Federal Register Vol. 83, No.197,

Federal Register Volume 83, Issue 197 (October 11, 2018)

Page Range51301-51619
FR Document

83_FR_197
Current View
Page and SubjectPDF
83 FR 51619 - Presidential Determination Pursuant to Section 303 of the Defense Production Act of 1950, as AmendedPDF
83 FR 51617 - Presidential Determination Pursuant to Section 303 of the Defense Production Act of 1950, as AmendedPDF
83 FR 51615 - Columbus Day, 2018PDF
83 FR 51613 - Fire Prevention Week, 2018PDF
83 FR 51451 - Sunshine Act MeetingsPDF
83 FR 51450 - Sunshine Act MeetingsPDF
83 FR 51541 - Fortress Investment Group LLC-Continuance in Control Exemption-Central Maine & Quebec Railway US Inc., Ohio River Partners Shareholder LLC, and DesertXpress Enterprises, LLCPDF
83 FR 51472 - Update to the 2016 National Preparedness for Response Exercise Program (PREP) Guidelines; CorrectionPDF
83 FR 51453 - Notice of Intent To Grant Exclusive LicensePDF
83 FR 51452 - Application to Export Electric Energy; Guzman Energy LLCPDF
83 FR 51543 - Public Notice for Waiver of Aeronautical Land-Use Assurance; General Wayne A. Downing Peoria International Airport, Peoria, ILPDF
83 FR 51567 - Interest Rate Paid on Cash Deposited To Secure U.S. Immigration and Customs Enforcement Immigration BondsPDF
83 FR 51360 - Significant New Use Rules on Certain Chemical Substances; WithdrawalPDF
83 FR 51315 - Amendment of Chicago Class B and Chicago Class C Airspace; Chicago, ILPDF
83 FR 51316 - Provisions Pertaining to Certain Investments in the United States by Foreign PersonsPDF
83 FR 51450 - Notice of Two-Year Extension of TRICARE Co-Pay Waiver at Captain James A. Lovell Federal Health Care Center Demonstration ProjectPDF
83 FR 51464 - Advisory Committee; Dermatologic and Ophthalmic Drugs Advisory Committee, RenewalPDF
83 FR 51322 - Determination and Temporary Provisions Pertaining to a Pilot Program To Review Certain Transactions Involving Foreign Persons and Critical TechnologiesPDF
83 FR 51565 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; U.S. Individual Income Tax ReturnPDF
83 FR 51542 - Washington Eastern Railroad, LLC-Change in Operators Exemption-Eastern Washington Gateway Railroad CompanyPDF
83 FR 51540 - David L. Durbano-Continuance in Control Exemption-Washington Eastern Railroad, LLCPDF
83 FR 51400 - Prohibiting Persons With Certain Criminal Convictions From Serving as Representative PayeesPDF
83 FR 51465 - Charter Renewal of the Secretary's Advisory Committee on Human Research ProtectionsPDF
83 FR 51459 - Notice of Tentative Approval and Opportunity for Public Comment and Public Hearing for Public Water System Supervision Program Revision for PennsylvaniaPDF
83 FR 51545 - Notice of OFAC Sanctions ActionsPDF
83 FR 51456 - Notice of Settlement: Arkla Terra Property Suprfund Site, Thonotosassa, Hillsborough County, FloridaPDF
83 FR 51338 - Safety Zone; Transmission Line Survey, Tennessee River Mile Marker 300 to 302, Decatur, ALPDF
83 FR 51506 - Renewed Operating License No. NPF-12; Combined License Nos. NPF-93 and NPF-94; and the General License for the Independent Spent Fuel Storage Installation (ISFSI); In the Matter of Dominion Energy, Inc., and SCANA Corporation Virgil C. Summer Nuclear Station (VCSNS), Units 1, 2, and 3, and the ISFSIPDF
83 FR 51474 - Operations Notice for the Expansion of the Moving to Work Demonstration Program; Republication and Extension of Comment PeriodPDF
83 FR 51502 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
83 FR 51334 - Safety Zone; Ohio River, Cincinnati, OHPDF
83 FR 51390 - Reef Fish Fishery of the Gulf of Mexico; 2018 Commercial Accountability Measure and Closure for Gulf of Mexico Gray TriggerfishPDF
83 FR 51399 - Fisheries of the Exclusive Economic Zone Off Alaska; Pollock in Statistical Area 620 in the Gulf of AlaskaPDF
83 FR 51449 - National Integrated Drought Information System (NIDIS); Executive Council MeetingPDF
83 FR 51544 - Agency Information Collection Activities: Request for Comments for a New Information CollectionPDF
83 FR 51444 - Certain Magnesia Carbon Bricks From the People's Republic of China: Preliminary Results of the Countervailing Duty Administrative Review; 2016PDF
83 FR 51435 - Certain Magnesia Carbon Bricks From the People's Republic of China: Preliminary Results of the Antidumping Duty Administrative Review; 2016-2017PDF
83 FR 51440 - Oil Country Tubular Goods From the Republic of Turkey: Preliminary Results of Countervailing Duty Administrative Review; 2016PDF
83 FR 51442 - Certain Oil Country Tubular Goods From the Republic of Korea: Preliminary Results of Antidumping Duty Administrative Review; 2016-2017PDF
83 FR 51439 - Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2016-2017PDF
83 FR 51436 - Laminated Woven Sacks From the Socialist Republic of Vietnam: Preliminary Determination of Sales at Less Than Fair ValuePDF
83 FR 51446 - Certain Cold-Rolled Steel Flat Products From the Republic of Korea: Preliminary Results of Countervailing Duty Administrative Review, 2016PDF
83 FR 51538 - Presidential Declaration Amendment of a Major Disaster for the State of South CarolinaPDF
83 FR 51504 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation and Liability ActPDF
83 FR 51447 - New England Fishery Management Council; Public MeetingPDF
83 FR 51539 - Presidential Declaration of a Major Disaster for Public Assistance Only for the Territory of GuamPDF
83 FR 51448 - Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Public MeetingPDF
83 FR 51304 - Korea Electric Power Corporation; Korea Hydro & Nuclear Power Co., Ltd. Advanced Power Reactor 1400PDF
83 FR 51500 - Certain Graphics Systems, Components Thereof, and Consumer Products Containing the Same; Commission Determination To Institute a Modification and Rescission Proceeding; Modification and Rescission of Certain Remedial Orders; and Termination of the ProceedingPDF
83 FR 51539 - Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of CaliforniaPDF
83 FR 51451 - Agency Information Collection Activities; Comment Request; William D. Ford Federal Direct Loan Program General Forbearance RequestPDF
83 FR 51539 - Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of NebraskaPDF
83 FR 51451 - Agency Information Collection Activities; Comment Request; Guaranty Agencies Security Self-Assessment and AttestationPDF
83 FR 51540 - Presidential Declaration Amendment of a Major Disaster for the State of CaliforniaPDF
83 FR 51538 - Presidential Declaration of a Major Disaster for Public Assistance Only for the State of New YorkPDF
83 FR 51359 - POSTNET BarcodePDF
83 FR 51512 - New Postal ProductsPDF
83 FR 51461 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
83 FR 51505 - Renewal of the Bureau of Labor Statistics Data Users Advisory CommitteePDF
83 FR 51505 - Technical Advisory Committee; Renewal of the Bureau of Labor Statistics Technical Advisory CommitteePDF
83 FR 51506 - National Advisory Committee on Occupational Safety and Health (NACOSH); Charter RenewalPDF
83 FR 51464 - Agency Information Collection Activities; Announcement of Office of Management and Budget ApprovalsPDF
83 FR 51509 - La Crosse Boiling Water Reactor; Consideration of Approval of Transfer of License and Conforming AmendmentPDF
83 FR 51448 - Proposed Information Collection; Comment Request; Fisher Behavior and Protected Species Interactions in Hawai'i and American Samoa Longline FisheriesPDF
83 FR 51465 - Advisory Committee; Antimicrobial Drugs Advisory Committee, RenewalPDF
83 FR 51521 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing of Amendment No. 2 to a Proposed Rule Change To List and Trade Shares of the GraniteShares Bitcoin ETF and the GraniteShares Short Bitcoin ETF, a Series of the GraniteShares ETP Trust, Under Rule 14.11(f)(4), Trust Issued ReceiptsPDF
83 FR 51457 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Water Quality Standards Regulation (Renewal)PDF
83 FR 51520 - Securities Exchange Act of 1934PDF
83 FR 51531 - In the Matter of the NYSE Arca, Inc. For an Order of Disapproval of Proposed Rule Change Relating To Listing and Trading of the Direxion Daily Bitcoin Bear 1X Shares, Direxion Daily Bitcoin 1.25X Bull Shares, Direxion Daily Bitcoin 1.5X Bull Shares, Direxion Daily Bitcoin 2X Bull Shares, and Direxion Daily Bitcoin 2X Bear Shares Under NYSE Arca Rule 8.200-E (File No. SR-NYSEArca-2018-02); Order Scheduling Filing of Statements on ReviewPDF
83 FR 51503 - Notice Pursuant to the National Cooperative Research and Production Act of 1993; American Society of Mechanical EngineersPDF
83 FR 51469 - Center for Scientific Review; Amended Notice of MeetingPDF
83 FR 51467 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 51471 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 51468 - National Cancer Institute; Notice of MeetingPDF
83 FR 51466 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingPDF
83 FR 51470 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingsPDF
83 FR 51466 - National Institute on Aging; Notice of Closed MeetingPDF
83 FR 51520 - In the Matter of the Cboe BZX Exchange, Inc.; For an Order of Disapproval of Proposed Rule Change To List and Trade the Shares of the GraniteShares Bitcoin ETF and the GraniteShares Short Bitcoin ETF (File No. SR-CboeBZX-2018-001); Order Scheduling Filing of Statements on ReviewPDF
83 FR 51453 - Tradewind Energy, Inc. v. Southern Company Services, Inc.; Notice of ComplaintPDF
83 FR 51504 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-ODPi, Inc.PDF
83 FR 51504 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-ASTM International StandardsPDF
83 FR 51469 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed MeetingsPDF
83 FR 51467 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed MeetingPDF
83 FR 51469 - National Institute of General Medical Sciences; Notice of Closed MeetingPDF
83 FR 51467 - National Institute of General Medical Sciences; Notice of Closed MeetingPDF
83 FR 51468 - National Institute of General Medical Sciences; Notice of Closed MeetingPDF
83 FR 51455 - Notice of Application Accepted for Filing and Soliciting Comments, Motions To Intervene, Protests, Recommendations, and Terms and Conditions; Boise Project Board of ControlPDF
83 FR 51466 - National Institute of Mental Health; Notice of Closed MeetingsPDF
83 FR 51460 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; National Volatile Organic Compound Emission Standards for Aerosol Coatings (Renewal)PDF
83 FR 51458 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Carbon Black, Ethylene, Cyanide and Spandex (Renewal)PDF
83 FR 51456 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Primary Copper Smelters (Renewal)PDF
83 FR 51435 - Notice of Public Meeting of the Tennessee Advisory CommitteePDF
83 FR 51459 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Hazardous Waste Combustors (Renewal)PDF
83 FR 51454 - Combined Notice of Filings #1PDF
83 FR 51454 - Combined Notice of FilingsPDF
83 FR 51472 - Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as AmendedPDF
83 FR 51512 - Product Change-Priority Mail Negotiated Service AgreementPDF
83 FR 51563 - Open Meeting of the Taxpayer Advocacy Panel Special Projects CommitteePDF
83 FR 51564 - Open Meeting of the Taxpayer Advocacy Panel Tax Forms and Publications Project CommitteePDF
83 FR 51563 - Open Meeting of the Taxpayer Advocacy Panel Taxpayer Communications Project CommitteePDF
83 FR 51564 - Open Meeting of the Taxpayer Advocacy Panel Joint CommitteePDF
83 FR 51564 - Open Meeting of the Taxpayer Advocacy Panel Taxpayer Assistance Center Improvements Project CommitteePDF
83 FR 51543 - Projects Approved for Minor ModificationsPDF
83 FR 51543 - Projects Rescinded for Consumptive Uses of WaterPDF
83 FR 51542 - Projects Approved for Consumptive Uses of WaterPDF
83 FR 51565 - Open Meeting of the Taxpayer Advocacy Panel Toll-Free Phone Line Project CommitteePDF
83 FR 51565 - Open Meeting of the Taxpayer Advocacy Panel Notices and Correspondence Project CommitteePDF
83 FR 51503 - Renewal of Charter of Advisory Committee on Actuarial ExaminationsPDF
83 FR 51503 - Meeting of the Advisory CommitteePDF
83 FR 51535 - Self-Regulatory Organizations; NYSE American LLC; Notice of Filing of Proposed Rule Change To Allow Flexible Exchange Equity Options Where the Underlying Security is an Exchange-Traded Fund That Is Included in the Option Penny Pilot To Be Settled in CashPDF
83 FR 51512 - Self-Regulatory Organizations: Investors Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Correct Several Typographical Errors in IEX Rule 2.160 Added by a Previous FilingPDF
83 FR 51532 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend CAB Rule 331 (Anti-Money Laundering Compliance Program) To Conform to FinCEN's Final Rule on Customer Due Diligence Requirements for Financial InstitutionsPDF
83 FR 51514 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving Proposed Rule Change To Amend FINRA Rule 7730 To Remove Computer-to-Computer Interface as a Technological Option for TRACE ReportingPDF
83 FR 51518 - Self-Regulatory Organizations: Notice of Filing and Immediate Effectiveness of a Proposed Rule Change by MIAX PEARL, LLC To Amend Exchange Rule 203, Qualification and Registration of Members and Associated Persons, Relating to Registration and Qualification Examinations Required for Members and Associated Persons of Members That Engage in Trading Activities on the ExchangePDF
83 FR 51529 - Self-Regulatory Organizations; Miami International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Exchange Rules 203, Qualification and Registration of Members and Associated Persons, 1301, Registration of Options Principals, and 1302, Registration of Representatives, Relating to Registration and Qualification Examinations Required for Members and Associated Persons of Members That Engage in Trading Activities on the ExchangePDF
83 FR 51515 - Self-Regulatory Organizations: Investors Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify Its Fee Schedule To Specify the Circumstances Under Which the Exchange Will Aggregate the Activity of Affiliated Members for Purposes of Applying the Provisions of Rule 11.170(a) Related to the IEMM ProgramPDF
83 FR 51501 - Polytetrafluoroethylene (PTFE) Resin From China and India; Scheduling of the Final Phase of Antidumping Duty InvestigationsPDF
83 FR 51449 - Developing the Administration's Approach to Consumer PrivacyPDF
83 FR 51499 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; North American Breeding Bird SurveyPDF
83 FR 51426 - Magnuson-Stevens Fishery Conservation and Management Act; Traceability Information Program for SeafoodPDF
83 FR 51470 - Submission for OMB Review; 30-Day Comment Request Extension; DERT Extramural Grantee Data Collection (NIEHS)PDF
83 FR 51540 - Privacy Act of 1974; System of RecordsPDF
83 FR 51391 - Atlantic Highly Migratory Species; Atlantic Bluefin Tuna and Northern Albacore Tuna Quotas; Atlantic Bigeye and Yellowfin Tuna Size Limit RegulationsPDF
83 FR 51336 - Safety Zone; Upper Mississippi River, Mile 182.5, St. Louis, MOPDF
83 FR 51462 - Information Collection; Federal Acquisition Regulation Part 23 RequirementsPDF
83 FR 51461 - Submission for OMB Review; Delivery SchedulesPDF
83 FR 51506 - National Council on the Arts 195th MeetingPDF
83 FR 51418 - Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Black PinesnakePDF
83 FR 51361 - Air Plan Approval; Ohio; Approval of Sulfur Dioxide RegulationsPDF
83 FR 51340 - Changes to the Claim Construction Standard for Interpreting Claims in Trial Proceedings Before the Patent Trial and Appeal BoardPDF
83 FR 51369 - Annual Civil Monetary Penalties Inflation AdjustmentPDF
83 FR 51424 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Coastal Migratory Pelagics Resources in the Gulf of Mexico and Atlantic Region; Amendment 31PDF
83 FR 51403 - Approval and Promulgation of Air Quality Implementation Plans; Wyoming; Revisions to Regional Haze State Implementation Plan; Revisions to Regional Haze Federal Implementation PlanPDF
83 FR 51570 - Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule and Critical Habitat Designation for Atlantic PigtoePDF
83 FR 51301 - General Administrative Regulations; Reinsurance Agreement-Standards for Approval; Regulations for the 2019 and Subsequent Reinsurance Years.PDF
83 FR 51366 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; Nitrogen Oxides (NOXPDF
83 FR 51313 - Airworthiness Directives; Airbus SAS AirplanesPDF
83 FR 51304 - Airworthiness Directives; The Boeing Company AirplanesPDF

Issue

83 197 Thursday, October 11, 2018 Contents Agriculture Agriculture Department See

Federal Crop Insurance Corporation

Antitrust Division Antitrust Division NOTICES Changes under the National Cooperative Research and Production Act: American Society of Mechanical Engineers, 51503-51504 2018-22092 ASTM International Standards, 51504 2018-22081 ODPi, Inc., 51504 2018-22082 Civil Rights Civil Rights Commission NOTICES Meetings: Tennessee Advisory Committee, 51435 2018-22068 Coast Guard Coast Guard RULES Safety Zones: Ohio River, Cincinnati, OH, 51334-51336 2018-22155 Transmission Line Survey, Tennessee River Mile Marker 300 to 302, Decatur, AL, 51338-51340 2018-22160 Upper Mississippi River, Mile 182.5, St. Louis, MO, 51336-51338 2018-22033 NOTICES Update to the 2016 National Preparedness for Response Exercise Program (PREP) Guidelines; Correction, 51472 2018-22214 Commerce Commerce Department See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

National Telecommunications and Information Administration

See

Patent and Trademark Office

Consumer Product Consumer Product Safety Commission NOTICES Meetings; Sunshine Act, 51450 2018-22240 Defense Department Defense Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Delivery Schedules, 51461-51462 2018-22029 Federal Acquisition Regulation, 51462-51464 2018-22030 Two-Year Extension of TRICARE Co-Pay Waiver at Captain James A. Lovell Federal Health Care Center Demonstration Project, 51450-51451 2018-22184 Defense Nuclear Defense Nuclear Facilities Safety Board NOTICES Meetings; Sunshine Act, 51451 2018-22287 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Guaranty Agencies Security Self-assessment and Attestation, 51451-51452 2018-22110 William D. Ford Federal Direct Loan Program General Forbearance Request, 51451 2018-22112 Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Application to Export Electric Energy: Guzman Energy LLC, 51452-51453 2018-22198 Intent to Grant Exclusive License, 51453 2018-22212
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Maryland; Nitrogen Oxides (NOx) Ozone Season Emissions Caps for Non-Trading Large NOX Units and Associated Revisions to General Administrative Provisions and Kraft Pulp Mill Regulation, 51366-51369 2018-21653 Ohio; Approval of Sulfur Dioxide Regulations, 51361-51365 2018-22012 Significant New Use Rules on Certain Chemical Substances; Withdrawal, 51360-51361 2018-22194 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Wyoming; Revisions to Regional Haze State Implementation Plan; Revisions to Regional Haze Federal Implementation Plan, 51403-51418 2018-21949 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Volatile Organic Compound Emission Standards for Aerosol Coatings, 51460-51461 2018-22071 NESHAP for Carbon Black, Ethylene, Cyanide and Spandex, 51458 2018-22070 NESHAP for Hazardous Waste Combustors, 51459-51460 2018-22067 NESHAP for Primary Copper Smelters, 51456 2018-22069 Water Quality Standards Regulation, 51457-51458 2018-22095 Public Hearings: Public Water System Supervision Program Revision for Pennsylvania, 51459 2018-22166 Settlements: Arkla Terra Property Superfund Site, Thonotosassa, Hillsborough County, FL, 51456-51457 2018-22164 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus SAS Airplanes, 51313-51315 2018-21605 The Boeing Company Airplanes, 51304-51313 2018-21460 Amendment of Class B and C Airspace: Chicago, IL, 51315-51316 2018-22193 NOTICES Waiver of Aeronautical Land-Use Assurance General Wayne A. Downing Peoria International Airport, Peoria, IL, 51543-51544 2018-22197 Federal Crop Federal Crop Insurance Corporation RULES General Administrative Regulations: Reinsurance Agreement—Standards for Approval; Regulations for the 2019 and Subsequent Reinsurance Years, 51301-51303 2018-21699 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 51454-51455 2018-22064 2018-22065 Complaints: Tradewind Energy, Inc. v. Southern Co. Services, Inc., 51453-51454 2018-22083 Hydroelectric Applications: Boise Project Board of Control, 51455-51456 2018-22073 Federal Highway Federal Highway Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51544-51545 2018-22138 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 51461 2018-22105 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: Atlantic Pigtoe; Critical Habitat Designation, 51570-51609 2018-21798 Designation of Critical Habitat for the Black Pinesnake, 51418-51424 2018-22013 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51464-51465 2018-22101 Charter Renewals: Antimicrobial Drugs Advisory Committee, 51465 2018-22098 Dermatologic and Ophthalmic Drugs Advisory Committee, 51464 2018-22183 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 51545-51563 2018-22165 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Delivery Schedules, 51461-51462 2018-22029 Federal Acquisition Regulation, 51462-51464 2018-22030 Geological Geological Survey NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: North American Breeding Bird Survey, 51499-51500 2018-22040 Health and Human Health and Human Services Department See

Food and Drug Administration

See

National Institutes of Health

RULES Annual Civil Monetary Penalties Inflation Adjustment, 51369-51390 2018-22005 NOTICES Charter Renewals: Advisory Committee on Human Research Protections, 51465-51466 2018-22167
Homeland Homeland Security Department See

Coast Guard

NOTICES Determinations: Illegal Immigration Reform and Immigrant Responsibility Act, 51472-51474 2018-22063
Housing Housing and Urban Development Department NOTICES Expansion of the Moving to Work Demonstration Program, 51474-51499 2018-22158 Interior Interior Department See

Fish and Wildlife Service

See

Geological Survey

Internal Revenue Internal Revenue Service NOTICES Meetings: Taxpayer Advocacy Panel Joint Committee, 51564 2018-22058 Taxpayer Advocacy Panel Notices and Correspondence Project Committee, 51565 2018-22052 Taxpayer Advocacy Panel Special Projects Committee, 51563-51564 2018-22061 Taxpayer Advocacy Panel Tax Forms and Publications Project Committee, 51564 2018-22060 Taxpayer Advocacy Panel Taxpayer Assistance Center Improvements Project Committee, 51564 2018-22057 Taxpayer Advocacy Panel Taxpayer Communications Project Committee, 51563 2018-22059 Taxpayer Advocacy Panel Toll-Free Phone Line Project Committee, 51565 2018-22053 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Cold-Rolled Steel Flat Products from the Republic of Korea, 51446-51447 2018-22124 Certain Magnesia Carbon Bricks from the People's Republic of China, 51435-51436, 51444-51446 2018-22130 2018-22131 Certain New Pneumatic Off-the-Road Tires from the People's Republic of China, 51439-51440 2018-22127 Certain Oil Country Tubular Goods from the Republic of Korea, 51442-51444 2018-22128 Laminated Woven Sacks from the Socialist Republic of Vietnam, 51436-51439 2018-22126 Oil Country Tubular Goods from the Republic of Turkey, 51440-51442 2018-22129 International Trade Com International Trade Commission NOTICES Complaints: Certain Electronic Nicotine Delivery Systems and Components Thereof, 51502-51503 2018-22156 Investigations; Determinations, Modifications, and Rulings, etc.: Certain Graphics Systems, Components Thereof, and Consumer Products Containing the Same, 51500-51501 2018-22115 Polytetrafluoroethylene Resin from China and India, 51501-51502 2018-22042 Joint Joint Board for Enrollment of Actuaries NOTICES Charter Renewals: Advisory Committee on Actuarial Examinations, 51503 2018-22051 Meetings: Advisory Committee, 51503 2018-22050 Justice Department Justice Department See

Antitrust Division

NOTICES Proposed Consent Decrees: CERCLA, 51504-51505 2018-22121
Labor Department Labor Department See

Labor Statistics Bureau

See

Occupational Safety and Health Administration

Labor Statistics Labor Statistics Bureau NOTICES Charter Renewals: Data Users Advisory Committee, 51505 2018-22104 Technical Advisory Committee, 51505-51506 2018-22103 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Delivery Schedules, 51461-51462 2018-22029 Federal Acquisition Regulation, 51462-51464 2018-22030 National Endowment for the Arts National Endowment for the Arts NOTICES Meetings: National Council on the Arts, 51506 2018-22028 National Foundation National Foundation on the Arts and the Humanities See

National Endowment for the Arts

National Institute National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: DERT Extramural Grantee Data Collection, 51470-51471 2018-22038 Meetings: Center for Scientific Review, 51467-51469, 51471-51472 2018-22089 2018-22090 2018-22091 Eunice Kennedy Shriver National Institute of Child Health and Human Development, 51469-51470 2018-22080 National Cancer Institute, 51468 2018-22088 National Heart, Lung, and Blood Institute, 51466, 51470 2018-22086 2018-22087 National Institute of Diabetes and Digestive and Kidney Diseases, 51467 2018-22079 National Institute of General Medical Sciences, 51467-51469 2018-22075 2018-22076 2018-22077 2018-22078 National Institute of Mental Health, 51466-51467 2018-22072 National Institute on Aging, 51466 2018-22085 National Oceanic National Oceanic and Atmospheric Administration RULES Atlantic Highly Migratory Species: Atlantic Bluefin Tuna and Northern Albacore Tuna Quotas; Atlantic Bigeye and Yellowfin Tuna Size Limit Regulations, 51391-51399 2018-22034 Fisheries of the Exclusive Economic Zone off Alaska: Pollock in Statistical Area 620 in the Gulf of Alaska, 51399 2018-22141 Reef Fish Fishery of the Gulf of Mexico: 2018 Commercial Accountability Measure and Closure for Gulf of Mexico Gray Triggerfish, 51390 2018-22142 PROPOSED RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Coastal Migratory Pelagics Resources in the Gulf of Mexico and Atlantic Region; Amendment 31, 51424-51426 2018-22000 Magnuson-Stevens Fishery Conservation and Management Act: Traceability Information Program for Seafood, 51426-51434 2018-22039 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Fisher Behavior and Protected Species Interactions in Hawai'i and American Samoa Longline Fisheries, 51448-51449 2018-22099 Meetings: Fisheries of the South Atlantic; Southeast Data, Assessment, and Review, 51448 2018-22118 National Integrated Drought Information System Executive Council, 51449 2018-22139 New England Fishery Management Council, 51447 2018-22120 National Telecommunications National Telecommunications and Information Administration NOTICES Developing the Administration's Approach to Consumer Privacy, 51449-51450 2018-22041 Nuclear Regulatory Nuclear Regulatory Commission RULES Standard Design Approvals: Korea Electric Power Corp., Korea Hydro and Nuclear Power Co., Ltd; Advanced Power Reactor 1400, 51304 2018-22116 NOTICES License Transfers: Dominion Energy, Inc., and SCANA Corp. Virgil C. Summer Nuclear Station, Units 1, 2, and 3, and the ISFSI, 51506-51509 2018-22159 La Crosse Boiling Water Reactor, 51509-51512 2018-22100 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Charter Renewals: National Advisory Committee on Occupational Safety and Health, 51506 2018-22102 Patent Patent and Trademark Office RULES Changes to the Claim Construction Standard for Interpreting Claims in Trial Proceedings Before the Patent Trial and Appeal Board, 51340-51359 2018-22006 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 51512 2018-22106 Postal Service Postal Service RULES POSTNET Barcode, 51359-51360 2018-22107 NOTICES Product Changes: Priority Mail Negotiated Service Agreement, 51512 2018-22062 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Columbus Day (Proc. 9801), 51615-51616 2018-22335 Fire Prevention Week (Proc. 9800), 51611-51614 2018-22333 ADMINISTRATIVE ORDERS Defense and National Security: Defense Production Act of 1950; Determination (Presidential Determination No. 2019-02 of October 5, 2018), 51617 2018-22338 Defense Production Act of 1950; Determination (Presidential Determination No. 2019-03 of October 5, 2018), 51619 2018-22340 Securities Securities and Exchange Commission NOTICES Orders: Cboe BZX Exchange, Inc., 51520-51521 2018-22084 NYSE Arca, Inc., 51520, 51531-51532 2018-22093 2018-22094 Self-Regulatory Organizations; Proposed Rule Changes: Cboe BZX Exchange, Inc., 51521-51529 2018-22096 Financial Industry Regulatory Authority, Inc., 51514-51515, 51532-51535 2018-22046 2018-22047 Investors Exchange LLC, 51512-51518 2018-22043 2018-22048 Miami International Securities Exchange, LLC, 51529-51531 2018-22044 MIAX PEARL, LLC, 51518-51520 2018-22045 NYSE American LLC, 51535-51538 2018-22049 Small Business Small Business Administration NOTICES Major Disaster Declarations: California; Amendment 1, 51539 2018-22113 California; Amendment 2, 51540 2018-22109 Nebraska; Public Assistance Only, 51539 2018-22111 New York; Public Assistance Only, 51538 2018-22108 Presidential Declaration of a Major Disaster for Public Assistance Only for the Territory of GUAM, 51539-51540 2018-22119 South Carolina; Amendment 3, 51538-51539 2018-22122 Social Social Security Administration PROPOSED RULES Prohibiting Persons with Certain Criminal Convictions from Serving as Representative Payees, 51400-51403 2018-22168 NOTICES Privacy Act; Systems of Records, 51540 2018-22035 Surface Transportation Surface Transportation Board NOTICES Continuances in Control Exemptions: David L. Durbano; Washington Eastern Railroad, LLC, 51540-51541 2018-22171 Fortress Investment Group LLC; Central Maine and Quebec Railway US Inc., Ohio River Partners Shareholder LLC, and DesertXpress Enterprises, LLC, 51541-51542 2018-22227 Washington Eastern Railroad, LLC; Eastern Washington Gateway Railroad Co., 51542 2018-22173 Susquehanna Susquehanna River Basin Commission NOTICES Projects Approved: Consumptive Uses of Water, 51542-51543 2018-22054 Minor Modifications, 51543 2018-22056 Projects Rescinded: Consumptive Uses of Water, 51543 2018-22055 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

Treasury Treasury Department See

Foreign Assets Control Office

See

Internal Revenue Service

RULES Determination and Temporary Provisions Pertaining to a Pilot Program to Review Certain Transactions Involving Foreign Persons and Critical Technologies, 51322-51334 2018-22182 Provisions Pertaining to Certain Investments in the United States By Foreign Persons, 51316-51322 2018-22187 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Individual Income Tax Return, 51565-51567 2018-22180 Interest Rate Paid on Cash Deposited to Secure U.S. Immigration and Customs Enforcement Immigration Bonds, 51567 2018-22195
Separate Parts In This Issue Part II Interior Department, Fish and Wildlife Service, 51570-51609 2018-21798 Part III Presidential Documents, 51611-51617, 51619 2018-22335 2018-22333 2018-22338 2018-22340 Reader Aids

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

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83 197 Thursday, October 11, 2018 Rules and Regulations DEPARTMENT OF AGRICULTURE Federal Crop Insurance Corporation 7 CFR Part 400 [Docket No. FCIC-17-0005] RIN 0563-AC54 General Administrative Regulations; Reinsurance Agreement—Standards for Approval; Regulations for the 2019 and Subsequent Reinsurance Years. AGENCY:

Federal Crop Insurance Corporation, USDA.

ACTION:

Final rule.

SUMMARY:

The Federal Crop Insurance Corporation (FCIC) finalizes the General Administrative Regulations; Subpart L—Reinsurance Agreement—Standards for Approval; Regulations for the 2019 and Subsequent Reinsurance Years. The intended effect of this action is to clarify and improve Subpart L to better align with the existing Standard Reinsurance Agreement (SRA) and Livestock Price Reinsurance Agreement (LPRA) and to eliminate language that is no longer relevant.

DATES:

This rule is effective November 13, 2018.

FOR FURTHER INFORMATION CONTACT:

David L. Miller, Director, Reinsurance Services Division, Federal Crop Insurance Corporation, United States Department of Agriculture (USDA), 1400 Independence Avenue SW, Stop 0801, Washington, DC 20250, telephone (202) 720-9830.

SUPPLEMENTARY INFORMATION:

Background

This rule finalizes changes to the General Administrative Regulations; Subpart L—Reinsurance Agreement—Standards for Approval; Regulations for the 2019 and Subsequent Reinsurance Years (7 CFR part 400, subpart L), that were published by FCIC on February 8, 2018, as a notice of proposed rulemaking in the Federal Register at 83 FR 5573—5576. The public was afforded 60 days to submit comments after the regulation was published in the Federal Register.

A total of one comment was received from one commenter. The commenter was an insurance company.

The public comment received regarding the proposed rule and FCIC's response to the comment is as follows:

Comment: One comment was received from an insurance company asking for a definition of “outcome” which was added to Section 400.169(b).

Response: FCIC removed the term outcome and returned Section 400.169(b) to its original language.

Executive Orders 12866, 13563, and 13771

Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866, “Regulatory Planning and Review,” and therefore, OMB has not reviewed this rule. Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” requires that, in order to manage the costs required to comply with Federal regulations, that for every new significant or economically significant regulation issued, the new costs must be offset by the elimination of at least two prior regulations. This rule is not subject to Executive Order 13771.

Paperwork Reduction Act of 1995

Pursuant to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the collections of information in this rule have been approved by the Office of Management and Budget (OMB) under control number 0563-0069.

E-Government Act Compliance

FCIC is committed to complying with the E-Government Act of 2002, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

Executive Order 13132

It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

Executive Order 13175

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

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

Regulatory Flexibility Act

FCIC certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Program requirements for the Federal crop insurance program are the same for all producers regardless of the size of their farming operation. For instance, all producers are required to submit an application and acreage report to establish their insurance guarantees and compute premium amounts, and all producers are required to submit a notice of loss and production information to determine the amount of an indemnity payment in the event of an insured cause of crop loss. Whether a producer has 10 acres or 1000 acres, there is no difference in the kind of information collected. To ensure crop insurance is available to small entities, the Federal Crop Insurance Act (Act) authorizes FCIC to waive collection of administrative fees from beginning farmers or ranchers and limited resource farmers. FCIC believes this waiver helps to ensure that small entities are given the same opportunities as large entities to manage their risks through the use of Federal crop insurance. A Regulatory Flexibility Analysis has not been prepared since this regulation does not have an impact on small entities, and, therefore, this regulation is exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 605). This regulation pertains to all legal entities wanting a Reinsurance Agreement, to insure financial stability and capacity under this regulation.

Federal Assistance Program

This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450.

Executive Order 12372

This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983.

Executive Order 12988

This rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. Interpretations of statutory and regulatory provisions are matters of general applicability and, therefore, no administrative appeals process is available and judicial review may only be brought to challenge the interpretation after seeking a determination of appeal ability by the Director of the National Appeals Division (NAD) in accordance with 7 CFR part 11. An interpretation of a policy provision not codified in the Code of Federal Regulations or any procedure used in the administration of any Federal crop insurance program are administratively appealable and the appeal provisions published at 7 CFR part 11 must be exhausted before any action for judicial review may be brought against FCIC.

Environmental Evaluation

This action is not expected to have a significant economic impact on the quality of the human environment, health, or safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed.

List of Subjects in 7 CFR Part 400

Administrative practice and procedure, crop insurance, reporting and recordkeeping requirements.

Final Rule

Accordingly, as set forth in the preamble, FCIC amends 7 CFR part 400 as follows:

PART 400—GENERAL ADMINISTRATIVE REGULATIONS 1. Revise subpart L to read as follows: Subpart L—Reinsurance Agreement—Standards for Approval; Regulations for the 2019 and Subsequent Reinsurance Years Sec. 400.161 Definitions. 400.162 Qualification ratios. 400.163 Applicability. 400.164 Eligibility for a Reinsurance Agreement. 400.165-400.168 [Reserved] 400.169 Disputes. 400.170-400.177 [Reserved] Authority:

7 U.S.C. 1506(l), 1506(o)

Subpart L—Reinsurance Agreement—Standards for Approval; Regulations for the 2019 and Subsequent Reinsurance Years.
§ 400.161 Definitions.

In addition to the terms defined in the Standard Reinsurance Agreement, Livestock Price Reinsurance Agreement and any other Reinsurance Agreement, the following terms as used in this rule are defined to mean:

Annual statutory financial statement means the annual financial statement of a Company prepared in accordance with Statutory Accounting Principles and submitted to the state insurance department if required by any state in which the Company is licensed.

Company means the insurance company that currently has or is applying to FCIC for a Reinsurance Agreement.

FCIC means the Federal Crop Insurance Corporation as authorized in section 503 of the Federal Crop Insurance Act (7 U.S.C. 1503).

MPUL means the maximum possible underwriting loss that a Company can sustain on policies it intends to reinsure after adjusting for the effect of any Reinsurance Agreement and any private reinsurance, as evaluated by FCIC.

Plan of Operations means the documentation and information submitted by a Company to apply for or maintain a Reinsurance Agreement as required by FCIC.

Quarterly Statutory Financial Statement means the quarterly financial statement of a Company prepared in accordance with Statutory Accounting Principles and submitted to the state insurance department if required by any state in which the Company is licensed.

Reinsurance Agreement means the Standard Reinsurance Agreement, Livestock Price Reinsurance Agreement or any other Reinsurance Agreement between the Company and FCIC.

§ 400.162 Qualification ratios.

(a) The eighteen qualification ratios include:

(1) Thirteen National Association of Insurance Commissioner's (NAIC) Insurance Regulatory Information System (IRIS) ratios found in paragraphs (b)(1) through (12) and (17) of this section and referenced in “Using the NAIC Insurance Regulatory Information System” distributed by NAIC, 1100 Walnut St., Suite 1500, Kansas City, MO 64106-2197;

(2) Three ratios used by A.M. Best Company found in paragraphs (b)(13), (15), and (16) of this section and referenced in Best's Key Rating Guide, A.M. Best, Ambest Road, Oldwick, N.J. 08858-0700;

(3) One ratio found in paragraph (b)(14) of this section which is formulated by FCIC and is calculated the same as the One-Year Change to Surplus IRIS ratio but for a two-year period; and

(4) One ratio found in paragraph (b)(18) of this section, which is reported on the annual statutory financial statement.

(b) The Company shall provide an explanation for any ratio falling outside of the following requirements in paragraphs (b)(1) through (18):

Ratio Ratio
  • requirement
  • (1) Gross Premium Written to Policyholders Surplus <900% (2) Net Premium Written to Policyholders Surplus <300% (3) Change in Net Premiums Writings −33% to 33% (4) Surplus Aid to Policyholders Surplus <15% (5) Two-Year Overall Operating Ratio <100% (6) Change in Policyholders Surplus −10% to 50% (7) Investment Yield 3.0% to 6.5% (8) Liabilities to Liquid Assets <100% (9) Gross Agents Balances to Policyholders Surplus <40% (10) One Year Reserve Development to Policyholders Surplus <20% (11) Two Year Reserve Development to Policyholders Surplus <20% (12) Estimated Current Reserve Deficiency to Policyholders Surplus <25% (13) Combined Ratio after Policyholder Dividend <115% (14) Two Year Change in Surplus >−10% (15) Quick Liquidity >20% (16) Return on Surplus >−5% (17) Net Change in Adjusted Policyholder Surplus −10% to 25% (18) Risk Based Capital Ratio > 200%
    § 400.163 Applicability.

    The standards contained herein shall be applicable to a Company applying for and those maintaining a Reinsurance Agreement.

    § 400.164 Eligibility for a Reinsurance Agreement.

    FCIC will offer a Reinsurance Agreement to an eligible Company as determined by FCIC. To be eligible and qualify initially or thereafter for a Reinsurance Agreement with FCIC, a Company must:

    (a) Be licensed or admitted in any state, territory, or possession of the United States;

    (b) Be licensed or admitted, or use as a policy-issuing company, an insurance company that is licensed or admitted, in each state where the Company will write policies under a Reinsurance Agreement;

    (c) Have surplus, as reported in its most recent Annual or Quarterly Statutory Financial Statement, that is at least equal to twice the MPUL amount for the Company's estimated retained premium submitted in its plan of operation.

    (d) The Company shall have the financial and operational resources, including but not limited to, organization, experience, internal controls, technical skills, positive assessment of the ratio results appearing in Section 400.162 as well as meet methodologies, data submission requirements and assessment contained in Appendix II (Plan of Operations) of the Reinsurance Agreement to meet the requirements, including addressing reasonable risks, associated with a Reinsurance Agreement, as determined by FCIC.

    (e) The Company shall provide data and demonstrate a satisfactory performance record to obtain a Reinsurance Agreement and continue to hold a Reinsurance Agreement for the reinsurance year as determined by FCIC.

    § 400.165-400.168 [Reserved]
    § 400.169 Disputes.

    (a) If the Company believes that the FCIC has taken an action that is not in accordance with the provisions of a Reinsurance Agreement except compliance issues, it may request the Deputy Administrator of Insurance Services to make a final administrative determination addressing the disputed action. The Deputy Administrator of Insurance Services will render the final administrative determination of the FCIC with respect to the applicable actions. All requests for a final administrative determination must be in writing and submitted within 45 days after receipt after the disputed action.

    (b) With respect to compliance matters, the Compliance Field Office renders an initial finding, permits the Company to respond, and then issues a final finding. If the Company believes that the Compliance Field Office's final finding is not in accordance with the applicable laws, regulations, custom or practice of the insurance industry, or FCIC approved policy and procedure, it may request the Deputy Administrator of Compliance to make a final administrative determination addressing the disputed final finding. The Deputy Administrator of Compliance will render the final administrative determination of the FCIC with respect to the final finding. All requests for a final administrative determination must be in writing and submitted within 45 days after receipt of the final finding.

    (c) A Company may also request reconsideration by the Deputy Administrator of Insurance Services of a decision of the FCIC rendered under any FCIC bulletin or directive which bulletin or directive does not interpret, explain, or restrict the terms of the Reinsurance Agreement. The Company, if it disputes the FCIC's determination, must request a reconsideration of that determination in writing, within 45 days of the receipt of the determination. The determination of the Deputy Administrator of Insurance Services will be final and binding on the Company. Such determinations will not be appealable to the Board of Contract Appeals.

    (d) Appealable final administrative determinations of the FCIC under paragraph (a) or (b) of this section may be appealed to the Board of Contract Appeals in accordance with 48 CFR part 6102 and with the provisions 7 CFR part 24.

    § 400.170-400.177 [Reserved]
    Martin R. Barbre, Manager, Federal Crop Insurance Corporation.
    [FR Doc. 2018-21699 Filed 10-10-18; 8:45 am] BILLING CODE 3410-08-P
    NUCLEAR REGULATORY COMMISSION 10 CFR Part 52 [NRC-2015-0021] Korea Electric Power Corporation; Korea Hydro & Nuclear Power Co., Ltd. Advanced Power Reactor 1400 AGENCY:

    Nuclear Regulatory Commission.

    ACTION:

    Standard design approval; issuance.

    SUMMARY:

    The U.S. Nuclear Regulatory Commission (NRC) has issued a standard design approval (SDA) to Korea Electric Power Corporation and Korea Hydro & Nuclear Power Co., Ltd (KEPCO/KHNP) for the advanced power reactor 1400 (APR1400) standard design. The SDA allows the APR1400 standard design to be referenced in an application for a construction permit or operating license, or an application for a combined license or manufacturing license under its regulations.

    DATES:

    The Standard Design Approval was issued on September 28, 2018.

    ADDRESSES:

    Please refer to Docket ID NRC-2015-0021 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:

    Federal Rulemaking Website: Go to http://www.regulations.gov and search for Docket ID NRC-2015-0021. Address questions about Docket IDs in Regulations.gov to Jennifer Borges; telephone: 301-287-9127; email: [email protected] For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

    NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected] The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in this document.

    NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

    FOR FURTHER INFORMATION CONTACT:

    William R. Ward, Office of New Reactors, telephone: 301-415-7038, email: [email protected]; U.S. Nuclear Regulatory Commission, Washington DC 20555-0001.

    SUPPLEMENTARY INFORMATION:

    The U.S. Nuclear Regulatory Commission has issued a standard design approval (SDA) to Korea Electric Power Corporation and Korea Hydro & Nuclear Power Co., Ltd (KEPCO/KHNP) for the advanced power reactor 1400 (APR1400) standard design under Subpart E, “Standard Design Approvals,” of title 10 of the Code of Federal Regulations (10 CFR) part 52, “Licenses, Certifications, and Approvals for Nuclear Power Plants.” This SDA allows the APR1400 standard design to be referenced in an application for a construction permit or operating license under 10 CFR part 50, “Domestic Licensing of Production and Utilization Facilities,” or an application for a combined license or manufacturing license under 10 CFR part 52. In addition, the Commission has issued the final safety evaluation report (FSER) (ADAMS Accession No. ML18087A364) that supports issuance of the SDA.

    Issuance of this SDA signifies completion of the NRC staff's technical review of KEPCO/KHNP's APR1400 design. The NRC staff performed its technical review of the APR1400 design control document in accordance with the standards for review of standard design approval applications set forth in 10 CFR 52.139, “Standards for Review of Applications.”

    On the basis of its evaluation and independent analyses, as described in the FSER, the NRC staff concludes that KEPCO/KHNP's application for standard design approval meets the applicable portions of 10 CFR 52.137, “Content of Applications; Technical Information,” and the review standards identified in 10 CFR 52.139.

    Copies of the APR1400 FSER and SDA have been placed in the NRC's Public Document Room, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852, for review and copying by interested persons.

    Dated at Rockville, Maryland, this 5th day of October 2018.

    For the Nuclear Regulatory Commission.

    Andrew C. Campbell, Deputy Director, Division of Licensing, Siting, and Environmental Analysis, Office of New Reactors.
    [FR Doc. 2018-22116 Filed 10-10-18; 8:45 am] BILLING CODE 7590-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0127; Product Identifier 2016-NM-161-AD; Amendment 39-19447; AD 2018-20-13] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 737 airplanes, excluding Model 737-100, -200, -200C, -300, -400, and -500 series airplanes; all Model 757-200, -200PF, -200CB, and -300 series airplanes; and all Model 767-200, -300, -300F, and -400ER series airplanes. This AD was prompted by reports of latently failed motor-operated valve (MOV) actuators of the fuel shutoff valves. This AD requires replacing certain MOV actuators of the fuel shutoff valves for the left and right engines (on certain airplanes) and of the auxiliary power unit (APU) fuel shutoff valve (on Model 757 and Model 767 airplanes); and revising the maintenance or inspection program to incorporate certain airworthiness limitations (AWLs). We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective November 15, 2018.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 15, 2018.

    ADDRESSES:

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone: 562-797-1717; internet: https://www.myboeingfleet.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0127.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0127; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is Docket Operations, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Tak Kobayashi, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3553; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes; Model 757 airplanes; and Model 767 airplanes. The NPRM published in the Federal Register on March 9, 2017 (82 FR 13073). The NPRM was prompted by reports of latently failed MOV actuators of the fuel shutoff valves. The NPRM proposed to require replacing certain MOV actuators of the fuel shutoff valves for the left and right engines (on all airplanes) and of the APU fuel shutoff valve (on Model 757 and Model 767 airplanes); and revising the maintenance or inspection program, as applicable, to incorporate certain AWLs.

    We subsequently issued a supplemental NPRM (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Model 737 airplanes, excluding Model 737-100, -200, -200C, -300, -400, and -500 series airplanes; and all Model 757 and 767 airplanes. The SNPRM published in the Federal Register on April 3, 2018 (83 FR 14207). The SNPRM proposed to add Model 737-8 airplanes and future Model 737 airplanes to the applicability.

    We are issuing this AD to address a latent failure of the actuator for the engine or APU fuel shutoff valves, which could result in the inability to shut off fuel to the engine or the APU, and, in case of certain engine or APU fires, could result in structural failure.

    Comments

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

    Request To Exclude Model 737-8 and Future Model 737

    Boeing requested that we revise the proposed AD (in the SNPRM) to exclude Model 737-8 airplanes and future Model 737 airplanes, because MOV actuator part number MA30A1017 (Boeing P/N S343T003-76) is the only certified MOV actuator for use on any future Model 737 airplanes as documented in the drawings and Illustrated Parts Catalog (IPC). The commenter stated that using airworthiness limitations to prohibit the use of parts with AD restrictions on one minor model series (Model 737 next generation (NG) airplanes) from being used on a different minor model series (Model 737-8 and future Model 737 airplanes) that does not allow the use of the restricted parts is unnecessary and implies that certified configurations and ADs can be overridden via an Advisory Circular (AC) or other means.

    We disagree with the commenter's request. The MOV actuator currently allowed on Model 737-8 and 737-9 airplanes, part number MA30A1017 (Boeing P/N S343T003-76), is the only part number certificated on those models, as documented in the manufacturer's drawings. However, manufacturer's proprietary drawings are not readily available to all affected operators, and there is no prohibition against installing MOV actuator part numbers that were determined unsafe in this AD. We have been informed by operators that the practice of rotating physically interchangeable parts among airplanes is widespread, and even a key part of their operations. In the absence of an AD or AWL that restricts the installation of the affected parts, we cannot be assured that the unsafe condition will not be introduced to Model 737-8, 737-9, and future 737 airplanes. In addition, ACs are advisory in nature and do not include mandatory actions. Therefore, ACs do not take precedence over ADs. We have not changed this AD regarding this issue.

    Request To Remove Requirement To Revise Maintenance Program

    Boeing requested that we remove paragraph (j) of the proposed AD and revise FAA AC 120-77 or other applicable advisory material to preclude installation of equipment that both Boeing and the FAA have determined cause a potential safety issue, against certified configurations. Boeing suggested that listing parts that are not approved for use on a given model sets a precedent that can become unmanageable, and that identifying parts that are acceptable for a given airplane and installation position is a more explicit and manageable approach. Boeing added that the use of AWLs to prohibit AD-driven part installations is unnecessary and implies that certified configurations and ADs can be overridden via an AC or other means.

    We disagree with the commenter's request. The FAA is currently considering revising AC 120-77 to help prevent the rotation of parts as a minor alteration. However, ACs are advisory in nature and do not include mandatory actions. Therefore, ACs cannot prohibit the installation of unsafe equipment, and they do not take precedence over ADs. In addition, the practice of rotating parts is widespread, and revising the AC will not improve the situation in a timely manner. Certain MOV actuator part numbers have been identified to be unsafe for installation at certain locations. Since those part numbers continue to be available and acceptable for installation at certain other locations, we consider the use of AWLs to prohibit specific parts installation to be a reasonable way to address the safety concern in a timely manner. We have not changed this AD regarding this issue.

    Request To Clarify Affected Part Numbers

    FedEx requested that we revise paragraphs (h)(2) and (h)(3) of the proposed AD (in the SNPRM) to state that no replacement is necessary if the MOV actuator part number is one of the following alternative part numbers: AV-31-1 (Boeing P/N S343T003-111), MA11A1265 (Boeing P/N S343T003-14), or MA11A1265-1 (Boeing P/N S343T003-41). FedEx stated that the service information specified in paragraphs (h)(2) and (h)(3) of the proposed AD (in the SNPRM) explicitly state that those alternative MOV actuator part numbers are acceptable substitutes for P/N MA30A1017 (Boeing P/N S343T003-76).

    We disagree with the commenter's request. However, we agree to clarify the requirements of paragraphs (h)(2) and (h)(3) of this AD. Paragraphs (h)(2) and (h)(3) of this AD require replacement of MOV actuator P/N MA20A2027 (Boeing P/N S343T003-56) and P/N MA30A1001 (Boeing P/N S343T003-66) with an acceptable MOV actuator part number. Those paragraphs do not state or imply that MOV actuator P/N AV-31-1 (Boeing P/N S343T003-111), P/N MA11A1265 (Boeing P/N S343T003-14), or P/N MA11A1265-1 (Boeing P/N S343T003-41) must be replaced. Therefore, we consider that adding the proposed statement is unnecessary. We have not changed this AD regarding this issue.

    Request To Add a Terminating Action Provision

    FedEx requested that we revise paragraphs (i)(2) and (i)(3) of the proposed AD (in the SNPRM) to state that the actuator installation would terminate the daily functional checks required by AWLs 28-AWL-ENG and 28-AWL-APU. The commenter added that installation of MOV actuator part number MA30A1017 (Boeing P/N S343T003-76) or an acceptable alternative part number should substantially increase the safety value.

    We disagree with the commenter's request. We have determined that accomplishing the applicable maintenance or inspection program revisions specified in paragraph (j) of this AD are the appropriate terminating actions. As discussed previously in the preamble of the SNPRM, we included the conditions (accomplishing the applicable maintenance or inspection program revisions) that would terminate the requirements of AD 2015-21-10, Amendment 39-18303 (80 FR 65130, October 26, 2015); AD 2015-19-04, Amendment 39-18267 (80 FR 55505, September 16, 2015); and AD 2015-21-09, Amendment 39-18302 (80 FR 65121, October 26, 2015). Those ADs require incorporation of the AWLs that require repetitive inspections of specific MOV actuator part numbers installed at specific locations. The requirements of those ADs may be terminated if the applicable conditions specified in paragraph (m) of this AD are met. We have not changed this AD regarding this issue.

    Request To Refer to Latest Service Information

    Southwest Airlines requested that we refer to the latest revisions of the airworthiness limitations documents.

    We agree with the commenter's request and have revised this AD to refer to the current airworthiness limitations as the appropriate source of service information, and have included earlier revisions of the service information as credit in this AD. There are no changes to the required actions of this AD because the tasks that must be incorporated into the maintenance or inspection program are not changed in Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, Revision June 2018; Boeing 757 Maintenance Planning Data (MPD) Document, Section 9, Airworthiness Limitations (AWLS) and Certification Maintenance Requirements (CMRs), D622N001-9, Revision May 2018; or Boeing 767-200/300/300F/400 Special Compliance Items/Airworthiness Limitations, D622T001-9-04, Revision March 2018; except for Task 28-AWL-23 for Model 767-200, -300, -300F, and -400ER series airplanes, which adds instructions that further describe the conditions for performing electrical bonding resistance measurements, in addition to being more descriptive regarding cap seal application.

    Conclusion

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

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

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed the following service information.

    • Boeing Service Bulletin 737-28-1314, dated November 17, 2014, describes procedures for installing new MOV actuators of the fuel shutoff valves for the left and right engines on Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes.

    • Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, Revision June 2018, describes AWLs for fuel tank ignition prevention on Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes.

    • Boeing Special Attention Service Bulletin 757-28-0138, Revision 1, dated June 19, 2017, describes procedures for installing new MOV actuators of the fuel shutoff valves for the left and right engines, and of the APU fuel shutoff valve, on Model 757 airplanes.

    • Boeing 757 Maintenance Planning Data (MPD) Document, Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622N001-9, Revision May 2018, describes AWLs for fuel tank ignition prevention on Model 757 airplanes.

    • Boeing Service Bulletin 767-28-0115, Revision 1, dated June 2, 2016, describes procedures for installing new MOV actuators of the fuel shutoff valves for the left and right engines, and of the APU fuel shutoff valve, on Model 767 airplanes.

    • Boeing 767-200/300/300F/400 Special Compliance Items/Airworthiness Limitations, D622T001-9-04, Revision March 2018, describes AWLs for fuel tank ignition prevention on Model 767 airplanes.

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

    Costs of Compliance

    We estimate that this AD affects 2,557 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspection and replacement Model 737 (1,440 airplanes) Up to 6 work-hours × $85 per hour = Up to $510 Up to $12,000 Up to $12,510 Up to $18,014,400. Inspection and replacement Model 757 (675 airplanes) Up to 9 work-hours × $85 per hour = Up to $765 Up to $18,000 Up to $18,765 Up to $12,666,375. Inspection and replacement Model 767 (442 airplanes) Up to 9 work-hours × $85 per hour = Up to $765 Up to $18,000 Up to $18,765 Up to $8,294,130.

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

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-20-13 The Boeing Company: Amendment 39-19447; Docket No. FAA-2017-0127; Product Identifier 2016-NM-161-AD. (a) Effective Date

    This AD is effective November 15, 2018.

    (b) Affected ADs

    This AD affects AD 2015-21-09, Amendment 39-18302 (80 FR 65121, October 26, 2015) (“AD 2015-21-09”); AD 2015-19-04, Amendment 39-18267, (80 FR 55505, September 16, 2015) (“AD 2015-19-04”); and AD 2015-21-10, Amendment 39-18303 (80 FR 65130, October 26, 2015) (“AD 2015-21-10”).

    (c) Applicability

    This AD applies to all The Boeing Company airplanes, certificated in any category, identified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD.

    (1) Model 737 airplanes, excluding Model 737-100, Estimated -200, -200C, -300, -400, and -500 series airplanes.

    (2) Model 757-200, -200PF, -200CB, and -300 series airplanes.

    (3) Model 767-200, -300, -300F, and -400ER series airplanes.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by reports of latently failed motor-operated valve (MOV) actuators of the fuel shutoff valves. We are issuing this AD to prevent a latent failure of the actuator for the engine or auxiliary power unit (APU) fuel shutoff valves, which could result in the inability to shut off fuel to the engine or the APU, and, in case of certain engine or APU fires, could result in structural failure.

    (f) Compliance

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

    (g) Inspection To Determine Part Number (P/N)

    (1) For Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes: Within 8 years after the effective date of this AD, do an inspection to determine the part numbers of the MOV actuators of the fuel shutoff valves for the left and right engines, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 737-28-1314, dated November 17, 2014. A review of airplane maintenance records is acceptable in lieu of this inspection if the part number of the MOV actuator at each location can be conclusively determined from that review.

    (2) For airplanes identified in paragraphs (c)(2) and (c)(3) of this AD: Within 8 years after the effective date of this AD, do an inspection to determine the part numbers of the MOV actuators of the fuel shutoff valves for the left and right engines, and of the APU fuel shutoff valve, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-28-0138, Revision 1, dated June 19, 2017 (“SB 757-28-0138 R1”); or Boeing Service Bulletin 767-28-0115, Revision 1, dated June 2, 2016 (“SB 767-28-0115 R1”); as applicable. A review of airplane maintenance records is acceptable in lieu of this inspection if the part number of the MOV actuator at each location can be conclusively determined from that review.

    (h) Replacement

    (1) For Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes on which any MOV actuator having P/N MA20A2027 or P/N MA30A1001 (Boeing P/N S343T003-56 or Boeing P/N S343T003-66, respectively), is found during the inspection required by paragraph (g)(1) of this AD: Within 8 years after the effective date of this AD, replace each affected MOV actuator with an MOV actuator having P/N MA30A1017 (Boeing P/N S343T003-76), in accordance with the Accomplishment Instructions of Boeing Service Bulletin 737-28-1314, dated November 17, 2014. Where Boeing Service Bulletin 737-28-1314, dated November 17, 2014, specifies the installation of a new MOV actuator, this AD allows the installation of a new or serviceable MOV actuator. While not required by this AD, the Accomplishment Instructions specified in Boeing Service Bulletin 737-28-1314, dated November 17, 2014, for replacing MOV actuators having Boeing P/N S343T003-66 or Boeing P/N S343T003-56 may be used for replacing MOV actuators having P/N MA20A1001-1 (Boeing P/N S343T003-39).

    (2) For airplanes identified in paragraph (c)(2) of this AD on which any MOV actuator having P/N MA20A2027 or P/N MA30A1001 (Boeing P/N S343T003-56 or Boeing P/N S343T003-66, respectively) is found during the inspection required by paragraph (g)(2) of this AD: Within 8 years after the effective date of this AD, replace each affected MOV actuator with an MOV actuator having P/N MA30A1017 (Boeing P/N S343T003-76), P/N AV-31-1 (Boeing P/N S343T003-111), or P/N MA11A1265-1 (Boeing P/N S343T003-41), in accordance with the Accomplishment Instructions of SB 757-28-0138 R1. Where SB 757-28-0138 R1 specifies the installation of a new MOV actuator, this AD allows the installation of a new or serviceable MOV actuator. While not required by this AD, the Accomplishment Instructions specified in SB 757-28-0138 R1 for replacing MOV actuators having Boeing P/N S343T003-66 or Boeing P/N S343T003-56 may be used for replacing MOV actuators having P/N MA20A1001-1 (Boeing P/N S343T003-39).

    (3) For airplanes identified in paragraph (c)(3) of this AD on which any MOV actuator having P/N MA20A2027 (Boeing P/N S343T003-56) or P/N MA30A1001 (Boeing P/N S343T003-66) is found during the inspection required by paragraph (g)(2) of this AD: Within 8 years after the effective date of this AD, replace each affected MOV actuator with an MOV actuator having P/N MA30A1017 (Boeing P/N S343T003-76), P/N AV-31-1 (Boeing P/N S343T003-111), P/N MA11A1265 (Boeing P/N S343T003-14), or P/N MA11A1265-1 (Boeing P/N S343T003-41), in accordance with the Accomplishment Instructions of SB 767-28-0115 R1. Where SB 767-28-0115 R1 specifies the installation of a new MOV actuator, this AD allows the installation of a new or serviceable MOV actuator. While not required by this AD, the Accomplishment Instructions specified in SB 767-28-0115 R1, for replacing MOV actuators having Boeing P/N S343T003-66 or Boeing P/N S343T003-56 may be used for replacing MOV actuators having P/N MA20A1001-1 (Boeing P/N S343T003-39).

    (i) Maintenance or Inspection Program Revision

    (1) For Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes with an original certificate of airworthiness or original export certificate of airworthiness issued on or before the effective date of this AD: Prior to or concurrently with the actions required by paragraph (h)(1) of this AD or within 30 days after the effective date of this AD, whichever is later, revise the maintenance or inspection program, as applicable, to add the airworthiness limitations (AWLs) specified in paragraphs (i)(1)(i), (i)(1)(ii), and (i)(1)(iii) of this AD. The initial compliance time for accomplishing the actions required by AWL No. 28-AWL-24 is within 6 years since the most recent inspection was performed in accordance with AWL No. 28-AWL-24, or within 6 years since the actions specified in Boeing Alert Service Bulletin 737-28A1207 were accomplished, whichever is later.

    (i) AWL No. 28-AWL-21, Motor Operated Valve (MOV) Actuator—Lightning and Fault Current Protection Electrical Bond, as specified in Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, Revision June 2018.

    (ii) AWL No. 28-AWL-22, Motor Operated Valve (MOV) Actuator—Electrical Design Feature, as specified in Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, Revision June 2018.

    (iii) AWL No. 28-AWL-24, Spar Valve Motor Operated Valve (MOV) Actuator—Lightning and Fault Current Protection Electrical Bond, as specified in Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, Revision June 2018.

    (2) For airplanes identified in paragraph (c)(2) of this AD: Prior to or concurrently with the actions required by paragraph (h)(2) of this AD, revise the maintenance or inspection program, as applicable, to add the AWLs specified in paragraphs (i)(2)(i), (i)(2)(ii), and (i)(2)(iii) of this AD. The initial compliance time for accomplishing the actions required by AWL No. 28-AWL-25 is within 6 years since the most recent inspection was performed in accordance with AWL No. 28-AWL-25, or within 6 years since the actions specified in Boeing Alert Service Bulletin 757-28A0088 were accomplished, whichever is later.

    (i) AWL No. 28-AWL-23, Motor Operated Valve (MOV) Actuator—Lightning and Fault Current Protection Electrical Bond, as specified in Boeing 757 Maintenance Planning Data (MPD) Document, Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622N001-9, Revision May 2018.

    (ii) AWL No. 28-AWL-24, MOV Actuator—Electrical Design Feature, as specified in Boeing 757 Maintenance Planning Data (MPD) Document, Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622N001-9, Revision May 2018.

    (iii) AWL No. 28-AWL-25, Motor Operated Valve (MOV) Actuator—Lightning and Fault Current Protection Electrical Bond, as specified in Boeing 757 Maintenance Planning Data (MPD) Document, Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622N001-9, Revision May 2018.

    (3) For airplanes identified in paragraph (c)(3) of this AD with an original certificate of airworthiness or original export certificate of airworthiness issued on or before the effective date of this AD: Prior to or concurrently with the actions required by paragraph (h)(3) of this AD, revise the maintenance or inspection program, as applicable, to add the AWLs specified in paragraphs (i)(3)(i) and (i)(3)(ii) of this AD.

    (i) AWL No. 28-AWL-23, Motor Operated Valve (MOV) Actuator—Lightning and Fault Current Protection Electrical Bond, as specified in Boeing 767-200/300/300F/400 Special Compliance Items/Airworthiness Limitations, D622T001-9-04, Revision March 2018.

    (ii) AWL No. 28-AWL-24, Motor Operated Valve (MOV) Actuator—Electrical Design Feature, as specified in Boeing 767-200/300/300F/400 Special Compliance Items/Airworthiness Limitations, D622T001-9-04, Revision March 2018.

    (j) Maintenance or Inspection Program Revision for Parts Installation Prohibition

    (1) For Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes: After accomplishing the actions required by paragraphs (g)(1), (h)(1), and (i)(1) of this AD, as applicable, on all airplanes in an operator's fleet, and within 8 years after the effective date of the AD, revise the maintenance or inspection program, as applicable, by incorporating the AWL specified in figure 1 to paragraph (j)(1) of this AD.

    ER11OC18.000

    (2) For airplanes identified in paragraph (c)(2) of this AD: After accomplishing the actions required by paragraphs (g)(2), (h)(2), and (i)(2) of this AD, as applicable, on all airplanes in an operator's fleet, and within 8 years after the effective date of the AD, revise the maintenance or inspection program, as applicable, by incorporating the AWL specified in figure 2 to paragraph (j)(2) of this AD.

    ER11OC18.001

    (3) For airplanes identified in paragraph (c)(3) of this AD: After accomplishing the actions required by paragraphs (g)(2), (h)(3), and (i)(3) of this AD, as applicable, on all airplanes in an operator's fleet, and within 8 years after the effective date of the AD, revise the maintenance or inspection program, as applicable, by incorporating the AWL specified in figure 3 to paragraph (j)(3) of this AD.

    ER11OC18.002

    (4) For airplanes identified in paragraph (c)(1) of this AD, excluding Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes: Within 30 days since the date of issuance of the original standard airworthiness certificate or the date of issuance of the original export certificate of airworthiness, or within 30 days after the effective date of this AD, whichever is later, revise the maintenance or inspection program, as applicable, by incorporating the AWL specified in figure 4 to paragraph (j)(4) of this AD.

    ER11OC18.003 (k) No Alternative Actions, Intervals, and Critical Design Configuration Control Limitations (CDCCLs)

    (1) After the maintenance or inspection program has been revised as required by paragraph (i) of this AD, no alternative actions (e.g., inspections), intervals, or CDCCLs, may be used unless the actions, intervals, and CDCCLs are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (o) of this AD.

    (2) After the maintenance or inspection program has been revised as required by paragraph (j) of this AD, no alternative actions (e.g., inspections), intervals, or CDCCLs, may be used unless the actions, intervals, and CDCCLs are approved as an AMOC in accordance with the procedures specified in paragraph (o) of this AD.

    (l) Parts Installation Prohibition

    (1) For Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes: As of the effective date of this AD, no person may replace an MOV actuator having P/N MA30A1017 (Boeing P/N S343T003-76) with an MOV actuator having P/N MA20A2027 or P/N MA30A1001 (Boeing P/N S343T003-56 or Boeing P/N S343T003-66, respectively) for the left engine and right engine fuel shutoff valves.

    (2) For airplanes identified in paragraph (c)(2) of this AD: As of the effective date of this AD, no person may replace an MOV actuator having P/N AV-31-1 (Boeing P/N S343T003-111), P/N MA11A1265 (Boeing P/N S343T003-14), P/N MA11A1265-1 (Boeing P/N S343T003-41), or P/N MA30A1017 (Boeing P/N S343T003-76) with an MOV actuator having P/N MA30A1001 (Boeing P/N S343T003-66) or P/N MA20A2027 (Boeing P/N S343T003-56) for the left engine and right engine fuel shutoff valves and the APU fuel shutoff valve.

    (3) For airplanes identified in paragraph (c)(3) of this AD: As of the effective date of this AD, no person may replace an MOV actuator having P/N AV-31-1 (Boeing P/N S343T003-111), P/N MA11A1265 (Boeing P/N S343T003-14), P/N MA11A1265-1 (Boeing P/N S343T003-41), or P/N MA30A1017 (Boeing P/N S343T003-76) with an MOV actuator having P/N MA30A1001 (Boeing P/N S343T003-66) or P/N MA20A2027 (Boeing P/N S343T003-56) for the left engine and right engine fuel shutoff valves and the APU fuel shutoff valve.

    (4) For airplanes identified in paragraph (c)(1) of this AD, excluding Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes: As of the effective date of this AD, no person may install an MOV actuator having P/N MA20A1001-1 (Boeing P/N S343T003-39) or replace an MOV actuator with an MOV actuator having P/N MA20A2027 or P/N MA30A1001 (Boeing P/N S343T003-56 or Boeing P/N S343T003-66, respectively) for the left engine and right engine fuel shutoff valves.

    (m) Terminating Action

    (1) For Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes: Accomplishing the actions required by paragraph (j)(l) of this AD terminates the requirements of paragraph (l)(1) of this AD and all requirements of AD 2015-21-10.

    (2) For airplanes identified in paragraph (c)(2) of this AD: Accomplishing the action required by paragraph (j)(2) of this AD terminates the requirements of paragraph (l)(2) of this AD and all requirements of AD 2015-19-04.

    (3) For airplanes identified in paragraph (c)(3) of this AD: Accomplishing the action required by paragraph (j)(3) of this AD terminates the requirements of paragraph (l)(3) of this AD and all requirements of AD 2015-21-09.

    (4) For airplanes identified in paragraph (c)(1) of this AD, excluding Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes: Accomplishing the action required by paragraph (j)(4) of this AD terminates the requirements of paragraph (l)(4) of this AD.

    (n) Credit for Previous Actions

    (1) This paragraph provides credit for the actions specified in paragraph (g)(2) or (h)(2) of this AD, as applicable, if those actions were performed before the effective date of this AD using Boeing Special Attention Service Bulletin 757-28-0138, dated May 18, 2016.

    (2) This paragraph provides credit for the actions specified in paragraph (g)(2) or (h)(3) of this AD, as applicable, if those actions were performed before the effective date of this AD using Boeing Service Bulletin 767-28-0115, dated September 10, 2015.

    (3) For Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes with an original certificate of airworthiness or original export certificate of airworthiness issued on or before the effective date of this AD, this paragraph provides credit for the actions specified in paragraph (i)(1) of this AD if those actions were performed before the effective date of this AD using Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, Revision July 2016, Revision September 2016, Revision January 2017, Revision April 2018, or Revision May 2018; or Boeing 737-600/700/700C/800/900/900ER Maintenance Planning Data (MPD) Document, Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D626A001-CMR, Revision October 2014, Revision November 2014, Revision January 2015, or Revision April 2016.

    (4) For airplanes identified in paragraph (c)(2) of this AD, this paragraph provides credit for the actions specified in paragraph (i)(2) of this AD if those actions were performed before the effective date of this AD using Boeing 757 Maintenance Planning Data (MPD) Document, Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622N001-9, Revision January 2016, Revision July 2016, or Revision February 2017.

    (5) For airplanes identified in paragraph (c)(3) of this AD with an original certificate of airworthiness or original export certificate of airworthiness issued on or before the effective date of this AD, this paragraph provides credit for the actions specified in paragraph (i)(3) of this AD if those actions were performed before the effective date of this AD using Boeing 767 Special Compliance Items/Airworthiness Limitations, D622T001-9-04, Revision July 2015, Revision March 2016, Revision May 2016, Revision May 2016 R1, or Revision June 2016; or Boeing 767-200/300/300F/400 Special Compliance Items/Airworthiness Limitations, D622T001-9-04, Revision January 2018.

    (6) For airplanes identified in paragraph (c)(3) of this AD with an original certificate of airworthiness or original export certificate of airworthiness issued on or before the effective date of this AD, this paragraph provides credit for the actions specified in paragraph (i)(3)(ii) of this AD if those actions were performed before the effective date of this AD using Boeing 767 Special Compliance Items/Airworthiness Limitations, D622T001-9-04, Revision October 2014.

    (o) Alternative Methods of Compliance (AMOCs)

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

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

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

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

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

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

    (p) Related Information

    (1) For more information about this AD, contact Tak Kobayashi, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3553; email: [email protected]

    (2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (q)(3) and (q)(4) of this AD.

    (q) Material Incorporated by Reference

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

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

    (i) Boeing 737-600/700/700C/800/900/900ER Special Compliance Items/Airworthiness Limitations, D626A001-9-04, Revision June 2018.

    (ii) Boeing 757 Maintenance Planning Data (MPD) Document, Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622N001-9, Revision May 2018.

    (iii) Boeing 767-200/300/300F/400ER Special Compliance Items/Airworthiness Limitations, D622T001-9-04, Revision March 2018.

    (iv) Boeing Service Bulletin 737-28-1314, dated November 17, 2014.

    (v) Boeing Service Bulletin 767-28-0115, Revision 1, dated June 2, 2016.

    (vi) Boeing Special Attention Service Bulletin 757-28-0138, Revision 1, dated June 19, 2017.

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

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

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

    Issued in Des Moines, Washington, on September 14, 2018. John P. Piccola, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-21460 Filed 10-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0410; Product Identifier 2018-NM-030-AD; Amendment 39-19444; AD 2018-20-10] RIN 2120-AA64 Airworthiness Directives; Airbus SAS Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all Airbus SAS Model A350-941 airplanes. This AD was prompted by an inspection on the production line that revealed evidence of paint peeling on the forward and aft cargo frame forks around the hook bolt hole. This AD requires a detailed visual inspection for any deficiency of the frame forks around the hook bolt hole on certain forward and aft cargo doors and applicable corrective actions. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective November 15, 2018.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 15, 2018.

    ADDRESSES:

    For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAL, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; internet http://www.airbus.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0410.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0410; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is Docket Operations, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Kathleen Arrigotti, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3218.

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A350-941 airplanes. The NPRM published in the Federal Register on May 15, 2018 (83 FR 22414). The NPRM was prompted by an inspection on the production line that revealed evidence of paint peeling on the forward and aft cargo frame forks around the hook bolt hole. The NPRM proposed to require a detailed visual inspection for any deficiency of the frame forks around the hook bolt hole on certain forward and aft cargo doors and applicable corrective actions.

    We are issuing this AD to address paint peeling on the forward and aft cargo doors that could develop into galvanic corrosion, which could lead to cargo door failure and possibly result in decompression of the airplane and injury to occupants.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0031, dated January 31, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A350-941 airplanes. The MCAI states:

    Following an inspection on the production line, paint peeling was found on forward and aft cargo door frame forks around the hook bolt hole. Subsequent investigations determined this had been caused by incorrect masking method during application of primer, top coat and Tartaric Sulfuric Anodizing (TSA) layer. As the cargo doors are located in an area with high corrosion sensitivity, where a surface protection with primer, top coat and TSA is specified, in case of paint peeling off, galvanic corrosion could develop.

    This condition, if not detected and corrected, could lead to cargo door failure, possibly resulting in decompression of the aeroplane and injury to occupants.

    To address this potential unsafe condition, Airbus identified the affected parts and issued the SB [Airbus Service Bulletin (SB) A350-52-P011, dated May 12, 2017] to provide inspection instructions.

    For the reasons described above, this [EASA] AD requires a one-time detailed [visual] inspection (DET) of the affected parts [for discrepancies] and, depending on findings, accomplishment of applicable corrective action(s) [i.e., restoration of the anti-corrosion protection of frame forks of affected parts].

    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-2018-0410.

    Comments

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

    Clarification of Definition of Serviceable Part

    We have changed paragraph (g)(2) in this AD by adding that a serviceable part is also “a part identified as an affected part, and the actions in paragraph (i) of this AD have been accomplished on that part.” This change has been coordinated with EASA and Airbus.

    Conclusion

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

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

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

    Related Service Information Under 1 CFR Part 51

    Airbus SAS has issued Airbus Service Bulletin A350-52-P011, dated May 12, 2017. This service information describes procedures for a one-time detailed visual inspection of the frame forks around the hook bolt hole on the forward and aft cargo door, and applicable corrective 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.

    Costs of Compliance

    We estimate that this AD affects 9 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S.
  • operators
  • Inspection Up to 9 work-hours × $85 per hour = $765 $0 Up to $765 Up to $6,885.

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

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Restoration 9 work-hours × $85 per hour = $765 $50 $815.

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

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-20-10 Airbus SAS: Amendment 39-19444; FAA-2018-0410; Product Identifier 2018-NM-030-AD. (a) Effective Date

    This AD is effective November 15, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Airbus SAS Model A350-941 airplanes, certificated in any category, all manufacturer serial numbers.

    (d) Subject

    Air Transport Association (ATA) of America Code 52, Doors.

    (e) Reason

    This AD was prompted by an inspection on the production line that revealed evidence of paint peeling on the forward and aft cargo frame forks around the hook bolt hole. We are issuing this AD to address paint peeling on the forward and aft cargo doors that could develop into galvanic corrosion, which could lead to cargo door failure and possibly result in decompression of the airplane and injury to occupants.

    (f) Compliance

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

    (g) Definitions

    (1) For the purpose of this AD, the affected parts are forward cargo doors, part number (P/N) WG102AGAAAAF and P/N WG102AKAAAAF, serial number (S/N) UH10007 through UH10022 inclusive, except S/N UH10009; and aft cargo doors P/N WH102AHAAAAC and P/N WH102ALAAAAC, S/N UH10008 through UH10022 inclusive.

    (2) For the purpose of this AD, a serviceable forward cargo door or a serviceable aft cargo door is a part that is not identified as an affected part, or is a part identified as an affected part on which a detailed visual inspection specified in Airbus Service Bulletin A350-52-P011, dated May 12, 2017, has been done and there were no findings, or is a part identified as an affected part, and the actions in paragraph (i) of this AD have been accomplished on that part.

    (h) Inspection

    Within 36 months since the date of issuance of the original standard airworthiness certificate or date of issuance of the original export certificate of airworthiness, or within 90 days after the effective date of this AD, whichever occurs later, accomplish a detailed visual inspection of each affected part for any deficiency (e.g., any paint peel-off of the hook bolt hole of the frame fork), in accordance with the Accomplishment Instructions of Airbus Service Bulletin A350-52-P011, dated May 12, 2017.

    (i) Corrective Actions

    If, during any detailed visual inspection required by paragraph (h) of this AD, any deficiency is found, before next flight, restore the anti-corrosion protection of frame forks of the affected part, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A350-52-P011, dated May 12, 2017, except as required by paragraph (j) of this AD.

    (j) Exceptions to Service Information Specifications

    Where Airbus Service Bulletin A350-52-P011, dated May 12, 2017, specifies contacting Airbus, and specifies that action as RC: This AD requires repair using a method approved in accordance with the procedures specified in paragraph (l)(2) of this AD.

    (k) Parts Installation Limitation

    From the effective date of this AD, it is allowed to install on an airplane a forward cargo door or an aft cargo door, provided the part is a serviceable forward cargo door or serviceable aft cargo door as defined in paragraph (g)(2) of this AD.

    (l) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

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

    (3) Required for Compliance (RC): Except as required by paragraph (j) of this AD: If any service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.

    (m) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018-0031, dated January 31, 2018, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0410.

    (2) For more information about this AD, contact Kathleen Arrigotti, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3218.

    (n) Material Incorporated by Reference

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

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

    (i) Airbus Service Bulletin A350-52-P011, dated May 12, 2017.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; internet http://www.airbus.com.

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

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

    Issued in Des Moines, Washington, on September 19, 2018. John P. Piccola, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-21605 Filed 10-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0632; Airspace Docket No. 17-AWA-4] RIN 2120-AA66 Amendment of Chicago Class B and Chicago Class C Airspace; Chicago, IL AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule, technical amendment.

    SUMMARY:

    This action incorporates this amendment into FAA Order 7400.11C for a final rule published in the Federal Register of August 16, 2018, for the above titled, Amendment of Chicago Class B and Chicago Class C Airspace; Chicago, IL.

    DATES:

    Effective date: 0901 UTC, October 11, 2018. The Director of the Federal Register approves this incorporation by reference action under Title 1 Code of Federal Regulations part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

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

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

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

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

    History

    The FAA published a final rule in the Federal Register for Docket No. FAA-2018-0632 (83 FR 40662, August 16, 2018), amending the Chicago Class B and Chicago Class C airspace in Chicago, IL. The amendment was published under Order 7400.11B (dated August 3, 2017, and effective September 15, 2017), but became effective under Order 7400.11C (dated August 13, 2018, and effective September 15, 2018). This action incorporates this rule into the current FAA Order 7400.11C.

    Class B airspace designations are published in paragraph 3000 and Class C airspace designations are published in paragraph 4000 of FAA Order 7400.11C, dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR 71.1. The Class B and Class C airspace designations listed in this document will be subsequently published in the Order.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Rule

    This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by incorporating this amendment into FAA Order 7400.11C for a final rule published in the Federal Register of August 16, 2018, for the above titled, Amendment of Chicago Class B and Chicago Class C Airspace; Chicago, IL.

    Accordingly, as this is an administrative correction to update the final rule amendment into FAA Order 7400.11C, notice and public procedure under 5 U.S.C. 553(b) are unnecessary. Also, to bring this rule and legal description current, I find that good cause exists, under 5 U.S.C. 553(d), for making this amendment effective in less than 30 days.

    Regulatory Notices and Analyses

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

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority:

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

    § 71.1 [Amended]
    2. Section 71.1 is revised to read as follows:

    For Docket No. FAA-2018-0632; Airspace Docket No. 17-AWA-4 (83 FR 40662, August 16, 2018). On page 40662, column 3, line 59, and page 40663, column 1, line 10, under ADDRESSES; and on page 40663, column 2, line 15, and line 17, under Availability and Summary of Documents for Incorporation by Reference remove “. . . FAA Order 7400.11B . . .” and add in its place “. . . FAA Order 7400.11C . . .”.

    On page 40663, column 1, line 66, under History remove “. . . FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, . . .” and add in its place “. . . FAA Order 7400.11C dated August 13, 2018, and effective September 15, 2018 . . .”.

    On page 40663, column 2, line 12, under Availability and Summary of Documents for Incorporation by Reference; and on page 40664, column 1, line 22, under Amendatory Instruction 2 remove “. . . FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, . . .” and add in its place “. . . FAA Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018, . . .”.

    Issued in Washington, DC, on October 5, 2018. Rodger A. Dean Jr., Manager, Airspace Policy Group.
    [FR Doc. 2018-22193 Filed 10-10-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF THE TREASURY Office of Investment Security 31 CFR Part 800 RIN 1505-AC60 Provisions Pertaining to Certain Investments in the United States by Foreign Persons AGENCY:

    Office of Investment Security, Department of the Treasury.

    ACTION:

    Interim rule.

    SUMMARY:

    This interim rule sets forth amendments to the regulations in part 800 of 31 CFR that implement, and make updates consistent with, certain provisions of the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA). Among other things, this interim rule implements certain provisions of FIRRMA that became immediately effective upon its enactment and provides clarity as to the current process and procedures with respect to the reviews and investigations undertaken by the Committee on Foreign Investment in the United States pursuant to part 800, in light of FIRRMA.

    DATES:

    Effective date: These provisions are effective October 11, 2018.

    Applicability date: See § 800.103.

    Comment date: Written comments must be received by November 10, 2018.

    ADDRESSES:

    Written comments on the interim rule may be submitted through one of two methods:

    Electronic Submission of Comments: Interested persons may submit comments electronically through the Federal government eRulemaking Portal at https://www.regulations.gov. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt, and enables the Department to make them available to the public. Comments submitted electronically through the https://www.regulations.gov website can be viewed by other commenters and interested members of the public.

    Mail: Send to U.S. Department of the Treasury, Attention: Thomas Feddo, Deputy Assistant Secretary for Investment Security, 1500 Pennsylvania Avenue, NW, Washington, DC 20220.

    In general, Treasury will post all comments to www.regulations.gov without change, including any business or personal information provided, such as names, addresses, email addresses, or telephone numbers. All comments received, including attachments and other supporting material, will be part of the public record and subject to public disclosure. You should only submit information that you wish to make publicly available.

    FOR FURTHER INFORMATION CONTACT:

    For questions about this interim rule, contact: Thomas Feddo, Deputy Assistant Secretary for Investment Security; Laura Black, Director of Investment Security Policy and International Relations; Meena Sharma, Senior Policy Advisor; or Juliana Gabrovsky, Policy Advisor, at U.S. Department of the Treasury, 1500 Pennsylvania Avenue, NW, Washington, DC 20220, telephone: (202) 622-3425, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    On August 13, 2018, President Trump signed into law the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), Subtitle A of Title XVII of Pub. L. 115-232 (Aug. 13, 2018), which amends section 721 of the Defense Production Act of 1950 (DPA). Pursuant to section 1727 of FIRRMA, a number of provisions of FIRRMA took effect immediately upon enactment of the statute, while the effectiveness of other provisions is delayed. A number of the immediately effective provisions of FIRRMA required revisions to certain provisions of part 800. This interim rule amends part 800 to make such revisions and makes several other updates consistent with FIRRMA.

    This interim rule is intended to provide clarity regarding the processes and procedures of the Committee on Foreign Investment in the United States (CFIUS, or the Committee) pending the full implementation of FIRRMA.

    II. Waiver of Public Comment Requirement for Temporary Provisions

    The interim rule set forth in this document implements certain immediately effective provisions of, and makes updates consistent with, FIRRMA. Section 709(a) of the DPA (50 U.S.C. 4559(a)) provides that regulations issued under the DPA are not subject to the rulemaking requirements of the Administrative Procedure Act (APA). Moreover, to the extent that the rulemaking requirements of the APA were determined to apply to this interim rule, the provisions of the APA requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date (5 U.S.C. 553), as well as the provisions of Executive Order 13771, are inapplicable because this interim rule involves a foreign affairs function of the United States. By its terms, this interim rule regulates the conduct of foreign persons seeking to acquire certain interests in particular U.S. businesses, precisely because the acquisition of such interests could harm the strategic national security interests of the United States vis-à-vis other nations.

    Notwithstanding that the rulemaking requirements of the APA do not apply to this interim rule, section 709(b)(1) of the DPA provides that, except as otherwise provided in section 709, any regulation issued under the DPA must be published in the Federal Register and opportunity for public comment must be provided for not less than 30 days, consistent with the requirements of 5 U.S.C. 553(b).

    Section 709(b)(2) of the DPA (50 U.S.C. 4559(b)(2)), however, provides that the requirements of section 709(b)(1) may be waived if: (1) The officer authorized to issue the regulation finds that urgent and compelling circumstances make compliance with such requirements impracticable; (2) the regulation is issued on a temporary basis 1 ; and (3) the publication of such temporary rule is accompanied by the finding made under (1) (and a brief statement of the reasons for such finding) and an opportunity for public comment is provided for not less than 30 days before any regulation becomes final.

    1 Temporary regulations with no specific expiration date are “interim rules” for purposes of Federal Register classification.

    The regulatory amendments set forth in this document meet the three requirements of section 709(b)(2) of the DPA for the reasons below, and therefore qualify for waiver of the public comment requirement of section 709(b)(1) of the DPA.

    First, as required by section 709(b)(2)(A) of the DPA, and for the reasons described in part III, below, upon the approval of the Secretary of the Treasury, the Assistant Secretary of the Treasury for International Markets finds, and the Committee agrees, that urgent and compelling circumstances make completion of the process for public participation in rulemaking set forth in section 709 of the DPA impracticable prior to the effectiveness of this interim rule.

    Second, this interim rule is limited in duration as the amendments addressed in this rule will be further addressed in the final rule implementing FIRRMA, which is forthcoming and will supersede this interim rule. Thus, these amendments are being issued on a temporary basis pending the full implementation of FIRRMA.

    Third, consistent with the requirement of section 709(b)(2)(C) of the DPA, if the Committee intends to make the provisions of this interim rule final, CFIUS will complete the process for public participation in rulemaking set forth in section 709 of the DPA in conjunction with the issuance of a final rule.

    III. Urgent and Compelling Circumstances for Interim Rule

    Upon enactment of FIRRMA, certain of the Committee's regulations in part 800 were rendered inconsistent with section 721. These inconsistencies could lead to ambiguity regarding the procedural aspects of the national security reviews and investigations undertaken by the Committee. Given that parties involved in cross-border transactions regularly include CFIUS among the regulatory regimes that are assessed in transaction negotiations and planning, urgent and compelling circumstances exist that require immediate and clear guidance. One of the factors that makes the United States an attractive destination for foreign investment is the transparency and clarity of the rules and procedures that govern the national security reviews and investigations carried out by CFIUS. This interim rule seeks to ensure, in a timely manner, that the rules and procedures that the Committee applies to its national security reviews and investigations remain clear to parties actively involved in transaction negotiations and planning.

    As a result, the Committee is providing an immediate opportunity for public comment on this interim rule and will consider and address such comments in the process of promulgating any final rule, consistent with section 709(b)(3) of the DPA. This approach appropriately balances the urgency of the interim rule with the need for public participation in the formulation of any final rule.

    IV. Discussion of Interim Rule Overview of Key Amendments to the Regulations at Part 800

    This interim rule makes amendments to the regulations at part 800 that are largely technical in nature. It implements certain immediately effective provisions of, and makes updates consistent with, FIRRMA. The discussion below summarizes the key changes made by this interim rule.

    Section 800.103. This section is amended to provide clarity with respect to the applicability of the amendments to part 800 included in this interim rule. These amendments apply with respect to any covered transaction the review of which is initiated under section 721 on or after October 11, 2018. Certain of the provisions in FIRRMA that are addressed in this interim rule, however, took effect upon enactment of the statute. Most notably for transaction parties, FIRRMA's extension of the CFIUS review period from 30 days to 45 days went into effect immediately, and this interim rule updates part 800 to reflect the current practice of CFIUS. As indicated on the CFIUS website of the Department of the Treasury on August 13, 2018, upon the enactment of FIRRMA, CFIUS began applying the 45-day review period with respect to any covered transaction the review of which is initiated under section 721 on or after the date of FIRRMA's enactment.

    Section 800.104. FIRRMA expands the definition of “covered transaction” to include transactions, transfers, agreements, or arrangements, the structure of which is designed or intended to evade or circumvent the application of section 721. Therefore, section 800.104, which addressed transactions or devices for avoidance, has been removed.

    Section 800.202. The amendment to this section implements section 1720 of FIRRMA and expressly provides for the application of section 1001 of title 18, United States Code, to all information provided to the Committee under section 721 by any party to a covered transaction.

    Section 800.207. The revision to the definition of “covered transaction” is consistent with the language in FIRRMA.

    Section 800.209. The revision to the definition of “critical technologies” is consistent with the language in FIRRMA, including, and in particular, adding a sixth category as subpart (f) to capture emerging and foundational technologies controlled pursuant to section 1758 of the Export Control Reform Act of 2018.

    Section 800.224. The revision to the definition of “transaction” is consistent with the language in FIRRMA defining a “covered transaction” to include certain changes in rights that a foreign person has with respect to a U.S. business in which the foreign person has an investment, as well as transactions the structure of which is designed or intended to evade or circumvent the application of section 721. Corresponding changes are made to the definition of “party or parties to a transaction” in section 800.220.

    Sections 800.301 and 800.302. The revisions to these sections add examples that are intended to illustrate the application of the expanded scope of “covered transactions” to the particular hypothetical situations. The examples are presented for the purpose of aiding the understanding of readers. They neither limit the definition set forth in subpart B of part 800 nor exhaust the scenarios to which such definition could apply.

    Section 800.401. The revisions to this section implement a shift to electronic submissions of voluntary notices, rather than requiring a hardcopy submission, which is consistent with the focus of FIRRMA on ensuring that the procedures of the Committee enable the Committee's efficient operation.

    Section 800.402. The revisions to section 800.402 modify certain of the requirements regarding the content of voluntary notices based on FIRRMA including, and in particular, adding a provision allowing parties to stipulate that the transaction that is the subject of the voluntary notice is a covered transaction and, as relevant, a foreign government-controlled transaction. The Committee notes that stipulating that a transaction is covered or foreign government-controlled allows the Committee to expend fewer resources in determining whether the transaction meets these criteria, potentially speeding the resolution of a review. Although the parties, by stipulating, are averring that they view the transaction to be covered and/or foreign government-controlled, neither the Committee nor the President is bound by the parties' stipulations.

    Section 800.502. The revision to the timing of the review period, extending the period from 30 days to 45 days, is consistent with FIRRMA. This change is reflected in certain other sections of part 800 that are updated by this interim rule.

    Section 800.506. The revisions to this section are consistent with FIRRMA and define the “extraordinary circumstances” pursuant to which an investigation period can be extended by one 15-day period.

    Section 800.702. The revisions to this section are consistent with FIRRMA, including, and in particular, incorporating additional exceptions with respect to information sharing.

    Section 800.801. The revisions to this section are consistent with FIRRMA including, and in particular, removing the language “intentionally or through gross negligence” in the provisions allowing for the imposition of civil penalties. By their terms, the revisions do not apply the new standard to material misstatements, omissions, or certifications made preceding the implementation of this rule, or to violations occurring after the implementation of this rule, in connection with mitigation agreements, material conditions, or orders entered into or imposed prior to the implementation of this rule.

    Section 800.802. The addition of this section is consistent with FIRRMA including authorizing the Committee to, in addition to other remedies, negotiate a remediation plan for lack of compliance with a mitigation agreement or condition entered into or imposed under section 721(l), require filings for future covered transactions for five years, or seek injunctive relief.

    Executive Order 12866

    These regulations are not subject to the requirements of Executive Order 12866 because they relate to a foreign affairs function of the United States.

    Paperwork Reduction Act

    The collection of information contained in this rule has been submitted to the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) and assigned control number 1505-0121. Under the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) generally requires an agency to prepare a regulatory flexibility analysis unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA applies when an agency is required to publish a general notice of proposed rulemaking under section 553(b) of the APA, or any other law. As set forth below, because regulations issued pursuant to the Defense Production Act of 1950 (50 U.S.C. 4559) are not subject to the APA, or other law requiring the publication of a general notice of proposed rulemaking, the RFA does not apply.

    This interim rule implements section 721 of the DPA. Section 709(a) of the DPA provides that the regulations issued under it are not subject to the rulemaking requirements of the APA. Section 709(b)(1) instead provides that any regulation issued under the DPA be published in the Federal Register and opportunity for public comment be provided for not less than 30 days. (Notwithstanding the notice requirements of section 709(b)(1), section 709(b)(2) of the DPA waives the DPA's public comment provision for temporary provisions. As discussed in part II above, this interim rule implements, and makes updates consistent with, certain immediately effective provisions of FIRRMA and is issued pursuant to the section 709(b)(2) waiver provision.) Section 709(b)(3) of the DPA also provides that all comments received during the public comment period be considered and the publication of the final regulation contain written responses to such comments. Consistent with the plain text of the DPA, legislative history confirms that Congress intended that regulations under the DPA be exempt from the notice and comment provisions of the APA and instead provided that the agency include a statement that interested parties were consulted in the formulation of the final regulation. See H.R. Conf. Rep. No. 102-1028, at 42 (1992) and H.R. Rep. No. 102-208 pt. 1, at 28 (1991). The limited public participation procedures described in the DPA do not require a general notice of proposed rulemaking as set forth in the RFA. Further, the mechanisms for publication and public participation are sufficiently different to distinguish the DPA procedures from a rule that requires a general notice of proposed rulemaking. In providing the President with expanded authority to suspend or prohibit the acquisition, merger, or takeover of, or certain other investments in, a domestic firm by a foreign firm if such action would threaten to impair the national security, Congress could not have contemplated that regulations implementing such authority would be subject to RFA analysis. For these reasons, the RFA does not apply to these regulations.

    List of Subjects in 31 CFR Part 800

    Foreign investments in the United States, Investigations, National defense, Reporting and recordkeeping requirements.

    Accordingly, for the reasons stated in the preamble, Code of Federal Regulations, Title 31, Subtitle B, Chapter VIII, Part 800 is amended as follows:

    PART 800—REGULATIONS PERTAINING TO CERTAIN INVESTMENTS IN THE UNITED STATES BY FOREIGN PERSONS 1. The authority citation for part 800 is revised to read as follows: Authority:

    50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

    2. The heading for part 800 is revised to read as set forth above. Subpart A—General 3. In § 800.101, remove “(50 U.S.C. App. 2170)” after “Defense Production Act of 1950” and add in its place “(50 U.S.C. 4565)”. 4. Amend § 800.103 by revising paragraph (a) and adding paragraph (c) to read as follows:
    § 800.103 Applicability rule; prospective application of certain provisions.

    (a) Except as provided in paragraphs (b) and (c) of this section and otherwise in this part, the regulations in this part apply from the effective date.

    (c) The amendments to this part published in the Federal Register on October 11, 2018, apply with respect to any covered transaction the review of which is initiated under section 721 on or after October 11, 2018.

    § 800.104 [Removed]
    5. Remove § 800.104. Subpart B—Definitions 6. Amend § 800.202 as follows: a. In paragraph (a) add “under the penalties provided in section 1001 of title 18, United States Code” after the word “certifying”; and b. In the Note to § 800.202, remove “at http://www.treasury.gov/offices/international-affairs/cfius/index.shtml” and add in its place “, currently available at https://home.treasury.gov/policy-issues/international/the-committee-on-foreign-investment-in-the-united-states-cfius” after “website”. 7. Revise § 800.207 to read as follows:
    § 800.207 Covered transaction.

    The term covered transaction means any transaction that is proposed or pending after August 23, 1988, by or with any foreign person that could result in foreign control of any U.S. business, including such a transaction carried out through a joint venture.

    8. Revise § 800.209 to read as follows:
    § 800.209 Critical technologies.

    The term critical technologies means the following:

    (a) Defense articles or defense services included on the United States Munitions List set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130).

    (b) Items included on the Commerce Control List set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), and controlled—

    (1) Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or

    (2) For reasons relating to regional stability or surreptitious listening.

    (c) Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities).

    (d) Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material).

    (e) Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73.

    (f) Emerging and foundational technologies controlled pursuant to section 1758 of the Export Control Reform Act of 2018.

    9. Amend § 800.220 as follows: a. In paragraph (e), remove the second “and”; b. Redesignate paragraph (f) as paragraph (h); c. Add paragraphs (f) and (g); d. In redesignated paragraph (h), remove “paragraphs (a) through (e)” and add in its place “paragraphs (a) through (g)” after “described in”.

    The additions read as follows:

    § 800.220 Party or parties to a transaction.

    (f) In the case of a change in rights that a person has with respect to an entity in which that person has an investment, the person whose rights change as a result of the transaction and the entity to which those rights apply;

    (g) In the case of a transfer, agreement, arrangement, or any other type of transaction, the structure of which is designed or intended to evade or circumvent the application of section 721, any person that participates in such transfer, agreement, arrangement, or other type of transaction; and”; and

    10. Amend § 800.222 by removing “50 U.S.C. App. 2170” after “Defense Production Act of 1950,” and adding in its place “50 U.S.C. 4565”. 11. Revise § 800.224 to read as follows:
    § 800.224 Transaction.

    The term transaction means:

    (a) A proposed or completed merger, acquisition, or takeover, including without limitation:

    (1) The acquisition of an ownership interest in an entity;

    (2) The acquisition or conversion of convertible voting instruments of an entity;

    (3) The acquisition of proxies from holders of a voting interest in an entity;

    (4) A merger or consolidation;

    (5) The formation of a joint venture; and

    (6) A long-term lease under which a lessee makes substantially all business decisions concerning the operation of a leased entity, as if it were the owner;

    (b) Any change in rights that a person has with respect to an entity in which that person has an investment; and

    (c) Any other transaction, transfer, agreement, or arrangement, the structure of which is designed or intended to evade or circumvent the application of section 721.

    Example.

    Corporation A, a foreign person, signs a concession agreement to operate the toll road business of Corporation B, a U.S. business, for 99 years. Corporation B, however, is required under the agreement to perform safety and security functions with respect to the business and to monitor compliance by Corporation A with the operating requirements of the agreement on an ongoing basis. Corporation B may terminate the agreement or impose other penalties for breach of these operating requirements. Assuming no other relevant facts, this is not a transaction.

    Note to § 800.224:

    See § 800.304 regarding factors the Committee will consider in determining whether to include the rights to be acquired by a foreign person upon the conversion of convertible voting instruments as part of the Committee's assessment of whether a transaction that involves such instruments is a covered transaction.

    Subpart C—Coverage 12. Amend § 800.301 by adding paragraphs (e) and (f) to read as follows:
    § 800.301 Transactions that are covered transactions.

    (e) A change in the rights that a foreign person has with respect to a U.S. business in which the foreign person has an investment, if that change could result in foreign control of the U.S. business.

    Example.

    Corporation A, a foreign person, holds a 10 percent ownership interest in Corporation X, a U.S. business. Corporation A and Corporation X enter into a contractual arrangement pursuant to which Corporation A will provide consulting and other advisory services to Corporation X in exchange for the right to appoint the Chief Executive Officer and the Chief Technical Officer of Corporation X. Corporation A does not acquire any additional ownership interest in Corporation X pursuant to the contractual arrangement. The transaction is a covered transaction.

    (f) A transaction the structure of which is designed to evade or circumvent the application of section 721.

    Example.

    Corporation A is organized under the laws of a foreign state and is wholly owned and controlled by a foreign national. With a view towards circumventing section 721, Corporation A transfers money to a U.S. citizen, who, pursuant to informal arrangements with Corporation A and on its behalf, purchases all the shares in Corporation X, a U.S. business. The transaction is a covered transaction.

    13. Amend § 800.302 by adding paragraph (f) to read as follows:
    § 800.302 Transactions that are not covered transactions.

    (f) A change in the rights that a foreign person has with respect to a U.S. business in which that foreign person has an investment, if that change could not result in foreign control of the U.S. business.

    Example.

    Corporation A, a foreign person, holds a 10 percent ownership interest in Corporation X, a U.S. business. Corporation A and Corporation X enter into a contractual arrangement pursuant to which Corporation A gains the right to purchase an additional interest in Corporation X to prevent the dilution of Corporation A's pro rata interest in Corporation X in the event that Corporation X issues additional instruments conveying interests in Corporation X. Corporation A does not acquire any additional rights or ownership interest in Corporation X pursuant to the contractual arrangement. Assuming no other relevant facts, the transaction is not a covered transaction.

    Subpart D—Notice 14. Revise § 800.401(a) and (e) to read as follows:
    § 800.401 Procedures for notice.

    (a) A party or parties to a proposed or completed transaction may file a voluntary notice of the transaction with the Committee. Voluntary notice to the Committee is filed by sending one electronic copy of the notice that includes, in English, the information set out in § 800.402, including the certification required under paragraph (l) of that section. See the Committee's section of the Department of the Treasury website, currently available at https://home.treasury.gov/policy-issues/international/the-committee-on-foreign-investment-in-the-united-states-cfius, for electronic submission instructions.

    (e) Upon receipt of the electronic copy of a notice filed under paragraph (a) of this section, including the certification required by § 800.402(l), the Staff Chairperson shall promptly inspect such notice for completeness.

    15. Amend § 800.402 as follows: a. In paragraph (c)(1)(viii), remove “and”; b. In paragraph (c)(1)(ix), add “and” after “transaction;” c. Add paragraph (c)(1)(x); d. In paragraph (l), remove “available at http://www.treas.gov/offices/international-affairs/cfius/index.shtml” and add in its place “currently available at https://home.treasury.gov/policy-issues/international/the-committee-on-foreign-investment-in-the-united-states-cfius” after “website”; and e. Add paragraph (n).

    The additions read as follows:

    § 800.402 Contents of voluntary notice.

    (c) * * *

    (1) * * *

    (x) A copy of any partnership agreements, integration agreements, or other side agreements relating to the transaction.”;

    (n) A party filing a voluntary notice may stipulate that the transaction is a covered transaction and, if the party stipulates that the transaction is a covered transaction, that the transaction is a foreign government-controlled transaction. A stipulation offered by any party pursuant to this section must be accompanied by a description of the basis for the stipulation. The required description of the basis shall include, but is not limited to, discussion of all relevant information responsive to paragraphs (c)(6)(iv) through (c)(6)(vi) of this section. A party that offers such a stipulation acknowledges that the Committee and the President are entitled to rely on such stipulation in determining whether the transaction is a covered transaction and/or a foreign government-controlled transaction for the purposes of section 721 and all authorities thereunder, and waives the right to challenge any such determination. Neither the Committee nor the President is bound by any such stipulation, nor does any such stipulation limit the ability of the Committee or the President to act on any authority provided under section 721 with respect to any covered transaction.

    16. Amend § 800.403 as follows: a. In paragraph (b), remove “thirty-day” and add “specified by § 800.502” after “review period”; b. In Example 1, remove “thirty-day”; and c. In Example 2, remove “25th” and add in its place “40th” and remove “30” and add in its place “45”. Subpart E—Committee Procedures: Review And Investigation 17. Amend § 800.501 as follows: a. In paragraph (a) introductory text, add a new sentence before the existing sentence; and b. In paragraph (b) remove “thirty-day”.

    The addition reads as follows:

    § 800.501 General.

    (a) In any review or investigation of a covered transaction, the Committee should consider the factors specified in section 721(f) and, as appropriate, require parties to provide to the Committee the information necessary to consider such factors. * * *

    18. Amend § 800.502 by revising the section heading and paragraph (b) to read as follows:
    § 800.502 Beginning of forty-five day review period.

    (b) A 45-day period for review of a transaction shall commence on the date on which the voluntary notice has been accepted, agency notice has been received by the Staff Chairperson of the Committee, or the Chairperson of the Committee has requested a review pursuant to § 800.401(b). Such review shall end no later than the forty-fifth day after it has commenced, or if the forty-fifth day is not a business day, no later than the next business day after the forty-fifth day.

    19. Amend § 800.505(a) by removing “thirty-day”. 20. Amend § 800.506 as follows: a. In paragraph (a), remove “The Committee” and add in its place “Subject to paragraph (e) of this section, the Committee” before “shall”; and b. Add paragraphs (e) and (f) to read as follows:
    § 800.506 Completion or termination of investigation and report to the President.

    (e) In extraordinary circumstances, the Chairperson may, upon a written request signed by the head of a lead agency, extend an investigation for one 15-day period. A request to extend an investigation must describe, with particularity, the extraordinary circumstances that warrant the Chairperson extending the investigation. The authority of the head of a lead agency to request the extension of an investigation may not be delegated to any person other than the deputy head (or equivalent thereof) of the lead agency. If the Chairperson extends an investigation pursuant to this paragraph (e) with respect to a covered transaction, the Committee shall promptly notify the parties to the transaction of the extension.

    (f) For purposes of paragraph (e) of this section, “extraordinary circumstances” means circumstances for which extending an investigation is necessary and the appropriate course of action due to a force majeure event or to protect the national security of the United States.”

    21. Add § 800.510 to subpart E to read as follows:
    § 800.510 Tolling of deadlines during lapse in appropriations.

    Any deadline or time limitation under this subpart E shall be tolled during a lapse in appropriations.

    Subpart G—Provision and Handling of Information 22. Amend § 800.701 as follows: a. In paragraph (a) remove “50 U.S.C. App. 2155(a)” after “pursuant to” and add in its place “50 U.S.C. 4555(a)”; b. In paragraph (c) remove “at http://www.treas.gov/offices/international-affairs/cfius/index.shtml” and add in its place “, currently available at https://home.treasury.gov/policy-issues/international/the-committee-on-foreign-investment-in-the-united-states-cfius” after “website”; and c. In paragraph (d), remove “at http://www.treas.gov/offices/international-affairs/cfius/index.shtml” and add in its place “, currently available at https://home.treasury.gov/policy-issues/international/the-committee-on-foreign-investment-in-the-united-states-cfius” after “website”. 23. Amend § 800.702 as follows: a. Revise paragraph (a). b. Redesignate paragraphs (b), (c), and (d) as paragraphs (c), (d), and (e). c. Add new paragraph (b). d. In redesignated paragraph (e), remove “50 U.S.C. App. 2155(d)” after “The provisions of” and add in its place “50 U.S.C. 4555(d)”.

    The revision and addition read as follows:

    § 800.702 Confidentiality.

    (a) Except as provided in paragraph (b) of this section, any information or documentary material filed with the Committee pursuant to this part, including information or documentary material filed pursuant to § 800.401(f), shall be exempt from disclosure under 5 U.S.C. 552, and no such information or documentary material may be made public.

    (b) Paragraph (a) of this section shall not prohibit disclosure of the following:

    (1) Information relevant to any administrative or judicial action or proceeding;

    (2) Information to Congress or to any duly authorized committee or subcommittee of Congress;

    (3) Information important to the national security analysis or actions of the Committee to any domestic governmental entity, or to any foreign governmental entity of a United States ally or partner, under the exclusive direction and authorization of the Chairperson, only to the extent necessary for national security purposes, and subject to appropriate confidentiality and classification requirements; or

    (4) Information that the parties have consented to be disclosed to third parties.”; and

    Subpart H—Penalties 24. Amend § 800.801 as follows: a. In paragraph (a) remove “, after the effective date, intentionally or through gross negligence,”; b. Revise paragraph (b); c. Redesignate paragraph (g) as paragraph (h); and d. Add a new paragraph (g).

    The revision and addition read as follows:

    § 800.801 Penalties.

    (b) Any person who, after the effective date, violates, intentionally or through gross negligence, a material provision of a mitigation agreement entered into before October 11, 2018, with, a material condition imposed before October 11, 2018 by, or an order issued before October 11, 2018 by, the United States under section 721(l) may be liable to the United States for a civil penalty not to exceed $250,000 per violation or the value of the transaction, whichever is greater. Any person who violates a material provision of a mitigation agreement entered into on or after October 11, 2018, with, a material condition imposed on or after October 11, 2018, by, or an order issued on or after October 11, 2018, by, the United States under section 721(l) may be liable to the United States for a civil penalty not to exceed $250,000 per violation or the value of the transaction, whichever is greater.”;

    (g) Section 1001 of title 18, United States Code, shall apply to all information provided to the Committee under section 721 by any party to a covered transaction.

    25. Add § 800.802 to subpart H to read as follows:
    § 800.802 Effect of lack of compliance.

    If, at any time after a mitigation agreement or condition is entered into or imposed under section 721(l), the Committee or lead agency, as the case may be, determines that a party or parties to the agreement or condition are not in compliance with the terms of the agreement or condition, the Committee or lead agency may, in addition to the authority of the Committee to impose penalties pursuant to section 721(h) and to unilaterally initiate a review of any covered transaction pursuant to section 721(b)(1)(D)(iii):

    (a) Negotiate a plan of action for the party or parties to remediate the lack of compliance, with failure to abide by the plan or otherwise remediate the lack of compliance serving as the basis for the Committee to find a material breach of the agreement or condition;

    (b) Require that the party or parties submit a written notice under clause (i) of section 721(b)(1)(C) with respect to a covered transaction initiated after the date of the determination of noncompliance and before the date that is five years after the date of the determination to the Committee to initiate a review of the transaction under section 721(b); or

    (c) Seek injunctive relief.

    Dated: October 4, 2018. Heath Tarbert, Assistant Secretary for International Markets.
    [FR Doc. 2018-22187 Filed 10-10-18; 8:45 am] BILLING CODE 4810-25-P
    DEPARTMENT OF THE TREASURY Office of Investment Security 31 CFR Part 801 RIN 1505-AC61 Determination and Temporary Provisions Pertaining to a Pilot Program To Review Certain Transactions Involving Foreign Persons and Critical Technologies AGENCY:

    Office of Investment Security, Department of the Treasury.

    ACTION:

    Interim rule.

    SUMMARY:

    This interim rule sets forth the scope of, and procedures for, a pilot program of the Committee on Foreign Investment in the United States (CFIUS, or the Committee) under section 721 of the Defense Production Act of 1950, as amended by the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA). Pursuant to section 1727(c) of FIRRMA, this pilot program implements the authorities provided in two sections of FIRRMA that did not take effect upon the statute's enactment. First, the pilot program expands the scope of transactions subject to review by CFIUS to include certain investments involving foreign persons and critical technologies. Second, the pilot program makes effective FIRRMA's mandatory declarations provision for all transactions that fall within the specific scope of the pilot program. The pilot program is temporary and will end no later than March 5, 2020.

    DATES:

    Effective date: These provisions are effective November 10, 2018.

    Applicability date: See § 801.103.

    Comment date: Written comments must be received by November 10, 2018.

    ADDRESSES:

    Written comments on the interim rule may be submitted through one of two methods:

    Electronic Submission of Comments: Interested persons may submit comments electronically through the Federal government eRulemaking Portal at https://www.regulations.gov. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt, and enables the Department to make them available to the public. Comments submitted electronically through the https://www.regulations.gov website can be viewed by other commenters and interested members of the public.

    Mail: Send to U.S. Department of the Treasury, Attention: Thomas Feddo, Deputy Assistant Secretary for Investment Security, 1500 Pennsylvania Avenue NW, Washington, DC 20220.

    In general, Treasury will post all comments to www.regulations.gov without change, including any business or personal information provided, such as names, addresses, email addresses, or telephone numbers. All comments received, including attachments and other supporting material, will be part of the public record and subject to public disclosure. You should only submit information that you wish to make publicly available.

    FOR FURTHER INFORMATION CONTACT:

    For questions about this interim rule, contact: Thomas Feddo, Deputy Assistant Secretary for Investment Security; Laura Black, Director of Investment Security Policy and International Relations; Meena Sharma, Senior Policy Advisor; or Juliana Gabrovsky, Policy Advisor, at U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington, DC 20220; telephone: (202) 622-3425; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), Subtitle A of Title XVII of Public Law 115-232 (Aug. 13, 2018), amended section 721 of the Defense Production Act of 1950 (DPA). Prior to the enactment of FIRRMA, section 721 of the DPA (section 721) authorized the President, acting through the Committee, to review mergers, acquisitions, and takeovers by or with any foreign person which could result in foreign control of any person engaged in interstate commerce in the United States, to determine the effects of such transactions on the national security of the United States. FIRRMA modified and broadened the authorities of the President and CFIUS under section 721 in several ways including, without limitation, by expanding the scope of foreign investments in the United States subject to national security review pursuant to section 721.

    Section 1727(a) of FIRRMA made certain provisions of FIRRMA effective immediately upon enactment on August 13, 2018. Section 1727(b) of FIRRMA, however, delayed the effectiveness of any provision of FIRRMA not specified in section 1727(a) until the earlier of: (1) The date that is 18 months after the date of enactment of FIRRMA (i.e., February 13, 2020); or (2) the date that is 30 days after publication in the Federal Register of a determination by the chairperson of CFIUS that the regulations, organizational structure, personnel, and other resources necessary to administer the new provisions are in place.

    Notwithstanding section 1727(b), section 1727(c) of FIRRMA authorizes CFIUS to conduct one or more pilot programs to implement any authority provided pursuant to any provision of, or amendment made by, FIRRMA that did not take effect immediately upon enactment. Section 1727(c) states that a pilot program may not commence until the date that is 30 days after publication in the Federal Register of a determination by the chairperson of CFIUS of the scope of, and procedures for, the pilot program. This document and the interim rule set forth herein constitute the required determination of the scope of, and procedures for, a CFIUS pilot program relating to critical technologies pursuant to section 1727(c)(2) of FIRRMA.

    II. Waiver of Public Comment Requirement for Temporary Provisions

    The interim rule set forth in this document implements a pilot program, pursuant to section 721, relating to foreign investment into certain U.S. businesses that produce, design, test, manufacture, fabricate, or develop one or more critical technologies. Section 709(a) of the DPA (50 U.S.C. 4559(a)) provides that regulations issued under the DPA are not subject to the rulemaking requirements of the Administrative Procedure Act (APA). Moreover, to the extent that the rulemaking requirements of the APA were determined to apply to this interim rule, the provisions of the APA requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date (5 U.S.C. 553), as well as the provisions of Executive Order 13771, are inapplicable because this interim rule involves a foreign affairs function of the United States. By its terms, the pilot program to be implemented pursuant to this interim rule regulates the conduct of foreign persons seeking to acquire certain interests in particular U.S. businesses, precisely because the acquisition of such interests could harm the strategic national security interests of the United States vis-à-vis other nations.

    Notwithstanding that the rulemaking requirements of the APA do not apply to this interim rule, Section 709(b)(1) of the DPA provides that, except as otherwise provided in section 709, any regulation issued under the DPA must be published in the Federal Register and opportunity for public comment must be provided for not less than 30 days, consistent with the requirements of 5 U.S.C. 553(b).

    Section 709(b)(2) of the DPA (50 U.S.C. 4559(b)(2)), however, provides that the requirements of section 709(b)(1) may be waived if: (1) The officer authorized to issue the regulation finds that urgent and compelling circumstances make compliance with such requirements impracticable; (2) the regulation is issued on a temporary basis 1 ; and (3) the publication of such temporary regulation is accompanied by the finding made under (1) (and a brief statement of the reasons for such finding) and an opportunity for public comment is provided for not less than 30 days before any regulation becomes final.

    1 Temporary regulations with no specific expiration date are “interim rules” for purposes of Federal Register classification.

    The regulations set forth in this document meet the three requirements of section 709(b)(2) of the DPA for the reasons below, and therefore qualify for waiver of the public comment requirement of section 709(b)(1) of the DPA.

    First, as required by section 709(b)(2)(A) of the DPA, and for the reasons described in part III, below, the Secretary of the Treasury finds, and the Committee agrees, that urgent and compelling circumstances make completion of the process for public participation in rulemaking set forth in section 709 of the DPA impracticable prior to the effectiveness of this interim rule.

    Second, pursuant to section 1727(c)(1) of FIRRMA, the authority for a pilot program is time limited to no more than 570 days following the date of FIRRMA's enactment, making any FIRRMA pilot program inherently temporary. Consistent with that limitation and the requirement of section 709(b)(2)(B) of the DPA, these regulations are issued on a temporary basis. Section 801.101 sets forth the duration of the pilot program regulations.

    Third, consistent with the requirement of section 709(b)(2)(C) of the DPA, if the Committee intends to make the provisions of this interim rule final, CFIUS will complete the process for public participation in rulemaking set forth in section 709 of the DPA in conjunction with the issuance of a final rule.

    Given the pilot program's scope and objectives, considering and responding to public comments prior to the effectiveness of this interim rule would be inconsistent with U.S. foreign affairs interests because it would delay the effective date of the pilot program, which could provide threat actors with time to harm U.S. national security by quickly acquiring U.S. critical technologies, contrary to the urgent and compelling circumstances justifying this program, as discussed below.

    As a result, the Committee is providing an immediate opportunity for public comment on this interim rule and will consider and address such comments in the process of promulgating any final rule, consistent with section 709(b)(3) of the DPA. This approach appropriately balances the urgency of the pilot program with the need for public participation in the formulation of any final rule.

    III. Urgent and Compelling Circumstances for the Pilot Program

    The passage of FIRRMA was based upon concerns that, as noted at section 1702(b)(4) of FIRRMA, “the national security landscape has shifted in recent years, and so has the nature of the investments that pose the greatest potential risk to national security. . . .” FIRRMA provides CFIUS time to develop the resources and regulations necessary to administer all of FIRRMA's provisions before the statute becomes fully effective. Notwithstanding this, FIRRMA also provides the authority for pilot programs and, in doing so, recognizes the need to immediately assess and address significant risks to national security posed by some foreign investments.

    In order to be effective in identifying and addressing these national security risks, FIRRMA recognizes that there may be circumstances in which the Committee deems it appropriate to require mandatory declarations for specific types of transactions. This pilot program establishes mandatory declarations for certain transactions involving investments by foreign persons in certain U.S. businesses that produce, design, test, manufacture, fabricate, or develop one or more critical technologies. The purpose of the pilot program is to assess and address ongoing risks to the national security of the United States resulting from two urgent and compelling circumstances: (1) The ability and willingness of some foreign parties to obtain equity interests in U.S. businesses in order to affect certain decisions regarding, or to obtain certain information relating to, critical technologies; and (2) the rapid pace of technological change in certain U.S. industries. The Committee has developed this pilot program without exempting any country from the mandatory declaration requirement in order to understand and examine, in a comprehensive manner, the nature of foreign direct investment as it relates to critical technologies and the pilot program industries. Further, foreign investors that may present national security concerns are becoming increasingly sophisticated in structuring investments in a manner that may obfuscate those concerns, including by utilizing entities in other jurisdictions. As a result, CFIUS is implementing this pilot program on a global basis. The pilot program will inform the full implementation of FIRRMA, including the Committee's approach with respect to the country specification provision in FIRRMA.

    Technological superiority has long underpinned the United States' military strategy and national security innovation base. The Administration supports protecting our national security from emerging risks while maintaining an open investment policy. Although the vast majority of foreign direct investment in the United States provides economic benefits to our nation—including the promotion of economic growth, productivity, competitiveness, and job creation—some foreign direct investment threatens to undermine the technological superiority that is critical to U.S. national security. Specifically, the threat to critical technology industries is more significant than ever as some foreign parties seek, through various means, to acquire sensitive technologies with relevance for U.S. national security. Foreign investment in U.S. critical technologies has grown significantly in the past decade, and an enhanced framework is needed to address the potential impacts of this growth on U.S. national security.

    Prior to FIRRMA, CFIUS's authorities did not sufficiently address the new and emerging risks that foreign direct investment can pose to U.S. technological superiority. For example, foreign investors do not need to acquire a controlling interest in order to affect certain decisions made by, or obtain certain information from, a U.S. business with respect to the use, development, acquisition, or release of critical technology. CFIUS's authorities, however, only applied to transactions that could result in foreign control of a U.S. business. Consequently, CFIUS had no authority to prevent a foreign entity from acquiring a non-controlling interest in a U.S. business that produces, designs, tests, manufactures, fabricates, or develops one or more critical technologies. FIRRMA provides CFIUS new authorities to address the national security concerns that may arise from these investments, but those authorities were not immediately effective upon FIRRMA's enactment.

    Together, the pace of technological change in certain critical technology industries, the significant growth in foreign investment in certain industries relevant to national security, and the current inability of CFIUS to examine certain non-controlling transactions creates urgent and compelling circumstances for the pilot program that make completion of the process for public participation in rulemaking set forth in section 709 of the DPA impracticable prior to the effectiveness of this interim rule. Implementing the pilot program expeditiously is necessary both to protect critical technologies and to evaluate how best to implement certain aspects of FIRRMA in the long-term. The temporary nature of the pilot program and the short timeframe within which to gather data to help inform the full implementation of FIRRMA compel a rapid implementation of this interim rule. Delaying effectiveness of the interim rule would create an unacceptable risk of erosion of U.S. technological superiority. Without immediate action, foreign parties will be able to influence the use of, and decisions made by U.S. businesses with respect to, critical technologies through the types of investments FIRRMA is intended to address. The list of pilot program industries identified in Annex A has been carefully developed by the U.S. government to narrowly scope the pilot program to include only those industries in which the threat of erosion of technological superiority from some foreign direct investment requires immediate action. As noted above, the Committee invites comments on this interim rule, will consider any comments received, and if the Committee intends to make the provisions of this interim rule final, will include in any final rule responses to such comments.

    Notwithstanding the issuance of this interim rule, the regulations at part 800 remain in effect.

    IV. Discussion of the Pilot Program Interim Rule Subpart-by-Subpart Overview of the Pilot Program Interim Rule

    The interim rule builds upon existing rules governing CFIUS's review of transactions for national security considerations and adds a pilot program with two purposes. First, the pilot program expands the scope of transactions subject to review by CFIUS to include transactions subject to a portion of FIRRMA's “other investments” provision. Second, the pilot program makes effective FIRRMA's mandatory declarations provision for transactions that fall within the specific scope of the pilot program. The scope, procedures, and terms used in the pilot program are specific to the pilot program and subject to change in the proposed final rule implementing FIRRMA. The following discussion provides an overview of each subpart of the interim rule.

    Subpart A

    Subpart A sets forth the scope of the pilot program, its applicability based on the timing of certain events relating to a transaction, and the effect of the pilot program on other laws. FIRRMA authorizes the Committee to conduct one or more pilot programs to implement any authority provided pursuant to any provision of, or amendment made by, FIRRMA that did not take effect on the date of its enactment. This pilot program expands the scope of transactions subject to review by CFIUS to include certain investments by foreign persons in certain U.S. businesses that produce, design, test, manufacture, fabricate, or develop one or more critical technologies. The pilot program also requires the submission of declarations with basic information regarding certain covered transactions, unless the parties elect to file a notice instead. The purpose of implementing a pilot program addressing these areas is to confront the rapid changes in certain critical technology industries, the significant growth of certain types of foreign investment in those industries, and the current inability of CFIUS to review non-controlling transactions, which creates an unacceptable risk of undermining U.S. technological superiority in industries with national security implications. The regulations in this interim rule supplement existing regulations implementing section 721 of the DPA, which remain in effect. Consistent with section 1727(c)(1) of FIRRMA, the pilot program implemented through these regulations will end no later than March 5, 2020, the date that is 570 days after the enactment of FIRRMA. These regulations will be amended, replaced, or removed no later than the date on which the pilot program ends.

    As set forth in section 801.103(b), these regulations do not apply to transactions for which the completion date is prior to the pilot program effective date, or transactions for which the parties have executed a binding written agreement or other document establishing the material terms of the transaction prior to October 11, 2018.

    Consistent with CFIUS's existing regulations under part 800, the pilot program does not affect or limit other authorities of the government.

    Subpart B

    Subpart B sets forth defined terms used in the remainder of the pilot program regulations. The following discussion describes several key terms from subpart B.

    Section 801.203. FIRRMA defines the term “investment” as including the acquisition of a “contingent equity interest,” but does not define the term “contingent equity interest.” The pilot program interim rule provides a definition for the term contingent equity interest.

    Section 801.204. The term critical technologies is defined consistent with the definition set forth in FIRRMA.

    Section 801.206. The term investment is defined consistent with the definition set forth in FIRRMA.

    Section 801.207. FIRRMA provides clarification that certain types of investments by foreign persons as limited partners or the equivalent on an advisory board or a committee of an investment fund will not be considered “other investments” for the purposes of FIRRMA, as reflected in section 801.304 of these regulations. The term investment fund is defined in subpart B by reference to the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.).

    Section 801.208. In this interim rule, the Committee is implementing the portion of the definition of the term material nonpublic technical information in FIRRMA that is related to critical technologies. The portion of FIRRMA's definition of the term “material nonpublic technical information” that relates to critical infrastructure is not part of this pilot program.

    Section 801.209. The term pilot program covered investment implements most of the definition of “other investment” in FIRRMA. The pilot program, however, does not implement a portion of the third part of the “other investment” definition in FIRRMA regarding involvement, other than through voting of shares, in substantive decisionmaking regarding sensitive personal data of U.S. citizens or critical infrastructure.

    Section 801.210. The term pilot program covered transaction includes the new concept of “pilot program covered investment,” described above. The term pilot program covered transaction also includes transactions that could result in foreign control of a U.S. business, consistent with the language in FIRRMA, but only to the extent that the U.S. business is a pilot program U.S. business.

    Section 801.213. The term pilot program U.S. business includes any U.S. business that produces, designs, tests, manufactures, fabricates, or develops a critical technology that is either utilized in connection with the U.S. business's activity in one or more pilot program industries, or designed by the U.S. business specifically for use in one or more pilot program industries. For purposes of the pilot program, this definition has been narrowly scoped to allow CFIUS to assess and address the foreign investment transactions most likely to raise concerns regarding the technological superiority of the United States in industries of national security importance.

    Subpart C

    Subpart C describes the coverage of the pilot program with a focus on pilot program covered investments. The analysis as to whether a transaction could result in control of a pilot program U.S. business by a foreign person generally follows the same analysis as under part 800, with the additional requirement that the U.S. business in question must be a pilot program U.S. business. The examples provided throughout subpart C are intended to illustrate the application of the definitions to the particular hypothetical situations. The examples are presented for the purpose of aiding the understanding of readers. They neither limit the definitions set forth in subpart B nor exhaust the scenarios to which such definitions could apply.

    Subpart C illustrates that, where CFIUS has concluded all action under section 721 for a pilot program covered investment (regardless of whether the notification was made through a declaration or a notice), any incremental investment that meets the requirements of section 801.209, even if involving the same foreign person in the same pilot program U.S. business, will nevertheless be a pilot program covered investment and subject to this pilot program.

    Subpart C also implements portions of section 1703 of FIRRMA that limit the application of CFIUS authority over certain types of investment fund investments and provides an explicit exception for investments involving air carriers.

    Subpart D

    Subpart D requires that the parties to a pilot program covered transaction submit to the Committee a declaration regarding the transaction, unless the parties elect to submit a written notice pursuant to subpart E instead. Generally, mandatory declarations must be made at least 45 days before the expected completion date of the transaction. As noted in section 801.401(d), the regulatory safe harbor described in section 800.204(e) is not available for pilot program covered transactions for which the Committee completes all action under section 721 on the basis of a declaration, irrespective of whether the transaction could result in foreign control of a U.S. business. Any subsequent or incremental acquisition that constitutes a pilot program covered transaction must be submitted to CFIUS through a notice or declaration. For the avoidance of doubt, transactions that could result in control of a pilot program U.S. business by a foreign person and that are filed as a written notice, and for which the Committee completes all action under section 721, would receive the benefit of the regulatory safe harbor described in section 800.204(e).

    FIRRMA distinguishes declarations from notices in three primary respects: (1) The length of the submission; (2) the time for CFIUS's consideration of the submission; and (3) the Committee's options for disposition of the submission. The interim rule recognizes these distinctions in the manner described below.

    First, section 801.403 sets forth the information required in a declaration, which is consistent with FIRRMA's requirement that CFIUS establish declarations as “abbreviated notices that would not generally exceed 5 pages in length.” As part of the declaration process, parties will have the opportunity to voluntarily stipulate that the transaction is a pilot program covered transaction and, if so, whether the transaction could result in control of a pilot program U.S. business by a foreign person and whether the transaction is a foreign-government controlled transaction. Such stipulations would streamline certain aspects of CFIUS's review of a declaration, thereby reducing the burden on CFIUS and potentially leading to a faster resolution for the submitting parties.

    Second, consistent with FIRRMA, section 801.404 requires that the Committee take action on a declaration within 30 days of the Committee's receipt of the declaration from the Staff Chairperson. The Staff Chairperson will circulate the declaration to the Committee after inspecting the declaration and determining it to be complete. This implements FIRRMA's distinction that CFIUS complete review of a notice within 45 days and take action upon a declaration within 30 days.

    Finally, section 801.407 implements FIRRMA's mandate that the Committee take one of four actions with respect to a declaration: (1) Request that the parties file a notice; (2) inform the parties that CFIUS cannot complete action under section 721 on the basis of the declaration, and that they may file a notice to seek written notification from the Committee that the Committee has completed all action under section 721 with respect to the transaction; (3) initiate a unilateral review of the transaction through an agency notice; or (4) notify the parties that CFIUS has completed all action under section 721.

    Section 801.407 also makes clear that parties may not submit more than one declaration for the same or a substantially similar transaction without approval from the Staff Chairperson. The purpose of this is to avoid situations where, due to the abbreviated information requests, a party or parties file a declaration even before the material terms of a transaction have been agreed upon, subsequently complete their negotiations, and attempt to withdraw and resubmit a new declaration for the same or a substantially similar transaction.

    The distinctions between notices and declarations outlined here—that is, the complexity of the submission and the parties' desired timing—underpin the primary interrelated factors that parties should consider when determining whether a pilot program covered transaction is best notified to the Committee through a declaration or a notice.

    As noted above, the scope, procedures, and certain terms used in the pilot program are specific to the pilot program and subject to change in the proposed final rule implementing FIRRMA.

    Subpart E

    Subpart E generally applies the existing CFIUS procedural regulations in part 800 to notices of pilot program covered transactions. This subpart recognizes that parties, at their discretion, may elect to file a notice for a pilot program covered transaction instead of a declaration. The purpose of the subpart is to clarify that, where parties elect to file a notice instead of a declaration, or file a notice for a pilot program covered transaction following the Committee's action on a declaration, the procedural elements of CFIUS's existing regulations under part 800 generally will apply to that notice. Certain additional information will be required from the parties with respect to any pilot program covered investment notified to the Committee through a notice.

    For the avoidance of doubt, while the pilot program implements certain provisions of FIRRMA that allow CFIUS to review certain non-controlling transactions involving critical technology in specified industries, it does not change CFIUS's analysis with respect to a transaction that could result in foreign control of a U.S. business under the regulations at part 800.

    Additionally, a party (or parties) to a pilot program covered transaction that has filed a written notice pursuant to section 800.401(a) regarding the transaction may not submit to the Committee a declaration regarding the same transaction, or a substantially similar transaction, without the approval of the Staff Chairperson. The purpose of the declaration is to allow for an assessment of certain information relating to certain transactions that may not, because of the scope and other factors, necessitate the collection of all of the information set forth in section 800.402(c). As noted above, parties should consider whether the transaction is of the type that would be appropriate for a declaration, or whether it would be more appropriate to notify the Committee of the transaction by filing a written notice.

    Subpart F

    Subpart F implements authorities provided pursuant to, and amendments made by, FIRRMA.

    Executive Order 12866

    These regulations are not subject to the general requirements of Executive Order 12866 because they relate to a foreign affairs function of the United States pursuant to section 3(d)(2) of that order.

    Paperwork Reduction Act

    The collection of information contained in this rule has been submitted to the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) and assigned control number 1505-0121. Under the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) generally requires an agency to prepare a regulatory flexibility analysis, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA applies when an agency is required to publish a general notice of proposed rulemaking under section 553(b) of the APA, or any other law. As set forth below, because regulations issued pursuant to the DPA are not subject to the rulemaking provisions of the APA, or other law requiring the publication of a general notice of proposed rulemaking, the RFA does not apply.

    This interim rule implements section 721 of the DPA. Section 709(a) of the DPA provides that the regulations issued under it are not subject to the rulemaking requirements of the APA. Section 709(b)(1) instead provides that any regulation issued under the DPA be published in the Federal Register and opportunity for public comment be provided for not less than 30 days. (Notwithstanding the notice requirements of section 709(b)(1), section 709(b)(2) of the DPA waives the DPA's public comment provision for temporary provisions. As discussed in part II above, this interim rule implements a pilot program and is issued pursuant to the section 709(b)(2) waiver provision.) Section 709(b)(3) of the DPA also provides that all comments received during the public comment period be considered and the publication of the final regulation contain written responses to such comments. Consistent with the plain text of the DPA, legislative history confirms that Congress intended that regulations under the DPA be exempt from the notice and comment provisions of the APA and instead provided that the agency include a statement that interested parties were consulted in the formulation of the final regulation. See H.R. Conf. Rep. No. 102-1028, at 42 (1992) and H.R. Rep. No. 102-208 pt. 1, at 28 (1991). The limited public participation procedures described in the DPA do not require a general notice of proposed rulemaking as set forth in the RFA. Further, the mechanisms for publication and public participation are sufficiently different to distinguish the DPA procedures from a rule that requires a general notice of proposed rulemaking. In providing the President with expanded authority to suspend or prohibit the acquisition, merger, or takeover of, or certain other investments in, a domestic firm by a foreign firm if such action would threaten to impair the national security, Congress could not have contemplated that regulations implementing such authority would be subject to RFA analysis. For these reasons, the RFA does not apply to these regulations.

    List of Subjects in 31 CFR Part 801

    Foreign investments in the United States, Investigations, National defense, Reporting and recordkeeping requirements.

    Accordingly, under the authority provided by section 1727(c) of FIRRMA, for the reasons stated in the preamble, the Department of the Treasury amends 31 CFR chapter VIII by adding part 801 as follows: PART 801—PILOT PROGRAM TO REVIEW CERTAIN TRANSACTIONS INVOLVING FOREIGN PERSONS AND CRITICAL TECHNOLOGIES Subpart A—General Sec. 801.101 Scope. 801.102 Effect on other law. 801.103 Applicability rule. Subpart B—Definitions 801.201 General. 801.202 Completion date. 801.203 Contingent equity interest. 801.204 Critical technologies. 801.205 FIRRMA. 801.206 Investment. 801.207 Investment fund. 801.208 Material nonpublic technical information. 801.209 Pilot program covered investment. 801.210 Pilot program covered transaction. 801.211 Pilot program effective date. 801.212 Pilot program industry. 801.213 Pilot program U.S. business. 801.214 Unaffiliated pilot program U.S. business. Subpart C—Pilot Program Covered Transactions 801.301 Control. 801.302 Transactions that are pilot program covered transactions. 801.303 Transactions that are not pilot program covered transactions. 801.304 Treatment of certain investment fund investments. 801.305 Exception for air carriers. 801.306 Timing rule for contingent equity interests. Subpart D—Mandatory Declarations Under the Pilot Program 801.401 Mandatory declarations under the pilot program. 801.402 Procedures for declarations under the pilot program. 801.403 Contents of declarations under the pilot program. 801.404 Beginning of thirty-day period. 801.405 General. 801.406 Rejection, disposition, or withdrawal of declarations. 801.407 Committee actions. 801.408 Confidentiality. 801.409 Penalties. Subpart E—Notice of Pilot Program Covered Transaction 801.501 Notice of pilot program covered transactions. 801.502 Applicability of part 800. 801.503 Additional contents of written notice. 801.504 Agency notice of pilot program covered transactions. Subpart F—Implementation of Certain Authority Provided in FIRRMA 801.601 Implementation of certain authority regarding covered transactions. 801.602 Implementation of certain authority regarding mandatory declarations. Annex A to Part 801—Industries Authority:

    50 U.S.C. 4565; Pub. L. 115-232.

    Subpart A—General
    § 801.101 Scope.

    The regulations in this part implement a pilot program in accordance with section 1727(c) of the Foreign Investment Risk Review Modernization Act of 2018. Pursuant to section 1727(c), the pilot program implements authorities provided in certain provisions of, or amendments made by, the Foreign Investment Risk Review Modernization Act of 2018 that did not take effect on the date of its enactment. This pilot program expands the scope of transactions reviewable by CFIUS to include certain investments by foreign persons in certain U.S. businesses that produce, design, test, manufacture, fabricate, or develop one or more critical technologies. The pilot program also requires that parties to a pilot program covered transaction notify CFIUS of the transaction by either submitting a declaration or filing a written notice. The regulations in this part supplement the existing regulations implementing section 721 of the Defense Production Act of 1950, as amended, under part 800 to Title 31 CFR Chapter VIII, which remain in effect. The pilot program implemented through these regulations will end no later than the date on which the full regulations implementing the Foreign Investment Risk Review Modernization Act of 2018 become effective, and in no event later than the date that is 570 days after the enactment of the Foreign Investment Risk Review Modernization Act of 2018. These regulations will be amended, replaced, or removed no later than the date on which the pilot program ends.

    § 801.102 Effect on other law.

    Unless otherwise indicated, nothing in this part shall be construed as altering or affecting any other authority, process, regulation, investigation, enforcement measure, or review provided by or established under any other provision of federal law, including the International Emergency Economic Powers Act (50 U.S.C. 1701-1706), or any other authority of the President or the Congress under the Constitution of the United States.

    § 801.103 Applicability rule.

    (a) Except as provided in paragraph (b) of this section and otherwise in this part, the regulations in this part apply from the pilot program effective date.

    (b) The regulations in this part do not apply to any transaction for which:

    (1) The completion date is prior to the pilot program effective date; or

    (2) The following has occurred before October 11, 2018:

    (i) The parties to the transaction have executed a binding written agreement or other document establishing the material terms of the transaction;

    (ii) A party has made a public offer to shareholders to buy shares of a pilot program U.S. business; or

    (iii) A shareholder has solicited proxies in connection with an election of the board of directors of a pilot program U.S. business or has requested the conversion of convertible voting securities.

    Subpart B—Definitions
    § 801.201 General.

    Unless otherwise indicated, terms used in the regulations in this part that are defined in §§ 800.201 through 800.228 of this chapter have the meanings set forth therein.

    § 801.202 Completion date.

    The term completion date means, with respect to a transaction, the date upon which an ownership interest, including a contingent equity interest, is conveyed, assigned, delivered, or otherwise transferred to a person, or a change in rights occurs.

    § 801.203 Contingent equity interest.

    The term contingent equity interest means a financial instrument that currently does not entitle its owner or holder to voting rights but is convertible into an equity interest with voting rights.

    § 801.204 Critical technologies.

    The term critical technologies means the following:

    (a) Defense articles or defense services included on the United States Munitions List set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130).

    (b) Items included on the Commerce Control List set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774) and controlled:

    (1) Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or

    (2) For reasons relating to regional stability or surreptitious listening.

    (c) Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities).

    (d) Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material).

    (e) Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73.

    (f) Emerging and foundational technologies controlled pursuant to section 1758 of the Export Control Reform Act of 2018.

    § 801.205 FIRRMA.

    The term FIRRMA means the Foreign Investment Risk Review Modernization Act of 2018, Subtitle A of Title XVII of Public Law 115-232 (Aug. 13, 2018).

    § 801.206 Investment.

    The term investment means the acquisition of equity interest, including contingent equity interest.

    § 801.207 Investment fund.

    The term investment fund means any entity that is an “investment company,” as defined in section 3(a) of the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.), or would be an “investment company” but for one or more of the exemptions provided in section 3(b) or 3(c) thereunder.

    § 801.208 Material nonpublic technical information.

    (a) The term material nonpublic technical information means information that is not available in the public domain, and is necessary to design, fabricate, develop, test, produce, or manufacture critical technologies, including processes, techniques, or methods.

    (b) The term material nonpublic technical information does not include financial information regarding the performance of an entity.

    § 801.209 Pilot program covered investment.

    The term pilot program covered investment means an investment, direct or indirect, by a foreign person in an unaffiliated pilot program U.S. business that could not result in control by a foreign person of a pilot program U.S. business and that affords the foreign person:

    (a) Access to any material nonpublic technical information in the possession of the pilot program U.S. business;

    (b) Membership or observer rights on the board of directors or equivalent governing body of the pilot program U.S. business or the right to nominate an individual to a position on the board of directors or equivalent governing body of the pilot program U.S. business; or

    (c) Any involvement, other than through voting of shares, in substantive decisionmaking of the pilot program U.S. business regarding the use, development, acquisition, or release of critical technology.

    § 801.210 Pilot program covered transaction.

    The term pilot program covered transaction means:

    (a) Any pilot program covered investment; or

    (b) Any transaction by or with any foreign person that could result in foreign control of any pilot program U.S. business, including such a transaction carried out through a joint venture.

    § 801.211 Pilot program effective date.

    The term pilot program effective date means November 10, 2018.

    § 801.212 Pilot program industry.

    The term pilot program industry means any industry identified in Annex A to part 801 by reference to the North American Industry Classification System (NAICS).

    § 801.213 Pilot program U.S. business.

    The term pilot program U.S. business means any U.S. business that produces, designs, tests, manufactures, fabricates, or develops a critical technology that is:

    (a) Utilized in connection with the U.S. business's activity in one or more pilot program industries; or

    (b) Designed by the U.S. business specifically for use in one or more pilot program industries.

    § 801.214 Unaffiliated pilot program U.S. business.

    The term unaffiliated pilot program U.S. business means, with respect to a foreign person, a pilot program U.S. business in which that foreign person does not directly hold more than fifty percent of the outstanding voting interest or have the right to appoint more than half of the members of the board of directors or equivalent governing body.

    Subpart C—Pilot Program Covered Transactions
    § 801.301 Control.

    For the sole purpose of determining whether a transaction could result in control of a pilot program U.S. business by a foreign person, the provisions set forth in subpart C of this part (excluding § 800.302(b) of this chapter and the examples thereunder) regarding covered transactions shall apply to any pilot program covered transaction declared to the Committee pursuant to § 801.401 or notified to the Committee pursuant to § 801.501.

    § 801.302 Transactions that are pilot program covered transactions.

    Transactions that are pilot program covered transactions include, without limitation:

    (a) A transaction that meets the requirements of § 801.209, irrespective of the percentage of voting interest acquired.

    Example 1.

    Corporation A, a foreign person, proposes to acquire a four percent, non-controlling equity interest in Corporation B. Corporation B is a U.S. business that manufactures a critical technology as part of its business in a pilot program industry. Corporation B is therefore a pilot program U.S. business. Pursuant to the terms of the investment, a designee of Corporation A will have the right to observe the meetings of the board of directors of Corporation B. The proposed transaction is a pilot program covered investment and therefore a pilot program covered transaction.

    Example 2.

    Corporation A, a foreign person, proposes to acquire a four percent, non-controlling equity interest in Corporation B, a pilot program U.S. business as described above. Pursuant to the terms of the investment, Corporation A has approval rights with respect to Corporation B's licensing of a critical technology to third parties. Corporation A is therefore involved in substantive decisionmaking with respect to Corporation B and the proposed transaction is a pilot program covered investment and a pilot program covered transaction.

    (b) A transaction that meets the requirements of § 801.209, irrespective of the fact that the Committee concluded all action under section 721 for a previous pilot program covered investment by the same foreign person in the same pilot program U.S. business, where such transaction involves the acquisition of access or rights described by § 801.209 in addition to those notified to the Committee in the transaction for which the Committee previously concluded action.

    Example.

    The Committee concludes all action under section 721 with respect to a pilot program covered investment by Corporation A, a foreign person, in which Corporation A acquires a four percent, non-controlling equity interest with board observer rights in Corporation B, a pilot program U.S. business. One year later, Corporation A proposes to acquire an additional five percent equity interest in Corporation B, resulting in Corporation A holding a nine percent, non-controlling equity interest in Corporation B. Pursuant to the terms of the additional investment, Corporation A will be provided access to material nonpublic technical information in the possession of Corporation B to which Corporation A did not previously have access. The proposed transaction is a pilot program covered investment and therefore a pilot program covered transaction because the transaction involves both an acquisition of an equity interest in a pilot program U.S. business and a new right to access material nonpublic technical information.

    (c) A transaction that meets the requirements of § 801.209, irrespective of the fact that the critical technology produced, designed, tested, manufactured, fabricated, or developed by the pilot program U.S. business became controlled pursuant to section 1758 of the Export Control Reform Act of 2018 after the pilot program effective date, unless any of the criteria set forth in paragraphs (b)(2)(i) through (b)(2)(iii) of § 801.103 is satisfied with respect to the transaction prior to the critical technology becoming controlled pursuant to section 1758 of the Export Control Reform Act of 2018.

    Example.

    Corporation A, a foreign person, has executed a written agreement establishing the material terms of a proposed non-controlling investment in Corporation B, a pilot program U.S. business. The proposed investment will afford Corporation A access to material nonpublic technical information in the possession of Corporation B. The only controlled technology produced, designed, tested, manufactured, fabricated, or developed by Corporation B became controlled pursuant to section 1758 of the Export Control Reform Act of 2018 after the pilot program effective date but prior to the date upon which the written agreement establishing the material terms of the investment was executed. The proposed transaction is a pilot program covered investment and therefore a pilot program covered transaction.

    (d) A transaction by or with any foreign person that could result in foreign control of any pilot program U.S. business.

    Example.

    Corporation A, a foreign person, acquires a 40 percent interest and the ability to determine important matters with respect to Corporation B, a U.S. pilot program business. The proposed transaction is a pilot program covered transaction.

    § 801.303 Transactions that are not pilot program covered transactions.

    Transactions that are not pilot program covered transactions include, without limitation:

    (a) An investment by a foreign person in a U.S. business that manufactures a technology that it utilizes in connection with its activity in one or more pilot program industries, but does not produce, design, test, manufacture, fabricate, or develop one or more critical technologies.

    Example.

    Corporation A, a foreign person, proposes to acquire a four percent, non-controlling equity interest in Corporation B, a U.S. business that operates in a pilot program industry. Pursuant to the terms of the investment, a designee of Corporation A will have the right to observe the meetings of the board of directors of Corporation B. Corporation B does not produce, design, test, manufacture, fabricate, or develop any critical technology. Assuming no other relevant facts, the proposed transaction is not a pilot program covered transaction.

    (b) An investment by a foreign person in a pilot program U.S. business that does not afford the foreign person any of the rights specified in paragraphs (a), (b), or (c) of § 801.209 or any control rights.

    Example.

    The Committee concluded all action under section 721 with respect to a pilot program covered transaction in which Corporation A, a foreign person, acquired a four percent, non-controlling equity interest with board observer rights in Corporation B, a pilot program U.S. business. One year later, Corporation A proposes to acquire an additional five percent equity interest in Corporation B, which would result in Corporation A holding a nine percent, non-controlling equity interest in Corporation B. The proposed investment does not afford Corporation A any additional rights with respect to Corporation B, including the rights specified in § 801.209. Assuming no other relevant facts, the proposed transaction is not a pilot program covered transaction.

    (c) A transaction that results or could result in control by a foreign person of a U.S. business that is not a pilot program U.S. business.

    Example.

    Corporation A, a foreign person, proposes to purchase all of the shares of Corporation B, which is a U.S. business that operates in a pilot program industry but does not produce, design, test, manufacture, fabricate, or develop any critical technology. As the sole owner, Corporation A will have the right to elect directors and appoint other primary officers of Corporation B. Assuming no other relevant facts, the proposed transaction is not a pilot program covered transaction. It is, however, a covered transaction (see § 800.301 of this chapter).

    § 801.304 Treatment of certain investment fund investments.

    (a) An indirect investment by a foreign person in a pilot program U.S. business through an investment fund that affords the foreign person (or a designee of the foreign person) membership as a limited partner or equivalent on an advisory board or a committee of the fund shall not be considered a pilot program covered transaction with respect to the foreign person if:

    (1) The fund is managed exclusively by a general partner, a managing member, or an equivalent;

    (2) The foreign person is not the general partner, managing member, or equivalent;

    (3) The advisory board or committee does not have the ability to approve, disapprove, or otherwise control:

    (i) Investment decisions of the investment fund; or

    (ii) Decisions made by the general partner, managing member, or equivalent related to entities in which the investment fund is invested;

    (4) The foreign person does not otherwise have the ability to control the investment fund, including the authority:

    (i) To approve, disapprove, or otherwise control investment decisions of the investment fund;

    (ii) To approve, disapprove, or otherwise control decisions made by the general partner, managing member, or equivalent related to entities in which the investment fund is invested; or

    (iii) To unilaterally dismiss, prevent the dismissal of, select, or determine the compensation of the general partner, managing member, or equivalent;

    (5) The foreign person does not have access to material nonpublic technical information as a result of its participation on the advisory board or committee; and

    (6) The investment otherwise meets the requirements of paragraph (4)(D) of subsection (a) of section 721 made effective by part 801.

    (b) For the purposes of paragraphs (a)(3) and (4), and except as provided in paragraph (c) of this section, a waiver of a potential conflict of interest, a waiver of an allocation limitation, or a similar activity, applicable to a transaction pursuant to the terms of an agreement governing an investment fund shall not be considered to constitute control of investment decisions of the investment fund or decisions relating to entities in which the investment fund is invested.

    (c) In extraordinary circumstances, the Committee may consider the waiver of a potential conflict of interest, the waiver of an allocation limitation, or a similar activity, applicable to a transaction pursuant to the terms of an agreement governing an investment fund, to constitute control of investment decisions of the investment fund or decisions relating to entities in which the investment fund is invested.

    Example 1.

    Corporation A, a foreign person, makes an investment in an investment fund as a limited partner. The investment confers membership on an advisory board of the investment fund. The investment fund holds 100 percent of the ownership interests in a pilot program U.S. business. Corporation A will have the right to approve decisions made by the general partner with respect to the use and development of the critical technologies produced by the pilot program U.S. business. This transaction is a pilot program covered transaction.

    Example 2.

    Corporation A, a foreign person, makes an investment in an investment fund as a limited partner. The investment confers membership on an advisory board of the investment fund. The investment fund holds 100 percent of the ownership interests in a pilot program U.S. business. Corporation A is not the general partner that wholly manages the investment fund. Corporation A lacks any ability to control the investment fund or its decisions. As a member of the advisory board, Corporation A has the right to vote on the compensation of the general partner and the right to vote on the dismissal of the general partner for cause, but does not have the power to determine either of these matters unilaterally. Assuming no other relevant facts, this transaction is not a pilot program covered transaction with respect to Corporation A.

    § 801.305 Exception for air carriers.

    No investment involving an air carrier, as defined in section 40102(a)(2) of title 49, United States Code, that holds a certificate issued under section 41102 of that title shall be a pilot program covered transaction.

    § 801.306 Timing rule for contingent equity interests.

    The provisions set forth in § 800.304 of this chapter regarding convertible voting instruments shall apply to contingent equity interests.

    Subpart D—Mandatory Declarations Under the Pilot Program
    § 801.401 Mandatory declarations under the pilot program.

    (a) Except as provided in paragraph (b) of this section, the parties to a pilot program covered transaction shall submit to the Committee a declaration with information regarding the transaction in accordance with § 801.402.

    (b) Notwithstanding paragraph (a) of this section, parties to a pilot program covered transaction may elect to submit a written notice pursuant to subpart E of this part regarding the transaction instead of a declaration. Parties to a pilot program covered transaction that have filed with the Committee a written notice regarding a transaction pursuant to § 801.501 may not submit to the Committee a declaration regarding the same transaction or a substantially similar transaction without the approval of the Staff Chairperson.

    (c) Parties shall submit to the Committee the declaration required pursuant to paragraph (a) of this section, or a written notice pursuant to paragraph (b) of this section, no later than:

    (1) November 10, 2018, or promptly thereafter, if the completion date of the transaction is between November 10, 2018 and December 25, 2018; or

    (2) 45 days before the completion date of the transaction, if the completion date of the transaction is after December 25, 2018.

    (d) Section 800.204(e) of this chapter shall not apply with respect to any pilot program covered transaction for which the Committee completes all action under section 721 pursuant to § 801.407(a)(4).

    § 801.402 Procedures for declarations under the pilot program.

    (a) A party or parties shall submit a declaration of a pilot program covered transaction pursuant to § 801.401 by submitting electronically the information set out in § 801.403, including the certifications required thereunder, to the Staff Chairperson in accordance with the submission instructions on the Committee's section of the Department of the Treasury website at https://home.treasury.gov/policy-issues/international/the-committee-on-foreign-investment-in-the-united-states-cfius.

    (b) No communications other than those described in paragraph (a) of this section shall constitute the submission of a declaration for purposes of section 721.

    (c) Information and other documentary material submitted to the Committee pursuant to this section shall be considered to have been filed with the President or the President's designee for purposes of section 721(c).

    (d) Persons filing a declaration shall, during the time that the matter is pending before the Committee, promptly advise the Staff Chairperson of any material changes in plans, facts, or circumstances addressed in the declaration, and any material change in information required to be provided to the Committee under § 801.406(a)(3). Such changes shall become part of the declaration filed by such persons under § 801.401, and the certification required under § 801.405(c) shall apply to such changes.

    § 801.403 Contents of declarations under the pilot program.

    (a) The party or parties submitting a declaration of a pilot program covered transaction pursuant to § 801.401 shall provide the information set out in this section, which must be accurate and complete with respect to all parties and to the transaction. (See also paragraphs (d) and (e) of this section.)

    (b) If fewer than all the parties to a transaction submit a declaration, the Committee may, at its discretion, request that the parties to the transaction file a written notice of the transaction under § 801.501, if the Staff Chairperson determines that the information provided by the submitting party or parties in the declaration is insufficient for the Committee to assess the transaction.

    (c) Subject to paragraph (e) of this section, a declaration submitted pursuant to § 801.401 shall describe or provide, as applicable:

    (1) The name of the foreign person(s) and pilot program U.S. business(es) that are parties to, or, in applicable cases, the subject of the transaction, as well as the name, telephone number, and email address of the primary point of contact for each party.

    (2) The following information regarding the transaction in question, including:

    (i) A brief description of the nature of the transaction and its structure (e.g., share purchase, merger, asset purchase);

    (ii) The percentage of voting interest acquired;

    (iii) The percentage of economic interest acquired;

    (iv) Whether the pilot program U.S. business has multiple classes of ownership;

    (v) The total transaction value in U.S. dollars;

    (vi) The expected closing date; and

    (vii) All sources of financing for the transaction.

    (3) The following:

    (i) A statement as to whether a party to the transaction is stipulating that the transaction is a pilot program covered transaction and a description of the basis for the stipulation; and

    (ii) A statement as to whether a party to the transaction is stipulating that the transaction could result in control of a pilot program U.S. business by a foreign person or that the transaction is a foreign government-controlled transaction and, in each case, a description of the basis for the stipulation.

    (4) A statement as to whether the foreign person will acquire any of the following in the pilot program U.S. business:

    (i) Access to any material nonpublic technical information in the possession of the pilot program U.S. business, and if so, a brief explanation of the type of access and type of information;

    (ii) Membership, observer rights, or nomination rights as set forth in § 801.209(b), and if so, a statement as to the composition of the board or other body both before and after the completion date of the transaction;

    (iii) Any involvement, other than through voting shares, in substantive decisionmaking of the pilot program U.S. business regarding the use, development, acquisition, or release of critical technologies and if so, a statement as to the involvement in such substantive decisionmaking; or

    (iv) Any rights that could result in the foreign person acquiring control of the pilot program U.S. business and, if so, a brief explanation of these rights.

    (5) The following information regarding the pilot program U.S. business:

    (i) Website address;

    (ii) Principal place of business;

    (iii) Place of incorporation or organization; and

    (iv) A list of the addresses or geographic coordinates (to at least the fourth decimal) of all locations of the pilot program U.S. business, including the pilot program U.S. business's headquarters, facilities, and operating locations.

    (6) With respect to the pilot program U.S. business that is the subject of the transaction and any entity of which that pilot program U.S. business is a parent, a brief summary of their respective business activities, as, for example, set forth in annual reports, and the product or service categories of each, including the applicable six-digit NAICS codes.

    (7) A statement as to which critical technology or critical technologies the pilot program U.S. business and its subsidiaries produce, design, test, manufacture, fabricate, or develop, and the relevant six-digit NAICS code or codes, as applicable under §§ 801.212 and 801.213, for each critical technology listed. This statement shall include a description (which may group similar items into general product categories) of the items and a list of any relevant Export Control Classification Numbers under the EAR and United States Munitions List categories under the ITAR, and, if applicable, identify whether any are specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810, nuclear facilities, equipment, and materials covered by 10 CFR part 110 or select agents and toxins covered by 7 CFR part 331, 9 CFR part 121 or 42 CFR part 73.

    (8) A statement as to whether the pilot program U.S. business has any contracts (including any subcontracts, if known) that are currently in effect or were in effect within the past three years with any U.S. Government agency or component, or in the past 10 years if the contract included access to personally identifiable information of U.S. Government personnel.

    (9) A statement as to whether the pilot program U.S. business has any contracts (including any subcontracts, if known) that are currently in effect or were in effect within the past five years involving information, technology, or data that is classified under Executive Order 12958, as amended.

    (10) A statement as to whether the pilot program U.S. business has received any grant or other funding from the Department of Defense or the Department of Energy, or participated in or collaborated on any defense or energy program or product involving one or more critical technologies or pilot program industries within the past five years.

    (11) A statement as to whether the pilot program U.S. business participated in a Defense Production Act Title III Program (50 U.S.C. 4501 et seq.) within the past seven years.

    (12) A statement as to whether the pilot program U.S. business has received or placed priority rated contracts or orders under the Defense Priorities and Allocations System (DPAS) regulation (15 CFR part 700), and the level(s) of priority of such contracts or orders (DX or DO) within the past three years.

    (13) The name of the ultimate parent of the foreign person.

    (14) A complete organizational chart, including, without limitation, information that identifies the name, principal place of business and place of incorporation or other legal organization (for entities), and nationality (for individuals) for each of the following:

    (i) The immediate parent, the ultimate parent, and each intermediate parent, if any, of each foreign person that is a party to the transaction;

    (ii) Where the ultimate parent is a private company, the ultimate owner(s) of such parent; and

    (iii) Where the ultimate parent is a public company, any shareholder with an interest of greater than five percent in such parent.

    (15) Information regarding all foreign government ownership in the foreign person's ownership structure, including nationality and percentage of ownership, as well as any rights that a foreign government holds, directly or indirectly, with respect to the foreign person.

    (16) With respect to the foreign person that is party to the transaction and any of its parents, as applicable, a brief summary of their respective business activities, as, for example, set forth in annual reports.

    (17) A statement as to whether any party to the transaction has been party to another transaction previously notified or submitted to the Committee, and the case number assigned by the Committee regarding such transaction(s).

    (18) A statement (including relevant jurisdiction and criminal case law number or legal citation) as to whether the pilot program U.S. business, the foreign person, or any parent or subsidiary of the foreign person has been convicted in the last ten years of a crime in any jurisdiction.

    (d) Each party submitting a declaration shall provide a certification of the information contained in the declaration consistent with § 800.202 of this chapter. A sample certification may be found on the Committee's section of the Department of the Treasury website at https://home.treasury.gov/policy-issues/international/the-committee-on-foreign-investment-in-the-united-states-cfius.

    (e) A party that offers a stipulation pursuant to paragraph (c)(3) of this section acknowledges that the Committee and the President are entitled to rely on such stipulation in determining whether the transaction is a pilot program covered transaction, a transaction that could result in control of a pilot program U.S. business by a foreign person, or a foreign government-controlled transaction for the purposes of section 721 and all authorities thereunder, and waives the right to challenge any such determination. Neither the Committee nor the President is bound by any such stipulation, nor does any such stipulation limit the ability of the Committee or the President to act on any authority provided under section 721 with respect to any pilot program covered transaction.

    § 801.404 Beginning of thirty-day period.

    (a) Upon receipt of a declaration submitted pursuant to § 801.401, the Staff Chairperson shall promptly inspect the declaration and shall promptly notify in writing all parties to a transaction that have submitted a declaration that:

    (1) The Staff Chairperson has accepted the declaration and circulated the declaration to the Committee, and the date on which the assessment described in paragraph (b) of this section begins; or

    (2) The Staff Chairperson has determined not to accept the declaration and circulate the declaration to the Committee because the declaration is incomplete, and provide an explanation of the material respects in which the declaration is incomplete.

    (b) A thirty-day period for assessment of a pilot program covered transaction that is the subject of a declaration shall commence on the date on which the declaration is received by the Committee from the Staff Chairperson. Such period shall end no later than the thirtieth day after it has commenced, or if the thirtieth day is not a business day, no later than the next business day after the thirtieth day.

    § 801.405 General.

    (a) In assessing a pilot program covered transaction submitted pursuant to § 801.401, the Committee should consider the factors specified in section 721(f) and, as appropriate, require parties to provide to the Committee the information necessary to consider such factors. The Committee's assessment shall examine, as appropriate, whether:

    (1) The transaction constitutes a pilot program covered transaction and whether it could result in foreign government control over a pilot program U.S. business;

    (2) There is credible evidence to support a belief that any foreign person exercising control of the pilot program U.S. business or exercising rights related to a pilot program covered investment might take action that threatens to impair the national security of the United States; and

    (3) Provisions of law, other than section 721 and the International Emergency Economic Powers Act, provide adequate and appropriate authority to protect the national security of the United States with respect to the risk arising from the pilot program covered transaction.

    (b) During the thirty-day assessment period, the Staff Chairperson may invite the parties to a pilot program covered transaction to attend a meeting with the Committee staff to discuss and clarify issues pertaining to the transaction.

    (c) If the Committee notifies the parties to a transaction that have submitted a declaration pursuant to § 801.401 that the Committee intends to complete all action under section 721 with respect to that transaction, each party that has submitted additional information subsequent to the original declaration shall file a certification as described in § 800.202 of this chapter. A sample certification may be found on the Committee's section of the Department of the Treasury website at https://home.treasury.gov/policy-issues/international/the-committee-on-foreign-investment-in-the-united-states-cfius.

    (d) If a party fails to provide the certification required under paragraph (c) of this section, the Committee may, at its discretion, take any of the actions under § 801.407(a).

    § 801.406 Rejection, disposition, or withdrawal of declarations.

    (a) The Committee, acting through the Staff Chairperson, may:

    (1) Reject any declaration that does not comply with § 801.403 and so inform the parties promptly in writing;

    (2) Reject any declaration at any time, and so inform the parties promptly in writing, if, after the declaration has been submitted and before the Committee has taken one of the actions specified in § 801.407(a):

    (i) There is a material change in the pilot program covered transaction as to which a declaration has been submitted; or

    (ii) Information comes to light that contradicts material information provided in the declaration by the party (or parties); or

    (3) Reject any declaration at any time after the declaration has been submitted, and so inform the parties promptly in writing, if the party (or parties) that submitted the declaration does not provide follow-up information requested by the Staff Chairperson within two business days of the request, or within a longer time frame if the party (or parties) so request in writing and the Staff Chairperson grants that request in writing.

    (b) The Staff Chairperson shall notify the parties that submitted a declaration when the Committee has found that the transaction that is the subject of a declaration is not a pilot program covered transaction.

    (c) Parties to a transaction that have submitted a declaration pursuant to § 801.401(a) may request in writing, at any time prior to the Committee taking action under § 801.407(a), that such declaration be withdrawn. Such request shall be directed to the Staff Chairperson and shall state the reasons why the request is being made and state whether the transaction that is the subject of the declaration is being fully and permanently abandoned. An official of the Department of the Treasury will promptly advise the parties to the transaction in writing of the Committee's decision.

    (d) The Committee may not request or recommend that a declaration be withdrawn and refiled, except to permit parties to a pilot program covered transaction to correct material errors or omissions in the declaration submitted with respect to that pilot program covered transaction.

    (e) A party (or parties) may not submit more than one declaration for the same or a substantially similar transaction without approval from the Staff Chairperson.

    § 801.407 Committee actions.

    (a) Upon receiving a declaration submitted pursuant to § 801.401 with respect to a pilot program covered transaction, the Committee may, at the discretion of the Committee:

    (1) Request that the parties to the transaction file a written notice pursuant to subpart E;

    (2) Inform the parties to the transaction that the Committee is not able to complete action under section 721 with respect to the transaction on the basis of the declaration and that the parties may file a written notice under part 800 to seek written notification from the Committee that the Committee has concluded all action under section 721 with respect to the transaction;

    (3) Initiate a unilateral review of the transaction under § 801.504; or

    (4) Notify the parties in writing that the Committee has concluded all action under section 721 with respect to the transaction.

    (b) The Committee shall take action under paragraph (a) within the time period set forth in § 801.404(b).

    § 801.408 Confidentiality.

    The provisions of § 800.702 of this chapter shall apply to information submitted to the Committee through a declaration.

    § 801.409 Penalties.

    (a) Any person who fails to comply with the requirements of § 801.401 may be liable to the United States for a civil penalty not to exceed the value of the pilot program covered transaction.

    (b) The provisions of § 800.801(a), (d), (e), (f), (g), and (h) shall apply to a declaration submitted to the Committee pursuant to § 801.401.

    Subpart E—Notice of Pilot Program Covered Transaction
    § 801.501 Notice of pilot program covered transactions.

    Parties to a pilot program covered transaction may notify the Committee of the transaction by filing with the Committee a written notice pursuant to § 800.401(a) of this chapter and this subpart.

    § 801.502 Applicability of part 800.

    (a) The provisions set forth in Subpart D—Notice; Subpart E—Committee Procedures: Review and Investigation; Subpart F—Finality of Action; Subpart G—Provision and Handling of Information; and Subpart H—Penalties of Part 800 regarding covered transactions shall apply to any pilot program covered transaction notified to the Committee.

    (b) Section 800.204(e) shall not apply with respect to any pilot program covered investment for which the Committee completes all action under section 721 pursuant to § 800.504 or § 800.506(d) of this chapter.

    § 801.503 Additional contents of written notice.

    (a) In addition to the information required pursuant to § 800.402(c), a written notice of a pilot program covered transaction filed pursuant to § 800.401(a) of this chapter shall include the following information:

    (1) A statement as to whether a party to the transaction is stipulating that the transaction is a pilot program covered transaction and a description of the basis for the stipulation;

    (2) A statement as to whether the foreign person will acquire any of the following in the pilot program U.S. business:

    (i) Access to any material nonpublic technical information in the possession of the pilot program U.S. business, and if so, a brief explanation of the type of access and type of information;

    (ii) Membership, observer rights, or nomination rights as set forth in § 801.209(b), and if so, a statement as to the composition of the board or other body both before and after the transaction; or

    (iii) Any involvement, other than through voting shares, in substantive decisionmaking of the United States business regarding the use, development, acquisition, or release of critical technologies and if so, a statement as to the involvement in such substantive decisionmaking; and

    (3) With respect to the pilot program U.S. business that is the subject of the transaction, a statement as to which critical technology or critical technologies the pilot program U.S. business and its subsidiaries produce, design, test, manufacture, fabricate, or develop, and the relevant six-digit NAICS code, as applicable under §§ 801.212 and 801.213, for each critical technology listed. This statement shall include a description (which may group similar items into general product categories) of the items and a list of any relevant Export Control Classification Numbers under the EAR and United States Munitions List categories under the ITAR, and, if applicable, identify whether any are specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810, nuclear facilities, equipment, and materials covered by 10 CFR part 110 or select agents and toxins covered by 7 CFR part 331, 9 CFR part 121 or 42 CFR part 73.

    (b) If the party (or parties) stipulate pursuant to § 800.402(n) of this chapter that the pilot program covered transaction that is the subject of the written notice could result in a covered transaction under part 800, the party (or parties) are not required to include in the written notice the information required by this section.

    (c) A party that offers a stipulation acknowledges that the Committee and the President are entitled to rely on such stipulation in determining whether the transaction is a pilot program covered transaction, a transaction that could result in control of a pilot program U.S. business by a foreign person, or a foreign government-controlled transaction for the purposes of section 721 and all authorities thereunder, and waives the right to challenge any such determination. Neither the Committee nor the President is bound by any such stipulation, nor does any such stipulation limit the ability of the Committee or the President to act on any authority provided under section 721 with respect to any pilot program covered transaction.

    § 801.504 Agency notice of pilot program covered transactions.

    Any member of the Committee, or his designee at or above the Under Secretary or equivalent level, may file an agency notice to the Committee through the Staff Chairperson regarding a pilot program covered transaction for which no declaration has been submitted pursuant to § 801.401 and no written notice has been filed under § 801.501(a) if that member has reason to believe that the transaction is a pilot program covered transaction and may raise national security considerations. Notices filed under this paragraph are deemed accepted upon their receipt by the Staff Chairperson.

    Subpart F—Implementation of Certain Authority Provided In FIRRMA
    § 801.601 Implementation of certain authority regarding covered transactions.

    Paragraphs (4)(A)(ii) (solely with respect to clauses (iii)(II) and (iv)(II) (solely with respect to an investment described in section 721(a)(4)(B)(iii)(II)) of subparagraph (B)), (4)(B)(iii)(II), (4)(B)(iv)(II) (solely with respect to an investment described in section 721(a)(4)(B)(iii)(II)), (4)(D)(i)(I), 4(D)(i)(II), (4)(D)(i)(III)(bb), (4)(D)(ii)(I)(bb), (4)(D)(ii)(II), (4)(D)(iii)(I), (4)(D)(iv), and (4)(D)(v) of subsection (a) of section 721 shall take effect on the pilot program effective date solely with respect to any pilot program covered transaction. Paragraph (4)(A)(ii) (solely with respect to clauses (iv)(I) and (v) of subparagraph (B)) of subsection (a) of section 721 shall take effect on the pilot program effective date.

    § 801.602 Implementation of certain authority regarding mandatory declarations.

    Paragraphs (1)(C)(v)(I), (II), (III), (IV)(aa), (IV)(cc), (IV)(dd), (IV)(ee), (IV)(ff), and (IV)(gg) of subsection (b) of section 721 shall take effect on the pilot program effective date solely with respect to any pilot program covered transaction.

    Annex A to Part 801—Industries Aircraft Manufacturing NAICS Code: 336411 Aircraft Engine and Engine Parts Manufacturing NAICS Code: 336412 Alumina Refining and Primary Aluminum Production NAICS Code: 331313 Ball and Roller Bearing Manufacturing NAICS Code: 332991 Computer Storage Device Manufacturing NAICS Code: 334112 Electronic Computer Manufacturing NAICS Code: 334111 Guided Missile and Space Vehicle Manufacturing NAICS Code: 336414 Guided Missile and Space Vehicle Propulsion Unit and Propulsion Unit Parts Manufacturing NAICS Code: 336415 Military Armored Vehicle, Tank, and Tank Component Manufacturing NAICS Code: 336992 Nuclear Electric Power Generation NAICS Code: 221113 Optical Instrument and Lens Manufacturing NAICS Code: 333314 Other Basic Inorganic Chemical Manufacturing NAICS Code: 325180 Other Guided Missile and Space Vehicle Parts and Auxiliary Equipment Manufacturing NAICS Code: 336419 Petrochemical Manufacturing NAICS Code: 325110 Powder Metallurgy Part Manufacturing NAICS Code: 332117 Power, Distribution, and Specialty Transformer Manufacturing NAICS Code: 335311 Primary Battery Manufacturing NAICS Code: 335912 Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing NAICS Code: 334220 Research and Development in Nanotechnology NAICS Code: 541713 Research and Development in Biotechnology (except Nanobiotechnology) NAICS Code: 541714 Secondary Smelting and Alloying of Aluminum NAICS Code: 331314 Search, Detection, Navigation, Guidance, Aeronautical, and Nautical System and Instrument Manufacturing NAICS Code: 334511 Semiconductor and Related Device Manufacturing NAICS Code: 334413 Semiconductor Machinery Manufacturing NAICS Code: 333242 Storage Battery Manufacturing NAICS Code: 335911 Telephone Apparatus Manufacturing NAICS Code: 334210 Turbine and Turbine Generator Set Units Manufacturing NAICS Code: 333611
    Dated: October 4, 2018. Steven T. Mnuchin, Secretary.
    [FR Doc. 2018-22182 Filed 10-10-18; 8:45 am] BILLING CODE 4810-25-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0855] RIN 1625-AA00 Safety Zone; Ohio River, Cincinnati, OH AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for all navigable waters of the Ohio River, extending the entire width of the river, from mile marker (MM) 469 to MM 470.5 in Cincinnati, OH. This safety zone is necessary to provide for the safety of persons, vessels, and the marine environment during the Yeatman's Cove fireworks display. Entry into, transiting through, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Sector Ohio Valley or a designated representative.

    DATES:

    This rule is effective from 8 p.m. through 9 p.m. on October 11, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0855 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Petty Officer Matthew Roberts, Marine Safety Detachment Cincinnati, U.S. Coast Guard; telephone 513-921-9033, email [email protected]

    SUPPLEMENTARY INORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Ohio Valley DHS Department of Homeland Security FR Federal Register MM Mile marker NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(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. This safety zone must be established by October 11, 2018, and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the safety zone until after the scheduled date of the fireworks and compromise public safety.

    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 this rule would be contrary to public interest because immediate action is necessary to respond to the potential safety hazards associated with the fireworks display.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the fireworks display will be a safety concern for all navigable waters of the Ohio River extending from mile marker (MM) 469 to MM 470.5. The purpose of this rule is to ensure safety of persons, vessels, and the marine environment before, during, and after the Yeatman's Cove fireworks.

    IV. Discussion of the Rule

    This rule establishes a temporary safety zone from 8 p.m. through 9 p.m. on October 11, 2018. The temporary safety zone will cover all navigable waters of the Ohio River, extending the entire width of the river, from MM 469 to MM 470.5. The duration of the temporary safety zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled fireworks display.

    No vessel or person will be permitted to enter the temporary safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Ohio Valley. Persons or vessels may request permission to enter the safety zone from the COTP or a designated representative. They may be contacted on VHF-FM radio channel 16 or phone at 1-800-253-7465. If permission is granted, all persons and vessels must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or a designated representative. The COTP or a designated representative will inform the public of the enforcement date and times for this safety zone, as well as any changes, through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

    V. Regulatory Analyses

    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.

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, and duration of the temporary safety zone. This temporary safety zone impacts a one and a half-mile stretch of the Ohio River for one hour on one evening. Moreover, the Coast Guard will issue BNMs via VHF-FM marine channel 16 about the zone, and the rule allows vessels to seek permission to enter the zone.

    B. Impact on Small Entities

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this 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.

    E. Unfunded Mandates Reform Act

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

    F. Environment

    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 temporary safety zone that will prohibit entry on a one and a half mile stretch of the Ohio River for one hour. This rule is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under ADDRESSES.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. Add § 165.T08-0855 to read as follows:
    § 165.T08-0855 Safety Zone; Ohio River, Cincinnati, OH.

    (a) Location. All navigable waters of the Ohio River, extending the entire width of the river, from mile marker (MM) 469 to MM 470.5 in Cincinnati, OH.

    (b) Effective period. This section is effective from 8 p.m. through 9 p.m. on October 11, 2018.

    (c) Regulations. (1) In accordance with the general regulations in § 165.23, entry into this zone is prohibited unless specifically authorized by the Captain of the Port Sector Ohio Valley (COTP) or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Ohio Valley.

    (2) Persons or vessels desiring to enter into or pass through the zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM radio channel 16 or phone at 1-800-253-7465.

    (3) If permission is granted, all persons and vessels must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or a designated representative.

    (d) Informational broadcasts. The COTP or a designated representative will inform the public of the enforcement date and times for this safety zone, as well as any changes, through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

    Dated: October 5, 2018. M.B. Zamperini, Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
    [FR Doc. 2018-22155 Filed 10-10-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0905] RIN 1625-AA00 Safety Zone; Upper Mississippi River, Mile 182.5, St. Louis, MO AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for all navigable waters within 500 yards of the McKinley Highway and Railroad Bridge located on the Upper Mississippi River at mile marker (MM) 182.5. The safety zone is needed to protect persons, vessels, and the marine environment from potential hazards created by the installation of electrical lines across the river. Entry of persons or vessels into this zone is prohibited unless specifically authorized by the Captain of the Port Sector Upper Mississippi River or a designated representative.

    DATES:

    This rule is effective without actual notice from October 11, 2018 until October 19, 2018. For the purposes of enforcement, actual notice will be used from September 28, 2018 until October 11, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov, type USCG-2018-0905 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Petty Officer Kyle Weitzell, Sector Upper Mississippi River Waterways Management Division, U.S. Coast Guard; telephone 314-269-2573, email [email protected]

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Upper Mississippi River DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The final details regarding this project were not determined until September 17, 2018. We must establish this safety zone by September 28, 2018, and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. The NPRM process would delay establishment of the safety zone until after the date of the electrical line work and compromise public safety.

    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 necessary to respond to the potential safety hazards associated with electrical line installation over the Upper Mississippi River.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Sector Upper Mississippi River (COTP) has determined that potential hazards associated with electrical line installation over the Upper Mississippi River will be a safety concern for anyone within 500 yards of the McKinley Highway and Railroad Bridge at MM 182.5. This rule is needed to protect persons, vessels, and the marine environment on the navigable waters within the safety zone while electrical lines are pulled across the river.

    IV. Discussion of the Rule

    This rule establishes a temporary safety zone for a three week period from September 28, 2018 through October 19, 2018, or until the electrical line work is completed, whichever occurs first. The safety zone will cover all navigable waters within 500 yards of the McKinley Highway and Railroad Bridge at MM 182.5 on the Upper Mississippi River, extending the entire width of the river. Transit into and through this safety zone is prohibited during periods of enforcement. This zone will be enforced on approximately nine days during the effective period, during daylight hours, and for approximately five hours on each day. This zone will begin each day that electrical line work is to be performed from approximately 9 a.m. through 2 p.m. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs) and/or through other means of public notice at least 12 hours in advance of each enforcement period, and a safety vessel will coordinate all vessel traffic during the enforcement periods. In addition, the COTP or a designated representative will release regular BNMs while the zone is in effect and will also announce the suspension of zone date via VHF-FM marine channel 16.

    The duration of this temporary safety zone is intended to protect persons, vessels, and the marine environment on these navigable waters while the electrical lines are being pulled across the river. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Upper Mississippi River. To seek entry into the safety zone, contact the COTP or the COTP's designated representative by telephone at 314-269-2332 or on VHF-FM channel 16. Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative. The COTP or a designated representative will inform the public of the enforcement dates and times for this safety zone, as well as any emergent safety concerns that may delay the suspension of the zone each day, through BNMs, Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

    V. Regulatory Analyses

    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.

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, and duration of the safety zone. This safety zone impacts a one-half mile stretch of the Upper Mississippi River for approximately five hours on each of nine days. Moreover, the Coast Guard will issue BNMs via VHF-FM marine channel 16 about the zone, and the rule allows vessels to seek permission to enter the zone.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this 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 safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator because the rule will allow persons and vessels to seek permission to enter the zone and coordinated entry may be arranged on a case by case basis. Additionally, coordination with several waterways users has taken place to mitigate as much impact as possible.

    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.

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this 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.

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that is anticipated to last approximately 5 hours per day for approximately 9 days during the effective period of this rule which will prohibit entry within 500 yards of the McKinley Highway and Railroad Bridge at MM 182.5 on the Upper Mississippi River. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. Add § 165.T08-0905 to read as follows:
    § 165.T08-0905 Safety Zone; Upper Mississippi River, mile 182.5, St. Louis, MN.

    (a) Location. The following area is a safety zone: All navigable waters within 500 yards of the McKinley Highway and Railroad Bridge at mile marker (MM) 182.5 on the Upper Mississippi River, extending the entire width of the river.

    (b) Effective period. This section is effective from September 28, 2018 through October 19, 2018.

    (c) Enforcement periods. This section will be enforced on approximately 9 days during the effective period. This section will be enforced each day that electrical line work is to be performed from approximately 9 a.m. through 2 p.m. The Captain of the Port Sector Upper Mississippi River (COTP) or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs) and/or through other means of public notice at least 12 hours in advance of each enforcement period, and a safety vessel will coordinate all vessel traffic during the enforcement periods. In addition, the COTP or a designated representative will release regular BNMs while the zone is in effect and will also announce the suspension of enforcement of the zone on VHF-FM marine channel 16.

    (d) Regulations. (1) In accordance with the general regulations in § 165.23 of this part, entry of vessels or persons into this zone is prohibited unless specifically authorized by the COTP or designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Upper Mississippi River.

    (2) Vessels requiring entry into this safety zone must request permission from the COTP or a designated representative. To seek entry into the safety zone, contact the COTP or the COTP's representative by telephone at 314-269-2332 or on VHF-FM channel 16.

    (3) Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.

    (e) Information broadcasts. The COTP or a designated representative will inform the public of the enforcement dates and times for this safety zone, as well as any emergent safety concerns that may delay the enforcement of the zone each day, through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

    Dated: September 28, 2018. S.A. Stoermer, Captain, U.S. Coast Guard, Captain of the Port Sector Upper Mississippi River.
    [FR Doc. 2018-22033 Filed 10-10-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0937] RIN 1625-AA00 Safety Zone; Transmission Line Survey, Tennessee River Mile Marker 300 to 302, Decatur, AL AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for all navigable waters of the Tennessee River from mile marker 300 to mile marker 302. This safety zone is necessary to protect persons, property, and the marine environment from potential hazards associated with the underwater survey of several transmission lines. Entry of vessels or persons into this zone is prohibited unless authorized by the Captain of the Port Sector Ohio Valley or a designated representative.

    DATES:

    This rule is effective from 8 a.m. on October 10, 2018 through 6 p.m. on October 17, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0937 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Petty Officer Nicholas Jones, Marine Safety Detachment Nashville, U.S. Coast Guard; telephone 615-736-5421, email [email protected]

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Ohio Valley DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    On September 25, 2018, Triton Diving Services notified Marine Safety Detachment Nashville that their underwater transmission line survey at mile marker 301 of the Tennessee River would be ready to commence on October 10, 2018. Triton Diving Services estimates that the work will take one week, and will conclude no later than October 17, 2018.

    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 (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this safety zone by October 10, 2018, and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. The NPRM process would delay the establishment of the safety zone until after the underwater transmission line survey and compromise public safety.

    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it 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 potential safety hazards associated with the underwater transmission line survey.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the underwater transmission line survey will be a safety concern for anyone on a two-mile stretch of the Tennessee River. This rule is necessary to protect persons, vessels, and the marine environment during the transmission line operations.

    IV. Discussion of the Rule

    This rule establishes a temporary safety zone from 8 a.m. on October 10, 2018 through 6 p.m. on October 17, 2018, or until the underwater transmission line survey work is finished, whichever occurs earlier. The safety zone covers all navigable waters from mile marker 300 to mile marker 302 on the Tennessee River in Decatur, AL. The safety zone will be enforced for two periods on each day of the effective period, in the morning from 8 a.m. through noon, and in the afternoon from 1 p.m. through 6 p.m. A safety vessel will coordinate all vessel traffic during the enforcement periods. The duration of the safety zone is intended to protect persons, vessels, and the marine environment during the transmission line operations.

    No vessel or person is permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of Sector Ohio Valley, U.S. Coast Guard. They may be contacted on VHF Channel 13 or 16, or at 1-800-253-7465. All persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all directions issued by the COTP or the designated representative. The COTP or a designated representative will inform the public of the enforcement times and dates for this safety zone through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.

    V. Regulatory Analyses

    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.

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, and duration, of the temporary safety zone. This safety zone prohibits transit on a two-mile stretch of the Tennessee River for about 9 hours on each day of the 7 day period. Breaks in the work will allow for vessels to pass through the safety zone between the morning and afternoon enforcement periods, and a safety vessel will be on-scene to help waterway users coordinate their transits. Moreover, the Coast Guard will issue BNMs via VHF-FM marine channel 16 about the zone, and the rule allows vessels to seek permission to enter the zone.

    B. Impact on Small Entities

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this 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.

    E. Unfunded Mandates Reform Act

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

    F. Environment

    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 prohibits transit on a one-mile stretch of the Tennessee River for about 12 hours on weekdays only during a one-month period. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

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

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

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.2.

    2. Add new § 165.T08-0937 to read as follows:
    § 165.T08-0937 Safety Zone; Transmission Line Survey, Tennessee River, Miles 300 to 302, Decatur, AL.

    (a) Location. All navigable waters of the Tennessee River from mile marker 300.0 to mile marker 302.0, Decatur, AL.

    (b) Effective period. This section is effective from 8 a.m. on October 10, 2018 through 6 p.m. on October 17, 2018, or until the underwater transmission line survey work is finished, whichever occurs earlier.

    (c) Enforcement periods. This section will be enforced each day during the effective period from 8 a.m. through noon, and from 1 p.m. through 6 p.m. A safety vessel will coordinate all vessel traffic during the enforcement periods.

    (d) Regulations. (1) In accordance with the general regulations in § 165.801 of this part, entry into this area is prohibited unless authorized by the Captain of the Port Sector Ohio Valley (COTP) or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of Sector Ohio Valley, U.S. Coast Guard.

    (2) Persons or vessels requiring entry into or passage through the area must request permission from the COTP or a designated representative. U.S. Coast Guard Sector Ohio Valley may be contacted on VHF Channel 13 or 16, or at 1-800-253-7465.

    (3) A safety vessel will coordinate all vessel traffic during the enforcement of this safety zone. All persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all directions issued by the COTP or the designated representative.

    (e) Information broadcasts. The COTP or a designated representative will inform the public of the enforcement times and dates for this safety zone through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.

    Dated: October 5, 2018. M.B. Zamperini, Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
    [FR Doc. 2018-22160 Filed 10-10-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF COMMERCE Patent and Trademark Office 37 CFR Part 42 [Docket No. PTO-P-2018-0036] RIN 0651-AD16 Changes to the Claim Construction Standard for Interpreting Claims in Trial Proceedings Before the Patent Trial and Appeal Board AGENCY:

    United States Patent and Trademark Office, Department of Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    The United States Patent and Trademark Office (“USPTO” or “Office”) revises the claim construction standard for interpreting claims in inter partes review (“IPR”), post-grant review (“PGR”), and the transitional program for covered business method patents (“CBM”) proceedings before the Patent Trial and Appeal Board (“PTAB” or “Board”). In particular, the Office is replacing the broadest reasonable interpretation (“BRI”) standard such that claims shall now be construed using the same claim construction standard that is used to construe the claim in a civil action in federal district court. This rule reflects that the PTAB in an AIA proceeding will apply the same standard applied in federal courts to construe patent claims. The Office also amends the rules to add that any prior claim construction determination concerning a term of the claim in a civil action, or a proceeding before the International Trade Commission (“ITC”), that is timely made of record in an IPR, PGR, or CBM proceeding will be considered.

    DATES:

    Effective Date: The changes in this final rule take effect on November 13, 2018.

    Applicability Date: This rule is effective on November 13, 2018 and applies to all IPR, PGR and CBM petitions filed on or after the effective date.

    FOR FURTHER INFORMATION CONTACT:

    Michael Tierney and Jacqueline Wright Bonilla, Vice Chief Administrative Patent Judges, by telephone at (571) 272-9797.

    SUPPLEMENTARY INFORMATION:

    Executive Summary

    Purpose: This final rule revises the rules for IPR, PGR, and CBM proceedings that implemented provisions of the Leahy-Smith America Invents Act (“AIA”) providing for trials before the Office, by replacing the BRI standard for interpreting unexpired patent claims and substitute claims proposed in a motion to amend with the same claim construction standard that would be used to construe the claim in a civil action under 35 U.S.C. 282(b). The rule adopts the same claim construction standard used by Article III federal courts and the ITC, both of which follow Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc), and its progeny. Under the final rule, the PTAB will apply in an AIA proceeding the same standard applied in federal courts to construe patent claims. This final rule also amends the rules to add a new provision which states that any prior claim construction determination in a civil action or proceeding before the ITC regarding a term of the claim in an IPR, PGR, or CBM proceeding will be considered if that determination is timely filed in the record of the IPR, PRG or CBM proceeding.

    Summary of Major Provisions: The Office is using almost six years of historical data, user experiences, and stakeholder feedback to further shape and improve PTAB proceedings, particularly IPR, PGR, and CBM proceedings (“AIA proceedings”). As part of the Office's continuing efforts to improve AIA proceedings, the Office now changes the claim construction standard applied in AIA proceedings involving unexpired patent claims and substitute claims proposed in a motion to amend. The Supreme Court of the United States has endorsed the Office's ability to choose an approach to claim construction for AIA proceedings. Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144-46 (2016) (“That [the appropriate claim construction standard for AIA proceedings] is a question that Congress left to the particular expertise of the Patent Office.”).

    In the notice of proposed rulemaking, the Office sought comments on the Office's proposed changes to the claim construction standard used for interpreting unexpired patent claims and substitute claims proposed in a motion to amend. Changes to the Claim Construction Standard for Interpreting Claims in Trial Proceeding Before the Patent Trial and Appeal Board, 83 FR 21221 (May 9, 2018).

    The Office received a total of 374 comments, including 297 comments from individuals, 45 comments from associations, 1 comment from a law firm, and 31 comments from corporations. The majority of the comments were supportive of changing the claim construction standard along the lines set forth in the proposed rule. For example, major bar associations, industry groups, patent practitioners, legal professors and scholars, and individuals all supported the change. The commentators also provided helpful insights and suggested revisions, which have been considered in developing this final rule. While there was broad support expressed for using the federal court standard set forth in the proposed rule, some commentators indicated that they were opposed to the change. The Office appreciates the thoughtful comments representing a diverse set of views from the various public stakeholder communities. Upon careful consideration of the public comments, taking into account the effect of the rule changes on the economy, the integrity of the patent system, the efficient administration of the Office, and the ability of the Office to timely complete instituted proceedings, the Office adopts the proposed rule changes (with minor deviations in the rule language, as discussed below). Any deviations from the proposed rule are based upon a logical outgrowth of the comments received.

    In particular, this final rule fully adopts the federal court claim construction standard, in other words, the claim construction standard that is used to construe the claim in a civil action under 35 U.S.C. 282(b), which is articulated in Phillips and its progeny. This rule states that the PTAB in an AIA proceeding will apply the same standard applied in federal courts to construe patent claims. The claim construction standard adopted in this final rule also is consistent with the same standard that the Office has applied in interpreting claims of expired patents and soon-to-be expired patents. See, e.g., Wasica Fin. GmbH v. Cont'l Auto. Sys., Inc., 853 F.3d 1272, 1279 (Fed. Cir. 2017) (noting that “[t]he Board construes claims of an expired patent in accordance with Phillips . . . [and] [u]nder that standard, words of a claim are generally given their ordinary and customary meaning”). This final rule also revises the rules to add that the Office will consider any prior claim construction determination concerning a term of the claim that has been made in a civil action, or a proceeding before the ITC, if that prior claim construction is timely made of record in an AIA proceeding.

    Costs and Benefits: This final rule is significant under Executive Order 12866 (Sept. 30, 1993).

    Background

    On September 16, 2011, the AIA was enacted into law (Pub. L. 112-29, 125 Stat. 284 (2011)), and within one year, the Office implemented rules to govern Office practice for AIA proceedings, including IPR, PGR, CBM, and derivation proceedings pursuant to 35 U.S.C. 135, 316 and 326 and AIA sec. 18(d)(2). See Rules of Practice for Trials Before the Patent Trial and Appeal Board and Judicial Review of Patent Trial and Appeal Board Decisions, 77 FR 48612 (Aug. 14, 2012); Changes to Implement Inter Partes Review Proceedings, Post-Grant Review Proceedings, and Transitional Program for Covered Business Method Patents, 77 FR 48680 (Aug. 14, 2012); Transitional Program for Covered Business Method Patents—Definitions of Covered Business Method Patent and Technological Invention, 77 FR 48734 (Aug. 14, 2012). Additionally, the Office published a Patent Trial Practice Guide to advise the public on the general framework of the regulations, including the procedure and times for taking action in each of the new proceedings. See Office Patent Trial Practice Guide, 77 FR 48756 (Aug. 14, 2012).

    Previously, in an effort to gauge the effectiveness of the rules governing AIA proceedings, the Office led a nationwide listening tour in April and May of 2014. During the listening tour, the Office solicited feedback on how to make AIA proceedings more transparent and effective by adjusting the rules and guidance to the public where necessary. To elicit even more input, in June of 2014, the Office published a Request for Comments in the Federal Register and, at public request, extended the period for receiving comments to October 16, 2014. See Request for Comments on Trial Proceedings Under the America Invents Act Before the Patent Trial and Appeal Board, 79 FR 36474 (June 27, 2014) (“Request for Comments”). The Request for Comments asked seventeen questions on ten broad topics, including a general catchall question, to gather public feedback on any changes to AIA proceedings that might be beneficial. See Request for Comments, 79 FR at 36476-77. At least one question was directed to the claim construction standard.

    Upon receiving comments from the public and carefully reviewing the comments, the Office published two final rules in response to the public feedback on this request for comments. In the first final rule, the Office changed the existing rules to, among other things: (1) Increase the page limit for patent owner's motion to amend by ten pages and allow a claims appendix to be filed with the motion; and (2) increase the page limit for petitioner's reply to patent owner's response by ten pages. Amendments to the Rules of Practice for Trials Before the Patent Trial and Appeal Board, 80 FR 28561 (May 19, 2015). In the second final rule, the Office changed the existing rules to, among other things: (1) Allow new testimonial evidence to be submitted with a patent owner's preliminary response; (2) allow a claim construction approach that emulates the approach used by a district court for claims of patents that will expire before entry of a final written decision; (3) replace page limits with word count limits for major briefing; and (4) add a Rule 11-type certification for papers filed in a proceeding. Amendments to Rules of Practice for Trials Before the Patent Trial and Appeal Board, 81 FR 18750 (April 1, 2016).

    The Office last issued a rule package regarding AIA proceedings on April 1, 2016. This final rule was based on comments received during a comment period that opened on August 20, 2015 (only a month after the Federal Circuit's July 2015 decision in the appeal of the first IPR filed, Cuozzo Speed Technologies, LLC v. Lee) and that closed on November 18, 2015. At that time, the appeal of the Federal Circuit's decision in Cuozzo had not yet been decided by the Supreme Court (it was decided on June 20, 2016). Due to the life cycle of AIA trial proceedings and appeals, the comments received during this 2015 comment period came when few Federal Circuit decisions had been issued, and there had been no decisions on AIA appeals from the Supreme Court. From 2016 to present there has been a six-fold increase in the number of opinions relating to AIA proceedings issued by the Federal Circuit as compared to the prior 2012-2015 time frame. Additionally, since the last rule package, the Office has continued to receive extensive stakeholder feedback requesting adoption of the district court claim construction standard for all patents challenged in AIA proceedings. Many of the comments are based on case law and data that was not available when the comments to the last rule package were received in FY 2015. Further, recent studies not available at the time of the 2016 rule package support the concerns expressed by stakeholders regarding the unfairness of using a different claim construction standard in AIA proceedings than that used by the district courts. See Niky R. Bagley, Treatment of PTAB Claim Construction Decisions: Aspiring to Consistency and Predictability, 32 Berkeley Tech. L.J. 315, 355 (2018) (the application of a different standard may encourage a losing party to attempt a second bite at the apple, resulting in a waste of the parties' and judicial resources alike); Kevin Greenleaf et al., How Different are the Broadest Reasonable Interpretation and Phillips Claim Construction Standards 15 (2018), available at http://www.ipo.org/wp-content/uploads/2018/07/BRI-v-Phillips-Final.pdf (prospect of differing claim constructions for same claim term is troubling and these differences can determine the outcome of a case); Laura E. Dolbow, A Distinction without a Difference: Convergence in Claim Construction Standards, 70 V and L. Rev. 1071, 1103 (2017) (maintaining the separate standards presents problems with inefficiency, lack of uniformity, and decreased confidence in patent rights).

    Claim Construction Standard

    Prior to this rulemaking, the PTAB construed unexpired patent claims and proposed substitute claims in AIA proceedings using the BRI standard. The BRI standard differs from the standard used in federal courts and the ITC, which construe patent claims in accordance with the principles that the United States Court of Appeals for the Federal Circuit articulated in Phillips.

    Although the BRI standard is consistent with longstanding agency practice for patents in examination, the fact that the Office uses a claim construction standard in AIA proceedings that is different from that used by federal courts and the ITC means that decisions construing the same or similar claims in those fora may be different from those in AIA proceedings and vice versa. Minimizing differences between claim construction standards used in the various fora will lead to greater uniformity and predictability of the patent grant, improving the integrity of the patent system. In addition, using the same standard in the various fora will help increase judicial efficiency overall. One study found that 86.8% of patents at issue in AIA proceedings also have been the subject of litigation in the federal courts, and the Office is not aware of any change in this percentage since this study was undertaken. Saurabh Vishnubhakat, Arti K. Rai & Jay P. Kesan, Strategic Decision Making in Dual PTAB and District Court Proceedings, 31 Berkeley Tech. L.J. 45 (2016) (available at https://ssrn.com/abstract=2731002). The high percentage of overlap between AIA proceedings and district court litigation favors using a claim construction standard in AIA proceedings that is the same as the standard used by federal courts and the ITC. That is, the scope of an issued patent should not depend on the happenstance of which court or governmental agency interprets it, at least as far as the objective rules go. Employing the same standard for AIA proceedings and district courts improves uniformity and predictability as it allows the different fora to use the same standards in interpreting claims. See, e.g., Automated Packaging Sys., Inc. v. Free Flow Packaging Int'l, Inc., No. 18-cv-00356, 2018 WL 3659014, at *3 (N.D. Cal. Aug. 2, 2018) (finding that a party's failure to advance a particular claim construction during an IPR proceeding “is not probative to Markman claim construction” because material differences exist between the broadest reasonable interpretation and claim construction under Phillips); JDS Techs., Inc. v. Avigilon USA Corp., No. 15-cv-10385, 2017 WL 4248855, at *6 (E.D. Mich. Jul. 25, 2017) (holding that arguments in IPR submissions are not relevant to claim construction because “the USPTO's broadest reasonable construction standard of claim construction has limited significance in the context of patent infringement, which is governed by the more comprehensive scrutiny and principles required by Phillips and its progeny”).

    In addition, having AIA proceedings use the same claim construction standard that is applied in federal courts and ITC proceedings also addresses the concern that potential unfairness could result from using an arguably broader standard in AIA proceedings. According to some patent owners, the same claim construction standard should apply to both a validity (or patentability) determination and an infringement determination. Because the BRI standard potentially reads on a broader universe of prior art than does the Phillips standard, a patent claim could potentially be found unpatentable in an AIA proceeding on account of claim scope that the patent owner would not be able to assert in an infringement proceeding. For example, even if a competitor's product would not be found to infringe a patent claim (under the Phillips standard) if it was sold after the patent's effective filing date, the same product nevertheless could potentially constitute invalidating prior art (under the BRI standard) if publicly sold before the patent's effective filing date. As noted by one study, the possibility of differing constructions for the same claim term is troubling, especially when claim construction takes place at the same time in parallel district court proceedings and USPTO proceedings. Greenleaf at 3.

    The Office's goal is to implement a balanced approach, providing greater predictability and certainty in the patent system. The Office has carefully considered the submitted comments in view of “the effect of [the] regulation on the economy, the integrity of the patent system, the efficient administration of the Office, and the ability of the Office to complete timely the proceedings in promulgating regulations.” 35 U.S.C. 316(b) and 326(b). Under 35 U.S.C. 316(a)(4) and 326(a)(4), the Office shall prescribe regulations establishing and governing IPR, PGR, and CBM proceedings and the relationship of such reviews to other proceedings, including civil actions under 35 U.S.C. 282(b). Under 35 U.S.C. 316(a)(2) and 326(a)(2), the Office must prescribe regulations “setting forth the standards for the showing of sufficient grounds to institute a review.” Congress intended these administrative trial proceedings to provide “quick and cost effective alternatives” to litigation in the courts. H.R. Rep. No. 112−98, pt. 1, at 48 (2011), as reprinted in 2011 U.S.C.C.A.N. 67, 78; see also id. at 40 (“[The AIA] is designed to establish a more efficient and streamline patent system that will improve patent quality and limit unnecessary and counterproductive litigation costs.”). The claim construction standard could be outcome determinative. PPC Broadband, Inc. v. Corning Optical Comm'ns RF, LLC, 815 F.3d 734, 740-42 (Fed. Cir. 2016) (noting that “[t]his case hinges on the claim construction standard applied—a scenario likely to arise with frequency”); see also Rembrandt Wireless Techs., LP v. Samsung Elecs. Co., 853 F.3d 1370, 1377 (Fed. Cir. 2017) (noting that “the Board in IPR proceedings operates under a broader claim construction standard than the federal courts”); Google LLC v. Network-1 Techs., Inc., No. 2016-2509, 2018 WL 1468370, at *5 (Fed. Cir. Mar. 26, 2018) (nonprecedential) (holding that “[i]n order to be found reasonable, it is not necessary that a claim be given its correct construction under the framework laid out in Phillips.”). Using the same claim construction standard as the standard applied in federal courts would “seek out the correct construction—the construction that most accurately delineates the scope of the claim invention—under the framework laid out in Phillips.” PPC Broadband, 815 F.3d at 740.

    In this final rule, the Office revises the rules to provide that a patent claim, or a claim proposed in a motion to amend, shall be construed using the same claim construction standard that would be used to construe the claim in a civil action under 35 U.S.C. 282(b), including construing the claim in accordance with the ordinary and customary meaning of such claim as understood by one of ordinary skill in the art and the prosecution history pertaining to the patent. This rule reflects that the PTAB in an AIA proceeding will apply the same standard applied in federal courts to construe patent claims. This change replaces the BRI standard for construing unexpired patent claims and proposed substitute claims in IPR, PGR, and CBM proceedings with the federal court claim construction standard, which is articulated in Phillips and its progeny.

    Under the amended rules as adopted in this final rule, the Office will construe patent claims and proposed substitute claims in an IPR, PGR, or CBM proceeding by taking into account the claim language itself, the specification, the prosecution history of the patent, and extrinsic evidence, among other things, as briefed by the parties. Having the same claim construction standard for both the original patent claims and proposed substitute claims will reduce the potential for inconsistency in the interpretation of the same or similar claim terms. Additionally, using the federal court claim construction standard is appropriate because, among other things, amendments proposed in AIA proceedings are required to be narrowing, are limited to a reasonable number of substitute claims, and are required to address patentability challenges asserted against the original patent claims. Using the same claim construction standard for interpreting both the original and amended claims also avoids the potential of added complexity and inconsistencies between PTAB and federal court proceedings, and this allows, among other things, the patent owner to understand the scope of the claims and more effectively file motions to amend. Additionally, having the same construction will reduce the potential for situations where a claim term of an original patent claim is construed one way under the federal court standard and yet the very same or similar term is construed a different way under BRI where it appears in a proposed substitute claim.

    The Office will apply the standard used in federal courts, in other words, the claim construction standard that would be used to construe the claim in a civil action under 35 U.S.C. 282(b), which is articulated in Phillips. This rule reflects that the PTAB in an AIA proceeding will apply the same standard applied in federal courts to construe patent claims. For example, claim construction begins with the language of the claims. Phillips, 415 F.3d at 1312-14. The “words of a claim are generally given their ordinary and customary meaning,” which is “the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application.” Id. at 1312-13. The specification is “the single best guide to the meaning of a disputed term and . . . acts as a dictionary when it expressly defines terms used in the claims or when it defines terms by implication.” Id. at 1321 (internal quotation marks omitted). Although the prosecution history “often lacks the clarity of the specification and thus is less useful for claim construction purposes,” it is another source of intrinsic evidence that can “inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be.” Id. at 1317. Extrinsic evidence, such as expert testimony and dictionaries, may be useful in educating the court regarding the field of the invention or helping determine what a person of ordinary skill in the art would understand claim terms to mean. Id. at 1318-19. However, extrinsic evidence in general is viewed as less reliable than intrinsic evidence. Id.

    Additionally, to the extent that federal courts and the ITC apply the doctrine of construing claims to preserve their validity as described in Phillips, the Office will apply this doctrine in those rare circumstances in AIA proceedings. Phillips, 415 F.3d at 1327-28. As the Federal Circuit recognized in Phillips, this doctrine is “of limited utility.” Id. at 1328. Federal courts have not applied that doctrine broadly and have “certainly not endorsed a regime in which validity analysis is a regular component of claim construction.” Id. at 1327. The doctrine of construing claims to preserve their validity has been limited to cases in which “the court concludes, after applying all the available tools of claim construction, that the claim is still ambiguous.” Id. (quoting Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 911 (Fed. Cir. 2004)). Moreover, the Federal Circuit “repeatedly and consistently has recognized that courts may not redraft claims, whether to make them operable or to sustain their validity.” Rembrandt Data Techs., LP v. AOL, LLC, 641 F.3d 1331, 1339 (Fed. Cir. 2011); see also MBO Labs., Inc. v. Becton, Dickinson & Co., 474 F.3d 1323, 1332 (Fed. Cir. 2007) (noting that “validity construction should be used as a last resort, not first principle”).

    When construing claims in IPR, PGR, and CBM proceedings, the Office will take into account the prosecution history that occurred previously at the Office, including before an examiner during examination, reissue, reexamination, and prior AIA proceedings. Aylus Networks, Inc. v. Apple Inc., 856 F.3d 1353, 1361 (Fed. Cir. 2017) (“Because an IPR proceeding involves reexamination of an earlier administrative grant of a patent, it follows that statements made by a patent owner during an IPR proceeding can be considered during claim construction and relied upon to support a finding of prosecution disclaimer.”). This will also include prosecution before an examiner in a related application where relevant (Trading Technologies Intern., Inc. v. Open E Cry, LLC, 728 F.3d 1309 (Fed. Cir. 2013)) and any argument made on appeal of a rejection before the grant of the patent for which review is sought, as those arguments are before the examiner when the decision to allow an application is made (see TMC Fuel Injection System, LLC v. Ford Motor Co., 682 Fed. Appx. 895 (Fed. Cir. 2017)).

    During an AIA proceeding, the patent owner may file a motion to amend an unexpired patent to propose a reasonable number of substitute claims, but the proposed substitute claims “may not enlarge the scope of the claims of the patent or introduce new matter.” 35 U.S.C. 316(d) and 326(d); 37 CFR 42.121(a)(2) and 42.221(a)(2); see also Aqua Prods., Inc. v. Matal, 872 F.3d 1290, 1306 (noting that “[t]he patent owner proposes an amendment that it believes is sufficiently narrower than the challenged claim to overcome the grounds of unpatentability upon which the IPR was instituted”). As discussed above, and among other things, having the same claim construction standard for both the original patent claims and proposed substitute claims will reduce the potential for inconsistency in the interpretation of the same or similar claim terms.

    The Office does not expect that this rule will result in direct costs to applicable entities. The Office's understanding is informed partly by the PTAB's experience in applying Phillips in some AIA trials (as noted herein, PTAB has used Phillips for AIA trials concerning expired patents since 2012 and for AIA trials concerning soon-to-be-expired patents since 2016). In the PTAB proceedings that are currently conducted using the Phillips standard, PTAB applies the same procedures—including the same page limits and other briefing requirements—as in the PTAB proceedings that use the BRI standard. In other words, the PTAB currently uses the same regulations, procedures, and guidance for both types of AIA trials: i.e., for both the AIA trials that use the BRI standard as well as those AIA trials (concerning expired and soon-to-expire patents) that use the Phillips standard. These are found in the Code of Federal Regulations (at 37 CFR part 42) and on USPTO's website, including at the following page where USPTO has links to the relevant regulations as well as the Trial Practice Guide that informs the public of standard practices before PTAB during AIA trials: https://www.uspto.gov/patents-application-process/patent-trial-and-appeal-board/resources. Because these are used now for trials under both BRI and Phillips, USPTO does not need to revise these procedures and guidance to implement the change set forth in this final rule, and does not need to make regulatory changes other than those set forth in this final rule.

    Moreover, PTAB has not found that parties to these AIA proceedings under Phillips require expanded page limits or otherwise incur more expense in their AIA trials than parties in AIA proceedings under BRI. The USPTO's experience is that arguments under Phillips are not more complicated or more lengthy than arguments under the BRI standard. Rather, both standards are familiar to patent practitioners appearing before the USPTO and district courts. Consequently USPTO expects that these proceedings utilizing the Phillips standard will operate procedurally in much the same way as BRI proceedings using the BRI standard, that they will cost USPTO and parties no more to conduct, and that they will be completed within the statutory deadline. In sum, the direct result of USPTO changing the claim construction standard argued in some AIA trials from one well-known standard to another well-known (as noted, a standard already used in some AIA trials) will not have direct economic impacts.

    Given the fact that 86.8% of PTAB proceedings have been the subject of litigation in Federal court, where parties are already using the Phillips standard, the Office reasonably anticipates expanding the use of the Phillips standard to all AIA trials should result in parties realizing some efficiency in the legal work required for their PTAB proceedings. Not only will applying the federal court claim construction standard in AIA proceedings lead to greater consistency with the federal courts and the ITC, where such consistency will lead to greater certainty as to the scope of issued patent claims, but it will also help achieve the goal of increasing judicial efficiency and eliminate arguments relating to different standards across fora. The Office has not increased the page limits of briefs for the AIA trials that currently use Phillips, and the paperwork burden associated with briefings for trials is covered by the current information collections based on the current page limits, thus the overall cost burden on respondents is not expected to change. It is possible that this rule may produce a slight reduction in the indirect costs as a result of improving efficiency by reducing wasted effort in conducting duplicative efforts in construing claims. For example, in some cases there may be savings in legal fees because the parties may be able to leverage work done in the district court. Using the same claim construction standard across the fora would increase efficiency, as well reduce cost and burden because parties would only need to focus their resources to develop a single set of claims construction arguments. In summary, given the Office's experience with existing PTAB proceedings currently conducted using the Phillips standard and the efficiencies that may be realized by having consistency between all AIA trials and the standard use in federal court litigation, the Office does not expect that this rule change will impose costs on parties.

    Implementation

    The changes to the claim construction standard will apply to proceedings where a petition is filed on or after the effective date of the final rule. The Office will apply the federal court claim construction standard, in other words, the claim construction standard that would be used to construe the claim in a civil action under 35 U.S.C. 282(b), which is articulated in Phillips, to construe patent claims and proposed substitute claims in AIA proceedings in which trial has not yet been instituted before the effective date of the final rule. The Office will continue to apply the BRI standard for construing unexpired patent claims and proposed substitute claims in AIA proceedings where a petition was filed before the effective date of the final rule.

    As to comments received regarding filing a prior claim construction determination, parties should submit the prior claim construction determination by a federal court or the ITC in an AIA proceeding as soon as that determination becomes available. Preferably, a prior claim construction determination should be submitted with the petition, preliminary response, or response, with explanations. See the response to comment 37 below for more information.

    Discussion of Specific Rules

    Title 37 of the Code of Federal Regulations, part 42, is amended as follows:

    Sections 42.100, 42.200, and 42.300: Sections 42.100(b), 42.200(b), and 42.300(b) are amended to replace the first sentence with the following: A claim of a patent, or a claim proposed in a motion to amend, shall be construed using the same claim construction standard that would be used to construe the claim in a civil action under 35 U.S.C. 282(b), including construing the claim in accordance with the ordinary and customary meaning of such claim as understood by one of ordinary skill in the art and the prosecution history pertaining to the patent. This revision replaces the BRI standard for construing unexpired patent claims and proposed substitute claims during an IPR, PGR, or CBM proceeding with the same claim construction standard that is used in federal courts and ITC proceedings. As discussed above, the Office will apply the standard used in federal courts and the ITC, which construe patent claims in accordance with the principles that the Federal Circuit articulated in Phillips. This rule reflects that the PTAB in an AIA proceeding will apply the same standard applied in federal courts to construe patent claims. The Office will construe patent claims and proposed substitute claims based on the record of the IPR, PGR, or CBM proceeding, taking into account the claim language itself, specification, and prosecution history pertaining to the patent, as well as relevant extrinsic evidence, all as in prevailing jurisprudence of Article III courts. The Office will take into account the prosecution history that occurred previously in proceedings at the Office prior to the IPR, PGR, or CBM proceeding at issue, including in another AIA proceeding, or before an examiner during examination, reissue, and reexamination. As in a district court proceeding, the parties should point out the specific portions of the specification, prosecution history, and relevant extrinsic evidence they want considered, and explain the relevancy of any such evidence to the arguments they advance. Each party bears the burden of providing sufficient support for any construction advanced by that party.

    The Office has considered using different claim construction standards for IPR, PGR, and CBM proceedings, but, for consistency, the Office adopts the same claim construction to be applied in all IPR, PGR, and CBM proceedings. By maintaining consistency among the various proceedings, the integrity, predictability and reliability of the patent system is thus enhanced.

    Sections 42.100(b), 42.200(b), and 42.300(b) are also amended to state that “[a]ny prior claim construction determination concerning a term of the claim in a civil action, or a proceeding before the [ITC], that is timely made of record in the . . . proceeding will be considered.” Under this provision, the Office will consider any prior claim construction determination in a civil action or ITC proceeding if a federal court or the ITC has construed a term of the involved claim previously using the same standard, and the claim construction determination has been timely made of record in the IPR, PGR, or CBM proceeding.

    Sections 42.100(b), 42.200(b), and 42.300(b) are further amended by deleting the second and third sentences, eliminating the procedure for requesting a district court-type claim construction approach for a patent expiring during an IPR, PGR, or CBM proceeding. Such a procedure is no longer needed because the Office will use the same claim construction standard that is used in federal courts and ITC proceedings uniformly for interpreting all claims in an IPR, PGR, or CBM proceeding.

    Response to Comments

    The Office received a total of 374 written submissions of comments from intellectual property organizations, businesses, law firms, legal professors and scholars, patent practitioners, and others. The comments provided support for, opposition to, and diverse recommendations on the proposed rules. The large majority of the comments were supportive of changing the claim construction standard along the lines proposed in the proposed rule. For example, major bar associations, industry groups, patent practitioners, legal professors and scholars, and individuals supported the change.

    The Office appreciates the thoughtful comments, and has considered and analyzed the comments thoroughly. All of the comments are posted on the PTAB website at https://www.uspto.gov/patents-application-process/patent-trial-and-appeal-board/comments-changes-claim-construction.

    The Office's responses address the comments that are directed to the proposed changes set forth in the notice of proposed rulemaking. 83 FR 21221. Any comments directed to topics that are beyond the scope of the notice of proposed rulemaking will not be addressed at this time.

    Uniformity, Predictability, and Certainty

    Comment 1: Most comments strongly supported the proposed rules that adopt the Phillips claim construction standard for interpreting claims in IPR, PGR, and CBM proceedings (“AIA proceedings”), harmonizing the claim construction standard between AIA proceedings before the PTAB and the proceedings before federal courts and the ITC. For example, most of the comments noted that this rule change should lead to greater consistency with the federal courts and ITC, and such consistency will lead to greater certainty as to the scope of issued patent claims. The comments also indicated that the rule change will promote a balanced approach, providing greater predictability and certainty in the patent system, which will, in turn, increase judicial efficiency and reduce economic waste. The comments further explained that adopting the Phillips standard will potentially provide for more accurate claim constructions and reduce incentives for parallel-track litigation and increase efficiency between fora.

    Responses: The Office agrees with these comments. Under the amended rules, as adopted in this final rule, the Office will construe a claim using the same claim construction standard that would be used to construe the claim in a civil action under 35 U.S.C. 282(b), aligning the claim construction standard used in AIA proceedings with the standard used in federal courts and ITC proceedings. As noted by the commentators, the rule change will lead to greater consistency and harmonization with the federal courts and the ITC and lead to greater certainty and predictability in the patent system. We further agree this will increase judicial efficiencies between PTAB and other fora. For example, several trade associations and corporations commented that the use of the same claim construction standard will reduce duplication of efforts by parties and by the various tribunals. This is important because, as one study indicated, there is significant overlap between AIA proceedings and district court litigation. Saurabh Vishnubhakat, Arti K. Rai & Jay P. Kesan, “Strategic Decision Making in Dual PTAB and District Court Proceedings,” 31 Berkeley Rec. L.J. 45 (2016), https://ssrn.com/abstract=2731002. As suggested by the authors of the study, the application of the same standard of claim construction by the PTAB, federal courts, and the ITC would increase efficiency as it would enhance the ability of federal courts and the ITC to rely upon PTAB claim constructions in subsequent proceedings. Id. at 81.

    Comment 2: Some comments opposed the proposed rule changes, arguing that Congress intended the PTAB to use the BRI standard in AIA proceedings, Congress has declined to change the claim construction standard, the Office should wait until Congress changes the claim construction standard, and the BRI standard is appropriate for the reasons provided by the Office in the initial AIA proceeding final rule in 2012 (77 FR at 48697-99), the 2016 final rule (81 FR at 18752), and the government briefs in Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 (2016) and Oil States Energy Services, LLC v. Greene's Energy Group, LLC, 138 S. Ct. 1365 (2018). Another comment suggested that the Office has previously taken the position in Cuozzo that the history, congressional intent, amendments, and statutory framework of the AIA support the BRI in AIA proceedings. A few comments requested that, if the Office adopts the proposed changes, the Office should implement procedures that will safeguard the AIA's goal of improving patent quality and minimize unfairness to the parties. Some of the comments suggested that the proposal is arbitrary and capricious, and the Office did not provide adequate notice, explanation, or evidence and should issue a new proposed rule.

    Response: The Office appreciates the thoughtful comments. Since the publication of the second final rule in 2016, the Director has considered the significant experience the Office has now had with its almost six years of AIA proceedings. The Office also now has the benefit of several additional years of Federal Circuit decisions, resulting in hundreds of additional decisions that were not available during the first several years of AIA implementation. This additional experience, and recent studies, support the numerous concerns expressed by stakeholders with the use of BRI, and that compelling reasons exist to apply the same standard in AIA proceedings as that used in district court.

    The Supreme Court has endorsed the Office's ability to choose an approach to claim construction for AIA proceedings. Cuozzo, 136 S. Ct. at 2142-46 (“That is a question that Congress left to the particular expertise of the Patent Office.”). Congress did not expressly set forth a claim construction standard in the statute, but rather deferred to the Office's expertise to select the appropriate standard for construing claims in AIA proceedings. Id. (noting that “neither the statutory language, its purpose, [nor] its history suggest that Congress considered what standard the agency should apply when reviewing a patent claim in inter partes review”).

    Notably, the statutory provision set forth in 35 U.S.C. 316(a)(4) grants the Office authority to issue “regulations . . . establishing and governing inter partes review under this chapter and the relationship of such review to other proceedings under this title.” For PGR and CBM proceedings, 35 U.S.C. 326(a)(4) contains a similar provision. Furthermore, under 35 U.S.C. 316(a)(2) and 326(a)(2), the Office must prescribe regulations “setting forth the standards for the showing of sufficient grounds to institute a review.” In prescribing regulations under 35 U.S.C. 316(a) and 326(a), and among other things, the Director has considered “the effect of any such regulation on the economy, the integrity of the patent system, the efficient administration of the Office, and the ability of the Office to timely complete proceedings instituted under this chapter,” in accordance with 35 U.S.C. 316(b) and 326(b). In addition, the Director has carefully considered all of the comments received. As stated in the notice of proposed rulemaking, and with all of this information in mind, the Office's goal is to implement a fair and balanced approach, providing greater predictability and certainty in the patent system. This, in turn, implements the congressional intent of the AIA. H.R. Rep. No. 112−98, pt. I at 48 (2011), as reprinted in 2011 U.S.C.C.A.N. 67, 78; see also id. at 40 (“[The AIA] is designed to establish a more efficient and streamlined patent system that will improve patent quality and limit unnecessary and counterproductive litigation costs.”).

    Prior to this final rule, the PTAB already has been applying the principles articulated in Phillips and its progeny for interpreting claims of expired patents and soon-to-be-expired patents in AIA proceedings. Using this standard for interpreting all other claims will result in a uniform standard for all claims under review in AIA proceedings before the PTAB, in federal court litigations, and at the ITC. Significantly, as noted by some of the comments, applying the federal court claim construction standard in AIA proceedings will lead to greater consistency with the federal courts and the ITC, and such consistency will lead to greater certainty as to the scope of issued patent claims, and will help achieve the goal of increasing judicial efficiency and eliminate arguments relating to different standards across fora, which will lead to cost savings for all litigants. As one commenter observed, the adoption of the federal court claim construction standard is consistent with “uniform interpretation of the patent laws,” which is a well-recognized goal of the patent system as it allows the strength of patents to be meaningfully and positively predicted. Hearings on H.R. 6033, H.R. 6934, H.R. 3806 and H.R. 2414, Before the Subcomm. on Courts, Civil Liberties and the Admin. of Justice of the House Comm. on the Judiciary, 96th Cong., 797 (1980).

    The Office recognizes that in some respects AIA proceedings serve a different purpose than that of litigation in the federal courts. Cuozzo, 136 S. Ct. at 2143-44. For example, Congress intended AIA proceedings to provide “quick and cost effective alternatives” to litigation in the courts, as well as to “provide a meaningful opportunity to improve patent quality and restore confidence in the presumption of validity that comes with issued patents in court.” H.R. Rep. No. 112−98, pt. I at 48 (2011), as reprinted in 2011 U.S.C.C.A.N. 67, 78; see also id. at 40 (“[The AIA] is designed to establish a more efficient and streamlined patent system that will improve patent quality and limit unnecessary and counterproductive litigation costs.”). The changes in the proposed rule will better effect these purposes, for example by reducing costs associated with duplicative proceedings, and improving efficiency by reducing wasted effort.

    As to the comment pointing to prior arguments advanced in connection with the Cuozzo case, the Supreme Court expressly rejected the argument that the history, congressional intent, amendments, and statutory framework of the AIA required the use of BRI in AIA proceedings: “Finally, neither the statutory language, its purpose, or its history suggest that Congress considered what standard the agency should apply when reviewing a patent claim in inter partes review.” Cuozzo, 136 S. Ct. at 2142-46. The Court further held that such decisions were left to the sound discretion of the Office: “[W]e do not decide whether there is a better alternative as a policy matter. That is a question that Congress left to the particular expertise of the Patent Office.” Id. As explained in detail in this final rule package, the six years of experience with AIA proceedings, the many additional parallel court cases, as well as the numerous requests from stakeholders concerned with the use of BRI and comments received, make clear that using the same claim construction standard as in federal courts and the ITC better serves the public and the intent of the AIA to provides, among other things, “a more efficient and streamlined patent system that will improve patent quality and limit unnecessary and counterproductive litigation costs.” AIA H.R. Rep. No. 112−98, pt. I at 48 (2011), as reprinted in 2011 U.S.C.C.A.N. 67, 78; see also id. at 40. Indeed, many of the bases originally advanced in 2012 as justifying the use of BRI have not been borne out. See e.g., Greenleaf at 11 (“It is not clear, given more than five years of experience with PTAB post-grant proceedings, that there is any justification for using BRI for issued patents).

    As to the suggestion that the rulemaking has been arbitrary and capricious, the Office has proceeded with the implementation of AIA proceedings deliberately and with caution, continuously engaging the public and seeking feedback to gauge the effectiveness of the rules and procedures that govern AIA proceedings. At each stage of the process, including in this final rule, the Office has supported its exercise of discretion with reasoned analysis in response to comments received. For example, in the initial 2012 rulemaking, the Office adopted the BRI standard for construing claims of unexpired patents based on its prior experience, as well as adopting the principles articulated in Phillips and its progeny for interpreting claims of expired patents. 77 FR 48680. To elicit even more input, in June of 2014, the Office published a Request for Comments in the Federal Register and, at public request, extended the period for receiving comments to October 16, 2014. See Request for Comments on Trial Proceedings Under the America Invents Act Before the Patent Trial and Appeal Board, 79 FR 36474 (June 27, 2014) (“Request for Comments”). The Request for Comments asked seventeen questions on ten broad topics, including a general catchall question, to gather public feedback on any changes to AIA proceedings that might be beneficial. See Request for Comments, 79 FR at 36476-77. This was followed by the 2016 rulemaking, where the Office incrementally expanded the use of the district court claim construction standard, which is articulated in Phillips, to interpret claims of soon-to-be-expired patents in AIA proceedings. 81 FR 18750.

    As noted above, since the time of the last AIA rule package, the Federal Circuit has issued a six-fold increase in the number of decisions relating to AIA proceedings. And now, in light of these decisions and based on the PTAB's experience over six years, including applying the federal court claim construction standard in AIA proceedings in certain contexts, the Office has determined that employing the district court standard for interpreting all claims in AIA proceedings will continue to enhance predictability and reliability of the patent system.

    The PTAB's use of the district court standard, for interpreting all claims in AIA proceedings, will address concerns that have been continually expressed by stakeholders and demonstrated in recent studies that the use of a different claim construction standard in AIA proceedings wastes resources and has the potential for resulting in troubling differences in construction-outcomes between proceedings. See Bagley at 354; Greenleaf at 9. Notably, the PTAB will continue to provide a second look at an earlier administrative grant of a patent by determining whether to review the claims challenged by a petitioner based on the prior art and grounds asserted in the petition, with any final action taking into account the evidence in the entire record of any instituted proceeding. In addition, the PTAB will consider the claim language itself, the specification, prosecution history pertaining to the patent, and any prior claim construction determinations from the federal courts and the ITC that have been timely made of record, to provide a claim construction determination in accordance with the amended rules as adopted in this final rule. The PTAB will consider the issues as briefed by the parties, and may review whatever portions of the record are required to arrive at the “correct” construction pursuant to Phillips and its progeny. The PTAB also will continue to provide an initial claim construction determination in the institution decision based on the record at the preliminary stage, including the parties' proposed claim constructions and supporting evidence. If a trial is instituted, the parties will continue to have sufficient opportunities to submit additional arguments and evidence during the trial, addressing the PTAB's initial claim construction determination before the oral hearing. The PTAB will continue to consider the entirety of the trial record before entering a final written decision that sets forth any final claim construction determination. A party dissatisfied with the final written decision, including the final claim construction determination, will continue to have the opportunity to file a request for rehearing without prior authorization from the PTAB and the right to appeal the decision to the Federal Circuit. All parties will continue to have a full and fair opportunity to present arguments and evidence prior to any final determination. The vast majority of commentators, including those few opposed to the change, agree that the PTAB's current procedures are effective in implementing the goals of the AIA, and those procedures remain available.

    As in the federal courts and ITC, the PTAB will “seek out the correct construction—the construction that most accurately delineates the scope of the claim invention—under the framework laid out in Phillips.” PPC Broadband, 815 F.3d at 740. To promote fairness, balance, predictability, and certainty in the patent system, the Office is exercising its statutory authority under 35 U.S.C. 316(a)(2), 316(a)(4), 326(a)(2), and 326(a)(4) to adopt the federal court claim construction standard, which is articulated in Phillips, for interpreting claims in AIA proceedings, harmonizing the claim construction standards between AIA proceedings and proceedings before the federal courts and ITC. See, e.g., 35 U.S.C. 316(a)(4) (“The Director shall prescribe regulations . . . establishing and governing inter partes review of this chapter and the relationship of such review to other proceedings under this title.”). Fundamentally, each of the federal courts, the ITC, and the PTAB will use the same objective standards under the Phillips framework to arrive at the claim construction when performing their analysis. Predictability and reliability of the patent system are thus enhanced, for example by increasing the likelihood that a claim will be construed in the same manner by the federal courts, the ITC, and the PTAB.

    Consistency

    Comment 3: Many comments stated that the rule change will promote consistency between the various fora. The comments suggested this would result in a more uniform and fair patent system. The comments further asserted adoption of the Phillips standard prevents parties from taking inconsistent positions, such as a patent challenger arguing for a broad scope in a PTAB proceeding (under BRI) and a narrow scope (under Phillips) in district court to avoid a finding of infringement.

    Response: The Office agrees that aligning the claim construction standard used in PTAB proceedings with that used by the federal courts and the ITC promotes consistency in claim construction rulings and patentability determinations. The Federal Circuit has stated that when a party loses in a court proceeding challenging a patent, “the PTO ideally should not arrive at a different conclusion” on the same presentations and arguments. See In re Baxter, 678 F.3d 1357, 1365 (Fed. Cir. 2012). Adoption of the Phillips standard will reduce the potential for inconsistent results between different fora. We further agree that consistency leads to a more uniform, reliable, and predictable patent system. Specifically, as discussed above, the adoption of the federal court claim construction standard is consistent with “uniform interpretation of the patent laws,” which is a well-recognized goal of the patent system as it allows the strength of patents to be meaningfully and positively predicted. Hearings on H.R. 6033, H.R. 6934, H.R. 3806 and H.R. 2414, Before the Subcomm. on Courts, Civil Liberties and the Admin. of Justice of the House Comm. on the Judiciary, 96th Cong., 797 (1980).

    Comment 4: Some comments stated that the BRI standard ensures claims will be interpreted consistently among different proceedings before the Office, and applying different claim construction standards for different parts of the Office will lead to inconsistency, confusion, and complexity within the Office. A few comments also asserted that adopting the Phillips standard will frustrate the Office's statutory authority to consolidate different proceedings involving the same patent. Some of the comments further suggested that the Office may find claims patentable over prior art in an AIA proceeding applying the Phillips standard and at the same time unpatentable over the same prior art in a reexamination applying the BRI standard. The comments noted that, if the PTAB does not apply the BRI standard in AIA proceedings, the Office will be required to approve in an AIA proceeding a patent claim that it would have rejected in an initial examination or reexamination considering the same prior art.

    Response: As the Federal Circuit recently explained, “[i]n many cases, the claim construction will be the same under [both the BRI and Phillips] standards.” In re CSB-System Int'l, Inc., 832 F.3d 1335, 1341 (Fed. Cir. 2016). “Even under the broadest reasonable construction rubric . . . , the board must always consider the claims in light of the specification and teachings in the underlying patent.” In re Power Integrations, Inc., 884 F.3d 1370, 1375 (Fed. Cir. 2018) (citation and internal quotation marks omitted). “And there is no reason why this construction could not coincide with that of a court in litigation.” Id. Moreover, in an AIA proceeding, “[t]he PTO should also consult the patent's prosecution history in proceedings in which the patent has been brought back to the agency for a second review.” Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015), overruled on other grounds by Aqua Prods., Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017) (en banc). “[T]he Board's construction cannot be divorced from the specification and the record evidence” and “must be consistent with the one that those skilled in the art would reach.” Id. (citations and internal quotation marks omitted). “A construction that is unreasonably broad and which does not reasonably reflect the plain language and disclosure will not pass muster.” Id. (citation and internal quotation marks omitted). In addition, the recent IPO study acknowledged that “[i]t is difficult to dissect or predict the differences between outcomes under BRI or Phillips” and that “[t]he claim construction procedure under both standards appears to be very similar if not identical.” Greenleaf, at 9. The IPO study indicates that, since 1986, “there have been very few decisions in which courts have attributed a variance in claim interpretation to the differences between the two standards.” Id. at 1. In sum, consistent with the IPO study and the Federal Circuit, we believe that the patentability determination reached will be consistent for BRI and Phillips in the vast majority of cases decided.

    Furthermore, the Office already has been applying the principles articulated in Phillips to claims of expired patents and soon-to-be expired patents that were previously examined, reexamined, or reissued, under the BRI standard. Based on the Office's years of experience, employing the federal court claim construction standard, which is articulated in Phillips, for interpreting all claims in AIA proceedings will not lead to inconsistency, confusion, and complexity within the Office. For example, the Office has been applying the Phillips standard in ex parte reexamination, e.g. with regard to expired claims, since its implementation in 1981.

    In direct contrast to AIA proceedings, the Office is required by statute to conduct reissue and reexamination proceedings according to the procedures established for initial examination. 35 U.S.C. 251(c) and 305. Under 35 U.S.C. 315(d) and 325(d), during the pendency of an AIA proceeding, “if another proceeding or matter involving the patent is before the Office, the Director may determine the manner in which the [AIA proceeding] or other proceeding or matter may proceed, including providing for stay, transfer, consolidation, or termination of any such matter or proceeding.” The Office has exercised its discretion under these statutory provisions to stay and/or terminate reexaminations and reissue proceedings. The Office has not, to date, merged or consolidated a reexamination or reissue proceeding with an AIA proceeding. Prior to making a determination to consolidate proceedings, the Office will consider whether the claim construction standard would have any material effect on the claim construction determinations in the specific proceedings at issue, for example by considering whether a term at issue in any of the proceedings has a different construction under the different claim construction standards. Additionally, as to comments that the Office will arrive at different claim constructions in AIA proceedings and reexaminations, the Office has existing tools to address these situations, including, e.g., the use of discretion under 35 U.S.C. 325(d).

    As stated in the notice of proposed rulemaking, one study found that 86.8% of patents at issue in AIA proceedings also have been the subject of litigation in the federal courts. Saurabh Vishnubhakat, Arti K. Rai & Jay P. Kesan, Strategic Decision Making in Dual PTAB and District Court Proceedings, 31 Berkeley Tech. L.J. 45 (2016), http://ssrn.com/abstract=2731002. Based on these data, feedback the Office has received from the public, recent case law regarding claim construction standards, and the submitted comments, it is appropriate to harmonize the claim construction standard used in AIA proceedings with the standard used in the federal courts and ITC proceedings.

    In addition, unlike initial examination of pre-issued claims in a patent application, patent owners in AIA proceedings have not filed as many motions to amend as previously anticipated (through June 30, 2018, the Office has decided only 196 motions to amend, granting 4%, granting-in-part 6%, and denying 90%). As noted in a comment received from a trade association, patent owners are reluctant to substantially amend claims that have been asserted in a co-pending infringement litigation. This comment stated that “this is generally believed to be due to intervening rights [e.g., under 35 U.S.C. 318(c), 328(c), and 252] and the loss of past damages [for infringement in a co-pending litigation] after amendment, not to any inability to amend.” See, e.g., McKeown, Amendment Efforts at PTAB Trend Downward, LexisNexis Newsroom (Dec. 2014), available at https://www.lexisnexis.com/legalnewsroom/intellectual-property/b/patent-lawblog/archive/2014/12/16/amendment-efforts-at-ptab-trend-downward.aspx (noting that “historically, patentees would rarely amend claims at the USPTO that were asserted in a co-pending litigation” due to intervening rights and tying the lack of use of amendments in IPR to those intervening rights). Claim amendments in AIA proceedings have therefore been relatively rare and substantially different than amendments during examination. Accordingly, one of the original bases suggested for the use of BRI has not been borne out, and the Office no longer believes that the opportunity to amend in an AIA proceeding justifies the use of BRI.

    On balance, after years of experience and in view of the comments received, the Office has determined that using a claim construction standard for issued patents subject to AIA proceedings that is consistent with the standard applied in federal courts and the ITC is better for advancing the economy, the integrity of the patent system, the efficient administration of the Office, and the ability of the Office to complete timely the proceedings.

    Comment 5: Some comments asserted that harmonizing the claim construction standards between AIA proceedings and the proceedings before the federal courts and the ITC would not necessarily result in the same claim constructions. They pointed out that federal courts applying the Phillips standard can reach different constructions for a particular claim (as in the situation where the Federal Circuit disagrees with the construction provided by a district court); many courts may not wholly accept the PTAB's constructions; and the evidentiary standard in AIA proceedings is different from the standard used in the federal courts and the ITC.

    Response: The PTAB is required by statute to employ a different evidentiary standard for determining the patentability of a challenged claim than that used in federal courts and the ITC. However, there is no statute applicable to either the PTAB or federal courts that requires any different standards, evidentiary or otherwise, for claim construction. Moreover, as to harmonizing claim construction standards, the Federal Circuit recently explained that the prosecution disclaimer doctrine includes patent owner's statements made in an AIA proceeding, to ensure that “claims are not argued one way in order to maintain their patentability and in a different way against accused infringers.” Aylus Networks, Inc. v. Apple Inc., 856 F.3d 1353, 1360-61 (Fed. Cir. 2017) (citing Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed. Cir. 1995)). As the Federal Circuit acknowledged, consistency between fora is important.

    Under the amended rules, as adopted by this final rule, the PTAB will apply the same claim construction standard as used in federal courts and the ITC, “seek[ing] out the correct construction—the construction that most accurately delineates the scope of the claim invention—under the framework laid out in Phillips.” PPC Broadband, 815 F.3d at 740. The PTAB also will consider any prior claim construction determinations from the PTAB, the federal courts, and the ITC that are timely made of record to promote consistency. Therefore, the amended rules will encourage parties to take a consistent position with respect to claim constructions in their patentability and infringement arguments, to ensure that whatever decision issues, regardless of forum, is reflective of the “correct” construction.

    As to comments that courts may not wholly accept the PTAB's constructions, this is an issue that federal courts will decide in the particular cases that come before them, based on the record available at that time. Having the same claim construction standard, however, increases the likelihood that courts may consider the PTAB's construction for a given patent.

    Clarity and Public Notice

    Comment 6: Several comments were in favor of the Phillips standard for interpreting claims in AIA procedures because it would promote clarity and eliminate the current disparity in how claims are construed. The comments asserted that the current differences in claim construction standards undermine the public notice function and subject patent owner's property rights to unnecessary and undesirable risks, which discourages investment in innovative ideas and hurts inventors and innovation.

    Response: We agree that adoption of the Phillips claim construction standard will promote clarity and public notice. By using the same claim construction standard in PTAB proceedings that is used by the federal courts and the ITC, greater certainty on the scope of issued patent claims will be provided to all stakeholders. In particular, we agree with the comments received that reducing the potential for inconsistent results between the PTAB and federal courts would encourage inventors to use the patent system. For example, one trade association commented that a uniform standard would lead to greater certainty and investment, while another trade association stated that the adoption of the federal court claim construct standard promoted certainty, which is a recognized goal of the AIA. Senate Debate, 157 Cong. Rec. S5347, S5354 (daily ed. Sept. 7, 2011) (Statement of Administration Policy on H.R. 1249) (discussing how the AIA created new trial proceedings “to increase the quality and certainty of patent rights and offer cost-effective, timely alternatives to district court litigation”).

    Comment 7: A few comments asserted that the BRI standard promotes clarity and public notice by incentivizing a patentee to amend its claims so that the boundary between its patent rights and the prior art can be more clearly delineated. A few comments also expressed concerns that, if the PTAB applies the Phillips standard in AIA proceedings, the district court may construe a claim more broadly than the PTAB's claim construction, resulting in a situation where subject matter that is in the prior art nonetheless may infringe the patent.

    Response: The PTAB's construction of a claim under the framework set forth in Phillips will promote clarity and public notice. Moreover, since both a district court and the PTAB will use the same standard to construe the claim, there will be reduced likelihood of differences between the scope of claim construction at either forum. The Federal Circuit recently affirmed a district court's claim construction by holding that the statements made by a patent owner during an AIA proceeding, even before institution, are part of the prosecution history and can be relied on to support a finding of prosecution disclaimer. Aylus Networks, 856 F.3d at 1361. The court explained that “[e]xtending the prosecution disclaimer doctrine to IPR proceedings will ensure that claims are not argued one way in order to maintain their patentability and in a different way against accused infringers.” Id. at 1360. “In keeping with the underlying purposes of the doctrine, this extension will `promote[ ] the public notice function of the intrinsic evidence and protect[ ] the public's reliance on definitive statements made during'” AIA proceedings. Id. (quoting Omega Eng'g, Inc. v. Rayteck Corp., 334 F.3d 1314, 1324 (Fed. Cir. 2003)). Accordingly, applying the same standard will alleviate the commentators' concerns with regard to differences in claim scope between the district court and PTAB.

    In addition, under the amended rules, as adopted by this final rule, the PTAB will consider any prior claim construction determinations from federal courts and the ITC that are timely made of record to enhance consistency. Moreover, as noted above, unlike initial examination, the vast majority of AIA proceedings involve patents in litigations, and as noted above, patent owners are reluctant to substantially amend their claims that are involved in an infringement litigation for a variety of reasons, such as to avoid triggering intervening rights. Therefore, one of the originally suggested bases for using BRI in 2012 has not been borne out. Claim amendments in AIA proceedings are relatively rare and substantially different than amendments during examination, and the Office no longer believes that the opportunity to amend in an AIA proceeding justifies the use of BRI.

    Fairness

    Comment 8: Many comments opined that harmonizing the claim construction standard used in AIA proceedings with that used in the federal courts and ITC proceedings will ensure greater fairness and predictability to the patent system, which will in turn maximize judicial efficiency and minimize economic waste. Several comments acknowledged that harmonizing the claim construction standards would prevent parties from taking inconsistent positions and will properly balance the interests of both patent owners and petitioners. Some of the comments further noted that applying different standards in different fora unfairly advantages the patent challenger because an accused infringer may seek a broad construction for purposes of finding claims unpatentable in an AIA proceeding before the PTAB and a narrow construction for purposes of arguing non-infringement in a federal court action.

    Response: The Office agrees with these comments. This final rule adopts the federal court claim construction standard, which is articulated in Phillips, for AIA proceedings, aligning the claim construction standard used in AIA proceedings with the standard used in the federal courts and ITC proceedings. This will promote a more fair and balanced system because parties will no longer be able to argue for a broader claim scope in PTAB proceedings than that used by federal courts. Several commenters stated that the BRI standard allows parties to take inconsistent positions between PTAB proceedings for patentability and litigation for infringement. One commenter stated “[c]urrently, the absence of a uniform claim construction standard permits patent infringers to aggressively argue inconsistent positions on claim scope in different forums with impunity—a broad scope before the PTAB, and a narrow scope in district court. With a uniform application of the Phillips standard, patent challengers will have less flexibility to advance inconsistent arguments about claim scope, and will instead be required to choose a single claim construction that best captures the true meaning of the patent claim, because they will not be able to justify different constructions as being the mere result of different claim construction standards.” The lack of a uniform standard between the PTAB and federal courts runs contrary to the general principle articulated in Source Search Techs LLC v. Lending Tree, LLC, that “it is axiomatic that claims are construed the same way for both validity and infringement.” 588 F.3d 1063, 1075 (Fed. Cir. 2009).

    Comment 9: Some comments opposed the proposed rules, asserting that using the Phillips standard in AIA proceedings would not alleviate perceived unfairness. A few comments suggested that the Phillips standard is susceptible to various reasonable interpretations, which can produce multiple possible constructions, and that there is no certainty that the decision of the PTAB and the courts will be harmonized. Some of the comments also indicated that applying the BRI standard in AIA proceedings is not unfair to patentees because they have the opportunity to amend the claims to obtain more precise claim coverage, and the BRI standard “serves the public interest by reducing the possibility that claims, finally allowed, will be given broader scope than is justified,” citing In re American Academy of Science Tech Center, 367 F.3d 1359, 1362-63 (Fed. Cir. 2004) (citation and internal quotation marks omitted). These comments asserted that replacing the BRI standard would undermine this goal, resulting in less predictability and inviting gamesmanship from patentees.

    Response: As noted above, unlike initial examination, the vast majority of AIA proceedings involve patents in litigation, and, according to several comments, patent owners are reluctant to substantially amend their claims that are involved in an infringement litigation for a number of reasons, such as in order to avoid triggering intervening rights. As stated in the notice of proposed rulemaking, having AIA proceedings use the same claim construction standard that is applied in federal courts and ITC proceedings also addresses the concern that potential unfairness could result from using an arguably broader standard in AIA proceedings. According to some patent owners, the same claim construction standard should apply to both the validity (or patentability) determination and the infringement determination. Because the BRI standard potentially reads on a broader universe of prior art than does the Phillips standard, a patent claim could potentially be found unpatentable in an AIA proceeding (under the BRI standard) on account of claim scope that the patent owner would not be able to assert in an infringement proceeding (under the Phillips standard). For example, even if a competitor's product would not be found to infringe a patent claim (under the Phillips standard) if it was sold after the patent's effective filing date, the same product nevertheless could potentially constitute invalidating prior art (under the BRI standard) if publicly sold before the patent's effective filing date.

    Based on its 6 years of experience with AIA proceedings, the Office has determined that the same claim construction standard should apply to both a patentability determination at the PTAB and determinations in federal court on issues related to infringement or invalidity. Under the amended rules as adopted by this final rule, the PTAB also will consider any prior claim construction determination concerning a term of the claim in a civil action or a proceeding before the ITC that is timely made of record in an AIA proceeding. This will increase the likelihood that claims are not argued one way in order to maintain their patentability (or to show that the claims are unpatentable) and in a different way against an opposing party in an infringement case, consistent with recent case law from the Federal Circuit. See Aylus Networks, 856 F.3d at 1360. Rather, regardless of forum, the same objective standards will be used for claim construction.

    Additionally, as discussed above, one of the originally suggested bases for using the BRI in 2012 has not been borne out. Claim amendments in AIA proceedings are relatively rare and substantially different than amendments during examination, and the Office no longer believes that the opportunity to amend in an AIA proceeding justifies the use of the BRI.

    Efficiency, Cost, Timing, and Procedural Issues

    Comment 10: Most comments supported harmonizing of the claim construction standard used in AIA proceedings with the standard used in the proceedings before federal courts and the ITC because different claim construction standards used in various fora encourage forum shopping and parallel duplicative proceedings. According to the comments, using the same claim construction standard across the fora would increase efficiency as well as certainty, and it would reduce cost and burden because parties would only need to focus their resources to develop a single set of claim construction arguments.

    Response: The Office agrees with these comments. The existence of different approaches to claim construction determinations may encourage a losing party to attempt for a second bite at the apple, resulting in a waste of the parties' and judicial resources alike. See Niky R. Bagley, Treatment of PTAB Claim Construction Decisions: Aspiring to Consistency and Predictability, 32 Berkeley Tech. L.J. 315, 354 (2018). Adoption of the Phillips standard will increase efficiencies and will reduce costs to parties because it eliminates the incentive to forum shop based upon claim construction standards and eliminates the need to present multiple claim construction arguments under different standards. As discussed above, several trade associations and corporations commented that the use of the same claim construction standard will reduce duplication of efforts by parties and by the various tribunals. As one commenter further stated, “[w]ith the PTAB and district courts applying the same claim construction standard, there will be a stronger basis for judges in one forum to rely on claim constructions rulings from the other, avoiding unnecessary duplication of work.”

    Comment 11: One comment seeks clarification of whether the PTAB would review evidence of infringing products to construe claims. According to the comment, claims cannot be construed under the Phillips standard without at least some reference to the product accused of infringement, citing Wilson Sporting Goods Co. v. Hillerich & Bradsby Co., 442 F.3d 1322, 1324 (Fed. Cir. 2006), for support.

    Response: To the extent that the comment suggests that Wilson requires consideration of infringement issues during claim construction, such a reading would overstate that case. In Wilson, the Federal Circuit “repeats its rule that claims may not be construed with reference to the accused device.” Wilson, 442 F.3d at 1330-31. It further explained that “that rule posits that a court may not use the accused product or process as a form of extrinsic evidence to supply limitations for patent claim language. Thus, the rule forbids a court from tailoring a claim construction to fit the dimensions of the accused product or process and to reach a preconceived judgment of infringement or noninfringement. In other words, it forbids biasing the claim construction process to exclude or include specific features of the accused product or process.” Id. In Wilson, the court merely stated that, in certain situations, “[t]he rule, however, does not forbid awareness of the accused product or process to supply the parameters and scope of the infringement analysis” and “a trial court may refer to the accused product or process for that context during the process.” Id. (emphasis added). As such, Wilson, merely stands for the proposition that it is permissible to consider an accused product in the context of claim construction for purposes of infringement, not that an accused product must be considered in all claim construction disputes.

    The Federal Circuit's decision in Wilson specifically addresses the district court's claim construction in the context of an infringement case. But under 35 U.S.C. 318 and 328, in an instituted AIA proceeding, the PTAB is required to “issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner.” As required by statute, the PTAB will continue to construe claims in the context of patentability (e.g., the asserted prior art), not infringement. Because infringement issues are generally not before the PTAB in a patentability determination, the PTAB does not, in most circumstances, expect this case to have applicability in IPR proceedings. However, if a party believes that the claims of a particular patent cannot be construed absent consideration of additional evidence not called for in the Board's rules or practices, that party should contact the panel of judges overseeing the proceeding and request a conference call to discuss the facts of that specific issue.

    Comment 12: Several comments suggested using the same claim construction procedures as used in the federal court. A few comments expressed concerns that fully adopting the same claim construction standard used by federal courts and the ITC could make it difficult for the Office to comply with the statutory deadline because the claim construction procedure at the federal courts and the ITC often involves considerable briefing, expert testimony, technology tutorials, and Markman hearings, which are expensive and time consuming.

    Response: The Office has been applying the principles articulated in Phillips and its progeny in AIA proceedings for interpreting claims of expired patents, since the effective date of the AIA in 2012, and for interpreting claims of soon-to-be expired patents, since 2016. Even in those proceedings, the Office has met all of its statutory deadlines, utilizing the same efficient and cost effective procedures used in other AIA proceedings that applied the BRI standard. The Office will continue to employ a trial procedure in all AIA proceedings that provides “quick and cost effective alternatives” to litigation in the courts, as Congress intended. Thus, as discussed above, USPTO expects that these proceedings utilizing the Phillips standard will operate procedurally in much the same way as proceedings utilizing the BRI standard, that they will cost USPTO and parties no more to conduct, and that they will be completed within the statutory deadline.

    Comment 13: Some comments expressed concerns that additional briefing and hearings related to claim construction would raise costs. One comment suggested that the PTAB should continue to provide non-final claim construction in the institution decisions. A few comments suggested allowing the parties a full and fair opportunity to present arguments and evidence prior to any final determination.

    Response: As discussed above, USPTO expects—based on its prior experience in using the Phillips standard for expired and soon-to-expire claims—that these proceedings using the Phillips standard will operate procedurally in much the same way as proceedings using the BRI standard, that they will cost USPTO and parties no more to conduct, and that they will be completed within the statutory deadline. The Office will continue to use the trial procedure set forth in its Office Patent Trial Practice Guide, along with any updates and amendments that USPTO may decide to make in the future. As discussed above, USPTO does not need to revise these procedures and guidance to implement the change set forth in the final rule, and does not need to make regulatory changes other than those set forth in the final rule. Both the petitioner and patent owner will continue to have sufficient opportunities, during the preliminary stage, to submit their proposed claim constructions (in a petition and preliminary response, respectively) and any supporting evidence, including both intrinsic and extrinsic evidence. Upon consideration of the parties' proposed claim constructions and supporting evidence, the PTAB will continue to provide an initial claim construction determination in the institution decision, to the extent that such construction is required to resolve the disputes raised by the parties. If a trial is instituted, the parties also will continue to have opportunities to cross-examine any opposing declarants, and to submit additional arguments and evidence, addressing the PTAB's initial claim construction determination and the opposing party's arguments and evidence before oral hearing. The PTAB also will continue to consider the entirety of the trial record, including the claim language itself, the specification, prosecution history pertaining to the patent, extrinsic evidence as necessary, and any prior claim construction determinations from the federal courts and the ITC that have timely been made of record, before entering a final written decision that sets forth the final claim construction determination. All parties will continue to have a full and fair opportunity to present arguments and evidence prior to any final determination. The vast majority of commentators, including many of those opposed to the change, agree that the Board's current procedures are effective in implementing the goals of the AIA. Those procedures remain available, will continue to apply when this final rule goes into effect, and will be improved in the future as necessary.

    Proposed Substitute Claims

    Comment 14: Most of the comments supported applying the federal court claim construction standard, which is articulated in Phillips, uniformly to both original patent claims and substitute claims proposed in a motion to amend. The comments suggested that using the federal court claim construction standard should lead to greater consistency with the federal courts and the ITC, and such consistency will lead to greater certainty as to the scope of issued patent claims. The comments also indicated that using the federal court claim construction standard is appropriate because amendments proposed in AIA proceedings are required to be narrowing, are limited to a reasonable number of substitute claims, and are required to address patentability challenges asserted against the original patent claims. The comments further noted that using the same claim construction standard for interpreting both the original and amended claims avoids the potential of added complexity and inconsistencies between PTAB and federal court proceedings, and this allows the patent owner to understand the scope of the claims and more effectively file motions to amend. One of the comments stated that the BRI standard is appropriate in the context of the initial ex parte examination, but not appropriate for AIA proceedings, which are inter partes post-grant proceedings, potentially standing in for district court validity determinations, and allowing only amendments that narrow the scope of the original patent claim.

    Response: The Office agrees with these comments. Under the amended rules, as adopted in this final rule, a claim of a patent, or a claim proposed in a motion to amend, “shall be construed using the same claim construction standard that would be used to construe the claim in a civil action.” We agree that adoption of the Phillips standard is appropriate because, among other things, the claim amendments are limited to a reasonable number and are required to be narrowing. Further, the final rule will reduce the potential for inconsistency in claim construction between PTAB proceedings and the proceedings in federal court and the ITC, which we agree will result in greater certainty of the scope of issued patent claims.

    Comment 15: Some comments opposed applying the federal court claim construction standard to substitute claims proposed in a motion to amend because it would create the risk that a district court would construe a claim broadly beyond the claim scope allowed by the Office. According to these comments, it is inappropriate and inconsistent for the Office to employ a different standard when new claims are presented to the PTAB on appeal from an examiner compared to when the same new claims are presented to the PTAB in an AIA proceeding. Some of the comments suggested eliminating amendments or applying the BRI standard in a proceeding in which the patent owner files a motion to amend to protect the public from vague and overly broad amendments. One comment indicated that, if the PTAB applies the federal court claim construction standard in an AIA proceeding, the PTAB should require patent owner to amend its claim to reflect that claim construction.

    Response: As noted in the notice of proposed rulemaking, unlike initial examination of new or amended claims in a patent application, the patent owner may file a motion to amend an unexpired patent during an AIA proceeding to propose a reasonable number of substitute claims, but the proposed substitute claims “may not enlarge the scope of the claims of the patent or introduce new matter.” 35 U.S.C. 316(d) and 326(d); 37 CFR 42.121(a)(2), 42.221(a)(2). The Federal Circuit recently noted that “[t]he patent owner proposes an amendment that it believes is sufficiently narrower than the challenged claim to overcome the grounds of unpatentability upon which the IPR was instituted.” Aqua Prods., 872 F.3d at 1306 (emphasis in the original). By requiring a narrower claim, a district court applying the same objective claim construction standards under the Phillips framework should not construe a substitute claim beyond the scope allowed by the Office. Further, as to any concern with vague or overly broad amendments, the PTAB is required to issue final written decisions with respect to the patentability of any new claim added, thus ensuring that vagueness and overbreadth issues will be resolved by the Office before issuance.

    Further, as to the suggestion that the Office require patent owners to amend claims to reflect a federal court claim construction, such a suggestion is not adopted for a variety of reasons. Among other things, the PTAB will construe claims under the final rule using the same objective standards under the Phillips framework as used by the federal courts. Additionally the final rule specifies that “any prior claim construction determination concerning a term of the claim in a civil action, or a proceeding before the International Trade Commission, that is timely made of record in the covered business method patent review proceeding will be considered.”

    Construing Claims To Preserve Validity

    Comment 16: Some comments opposed using a standard that applies the doctrine of construing claims to preserve their validity.

    Response: In this final rule, the Office fully adopts the federal courts claim construction standard, which is articulated in Phillips, for interpreting claims in AIA proceedings. This rule reflects that the PTAB in an AIA proceeding will apply the same standard applied in federal courts to construe patent claims.

    To the extent that federal courts and the ITC still apply the doctrine of construing claims to preserve their validity as described in Phillips, the Office will apply this doctrine for purposes of claim construction if dictated by the principles of Phillips and its progeny, e.g., if those same rare circumstances arise in AIA proceedings. As the Federal Circuit recognized in Phillips, this doctrine is “of limited utility.” Phillips, 415 F.3d at 1327-28. The Court has not applied that doctrine broadly, and has “certainly not endorsed a regime in which validity analysis is a regular component of claim construction.” Id. at 1327 (citation omitted). The doctrine of construing claims to preserve their validity has been limited to cases in which “the court concludes, after applying all the available tools of claim construction, that the claim is still ambiguous.” Id. Moreover, the Federal Circuit “repeatedly and consistently has recognized that courts may not redraft claims, whether to make them operable or to sustain their validity.” Rembrandt Data Techs., LP v. AOL, LLC, 641 F.3d 1331, 1339 (Fed. Cir. 2011); see also MBO Labs., Inc. v. Becton, Dickinson & Co., 474 F.3d 1323, 1332 (Fed. Cir. 2007) (noting that “validity construction should be used as a last resort, not first principle”).

    Even in those extremely rare cases in which the courts applied the doctrine, the courts “looked to whether it is reasonable to infer that the PTO would not have issued an invalid patent, and that the ambiguity in the claim language should therefore be resolved in a manner that would preserve the patent's validity,” noting that this was “the rationale that gave rise to the maxim in the first place.” Phillips, 415 F.3d at 1327 (citing Klein v. Russell, 86 U.S. (19 Wall.) 433, 466, 22 Led. 116 (1873)). “The applicability of the doctrine in a particular case therefore depends on the strength of the inference that the PTO would have recognized that one claim interpretation would render the claim invalid, and that the PTO would not have issued the patent assuming that to be the proper construction of the term.” Id. at 1328.

    Moreover, it also may not be necessary to determine the exact outer boundary of claim scope because only those terms that are in controversy need be construed, and only to the extent necessary to resolve the controversy (e.g., whether the claim reads on a prior art reference). See Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co. Ltd., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (noting that “we need only construe terms `that are in controversy, and only to the extent necessary to resolve the controversy'”) (citing Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)). Moreover, the Federal Circuit “repeatedly and consistently has recognized that courts may not redraft claims, whether to make them operable or to sustain their validity.” Rembrandt Data, 641 F.3d at 1339.

    The Rule Language

    Comment 17: Some comments, although generally agreeing with the proposed rule change, suggested some changes to the language of the proposed rules. In particular, some of the comments suggested modifying the rule language to summarize all of the claim construction principles set forth in Phillips and to include other non-substantive minor edits. Some of the comments suggested deleting the “including” phrase: “including construing the claim in accordance with the ordinary and customary meaning of such claim as understood by one of ordinary skill in the art and the prosecution history pertaining to the patent.” Although one comment acknowledged that this “including” phrase is merely exemplary, other comments suggested the deletion to ensure that there is no difference between the claim construction standard applied in AIA proceedings and the standard used in federal courts and ITC proceedings, and that the deletion also would preserve the ability to respond to future refinements in the law.

    Response: As to deleting the “including” phrase, the “including” phrase is merely exemplary, not excluding additional canons of claim construction, and not intending to reflect any difference between standard articulated by Phillips and its progeny, as applied by the courts. This rule reflects that the PTAB in an AIA proceeding will apply the same standard applied in federal courts to construe patent claims. While the comments seeking the deletion of the “including” phrase were not adopted, the intent of the final rule language is to ensure that the public understands that the rule does not differ in any way from the standard used in federal courts. The Office has also considered modifying the rule language to summarizing the construction principles of Phillips as well as several non-substantive edits, but determined that the language of the rule provides sufficient clarity. Moreover, the intent of the rule is to ensure that the PTAB follows the same claim construction standard applied by federal courts, including any future refinements in the caselaw.

    Comment 18: A few comments suggested changing “such claim in a civil action to invalidate a patent” to “the claim in a civil action” because a civil action may involve infringement of a patent, and is not necessarily limited to invalidity actions.

    Response: This suggestion is adopted. Amended §§ 42.100(b), 42.200(b), and 42.300(b), as adopted in this final rule, provide “a claim . . . shall be construed using the same claim construction standard that would be used to construe the claim in a civil action under 35 U.S.C. 282(b) . . . .” Again, the intent of the final rule is to make clear that there is no difference between the claim construction standard applied by the PTAB and the standard applied by the federal courts to construe patent claims.

    Comment 19: A few comments suggested adding “or the Board” in the last sentence of the proposed rules to make explicit that prior PTAB claim construction determinations concerning a claim term will be considered.

    Response: Applying the federal court claim construction standard, which is articulated in Phillips, the PTAB will construe a claim based on the record of an AIA proceeding, taking into account the claim language itself, specification, and prosecution history pertaining to the patent. The prosecution history taken into account includes prior PTAB claim construction determinations concerning a term of the claim. To ensure due consideration by the PTAB, the parties should timely submit the relevant portions of the prosecution history that support their arguments along with detailed explanations. The suggested change is not adopted as it is unnecessary; prior PTAB claim construction determinations concerning a claim term will be considered under Phillips, for example when they are part of the intrinsic record of the challenged patent

    Comment 20: One comment suggested removing the reference to 35 U.S.C. 282(b), which does not itself provide for a civil action.

    Response: The reference to 35 U.S.C. 282(b) makes clear that the Office is adopting the same claim construction standard used in civil actions “involving the validity or infringement of a patent.” 35 U.S.C. 282(b). This rule reflects that the PTAB in an AIA proceeding will apply the same standard applied in federal courts to construe patent claims.

    Materials to be Considered

    Comment 21: One comment requested clarification on what aspects of the prosecution history would be considered in a claim construction under the new rule.

    Response: The Office may take into account the prosecution history that occurred previously in proceedings at the Office prior to the proceeding at issue, including in another AIA proceeding, or before an examiner during examination, reissue, and reexamination. The file history typically consists of the patent application as originally filed, the cited prior art, all papers prepared by the examiner during the course of examination, and documents submitted by the applicant in response to the various requirements, objections, and rejections made by examiner. In addition, the file history may contain a written record of oral communications addressing patentability issues between the examiner and applicant. The Office will determine the claim construction based on the record of the proceeding at issue. The parties should timely submit the relevant portions of the prosecution history with detailed explanations as to how the prosecution history support their arguments, to ensure that such material is considered. Each party bears the burden of providing sufficient support for any construction advanced by that party.

    Comment 22: Some comments suggested that consideration of prior claim construction determination should also include prior determinations by the Office in a prior PTAB proceeding.

    Response: Reference to “prosecution history” in the rule includes consideration of relevant determinations on claim construction in prior PTAB proceedings, including determinations made in ex parte appeals and AIA proceedings. The prosecution history includes a written record of all communications addressing patentability issues between the PTAB, the petitioner and the patent owner, including all briefing, motions, evidence and decisions set forth in the record of the proceeding.

    Comment 23: One comment requested clarification as to whether federal court claim constructions and ITC claim constructions will be considered under the new rules.

    Response: Yes, each of amended §§ 42.100, 42.200, and 42.300, as adopted in this final rule, states that “[a]ny prior claim construction determination concerning a term of the claim in a civil action, or a proceeding before the [ITC], that is timely made of record in the [inter partes, post grant or covered business method patent] review proceeding will be considered.” The PTAB will consider prior claim constructions from district courts or the ITC and give them appropriate weight. Non-exclusive factors to be considered may include, for example, how thoroughly reasoned the prior decision is and the similarities between the record in the district court or the ITC and the record before the PTAB. It may also be relevant whether the prior claim construction is final or interlocutory. These factors will continue to be relevant under the district court claim construction standard, which is articulated in Phillips. The PTAB may also continue to consider whether the terms construed by the district court or the ITC are necessary to decide the issues before it. This is not an exclusive list of considerations, and the facts and circumstances of each case will be analyzed as appropriate.

    Comment 24: One comment suggested that the PTAB also consider statements made by a patent owner in a prior proceeding in which the patent owner took a position on the scope of any claims of the challenged patent.

    Response: Under the amended rules as adopted in this final rule, the PTAB will consider statements regarding claim construction made by patent owners filed in other proceedings in claim construction determinations if the statements are timely made of record. Cf. Aylus Networks, 856 F.3d at 1360-61 (extending the prosecution disclaimer doctrine to include patent owner's statements made in a preliminary response that was submitted a prior AIA proceeding). The Board may also consider statements regarding claim construction made by petitioners in other proceedings. To the extent that a party wants such information considered by the Office, that party should point out specifically the statements and explain how those statements support or contradict a party's proposed claim construction in the proceeding at issue. Each party bears the burden of providing sufficient support for any construction advanced by that party. Furthermore the Office may take into consideration statements made by a patent owner about claim scope, such as those submitted under 35 U.S.C. 301(a), for example.

    Comment 25: Comments requested clarification on the use of extrinsic evidence, such as technical dictionaries or other scientific background evidence, to demonstrate how a person of ordinary skill in the art would interpret a particular term.

    Response: Consistent with Phillips and its progeny, the use of extrinsic evidence, such as expert testimony and dictionaries, will continue to be useful in demonstrating what a person of ordinary skill in the art would understand claim terms to mean. Phillips, 415 F.3d at 1318-19. The Federal Circuit has recognized that “extrinsic evidence in general is viewed as less reliable than intrinsic evidence.” Id.; Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015) (noting the use of extrinsic evidence when “subsidiary facts are in dispute”). Moreover, when the specification is clear about the scope and content of a claim term, there may be no need to turn to extrinsic evidence for claim interpretation. See 3M Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326-28 (Fed. Cir. 2013). This rule reflects that the PTAB in an AIA proceeding will apply the same standard applied in federal courts to construe patent claims.

    Comment 26: One comment sought clarification on the types of civil actions for which claim interpretations would be considered, noting that reference to 35 U.S.C. 282(b) appears to limit the scope of civil actions to only those civil actions that arise seeking declaratory judgment of invalidity, and not to consideration of claim constructions of a patent in an infringement action filed under 35 U.S.C. 271, despite the fact that claim construction standards are identical in both types of proceedings.

    Response: Reference to “a civil action under 35 U.S.C. 282(b)” refers to the standard that will be used in interpreting claims in IPR, PGR, or CBM proceedings, and encompasses both invalidity and infringement as it relates to a defense “in any action involving the validity or infringement of a patent.” The PTAB will consider claim constructions in any civil action or ITC proceeding in which the meaning of the same term of the same patent has been previously construed. This rule reflects that the PTAB in an AIA proceeding will apply the same standard applied in federal courts to construe patent claims.

    Comment 27: One comment sought clarification as to the role of the ordinary meaning of the claim term.

    Response: The Office will construe claim terms consistent with the standard used in a civil action under 35 U.S.C. 282(b), which includes construing the claim in accordance with the ordinary and customary meaning in light of “the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.” Phillips, 415 F.3d at 1314 (citing Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004)); see, e.g., Sumitomo Dainippon Pharma Co., Ltd. v. Emcure Pharm. Ltd., 887 F.3d 1153, 1157 (Fed. Cir. 2018) (“As a general rule, the ordinary and customary meaning controls unless `a patentee sets out a definition and acts as his own lexicographer, or . . . the patentee disavows the full scope of a claim term either in the specification or during prosecution.'”) (quoting Thorner v. Sony Comput. Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)). This rule reflects that the PTAB in an AIA proceeding will apply the same standard applied in federal courts to construe patent claims.

    Comment 28: Some comments sought clarification because the rule does not indicate consideration of the ordinary meaning to the skilled artisan “at the time of filing the invention” or as of the “earliest effective filing date.”

    Response: Consistent with Supreme Court and Federal Circuit case law, the Phillips claim construction standard applied will be that of the skilled artisan as of the effective filing date. Phillips, 415 F.3d at 1313 (Fed. Cir. 2005) (“[T]he ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application.”) (citing Innova, 381 F.3d at 1116 (“A court construing a patent claim seeks to accord a claim the meaning it would have to a person of ordinary skill in the art at the time of the invention.”)). This rule reflects that the PTAB in an AIA proceeding will apply the same standard applied in federal courts to construe patent claims.

    Prior Claim Construction Determinations

    Comment 29: Some comments suggested that, in applying the Phillips standard, the PTAB should consider prior claim constructions from proceedings in federal court or the ITC.

    Response: Under the amended rules as adopted in this final rule, the PTAB will consider prior claim construction determinations from federal courts or the ITC that has been timely made of record in an AIA proceeding. See 37 CFR 42.100, 42.200, and 42.300.

    Comment 30: Some comments sought guidance on the intended meaning of “considered” and what level of deference and weight the PTAB will give to prior claim construction determinations. Some comments suggested that the PTAB should defer to a prior claim construction by a district court or the ITC. Others suggest that the proposed rule be modified to expressly require deference to a prior claim construction ruling. One comment expressed concerns that applying the Phillips standard may be unfair if the PTAB considers other tribunals' prior claim construction determinations when either or both parties did not participate in the prior proceedings. Another comment expressed concerns that requiring PTAB to consider prior claim construction determinations will encourage venue gamesmanship.

    Response: The suggestions that the PTAB must necessarily defer to prior claim constructions are not adopted. The PTAB will consider prior claim constructions from courts or the ITC, if timely made of record, and give them appropriate weight. Non-exclusive factors to be considered may include, for example, how thoroughly reasoned the prior decision is and the similarities between the record in the district court or the ITC and the record before the PTAB. It also may be relevant whether the prior claim construction is final or interlocutory. These factors will continue to be relevant under the federal court claim construction standard, which is articulated in Phillips. The PTAB will also consider whether the terms construed by the district court or the ITC are necessary to decide the issues before it. This is not an exclusive list of considerations, and the facts and circumstances of each case will be analyzed as appropriate.

    Comment 31: Some comments sought written guidance addressing how the PTAB will consider prior claim constructions. Some suggest a series of detailed questions that the PTAB should answer about what it means for a prior claim construction to be considered.

    Response: The PTAB may provide further guidance in the future on the question of how the PTAB will consider prior claim constructions as circumstances warrant. However, at this juncture, the PTAB has not decided the form that such guidance, if any, will take. Guidance, if issued, may take the form of, for example, a guidance document, a Standard Operating Procedure, or designating certain decisions as informative or precedential. The PTAB expects its guidance, if any, will be informed by its experience with cases in which a federal court or the ITC has rendered a claim construction using the same standard as the PTAB.

    The PTAB may treat a prior district court claim construction order the same way that such an order may be treated by a different district court. In particular, the PTAB will consider prior claim constructions from district courts or the ITC, if timely made of record, and give them appropriate weight. Non-exclusive factors to be considered may include, for example, how thoroughly reasoned the prior decision is and the similarities between the record in the district court or the ITC and the record before the PTAB. It also may be relevant whether the prior claim construction is final or interlocutory. These factors will continue to be relevant under the district court claim construction standard, which is articulated in Phillips. The PTAB will also consider whether the terms construed by the district court or ITC are necessary to decide the issues before it. This is not an exclusive list of considerations, and the facts and circumstances of each case will be analyzed as appropriate. This rule reflects that the PTAB in an AIA proceeding will apply the same standard applied in federal courts to construe patent claims.

    Comment 32: Some comments suggested requiring the PTAB in an AIA proceeding to explain in writing its reasoning when its claim construction differs from a prior construction of a district court or the ITC.

    Response: As is the current practice, the PTAB will explain in writing its reasoning and the basis for its decisions on claim construction. Depending on the circumstances of a given matter, this may or may not include, for example, a discussion of prior claim construction decisions and explanation of material differences, if any, as appropriate.

    Comment 33: Some comments suggested that a prior claim construction by a district court or the ITC will be binding on the PTAB under res judicata.

    Response: A claim construction order from a district court may be informative to PTAB, just as claim construction from PTAB may be informative to a district court. The precise legal implications of either such decision would depend on the specific facts of the cases, any applicable legal principles, and an analysis of those specific facts to the applicable legal principles. It is worth noting that district courts themselves may not be bound by each other's claim construction orders. Moreover, in many cases, the PTAB will issue a final decision before the corresponding district court trial has concluded and a final judgment has been entered. Issue preclusion, collateral estoppel, and res judicata must each be premised on, among other things, a final court judgment.

    Comment 34: One comment suggested that the Office provide proof that the district courts will be willing to accept the PTAB's claim constructions prior to a final decision knowing that these constructions are not final and might change.

    Response: The district courts have the discretion to review and/or adopt the PTAB's initial or final claim constructions, using their own factors and reasoning. A prior non-final claim construction by the PTAB may be helpful and considered by the district court, just as a prior claim construction by the district court may be helpful and considered by the PTAB, depending on the facts and circumstances of a particular case.

    Comment 35: One comment suggested that the PTAB should establish its rules and practices for construing claims in a way that best ensures that later tribunals will honor those constructions. The comment suggests that, in addition to adopting the Phillips standard, the PTAB should state its intent that PTAB trial determinations be treated as preclusive on later tribunals.

    Response: The district courts have the discretion to review and/or adopt the PTAB's initial or final claim constructions, using their own factors and reasoning. A prior non-final claim construction by the PTAB may be helpful and considered by the district court, just as a prior claim construction by the district court may be helpful and considered by the PTAB, depending on the facts and circumstances of a particular case.

    Comment 36: Some comments suggested that the PTAB should defer to its own prior claim constructions.

    Response: The PTAB will continue to give due consideration to its own prior claim constructions, and where appropriate, may adopt those constructions. Non-exclusive factors to be considered may include, for example, how thoroughly reasoned the prior decision is and the similarities between the records. It also may be relevant whether the prior claim construction is final or interlocutory. The PTAB will also consider whether the terms previously construed are necessary to decide the issues currently before it. This is not an exclusive list of considerations, and the facts and circumstances of each case will be analyzed as appropriate.

    Comment 37: Some comments sought guidance on the timing and procedures for submitting claim construction materials from other tribunals to the PTAB.

    Response: Parties should submit a decision on claim construction by a federal court or the ITC in an AIA proceeding as soon as that decision becomes available. Preferably, the prior claim construction is submitted with the petition or preliminary response, with explanations. After a trial is instituted, the PTAB's rules on supplemental information govern the timing and procedures for submitting claim construction decisions. See 37 CFR 42.123, 42.223. Under those rules, a party must first request authorization from the PTAB to file a motion to submit supplemental information. If it is more than one month after the date the trial is instituted, the motion must show why the supplemental information reasonably could not have been obtained earlier. Normally, the PTAB will permit such information to be filed, as long as the final oral hearing has not taken place. The PTAB may permit a later filing where it is not close to the one-year deadline for completing the trial. Again, parties should submit the prior claim construction as soon as the decision is available.

    Comment 38: One comment asked whether disclosure of prior claim construction determinations is optional or subject to mandatory disclosure under 37 CFR 42.51(b).

    Response: Submission of prior claim construction determinations is mandatory under 37 CFR 42.51(b), if it is “relevant information that is inconsistent with a position advanced by the party during the proceeding.” In such cases, the determinations should be submitted “concurrent with the filing of the documents or things that contains the inconsistency.” Id.

    Comment 39: A comment suggested that the disclosure of any prior claim constructions by a court or the ITC or any claim constructions the parties or their privies have offered in a court proceeding or before the ITC be required.

    Response: The current requirement under 37 CFR 42.51(b) for disclosure of “relevant information that is inconsistent with a position advanced by the party during the proceeding” is sufficient. District court and ITC claim construction proceedings may involve terms that are not relevant to issues before the PTAB. To require disclosure of any term construed by a district court or the ITC would result in unnecessary filings and inefficiencies in identifying which terms, if any, are relevant to the trial before the PTAB. Rather, a prior claim construction must be submitted under 37 CFR 42.51(b), if it is “relevant information that is inconsistent with a position advanced by the party during the proceeding.”

    Comment 40: One comment asked whether, if the PTAB decides not to adopt prior claim constructions, the PTAB can make its own claim constructions. The comment further asked whether the PTAB can only make constructions asserted by the parties.

    Response: When applying the same Phillips standards as applied in federal court or the ITC, the PTAB may or may not adopt a construction that has been proposed by one of the parties. For example, the PTAB is not required to provide constructions that are unnecessary to the issues before it. In addition, where the PTAB makes a claim construction determination in its institution decision that differs from one asserted by the parties, the parties will be afforded an opportunity to brief the issue after institution.

    Effective Date of the Rule Change

    Comment 41: Several comments opposed retroactive application of the rule and requested the proposed changes only apply to new proceedings filed some time period after announcement of the final rule. Concerns were expressed that retroactive application of the rule would be disruptive and would require significant time, effort, and expense to be spent by the parties (e.g., for supplemental briefing and additional testimony) and may unfairly prejudice petitioners that have filed petitions they may not have decided to file under the Phillips standard.

    Response: The Office appreciates the concerns that have been raised, and adopts the proposed change. While the Office believes the federal court claim construction standard to be the best standard to use going forward, given the concerns raised in the comments, the changes adopted in this final rule will only apply to petitions filed on or after the effective date of the final rule.

    Comment 42: A few comments raised concerns whether the Office has the authority to apply the new standard retroactively under the principles articulated in Bowen v. Georgetown Univ. Hosp., 109 S. Ct. 468 (1988) and Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994).

    Response: The Office acknowledges the concerns and recognizes that a “statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms.” Bowen, 109 S. Ct. at 472. The change in claim construction standard, as adopted in this final rule, will only be applied to petitions filed on or after the effective date of the rule.

    Comment 43: Several comments suggested the Phillips claim construction standard should apply to all proceedings over which the PTAB maintains jurisdiction upon the effective date of the final rule. The comments noted this would be consistent with existing practices under which parties to post-grant proceedings know that claim construction is subject to modification until the end of trial. Additionally, a few comments proposed the Phillips standard also be applied to proceedings remanded from the Federal Circuit Court of Appeals.

    Response: The Office recognizes the desire of some commenters to apply the federal court standard as soon as possible to all proceedings. On balance, the Office has determined the rule changes set forth in this final rule will only apply to proceedings where a petition is filed on or after the effective date of the rule.

    Comment 44: Some comments expressed concern that, if the rule changes were applied prospectively only, a large number of petitions may be filed prior to the effective date of the rule changes by petitioners seeking to retain the BRI standard, which would strain administrative resources and could cause unnecessary delay.

    Response: The Office appreciates the comments. The rule changes adopted in this final rule are applicable to any petition filed on or after the effective date of the final rule. The Office does not anticipate an inordinate number of petitions to be filed during the 30 day period from publication to effective date.

    Comment 45: A few comments suggested that, if the rule changes are applied to existing proceedings, the PTAB should provide the parties with the opportunity to file briefs directed to the impact of the change in the claim construction standard in their proceedings.

    Response: The Office agrees and has implemented the final rule such that the final rule applies only to petitions filed on or after the effective date. As such, petitioners will have an opportunity to fully brief the federal court claim construction standard in their petitions and patent owners will likewise have an opportunity to fully brief this issue in patent owner preliminary responses.

    Additional Suggested Changes

    Comment 46: The Office has received a number of suggested changes to the current AIA proceedings. These suggested changes are directed to both procedural and statutory changes that go beyond the scope of this rulemaking. For example, the Office has received comments suggesting procedural and statutory changes such as handling motions to amend similar to ex parte reexamination, allowing more live testimony, limiting petitions to a single ground per claim, precluding hedge funds from filing petitions, denying multiple petitions against the same patent, using the substantial new question of patentability standard at institution, awarding attorney fees for small entities and changing the preponderance of the evidence burden of proof to a clear and convincing burden of proof.

    Response: The Office appreciates the comments received. The Office continues to undertake a wholesale examination of AIA proceedings to determine which areas need improvement and which areas are working well. The Office may take action in certain areas in the near future based on its own review and in light of input from the IP community, some of which may be reflected in the comments received. The Office will continue to study and make improvements to AIA proceedings as necessary to ensure a balanced system that meets the congressional intent of the AIA.

    Comment 47: The Office also has received a number of comments suggesting changes to ex parte examination, including reexamination and reissue examination procedures. For example, several comments have requested that the Office adopt a federal court claim construction standard for reexamination proceedings and reissue applications.

    Response: The Office appreciates the comments received; however, they are beyond the scope of the current rulemaking, which focuses on AIA proceedings. The Office will take these comments into account as the Office continually seeks to improve the examination process in order to provide high quality, efficient examination.

    Rulemaking Considerations

    A. Administrative Procedure Act (APA): This final rule revises the rules relating to Office trial practice for IPR, PGR, and CBM proceedings. The changes set forth in this final rule will not change the substantive criteria of patentability. These rule changes involve rules of agency procedure and interpretation. See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015) (Interpretive rules “advise the public of the agency's construction of the statutes and rules which it administers.” (citation and internal quotation marks omitted)); Bachow Commc'ns, Inc. v. F.C.C., 237 F.3d 683, 690 (D.C. Cir. 2001) (Rules governing an application process are procedural under the Administrative Procedure Act.); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (Rules for handling appeals were procedural where they did not change the substantive requirements for reviewing claims.); Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (Rule that clarifies interpretation of a statute is interpretive.); JEM Broad. Co. v. F.C.C., 22 F.3d 320, 328 (D.C. Cir. 1994) (Rules are not legislative because they do not “foreclose effective opportunity to make one's case on the merits.”).

    Accordingly, prior notice and opportunity for public comment are not required pursuant to 5 U.S.C. 553(b) or (c) (or any other law). See Perez, 135 S. Ct. at 1206 (Notice-and-comment procedures are required neither when an agency “issue[s] an initial interpretive rule” nor “when it amends or repeals that interpretive rule.”); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), do not require notice and comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” (quoting 5 U.S.C. 553(b)(3)(A))).

    The Office, nevertheless, published the notice of proposed rulemaking for comment as it sought the benefit of the public's views on the Office's proposed changes to the claim construction standard for reviewing patent claims and proposed substitute claims in AIA proceedings before the Board. See 83 FR 21221.

    B. Regulatory Flexibility Act: For the reasons set forth herein, the Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that changes in this final rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b).

    This final rule revises certain rules and trial practice procedures before the Board. Any requirements resulting from these changes are of minimal or no additional burden to those practicing before the Board.

    For the foregoing reasons, the changes in this final rule will not have a significant economic impact on a substantial number of small entities.

    C. Executive Order 12866 (Regulatory Planning and Review): This rulemaking has been determined to be significant, for purposes of Executive Order 12866 (Sept. 30, 1993).

    D. Executive Order 13563 (Improving Regulation and Regulatory Review): The Office has complied with Executive Order 13563. Specifically, the Office has, to the extent feasible and applicable: (1) Made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector and the public as a whole, and provided on-line access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.

    E. Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs): This rule is not subject to the requirements of E.O. 13771 because this rule results in no more than de minimis costs.

    F. Executive Order 13132 (Federalism): This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

    G. Executive Order 13211 (Energy Effects): This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

    H. Executive Order 12988 (Civil Justice Reform): This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).

    I. Executive Order 13045 (Protection of Children): This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).

    J. Executive Order 12630 (Taking of Private Property): This rulemaking will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

    K. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), prior to issuing any final rule, the United States Patent and Trademark Office will submit a report containing the rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the Government Accountability Office. The changes in this final rule are not expected to result in an annual effect on the economy of 100 million dollars or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this rulemaking is not a “major rule” as defined in 5 U.S.C. 804(2).

    L. Unfunded Mandates Reform Act of 1995: The changes in this final rule do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

    M. National Environmental Policy Act: This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

    N. National Technology Transfer and Advancement Act: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions which involve the use of technical standards.

    O. Paperwork Reduction Act: The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3549) requires that the Office consider the impact of paperwork and other information collection burdens imposed on the public. This final rule involves information collection requirements which are subject to review by the Office of Management and Budget (“OMB”) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3549). This rulemaking does not add any additional information requirements or fees for parties before the Board. Therefore, the Office is not resubmitting information collection packages to OMB for its review and approval because the revisions in this rulemaking do not materially change the information collections approved under OMB control number 0651-0069.

    Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to, a 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 currently valid OMB control number.

    List of Subjects in 37 CFR Part 42

    Administrative practice and procedure, Inventions and patents.

    For the reasons set forth in the preamble, the Office amends part 42 of title 37 as follows:

    PART 42—TRIAL PRACTICE BEFORE THE PATENT TRIAL AND APPEAL BOARD 1. The authority citation for 37 CFR part 42 continues to read as follows: Authority:

    35 U.S.C. 2(b)(2), 6, 21, 23, 41, 135, 311, 312, 316, and 321-326; Public Law 112-29, 125 Stat. 284; and Pub. L. 112-274, 126 Stat. 2456.

    2. Amend § 42.100 by revising paragraph (b) to read as follows:
    § 42.100 Procedure; pendency.

    (b) In an inter partes review proceeding, a claim of a patent, or a claim proposed in a motion to amend under § 42.121, shall be construed using the same claim construction standard that would be used to construe the claim in a civil action under 35 U.S.C. 282(b), including construing the claim in accordance with the ordinary and customary meaning of such claim as understood by one of ordinary skill in the art and the prosecution history pertaining to the patent. Any prior claim construction determination concerning a term of the claim in a civil action, or a proceeding before the International Trade Commission, that is timely made of record in the inter partes review proceeding will be considered.

    3. Amend § 42.200 by revising paragraph (b) to read as follows:
    § 42.200 Procedure; pendency.

    (b) In a post-grant review proceeding, a claim of a patent, or a claim proposed in a motion to amend under § 42.221, shall be construed using the same claim construction standard that would be used to construe the claim in a civil action under 35 U.S.C. 282(b), including construing the claim in accordance with the ordinary and customary meaning of such claim as understood by one of ordinary skill in the art and the prosecution history pertaining to the patent. Any prior claim construction determination concerning a term of the claim in a civil action, or a proceeding before the International Trade Commission, that is timely made of record in the post-grant review proceeding will be considered.

    4. Amend § 42.300 by revising paragraph (b) to read as follows:
    § 42.300 Procedure; pendency.

    (b) In a covered business method patent review proceeding, a claim of a patent, or a claim proposed in a motion to amend under § 42.221, shall be construed using the same claim construction standard that would be used to construe the claim in a civil action under 35 U.S.C. 282(b), including construing the claim in accordance with the ordinary and customary meaning of such claim as understood by one of ordinary skill in the art and the prosecution history pertaining to the patent. Any prior claim construction determination concerning a term of the claim in a civil action, or a proceeding before the International Trade Commission, that is timely made of record in the covered business method patent review proceeding will be considered.

    Dated: October 3, 2018. Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.
    [FR Doc. 2018-22006 Filed 10-10-18; 8:45 am] BILLING CODE 3510-16-P
    POSTAL SERVICE 39 CFR Part 111 POSTNET Barcode AGENCY:

    Postal ServiceTM.

    ACTION:

    Final rule.

    SUMMARY:

    The Postal Service is amending Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM®) to remove all references to the POSTNETTM barcode.

    DATES:

    Effective Date: October 11, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Lizbeth Dobbins at (202) 268-3789 or Garry Rodriguez at (202) 268-7261.

    SUPPLEMENTARY INFORMATION:

    The Postal Service published a notice of proposed rulemaking on July 23, 2018, (83 FR 34806-07) to amend the DMM to remove all references to the POSTNET barcode. This decision was based on the limited use of the POSTNET barcode and the need to simplify the standards in regard to barcoding letter-size and flat-size mailpieces.

    The Postal Service received 1 formal response which was in agreement with the removal of POSTNET barcodes in the DMM.

    The Postal Service will remove all references to the POSTNET barcode from the DMM. The Postal Service will continue to process mailpieces with a POSTNET barcode to accommodate customers who may have preprinted stock bearing a POSTNET barcode.

    List of Subjects in 39 CFR Part 111

    Administrative practice and procedure, Postal Service.

    The Postal Service adopts the following changes to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.

    Accordingly, 39 CFR part 111 is amended as follows:

    PART 111—[AMENDED] 1. The authority citation for 39 CFR part 111 continues to read as follows: Authority:

    5 U.S.C. 552(a); 13 U.S.C. 301-307; 18 U.S.C. 1692-1737; 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3622, 3626, 3632, 3633, and 5001.

    2. Revise the Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM) as follows: Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM) 200 Commercial Mail Letters, Cards, Flats, and Parcels 202 Elements on the Face of a Mailpiece 5.0 Barcode Placement Letters and Flats 5.1 Letter-Size 5.1.4 Additional Barcode Permissibility

    [Revise the text of 5.1.4 to read as follows:]

    An automation letter or a letter claimed at Enhanced Carrier Route saturation or high density automation letter prices may not bear a 5-digit or ZIP+4 Intelligent Mail barcode in the lower right corner (barcode clear zone). The piece may bear an additional Intelligent Mail barcode in the address block only if a qualifying Intelligent Mail barcode with a delivery point routing code appears in the lower right corner.

    5.2 Flat-Size 5.2.1 Barcode Placement for Flats

    [Revise the fifth sentence of 5.2.1 to read as follows:]

    * * * An additional Intelligent Mail barcode may also appear in the address block of an automation flat, when the qualifying Intelligent Mail barcode is not in the address block. * * *

    6.0 Barcode Placement for Parcels

    [Revise the heading and text of 6.3 to read as follows:]

    6.3 Intelligent Mail Barcodes

    Intelligent Mail barcodes (IMb) do not meet barcode eligibility requirements for parcels and do not qualify for any barcode-related prices for parcels, but one barcode may be included only in the address block on a parcel, except on eVS parcels. An Intelligent Mail barcode in the address block must be placed according to 5.3.

    8.0 Facing Identification Mark (FIM) 8.2 Pattern

    [Revise the third sentence in the introductory text of 8.2 to read as follows:]

    * * * The required FIM pattern as shown in Exhibit 8.2.0 below depends on the type of mail and the presence of an Intelligent Mail barcode as follows:

    204 Barcode Standards Overview

    [Revise the link heading under “Overview” to read as follows:]

    1.0 Standards for Intelligent Mail Barcodes

    [Revise the heading of 1.0 to read as follows:]

    1.0 Standards for Intelligent Mail Barcodes 1.1 General

    [Revise the text of 1.1 to read as follows:]

    An Intelligent Mail barcode is a USPS-developed method to encode ZIP Code information on mail that can be read for sorting by automated machines. Intelligent Mail barcodes also encode other tracking information.

    [Delete 1.2, POSTNET Barcode, in its entirety and renumber 1.3 through 1.6 as 1.2 through 1.5.]

    507 Mailer Services 4.0 Address Correction Services 4.2 Address Change Service (ACS) 4.2.6 Additional Standards—When Using Intelligent Mail Barcodes

    * * * Mailpieces must meet the following specifications:

    [Revise the text of item b to read as follows:]

    b. Flat-size mailpieces may be mailed at nonautomation or automation prices.

    600 Basic Standards for All Mailing Services 604 Postage Payment Methods and Refunds 4.0 Postage Meters and PC Postage Products (“Postage Evidencing Systems”) 4.3 Postage Payment 4.3.3 Placement of Postage

    * * * When placing indicia on mailpieces, position indicia at least 1/4 inch from the right edge of the mailpiece and 1/4 inch from the top edge of the mailpiece and as follows:

    [Revise the text of item e to read as follows:]

    e. Do not allow the indicia to infringe on the areas reserved for the FIM, Intelligent Mail barcode, or optical character reader (OCR) clear zone.

    Index P

    [Delete the “POSTNET” line item in the Index.]

    We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes.

    Brittany M. Johnson, Attorney, Federal Compliance.
    [FR Doc. 2018-22107 Filed 10-10-18; 8:45 am] BILLING CODE 7710-12-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 9 and 721 [EPA-HQ-OPPT-2017-0414; FRL-9984-71] RIN 2070-AB27 Significant New Use Rules on Certain Chemical Substances; Withdrawal AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Withdrawal of direct final rule.

    SUMMARY:

    EPA is withdrawing significant new use rules (SNURs) promulgated under the Toxic Substances Control Act (TSCA) for 27 chemical substances, which were the subject of premanufacture notices (PMNs). EPA published these SNURs using direct final rulemaking procedures, which requires EPA to take certain actions if an adverse comment is received. EPA received adverse comments and a request to extend the comment period regarding the SNURs identified in the direct final rule. Therefore, the Agency is withdrawing the direct final rule SNURs identified in this document, as required under the direct final rulemaking procedures.

    DATES:

    The direct final rule published at 83 FR 40986 on August 17, 2018, is withdrawn effective October 11, 2018.

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2017-0414, is available at http://www.regulations.gov or at the Office of Pollution Prevention and Toxics Docket (OPPT Docket), Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    For technical information contact: Kenneth Moss, Chemical Control Division (7405M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 564-9232; email address: [email protected]

    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave. Rochester, NY 14620; telephone number: (202) 554-1404; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Does this action apply to me?

    A list of potentially affected entities is provided in the Federal Register of August 17, 2018 (83 FR 40986) (FRL-9971-37). If you have questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

    II. What direct final SNURs are being withdrawn?

    In the Federal Register of August 17, 2018 (83 FR 40986) (FRL-9971-37), EPA issued direct final SNURs for 27 chemical substances that are identified in that document. Because the Agency received adverse comments and a request to extend the comment period regarding the SNURs identified in the document, EPA is withdrawing the direct final SNURS issued for these 27 chemical substances, which were the subject of PMNs. In addition to the direct final SNURs, elsewhere in the same issue of the Federal Register of August 17, 2018 (83 FR 41039) (FRL-9981-82), EPA issued proposed SNURs covering these 27 chemical substances. EPA will address all adverse public comments in a subsequent final rule, based on the proposed rule.

    III. Good Cause Finding

    EPA determined that this document is not subject to the 30-day delay of effective date generally required by the Administrative Procedure Act (APA) (5 U.S.C. 553(d)) because of the time limitations for publication in the Federal Register. This document must publish on or before the effective date of the direct final rule containing the direct final SNURs being withdrawn.

    IV. Statutory and Executive Order Reviews

    This action withdraws regulatory requirements that have not gone into effect and which contain no new or amended requirements and reopens a comment period. As such, the Agency has determined that this action will not have any adverse impacts, economic or otherwise. The statutory and Executive Order review requirements applicable to the direct final rules were discussed in the August 17, 2018 Federal Register (83 FR 40986). Those review requirements do not apply to this action because it is a withdrawal and does not contain any new or amended requirements.

    V. Congressional Review Act (CRA)

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). Section 808 of the CRA allows the issuing agency to make a rule effective sooner than otherwise provided by CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. As required by 5 U.S.C. 808(2), this determination is supported by a brief statement in Unit III.

    List of Subjects 40 CFR Part 9

    Environmental protection, Reporting and recordkeeping requirements.

    40 CFR Part 721

    Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.

    Dated: October 2, 2018. Lance Wormell, Acting Director, Chemical Control Division, Office of Pollution Prevention and Toxics. Accordingly, the amendments to 40 CFR parts 9 and 721 published on August 17, 2018 (83 FR 40986), are withdrawn effective October 11, 2018.
    [FR Doc. 2018-22194 Filed 10-10-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2017-0165; FRL-9985-13-Region 5] Air Plan Approval; Ohio; Approval of Sulfur Dioxide Regulations AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving Ohio's revisions to its State Implementation Plan (SIP) for sulfur dioxide (SO2) under the Clean Air Act (CAA). These revisions update facility information statewide and add new emission limits for selected sources in Lake and Jefferson Counties. EPA proposed to approve Ohio's SIP revision request on August 16, 2018. The revised regulations do not impose additional emission restrictions except for certain site-specific provisions which have been included in response to Ohio's nonattainment area designations of August 5, 2013. EPA received no adverse comments and is finalizing the approval.

    DATES:

    This final rule is effective on November 13, 2018.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2017-0165. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either through www.regulations.gov or at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Mary Portanova, Environmental Engineer, at (312) 353-5954 before visiting the Region 5 office.

    FOR FURTHER INFORMATION CONTACT:

    Mary Portanova, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-5954, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

    I. Background II. Public Comment and EPA Response III. What Action is EPA Taking? IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Background

    On March 13, 2017, Ohio submitted revisions to the Ohio Administrative Code Chapter 3745-18 (OAC 3745-18), effective on February 16, 2017, for incorporation by EPA into the Ohio SO2 SIP. OAC 3745-18 contains Ohio's air emission regulations for SO2, which include both generally applicable requirements and specific SO2 emission limits for each Ohio county. The revisions update facility information statewide, remove obsolete emission limits, and add new emission limits for selected sources in Lake and Jefferson Counties. On August 16, 2018 (83 FR 40723), EPA proposed to approve the submitted revisions. EPA is taking no action on certain parts of OAC 3745-18-04. EPA received no adverse public comments on this proposal; see the discussion in section II below.

    Ohio's March 13, 2017 submittal included rules which Ohio had developed to address CAA requirements for its 1-hour SO2 nonattainment areas. EPA proposed to approve the revised rules applicable to Ohio's nonattainment areas because these revisions update and strengthen the state's SO2 SIP. See section II C of the August 16, 2018 (83 FR 40723) notice of proposed rulemaking. The approval of these rules is not intended to address whether Ohio has fully satisfied EPA's nonattainment planning requirements for the nonattainment areas. EPA proposed to approve Ohio's nonattainment plan for the Lake County nonattainment area on August 21, 2018 (83 FR 42235), and intends to address nonattainment planning requirements for the remaining nonattainment areas in subsequent actions.

    II. Public Comment and EPA Response

    The comment period on EPA's August 16, 2018 (83 FR 40723) notice of proposed rulemaking closed on September 17, 2018. EPA received one public comment, which generally supported EPA's proposed action. This comment and EPA's response are described below.

    Comment: The commenter stated that fewer emissions are better emissions, and advocated the use of silicon for harnessing energy in solar cells.

    EPA Response: The revised rules do represent a reduction in total SO2 emissions in Ohio. The remainder of this comment is beyond the scope of EPA's action on Ohio's submittal.

    III. What action is EPA taking?

    EPA is approving Ohio's March 13, 2017 submittal of OAC 3745-18-01; OAC 3745-18-03; and OAC 3745-18-04 [except OAC 3745-18-04(D)(2), (D)(3), (D)(5), (D)(6), and (D)(9)(c), and OAC 3745-18-04 (E)(2), (E)(3) and (E)(4)]. EPA is also approving OAC 3745-18-05 and OAC 3745-18-07 through OAC 3745-18-94. Ohio's adoption of these rules was effective on February 16, 2017. EPA is taking no action on OAC 3745-18-04(D)(2), (D)(3), (D)(5), (D)(6), and (D)(9)(c), and OAC 3745-18-04 (E)(2), (E)(3) and (E)(4). EPA is also removing OAC 3745-18-02 from the Ohio SO2 SIP, pursuant to Ohio's request of September 10, 2009 1 . In the codification of this rule, besides specifying the approved rules in 40 CFR 52.1870, EPA is also removing text in 40 CFR 52.1881 that provided a duplicated and outdated listing of approved and disapproved Ohio rules.

    1Correction: The August 16, 2018 (83 FR 40723) notice of proposed rulemaking erroneously gave Ohio's 2009 SIP revision submittal date as September 17, 2009. Ohio's submittal requesting the removal of 3745-18-02 was dated September 10, 2009.

    IV. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Ohio regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.2

    2 62 FR 27968 (May 22, 1997).

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: September 25, 2018. James Payne, Acting Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    2. In § 52.1870, the table in paragraph (c) is amended by revising all the entries for “Chapter 3745-18 Sulfur Dioxide Regulations” to read as follows:
    § 52.1870 Identification of plan.

    (c) * * *

    EPA-Approved Ohio Regulations Ohio citation Title/subject Ohio
  • effective
  • date
  • EPA approval date Notes
    *         *         *         *         *         *         * Chapter 3745-18 Sulfur Dioxide Regulations 3745-18-01 Definitions and Incorporation by Reference 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-03 Compliance Time Schedules 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-04 Measurement Methods and Procedures 3/21/2000 1/31/2002, 67 FR 4669 Only (D)(9)(c). 3745-18-04 Measurement Methods and Procedures 2/16/2017 10/11/2018, [insert Federal Register citation] Except (D)(2), (D)(3), (D)(5), (D)(6), (D)(9)(c), (E)(2), (E)(3), and (E)(4). 3745-18-05 Ambient and Meteorological Monitoring Requirements 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-06 General Emission Limit Provisions 2/17/2011 11/19/2013, 78 FR 69299 3745-18-07 Adams County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-08 Allen County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-09 Ashland County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-10 Ashtabula County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-11 Athens County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-12 Auglaize County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-13 Belmont County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-14 Brown County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-15 Butler County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-16 Carroll County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-17 Champaign County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-18 Clark County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-19 Clermont County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-20 Clinton County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-21 Columbiana County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-22 Coshocton County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-23 Crawford County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-24 Cuyahoga County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-25 Darke County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-26 Defiance County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-27 Delaware County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-28 Erie County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-29 Fairfield County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-30 Fayette County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-31 Franklin County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-32 Fulton County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-33 Gallia County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-34 Geauga County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-35 Greene County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-36 Guernsey County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-37 Hamilton County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-38 Hancock County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-39 Hardin County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-40 Harrison County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-41 Henry County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-42 Highland County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-43 Hocking County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-44 Holmes County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-45 Huron County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-46 Jackson County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-47 Jefferson County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-48 Knox County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-49 Lake County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-50 Lawrence County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-51 Licking County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-52 Logan County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-53 Lorain County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-54 Lucas County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-55 Madison County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-56 Mahoning County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-57 Marion County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-58 Medina County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-59 Meigs County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-60 Mercer County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-61 Miami County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-62 Monroe County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-63 Montgomery County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-64 Morgan County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-65 Morrow County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-66 Muskingum County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-67 Noble County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-68 Ottawa County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-69 Paulding County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-70 Perry County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-71 Pickaway County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-72 Pike County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-73 Portage County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-74 Preble County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-75 Putnam County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-76 Richland County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-77 Ross County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-78 Sandusky County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-79 Scioto County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-80 Seneca County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-81 Shelby County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-82 Stark County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-83 Summit County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-84 Trumbull County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-85 Tuscarawas County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-86 Union County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-87 Van Wert County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-88 Vinton County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-89 Warren County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-90 Washington County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-91 Wayne County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-92 Williams County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-93 Wood County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] 3745-18-94 Wyandot County Emission Limits 2/16/2017 10/11/2018, [insert Federal Register citation] *         *         *         *         *         *         *
    3. Section 52.1881 is amended by: a. Revising paragraph (a) introductory text; and b. Removing and reserving paragraphs (a)(1) through (6).

    The revision reads as follows:

    § 52.1881 Control strategy: Sulfur oxides (sulfur dioxide).

    (a) EPA is approving, disapproving or taking no action on various portions of the Ohio sulfur dioxide control plan as noticed below. The disapproved portions of the Ohio plan do not meet the requirements of § 51.13 of this chapter in that they do not provide for attainment and maintenance of the national standards for sulfur oxides (sulfur dioxide).

    [FR Doc. 2018-22012 Filed 10-10-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2018-0507; FRL-9984-97-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Maryland; Nitrogen Oxides (NOX) Ozone Season Emissions Caps for Non-Trading Large NOX Units and Associated Revisions to General Administrative Provisions and Kraft Pulp Mill Regulation AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the State of Maryland. The revision (Maryland SIP Revision #18-03) pertains to a new Maryland regulation that establishes ozone season nitrogen oxides (NOX) emissions caps and other requirements for large non-electric generating units (non-EGU) in Maryland and includes associated revisions to two other Maryland regulations. The revision will enable Maryland to meet NOX reduction requirements related to interstate transport of pollution that contributes to other states' nonattainment or interferes with other states' maintenance of the ozone national ambient air quality standards (NAAQS). EPA is approving these revisions in accordance with the requirements of the Clean Air Act (CAA).

    DATES:

    This final rule is effective on November 13, 2018.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2018-0507. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Marilyn Powers, (215) 814-2308, or by email at [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    On August 8, 2018 (83 FR 39014), EPA published a notice of proposed rulemaking (NPRM) for the State of Maryland. In the NPRM, EPA proposed approval of new Code of Maryland Regulation (COMAR) 26.11.40—NO X Ozone Season Emission Caps for Non-Trading Large NO X Units and revisions to two regulations presently included in the Maryland SIP, COMAR 26.11.01.01—General Administrative Provisions and COMAR 26.11.14—Control of Emissions from Kraft Pulp Mills. The formal SIP revision was submitted by Maryland on May 15, 2018. The SIP revision was submitted to address Maryland's requirements under the NOX SIP Call. (63 FR 57356, October 27, 1998.)

    The NOX SIP Call, issued pursuant to Section 110 of the CAA and codified at 40 CFR 51.121 and 51.122, was designed to mitigate significant transport of NOX, one of the precursors of ozone.1 EPA developed the NOX Budget Trading Program, an EPA-administered allowance trading program that states could adopt to meet their obligations under the NOX SIP Call. The NOX Budget Trading Program allowed electric generating units (EGUs) greater than 25 megawatts and industrial non-electric generating units, such as boilers and turbines, with a rated heat input greater than 250 million British thermal units per hour (MMBtu/hr), referred to as “large non-EGUs,” to participate in a regional NOX cap and trade program. Maryland complied with the NOX SIP call by participation of its large EGUs and large non-EGUs in the NOX Budget Trading Program. EPA discontinued administration of the NOX Budget Trading Program in 2009 upon the start of the Clean Air Interstate Rule (CAIR) trading programs (70 FR 25162, May 12, 2005). The NOX SIP Call requirements continued to apply, however, and EGUs in most states (including Maryland) that formerly participated in the NOX Budget Trading Program continued to meet their NOX SIP Call requirements under the generally more stringent requirements of the CAIR NOX Ozone Season trading program, either pursuant to CAIR Federal implementation plans (FIP) (71 FR 25328, April 28, 2006) or pursuant to approved CAIR SIP revisions.2 For the large non-EGUs, states needed to take regulatory action to ensure that their obligations under the NOX SIP Call continued to be met, either through an option to submit a CAIR SIP revision that allowed the large non-EGUs to participate in the CAIR NOX Ozone Season trading program or through adoption of other replacement regulations.

    1 In October 27, 1998 (63 FR 57356), EPA finalized the “Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone”—commonly called the NOX SIP Call.

    2 EPA approved a CAIR SIP revision replacing the CAIR FIP for Maryland on October 30, 2009 (74 FR 56118).

    In Maryland, Luke Paper Mill (formerly the Westvaco pulp and paper mill) was the only facility with large non-EGUs that participated in the NOX Budget Trading Program. When the CAIR NOX Ozone Season trading program replaced the NOX Budget Trading Program, Maryland adopted the CAIR program as it applied to large EGUs, but chose not to include the non-EGUs at Luke as participants in the CAIR NOX Ozone Season trading program.3 Instead, in 2010, Maryland adopted COMAR 26.11.14.07—Control of Emissions from Kraft Pulp Mills, which, among other requirements, included provisions that address the NOX SIP Call non-EGU requirements in Maryland through a NOX ozone season tonnage cap of 947 tons for the Luke non-EGUs and monitoring, recordkeeping, and reporting in accordance with 40 CFR part 75.

    3 EPA stopped administering the CAIR trading programs upon implementation of the Cross-State Air Pollution Rule (CSAPR) trading programs. Maryland subsequently took action rescinding its CAIR regulation (COMAR 26.11.28), and submitted a SIP revision to EPA which sought removal of the regulation in its entirety from the approved Maryland SIP. On July 17, 2017 (82 FR 32641), EPA approved the SIP revision removing the CAIR regulation from Maryland's SIP.

    Subsequent to adoption of COMAR 26.11.14.07, Maryland determined that additional applicable units have either started operation or were previously not subject but have become subject to the requirements for non-EGUs under the NOX SIP Call as the units have heat input ratings greater than 250 MMBtu/hr. A review of the applicability of the NOX SIP Call to large non-EGUs in the State showed that there are three additional facilities having non-EGUs that are covered under the NOX SIP Call. Maryland adopted new regulation COMAR 26.11.40 to reallocate the statewide NOX emissions cap among the affected sources, and concurrently revised COMAR 26.11.14.07 to reflect a reduced cap for Luke.

    II. Summary of SIP Revision and EPA Analysis

    New COMAR 26.11.40 establishes NOX ozone season tonnage caps and NOX monitoring requirements for large non-EGUs in the State that are not covered under the CSAPR NOX Ozone Season Group 2 Trading Program to meet requirements of the NOX SIP Call. NOX emissions caps are specified for non-EGUs located at four facilities (American Sugar Refining, Dominion Energy Cove Point LNG, Luke Paper Mill, and National Institutes of Health). A portion of the statewide cap is set aside for new units or modified existing units that may become subject to the NOX SIP Call in the future. Title 40 CFR part 75, subpart H, monitoring of NOX emissions at affected units is required in accordance with 40 CFR 51.121(i)(4).

    COMAR 26.11.14 was revised to reflect the changed NOX caps for Luke Paper Mill in COMAR 26.11.40. COMAR 26.11.14 was also revised to remove the provision for paper mills to acquire NOX allowances if the facility's ozone season NOX cap is exceeded. With the removal of the requirement to purchase NOX allowances, a corresponding definition in COMAR 26.11.01 for NOX allowances was also removed.

    EPA finds that this May 2018 SIP submittal meets Maryland's NOX SIP Call requirements (including requirements in CAA section 110 and 40 CFR 51.121) for non-EGUs through new regulation COMAR 24.11.40, including (1) the applicability provisions in COMAR 24.11.40.02, which update the State's requirements to include all currently applicable large non-EGUs and any new non-EGUs under the NOX SIP Call; (2) the specified statewide ozone season NOX emissions cap of 1,013 tons in COMAR 24.11.40.03, which is consistent with the portion of the overall Maryland NOX emissions budget under the NOX Budget Trading Program attributable to non-EGUs; and (3) the 40 CFR part 75 monitoring, recordkeeping and reporting requirements in COMAR 24.11.40.04, which apply for the affected non-EGUs. In addition, the revisions remove the ability of Kraft pulp mills that exceed their NOX limits and caps to comply by purchasing or otherwise acquiring NOX allowances from EPA's ozone season NOX Trading Program by removing these provisions in COMAR 26.11.14 and 26.11.01. The removal of the provisions allowing purchase of additional allowances removes the potential for increased local NOX emissions. Other specific requirements of Maryland's May 15, 2018 SIP submittal and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here. The SIP submittal does not result in increased NOX emissions in the State, and therefore EPA finds it has no impact on any requirements related to attainment, reasonable further progress, or any other NAAQS requirements under the CAA. The submittal therefore meets section 110(l) of the CAA for SIP revisions.

    III. Public Comments and EPA's Responses

    EPA received three anonymous comments on the NPRM, all of which are in the docket for this rulemaking at www.federalregister.gov. Two of the comments did not concern any of the specific issues raised in the NPRM, nor did they address EPA's rationale for the proposed approval of MDE's submittal. Therefore, EPA is not responding to those comments. One comment was addressed as follows:

    Comment: A comment was made about a term used in EPA's completeness determination for the Maryland SIP submittal. EPA's completeness determination is available in the docket for this rulemaking. The commenter states: “The docket contains a document entitled [sic] “MD 305 Completeness Checklist 2018-08-27-033843.” In that document, EPA Requirement number 8 (Compliance/enforcement strategies, including how compliance will be determined in practice) says “DITTO” under the “State Submittal” column. What does “DITTO” mean here? I don't believe this is an environmental, regulatory, or technical term. I can't understand how you determined this submittal to be complete if you use such terms.”

    Response: EPA used the word “DITTO” in EPA Requirement 8 on page 5 of the “SIP Submittal Completeness Checklist” (completeness checklist) as shorthand to indicate that EPA found the State SIP submittal is meeting the EPA requirements for item 8 with the same COMAR regulations as that listed and shown by EPA in the completeness checklist in response to item 7 in the “State Submittal” column directly above item 8. In effect, EPA's use of the word “DITTO” in the completeness checklist for item 8 means that the EPA found the requirements for “Compliance/Enforcement strategies, including how compliance will be determined in practice.” is met by the requirements in COMAR 26.11.40 and COMAR 26.11.14.07 for monitoring, recordkeeping, and reporting in accordance with 40 CFR part 75 as explained in EPA's response to item 7 which contains those regulatory citations. According to the Merriam-Webster dictionary, “ditto” means “a thing mentioned previously or above —used to avoid repeating a word —often symbolized by inverted commas or apostrophe.” Thus, EPA employed this commonly used word “ditto” in the completeness checklist in response to item 8 instead of repeating our answer from item 7 as our answers were intended to be identical to both. As this comment does not concern any of the specific issues raised in the NPRM nor EPA's rationale for approval of MDE's SIP submittal, EPA provides no further response.

    IV. Final Action

    EPA is approving Maryland's May 15, 2018 SIP revision submittal as a revision to the Maryland SIP in accordance with section 110 of the CAA as the SIP meets requirements in the CAA and in 40 CFR 51.121 related to the NOX SIP Call requirements.

    V. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of new Maryland regulation COMAR 26.11.40 and revisions to COMAR 26.11.01 and 26.11.17 to meet the requirements for non-EGUs under the NOX SIP Call. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.4

    4 62 FR 27968 (May 22, 1997).

    VI. Statutory and Executive Order Reviews A. General Requirements

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

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

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

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

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

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

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

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

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

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

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

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

    B. Submission to Congress and the Comptroller General

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

    C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving new Maryland regulation COMAR 26.11.40 and revisions to COMAR 26.11.01 and COMAR 26.11.14 to address the requirements of the NOX SIP Call may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: September 24, 2018. Cosmo Servidio, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart V—Maryland 2. In § 52.1070, the table in paragraph (c) is amended by: a. Revising the entries “26.11.01.01” and “26.11.14.07”; and b. Adding a heading and the entries “26.11.40.01” through “26.11.40.04” in numerical order.

    The revisions and additions read as follows:

    § 52.1070 Identification of plan.

    (c) * * *

    EPA-Approved Regulations, Technical Memoranda, and Statutes in the Maryland SIP Code of Maryland
  • Administrative
  • Regulations
  • (COMAR) citation
  • Title/subject State
  • effective date
  • EPA approval date Additional explanation/citation
  • at 40 CFR 52.1100
  • 26.11.01 General Administrative Provisions 26.11.01.01 Definitions 04/23/18 10/11/18, [Insert Federal Register citation] Section .01B is revised to remove definition 24-1 for “NOX ozone season allowance” Previous approval 7/17/2017. *         *         *         *         *         *         * 26.11.14 Control of Emissions From Kraft Pulp Mills *         *         *         *         *         *         * 26.11.14.07 Control of NOX Emissions from Fuel Burning Equipment 04/23/18 10/11/18, [Insert Federal Register citation] Sections .07A and .07B are revised, Section .07C is removed, Section .07D is revised and recodified as Section .07C. *         *         *         *         *         *         * 26.11.40 NO X Ozone Season Emission Caps for Non-trading Large NO X Units 26.11.40.01 Definitions 04/23/18 10/11/18, [Insert Federal Register citation] 26.11.40.02 Applicability 04/23/18 10/11/18, [Insert Federal Register citation] 26.11.40.03 NOX Ozone Season Emission Caps 04/23/18 10/11/18, [Insert Federal Register citation] 26.11.40.04 Monitoring and Reporting Requirements 04/23/18 10/11/18, [Insert Federal Register citation] *         *         *         *         *         *         *
    [FR Doc. 2018-21653 Filed 10-10-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES 45 CFR Part 102 RIN 0991-AC0 Annual Civil Monetary Penalties Inflation Adjustment AGENCY:

    Office of the Assistant Secretary for Financial Resources, Department of Health and Human Services.

    ACTION:

    Final rule.

    SUMMARY:

    The Department of Health and Human Services is updating its regulations to reflect required annual inflation-related increases to the civil monetary penalties in its regulations, pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.

    DATES:

    This rule is effective October 11, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Shaunta Johnson, Office of Grants and Acquisition Policy and Accountability, Office of the Assistant Secretary for Financial Resources, Room 514-G, Hubert Humphrey Building, 200 Independence Avenue SW, Washington, DC 20201; 202-690-6396; FAX 202-690-5405.

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74) (the “2015 Act”), which is intended to improve the effectiveness of civil monetary penalties (CMPs) and to maintain the deterrent effect of such penalties, requires agencies to adjust the civil monetary penalties for inflation annually.

    The Department of Health and Human Services (HHS) lists the civil monetary penalty authorities and the penalty amounts administered by all of its agencies in tabular form in 45 CFR 102.3.

    II. Calculation of Adjustment

    The annual inflation adjustment for each applicable civil monetary penalty is determined using the percent increase in the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October of the year in which the amount of each civil penalty was most recently established or modified. In the December 15, 2017, Office of Management and Budget (OMB) Memorandum for the Heads of Executive Agencies and Departments, M-18-03, Implementation of the Penalty Inflation Adjustments for 2018, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, OMB published the multiplier for the required annual adjustment. The cost-of-living adjustment multiplier for 2018, based on the CPI-U for the month of October 2017, not seasonally adjusted, is 1.02041.

    Using the 2018 multiplier, HHS adjusted all its applicable monetary penalties in 45 CFR 102.3.

    III. Statutory and Executive Order Reviews

    The 2015 Act requires federal agencies to publish annual penalty inflation adjustments notwithstanding section 553 of the Administrative Procedure Act (APA).

    Section 4(a) of the 2015 Act directs federal agencies to publish annual adjustments no later than January 15th of each year thereafter. In accordance with section 553 of the APA, most rules are subject to notice and comment and are effective no earlier than 30 days after publication in the Federal Register. However, section 4(b)(2) of the 2015 Act provides that each agency shall make the annual inflation adjustments “notwithstanding section 553” of the APA.

    According to OMB's Memorandum M-18-03, the phrase “notwithstanding section 553” means that “the public procedure the APA generally requires—notice, an opportunity for comment, and a delay in effective date—is not required for agencies to issue regulations implementing the annual adjustment.” Consistent with the language of the 2015 Act and OMB's implementation guidance, this rule is not subject to notice and an opportunity for public comment and will be effective immediately upon publication.

    Pursuant to OMB Memorandum M-18-03, HHS has determined that the annual inflation adjustment to the civil monetary penalties in its regulations does not trigger any requirements under procedural statutes and Executive Orders that govern rulemaking procedures.

    IV. Effective Date

    This rule is effective October 11 2018. The adjusted civil monetary penalty amounts apply to penalties assessed on or after October 11, 2018, if the violation occurred on or after November 2, 2015. If the violation occurred prior to November 2, 2015, or a penalty was assessed prior to September 6, 2016, the pre-adjustment civil penalty amounts in effect prior to September 6, 2016, will apply.

    List of Subjects in 45 CFR Part 102

    Administrative practice and procedure, Penalties.

    For reasons discussed in the preamble, the Department of Health and Human Services amends subtitle A, title 45 of the Code of Federal Regulations as follows:

    PART 102—ADJUSTMENT OF CIVIL MONETARY PENALTIES FOR INFLATION 1. The authority citation for part 102 continues to read as follows: Authority:

    Public Law 101-410, Sec. 701 of Public Law 114-74, 31 U.S.C. 3801-3812.

    2. Amend § 102.3 by revising the table to read as follows:
    § 102.3 Penalty adjustment and table. Civil Monetary Penalty Authorities Administered by HHS Agencies and Penalty Amounts [Effective October 11, 2018] Citation U.S.C. CFR 1 HHS
  • agency
  • Description 2 Date of last
  • statutorily
  • established
  • penalty
  • figure 3
  • 2016
  • Maximum
  • adjusted
  • penalty
  • ($)
  • 2017
  • Maximum
  • adjusted
  • penalty
  • ($) 4
  • 2018
  • Maximum
  • adjusted
  • penalty
  • ($)
  • 21 U.S.C. 333(b)(2)(A) FDA Penalty for violations related to drug samples resulting in a conviction of any representative of manufacturer or distributor in any 10-year period 2016 98,935 100,554 102,606 333(b)(2)(B) FDA Penalty for violation related to drug samples resulting in a conviction of any representative of manufacturer or distributor after the second conviction in any 10-yr period 2016 1,978,690 2,011,061 2,052,107 333(b)(3) FDA Penalty for failure to make a report required by 21 U.S.C. 353(d)(3)(E) relating to drug samples 2016 197,869 201,106 205,211 333(f)(1)(A) FDA Penalty for any person who violates a requirement related to devices for each such violation 2016 26,723 27,160 27,714 Penalty for aggregate of all violations related to devices in a single proceeding 2016 1,781,560 1,810,706 1,847,663 333(f)(2)(A) FDA Penalty for any individual who introduces or delivers for introduction into interstate commerce food that is adulterated per 21 U.S.C. 342(a)(2)(B) or any individual who does not comply with a recall order under 21 U.S.C. 350l 2016 75,123 76,352 77,910 Penalty in the case of any other person other than an individual) for such introduction or delivery of adulterated food 2016 375,613 381,758 389,550 Penalty for aggregate of all such violations related to adulterated food adjudicated in a single proceeding 2016 751,225 763,515 779,098 333(f)(3)(A) FDA Penalty for all violations adjudicated in a single proceeding for any person who violates 21 U.S.C. 331(jj)(1) by failing to submit the certification required by 42 U.S.C. 282(j)(5)(B) or knowingly submitting a false certification; by failing to submit clinical trial information under 42 U.S.C 282(j); or by submitting clinical trial information under 42 U.S.C. 282(j) that is false or misleading in any particular under 42 U.S.C. 282(j)(5)(D) 2016 11,383 11,569 11,805 333(f)(3)(B) FDA Penalty for each day any above violation is not corrected after a 30-day period following notification until the violation is corrected 2016 11,383 11,569 11,805 333(f)(4)(A)(i) FDA Penalty for any responsible person that violates a requirement of 21 U.S.C. 355(o) (post-marketing studies, clinical trials, labeling), 21 U.S.C. 355(p) (risk evaluation and mitigation (REMS)), or 21 U.S.C. 355-1 (REMS) 2016 284,583 289,239 295,142 Penalty for aggregate of all such above violations in a single proceeding 2016 1,138,330 1,156,953 1,180,566 333(f)(4)(A)(ii) FDA Penalty for REMS violation that continues after written notice to the responsible person for the first 30-day period (or any portion thereof) the responsible person continues to be in violation 2016 284,583 289,239 295,142 Penalty for REMS violation that continues after written notice to responsible person doubles for every 30-day period thereafter the violation continues, but may not exceed penalty amount for any 30-day period 2016 1,138,330 1,156,953 1,180,566 Penalty for aggregate of all such above violations adjudicated in a single proceeding 2016 11,383,300 11,569,531 11,805,665 333(f)(9)(A) FDA Penalty for any person who violates a requirement which relates to tobacco products for each such violation 2016 16,503 16,773 17,115 Penalty for aggregate of all such violations of tobacco product requirement adjudicated in a single proceeding 2016 1,100,200 1,118,199 1,141,021 333(f)(9)(B)(i)(I) FDA Penalty per violation related to violations of tobacco requirements 2016 275,050 279,550 285,256 Penalty for aggregate of all such violations of tobacco product requirements adjudicated in a single proceeding 2016 1,100,200 1,118,199 1,141,021 333(f)(9)(B)(i)(II) FDA Penalty in the case of a violation of tobacco product requirements that continues after written notice to such person, for the first 30-day period (or any portion thereof) the person continues to be in violation 2016 275,050 279,550 285,256 Penalty for violation of tobacco product requirements that continues after written notice to such person shall double for every 30-day period thereafter the violation continues, but may not exceed penalty amount for any 30-day period 2016 1,100,200 1,118,199 1,141,021 Penalty for aggregate of all such violations related to tobacco product requirements adjudicated in a single proceeding 2016 11,002,000 11,181,993 11,410,218 333(f)(9)(B)(ii)(I) FDA Penalty for any person who either does not conduct post-market surveillance and studies to determine impact of a modified risk tobacco product for which the HHS Secretary has provided them an order to sell, or who does not submit a protocol to the HHS Secretary after being notified of a requirement to conduct post-market surveillance of such tobacco products 2016 275,050 279,550 285,256 Penalty for aggregate of for all such above violations adjudicated in a single proceeding 2016 1,100,200 1,118,199 1,141,021 333(f)(9)(B)(ii)(II) FDA Penalty for violation of modified risk tobacco product post-market surveillance that continues after written notice to such person for the first 30-day period (or any portion thereof) that the person continues to be in violation 2016 275,050 279,550 285,256 Penalty for post-notice violation of modified risk tobacco product post-market surveillance shall double for every 30-day period thereafter that the tobacco product requirement violation continues for any 30-day period, but may not exceed penalty amount for any 30-day period 2016 1,100,200 1,118,199 1,141,021 Penalty for aggregate above tobacco product requirement violations adjudicated in a single proceeding 2016 11,002,000 11,181,993 11,410,218 333(g)(1) FDA Penalty for any person who disseminates or causes another party to disseminate a direct-to-consumer advertisement that is false or misleading for the first such violation in any 3-year period 2016 284,583 289,239 295,142 Penalty for each subsequent above violation in any 3-year period 2016 569,165 578,477 590,284 333 note FDA Penalty to be applied for violations of restrictions on the sale or distribution of tobacco products promulgated under 21 U.S.C. 387f(d) (e.g., violations of regulations in 21 CFR Part 1140) with respect to a retailer with an approved training program in the case of a second regulation violation within a 12-month period 2016 275 279 285 Penalty in the case of a third tobacco product regulation violation within a 24-month period 2016 550 559 570 Penalty in the case of a fourth tobacco product regulation violation within a 24-month period 2016 2,200 2,236 2,282 Penalty in the case of a fifth tobacco product regulation violation within a 36-month period 2016 5,501 5,591 5,705 Penalty in the case of a sixth or subsequent tobacco product regulation violation within a 48-month period as determined on a case-by-case basis 2016 11,002 11,182 11,410 Penalty to be applied for violations of restrictions on the sale or distribution of tobacco products promulgated under 21 U.S.C. 387f(d) (e.g., violations of regulations in 21 CFR Part 1140) with respect to a retailer that does not have an approved training program in the case of the first regulation violation 2016 275 279 285 Penalty in the case of a second tobacco product regulation violation within a 12-month period 2016 550 559 570 Penalty in the case of a third tobacco product regulation violation within a 24-month period 2016 1,100 1,118 1,141 Penalty in the case of a fourth tobacco product regulation violation within a 24-month period 2016 2,200 2,236 2,282 Penalty in the case of a fifth tobacco product regulation violation within a 36-month period 2016 5,501 5,591 5,705 Penalty in the case of a sixth or subsequent tobacco product regulation violation within a 48-month period as determined on a case-by-case basis 2016 11,002 11,182 11,410 335b(a) FDA Penalty for each violation for any individual who made a false statement or misrepresentation of a material fact, bribed, destroyed, altered, removed, or secreted, or procured the destruction, alteration, removal, or secretion of, any material document, failed to disclose a material fact, obstructed an investigation, employed a consultant who was debarred, debarred individual provided consultant services 2016 419,320 426,180 434,878 Penalty in the case of any other person (other than an individual) per above violation 2016 1,677,280 1,704,720 1,739,513 360pp(b)(1) FDA Penalty for any person who violates any such requirements for electronic products, with each unlawful act or omission constituting a separate violation 2016 2,750 2,795 2,852 Penalty imposed for any related series of violations of requirements relating to electronic products 2016 937,500 952,838 972,285 42 U.S.C. 262(d) FDA Penalty per day for violation of order of recall of biological product presenting imminent or substantial hazard 2016 215,628 219,156 223,629 263b(h)(3) FDA Penalty for failure to obtain a mammography certificate as required 2016 16,773 17,047 17,395 300aa-28(b)(1) FDA Penalty per occurrence for any vaccine manufacturer that intentionally destroys, alters, falsifies, or conceals any record or report required 2016 215,628 219,156 223,629 256b(d)(1)(B)(vi) HRSA Penalty for each instance of overcharging a 340B covered entity 2016 5,437 5,526 5,639 299c-3(d) AHRQ Penalty for an establishment or person supplying information obtained in the course of activities for any purpose other than the purpose for which it was supplied 2016 14,140 14,371 14,664 653(l)(2) 45 CFR 303.21(f) ACF Penalty for Misuse of Information in the National Directory of New Hires 2016 1,450 1,474 1,504 262a(i)(1) 42 CFR 1003.910 OIG Penalty for each individual who violates safety and security procedures related to handling dangerous biological agents and toxins 2016 327,962 333,327 340,130 Penalty for any other person who violates safety and security procedures related to handling dangerous biological agents and toxins 2016 655,925 666,656 680,262 300jj-51 OIG Penalty per violation for committing information blocking 2016 1,000,000 1,016,360 1,037,104 1320a-7a(a) 5 42 CFR 1003.210(a)(1) OIG Penalty for knowingly presenting or causing to be presented to an officer, employee, or agent of the United States a false claim 2018 15,024 15,270 20,000 Penalty for knowingly presenting or causing to be presented a request for payment which violates the terms of an assignment, agreement, or PPS agreement 2018 15,024 15,270 20,000 42 CFR 1003.210(a)(2) Penalty for knowingly giving or causing to be presented to a participating provider or supplier false or misleading information that could reasonably be expected to influence a discharge decision 2018 22,537 22,906 30,000 42 CFR 1003.210(a)(3) Penalty for an excluded party retaining ownership or control interest in a participating entity 2018 15,024 15,270 20,000 42 CFR 1003.1010 Penalty for remuneration offered to induce program beneficiaries to use particular providers, practitioners, or suppliers 2018 15,024 15,270 20,000 42 CFR 1003.210(a)(4) Penalty for employing or contracting with an excluded individual 2018 14,718 14,959 20,000 42 CFR 1003.310(a)(3) Penalty for knowing and willful solicitation, receipt, offer, or payment of remuneration for referring an individual for a service or for purchasing, leasing, or ordering an item to be paid for by a Federal health care program 2018 73,588 74,792 100,000 42 CFR 1003.210(a)(1) Penalty for ordering or prescribing medical or other item or service during a period in which the person was excluded 2018 10,874 11,052 20,000 42 CFR 1003.210(a)(6) Penalty for knowingly making or causing to be made a false statement, omission or misrepresentation of a material fact in any application, bid, or contract to participate or enroll as a provider or supplier 2018 54,372 55,262 100,000 42 CFR 1003.210(a)(8) Penalty for knowing of an overpayment and failing to report and return 2018 10,874 11,052 20,000 42 CFR 1003.210(a)(7) Penalty for making or using a false record or statement that is material to a false or fraudulent claim 2018 54,372 55,262 100,000 42 CFR 1003.210(a)(9) Penalty for failure to grant timely access to HHS OIG for audits, investigations, evaluations, and other statutory functions of HHS OIG 2018 16,312 16,579 30,000 1320a-7a(b) 5 OIG Penalty for payments by a hospital or critical access hospital to induce a physician to reduce or limit services to individuals under direct care of physician or who are entitled to certain medical assistance benefits 2018 4,313 4,384 5,000 Penalty for physicians who knowingly receive payments from a hospital or critical access hospital to induce such physician to reduce or limit services to individuals under direct care of physician or who are entitled to certain medical assistance benefits 2018 4,313 4,384 5,000 42 CFR 1003.210(a)(10) Penalty for a physician who executes a document that falsely certifies home health needs for Medicare beneficiaries 2018 7,512 7,635 10,000 1320a-7e(b)(6)(A) 42 CFR 1003.810 OIG Penalty for failure to report any final adverse action taken against a health care provider, supplier, or practitioner 2016 36,794 37,396 38,159 1320b-10(b)(1) 42 CFR 1003.610(a) OIG Penalty for the misuse of words, symbols, or emblems in communications in a manner in which a person could falsely construe that such item is approved, endorsed, or authorized by HHS 2016 9,893 10,055 10,260 1320b-10(b)(2) 42 CFR 1003.610(a) OIG Penalty for the misuse of words, symbols, or emblems in a broadcast or telecast in a manner in which a person could falsely construe that such item is approved, endorsed, or authorized by HHS 2016 49,467 50,276 51,302 1395i-3(b)(3)(B)(ii)(1) 42 CFR 1003.210(a)(11) OIG Penalty for certification of a false statement in assessment of functional capacity of a Skilled Nursing Facility resident assessment 2016 2,063 2,097 2,140 1395i-3(b)(3)(B)(ii)(2) 42 CFR 1003.210(a)(11) OIG Penalty for causing another to certify or make a false statement in assessment of functional capacity of a Skilled Nursing Facility resident assessment 2016 10,314 10,483 10,697 1395i-3(g)(2)(A) 42 CFR 1003.1310 OIG Penalty for any individual who notifies or causes to be notified a Skilled Nursing Facility of the time or date on which a survey is to be conducted 2016 4,126 4,194 4,280 1395w-27(g)(2)(A) 42 CFR 1003.410 OIG Penalty for a Medicare Advantage organization that substantially fails to provide medically necessary, required items and services 2016 37,561 38,175 38,954 Penalty for a Medicare Advantage organization that charges excessive premiums 2016 36,794 37,396 38,159 Penalty for a Medicare Advantage organization that improperly expels or refuses to reenroll a beneficiary 2016 36,794 37,396 38,159 Penalty for a Medicare Advantage organization that engages in practice that would reasonably be expected to have the effect of denying or discouraging enrollment 2016 147,177 149,585 152,638 Penalty per individual who does not enroll as a result of a Medicare Advantage organization's practice that would reasonably be expected to have the effect of denying or discouraging enrollment 2016 22,077 22,438 22,896 Penalty for a Medicare Advantage organization misrepresenting or falsifying information to Secretary 2016 147,177 149,585 152,638 Penalty for a Medicare Advantage organization misrepresenting or falsifying information to individual or other entity 2016 36,794 37,396 38,159 Penalty for Medicare Advantage organization interfering with provider's advice to enrollee and non-MCO affiliated providers that balance bill enrollees 2016 36,794 37,396 38,159 Penalty for a Medicare Advantage organization that employs or contracts with excluded individual or entity 2016 36,794 37,396 38,159 Penalty for a Medicare Advantage organization enrolling an individual in without prior written consent 2016 36,794 37,396 38,159 Penalty for a Medicare Advantage organization transferring an enrollee to another plan without consent or solely for the purpose of earning a commission 2016 36,794 37,396 38,159 Penalty for a Medicare Advantage organization failing to comply with marketing restrictions or applicable implementing regulations or guidance 2016 36,794 37,396 38,159 Penalty for a Medicare Advantage organization employing or contracting with an individual or entity who violates 1395w-27(g)(1)(A)-(J) 2016 36,794 37,396 38,159 1395w-141(i)(3) OIG Penalty for a prescription drug card sponsor that falsifies or misrepresents marketing materials, overcharges program enrollees, or misuse transitional assistance funds 2016 12,856 13,066 13,333 1395cc(g) OIG Penalty for improper billing by Hospitals, Critical Access Hospitals, or Skilled Nursing Facilities 2016 5,000 5,082 5,186 1395dd(d)(1) 42 CFR 1003.510 OIG Penalty for a hospital or responsible physician dumping patients needing emergency medical care, if the hospital has 100 beds or more 2016 103,139 104,826 106,965 Penalty for a hospital or responsible physician dumping patients needing emergency medical care, if the hospital has less than 100 beds 2016 51,570 52,414 53,484 1395mm(i)(6)(B)(i) 42 CFR 1003.410 OIG Penalty for a HMO or competitive plan is such plan substantially fails to provide medically necessary, required items or services 2016 51,570 52,414 53,484 Penalty for HMOs/competitive medical plans that charge premiums in excess of permitted amounts 2016 51,570 52,414 53,484 Penalty for a HMO or competitive medical plan that expels or refuses to reenroll an individual per prescribed conditions 2016 51,570 52,414 53,484 Penalty for a HMO or competitive medical plan that implements practices to discourage enrollment of individuals needing services in future 2016 206,278 209,653 213,932 Penalty per individual not enrolled in a plan as a result of a HMO or competitive medical plan that implements practices to discourage enrollment of individuals needing services in the future 2016 29,680 30,166 30,782 Penalty for a HMO or competitive medical plan that misrepresents or falsifies information to the Secretary 2016 206,278 209,653 213,932 Penalty for a HMO or competitive medical plan that misrepresents or falsifies information to an individual or any other entity 2016 51,570 52,414 53,484 Penalty for failure by HMO or competitive medical plan to assure prompt payment of Medicare risk sharing contracts or incentive plan provisions 2016 51,570 52,414 53,484 Penalty for HMO that employs or contracts with excluded individual or entity 2016 47,340 48,114 49,096 1395nn(g)(3) 42 CFR 1003.310 OIG Penalty for submitting or causing to be submitted claims in violation of the Stark Law's restrictions on physician self-referrals 2016 23,863 24,253 24,748 1395nn(g)(4) 42 CFR 1003.310 OIG Penalty for circumventing Stark Law's restrictions on physician self-referrals 2016 159,089 161,692 164,992 1395ss(d)(1) 42 CFR 1003.1110 OIG Penalty for a material misrepresentation regarding Medigap compliance policies 2016 9,893 10,055 10,260 1395ss(d)(2) 42 CFR 1003.1110 OIG Penalty for selling Medigap policy under false pretense 2016 9,893 10,055 10,260 1395ss(d)(3)(A)(ii) 42 CFR 1003.1110 OIG Penalty for an issuer that sells health insurance policy that duplicates benefits 2016 44,539 45,268 46,192 Penalty for someone other than issuer that sells health insurance that duplicates benefits 2016 26,723 27,160 27,714 1395ss(d)(4)(A) 42 CFR 1003.1110 OIG Penalty for using mail to sell a non-approved Medigap insurance policy 2016 9,893 10,055 10,260 1396b(m)(5)(B)(i) 42 CFR 1003.410 OIG Penalty for a Medicaid MCO that substantially fails to provide medically necessary, required items or services 2016 49,467 50,276 51,302 Penalty for a Medicaid MCO that charges excessive premiums 2016 49,467 50,276 51,302 Penalty for a Medicaid MCO that improperly expels or refuses to reenroll a beneficiary 2016 197,869 201,106 205,211 Penalty per individual who does not enroll as a result of a Medicaid MCO's practice that would reasonably be expected to have the effect of denying or discouraging enrollment 2016 29,680 30,166 30,782 Penalty for a Medicaid MCO misrepresenting or falsifying information to the Secretary 2016 197,869 201,106 205,211 Penalty for a Medicaid MCO misrepresenting or falsifying information to an individual or another entity 2016 49,467 50,276 51,302 Penalty for a Medicaid MCO that fails to comply with contract requirements with respect to physician incentive plans 2016 44,539 45,268 46,192 1396r(b)(3)(B)(ii)(I) 42 CFR 1003.210(a)(11) OIG Penalty for willfully and knowingly certifying a material and false statement in a Skilled Nursing Facility resident assessment 2016 2,063 2,097 2,140 1396r(b)(3)(B)(ii)(II) 42 CFR 1003.210(a)(11) OIG Penalty for willfully and knowingly causing another individual to certify a material and false statement in a Skilled Nursing Facility resident assessment 2016 10,314 10,483 10,697 1396r(g)(2)(A)(i) 42 CFR 1003.1310 OIG Penalty for notifying or causing to be notified a Skilled Nursing Facility of the time or date on which a survey is to be conducted 2016 4,126 4,194 4,280 1396r-8(b)(3)(B) 42 CFR 1003.1210 OIG Penalty for the knowing provision of false information or refusing to provide information about charges or prices of a covered outpatient drug 2016 178,156 181,071 184,767 1396r-8(b)(3)(C)(i) 42 CFR 1003.1210 OIG Penalty per day for failure to timely provide information by drug manufacturer with rebate agreement 2016 17,816 18,107 18,477 1396r-8(b)(3)(C)(ii) 42 CFR 1003.1210 OIG Penalty for knowing provision of false information by drug manufacturer with rebate agreement 2016 178,156 181,071 184,767 1396t(i)(3)(A) 42 CFR 1003.1310 OIG Penalty for notifying home and community-based providers or settings of survey 2016 3,563 3,621 3,695 11131(c) 42 CFR 1003.810 OIG Penalty for failing to report a medical malpractice claim to National Practitioner Data Bank 2016 21,563 21,916 22,363 11137(b)(2) 42 CFR 1003.810 OIG Penalty for breaching confidentiality of information reported to National Practitioner Data Bank 2016 21,563 21,916 22,363 299b-22(f)(1) 42 CFR 3.404 OCR Penalty for violation of confidentiality provision of the Patient Safety and Quality Improvement Act 2016 11,940 12,135 12,383 1320(d)-5(a) 45 CFR 160.404(b)(1)(i), (ii) OCR Penalty for each pre-February 18, 2009 violation of the HIPAA administrative simplification provisions 2016 150 152 155 Calendar Year Cap 2016 37,561 38,175 38,954 45 CFR 160.404(b)(2)(i)(A), (B) OCR Penalty for each February 18, 2009 or later violation of a HIPAA administrative simplification provision in which it is established that the covered entity or business associate did not know and by exercising reasonable diligence, would not have known that the covered entity or business associate violated such a provision Minimum 2016 110 112 114 Maximum 2016 55,010 55,910 57,051 Calendar Year Cap 2016 1,650,300 1,677,299 1,711,533 45 CFR 160.404(b)(2)(ii)(A), (B) OCR Penalty for each February 18, 2009 or later violation of a HIPAA administrative simplification provision in which it is established that the violation was due to reasonable cause and not to willful neglect Minimum 2016 1,100 1,118 1,141 Maximum 2016 55,010 55,910 57,051 Calendar Year Cap 2016 1,650,300 1,677,299 1,711,533 45 CFR 160.404(b)(2)(iii)(A), (B) OCR Penalty for each February 18, 2009 or later violation of a HIPAA administrative simplification provision in which it is established that the violation was due to willful neglect and was corrected during the 30-day period beginning on the first date the covered entity or business associate knew, or, by exercising reasonable diligence, would have known that the violation occurred Minimum 2016 11,002 11,182 11,410 Maximum 2016 55,010 55,910 57,051 Calendar Year Cap 2016 1,650,300 1,677,299 1,711,533 45 CFR 160.404(b)(2)(iv)(A), (B) OCR Penalty for each February 18, 2009 or later violation of a HIPAA administrative simplification provision in which it is established that the violation was due to willful neglect and was not corrected during the 30-day period beginning on the first date the covered entity or business associate knew, or by exercising reasonable diligence, would have known that the violation occurred Minimum 2016 55,010 55,910 57,051 Maximum 2016 1,650,300 1,677,299 1,711,533 Calendar Year Cap 2016 1,650,300 1,677,299 1,711,533 263a(h)(2)(B) & 1395w-2(b)(2)(A)(ii) 42 CFR 493.1834(d)(2)(i) CMS Penalty for a clinical laboratory's failure to meet participation and certification requirements and poses immediate jeopardy Minimum 2016 6,035 6,134 6,259 Maximum 2016 19,787 20,111 20,521 42 CFR 493.1834(d)(2)(ii) CMS Penalty for a clinical laboratory's failure to meet participation and certification requirements and the failure does not pose immediate jeopardy - Minimum 2016 99 101 103 Maximum 2016 5,936 6,033 6,156 300gg-15(f) 45 CFR 147.200(e) CMS Failure to provide the Summary of Benefits and Coverage 2016 1,087 1,105 1,128 300gg-18 45 CFR 158.606 CMS Penalty for violations of regulations related to the medical loss ratio reporting and rebating 2016 109 111 113 1320a-7h(b)(1) 42 CFR 402.105(d)(5), 42 CFR 403.912(a) & (c) CMS Penalty for manufacturer or group purchasing organization failing to report information required under 42 U.S.C. 1320a-7h(a), relating to physician ownership or investment interests Minimum 2016 1,087 1,105 1,128 Maximum 2016 10,874 11,052 11,278 Calendar Year Cap 2016 163,117 165,786 169,170 1320a-7h(b)(2) 42 CFR 402.105(h), 42 CFR 403 912(b) & (c) CMS Penalty for manufacturer or group purchasing organization knowingly failing to report information required under 42 U.S.C. 1320a-7h(a) , relating to physician ownership or investment interests Minimum 2016 10,874 11,052 11,278 Maximum 2016 108,745 110,524 112,780 Calendar Year Cap 2016 1,087,450 1,105,241 1,127,799 1320a-7j(h)(3)(A) CMS Penalty for an administrator of a facility that fails to comply with notice requirements for the closure of a facility 2016 108,745 110,524 112,780 42 CFR 488.446(a)(1),(2), & (3) CMS Minimum penalty for the first offense of an administrator who fails to provide notice of facility closure 2016 544 553 564 Minimum penalty for the second offense of an administrator who fails to provide notice of facility closure 2016 1,631 1,658 1,692 Minimum penalty for the third and subsequent offenses of an administrator who fails to provide notice of facility closure 2016 3,262 3,315 3,383 1320a-8(a)(1) CMS Penalty for an entity knowingly making a false statement or representation of material fact in the determination of the amount of benefits or payments related to old-age, survivors, and disability insurance benefits, special benefits for certain World War II veterans, or supplemental security income for the aged, blind, and disabled 2016 7,954 8,084 8,249 Penalty for violation of 42 U.S.C. 1320a-8(a)(1) if the violator is a person who receives a fee or other income for services performed in connection with determination of the benefit amount or the person is a physician or other health care provider who submits evidence in connection with such a determination 2016 7,500 7,623 7,779 1320a-8(a)(3) CMS Penalty for a representative payee (under 42 U.S.C. 405(j), 1007, or 1383(a)(2)) converting any part of a received payment from the benefit programs described in the previous civil monetary penalty to a use other than for the benefit of the beneficiary 2016 6,229 6,331 6,460 1320b-25(c)(1)(A) CMS Penalty for failure of covered individuals to report to the Secretary and 1 or more law enforcement officials any reasonable suspicion of a crime against a resident, or individual receiving care, from a long-term care facility 2016 217,490 221,048 225,560 1320b-25(c)(2)(A) CMS Penalty for failure of covered individuals to report to the Secretary and 1 or more law enforcement officials any reasonable suspicion of a crime against a resident, or individual receiving care, from a long-term care facility if such failure exacerbates the harm to the victim of the crime or results in the harm to another individual 2016 326,235 331,572 338,339 1320b-25(d)(2) CMS Penalty for a long-term care facility that retaliates against any employee because of lawful acts done by the employee, or files a complaint or report with the State professional disciplinary agency against an employee or nurse for lawful acts done by the employee or nurse 2016 217,490 221,048 225,560 1395b-7(b)(2)(B) 42 CFR 402.105(g) CMS Penalty for any person who knowingly and willfully fails to furnish a beneficiary with an itemized statement of items or services within 30 days of the beneficiary's request 2016 147 149 152 1395i-3(h)(2)(B)(ii)(I) 42 CFR 488.408(d)(1)(iii) CMS Penalty per day for a Skilled Nursing Facility that has a Category 2 violation of certification requirements Minimum 2016 103 105 107 Maximum 2016 6,188 6,289 6,417 42 CFR 488.408(d)(1)(iv) CMS Penalty per instance of Category 2 noncompliance by a Skilled Nursing Facility Minimum 2016 2,063 2,097 2,140 Maximum 2016 20,628 20,965 21,393 42 CFR 488.408(e)(1)(iii) CMS Penalty per day for a Skilled Nursing Facility that has a Category 3 violation of certification requirements Minimum 2016 6,291 6,394 6,525 Maximum 2016 20,628 20,965 21,393 42 CFR 488.408(e)(1)(iv) CMS Penalty per instance of Category 3 noncompliance by a Skilled Nursing Facility Minimum 2016 2,063 2,097 2,140 Maximum 2016 20,628 20,965 21,393 42 CFR 488.408 (e)(2)(ii) CMS Penalty per day and per instance for a Skilled Nursing Facility that has Category 3 noncompliance with Immediate Jeopardy Per Day (Minimum) 2016 6,291 6,394 6,525 Per Day (Maximum) 2016 20,628 20,965 21,393 Per Instance (Minimum) 2016 2,063 2,097 2,140 Per Instance (Maximum) 2016 20,628 20,965 21,393 42 CFR 488.438(a)(1)(i) CMS Penalty per day of a Skilled Nursing Facility that fails to meet certification requirements. These amounts represent the upper range per day Minimum 2016 6,291 6,394 6,524 Maximum 2016 20,628 20,965 21,393 42 CFR 488.438(a)(1)(ii) CMS Penalty per day of a Skilled Nursing Facility that fails to meet certification requirements. These amounts represent the lower range per day Minimum 2016 103 105 107 Maximum 2016 6,188 6,289 6,418 42 CFR 488.438(a)(2) CMS Penalty per instance of a Skilled Nursing Facility that fails to meet certification requirements Minimum 2016 2,063 2,097 2,140 Maximum 2016 20,628 20,965 21,393 1395l(h)(5)(D) 5 42 CFR 402.105(d)(2)(i) CMS Penalty for knowingly, willfully, and repeatedly billing for a clinical diagnostic laboratory test other than on an assignment-related basis. (Penalties are assessed in the same manner as 42 U.S.C. 1395u(j)(2)(B), which is assessed according to 1320a-7a(a)) 2018 15,024 15,270 30,000 1395l(i)(6) CMS Penalty for knowingly and willfully presenting or causing to be presented a bill or request for payment for an intraocular lens inserted during or after cataract surgery for which the Medicare payment rate includes the cost of acquiring the class of lens involved 2016 3,957 4,022 4,104 1395l(q)(2)(B)(i) 42 CFR 402.105(a) CMS Penalty for knowingly and willfully failing to provide information about a referring physician when seeking payment on an unassigned basis 2016 3,787 3,849 3,928 1395m(a)(11)(A) 5 42 CFR 402.1(c)(4), 402.105(d)(2)(ii) CMS Penalty for any durable medical equipment supplier that knowingly and willfully charges for a covered service that is furnished on a rental basis after the rental payments may no longer be made. (Penalties are assessed in the same manner as 42 U.S.C. 1395u(j)(2)(B), which is assessed according to 1320a-7a(a)) 2018 15,024 15,270 30,000 1395m(a)(18)(B) 5 42 CFR 402.1(c)(5), 402.105(d)(2)(iii) CMS Penalty for any nonparticipating durable medical equipment supplier that knowingly and willfully fails to make a refund to Medicare beneficiaries for a covered service for which payment is precluded due to an unsolicited telephone contact from the supplier. (Penalties are assessed in the same manner as 42 U.S.C. 1395u(j)(2)(B), which is assessed according to 1320a-7a(a)) 2018 15,024 15,270 30,000 1395m(b)(5)(C) 5 42 CFR 402.1(c)(6), 402.105(d)(2)(iv) CMS Penalty for any nonparticipating physician or supplier that knowingly and willfully charges a Medicare beneficiary more than the limiting charge for radiologist services. (Penalties are assessed in the same manner as 42 U.S.C. 1395u(j)(2)(B), which is assessed according to 1320a-7a(a)) 2018 15,024 15,270 30,000 1395m(h)(3) 5 42 CFR 402.1(c)(8), 402.105(d)(2)(vi) CMS Penalty for any supplier of prosthetic devices, orthotics, and prosthetics that knowing and willfully charges for a covered prosthetic device, orthotic, or prosthetic that is furnished on a rental basis after the rental payment may no longer be made. (Penalties are assessed in the same manner as 42 U.S.C. 1395m(a)(11)(A), that is in the same manner as 1395u(j)(2)(B), which is assessed according to 1320a-7a(a)) 2018 15,024 15,270 30,000 1395m(j)(2)(A)(iii) CMS Penalty for any supplier of durable medical equipment including a supplier of prosthetic devices, prosthetics, orthotics, or supplies that knowingly and willfully distributes a certificate of medical necessity in violation of Section 1834(j)(2)(A)(i) of the Act or fails to provide the information required under Section 1834(j)(2)(A)(ii) of the Act 2016 1,591 1,617 1,650 1395m(j)(4) 5 42 CFR 402.1(c)(10), 402.105(d)(2)(vii) CMS Penalty for any supplier of durable medical equipment, including a supplier of prosthetic devices, prosthetics, orthotics, or supplies that knowingly and willfully fails to make refunds in a timely manner to Medicare beneficiaries for series billed other than on as assignment-related basis under certain conditions. (Penalties are assessed in the same manner as 42 U.S.C. 1395m(j)(4) and 1395u(j)(2)(B), which is assessed according to 1320a-7a(a)) 2018 15,024 15,270 30,000 1395m(k)(6) 5 42 CFR 402.1(c)(31), 402.105(d)(3) CMS Penalty for any person or entity who knowingly and willfully bills or collects for any outpatient therapy services or comprehensive outpatient rehabilitation services on other than an assignment-related basis. (Penalties are assessed in the same manner as 42 U.S.C. 1395m(k)(6) and 1395u(j)(2)(B), which is assessed according to 1320a-7a(a)) 2018 15,024 15,270 30,000 1395m(l)(6) 5 42 CFR 402.1(c)(32), 402.105(d)(4) CMS Penalty for any supplier of ambulance services who knowingly and willfully fills or collects for any services on other than an assignment-related basis. (Penalties are assessed in the same manner as 42 U.S.C. 1395u(b)(18)(B), which is assessed according to 1320a-7a(a)) 2018 15,024 15,270 30,000 1395u(b)(18)(B) 5 42 CFR 402.1(c)(11), 402.105(d)(2)(viii) CMS Penalty for any practitioner specified in Section 1842(b)(18)(C) of the Act or other person that knowingly and willfully bills or collects for any services by the practitioners on other than an assignment-related basis. (Penalties are assessed in the same manner as 42 U.S.C. 1395u(j)(2)(B), which is assessed according to 1320a-7a(a)) 2018 15,024 15,270 30,000 1395u(j)(2)(B) 5 42 CFR 402.1(c) CMS Penalty for any physician who charges more than 125% for a non-participating referral. (Penalties are assessed in the same manner as 42 U.S.C. 1320a-7a(a)) 2018 15,024 15,270 30,000 1395u(k) 5 42 CFR 402.1(c)(12), 402.105(d)(2)(ix) CMS Penalty for any physician who knowingly and willfully presents or causes to be presented a claim for bill for an assistant at a cataract surgery performed on or after March 1, 1987, for which payment may not be made because of section 1862(a)(15). (Penalties are assessed in the same manner as 42 U.S.C. 1395u(j)(2)(B), which is assessed according to 1320a-7a(a)) 2018 15,024 15,270 30,000 1395u(l)(3) 5 42 CFR 402.1(c)(13), 402.105(d)(2)(x) CMS Penalty for any nonparticipating physician who does not accept payment on an assignment-related basis and who knowingly and willfully fails to refund on a timely basis any amounts collected for services that are not reasonable or medically necessary or are of poor quality under 1842(l)(1)(A). (Penalties are assessed in the same manner as 42 U.S.C. 1395u(j)(2)(B), which is assessed according to 1320a-7a(a)) 2018 15,024 15,270 30,000 1395u(m)(3) 5 42 CFR 402.1(c)(14), 402.105(d)(2)(xi) CMS Penalty for any nonparticipating physician charging more than $500 who does not accept payment for an elective surgical procedure on an assignment related basis and who knowingly and willfully fails to disclose the required information regarding charges and coinsurance amounts and fails to refund on a timely basis any amount collected for the procedure in excess of the charges recognized and approved by the Medicare program. (Penalties are assessed in the same manner as 42 U.S.C. 1395u(j)(2)(B), which is assessed according to 1320a-7a(a)) 2018 15,024 15,270 30,000 1395u(n)(3) 5 42 CFR 402.1(c)(15), 402.105(d)(2)(xii) CMS Penalty for any physician who knowingly, willfully, and repeatedly bills one or more beneficiaries for purchased diagnostic tests any amount other than the payment amount specified by the Act. (Penalties are assessed in the same manner as 42 U.S.C. 1395u(j)(2)(B), which is assessed according to 1320a-7a(a)) 2018 15,024 15,270 30,000 1395u(o)(3)(B) 5 42 CFR 414.707(b) CMS Penalty for any practitioner specified in Section 1842(b)(18)(C) of the Act or other person that knowingly and willfully bills or collects for any services pertaining to drugs or biologics by the practitioners on other than an assignment-related basis. (Penalties are assessed in the same manner as 42 U.S.C. 1395u(b)(18)(B) and 1395u(j)(2)(B), which is assessed according to 1320a-7a(a)) 2018 15,024 15,270 30,000 1395u(p)(3)(A) CMS Penalty for any physician or practitioner who knowingly and willfully fails promptly to provide the appropriate diagnosis codes upon CMS or Medicare administrative contractor request for payment or bill not submitted on an assignment-related basis 2016 3,957 4,022 4,104 1395w-3a(d)(4)(A) 42 CFR 414.806 CMS Penalty for a pharmaceutical manufacturer's misrepresentation of average sales price of a drug, or biologic 2016 12,856 13,066 13,333 1395w-4(g)(1)(B) 5 42 CFR 402.1(c)(17), 402.105(d)(2)(xiii) CMS Penalty for any nonparticipating physician, supplier, or other person that furnishes physician services not on an assignment-related basis who either knowingly and willfully bills or collects in excess of the statutorily-defined limiting charge or fails to make a timely refund or adjustment. (Penalties are assessed in the same manner as 42 U.S.C. 1395u(j)(2)(B), which is assessed according to 1320a-7a(a)) 2018 15,024 15,270 30,000 1395w-4(g)(3)(B) 5 42 CFR 402.1(c)(18), 402.105(d)(2)(xiv) CMS Penalty for any person that knowingly and willfully bills for statutorily defined State-plan approved physicians' services on any other basis than an assignment-related basis for a Medicare/Medicaid dual eligible beneficiary. (Penalties are assessed in the same manner as 42 U.S.C. 1395u(j)(2)(B), which is assessed according to 1320a-7a(a)) 2018 15,024 15,270 30,000 1395w-27(g)(3)(A); 1857(g)(3) 42 CFR 422.760(b); 42 CFR 423.760(b) CMS Penalty for each termination determination the Secretary makes that is the result of actions by a Medicare Advantage organization or Part D sponsor that has adversely affected an individual covered under the organization's contract 2016 36,794 37,396 38,159 1395w-27(g)(3)(B); 1857(g)(3) CMS Penalty for each week beginning after the initiation of civil money penalty procedures by the Secretary because a Medicare Advantage organization or Part D sponsor has failed to carry out a contract, or has carried out a contract inconsistently with regulations 2016 14,718 14,959 15,264 1395w-27(g)(3)(D); 1857(g)(3) CMS Penalty for a Medicare Advantage organization's or Part D sponsor's early termination of its contract 2016 136,689 138,925 141,760 1395y(b)(3)(C) 42 CFR 411.103(b) CMS Penalty for an employer or other entity to offer any financial or other incentive for an individual entitled to benefits not to enroll under a group health plan or large group health plan which would be a primary plan 2016 8,908 9,054 9,239 1395y(b)(5)(C)(ii) 42 CFR 402.1(c)(20), 42 CFR 402.105(b)(2) CMS Penalty for any non-governmental employer that, before October 1, 1998, willfully or repeatedly failed to provide timely and accurate information requested relating to an employee's group health insurance coverage 2016 1,450 1,474 1,504 1395y(b)(6)(B) 42 CFR 402.1(c)(21), 402.105(a) CMS Penalty for any entity that knowingly, willfully, and repeatedly fails to complete a claim form relating to the availability of other health benefits in accordance with statute or provides inaccurate information relating to such on the claim form 2016 3,182 3,234 3,300 1395y(b)(7)(B)(i) CMS Penalty for any entity serving as insurer, third party administrator, or fiduciary for a group health plan that fails to provide information that identifies situations where the group health plan is or was a primary plan to Medicare to the HHS Secretary 2016 1,138 1,157 1,181 1395pp(h) 5 42 CFR 402.1(c)(23), 402.105(d)(2)(xv) CMS Penalty for any durable medical equipment supplier, including a supplier of prosthetic devices, prosthetics, orthotics, or supplies, that knowingly and willfully fails to make refunds in a timely manner to Medicare beneficiaries under certain conditions. (42 U.S.C. 1395(m)(18) sanctions apply here in the same manner, which is under 1395u(j)(2) and 1320a-7a(a)) 2018 15,024 15,270 30,000 1395nn(g)(5) 42 CFR 411.361 CMS Penalty for any person that fails to report information required by HHS under Section 1877(f) concerning ownership, investment, and compensation arrangements 2016 18,936 19,246 19,639 1395pp(h) 42 CFR 402.1(c)(23), 402.105(d)(2)(xv) CMS Penalty for any durable medical equipment supplier, including a supplier of prosthetic devices, prosthetics, orthotics, or supplies, that knowingly and willfully fails to make refunds in a timely manner to Medicare beneficiaries under certain conditions. (42 U.S.C. 1395(m)(18) sanctions apply here in the same manner, which is under 1395u(j)(2) and 1320a-7a(a)) 2016 15,024 15,270 15,582 1395ss(a)(2) 42 CFR 402.1(c)(24), 405.105(f)(1) CMS Penalty for any person that issues a Medicare supplemental policy that has not been approved by the State regulatory program or does not meet Federal standards after a statutorily defined effective date 2016 51,569 52,413 53,483 1395ss(d)(3)(A)(vi)(II) CMS Penalty for someone other than issuer that sells or issues a Medicare supplemental policy to beneficiary without a disclosure statement 2016 26,723 27,160 27,714 Penalty for an issuer that sells or issues a Medicare supplemental policy without disclosure statement 2016 44,539 45,268 46,192 1395ss(d)(3)(B)(iv) CMS Penalty for someone other than issuer that sells or issues a Medicare supplemental policy without acknowledgement form. 2016 26,723 27,160 27,714 Penalty for issuer that sells or issues a Medicare supplemental policy without an acknowledgement form 2016 44,539 45,268 46,192 1395ss(p)(8) 42 CFR 402.1(c)(25), 402.105(e) CMS Penalty for any person that sells or issues Medicare supplemental polices after a given date that fail to conform to the NAIC or Federal standards established by statute 2016 26,723 27,160 27,714 42 CFR 402.1(c)(25), 405.105(f)(2) CMS Penalty for any person that sells or issues Medicare supplemental polices after a given date that fail to conform to the NAIC or Federal standards established by statute 2016 44,539 45,268 46,192 1395ss(p)(9)(C) 42 CFR 402.1(c)(26), 402.105(e) CMS Penalty for any person that sells a Medicare supplemental policy and fails to make available for sale the core group of basic benefits when selling other Medicare supplemental policies with additional benefits or fails to provide the individual, before selling the policy, an outline of coverage describing benefits 2016 26,723 27,160 27,714 42 CFR 402.1(c)(26), 405.105(f)(3), (4) Penalty for any person that sells a Medicare supplemental policy and fails to make available for sale the core group of basic benefits when selling other Medicare supplemental policies with additional benefits or fails to provide the individual, before selling the policy, an outline of coverage describing benefits 2016 44,539 45,268 46,192 1395ss(q)(5)(C) 42 CFR 402.1(c)(27), 405.105(f)(5) CMS Penalty for any person that fails to suspend the policy of a policyholder made eligible for medical assistance or automatically reinstates the policy of a policyholder who has lost eligibility for medical assistance, under certain circumstances 2016 44,539 45,268 46,192 1395ss(r)(6)(A) 42 CFR 402.1(c)(28), 405.105(f)(6) CMS Penalty for any person that fails to provide refunds or credits as required by section 1882(r)(1)(B) 2016 44,539 45,268 46,192 1395ss(s)(4) 42 CFR 402.1(c)(29), 405.105(c) CMS Penalty for any issuer of a Medicare supplemental policy that does not waive listed time periods if they were already satisfied under a proceeding Medicare supplemental policy, or denies a policy, or conditions the issuances or effectiveness of the policy, or discriminates in the pricing of the policy base on health status or other specified criteria 2016 18,908 19,217 19,609 1395ss(t)(2) 42 CFR 402.1(c)(30), 405.105(f)(7) CMS Penalty for any issuer of a Medicare supplemental policy that fails to fulfill listed responsibilities 2016 44,539 45,268 46,192 1395ss(v)(4)(A) CMS Penalty someone other than issuer who sells, issues, or renews a Medigap Rx policy to an individual who is a Part D enrollee 2016 19,284 19,599 19,999 Penalty for an issuer who sells, issues, or renews a Medigap Rx policy who is a Part D enrollee 2016 32,140 32,666 33,333 1395bbb(c)(1) 42 CFR 488.725(c) CMS Penalty for any individual who notifies or causes to be notified a home health agency of the time or date on which a survey of such agency is to be conducted 2016 4,126 4,194 4,280 1395bbb(f)(2)(A)(i) 42 CFR 488.845(b)(2)(iii); 42 CFR 488.845(b)(3)-(6); and 42 CFR 488.845(d)(1)(ii) CMS Maximum daily penalty amount for each day a home health agency is not in compliance with statutory requirements 2016 19,787 20,111 20,521 42 CFR 488.845(b)(3) Penalty per day for home health agency's noncompliance (Upper Range) Minimum 2016 16,819 17,094 17,443 Maximum 2016 19,787 20,111 20,521 42 CFR 488.845(b)(3)(i) Penalty for a home health agency's deficiency or deficiencies that cause immediate jeopardy and result in actual harm 2016 19,787 20,111 20,521 42 CFR 488.845(b)(3)(ii) Penalty for a home health agency's deficiency or deficiencies that cause immediate jeopardy and result in potential for harm 2016 17,808 18,099 18,468 42 CFR 488.845(b)(3)(iii) Penalty for an isolated incident of noncompliance in violation of established HHA policy 2016 16,819 17,094 17,443 42 CFR 488.845(b)(4) Penalty for a repeat and/or condition-level deficiency that does not constitute immediate jeopardy, but is directly related to poor quality patient care outcomes (Lower Range) Minimum 2016 2,968 3,017 3,079 Maximum 2016 16,819 17,094 17,443 42 CFR 488.845(b)(5) Penalty for a repeat and/or condition-level deficiency that does not constitute immediate jeopardy and that is related predominately to structure or process-oriented conditions (Lower Range) Minimum 2016 989 1,005 1,026 Maximum 2016 7,915 8,044 8,208 42 CFR 488.845(b)(6) Penalty imposed for instance of noncompliance that may be assessed for one or more singular events of condition-level noncompliance that are identified and where the noncompliance was corrected during the onsite survey Minimum 2016 1,979 2,011 2,052 Maximum 2016 19,787 20,111 20,521 Penalty for each day of noncompliance (Maximum) 2016 19,787 20,111 20,521 42 CFR 488.845(d)(1)(ii) Penalty for each day of noncompliance (Maximum) 2016 19,787 20,111 20,521 1396b(m)(5)(B) 42 CFR 460.46 CMS Penalty for PACE organization's practice that would reasonably be expected to have the effect of denying or discouraging enrollment Minimum 2016 22,077 22,438 22,896 Maximum 2016 147,177 149,585 152,638 Penalty for a PACE organization that charges excessive premiums 2016 36,794 37,396 38,159 Penalty for a PACE organization misrepresenting or falsifying information to CMS, the State, or an individual or other entity 2016 147,177 149,585 152,638 Penalty for each determination the CMS makes that the PACE organization has failed to provide medically necessary items and services of the failure has adversely affected (or has the substantial likelihood of adversely affecting) a PACE participant 2016 36,794 37,396 38,159 Penalty for involuntarily disenrolling a participant 2016 36,794 37,396 38,159 Penalty for discriminating or discouraging enrollment or disenrollment of participants on the basis of an individual's health status or need for health care services 2016 36,794 37,396 38,159 1396r(h)(3)(C)(ii)(I) 42 CFR 488.408(d)(1)(iii) CMS Penalty per day for a nursing facility's failure to meet a Category 2 Certification Minimum 2016 103 105 107 Maximum 2016 6,188 6,289 6,417 42 CFR 488.408(d)(1)(iv) CMS Penalty per instance for a nursing facility's failure to meet Category 2 certification Minimum 2016 2,063 2,097 2,140 Maximum 2016 20,628 20,965 21,393 42 CFR 488.408(e)(1)(iii) CMS Penalty per day for a nursing facility's failure to meet Category 3 certification Minimum 2016 6,291 6,394 6,525 Maximum 2016 20,628 20,965 21,393 42 CFR 488.408(e)(1)(iv) CMS Penalty per instance for a nursing facility's failure to meet Category 3 certification Minimum 2016 2,063 2,097 2,140 Maximum 2016 20,628 20,965 21,393 42 CFR 488.408(e)(2)(ii) CMS Penalty per instance for a nursing facility's failure to meet Category 3 certification, which results in immediate jeopardy Minimum 2016 2,063 2,097 2,140 Maximum 2016 20,628 20,965 21,393 42 CFR 488.438(a)(1)(i) CMS Penalty per day for nursing facility's failure to meet certification (Upper Range) Minimum 2016 6,291 6,394 6,525 Maximum 2016 20,628 20,965 21,393 42 CFR 488.438(a)(1)(ii) CMS Penalty per day for nursing facility's failure to meet certification (Lower Range) Minimum 2016 103 105 107 Maximum 2016 6,188 6,289 6,417 42 CFR 488.438(a)(2) CMS Penalty per instance for nursing facility's failure to meet certification Minimum 2016 2,063 2,097 2,140 Maximum 2016 20,628 20,965 21,393 1396r(f)(2)(B)(iii)(I)(c) 42 CFR 483.151(b)(2)(iv) and (b)(3)(iii) CMS Grounds to prohibit approval of Nurse Aide Training Program—if assessed a penalty in 1819(h)(2)(B)(i) or 1919(h)(2)(A)(ii) of “not less than $5,000” [Not CMP authority, but a specific CMP amount (CMP at this level) that is the triggering condition for disapproval] 2016 10,314 10,483 10,697 1396r(h)(3)(C)(ii)(I) 42 CFR 483.151(c)(2) CMS Grounds to waive disapproval of nurse aide training program—reference to disapproval based on imposition of CMP “not less than $5,000” [Not CMP authority but CMP imposition at this level determines eligibility to seek waiver of disapproval of nurse aide training program] 2016 10,314 10,483 10,697 1396t(j)(2)(C) CMS Penalty for each day of noncompliance for a home or community care provider that no longer meets the minimum requirements for home and community care Minimum 2016 2 2 2 Maximum 2016 17,816 18,107 18,477 1396u-2(e)(2)(A)(i) 42 CFR 438.704 CMS Penalty for a Medicaid managed care organization that fails substantially to provide medically necessary items and services 2016 36,794 37,396 38,159 Penalty for Medicaid managed care organization that imposes premiums or charges on enrollees in excess of the premiums or charges permitted 2016 36,794 37,396 38,159 Penalty for a Medicaid managed care organization that misrepresents or falsifies information to another individual or entity 2016 36,794 37,396 38,159 Penalty for a Medicaid managed care organization that fails to comply with the applicable statutory requirements for such organizations 2016 36,794 37,396 38,159 1396u-2(e)(2)(A)(ii) 42 CFR 438.704 CMS Penalty for a Medicaid managed care organization that misrepresents or falsifies information to the HHS Secretary 2016 147,177 149,585 152,638 Penalty for Medicaid managed care organization that acts to discriminate among enrollees on the basis of their health status 2016 147,177 149,585 152,638 1396u-2(e)(2)(A)(iv) 42 CFR 438.704 CMS Penalty for each individual that does not enroll as a result of a Medicaid managed care organization that acts to discriminate among enrollees on the basis of their health status 2016 22,077 22,438 22,896 1396u(h)(2) 42 CFR Part 441, Subpart I CMS Penalty for a provider not meeting one of the requirements relating to the protection of the health, safety, and welfare of individuals receiving community supported living arrangements services 2016 20,628 20,965 21,393 1396w-2(c)(1) CMS Penalty for disclosing information related to eligibility determinations for medical assistance programs 2016 11,002 11,182 11,410 18041(c)(2) 45 CFR 150.315; 45 CFR 156.805(c) CMS Failure to comply with requirements of the Public Health Services Act; Penalty for violations of rules or standards of behavior associated with issuer participation in the Federally-facilitated Exchange. (42 U.S.C. 300gg-22(b)(2)(C)) 2016 150 152 155 18081(h)(1)(A)(i)(II) 42 CFR 155.285 CMS Penalty for providing false information on Exchange application 2016 27,186 27,631 28,195 18081(h)(1)(B) 42 CFR 155.285 CMS Penalty for knowingly or willfully providing false information on Exchange application 2016 271,862 276,310 281,949 18081(h)(2) 42 CFR 155.260 CMS Penalty for knowingly or willfully disclosing protected information from Exchange 2016 27,186 27,631 28,195 31 U.S.C. 1352 45 CFR 93.400(e) HHS Penalty for the first time an individual makes an expenditure prohibited by regulations regarding lobbying disclosure, absent aggravating circumstances 2016 18,936 19,246 19,639 Penalty for second and subsequent offenses by individuals who make an expenditure prohibited by regulations regarding lobbying disclosure Minimum 2016 18,936 19,246 19,639 Maximum 2016 189,361 192,459 196,387 Penalty for the first time an individual fails to file or amend a lobbying disclosure form, absent aggravating circumstances 2016 18,936 19,246 19,639 Penalty for second and subsequent offenses by individuals who fail to file or amend a lobbying disclosure form, absent aggravating circumstances Minimum 2016 18,936 19,246 19,639 Maximum 2016 189,361 192,459 196,387 45 CFR Part 93, Appendix A HHS Penalty for failure to provide certification regarding lobbying in the award documents for all sub-awards of all tiers Minimum 2016 18,936 19,246 19,639 Maximum 2016 189,361 192,459 196,387 Penalty for failure to provide statement regarding lobbying for loan guarantee and loan insurance transactions Minimum 2016 18,936 19,246 19,639 Maximum 2016 189,361 192,459 196,387 3801-3812 45 CFR 79.3(a)(1)(iv) HHS Penalty against any individual who—with knowledge or reason to know—makes, presents or submits a false, fictitious or fraudulent claim to the Department 2016 9,894 10,056 10,261 45 CFR 79.3(b)(1(ii) HHS Penalty against any individual who—with knowledge or reason to know—makes, presents or submits a false, fictitious or fraudulent claim to the Department 2016 9,894 10,056 10,261 1 Some HHS components have not promulgated regulations regarding their civil monetary penalty-specific statutory authorities. 2 The description is not intended to be a comprehensive explanation of the underlying violation; the statute and corresponding regulation, if applicable, should be consulted. 3 Statutory or Inflation Act Adjustment. 4 The cost of living multiplier for 2018, based on the CPI-U for the month of October 2017, not seasonally adjusted, is 1.02041, as indicated in OMB Memorandum M-18-03, “Implementation of Penalty Inflation Adjustments for 2018, Pursuant to the Federal Civil Penalties Adjustment Act Improvements Act of 2015” (December 15, 2017). 5 2018 Maximum Adjusted Penalty column adjusted based on changes to the Bipartisan Budget Act of 2018 for 42 U.S.C.1320a-7a(a),1320a-7a(b), 1395l(h)(5)(D),1395m(a)(11)(A),1395m(a)(18)(B), 1395m(b)(5)(C), 1395m(h)(3), 1395m(j)(4), 1395m(k)(6), 1395m(l)(6), 1395u(b)(18)(B), 1395u(j)(2)(B), 1395u(k), 1395u(l)(3), 1395u(m)(3), 1395u(n)(3), 1395u(o)(3)(B), 1395w-4(g)(1)(B), 1395w-4(g)(3)(B),1395pp(h).

    Dated: October 3, 2018. Alex M. Azar II, Secretary, Department of Health and Human Services. [FR Doc. 2018-22005 Filed 10-10-18; 8:45 am] BILLING CODE 4150-24-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 121004518-3398-01] RIN 0648-XG524 Reef Fish Fishery of the Gulf of Mexico; 2018 Commercial Accountability Measure and Closure for Gulf of Mexico Gray Triggerfish AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS implements accountability measures (AMs) for the gray triggerfish commercial sector in the exclusive economic zone (EEZ) of the Gulf of Mexico (Gulf) through this temporary rule. NMFS projects that 2018 commercial landings for gray triggerfish will reach the commercial annual catch target (ACT) (commercial quota) by October 7, 2018. Therefore, NMFS is closing the commercial sector for Gulf gray triggerfish on October 7, 2018, and it will remain closed through the end of the fishing year on December 31, 2018. This closure is necessary to protect the Gulf gray triggerfish resource.

    DATES:

    This temporary rule is effective at 12:01 a.m., local time, on October 7, 2018, until 12:01 a.m., local time, on January 1, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Lauren Waters, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected].

    SUPPLEMENTARY INFORMATION:

    NMFS manages the Gulf reef fish fishery, which includes gray triggerfish, under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The Gulf of Mexico Fishery Management Council (Council) prepared the FMP and NMFS implements the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. All gray triggerfish weights discussed in this temporary rule are in round weight.

    On August 4, 2008, NMFS established gray triggerfish AMs as well as commercial quotas for gray triggerfish through Amendment 30A to the FMP (73 FR 38139). On May 9, 2013, NMFS issued a final rule to implement Amendment 37 to the FMP (78 FR 27084). In part, Amendment 37 revised gray triggerfish commercial ACLs and ACTs. The 2018 commercial quota (i.e., the commercial ACT) for Gulf gray triggerfish specified in 50 CFR 622.39(a)(1)(vi) is 60,900 lb (27,624 kg).

    As specified by 50 CFR 622.41(b)(1), NMFS is required to close the commercial sector for gray triggerfish when the commercial quota is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined the 2018 commercial quota for Gulf gray triggerfish will be reached by October 7, 2018. Accordingly, this temporary rule closes the commercial sector for Gulf gray triggerfish effective at 12:01 a.m., local time, October 7, 2018, and it will remain closed until the start of the next commercial fishing season on January 1, 2019.

    During the commercial closure, the operator of a vessel with a valid commercial vessel permit for Gulf reef fish having gray triggerfish onboard must have landed and bartered, traded, or sold such gray triggerfish prior to 12:01 a.m., local time, October 7, 2018. During the closure, the sale or purchase of gray triggerfish taken from the Gulf EEZ is prohibited. The prohibition on the sale or purchase does not apply to gray triggerfish that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, October 7, 2018, and were held in cold storage by a dealer or processor.

    Classification

    The Regional Administrator for the NMFS Southeast Region has determined this temporary rule is necessary for the conservation and management of Gulf gray triggerfish and is consistent with the Magnuson-Stevens Act and other applicable laws.

    This action is taken under 50 CFR 622.41(b)(1) and is exempt from review under Executive Order 12866.

    These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

    This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement this action to close the commercial sector for gray triggerfish constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule pursuant to the authority set forth in 5 U.S.C. 553(b)(B), because such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because Amendment 37 to the FMP (78 FR 27084; May 9, 2013), which established the closure provisions, was subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect gray triggerfish since the capacity of the fishing fleet allows for rapid harvest of the commercial quota. Prior notice and opportunity for public comment would require time and could potentially result in a harvest well in excess of the established commercial quota.

    For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

    Authority:

    16 U.S.C. 1801 et seq.

    Margo B. Schulze-Haugen, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-22142 Filed 10-5-18; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 180117042-8884-02] RIN 0648-BH54 Atlantic Highly Migratory Species; Atlantic Bluefin Tuna and Northern Albacore Tuna Quotas; Atlantic Bigeye and Yellowfin Tuna Size Limit Regulations AGENCY:

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

    ACTION:

    Final rule; notification of adjustment and recalculation of quotas.

    SUMMARY:

    In this final rule, NMFS modifies the baseline annual U.S. quota and subquotas for Atlantic bluefin tuna (BFT) and the baseline annual U.S. North Atlantic albacore (northern albacore or NALB) quota to reflect quotas adopted by the International Commission for the Conservation of Atlantic Tunas (ICCAT). NMFS also updates regulatory language on school BFT to reflect current ICCAT requirements. NMFS also makes a minor change to the Atlantic tunas size limit regulations to address retention, possession, and landing of bigeye and yellowfin tuna damaged through predation by sharks and other marine species. This action is necessary to implement binding recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT), as required by the Atlantic Tunas Convention Act (ATCA), and to achieve domestic management objectives under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). NMFS also provides notice of adjustment of the 2018 BFT Reserve category quota and the 2018 NALB baseline quota to account for the available underharvest from 2017, consistent with the Atlantic tunas quota regulations. NMFS further recalculates the BFT Purse Seine and Reserve category quotas that were announced earlier this year, in accordance with the quotas in this final rule.

    DATES:

    Effective October 10, 2018.

    ADDRESSES:

    Supporting documents, including the Environmental Assessment (EA), Regulatory Impact Review, and Final Regulatory Flexibility Analysis, may be downloaded from the HMS website at www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species/. These documents also are available by contacting Sarah McLaughlin, Highly Migratory Species (HMS) Management Division, Office of Sustainable Fisheries (F/SF1), NMFS, 55 Great Republic Drive, Gloucester, MA 01930.

    FOR FURTHER INFORMATION CONTACT:

    Sarah McLaughlin or Brad McHale, 978-281-9260.

    SUPPLEMENTARY INFORMATION:

    Atlantic bluefin tuna (BFT), bigeye tuna, albacore tuna (NALB), yellowfin tuna, and skipjack tuna (hereafter referred to as “Atlantic tunas”) are managed under the dual authority of the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.) and ATCA (16 U.S.C. 971 et seq.). As a member of ICCAT, the United States implements binding ICCAT recommendations pursuant to ATCA, which authorizes the Secretary of Commerce (Secretary) to promulgate regulations, as may be necessary and appropriate to carry out ICCAT recommendations. The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NMFS. Regulations implemented under the authority of ATCA and the Magnuson-Stevens Act governing the harvest of BFT and NALB by persons and vessels subject to U.S, jurisdiction are found at 50 CFR part 635.

    Background

    Background information about the need to modify the U.S. BFT baseline quota and subquotas and the U.S. NALB baseline quota, as well as detailed descriptions of changes to the existing regulations regarding school BFT and size requirements for retention, possession, and landing of bigeye and yellowfin tuna damaged by predation, were provided in the preamble to the proposed rule (83 FR 31517, July 6, 2018) and most of that background information is not repeated here. The 30-day comment period ended August 6, 2018. All Total Allowable Catch (TAC), quota, and weight information in this action are whole weight amounts.

    Consistent with the regulations regarding annual BFT quota adjustment, NMFS annually announces the addition of available underharvest, if any, to the BFT Reserve category in a Federal Register notice once complete catch (landings and dead discards) information is available and finalized. Such data became available to NMFS since publication of the proposed rule, and notice of the quota adjustment for 2017 underharvest is included with this final rule to provide the regulated community with the most up-to-date quota balances.

    BFT Annual Quota and Subquotas

    At its November 2017 meeting, after considering the advice of ICCAT's Standing Committee on Research and Statistics (SCRS), ICCAT adopted Recommendation 17-06 (Recommendation by ICCAT for an Interim Conservation and Management Plan for western Atlantic BFT) for 2018 through 2020. An interim approach was selected in light of the SCRS' new stock assessment approach and ICCAT's anticipated development of management procedures for the stock by 2020. Management procedures are a way to manage stocks in light of stock assessment and other scientific uncertainties and include use of stock monitoring, pre-agreed actions based on triggers (i.e., harvest control rules), and evaluation to help ensure identified management objectives are achieved. See EA for more details. The Recommendation included a TAC of 2,350 mt annually (i.e., an increase of approximately 17.5 percent) for 2018, 2019, and 2020. This TAC is within the SCRS-recommended range and provides a buffer from the top end of the range to help further account for identified stock assessment uncertainties. Relevant provisions of the Recommendation by ICCAT Amending the Supplemental Recommendation by ICCAT Concerning the Western Atlantic Bluefin Tuna Rebuilding Program (Recommendation 16-08) were also maintained in Recommendation 17-06, such as those involving effort and capacity limits, the 10-percent limit on the amount of unused quota Contracting Parties may carry forward, minimum fish size requirements and protection of small fish (including the 10-percent tolerance limit on the harvest of BFT measuring less than 115 cm and the procedures for addressing overharvest of the tolerance limit), area and time restrictions, transshipment, scientific research, and data and reporting requirements.

    Quotas and Domestic Allocations

    Recommendation 17-06 maintained the quota allocations to individual Contracting Parties (i.e., the percentages to each Contracting Party) of previous recommendations. Under the ICCAT recommendation, the annual U.S. quota is 1,247.86 mt, plus 25 mt to account for bycatch related to pelagic longline fisheries in the Northeast Distant gear restricted area (NED), resulting in a total of 1,272.86 mt.

    This action implements the ICCAT-recommended quota of 1,272.86 mt. The table below shows the final baseline quotas and subquotas that result from applying the process codified in the quota regulations at 50 CFR 635.27(a) to the ICCAT-recommended U.S. BFT quota. These quotas (in mt) are codified at § 635.27(a) and will remain in effect until changed. Because ICCAT adopted annual TACs for 2018 through 2020, NMFS currently anticipates that the annual U.S. baseline quota and subquotas in this rule will be in effect through 2020; they will remain in place unless and until a new U.S. quota is adopted by ICCAT.

    ER11OC18.004

    Within the BFT quota proposed in this action and consistent with the ICCAT-recommended limit on the harvest of school BFT (measuring 27 to less than 47 inches curved fork length (CFL)), the school BFT subquota is 127.3 mt. This final action also amends the regulations regarding annual quota adjustments to specify that NMFS may adjust the annual school BFT subquota to ensure compliance with the ICCAT-recommended procedures for addressing overharvest of school BFT. This amendment is needed because the current regulatory text refers to outdated language (regarding multi-year “balancing periods”) from a previous ICCAT recommendation.

    Adjustment of the 2018 BFT Quota for 2017 Underharvest

    This final rule also provides notice that, consistent with the BFT quota regulations at § 635.27(a)(10), NMFS augments the BFT Reserve category quota with allowable underharvest, if any, from the previous year. NMFS makes such adjustments consistent with ICCAT limits and when complete catch information for the prior year is available and finalized. The maximum underharvest that a Contracting Party may carry forward from one year to the next is 10 percent of its initial catch quota, which for 2017 equals 108.38 mt for the United States.

    For 2017, the adjusted BFT quota was 1,192.17 mt (1,083.79 mt + 108.38 mt of 2016 underharvest carried forward to 2017). The total 2017 BFT catch, which includes landings and dead discards, was 997.86 mt, which is 194.31 mt less than the 2017 adjusted quota. Thus, the 2018 adjusted BFT quota is 1,381.24 mt (baseline quota of 1,272.86 mt + underharvest carryover of 108.38 mt).

    Recalculation of Quota Available to Atlantic Tunas Purse Seine Category and Reserve Category

    Pursuant to § 635.27(a)(4), NMFS annually determines the amount of quota available to the Atlantic Tunas Purse Seine category participants, based on their BFT catch (landings and dead discards) in the prior year and reallocates the remainder to the Reserve category. Because the U.S. baseline quota and subquotas are increasing via this action, NMFS in this rule is also recalculating the 2018 Purse Seine and Reserve category quotas that were announced earlier this year. NMFS previously announced that 46.1 mt were available to the Purse Seine category for 2018, and the amount of Purse Seine category quota to be reallocated to the Reserve category was 138.2 mt (184.3 mt − 46.1 mt) (83 FR 17110, April 18, 2018). To account for the ICCAT quota increase addressed in this rule, NMFS is first adjusting the 2018 Purse Seine category quota to reflect the ICCAT quota increase. As a result, the baseline Purse Seine category quota initially increases by 35.2 mt to 219.5 mt. NMFS then recalculates the amounts of quota available to individual Purse Seine category participants for 2018 using the final baseline Purse Seine category quota (219.5 mt). Adjusted for the quota increase, 55 mt are available for Purse Seine category participants in 2018. Consistent with § 635.27(a)(4)(v)(C), NMFS will notify Atlantic Tunas Purse Seine fishery participants of the adjusted amount of quota available for their use in 2018 through the Individual Bluefin Quota (IBQ) electronic system and in writing.

    The remaining 164.5 mt (219.5 mt−55 mt = 164.5 mt) is added to the 2018 Reserve category quota. This final rule also increases the baseline annual Reserve category quota by 4.7 mt from 24.8 mt to 29.5 mt. NMFS made four inseason quota transfers totaling 84.5 mt from the Reserve category in 2018 to date: 10 mt from the Reserve category to the General category effective February 28, 2018, through March 2, 2018 (83 FR 9232, March 5, 2018), 44.5 mt to the Longline category effective April 13, 2018, through December 31, 2018 (83 FR 17110, April 18, 2018), 30 mt from the Reserve category to the Harpoon category effective August 2, 2018, through November 15, 2018 (83 FR 38664, August 7, 2018), and 60 mt from the Reserve category to the General category effective September 18, 2018, through September 30, 2018 (83 FR 47843, September 21, 2018). Thus, the adjusted 2018 Reserve category quota as of publication of this action is: 24.8 mt (baseline) + 4.7 mt (ICCAT quota increase to baseline) − 144.5 (quota transfers) + 164.5 mt (Purse Seine adjustment) + 108.38 mt (underharvest carryover) = 157.9 mt.

    NALB Annual Quota

    In 2017, following consideration of SCRS' work to test a set of harvest control rules through management strategy evaluation simulations, ICCAT adopted an interim harvest control rule for NALB, the first for any ICCAT stock, with the goal of adopting a long-term harvest control rule following further management strategy evaluation testing over the next few years. In ICCAT Recommendation 17-04 (Recommendation by ICCAT on a Harvest Control Rule for North Atlantic Albacore Supplementing the Multiannual Conservation and Management Programme, Recommendation 16-06), ICCAT adopted a 3-year constant annual TAC of 33,600 t for 2018 through 2020; this 20-percent increase from the current 28,000-t TAC is consistent with the Commission's chosen stability clause, which limits the TAC increase to 20 percent. The recommendation calls on the SCRS to continue to develop the management strategy evaluation framework over the 2018-2020 period and calls on ICCAT to review the interim harvest control rule in 2020 with a view to adopting a long-term management procedure at that point.

    Domestic Quotas

    This action implements the annual U.S. NALB quota of 632.4 mt adopted in ICCAT Recommendation 17-04. Because ICCAT adopted annual TACs for 2018 through 2020, NMFS currently anticipates that the annual baseline quota would be in effect through 2020; it will remain in place unless and until a new TAC is adopted by ICCAT.

    Adjustment of the 2018 NALB Quota

    Consistent with the NALB quota regulations at § 635.27(e), NMFS adjusts the U.S. annual northern albacore quota for allowable underharvest, if any, in the previous year. NMFS makes such adjustments consistent with ICCAT limits and when complete catch information for the prior year is available and finalized. The maximum underharvest that a Contracting Party may carry forward from one year to the next is 25 percent of its initial catch quota, which, relevant to 2017, equals 131.75 mt for the United States.

    For 2017, the adjusted NALB quota was 658.75 mt (527 mt + 131.75 mt of 2016 underharvest carried forward to 2017). The total 2017 NALB catch was 236.79 mt and this is 421.96 mt less than the 2017 adjusted quota. Thus, the underharvest for 2017 is 421.96 mt, 131.75 mt of which may be carried forward to the 2018 fishing year. As a result, the 2018 adjusted northern albacore quota is 632.4 mt + 131.75 mt, totaling 764.15 mt.

    Modification of the Size Limit Regulations To Address Bigeye and Yellowfin Tuna Damaged Through Predation by Sharks and Other Marine Species

    Minimum fish size regulations have applied for Atlantic bluefin tuna, bigeye tuna, and yellowfin tuna since 1996, when NMFS implemented the 27-inch minimum size for BFT consistent with ICCAT requirements, and also implemented a 27-inch minimum size for bigeye and yellowfin tuna for identification and enforcement purposes. Under existing regulations, these fish may be landed round with fins intact, or eviscerated with the head and fins removed as long as one pectoral fin and the tail remain attached. They cannot be filleted or cut into pieces at sea. The upper and lower lobes of the tail may be removed from tunas for storage purposes, but the fork of the tail must remain intact.

    To facilitate enforcement, total curved fork length (CFL) is the sole criterion for determining the size class of whole (with head) Atlantic tunas. CFL is measured by tracing the contour of the body from the tip of the upper jaw to the fork of the tail in a line that runs along the top of the pectoral fin and the top of the caudal keel. Pectoral fin curved fork length (PFCFL) is the sole criterion for determining the size class of a bluefin tuna with the head removed and is multiplied by 1.35 to obtain total CFL. For detailed diagrams and measuring instructions, see the HMS Compliance Guides at www.fisheries.noaa.gov/atlantic-highly-migratory-species/atlantic-highly-migratory-species-fishery-compliance-guides. Currently, the size limit regulations prohibit a person from taking, retaining, or possessing a BFT, bigeye tuna, or yellowfin tuna in the Atlantic Ocean that is less than 27 inches CFL. The regulations also prohibit removing the head of a bigeye tuna or yellowfin tuna if the remaining portion would be less than 27 inches from the fork of the tail to the forward edge of the cut.

    Fishermen have reported that they, at times, catch bigeye and yellowfin tuna that have been damaged by predation by sharks or other marine species. In those cases, a CFL measurement may not be possible if the fork of the tail has been removed by predation. Although the fish may otherwise meet the minimum size requirements, fishermen have had to discard the fish. To address this situation, NMFS makes minor modifications to the applicable Atlantic tunas size limit regulations to address retention, possession, and landing of bigeye and yellowfin damaged through predation by sharks and other marine species. In this action, NMFS adds text to the size limit regulations applicable to bigeye and yellowfin tuna to indicate that a “bigeye or yellowfin tuna that is damaged through predation by sharks and other marine species may be retained, possessed, or landed only if the length of the remainder of the fish is equal to or greater than 27 inches (69 cm).” These changes allow retention, possession, and landing of yellowfin and bigeye tuna for which a measurement to the fork of the tail may not be possible, provided that the remainder of the fish meets the current minimum size (e.g., 27 inches for yellowfin and bigeye tuna). To preserve evidence, for enforcement purposes, that the carcass was damaged through predation by sharks or other marine species, the regulatory text specifies that, aboard a vessel, no tissue may be cut away from or other alterations made to the predation-damaged area of the fish. The effects of this change are primarily economic and administrative, and no environmental effects are anticipated because the change only allows for retention of a very limited number of fish that would otherwise be caught but need to be discarded. NMFS implemented measures to address shark-damaged swordfish in 1996 (61 FR 27304, May 31, 1996), and intends to consider extending the scope of those measures to include damage through predation by other marine species in a future swordfish action.

    Response to Comments

    NMFS received three written comments on the proposed rule. Below, NMFS summarizes and responds to all comments made specifically on the proposed rule during the comment period.

    Comment 1: One commenter suggested that, for conservation reasons, NMFS should reduce rather than increase the quota.

    Response: The western Atlantic BFT TAC adopted by ICCAT on an interim basis is within the range recommended by ICCAT's Standing Committee on Research and Statistics (SCRS) and provides a buffer from the top end of the range (2,500 mt). NMFS has determined that implementing the U.S. baseline quota is consistent with the ICCAT recommendation and our conservation and management obligations under the Magnuson-Stevens Act and ATCA to provide the opportunity to harvest the ICCAT-recommended quota. NMFS is committed to the sustainable, science-based management of BFT, and is supportive of ICCAT's work toward adopting stock management recommendations using management procedures, which ICCAT has recommended for BFT and other priority stocks, to manage fisheries more effectively in the face of identified uncertainties.

    Comment 2: One commenter, representing a fishing industry organization, supported finalizing the BFT and NALB quotas as proposed, further commented on HMS regulations that affect pelagic longline participants, including the Individual Bluefin Quota Program and time/area closures, and supported access to closed areas through a research fishery.

    Response: This rulemaking does not address issues beyond the modification of the baseline annual U.S. quota and subquotas for BFT, the baseline annual U.S. NALB quota, and the size limit regulations pertaining to bigeye and yellowfin tuna.

    NMFS is currently preparing a draft Three-Year Review of the Individual Bluefin Quota Program. NMFS plans to conduct scoping in the future to respond to that review, as well as consider other potential changes to the regulations applicable to the pelagic longline fishery and the directed bluefin fisheries. NMFS also initiated a separate scoping process in the spring of 2018 to consider a range of issues and options regarding possible area-based and weak hook management changes. The subject time/area closures, gear restricted areas, and weak hook requirement were originally implemented to reduce incidental BFT catch that occurs during pelagic longline operations. Depending on the outcome of NMFS' review, NMFS anticipates publishing a proposed rule on these other potential changes to the regulations in spring 2019.

    Comment 3: The comment from the fishing industry group also provided specific suggestions regarding the proposed change regarding bigeye and yellowfin tuna damaged by shark bites. Specifically, the comment suggested that NMFS broaden the regulatory provision to address predation by other marine species that predate on hooked tuna and that may cause damage similar to damage caused by sharks. The comment also requested that NMFS allow trimming of the damaged (i.e., bitten) area of the fish for quality purposes, and noted that fishermen routinely trim the damaged area of predated fish to avoid possible spoiling of the remaining carcass.

    Response: NMFS agrees that predation by marine species other than sharks, such as pilot whales or Risso's dolphins, may result in damage to caught Atlantic bigeye and yellowfin tuna similar to damage caused by shark bites. It would also be difficult for fishermen or law enforcement to distinguish whether a tuna was bitten by a shark or another marine species. NMFS has determined that expanding the scope of the regulatory text to specify “predation by sharks and other marine species” is an appropriate modification of the originally-proposed text, and that the change could be enforced effectively. Thus, in this final rule, NMFS modifies the language being added to the size limit regulations applicable to bigeye and yellowfin tuna so that it refers to predation by sharks and other marine species. With this modification, the relevant language of § 635.20(c)(3) indicates that a bigeye or yellowfin tuna that is damaged through predation by sharks and other marine species may be retained, possessed, or landed only if the length of the remainder of the fish is equal to or greater than 27 inches (69 cm). No person shall cut or otherwise alter the predation-damaged area in any manner.

    NMFS cannot affirm the comment that trimming of the damaged area by fishermen prior to landing is a common or routine practice. Furthermore, for Atlantic tunas this practice is illegal. For enforcement purposes, curved fork length is the sole criterion for determining the size of Atlantic tunas, and this measurement is taken either from the tip of the upper jaw to the fork of the tail (total curved fork length) or, for BFT with the head removed, from the dorsal insertion of the pectoral fin to the fork of the tail (pectoral fin curved fork length). Regulations require that Atlantic tunas be maintained through offloading either in round form or eviscerated with the head and fins removed, provided one pectoral fin and the tail remain attached. The upper and lower lobes of the tuna tail may be removed for storage purposes as long as the fork of the tail remains intact. See § 635.30(a). It is NMFS' understanding that some Atlantic tunas dealers trim away predation-damaged area of the tuna after landing and offloading to help preserve the fish. Legally, trimming may only occur after landing and offloading.

    The proposed rule specified that no person shall cut or otherwise alter the damaged area of the fish. This prohibition is necessary, for enforcement purposes, to preserve evidence that the carcass was bitten. NMFS is concerned that allowing trimming of the damaged area prior to offloading could complicate effective enforcement of the Atlantic tunas regulations and species identification, particularly if it results in the tail being removed from the fish, and that this could become a common occurrence. Therefore, this provision prohibiting cutting or altering the damaged area is finalized as proposed.

    Changes From the Proposed Rule (83 FR 31517, July 6, 2018)

    As described in the response to Comment 3 above, NMFS made changes to the regulatory text of the proposed rule in response to the comment that other marine predators may cause damage similar to that caused by shark bites. Specifically, the final rule adds language to the size limit regulations applicable to bigeye and yellowfin tuna at § 635.20(c)(3), providing that a bigeye or yellowfin tuna that is damaged through predation by sharks and other marine species may be retained, possessed, or landed only if the length of the remainder of the fish is equal to or greater than 27 inches (69 cm). No person shall cut or otherwise alter the predation-damaged area in any manner.

    Classification

    The NMFS Assistant Administrator has determined that the final rule is consistent with the 2006 Consolidated HMS FMP and its amendments, the Magnuson-Stevens Act, ATCA, and other applicable law.

    This final rule has been determined to be not significant for purposes of Executive Order 12866.

    There is good cause under U.S.C. 553(d)(3) to waive the 30-day delay in effective date and to make the rule effective upon filing in the Federal Register. The purpose of the delay in effective date is to afford affected persons a reasonable time to prepare for the effective date of the rule. The fisheries for northern albacore and bluefin tuna began on January 1, 2018. NMFS monitors northern albacore and bluefin tuna catch and measures the data against the applicable available quotas. This rule effectively increases the quota for both of these fisheries and, consequently, for the subquotas within the bluefin tuna fishery. Delaying the effective date of these changes would mean that some fisheries might have to close while operating under the old quota, and then re-open when the new quota is implemented soon thereafter. This would unnecessarily complicate the management of the northern albacore and bluefin tuna fisheries for the remainder of the year, confuse the regulated community, and create additional administrative burden, because it would require NMFS to publish closures and openings that would otherwise be unnecessary. To prevent confusion and potential overharvests, these quota increases and adjustments should be in place as soon as possible, thus allowing the impacted sectors to benefit from any subsequent quota adjustments to the fishing categories, giving them a reasonable opportunity to catch available quota, and providing them the opportunity for planning operations accordingly.

    For example, under the northern albacore regulations, NMFS must close the fishery when the annual fishery quota is reached. Closure of the fishery based only on the currently codified baseline quota, rather than accounting for the higher quota in this rule, would result in an unnecessary closure and could preclude the fishery from harvesting northern albacore that are legally available, consistent with the ICCAT recommendations and the 2006 Consolidated HMS FMP, as amended. Furthermore, NMFS relies upon management flexibility to respond quickly to current fishery conditions and to ensure that fishermen have a reasonable opportunity to catch the available quotas. Implementing the higher bluefin tuna category quotas and adjusting the Reserve category quota as soon as possible provides NMFS the flexibility to transfer quota from the Reserve to other fishing categories inseason after considering the regulatory determination criteria, including fishery conditions at the time of the transfer. The amount of quota currently in the Reserve category for 2018 is relatively low, and NMFS may need to transfer quota as soon as possible in order to reduce the likelihood of fishery closure during the remaining subquota time periods. NMFS could not appropriately adjust the annual quotas for 2018 sooner because the data needed to make the determination (i.e., 2017 underharvest) did not become available until August, and additional time was needed for agency analysis and consideration of the data.

    Implementation of the change to the size limit regulations to address damaged tunas, provided that the remainder of the fish meets the current minimum size (e.g., 27 inches for yellowfin and bigeye tuna), will allow retention, possession, and landing of yellowfin and bigeye tuna for which a measurement to the fork of the tail may not be possible because the tail has been partially or entirely bitten off. Because this change could convert dead discards to landings, implementation of the measure as soon as possible could reduce waste. For all of these reasons, there is good cause to waive the 30-day delay in the date of effectiveness.

    NMFS has prepared a Regulatory Impact Review (RIR) and a Final Regulatory Flexibility Analysis (FRFA), which present and analyze anticipated social and economic impacts of the alternatives contained in this final rule. The list of alternatives and their analyses are provided in the RIR and are not repeated here in their entirety. A copy of the RIR prepared for this final rule is available from NMFS (see ADDRESSES).

    The FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, and NMFS' responses to those comments, and a summary of the analyses completed to support the action. The full FRFA and analysis of economic and ecological impacts are available from NMFS (see ADDRESSES). A summary of the FRFA follows.

    Section 604(a)(1) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) requires a succinct statement of the need for and objectives of the rule. The purpose of this action is to implement the 2017 ICCAT recommendations regarding western Atlantic BFT and NALB, as necessary and appropriate pursuant to the Atlantic Tunas Convention Act (ATCA), and to achieve domestic management objectives under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The objectives of this action are to implement the 2017 ICCAT recommendations and distribute the U.S. BFT quota among domestic fishing categories using the existing regulatory formula for quota distribution established and analyzed in Amendment 7 to the 2006 Consolidated HMS FMP (Amendment 7) (79 FR 71510, December 2, 2014). This action is needed because BFT and NALB quotas, as well as BFT allocations and resulting subquotas, are codified in the HMS regulations at 50 CFR 635.27, and rulemaking is necessary to modify them.

    Section 604(a)(2) of the RFA requires a summary of significant issues raised by the public in response to the IRFA, a summary of the agency's assessment of such issues, and a statement of any changes made as a result of the comments. NMFS received three comments on the proposed rule (83 FR 31517, July 6, 2018) during the comment period. A summary of these comments and the agency's responses are included above. However, NMFS did not receive comments specifically on the IRFA or on the economic impacts of the rule.

    Section 604(a)(3) of the RFA requires the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the SBA comments. NMFS did not receive comments from the Chief Counsel for Advocacy of the SBA in response to the proposed rule.

    Section 604(a)(4) of the RFA requires agencies to provide descriptions of, and where feasible, an estimate of the number of small entities to which the rule would apply. The SBA has established size criteria for all major industry sectors in the United States, including fish harvesters. This provision is made under SBA's regulations for an agency to develop its own industry-specific size standards after consultation with Advocacy and an opportunity for public comment (see 13 CFR 121.903(c)). Under this provision, NMFS may establish size standards that differ from those established by the SBA Office of Size Standards, but only for use by NMFS and only for the purpose of conducting an analysis of economic effects in fulfillment of the agency's obligations under the RFA. To utilize this provision, NMFS published a December 29, 2015, final rule (80 FR 81194), which became effective on July 1, 2016. The implementing regulations for that rule at 50 CFR 200.2 established a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry (NAICS 11411) for RFA compliance purposes. NMFS considers all commercial HMS permit holders to be small entities because they had average annual receipts of less than $11 million for commercial fishing.

    As described in the recently published final rule to implement quarterly Individual Bluefin Quota (IBQ) accounting (82 FR 61489, December 28, 2017), the average annual gross revenue per active pelagic longline vessel was estimated to be $308,050 for 2013 through 2016. NMFS considers all HMS Atlantic Tunas Longline permit holders (280 as of October 2017) to be small entities because these vessels have reported annual gross receipts of less than $11 million for commercial fishing. NMFS is unaware of any other Atlantic Tunas category permit holders that potentially could earn more than $11 million in revenue annually. HMS Angling category permits, which are recreational fishing permits, are typically obtained by individuals who are not considered small entities for purposes of the RFA. Therefore, NMFS considers all Atlantic Tunas permit holders and HMS Charter/Headboat permit holders subject to this action to be small entities. The following section provides a description of how NMFS calculated the average revenues and then provides a description of and, where feasible, provides an estimate of the number of small entities to which the rule would apply as required by RFA.

    This action would apply to all participants in the Atlantic tunas fisheries, i.e., to the over 27,000 vessels that held an Atlantic HMS Charter/Headboat, Atlantic HMS Angling, or an Atlantic Tunas permit as of October 2017. This final rule is expected to directly affect commercial and for-hire fishing vessels that possess an Atlantic Tunas permit or Atlantic HMS Charter/Headboat permit. It is unknown what portion of HMS Charter/Headboat permit holders actively participate in the BFT and NALB fisheries or fishing services for recreational anglers. As summarized in the 2017 SAFE Report for Atlantic HMS, there were 6,855 commercial Atlantic tunas or Atlantic HMS permits in 2017, as follows: 2,940 in the Atlantic Tunas General category; 11 in the Atlantic Tunas Harpoon category; 5 in the Atlantic Tunas Purse Seine category; 280 in the Atlantic Tunas Longline category; 1 in the Atlantic Tunas Trap category; and 3,618 in the HMS Charter/Headboat category. In the process of developing the IBQ regulations implemented in the final rule for Amendment 7, NMFS deemed 136 Longline category vessels as eligible for IBQ shares (i.e., 136 vessels reported a set in the HMS logbook between 2006 and 2012 and had valid Atlantic Tunas Longline category permits on a vessel as of August 21, 2013, the publication date of the Amendment 7 proposed rule). This constitutes the best available information regarding the universe of permits and permit holders recently analyzed. It is unknown what portion of fishery participants would be affected by the minor change in the regulations to allow retention, possession, and landing of bigeye and yellowfin tuna, damaged through predation by sharks and other marine species, for which a measurement to the fork of the tail may not be possible, provided that the remainder of the fish meets the current minimum sizes (e.g., 27 inches for yellowfin, and bigeye tunas). NMFS has determined that this action would not likely directly affect any small government jurisdictions defined under the RFA.

    Under section 604(a)(5) of the RFA, agencies are required to describe any new reporting, record-keeping, and other compliance requirements. The action does not contain any new collection of information, reporting, or record-keeping requirements.

    Under section 604(a)(6) of the RFA, agencies are required to describe the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

    In this rulemaking, NMFS analyzed two quota implementation alternatives for BFT and NALB: first, the status quo U.S. baseline quota(s) established in 2015, and second, the preferred alternative to implement the U.S. quota in accordance with the 2017 ICCAT Recommendation and regulations regarding the distribution of the quota within U.S. fishing categories. The final rule implements the recently adopted ICCAT-recommended U.S. BFT and NALB quotas and, for BFT, applies the allocations for each quota category per the codified quota regulations. This action is consistent with ATCA, under which the Secretary promulgates regulations as necessary and appropriate to implement binding ICCAT recommendations.

    NMFS has estimated the average impact that establishing the increased annual U.S. baseline BFT quota for all domestic fishing categories would have on individual categories and the vessels within those categories. As mentioned above, a 2017 ICCAT recommendation increased the annual U.S. baseline BFT quota for 2018, 2019, and 2020 to 1,247.86 mt and provides 25 mt annually for incidental catch of BFT related to directed longline fisheries in the NED. The annual U.S. baseline BFT subquotas would be adjusted consistent with the process (i.e., the formulas) established in Amendment 7 and as codified in the quota regulations, and these amounts (in mt) would be codified.

    To calculate the average ex-vessel BFT revenues under this action, NMFS first estimated potential category-wide revenues. The most recent ex-vessel average price per pound information for each commercial quota category is used to estimate potential ex-vessel gross revenues under the subquotas (i.e., 2017 prices for the General, Harpoon, and Longline/Trap categories, and 2015 prices for the Purse Seine category). For comparison, in 2017, gross revenues were approximately $9.2 million, broken out by category as follows: General—$7.8 million, Harpoon—$496,968, Purse Seine—$0, Longline—$878,824, and Trap—$0. The baseline subquotas could result in estimated gross revenues of $10 million annually, if finalized and fully utilized, broken out by category as follows: General category: $6.5 million (555.7 mt * $5.30/lb); Harpoon category: $526,326 (46 mt * $5.19/lb); Purse Seine category: $1.5 million (219.5 mt * $3.21/lb); Longline category: $1.4 million (163.6 mt * $3.99/lb); and Trap category: $10,556 (1.2 mt * $3.99/lb).

    No affected entities would be expected to experience negative, direct economic impacts as a result of this action. On the contrary, each of the BFT quota categories would increase relative to the baseline quotas that applied in 2015 through 2017. To the extent that Purse Seine fishery participants and IBQ participants could receive additional quota as a result of the Amendment 7-implemented allocation formulas being applied to increases in available Purse Seine and Longline category quota, those participants would receive varying amounts of an increase, which would result in direct benefits from either increased fishing opportunities or quota leasing.

    The FRFA assumes that each vessel will have similar catch and gross revenues to show the relative impact of the final action on vessels. To estimate potential average ex-vessel revenues that could result from this action for BFT, NMFS divided the potential annual gross revenues for the General, Harpoon, Purse Seine, and Trap category by the number of permit holders. For the Longline category, NMFS divided the potential annual gross revenues by the number of IBQ share recipients. This is an appropriate approach for BFT fisheries, in particular, because available landings data (weight and ex-vessel value of the fish in price-per-pound) allow NMFS to calculate the gross revenue earned by a fishery participant on a successful trip. The available data (particularly from non-Longline participants) do not, however, allow NMFS to calculate the effort and cost associated with each successful trip (e.g., the cost of gas, bait, ice, etc.), so net revenue for each participant cannot be calculated. As a result, NMFS analyzed the average impact of the alternatives among all participants in each category.

    Success rates vary widely across participants in each category (due to the extent of vessel effort and availability of commercial-sized BFT to participants where they fish), but for the sake of estimating potential revenues per vessel, category-wide revenues can be divided by the number of permitted vessels in each category. For the Longline fishery, actual revenues would depend, in part, on each vessel's IBQ in 2018. It is unknown what portion of HMS Charter/Headboat permit holders actively participate in the BFT fishery. HMS Charter/Headboat vessels may fish commercially under the General category quota and retention limits. Therefore, NMFS is estimating potential General category ex-vessel revenue changes using the number of General category vessels only.

    Estimated potential 2018 revenues on a per vessel basis, considering the number of permit holders listed above and the subquotas, could be $2,409 for the General category; $47,848 for the Harpoon category; $310,670 for the Purse Seine category; $10,582 for the Longline category, using the 136 IBQ share recipients; and $10,556 for the Trap category. Thus, all of the entities affected by this rule are considered to be small entities for the purposes of the RFA.

    Consistent with the codified BFT quota regulations at § 635.27(a)(4)(v), NMFS will continue to annually calculate the quota available to historical Purse Seine fishery participants and reallocate the remaining Purse Seine category quota to the Reserve category. NMFS is further adjusting those amounts consistent with the annual U.S. baseline BFT quota in this final rule. The analyses in this FRFA are limited to the final baseline subquotas.

    Because the directed commercial categories have underharvested their subquotas in recent years, the potential increases in ex-vessel revenues above may overestimate the probable economic impacts to those categories relative to recent conditions. Additionally, there has been substantial interannual variability in ex-vessel revenues in each category in recent years, due to recent changes in BFT availability and other factors.

    The 2017 NALB ICCAT recommendation increased the annual U.S. baseline NALB quota for 2018, 2019, and 2020 to 632.4 mt. Based on knowledge of current participants in the fishery and estimated gross revenues, NMFS considers all of the entities affected by the NALB quota action be small entities for the purposes of the RFA.

    NMFS does not subdivide the U.S. NALB quota into category subquotas. The most recent ex-vessel average price per pound information is used to estimate potential ex-vessel gross revenues. The baseline subquotas could result in estimated gross revenues of $1.8 million annually, if finalized and fully utilized ((632.4 mt/1.25) * $1.63/lb dw). No affected entities would be expected to experience negative, direct economic impacts as a result of this action.

    The change to the regulatory text concerning Atlantic bigeye and yellowfin tuna size limits applies to all fishery participants but is not expected to have significant economic impacts. This is because damage to caught bigeye and yellowfin tuna through predation by sharks and other marine species is rare, and the change to the regulatory text is not expected to result in significant changes to Atlantic tunas fishery operations.

    Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a statement published online serves as the small entity compliance guide, and a listserv notice containing the web address will be sent to HMS News subscribers. Copies of this final rule and the guide are available upon request (see ADDRESSES).

    List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: October 3, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 635 is amended as follows:

    PART 635-ATLANTIC HIGHLY MIGRATORY SPECIES 1. The authority citation for part 635 continues to read as follows: Authority:

    16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

    2. In § 635.20, revise paragraph (c)(3) to read as follows:
    § 635.20 Size limits.

    (c) * * *

    (3) No person aboard a vessel shall remove the head of a bigeye tuna or yellowfin tuna if the remaining portion would be less than 27 inches (69 cm) from the fork of the tail to the forward edge of the cut. A bigeye or yellowfin tuna that is damaged through predation by sharks or other marine species may be retained, possessed, or landed only if the length of the remainder of the fish is equal to or greater than 27 inches (69 cm). No person shall cut or otherwise alter the predation-damaged area in any manner.

    3. In § 635.27, revise paragraphs (a) introductory text, (a)(1)(i), (a)(2) and (3), (a)(4)(i), (a)(5) and (6), (a)(7)(i) and (ii), (a)(10)(iii), and (e)(1) to read as follows:
    § 635.27 Quotas.

    (a) Bluefin tuna. Consistent with ICCAT recommendations, and with paragraph (a)(10)(iv) of this section, NMFS may subtract the most recent, complete, and available estimate of dead discards from the annual U.S. bluefin tuna quota, and make the remainder available to be retained, possessed, or landed by persons and vessels subject to U.S. jurisdiction. The remaining baseline annual U.S. bluefin tuna quota will be allocated among the General, Angling, Harpoon, Purse Seine, Longline, Trap, and Reserve categories, as described in this section. Bluefin tuna quotas are specified in whole weight. The baseline annual U.S. bluefin tuna quota is 1,247.86 mt, not including an additional annual 25-mt allocation provided in paragraph (a)(3) of this section. The bluefin quota for the quota categories is calculated through the following process. First, 68 mt is subtracted from the baseline annual U.S. bluefin tuna quota and allocated to the Longline category quota. Second, the remaining quota is divided among the categories according to the following percentages: General—47.1 percent (555.7 mt); Angling—19.7 percent (232.4 mt), which includes the school bluefin tuna held in reserve as described under paragraph (a)(7)(ii) of this section; Harpoon—3.9 percent (46 mt); Purse Seine—18.6 percent (219.5 mt); Longline—8.1 percent (95.6) plus the 68-mt allocation (i.e., 163.6 mt total not including the 25-mt allocation from paragraph (a)(3)); Trap—0.1 percent (1.2 mt); and Reserve—2.5 percent (29.5 mt). NMFS may make inseason and annual adjustments to quotas as specified in paragraphs (a)(9) and (10) of this section, including quota adjustments as a result of the annual reallocation of Purse Seine quota described under paragraph (a)(4)(v) of this section.

    (1) * * *

    (i) Catches from vessels for which General category Atlantic Tunas permits have been issued and certain catches from vessels for which an HMS Charter/Headboat permit has been issued are counted against the General category quota in accordance with § 635.23(c)(3). Pursuant to paragraph (a) of this section, the amount of large medium and giant bluefin tuna that may be caught, retained, possessed, landed, or sold under the General category quota is 555.7 mt, and is apportioned as follows, unless modified as described under paragraph (a)(1)(ii) of this section:

    (A) January 1 through the effective date of a closure notice filed by NMFS announcing that the January subquota is reached, or projected to be reached under § 635.28(a)(1), or through March 31, whichever comes first—5.3 percent (29.5 mt);

    (B) June 1 through August 31—50 percent (277.9 mt);

    (C) September 1 through September 30—26.5 percent (147.3 mt);

    (D) October 1 through November 30—13 percent (72.2 mt); and

    (E) December 1 through December 31—5.2 percent (28.9 mt).

    (2) Angling category quota. In accordance with the framework procedures of the Consolidated HMS FMP, prior to each fishing year, or as early as feasible, NMFS will establish the Angling category daily retention limits. In accordance with paragraph (a) of this section, the total amount of bluefin tuna that may be caught, retained, possessed, and landed by anglers aboard vessels for which an HMS Angling permit or an HMS Charter/Headboat permit has been issued is 232.4 mt. No more than 2.3 percent (5.3 mt) of the annual Angling category quota may be large medium or giant bluefin tuna. In addition, no more than 10 percent of the annual U.S. bluefin tuna quota, inclusive of the allocation specified in paragraph (a)(3) of this section, may be school bluefin tuna (i.e., 127.3 mt). The Angling category quota includes the amount of school bluefin tuna held in reserve under paragraph (a)(7)(ii) of this section. The size class subquotas for bluefin tuna are further subdivided as follows:

    (i) After adjustment for the school bluefin tuna quota held in reserve (under paragraph (a)(7)(ii) of this section), 52.8 percent (54.8 mt) of the school bluefin tuna Angling category quota may be caught, retained, possessed, or landed south of 39°18′ N lat. The remaining school bluefin tuna Angling category quota (49 mt) may be caught, retained, possessed or landed north of 39°18′ N lat.

    (ii) An amount equal to 52.8 percent (52.7 mt) of the large school/small medium bluefin tuna Angling category quota may be caught, retained, possessed, or landed south of 39°18′ N lat. The remaining large school/small medium bluefin tuna Angling category quota (47.1 mt) may be caught, retained, possessed or landed north of 39°18′ N lat.

    (iii) One third (1.8 mt) of the large medium and giant bluefin tuna Angling category quota may be caught retained, possessed, or landed, in each of the three following geographic areas: North of 39°18′ N lat.; south of 39°18′ N lat., and outside of the Gulf of Mexico; and in the Gulf of Mexico. For the purposes of this section, the Gulf of Mexico region includes all waters of the U.S. EEZ west and north of the boundary stipulated at 50 CFR 600.105(c).

    (3) Longline category quota. Pursuant to paragraph (a) of this section, the total amount of large medium and giant bluefin tuna that may be caught, discarded dead, or retained, possessed, or landed by vessels that possess Atlantic Tunas Longline category permits is 163.6 mt. In addition, 25 mt shall be allocated for incidental catch by pelagic longline vessels fishing in the Northeast Distant gear restricted area, and subject to the restrictions under § 635.15(b)(8).

    (4) * * *

    (i) Baseline Purse Seine quota. Pursuant to paragraph (a) of this section, the baseline amount of large medium and giant bluefin tuna that may be caught, retained, possessed, or landed by vessels that possess Atlantic Tunas Purse Seine category permits is 219.5 mt, unless adjusted as a result of inseason and/or annual adjustments to quotas as specified in paragraphs (a)(9) and (10) of this section; or adjusted (prior to allocation to individual participants) based on the previous year's catch as described under paragraph (a)(4)(v) of this section. Annually, NMFS will make a determination when the Purse Seine fishery will start, based on variations in seasonal distribution, abundance or migration patterns of bluefin tuna, cumulative and projected landings in other commercial fishing categories, the potential for gear conflicts on the fishing grounds, or market impacts due to oversupply. NMFS will start the bluefin tuna purse seine season between June 1 and August 15, by filing an action with the Office of the Federal Register, and notifying the public. The Purse Seine category fishery closes on December 31 of each year.

    (5) Harpoon category quota. The total amount of large medium and giant bluefin tuna that may be caught, retained, possessed, landed, or sold by vessels that possess Harpoon category Atlantic Tunas permits is 46 mt. The Harpoon category fishery commences on June 1 of each year, and closes on November 15 of each year.

    (6) Trap category quota. The total amount of large medium and giant bluefin tuna that may be caught, retained, possessed, or landed by vessels that possess Trap category Atlantic Tunas permits is 1.2 mt.

    (7) * * *

    (i) The total amount of bluefin tuna that is held in reserve for inseason or annual adjustments and research using quota or subquotas is 29.5 mt, which may be augmented by allowable underharvest from the previous year, or annual reallocation of Purse Seine category quota as described under paragraph (a)(4)(v) of this section. Consistent with paragraphs (a)(8) through (10) of this section, NMFS may allocate any portion of the Reserve category quota for inseason or annual adjustments to any fishing category quota.

    (ii) The total amount of school bluefin tuna that is held in reserve for inseason or annual adjustments and fishery-independent research is 18.5 percent (23.5 mt) of the total school bluefin tuna Angling category quota as described under paragraph (a)(2) of this section. This amount is in addition to the amounts specified in paragraph (a)(7)(i) of this section. Consistent with paragraph (a)(8) of this section, NMFS may allocate any portion of the school bluefin tuna Angling category quota held in reserve for inseason or annual adjustments to the Angling category.

    (10) * * *

    (iii) Regardless of the estimated landings in any year, NMFS may adjust the annual school bluefin tuna quota to ensure compliance with the ICCAT-recommended procedures for addressing overharvest of school bluefin tuna.

    (e) * * *

    (1) Annual quota. Consistent with ICCAT recommendations and domestic management objectives, the total baseline annual fishery quota is 632.4 mt ww. The total quota, after any adjustments made per paragraph (e)(2) of this section, is the fishing year's total amount of northern albacore tuna that may be landed by persons and vessels subject to U.S. jurisdiction.

    [FR Doc. 2018-22034 Filed 10-10-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 170816769-8162-02] RIN 0648-XG529 Fisheries of the Exclusive Economic Zone Off Alaska; Pollock in Statistical Area 620 in the Gulf of Alaska AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is prohibiting directed fishing for pollock in Statistical Area 620 in the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2018 total allowable catch of pollock for Statistical Area 620 in the GOA.

    DATES:

    Effective 1200 hours, Alaska local time (A.l.t.), October 6, 2018, through 2400 hours, A.l.t., December 31, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Josh Keaton, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

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

    The 2018 total allowable catch (TAC) of pollock in Statistical Area 620 of the GOA is 79,938 metric tons (mt) as established by the final 2018 and 2019 harvest specifications for groundfish in the GOA (83 FR 8768, March 1, 2018) and one in-season adjustment (83 FR 42609, August 23, 2018).

    In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the 2018 TAC of pollock in Statistical Area 620 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 79,838 mt and is setting aside the remaining 100 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 620 of the GOA.

    While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for pollock in Statistical Area 620 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 4, 2018.

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

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

    Authority:

    16 U.S.C. 1801 et seq.

    Margo B. Schulze-Haugen, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-22141 Filed 10-5-18; 4:15 pm] BILLING CODE 3510-22-P
    83 197 Thursday, October 11, 2018 Proposed Rules SOCIAL SECURITY ADMINISTRATION 20 CFR Parts 404, 408 and 416 [Docket No. SSA-2015-0006] RIN 0960-AH78 Prohibiting Persons With Certain Criminal Convictions From Serving as Representative Payees AGENCY:

    Social Security Administration.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    We propose to amend our regulations to prohibit persons convicted of certain crimes from serving as representative payees under the Social Security Act (Act). We are proposing these revisions because of changes to the Act made by the Strengthening Protections for Social Security Beneficiaries Act of 2018.

    DATES:

    Send comments on or before November 13, 2018.

    ADDRESSES:

    You may submit comments by any one of three methods—internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2015-0006, so that we may associate your comments with the correct regulation.

    Caution: You should be careful to include in your comments only information that you wish to make publicly available. We strongly urge you not to include in your comments any personal information, such as Social Security numbers or medical information.

    1. Internet: We strongly recommend that you submit your comments via the internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Search function to find docket number SSA-2015-0006. The system will issue a tracking number to confirm your submission. You will not be able to view your comment immediately because we must post each comment manually. It may take up to a week for your comment to be viewable.

    2. Fax: Fax comments to (410) 966-2830.

    3. Mail: Address your comments to the Office of Regulations and Reports Clearance, Social Security Administration, 3100 West High Rise, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.

    Comments are available for public viewing on the Federal eRulemaking portal at http://www.regulations.gov or in person, during regular business hours, by arranging with the contact person identified below.

    FOR FURTHER INFORMATION CONTACT:

    Kevin Salamone, Office of Income Security Programs, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 966-0854. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our internet site, Social Security Online, at http://www.socialsecurity.gov.

    SUPPLEMENTARY INFORMATION:

    Background

    Social Security's Representative Payment Program provides benefit payment management for our beneficiaries who are incapable of managing their Social Security or Supplemental Security Income (SSI) payments or directing another person to manage those payments due to a mental or physical impairment. Generally, if a beneficiary or recipient is under age 18, we will pay benefits to a representative payee; in certain situations, we make direct payments to a beneficiary under age 18 who shows the ability to manage the benefits. In cases where the beneficiary or recipient is 18 years or older, we select a representative payee if we believe that payment of benefits through a representative payee, rather than direct payment to the beneficiary, will better serve the beneficiary's interest. A representative payee may be an organization, such as a social service agency, or a person, such as a parent, relative, or friend of the beneficiary. We require a representative payee to use benefits in the beneficiary's best interest and, with certain exceptions, to report expenditures to us to ensure the representative payee is using funds appropriately.1

    1 Payees may receive an annual Representative Payee Report to account for the benefit payments received. Due to Public Law 115-165, 132 Stat. 1257, we no longer require the following payees to complete an annual Representative Payee Report: (1) Natural or adoptive parents of a minor child beneficiary who primarily reside in the same household as the child; (2) Legal guardians of a minor child beneficiary who primarily reside in the same household as the child; (3) Natural or adoptive parents of a disabled adult beneficiary who primarily reside in the same household with the beneficiary; and (4) Spouse of a beneficiary.

    When a person or an organization requests to serve as a representative payee, we investigate the potential representative payee to help ensure that the person or organization will perform the duties of a representative payee responsibly. We look at factors such as the potential representative payee's relationship to the beneficiary, any past performance as a representative payee for other beneficiaries, and any criminal history.

    On April 13, 2018, the President signed into law the Strengthening Protections for Social Security Beneficiaries Act of 2018.2 Section 202 of this law codifies our current policy, implemented in February 2014, to conduct criminal background checks on representative payee applicants and prohibit the selection of certain representative payee applicants who have a felony conviction of committing, attempting, or conspiring to commit certain crimes. In addition, the legislation requires that we conduct criminal background checks on all currently serving representative payees who do not meet one of the exceptions set out in the law, and continue to do so at least once every five years.3

    2 Public Law 115-165, 132 Stat. 1257.

    3 We may not apply these prohibitions as an absolute bar to serving as a representative payee if the representative payee applicant is the custodial parent of the minor child beneficiary, custodial parent of a beneficiary who is under a disability which began before the beneficiary attained age 22, custodial spouse of the beneficiary, custodial grandparent of the minor child beneficiary, custodial court-appointed guardian of the beneficiary, parent who was previously the representative payee for his or her minor child who since turned age 18 and continued to be eligible for benefits; or if the representative payee applicant received a Presidential or gubernatorial pardon for the conviction.

    In order to conform our regulations to the new law, we propose, in §§ 404.2020(f) and 416.620(f), to consider the potential representative payee's criminal history when we determine if we should select the individual to serve as a representative payee. As part of our consideration, we will conduct a criminal background check on the representative payee applicant, and if we select the applicant as representative payee, we will conduct a criminal background check at least once every five years as provided in proposed §§ 404.2026, 408.626 (by cross reference), and 416.626.

    We also propose to add a new paragraph to current §§ 404.2022 and 416.622 of our regulations to reflect the felony prohibitions in the legislation. This new paragraph will explain that we are prohibited from selecting representative payee applicants with a felony conviction of: (1) Human trafficking, (2) false imprisonment, (3) kidnapping, (4) rape and sexual assault, (5) first-degree homicide, (6) robbery, (7) fraud to obtain access to government assistance, (8) fraud by scheme, (9) theft of government funds or property, (10) abuse or neglect, (11) forgery, or (12) identity theft.4 As further provided in proposed §§ 404.2022(f) and 416.622(f), we will also prohibit the selection of a representative payee applicant with a felony conviction of an attempt to commit any of these crimes or conspiracy to commit any of these crimes.

    4 We recognize that under the laws of the various States, there may be slight differences in the terminology each State uses to identify and define each of the specified crimes. When we finalize these rules, we will provide our adjudicators with State-specific lists of what constitutes the specified crimes.

    We will also apply the background check and prohibitions to representative payee applicants under the Special Veterans Benefits program established by title VIII of the Act and part 408 of our rules. When we consider who may serve as a representative payee under the rules in part 408, we apply the title II rules that we propose to amend here, so those revisions will also apply to representative payee applicants under the Special Veterans Benefits program.5

    5See 20 CFR 408.620 (applying the rules in 20 CFR 404.2020 to the title VIII program); 20 CFR 408.622 (applying the rules in 20 CFR 404.2022 to the title VIII program); 20 CFR 408.624 (applying the rules in 20 CFR 404.2024 to the title VIII program); and 20 CFR 408.625 (applying the rules in 20 CFR 404.2025 to the title VIII program).

    Consistent with our current policy, we are not proposing to apply these prohibitions as an absolute bar to selection for certain representative payee applicants. Instead, we will consider the criminal history of the applicant along with our other evaluation criteria 6 to decide whether to appoint the applicant as a representative payee.

    6 We consider the following information when selecting an applicant to be a representative payee: (a) The relationship of the applicant to the beneficiary; (b) the amount of interest that the applicant shows in the beneficiary, (c) any legal authority the applicant has to act on behalf of the beneficiary; (d) whether the applicant has custody of the beneficiary; and (e) whether the applicant is in a position to know of and look after the needs of the beneficiary. 20 CFR 404.2020 and 416.620.

    Consistent with the new law, we will not apply the criminal prohibitions as an absolute bar if the representative payee applicant is: The custodial parent of the minor child beneficiary the representative payee applicant seeks to serve; the custodial parent of the disabled beneficiary the representative payee applicant seeks to serve if the beneficiary's disability began before the beneficiary attained age 22; the custodial spouse, custodial grandparent of a minor child, or custodial court-appointed legal guardian of the beneficiary the representative payee applicant seeks to serve (§§ 404.2022(f) and 416.622(f)). We also will not apply the prohibitions as an absolute bar if the representative payee applicant is the parent who was previously the representative payee for his or her minor child who since turned age 18 and continued to be eligible for benefits. (§§ 404.2022(f)(1) and 416.622(f)(1)). Finally, we will not apply the prohibitions as an absolute bar if the representative payee applicant received a Presidential or gubernatorial pardon for the conviction. (§§ 404.2022(f)(3) and 416.622(f)(3)). Instead, we will include the criminal information in our consideration of the best interests of the recipient or beneficiary when we determine whether to select an applicant to serve as a representative payee.

    We are also correcting an incorrect cross reference in §§ 404.2024(a)(9) and 416.624(a)(9) to §§ 404.2022(e) and 416.622(e) respectively.

    Regulatory Procedures Executive Order 12866 as Supplemented by Executive Order 13563

    We consulted with OMB and determined that this proposed rule meets the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Thus, OMB reviewed the proposed rule.

    Executive Order 13771

    This proposed rule is not subject to the requirements of Executive Order 13771 because it is administrative in nature and results in no more than de minimis costs.

    Regulatory Flexibility Act

    We certify that this proposed rule will not have a significant economic impact on a substantial number of small entities because it affects only individuals. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

    Paperwork Reduction Act

    These rules do not create any new or affect any existing collections and, therefore, do not require Office of Management and Budget approval under the Paperwork Reduction Act.

    What is our authority to make rules and set procedures for determining whether a person is disabled under the statutory definition?

    The Act authorizes us to make rules and regulations and to establish necessary and appropriate procedures to implement them.7

    7 Sections 205(a), 702(a)(5), and 1631(d)(1).

    (Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security—Disability Insurance; 96.002, Social Security—Retirement Insurance; 96.004, Social Security—Survivors Insurance; 96.006, Supplemental Security Income; and 96.020—Special Benefits for Certain World War II Veterans) List of Subjects 20 CFR Part 404

    Administrative practice and procedure, Aged, Blind, Disability benefits, Disability insurance, Old-age, Survivors, Reporting and recordkeeping requirements, Social security.

    20 CFR Part 408

    Administrative practice and procedure, Aged, Reporting and recordkeeping requirements, Social security, Supplemental Security Income (SSI), Veterans.

    20 CFR Part 416

    Administrative practice and procedure, Aged, Blind, Disability benefits, Public assistance programs, Reporting and recordkeeping requirements, Supplemental Security Income (SSI).

    Nancy A. Berryhill, Acting Commissioner of Social Security.

    For the reasons stated in the preamble, we propose to amend 20 CFR chapter III, parts 404, 408, and 416 as set forth below:

    PART 404—FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950-) Subpart U—Representative Payment 1. The authority citation for subpart U of part 404 continues to read as follows: Authority:

    Secs. 205(a), (j), and (k), and 702(a)(5) of the Social Security Act (42 U.S.C. 405(a), (j), and (k), and 902(a)(5)).

    2. Amend § 404.2020 by revising paragraphs (d) and (e) and adding paragraph (f) to read as follows:
    § 404.2020 Information considered in selecting a representative payee.

    (d) Whether the potential payee has custody of the beneficiary;

    (e) Whether the potential payee is in a position to know of and look after the needs of the beneficiary; and

    (f) The potential payee's criminal history.

    3. Amend § 404.2022 by adding paragraph (f) to read as follows:
    § 404.2022 Who may not serve as a representative payee?

    (f) Was convicted under Federal or State law of a felony for: Human trafficking, false imprisonment, kidnapping, rape or sexual assault, first-degree homicide, robbery, fraud to obtain access to government assistance, fraud by scheme, theft of government funds or property, abuse or neglect, forgery, or identity theft or identity fraud. We will also apply this provision to a representative payee applicant with a felony conviction of an attempt to commit any of these crimes or conspiracy to commit any of these crimes.

    (1) If the representative payee applicant is the custodial parent of a minor child beneficiary, custodial parent of a beneficiary who is under a disability which began before the beneficiary attained the age of 22, custodial spouse of a beneficiary, custodial court-appointed guardian of a beneficiary, or custodial grandparent of the minor child beneficiary for whom the applicant is applying to serve as representative payee, we will not consider the conviction for one of the crimes, or of attempt or conspiracy to commit one of the crimes, listed in this paragraph, by itself, to prohibit the applicant from serving as a representative payee. We will consider the criminal history of an applicant in this category, along with the factors in paragraphs (a) through (e) of this section, when we decide whether it is in the best interest of the individual entitled to benefits to appoint the applicant as a representative payee.

    (2) If the representative payee applicant is the parent who was previously the representative payee for his or her minor child who has since turned age 18 and continues to be eligible for benefits, we will not consider the conviction for one of the crimes, or of attempt or conspiracy to commit one of the crimes, listed in this paragraph, by itself, to prohibit the applicant from serving as a representative payee for that beneficiary. We will consider the criminal history of an applicant in this category, along with the factors in paragraphs (a) through (e) of this section, when we decide whether it is in the best interest of the individual entitled to benefits to appoint the applicant as a representative payee.

    (3) If the representative payee applicant received a Presidential or gubernatorial pardon for the relevant conviction, we will not consider the conviction for one of the crimes, or of attempt or conspiracy to commit one of the crimes, listed in this paragraph, by itself, to prohibit the applicant from serving as a representative payee. We will consider the criminal history of an applicant in this category, along with the factors in paragraphs (a) through (e) of this section, when we decide whether it is in the best interest of the individual entitled to benefits to appoint the applicant as a representative payee.

    4. Amend § 404.2024 by revising paragraph (a)(9) and adding paragraph (a)(10) to read as follows:
    § 404.2024 How do we investigate a representative payee applicant?

    (a) * * *

    (9) Determine whether the payee applicant is a creditor of the beneficiary (see § 404.2022(e)).

    (10) Conduct a criminal background check on the payee applicant.

    5. Add § 404.2026 to read as follows:
    § 404.2026 How do we investigate an appointed representative payee?

    After we select an individual or organization to act as your representative payee, we will conduct a criminal background check on the appointed representative payee at least once every 5 years.

    PART 408—SPECIAL BENEFITS FOR CERTAIN WORLD WAR II VETERANS Subpart F—Representative Payment 6. The authority citation for subpart F of part 408 continues to read as follows: Authority:

    Secs. 702(a)(5), 807, and 810 of the Social Security Act (42 U.S.C. 902(a)(5), 1007, and 1010).

    7. Add § 408.626 to read as follows:
    § 408.626 How do we investigate an appointed representative payee?

    After we select an individual or organization as your representative payee, we investigate him or her following the rules in § 404.2026 of this chapter.

    PART 416—SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED Subpart F—Representative Payment 8. The authority citation for subpart F of part 416 continues to read as follows: Authority:

    Secs. 702(a)(5), 1631(a)(2) and (d)(1) of the Social Security Act (42 U.S.C. 902(a)(5) and 1383(a)(2) and (d)(1)).

    9. Amend § 416.620 by revising paragraphs (d) and (e) and adding paragraph (f) to read as follows:
    § 416.620 Information considered in selecting a representative payee.

    (d) Whether the potential payee has custody of the beneficiary;

    (e) Whether the potential payee is in a position to know of and look after the needs of the beneficiary; and

    (f) The potential payee's criminal history.

    10. Amend § 416.622 by adding paragraph (f) to read as follows:
    § 416.622 Who may not serve as a representative payee?

    (f) Was convicted under Federal or State law of a felony for: Human trafficking, false imprisonment, kidnapping, rape or sexual assault, first-degree homicide, robbery, fraud to obtain access to government assistance, fraud by scheme, theft of government funds or property, abuse or neglect, forgery, or identity theft or identity fraud. We will also apply this provision to a representative payee applicant with a felony conviction of an attempt to commit any of these crimes or conspiracy to commit any of these crimes.

    (1) If the representative payee applicant is the custodial parent of a minor child beneficiary, custodial parent of a beneficiary who is under a disability which began before the beneficiary attained the age of 22, custodial spouse of a beneficiary, custodial court-appointed guardian of a beneficiary, or custodial grandparent of the minor child beneficiary for whom the applicant is applying to serve as representative payee, we will not consider the conviction for one of the crimes, or of attempt or conspiracy to commit one of the crimes, listed in this paragraph, by itself, to prohibit the applicant from serving as a representative payee. We will consider the criminal history of an applicant in this category, along with the factors in paragraphs (a) through (e) of this section, when we decide whether it is in the best interest of the individual entitled to benefits to appoint the applicant as a representative payee.

    (2) If the representative payee applicant is the parent who was previously the representative payee for his or her minor child who has since turned age 18 and continues to be eligible for benefits, we will not consider the conviction for one of the crimes, or of attempt or conspiracy to commit one of the crimes, listed in this paragraph, by itself, to prohibit the applicant from serving as a representative payee for that beneficiary. We will consider the criminal history of an applicant in this category, along with the factors in paragraphs (a) through (e) of this section, when we decide whether it is in the best interest of the individual entitled to benefits to appoint the applicant as a representative payee.

    (3) If the representative payee applicant received a Presidential or gubernatorial pardon for the relevant conviction, we will not consider the conviction for one of the crimes, or of attempt or conspiracy to commit one of the crimes, listed in this paragraph (f), by itself, to prohibit the applicant from serving as a representative payee. We will consider the criminal history of an applicant in this category, along with the factors in paragraphs (a) through (e) of this section, when we decide whether it is in the best interest of the individual entitled to benefits to appoint the applicant as a representative payee.

    11. Amend § 416.624 by revising paragraph (a)(9) and adding paragraph (a)(10) to read as follows:
    § 416.624 How do we investigate a representative payee applicant?

    (a) * * *

    (9) Determine whether the payee applicant is a creditor of the beneficiary (see § 404.2022(e)) of this chapter.

    (10) Conduct a criminal background check on the payee applicant.

    12. Add § 416.626 to read as follows:
    § 416.626 How do we investigate an appointed representative payee?

    After we select an individual or organization to act as your representative payee, we will conduct a criminal background check on the appointed representative payee at least once every 5 years.

    [FR Doc. 2018-22168 Filed 10-10-18; 8:45 am] BILLING CODE 4191-02-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2018-0606; FRL-9984-85-Region 8] Approval and Promulgation of Air Quality Implementation Plans; Wyoming; Revisions to Regional Haze State Implementation Plan; Revisions to Regional Haze Federal Implementation Plan AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Wyoming on April 5, 2018, addressing regional haze. The revisions modify the sulfur dioxide (SO2) emissions reporting requirements for Laramie River Station Units 1 and 2. We are also proposing to revise the nitrogen oxides (NOX) best available retrofit technology (BART) emission limits for Laramie River Units 1-3 in the Federal Implementation Plan (FIP) for regional haze in Wyoming. The proposed revisions to the Wyoming regional haze FIP would also establish a SO2 emission limit averaged annually across both Laramie River Station Units 1 and 2. The EPA is proposing this action pursuant to section 110 of the Clean Air Act (CAA).

    DATES:

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

    Public Hearing: If anyone contacts us requesting a public hearing on or before October 26, 2018, we will hold a hearing. Additional information about the hearing, if requested, will be published in a subsequent Federal Register document. Contact Jaslyn Dobrahner at (303) 312-6252, or at [email protected], to request a hearing or to determine if a hearing will be held.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R08-OAR-2018-0606, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from www.regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www.epa.gov/dockets/commenting-epa-dockets.

    Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. The EPA requests that, if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Jaslyn Dobrahner, Air Program, EPA, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6252, [email protected].

    SUPPLEMENTARY INFORMATION:

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

    I. What action is the EPA proposing? II. Background A. Requirements of the Clean Air Act and the EPA's Regional Haze Rule B. Best Available Retrofit Technology (BART) C. BART Alternatives D. Reasonable Progress Requirements E. Consultation With Federal Land Managers (FLMs) F. Requirements for Regional Haze SIPs Submitted Under 40 CFR 51.309 G. Regulatory and Legal History of the 2014 Wyoming SIP and FIP III. Proposed FIP Revisions A. Background B. The BART Alternative C. The NOX Emission Limit for Laramie River Unit 1 IV. Proposed Action on Submitted SIP Revisions A. Background B. April 5, 2018 Submittal C. The EPA's Evaluation of the SO2 Emissions Reporting Amendments V. Clean Air Act Section 110(l) VI. Consultation With FLMs VII. The EPA's Proposed Action VIII. Incorporation by Reference IX. Statutory and Executive Order Reviews I. What action is the EPA proposing?

    On January 30, 2014, the EPA promulgated a final rule titled “Approval, Disapproval and Promulgation of Implementation Plans; State of Wyoming; Regional Haze State Implementation Plan; Federal Implementation Plan for Regional Haze” approving, in part, a regional haze SIP revision submitted by the State of Wyoming on January 12, 2011.1 In the final rule, the EPA also disapproved, in part, the Wyoming regional haze SIP, including the NOX BART emission limit of 0.21 lb/MMBtu (30-day rolling average) for Laramie River Units 1-3, and promulgated a FIP that imposed a NOX BART emission limit of 0.07 lb/MMBtu (30-day rolling average) for each of the three Laramie River Units, among other actions.

    1 79 FR 5032 (January 30, 2014).

    The EPA is proposing to revise the FIP per the terms of the settlement agreement and amendment described in Section II.G. to amend the NOX and SO2 emission limits for Laramie River. Specifically, the EPA is proposing to: (1) Revise the NOX emission limit and associated compliance date for Unit 1; (2) through the incorporation of a BART alternative, revise the NOX emission limits for Units 2 and 3, and the SO2 emission limit averaged annually across Units 1 and 2 along with the associated compliance dates; and (3) require selective catalytic reduction (SCR) on Unit 1 and selective non-catalytic reduction (SNCR) on Units 2 and 3. Although we are proposing to revise the Wyoming regional haze FIP, Wyoming may always submit a new regional haze SIP to the EPA for review and we would welcome such a submission. The CAA requires the EPA to act within 12 months on a SIP submittal that it determines to be complete. If Wyoming were to submit a SIP revision meeting the requirements of the CAA and the regional haze regulations, we would propose approval of the State's plan as expeditiously as practicable.

    The EPA is also proposing to approve SIP revisions submitted by the State of Wyoming on April 5, 2018, to amend the SO2 emissions reporting requirements for Laramie River Units 1 and 2. Specifically, the EPA is proposing to approve the SO2 emissions reporting requirements for Laramie River Units 1 and 2, which address how Basin Electric is required to calculate reportable SO2 emissions, when Basin Electric is required to use the revised SO2 emissions calculation method, and how the reported SO2 emissions will be used within the context of the SO2 emissions milestone inventory.

    II. Background A. Requirements of the Clean Air Act and the EPA's Regional Haze Rule

    In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes “as a national goal the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from manmade air pollution.” 2

    2 42 U.S.C. 7491(a). Areas designated as mandatory Class I Federal areas consist of national parks exceeding 6000 acres, wilderness areas and national memorial parks exceeding 5000 acres, and all international parks that were in existence on August 7, 1977. 42 U.S.C. 7472(a). In accordance with section 169A of the CAA, EPA, in consultation with the Department of Interior, promulgated a list of 156 areas where visibility is identified as an important value. 44 FR 69122 (November 30, 1979). The extent of a mandatory Class I area includes subsequent changes in boundaries, such as park expansions. 42 U.S.C. 7472(a). Although states and tribes may designate as Class I additional areas whose visibility they consider to be an important value, the requirements of the visibility program set forth in section 169A of the CAA apply only to “mandatory Class I Federal areas.” Each mandatory Class I Federal area is the responsibility of a “Federal Land Manager.” 42 U.S.C. 7602(i). When we use the term “Class I area” in this section, we mean a “mandatory Class I Federal area.”

    The EPA promulgated a rule to address regional haze on July 1, 1999.3 The Regional Haze Rule (RHR) revised the existing visibility regulations 4 to integrate provisions addressing regional haze and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 40 CFR 51.309, are included in the EPA's visibility protection regulations at 40 CFR 51.300 through 40 CFR 51.309. The EPA revised the RHR on January 10, 2017.5

    3 64 FR 35714, 35714 (July 1, 1999) (codified at 40 CFR part 51, subpart P).

    4 The EPA had previously promulgated regulations to address visibility impairment in Class I areas that is “reasonably attributable” to a single source or small group of sources, i.e., reasonably attributable visibility impairment (RAVI). 45 FR 80084, 80084 (December 2, 1980).

    5 82 FR 3078 (January 10, 2017).

    The CAA requires each state to develop a SIP to meet various air quality requirements, including protection of visibility.6 Regional haze SIPs must assure reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas. A state must submit its SIP and SIP revisions to the EPA for approval. Once approved, a SIP is enforceable by the EPA and citizens under the CAA; that is, the SIP is federally enforceable. If a state elects not to make a required SIP submittal, fails to make a required SIP submittal or if we find that a state's required submittal is incomplete or not approvable, then we must promulgate a FIP to fill this regulatory gap.7

    6 42 U.S.C. 7410(a), 7491, and 7492(a); CAA sections 110(a), 169A, and 169B.

    7 42 U.S.C. 7410(c)(1).

    B. Best Available Retrofit Technology (BART)

    Section 169A of the CAA directs states as part of their SIPs, or the EPA when developing a FIP in the absence of an approved regional haze SIP, to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires states' implementation plans to contain such measures as may be necessary to make reasonable progress toward the natural visibility goal, including a requirement that certain categories of existing major stationary sources built between 1962 and 1977 procure, install, and operate the “Best Available Retrofit Technology” as determined by the states through their SIPs, or as determined by the EPA when it promulgated a FIP. Under the RHR, states (or the EPA) are directed to conduct BART determinations for such “BART-eligible” sources that may reasonably be anticipated to cause or contribute to any visibility impairment in a Class I area. 8 Rather than requiring source-specific BART controls, states also have the flexibility to adopt an emissions trading program or other alternative program as long as the alternative provides greater reasonable progress towards improving visibility than BART.9

    8 40 CFR 51.308(e). The EPA designed the Guidelines for BART Determinations Under the Regional Haze Rule (Guidelines) 40 CFR appendix Y to part 51 “to help States and others (1) identify those sources that must comply with the BART requirement, and (2) determine the level of control technology that represents BART for each source.” Guidelines, Section I.A. Section II of the Guidelines describes the four steps to identify BART sources, and Section III explains how to identify BART sources (i.e., sources that are “subject to BART”).

    9 40 CFR 51.308(e)(2). WildEarth Guardians v. EPA, 770 F.3d 919 (10th Cir. 2014).

    C. BART Alternatives

    An alternative program to BART must meet requirements under 40 CFR 51.308(e)(2) and (e)(3). These requirements for alternative programs relate to the “better-than-BART” test and fundamental elements of any alternative program.

    In order to demonstrate that the alternative program achieves greater reasonable progress than source-specific BART, a state, or the EPA if developing a FIP, must demonstrate that its SIP meets the requirements in 40 CFR 51.308(e)(2)(i) through (v). The state or the EPA must conduct an analysis of the best system of continuous emission control technology available and the associated reductions for each source subject to BART covered by the alternative program, termed a “BART benchmark.” Where the alternative program has been designed to meet requirements other than BART, simplifying assumptions may be used to establish a BART benchmark.

    Pursuant to 40 CFR 51.308(e)(2)(i)(E), the state or the EPA, must also provide a determination that the alternative program achieves greater reasonable progress than BART under 40 CFR 51.308(e)(3) or otherwise based on the clear weight of evidence. 40 CFR 51.308(e)(3), in turn, provides specific tests applicable under specific circumstances for determining whether the alternative achieves greater reasonable progress than BART. If the distribution of emissions for the alternative program is not substantially different than for BART, and the alternative program results in greater emissions reductions, then the alternative program may be deemed to achieve greater reasonable progress. If the distribution of emissions is significantly different, the differences in visibility between BART and the alternative program, must be determined by conducting dispersion modeling for each impacted Class I area for the best and worst 20 percent of days. This modeling demonstrates “greater reasonable progress” if both of the two following criteria are met: (1) Visibility does not decline in any Class I area; and (2) there is overall improvement in visibility when comparing the average differences between BART and the alternative program across all the affected Class I areas. Alternatively, pursuant to 40 CFR 51.308(e)(2), states may show that the alternative achieves greater reasonable progress than the BART benchmark “based on the clear weight of evidence” determinations. Specific RHR requirements for alternative programs are discussed in more detail in Section III.10

    10 40 CFR 51.308(e)(2).

    Generally, a SIP or FIP addressing regional haze must include emission limits and compliance schedules for each source subject to BART. In addition to the RHR's requirements, general SIP requirements mandate that the SIP or FIP include all regulatory requirements related to monitoring, recordkeeping, and reporting for the alternative's enforceable requirements. See CAA section 110(a); 40 CFR part 51, subpart K.

    D. Reasonable Progress Requirements

    In addition to BART requirements, as mentioned previously, each regional haze SIP or FIP must contain measures as necessary to make reasonable progress towards the national visibility goal. Finally, the SIP or FIP must establish reasonable progress goals (RPGs) for each Class I area within the state for the plan implementation period (or “planning period”), based on the measures included in the long-term strategy.11 If an RPG provides for a slower rate of improvement in visibility than the rate under which the national goal of no anthropogenic visibility impact would be attained by 2064, the SIP or FIP must demonstrate, based on the four reasonable progress factors, why that faster rate is not reasonable and the slower rate provided for by the SIP or FIP's state-specific RPG is reasonable.12

    11 40 CFR 51.308(d).

    12 40 CFR 51.308(d)(1)(ii).

    E. Consultation With Federal Land Managers (FLMs)

    The RHR requires that a state, or the EPA if promulgating a FIP that fills a gap in the SIP with respect to this requirement, consult with FLMs before adopting and submitting a required SIP or SIP revision, or a required FIP or FIP revision.13 Further, the EPA, or state when considering a SIP revision, must include in its proposal a description of how it addressed any comments provided by the FLMs.

    13 40 CFR 51.308(i).

    F. Requirements for Regional Haze SIPs Submitted Under 40 CFR 51.309

    The EPA's RHR provides two paths to address regional haze. One is 40 CFR 51.308, requiring states to perform individual point source BART determinations and evaluate the need for other control strategies. The other method for addressing regional haze is through 40 CFR 51.309, and is an option for nine states termed the “Transport Region States,” which include: Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Utah and Wyoming. By meeting the requirements under 40 CFR 51.309, a Transport Region State can be deemed to be making reasonable progress toward the national goal of achieving natural visibility conditions for the 16 Class I areas on the Colorado Plateau.14

    14 The Colorado Plateau is a high, semi-arid tableland in southeast Utah, northern Arizona, northwest New Mexico, and western Colorado. The 16 mandatory Class I areas are: Grand Canyon National Park, Mount Baldy Wilderness, Petrified Forest National Park, Sycamore Canyon Wilderness, Black Canyon of the Gunnison National Park Wilderness, Flat Tops Wilderness, Maroon Bells Wilderness, Mesa Verde National Park, Weminuche Wilderness, West Elk Wilderness, San Pedro Park Wilderness, Arches National Park, Bryce Canyon National Park, Canyonlands National Park, Capital Reef National Park and Zion National Park.

    Section 309 requires those Transport Region States that choose to participate to adopt regional haze strategies that are based on recommendations from the Grand Canyon Visibility Transport Commission (GCVTC) for protecting the 16 Class I areas on the Colorado Plateau. The purpose of the GCVTC was to assess information about the adverse impacts on visibility in and around the 16 Class I areas on the Colorado Plateau and to provide policy recommendations to the EPA to address such impacts. The GCVTC determined that all Transport Region States could potentially impact the Class I areas on the Colorado Plateau. The GCVTC submitted a report to the EPA in 1996 for protecting visibility for the Class I areas on the Colorado Plateau, and the EPA codified these recommendations as an option available to states as part of the RHR.15

    15 64 FR 35714, 35749 (July 1, 1999).

    The EPA determined that the GCVTC strategies would provide for reasonable progress in mitigating regional haze if supplemented by an annex containing quantitative emission reduction milestones and provisions for a trading program or other alternative measure.16 In September 2000, the Western Regional Air Partnership (WRAP), which is the successor organization to the GCVTC, submitted an annex to EPA. The annex contained SO2 emissions reduction milestones and detailed provisions of a backstop trading program to be implemented automatically if voluntary measures failed to achieve the SO2 milestones. The EPA codified the annex on June 5, 2003 at 40 CFR 51.309(h).17

    16 64 FR 35714, 35749, 35756 (July 1, 1999).

    17 68 FR 33764, 33767 (June 5, 2003).

    Five western states, including Wyoming, submitted implementation plans under section 309 in 2003.18 The EPA was challenged by the Center for Energy and Economic Development (CEED) on the validity of the annex provisions. In CEED v. EPA, the D.C. Circuit Court of Appeals vacated the EPA approval of the WRAP annex.19 In response to the court's decision, the EPA vacated the annex requirements adopted under 40 CFR 51.309(h), but left in place the stationary source requirements in 40 CFR 51.309(d)(4).20 The requirements under 40 CFR 51.309(d)(4) contain general requirements pertaining to stationary sources and market trading, and allow states to adopt alternatives to the point source application of BART.

    18 Five states—Arizona, New Mexico, Oregon, Utah and Wyoming—and Albuquerque-Bernalillo County, New Mexico, initially exercised this option by submitting plans to the EPA in December 2003. Oregon elected to cease participation in 2006, and Arizona elected to cease participation in 2010.

    19Ctr. for Energy & Econ. Dev. v. EPA, 398 F.3d 653, 654 (D.C. Cir. 2005).

    20 71 FR 60612 (October 13, 2006).

    Thus, rather than requiring source-specific BART controls as explained previously in Section II.B., states have the flexibility to adopt an emissions trading program or other alternative program if the alternative provides greater reasonable progress than would be achieved by the application of BART pursuant to 40 CFR 51.308(e)(2). Under 40 CFR 51.309, states can satisfy the SO2 BART requirements by adopting SO2 emissions milestones and a backstop trading program. Under this approach, states must establish declining SO2 emissions milestones for each year of the program through 2018. The milestones must be consistent with the GCVTC's goal of 50 to 70 percent reduction in SO2 emissions by 2040. The backstop trading program would be implemented if a milestone is exceeded and the program is triggered.21

    21 40 CFR 51.309(d)(4)(v).

    G. Regulatory and Legal History of the 2014 Wyoming SIP and FIP

    On January 30, 2014, the EPA promulgated a final rule titled “Approval, Disapproval and Promulgation of Implementation Plans; State of Wyoming; Regional Haze State Implementation Plan; Federal Implementation Plan for Regional Haze” approving, in part, a regional haze SIP revision submitted by the State of Wyoming on January 12, 2011.22 In the final rule, the EPA also disapproved, in part, the Wyoming regional haze SIP, including the SIP NOX BART emission limit of 0.21 lb/MMBtu (30-day rolling average) for each of the three Laramie River Units, and promulgated a FIP that imposed a NOX BART emission limit of 0.07 lb/MMBtu (30-day rolling average) at each of the three Laramie River Units, among other actions. The Laramie River Station is in Platte County, Wyoming, and is comprised of three 550 megawatt (MW) dry-bottom, wall-fired boilers (Units 1, 2, and 3) burning subbituminous coal for a total net generating capacity of 1,650 MW. All three units are within the statutory definition of BART-eligible units, were determined to be subject to BART by WY, approved in the SIP and are operated by, and owned in part by, Basin Electric Power Cooperative (Basin Electric).

    22 79 FR 5032 (January 30, 2014).

    Basin Electric, the State of Wyoming, and others challenged the final rule. Basin Electric challenged our action as it pertained to the NOX BART emission limits for Laramie River Units 1-3.23 After mediated discussions through the U.S. Court of Appeals for the Tenth Circuit's Mediation Office, Basin Electric, Wyoming and the EPA reached a settlement in 2017 that if fully implemented, would address all of Basin Electric's challenges to the 2014 final rule and Wyoming's challenges to the portion of the 2014 final rule establishing NOX BART emission limits for Laramie River Units 1-3.24 25

    23Basin Electric Cooperative v. EPA, No. 14-9533 (10th Cir. March 31, 2014) and Wyoming v. EPA, No. 14-9529 (10th Cir. March 28, 2014).

    24 81 FR 96450 (December 30, 2016).

    25 Letter from Eileen T. McDonough, U.S. Department of Justice, to Elizabeth Morrisseau, Wyoming Attorney General's Office, and Christina F. Gomez, Denise W. Kennedy, and Patrick R, Day, Holland & Hart LLC (notification that both EPA and the Department of Justice (DOJ) determined not to withdraw their consent to the Settlement Agreement) (April 24, 2017); Settlement Agreement between Basin Electric Power Cooperative, the State of Wyoming, and the EPA (April 24, 2017); First Amendment to Settlement Agreement (pursuant to Paragraph 15 of the Agreement, extended the deadline for EPA to determine whether to withdraw or consent to the Settlement Agreement in Paragraph 1 to May 3, 2017); Second Amendment to Settlement Agreement (pursuant to Paragraph 15 of the Agreement, amended the date in Paragraph 5.b.ii. for the SO2 emission limits for Laramie River Units 1 and 2 to commence December 31, 2018) (September 14, 2018).

    The settlement agreement requires the EPA to propose a FIP revision to include three major items:

    • First, an alternative (BART alternative) to the NOX BART emission limits in the EPA's 2014 FIP that includes:

    ○ NOX emission limits for Laramie River Units 2 and 3 of 0.15 lb/MMBtu (30-day rolling average) commencing December 31, 2018, with an interim limit of 0.18 lb/MMBtu (30-day rolling average) commencing the date that the EPA's final revised FIP becomes effective and ending December 31, 2018; and

    ○ a SO2 emission limit for Laramie River Units 1 and 2 of 0.12 lb/MMBtu (annual) averaged annually across the two units commencing December 31, 2018.

    • Second, a NOX BART emission limit for Laramie River Unit 1 of 0.06 lb/MMBtu on a 30-day rolling average commencing July 1, 2019, with an interim limit of 0.18 lb/MMBtu on a 30-day rolling average commencing the date that the EPA's final revised FIP becomes effective and ending June 30, 2019. These limits are voluntarily requested by Basin Electric.

    • Third, installation of SCR on Laramie River Unit 1 by July 1, 2019, (thereby revising the compliance date of the existing SIP) and installation of SNCR on Units 2 and 3 by December 30, 2018.

    In accordance with other terms of the 2017 settlement, Wyoming also submitted a SIP revision to the EPA on April 5, 2018, to revise the SO2 annual reporting requirements for Laramie River Units 1 and 2 as they pertain to the backstop trading program under 40 CFR 51.309. Specifically, Wyoming determined that Basin Electric must use SO2 emission rates of 0.159 lb/MMBtu for Laramie River Unit 1 and 0.162 lb/MMBtu for Laramie River Unit 2, and multiply those rates by the actual annual heat input during the year for each unit to calculate and report emissions under the SO2 backstop trading program. The revisions, as described in Section III., ensure that SO2 emissions reductions proposed under the 2017 settlement agreement are no longer counted as reductions under the backstop trading program.

    The EPA is required, per the 2017 settlement agreement, to sign a proposed rule no later than 6 months after receipt of Wyoming's SIP submittal.

    III. Proposed FIP Revisions A. Background

    In the 2011 submittal, Wyoming determined that emission limits for Laramie River Units 1-3 of 0.23 lb/MMBtu (30-day rolling average) each, reflecting installation of operation of new low NOX burners (LNB) with overfire air (OFA), were reasonable measures to satisfy the units NOX BART obligations. We disagreed with Wyoming that LNB with OFA was reasonable for NOX BART and subsequently finalized a FIP on January 30, 2014, with NOX BART emission limits of 0.07 lb/MMBtu (30-day rolling average) for each unit based on the installation and operation of new LNBs with OFA and SCR. The 2017 settlement agreement, described previously in Section II.G, established a deadline for the EPA to take specific actions related to the NOX emission limits established in the 2014 FIP for Laramie River Units 1-3 as well as new SO2 emission limits and emission control technologies requirements.

    B. The BART Alternative

    We are proposing to amend the 2014 FIP to replace the NOX BART requirements with a NOX BART alternative. Specifically, we are proposing to revise the NOX emission limits for Laramie River Units 2 and 3 and establish a SO2 emission limit for Units 1 and 2. We evaluate the NOX BART alternative against the regulatory BART alternative requirements found in 40 CFR 51.308(e)(2) of the regional haze regulations.

    The RHR establishes requirements for BART alternatives. Three of the requirements are of relevance to our evaluation of the BART alternative. We evaluate the proposed BART alternative to the NOX BART requirements in the EPA's 2014 FIP with respect to each of these following elements:

    • A demonstration that the emissions trading program or other BART alternative measure will achieve greater reasonable progress than would have resulted from the installation and operation of BART at all sources subject to BART in the state and covered by the BART alternative program.26

    26 40 CFR 51.308(e)(2)(i).

    • A requirement that all necessary emissions reductions take place during the period of the first long-term strategy for regional haze.27

    27 40 CFR 51.308(e)(2)(iii).

    • A demonstration that the emissions reductions resulting from the BART alternative measure will be surplus to those reductions resulting from the measures adopted to meet requirements of the CAA as of the baseline date of the SIP.28

    28 40 CFR 51.308(e)(2)(iv).

    1. Demonstration that the BART alternative measure will achieve greater reasonable progress.

    Pursuant to 40 CFR 51.308(e)(2)(i), we must demonstrate that the BART alternative measure will achieve greater reasonable progress than would have resulted from the installation and operation of BART at all sources subject to BART in the state and covered by the BART alternative program. For a source-specific BART alternative, the critical elements of this demonstration are:

    • A list of all BART-eligible sources within the state;

    • A list of all BART-eligible sources and all BART source categories covered by the BART alternative program;

    • An analysis of BART and associated emission reductions;

    • An analysis of projected emissions reductions achievable through the BART alternative; and

    • A determination that the BART alternative achieves greater reasonable progress than would be achieved through the installation and operation of BART.

    We summarize the proposed revisions to the 2014 FIP with respect to each of these elements and provide our evaluation in the proceeding sections.

    a. A list of all BART-eligible sources within the state.

    Table 1 shows a list of all the BART-eligible sources in the State of Wyoming.29

    29 77 FR 33029 (June 4, 2012).

    Table 1—Wyoming BART-Eligible Sources Company Facility PacifiCorp Jim Bridger. Basin Electric Laramie River. PacifiCorp Dave Johnston. PacifiCorp Naughton. PacifiCorp Wyodak. FMC Westvaco. General Chemical Green River. Black Hills Neil Simpson 1. Sinclair Sinclair Refinery. Sinclair Casper Refinery. FMC Granger. Dyno Nobel Dyno Nobel. OCI Wyoming OCI Wyoming. P4 Production P4 Production.

    b. A list of all BART-eligible sources and all BART source categories covered by the BART alternative program.

    Table 2 shows a list of all the BART-eligible sources covered by the BART alternative program along with the BART source category.

    Table 2—Wyoming Subject-to-BART Sources Covered by the BART Alternative Company Facility Subject-to-BART units Source category Basin Electric Laramie River Units 1-3 Electrical generating units.

    c. Analysis of BART and associated emission reductions

    Pursuant to 40 CFR 51.308(e)(2)(i)(C), the BART alternative must include an analysis of BART and associated emission reductions at Laramie River Units 1-3. As noted previously, the SIP and 2014 FIP each included BART analyses and determinations for Units 1-3. Since we disapproved Wyoming's BART NOX determinations for Laramie River Units 1-3, we conducted our own BART analysis and determination for NOX BART in the 2014 FIP.30 For the purposes of this evaluation, we consider NOX BART for Laramie River Units 1-3 to be the 2014 FIP BART determination summarized in Table 3.

    30 79 FR 5039 (January 30, 2014).

    Table 3—Summary of the EPA's Laramie River Units 1-3 NOX BART Analysis Unit Technology * Emission limit
  • (lb/MMBtu)
  • (30-day rolling average)
  • Emission
  • reduction
  • (tpy)
  • Unit 1 New LNBs with OFA and SCR 0.07 4,880 Unit 2 New LNBs with OFA and SCR 0.07 5,129 Unit 3 New LNBs with OFA and SCR 0.07 5,181 * The technology listed is the technology evaluated as BART, but sources can choose to use another technology or combination of technologies to meet established limits.

    As described previously, reductions in SO2 emissions were previously accounted for under the SO2 backstop trading program, per 40 CFR 51.309.

    d. Analysis of projected emissions reductions achievable through the BART alternative

    To determine the projected emissions reductions achievable through the BART alternative, the emissions are calculated using the same process explained in the 2014 FIP, whereby a percent reduction is applied to the Laramie River Units 1-3 baseline emissions. However, the actual percent reduction for the BART alternative is different than the 2014 FIP because the controlled rates are different between the 2014 FIP and BART alternative. The percent reduction, for both the BART alternative and the 2014 FIP, is calculated as the controlled annual emission rate (in units of lb/MMBtu) divided by the annual average emission rate (in units of lb/MMBtu) during the BART baseline period (2001-2003). In the BART alternative, the modeled controlled NOX annual emission rate for Unit 1, using SCR controls, is 0.04 lb/MMBtu (annual) based on the expected annual emission performance under a 0.06 lb/MMBtu emission limit (30-day rolling average). Likewise, the modeled controlled NOX annual emission rate for Units 2 and 3, using LNB with OFA and SNCR, is 0.128 lb/MMBtu based on the expected annual emission performance as calculated in the 2014 FIP under a 0.15 lb/MMBtu emission rate (30-day rolling average). The controlled SO2 annual emission rate for Units 1 and 2 is 0.115 lb/MMBtu (annual) for each unit based on the expected annual emission performance under a 0.12 lb/MMBtu emission limit (30-day rolling average).

    The controlled annual emissions rates are divided by the average emission rates during the BART baseline period (2001-2003) to calculate the percent reduction for each unit. The average emission rates during the BART baseline period for each unit are: 31

    31Laramie River Station Power Plant Visibility Impacts for Two Emissions Control Scenarios: Final Report. Prepared for Basin Electric, AECOM (May 2016). Data based on the information obtained from the EPA's Clean Air Markets Division (CAMD) database, available at: https://ampd.epa.gov/ampd/.

    • Unit 1: 0.2585 lb NOX/MMBtu; 0.159 lb SO2/MMBtu,

    • Unit 2: 0.2703 lb NOX/MMBtu; 0.162 lb SO2/MMBtu, and

    • Unit 3: 0.2669 lb NOX/MMBtu.

    The percent reduction for each unit is applied to the baseline emissions to determine the NOX and SO2 emission reductions associated with the BART alternative for Laramie River Units 1-3 (Table 4).

    Table 4—Summary of the EPA's Laramie River Units 1-3 BART Alternative Analysis Unit Technology NOX Emission limit (lb/MMBtu) (30-day rolling average) Emission
  • reduction
  • (tpy)
  • SO2 Emission limit (lb/MMBtu) (30-day rolling average) Emission
  • reduction
  • (tpy)
  • Unit 1 New LNBs with OFA and SCR 0.06 4,880 0.12 1,032 Unit 2 New LNBs with OFA and SNCR 0.15 3,342 0.12 1,091 Unit 3 New LNBs with OFA and SNCR 0.15 3,337 NA NA NA = not applicable.

    e. Determination that the BART alternative achieves greater reasonable progress than would be achieved through the installation and operation of BART.

    Pursuant to 40 CFR 51.308(e)(2)(i)(E), the FIP revision must provide a determination under 40 CFR 51.308(e)(3) or otherwise based on the clear weight of evidence that the BART alternative achieves greater reasonable progress than BART. Two different tests for determining whether the BART alternative achieves greater reasonable progress than BART are outlined in 40 CFR 51.308(e)(3). Under the first test, if the distribution of emissions is not substantially different than under BART, and the BART alternative measure results in greater emission reductions, then the BART alternative measure may be deemed to achieve greater reasonable progress. Under the second test, if the distribution of emissions is significantly different, then dispersion modeling must be conducted to determine differences between BART and the BART alternative for each impacted Class I area for the worst and best 20 percent days. The modeling results would demonstrate “greater reasonable progress” if both of the following criteria are met: (1) Visibility does not decline in any Class I area; and (2) there is an overall improvement in visibility, determined by comparing the average differences between BART and the BART alternative over all affected Class I areas. This modeling test is sometimes referred to as the “two-prong test.”

    For the proposed FIP revision, we determined that the BART alternative will not achieve greater emissions reductions than BART because, while the SO2 emission reductions for Units 1 and 2 (1,032 tons per year (tpy) and 1,091 tpy respectively under the BART alternative, compared to 0 tpy under BART) and NOX emission reduction for Unit 1 (5,179 tpy under the BART alternative compared to 4,880 tpy under BART) are greater under the BART alternative, the NOX emission reductions under the BART alternative are less for Units 2 and 3 (3,342 lb/MMBtu and 3,337 lb/MMBtu, respectively) than the NOX emission reductions under BART (5,129 lb/MMBtu and 5,181 lb/MMBtu, respectively). Therefore, we evaluated the results of modeling (using the Comprehensive Air Quality Model with Extensions (CAMx) model version 5.4132 ) performed by a contractor for Basin Electric, AECOM, to assess whether the BART alternative would result in “greater reasonable progress” under the two-prong test in 40 CFR 51.308(e)(3).33

    32 CAMx modeling software (http://www.camx.com/download/default.aspx) and User's Guide (http://www.camx.com/about/default.aspx) are available on these CAMx web pages.

    33Laramie River Station Power Plant Visibility Impacts for Two Emissions Control Scenarios: Final Report. Prepared for Basin Electric, AECOM (May 2016).

    CAMx has a scientifically current treatment of chemistry to simulate transformation of emissions into visibility-impairing particles of species such as ammonium nitrate and ammonium sulfate, and is often employed in large-scale modeling when many sources of pollution and/or long transport distances are involved. Photochemical grid models like CAMx include all emissions sources and have realistic representation of formation, transport, and removal processes of the particulate matter that causes visibility degradation. The use of the CAMx model for analyzing potential cumulative air quality impacts has been well established: The model has been used for previous visibility modeling studies in the U.S., including SIPs.34

    34 82 FR 46903 (October 10, 2017) (Final action for the Coronado Generating Station in the Regional Haze Plan for Arizona); 81 FR 296 (January 5, 2016) (Final action for Texas and Oklahoma Regional Haze Plans).

    The modeling followed a modeling protocol that was reviewed by the EPA.35 The starting point for assessing visibility impacts for different levels of emissions from Laramie River was the Three-State Air Quality Modeling Study (3SAQS) modeling platform that provides a framework for addressing air quality impacts in Colorado, Utah and Wyoming. The 3SAQS is a publicly available platform intended to facilitate air resources analyses.36 The 3SAQS developed a base year modeling platform using the year 2008 to leverage work completed during the West-wide Jump-start Air Quality modeling study (WestJump).37 For the Laramie River modeling, AECOM performed additional modeling to refine the modeling domain from the 3SAQS 12-kilometer (km) grid resolution to a finer 4-km grid resolution. The refined spatial resolution was used to more accurately simulate the concentration gradients of gas and particulate species in the plumes emitted from the source facilities. The AECOM modeling data sets used for this action are available in the docket.38 For the two-prong test, an existing projected 2020 emissions database was used to estimate emissions of sources within the modeling domains. The existing 2020 database was derived from the 3SAQS study, which projected emissions from 2008 to 2020. Since the BART alternative emissions reductions will not be fully in place until the end of 2018, the 2020 emissions projections are more representative of the air quality conditions that will be obtained while the BART alternative is being implemented than the 2008 database. In the three 2020 CAMx modeling scenarios, Laramie River emissions were modeled to represent the baseline, the BART 2014 FIP, and the proposed BART alternative as described in the proceeding section and Table 5.

    35Photochemical Modeling Protocol for the Visibility Assessment of Basin Electric Laramie River Power Plant. Prepared for Basin Electric, AECOM (September 2015). Draft Modeling Guidance for Demonstrating Attainment of Air Quality Goals for Ozone, PM 2.5 , and Regional Haze, EPA (December 3, 2014).

    36Three-State Air Quality Modeling Study CAMx Photochemical Grid Model Final Model Performance Evaluation. University of North Carolina and Environ (September 2014). http://views.cira.colostate.edu/wiki/Attachments/Modeling/3SAQS_Base08b_MPE_Final_30Sep2014.pdf.

    37https://www.wrapair2.org/WestJumpAQMS.aspx. Additional information on the WestJump study available in the docket for this action, “WestJump Fact Sheet.”

    38 CAMx modeling data available on hard disk in the docket.

    The CAMx-modeled concentrations for sulfur, nitrogen, and primary particulate matter (PM) were tracked using the CAMx Particulate Source Apportionment Technology (PSAT) tool 39 so that the concentrations and visibility impacts due to Laramie River could be separated out from those due to the total of all other modeled sources. AECOM computed visibility impairment due to Laramie River using the EPA's Modeled Attainment Test Software (MATS) tool which bias-corrects CAMx outputs to available measurements of PM species and uses the revised IMPROVE equation to calculate the 20 percent best and 20 percent worst days for visibility impacts.40

    39 PSAT is included in the CAMx modeling code and is described in the CAMx User's Guide available at: http://www.camx.com/download/default.aspx.

    40 IMPROVE refers to a monitoring network and also to the equation used to convert monitored concentrations to visibility impacts. “Revised IMPROVE Algorithm for Estimating Light Extinction from Particle Speciation Data”, IMPROVE technical subcommittee for algorithm review (January 2006). http://vista.cira.colostate.edu/Improve/gray-literature/.

    As described previously, the CAMx system was configured using the 3SAQS modeling platform to simulate future year 2020 conditions for the following modeling scenarios:

    Baseline: This scenario included the actual emission rates for all three units during the 2001-2003 BART baseline period that were previously modeled in CALPUFF simulations.

    BART: This scenario included the emission rates for all three units that correspond to the EPA's 2014 FIP.

    BART alternative: This scenario included the emission rates for all three units that correspond to the BART alternative.

    The only differences among scenarios are the NOX and SO2 emission rates for Laramie River (Table 5). All other model inputs, including other regional emission sources, remained unchanged among all future year scenarios.

    Table 5—Laramie River Units 1-3 Emissions for the CAMx Model by Scenario Projected to Year 2020 Conditions Scenario NOX
  • (tpy)
  • SO2
  • (tpy)
  • VOC
  • (tpy)
  • CO
  • (tpy)
  • PM10
  • (tpy)
  • PM2.5
  • (tpy)
  • NH3
  • (tpy)
  • Baseline 18,890 11,605 234 1,950 2,748 2,440 41 BART 3,560 11,605 234 1,950 2,748 2,440 41 BART alternative 7,030 9,479 234 1,950 2,748 2,440 41

    Maintaining consistent model inputs allows the CAMx modeling results to be easily compared to analyze the effects of different emissions control scenarios. As described previously, the PSAT was applied to the simulations to track and account for the particulate mass concentrations that originate or are formed as a result of emissions from Laramie River.

    Once all the scenarios above were simulated with the photochemical grid model, model results were post-processed to isolate the changes to visibility conditions as a result of emissions controls applied to Laramie River Units 1-3 under the scenarios described previously. To assess compliance with the RHR requirements, visibility changes are assessed during the 20 percent best visibility days and the 20 percent worst visibility days at each potentially affected federally regulated Class I area. Model-predicted visibility impacts at the thirteen Class I areas in the 4-km modeling domain were estimated for each of the three future year modeling scenarios.

    The MATS tool was used to convert model concentrations into visibility estimates and account for quantifiable model bias. All models are affected by biases, i.e., model results simulate complex natural phenomena and, as such, model results can either over or under estimate measured concentrations. The use of MATS helps mitigate model bias by pairing model estimates of PM species concentrations with actual measured conditions.

    As a final step, Laramie River's visibility impact under the BART alternative is compared to the visibility impact under the Baseline and BART scenarios to determine if the BART alternative meets the requirements of the two-prong test, i.e., prong 1, no degradation compared to the Baseline at any Class I area on the best visibility days, and prong 2, greater progress compared to BART averaged over all Class I areas on the worst visibility days.

    The visibility impacts derived from modeling results are summarized in Tables 6 and 7. The tables show the projected Laramie River contribution to visibility on the 20 percent best days and worst days, respectively, for the 2020 Baseline (Column A), BART (Column B), and BART alternative (Column C) scenarios at each of the Class I areas analyzed. The last two columns show the predicted visibility benefits from the BART alternative scenario relative to both the 2020 baseline (Column D) and BART (Column E). Also shown at the bottom row are the average visibility values from all the areas. Negative values in Column D indicate that the BART alternative scenario has smaller contributions to visibility relative to the baseline (“prong 1”), and therefore it improves visibility over the baseline. Similarly, negative values in Column E indicate that the BART alternative scenario has smaller contributions to visibility relative to the BART scenario (“prong 2”).

    Table 6—Laramie River Visibility Impact (Units 1-3) for the 2020 Baseline, BART, and BART Alternative Scenarios on the 20 Percent Best Days Class I area * [A] Baseline
  • (dv)
  • [B] BART
  • (dv)
  • [C] BART
  • alternative
  • (dv)
  • [D] BART
  • alternative—Baseline
  • [E] BART
  • alternative—BART
  • Badland NP 0.0212 0.0131 0.0138 −0.0074 0.0007 Bridger WA 0.0000 0.0000 0.0000 0.0000 0.0000 Fitzpatrick WA 0.0000 0.0000 0.0000 0.0000 0.0000 Grand Teton NP 0.0012 0.0012 0.0009 −0.0003 −0.0003 Mount Zirkel WA 0.0000 0.0000 0.0000 0.0000 0.0000 North Absaroka WA ** 0.0005 0.0005 0.0004 −0.0001 −0.0001 Rawah WA 0.0000 0.0000 0.0000 0.0000 0.0000 Red Rock Lakes WA 0.0012 0.0012 0.0009 −0.0003 −0.0003 Rocky Mountain NP 0.0000 0.0000 0.0000 0.0000 0.0000 Teton WA 0.0012 0.0012 0.0009 −0.0003 −0.0003 Washakie WA ** 0.0005 0.0005 0.0004 −0.0001 −0.0001 Wind Cave NP 0.0055 0.0051 0.0047 −0.0008 −0.0004 Yellowstone NP 0.0012 0.0012 0.0009 −0.0003 −0.0003 All Class I Area Average *** 0.0025 0.00185 0.00176 NA −0.00009 * NP = National Park; WA = Wilderness Area. ** Values reported for these Class I areas have been calculated with only 2 years of valid monitoring data. *** The average visibility impact is calculated as the sum of the visibility impacts divided by the number of Class I areas. **** NA = Not applicable.
    Table 7—Laramie River Visibility Impact (Units 1-3) for the 2020 Baseline, BART, and BART Alternative Scenarios on the 20 Percent Worst Days Class I area * [A] Baseline
  • (dv)
  • [B] BART
  • (dv)
  • [C] BART
  • alternative
  • (dv)
  • [D] BART
  • alternative—Baseline
  • [E] BART
  • alternative—BART
  • Badland NP 0.0259 0.0177 0.0176 −0.0083 −0.0001 Bridger WA 0.0029 0.0028 0.0023 −0.0006 −0.0005 Fitzpatrick WA 0.0029 0.0028 0.0023 −0.0006 −0.0005 Grand Teton NP 0.0024 0.0023 0.0019 −0.0005 −0.0004 Mount Zirkel WA 0.0065 0.0059 0.0053 −0.0012 −0.0006 North Absaroka WA ** 0.0003 0.0003 0.0001 −0.0002 −0.0002 Rawah WA 0.0065 0.0059 0.0053 −0.0012 −0.0006 Red Rock Lakes WA 0.0024 0.0023 0.0019 −0.0005 −0.0004 Rocky Mountain NP 0.0137 0.0119 0.0106 −0.0031 −0.0013 Teton WA 0.0024 0.0023 0.0019 −0.0005 −0.0004 Washakie WA ** 0.0003 0.0003 0.0001 −0.0002 −0.0002 Wind Cave NP 0.0369 0.0267 0.0253 −0.0116 −0.0014 Yellowstone NP 0.0024 0.0023 0.0019 −0.0005 −0.0004 All Class I Area Average 0.00812 0.00642 0.00589 NA −0.00054 * NP = National Park; WA = Wilderness Area. ** Values reported for these Class I areas have been calculated with only 2 years of valid monitoring data. *** NA = Not applicable.

    Table 6 shows that the proposed BART alternative emissions will not result in degradation of visibility on the 20 percent best days compared to the 2020 baseline conditions at any of the 13 analyzed Class I areas. In each individual area, visibility is predicted to improve or remain unchanged compared to the 2020 baseline visibility since all values shown in Column D are either negative or zero. Overall, the BART alternative scenario shows an average improvement in visibility of 0.00009 deciviews (dv) relative to BART for the best 20 percent days. Table 6 also shows that for the BART alternative scenario, visibility during the best days improves or remains unchanged at all Class I areas compared to the BART scenario except for Badlands National Park.

    Table 7 shows that the proposed BART alternative emissions will not result in degradation of visibility on the 20 percent worst days compared to the 2020 baseline conditions at any of the 13 analyzed Class I areas. In each individual area, visibility is predicted to improve compared to the 2020 baseline visibility, since all values in Column D are negative. Overall, the BART alternative shows an average improvement in visibility of 0.00054 dv relative to BART for the 20 percent worst days. Table 7 also shows that for the BART alternative scenario, visibility during the 20 percent worst days improves at all Class I areas compared to the BART scenario.

    Pursuant to 40 CFR 51.309(e)(3), the modeling demonstrates “greater reasonable progress” if both of the following criteria are met: (1) Visibility does not decline in any Class I area; and (2) there is an overall improvement in visibility, determined by comparing the average differences between BART and the BART alternative over all affected Class I areas. For the first prong of the modeling test, the modeling results show that visibility improves or stays the same (i.e., does not decline) under the BART alternative scenario for all Class I areas for the 20 percent best and 20 percent worst days when compared with the baseline scenario (Column D in Tables 6 and 7). For the second prong of the modeling test, the modeling results show that there is an overall improvement in visibility under the BART alternative scenario for all Class I areas averaged over the 20 percent best and 20 percent worst days when compared with the BART scenario (Column E in Tables 6 and 7). Based on the modeling analysis, we propose to find that the BART alternative would achieve greater reasonable progress than BART under 40 CFR 51.308(e)(3).

    Additionally, AECOM used PSAT to further evaluate the modeling to determine whether the results represent “real” modeled visibility differences and not the result of numerical artifacts or “noise” in the model results. The numerical method used to simulate aerosol thermodynamics in CAMx may be subject to some level of numerical error when calculating the difference between two model simulations. This typically occurs in areas with high concentrations of sulfate and nitrate, and numerical error is manifested as areas of small random checkerboard increases and decreases in concentrations, as illustrated in the AECOM final report, Figure A-1, left panels.41 Note that this numerical error is typically a very small percentage of the total modeled nitrate and sulfate concentration. However, this error can be relatively large in comparison to the impacts of a single emissions source such as the Laramie River Station. The PSAT-based evaluation approach eliminates numerical error in the model results by using model tracer species that track the emissions and chemical transformation of SO2 and NOX from a single source. By calculating the changes in the PSAT mass attributed to Laramie River Station in the baseline for the 2014 FIP and BART alternative simulations, the effects of numerical error in other emissions sources are excluded from the analysis of the Laramie River Station impacts. The AECOM report Figure A-1, right panels, shows the nitrate mass attributed to the Laramie River Station and illustrates that numerical error from other sources is eliminated using this approach. Thus, the PSAT plots show that concentrations within the modeling domain are attributable to the emissions from Laramie River, and therefore provide reliable data for assessing whether there is a numerical difference between the visibility benefits from the BART and BART alternative control scenarios.

    41Laramie River Station Power Plant Visibility Impacts for Two Emissions Control Scenarios: Final Report. Prepared for Basin Electric, AECOM (May 2016).

    Finally, we note that 40 CFR 51.308(e)(3) allows for a straight numerical test, regardless of the magnitude of the computed differences. The regulation does not specify a minimum delta deciview difference between the modeled scenarios that must be achieved in order for a BART alternative to be deemed to achieve greater reasonable progress than BART. Accordingly, given that the modeling results show that visibility under the BART alternative does not decline at any of the 13 affected Class I areas compared to the baseline (prong 1) and will result in improved visibility, on average, across all 13 Class I areas compared to BART in the 2014 FIP (prong 2), we propose to find that the BART alternative will achieve greater reasonable progress than BART (2014 FIP) under the two-prong modeling test in 40 CFR 51.308(e)(3).

    2. A requirement that all necessary emissions reductions take place during the period of the first long-term strategy for regional haze.

    Pursuant to 40 CFR 51.308(e)(2)(iii), all necessary emission reductions must take place during the period of the first long-term strategy for regional haze. The RHR further requires a detailed description of the BART alternative measure, including schedules for implementation, the emission reductions required by the program, all necessary administrative and technical procedures for implementing the program, rules for accounting and monitoring emissions, and procedures for enforcement.42

    42 40 CFR 51.308(e)(2)(iii).

    As noted previously, the 2017 settlement agreement includes requirements for implementing the BART alternative. In addition to the emission limitations for NOX and SO2, the 2017 settlement agreement includes compliance dates, interim limits, averaging times, and control technology requirements. The monitoring, recordkeeping, and reporting requirements,43 along with other aspects of the 2014 FIP that are not contained within the 2017 settlement agreement, remain unchanged in the EPA's FIP.44 The compliance date for the BART alternative is December 31, 2018, for Laramie River Units 2 and 3 to install and operate SNCR with corresponding NOX emission limits of 0.15 lb/MMBtu (30-day rolling average).45 Laramie River Units 2 and 3 must also meet interim NOX emission limits of 0.18 lb/MMBtu (30-day rolling average; each) commencing the date that the EPA's final revised FIP becomes effective and ending on December 30, 2018.46 In addition, Laramie River Units 1 and 2 must meet an SO2 emission limit of 0.12 lb/MMBtu averaged annually across the two units commencing on December 31, 2018.47 Therefore, we propose to find that the proposed FIP revision along with the existing FIP provisions will ensure that all necessary emission reductions take place during the period of the first long-term strategy and therefore meets the requirements of 40 CFR 51.308(e)(2)(iii).

    43 40 CFR 52.2636(e)-(h).

    44 40 CFR 52.2636.

    45 Settlement Agreement between Basin Electric Power Cooperative, the State of Wyoming and the EPA (April 24, 2017).

    46Ibid.

    47 Second Amendment to Settlement Agreement (pursuant to Paragraph 15 of the Agreement, amended the date in Paragraph 5.b.ii. for the SO2 emission limits for Laramie River Units 1 and 2 to commence December 31, 2018) (September 14, 2018).

    3. Demonstration that emissions reductions from the BART alternative measure will be surplus.

    Pursuant to 40 CFR 51.308(e)(2)(iv), the SIP (or FIP) must demonstrate that the emissions reductions resulting from the BART alternative measure will be surplus to those reductions resulting from measures adopted to meet requirements of the CAA as of the baseline date of the SIP. The baseline date for regional haze SIPs is 2002. All the NOX emission reductions required by the BART alternative are surplus to reductions resulting from SIP measures applicable to Laramie River as of 2002. In addition, the proposed SIP revision discussed in Section IV, revises the SO2 emissions reporting requirements for Laramie River Units 1 and 2 so that the SO2 emissions reductions achieved from the 2017 settlement agreement are not also counted towards reductions under the SO2 backstop trading program and thereby included in the regional SO2 milestone. As discussed in Section IV, we propose to approve these changes to the SIP. Therefore, we propose to find that the BART alternative complies with 40 CFR 51.308(e)(2)(iv). In sum, we propose to find that the BART alternative meets all the applicable requirements of 40 CFR 51.308(e)(2).

    Finally, in accordance with the proposed establishment of SO2 emission limits in the proposed FIP for Laramie River Units 1 and 2, we also propose to revise the monitoring, recordkeeping, and reporting requirements of the 2014 FIP to reflect the establishment of SO2 emission limits in the proposed FIP. These proposed revisions support CAA section 110(a)(2)(A) requiring implementation plans to include enforceable emission limitations. In order to be considered enforceable, emission limits must include associated monitoring, recordkeeping, and reporting requirements. In addition, the CAA and the EPA's implementing regulations expressly require implementation plans to include regulatory requirements related to monitoring, recordkeeping, and reporting for applicable emissions limitations.48 We do not propose to alter the monitoring, record keeping, and reporting requirements established in the 2014 FIP that relate to compliance with the BART emission limit for NOX.

    48See, e.g. CAA section 110(a)(2)(F) and 40 CFR 51.212(c).

    C. The NOX Emission Limit for Laramie River Unit 1

    In addition to the BART alternative, we are also proposing to amend the 2014 FIP by revising the NOX emission limit for Laramie River Unit 1 as voluntarily requested by Basin Electric in the settlement agreement.49 The amendment revises the NOX emission limit for Unit 1 from the NOX BART limit of 0.07 lb/MMBtu to 0.06 lb/MMBtu (30-day rolling average) commencing July 1, 2019, with an interim limit of 0.18 lb/MMBtu (30-day rolling average) commencing the effective date of the EPA's final revised FIP and ending June 30, 2019. Because the revision to the NOX emission limit for Laramie River Unit 1 achieves greater NOX emission reductions than the relevant portions of the 2014 FIP, we propose to amend the Wyoming regional haze 2014 FIP with this revision.

    49 Settlement Agreement between Basin Electric Power Cooperative, the State of Wyoming and the EPA (April 24, 2017).

    IV. Proposed Action on Submitted SIP Revisions A. Background

    Wyoming submitted SIP revisions on January 12, 2011, and April 19, 2012, that address regional haze requirements under 40 CFR 51.309. As explained previously, 40 CFR 51.309 allows certain western Transport Region States an optional way to fulfill regional haze requirements as opposed to adopting the requirements under 40 CFR 51.308. As required by 40 CFR 51.309, the participating states must adopt a trading program, or what has been termed the Western Backstop Sulfur Dioxide Trading Program (backstop trading program or trading program). One of the components of the backstop trading program is for stationary source SO2 emissions reductions.50 Thus, under 40 CFR 51.309, states can satisfy the section 308 SO2 BART requirements by adopting SO2 emissions milestones and a backstop trading program. Under this approach, states must establish declining SO2 emissions milestones for each year of the program through 2018. If the milestones are exceeded in any year, the backstop trading program is triggered.

    50 40 CFR 51.309(d)(4).

    Among other things, the January 2011 and April 2012 SIP submittals contained amendments to the Wyoming Air Quality Standards and Regulations (WAQSR) Chapter 14, Emission Trading Program Regulations, Section 3, Sulfur dioxide milestone inventory. On December 12, 2012, we approved these amendments into the SIP as meeting the requirements of 40 CFR 51.309.51

    51 77 FR 73926 (December 12, 2012).

    B. April 5, 2018 Submittal

    On April 5, 2018, Wyoming submitted a SIP revision containing amendments to WAQSR, Chapter 14, Emission Trading Program Regulations, Section 3, Sulfur dioxide milestone inventory and additions to the regional haze narrative.52 The amendments modify the SO2 emissions backstop trading program reporting requirements for Laramie River Station Units 1 and 2. The revisions ensure that SO2 emissions reductions proposed under the 2017 settlement are no longer counted as reductions under the backstop trading program. Specifically, the amendments revise the SO2 emissions reporting requirements for Laramie River Units 1 and 2 so that Unit 1's SO2 emissions shall be reported based on an annual emission rate of 0.159 lb/MMBtu multiplied by the actual annual heat input, and Unit 2's SO2 emissions shall be reported based on an annual emission rate of 0.162 lb/MMBtu multiplied by the actual heat input. Annual SO2 emissions for Laramie River Unit 3 shall be reported as otherwise provided in Chapter 14, Section 3(b). The revisions also require that the revised SO2 emissions reporting requirements for Units 1 and 2 commence as of the year that Basin Electric commences operation of SCR at Unit 1 and that Wyoming use the revised SO2 emissions reporting requirements for all purposes under Chapter 14. The additions to the SIP narrative provide an explanation of the regulatory amendments. The Wyoming Environmental Quality Council approved the proposed revisions on December 5, 2017 (effective February 5, 2018).

    52 State of Wyoming. Addressing Regional Haze Visibility Protection For The Mandatory Federal Class I Areas Required Under 40 CFR 51.309. Revised April 5, 2018.

    C. The EPA's Evaluation of the SO2 Emissions Reporting Amendments

    We are proposing to approve Wyoming's amendments to the SO2 emissions reporting requirements and the addition to the SIP narrative for Laramie River Units 1 and 2, including when Basin Electric is required to use the revised SO2 emissions reporting requirements and how the SO2 emissions will be reported within the context of the SO2 emissions milestone inventory. Together, these revisions ensure that the SO2 emissions reductions in the BART alternative are not “double-counted” in the backstop trading program in order to meet the requirement in 40 CFR 51.308(e)(2)(iv) (requirement that emissions reductions from the alternative will be surplus to the SIP). We evaluated how these revisions meet the relevant requirements under 40 CFR 51.309(d)(4).

    We agree with Wyoming that the revisions to the SO2 emissions reporting requirements for Laramie River Units 1 and 2 are sufficient to ensure that the SO2 emissions reductions obtained under the settlement agreement under the NOX BART alternative (see Section III) are not also counted towards reductions under the SO2 backstop trading program milestones.53 The annual SO2 emission rates of 0.159 lb/MMBtu and 0.162 lb/MMBtu (30-day average) for Laramie River Units 1 and 2, respectively, reflect the actual average emission rates from 2001 to 2003 for these units.54 By reporting SO2 emissions using the average annual SO2 emission rates from 2001 to 2003 (and multiplied by the actual annual heat input) instead of reporting the actual average annual SO2 emission rates, emissions reductions achieved since the baseline period at these units will no longer be included in the backstop trading program. Thus, if EPA decides to finalize this proposed action, instead of reporting the actual annual SO2 emissions for Units 1 and 2 achieved under the revised average annual emission limit of 0.115 lb/MMBtu (0.12 lb/MMBtu; 30-day rolling average limit), pursuant to 40 CFR 51.309(d)(4)(vi)(A) and the settlement agreement, as of the year that Basin Electric commences operation of SCR on Unit 1, SO2 emissions would be calculated using the average annual emission rates reflective of the baseline period (0.159 lb/MMBtu for Unit 1 and 0.162 lb/MMBtu for Unit 2) multiplied by the actual annual heat input. Thus, these revisions not only ensure that the SO2 emissions reductions achieved under the NOX BART alternative are only accounted for under the BART alternative, and not “double-counted,” but also describe how compliance with the backstop trading program requirements will be determined as required under 40 CFR 51.309(d)(4)(i).

    53 40 CFR 51.309(d)(4)(i).

    54Laramie River Station Power Plant Visibility Impacts for Two Emissions Control Scenarios: Final Report. Prepared for Basin Electric, AECOM (May 2016). Data based on the information obtained from the EPA's Clean Air Markets Division (CAMD) database, available at: https://ampd.epa.gov/ampd/.

    Under 40 CFR 51.309(d)(4)(ii), documentation of the SO2 emission calculation methodology and any changes to the specific methodology used to calculate the emissions at any emitting unit for any year after the base year must be provided in the backstop trading program implementation plan. The revisions in Wyoming's 2018 SIP submittal: (1) Document the changes to the specific methodology used to calculate and report SO2 emissions at Laramie River Units 1 and 2, including the annual average SO2 emission rates for each unit and how to determine the actual annual heat rate (Chapter 14, Section 3(d)); (2) specify that the revised methodology will commence as of the year that SCR is operational on Unit 1 (Chapter 14, Section 3(d)(i)); and (3) clarify that the revisions to the SO2 emissions reporting methodology for Units 1 and 2 shall be used for all purposes under Chapter 14, Emission Trading Program Regulations (Chapter 14, Section 3(e)). Thus, the revisions meet the requirements of 40 CFR 51.309(d)(4)(ii) because the amendments to the SO2 emissions reporting requirements provide for documentation of the changes to the specific methodology used to calculate emissions at Laramie River Units 1 and 2 for the relevant years after the base year, and the amendments are contained within Wyoming's backstop trading program implementation plan (Chapter 14, Section 3).

    Under 40 CFR 51.309(d)(4)(iii), the EPA-approved plan includes provisions requiring the monitoring, recordkeeping, and annual reporting of actual stationary source SO2 emissions within the State, (Chapter 14, Section 3(b)). These requirements continue to apply to the Laramie River Units 1 and 2 and were not modified in Wyoming's 2018 SIP submittal. Likewise, the requirements found in 40 CFR 51.309(d)(4)(iv), 40 CFR 51.309(d)(4)(v) and 40 CFR 51.309(d)(4)(vi) pertaining to the market trading program and provisions for the 2018 milestone were not modified in Wyoming's 2018 SIP submittal. Because the revisions to the SO2 emissions reporting requirements for Laramie River Units 1 and 2 meet the requirements of 40 CFR 51.309(d)(4) we propose to approve the SIP revisions to Chapter 14, Section 3.

    V. Clean Air Act Section 110(l)

    Under CAA section 110(l), the EPA cannot approve a plan revision “if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 7501 of this title), or any other applicable requirement of this chapter.” 55 We propose to find that these revisions satisfy section 110(l). The previous sections of the notice explain how the proposed FIP revision will comply with applicable regional haze requirements and general implementation plan requirements such as enforceability. Likewise, the SIP revision will also comply with applicable regional haze requirements. With respect to requirements concerning attainment and reasonable further progress, the Wyoming Regional Haze SIP and FIP, as revised by this action, will result in a significant reduction in emissions compared to historical levels. In addition, the area where the Laramie River Station is located is in attainment for all National Ambient Air Quality Standards (NAAQS). Thus, the revisions will ensure a significant reduction in NOX and SO2 emissions compared to historical levels in an area that has not been designated nonattainment for the relevant NAAQS at those current levels.

    55 Note that “reasonable further progress” as used in CAA section 110(l) is a reference to that term as defined in section 301(a) (i.e., 42 U.S.C. 7501(a)), and as such means reductions required to attain the National Ambient Air Quality Standards (NAAQS) set for criteria pollutants under section 109. This term as used in section 110(l) (and defined in section 301(a)) is not synonymous with “reasonable progress” as that term is used in the regional haze program. Instead, section 110(l) provides that EPA cannot approve plan revisions that interfere with regional haze requirements (including reasonable progress requirements) insofar as they are “other applicable requirement[s]” of the Clean Air Act.

    VI. Consultation With FLMs

    There are seven (7) Class I areas in the State of Wyoming. The United States Forest Service manages the Bridger Wilderness, Fitzpatrick Wilderness, North Absaroka Wilderness, Teton Wilderness, and Washakie Wilderness. The National Park Service manages the Grand Teton National Park and Yellowstone National Park. The RHR grants the FLMs, regardless of whether a FLM manages a Class I area within the state, a special role in the review of regional haze implementation plans, summarized in Section II.E of this preamble.

    There are obligations to consult on plan revisions under 40 CFR 51.308(i)(3). Thus, we consulted with the Forest Service, the Fish and Wildlife Service and the National Park Service on the proposed FIP revision. We described the proposed revisions to the regional haze 2014 FIP and 2018 SIP revisions with the Forest Service, the Fish and Wildlife Service and the National Park Service on August 15, 2018 and met our obligations under 40 CFR 51.308(i)(3).

    VII. The EPA's Proposed Action

    In this action, the EPA is proposing to approve SIP amendments, shown in Table 8, to the Wyoming Air Quality Standards and Regulations, Chapter 14, Emission Trading Program Regulations, Section 3, Sulfur dioxide milestone inventory, revising the backstop trading program SO2 emissions reporting requirements for Laramie River Units 1 and 2.

    Table 8—List of Wyoming Amendments That EPA Is Proposing To Approve Amended sections in April 5, 2018 submittal proposed for approval Chapter 14, Section 3: (d), (e).

    We are also proposing to amend the Wyoming regional haze FIP contained in 40 CFR 52.2636 to remove the 2014 FIP's NOX emission limits and instead incorporate the BART alternative and associated NOX and SO2 emission limits for Laramie River Units 1-3, revise the NOX emission limit for Unit 1, and add control technology requirements. Specifically, the EPA is proposing to revise the NOX emission limits and add SO2 emission limits and control technologies in Table 2 of 40 CFR 52.2636(c)(1) for Laramie River Units 1-3. We are also proposing to add associated compliance dates in 40 CFR 52.2636(d)(4) for Laramie River Units 1-3. Finally, we are proposing to reference SO2 in the following sections: Applicability (40 CFR 52.2636(a)); Definitions (40 CFR 52.2636(b)); Compliance determinations for NO X (40 CFR 52.2636(e)); Reporting (40 CFR 52.2636(h)); and Notifications (40 CFR 52.2636(i)). We are not proposing to change any other regulatory text in 40 CFR 52.2636.

    VIII. Incorporation by Reference

    In this document, EPA is proposing to include regulatory text in an EPA final rule that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the SIP amendments described in Section VII of this preamble. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov (refer to docket EPA-R08-OAR-2018-0606) and at the EPA Region 8 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    IX. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a “significant regulatory action” under the terms of Executive Order 12866 56 and was therefore not submitted to the Office of Management and Budget (OMB) for review. This proposed rule applies to only one facility in the State of Wyoming. It is therefore not a rule of general applicability.

    56 58 FR 51735, 51738 (October 4, 1993).

    B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

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

    C. Paperwork Reduction Act

    This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act (PRA).57 A “collection of information” under the PRA means “the obtaining, causing to be obtained, soliciting, or requiring the disclosure to an agency, third parties or the public of information by or for an agency by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, ten or more persons, whether such collection of information is mandatory, voluntary, or required to obtain or retain a benefit.” 58 Because this proposed rule revises the NOX and SO2 emission limits and associated reporting requirements for one facility, the PRA does not apply.

    57 44 U.S.C. 3501 et seq.

    58 5 CFR 1320.3(c) (emphasis added).

    D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions.

    For purposes of assessing the impacts of this proposed rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

    After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This rule does not impose any requirements or create impacts on small entities as no small entities are subject to the requirements of this rule.

    E. Unfunded Mandates Reform Act (UMRA)

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local and tribal governments and the private sector. Under section 202 of UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for final rules with “Federal mandates” that may result in expenditures to state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more (adjusted for inflation) in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 of UMRA do not apply when they are inconsistent with applicable law. Moreover, section 205 of UMRA allows the EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory actions with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

    Under Title II of UMRA, the EPA has determined that this proposed rule does not contain a federal mandate that may result in expenditures that exceed the inflation-adjusted UMRA threshold of $100 million 59 by state, local, or tribal governments or the private sector in any one year. The proposed revisions to the 2014 FIP would reduce private sector expenditures. Additionally, we do not foresee significant costs (if any) for state and local governments. Thus, because the proposed revisions to the 2014 FIP reduce annual expenditures, this proposed rule is not subject to the requirements of sections 202 or 205 of UMRA. This proposed rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.

    59 Adjusted to 2014 dollars, the UMRA threshold becomes $152 million.

    F. Executive Order 13132: Federalism

    Executive Order 13132, Federalism, 60 revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires the EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” 61 “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” 62 Under Executive Order 13132, the EPA may not issue a regulation “that has federalism implications, that imposes substantial direct compliance costs, . . . and that is not required by statute, unless [the federal government provides the] funds necessary to pay the direct [compliance] costs incurred by the State and local governments,” or the EPA consults with state and local officials early in the process of developing the final regulation.63 The EPA also may not issue a regulation that has federalism implications and that preempts state law unless the agency consults with state and local officials early in the process of developing the final regulation.

    60 64 FR 43255, 43255-43257 (August 10, 1999).

    61 64 FR 43255, 43257.

    62Ibid.

    63Ibid.

    This action does not have federalism implications. The proposed FIP revisions 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 Executive Order 13132. Thus, Executive Order 13132 does not apply to this action.

    G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments,” requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” 64 This proposed rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule. However, on September 5, 2018, the EPA did send letters to each of the Wyoming tribes explaining our regional haze proposed FIP revision and offering consultation.65

    64 65 FR 67249, 67250 (November 9, 2000).

    65 Letters to tribal governments (September 5, 2018).

    H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997). The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the executive order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

    I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

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

    J. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires federal agencies to evaluate existing technical standards when developing a new regulation. Section 12(d) of NTTAA, Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs the EPA to consider and use “voluntary consensus standards” in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs the EPA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards.

    This action involves technical standards. The EPA has decided to use the applicable monitoring requirements of 40 CFR part 75. Part 75 already incorporates a number of voluntary consensus standards. Consistent with the agency's Performance Based Measurement System (PBMS), part 75 sets forth performance criteria that allow the use of alternative methods to the ones set forth in part 75. The PBMS approach is intended to be more flexible and cost-effective for the regulated community; it is also intended to encourage innovation in analytical technology and improved data quality. At this time, the EPA is not recommending any revisions to part 75. However, the EPA periodically revises the test procedures set forth in part 75. When the EPA revises the test procedures set forth in part 75 in the future, the EPA will address the use of any new voluntary consensus standards that are equivalent. Currently, even if a test procedure is not set forth in part 75, the EPA is not precluding the use of any method, whether it constitutes a voluntary consensus standard or not, as long as it meets the performance criteria specified; however, any alternative methods must be approved through the petition process under 40 CFR 75.66 before they are used.

    K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    Executive Order 12898, establishes federal executive policy on environmental justice.66 Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the United States.

    66 59 FR 7629 (February 16, 1994).

    I certify that the approaches under this proposed rule will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous/tribal populations. As explained previously, the Wyoming Regional Haze FIP, as revised by this action, will result in a significant reduction in emissions compared to current levels. Although this revision will allow an increase in future emissions as compared to the 2014 FIP, the proposed FIP, as a whole, will still result in overall NOX and SO2 reductions compared to those currently allowed. In addition, the area where Laramie River Station is located has not been designated nonattainment for any NAAQS. Thus, the proposed FIP will ensure a significant reduction in NOX and SO2 emissions compared to current levels and will not create a disproportionately high and adverse human health or environmental effect on minority, low-income, or indigenous/tribal populations. The EPA, however, will consider any input received during the public comment period regarding environmental justice considerations.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Sulfur oxides.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: October 3, 2018. Douglas Benevento, Regional Administrator, Region 8.

    40 CFR part 52 is proposed to be amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart ZZ—Wyoming 2. Section 52.2620 is amended by revising: a. In paragraph (c), the table entry for `Section 3' under the centered table heading “Chapter 14. Emission Trading Program Regulations.”; and b. In paragraph (e), the table entry for `(20)XX'.

    The revisions read as follows:

    § 52.2620 Identification of plan.

    (c) * * *

    Rule No. Rule title State
  • effective date
  • EPA
  • effective date
  • Final rule/citation date Comments
    *         *         *         *         *         *         * Chapter 14. Emission Trading Program Regulations *         *         *         *         *         *         * Section 3 Sulfur dioxide milestone inventory 2/5/2018 11/13/2018 [Federal Register citation], [Federal Register date of publication] *         *         *         *         *         *         *

    (e) * * *

    Rule No. Rule title State
  • effective date
  • EPA
  • effective date
  • Final rule/citation date Comments
    *         *         *         *         *         *         * (20)XX Addressing Regional Haze Visibility Protection For The Mandatory Federal Class I Areas Required Under 40 CFR 51.309 4/5/2018 11/13/2018 [Federal Register citation], [Federal Register date of publication] *         *         *         *         *         *         *
    3. Section 52.2636 is amended by: a. Revising paragraphs (a)(2), (b)(4), (b)(12), (c)(1), (c)(1) Table 2, (d)(2) and (d)(3), (e), (e)(1)(i), (e)(1)(ii)(A) through (C), (h)(1), and (i)(1); and b. Adding paragraphs (b)(13), (d)(4), and (e)(1)(ii)(D).

    The revisions and additions read as follows:

    § 52.2636 Implementation plan for regional haze.

    (a) * * *

    (2) This section also applies to each owner and operator of the following emissions units in the State of Wyoming for which EPA disapproved the State's BART determination and issued a SO2 and/or NOX BART Federal Implementation Plan:

    (i) Basin Electric Power Cooperative Laramie River Station Units 1, 2, and 3;

    (ii) PacifiCorp Dave Johnston Unit 3; and

    (iii) PacifiCorp Wyodak Power Plant Unit 1.

    (b) * * *

    (4) Continuous emission monitoring system or CEMS means the equipment required by this section to sample, analyze, measure, and provide, by means of readings recorded at least once every 15 minutes (using an automated data acquisition and handling system (DAHS)), a permanent record of SO2 and/or NOX emissions, diluent, or stack gas volumetric flow rate.

    (12) SO 2 means sulfur dioxide.

    (13) Unit means any of the units identified in paragraph (a) of this section.

    (c) * * *

    (1) The owners/operators of emissions units subject to this section shall not emit, or cause to be emitted, PM, NOX, or SO2 in excess of the following limitations:

    Table 2 to § 52.2636 [Emission limits and required control technologies for BART units for which the EPA disapproved the State's BART determination and implemented a FIP] Source name/BART unit NOX required control technology NOX emission
  • limit—
  • lb/MMBtu
  • (30-day rolling
  • average)
  • SO2 emission
  • limit—
  • lb/MMBtu
  • (averaged
  • annually
  • across both
  • units)
  • Basin Electric Power Cooperative Laramie River Station/Unit 1 1 Selective Catalytic Reduction (SCR) 2 4 0.18/0.06 0.12 Basin Electric Power Cooperative Laramie River Station/Unit 2 1 Selective Non-catalytic Reduction (SNCR) 3 0.18/0.15 Basin Electric Power Cooperative Laramie River Station/Unit 3 1 Selective Non-catalytic Reduction (SNCR) 3 0.18/0.15 N/A PacifiCorp Dave Johnston Unit 3 N/A * 0.07 N/A PacifiCorp Wyodak Power Plant/Unit 1 N/A 0.07 N/A 1 The owners and operators of Laramie River Station Unit 1 shall comply with the NOX emission limit of 0.18 lb/MMBtu on [the effective date of the final rule] and ending June 30, 2019. The owners and operators of Laramie River Station Unit 1 shall comply with the NOX emission limit of 0.06 lb/MMBtu on July 1, 2019. The owners and operators of the Laramie River Station Units 2 and 3 shall comply with the NOX emission limit of 0.18 lb/MMBtu on [the effective date of the final rule] and ending on December 30, 2018. The owners and operators of Laramie River Station Units 2 and 3 shall comply with the NOX emission limit of 0.15 lb/MMBtu on December 31, 2018. The owners and operators of Laramie River Station Units 1 and 2 shall comply with the SO2 emission limit of 0.12 lb/MMBtu averaged annually across the two units on December 31, 2018. 2 By July 1, 2019. 3 By December 30, 2018. 4 These limits are in addition to the NOX emission limit for Laramie River Station Unit 1 of 0.07 MMBtu on a 30-day rolling average. * (or 0.28 and shut-down by December 31, 2027).

    (d) * * *

    (2) The owners and operators of Laramie River Station Unit 1 shall comply with the NOX emission limit of 0.18 lb/MMBtu on [the effective date of the final rule] and ending June 30, 2019. The owners and operators of Laramie River Station Unit 1 shall comply with the NOX emission limit of 0.06 lb/MMBtu on July 1, 2019. The owners and operators of the Laramie River Station Units 2 and 3 shall comply with the NOX emission limit of 0.18 lb/MMBtu on [the effective date of the final rule] and ending on December 30, 2018. The owners and operators of Laramie River Station Units 2 and 3 shall comply with the NOX emission limit of 0.15 lb/MMBtu on December 31, 2018. The owners and operators of Laramie River Station Units 1 and 2 shall comply with the SO2 emission limit of 0.12 lb/MMBtu averaged annually across the two units on December 31, 2018.

    (3) The owners and operators of the other BART sources subject to this section shall comply with the emissions limitations and other requirements of this section by March 4, 2019.

    (4) Compliance alternatives for PacifiCorp Dave Johnston Unit 3. (i) The owners and operators of PacifiCorp Dave Johnston Unit 3 will meet a NOX emission limit of 0.07 lb/MMBtu (30-day rolling average) by March 4, 2019; or

    (ii) Alternatively, the owners and operators of PacifiCorp Dave Johnston Unit 3 will permanently cease operation of this unit on or before December 31, 2027.

    (e) Compliance determinations for SO 2 and NO X.

    (1) * * *

    (i) CEMS. At all times after the earliest compliance date specified in paragraph (d) of this section, the owner/operator of each unit shall maintain, calibrate, and operate a CEMS, in full compliance with the requirements found at 40 CFR part 75, to accurately measure SO2 and/or NOX, diluent, and stack gas volumetric flow rate from each unit. The CEMS shall be used to determine compliance with the emission limitations in paragraph (c) of this section for each unit.

    (ii) * * *

    (A) For any hour in which fuel is combusted in a unit, the owner/operator of each unit shall calculate the hourly average NOX emission rates in lb/MMBtu at the CEMS in accordance with the requirements of 40 CFR part 75. At the end of each operating day, the owner/operator shall calculate and record a new 30-day rolling average emission rate in lb/MMBtu from the arithmetic average of all valid hourly emission rates from the CEMS for the current operating day and the previous 29 successive operating days.

    (B) At the end of each calendar year, the owner/operator shall calculate the annual average SO2 emission rate in lb/MMBtu across Laramie River Station Units 1 and 2 as the sum of the SO2 annual mass emissions (pounds) divided by the sum of the annual heat inputs (MMBtu). For Laramie River Station Units 1 and 2, the owner/operator shall calculate the annual mass emissions for SO2 and the annual heat input in accordance with 40 CFR part 75 for each unit.

    (C) An hourly average SO2 and/or NOX emission rate in lb/MMBtu is valid only if the minimum number of data points, as specified in 40 CFR part 75, is acquired by both the pollutant concentration monitor (SO2 and/or NOX) and the diluent monitor (O2 or CO2).

    (D) Data reported to meet the requirements of this section shall not include data substituted using the missing data substitution procedures of subpart D of 40 CFR part 75, nor shall the data have been bias adjusted according to the procedures of 40 CFR part 75.

    (h) * * *

    (1) The owner/operator of each unit shall submit quarterly excess emissions reports for SO2 and/or NOX BART units no later than the 30th day following the end of each calendar quarter. Excess emissions means emissions that exceed the emissions limits specified in paragraph (c) of this section. The reports shall include the magnitude, date(s), and duration of each period of excess emissions, specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the unit, the nature and cause of any malfunction (if known), and the corrective action taken or preventative measures adopted.

    (i) * * *

    (1) The owner/operator shall promptly submit notification of commencement of construction of any equipment which is being constructed to comply with the SO2 and/or NOX emission limits in paragraph (c) of this section.

    [FR Doc. 2018-21949 Filed 10-10-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R4-ES-2014-0065; 4500030114] RIN 1018-BD52 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Black Pinesnake AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule; revision, reopening of comment period, and announcement of public meetings.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on our March 11, 2015, proposed designation of critical habitat for the black pinesnake (Pituophis melanoleucus lodingi) under the Endangered Species Act of 1973, as amended (Act). We are reopening the comment period to accept comments on our proposal, including revisions to proposed Units 7 and 8 that are described in this document. As a result of these revisions, we are now proposing to designate a total of 338,379 acres (136,937 hectares) as critical habitat for the black pinesnake across eight units within portions of Forrest, George, Greene, Harrison, Jones, Marion, Perry, Stone, and Wayne Counties in Mississippi, and Clarke County in Alabama. This is a small increase in acreage from the area we proposed to designate in our March 11, 2015, proposed rule but constitutes less privately owned lands. In addition, we announce two public informational meetings on the proposed rule. We are reopening the comment period on our March 11, 2015, proposed rule to allow all interested parties the opportunity to comment on the revised proposed rule. Comments previously submitted need not be resubmitted, as they will be fully considered in preparation of the final rule.

    DATES:

    The comment period for the proposed rule published March 11, 2015, at 80 FR 12846 is reopened.

    Written comments: So that we can fully consider your comments in our final determination, submit them on or before November 13, 2018. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date.

    Public informational meetings: We will hold two public meetings, one from 6:00 p.m. to 7:30 p.m. on October 22, 2018, and a second from 6:00 p.m. to 7:30 p.m. on October 24, 2018.

    ADDRESSES:

    Document availability: You may obtain copies of the March 11, 2015, proposed rule and associated documents on the internet at http://www.regulations.gov under Docket No. FWS-R4-ES-2014-0065 or by mail from the Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Written comments: You may submit written comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2014-0065, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rule box to locate this document. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit your comments by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-2014-0065, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, below, for more information).

    Public informational meetings: The public informational meetings will be held in the following locations:

    • On October 22, 2018, at Pearl River Community College, Lowery A. Woodall Advanced Technology Center, 906 Sullivan Drive, Hattiesburg, MS 39401.

    • On October 24, 2018, at Alabama Coastal Community College, Administration Building, Tombigbee Conference Room, 30755 Hwy. 43 South, Thomasville, AL 36784. See Public Informational Meetings, below, for more information.

    FOR FURTHER INFORMATION CONTACT:

    Stephen Ricks, Field Supervisor, Mississippi Ecological Services Field Office, 6578 Dogwood View Parkway, Jackson, MS 39213; telephone 601-321-1122; or facsimile 601-965-4340. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Public Comments

    We will accept written comments and information during this reopened comment period on our proposed designation of critical habitat for the black pinesnake that was published in the Federal Register on March 11, 2015 (80 FR 12846), the revisions to the proposed designation that are described in this document, and our draft economic assessment (DEA) of the proposed designation. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

    (1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act, including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat is not prudent.

    (2) Specific information on:

    (a) The amount and distribution of black pinesnake habitat;

    (b) What areas occupied by the species at the time of listing (or are currently occupied) that contain features essential for the conservation of the species we should include in the designation and why;

    (c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and

    (d) What areas not occupied at the time of listing are essential for the conservation of the species and why.

    (3) Land use designations and current or planned activities in the subject areas and their probable impacts on proposed critical habitat.

    (4) How the patch size of proposed critical habitat was derived (i.e., how much acreage a viable population of black pinesnakes requires).

    (5) Information on the projected and reasonably likely impacts of climate change on the black pinesnake and proposed critical habitat.

    (6) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation; in particular, we seek information on any impacts on small entities or families, and the benefits of including or excluding areas that exhibit these impacts.

    (7) Information on the extent to which the description of economic impacts in the DEA is a reasonable estimate of the likely economic impacts and is complete and accurate.

    (8) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the associated documents of the DEA, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.

    (9) Whether any areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act, particularly those areas described in this document.

    (10) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

    If you submitted comments or information on the March 11, 2015, proposed rule during the initial comment period from March 11, 2015, to May 11, 2015, please do not resubmit them. Any such comments are incorporated as part of the public record of this rulemaking proceeding, and we will fully consider them in the preparation of our final determination. Our final determination concerning critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. The final decision may differ from this revised proposed rule, based on our review of all information received during this rulemaking proceeding.

    You may submit your comments and materials concerning the proposed rule or DEA by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

    If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the website. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

    Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule and DEA, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R4-ES-2014-0065, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule and the DEA on the internet at http://www.regulations.gov at Docket No. FWS-R4-ES-2014-0065, or by mail from the Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Public Informational Meetings

    We will hold two public informational meetings on the dates and times shown in DATES at the addresses shown in ADDRESSES. People needing reasonable accommodations in order to attend and participate in the public informational meetings should contact Stephen Ricks, Mississippi Ecological Services Field Office, at (601) 321-1122, as soon as possible. In order to allow sufficient time to process requests, please call no later than 1 week before the meeting date (see DATES).

    Background

    It is our intent to discuss in this document only those topics directly relevant to the designation of critical habitat for black pinesnake. For more information on previous Federal actions concerning the black pinesnake, or information regarding its biology, status, distribution, and habitat, refer to the proposed designation of critical habitat published in the Federal Register on March 11, 2015 (80 FR 12846), and the October 6, 2015, final listing rule (80 FR 60468), both of which are available online at http://www.regulations.gov (at Docket Nos. FWS-R4-ES-2014-0065 and FWS-R4-ES-2014-0046) or from the Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    In our March 11, 2015, proposed rule, we proposed to designate critical habitat for the black pinesnake in eight units encompassing approximately 338,100 acres (136,824 hectares) in Forrest, George, Greene, Harrison, Jones, Marion, Perry, Stone, and Wayne Counties, Mississippi, and Clarke County, Alabama. In addition, we announced the availability of a DEA of the proposed critical habitat designation. We accepted comments on the proposal and DEA for 60 days, ending May 11, 2015. Based on information we received during the public comment period, we have decided to reopen the comment period to allow the public additional time to submit comments on the proposed critical habitat designation and to hold two informational meetings.

    New Information and Revisions to Previously Proposed Critical Habitat

    In this document, we propose certain revisions to the critical habitat designation we proposed for the black pinesnake on March 11, 2015. Specifically, we propose to revise the name of Unit 7 to reflect the removal of all lands by the landowner from the State Wildlife Management Area (WMA). As a result of the removal, the name of the proposed unit is changed from Scotch WMA to Jones Branch. We also propose to revise the boundaries of Unit 8 in Clarke County, Alabama, resulting in fewer acres on private land and more acres on State-owned land, with a net increase in acreage. An index map of the revised proposed critical habitat area (338,379 acres (136,937 hectares)) is provided in the Proposed Regulation Promulgation section, below.

    Unit 7: Jones Branch (formerly Scotch WMA), Clarke County, Alabama

    In September 2015, we received notice of a recent observation of a black pinesnake in proposed Unit 7 within the Scotch WMA in Clarke County, Alabama. A black pinesnake was captured during the course of a turkey trapping study and was positively verified by Service and State herpetologists. Therefore, within proposed Unit 7, there are now 5 records for black pinesnakes, one observed as recently as July 2015, and all records are in close proximity to one another and part of the same breeding population.

    In June 2016, Scotch Land Management Company, LCC, which manages most of the lands in proposed Unit 7, announced the withdrawal of its lands from the Alabama Department of Conservation and Natural Resources' WMA program. As a result, no lands within proposed Unit 7 are within the WMA, and therefore, the name of the unit is being changed from Scotch WMA to Jones Branch. Ownership of the lands within proposed Unit 7 has not changed; it remains entirely privately owned. In addition, the boundaries and acreage of proposed Unit 7 are the same as what we proposed for this unit on March 11, 2015.

    Unit 8: Fred T. Stimpson WMA, Clarke County, Alabama

    During a re-examination of all the proposed critical habitat units following the close of the proposed rule's comment period on May 11, 2015, we determined that some of the best black pinesnake habitat, located on the southern end of the Stimpson WMA, had not been incorporated into proposed Unit 8, and that other land, located on the northern end of proposed Unit 8, had been included in error. This re-assessment used updated aerial imagery, and wetlands, elevation, soils, and land cover overlays, to redefine the best available, most suitable, contiguous forested habitat surrounding the known pinesnake records at that site. Accordingly, we are shifting proposed Unit 8 to the south; among other things, this results in more acreage overlapping with the WMA, as well as a slight increase in the size of the unit. The total acreage in revised proposed Unit 8 is now 5,940 acres (2,404 hectares), an increase of 279 acres (113 hectares). The State of Alabama owns 3,789 acres (1,533 hectares; 64 percent) of Unit 8, and 2,151 acres (870 hectares; 36 percent) are privately owned. The newly added land in revised proposed Unit 8 is of the same habitat type, and contiguous with, those lands analyzed in the March 11, 2015, proposed rule; therefore, the determination that these additional lands meet the definition of critical habitat is the same as for the original proposed Unit 8. As with the original lands within proposed Unit 8, the additional lands are occupied; contain all of the physical or biological features of the black pinesnake to support life-history functions essential to the conservation of the subspecies; and may require special management and protection from threats as outlined in the March 11, 2015, critical habitat proposal.

    Authors

    The primary authors of this document are the staff members of the Mississippi Ecological Services Field Office, Southeast Region, U.S. Fish and Wildlife Service.

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended at 80 FR 12846 (March 11, 2015) as set forth below:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

    2. Amend § 17.95 by revising paragraphs (c)(5), (12), and (13) to read as follows:
    § 17.95 Critical habitat—fish and wildlife.

    (c) Reptiles.

    Black Pinesnake (Pituophis melanoleucus lodingi)

    (5) Note: Index map follows:

    BILLING CODE 4333-15-P EP11OC18.022

    (12) Unit 7: Jones Branch—Clarke County, Alabama.

    (i) This unit is bordered by Salitpa Creek to the south, Tallahatta Creek to the north, and Harris Creek to the west. It is located approximately 2.7 mi (4.3 km) southeast of Campbell. Unit 7 is located 1.1 mi (1.8 km) north of the intersection of Old Mill Pond Road and Reedy Branch Road.

    (ii) Map of Unit 7 (Jones Branch) follows:

    EP11OC18.023

    (13) Unit 8: Fred T. Stimpson Wildlife Management Area (WMA)—Clarke County, Alabama.

    (i) This unit is located between Sand Hill Creek and the Tombigbee River, is approximately 1 mi (1.6 km) north of Carlton, and is 1.5 mi (2.4 km) south of the intersection of County Road 15 and Christian Vall Road. Most of this unit is on the Fred T. Stimpson WMA.

    (ii) Map of Unit 8 (Fred T. Stimpson WMA) follows:

    EP11OC18.024
    Dated: August 14, 2018. James W. Kurth, Deputy Director, U.S. Fish and Wildlife Service, Exercising the Authority of the Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2018-22013 Filed 10-10-18; 8:45 am] BILLING CODE 4333-15-C
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 RIN 0648-BI46 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Coastal Migratory Pelagics Resources in the Gulf of Mexico and Atlantic Region; Amendment 31 AGENCY:

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

    ACTION:

    Notification of availability; request for comments.

    SUMMARY:

    The South Atlantic Fishery Management Council (South Atlantic Council) and Gulf of Mexico Fishery Management Council (Gulf Council) (Councils) have submitted Amendment 31 to the Fishery Management Plan (FMP) for Coastal Migratory Pelagics (CMP) of the Gulf of Mexico (Gulf) and Atlantic Region (Amendment 31) for review, approval, and implementation by NMFS. Amendment 31 would remove Atlantic migratory group cobia (Atlantic cobia) from Federal management under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). At the same time, NMFS would implement comparable regulations under the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act) to replace the existing Magnuson-Stevens Act based regulations in Atlantic Federal waters. The purpose of Amendment 31 is to facilitate improved coordination of Atlantic cobia in state and Federal waters, thereby more effectively constraining harvest and preventing overfishing and decreasing adverse socio-economic effects to fishermen.

    DATES:

    Written comments on Amendment 31 must be received by December 10, 2018.

    ADDRESSES:

    You may submit comments on Amendment 31, identified by “NOAA-NMFS-2018-0114,” by either of the following methods:

    Electronic submission: Submit all electronic public comments via the Federal e-Rulemaking Portal: http://www.regulations.gov. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0114 click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Karla Gore, NMFS Southeast Regional Office, 263 13th Avenue South St. Petersburg, FL 33701.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in required fields if you wish to remain anonymous).

    Electronic copies Amendment 31 may be obtained from the Southeast Regional Office website at https://www.fisheries.noaa.gov/action/coastal-migratory-pelagics-amendment-31-management-atlantic-migratory-group-cobia. Amendment 31 includes an environmental assessment, a fishery impact statement, a regulatory impact review, and a Regulatory Flexibility Act (RFA) analysis.

    FOR FURTHER INFORMATION CONTACT:

    Karla Gore, NMFS Southeast Regional Office, telephone: 727-551-5753, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The Magnuson-Stevens Act requires each regional fishery management council to submit FMPs or amendments to NMFS for review and approval, partial approval, or disapproval. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP or amendment, publish an announcement in the Federal Register notifying the public that the FMP or amendment is available for review and comment.

    Background

    Through the CMP FMP, cobia is managed in two distinct migratory groups. The Gulf migratory group of cobia ranges in the Gulf from Texas through Florida and in the Atlantic includes cobia off the east coast of Florida. Atlantic cobia is managed from Georgia through New York. The boundary between the two migratory groups is the Georgia-Florida state boundary. Both Gulf and Atlantic cobia were assessed through SEDAR 28 in 2013 and neither stock was determined to be overfished or experiencing overfishing.

    The majority of Atlantic cobia landings occur in state waters and, despite closures in Federal water in recent years, recreational landings have exceeded the recreational annual catch limit (ACL) and the combined stock ACL. This has resulted in shortened fishing seasons, which have been ineffective at constraining harvest. Following overages of the recreational and combined stock ACLs in 2015 and 2016, Federal waters closures for recreational harvest occurred in both 2016 (June 20) and 2017 (January 24). Additionally, Federal waters were closed to commercial harvest of Atlantic cobia in 2016 (December 5) and 2017 (September 4), because the commercial ACL was projected to be reached during the fishing year.

    Allowable harvest in state waters following the Federal closures varied by time and area. Georgia did not close state waters to recreational harvest of Atlantic cobia in 2016 or 2017. South Carolina allowed harvest in 2016 during May in the Southern Cobia Management Zone and closed state waters in 2017 when Federal waters closed. Most harvest of Atlantic cobia off Georgia and South Carolina occurs in Federal waters. Off North Carolina, recreational harvest of Atlantic cobia closed on September 30, 2016; in 2017, harvest was allowed May 1 through August 31. Off Virginia in 2016, harvest was allowed until August 30, 2016, and in 2017, Virginia allowed harvest June 1 through September 15. Harvest in state waters during the Federal closures contributed to the overage of the recreational ACL and the combined stock ACL.

    The South Atlantic Council requested that the Atlantic States Marine Fisheries Commission (ASMFC) consider complementary management measures for Atlantic cobia, as constraining harvest in Federal waters has not prevented the recreational and combined ACLs from being exceeded. The ASMFC consists of 15 Atlantic coastal states that manage and conserve their shared coastal fishery resources. The majority of ASMFC's fisheries decision-making occurs through the Interstate Fisheries Management Program, where species management boards determine management strategies that the states implement through fishing regulations.

    In May 2016, the ASMFC started developing an interstate FMP for Atlantic cobia with the purpose to improve cobia management in the Atlantic. In April 2018, the ASFMC implemented their Interstate FMP, which established state management for Atlantic cobia. Each affected state developed an implementation plan that included regulations in their state waters. In addition, the ASMFC is currently amending the Interstate FMP for Atlantic cobia to establish a mechanism for recommending future management measures to NMFS. If Amendment 31 is implemented, such management recommendations would need to be implemented in Federal waters through the authority and process defined in the Atlantic Coastal Act.

    The management measures contained within the ASMFC's Interstate FMP are consistent with the current Federal regulations for Atlantic cobia. For the recreational sector, the management measures in the Interstate FMP include a recreational bag and possession limit of one fish per person, not to exceed six fish per vessel per day, and a minimum size limit of 36 inches (91.4 cm), fork length. For the commercial sector, the management measures in the Interstate FMP include a commercial possession limit of two cobia per person, not to exceed six fish per vessel, and a minimum size limit of 33 inches (83.8 cm), fork length. Under the ASMFC plan, regulations in each state must match, or be more restrictive than, the Interstate FMP management measures. Georgia, South Carolina, North Carolina, and Virginia have implemented more restrictive regulations for the recreational sector in their state waters than specified in the Interstate FMP. Those regulations include recreational bag and vessel limits, and minimum size limits, in addition to allowable fishing seasons. The Interstate FMP also provides the opportunity for states to declare de minimis status for their Atlantic cobia recreational sector, if a state's recreational landings for 2 of the previous 3 years is less than 1 percent of the coastwide recreational landings for the same time period. States in a de minimis status would be required to adopt the regulations (including season) of the closest adjacent non-de minimis state or accept a one fish per vessel per day trip limit and a minimum size limit of 29 inches (73.7 cm), fork length. Maryland, Delaware, and New Jersey have declared a de minimis status.

    The Magnuson-Stevens Act requires a council to prepare an FMP for each fishery under its authority that requires conservation and management. Any stocks that are predominately caught in Federal waters and are overfished or subject to overfishing, or likely to become overfished or subject to overfishing, are considered to require conservation and management (50 CFR 600.305(c)(1)). Beyond such stocks, councils may determine that additional stocks require conservation and management. However, not every fishery requires Federal management and the NMFS National Standard Guidelines at 50 CFR 600.305(c) provide factors that NMFS and the councils should consider when considering removal of a stock from a FMP. This analysis is contained in Amendment 31.

    Based on this analysis, the Councils and NMFS have determined that Atlantic cobia is no longer in need of conservation and management within the South Atlantic Council's jurisdiction and the stock is eligible for removal from the CMP FMP. The majority of Atlantic group cobia landings are in state waters and the stock is not overfished or undergoing overfishing. However, the CMP FMP has proven ineffective at resolving the primary ongoing user conflict between the recreational fishermen from different states, and it does not currently appear to be capable of promoting a more efficient utilization of the resource. Most significantly, the harvest of Atlantic cobia is adequately managed in state waters by the ASMFC and their Interstate FMP, which was implemented in April 2018. Georgia, South Carolina, North Carolina, and Virginia have implemented more restrictive recreational regulations than those specified in the Insterstate FMP. Furthermore, the Interstate FMP requires that if a state's average annual landings over the 3-year time period are greater than their annual harvest target, then that state must adjust their recreational season length or recreational vessel limits for the following 3 years, as necessary, to prevent exceeding their harvest target in the future years. For the commercial sector, the ASMFC's Interstate FMP specified management measures for Atlantic cobia that are consistent with the current ACL and AM specified in the Federal regulations implemented pursuant to the CMP FMP.

    Therefore, NMFS and the Councils have determined that management of Atlantic cobia by the states, in conjunction with the ASMFC and Secretary of Commerce, will be more effective at constraining harvest and preventing overfishing; thereby, offering greater biological protection to the stock and decreasing adverse socioeconomic effects to fishermen. Further, management of Atlantic cobia by ASMFC is expected to promote a more equitable distribution of harvest of the species among the states.

    Action Contained in Amendment 31

    Amendment 31 would remove Atlantic cobia from Federal management under the Magnuson-Stevens Act. At the same time, NMFS would implement comparable regulations under the Atlantic Coastal Act to replace the existing Magnuson-Stevens Act based regulations in Federal waters.

    Current commercial management measures for Atlantic cobia include a minimum size limit of 33 inches (83.8 cm), fork length and a commercial trip limit of two fish per person per day, not to exceed six fish per vessel per day. Federal regulations for recreational harvest of Atlantic cobia in Federal waters include a minimum size limit of 36 inches (91.4 cm), fork length and a bag and possession of one fish per person per day, not to exceed six fish per vessel per day.

    Under the authority of the Atlantic Coastal Act, NMFS would implement these same minimum size limits, recreational bag and possession limits, and commercial trip limits in Federal waters. Additionally, NMFS would implement regulations consistent with current CMP FMP regulations for the fishing year, general prohibitions, authorized gear, and landing fish intact provisions specific to Atlantic cobia.

    The current Atlantic cobia commercial ACL is 50,000 lb (22,680 kg) and the recreational ACL is 620,000 lb (281,227 kg). The proposed removal of Atlantic cobia from Federal management under the Magnuson-Stevens Act would remove these sector ACLs. Thus, NMFS would implement a commercial quota of 50,000 lb (22,280 kg) through the Atlantic Coastal Act consistent with the current commercial ACL. The current commercial accountability measure (AM) requires that if commercial landings reach or are projected to reach the ACL, then commercial harvest will be prohibited for the remainder of the fishing year. NMFS would implement commercial quota closure provisions to prohibit commercial harvest once the commercial quota is reached or projected to be reached.

    The ASMFC's Interstate FMP has specified a recreational harvest limit (RHL) of 613,800 lb (278,415 kg) in state and Federal waters and state-by-state recreational quota shares (harvest targets) of the coastwide RHL. During the development of the Insterstate FMP, one percent of the amount of the recreational allocation of the current Federal ACL (initially 6,200 lb (2,812 kg)) was set aside to account for harvests in de minimis states (Maryland, Delaware, New Jersey). The harvest targets for each state, in both state and Federal waters, are 58,311 lb (26,449 kg) for Georgia, 74,885 lb (33,967 kg) for South Carolina, 236,316 lb (107,191 kg) for North Carolina and 244,292 lb (110,809 kg) for Virginia. Percentage allocations are based on states' percentages of the coastwide historical landings in numbers of fish, derived as 50 percent of the 10-year average landings from 2006-2015 and 50 percent of the 5-year average landings from 2011-2015.

    The proposed removal of Atlantic cobia from Federal management under the Magnuson-Stevens Act would remove the recreational sector AM for Atlantic cobia. The recreational AM requires that both the recreational ACL and the stock ACL are exceeded in a fishing year then in the following fishing year, recreational landings will be monitored for a persistence in increased landings, and, if necessary, the recreational vessel limit will be reduced to no less than 2 fish per vessel to ensure recreational landings achieve the recreational annual catch target, but do not exceed the recreational ACL in that fishing year. Additionally, if the reduction in the recreational vessel limit is determined to be insufficient to ensure that recreational landings will not exceed the recreational ACL, then the length of the recreational fishing season will also be reduced.

    In place of the current recreational AM, state-defined regulations and seasons implemented consistent with the ASMFC's Interstate FMP are designed to keep harvest within the state harvest targets. If a state's average annual landings over the 3-year time period are greater than their annual harvest target, then the Insterstate FMP requires the state to adjust their recreational season length or recreational vessel limits for the following 3 years, as necessary, to prevent exceeding their harvest target in the future years.

    If Amendment 31 is subsequently approved and implemented, Atlantic cobia would be managed under the ASMFC Interstate FMP in state waters and through Atlantic Coastal Act regulations in Federal waters. This will ensure that Atlantic cobia continues to be managed in Federal waters and that there would be no lapse in management of the stock. These regulations would be expected to be implemented concurrently with the removal of Atlantic cobia from the CMP FMP and serve essentially the same function as the current CMP FMP based management measures.

    Proposed Rule for Amendment 31

    A proposed rule that would implement Amendment 31 has been drafted. In accordance with the Magnuson-Stevens Act, NMFS is evaluating the proposed rule to determine whether it is consistent with the CMP FMP, the Magnuson-Stevens Act, and other applicable laws. If that determination is affirmative, NMFS will publish the proposed rule in the Federal Register for public review and comment.

    Consideration of Public Comments

    The Councils have submitted Amendment 31 for Secretarial review, approval, and implementation. Comments on Amendment 31 must be received by December 10, 2018. Comments received during the respective comment periods, whether specifically directed to Amendment 31 or the proposed rule, will be considered by NMFS in the decision to approve, disapprove, or partially approve Amendment 31. Comments received after the comment periods will not be considered by NMFS in this decision. All comments received by NMFS on Amendment 31 or the proposed rule during their respective comment periods will be addressed in the final rule.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 4, 2018. Margo B. Schulze-Haugen, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-22000 Filed 10-10-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 698 [Docket No. 180328324-8464-01] RIN 0648-BH87 Magnuson-Stevens Fishery Conservation and Management Act; Traceability Information Program for Seafood AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    Pursuant to the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2018 and the Magnuson-Stevens Fishery Conservation and Management Act (MSA), NMFS is proposing a Traceability Information Program for Seafood to establish registration, reporting and recordkeeping requirements for U.S. aquaculture producers of shrimp and abalone, two species subject to the Seafood Traceability Program, also known as the Seafood Import Monitoring Program (SIMP). This proposed rule, if finalized, would provide traceability for these species from the point of production to entry into U.S. commerce. Collection of traceability information for U.S. aquacultured shrimp and abalone will be accomplished by electronic submission of data to NMFS. This rule would require owners or operators of U.S. inland, coastal and marine commercial aquaculture facilities (“producers”) to report information about production and entry into U.S. commerce of shrimp and abalone products. In addition, this rule would require producers to register with NMFS and retain records pertaining to the production of shrimp and abalone and entry of those products into U.S. commerce. This proposed rule serves as a domestic counterpart to the shrimp and abalone import requirements under SIMP, and will help NMFS verify that U.S. aquacultured shrimp and abalone were lawfully produced by providing information to trace each production event(s) to entry of the fish or fish products into U.S. commerce. The rule will also decrease the incidence of seafood fraud by requiring the reporting of this information to the U.S. Government at the point of entry into U.S. commerce so that the information reported (e.g., regarding species and harvest location) can be verified.

    DATES:

    Written comments must be received by November 26, 2018.

    ADDRESSES:

    Written comments on this action, identified by NOAA-NMFS-2018-0055, may be submitted by either of the following methods:

    Federal eRulemaking Portal: Go to Docket Number NOAA-NMFS-2018-0055, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Celeste Leroux, Office of International Affairs and Seafood Inspection, NOAA Fisheries, 1315 East-West Highway, Silver Spring, MD 20910.

    Instructions: All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All personal identifying information (for example, name and address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

    NMFS will accept anonymous comments. Enter N/A in the required fields if you wish to remain anonymous. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe portable document file (PDF) formats only.

    Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to the NOAA Fisheries Office of International Affairs and Seafood Inspection (IASI) and by email to: [email protected] or fax to (202) 395-7285.

    FOR FURTHER INFORMATION CONTACT:

    Celeste Leroux at (301) 427-8372 or [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    On March 15, 2015, the Presidential Task Force on Combating Illegal, Unreported, and Unregulated (IUU) Fishing and Seafood Fraud (Task Force), co-chaired by the Departments of Commerce and State, published its action plan to implement Task Force recommendations for a comprehensive framework of integrated programs to combat IUU fishing and seafood fraud. As part of implementing the Task Force plan, NMFS issued a final rule (81 FR 88975, December 9, 2016) for a risk-based traceability program to track seafood from production to entry into U.S. commerce known as the Seafood Traceability Program or Seafood Import Monitoring Program (SIMP) (see 50 CFR 300.320-300.325). For clarity, NMFS will refer to this program as SIMP throughout this preamble, while the codified regulatory text at 50 CFR 300.320-300.325 uses the term “Seafood Traceability Program.” The final rule included, for designated priority fish species, permitting, reporting, and recordkeeping requirements relating to the importation of certain fish and fish products to provide for traceability from point of production to point of entry into U.S. commerce in order to prevent illegally harvested or produced and misrepresented seafood from entering into U.S. commerce. SIMP applies to thirteen species and species groups, including shrimp and abalone, identified as particularly vulnerable to IUU fishing and/or seafood fraud. However, in the final rule establishing SIMP, NMFS stayed program requirements for shrimp and abalone species indefinitely because there is commercial scale aquaculture of shrimp and abalone in the United States and gaps existed in the collection of traceability information for domestic aquaculture, which is largely regulated at the State level.

    In the SIMP final rule, NMFS explained that when the domestic reporting and recordkeeping gaps have been closed, NMFS will then publish an action in the Federal Register to lift the stay of the effective date for § 300.324(a)(3) of the rule pertaining to shrimp and abalone. (81 FR at 88977-78, December 9, 2016).

    On March 23, 2018, the President signed into law the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2018 (2018 Appropriations Act) (Pub. L. 115-141, Div. B). Section 539 of the Act directs the Secretary of Commerce to lift the stay on the effective date of the SIMP final rule for shrimp and abalone species and establish a compliance date not later than December 31, 2018. On April 24, 2018, NMFS published a final rule lifting that stay, and established a compliance date of December 31, 2018 for imports of shrimp and abalone (83 FR 17762).

    In addition to the requirement to include shrimp and abalone species under SIMP, section 539 of the 2018 Appropriations Act directed the Secretary of Commerce to “. . . establish a traceability program for United States inland, coastal, and marine aquaculture of shrimp and abalone . . .” and by December 31, 2018 to “. . . promulgate such regulations as are necessary and appropriate to establish and implement the program.”

    This proposed Traceability Information Program for Seafood (Program) would establish registration, reporting and recordkeeping requirements for domestic, commercial aquaculture producers of shrimp and abalone species and products containing those species from the point of production to entry into U.S. commerce. A producer, i.e., the owner or operator of an aquaculture facility that produces shrimp or abalone for human consumption, is responsible for the registration, reporting and recordkeeping requirements of this Program. Section 698.2 defines producer and aquaculture facility. Consistent with the plain language of section 539 of the 2018 Appropriations Act, the scope of the Program will be limited to shrimp and abalone species unless and until otherwise authorized by Congress. The requirements under this proposed Program will fill the gaps identified during development of the SIMP with respect to the collection of traceability information for domestic aquaculture of shrimp and abalone species.

    Section 539 further directs that information collected pursuant to a regulation promulgated under this section shall be confidential and shall not be disclosed except for the information disclosed under section 401(b)(1) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1881a(b)(1). Section 1881a(b)(1) corresponds to MSA section 402(b)(1). Thus, NMFS believes that the reference to MSA section 401(b)(1) is a typographical error and the intent of Congress was to cite to MSA section 402(b)(1). MSA section 401(b)(1) pertains to fishing vessel registration, whereas 402(b)(1) addresses data confidentiality which lends further support to the notion that Congress intended to cite to section 402(b)(1). Accordingly, NMFS will apply the data confidentiality provisions of MSA section 402(b)(1) to the data required to be submitted under this proposed Program.

    The proposed Traceability Information Program for Seafood consists of three components: (1) Registration; (2) monthly reporting of production events; and (3) recordkeeping requirements with respect to both production events and chain of custody information from production to the point of entry into U.S. commerce via sale or non-sale transaction (including transfers between components of a vertically-integrated enterprise). Application of the Program's reporting and recordkeeping requirements would enable NMFS to determine the origin of the domestic aquaculture shrimp and abalone products and confirm that they were lawfully produced and not misrepresented. Coextensive with the scope of SIMP, the Traceability Information Program for Seafood traces fish and fish products from production to entry into U.S. commerce. Fish or fish products regulated under the Traceability Information Program for Seafood are shrimp and abalone species produced by an aquaculture facility and products containing those aquacultured species. Section 698.2 defines fish or fish products regulated under this part, “produce/production,” and “entry into U.S. commerce.”

    I. Registration

    In § 698.4, NMFS proposes to identify aquaculture producers (i.e., owners or operators of aquaculture facilities) through a registration process that will link each producer with a unique producer identifier. The purpose of registration is not to permit or regulate production activities, but rather to identify the person responsible for reporting data to NMFS and recordkeeping for audit and inspection purposes. Use of a unique producer identifier will ensure that data reported is attributed to the correct producer. As proposed, all U.S. producers of species covered by this program that annually enter product for human consumption valued at $1,000 or more into U.S. commerce must electronically register and submit their fee for registration via an electronic reporting system established by NMFS. The amount of the one-time registration fee, currently estimated to be $30.00, will be calculated in accordance with procedures set forth in Chapter 9 of the NOAA Finance Handbook for determining the administrative costs for special products and services (http://www.corporateservices.noaa.gov/finance/Finance%20Handbook.html); the registration fee will not exceed such costs. Because the electronic registration system has not yet been completed, NMFS has not made a final determination about total development costs and out-year costs for operations and maintenance. Additionally, the number of users may vary from NMFS estimates as the number of aquaculture operations expands or contracts. Consequently, the calculation of the administrative cost recovery fee may be higher or lower than the $30 estimate. NMFS requests comment on the impact that registration fees may have on aquaculture operations that would be subject to this rule.

    NMFS is proposing $1,000 as the de minimis sales level for exemption from the Program because it matches the U.S. Department of Agriculture minimum sales threshold for reporting under the Census of Agriculture. As producers are familiar with the Census of Agriculture, adopting their threshold should allow producers to easily self-identify their need to register and report under this Program. Additionally, it is presumed that foreign aquaculture operations producing under this annual value threshold would be serving local markets and not be exporting product to the United States, thus they would not have shipments subject to the documentation requirements of SIMP. NMFS requests public comment to assist in the identification of alternative thresholds for registration and reporting under this Program that would exempt aquaculture facilities where all production for human consumption is intended for direct sale to consumers, as this level of small-scale commerce is not comparable to the scale of commerce monitored under the Seafood Traceability Program.

    A producer who is required to register only needs one registration identifier. If the producer provides a valid and unique registration identifier for its aquaculture facility that is currently in use by another State or federal agency, NMFS may approve the use of that alternative identifier, provided that NMFS can independently verify the identity of the producer. NOAA seeks public comment on whether identifiers assigned under other programs, such as the Data Universal Numbering System (DUNs), the U.S. Food and Drug Administration's Registration of Food Facilities, or a similar State or federal facility registration, could be used for this purpose, and whether such an approach would reduce the burden of registration on industry.

    In addition to the requirements in this proposed rule, for some species or products, permits from other federal or State agencies may be required (e.g., U.S. Fish and Wildlife Service permits for products of species listed under the Convention for International Trade in Endangered Species). The Traceability Information Program for Seafood does not supersede any other federal or State requirements.

    The electronic reporting system to be established by NMFS will consist of two parts. The first will be a publicly accessible registration page where producers (an aquaculture facility owner or operator) will provide basic information to identify their business:

    • Business name, Tax Identification Number, physical address, and phone number • Farm physical address (if different than business physical address) • Point of contact name, mailing address, email and phone number

    Once a producer identifier has been designated via the NMFS system, the producer can obtain login credentials to access the second part—a data entry portal that will require a unique login for each user. After logging into this site, the user will be able to report the required data elements as described in section III below, Data for Reporting and Recordkeeping.

    II. Registration Renewal

    Section 698.4(c) sets out a registration renewal requirement. As explained below, this rule requires that the producer, or representative acting on its behalf, submit reports to NMFS via an electronic reporting system at monthly intervals. If a producer has no reportable production events for an entire 12-month period, the producer must so certify through the electronic registration and reporting system established by NMFS in order to renew the producer's registration. Producers that have submitted monthly reports would need to certify that all applicable entries have been reported. Annually, all producers would need to confirm their identifying business information in order to renew their registration. Once the producer has submitted all required certifications, registration renewals would be automatic and at no additional cost to the producer. If the registration lapses, the producer would have to re-register and pay the cost-recovery fee.

    III. Data for Reporting and Recordkeeping

    The data reporting and recordkeeping requirements under this rule would be in addition to any reporting and recordkeeping required by States or other federal agencies. To align this proposed Program with the SIMP data reporting requirements, NMFS proposes, in § 698.5, that producers required to register under the Traceability Information Program for Seafood would be required to report information for each entry into U.S. commerce of fish or fish products regulated under the Traceability Information Program for Seafood that are intended for human consumption. As outlined in § 698.5(b), producers would submit reports through NMFS's electronic registration and reporting system and reports would include:

    • Identifying the aquaculture facility producing the fish or fish products by providing a current, valid producer identifier.

    • Information on the fish or fish products produced: 3-alpha Aquatic Sciences and Fisheries Information System (ASFIS) code; Product weight and form (whole, head removed, etc.) at point of production and at point of entry into U.S. commerce.

    • Information on where and when the fish were produced: Location of aquaculture facility; Date of production (i.e., removal from aquaculture facility).

    • Name of entity(ies) (processor, dealer, retailer) to which fish was sold or delivered. For direct sales, the producer would need to report information under the first three bullets above. The producer would not need to report information about the consumer, just describe where the fish was sold (e.g., on premises of the aquaculture facility, roadside stand, or farmer's market). See proposed §§ 698.5(b) and 698.2 (defining “direct sale” and “entry into U.S. commerce”).

    NMFS proposes that at monthly intervals producers would be required to report information for each entry into U.S. commerce of fish or fish products intended for human consumption from the previous month. For example, a producer would be required to report each applicable entry occurring in the month of May on or before the last day of June. If no applicable entries occurred in a given month, no report to NMFS is required. However, if a producer has no reportable production events for an entire 12-month period, the producer must certify that through the electronic reporting system established by NMFS in order to renew its registration. See Registration Renewal section above.

    In designing the reporting requirements for the Traceability Information Program for Seafood, NMFS reviewed the temporal span of harvests that contribute to an entry subject to SIMP requirements and found that the temporal span for most entries was a month or less. Thus, NMFS is proposing monthly reporting for the Traceability Information Program for Seafood which provides a similar reporting burden when compared to the SIMP and contributes to the objective of the rule. NMFS seeks comment on whether producers would have production to report every month and whether the monthly reporting frequency for domestic producers is, in fact, comparable to the temporal aggregation of harvests required under the SIMP.

    Producers would also be required to keep supporting documentation for the reports that are sufficient to trace the fish or fish product from the point of production (i.e., removal from the aquaculture facility) to entry into U.S. commerce as described in § 698.6(a). NMFS expects that typical supply chain records that are kept in the normal course of business, including production logs, and transaction records which include such information as the identity of the custodian, the type of processing, and the weight of the product, would provide sufficient information for NMFS to conduct a trace of the supply chain. Such information must include records regarding each custodian of the fish and fish product, including, as applicable, processors, storage facilities, and distributors, sufficient to trace the fish or fish product from the point of entry into U.S. commerce back to the point of production and to verify the information reported about entry into U.S. commerce. Section 698.6(a) establishes that producers would be required to retain reports and supporting documentation, in either paper or electronic format, for two years from the date of the reports. Producers must make reports and supporting documentation available for inspection by NMFS and must provide them to NMFS upon request to support an audit as stated in § 698.6(b)-(c)). NMFS requests comment on the duration of the recordkeeping requirement and the extent to which the two-year period is consistent with other State and Federal recordkeeping requirements applicable to the business operations of aquaculture facilities that would be subject to this program.

    NMFS proposes to mirror the requirements of this Program such that its requirements are equivalent to those that apply to imports of shrimp and abalone under SIMP. Thus, production of shrimp and abalone species not intended for human consumption (e.g., fish produced for research, grow out of post-larvae, broodstock, or environmental management programs) would not be within the scope of this proposed domestic Traceability Information Program for Seafood as stated in § 698.1(d), because SIMP is limited to imports of covered species for human consumption. In addition, any producer that enters shrimp and/or abalone valued at less than $1,000 total per year into U.S. commerce is exempt from the registration, reporting, and recordkeeping requirements of this Program as stated in § 698.4(c).

    IV. Audit and Inspection Mechanisms

    To implement this regulation, business rules will be programmed into the electronic registration and reporting system established by NMFS to automatically validate that the producer has populated all data fields in conformance with format specifications. Absent this validation, the report submission would be rejected and the producer would be notified of the deficiencies that must be addressed in order for the report to be accepted.

    Reports may also be subject to random or targeted audit by NMFS, as provided in § 698.6(b), in order to verify that the supplied data elements are true, can be corroborated (e.g., production was authorized by the applicable authority, processor receipts correspond to outputs/deliveries), and are sufficient to demonstrate that products entering U.S. commerce were not produced in violation of domestic law and are not fraudulently represented. If a producer fails to provide requested records to NMFS in a timely manner, or fails to provide information to verify that covered products were lawfully produced and accurately represented, the matter will be referred to NOAA Fisheries Office of Law Enforcement for possible follow-up action.

    Intersection With Other Applicable Requirements

    In addition to the registration, reporting, and recordkeeping requirements of this proposed rule, several States have specific regulations applicable to aquaculture operations, typically including requirements on permitting, certification, and registration. Table 1 contains information, by State, on existing regulations relevant to traceability. To the extent practicable, and subject to applicable data confidentiality laws, NMFS will work to minimize duplicative requirements. For example, proposed § 698.4(b) provides that NMFS may approve the use of an alternative producer identifier obtained through other Federal or State programs.

    Table 1—Existing Aquaculture Registration and Reporting Requirements State Citation Summary of requirement Alabama Statute: Ala. Code section 9-2-150 (2015) Oyster leases required. California Statute: California Fish & Game Code section 15400 (2006) Aquaculture Registration is required for each facility devoted to the propagation, cultivation, maintenance, and harvesting of fish, shellfish and plants in marine, brackish, and fresh water. Connecticut Statutes: Conn. Gen. Stat. section 26-194 (2013); Conn. Gen. Stat. section 22-11i (2013) Aquaculture-related permits are overseen by the Department of Agriculture, Bureau of Aquaculture and the Department of Energy and Environmental Protection. Permits are required. Delaware Statute: Del. Code tit. 3 section 4 (2013); Regulation: 7-3800 Del. Admin. Code (2014) In addition to various permits needed dependent on species, all aquaculture operations must register with Delaware Department of Agriculture—valid for 5 years. Northern Marianas Islands Statute: 2006 N. Mar. I. Public Law 15-43 Site permit in coastal waters only. Florida Statute: Fla. Stat. section 597.004 (2017) Aquaculture registration is required with the Florida Department of Agriculture and Consumer Affairs, annually. Georgia Statute: Ga. Code Ann. section 27-4-255 (2017) Aquaculture of some species requires permits and for other species, registration with the Georgia Department of Natural Resources. Hawaii Statute: Haw. Rev. Stat. section 187-3.5 (2012); Regulation: Haw. Code R. section 13-74-43 (1996) Permit with record-keeping required for aquaculture, including fish ponds through the Hawaii Department of Land and Natural Resources. Illinois Regulation: Ill. Admin. Code tit. 17, pt. 870 Annual permit required, with a recordkeeping component and annual reporting to the Illinois Department of Natural Resources. Indiana Regulation: Aquaculture Permit, 312 Ind. Admin. Code 9-10-17 (2001) A permit is needed from Indiana Department of Agriculture, which requires records retention and inspection of the facility at any time. Iowa Regulation: Iowa Admin. Code r. 571-89 (1992) Annual License required through Iowa Department of Natural Resources, which includes an annual reporting requirement. Louisiana Regulation: La. Admin. Code tit. 76, section 901-907 Permit applications currently available for Catfish, Tilapia and Oysters. Other species must enter a separate approval process for permitting through the Louisiana Department of Fish and Wildlife. Maine Statutes: Me. Rev. Stat. Ann. tit. 12, section 6072 (2017); Me. Rev. Stat. Ann. tit. 7 section 1501 (2017); Regulation: 13 188 Me. Code R. 2 (2018) Coastal aquaculture through 20 year leases from the Maine Department of Marine Resources with annual rent and record-keeping requirements.
  • Land-based aquaculture is licensed through the Department of Agriculture, Conservation & Forestry.
  • Maryland Regulation: Md. Code Regs. 08.02.14 (2016) Must be permitted before operating a facility through the Maryland Department of Natural Resources. Massachusetts Statute: Mass. Gen. Laws ch. 130, section 80; Regulation: 322 Mass. Code Regs. 7.01-02 (2017); Guidance: Dept. of Food & Agriculture, Mass. Aquaculture Permits Guidance Doc. (April 1, 1998) Facilities must be permitted and the permit has a record keeping component and requires a State Inspection prior to permitting. Both the Department of Environmental Protection and the Division of Fisheries and Wildlife are involved in permitting. Michigan Statute: Mich. Comp. Laws section 286.871-884 (1996) Aquaculture facilities must be registered annually with the Michigan Department of Agriculture and Rural Development and are limited to approve species. Operations may be inspected by State Officials at any time. Mississippi Statute: Miss. Code Ann. section 79-22-13 (2013) Some types of aquaculture require a permit from the Mississippi Department of Agriculture and Commerce. A requirement of the permit is record-keeping. Nevada Statutes: Nev. Rev. Stat. section 561.301; Nev. Rev. Stat. section 576.128 Aquaculture registration (same as farm registration) is annual with the Nevada Department of Agriculture. New Hampshire Statute: N.H. Rev. Stat. Ann. section 211: 62-e (2016) Aquaculture must be permitted through the New Hampshire Department of Fish and Game. New Jersey Statute: N.J. Rev. Stat. section 4:27 (1997) Aquaculture permit is required along with a license for operations through both the Department of Environmental Protection and the Department of Agriculture. New York Regulation: N.Y. Comp. Codes R. & Regs. tit. 6, section 48 (2018) The New York Department of Environmental Conservation issues annual permits that require record-keeping. North Carolina Statutes: N.C. Gen. Stat. section 63-106; N.C. Gen. Stat. section 16A-113 (2017) The North Carolina Department of Agriculture and Consumer Services administers permits for allowable freshwater species. North Carolina Division of Marine Fisheries authorizes marine aquaculture leases with annual fees. Ohio Regulation: Ohio Adm. Code 1501:31-39-01 Annual Permit from the Ohio Division of Wildlife is required along with a recordkeeping requirement. Oregon Statutes: Or. Rev. Stat. Ann. section 215.213 (2018); Or. Rev. Stat. Ann. section 622.270 Annual permit for shellfish required through the Oregon Department of Agriculture with record-keeping and an annual report submission. Rhode Island Statute: 20 R.I. Gen. Laws section 20-10 (2013); Regulation: 250 R.I. Code R. section 40-00-1 (2017) Permit through the Coastal Resources Management Council is required, and automatically renewed annually. Other permits may also be required. South Carolina Statute: S.C. Code Ann. section 50-18-2 (2003) Permit required for freshwater game fish aquaculture through the South Carolina Department of Natural Resources, with a record keeping requirement. Annual permits also required for shellfish. Texas Statute: Tex. Agriculture Code sections 134.011-134.023 (1999) A Texas Department of Agriculture license. Texas Natural Resource Conservation Commission permit to dispose of wastewater. The license is valid for two years and is renewable. Washington Statutes: Wash. Aadmin. Code section 220-370-060 (2017); Wash. Admin. Code section 220-370-090 (2017) In addition to various permits for different types of aquaculture, all aquatic farms must register with the Washington Department of Fish and Wildlife. Finfish farms must also keep records.

    State and federal regulations applicable to aquaculture operations are not affected by this rule, thus proposed § 698.3 provides that the registration, reporting and recordkeeping requirements under the Traceability Information Program for Seafood do not supersede any requirements established under any other federal or State law.

    NOAA seeks public comment on Table 1, including information on additional, existing registration and reporting requirements and mechanisms that might assign unique, alternate producer identifiers referenced in § 698.4(b) that could be recognized by NMFS for purposes of the Traceability Information Program for Seafood.

    Stakeholder Engagement

    NMFS will hold public meetings to discuss implementation of the Traceability Information Program for Seafood and address questions from participants. Information on future Program implementation meetings and transcripts of prior meetings and webinars can be found at https://www.fisheries.noaa.gov/about/office-international-affairs-seafood-inspection.

    NMFS encourages stakeholders who may be affected by this rule, if implemented as proposed, to participate in the public meetings and to submit written comments (see ADDRESSES). In particular, NMFS seeks comment on:

    The assumption that the proposed recordkeeping incurs a marginal cost given the background of Food and Drug Administration recordkeeping requirements and that the proposed NMFS online reporting system will minimize the reporting burden;

    the assumption that the $1000 annual value threshold as a de minimis level for exemption from the Program is, in fact, comparable to the minimum size of farms contributing to imports of these species under the SIMP;

    the assumption that the registration/reporting system, if operated at cost of $30 per registrant, is not a significant business cost and, if the cost varies depending on final system costs and number of users, what threshold fee would constitute a significant cost;

    whether the proposed recordkeeping period of 2 years is inconsistent with other State or federal requirements applicable to businesses affected by the Program; and,

    whether the Program overlaps with State recordkeeping and reporting programs, especially for abalone producers in California and Hawaii.

    Classification

    This proposed rule is published under the authority of the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2018, Public Law 115-141, and the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq.

    The NMFS Assistant Administrator has determined that this proposed action is consistent with the provisions of these and other applicable laws, subject to further consideration after public comment.

    This proposed rule has been determined to be significant for the purposes of Executive Order 12866. NMFS has prepared a regulatory impact review of this action, which is available from NMFS (see ADDRESSES).

    Regulatory Flexibility Act

    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) for this proposed rule, as required by section 603 of the RFA, 5 U.S.C. 603. The IRFA describes the economic impact that this proposed rule, if implemented, would have on small entities. A description of the proposed rule, why it is being considered, and the objectives of, and legal basis for this proposed rule are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from the NMFS (see ADDRESSES). A summary of the IRFA follows.

    For U.S. commercial aquaculture producers of shrimp and abalone for human consumption, this proposed rule would create a mandatory registration, reporting and recordkeeping program. NMFS anticipates that U.S. entities will not have any significant adverse economic effects as a result of this action, because it does not pose any significant new burdens with regard to existing reporting and recordkeeping requirements or business practices. NMFS believes the recordkeeping and reporting costs are accounted for in earlier U.S. Food and Drug Administration (FDA) regulatory actions, which contain more extensive recordkeeping requirements. See FDA Public Health Security and Bioterrorism Preparedness and Response Act (Bioterrorism Act) final rule, Table 23, 69 FR 71562 at 71646 and Table 26 at 71650 (Dec. 9, 2004); Food Safety Modernization Act regulations (21 CFR 1.361); and Seafood Hazard Analysis and Critical Control Point (HACCP) regulations (21 CFR part 123). NMFS seeks comment on whether there could be economic impacts that have not been evaluated in the supporting analyses of this proposed rule, or that could be difficult to anticipate.

    NMFS proposes this action to comply with the 2018 Appropriations Act and to collect or have access to additional data on domestic aquaculture shrimp and abalone products to determine whether they have been lawfully produced and are accurately represented, to deter illegally-produced or misrepresented seafood from entering into U.S. commerce, and as a domestic counterpart to the shrimp and abalone species import requirements under the Seafood Import Monitoring Program. These data reporting and recordkeeping requirements affect producers of aquacultured shrimp and abalone products, many of which are small businesses that commercially produce for entry into U.S. commerce products valued at $1,000 or more per year. The registration, electronic reporting and recordkeeping requirements proposed by this rulemaking would build on current business practices (e.g., information systems to document business transactions, facilitate product recalls, maintain product quality, or reduce risks of food borne illnesses) and are not estimated to pose significant adverse or long-term economic impacts on small entities.

    The proposed rule, if implemented, will directly affect entities engaged in aquaculture of shrimp and abalone within the scope of the Traceability Information Program for Seafood. The Small Business Administration has established size criteria for all major industry sectors in the United States including aquaculture operations. A business involved in aquaculture is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $0.75 million North American Industry Classification System (NAICS) code 112512 Shellfish Farming, 112519 Other Aquaculture, and 112511 finfish farming and fish hatcheries) for all its affiliated operations worldwide.

    Based on the United States Department of Agriculture Census of Agriculture, Census of Aquaculture 2013 and the Bureau of Labor and Statistics' 2017 mean hourly wage for bookkeeping, NMFS has estimated that this rule would potentially affect 66 producers, requiring each to make a maximum of 12 reports annually ($19.76/hour at 0.5 hours per report) to NMFS on production of the species subject to the Traceability Information Program for Seafood. Total maximum costs for registration and renewal, data entry, recordkeeping and data storage per registrant are estimated by NMFS to amount to $150.21 (includes $30.00 registration fee and registration labor cost) in the first year, and $118.56 annually thereafter.

    This rule has been developed to avoid duplication or conflict with any other federal rules. To the extent that the requirements of the rule overlap with other reporting requirements applicable to the designated species, this has been taken into account to avoid collecting data more than once. Given the fact that traceability systems are being increasingly used within the seafood industry, it is not expected that this rule will significantly affect the overall volume of trade or alter trade flows in the U.S. market for fish and fish products that are legally produced and accurately represented.

    Based on limited financial information available to NMFS about the affected entities, NMFS believes that most affected producers of shrimp are small entities as defined by the Regulatory Flexibility Act (RFA); that is, they are independently owned and operated and not dominant in their fields of operation, and have annual receipts of no more than $0.75 million. NMFS believes there are a few producers of abalone that would be considered large entities. While there are a few large entities, the one-time registration fee and cost of reporting are low (maximum annual cost of $150.21). Therefore, NMFS has determined that this proposed rule would affect a substantial number of small entities; however, the issue of disproportionate effects on small versus large entities does not arise in the present case.

    With regard to the possible economic effects of this action, NMFS believes that small entities will not be significantly adversely affected by this action because it does not directly restrict production or trade in the designated species and does not pose entirely new burdens with regard to the collection and submission of information necessary to comply with the monitoring program. While this rule would establish new reporting requirements, it will not require any additional professional skill. Some of the data proposed to be collected at entry into U.S. commerce or to be subject to recordkeeping requirements is already collected by the seafood industry in order to comply with food safety and product labeling requirements or to document business transactions.

    NMFS considered two regulatory action alternatives in this rulemaking as well as a no-action alternative: NMFS considered requiring registration for all shrimp and abalone aquaculture producers, including those who sell under $1,000 per year of these species, but determined that producers of such small amounts of shrimp and abalone can be exempted from the Program without impacting its overall integrity. Also, there is no verifiable data on firms under the $1,000 threshold. The $1,000 threshold was chosen because it matches the U.S. Department of Agriculture minimum sales threshold for reporting under the Census of Agriculture. NMFS also considered requiring reporting of all shrimp and abalone production regardless of its intended use, but determined this was not necessary as the selection of certain Harmonized Tariff Schedule codes for inclusion under SIMP limits the scope of SIMP to just those seafood products intended for human consumption and excludes products not intended for human consumption. Recognizing that $1,000 in sales per year may result in the inclusion of facilities not selling meaningful quantities of shrimp and abalone into U.S. commerce, NMFS may finalize a higher threshold. NMFS seeks comment on a threshold that both satisfies the requirements of the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2018, while also minimizing burden on the smallest producers.

    In light of the information on total annual compliance cost described above, NMFS believes the rule, if implemented will not reduce profits for a substantial number of small entities. Therefore, NMFS believes the proposed rule will not have a significant economic impact on a substantial number of small entities, however, we seek public comment on this analysis. NMFS prepared an Initial Regulatory Flexibility Analysis to describe the economic impact this proposed rule would have on small entities. A copy of this analysis is available from NMFS (see ADDRESSES). NMFS requests comments, particularly focused on the costs of compliance with the proposed reporting and recordkeeping requirements.

    Paperwork Reduction Act

    This proposed rule contains a new collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval. The information collection burden for the requirements proposed under this rule (i.e., registration or renewal; monthly reports; recordkeeping and data storage; and provision of records of supply chain information when selected for audit) as applicable to production of shrimp and abalone species is estimated by NMFS to be 0.5 hour. Compliance costs are estimated to total a maximum of $1,980.00 ($30.00 × 66) for the registration fees, no more than $7,824.96 ($118.56 × 66) for data entry, and $0 for data storage as these records are already required for tax and business purposes.

    Registration Requirement: With the requirement to register as a producer under this program, there would be approximately 66 respondents who would need approximately 5 minutes to fill out the online registration form resulting in a total annual burden of 5.5 hours and a cost of $108.68.

    Data Submission Requirement: Data to be submitted electronically are, to some extent, either already collected by the trade in the course of supply chain management, already required to be collected and available for inspection under existing federal programs (e.g., Bioterrorism Act; Food, Drug and Cosmetic Act), or may be collected in support of third party certification schemes voluntarily adopted by the trade.

    Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the appropriateness of monthly reporting for achieving stated objectives; the accuracy of the assumptions used in calculating the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to the NOAA Fisheries Office of International Affairs and Seafood Inspection at the ADDRESSES above, and by email to [email protected] or fax to (202) 395-7285.

    Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

    List of Subjects in 50 CFR Part 698

    Fisheries, Statistics, Aquaculture, Reporting and recordkeeping.

    Dated: October 4, 2018. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 698 is proposed to be added to read as follows: PART 698—TRACEABILITY INFORMATION PROGRAM FOR SEAFOOD Sec. 698.1 Purpose and scope. 698.2 Definitions. 698.3 Relation to other Federal and state laws. 698.4 Aquaculture facility registration. 698.5 Reporting. 698.6 Recordkeeping and audits. 698.7 Confidentiality and disclosure. 698.8 Prohibitions. Authority:

    Pub. L. 115-141, Div. B, section 539; 16 U.S.C. 1801 et seq.

    § 698.1 Purpose and scope.

    (a) This part implements a Traceability Information Program for Seafood from the point of production to entry into U.S. commerce pursuant to the Commerce, Justice, Science and Related Agencies Appropriations Act, 2018, section 539 (Pub. L. 115-141, Div. B) and the Magnuson-Stevens Fishery Conservation and Management Act (MSA).

    (b) This Program establishes registration, reporting and recordkeeping requirements for U.S. inland, coastal, and marine aquaculture facilities that produce shrimp and abalone and complements the Seafood Traceability Program established in § 300.324 of this title.

    (c) The scope of the Program is limited to U.S. commercial aquaculture facilities that produce shrimp and abalone for human consumption for entry into U.S. commerce.

    (d) Production of fish and fish products regulated under this part not intended for human consumption, including production intended for research, broodstock, or post-larval grow out, is outside the scope of the Program.

    § 698.2 Definitions.

    In addition to the terms defined in § 600.10 of this title, and in the MSA, the following definitions apply to this part. If a term is defined differently in § 600.10, or in the MSA, the definition in this section shall apply.

    Aquaculture facility means any farm with ponds, tanks or pools in open air or in an enclosed structure, or a net pen or enclosure in open water that produces for human consumption fish or fish products regulated under this part.

    Direct sale means the sale or offer for sale of fish or fish products regulated under this part from an aquaculture facility, whether on or off the premises of the facility, to an individual for personal use.

    Entry into U.S. commerce means direct sale or the sale or transfer of custody of fish or fish products regulated under this part to a first receiver, either directly or through a third party. Entry into U.S. commerce includes changes in custody with no change in ownership, e.g., the receiving or acquiring of fish or fish products from an aquaculture facility by a processor or distributor that is owned by the same person who owns the aquaculture facility.

    First receiver means the person who first receives fish produced from an aquaculture facility for any commercial purpose (e.g., processing, distribution or sale) other than a direct sale. The first receiver may be a person affiliated with the aquaculture facility that receives fish or fish products regulated under this part through a no-sale transaction but does not include a person taking possession of fish for the sole purpose of transportation.

    Fish or fish products regulated under this part means shrimp and abalone species produced by an aquaculture facility and products containing those species.

    Person has the same meaning as under section 3 of the MSA, 16 U.S.C. 1802.

    Producer means the owner or operator of an aquaculture facility.

    Produce/Production means remove/removal of fish from an aquaculture facility for the purposes of entry into U.S. commerce.

    Traceability Information Program for Seafood means the registration, data reporting and recordkeeping requirements established under this part.

    § 698.3 Relation to other Federal and state laws.

    Registration, reporting and recordkeeping requirements under the Traceability Information Program for Seafood do not supersede any requirements established under any other federal or State law.

    § 698.4 Aquaculture facility registration.

    (a) The producer of fish or fish products regulated under this part must register the aquaculture facility through the NMFS Traceability Information Program for Seafood electronic registration and reporting system. Such registration is valid for a period of one year and must be renewed annually. The electronic registration and reporting system will assign a unique producer identifier. Producers must notify NMFS within 30 days of any change in their information submitted to or used in the electronic registration and reporting system (e.g., business name, addresses or contact information; if such changes are not reported to NMFS within 30 days, the registration is invalid as of the 30th day after such change.

    (b) Alternative Producer Identifier. NMFS may approve the use of an alternative producer identifier obtained through another Federal or State program.

    (c) Registration Renewal. Annually, all producers must confirm their identifying business information in order to renew their registration. Producers that have submitted monthly reports under § 698.5 must certify that all applicable entries have been reported. Producers that have had no reportable production events for an entire 12-month period must so certify through the electronic registration and reporting system. If registration lapses, the producer must re-register.

    (d) De Minimis Exemption. Any producer that produces for entry into U.S. commerce fish or fish products regulated under this part valued at less than $1,000 per year is exempt from the registration requirement of this section.

    § 698.5 Reporting.

    A producer that is required to be registered under § 698.4 must report information regarding all entries into U.S. commerce of fish or fish products regulated under this part.

    (a) Frequency. The producer must submit monthly reports through the NMFS electronic registration and reporting system, including all entries into U.S. commerce of fish or fish products regulated under this part that occurred during that calendar month. The report for a monthly period is due on or before the last day of the next calendar month. Producers are not required to submit reports for any month in which there were no entries into U.S. commerce.

    (b) Content. Reports must contain the details of each entry into U.S. commerce, including producer identifier, the species (3-alpha Aquatic Sciences and Fisheries Information System (ASFIS) code), the date of production, date of entry into U.S. commerce, the production volume, the unit of measure, the product form and weight at entry into U.S. commerce, and business name, address and email and/or phone number for the first receiver. For direct sales, the report need not contain the name, address and email and/or phone number of the individual who purchased the fish or fish products for personal use.

    § 698.6 Recordkeeping and audits.

    (a) Recordkeeping. The producer must maintain a paper or electronic copy of any report required under § 698.5 and supporting documentation for the report sufficient to trace the fish or fish product from point of production to entry into U.S. commerce. Records may include widely used commercial documents (e.g., records related to production, sale, processing, shipment, cold storage, and distribution). The supporting documentation must include records regarding each custodian of the fish and fish product, e.g., including processors, storage facilities, and distributors, sufficient to trace the fish or fish product from the point of entry into U.S. commerce back to the point of production and to verify the information reported about entry into U.S. commerce. The producer must retain such reports and supporting documentation in electronic or paper format for a period of two years from the date of the report.

    (b) Audit. Reports and supporting documentation described under paragraph (a) of this section may be selected for audit in order to verify the information submitted in the reports. To support such audits, the producer must, upon request, make such reports and supporting documentation available for inspection by NMFS or otherwise provide them as requested by NMFS.

    (c) Inspection. The producer must make all reports and records required under paragraph (a) of this section available for inspection by an authorized officer upon request.

    § 698.7 Confidentiality and disclosure.

    All information and records required to be submitted under this part shall be subject to the Magnuson-Stevens Act confidentiality provisions and shall not be disclosed except as provided under section 402(b)(1) of the Magnuson-Stevens Act and part 600, subpart E of this title.

    § 698.8 Prohibitions.

    In addition to the general prohibitions listed at § 600.725 of this title, it is unlawful for any person to do any of the following:

    (a) Violate any of the registration, reporting or recordkeeping provisions of this part.

    (b) Sell, offer for sale, or attempt to sell or offer for sale, fish or fish products regulated under this part that were produced by an aquaculture facility that has failed to register as required under § 698.4.

    (c) Dispose of fish or fish products regulated under this part, or any reports or supporting documentation required to be retained under § 698.6(a), after any communication from an authorized officer that the aquaculture facility, or such reports or supporting documentation, are to be inspected.

    (d) Make any false statement, oral or written, to an authorized officer concerning the production, purchase, sale, offer for sale, receipt, acquisition, possession, transport or transfer of any fish or fish products regulated under this part, or any attempt to do any of the above.

    (e) Provide false, incomplete or inaccurate information in the registration required under § 698.4 or reports required under § 698.5 or falsify any reports or supporting documentation required to be retained under § 698.6.

    (f) Fail to make reports or supporting documentation available for inspection, as required under § 698.6(c).

    (g) Fail to make available, or otherwise produce, reports and supporting documentation to support an audit, as required under § 698.6(b).

    [FR Doc. 2018-22039 Filed 10-10-18; 8:45 am] BILLING CODE 3510-22-P
    83 197 Thursday, October 11, 2018 Notices COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Tennessee Advisory Committee AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Notice of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Tennessee Advisory Committee will hold meetings on Wednesday, November 7, 2018, and Wednesday, December 5, 2018, at 12:30 p.m. EST. The purpose of the meetings is to prepare the panelist list and logistics for a public meeting to hear testimony on legal financial obligations and civil rights issues.

    DATES:

    The meetings will be held on Wednesday, November 7, 2018 at 12:30 p.m. EST, and Wednesday, December 5, 2018, at 12:30 p.m. EST.

    Public Call Information: The meeting will be by teleconference. On Wednesday, November 7, 2018, the toll-free call-in number: 877-260-1479, conference ID: 9226907. On Wednesday, December 5, 2018, the toll-free call-in number: 877-260-1479, conference ID: 4321056.

    FOR ADDITIONAL INFORMATION CONTACT:

    Jeff Hinton, DFO, at jhinto[email protected]

    SUPPLEMENTARY INFORMATION:

    Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number conference id numbers listed. Any interested member of the public may call this number and listen to the meetings. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

    Written comments may be mailed to the Regional Program Unit Office, U.S. Commission on Civil Rights, 230 S Dearborn, Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353-8324 or may be emailed to Jeff Hinton at [email protected] Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Tennessee Advisory Committee link. Persons interested in the work of this Committee are directed to the Commission's website, http://www.usccr.gov, or may contact the Southern Regional Office at the above email or street address.

    Agenda Welcome and Call to Order Diane DiIanni, Tennessee SAC Chairman Jeff Hinton, Regional Director Regional Update—Jeff Hinton New Business: Diane DiIanni, Tennessee SAC Chairman/Staff/Advisory Committee Continuation: Preparation for public hearing (LFO). Public Participation Adjournment Dated: October 4, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-22068 Filed 10-10-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-954] Certain Magnesia Carbon Bricks From the People's Republic of China: Preliminary Results of the Antidumping Duty Administrative Review; 2016-2017 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines to rescind this administrative review, as there is no evidence of any reviewable entries, shipments, or sales of certain magnesia carbon bricks (magnesia carbon bricks) from the People's Republic of China (China) to the United States during the September 1, 2016, through August 31, 2017, period of review (POR) by the companies subject to this review. Interested parties are invited to comment on these preliminary results.

    DATES:

    Applicable October 11, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Paul Walker, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: 202.482.0413.

    SUPPLEMENTARY INFORMATION:

    Background

    On November 13, 2017, Commerce published in the Federal Register a notice of initiation of an administrative review of the antidumping duty order on magnesia carbon bricks for five producers/exporters for the POR.1 Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through January 22, 2018.2 As a result, all deadlines in this segment of the proceeding have been extended by three days.

    1See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 82 FR 52268 (November 13, 2017) (Initiation Notice). The companies subject to this review are Fedmet Resources Corporation; Fengchi Imp. and Exp. Co., Ltd. of Haicheng City, Fengchi Mining Co., Ltd. of Haicheng City; Fengchi Refractories Co., of Haicheng City; and RHI Refractories Liaoning Co., Ltd.

    2See Memorandum, “Deadlines Affected by the Shutdown of the Federal Government,” dated January 23, 2018.

    Scope of the Order

    The scope of the order includes certain chemically-bonded magnesia carbon bricks from China. A full description of the scope of the order is contained in the Preliminary Decision Memorandum, which is hereby adopted by this notice.3

    3See Memorandum, “Decision Memorandum for the Preliminary Results of the Administrative Review of the Antidumping Duty Order on Certain Magnesia Carbon Bricks from the People's Republic of China; 2016-2017,” (dated concurrently with this notice) (Preliminary Determination Memorandum).

    Methodology

    Commerce is conducting this administrative review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (the Act). The Preliminary Decision Memorandum contains a full description of the methodology underlying our conclusions and is a public document on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov and in the Central Records Unit, Room B8024 of the main Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn. The signed Preliminary Decision Memorandum and the election version of this memorandum are identical in content.

    Preliminary Intent To Rescind the Administrative Review

    Based on information submitted after the initiation of this administrative review, and due to the fact that we have not received any information from U.S. Customs and Border Protection (CBP) indicating that the companies subject to this review had reviewable entries of subject merchandise to the United States during the POR, Commerce preliminarily determines that the record evidence indicates that no company subject to this review had reviewable entries during the POR.4 Should evidence arise that leads us to conclude that the companies subject to this review had reviewable entries of subject merchandise to the United States during the POR, we will revisit this issue in the final results of this administrative review. Absent any evidence of POR entries of subject merchandise being placed on the record, pursuant to 19 CFR 351.213(d)(3), we intend to rescind the administrative review of these companies in the final results.

    4Id.

    Public Comment

    Case briefs must be submitted to Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS) at a date to be determined by Commerce, and rebuttal briefs, limited to issues raised in the case briefs, may be submitted no later than five days after the deadline for the submission for case briefs.5 Commerce will notify interested parties when it has determined a deadline for case briefs via ACCESS. Parties who submit case or rebuttal briefs in this proceeding are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.6

    5See 19 CFR 351.309(c)(1)(ii) and 351.309(d)(1).

    6See 19 CFR 351.309(c)(2) and 351.309(d)(2).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically through ACCESS, within 30 days after the publication of this notice. Hearing requests should contain the party's name, address, telephone number, the number of participants, and a list of the issues parties intend to present at the hearing. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time to be determined. Prior to the hearing, Commerce will contact all parties who submitted case or rebuttal briefs to determine if they wish to participate in the hearing. Commerce will then distribute a hearing schedule to these parties prior to the hearing, and only those parties listed on the hearing schedule may present issues raised in their briefs.

    All submissions, with limited exceptions, must be filed electronically using ACCESS.7 An electronically filed document must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time, on the due dates established above (or, where applicable, to be established by Commerce at a later date). Documents excepted from the electronic submission requirements must be filed manually, (i.e., in paper form) with the APO/Dockets Unit in Room 18022 and stamped with the date and time of receipt by on the due date.8

    7See 19 CFR 351.303.

    8Id.

    Unless otherwise extended, Commerce intends to issue the final results of this administrative review, which will include the results of its analysis of issues raised in any briefs, within 120 days of the publication of these preliminary results or review, pursuant to section 751(a)(3)(A) of the Act.

    Assessment Rates

    We intend to issue appropriate assessment instructions to CBP 15 days after the publication of the final rescission (or, should we find that the companies subject to this review had reviewable entries of subject merchandise to the United States during the POR, the final results) of this administrative review.

    These preliminary results of review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(4).

    Dated: October 3, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix I List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Scope of the Order IV. Preliminary Determination of No Shipments V. Public Comment VI. Recommendation
    [FR Doc. 2018-22130 Filed 10-10-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-552-823] Laminated Woven Sacks From the Socialist Republic of Vietnam: Preliminary Determination of Sales at Less Than Fair Value AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that laminated woven sacks (LWS) from the Socialist Republic of Vietnam (Vietnam) are being, or are likely to be, sold in the United States at less than fair value (LTFV) for the period of investigation (POI) July 1, 2017, through December 31, 2017. Interested parties are invited to comment on this preliminary determination.

    DATES:

    Applicable: October 11, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Drew Jackson or Celeste Chen, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4406 or (202) 482-0890, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on April 3, 2018.1 On July 31, 2018, Commerce postponed the preliminary determination of this investigation and the revised deadline is now October 3, 2018.2 For a complete description of the events that followed the initiation of this investigation, see the Preliminary Decision Memorandum.3 A list of topics included in the Preliminary Decision Memorandum is included as Appendix II to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov, and to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    1See Laminated Woven Sacks from the Socialist Republic of Vietnam: Initiation of Less-Than-Fair-Value Investigation, 83 FR 14257 (April 3, 2018) (Initiation Notice).

    2See Laminated Woven Sacks from the Socialist Republic of Vietnam: Postponement of Preliminary Determination in the Less-Than-Fair-Value Investigation, 83 FR 36876 (July 31, 2018).

    3See Memorandum, “Decision Memorandum for the Preliminary Determination in the Less-Than-Fair-Value Investigation of Laminated Woven Sacks from the Socialist Republic of Vietnam,” dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum).

    Scope of the Investigation

    The products covered by this investigation are LWS from Vietnam. For a complete description of the scope of this investigation, see Appendix I.

    Scope Comments

    In accordance with the preamble to Commerce's regulations,4 the Initiation Notice set aside a period of time for parties to raise issues regarding product coverage (scope).5 Certain interested parties commented on the scope of the investigation as it appeared in the Initiation Notice, as well as additional language proposed by Commerce. For a summary of the product coverage comments and rebuttal responses submitted to the record for this investigation, and accompanying discussion and analysis of all comments timely received, see the Preliminary Scope Decision Memorandum.6 Commerce is preliminarily modifying the scope language as it appeared in the Initiation Notice. See the revised scope in Appendix I to this notice.

    4See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27323 (May 19, 1997).

    5See Initiation Notice.

    6See Memorandum, “Laminated Woven Sacks from the Socialist Republic of Vietnam: Scope Comments Decision Memorandum for the Preliminary Determination” (Preliminary Scope Decision Memorandum), dated concurrently with this preliminary determination.

    Methodology

    Commerce is conducting this investigation in accordance with section 731 of the Act. Commerce has calculated export prices in accordance with section 772(a) of the Act. Because Vietnam is a non-market economy country, within the meaning of section 771(18) of the Act, Commerce has calculated normal value (NV) in accordance with section 773(c) of the Act. Furthermore, Commerce preliminarily has denied a separate rate to mandatory respondent Xinsheng Plastic Industry Co., Ltd., which failed to respondent to certain supplemental questionnaires. For a full description of the methodology underlying Commerce's preliminary determination, see the Preliminary Decision Memorandum.

    Combination Rates

    In the Initiation Notice, 7 Commerce stated that it would calculate producer/exporter combination rates for the respondents that are eligible for a separate rate in this investigation. Policy Bulletin 05.1 describes this practice.8

    7See Initiation Notice.

    8See Enforcement and Compliance's Policy Bulletin No. 05.1, regarding, “Separate-Rates Practice and Application of Combination Rates in Antidumping Investigations involving Non-Market Economy Countries,” (April 5, 2005) (Policy Bulletin 05.1), available on Commerce's website at http://enforcement.trade.gov/policy/bull05-1.pdf.

    Preliminary Determination

    Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:

    Exporter Producer Estimated
  • weighted-
  • average
  • dumping
  • margin
  • (percent)
  • Cash deposit
  • rate
  • (adjusted for
  • subsidy
  • offsets)
  • (percent)
  • Duong Vinh Hoa Packaging Company Limited Duong Vinh Hoa Packaging Company Limited 161.16 158.43 C.P. Packaging (Vietnam) Industry Co., Ltd C.P. Packaging (Vietnam) Industry Co., Ltd 161.16 156.19 Tan Dai Hung d.b.a. Tan Dai Hung Joint Stock Co. and Tan Dai Hung Plastic Joint Stock Company Tan Dai Hung d.b.a. Tan Dai Hung Joint Stock Co. and Tan Dai Hung Plastic Joint Stock Company 161.16 156.19 TKMB Joint Stock Company TKMB Joint Stock Company 161.16 156.19 Trung Dong Corporation Trung Dong Corporation 161.16 156.19 Vietnam-wide entity 9 292.61 289.88
    Suspension of Liquidation

    In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of subject merchandise as described in the scope of the investigation section entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register, as discussed below. Further, pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the weighted average amount by which normal value exceeds U.S. price, as indicated in the table above as follows: (1) For the producer/exporter combinations listed in the table above, the cash deposit rate is equal to the estimated weighted-average dumping margin listed for that combination in the table; (2) for all combinations of Vietnam producers/exporters of merchandise under consideration that have not established eligibility for their own separate rates, the cash deposit rate will be equal to the estimated weighted-average dumping margin established for the Vietnam-wide entity; and (3) for all third-county exporters of merchandise under consideration not listed in the table above, the cash deposit rate is the cash deposit rate applicable to the Vietnam producer/exporter combination (or the Vietnam-wide entity) that supplied that third-country exporter.

    9 The Vietnam-wide entity includes Xinsheng Plastic Industry Co., Ltd.

    To determine the cash deposit rate, Commerce normally adjusts the estimated weighted-average dumping margin by the amount of domestic subsidy pass-through and export subsidies determined in a companion CVD proceeding when CVD provisional measures are in effect. Accordingly, where Commerce has made a preliminary affirmative determination for domestic subsidy pass-through or export subsidies, Commerce has offset the calculated estimated weighted-average dumping margin by the appropriate rate(s). Any such adjusted rates may be found in the Preliminary Determination Section's table of estimated weighted-average dumping margins above.

    Should provisional measures in the companion CVD investigation expire prior to the expiration of provisional measures in this LTFV investigation, Commerce will direct CBP to begin collecting cash deposits at a rate equal to the estimated weighted-average dumping margins calculated in this preliminary determination unadjusted for the passed-through domestic subsidies or for export subsidies at the time the CVD provisional measures expire.

    These suspension of liquidation instructions will remain in effect until further notice.

    Disclosure

    Commerce intends to disclose to interested parties the calculations performed in connection with this preliminary determination within five days of its public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).

    Verification

    As provided in section 782(i)(1) of the Act, Commerce intends to verify information relied upon in making its final determination.

    Public Comment

    Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last final verification report is issued in this investigation, unless the Secretary alters the time limit. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.10 Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs in this investigation are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.

    10See 19 CFR 351.309; see also 19 CFR 351.303 (for general filing requirements).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    International Trade Commission Notification

    In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination of sales at LTFV. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether imports of the subject merchandise are materially injuring, or threaten material injury to, the U.S. industry.

    Notification to Interested Parties

    This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).

    Dated: October 3, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix I—Scope of the Investigation

    The merchandise covered by this investigation is laminated woven sacks. Laminated woven sacks are bags consisting of one or more plies of fabric consisting of woven polypropylene strip and/or woven polyethylene strip, regardless of the width of the strip; with or without an extrusion coating of polypropylene and/or polyethylene on one or both sides of the fabric; laminated by any method either to an exterior ply of plastic film such as biaxially-oriented polypropylene (BOPP), polyester (PET), polyethylene (PE), nylon, or any film suitable for printing, or to an exterior ply of paper; printed; displaying, containing, or comprising three or more visible colors (e.g., laminated woven sacks printed with three different shades of blue would be covered by the scope), not including the color of the woven fabric; regardless of the type of printing process used; with or without lining; with or without handles; with or without special closing features (including, but not limited to, closures that are sewn, glued, easy-open (e.g., tape or thread), re-closable (e.g., slider, hook and loop, zipper), hot-welded, adhesive-welded, or press-to-close); whether finished or unfinished (e.g., whether or not closed on one end and whether or not in roll form, including, but not limited to, sheets, lay-flat, or formed in tubes); not exceeding one kilogram in actual weight. Laminated woven sacks produced in the Socialist Republic of Vietnam are subject to the scope regardless of the country of origin of the fabric used to make the sack.

    The scope of this investigation excludes laminated woven sacks having each of the following physical characteristics: (1) No side greater than 24 inches, (2) weight less than 100 grams, (3) an open top that is neither sealable nor closable, the rim of which is hemmed or sewn around the entire circumference, (4) carry handles sewn on the open end, (5) side gussets, and (6) either a bottom gusset or a square or rectangular bottom. The excluded items with the above-mentioned physical characteristics may be referred to as reusable shopping bags.

    Subject laminated woven sacks are currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 6305.33.0040 and 6305.33.0080. If entered with plastic coating on both sides of the fabric consisting of woven polypropylene strip and/or woven polyethylene strip, laminated woven sacks may be classifiable under HTSUS subheadings 3923.21.0080, 3923.21.0095, and 3923.29.0000. If entered not closed on one end or in roll form (including, but not limited to, sheets, lay-flat tubing, and sleeves), laminated woven sacks may be classifiable under other HTSUS subheadings, including 3917.39.0050, 3921.90.1100, 3921.90.1500, and 5903.90.2500. If the polypropylene strips and/or polyethylene strips making up the fabric measure more than 5 millimeters in width, laminated woven sacks may be classifiable under other HTSUS subheadings including 4601.99.0500,4601.99.9000, and 4602.90.0000. Although HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope is dispositive.

    Appendix II—List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Period of Investigation IV. Scope Comments V. Product Characteristics VI. Selection of Respondents VII. Determination Not To Select TKMB as Voluntary Respondent VIII. Discussion of the Methodology A. Non-Market Economy Country B. Surrogate Country and Surrogate Value Comments C. Separate Rates D. Dumping Margin for the Separate Rate Companies Not Individually Examined E. The Vietnam-Wide Entity F. Application of Facts Available and Adverse Inferences G. Date of Sale H. Comparisons to Fair Value I. Export Price J. Normal Value K. Factor Valuation Methodology IX. Currency Conversion X. Adjustment Under Section 777a(f) of the Act XI. Adjustment for Countervailable Export Subsidies XII. Conclusion
    [FR Doc. 2018-22126 Filed 10-10-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-912] Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2016-2017 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that Weihai Zhongwei Rubber Co., Ltd. (Zhongwei), an exporter of certain new pneumatic off-the-road tires (OTR tires) from the People's Republic of China (China), sold merchandise in the United States at prices below normal value (NV) during the period of review (POR) September 1, 2016, through August 31, 2017. We invite interested parties to comment on these preliminary results.

    DATES:

    Applicable: October 11, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Keith Haynes, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington DC 20230; telephone: (202) 482-5139.

    SUPPLEMENTARY INFORMATION: Background

    On September 1, 2017, Commerce published a notice of opportunity to request an administrative review of the antidumping duty order on OTR tires from China for the period of September 1, 2016, through August 31, 2017.1 On November 17, 2017, Commerce initiated a review of three exporters of subject merchandise.2 On March 16, 2018, Commerce rescinded the review with respect to two exporters upon which the review was initiated.3 On January 23, 2018, Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018.4 On June 4, 2018, Commerce fully extended the deadline for issuing the preliminary results to October 3, 2018.5

    1See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 82 FR 41595 (September 1, 2017).

    2See Initiation of Antidumping and Countervailing Duty Administrative Review, 82 FR 52268 (November 13, 2017) (Initiation Notice).

    3See Certain New Pneumatic Off-the-Road Tires from the People's Republic of China: Notice of Partial Rescission of the Antidumping Duty Administrative Review; 2016 2017, 83 FR 11682 (March 16, 2018).

    4See memorandum, “Deadlines Affected by the Shutdown of the Federal Government,” dated January 23, 2018. All deadlines in this segment of the proceeding have been extended by three days.

    5See memorandum, “New Pneumatic Off-The-Road Tires from the People's Republic of China: Extension of Deadline for Preliminary Results of the 2016-2017 Antidumping Duty Administrative Review,” dated June 4, 2018.

    Scope of the Order

    The merchandise covered by this order includes new pneumatic tires designed for off-the-road and off-highway use, subject to certain exceptions. The subject merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 4011.20.10.25, 4011.20.10.35, 4011.20.50.30, 4011.20.50.50, 4011.61.00.00, 4011.62.00.00, 4011.63.00.00, 4011.69.00.00, 4011.92.00.00, 4011.93.40.00, 4011.93.80.00, 4011.94.40.00, and 4011.94.80.00. The HTSUS subheadings are provided for convenience and customs purposes only; the written product description of the scope of the order is dispositive. For a complete description of the scope of the order, see the Preliminary Decision Memorandum.6

    6See memorandum, “Decision Memorandum for Preliminary Results of the Antidumping Duty Administrative Review: Certain New Pneumatic Off-the-Road Tires from the People's Republic of China; 2016-2017,” dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum).

    Methodology

    Commerce is conducting this review in accordance with section 751(a)(1)(B) and 751(a)(2)(A) of the Tariff Act of 1930, as amended (the Act). Export prices have been calculated in accordance with section 772(a) of the Act. Because China is a non-market economy within the meaning of section 771(18) of the Act, NV has been calculated in accordance with section 773(c) of the Act.

    For a full description of the methodology underlying our conclusions, see the Preliminary Decision Memorandum. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov, and is available to all parties in the Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the internet at http://enforcement.trade.gov/frn/. The signed Preliminary Decision Memorandum and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    Preliminary Results of Review

    Commerce preliminarily determines that information placed on the record by the sole respondent, Zhongwei, indicates that it is eligible to receive a separate rate and has made sales in the United States during the POR at prices below NV. For additional information, see the Preliminary Decision Memorandum. Commerce preliminarily determines that the following weighted-average dumping margin exists for the period September 1, 2016, through August 31, 2017:

    Exporter Weighted-
  • average
  • dumping
  • margin
  • (percent)
  • Weihai Zhongwei Rubber Co., Ltd 0.79
    Disclosure and Public Comment

    Commerce intends to disclose the calculations used in our analysis to parties in this review within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).

    Interested parties may submit case briefs within 30 days after the date of publication of these preliminary results of review in the Federal Register.7 Rebuttals to case briefs, which must be limited to issues raised in the case briefs, must be filed within five days after the time limit for filing case briefs.8 Parties who submit arguments are requested to submit with the argument (a) a statement of the issue, (b) a brief summary of the argument, and (c) a table of authorities.9 Parties submitting briefs should do so pursuant to Commerce's electronic filing system, ACCESS.10

    7See 19 CFR 351.309(c)(1)(ii).

    8See 19 CFR 351.309(d)(1)-(2).

    9See 19 CFR 351.309(c)(2), (d)(2).

    10See 19 CFR 351.303 (for general filing requirements).

    Any interested party may request a hearing within 30 days of publication of this notice.11 Hearing requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs. If a request for a hearing is made, parties will be notified of the time and date for the hearing to be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.12

    11See 19 CFR 351.310(c).

    12See 19 CFR 351.310(d).

    Commerce intends to issue the final results of this administrative review, which will include the results of our analysis of all issues raised in the case briefs, within 120 days of publication of these preliminary results in the Federal Register, pursuant to section 751(a)(3)(A) of the Act.

    Assessment Rates

    Upon issuance of the final results, Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.13 Commerce intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review.

    13 See 19 CFR 351.212(b).

    For Zhongwei, Commerce will calculate importer-specific assessment rates on the basis of the ratio of the total amount of dumping calculated for the importer's examined sales to the total entered value of sales, in accordance with 19 CFR 351.212(b)(1). For customers or importers of Zhongwei for which we do not have entered values, we calculated importer- (or customer-) specific antidumping duty assessment amounts based on the ratio of the total amount of dumping duties calculated for the examined sales of subject merchandise to the total sales quantity of those same sales.14 For customers or importers of Zhongwei for which we received entered-value information, we have calculated importer- (or customer-) specific antidumping duty assessment rates based on importer- (or customer-) specific ad valorem rates.15 Where an importer-or (customer-) specific ad valorem rate is greater than de minimis, Commerce will instruct CBP to collect the appropriate duties at the time of liquidation.16

    14See 19 CFR 351.212(b)(1).

    15 Id.

    16See 19 CFR 351.212(b)(1).

    For entries that were not reported in the U.S. sales database submitted by an exporter individually examined during this review, Commerce will instruct CBP to liquidate such entries at the China-wide rate. Additionally, if Commerce determines that an exporter under review had no shipments of the subject merchandise, any suspended entries that entered under that exporter's case number will be liquidated at the China-wide rate.17

    17See Non-Market Economy Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR (October 24, 2011).

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the final results of this review for shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) For the companies listed above that have a separate rate (i.e. , Zhongwei), the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or de minimis, then a cash deposit of zero will be required); (2) for previously investigated or reviewed China and non-China exporters not listed above that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the existing exporter-specific rate; (3) for all China exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be that for the China-wide entity (i.e., 105.31 percent); 18 and (4) for all non-China exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the China exporter that supplied that non-China exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

    18See Certain New Pneumatic Off-the-Road Tires from the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2012 2013, 80 FR 20197 (April 15, 2015).

    Notification to Importers

    This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during the POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of double antidumping duties.

    Notification to Interested Parties

    These preliminary results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).

    Dated: October 3, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix I List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Scope of the Order IV. Discussion of Methodology A. Non-Market Economy Country B. Surrogate Country and Surrogate Value Data C. Surrogate Country D. Separate Rates E. Date of Sale F. Comparisons to Normal Value G. Export Price H. Value-Added Tax I. Norma Value J. Factor Valuations K. Currency Conversion V. Adjustment Under Section 777A(f) of the Act VI. Recommendation
    [FR Doc. 2018-22127 Filed 10-10-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-489-817] Oil Country Tubular Goods From the Republic of Turkey: Preliminary Results of Countervailing Duty Administrative Review; 2016 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that certain producers and exporters of oil country tubular goods (OCTG) from the Republic of Turkey (Turkey) received countervailable subsidies during the period of review (POR) January 1, 2016, through December 31, 2016. Interested parties are invited to comment on these preliminary results.

    DATES:

    Applicable: October 11, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Aimee Phelan, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0697.

    SUPPLEMENTARY INFORMATION:

    Background

    On September 1, 2017, Commerce published a notice of opportunity to request an administrative review of the CVD order on OCTG from Turkey for the period January 1, 2016, through December 31, 2016.1 On September 29, 2017, Commerce received a review request from Maverick Tube Corporation and TenarisBayCity (domestic interested parties), for the following seven exporters and/or producers of subject merchandise: (1) Borusan Mannesmann Boru Sanayi ve Ticaret A.S., (2) Borusan Istikbal Ticaret, (3) Cayirova Boru San A.S., (4) Cayirova Boru Sanayi ve Ticaret A.S., (5) HG Tubulars Canada Ltd., (6) Yucel Boru Ihracat ve Pazarlama A.S., and (7) Yucelboru Ihracat, Ithalat.2 O