who must rely on the duty station State to follow regulations. Therefore, the Virginia DMV recommends that it should be the applicant's responsibility to obtain written approval from the State of domicile prior to beginning any exams in the duty station State since some applicants may be ineligible for domicile accommodation, due to outstanding administrative requirements in the State of domicile (e.g. photograph, compliance, lawful presence, State residency).” Furthermore, given that the NPRM would allow, but not require, States to waive the knowledge test, this commenter stated that permitting States to impose additional conditions and limitations on applicants, beyond those included in the proposed rule, would result in a lack of uniformity from State to State, creating a confusing process for service members to navigate.

Lastly, Virginia DMV noted that the cost associated with complying with the proposed rule is neither minimal, given the need for changes to State law, nor would the required re-programming of information technology systems would be minor, as the NPRM indicated. FMCSA needs to address these administrative and other costs. Moreover, Virginia DMV said that, if it participates in the waiver program, it would not do so until AAMVA had developed a secure system to transmit knowledge test results and other documentation.

FMCSA Response: As stated previously, States waiving knowledge tests under this rule are not required to coordinate their programs between States, although all States granting waivers must verify the qualifications of applicants based on various military documents, as specified in this rule. With respect to the CVTA comment, § 383.135(c) currently requires recording of the application for waiver in the driver's file. As for the comments of the propane gas organizations, FMCSA believes this rule should be available to States as soon as possible. The Agency is therefore making this final rule effective 60 days after publication.

Responding to the ATA's request that FMCSA specify a form demonstrating the equivalence of military training with the standards required for ELDT, the Agency has concluded, after consultation with AAMVA and close examination of the military training and testing manuals and procedures, that training to the prescribed MOS standards meets or exceeds that required by the ELDT rule. The form requested by ATA is therefore unnecessary.

This final rule makes no changes to the existing domicile requirements or any other provision of part 383. While the 2012 Act does allow States to issue CDLs to military personnel stationed there, no States have done so. The NPRM and this final rule avoid the possibility that CDL applicants could inadvertently lose their “home” State of domicile by accepting a CDL from the State of duty station.

The requirement and documents needed to provide proof of citizenship or lawful permanent residency in § 383.71(b)(9) are the same, whether the application is being made in the State of domicile or some other State. Without that proof, a CLP or CDL may not be issued. As for Virginia DMV's concern about the possible inability of an applicant to show an active mailing address in his or her “home” State to prove domicile, § 383.71(b)(10) allows the use of a “government issued tax form” to serve as proof. Without such a tax record, there is no good reason to believe an applicant's assertion of domicile in a State.

The NPRM described the various military training programs and explained that they are thorough and comprehensive. These programs incorporate most of the elements recommended by the Professional Truck Driver Institute. Military training is entirely compatible with the requirements of FMCSA's ELDT rule (81 FR 88732, December 8, 2016, also available in docket FMCSA-2007-27748).

ATA stated that FMCSA should verify that all military training programs thoroughly cover all elements required by the ELDT rule, and, if they do not, should work with the military branches to secure comparable training.

CVTA stated that the training manuals from the Army, Navy, Air Force, and Marines all covered, in “considerable detail,” the skills needed under the ELDT rule.

FMCSA Response: As stated previously, the training and testing by the military meet or exceed FMCSA's various training standards listed in appendices A through E to 49 CFR part 380 (compliance required by February 7, 2020) and the AAMVA testing standard specified in 49 CFR 383.131.

NSTA stated that individuals seeking a waiver should “certify and provide evidence” of their training and experience, specifically for passenger carrier and school bus endorsements. ATA asked the Agency for “explicit acknowledgement” that a driver using the waiver has the knowledge necessary to pass the test. ATA also said that employers may view the waiver as a lesser standard, and that FMCSA should provide the same process for checking the driver's record, experience, restrictions, equipment, etc., as States allow for other drivers. ATA expressed concern that veterans utilizing this program might be perceived as holding a lesser license.

ABA requested guidance on how an employer could confirm a driver's service and MOS. Oregon asked how to confirm that a driver attempting to use this waiver had proper training and experience. Oregon also asked if certain MOS should be considered proof of appropriate training, and requested a formal definition of “approved training.”

FMCSA Response: Under this rule, drivers who hold or held such designations have completed “approved training” comparable to that required to pass the general knowledge test. SDLAs will be able to verify a driver's MOS status. As indicated above, the SDLA will be able to check military documents, such as AF 2293, etc. The Agency will also provide SDLAs with guidance and sample documents that can be used to verify an applicant's required training and testing in the appropriate vehicle. A document summarizing that guidance is currently under development, and will be available to SDLAs. Certification to an employer that a driver is qualified is not part of this rulemaking. Individuals who are waived from the tests will receive standard CDLs and be treated the same as all other CDL holders.

ATA asked if FMCSA planned to require the usual 14-day waiting period between issuing these two licenses (49 CFR 383.25(e)).

FMCSA Response: Under this rule, a State may treat military personnel with the appropriate MOS as though they had completed the knowledge test for a CLP. However, because recipients of such waivers are eligible immediately for a CDL, they are not issued a CLP. The 14-day waiting period was adopted to ensure that drivers had time to obtain behind-the-wheel training before attempting to pass the skills test. However, § 383.77 requires applicants with military experience seeking a waiver of the driving skills test to certify certain experience over a 2-year period prior to the application. The MOSs listed in this final rule demonstrate that the applicant has received training equivalent to that required by the ELDT rule, which is also sufficient to pass the general and endorsement knowledge tests. Under these circumstances, a 14-day waiting period would serve no purpose. This rule does not waive other requirements for the issuance of a CDL, including the medical card required of all CDL holders and the TSA background check for applicants for H endorsement.

FMCSA revised 49 CFR 383.77, Substitute for driving skills tests for drivers with military CMV experience, and 49 CFR 383.79, Skills testing of out-of-State students; Knowledge and skills testing of military personnel, in the 2016 Military CDL I final rule. In the NPRM, FMCSA proposed edits to these two sections to accommodate the provisions related to the knowledge test.

Virginia DMV submitted multiple comments and questions about parts of the FMCSRs that were not substantively modified by this rulemaking, reflecting misunderstandings about the NPRM. Modifications to the final rule in response to other comments have resolved and clarified the issues raised by Virginia DMV.

The FMCSRs, and any exceptions to the FMCSRs, apply only within the United States (and, in some cases, United States territories). Motor carriers and drivers are subject to the laws and regulations of the countries in which they operate unless an international agreement states otherwise. Drivers and carriers should be aware of the regulatory differences among nations.

The reference to “written” tests in paragraph (a)(1) is changed to “knowledge” tests and the term “commercial motor vehicle” is abbreviated as “CMV” to match the terminology used elsewhere in 49 CFR part 383. The word “skills” is added after “driving” to clarify the type of test. No changes are made to other paragraphs in this section.

This section is retitled as Substitute for knowledge and driving skills tests for drivers with military CMV experience to include knowledge test waivers. The existing introductory paragraph is now contained in new paragraph (b)(1) and the introductory text of paragraph (b)(2).

FMCSA adds new paragraph (a), titled Knowledge test waivers for certain current or former military service members applying for a CLP or CDL, to outline the requirements for eligibility for knowledge test waivers, including paragraphs (a)(2)(i)(A) through (H) that list specific MOS eligible for knowledge test waivers. Existing paragraph (a) is now contained in new paragraph (b)(2)(ii). The language has been slightly modified to make it consistent with new paragraph (a).

New paragraph (b) is titled Driving skills test waivers for certain current or former military service members applying for a CDL. Existing paragraph (b) is now contained in new paragraph (b)(2)(i).

New paragraph (c) is titled Endorsement waivers for certain current or former military service members applying for a CLP or a CDL. Paragraphs (c)(1) through (3) contain the requirements certain applicants must meet for SDLAs to grant them relief from the knowledge and skills tests for P, and the knowledge tests for N and H. New paragraph (c)(4) provides the conditions and limitations that are placed on a waiver of the tests required for a P, N, or H endorsement.

The title of this section and paragraph (a) are modified to include the term “driving” before the terms “skills.” Other editorial changes are made to paragraph (a). Existing paragraph (b), Military service member applicants for a CLP or CDL, is removed and replaced by a new paragraph (b), Active duty military service members. New paragraphs (b)(1) and (2) discuss the responsibilities of the State of duty station and the State of domicile, respectively.

New paragraph (l) is added to provide a compliance date for this rule.

FMCSA performed an analysis of the impacts of the final rule and determined it is not a significant regulatory action under section 3(f) of E.O. 12866, Regulatory Planning and Review, as supplemented by E.O. 13563, Improving Regulation and Regulatory Review. Accordingly, the Office of Management and Budget (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 rule will allow, but not require, States to waive the requirements for the CDL knowledge tests for certain current or former military service members who can certify and provide evidence that they were regularly employed within the last year in a military position that requires/required the operation of a CMV. This rule will provide an expedited path for certain military service members to enter the labor market by eliminating the usual 14-day waiting period after passing the knowledge test for the CLP and either taking the driving skills test or applying for a skills test waiver.

FMCSA evaluated potential costs and benefits that could result from this rulemaking. The Agency estimates that an annual average of 2,460 military service members will be affected by the rule, with each experiencing a reduction in costs related to elimination of the CDL knowledge test and the 14-day waiting period. As presented in Table 1, the final rule will result in a 10-year cost savings of $16.66 million undiscounted, $14.21 million discounted at 3 percent, $11.70 million discounted at 7 percent, and $1.67 million on an annualized basis at 7 percent or 3 percent discount rates.

The Agency does not know how many military service members will receive CDL knowledge test waivers and uses the number of CDL skills test waivers issued as a proxy for the number of military service members who will be most likely to use the relief provided in this rule. In the Military CDL I final rule, FMCSA estimated that an annual average of 2,460 military service members were granted skills test waivers, and thus estimates that the same number will be granted knowledge test waivers as a result of this final rule. For purposes of this analysis, FMCSA assumed that number would remain constant in future years.

The Agency evaluated changes in the opportunity cost of time for military service members, or drivers, using the driver wage rate to represent the value of the drivers' time. In the absence of the rule, that time would have been spent taking the CDL knowledge tests and waiting to procure employment as CMV drivers, time that will now be available to drivers for other uses, such as productive employment. The source for driver wages is the median hourly wage data (May 2016) from the U.S. Department of Labor (DOL), Bureau of Labor Statistics (BLS), Occupational Employment Statistics (OES).2 The BLS does not publish data on fringe benefits for specific occupations, but it does for the broad industry groups in its Employer Costs for Employee Compensation (ECEC) release. For drivers, this analysis uses an average hourly wage of $25.75 and average hourly benefits of $14.49 for private industry workers in “transportation and warehousing” 3 to estimate that fringe benefits are equal to 56 percent ($14.49 ÷ $25.75) of wages.

FMCSA assumes that military service members are employed while they are waiting to obtain a CDL and uses the light truck or delivery service driver wage rate (industry code 53-3033) as a proxy for the employment opportunities available to non-CDL drivers. Per the BLS definition, drivers in the light truck or delivery service industry drive a truck or van with a capacity of less than 26,000 pounds gross vehicle weight and, as such, do not require a Class A or a Class B CDL. FMCSA uses a driver wage rate of 23 to account for non-CDL driving opportunities available to military service members, which is the base median hourly wage of $14.70 adjusted to account for fringe benefits ($23 = $14.70 × 1.56).

FMCSA uses the heavy tractor-trailer wage rate (industry code 53-3032) of $31 to represent the employment opportunities available to military service members after they obtain their CDL. This value is the base median wage of $19.87, adjusted to account for fringe benefits ($31 = $19.87 × 1.56).

This rule will reduce driver opportunity cost by creating an expedited path for certain military service members to obtain their CDL and begin working for a motor carrier. First, the affected military service members will receive a waiver for the CDL knowledge tests and will experience a reduction in opportunity cost equal to the length of time they would have spent taking the CDL knowledge tests. FMCSA estimates that each of the 2,460 affected military service members will save approximately 60 minutes, or one hour, and values this time at the wage the driver will be earning in the absence of the CDL knowledge test requirement, $31. As displayed in Table 1, FMCSA estimates that the annual undiscounted cost savings of allowing a CDL knowledge test waiver are approximately $76,000 ($76,000 = 2,460 drivers × 1 hour × $31), and the total 10-year undiscounted cost savings are approximately $760,000.

Second, because of the waiver, certain military service members will no longer be required to wait 14 days before obtaining their CDL and beginning employment for a motor carrier. Eliminating the waiting period could result in up to 80 hours of increased wages (two 40-hour work weeks). Because the military service members are estimated to be working and earning a wage during the waiting period, the impact of removing the waiting period is the difference between what they are earning under the baseline (estimated at $23), and what they will earn under the rule (estimated at 31). Thus, FMCSA quantified the impact of removing the waiting period at 8 per hour ($8 = $31 − $23). The analysis similarly estimated that this will impact 2,460 service members. As presented in Table 1, FMCSA estimates that the annual undiscounted cost savings are $1.59 million ($8 × 80 × $2,460), and the 10-year total undiscounted cost savings are $15.90 million.

As presented in Table 1, the total cost savings of the final rule are $16.66 million undiscounted, $14.21 million discounted at 3 percent, $11.70 million discounted at 7 percent, and $1.67 million annualized at both a 3 percent and 7 percent discount rate.

In considering the potential impacts on safety from this rule, the Agency notes that affected military service members have previous training or experience operating a CMV, which serves as an adequate substitute for taking the knowledge test and holding a CLP for a minimum of 14 days. Therefore, the Agency anticipates that there will be no change in potential safety benefits associated with this rule.

This final rule is expected to be an E.O. 13771 deregulatory action. 4 The present value of the cost savings of this rule, measured on an infinite time horizon at a 7 percent discount rate, are approximately $20.8 million. Expressed on an annualized basis, the cost savings are $1.5 million. These values are expressed in 2016 dollars.

The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121, 110 Stat. 857), requires Federal agencies to consider the impact of their regulatory proposals on small entities, analyze effective alternatives that minimize small entity impacts, and make their analyses available for public comment. The term “small entities” means small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with a population of less than 50,000.5 Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities and mandates that agencies strive to lessen any adverse effects on these entities.

When an agency issues a rulemaking proposal, the RFA requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” which will “describe the impact of the proposed rule on small entities” (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to certify, in lieu of preparing an analysis, that the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

FMCSA provided a factual basis and certified in the proposal that the rule would not have a significant impact on a substantial number of small entities. FMCSA did not receive comments on the factual basis or the proposal, and has not changed the determination in this final rule.

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 on themselves 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, Selden Fritschner, 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.

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, or tribal governments, in the aggregate, or by the private sector, of $156 million (which is the equivalent of $100 million in 1995, adjusted for inflation to 2015 levels) or more in any one year. Though this final rule will not result in such expenditure, the Agency does discuss the effects of this rule elsewhere in this preamble.

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

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 would not have substantial direct costs on or for the States, nor will it limit the policymaking discretion of the 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.

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.

E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks, 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.

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.

The Consolidated Appropriations Act, 2005, (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 (PII), the Agency is not required to conduct a PIA.

Section 208 of the E-Government Act of 2002 (44 U.S.C. 3501 note) 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.

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

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 the rule 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.

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 final rule has not been identified by DOT under E.O. 13783 as potentially alleviating unnecessary burdens on domestic energy production.

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

The National Technology Transfer and Advancement Act (NTTAA) (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.

FMCSA analyzed this rule for the purpose of the National Environmental Policy Act of 1969 (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, March 1, 2004), Appendix 2, paragraphs 6.s.(6) and 6.t.(2). The Categorical Exclusion (CE) in paragraph 6.s.(6) covers a requirement for States to give knowledge and skills tests to all qualified applicants for commercial drivers' licenses which meet the Federal standard. The CE in paragraph 6.t.(2) covers regulations to ensure that the States comply with the provisions of the Commercial Motor Vehicle Safety Act of 1986, by: (2) Having the appropriate laws, regulations, programs, policies, procedures and information systems concerning the qualification and licensing of persons who apply for a commercial driver's license, and persons who are issued a commercial driver's license. The requirements in this rule are covered by these CEs and the proposed action does not have any effect on the quality of the environment. The CE determination is available for inspection or copying in the Federal eRulemaking Portal: http://www.regulations.gov.

In consideration of the foregoing, FMCSA amends 49 CFR chapter III, parts 383 and 384, to read as follows:

On May 31, 2016, we received a petition from the Center for Biological Diversity to list the chambered nautilus (N. pompilius) as a threatened species or an endangered species under the ESA. We found that the petitioned action may be warranted for the species and announced the initiation of a status review (81 FR 58895, August 26, 2016). On October 23, 2017, we announced a positive 12-month finding on the petition and published a proposed rule to list the chambered nautilus as a threatened species under the ESA (82 FR 48948). We solicited information on the proposed listing determination, the potential development of proposed protective regulations, and potential designation of critical habitat for the chambered nautilus. The comment period was open through December 22, 2017, and no hearing requests were received. This final rule provides an overview of the ESA listing and status review process for this species; a discussion of the comments and information we received during the public comment period, as well as our responses to those comments; a summary of the statutory listing factors and other considerations supporting the listing determination; and our final ESA listing determination for the chambered nautilus. This rule should be read in conjunction with the proposed rule.

We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this determination, we first consider whether a group of organisms constitutes a “species” under section 3 of the ESA, then whether the status of the species qualifies it for listing as either threatened or endangered.

Section 3 of the ESA defines “species” to include any subspecies of fish or wildlife or plants and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). Because the chambered nautilus is an invertebrate, the ESA does not permit us to consider listing populations as DPSs.

Section 3 of the ESA defines an “endangered species” as a species which is in danger of extinction throughout all or a significant portion of its range and a “threatened species” as one which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. 16 U.S.C. 1532(6); (20). Thus, in the context of the ESA, we interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species” is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species is or is likely to become in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).

As we explained in the proposed rule and summarize here, when we consider whether a species might qualify as threatened under the ESA, we must consider the meaning of the term “foreseeable future.” It is appropriate to interpret “foreseeable future” as the horizon over which predictions about the conservation status of the species can be reasonably relied upon. The appropriate timescales for analyzing various threats will vary with the data available about each threat. The foreseeable future considers the life history of the species, habitat characteristics, availability of data, particular threats, ability to predict threats, and the ability to reliably forecast the effects of these threats and future events on the status of the species under consideration. Because a species may be susceptible to a variety of threats for which different data are available, or which operate across different time scales, the foreseeable future is not necessarily reducible to a particular number of years.

The statute also requires us to determine whether any species is endangered or threatened throughout all or a significant portion of its range as a result of any one or a combination of the following factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms to address identified threats; or other natural or manmade factors affecting its continued existence (ESA section 4(a)(1)(A)-(E); 16 U.S.C. 1533(a)(1)(A)-(E). See also 50 CFR 424.11(c)).

To make a listing determination, we first determine whether a petitioned species meets the ESA definition of a “species.” Next, using the best available information gathered during the status review for the species, we assess the extinction risk of the species. In assessing the extinction risk of a species, in conjunction with the section 4(a)(1) factors, we consider demographic risk factors, such as those developed by McElhany et al. (2000), to organize and evaluate the forms of risks. The demographic risk analysis is an assessment of the manifestation of past threats that have contributed to the species' current status and also informs the consideration of the biological response of the species to present and future threats. The approach of considering demographic risk factors to help frame the consideration of extinction risk has been used in many of our previous status reviews (see https://www.fisheries.noaa.gov/resources/documents?title=&field_category_document_value%5Besa_status_review%5D=esa_status_review&species=&field_species_vocab_target_id=&sort_by=created for links to these reviews). In this approach, the collective condition of individual populations is considered at the species level according to four demographic viability factors: Abundance and trends, population growth rate or productivity, spatial structure and connectivity, and genetic diversity. These viability factors reflect concepts that are well-founded in conservation biology and that individually and collectively provide strong indicators of extinction risk.

Where a species is found not to warrant listing throughout its range, we must go on to evaluate whether the species may be endangered or threatened in a “significant portion of its range.” Conversely, where a species is found to warrant listing as an endangered species or a threatened species based on a review of its status throughout its range, it is not necessary to proceed to an evaluation of potentially significant portions of the range. As explained more fully in the proposed rule, we interpret the Act to require that, where the best available information allows us to determine a status for the species rangewide, that status determination should be given conclusive weight. Our interpretation is also consistent with the 2014 Final Policy on Interpretation of the Phrase “Significant Portion of its Range” (79 FR 37578, July 1, 2014).1

Section 4(b)(1)(A) of the ESA requires us to make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and after taking into account any efforts being made by any State or foreign nation or political subdivision thereof to protect the species. 16 U.S.C. 1533(b)(1)(A). Therefore, prior to making a listing determination, we also assess such protective efforts to determine if they ameliorate the existing threats to a degree that would affect the listing status of the species under the Act. Any relevant foreign efforts are directly evaluated under standards deducible from section 4(b)(1)(A) and the statute's structure.

A summary of basic biological and life history information of the chambered nautilus can be found in the proposed rule and the status review report. In reaching our proposed listing determination, we used the best available scientific and commercial data on the chambered nautilus, which are summarized in the status review report and incorporated herein.

Scientific conclusions about the overall risk of extinction faced by the chambered nautilus under present conditions and in the foreseeable future are based on our evaluation of the species' demographic risks and ESA section 4(a)(1) threat factors. Our assessment of overall extinction risk considered the likelihood and contribution of each particular factor, synergies among contributing factors, and the cumulative impact of all demographic risks and threats on the chambered nautilus. After considering conservation efforts by foreign nations to protect the species, as required under section 4(b)(1)(A), we proposed to list the species as a “threatened species.”

For the assessment of extinction risk for the chambered nautilus, the “foreseeable future” was considered to extend out several decades (> 40 years). Given the species' life history traits, with longevity estimated to be at least 20 years, maturity ranges from 10 to 17 years, with very low fecundity (potentially 10-20 eggs per year with a 1-year incubation period), it would likely take more than a few decades (i.e., multiple generations) for any recent management actions to be realized and reflected in population abundance indices. Similarly, the impact of present threats to the species could be realized in the form of noticeable population declines within this time frame, as demonstrated in the available survey and fisheries data. As the main potential operative threat to the species is overutilization, this time frame would allow for reliable predictions regarding the impact of current levels of fishery-related mortality on the biological status of the species. Additionally, this time frame allows for consideration of the previously discussed impacts on chambered nautilus habitat from climate change and the potential effects on the status of this species.

To make our final listing determination, we reviewed all comments and information provided during the public comment period on the proposed rule. In general, this additional information merely supplemented, and did not differ significantly from, the information presented in the proposed rule. Where new information was received, we have reviewed it and present our evaluation of the information in this final rule. The new information received was not so significant that we are relying on it for our final determination.

With this rule, we finalize our listing determination for the chambered nautilus as a “threatened species.”

In response to our request for public comments on the proposed rule, we received comments and/or relevant information from 16 parties. The large majority of commenters supported the proposed listing determination but provided no new or substantive data or information relevant to the listing of the chambered nautilus. We also solicited comments from the countries where the chambered nautilus occurs via their ambassadors and received a response from the Philippines Bureau of Fisheries and Aquatic Resources and the Government of India. Summaries of the substantive public comments received and our responses are provided below and organized by topic.

Comment 1: Two commenters provided their personal observations regarding the decline of the chambered nautilus in the Indo-Pacific. One commenter noted that during their 20 years as a researcher studying the chambered nautilus, 1-2 of their study sites are now 100 percent depleted and others are rapidly following suit. Another commenter provided information on historical and current nautilus fishing practices in the Philippines. The commenter stated that nautilus fishing was more lucrative in the 1970s and 1980s in the region of Central Visayas (particularly the Tañon Strait municipalities) compared to the end of the 1990s, resulting in reduced fishing effort of the species. In March 2017, interviews conducted with three shell exporters on Mactan Islands (the major export hub for sea shells from Philippine waters) revealed that they had a few hundred nautilus shells in stock (despite the ban on trade in nautilus shells). The commenter also stated that there are known locations in Central Palawan as well as the southern tip of the island where nautilus fisheries were or still exist. However, the commenter noted that it is unclear whether the nautilus is a target species or just landed as bycatch. The commenter stressed the importance of obtaining information on current and historical fishing activities in order to obtain a better understanding of the present status of nautilus populations in the Philippines.

Response: We thank the commenters for the information. We have updated the status review report (Miller 2018) to reflect the new information provided regarding the March 2017 interviews, which further supports our conclusion that existing regulations to protect N. pompilius from overutilization throughout the Philippines are inadequate. We agree with the commenter that fisheries information is useful when examining the status of nautilus populations.

Comment 2: One commenter provided new published information on the genetics of the Nautilus genus, including an estimated effective population size of N. pompilius across the Indo-Pacific. Specifically, the commenter referenced the study by Combosch et al. (2017), which used genome-wide double digest restriction-site associated DNA data to re-analyze nautiloid species taxonomy. The commenter noted that the results from the new study suggest that the geographic distribution of N. pompilius may be smaller than previously thought, and would not include nautilids found in the Coral Sea and Southwest Pacific. However, the commenter noted that further research is needed to validate the results before a final decision on the actual geographical range of N. pompilius is made. In fact, the commenter stated that given that further research is still necessary, NMFS should rely on the best available science and list N. pompilius as one species (one “superspecies”) throughout its range, as stated in the proposed rule.

In terms of effective population size, the commenter noted that the estimates provided in Combosch et al. (2017) generally tend to be in agreement with previous genetic studies (i.e., Williams et al. (2015)). While the estimates are rather large (for example, ~4.5 million specimens of N. pompilius may potentially exist in the entire Indo-Pacific), the commenter cautioned that the data are more than two decades old and represent what the species could potentially support based on its current genetic diversity, not its current living population abundance estimate. The commenter cautioned that the substantial removal of individuals from N. pompilius populations in recent decades, and potential losses in genetic diversity, would take some time before being reflected in genetic-based effective population sizes. Ultimately, the commenter requested that the new genetic information, discussed above, be included in the final rule.

Response: We reviewed the paper referenced by the commenter (Combosch et al. 2017) and have updated the status review report with this new information. Specifically, Combosch et al. (2017) indicate the existence of three main Nautilus clades: South Pacific, Coral Sea, and Indo-Pacific. The authors contend that these three clades consist of five distinct genetic clusters of Nautilus that most likely correspond to five different species. Three of these species exist in the South Pacific, including N. macromphalus in New Caledonia and two undescribed species (one around American Samoa and Fiji and the other around Vanuatu). A fourth species is found from the Great Barrier Reef to eastern Papua New Guinea, which the authors consider to be N. stenomphalus. The fifth species, N. pompilius, occurs from Western Australia throughout Indonesia and the Philippines and west to Palau. The authors also suggest that N. belauensis and N. repertus should be synonymized with N. pompilius as they are both nested within this Indo-Pacific clade.

While the results from Combosch et al. (2017) contrast with our characterization of N. pompilius and its range within the status review report and proposed rule, we find that this new information does not change our recognition of N. pompilius as a valid species for listing under the ESA, or our description of the species and its range based on the best available information. As noted in the status review report and proposed rule, nautilus taxonomy is controversial and is still not fully resolved. Until there is a new scientific agreement regarding the taxonomy of the Nautilus genus, we will continue to follow the latest scientific consensus as acknowledged by the Integrated Taxonomic Information System, with N. pompilius identified as one of five recognized species (N. pompilius, N. belauensis, N. macromphalus, N. repertus, and N. stenomphalus). In terms of range, we find that the best available information suggest that N. pompilius is found throughout the Indo-Pacific and within the South Pacific, including waters off American Samoa, Australia, Fiji, India, Indonesia, Malaysia, New Caledonia, Papua New Guinea, Philippines, Solomon Islands, and Vanuatu. Nautilus pompilius is also possibly native to China, Myanmar, Western Samoa, Thailand, and Vietnam.

With respect to the new effective population size estimates in Combosch et al. (2017), we have updated the status review report with this data. The authors estimated median current effective population sizes for each of the genetic clades mentioned above (Indo-Pacific, Coral Sea, South Pacific) and found large population sizes in the panmictic Indo-Pacific population (4.5 × 106 specimens; 3.2 × 106 for the Philippines subpopulation) and in the Coral Sea (7.2 × 106 for the Great Barrier Reef and 5.7 × 106 for Papua New Guinea). The South Pacific clade had much smaller effective population sizes, with New Caledonia at 0.34 × 106 specimens, Vanuatu at 0.67 × 106 specimens, and American Samoa/Fiji population at 0.41 × 106 specimens. As the commenters note, these estimates are similar to those from previous genetic studies as reported Williams et al. (2015). Specifically, Williams et al. (2015) estimated an effective population size for the Philippines of 3.2 × 106 individuals, and 2.6 × 106 individuals for Western Australia. While this new data further support the suggestion that the species may have high genetic diversity, we agree with the commenters that the current level of genetic diversity across the entire range of the species remains highly uncertain. Due to the low fecundity and long generation time of the species, genetic responses to current exploitation rates (such as decreases in genetic diversity) may not yet be detectable. We have updated the status review report with this new data but do not find that it changes our conclusions regarding the risk that genetic diversity currently poses to the species.

Comment 3: The Philippines Bureau of Fisheries and Aquatic Resources (the Bureau) provided information regarding existing regulations. Specifically, the Bureau stated that under Section 102 (b) of the Philippine Fisheries Code of 1998 (RA 8550 as amended by RA 10654), it is unlawful to fish, take, catch, gather, sell, purchase, possess, transport, export, forward or ship out aquatic species listed under Appendix II and III of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Based on the listing of the chambered nautilus in Appendix II of CITES during the Conference of the Parties in 2016, the prohibition became effective on January 2, 2017. However, the export of government-inventoried chambered nautilus Pre-Convention specimens used in the shell craft industry of Cebu, Philippines is allowed until 2018.

Response: We thank the Bureau for its comment and have updated the status review report to reflect this regulation. However, at this time, we have no information regarding the effectiveness of this prohibition, including subsequent enforcement efforts, in protecting the chambered nautilus from continued overutilization throughout the Philippines. Available information from the status review report suggests enforcement of current regulations may be lacking, with evidence of nautilus products being sold in shops in Cebu, the Western Visayas region, and Palawan as recently as 2017, despite local ordinances that prohibit the trade and harvest of N. pompilius. Given the significant harvest and trade of the chambered nautilus throughout the Philippines (with the Philippines being the number one supplier of nautilus commodities to the United States) and present uncertainty regarding the enforcement of existing regulatory measures and subsequent adequacy in reducing the threat of overutilization to the species in the foreseeable future, we find that our conclusions regarding threats to the species and its extinction risk remains the same.

Comment 4: The Government of India (the Government) provided information on India's existing regulations related to the protection of the chambered nautilus. Specifically, the Government commented that the chambered nautilus is listed on Schedule I of India's Wild Life (Protection) Act, 1972, which provides the species with the highest degree of protection from hunting and trade. Commercial trade of N. pompilius in India is not permitted. Additionally, the Government states that there are no reports of captures of chambered nautiluses in Indian fishery landing centers. However, the Government notes that illegal trade in the species cannot be ruled out.

The Government of India also commented that India, along with Fiji and the United States, proposed the listing of Nautilidae on Appendix II of CITES during the 17th meeting of the Conference of the Parties to CITES. Considering this, the Government states that India has no objections to the listing of the species as threatened under the ESA.

Response: We thank the Government of India for its comment and support of the listing of chambered nautilus under the ESA. In the status review report, we recognized the listing of N. pompilius under Schedule I of the Indian Wild Life (Protection) Act of 1972; however, we found information indicating that N. pompilius shells were still being collected in Indian waters and sold in major coastal tourist curio markets as recently as 2007 (John et al. 2012). In fact, interviews with retail vendors suggested that a large majority were aware of the Indian Wild Life Protection Act and legal ramifications of selling protected species yet continued to sell large quantities of protected marine mollusks and corals in the curio shops (John et al. 2012). Additionally, based on the shell size of the chambered nautiluses in the curio shops, we found it likely that the inventory is comprised entirely of shells from immature individuals. While India may prohibit the harvest and trade of chambered nautilus, the best available information suggests that the species is still being exploited, with the high demand for nautilus shells and profits from the illegal curio trade resulting in the overutilization of N. pompilius that will continue to threaten populations within Indian waters. With no new information to consider regarding the effectiveness of enforcement of India's existing regulatory mechanisms, we find that our conclusions regarding threats to the species and its extinction risk remains the same.

Comment 5: We received a number of comments that supported the proposed listing of the chambered nautilus as a threatened species under the ESA. A large majority of the comments were general statements of support for listing and were not accompanied by substantive information or references. Some of the comments were accompanied by information that is consistent with, or cited directly from, our proposed rule or status review report.

Response: Given that no new substantive information was provided in these comments that was not already considered in the proposed rule or status review report, our conclusion regarding the status of the chambered nautilus remains the same. We acknowledge these comments and the considerable public interest expressed in support of the conservation of the chambered nautilus.

Comment 6: Several commenters requested that we list the chambered nautilus as an endangered species under the ESA. One commenter stated that listing as endangered is warranted for a host of reasons including: how little is known about the biology and ecology of the chambered nautilus; lack of information on population abundance and trends in vast portions of the species' range; the species' reproductive characteristics (i.e., long-lived, late maturing, slow growing); its patchy distribution, geographic isolation, specialized habitat needs, and genetic distinction between populations; the massive level of international trade in the species (including in to the United States); and the lack of effective regulations protecting the species where it exists. The commenter suggested that the “precautionary principle” would indicate that the species should be listed as an endangered species.

Response: The commenters did not provide any new information regarding threats to the species or its current status that was not already considered in the status review report or proposed rule. One commenter cited the proposed rule and status review report to support their argument of listing the chambered nautilus as, “preferably,” an endangered species. With no new information to consider, our conclusion regarding the status of the chambered nautilus remains the same.

Regarding the request to use a precautionary approach when making a listing decision, it would be inappropriate apply a presumption in favor of a particular listing status under the Act. Under the framework of the ESA, the threshold determination of whether or not to list a species is required to be a scientific conclusion based solely on the best available scientific and commercial information. In carrying out other provisions under the ESA that come into play after the time of listing, such as conducting consultations under section 7, it may be appropriate to apply a “precautionary approach” or give the benefit of the doubt to the species. But such considerations do not apply at the step of making a listing determination under Section 4. Trout Unlimited v. Lohn, 645 F. Supp. 2d 929, 947-48 (D. Or. 2007). We simply may not list a species as endangered unless the best available scientific and commercial information supports concluding that it meets the statutory definition of an “endangered species” at the time of listing.

Comment 7: Two commenters urged us to promulgate a section 4(d) rule to establish import prohibitions of the species into the United States and other trade regulations, as well as to require permits in order to address the threat of unsustainable overharvesting of the species that supports the international shell trade. As support for their request, one commenter stated that the CITES protection for the species will not be enough to prevent it from becoming endangered in the foreseeable future because illegal trade is likely to happen. Additionally, the commenter noted that without ESA protections, unregulated interstate sale (including from American Samoa) would continue. Thus, even with the CITES Appendix II listing, the commenter stated that regulatory mechanisms remain inadequate to ensure the species' survival in the foreseeable future. The commenters noted that a 4(d) rule restricting trade, including import prohibitions, would allow the U.S. authority to review CITES non-detriment findings and make their own determinations as well as ensure adequate trade restrictions where domestic efforts to protect the species in foreign countries have failed.

Response: Under the ESA, if a species of fish or wildlife is listed as endangered, a number of protections set out in section 9(a)(1) of the Act (16 U.S.C. 1538(a)(1)) automatically apply. Among other prohibitions, any “take” of, import into or export from the United States, and interstate or foreign commerce in the species, is illegal, subject to certain exceptions. In the case of a species listed as threatened, the protections of section 9 do not automatically apply. However, section 4(d) of the ESA gives the Secretary the authority to issue such regulations as he or she deems necessary and advisable to provide for the conservation of the species. The Secretary may also prohibit with respect to a threatened species any or all of the acts prohibited under section 9(a)(1) of the ESA. 16 U.S.C. 1533(d).

While the commenter stated that CITES protection for the species would not be sufficient to prevent the chambered nautilus from becoming endangered in the foreseeable future, the commenter pointed to no information regarding current implementation efforts and enforcement of CITES requirements, or overall effectiveness of the CITES Appendix II listing in ensuring the sustainable trade of the chambered nautilus to support their assertion. If sustainable trade in this species is achieved as a result of the CITES Appendix II listing, the need for additional protective measures would be unnecessary; however, at this time, we are still evaluating the effectiveness of the CITES Appendix II listing of the chambered nautilus. Also, in response to the commenter's concerns regarding interstate commerce, as mentioned in the proposed rule and status review report, we found no evidence of local utilization or commercial harvest of chambered nautiluses in American Samoa. Therefore, any sale of non-imported chambered nautilus shells in interstate commerce would likely involve collected drift shells from American Samoa (i.e., the only portion of the species' range in U.S. waters). As such, we do not agree with the commenter that this interstate commerce places the species at risk of extinction at this time.

We did not receive, nor did we find, data or references that presented substantial new information that would cause us to change our proposed listing determination. We did, however, make several revisions to the final status review report (Miller 2018) to incorporate, as appropriate, relevant information received in response to our request for public comments.

Specifically, we updated the status review to include new information regarding the sale of nautilus shells in the Philippines (K. Schroeder, pers. comm. 2017), the taxonomy of the species (Combosch et al. 2017), and estimates of effective population sizes for nautilus populations (Combosch et al. 2017). As noted above, with more detailed discussion in the previous comment responses, consideration of this new information did not alter any conclusions (and in some cases further supported our conclusions) regarding the threat assessment or extinction risk analysis for the chambered nautilus. Thus, the conclusion contained in the status review report and determination based on that conclusion in the proposed rule are reaffirmed in this final action.

As noted previously, nautilus taxonomy is controversial and still not fully resolved. However, the current scientific consensus is that N. pompilius is a recognized taxonomically-distinct species and, therefore, meets the definition of “species” pursuant to section 3 of the ESA, making it eligible for listing under the ESA.

As stated previously and as discussed in the proposed rule (82 FR 48948, October 23, 2017), we conducted a demographic risk analysis for the chambered nautilus. This analysis evaluated the population viability characteristics and trends data available for the species to determine the potential risks these demographic factors pose to the species. Based on the available data, we found that the species exists as small and isolated populations throughout its range, with low rates of dispersal and little gene flow among populations, particularly those that are separated by large geographic distances and deep ocean expanses. Genetic variability within the species has likely been reduced due to bottleneck events and genetic drift in the small and isolated N. pompilius populations throughout its range. Additionally, the data indicate that the chambered nautilus is a slow-growing and late-maturing species (with maturity estimated between 10 and 17 years, and longevity at least 20 years) with likely very low productivity and, thus, is extremely susceptible to decreases in its abundance. In fact, the data suggest that many chambered nautilus populations are in decline and may be extirpated in the next several decades.

The comments that we received on the proposed rule provided information that was either already considered in our analysis, was not substantial or relevant, or was consistent with or reinforced information in the status review report and proposed rule. Therefore, our consideration of the information received has not altered our analysis of the demographic risks to the species.

As stated previously and as discussed in the proposed rule (82 FR 48948, October 23, 2017), we considered whether any one or a combination of the five threat factors specified in section 4(a)(1) of the ESA are contributing to the extinction risk of the chambered nautilus and result in the species meeting the definition of “endangered species” or “threatened species.” The primary threat to the chambered nautilus is overutilization through commercial harvest to meet the demand for the international nautilus shell trade. Out of the 10 nations where N. pompilius is known to occur, potentially half have targeted nautilus fisheries either historically or currently. These waters comprise roughly three-quarters of the species' known range. Current estimated levels of harvest to meet the international demand are projected to lead to extirpations of local N. pompilius populations as has been observed in the past. Additionally, efforts to address overutilization of the species through regulatory measures appear inadequate, with evidence of targeted fishing of and trade in the species, particularly in Indonesia, Philippines, and China, despite prohibitions.

The comments that we received on the proposed rule provided information that was either already considered in our analysis, was not substantial or relevant, or was consistent with or reinforced information in the status review report and proposed rule. Therefore, our consideration of the information received has not led us to change our conclusions regarding any of the section 4(a)(1) factors or their interactions. All of the information, discussion, and conclusions regarding the factors affecting the chambered nautilus contained in the final status review report (Miller 2018) and the proposed rule is reaffirmed in this final action.

As discussed previously, the status review report evaluated the demographic risks to the chambered nautilus according to four categories—abundance and trends, population growth/productivity, spatial structure/connectivity, and genetic diversity. As a concluding step, after considering all of the available information regarding demographic and other threats to the species, we rated the species' extinction risk according to a qualitative scale (high, moderate, and low risk). We found that N. pompilius is at a moderate risk of extinction throughout its range. We explained in the proposed rule that a species is at a “moderate risk” of extinction when it is on a trajectory that puts it at a high level of extinction risk in the foreseeable future. A species may be at moderate risk of extinction because of projected threats or declining trends in abundance, productivity, spatial structure, or diversity. While the chambered nautilus is still traded in considerable amounts (upwards of thousands to hundreds of thousands annually), with evidence of new sites being established for nautilus fishing (e.g., in Indonesia, Philippines, Papua New Guinea), and areas of stable, unfished populations (e.g., eastern Australia, American Samoa), we concluded that without adequate measures controlling the overutilization of the species, N. pompilius is on a trajectory where its overall abundance will likely see significant declines within the foreseeable future eventually reaching the point where the species' continued persistence will be in jeopardy. We, therefore, determined that the species is not presently in danger of extinction throughout its range but is likely to become so within the foreseeable future (i.e., the species is a threatened species). Because we find that the chambered nautilus is likely to become an endangered species within the foreseeable future throughout its range, we do not go on to consider whether the species might be threatened or endangered in a significant portion of its range, for the reasons explained in the Listing Species Under the Endangered Species Act section above and more fully in the proposed rule.

The information received from public comments on the proposed rule was either already considered in our analysis, was not substantial or relevant, or was consistent with or reinforced information in the status review report and proposed rule. Therefore, our consideration of the information received has not altered our view of the extinction risk of the chambered nautilus. Our conclusion regarding the extinction risk for the chambered nautilus remains the same. Therefore, all of the information, discussion, and conclusions on the extinction risk of the chambered nautilus contained in the final status review report and the proposed rule is reaffirmed in this final action.

In addition to regulatory mechanisms (considered under ESA section 4(a)(1)(D)), we considered other efforts being made to protect the chambered nautilus (pursuant to ESA section 4(b)(1)(A)). The efforts we evaluated included a non-profit campaign devoted to raising the awareness of threats to the chambered nautilus and the potential for aquaculture or artificial propagation programs to satisfy the trade industry demand for shells and restore wild populations. We considered whether such protective efforts sufficiently ameliorated the identified threats to the point that they would alter the conclusions of the extinction risk analysis for the species so as to possibly avoid the need to list. None of the information we received on the proposed rule affected our conclusions regarding conservation efforts to protect the chambered nautilus. Thus, all of the information, discussion, and conclusions on the protective efforts for the chambered nautilus contained in the final status review report and proposed rule are reaffirmed in this final action.

We have reviewed the best available scientific and commercial information, including the petition, the information in the final status review report (Miller 2018), the comments of peer reviewers, and public comments. None of the information received since publication of the proposed rule (82 FR 48948, October 23, 2017) altered our analyses or conclusions that led to our determination for the chambered nautilus. Therefore, the determination in the proposed rule is reaffirmed in this final rule and stated below.

Based on the best available scientific and commercial information, and after considering efforts being made to protect N. pompilius, we conclude that the chambered nautilus is not currently in danger of extinction throughout its range but is likely to become so in the foreseeable future throughout all of its range from threats of overutilization and the inadequacy of existing regulatory mechanisms. Therefore, we have determined that the chambered nautilus meets the definition of a “threatened species” and list it is as such throughout its range under the ESA.

Conservation measures provided for species listed as endangered or threatened under the ESA include designation of critical habitat, to the maximum extent prudent and determinable (16 U.S.C. 1533(a)(3)(A)); development of recovery plans (16 U.S.C. 1533(f)); Federal agency consultations with NMFS under section 7 of the ESA to ensure their actions are not likely to jeopardize the species or result in adverse modification or destruction of critical habitat, should it be designated (16 U.S.C. 1536); and, for endangered species, prohibitions on taking and certain other activities (16 U.S.C. 1538). Prohibitions on taking, or other protections, may also be extended through regulation to threatened species. (16 U.S.C. 1533(d)). In addition, recognition of the species' imperiled status through listing can indirectly inform voluntary conservation actions by Federal and State agencies, foreign entities, private groups, and individuals.

Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS regulations (50 CFR part 402) require Federal agencies to consult with us to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or destroy or adversely modify critical habitat. Our section 7 regulations require the responsible Federal agency to initiate formal consultation if a Federal action may affect a listed species or its critical habitat (50 CFR 402.14(a)). Examples of Federal actions that may affect the chambered nautilus include: Fishery harvest and management practices, energy projects, discharge of pollution from point sources, non-point source pollution, dredging, mining, pile-driving, military activities, toxic waste and other pollutant disposal, and shoreline development. This list is not exhaustive, and the extent to which consultation is required will depend on the particular facts of any particular proposed Federal action.

In the case of threatened species, ESA section 4(d) gives the Secretary discretion to issue such regulations as he or she deems necessary and advisable for the conservation of the species. 16 U.S.C. 1533(d). The Secretary may also decide to extend some or all the prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)) to the species.

As mentioned in the status review report and proposed rule, all nautilus species were included on Appendix II of CITES in October 2016, with the listing going into effect in January 2017. Export of nautilus products, such as shells, requires CITES permits that ensure the products were legally acquired and that the Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species (after taking into account factors such as its population status and trends, distribution, harvest, and other biological and ecological elements). In the proposed rule, this CITES protection was determined not to have ameliorated the threats to the threatened chambered nautilus because the CITES listing had only recently gone into effect and, therefore, we lacked information that would allow us to fully evaluate its adequacy in decreasing the threat of overutilization. We are still in the process of collecting information in order to evaluate the effectiveness of this CITES Appendix II listing of the chambered nautilus as a tool to ensure the sustainable trade in this species. If we determine that additional measures may be necessary to safeguard the species against future depletion of populations or potential extinction of the chambered nautilus, then we may issue protective regulations under section 4(d) or extend some or all of the prohibitions of section 9(a)(1) of the ESA that automatically apply with respect to endangered species. However, at this time, we are not proposing to apply such prohibitions to the chambered nautilus. We may consider potential protective regulations pursuant to section 4(d) for chambered nautilus in a future rulemaking.

Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(5)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the ESA is no longer necessary (i.e., the point at which it is “recovered”). 16 U.S.C. 1532(3). Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the maximum extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. Designations of critical habitat must be based on the best scientific data available and must take into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat.

At this time, we find that critical habitat for the chambered nautilus is not determinable because data sufficient to perform the required analyses are lacking. As stated in the status review report and proposed rule, while it is known that chambered nautiluses are extreme habitat specialists, found in association with steep-sloped forereefs with sandy, silty, or muddy-bottomed substrates, and in depths from around 100 meters to 500 meters, the presence of these features does not necessarily indicate the likelihood of chambered nautilus occurrence. Chambered nautiluses have a patchy distribution and, given the difficulty associated with accessing their habitat and observing the species for research purposes, very little is known regarding important aspects of the species' life history, such as reproduction and growth in the wild. As such, we find that sufficient information is not currently available to: (1) Identify the physical and biological features essential to conservation of the species at an appropriate level of specificity, particularly given the uncertainty regarding habitat features necessary to support important life history needs and the irregularity and unpredictability of chambered nautiluses within areas they are known to occur, (2) determine the specific geographical areas that contain the physical and biological features essential to conservation of the species, and (3) assess the impacts of the designation. Therefore, public input on features and areas under U.S. jurisdiction that may meet the definition of critical habitat for the chambered nautilus is invited. Additional details about specific types of information sought are provided in the Information Solicited section later in this document. Input may be sent to the Office of Protected Resources in Silver Spring, Maryland (see ADDRESSES). Please note that we are not required to respond to any input provided on this matter.

Because critical habitat is not currently determinable for the chambered nautilus, we are not proposing to designate critical habitat in this rulemaking. We request interested persons to submit relevant information regarding the identification of critical habitat of the chambered nautilus, including specific areas within the geographical area occupied by the species that include the physical or biological features essential to the conservation of the species and that may require special management considerations or protection. Areas outside the occupied geographical area should also be identified if such areas themselves are essential for the conservation of the species. ESA implementing regulations at 50 CFR 424.12(g) specify that critical habitat shall not be designated within foreign countries or in other areas outside of U.S. jurisdiction. Therefore, we request information only on potential areas of critical habitat within U.S. jurisdiction.

Section 4(b)(2) of the ESA requires the Secretary to consider the economic impact, impact on national security, and any other relevant impact of designating a particular area as critical habitat. Section 4(b)(2) also gives the Secretary discretion to consider excluding from a critical habitat designation any particular area where the Secretary finds that the benefits of exclusion outweigh the benefits of including the area in the designation, unless excluding that area will result in extinction of the species.

To inform our consideration of potential critical habitat, we also request information describing the following with respect to the relevant features or areas: (1) Activities that may affect the essential features or threats to the essential features, or to an area of potential critical habitat itself; (2) activities that could be affected by designating specific areas as critical habitat; and (3) the positive and negative economic, national security and other relevant impacts, including benefits to the recovery of the species, likely to result if specific areas are designated as critical habitat. We seek information regarding the conservation benefits of designating areas under U.S. jurisdiction as critical habitat. In keeping with the guidance provided by the Office of Management and Budget (2000; 2003), we seek information that would allow the monetization of these effects to the extent possible, as well as information on qualitative impacts.

Information submitted may include, but need not be limited to: (1) Scientific or commercial publications; (2) administrative reports, maps or other graphic materials; and (3) information received from experts. Information and data are particularly sought concerning: (1) Maps and specific information describing the amount, distribution, and use type (e.g., foraging, reproduction) of chambered nautilus habitats, as well as any additional information on occupied and unoccupied habitat areas; (2) the reasons why any habitat should or should not be included in a designation of critical habitat under sections 3(5)(A) and 4(b)(2) of the ESA; (3) information regarding the benefits of designating particular areas as critical habitat or of excluding particular areas; (4) current or planned activities in the areas that might be proposed for designation and their possible impacts; (5) any foreseeable economic or other potential impacts resulting from designation, and in particular, any impacts on small entities; (6) whether specific unoccupied areas may be essential to provide additional habitat areas for the conservation of the species; and (7) potential peer reviewers for a proposed critical habitat designation, including persons with biological and economic expertise relevant to the species, region, and designation of critical habitat. We solicit information from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party (see ADDRESSES).

A list of all references cited in this final rule is available at www.regulations.gov (identified by docket number NOAA-NMFS-2016-0098) or available upon request (see ADDRESSES). The peer review report is available at: http://www.cio.noaa.gov/services_programs/prplans/PRsummaries.html. Additional information can be found on our website at https://www.fisheries.noaa.gov/species/chambered-nautilus.

The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 1981), NMFS has concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA). (See NOAA Administrative Order 216-6A (2016) and Companion Manual “Policy and Procedures for Compliance with the National Environmental Policy Act and Related Authorities” at 2 (2017).

As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this final rule is exempt from review under Executive Order 12866. This final rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.

This rule is not an E.O. 13771 regulatory action because this rule is exempt from review under E.O. 12866.

E.O. 13132 requires agencies to take into account any federalism impacts of regulations under development. It includes specific directives for consultation in situations where a regulation will preempt state law or impose substantial direct ccompliance costs on state and local governments (unless required by statute). Neither of those circumstances is applicable to this final rule; therefore this action does not have federalism implications as that term is defined in E.O. 13132. In accordance with E.O. 13132, we determined that this final rule does not have significant federalism effects and that a federalism assessment is not required.

For the reasons set out in the preamble, 50 CFR part 223 is amended as follows:

Background

The Northeast Skate Complex Fishery Management Plan (FMP), developed by the New England Fishery Management Council and implemented in 2003, manages a complex of seven skate species (barndoor, clearnose, little, rosette, smooth, thorny, and winter skate) off the New England and mid-Atlantic coasts. Skates are harvested and managed in two different fisheries: One for food (the wing fishery) and one for lobster and crab bait (the bait fishery). Additional information on the skate fisheries can be found online at https://www.greateratlantic.fisheries.noaa.gov/sustainable/species/skate/index.html.

On July 5, 2018, we proposed management modifications to implement Framework Adjustment 5 to the Northeast Skate Complex FMP and specifications for fishing years 2018-2019 (83 FR 31354). After reviewing public comments in response to the proposed rule, we are approving Framework 5 and 2018-2019 specifications as detailed in our proposed rule.

Specifications including the acceptable biological catch (ABC), annual catch limit (ACL), annual catch target (ACT), total allowable landings (TAL) for the skate wing and bait fisheries, and possession limits may be specified for up to 2 years. We are approving the Council's recommended specifications for 2018-2019. As recommended, the 2018-2019 skate complex ABC and ACL is 31,327 mt. The ACT is set at 23,495 mt (75 percent of the ACL) to account for management uncertainty. After deducting projected dead discards and state landings, the overall TAL is 13,157 mt. Tables 1 and 2 (below) detail TALs and possession limits for the skate wing and skate bait fisheries. The skate wing and whole skate possession limits are status quo and the possession limits for barndoor skate are described further below.