Federal Register Vol. 83, No.208,

Federal Register Volume 83, Issue 208 (October 26, 2018)

Page Range53965-54227
FR Document

83_FR_208
Current View
Page and SubjectPDF
83 FR 54227 - Continuation of the National Emergency With Respect to the Democratic Republic of the CongoPDF
83 FR 54032 - Significant New Use Rules on Certain Chemical Substances; WithdrawalPDF
83 FR 54031 - Significant New Use Rules on Certain Chemical Substances; WithdrawalPDF
83 FR 54164 - Request for Comments on Negotiating Objectives for a U.S.-Japan Trade AgreementPDF
83 FR 54106 - Government in the Sunshine Meeting NoticePDF
83 FR 54139 - Strontium Chromate From Austria and FrancePDF
83 FR 54136 - Filing of Plats of Survey; MontanaPDF
83 FR 54097 - Notice of Availability of Record of Decision for the Atlantic Fleet Training and Testing Final Environmental Impact Statement/Overseas Environmental Impact StatementPDF
83 FR 54175 - Notice of OFAC Sanctions ActionsPDF
83 FR 54177 - Proposed Collection; Comment Request for Notice 2009-31 and Rev. Proc. 2009-43PDF
83 FR 54115 - Agency Information Collection Request; 30-Day Public Comment RequestPDF
83 FR 54161 - Administrative Declaration of a Disaster for the State of TexasPDF
83 FR 54176 - Proposed Collection; Comment Request on Information Collection for Treasury Decision 8517, Debt Instruments With Original Discount; Imputed Interest on Deferred Payment Sales or Exchanges of Property; Treasury Decision 9599, Property Traded on an Established MarketPDF
83 FR 54161 - Administrative Declaration of a Disaster for the Commonwealth of PennsylvaniaPDF
83 FR 54128 - Collection of Information Under Review by Office of Management and Budget; OMB Control Number: 1625-NEWPDF
83 FR 53991 - Airline Reporting of Data on Mishandled Baggage, Wheelchairs, and ScootersPDF
83 FR 54097 - Energía Costa Azul S. de R.L. de C.V; Application for Long-Term, Multi-Contract Authorization To Export Natural Gas to Mexico and To Export Liquefied Natural Gas to Non-Free Trade Agreement NationsPDF
83 FR 54162 - Iowa & Middletown Railway LLC-Lease and Operation Exemption-American Ordnance LLC, Owner's Representative for U.S. Army Joint Munitions CommandPDF
83 FR 54053 - Approval and Promulgation of Air Quality Implementation Plans; Nevada; Rescission of Regional Haze Federal Implementation Plan for the Reid Gardner Generating StationPDF
83 FR 54130 - Quarterly IRS Interest Rates Used in Calculating Interest on Overdue Accounts and Refunds on Customs DutiesPDF
83 FR 53974 - Airworthiness Directives; General Electric Company Turbofan EnginesPDF
83 FR 54091 - Procurement List; Addition and DeletionsPDF
83 FR 53976 - Airworthiness Directives; General Electric Company Turbofan EnginesPDF
83 FR 54093 - Procurement List; Proposed DeletionsPDF
83 FR 54135 - The President's National Security Telecommunications Advisory CommitteePDF
83 FR 54166 - Agency Information Collection Activities: Requests for Comments; Clearance of a Renewed Approval of Information Collection: Procedures for Non-Federal Navigation FacilitiesPDF
83 FR 54080 - Submission for OMB Review; Comment RequestPDF
83 FR 54173 - Proposed Agency Information Collection Activities; Comment RequestPDF
83 FR 54089 - Solicitation for Members of the NOAA Science Advisory Board; CorrectionPDF
83 FR 54099 - Proposed Agency Information Collection ExtensionPDF
83 FR 54083 - Approval of Subzone Status; Liquilux Gas Corporation; Ponce, Puerto RicoPDF
83 FR 54083 - Approval of Subzone Status; MAS US Holdings, Inc.; Siler City and Asheboro, North CarolinaPDF
83 FR 54084 - Certain Circular Welded Non-Alloy Steel Pipe From Mexico: Rescission of Antidumping Duty Administrative Review; 2016-2017PDF
83 FR 54086 - Steel Propane Cylinders From the People's Republic of China: Preliminary Affirmative Countervailing Duty Determination and Alignment of Final Determination With Final Antidumping Duty DeterminationPDF
83 FR 54096 - Joint Notice of Availability for the Coastal Texas Protection and Restoration Study Draft Integrated Feasibility Report and Environmental Impact StatementPDF
83 FR 54106 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
83 FR 54095 - Inland Waterways Users Board Meeting NoticePDF
83 FR 54059 - Freedom of Information Act RegulationsPDF
83 FR 54088 - North Pacific Fishery Management Council; Public MeetingPDF
83 FR 54090 - North Pacific Fishery Management Council; Public MeetingPDF
83 FR 54090 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingPDF
83 FR 54101 - Combined Notice of FilingsPDF
83 FR 54103 - Tenn-Tom Hydro, LLC; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing ApplicationsPDF
83 FR 54103 - Combined Notice of Filings #1PDF
83 FR 54102 - Gulf South Pipeline Company, LP; Notice of ApplicationPDF
83 FR 54100 - Combined Notice of Filings #1PDF
83 FR 54108 - Determination of Regulatory Review Period for Purposes of Patent Extension; TALTZPDF
83 FR 54112 - Determination of Regulatory Review Period for Purposes of Patent Extension; REBINYNPDF
83 FR 54142 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Node.js FoundationPDF
83 FR 54083 - Transportation and Related Equipment Technical Advisory Committee; Notice of Partially Closed MeetingPDF
83 FR 54177 - Senior Executive Service Departmental Performance Review BoardPDF
83 FR 54055 - Fisheries of the Northeastern United States; Golden Tilefish Fishery; 2019 SpecificationsPDF
83 FR 54178 - Senior Executive Service Departmental Offices Performance Review BoardPDF
83 FR 54117 - National Institute of Nursing Research; Notice to Close MeetingPDF
83 FR 54167 - Notice of Final Federal Agency Actions on Proposed Highway In UtahPDF
83 FR 54162 - Shawnee Fossil Plant Coal Combustion Residual ManagementPDF
83 FR 54104 - Agency Information Collection Activities; Submitted to OMB for Review and Approval; Comment Request; Pesticide Program Public Sector Collections (FIFRA Sections 18 & 24(c)) (Renewal)PDF
83 FR 54107 - Biopharmaceutics Classification System-Based Biowaivers; International Council for Harmonisation; Draft Guidance for Industry; AvailabilityPDF
83 FR 54142 - Agency Information Collection Activities; Proposed eCollection eComments Requested; New CollectionPDF
83 FR 54147 - Maritime Advisory Committee for Occupational Safety and Health (MACOSH): Request for NominationsPDF
83 FR 54110 - Agency Information Collection Activities; Proposed Collection; Comment Request; Prescription Drug Product Labeling; Medication Guide RequirementsPDF
83 FR 54143 - Proposed Extension of Information Collection; Main Fan Operation and Inspection (I-A, II-A, III, and V-A Mines)PDF
83 FR 54054 - VA Acquisition Regulation: Describing Agency Needs; Contract Financing; CorrectionPDF
83 FR 54145 - The Occupational Exposure to Hazardous Chemicals in Laboratories Standard; Extension of the Office of Management and Budget's (OMB) Approval of Information Collection (Paperwork) RequirementsPDF
83 FR 54144 - Proposed Extension of Information Collection; Explosive Materials and Blasting UnitsPDF
83 FR 54145 - Proposed Extension of Information Collection; Escape and Evacuation Plans for Surface Coal Mines, Surface Facilities and Surface Work Areas of Underground Coal Mines.PDF
83 FR 54137 - Certain Network Devices, Related Software and Components Thereof (I); Institution of Modification Proceeding; Request for BriefingPDF
83 FR 54082 - Notice of Public Meeting of the Washington Advisory CommitteePDF
83 FR 54007 - Medical Devices; Ear, Nose, and Throat Devices; Classification of the Active Implantable Bone Conduction Hearing SystemPDF
83 FR 54138 - Certain Mobile Electronic Devices and Radio Frequency and Processing Components Thereof; Notice of Request for Statements on the Public InterestPDF
83 FR 54094 - Proposed Collection; Comment RequestPDF
83 FR 54006 - Medical Devices; Anesthesiology Devices; Classification of the High Flow Humidified Oxygen Delivery DevicePDF
83 FR 54140 - Certain Insulated Beverage Containers, Components, Labels, and Packaging Materials Thereof; Commission's Determination Not To Review an Initial Determination Finding Two Respondents in Default and Terminating the Investigation With Respect to Three Respondents; Request for Written Submissions on Remedy, the Public Interest, and BondingPDF
83 FR 54141 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Leonardo AcademyPDF
83 FR 54148 - Notice of Intent to Award-Grant Awards for the Provision of Civil Legal Services to Eligible Low-Income Clients Beginning January 1, 2019PDF
83 FR 54088 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Oil and Gas Activities in Cook Inlet, AlaskaPDF
83 FR 54166 - Receipt of Noise Compatibility Program and Request for Review for San Francisco International Airport, San Francisco, CaliforniaPDF
83 FR 53981 - Amendment of Class E Airspace; Cambridge, MDPDF
83 FR 53982 - Establishment of Class E Airspace; Crystal Springs, MSPDF
83 FR 53979 - Amendment of Class D Airspace; Tulsa, OKPDF
83 FR 53983 - Amendment of Class E Airspace, Augusta, GA, and Establishment of Class E Airspace, Waynesboro, GAPDF
83 FR 53985 - Prohibition Against Certain Flights in the Baghdad Flight Information Region (FIR) (ORBB)PDF
83 FR 54119 - Notice of Issuance of the U.S. Department of Veterans Affairs Program Comment for Vacant and Underutilized PropertiesPDF
83 FR 54174 - Agency Information Collection Activities: Information Collection Renewal; Comment Request; Interagency Appraisal Complaint FormPDF
83 FR 54117 - National Institute on Alcohol Abuse and Alcoholism; Notice of Closed MeetingsPDF
83 FR 54118 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
83 FR 54118 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed MeetingsPDF
83 FR 54118 - National Eye Institute; Notice of Closed MeetingPDF
83 FR 54157 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 303 (Approval To Operate Multiple Memberships)PDF
83 FR 54156 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Amendments to the Clearing Rules and the CDS ProceduresPDF
83 FR 54154 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Amendments to the ICE Clear Europe Delivery ProceduresPDF
83 FR 54153 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change, as Modified by Amendment No. 1, Regarding the Continued Listing and Trading of Shares of the Natixis Loomis Sayles Short Duration Income ETFPDF
83 FR 54113 - Product-Specific Guidance; Revised Draft Guidance for Industry on Sucralfate; Reopening of Comment PeriodPDF
83 FR 54106 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
83 FR 54080 - Environmental Assessment; Southwestern Willow Flycatcher Conservation ProgramPDF
83 FR 54132 - Final Flood Hazard DeterminationsPDF
83 FR 54131 - North Carolina; Amendment No. 1 to Notice of an Emergency DeclarationPDF
83 FR 54133 - North Carolina; Amendment No. 6 to Notice of a Major Disaster DeclarationPDF
83 FR 54133 - Florida; Amendment No. 2 to Notice of a Major Disaster DeclarationPDF
83 FR 54131 - North Carolina; Amendment No. 4 to Notice of a Major Disaster DeclarationPDF
83 FR 54134 - Proposed Flood Hazard DeterminationsPDF
83 FR 54151 - Beyond Advisors IC, et al.PDF
83 FR 54138 - Crystalline Silicon Photovoltaic Cells and Modules From China: Revised Schedule for Full Five-Year ReviewsPDF
83 FR 54136 - Environmental Impact Statement on the Liberty Development and Production Plan in the Beaufort Sea Planning AreaPDF
83 FR 54069 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Electronic Reporting for Federally Permitted Charter Vessels and Headboats in Gulf of Mexico FisheriesPDF
83 FR 54105 - Environmental Impact Statements; Notice of AvailabilityPDF
83 FR 54172 - Notice of Final Federal Agency Actions on a Proposed Highway Project in WisconsinPDF
83 FR 54032 - Air Plan Approval; North Carolina; Update to Materials Incorporated by ReferencePDF
83 FR 54010 - Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control TechnologiesPDF
83 FR 53992 - Supply Chain Risk Management Reliability StandardsPDF
83 FR 54168 - Notice of Final Federal Agency Actions on Proposed Highway Projects in TexasPDF
83 FR 53965 - Raisins Produced From Grapes Grown in California; Order Amending Marketing Order No. 989PDF
83 FR 54057 - Special Conditions: Innovative Solutions & Support, Inc.; Textron Aviation, Inc. Model B200-Series Airplanes; Autothrust FunctionsPDF
83 FR 54180 - Improving the 911 System by Implementing Kari's Law and RAY BAUM'S ActPDF

Issue

83 208 Friday, October 26, 2018 Contents Agricultural Marketing Agricultural Marketing Service RULES Marketing Orders: Raisins Produced from Grapes Grown in California, 53965-53974 2018-23089 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Animal and Plant Health Inspection Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54080 2018-23462
Animal Animal and Plant Health Inspection Service NOTICES Environmental Assessments; Availability, etc.: Southwestern Willow Flycatcher Conservation Program, 54080-54082 2018-23384 Antitrust Division Antitrust Division NOTICES Changes under the National Cooperative Research and Production Act: Leonardo Academy, 54141-54142 2018-23407 Node.js Foundation, 54142 2018-23436 Civil Rights Civil Rights Commission NOTICES Meetings: Washington Advisory Committee, 54082-54083 2018-23413 Coast Guard Coast Guard NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54128-54129 2018-23477 Commerce Commerce Department See

Foreign-Trade Zones Board

See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 54091-54094 2018-23465 2018-23467 Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Interagency Appraisal Complaint Form, 54174-54175 2018-23395 Copyright Office Copyright Office, Library of Congress RULES Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 54010-54031 2018-23241 Defense Department Defense Department See

Engineers Corps

See

Navy Department

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54094-54095 2018-23410
Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54099-54100 2018-23457 2018-23458 Applications: Energia Costa Azul S. de R.L. de C.V; Long-Term, Multi-Contract Authorization to Export Natural Gas to Mexico and to Export Liquefied Natural Gas to Non-Free Trade Agreement Nations, 54097-54099 2018-23473
Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: Coastal Texas Protection and Restoration Study Draft Integrated Feasibility Report, 54096-54097 2018-23450 Meetings: Inland Waterways Users Board, 54095-54096 2018-23448 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Nevada; Rescission of Regional Haze Federal Implementation Plan for the Reid Gardner Generating Station, 54053-54054 2018-23470 North Carolina; Update to Materials Incorporated by Reference, 54032-54053 2018-23246 Significant New Use Rules on Certain Chemical Substances; Withdrawal, 54031-54032 2018-23574 2018-23582 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Pesticide Program Public Sector Collections, 54104-54105 2018-23426 Environmental Impact Statements; Availability, etc.: Weekly Receipts, 54105 2018-23342 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: General Electric Company Turbofan Engines, 53974-53979 2018-23466 2018-23468 Amendment of Class D Airspace: Tulsa, OK, 53979-53981 2018-23401 Amendment of Class E Airspace: Cambridge, MD, 53981-53982 2018-23403 Amendment of Class E Airspace; and Establishment of Class E Airspace: Augusta, GA; and Waynesboro, GA, 53983-53985 2018-23399 Establishment of Class E Airspace: Crystal Springs, MS, 53982-53983 2018-23402 Prohibition Against Certain Flights in the Baghdad Flight Information Region, 53985-53991 2018-23398 PROPOSED RULES Special Conditions: Innovative Solutions and Support, Inc., Textron Aviation, Inc. Model B200-Series Airplanes, Autothrust Functions, 54057-54059 2018-22661 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Procedures for Non-Federal Navigation Facilities, 54166 2018-23463 Noise Compatibility Program: San Francisco International Airport, San Francisco, CA, 54166-54167 2018-23404 Federal Communications Federal Communications Commission PROPOSED RULES Improving the 911 System by Implementing Karl's Law and RAY BAUM'S Act, 54180-54224 2018-21888 Federal Emergency Federal Emergency Management Agency NOTICES Flood Hazard Determinations, 54132-54135 2018-23377 2018-23383 Major Disaster Declarations: Florida; Amendment No. 2, 54133-54134 2018-23379 North Carolina; Amendment No. 1, 54131 2018-23381 North Carolina; Amendment No. 4, 54131 2018-23378 North Carolina; Amendment No. 6, 54133 2018-23380 Federal Energy Federal Energy Regulatory Commission RULES Supply Chain Risk Management Reliability Standards, 53992-54005 2018-23201 NOTICES Applications: Gulf South Pipeline Co., LP, 54102-54103 2018-23440 Tenn-Tom Hydro, LLC, 54103 2018-23442 Combined Filings, 54100-54104 2018-23439 2018-23441 2018-23443 Federal Highway Federal Highway Administration NOTICES Final Federal Agency Actions: Texas; Proposed Highway Projects, 54168-54172 2018-23103 Utah; Proposed Highway, 54167-54168 2018-23428 Wisconsin; Proposed Highway Project, 54172-54173 2018-23339 Federal Railroad Federal Railroad Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54173-54174 2018-23461 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 54106 2018-23385 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 54106-54107 2018-23449 Meetings; Sunshine Act, 54106 2018-23559 Food and Drug Food and Drug Administration RULES Medical Devices: Anesthesiology Devices; Classification of the High Flow Humidified Oxygen Delivery Device, 54006-54007 2018-23409 Ear, Nose, and Throat Devices; Classification of the Active Implantable Bone Conduction Hearing System, 54007-54010 2018-23412 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Prescription Drug Product Labeling; Medication Guide Requirements, 54110-54112 2018-23422 Determinations of Regulatory Review Periods for Purposes of Patent Extensions: REBINYN, 54112-54113 2018-23437 TALTZ, 54108-54110 2018-23438 Guidance: Biopharmaceutics Classification System-Based Biowaivers; International Council for Harmonisation, 54107-54108 2018-23425 Sucralfate, 54113-54115 2018-23386 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 54175-54176 2018-23486 Foreign Trade Foreign-Trade Zones Board NOTICES Subzone Status; Approvals: Liquilux Gas Corp. Ponce, PR, 54083 2018-23456 MAS US Holdings, Inc., Siler City and Asheboro, NC, 54083 2018-23455 Health and Human Health and Human Services Department See

Food and Drug Administration

See

National Institutes of Health

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54115-54117 2018-23484
Historic Historic Preservation, Advisory Council NOTICES Issuance of U.S. Department of Veterans Affairs Program Comment for Vacant and Underutilized Properties, 54119-54128 2018-23397 Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Customs and Border Protection

NOTICES Meetings: The President's National Security Telecommunications Advisory Committee, 54135-54136 2018-23464
Industry Industry and Security Bureau NOTICES Meetings: Transportation and Related Equipment Technical Advisory Committee, 54083-54084 2018-23435 Interior Interior Department See

Land Management Bureau

See

Ocean Energy Management Bureau

Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54176-54177 2018-23482 2018-23485 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Circular Welded Non-Alloy Steel Pipe from Mexico, 54084-54086 2018-23454 Steel Propane Cylinders from the People's Republic of China, 54086-54088 2018-23453 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Insulated Beverage Containers, Components, Labels, and Packaging Materials Thereof, 54140-54141 2018-23408 Certain Mobile Electronic Devices and Radio Frequency and Processing Components Thereof; Request for Statements on the Public Interest, 54138-54139 2018-23411 Certain Network Devices, Related Software and Components Thereof (I), 54137-54138 2018-23414 Crystalline Silicon Photovoltaic Cells and Modules from China, 54138 2018-23375 Strontium Chromate from Austria and France, 54139-54140 2018-23490 Justice Department Justice Department See

Antitrust Division

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 54142-54143 2018-23424
Labor Department Labor Department See

Mine Safety and Health Administration

See

Occupational Safety and Health Administration

Land Land Management Bureau NOTICES Plats of Survey: Montana, 54136 2018-23489 Legal Legal Services Corporation NOTICES Grant Awards: Civil Legal Services to Eligible Low-Income Clients Beginning January 1, 2019, 54148-54151 2018-23406 Library Library of Congress See

Copyright Office, Library of Congress

Mine Mine Safety and Health Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Escape and Evacuation Plans for Surface Coal Mines, Surface Facilities and Surface Work Areas of Underground Coal Mines, 54145 2018-23417 Explosive Materials and Blasting Units, 54144-54145 2018-23418 Main Fan Operation and Inspection, 54143-54144 2018-23421 National Institute National Institutes of Health NOTICES Meetings: National Eye Institute, 54118 2018-23391 National Institute of Allergy and Infectious Diseases, 54118 2018-23393 National Institute of Diabetes and Digestive and Kidney Diseases, 54118 2018-23392 National Institute of Nursing Research, 54117 2018-23429 National Institute on Alcohol Abuse and Alcoholism, 54117 2018-23394 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Northeastern United States: Golden Tilefish Fishery; 2019 Specifications, 54055-54056 2018-23431 PROPOSED RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Electronic Reporting for Federally Permitted Charter Vessels and Headboats in Gulf of Mexico Fisheries, 54069-54079 2018-23348 NOTICES Meetings: Mid-Atlantic Fishery Management Council, 54090-54091 2018-23444 North Pacific Fishery Management Council, 54088, 54090 2018-23445 2018-23446 Requests for Nominations: NOAA Science Advisory Board; Correction, 54089-54090 2018-23460 Taking and Importing Marine Mammals: Oil and Gas Activities in Cook Inlet, Alaska, 54088-54089 2018-23405 Navy Navy Department NOTICES Record of Decision: Atlantic Fleet Training and Testing Final Environmental Impact Statement/Overseas Environmental Impact Statement, 54097 2018-23488 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: The Occupational Exposure to Hazardous Chemicals in Laboratories Standard, 54145-54147 2018-23419 Requests for Nominations: Maritime Advisory Committee for Occupational Safety and Health, 54147-54148 2018-23423 Ocean Energy Management Ocean Energy Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Liberty Development and Production Plan in the Beaufort Sea Planning Area, 54136-54137 2018-23366 Presidential Documents Presidential Documents ADMINISTRATIVE ORDERS Congo, Democratic Republic of the; Continuation of National Emergency (Notice of October 25, 2018), 54225-54227 2018-23657 Securities Securities and Exchange Commission NOTICES Applications: Beyond Advisors IC, et al., 54151-54153 2018-23376 Self-Regulatory Organizations; Proposed Rule Changes: ICE Clear Europe Limited, 54154-54157 2018-23388 2018-23389 Nasdaq ISE, LLC, 54157-54161 2018-23390 NYSE Arca, Inc., 54153-54154 2018-23387 Small Business Small Business Administration NOTICES Disaster Declarations: Pennsylvania, 54161 2018-23480 Texas, 54161 2018-23483 Surface Transportation Surface Transportation Board NOTICES Lease and Operation Exemption: Iowa and Middletown Railway, LLC from American Ordnance, LLC, Owner's Representative for U.S. Army Joint Munitions Command, 54162 2018-23472 Tennessee Tennessee Valley Authority NOTICES Environmental Impact Statements; Availability, etc.: Shawnee Fossil Plant Coal Combustion Residual Management, 54162-54164 2018-23427 Trade Representative Trade Representative, Office of United States NOTICES Requests for Comments: Negotiating Objectives for a U.S.-Japan Trade Agreement, 54164-54165 2018-23569 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Railroad Administration

RULES Airline Reporting of Data on Mishandled Baggage, Wheelchairs, and Scooters, 53991-53992 2018-23475
Treasury Treasury Department See

Comptroller of the Currency

See

Foreign Assets Control Office

See

Internal Revenue Service

PROPOSED RULES Freedom of Information Act Regulations, 54059-54069 2018-23447 NOTICES Senior Executive Service Departmental Offices Performance Review Board, 54177-54178 2018-23430 2018-23432
Customs U.S. Customs and Border Protection NOTICES Quarterly IRS Interest Rates Used in Calculating Interest on Overdue Accounts and Refunds on Customs Duties, 54130-54131 2018-23469 Veteran Affairs Veterans Affairs Department RULES VA Acquisition Regulation: Describing Agency Needs; Contract Financing, 54054-54055 2018-23420 Separate Parts In This Issue Part II Federal Communications Commission, 54180-54224 2018-21888 Part III Presidential Documents, 54225-54227 2018-23657 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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83 208 Friday, October 26, 2018 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 989 [Doc. No. AO-FV-16-0016; AMS-SC-16-0011; SC16-989-1] Raisins Produced From Grapes Grown in California; Order Amending Marketing Order No. 989 AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

This final rule amends Marketing Order No. 989 (Order), which regulates the handling of raisins produced from grapes grown in California. Five amendments were proposed by the Raisin Administrative Committee (RAC) and three were proposed by the Agricultural Marketing Service (AMS). Seven of the eight proposed amendments were favored by California raisin growers in a mail referendum, held December 4 through 15, 2017. This final rule also makes administrative revisions to subpart headings to bring the language into conformance with the Office of Federal Register requirements.

DATES:

This rule is effective November 26, 2018.

ADDRESSES:

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

FOR FURTHER INFORMATION CONTACT:

Melissa Schmaedick, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, Post Office Box 952, Moab, UT 84532; Telephone: (202) 557-4783, Fax: (435) 259-1502, or Michelle Sharrow, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected] or [email protected]

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

SUPPLEMENTARY INFORMATION:

Prior documents in this proceeding: Notice of Hearing issued on April 14, 2016, and published in the April 22, 2016, issue of the Federal Register (81 FR 23650) and a Recommended Decision issued on May 3, 2017, and published in the May 31, 2017, issue of the Federal Register (82 FR 24882); and a Secretary's Decision and Referendum Order issued September 19, 2017, and published in the September 29, 2017, issue of the Federal Register (82 FR 45517).

This action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Orders 12866, 13563, and 13175. Additionally, because this rule does not meet the definition of a significant regulatory action it does not trigger the requirements contained in Executive Order 13771. See the Office of Management and Budget's (OMB) Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

Notice of this rulemaking action was provided to tribal governments through the Department of Agriculture's (USDA) Office of Tribal Relations.

Preliminary Statement

This action, pursuant to 5 U.S.C. 556 and 557, finalizes amendments to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rule is issued under Marketing Order No. 989, as amended (7 CFR part 989), regulating the handling of raisins produced from grapes grown in California. Part 989 (referred to as the Order) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

This rule is formulated on the record of a public hearing held on May 3 and 4, 2016, in Clovis, California. The hearing was held pursuant to the provisions of the Act, and the applicable rules of practice and procedure governing the formulation and amendment of marketing agreements and orders (7 CFR part 900). Notice of this hearing was published in the Federal Register on April 22, 2016 (81 FR 23650). The notice of hearing contained five proposals submitted by the RAC and three proposals by AMS.

Upon the basis of evidence introduced at the hearing and the record thereof, the Administrator of AMS on May 3, 2017, filed with the Hearing Clerk, USDA, a Recommended Decision and Opportunity to File Written Exceptions thereto by June 30, 2017. One exception was filed. The exception filed opposed the proposed amendment to establish term limits.

A Secretary's Decision and Referendum Order was issued on September 29, 2017, directing that a referendum be conducted during the period of December 4 through 17, 2017, among eligible California raisin growers to determine whether they favored the proposed amendments to the Order. To become effective, the amendments had to be approved by at least two-thirds of those growers voting, or by voters representing at least two-thirds of the volume of raisins represented by voters voting in the referendum. The approved amendments were favored by over ninety percent of the growers voting in the referendum, representing over ninety percent of the total volume of raisins produced by those voting. The failed amendment was opposed by ninety-three percent of those voting and ninety-five percent of the represented volume.

The amendments favored by voters and included in this final order will: Authorize production research; establish new nomination procedures for independent grower member and alternate member seats; add authority to regulate quality; add authority to establish different regulations for different market destinations; add a continuance referenda requirement; and remove volume regulation and reserve pool authority from the Order.

USDA also made changes as were necessary to conform the Order provisions to the effectuated amendments. Conforming changes and corrections proposed by USDA include: Revising all references of “offgrade” to “off-grade”; revising all references of “nonnormal” to “non-normal”; and, revising all references of “committee” to “Committee.” These corrections will result in consistent spelling of these terms throughout the Order. Also in this final rule, USDA will revise the amendment of § 989.58(d) from “interplant” and “interhandler” to “inter-plant” and “inter-handler” as it appears in amended § 989.59(e).

In addition, the words “Processed Products Standardization and Inspection Branch” in §§ 989.58(d) and 989.59(d) will be changed to “Specialty Crops Inspection Division.” Similarly, “Processed Products Branch, Fruit and Vegetable Division” in § 989.102 will be changed to “Specialty Crops Inspection Division.” These corrections will reflect the official name change of the AMS's inspection service office for fruit, vegetables and specialty crops.

Lastly, an additional correction will change the amendatory language in §§ 989.55, 989.56, 989.65, 989.66, 989.67, 989.71, 989.72, 989.82, 989.154, 989.156, 989.166, 989.167, 989.221, 989.257 and 989.401, from “remove” to “remove and reserve.” This change will prevent the unintentional renumbering of remaining sections of the Order.

The amended marketing agreement was subsequently mailed to all raisin handlers in the production area for their approval. The marketing agreement was approved by handlers representing more than 50 percent of the volume of raisins handled by all handlers during the August 1, 2016, through July 31, 2017, representative period. Consequently, a companion handler agreement will also be established.

Small Business Consideration

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. Marketing orders and amendments thereto are unique in that they are normally brought about through group action of essentially small entities for their own benefit.

According to the hearing transcript, there are approximately 3,000 raisin producers in California. According to National Agricultural Statistics Service data presented at the hearing, the total value of production of raisins in the 2014/15 crop year is $598,052,000. Taking the total value of production for raisins and dividing it by the total number of raisin producers provides an average return per producer of $199,950.67. A small producer as defined by the Small Business Administration (SBA) (13 CFR 121.201) is one that grosses less than $750,000 annually. Therefore, a majority of raisin producers are considered small entities under SBA's standards.

According to the industry, there were 23 raisin handlers for the 2015/16 crop year. While individual handling operation information is proprietary, both testimonies offered by handler witnesses and an assessment of total value of dried production leads USDA to conclude that 13 handlers would be considered small entities under SBA's standards.

According to the record, two of the 23 handlers handled roughly 60 percent of total production during the 2015/16 crop year. A calculation using the 2014 total value of production of $598,052,000 puts the value handled by the cooperatives at $358,831,200 ($598,052,000 × 60 percent) and the value handled by all other handlers at $239,220,800. With 21 non-cooperative handlers remaining, $239,220,800 divided by that number results in an average handler receipt of $11,391,467. Assuming a normal bell-curve distribution, coupled with the number of handlers self-identifying at the hearing as small business entities, USDA accepts the Committee's assertion that 13 handlers fall under the SBA definition of small agricultural service firm. A small agricultural service firm as defined by the SBA is one that grosses less than $7,500,000 annually. Thus, slightly more than half of the industry's handlers are considered small entities under SBA's standards.

The production area regulated under the Order covers the state of California. Acreage devoted to raisin production in the regulated area has declined in recent years. According to data presented at the hearing, bearing acreage for raisins reached a high of 280,000 acres during the 2000/01 crop year. Since then, bearing acreage for raisins has decreased 32 percent to 190,000 acres in 2014/15. As a result, the total production of raisins reached a high during the 2000/01 crop year of 484,500 tons (dried basis). Since the 2000/01 crop year, total production for raisins has decreased 32 percent to 328,600 tons in 2014/15.

During the hearing held May 3 and 4, 2016, interested persons were invited to present evidence on the probable regulatory and information collection impact of the proposed amendments to the Order on small businesses. The evidence presented at the hearing shows that none of the proposed amendments would have any burdensome effects or a significant economic impact on a substantial number of small agricultural producers or firms.

Material Issues Material Issue Number 1—Authorize Production Research

This action amends § 989.53 to authorize production research.

Currently, the California Raisin Marketing Board (CRMB) is the funding source for production research for the California raisin industry. Three years ago, payments of assessments to the CRMB were suspended due to the results of litigation. Without funding, the CRMB has been unable to conduct any new production research projects. The amendment to § 989.53 will authorize the RAC to conduct production research without having to rely on the CRMB for funding.

Witnesses stated that future research could potentially impact producers in many ways, such as reducing pesticide usage or the development of new varieties that are less labor intensive. Production research will provide the raisin industry the ability to meet the needs of the ever changing domestic and international markets. According to a witness's testimony, the benefits of the proposed amendment will outweigh any costs and will not have a significant impact on a substantial number of small entities.

Material Issue Number 2—Authorize Separate Nominations for Independent Producer Member and Independent Producer Alternate Member Seats

This action amends §§ 989.29 and 989.129 to authorize separate nominations for independent producer members and independent producer alternate member seats.

Currently, the RAC has difficulty filling Committee seats designated for independent producer members and independent producer alternate members. Independent producer alternate member seats have gone unfilled for several consecutive years.

According to witnesses' testimony, this amendment will increase the participation of independent producers willing to participate on the RAC. Allowing for separate nominations for members and alternates will encourage participation by those who wish to serve in one capacity and not the other. Full participation would give the independent producers full representation on the Board they represented and a voice in RAC decisions.

It is determined that the benefits of increased RAC participation by independent producers will outweigh any costs associated with the implementation of this amendment.

Material Issue Number 3—Add Authority To Regulate Quality

This action will amend §§ 989.58, 989.59 and 989.61 to add authority to regulate quality under the Order. A corresponding change will also revise the heading prior to § 989.58 to include quality.

Currently, §§ 989.58 and 989.59 state that the RAC has the authority to recommend grade and condition standards under the Order. The attribute “quality” is not specifically mentioned. The amendment will add language to include “quality” as an attribute that can be regulated under the Order.

According to a witness at the hearing, the amendment will give the RAC flexibility to ensure consumer safety by setting quality standards for residue levels for herbicides, pesticides or fungicides. The quality standards will be equally applied to all handlers of raisins within the U.S.; some handlers are already testing for certain types of fungicides so the increased costs will be minimal.

It is determined that the additional costs incurred to regulate quality will be greatly outweighed by the increased flexibility for the industry, increased consumer safety, and other benefits gained from implementing this amendment. The costs of implementing it will not have a significant impact on a substantial number of small entities.

Material Issue Number 4—Add Authority To Establish Different Regulations for Different Markets

This action will amend § 989.59 to add authority to establish different regulations for different markets.

The Order does not currently allow for different quality or grade standards to be applied to different foreign markets. The language in the Order only has two classifications for grade and condition standards, Grade A or Grade B. The current grade and condition standards are consistent across all markets.

This amendment will give the RAC the authority to develop requirements for raisins intended for export to different foreign markets. Industry will have the flexibility to tailor product attributes to meet the foreign consumer profile and the customer demands for each individual market.

It is determined that any additional costs incurred for this amendment will be outweighed by the increased flexibility for the industry to respond to a changing global marketplace. The costs of implementing this amendment will not have a significant impact on a substantial number of small entities.

Material Issue Number 5—Continuance Referenda

This action will amend § 989.91 to require continuance referenda.

The amendment will require the USDA to conduct a continuance referendum between year five and year six after implementation for the first referendum, and every six years thereafter. A witness testified that a continuance referendum is the best tool for assuring that the Order remains responsive to the needs of the industry. While a continuance referendum will not directly improve producer returns, it will indirectly ensure that the industry believes that the Order is operating in the producer's best interest.

For these reasons, it is determined that the benefits of conducting a continuance referendum will outweigh the potential costs of implementing this amendment. The costs of implementing this amendment will be minimal and will not have a significant impact on a substantial number of small entities.

Material Issue Number 6—Remove Volume Regulations and Reserve Pool Authority

This action will amend the Order to remove volume regulation and reserve pool authority. This will include: deleting and reserving §§ 989.55 and 989.56, §§ 989.65 through 989.67, §§ 989.71, 989.72, 989.82, 989.154, 989.156, 989.166, 989.167, 989.221, 989.257, and 989.401; revising §§ 989.11, 989.53, 989.54, 989.58, 989.59, 989.60, 989.73, 989.79, 989.80, 989.84, 989.158, 989.173, and 989.210; and re-designating § 989.70 as § 989.96. Corresponding changes will also remove the following headings: “Volume Regulation” prior to § 989.65; “Volume Regulation” prior to § 989.166; and, “Subpart-Schedule of Payments” prior to § 989.401.

The amendment will remove all authority for the RAC to recommend volume restrictions and a reserve pool. On June 22, 2015, the United States Supreme Court, in Horne v. USDA, ruled that the application of the Order's reserve pool authority to the Horne's was a taking under the Fifth Amendment to the U.S. Constitution. In a July 16, 2015, letter to the RAC, USDA stated, “In light of the Horne decision, the U.S. Department of Agriculture has decided not to authorize the reserve program of the Federal marketing order for California raisins for the foreseeable future, effective immediately.”

One witness at the hearing explained that bearing acres have declined the past ten years, which supports the theory that the California raisin industry is adjusting to a decreasing or flat demand for the product. The witness stated that, in the future, supply will likely remain in better balance with demand and, therefore, the reserve pool and volume regulation are no longer as relevant as they were in higher production times. To further the point, the witness stated that the Order's reserve pool authority has not been utilized since 2010.

The amendment will be a relaxation of regulatory requirements. For this reason, it is determined that no significant impact on small business entities is anticipated from this change.

The costs attributed to these amendments are minimal; therefore, there will not be a significant impact on a substantial number of small entities.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule. These amendments are intended to improve the operation and administration of the Order and to assist in the marketing of California raisins.

RAC meetings regarding these amendments, as well as the hearing date and location, were widely publicized throughout the California raisin industry, and all interested persons were invited to attend the meetings and the hearing to participate in RAC deliberations on all issues. All RAC meetings and the hearing were public forums, and all entities, both large and small, were able to express views on these issues. Finally, interested persons were invited to submit information on the regulatory and information collection impacts of this action on small businesses.

Paperwork Reduction Act

Current information collection requirements for Part 989 are approved by OMB, under OMB Number 0581-0189—“Generic OMB Fruit Crops.” No changes are anticipated in these requirements as a result of this proceeding. Should any such changes become necessary, they will be submitted to OMB for approval.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public-sector agencies.

AMS is committed to complying with the Government Paperwork Elimination Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

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

Civil Justice Reform

The amendments to the Order stated herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect. The amendments do not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of entry of the ruling.

Order Amending the Order Regulating the Handling of Raisins Produced From Grapes Grown in California 1

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

Findings and Determinations

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

(a) Findings and Determinations Upon the Basis of the Hearing Record

Pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), and the applicable rules of practice and procedure effective thereunder (7 CFR part 900), a public hearing was held upon further amendment of Marketing Order No. 989, regulating the handling of raisins produced from grapes grown in California.

Upon the basis of the record, it is found that:

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

(2) The Order, as amended, and as hereby further amended, regulates the handling of raisins produced from grapes grown in the production area in the same manner as, and are applicable only to, persons in the respective classes of commercial and industrial activity specified in the Order upon which a hearing has been held;

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

(4) The Order, as amended, and as hereby further amended, prescribes, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of raisins produced from grapes grown in California; and

(5) All handling of raisins produced from grapes grown in the production area as defined in the Order is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.

(b) Determinations. It is hereby determined that:

(1) Handlers (excluding cooperative associations of growers who are not engaged in processing, distributing, or shipping raisins covered by the Order as hereby amended) who, during the period August 1, 2016, through July 31, 2017, handled 50 percent or more of the volume of such raisins covered by said Order, as hereby amended, have signed an amended marketing agreement;

(2) The issuance of this amendatory Order, further amending the aforesaid Order, was favored or approved by at least two-thirds of the growers who participated in a referendum on the question of approval and who, during the period of August 1, 2016, through July 31, 2017 (which has been deemed to be a representative period), have been engaged within the production area in the production of such raisins, such growers having also produced for market at least two-thirds of the volume of such commodity represented in the referendum; and

(3) The issuance of this amendatory Order advances the interests of producers of raisins in the production area pursuant to the declared policy of the Act.

Order Relative to Handling

It is therefore ordered, that on and after the effective date hereof, all handling of raisins produced from grapes grown in California shall be in conformity to, and in compliance with, the terms and conditions of the said Order as hereby amended as follows:

The provisions of the amendments to the Order contained in the Secretary's Decision issued September 19, 2017, and published in the September 29, 2017, issue of the Federal Register (82 FR 45517), with the exception of the proposal to establish term limits, will be and are the terms and provisions of this Order amending the Order and are set forth in full herein.

List of Subjects in 7 CFR Part 989

Raisins, Marketing agreements, Reporting and recordkeeping requirements.

For the reasons set out in the preamble, 7 CFR part 989 is amended as follows:

PART 989—RAISINS PRODUCED FROM GRAPES GROWN IN CALIFORNIA 1. The authority citation for part 989 continues to read as follows: Authority:

7 U.S.C. 601-674.

Subpart Redesignated as Subpart A 2. Designate the subpart labeled “Order Regulating Handling” as subpart A. 3. Section 989.11 is revised to read as follows:
§ 989.11 Producer.

Producer means any person engaged in a proprietary capacity in the production of grapes which are sun-dried or dehydrated by artificial means until they become raisins.

4. In § 989.29: a. Revise paragraph (b)(2)(ii); b. Redesignate paragraph (b)(2)(iii) as paragraph (b)(2)(iv); c. Add new paragraph (b)(2)(iii); and d. Revise newly redesignated paragraph (b)(2)(iv).

The revisions and addition read as follows:

§ 989.29 Initial members and nomination of successor members.

(b) * * *

(2) * * *

(ii) Each such producer whose name is offered in nomination for producer member positions to represent on the Committee independent producers or producers who are affiliated with cooperative marketing association(s) handling less than 10 percent of the total raisin acquisitions during the preceding crop year shall be given the opportunity to provide the Committee a short statement outlining qualifications and desire to serve if selected. Similarly, each such producer whose name is offered in nomination for producer alternate member positions to represent on the Committee independent producers or producers who are affiliated with cooperative marketing association(s) handling less than 10 percent of the total raisin acquisitions during the preceding crop year shall be given the opportunity to provide the Committee a short statement outlining qualifications and desire to serve if selected. These brief statements, together with a ballot and voting instructions, shall be mailed to all independent producers and producers who are affiliated with cooperative marketing associations handling less than 10 percent of the total raisin acquisitions during the preceding crop year of record with the Committee in each district. The producer member candidate receiving the highest number of votes shall be designated as the first member nominee, the second highest shall be designated as the second member nominee until nominees for all producer member positions have been filled. Similarly, the producer alternate member candidate receiving the highest number of votes shall be designated as the first alternate member nominee, the second highest shall be designated as the second alternate member nominee until nominees for all member positions have been filled.

(iii) In the event that there are more producer member nominees than positions to be filled and not enough producer alternate member nominees to fill all positions, producer member nominees not nominated for a member seat may be nominated to fill vacant alternate member seats. Member seat nominees shall indicate, prior to the nomination vote, whether they are willing to accept nomination for an alternate seat in the event they are not nominated for a member seat and there are vacant alternate member seats. Member seat nominees that do not indicate willingness to be considered for vacant alternate member seats shall not be considered.

(iv) Each independent producer or producer affiliated with cooperative marketing association(s) handling less than 10 percent of the total raisin acquisitions during the preceding crop year shall cast only one vote with respect to each position for which nominations are to be made. Write-in candidates shall be accepted. The person receiving the most votes with respect to each position to be filled, in accordance with paragraph (b)(2)(ii) and (iii) of this section, shall be the person to be certified to the Secretary as the nominee. The Committee may, subject to the approval of the Secretary, establish rules and regulations to effectuate this section.

5. In § 989.53, revise the introductory text of paragraph (a), and remove the undesignated paragraph that follows paragraph (a)(5) to read as follows:
§ 989.53 Research and development.

(a) General. The Committee, with the approval of the Secretary, may establish or provide for the establishment of projects involving production research, market research and development, marketing promotion including paid advertising, designed to assist, improve, or promote the production, marketing, distribution, and consumption of raisins in domestic and foreign markets. These projects may include, but need not be limited to those designed to:

6. In § 989.54: a. Remove paragraphs (a) through (d) and (g); b. Remove paragraph (e)(4); c. Redesignate paragraphs (e)(5) through (e)(10) as (e)(4) through (e)(9), respectively; d. Redesignate paragraphs (e), (f), and (h) as paragraphs (a), (b), and (c), respectively; and e. Revise newly redesignated paragraphs (a) introductory text, (a)(1), (a)(4), (a)(5) and (c).

The revisions read as follows:

§ 989.54 Marketing policy.

(a) Marketing policy. Each crop year, the Committee shall prepare and submit to the Secretary a report setting forth its recommended marketing policy, including quality regulations for the pending crop. In developing the marketing policy, the Committee may give consideration to the production, harvesting, processing, and storage conditions of that crop, as well as the following factors:

(1) The estimated tonnage held by producers and handlers at the beginning of the crop year;

(4) An estimated desirable carryout at the end of the crop year;

(5) The estimated market demand for raisins, considering the estimated world raisin supply and demand situation;

(c) Publicity. The Committee shall promptly give reasonable publicity to producers, dehydrators, handlers, and the cooperative bargaining association(s) of each meeting to consider a marketing policy or any modification thereof, and each such meeting shall be open to them. Similar publicity shall be given to producers, dehydrators, handlers, and the cooperative bargaining association(s) of each marketing policy report or modification thereof, filed with the Secretary and of the Secretary's action thereon.

Copies of all marketing policy reports shall be maintained in the office of the Committee, where they shall be made available for examination by any producer, dehydrator, handler, or cooperative bargaining association representative. The Committee shall notify handlers, dehydrators and the cooperative bargaining association(s), and give reasonable publicity to producers of its computation.

§§ 989.55 and 989.56 [Removed and reserved]
7. Sections 989.55 and 989.56 are removed and reserved. 8. Revise the undesignated heading prior to § 989.58 to read as follows: “Grade, Quality, and Condition Standards”. 9. In § 989.58, revise paragraphs (a), (b), (d)(1), (e)(1), and (e)(4) to read as follows:
§ 989.58 Natural condition raisins.

(a) Regulation. No handler shall acquire or receive natural condition raisins which fail to meet such minimum grade, quality, and condition standards as the Committee may establish, with the approval of the Secretary, in applicable rules and regulations: Provided, That a handler may receive raisins for inspection, may receive off-grade raisins for reconditioning and may receive or acquire off-grade raisins for use in eligible non-normal outlets: And provided further, That a handler may acquire natural condition raisins which exceed the tolerance established for maturity under a weight dockage system established pursuant to rules and regulations recommended by the Committee and approved by the Secretary. Nothing contained in this paragraph shall apply to the acquisition or receipt of natural condition raisins of a particular varietal type for which minimum grade, quality, and condition standards are not applicable or then in effect pursuant to this part.

(b) Changes in minimum grade, quality, and condition standards for natural condition raisins. The Committee may recommend to the Secretary changes in the minimum grade, quality, and condition standards for natural condition raisins of any varietal type and may recommend to the Secretary that minimum grade, quality, and condition standards for any varietal type be added to or deleted. The Committee shall submit with its recommendation all data and information upon which it acted in making its recommendation, and such other information as the Secretary may request. The Secretary shall approve any such change if he finds, upon the basis of data submitted to him by the Committee or from other pertinent information available to him, that to do so would tend to effectuate the declared policy of the Act.

(d) * * *

(1) Each handler shall cause an inspection and certification to be made of all natural condition raisins acquired or received by him, except with respect to:

(i) An inter-plant or inter-handler transfer of off-grade raisins as described in paragraph (e)(2) of this section, unless such inspection and certification are required by rules and procedures made effective pursuant to this amended subpart;

(ii) An inter-plant or inter-handler transfer of standard raisins as described in § 989.59(e);

(iii) Raisins received from a dehydrator which have been previously inspected pursuant to paragraph (d)(2) of this section;

(iv) Any raisins for which minimum grade, quality, and condition standards are not then in effect;

(v) Raisins received from a cooperative bargaining association which have been inspected and are in compliance with requirements established pursuant to paragraph (d)(3) of this section; and

(vi) Any raisins, if permitted in accordance with such rules and procedures as the Committee may establish with the approval of the Secretary, acquired or received for disposition in eligible non-normal outlets. Except as otherwise provided in this section, prior to blending raisins, acquiring raisins, storing raisins, reconditioning raisins, or acquiring raisins which have been reconditioned, each handler shall obtain an inspection certification showing whether or not the raisins meet the applicable grade, quality, and condition standards: Provided, That the initial inspection for infestation shall not be required if the raisins are fumigated in accordance with such rules and procedures as the Committee shall establish with the approval of the Secretary. The handler shall submit or cause to be submitted to the Committee a copy of such certification, together with such other documents or records as the Committee may require. Such certification shall be issued by inspectors of the Processed Products Standardization and Inspection Branch of the U.S. Department of Agriculture, unless the Committee determines, and the Secretary concurs in such determination, that inspection by another agency would improve the administration of this amended subpart. The Committee may require that raisins held on memorandum receipt be re-inspected and certified as a condition for their acquisition by a handler.

(e) * * *

(1) Any natural condition raisins tendered to a handler which fail to meet the applicable minimum grade, quality, and condition standards may:

(i) Be received or acquired by the handler for disposition, without further inspection, in eligible non-normal outlets;

(ii) Be returned unstemmed to the person tendering the raisins; or

(iii) Be received by the handler for reconditioning. Off-grade raisins received by a handler under any one of the three described categories may be changed to any other of the categories under such rules and procedures as the Committee, with the approval of the Secretary, shall establish. No handler shall ship or otherwise dispose of off-grade raisins which he does not return to the tenderer, transfer to another handler as provided in paragraph (e)(2) of this section, or recondition so that they at least meet the minimum standards prescribed in or pursuant to this amended subpart, except into eligible non-normal outlets.

(4) If the handler is to acquire the raisins after they are reconditioned, his obligation with respect to such raisins shall be based on the weight of the raisins (if stemmed, adjusted to natural condition weight) after they have been reconditioned.

10. In § 989.59, revise paragraphs (a), (b), (d), (e), and (g) to read as follows:
§ 989.59 Regulation of the handling of raisins subsequent to their acquisition by handlers.

(a) Regulation. Unless otherwise provided in this part, no handler shall:

(1) Ship or otherwise make final disposition of natural condition raisins unless they at least meet the effective and applicable minimum grade, quality, and condition standards for natural condition raisins; or

(2) Ship or otherwise make final disposition of packed raisins unless they at least meet such minimum grade quality, and condition standards established by the Committee, with the approval of the Secretary, in applicable rules and regulations or as later changed or prescribed pursuant to the provisions of paragraph (b) of this section: Provided, That nothing contained in this paragraph shall prohibit the shipment or final disposition of any raisins of a particular varietal type for which minimum standards are not applicable or then in effect pursuant to this part. And provided further, That a handler may grind raisins, which do not meet the minimum grade, quality, and condition standards for packed raisins because of mechanical damage or sugaring, into a raisin paste. The Committee may establish, with approval of the Secretary, different grade, quality, and condition regulations for different markets.

(b) Changes to minimum grade, quality, or condition standards. The Committee may recommend changes in the minimum grade, quality, or condition standards for packed raisins of any varietal type and may recommend to the Secretary that minimum grade, quality, or condition standards for any varietal type be added or deleted. The Committee shall submit with its recommendation all data and information upon which it acted in making its recommendation, and such other information as the Secretary may request. The Secretary shall approve any such change if he finds, upon the basis of data submitted to him by the Committee or from other pertinent information available to him, that to do so would tend to effectuate the declared policy of the Act.

(d) Inspection and certification. Unless otherwise provided in this section, each handler shall, at his own expense, before shipping or otherwise making final disposition of raisins, cause an inspection to be made of such raisins to determine whether they meet the then applicable minimum grade, quality, and condition standards for natural condition raisins or the then applicable minimum standards for packed raisins. Such handler shall obtain a certificate that such raisins meet the aforementioned applicable minimum standards and shall submit or cause to be submitted to the Committee a copy of such certificate together with such other documents or records as the Committee may require. The certificate shall be issued by the Processed Products Standardization and Inspection Branch of the United States Department of Agriculture, unless the Committee determines, and the Secretary concurs in such determination, that inspection by another agency will improve the administration of this amended subpart. Any certificate issued pursuant to this paragraph shall be valid only for such period of time as the Committee may specify, with the approval of the Secretary, in appropriate rules and regulations.

(e) Inter-plant and inter-handler transfers. Any handler may transfer from his plant to his own or another handler's plant within the State of California any raisins without having had such raisins inspected as provided in paragraph (d) of this section. The transferring handler shall transmit promptly to the Committee a report of such transfer, except that transfers between plants owned or operated by the same handler need not be reported. Before shipping or otherwise making final disposition of such raisins, the receiving handler shall comply with the requirements of this section.

(g) Exemption of experimental and specialty packs. The Committee may establish, with the approval of the Secretary, rules and procedures providing for the exemption of raisins in experimental and specialty packs from one or more of the requirements of the minimum grade, quality, or condition standards of this section, together with the inspection and certification requirements if applicable.

11. Amend § 989.60 by revising paragraph (a) to read as follows:
§ 989.60 Exemption.

(a) Notwithstanding any other provisions of this amended subpart, the Committee may establish, with the approval of the Secretary, such rules and procedures as may be necessary to permit the acquisition and disposition of any off-grade raisins, free from any or all regulations, for uses in non-normal outlets.

12. Section 989.61 is revised to read as follows:
§ 989.61 Above parity situations.

The provisions of this part relating to minimum grade, quality, and condition standards and inspection requirements, within the meaning of section 2(3) of the Act, and any other provisions pertaining to the administration and enforcement of the Order, shall continue in effect irrespective of whether the estimated season average price to producers for raisins is in excess of the parity level specified in section 2(1) of the Act.

13. Remove the undesignated heading “Volume Regulation” prior to § 989.65.
§§ 989.65, 989.66, and 989.67 [Removed and reserved]
14. Sections 989.65, 989.66, and 989.67 are removed and reserved.
§ 989.70 [Redesignated as § 989.96]
15. Redesignate § 989.70 as § 989.96.
§§ 989.71 and 989.72 [Removed and reserved]
16. Sections 989.71 and 989.72 are removed and reserved. 17. Amend § 989.73 by revising paragraph (b) to read as follows:
§ 989.73 Reports.

(b) Acquisition reports. Each handler shall submit to the Committee in accordance with such rules and procedures as are prescribed by the Committee, with the approval of the Secretary, certified reports, for such periods as the Committee may require, with respect to his acquisitions of each varietal type of raisins during the particular period covered by such report, which report shall include, but not be limited to:

(1) The total quantity of standard raisins acquired;

(2) The total quantity of off-grade raisins acquired pursuant to § 989.58(e)(1)(i); and

(3) Cumulative totals of such acquisitions from the beginning of the then current crop year to and including the end of the period for which the report is made. Upon written application made to the Committee, a handler may be relieved of submitting such reports after completing his packing operations for the season. Upon request of the Committee, each handler shall furnish to the Committee, in such manner and at such times as it may require, the name and address of each person from whom he acquired raisins and the quantity of each varietal type of raisins acquired from each such person.

18. Section 989.79 is revised to read as follows:
§ 989.79 Expenses.

The Committee is authorized to incur such expenses as the Secretary finds are reasonable and likely to be incurred by it during each crop year, for the maintenance and functioning of the Committee and for such purposes as he may, pursuant to this subpart, determine to be appropriate. The funds to cover such expenses shall be obtained levying assessments as provided in § 989.80. The Committee shall file with the Secretary for each crop year a proposed budget of these expenses and a proposal as to the assessment rate to be fixed pursuant to § 989.80, together with a report thereon. Such filing shall be not later than October 5 of the crop year, but this date may be extended by the Committee not more than 5 days if warranted by a late crop.

19. In § 989.80, revise paragraphs (a) through (c) to read as follows:
§ 989.80 Assessments.

(a) Each handler shall pay to the Committee, upon demand, his pro rata share of the expenses which the Secretary finds will be incurred, as aforesaid, by the Committee during each crop year less any amounts credited pursuant to § 989.53. Such handler's pro rata share of such expenses shall be equal to the ratio between the total raisin tonnage acquired by such handler during the applicable crop year and the total raisin tonnage acquired by all handlers during the same crop year.

(b) Each handler who reconditions off-grade raisins but does not acquire the standard raisins recovered therefrom shall, with respect to his assessable portion of all such standard raisins, pay to the Committee, upon demand, his pro rata share of the expenses which the Secretary finds will be incurred by the Committee each crop year. Such handler's pro rata share of such expenses shall be equal to the ratio between the handler's assessable portion (which shall be a quantity equal to such handler's standard raisins which are acquired by some other handler or handlers) during the applicable crop year and the total raisin tonnage acquired by all handlers.

(c) The Secretary shall fix the rate of assessment to be paid by all handlers on the basis of a specified rate per ton. At any time during or after a crop year, the Secretary may increase the rate of assessment to obtain sufficient funds to cover any later finding by the Secretary relative to the expenses of the Committee. Each handler shall pay such additional assessment to the Committee upon demand. In order to provide funds to carry out the functions of the Committee, the Committee may accept advance payments from any handler to be credited toward such assessments as may be levied pursuant to this section against such handler during the crop year. The payment of assessments for the maintenance and functioning of the Committee, and for such purposes as the Secretary may pursuant to this subpart determine to be appropriate, may be required under this part throughout the period it is in effect, irrespective of whether particular provisions thereof are suspended or become inoperative.

§ 989.82 [Removed and reserved]
20. Section 989.82 is removed and reserved. 21. Section 989.84 is revised to read as follows:
§ 989.84 Disposition limitation.

No handler shall dispose of standard raisins, off-grade raisins, or other failing raisins, except in accordance with the provisions of this subpart or pursuant to regulations issued by the committee.

22. In § 989.91: a. Redesignate paragraphs (c) and (d) as paragraphs (d) and (e), respectively; and b. Add new paragraph (c).

The addition reads as follows:

§ 989.91 Suspension or termination.

(c) No less than five crop years and no later than six crop years after the effective date of this amendment, the Secretary shall conduct a referendum to ascertain whether continuance of this part is favored by producers. Subsequent referenda to ascertain continuance shall be conducted every six crop years thereafter. The Secretary may terminate the provisions of this part at the end of any crop year in which the Secretary has found that continuance of this part is not favored by a two-thirds majority of voting producers, or a two-thirds majority of volume represented thereby, who, during a representative period determined by the Secretary, have been engaged in the production for market of grapes used in the production of raisins in the State of California. Such termination shall be announced on or before the end of the crop year.

Subpart Redesignated as Subpart B and Amended 23. Redesignate “Subpart-Administrative Rules and Regulations” as subpart B and revise the heading to read as follows: Subpart B—Administrative Requirements 24. Section 989.129 is revised to read as follows:
§ 989.129 Voting at nomination meetings.

Any person (defined in § 989.3 as an individual, partnership, corporation, association, or any other business unit) who is engaged, in a proprietary capacity, in the production of grapes which are sun-dried or dehydrated by artificial means to produce raisins and who qualifies under the provisions of § 989.29(b)(2) shall be eligible to cast one ballot for a nominee for each producer member position and one ballot for a nominee for each producer alternate member position on the committee which is to be filled for his district. Such person must be the one who or which: Owns and farms land resulting in his or its ownership of such grapes produced thereon; rents and farms land, resulting in his or its ownership of all or a portion of such grapes produced thereon; or owns land which he or it does not farm and, as rental for such land, obtains the ownership of a portion of such grapes or the raisins. In this connection, a partnership shall be deemed to include two or more persons (including a husband and wife) with respect to land the title to which, or leasehold interest in which, is vested in them as tenants in common, joint tenants, or under community property laws, as community property. In a landlord-tenant relationship, wherein each of the parties is a producer, each such producer shall be entitled to one vote for a nominee for each producer member position and one vote for each producer alternate member position. Hence, where two persons operate land as landlord and tenant on a share-crop basis, each person is entitled to one vote for each such position to be filled. Where land is leased on a cash rental basis, only the person who is the tenant or cash renter (producer) is entitled to vote. A partnership or corporation, when eligible, is entitled to cast only one vote for a nominee for each producer position to be filled in its district.

25. Remove the undesignated heading “Marketing Policy” prior to § 989.154.
§§ 989.154 and 989.156 [Removed and reserved]
26. Sections 989.154 and 989.156 are removed and reserved.
27. Section 989.158(c)(4)(i) is revised to read as follows:
§ 989.158 Natural condition raisins.

(c) * * *

(4) * * *

(i) The handler shall notify the inspection service at least one business day in advance of the time such handler plans to begin reconditioning each lot of raisins, unless a shorter period is acceptable to the inspection service. Such notification shall be provided verbally or by other means of communication, including email. Natural condition raisins which have been reconditioned shall continue to be considered natural condition raisins for purposes of reinspection (inspection pursuant to § 989.58(d)) after such reconditioning has been completed, if no water or moisture has been added; otherwise, such raisins shall be considered as packed raisins. The weight of the raisins reconditioned successfully shall be determined by reweighing, except where a lot, before reconditioning, failed due to excess moisture only. The weight of such raisins resulting from reconditioning a lot failing account excess moisture may be determined by deducting 1.2 percent of the weight for each percent of moisture in excess of the allowable tolerance. When necessary due to the presence of sand, as determined by the inspection service, the requirement for deducting sand tare and the manner of its determination, as prescribed in paragraph (a)(1) of this section, shall apply in computing the net weight of any such successfully reconditioned natural condition raisins. The weight of the reconditioned raisins acquired as packed raisins shall be adjusted to natural condition weight by the use of factors applicable to the various degrees of processing accomplished. The applicable factor shall be that selected by the inspector of the reconditioned raisins from among factors established by the Committee with the approval of the Secretary.

28. Remove the undesignated heading “Volume Regulation” prior to § 989.166.
§§ 989.166 and 989.167 [Removed and reserved]
29. Sections 989.166 and 989.167 are removed and reserved. 30. In § 989.173: a. Remove paragraphs (b)(2)(ii), (f), and (g)(1)(ii); b. Redesignate paragraphs (b)(2)(iii) and (g) as paragraphs (b)(2)(ii) and (f), respectively; c. Redesignate newly designated paragraph (f)(1)(iii) as paragraph (f)(1)(ii); and d. Revise paragraphs (a), (b)(2)(i), newly redesignated paragraph (b)(2)(ii), (c)(1) introductory text, (d)(1) introductory text, (d)(1)(v), and newly redesignated paragraphs (f)(1)(i), (f)(2)(i), and (f)(3) introductory text.

The revisions read as follows:

§ 989.173 Reports.

(a) Inventory reports. Each handler shall submit to the Committee as of the close of business on July 31 of each crop year, and not later than the following August 6, an inventory report which shall show, with respect to each varietal type of raisins held by such handler, the quantity of off-grade raisins segregated as to those for reconditioning and those for disposition as such. Provided, That, for the Other Seedless varietal type, handlers shall report the information required in this paragraph separately for the different types of Other Seedless raisins. Upon request by the Committee, each handler shall file at other times, and as of other dates, any of the said information which may reasonably be necessary and which the Committee shall specify in its request.

(b) * * *

(2) * * *

(i) The total net weight of the standard raisins acquired during the reporting period; and

(ii) The cumulative totals of such acquisitions from the beginning of the then current crop year.

(c) * * *

(1) Each month each handler who is not a processor shall furnish to the Committee, on an appropriate form provided by the Committee and so that it is received by the Committee not later than the seventh day of the month, a report showing the aggregate quantity of each varietal type of packed raisins and standard natural condition raisins which were shipped or otherwise disposed of by such handler during the preceding month (exclusive of transfers within the State of California between plants of any such handler and from such handler to other handlers): Provided, That, for the Other Seedless varietal type, handlers shall report such information for the different types of Other Seedless raisins. Such required information shall be segregated as to:

(d) * * *

(1) Any handler who transfers raisins to another handler within the State of California shall submit to the Committee not later than five calendar days following such transfer a report showing:

(v) If packed, the transferring handler shall certify that such handler is transferring only acquired raisins that meet all applicable marketing order requirements, including reporting, incoming inspection, and assessments.

(f) * * *

(1) * * *

(i) The quantity of raisins, segregated as to locations where they are stored and whether they are natural condition or packed;

(2) * * *

(i) The total net weight of the standard raisins acquired during the reporting period; and

(3) Disposition report of organically-produced raisins. No later than the seventh day of each month, handlers who are not processors shall submit to the Committee, on an appropriate form provided by the Committee, a report showing the aggregate quantity of packed raisins and standard natural condition raisins which were shipped or otherwise disposed of by such handler during the preceding month (exclusive of transfer within the State of California between the plants of any such handler and from such handler to other handlers). Such information shall include:

Subpart Redesignated as Subpart C and Amended 31. Redesignate “Subpart-Supplementary Regulations” as subpart C and revise the heading to read as follows: Subpart C—Supplementary Requirements 32. In § 989.210: a. Remove paragraphs (b), (c) and (e); b. Redesignate paragraph (d) as (b), paragraph (f) as (c), and paragraph (g) as (d); and c. Revise newly redesignated paragraph (b).

The revisions read as follows:

§ 989.210 Handling of varietal types of raisins acquired pursuant to a weight dockage system.

(b) Assessments. Assessments on any lot of raisins of the varietal types specified in paragraph (a) of this section acquired by a handler pursuant to a weight dockage system shall be applicable to the creditable weight of such lot.

§§ 989.221 and 989.257 [Removed and reserved]
33. Sections 989.221 and 989.257 are removed and reserved. Subpart Redesignated as Subpart D 34. Designate the subpart labeled “Subpart-Assessment Rates” as subpart D. Subpart Removed 35. Subpart—Schedule of Payments is removed. Subpart Redesignated as Subpart E 36. Designate the subpart labeled “Conversion Factors” as subpart E. Subpart Redesignated as Subpart F 37. Designate the subpart labeled “Quality Control” as subpart F. Subpart Redesignated as Subpart G 38. Designate the subpart labeled “Antitrust Immunity and Liability” as subpart G. 39. In part 989 revise all references to “offgrade” to read “off-grade” and revise all references to “Offgrade” to read “Off-grade”. 40. In part 989 revise all references to “nonnormal” read “non-normal.” 41. In part 989 revise all references to “committee” to read “Committee.”
§§ 989.58, 989.59, and 989.102 [Amended]
42. In the list below, for each section indicated in the left column, remove the title indicated in the middle column from wherever it appears in the section, and add the title indicated in the right column: Section Remove Add 989.58(d)(1) Processed Products Standardization and Inspection Branch Specialty Crops Inspection Division. 989.59(d) Processed Products Standardization and Inspection Branch Specialty Crops Inspection Division. 989.102 Processed Products Branch, Fruit and Vegetable Division Specialty Crops Inspection Division. Dated: October 17, 2018. Bruce Summers, Administrator, Agricultural Marketing Service.
[FR Doc. 2018-23089 Filed 10-25-18; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0898; Product Identifier 2018-NE-29-AD; Amendment 39-19456; AD 2018-20-22] RIN 2120-AA64 Airworthiness Directives; General Electric Company Turbofan Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule; request for comments.

SUMMARY:

We are adopting a new airworthiness directive (AD) for all General Electric Company (GE) GE90-110B1, GE90-113B, and GE90-115B turbofan engines with a certain case combustor assembly (combustion case) installed. This AD requires removal of affected combustion cases from service and their replacement with a part eligible for installation. This AD was prompted by the discovery of a quality escape at a manufacturing facility involving unapproved welds on combustion cases. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective November 13, 2018.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 13, 2018.

We must receive comments on this AD by December 10, 2018.

ADDRESSES:

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

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

Fax: 202-493-2251.

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

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

For service information identified in this final rule, contact General Electric Company, GE Aviation, 1 Neumann Way, Cincinnati, OH 45215; telephone 513-552-3272; email: [email protected] You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7759. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0898.

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-2018-0898; 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 street address for the Docket Operations (phone: 800-647-5527) is listed above. Comments will be available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT:

Matthew Smith, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7735; fax: 781-238-7199; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We learned from GE of a quality escape that one of their suppliers, AECC Aero Science and Technology Co., Ltd., was performing welds on newly-manufactured components to correct errors introduced in their manufacturing process. These welds were not reviewed or approved by either GE or the FAA. GE's review of manufacturing records determined that these parts include combustion cases installed on GE GE90-100 turbofan engines. These combustion cases are life limited. The unapproved repairs reduced the material capability of these cases, which requires their removal prior to reaching their published Airworthiness Limitation Section life limit. This condition, if not addressed, could result in failure of the combustion case, engine fire, and damage to the airplane. We are issuing this AD to address the unsafe condition on these products.

Related Service Information Under 1 CFR Part 51

We reviewed GE GE90-100 Service Bulletin (SB) SB 72-0784 R00, dated May 4, 2018; GE SB GE90-100 S/B 72-0788, Revision 4, dated July 30, 2018; and GE SB GE90-100 SB 72-0793 R00, dated August 10, 2018. The SBs describe procedures for removing the affected combustion cases from the engine. GE SB GE90-100 SB 72-0784 R00 is effective for GE90-100 turbofan engines with the combustion case S/Ns listed in that SB. GE SB GE90-100 S/B 72-0788 is effective for GE90-100 turbofan engines with the combustion case S/Ns listed in that SB. GE SB GE90-100 SB 72-0793 R00 is effective for GE90-100 turbofan engines with the combustion case S/Ns listed in that SB. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

FAA's Determination

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

AD Requirements

This AD requires removal of the affected combustion cases from service and their replacement with a part eligible for installation.

FAA's Justification and Determination of the Effective Date

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to the adoption of this rule because the compliance time for the required action is shorter than the time necessary for the public to comment and for us to publish the final rule. Certain combustion cases must be removed within 10 cycles after the effective date of this AD to ensure they do not fail. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reason stated above, we find that good cause exists for making this amendment effective in less than 30 days.

Comments Invited

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2018-0898 and Product Identifier 2018-NE-29-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. We will consider all comments received by the closing date and may amend this final rule because of those comments.

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

Costs of Compliance

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

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Replacement of the combustion case 20 work-hours × $85 per hour = $1,700 $623,700 $625,400 $3,752,400
    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify 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): 2018-20-22 General Electric Company: Amendment 39-19456; Docket No. FAA-2018-0898; Product Identifier 2018-NE-29-AD. (a) Effective Date

    This AD is effective November 13, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    (1) This AD applies to General Electric Company (GE) GE90-110B1, GE90-113B, and GE90-115B turbofan engines with a case combustor assembly (combustion case), part number (P/N) 2063M37G01 or 2082M19G04, installed with combustion case serial number (S/N) listed in:

    (i) Table 1 in paragraph 1.A., Planning Information, of GE GE90-100 Service Bulletin (SB) S/B 72-0788, Revision 4, dated July 30, 2018; or

    (ii) Paragraph 1.A, Table 1 of GE SB GE90-100 SB 72-0793 R00, dated August 10, 2018; or

    (iii) Paragraph 1.A., Planning Information, of GE SB GE90-100 SB 72-0784 R00, dated May 4, 2018.

    (2) [Reserved.]

    (d) Subject

    Joint Aircraft System Component (JASC) Code 7250, Turbine Section.

    (e) Unsafe Condition

    This AD was prompted by the discovery of a quality escape at a manufacturing facility involving unapproved welds on combustion cases. We are issuing this AD to prevent failure of the combustion case. The unsafe condition, if not addressed, could result in engine fire and damage to the airplane.

    (f) Compliance

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

    (g) Required Actions

    (1) For combustion cases listed in Planning Information, Table 1, paragraph 1.A. of GE SB GE90-100 S/B 72-0788, Revision 4, dated July 30, 2018, except combustion cases with S/Ns FDBK3717, FDBK3872, or FDBK4849, remove the affected cases from service, using the cycles specified in Table 1 to paragraph (g) of this AD.

    ER26OC18.001

    (2) For combustion cases with S/Ns listed in Table 3, paragraph 1.C., Planning Information, of GE SB GE90-100 S/B 72-0788, Revision 4, dated July 30, 2018, remove the affected cases from service before exceeding the Maximum In-Service CSN listed in Table 3, of GE SB GE90-100 S/B 72-0788, Revision 4, dated July 30, 2018.

    (3) For combustion cases with S/Ns listed in paragraph 1.A., Planning Information, of GE SB GE90-100 SB 72-0784 R00, dated May 4, 2018, remove the affected cases from service within 10 cycles in service from the effective date of this AD.

    (4) For combustion cases with S/Ns listed in Table 1, paragraph 1.A., Planning Information, of GE SB GE90-100 SB 72-0793 R00, dated August 10, 2018, remove the affected cases from service at the next engine shop visit.

    (5) Replace the removed combustion case with a part eligible for installation before further flight.

    (h) Definitions

    (1) For the purpose of this AD, an “engine shop visit” is the induction of an engine into the shop for maintenance involving the separation of pairs of major mating engine flanges, except that the separation of engine flanges solely for the purposes of transportation of the engine, without subsequent engine maintenance, does not constitute an engine shop visit.

    (2) For the purpose of this AD, a “part eligible for installation” is any combustion case not identified in paragraph (c)(1) of this AD or a combustion case listed in this AD that has been inspected and repaired by a method approved by the Manager, ECO Branch, FAA.

    (i) Alternative Methods of Compliance (AMOCs)

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

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

    (j) Related Information

    For more information about this AD, contact Matthew Smith, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7735; fax: 781-238-7199; email: [email protected]

    (k) Material Incorporated by Reference

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

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

    (i) General Electric Company (GE) GE90-100 Service Bulletin (SB) SB 72-0784 R00, dated May 4, 2018.

    (ii) GE SB GE90-100 S/B 72-0788, Revision 4, dated July 30, 2018.

    (iii) GE SB GE90-100 SB 72-0793 R00, dated August 10, 2018.

    (3) For service information identified in this AD, contact General Electric Company, GE Aviation, 1 Neumann Way, Cincinnati, OH 45215; telephone 513-552-3272; email: [email protected]

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

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

    Issued in Burlington, Massachusetts, on October 18, 2018. Karen M. Grant, Acting Manager, Engine and Propeller Standards Branch, Aircraft Certification Service.
    [FR Doc. 2018-23468 Filed 10-25-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0406; Product Identifier 2013-NE-30-AD; Amendment 39-19457; AD 2018-20-23] RIN 2120-AA64 Airworthiness Directives; General Electric Company Turbofan Engines AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are superseding Airworthiness Directive (AD) 2017-07-04 for General Electric Company (GE) GE90-110B1 and GE90-115B turbofan engines with certain high-pressure compressor (HPC) rotor stage 2-5 spools installed. AD 2017-07-04 required removing certain HPC rotor stage 2-5 spools from service at times determined by a drawdown plan. This AD requires removing certain HPC rotor stage 2-5 spools from service before reaching the new reduced life limit and replacing them with parts eligible for installation. This AD was prompted by the publication of a GE service bulletin (SB) that increases the number of affected HPC rotor stage 2-5 spools and includes HPC rotor stage 2-5 spools that were inadvertently omitted from the applicability of AD 2017-07-04. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective November 30, 2018.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 30, 2018.

    The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of April 21, 2017 (82 FR 16728, April 6, 2017).

    ADDRESSES:

    For service information identified in this final rule, contact General Electric Company, 1 Neumann Way, Room 285, Cincinnati, OH 45215; phone: 513-552-3272; email: [email protected] You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7759. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0406.

    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-2018-0406; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    David Bethka, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7129; fax: 781-238-7199; email: [email protected]

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2017-07-04, Amendment 39-18842 (82 FR 16728, April 6, 2017), (“AD 2017-07-04”). AD 2017-07-04 applied to GE GE90-110B1 and GE90-115B turbofan engines with certain HPC rotor stage 2-5 spools installed. The NPRM published in the Federal Register on June 25, 2018 (83 FR 29474). The NPRM was prompted by the publication of a GE SB that increases the number of affected HPC rotor stage 2-5 spools and includes HPC rotor stage 2-5 spools that were inadvertently omitted from the applicability of AD 2017-07-04. The NPRM proposed to require removing certain HPC rotor stage 2-5 spools from service before reaching the new reduced life limit and replacing them with parts eligible for installation. We are issuing this AD to address the unsafe condition on these products.

    Comments

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

    Request To List Additional Service Information in Required Actions

    All Nippon Airways (ANA), Azur Aviation, and Lufthansa Technik AG (Lufthansa) questioned why HPC rotor stage 2-5 spools listed in paragraph (c) of this AD, identified in GE SB GE90-100 SB 72-0499 R01, dated February 5, 2014, are not required to be replaced in paragraph (g) of this AD. Lufthansa reasoned that GE SB GE90-100 SB 72-0499 R01, dated February 5, 2014, requires replacement of affected spools, but this AD does not.

    We disagree. Based on information provided by GE, and to the best of our knowledge, all HPC rotor stage 2-5 spools listed in paragraph 1.A. of GE SB GE90-100 SB 72-0499 R01, dated February 5, 2014, have been removed from service. Because these HPC rotor stage 2-5 spools have been removed from service, we did not require their removal under paragraph (g) of this AD. This AD, however, includes an installation prohibition under paragraph (h) to prevent installation of these HPC rotor stage 2-5 spools. We did not change this AD.

    Request To Consider a Threshold Rework Option

    FedEx Express (FedEx) requested that certain HPC rotor stage 2-5 spools be considered for a potential GE rework option to extend their life beyond allowances of this AD, before removal from service. FedEx reasoned that GE intends to provide a rework option that will extend the life of HPC rotor stage 2-5 spools that are removed before reaching 4,500 cycles. This rework option could extend the on-wing times for some engines.

    We disagree. While GE intends to provide a rework option to extend the life of certain HPC rotor stage 2-5 spools, we do not require compliance based on information that has not yet been published. We based the compliance on the most recently published service information. This AD and the associated GE service information do not allow credit for rework or life extensions. We did not change this AD.

    Request To Verify Applicability and Purpose

    ANA requested clarification regarding whether the proposed AD intends to require removing the following three (3) HPC rotor stage 2-5 spool configurations from service at a time determined by this AD:

    (1) HPC rotor stage 2-5 spools that use the original seal teeth coating. (Known as Population-1);

    (2) HPC rotor stage 2-5 spools that use the modified seal teeth coating. (Known as Population-2); and

    (3) HPC rotor stage 2-5 spools that use the modified seal teeth coating without inner-teeth coating. (Known as Population-3).

    We interpret ANA's comment as request to verify if this AD requires removal of the HPC rotor stage 2-5 spools identified in GE SB GE90-100 SB 72-0499 R01, dated February 5, 2014; GE SB GE90-100 SB 72-0659 R01, dated February 18, 2016; and GE SB GE90-100 S/B 72-0714, Revision 01, dated February 16, 2018. ANA commented that requirements and actions in this AD are difficult to understand.

    The purpose of this AD is to remove the HPC rotor stage 2-5 spools identified in GE SB GE90-100 SB 72-0659 R01, dated February 18, 2016, and GE SB GE90-100 S/B 72-0714, Revision 01, dated February 16, 2018, from service, and to prohibit the installation of those HPC rotor stage 2-5 spools and the HPC rotor stage 2-5 spools identified in GE SB GE90-100 SB 72-0499 R01, dated February 5, 2014. Paragraphs (c) and (g) of this AD list the affected part numbers and serial numbers. We did not change this AD.

    Support for the AD

    The Air Line Pilots Association, Boeing Company, and American Airlines expressed support for the NPRM as written.

    Conclusion

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

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed GE SB GE90-100 SB 72-0499 R01, dated February 5, 2014; GE SB GE90-100 SB 72-0659 R01, dated February 18, 2016; and GE SB GE90-100 S/B 72-0714, Revision 01, dated February 16, 2018.

    GE SB GE90-100 SB 72-0499 R01 describes procedures for identification and removal from service of HPC rotor stage 2-5 spools that use the original seal tooth coating process. GE SB GE90-100 SB 72-0659 R01 describes procedures for identification and removal from service of HPC rotor stage 2-5 spools that use a modified seal tooth coating process. GE SB GE90-100 S/B 72-0714, Revision 01 describes procedures for identification and removal from service of HPC rotor stage 2-5 spools that use the modified seal tooth coating process, without coating between the seal teeth.

    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 85 engines installed on airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Paragraph (g)(1) Spools Replacement 0 work-hours × $85 per hour = $0 $229,737 $229,737 $5,054,214 Paragraph (g)(2) Spools Replacement 0 work-hours × $85 per hour = $0 39,048 39,048 2,460,024
    Authority for This Rulemaking

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

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

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

    Regulatory Findings

    We have determined that this 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 removing Airworthiness Directive (AD) 2017-07-04, Amendment 39-18842 (82 FR 16728, April 6, 2017), and adding the following new AD: 2018-20-23 General Electric Company: Amendment 39-19457; Docket No. FAA-2018-0406; Product Identifier 2013-NE-30-AD. (a) Effective Date

    This AD is effective November 30, 2018.

    (b) Affected ADs

    This AD replaces AD 2017-07-04, Amendment 39-18842 (82 FR 16728, April 6, 2017).

    (c) Applicability

    This AD applies to General Electric Company (GE) GE90-110B1 and GE90-115B turbofan engines with HPC rotor stage 2-5 spools, with:

    (1) A serial number (S/N) listed in either, paragraph 4, Appendix A of GE Service Bulletin (SB) No. GE90-100 SB 72-0499 R01, dated February 5, 2014; in paragraph 4, Appendix A of GE SB GE90-100 SB 72-0659 R01, dated February 18, 2016; or in paragraph 4, Appendix A, of GE SB GE90-100 S/B 72-0714, Revision 01, dated February 16, 2018.

    (2) A part number (P/N) 351-103-109-0, P/N 351-103-110-0, P/N 351-103-147-0 or P/N 351-103-152-0, with any S/N.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by reports of cracks in HPC rotor stage 2-5 spool aft spacer arms. We are issuing this AD to prevent failure of the HPC rotor stage 2-5 spools. The unsafe condition, if not addressed, could result in uncontained spool release, damage to the engine, and damage to the airplane.

    (f) Compliance

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

    (g) Required Actions

    (1) Remove from service HPC rotor stage 2-5 spools with S/Ns listed in paragraph 4, Appendix A, of GE SB GE90-100 SB 72-0659 R01, dated February 18, 2016, as follows, or before further flight, whichever occurs later:

    (i) For spools with fewer than 4,500 flight cycles since new (CSN) as of April 21, 2017, remove before exceeding 5,000 CSN.

    (ii) For spools with 4,500 CSN or more but fewer than 5,200 CSN as of April 21, 2017, remove within 500 CIS but not to exceed 5,500 CSN.

    (iii) For spools with 5,200 CSN or more but fewer than 5,600 CSN as of April 21, 2017, remove within 300 CIS but not to exceed 5,800 CSN.

    (iv) For spools with 5,600 CSN or more but fewer than 5,800 CSN as of April 21, 2017, remove within 200 CIS but not to exceed 5,850 CSN.

    (v) For spools with 5,800 CSN or more but fewer than 6,000 CSN as of April 21, 2017, remove within 50 CIS but not to exceed 6,000 CSN.

    (vi) For spools with 6,000 CSN or more as of April 21, 2017, remove before the next flight.

    (2) Remove from service HPC rotor stage 2-5 spools listed in paragraph (c)(2) of this AD and HPC rotor stage 2-5 spools with S/Ns listed in paragraph 4, Appendix A, of GE SB GE90-100 S/B 72-0714, Revision 01, dated February 16, 2018, before exceeding 8,200 CSN, or before further flight, whichever occurs later.

    (h) Installation Prohibition

    (1) After the effective date of this AD, do not install or reinstall onto any engine, any HPC rotor stage 2-5 spool with an S/N listed in paragraph 4, Appendix A, of GE SB No. GE90-100 SB 72-0499 R01, dated February 5, 2014, or paragraph 4, Appendix A, of GE SB GE90-100 SB72-0659 R01, dated February 18, 2016, that exceeds 5,000 CSN.

    (2) After the effective date of this AD, do not install or reinstall onto any engine, any HPC rotor stage 2-5 spool listed in paragraph (c)(2) of this AD, or HPC rotor stage 2-5 spool with an S/N listed in paragraph 4, Appendix A, of GE SB GE90-100 S/B 72-0714, Revision 01, dated February 16, 2018, that exceeds 8,200 CSN.

    (i) Alternative Methods of Compliance (AMOCs)

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

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

    (j) Related Information

    For more information about this AD, contact David Bethka, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7129; fax: 781-238-7199; email: [email protected]

    (k) Material Incorporated by Reference

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

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

    (3) The following service information was approved for IBR on November 30, 2018.

    (i) General Electric Company (GE) Service Bulletin (SB) GE90-100 SB 72-0499 R01, dated February 5, 2014.

    (ii) GE SB GE90-100 S/B 72-0714, Revision 01, dated February 16, 2018.

    (4) The following service information was approved for IBR on April 21, 2017 (82 FR 16728, April 6, 2017).

    (i) GE SB GE90-100 SB 72-0659 R01, dated February 18, 2016.

    (ii) [Reserved.]

    (5) For service information identified in this AD, contact General Electric Company, 1 Neumann Way, Room 285, Cincinnati, OH 45215; phone: 513-552-3272; email: [email protected]

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

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

    Issued in Burlington, Massachusetts, on October 17, 2018. Karen M. Grant, Acting Manager, Engine and Propeller Standards Branch, Aircraft Certification Service.
    [FR Doc. 2018-23466 Filed 10-25-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0094; Airspace Docket No. 18-ASW-4] RIN 2120-AA66 Amendment of Class D Airspace; Tulsa, OK AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action amends Class D airspace designated as an extension at Tulsa Lloyd Jones Jr. Airport, Tulsa, OK. This action is a result of an airspace review caused by the decommissioning of the Glenpool VHF omnidirectional range (VOR) navigation aid as part of the VOR Minimum Operational Newtork (MON) Program and the cancellation of the associated instrument procedures. The geographic coordinates of the airport are also updated; to coincide with the FAA's aeronautical database, as well as an editorial change removing the city associated with the airport name in the airspace legal description. Also, the outdated term “Airport/Facility Directory” is replaced with “Chart Supplement”.

    DATES:

    Effective 0901 UTC, January 3, 2019. 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:

    Rebecca Shelby, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5857.

    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 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 modifies Class D airspace designated as an extension at Tulsa Lloyd Jones Jr. Airport, Tulsa, OK, to support instrument flight rules operations at this airport.

    History

    The FAA published a notice of proposed rulemaking in the Federal Register (83 FR 14785; April 6, 2018) for Docket No. FAA-2018-0094 to amend the Class D airspace Designated as an extension at Tulsa Lloyd Jones Jr. Airport, Tulsa, OK. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received from the Aircraft Owners and Pilots Association (AOPA). In their comment, AOPA stated that the NPRM did not comply with FAA guidance in FAA Order 7400.2L, Procedures for Handling Airspace Matters, because a graphic was not included in the docket. Additionally, AOPA encouraged the FAA to follow their guidance in the Order by making the action effective date coincidental to the sectional chart publication date.

    The FAA has determined AOPA's comments raised no substantive issues with respect to the proposed changes to the airspace addressed in the NPRM. To the extent the FAA failed to follow its policy guidance reference publishing graphics in the docket and establishing the Class D airspace effective date to match the sectional chart date, we note the following.

    With respect to AOPA's comment addressing graphics, FAA Order 7400.2L, paragraph 2-3-3.c. requires the official docket to include available graphics. For this airspace action, no graphics were deemed necessary or produced in the review or development of the proposed airspace amendments noted in the NPRM; therefore, no graphics were available to include in the docket.

    Specific to AOPA's comment regarding the FAA already creating a graphical depiction of new or modified airspace overlaid on a Sectional Chart for quality assurance purposes, this is not correct nor required in all cases. During the airspace reviews, airspace graphics may be created, if deemed necessary, to determine if there are any terrain issues, or if cases are considered complex. However, in many cases when developing an airspace amendment proposal, a graphic is not required. It was unclear if the graphic AOPA argued was already created with a sectional chart background was actually the airspace graphic created by the Aeronautical Informational Services office in preparation of publishing the sectional charts. However, that graphic is normally created after the rulemaking determination is published.

    With respect to AOPA's comment addressing effective dates, FAA Order 7400.2L, paragraph 2-3-7.a.4. states that, to the extent practicable, Class D airspace area and restricted area rules should become effective on a sectional chart date and that consideration should be given to selecting a sectional chart date that matches a 56-day en route chart cycle date. The FAA does consider publishing Class D airspace amendment effective dates to coincide with the publication of sectional charts, to the extent practicable; however, this consideration is accomplished after the NPRM comment period ends in the final rule. Substantive comments received to NPRMs, flight safety concerns, management of IFR operations at affected airports, and immediacy of required proposed airspace amendments are some of the factors that must be taken into consideration when selecting the appropriate effective date. After considering all factors, the FAA may determine that selecting an effective date that conforms to a 56-day en route chart cycle date that is not coincidental to sectional chart dates is better for the National Airspace System and its users than awaiting the next sectional chart date.

    Class D airspace designations are published in paragraphs 5000 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 D airspace designations listed in this document will be published subsequently 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 amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class D airspace extending upward from the surface to and including 3,100 feet MSL, within a 4-mile radius of Richard Lloyd Jones Jr. Airport, and within 1 mile each side of the 190° radial from the airport RWY 01L-LOC extending from the 4-mile radius to 4.1 miles south of the airport (reduced from 1.3 miles each side of the 350° radial of the Glenpool VOR extending from the 4-mile radius to 4.7 miles south of the airport). This action is necessary due to the decommissioning of the Glenpool VOR as part of the VOR MON Program and cancellation of the associated instrument approach.

    The geographic coordinates of the airport are also updated to coincide with the FAA's aeronautical database. Additionally, this action makes an editorial change to the Class D airspace legal description replacing “Airport/Facility Directory” with “Chart Supplement.”

    Also, an editorial change will be made removing the airport name from the airspace designation, and removing the word “Tulsa” from the airport name, to comply with a change to FAA Order 7400.2L, Procedures for Handling Airspace Matters.

    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, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (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); 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.

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

    Lists 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 part 71 continues to read as follows: Authority:

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018, is amended as follows: Paragraph 5000 Class D Airspace. ASW OK D Tulsa, OK [Amended] Richard Lloyd Jones Jr., OK (Lat. 36°02′22″ N, long. 95°59′05″ W)

    That airspace extending upward from the surface to and including 3,100 feet MSL within a 4-mile radius of Richard Lloyd Jones Jr. Airport, and within 1 mile each side of the 190° bearing from the Richard Lloyd Jones Jr. Airport RWY 01L-LOC from the 4 mile radius to 4.1 miles south of the airport, excluding that airspace within the Tulsa International Airport, OK, Class C airspace area. This Class D airspace is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Issued in Fort Worth, Texas, on October 18, 2018. Walter Tweedy, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2018-23401 Filed 10-25-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0468; Airspace Docket No. 18-AEA-13] RIN 2120-AA66 Amendment of Class E Airspace; Cambridge, MD AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action amends Class E airspace extending upward from 700 feet or more above the surface at Cambridge-Dorchester Regional Airport, Cambridge, MD, to accommodate airspace reconfiguration due to the decommissioning of the Cambridge non-directional radio beacon and cancellation of the NDB approach. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at this airport. This action also corrects the region identifier in the description header, and updates the airport name and geographic coordinates.

    DATES:

    Effective 0901 UTC, January 3, 2019. 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:

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

    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 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 amends Class E airspace at Cambridge-Dorchester Regional Airport, Cambridge, MD, to support standard instrument approach procedures for IFR operations in the area.

    History

    The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register (83 FR 38098, August 3, 2018) for Docket No. FAA-2018-0468 to amend Class E airspace extending upward from 700 feet or more above the surface at Cambridge-Dorchester Regional Airport, Cambridge, MD.

    Subsequent to publication, the FAA found that the airspace designation header was incorrect, and is corrected in this rule.

    Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

    Class E airspace designations are published in Paragraph 6005, 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 E airspace designations listed in this document will be published subsequently 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 amendment to Title 14 Code of Federal Regulations (14 CFR) amends part 71 by amending Class E airspace extending upward from 700 feet or more above the surface at Cambridge-Dorchester Regional Airport to within a 6.6-mile radius (increased from a 6.4-mile radius) of the airport due to the decommissioning of the Cambridge NDB, and cancellation of the NDB approach. The airspace redesign enhances the safety and management of IFR operations at the airport. The geographic coordinates of the airport also are adjusted to coincide with the FAA's aeronautical database, and the airport name is updated to Cambridge-Dorchester Regional Airport, (formerly Cambridge-Dorchester Airport).

    Finally, the region identifier in the designation header is corrected to “AEA” from “ANE”.

    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. It, therefore: (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); 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.

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

    Lists 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 part 71 continues to read as follows: Authority:

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AEA ME E5 Cambridge, MD [Amended] Cambridge-Dorchester Regional Airport, MD (Lat. 38°32′22″ N, long. 76°01′49″ W)

    That airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Cambridge-Dorchester Regional Airport.

    Issued in College Park, Georgia, on October 18, 2018. Debra Hogan, Acting Manager, Operations Supports Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2018-23403 Filed 10-25-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-9442; Airspace Docket No. 16-ASO-15] RIN 2120-AA66 Establishment of Class E Airspace; Crystal Springs, MS AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action establishes Class E airspace extending upward from 700 feet above the surface at Copiah County Airport, Crystal Springs, MS, to accommodate new area navigation (RNAV) global positioning system (GPS) standard instrument approach procedures serving the airport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at this airport.

    DATES:

    Effective 0901 UTC, January 3, 2019. 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:

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

    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 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 establishes Class E airspace extending upward from 700 feet above the surface at Copiah County Airport, Crystal Springs, MS, to support standard instrument approach procedures for IFR operations at this airport.

    History

    The FAA published a notice of proposed rulemaking (NPRM in the Federal Register (83 FR 36482, July 30, 2018) for Docket No. FAA-2016-9442 to establish Class E surface area airspace at Copiah County Airport, Crystal Springs, MS.

    Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

    Class E airspace designations are published in paragraph 6005, of FAA Order 7400.11C dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Rule

    This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 7-mile radius of Copiah County Airport, Crystal Springs, MS, providing the controlled airspace required to support the new RNAV (GPS) standard instrument approach procedures for IFR operations at the airport.

    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 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.

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

    Lists 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 part 71 continues to read as follows: Authority:

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, effective September 15, 2018, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASO MS E5 Crystal Springs, MS [New] Copiah County Airport, MS (Lat. 31°54′09″ N, long. 90°22′00″ W)

    That airspace extending upward from 700 feet above the surface within a 7-mile radius of Copiah County Airport.

    Issued in College Park, Georgia, on October 18, 2018. Debra L. Hogan, Acting Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2018-23402 Filed 10-25-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0369; Airspace Docket No. 18-ASO-8] RIN 2120-AA66 Amendment of Class E Airspace, Augusta, GA, and Establishment of Class E Airspace, Waynesboro, GA AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action amends Class E airspace extending upward from 700 feet above the surface in Augusta, GA, by recognizing the name change of Augusta Regional Airport at Bush Field (formerly Augusta Regional at Bush Field Airport); removing Burke County Airport and Millen Airport from the airspace designation and establishing these two airports under Waynesboro, GA, designation; and updating the geographic coordinates of Daniel Field, Augusta, GA, and Millen Airport, Waynesboro, GA. This action accommodates airspace reconfiguration due to the decommissioning of the Millen non-directional radio beacon (NDB) and cancellation of the NDB approach at Millen Airport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at these airports.

    DATES:

    Effective 0901 UTC, January 3, 2019. 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:

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

    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 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 amends Class E airspace, at Augusta, GA, and establishes Class E airspace at Waynesboro, GA, to support airspace reconfiguration due to the decommissioning of the Millen non-directional radio beacon (NDB) and cancellation of the NDB approach at Millen Airport.

    History

    The FAA published a notice of proposed rulemaking in the Federal Register (83 FR 39384, August 9, 2018) for Docket No. FAA-2018-0369 to amend Class E airspace area extending upward from 700 feet or more above the surface, and establish Class E airspace area extending upward from 700 feet or more above the surface at Burke County Airport and Millen Airport, Waynesboro, GA as the Millen NDB has been decommissioned and the NDB approach cancelled.

    Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

    Class E airspace designations are published in paragraph 6005, of FAA Order 7400.11C dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designation listed in this document will be published subsequently 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 amendment to Title 14 Code of Federal Regulations (14 CFR) amends part 71 by amending Class E airspace extending upward from 700 feet above the surface in Augusta, GA, by recognizing the name change of Augusta Regional Airport at Bush Field (formerly Augusta Regional at Bush Field Airport); removing Burke County Airport and Millen Airport from the airspace designation and establishing these two airports under Waynesboro, GA, designation due to the cancellation of the Millen NDB and cancellation of the associated approach; and updating the geographic coordinates of Daniel Field, Augusta, GA, to be in concert with the FAA's aeronautical database.

    Class E airspace extending upward from 700 feet above the surface is established at Burke County Airport, Waynesboro, GA, within a 6.7-mile (increased from a 6.6-mile) radius of the airport.

    Class E airspace extending upward from 700 feet above the surface is established at Millen airport within a 7.4-mile (increased from a 7.3-mile) radius of the airport. The geographic coordinates are adjusted to be in concert with the FAA's aeronautical database.

    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. It, therefore: (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); 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.

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

    Lists 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 part 71 continues to read as follows: Authority:

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASO GA E5 Augusta, GA [Amended] Augusta Regional Airport at Bush Field, GA (Lat. 33°22′12″ N, long. 81°57′52″ W) Daniel Field (Lat. 33°28′00″ N, long. 82°02′22″ W) Emory NDB (Lat. 33°27′46″ N, long. 81°59′49″ W)

    That airspace extending upward from 700 feet above the surface within an 8.6-mile radius of Augusta Regional Airport at Bush Field, and within 3.2 miles either side of the 168° bearing from the airport extending from the 8.6-mile radius to 12.5 miles south of the airport, and within a 7-mile radius of Daniel Field, and within 8 miles west and 4 miles east of the 349° bearing from the Emory NDB extending from the 7-mile radius to 16 miles north of the Emory NDB.

    ASO GA E5 Waynesboro, GA [New] Burke County Airport, GA (Lat. 33°02′29″ N, long. 82°00′10″ W) Millen Airport (Lat. 32°53′35″ N, long. 81°57′55″ W)

    That airspace extending upward from 700 feet above the surface within a 6.7-mile radius of Burke County Airport, and within a 7.4-mile radius of Millen Airport.

    Issued in College Park, Georgia, on October 17, 2018. Ken Brissenden, Acting Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2018-23399 Filed 10-25-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 91 [Docket No.: FAA-2018-0927; Amdt. No. 91-353] RIN 2120-AL06 Prohibition Against Certain Flights in the Baghdad Flight Information Region (FIR) (ORBB) AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    This action reissues, with modifications to reflect changed conditions in Iraq, the Special Federal Aviation Regulation (SFAR) that prohibits certain flights in the Baghdad Flight Information Region (FIR) (ORBB) by all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except where the operator of such aircraft is a foreign air carrier.

    DATES:

    This final rule is effective on October 26, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Michael Filippell, Air Transportation Division, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone (202) 267-8166; email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Executive Summary

    This action reissues, with modifications to address changed conditions in Iraq, Special Federal Aviation Regulation (SFAR) No. 77, § 91.1605, which prohibits certain flight operations in the Baghdad FIR (ORBB) by all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except where the operator of such aircraft is a foreign air carrier. The reissued rule prohibits operations in the Baghdad FIR (ORBB) below Flight Level (FL) 260, except operations necessary to climb out of, or descend into, the Kuwait FIR (OKAC), subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Iraq.

    Conditions in Iraq have improved since action was last taken on SFAR No. 77, § 91.1605 by the FAA in May 2015, which expired on May 11, 2017.1 The coalition of Iraqi security forces, allied nations, and supporting militia elements has successfully reduced the area under Islamic State of Iraq and Ash-Sham (ISIS) control. In addition, the operational anti-aircraft-capable weapons possessed by ISIS or other anti-U.S. extremist/militant elements are altitude-limited and would not pose a risk to U.S. civil aviation overflights at or above FL 260, provided that the flights remain clear of areas where fighting is likely to occur or re-emerge. The appropriate authorities of Iraq have taken steps to prohibit civil aviation operations at or above FL 260 in such areas. Therefore, on December 9, 2017, the FAA issued KICZ NOTAM A0025/17, amending its prohibition on U.S. civil aviation operations in the Baghdad FIR (ORBB) to allow overflights at or above FL 260.

    1 Due to continuing hazards and to avoid interruption of the flight prohibition, the FAA issued KICZ NOTAM A0010/17 under the Administrator's emergency authority (49 U.S.C. 46105(c)) to temporarily continue the SFAR flight prohibition until a final rule became effective.

    There continues to be an unacceptable level of risk to U.S. civil aviation operations in the Baghdad FIR (ORBB) at altitudes below FL 260, as described in this rule, resulting from the potential for fighting in certain areas of Iraq and ongoing concerns about the extremist/militant threat to U.S. civil aviation throughout Iraq. With limited exceptions described in this final rule, U.S. civil aviation operations in the Baghdad FIR (ORBB) at altitudes below FL 260 remain prohibited consistent with KICZ NOTAM A0025/17. Consequently, the FAA is reissuing the modified SFAR to remain in effect until October 26, 2018. The FAA finds this action necessary due to continued hazards to U.S. civil aviation operations in the Baghdad FIR (ORBB) at altitudes below FL 260.

    II. Legal Authority and Good Cause A. Legal Authority

    The FAA is responsible for the safety of flight in the U.S. and for the safety of U.S. civil operators, U.S.-registered civil aircraft, and U.S.-certificated airmen throughout the world. The FAA Administrator's authority to issue rules on aviation safety is found in title 49, U.S. Code, Subtitle I, sections 106(f) and (g). Subtitle VII of title 49, Aviation Programs, describes in more detail the scope of the agency's authority. Section 40101(d)(1) provides that the Administrator shall consider in the public interest, among other matters, assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce. Section 40105(b)(1)(A) requires the Administrator to exercise his authority consistently with the obligations of the U.S. Government under international agreements.

    This rulemaking is promulgated under the authority described in title 49, U.S. Code, subtitle VII, Part A, subpart III, section 44701, General requirements. Under that section, the FAA is charged broadly with promoting safe flight of civil aircraft in air commerce by prescribing, among other things, regulations and minimum standards for practices, methods, and procedures that the Administrator finds necessary for safety in air commerce and national security.

    This regulation is within the scope of FAA's authority, because it prohibits the persons described in paragraph (a) of SFAR No. 77, § 91.1605, from conducting flight operations in the Baghdad FIR (ORBB) at altitudes below FL 260, with limited exceptions, due to the continued hazards to the safety of U.S. civil flight operations, as described in the preamble to this final rule.

    The FAA also finds that this action is fully consistent with the obligations under 49 U.S.C. 40105(b)(1)(A) to ensure that the FAA exercises its duties consistently with the obligations of the United States under international agreements.

    B. Good Cause for Immediate Adoption

    Section 553(b)(3)(B) of title 5 of the United States Code (5 U.S.C.) authorizes agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Section 553(d) also authorizes agencies to forgo the delay in the effective date of the final rule for good cause found and published with the rule. In this instance, the FAA finds good cause to forgo notice and comment because notice and comment would be impracticable and contrary to the public interest. The FAA has identified an immediate need to address the continued hazardous situation for U.S. civil aviation that exists in the Baghdad FIR (ORBB) at altitudes below FL 260 due to the potential for fighting in certain areas of Iraq and ongoing concerns about the extremist/militant threat to U.S. civil aviation throughout Iraq. These hazards are further described in the preamble to this rule. To the extent that the rule is based upon classified information, such information is not permitted to be shared with the general public. Also, threats to U.S. civil aviation and intelligence regarding these threats are fluid. As a result, the agency's original proposal could become unsuitable for minimizing the hazards to U.S. civil aviation in the affected airspace during or after the notice and comment process.

    Additionally, it is contrary to the public interest to delay the effective date of this SFAR. This action reissues SFAR No. 77, § 91.1605, with appropriate modifications, to codify the provisions of the FAA's December 9, 2017, NOTAM, which will reduce the potential for confusion over whether certain overflights of Iraq by U.S. operators and airmen are permitted.

    For these reasons, the FAA finds good cause to forgo notice and comment and any delay in the effective date for this rule.

    III. Background

    On October 9, 1996, the FAA issued SFAR No. 77 to prohibit flight operations over or within the territory of Iraq by any U.S. air carrier or commercial operator; by any person exercising the privileges of an airman certificate issued by the FAA, except persons operating U.S.-registered aircraft for a foreign air carrier; or by any person operating an aircraft registered in the U.S., unless the operator of such aircraft was a foreign air carrier. The FAA extended and amended SFAR No. 77 several times to respond to evolving circumstances and their corresponding hazards to U.S. civil operations.2 Most recently, on May 11, 2015, the FAA published a final rule amending SFAR No. 77, § 91.1605, to prohibit U.S. civil aviation operations in the Baghdad FIR (ORBB) at all altitudes due to the hazardous situation created by armed conflict, which formalized a flight prohibition NOTAM issued under the Administrator's emergency authority. 80 FR 26822. SFAR No. 77, § 91.1605, expired on May 11, 2017. On May 10, 2017, the FAA issued KICZ NOTAM A0010/17 under the Administrator's safety and emergency authority (49 U.S.C. 40113(a) and 46105(c), respectively) to continue the prohibition of certain flight operations in the Baghdad FIR (ORBB) without interruption due to the continuing hazards to U.S. civil aviation operations.

    2 61 FR 54020. For a more comprehensive history of SFAR 77, § 91.1605, see the final rule published on May 11, 2015. 80 FR 26822, 26823-26824.

    The FAA continued to monitor developments in Iraq relevant to the safety of U.S. civil aviation after issuing its May 10, 2017, NOTAM. The FAA assessed that conditions in Iraq had improved, as the coalition of Iraqi security forces, allied nations, and supporting militia elements had successfully reduced the area under ISIS control. In addition, the FAA assessed that the operational anti-aircraft-capable weapons possessed by ISIS or other anti-U.S. extremist/militant elements did not pose a risk to U.S. civil aviation overflights at or above FL 260, provided that the flights remain clear of areas where fighting is likely to occur or re-emerge. The appropriate authorities of Iraq had taken steps to prohibit civil aviation operations at or above FL 260 in such areas. As a result, the FAA determined that the risk to U.S. civil aviation at or above FL 260 in the Baghdad FIR (ORBB) had been sufficiently reduced to allow U.S. civil aviation overflights at or above FL 260 to resume. The FAA also determined that it was safe to allow limited operations below FL 260 when necessary due to climb performance.

    On December 9, 2017, the FAA issued a revised flight prohibition NOTAM prohibiting U.S. civil operations within the Baghdad FIR (ORBB) below FL 260 and thus permitting overflights above FL 260. The NOTAM permitted, by exception, U.S. civil operations departing from countries adjacent to Iraq to operate at altitudes below FL 260 in the Baghdad FIR (ORBB) to the extent necessary to permit a climb to or above FL 260, if the climb performance of the aircraft does not permit it to attain FL 260 prior to entering the Baghdad FIR (ORBB), subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Iraq. This change permitted U.S. operators to conduct limited overflights of Iraq, potentially saving travel time and operational costs associated with alternate, less direct routes in a region constrained by multiple SFARs prohibiting operations.

    IV. Discussion of the Final Rule

    The FAA continues to assess the situation in the Baghdad FIR (ORBB) as being hazardous for U.S. civil aviation at altitudes below FL 260, subject to the limited exceptions described in this final rule. The risk to U.S. civil aviation originates from the potential for fighting in certain areas of northern and western Iraq between the Islamic State of Iraq and ash-Sham (ISIS), other extremist/militant elements, Iraqi security forces and other elements. ISIS and other extremist/militant elements are known to possess a variety of anti-aircraft-capable weapons, including man-portable air defense systems, and have fired on military aircraft during combat operations in Iraq. This presents a continued risk of anti-aircraft fire to civil aircraft, particularly in areas where fighting may occur. There is also a risk of potential hostile activity by ISIS elements or other anti-U.S. militants/extremists elsewhere in Iraq.

    The FAA assesses that the risk to U.S. civil aviation operating in the Baghdad FIR (ORBB) over southeastern Iraq has been sufficiently reduced to allow flights to operate at altitudes below FL 260 to the extent necessary to climb-out from or descend into the Kuwait FIR (OKAC). Southeastern Iraq has a lower concentration of ISIS-affiliated and other anti-U.S. extremists/militants, and is at lower risk for fighting to occur, than other parts of Iraq. The terrain in southeastern Iraq is of very low elevation, low enough to provide a reasonable buffer against the remaining risk from anti-aircraft-capable weapons fired from the surface. Additionally, aircraft climbing out of Kuwait are only exposed to any of the remaining risks to operations in the Baghdad FIR (ORBB) at altitudes below FL 260 for the limited time necessary to climb to FL 260, in accordance with Iraqi air traffic control instructions. Similarly, aircraft descending toward Kuwait below FL 260, in accordance with Iraqi air traffic control instructions, are also exposed to such risks for only a limited period of time.

    Finally, the routine and expected procedures for hand-offs between Iraqi air traffic control and Kuwaiti air traffic control require operators to cross the Iraq-Kuwait border below FL 260. The FAA has determined that the safety risks of potential traffic conflicts associated with continuing to require U.S. operators and airmen to fly different profiles than those normally flown by civil air traffic in this very busy airspace outweigh the previously described residual risks to U.S. civil aviation operating over southeastern Iraq from potential fighting and anti-U.S. militant/extremist activity.

    Upon further examination of the risks to U.S. civil aviation in other areas of Iraq, the FAA has determined that the remaining risks to U.S. civil aviation climbing out of or descending into the other countries that border Iraq have not been sufficiently reduced to permit operations below FL 260. Therefore, while KICZ NOTAM A0025/17 had permitted flights departing from countries adjacent to Iraq to operate at altitudes below FL 260 in the Baghdad FIR (ORBB) to the extent necessary to permit a climb to or above FL 260, under certain circumstances, this rule does not permit such climbouts. The reasons for not extending climbout relief from the other bordering FIRs are discussed in the following paragraphs. Nevertheless, the FAA has determined there are no operational impacts caused by this change. Available information indicates U.S. operators have not relied upon the NOTAM's exception to transition from neighboring FIRs, other than Kuwait, at altitudes below FL 260.

    Iraq shares most of its western border with Syria. The FAA currently prohibits U.S. civil aviation operations in the Damascus FIR (OSTT) at all altitudes, including the entire country of Syria, due to the presence of anti-aircraft weapons controlled by non-state actors, threats made by extremist groups, de-confliction concerns, and ongoing fighting. In addition, the Iraqi border region adjacent to Syria is susceptible to extremist/militant cross-border activity that poses a risk to U.S. civil aviation operating below FL 260 within the Baghdad FIR (ORBB). Areas of western and southwestern Iraq near its borders with Jordan and Saudi Arabia have a higher concentration of ISIS-affiliated and other anti-U.S. extremists/militants than southeastern Iraq. The presence of, or potential for, extremist/militant activity within Iraq near its borders with Jordan and Saudi Arabia poses a greater risk to U.S. civil aviation operating below FL 260 inside the Baghdad FIR (ORBB) than that which exists for U.S. civil aviation operating below FL 260 in the Baghdad FIR (ORBB) near Iraq's border with Kuwait.

    Iraq shares most of its eastern border with Iran. In the region of Iraq bordering Iran, there is a risk to U.S. civil aviation operating in the Baghdad FIR (ORBB) below FL 260 from potential cross-border extremist/militant activity and inadequate de-confliction of civil and military flights. The Iraq-Iran border region also has areas of high elevation terrain, in comparison to Iraq's border region with Kuwait, which could expose U.S. civil aviation operating below FL 260 over such terrain to greater risk from possible ground-based anti-aircraft weapons in comparison to Iraq's border region with Kuwait.

    Iraq borders Turkey to the north. There is a potential for a residual ISIS presence, other extremist/militant activity, and associated counter-terrorism operations in the Iraq-Turkey border region. This activity poses a risk to U.S. civil aviation operating below FL 260 in the Baghdad FIR (ORBB), particularly due to the higher elevation terrain in this region, which could expose U.S. civil aviation, operating below FL 260 over such terrain, to greater risk from ground-based anti-aircraft weapons in comparison to Iraq's border region with Kuwait. The FAA does not believe that there are countervailing aviation safety considerations, such as the air traffic control considerations relative to Kuwait, of sufficient magnitude to outweigh these risks.

    Therefore, as a result of the significant continuing risk to the safety of U.S. civil aviation in the Baghdad FIR (ORBB) at altitudes below FL 260, the FAA reissues SFAR No. 77, § 91.1605, with an expiration date of October 26, 2020, to maintain the prohibition on flight operations at altitudes below FL 260, with certain limited exceptions described in the rule. This prohibition applies to all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except where the operator of such aircraft is a foreign air carrier. The reissued SFAR No. 77, § 91.1605, permits those subject to the rule to operate at altitudes below FL 260 to the extent necessary to climb out of, or descend into, the Kuwait FIR (OKAC), subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Iraq. While the FAA's flight prohibition does not apply to foreign air carriers, DOT codeshare authorizations prohibit foreign air carriers from carrying a U.S. codeshare partner's code on a flight segment that operates in airspace for which the FAA has issued a flight prohibition.

    The FAA will continue to actively monitor the situation and evaluate the extent to which U.S. civil operators and airmen may be able to operate safely in the Baghdad FIR (ORBB) at altitudes below FL 260 in the future. Further amendments to SFAR No. 77, § 91.1605, may be appropriate if the risk to aviation safety and security changes. The FAA may amend or rescind SFAR No. 77, § 91.1605, as necessary, prior to its expiration date.

    V. Approval Process Based on a Request From a Department, Agency, or Instrumentality of the United States Government

    If a department, agency, or instrumentality of the U.S. Government determines that it has a critical need to engage any person covered under SFAR No. 77, § 91.1605, including a U.S. air carrier or commercial operator, to conduct a charter to transport civilian or military passengers or cargo, or other operations, in the Baghdad FIR (ORBB) at altitudes below FL 260, that department, agency, or instrumentality may request that the FAA approve persons covered under SFAR No. 77, § 91.1605(a), to conduct such operations.

    An approval request must be made directly by the requesting department, agency, or instrumentality of the U.S. Government to the FAA's Associate Administrator for Aviation Safety in a letter signed by an appropriate senior official of the requesting department, agency, or instrumentality. The FAA will not accept or consider requests for approval submitted by anyone other than the requesting department, agency, or instrumentality. In addition, the senior official signing the letter requesting FAA approval on behalf of the requesting department, agency, or instrumentality must be sufficiently positioned within the organization to demonstrate that the senior leadership of the requesting department, agency, or instrumentality supports the request for approval and is committed to taking all necessary steps to minimize operational risks to the proposed flights. The senior official must also be in a position to: (1) Attest to the accuracy of all representations made to the FAA in the request for approval and (2) ensure that any support from the requesting U.S. Government department, agency, or instrumentality described in the request for approval is in fact brought to bear and is maintained over time. Unless justified by exigent circumstances, requests for approval must be submitted to the FAA no less than 30 calendar days before the date on which the requesting department, agency, or instrumentality intends to commence the proposed operations.

    The letter must be sent by the requesting department, agency, or instrumentality to the Associate Administrator for Aviation Safety, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591. Electronic submissions are acceptable, and the requesting entity may request that the FAA notify it electronically as to whether the approval request is granted. If a requestor wishes to make an electronic submission to the FAA, the requestor should contact the Air Transportation Division, Flight Standards Service, at (202) 267-8166 to obtain the appropriate email address. A single letter may request approval from the FAA for multiple persons covered under SFAR No. 77, § 91.1605, and/or for multiple flight operations. To the extent known, the letter must identify the person(s) covered under the SFAR on whose behalf the U.S. Government department, agency, or instrumentality is seeking FAA approval, and it must describe—

    • The proposed operation(s), including the nature of the mission being supported;

    • The service to be provided by the person(s) covered by the SFAR;

    • To the extent known, the specific locations in the Baghdad FIR (ORBB) at altitudes below FL 260 where the proposed operation(s) will be conducted, including, but not limited to, the flight path and altitude of the aircraft while it is operating in the Baghdad FIR (ORBB) at altitudes below FL 260 and the airports, airfields and/or landing zones at which the aircraft will take-off and land; and

    • The method by which the department, agency, or instrumentality will provide, or how the operator will otherwise obtain, current threat information and an explanation of how the operator will integrate this information into all phases of the proposed operations (i.e., the pre-mission planning and briefing, in-flight, and post-flight phases).

    The request for approval must also include a list of operators with whom the U.S. Government department, agency, or instrumentality requesting FAA approval has a current contract(s), grant(s), or cooperative agreement(s) (or with whom its prime contractor has a subcontract(s)) for specific flight operations in the Baghdad FIR (ORBB) at altitudes below FL 260. Additional operators may be identified to the FAA at any time after the FAA approval is issued. However, all additional operators must be identified to, and obtain an Operations Specification (OpSpec) or Letter of Authorization (LOA), as appropriate, from the FAA for operations in the Baghdad FIR (ORBB) at altitudes below FL 260, before such operators commence such operations. The approval conditions discussed below apply to any such additional operators. Updated lists should be sent to the email address to be obtained from the Air Transportation Division by calling (202) 267-8166.

    If an approval request includes classified information, requestors may contact Aviation Safety Inspector Michael Filippell for instructions on submitting it to the FAA. His contact information is listed in the For Further Information Contact section of this final rule.

    FAA approval of an operation under SFAR No. 77, § 91.1605, does not relieve persons subject to this SFAR of their responsibility to comply with all other applicable FAA rules and regulations. Operators of civil aircraft must also comply with the conditions of their certificate, OpSpecs, and LOAs, as applicable. Operators must further comply with all rules and regulations of other U.S. Government departments and agencies that may apply to the proposed operations, including, but not limited to, the regulations issued by the Transportation Security Administration.

    Approval Conditions

    If the FAA approves the request, the FAA's Aviation Safety Organization will send an approval letter to the requesting department, agency, or instrumentality informing it that the FAA's approval is subject to all of the following conditions:

    (1) The approval will stipulate those procedures and conditions that limit, to the greatest degree possible, the risk to the operator, while still allowing the operator to achieve its operational objectives.

    (2) Before any approval takes effect, the operator must submit to the FAA:

    (a) A written release of the U.S. Government from all damages, claims, and liabilities, including without limitation legal fees and expenses, relating to any event arising out of or related to the approved operations in the Baghdad FIR (ORBB) at altitudes below FL 260; and

    (b) The operator's agreement to indemnify the U.S. Government with respect to any and all third-party damages, claims, and liabilities, including without limitation legal fees and expenses, relating to any event arising out of or related to the approved operations in the Baghdad FIR (ORBB) at altitudes below FL 260.

    (3) Other conditions that the FAA may specify, including those that may be imposed in OpSpecs or LOAs, as applicable.

    The release and agreement to indemnify do not preclude an operator from raising a claim under an applicable non-premium war risk insurance policy issued by the FAA under chapter 443 of title 49, U.S. Code.

    If the FAA approves the proposed operation(s), the FAA will issue an OpSpec or an LOA, as applicable, to the operator(s) identified in the original request authorizing them to conduct the approved operation(s), and will notify the department, agency, or instrumentality that requested the FAA's approval of any additional conditions beyond those contained in the approval letter.

    VI. Requests for Exemption

    Any operations not conducted under an approval issued by the FAA through the approval process set forth previously must be conducted under an exemption from SFAR No. 77, § 91.1605. A petition for an exemption must comply with 14 CFR part 11 and requires exceptional circumstances beyond those contemplated by the approval process set forth in the previous section. In addition to the information required by 14 CFR 11.81, at a minimum, the requestor must describe in its submission to the FAA—

    • The proposed operation(s), including the nature of the operation;

    • The service to be provided by the person(s) covered by the SFAR;

    • The specific locations in the Baghdad FIR (ORBB) at altitudes below FL 260 where the proposed operation(s) will be conducted, including, but not limited to, the flight path and altitude of the aircraft while it is operating in the Baghdad FIR (ORBB) at altitudes below FL 260 and the airports, airfields and/or landing zones at which the aircraft will take-off and land;

    • The method by which the operator will obtain current threat information, and an explanation of how the operator will integrate this information into all phases of its proposed operations (i.e., the pre-mission planning and briefing, in-flight, and post-flight phases); and

    • The plans and procedures that the operator will use to minimize the risks, identified in the preamble, to the proposed operations, so that granting the exemption would not adversely affect safety or would provide a level of safety at least equal to that provided by this SFAR. The FAA has found comprehensive, organized plans and procedures of this nature to be helpful in facilitating the agency's safety evaluation of petitions for exemption from flight prohibition SFARs.

    Additionally, the release and agreement to indemnify, as referred to previously, are required as a condition of any exemption that may be issued under SFAR No. 77, § 91.1605.

    The FAA recognizes that operations that may be affected by SFAR No. 77, § 91.1605, may be planned for the governments of other countries with the support of the U.S. Government. While these operations will not be permitted through the approval process, the FAA will consider exemption requests for such operations on an expedited basis and prior to any private exemption requests.

    VII. Regulatory Notices and Analyses

    Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as codified in 5 U.S.C. 603 et seq., requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act of 1979 (Pub. L. 96-39), 19 U.S.C. Chapter 13, prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Agreements Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as codified in 2 U.S.C. Chapter 25, requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

    In conducting these analyses, the FAA has determined that this final rule has benefits that justify its costs and is a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, because it raises novel policy issues contemplated under that Executive Order. As notice and comment under 5 U.S.C. 553 are not required for this final rule, the regulatory flexibility analyses described in 5 U.S.C. 603 and 604 regarding impacts on small entities are not required. This rule will not create unnecessary obstacles to the foreign commerce of the United States, and will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector, by exceeding the threshold identified previously.

    A. Regulatory Evaluation

    Due to a reduction in the level of risk to U.S. civil aviation operations in the Baghdad FIR (ORBB) at or above FL 260, the FAA's December 9, 2017, NOTAM prohibited U.S. civil aviation operations below FL 260, thus permitting overflights above FL 260. Due to the continued significant hazards to U.S. civil aviation in the Baghdad FIR (ORBB) at altitudes below FL 260 described in the preamble, the December 9, 2017, NOTAM continued the prohibition on U.S. civil aviation operations in the Baghdad FIR (ORBB) at altitudes below FL 260, with limited exceptions. The reissued SFAR No. 77, § 91.1605, permits persons to climb out of, or descend into, the Kuwait FIR (OKAC) at altitudes below FL 260, subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Iraq.

    The FAA believes there are very few U.S. operators who wish to operate in the Baghdad FIR (ORBB) at altitudes below FL 260, where U.S. civil aviation operations will continue to be prohibited. The FAA has received three requests for approval or exemption to conduct flight operations in the Baghdad FIR (ORBB) at altitudes below FL 260 since May 11, 2015. Consequently, the FAA estimates the costs of this rule to be minimal. These minimal costs are exceeded by the benefits of avoided risks of deaths, injuries, and property damage that could result from a U.S. operator's aircraft being shot down (or otherwise damaged) due to the hazards described in the preamble. Consequently, the FAA estimates that the benefits of this rule will exceed the costs.

    B. Regulatory Flexibility Act

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

    C. International Trade Impact Assessment

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

    The FAA has assessed the effect of this final rule. The purpose of this rule is to protect the safety of U.S. civil aviation from hazards to their operations in the Baghdad FIR (ORBB) at altitudes below FL 260, a location outside the U.S. Therefore, the rule is in compliance with the Trade Agreements Act of 1979.

    D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155.0 million in lieu of $100 million.

    This final rule does not contain such a mandate. Therefore, the requirements of Title II of the Act do not apply.

    E. Paperwork Reduction Act

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

    F. International Compatibility and Cooperation

    In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA's policy to conform to ICAO Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to this regulation.

    G. Environmental Analysis

    The FAA has analyzed this action under Executive Order 12114, Environmental Effects Abroad of Major Federal Actions (44 FR 1957, January 4, 1979), and DOT Order 5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be informed of environmental considerations and take those considerations into account when making decisions on major Federal actions that could have environmental impacts anywhere beyond the borders of the United States. The FAA has determined that this action is exempt pursuant to Section 2-5(a)(i) of Executive Order 12114 because it does not have the potential for a significant effect on the environment outside the United States.

    In accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 8-6(c), FAA has prepared a memorandum for the record stating the reason(s) for this determination; this memorandum has been placed in the docket for this rulemaking.

    VIII. Executive Order Determinations A. Executive Order 13132, Federalism

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

    B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use

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

    C. Executive Order 13609, Promoting International Regulatory Cooperation

    Executive Order 13609, Promoting International Regulatory Cooperation, (77 FR 26413, May 4, 2012) promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.

    D. Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs

    This rule is not subject to the requirements of E.O. 13771 (82 FR 9339, Feb. 3, 2017) because it is issued with respect to a national security function of the United States.

    IX. Additional Information A. Availability of Rulemaking Documents

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

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

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

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

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

    Except for classified material, all documents the FAA considered in developing this rule, including economic analyses and technical reports, may be accessed from the internet through the Federal eRulemaking Portal referenced above.

    B. Small Business Regulatory Enforcement Fairness Act

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

    List of Subjects in 14 CFR Part 91

    Air traffic control, Aircraft, Airmen, Airports, Aviation safety, Freight, Iraq.

    The Amendment

    In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations, part 91, as follows:

    PART 91—GENERAL OPERATING AND FLIGHT RULES 1. The authority citation for part 91 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 1155, 40101, 40103, 40105, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, 47534, Pub. L. 114-190, 130 Stat. 615 (49 U.S.C. 44703 note); articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180), (126 Stat. 11).

    2. In subpart M, add § 91.1605 to read as follows:
    § 91.1605 Special Federal Aviation Regulation No. 77—Prohibition Against Certain Flights in the Baghdad Flight Information Region (FIR) (ORBB).

    (a) Applicability. This section applies to the following persons:

    (1) All U.S. air carriers and U.S. commercial operators;

    (2) All persons exercising the privileges of an airman certificate issued by the FAA, except such persons operating U.S.-registered aircraft for a foreign air carrier; and

    (3) All operators of civil aircraft registered in the United States, except where the operator of such aircraft is a foreign air carrier.

    (b) Flight prohibition. Except as provided in paragraphs (c) and (d) of this section, no person may conduct flight operations in the Baghdad Flight Information Region (FIR) (ORBB) at altitudes below FL 260.

    (c) Permitted operations. This section does not prohibit persons described in paragraph (a) of this section from conducting flight operations in the Baghdad FIR (ORBB) at altitudes below FL 260 in the following circumstances:

    (1) Aircraft departing from the Kuwait Flight Information Region (FIR) (OKAC) may operate at altitudes below FL 260 in the Baghdad FIR (ORBB) to the extent necessary to permit a climb during takeoff to or above FL 260, subject to the approval of and in accordance with the conditions established by, the appropriate authorities of Iraq; or

    (2) Aircraft descending into the Kuwait FIR (OKAC) may operate at altitudes below FL 260 in the Baghdad FIR (ORBB) to the extent necessary to permit descent for landing within the Kuwait FIR (OKAC), subject to the approval of and in accordance with the conditions established by, the appropriate authorities of Iraq; or

    (3) The flight operations in the Baghdad FIR (ORBB) at altitudes below FL 260 are conducted under a contract, grant, or cooperative agreement with a department, agency, or instrumentality of the U.S. Government (or under a subcontract between the prime contractor of the department, agency, or instrumentality, and the person described in paragraph (a) of this section), with the approval of the FAA, or under an exemption issued by the FAA. The FAA will consider requests for approval or exemption in a timely manner, with the order of preference being: First, for those operations in support of U.S. Government-sponsored activities; second, for those operations in support of government-sponsored activities of a foreign country with the support of a U.S. Government department, agency, or instrumentality; and third, for all other operations.

    (d) Emergency situations. In an emergency that requires immediate decision and action for the safety of the flight, the pilot in command of an aircraft may deviate from this section to the extent required by that emergency. Except for U.S. air carriers and commercial operators that are subject to the requirements of part 119, 121, 125, or 135 of this chapter, each person who deviates from this section must, within 10 days of the deviation, excluding Saturdays, Sundays, and Federal holidays, submit to the responsible Flight Standards office a complete report of the operations of the aircraft involved in the deviation, including a description of the deviation and the reasons for it.

    (e) Expiration. This SFAR will remain in effect until October 26, 2020. The FAA may amend, rescind, or extend this SFAR, as necessary.

    Issued under the authority provided by 49 U.S.C. 106(f) and (g), 40101(d)(1), 40105(b)(1)(A), and 44701(a)(5), in Washington, DC, on October 18, 2018. Daniel K. Elwell, Acting Administrator.
    [FR Doc. 2018-23398 Filed 10-25-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Office of the Secretary 14 CFR Chapter II Airline Reporting of Data on Mishandled Baggage, Wheelchairs, and Scooters AGENCY:

    Office of Aviation Enforcement and Proceedings, Office of the Secretary, U.S. Department of Transportation (Department).

    ACTION:

    Notification of enforcement.

    SUMMARY:

    This document addresses the obligations of large U.S. airlines to report to the Department mishandled baggage, wheelchairs, and scooters data following the enactment of the FAA Reauthorization Act of 2018.

    DATES:

    This enforcement notification is applicable on October 26, 2018.

    FOR FURTHER INFORMATION CONTACT:

    John Wood, Senior Attorney, Office of Aviation Enforcement and Proceedings (C-70), U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, 202-366-9342 (telephone), [email protected] (email).

    SUPPLEMENTARY INFORMATION:

    On November 2, 2016, the Department published a final rule in the Federal Register titled “Reporting of Data for Mishandled Baggage and Wheelchairs and Scooters Transported in Aircraft Cargo Compartments.” 81 FR 76300. This November 2 final rule changed the methodology that airlines are required to use in reporting to the Department their mishandled baggage data, from the number of mishandled baggage reports (MBRs) filed with the airline and the number of domestic passenger enplanements to the number of mishandled bags and the number of enplaned bags.1 The rule also requires airlines to report separate statistics for mishandled wheelchairs and scooters. On November 3, 2016, the Department published another final rule titled “Enhancing Airline Passenger Protections III,” 81 FR 76826, that, among other things, lowered the reporting carrier threshold for mishandled baggage from at least 1 percent of domestic scheduled passenger revenues to at least 0.5 percent. The November 3 final rule further requires reporting carriers that market domestic scheduled codeshare flights to file separate mishandled baggage data for codeshare flights that carry only one U.S. carrier's code. In March 2017, the Department provided that carriers would be required to comply with the changes to mishandled baggage reporting requirements made by these two final rules with respect to air transportation occurring on or after January 1, 2019. See 82 FR 14437 (March 21, 2017); 82 FR 14604 (March 22, 2017).

    1 Currently, airlines report the number of MBRs filed by passengers with the airline. One MBR might cover more than one bag because a single MBR could be submitted by a family—or even an individual—with multiple mishandled bags. Under the new methodology, airlines report the number of bags that were mishandled as opposed to the number of MBRs filed by passengers. Also, today, airlines report the number of passenger enplanements. Under the new methodology, U.S. airlines will report the number of checked bags enplaned (including bags checked at the gate and “valet” bags) rather than the number of passenger enplanements.

    On October 5, 2018, the President signed the FAA Reauthorization Act of 2018 (FAA Act) into law. See Public Law 115-254. Section 441 of the FAA Act states that “[t]he compliance date of the final rule, dated November 2, 2016, on the reporting of data for mishandled baggage and wheelchairs in aircraft cargo compartments (81 FR 76300) shall be effective not later than 60 days after the date of enactment of this Act.” 2

    2 The FAA Act also includes another section related to mishandled baggage reporting. Section 410 of the FAA Act states that “[n]ot later than 6 months after the date of enactment of this Act, the Secretary of Transportation shall study and publicize for comment a cost-benefit analysis to air carriers and consumers of changing the baggage reporting requirements of section 234.6 of title 14, Code of Federal Regulations, before implementation of such requirements . . .” The Department must also report to Congress on the findings of the cost-benefit analysis. The Department does not view sections 441 and 410 as inconsistent with each other, because it interprets section 410 as applying only to prospective changes, and as not applying to the changes made by the final rules issued November 2, 2016 and November 3, 2016. In June 2018, the Department announced its initiation of a rulemaking, Reporting of Data for Mishandled Baggage and Wheelchairs and Scooters Transportation in Aircraft Cargo Compartments II (RIN #2105-AE77), “to address substantial challenges in accurately reporting, under the mishandled baggage reporting final rules published in November 2016, data for bags handled by multiple airlines and bags that traveled on both reportable domestic segments and nonreportable international segments.” See https://www.transportation.gov/regulations/report-on-significant-rulemakings. The Department will conduct a cost-benefit analysis for proposed changes to the baggage reporting requirements of 14 CFR 234.6 and report to Congress as required by section 410 of the FAA Act.

    By this notification, the Office of Aviation Enforcement and Proceedings (Enforcement Office) is providing guidance to affected U.S. carriers on compliance with mishandled baggage, wheelchair, and scooter reporting requirements following the enactment of the FAA Act. Section 441 of the FAA Act provides that the compliance date for the November 2, 2016 final rule shall be effective not later than 60 days after enactment of the Act, which is December 4, 2018. Accordingly, airlines determined by the Department's Office of Airline Information (OAI) as accounting for at least 1 percent of domestic scheduled passenger revenues for calendar year 2018 3 must submit mishandled baggage data to the Department using the new mishandled baggage methodology and must separately report statistics for mishandled wheelchairs and scooters for domestic scheduled flights they operate beginning December 4, 2018 and through December 31, 2018. See 81 FR 73000 (November 2, 2016). The airlines must submit this data to the Department no later than January 15, 2019.4 The data would consist of: (1) Operating carrier code; (2) month and year of data; (3) number of mishandled bags; (4) number of bags enplaned; (5) number of mishandled wheelchairs and scooters; (6) number of wheelchairs and scooters enplaned; (7) certification that to the best of the signing official's knowledge and belief the data is true, correct, and complete; and (8) date of submission, name of airline representative, and signature.

    3 For calendar year 2018, 12 airlines reached the reporting threshold of 906,261,000 in domestic scheduled passenger revenue (one percent of total domestic scheduled passenger revenue) and are required to report mishandled baggage data. These airlines are: Alaska Airlines, American Airlines, Delta Air Lines, Envoy Air, ExpressJet Airlines, Frontier Airlines, Hawaiian Airlines, JetBlue Airways, SkyWest Airlines, Southwest Airlines, Spirit Airlines and United Airlines.

    4 As section 441 only changes the compliance date of the November 2 final rule, airlines are not required to submit data for any code-share operations, which is a requirement of the November 3, 2016, final rule.

    If a reporting carrier is unable to report accurate data on the total number of mishandled bags and enplaned bags for the entire reportable period beginning December 4, 2018, and ending December 31, 2018, the Enforcement Office will exercise its enforcement discretion as appropriate.5 An airline should inform the Enforcement Office no later than January 3, 2019, if the airline is unable to provide accurate mishandled baggage data using the methodology set forth in the November 2, 2016 rule for the December 2018 reportable period. To the extent the Enforcement Office decides not to pursue action against an airline that does not report the required data because of reliability concerns, in the interest of providing air travel consumers with access to reliable mishandled baggage data, the Enforcement Office expects that the airline will accurately report mishandled baggage data to the Department using the prior mishandled bag reporting methodology (i.e., the total number of passengers enplaned and the total number of MBRs filed with the airline in the manner described in 14 CFR 234.6(a) and OAI Technical Reporting Directive #29A, for the flights it operates December 1 through 31, 2018). Even if an airline indicates an inability to report accurately the total number of mishandled bags and enplaned bags, the Enforcement Office will expect the airline to accurately report the total number of mishandled wheelchairs and scooters and total number of wheelchair and scooters enplaned. Because the Enforcement Office expects that airlines should be able to accurately report mishandled wheelchair and scooter data, the Enforcement Office requests a detailed explanation no later than January 3, 2019, from any airline asserting that it is not able to accurately report wheelchair and scooter data to the Department for flights beginning December 4, 2018.

    5 During the past year, the Enforcement Office has been working with the reporting carriers to ensure that they are able to report new mishandled baggage data for flights on or after January 1, 2019. This notification is not intended to suggest an airline's delay in submitting the new mishandled baggage data for flights occurring on or after January 1, 2019, would lead the Enforcement Office to exercise its enforcement discretion.

    Issued in Washington, DC, on October 22, 2018. Blane A. Workie, Assistant General Counsel for Aviation Enforcement and Proceedings.
    [FR Doc. 2018-23475 Filed 10-25-18; 8:45 am] BILLING CODE 4910-9X-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 40 [Docket No. RM17-13-000; Order No. 850] Supply Chain Risk Management Reliability Standards AGENCY:

    Federal Energy Regulatory Commission, DOE.

    ACTION:

    Final rule.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) approves supply chain risk management Reliability Standards CIP-013-1 (Cyber Security—Supply Chain Risk Management), CIP-005-6 (Cyber Security—Electronic Security Perimeter(s)) and CIP-010-3 (Cyber Security—Configuration Change Management and Vulnerability Assessments) submitted by the North American Electric Reliability Corporation (NERC). In addition, the Commission directs NERC to develop and submit modifications to the supply chain risk management Reliability Standards so that the scope of the Reliability Standards include Electronic Access Control and Monitoring Systems.

    DATES:

    This rule is effective December 26, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Simon Slobodnik (Technical Information) Office of Electric Reliability, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6707, [email protected].

    Patricia Eke (Technical Information) Office of Electric Reliability, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8388, [email protected]

    Kevin Ryan (Legal Information) Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6840, [email protected].

    SUPPLEMENTARY INFORMATION:

    Before Commissioners: Cheryl A. LaFleur, Neil Chatterjee, and Richard Glick.

    1. Pursuant to section 215(d)(2) of the Federal Power Act (FPA), the Commission approves supply chain risk management Reliability Standards CIP-013-1 (Cyber Security—Supply Chain Risk Management), CIP-005-6 (Cyber Security—Electronic Security Perimeter(s)) and CIP-010-3 (Cyber Security—Configuration Change Management and Vulnerability Assessments).1 The North American Electric Reliability Corporation (NERC), the Commission-certified Electric Reliability Organization (ERO), submitted the supply chain risk management Reliability Standards for approval in response to a Commission directive in Order No. 829.2 As discussed below, we approve the supply chain risk management Reliability Standards as they are responsive to Order No. 829 and improve the electric industry's cybersecurity posture by requiring that entities mitigate certain cybersecurity risks associated with the supply chain for BES Cyber Systems.3

    1 16 U.S.C. 824o(d)(2).

    2Revised Critical Infrastructure Protection Reliability Standards, Order No. 829, 156 FERC ¶ 61,050, at P 43 (2016).

    3 BES Cyber System is defined as “[o]ne or more BES Cyber Assets logically grouped by a responsible entity to perform one or more reliability tasks for a functional entity.” Glossary of Terms Used in NERC Reliability Standards (NERC Glossary), http://www.nerc.com/files/glossary_of_terms.pdf. The acronym BES refers to the bulk electric system.

    2. The Commission has previously explained that the global supply chain affords significant benefits to customers, including low cost, interoperability, rapid innovation, and a variety of product features and choice.4 Despite these benefits, the global supply chain creates opportunities for adversaries to directly or indirectly affect the management or operations of companies with potential risks to end users. Supply chain risks include insertion of counterfeits or malicious software, unauthorized production, tampering, or theft, as well as poor manufacturing and development practices. Based on the record in this proceeding, we conclude that the supply chain risk management Reliability Standards largely address these supply chain cybersecurity risks as set out within the scope of Order No. 829. Among other things, the supply chain risk management Reliability Standards are forward-looking and objective-based and require each affected entity to develop and implement a plan that includes security controls for supply chain management for industrial control system hardware, software, and services associated with bulk electric system operations.5 Consistent with Order No. 829, the Reliability Standards focus on the following four security objectives: (1) Software integrity and authenticity; (2) vendor remote access protections; (3) information system planning; and (4) vendor risk management and procurement controls.

    4Revised Critical Infrastructure Protection Reliability Standards, Notice of Proposed Rulemaking, 152 FERC ¶ 61,054, at PP 61-62 (2015).

    5 Order No. 829, 156 FERC ¶ 61,050 at P 2.

    3. The Commission also approves the supply chain risk management Reliability Standards' associated violation risk factors and violation severity levels. Regarding the Reliability Standards' implementation plan and effective date, we approve NERC's proposed implementation period of 18 months following the effective date of a Commission order. The NOPR proposed to reduce the implementation period to 12 months.6 However, as discussed below, the NOPR comments provide sufficient justification for adopting the 18-month implementation period proposed by NERC. Specifically, the comments clarify that technical upgrades are likely necessary to meet the Reliability Standards' security objectives, which could involve longer time-horizon capital budgets and planning cycles.

    6Supply Chain Risk Management Reliability Standards, Notice of Proposed Rulemaking, 83 FR 3433 (January 25, 2018), 162 FERC ¶ 61,044 (2018) (NOPR).

    4. While the supply chain risk management Reliability Standards address the Commission's directive in Order No. 829, we determine that there remains a significant cybersecurity risk associated with the supply chain for BES Cyber Systems because the approved Reliability Standards do not address Electronic Access Control and Monitoring Systems (EACMS).7 As we observed in the NOPR, it is widely recognized that the types of access and monitoring functions that are included within NERC's definition of EACMS, such as firewalls, are integral to protecting industrial control systems.8 Moreover, as stated in Order No. 848, EACMS, which include, for example, firewalls, authentication servers, security event monitoring systems, intrusion detection systems and alerting systems, control electronic access into Electronic Security Perimeters (ESP), play a significant role in the protection of high and medium impact BES Cyber Systems.9 Once an EACMS is compromised, an attacker could more easily enter the ESP and effectively control the BES Cyber System or Protected Cyber Asset.10 For example, the Department of Homeland Security's Industrial Control Systems Cyber Emergency Response Team (ICS-CERT) identifies firewalls as “the first line of defense within an ICS network environment” that “keep the intruder out while allowing the authorized passage of data necessary to run the organization.” 11 ICS-CERT further explains that firewalls “act as sentinels, or gatekeepers, between zones . . . [and] [w]hen properly configured, they will only let essential traffic cross security boundaries[,] . . . [i]f they are not properly configured, they could easily pass unauthorized or malicious users or content.” 12 Accordingly, if EACMS are compromised, that could adversely affect the reliable operation of associated BES Cyber Systems.13 Given the significant role that EACMS play in the protection scheme for medium and high impact BES Cyber Systems, we determine that EACMS should be within the scope of the supply chain risk management Reliability Standards to provide minimum protection against supply chain attack vectors.

    7 EACMS are defined as “Cyber Assets that perform electronic access control or electronic access monitoring of the Electronic Security Perimeter(s) or BES Cyber Systems. This includes Intermediate Systems.” NERC Glossary. Reliability Standard CIP-002-5.1a (Cyber Security — BES Cyber System Categorization) states that examples of EACMS include “Electronic Access Points, Intermediate Systems, authentication servers (e.g., RADIUS servers, Active Directory servers, Certificate Authorities), security event monitoring systems, and intrusion detection systems.” Reliability Standard CIP-002-5.1a (Cyber Security — BES Cyber System Categorization) Section A.6 at 6.

    8 NOPR, 162 FERC ¶ 61,044 at P 37.

    9Cyber Security Incident Reporting Reliability Standards, Order No. 848, 164 FERC ¶ 61,033, at P 10 (2018). ESP is defined as “[t]he logical border surrounding a network to which BES Cyber Systems are connected using a routable protocol.” NERC Glossary.

    10 Order No. 848, 164 FERC ¶ 61,033 at P 10.

    11ICS-CERT, Recommended Practice: Improving Industrial Control System Cybersecurity with Defense-in-Depth Strategies at 23, https://ics-cert.us-cert.gov/sites/default/files/recommended_practices/NCCIC_ICS-CERT_Defense_in_Depth_2016_S508C.pdf.

    12Id.

    13 NOPR, 162 FERC ¶ 61,044 at P 37.

    5. To address this gap, pursuant to section 215(d)(5) of the FPA,14 the Commission directs NERC to develop modifications to include EACMS associated with medium and high impact BES Cyber Systems within the scope of the supply chain risk management Reliability Standards.15 We direct NERC to submit the directed modifications within 24 months of the effective date of this final rule.

    14 16 U.S.C. 824o(d)(5).

    15 Reliability Standard CIP-002-5.1a (Cyber Security System Categorization) provides a “tiered” approach to cybersecurity requirements, based on classifications of high, medium and low impact BES Cyber Systems.

    6. Further, the NERC proposal does not address Physical Access Control Systems (PACS) 16 and Protected Cyber Assets (PCA),17 with the exception of the modifications in Reliability Standard CIP-005-6, which apply to PCAs. We remain concerned that the exclusion of these components may leave a gap in the supply chain risk management Reliability Standards. Nevertheless, in contrast to EACMS, we believe that more study is necessary to determine the impact of PACS and PCAs in the context of the supply chain risk management Reliability Standards. We distinguish among EACMS and the other Cyber Assets because compromise of PACS and PCAs are less likely. For example, a compromise of a PACS, which would potentially grant an attacker physical access to a BES Cyber System or PCA, is less likely since physical access is also required. In addition, PCAs typically become vulnerable to remote compromise only once EACMS have been compromised. Thus, we accept NERC's commitment to evaluate the cybersecurity supply chain risks presented by PACS and PCAs in the study of cybersecurity supply chain risks directed by the NERC Board of Trustees (BOT) in its resolutions of August 10, 2017.18 The Commission further directs NERC to file the BOT-directed final report with the Commission upon its completion.19

    16 PACS are defined as “Cyber Assets that control, alert, or log access to the Physical Security Perimeter(s), exclusive of locally mounted hardware or devices at the Physical Security Perimeter such as motion sensors, electronic lock control mechanisms, and badge readers.” NERC Glossary. Reliability Standard CIP-002-5.1a states that examples include “authentication servers, card systems, and badge control systems.”Id.

    17 PCAs are defined as “[o]ne or more Cyber Assets connected using a routable protocol within or on an Electronic Security Perimeter that is not part of the highest impact BES Cyber System within the same Electronic Security Perimeter. The impact rating of Protected Cyber Assets is equal to the highest rated BES Cyber System in the same [Electronic Security Perimeter].” NERC Glossary. Reliability Standard CIP-002-5.1a states that examples include, to the extent they are within the Electronic Security Perimeter, “file servers, ftp servers, time servers, LAN switches, networked printers, digital fault recorders, and emission monitoring systems.” Id.

    18 NERC Board of Trustees, Proposed Additional Resolutions for Agenda Item 9.a: Cyber Security—Supply Chain Risk Management—CIP-005-6, CIP-010-3, and CIP-013-1 (August 10, 2017).

    19 As discussed later in this final rule, the NOPR proposed to direct NERC to file the BOT-directed interim report, due 12 months from the date of the BOT resolutions, as well as the final report, which is due 18 months from the date of the BOT resolutions. On September 7, 2018, NERC filed the BOT-directed interim report in this docket.

    I. Background A. Section 215 and Mandatory Reliability Standards

    7. Section 215 of the FPA requires a Commission-certified ERO to develop mandatory and enforceable Reliability Standards, subject to Commission review and approval. Reliability Standards may be enforced by the ERO, subject to Commission oversight, or by the Commission independently.20 Pursuant to section 215 of the FPA, the Commission established a process to select and certify an ERO,21 and subsequently certified NERC.22

    20 16 U.S.C. 824o(e).

    21Rules Concerning Certification of the Electric Reliability Organization; and Procedures for the Establishment, Approval, and Enforcement of Electric Reliability Standards, Order No. 672, FERC Stats. & Regs. ¶ 31,204, order on reh'g, Order No. 672-A, FERC Stats. & Regs. ¶ 31,212 (2006).

    22North American Electric Reliability Corp., 116 FERC ¶ 61,062, order on reh'g and compliance, 117 FERC ¶ 61,126 (2006), aff'd sub nom. Alcoa, Inc. v. FERC, 564 F.3d 1342 (D.C. Cir. 2009).

    B. Order No. 829

    8. In Order No. 829, the Commission directed NERC to develop a new or modified Reliability Standard that addresses supply chain risk management for industrial control system hardware, software and computing and networking services associated with bulk electric system operations.23 Specifically, the Commission directed NERC to develop a forward-looking, objective-based Reliability Standard that would require responsible entities to develop and implement a plan with supply chain management security controls focused on four security objectives: (1) Software integrity and authenticity; (2) vendor remote access; (3) information system planning; and (4) vendor risk management and procurement controls.24

    23 Order No. 829, 156 FERC ¶ 61,050 at P 43.

    24Id. P 45.

    9. The Commission explained that verification of software integrity and authenticity is intended to reduce the likelihood that an attacker could exploit legitimate vendor patch management processes to deliver compromised software updates or patches to a BES Cyber System.25 For vendor remote access, the Commission stated that the objective is intended to address the threat that vendor credentials could be stolen and used to access a BES Cyber System without the responsible entity's knowledge, as well as the threat that a compromise at a trusted vendor could traverse over an unmonitored connection into a responsible entity's BES Cyber System.26 As to information system planning, Order No. 829 indicated that the objective is intended to address the risk that responsible entities could unintentionally plan to procure and install unsecure equipment or software within their information systems, or could unintentionally fail to anticipate security issues that may arise due to their network architecture or during technology and vendor transitions.27 For vendor risk management and procurement controls, the Commission explained that this objective is intended to address the risk that responsible entities could enter into contracts with vendors that pose significant risks to the responsible entities' information systems, as well as the risk that products procured by a responsible entity fail to meet minimum security criteria. This objective also addresses the risk that a compromised vendor would not provide adequate notice and related incident response to responsible entities with whom that vendor is connected.28

    25Id. P 49.

    26Id. P 52.

    27Id. P 57.

    28Id. P 60.

    10. Order No. 829 stated that while responsible entities should be required to develop and implement a plan, NERC need not impose any specific controls or “one-size-fits-all” requirements.29 In addition, the Commission stated that NERC's response to the Order No. 829 directive should respect the Commission's jurisdiction under FPA section 215 by only addressing the obligations of responsible entities and not by directly imposing any obligations on non-jurisdictional suppliers, vendors or other entities that provide products or services to responsible entities.30

    29Id. P 13.

    30Id. P 21.

    C. NERC Petition and Proposed Reliability Standards

    11. On September 26, 2017, NERC submitted for Commission approval proposed Reliability Standards CIP-013-1, CIP-005-6, and CIP-010-3 and their associated violation risk factors and violation severity levels, implementation plan, and effective date.31 NERC states that the purpose of the Reliability Standards is to enhance the cybersecurity posture of the electric industry by requiring responsible entities to take additional actions to address cybersecurity risks associated with the supply chain for BES Cyber Systems. NERC explains that the Reliability Standards are designed to augment the existing controls required in the currently-effective CIP Reliability Standards that help mitigate supply chain risks, providing increased attention on minimizing the attack surfaces of information and communications technology products and services procured to support reliable bulk electric system operations, consistent with Order No. 829.

    31 Reliability Standards CIP-013-1, CIP-005-6, and CIP-010-3 are not attached to this final rule. The Reliability Standards are available on the Commission's eLibrary document retrieval system in Docket No. RM17-13-000 and on the NERC website, www.nerc.com.

    12. NERC states that the supply chain risk management Reliability Standards apply only to medium and high impact BES Cyber Systems. NERC explains that the goal of the CIP Reliability Standards is to “focus[] industry resources on protecting those BES Cyber Systems with heightened risks to the [bulk electric system] . . . [and] that the requirements applicable to low impact BES Cyber Systems, given their lower risk profile, should not be overly burdensome to divert resources from the protection of medium and high impact BES Cyber Systems.” 32 NERC further maintains that the standard drafting team chose to limit the applicability of the Reliability Standards to medium and high impact BES Cyber Systems because the supply chain risk management Reliability Standards are “consistent with the type of existing CIP cybersecurity requirements applicable to high and medium impact BES Cyber Systems as opposed to those applicable to low impact BES Cyber Systems.” 33

    32 NERC Petition at 16-17.

    33Id. at 18.

    13. NERC states that the standard drafting team also excluded EACMS, PACS, and PCAs from the scope of the supply chain risk management Reliability Standards, with the exception of the modifications in Reliability Standard CIP-005-6, which apply to PCAs. NERC explains that although certain requirements in the existing CIP Reliability Standards apply to EACMS, PACS, and PCAs due to their association with BES Cyber Systems (either by function or location), the standard drafting team determined that the supply chain risk management Reliability Standards should focus on high and medium impact BES Cyber Systems only. NERC states that this determination was based on the conclusion that applying the proposed Reliability Standards to EACMS, PACS, and PCAs “would divert resources from protecting medium and high BES Cyber Systems.” 34

    34Id. at 20.

    14. NERC asserts that with respect to low impact BES Cyber Systems and EACMS, PACS, and PCAs, while not mandatory, NERC expects that these assets will likely be subject to responsible entity supply chain risk management plans required by Reliability Standard CIP-013-1. Specifically, NERC explains that “[r]esponsible [e]ntities may implement a single process for procuring products and services associated with their operational environments.” 35 NERC contends that “by requiring that entities implement supply chain cybersecurity risk management plans for high and medium impact BES Cyber Systems, those plans would likely also cover their low impact BES Cyber Systems.” 36 NERC also claims that responsible entities “may also use the same vendors for procuring PACS, EACMS, and PCAs as they do for their high and medium impact BES Cyber Systems such that the same security considerations may be addressed for those Cyber Assets.” 37

    35Id.

    36Id. at 19.

    37Id. at 20.

    Proposed Reliability Standard CIP-013-1

    15. NERC states that the focus of proposed Reliability Standard CIP-013-1 is on the steps that responsible entities must take “to consider and address cybersecurity risks from vendor products and services during BES Cyber System planning and procurement.” 38 NERC explains that proposed Reliability Standard CIP-013-1 does not require any specific controls or mandate “one-size-fits-all” requirements due to the differences in needs and characteristics of responsible entities and the diversity of bulk electric system environments, technologies, and risks. NERC states that the goal of the proposed Reliability Standard is “to help ensure that responsible entities establish organizationally-defined processes that integrate a cybersecurity risk management framework into the system development lifecycle.” 39 NERC observes that, among other things, proposed Reliability Standard CIP-013-1 addresses the risk associated with information system planning, as well as vendor risk management and procurement controls, the third and fourth objectives outlined in Order No. 829.

    38Id. at 22.

    39Id. at 23.

    16. NERC maintains that, consistent with Order No. 829, responsible entities need not apply their supply chain risk management plans to the acquisition of vendor products or services under contracts executed prior to the effective date of Reliability Standard CIP-013-1, nor would such contracts need to be renegotiated or abrogated to comply with the Reliability Standard. In addition, NERC indicates that, consistent with the development of a forward looking Reliability Standard, it would not expect entities in the middle of procurement activities for an applicable product or service at the time of the effective date of Reliability Standard CIP-013-1 to begin those activities anew to implement their supply chain cybersecurity risk management plan.

    17. With regard to assessing compliance with Reliability Standard CIP-013-1, NERC states that NERC and Regional Entities would focus on whether responsible entities: (1) Developed processes reasonably designed to (i) identify and assess risks associated with vendor products and services in accordance with Part 1.1 and (ii) ensure that the security items listed in Part 1.2 are an integrated part of procurement activities; and (2) implemented those processes in good faith. NERC explains that NERC and Regional Entities will evaluate the steps a responsible entity took to assess risks posed by a vendor and associated products or services and, based on that risk assessment, the steps the entity took to mitigate those risks, including the negotiation of security provisions in its agreements with the vendor.

    Proposed Modifications in Reliability Standard CIP-005-6

    18. Proposed Reliability Standard CIP-005-6 includes two new parts, Parts 2.4 and 2.5, to address vendor remote access, which is the second objective discussed in Order No. 829. NERC explains that the new parts work in tandem with proposed Reliability Standard CIP-013-1, Requirement R1.2.6, which requires responsible entities to address Interactive Remote Access and system-to-system remote access when procuring industrial control system hardware, software, and computing and networking services associated with bulk electric system operations. NERC states that proposed Reliability Standard CIP-005-6, Requirement R2.4 requires one or more methods for determining active vendor remote access sessions, including Interactive Remote Access and system‐to‐system remote access. NERC explains that the security objective of Requirement R2.4 is to provide awareness of all active vendor remote access sessions, both Interactive Remote Access and system‐to‐system remote access, that are taking place on a responsible entity's system.

    Proposed Modifications in Reliability Standard CIP-010-3

    19. Proposed Reliability Standard CIP-010-3 includes a new part, Part 1.6, to address software integrity and authenticity, the first objective addressed in Order No. 829, by requiring that the publisher is identified and the integrity of all software and patches are confirmed. NERC explains that proposed Reliability Standard CIP-010-3, Requirement R1.6 requires responsible entities to verify software integrity and authenticity prior to a change from the existing baseline configuration, if the software source provides a method to do so. Specifically, NERC states that proposed Reliability Standard CIP-010-3, Requirement R1.6 requires that responsible entities verify the identity of the software source and the integrity of the software obtained by the software sources prior to installing software that changes established baseline configurations, when methods are available to do so. NERC asserts that the security objective of proposed Requirement R1.6 is to ensure that the software being installed in the BES Cyber System was not modified without the awareness of the software supplier and is not counterfeit. NERC contends that these steps help reduce the likelihood that an attacker could exploit legitimate vendor patch management processes to deliver compromised software updates or patches to a BES Cyber System.

    BOT Resolutions

    20. In the petition, NERC states that in conjunction with the adoption of the supply chain risk management Reliability Standards, on August 10, 2017, the BOT adopted resolutions regarding supply chain risk management. In particular, the BOT directed NERC management, in collaboration with appropriate NERC technical committees, industry representatives, and appropriate experts, including representatives of industry vendors, to further study the nature and complexity of cybersecurity supply chain risks, including risks associated with low impact assets not currently subject to the supply chain risk management Reliability Standards. The BOT further directed NERC to develop recommendations for follow-up actions that will best address any issues identified. Finally, the BOT directed that NERC management provide an interim progress report no later than 12 months after the adoption of these resolutions (i.e., by August 10, 2018) and a final report no later than 18 months after the adoption of the resolutions (i.e., by February 10, 2019). In its petition, NERC states that “over the next 18 months, NERC, working with various stakeholders, will continue to assess whether supply chain risks related to low impact BES Cyber Systems, PACS, EACMS and PCA necessitate further consideration for inclusion in a mandatory Reliability Standard.” 40

    40Id. at 20-21.

    Implementation Plan

    21. NERC's proposed implementation plan provides that the supply chain risk management Reliability Standards become effective on the first day of the first calendar quarter that is 18 months after the effective date of a Commission order approving them. NERC states that the proposed implementation period is designed to afford responsible entities sufficient time to develop and implement their supply chain cybersecurity risk management plans required under proposed Reliability Standard CIP-013-1 and implement the new controls required in proposed Reliability Standards CIP-005-6 and CIP-010-3.

    D. Notice of Proposed Rulemaking

    22. On January 18, 2018, the Commission issued a NOPR proposing to approve supply chain risk management Reliability Standards CIP-013-1, CIP-005-6, and CIP-010-3 (83 FR 3422, January 25, 2018). The NOPR stated that the supply chain risk management Reliability Standards “will enhance existing protections for bulk electric system reliability by addressing the four objectives set forth in Order No. 829: (1) Software integrity and authenticity; (2) vendor remote access; (3) information system planning; and (4) vendor risk management and procurement controls.” 41 Accordingly, the NOPR proposed to determine that the supply chain risk management Reliability Standards constitute substantial progress in addressing the supply chain cybersecurity risks identified by the Commission in Order No. 829.42

    41 NOPR, 162 FERC ¶ 61,044 at P 29.

    42Id. P 30.

    23. The NOPR proposed to approve the supply chain risk management Reliability Standards' associated violation risk factors and violation severity levels. However, with respect to the implementation plan and effective date, the NOPR proposed to reduce the implementation period from the first day of the first calendar quarter that is 18 months following the effective date of a Commission order approving the proposed Reliability Standards, as proposed by NERC, to the first day of the first calendar quarter that is 12 months following the effective date of a Commission order.43

    43Id. P 44.

    24. The NOPR proposed to determine that a significant cybersecurity risk associated with the supply chain for BES Cyber Systems persists because the proposed supply chain risk management Reliability Standards exclude EACMS, PACS, and PCAs, with the exception of the modifications in Reliability Standard CIP-005-6, which apply to PCAs. To address this gap, pursuant to section 215(d)(5) of the FPA, the NOPR proposed to direct NERC to develop modifications to the CIP Reliability Standards to include EACMS associated with medium and high impact BES Cyber Systems within the scope of the supply chain risk management Reliability Standards. In addition, the Commission proposed to direct that NERC evaluate the cybersecurity supply chain risks presented by PACS and PCAs in the study of cybersecurity supply chain risks directed by the NERC BOT in its resolutions of August 10, 2017.

    25. The Commission received fifteen comments on the NOPR.

    E. Interim BOT-Directed Report

    26. On September 7, 2018, NERC submitted to the Commission an informational filing containing the BOT-directed interim report prepared by the Electric Power Research Institute (EPRI).44 The interim report explains that EPRI analyzed:

    44 NERC, Informational Filing regarding Proposed Supply Chain Risk Management Reliability Standards, Docket No. RM17-13-000 (September 7, 2018) (NERC Interim Report).

    (1) Information regarding bulk electric system products and manufacturers; (2) emerging vendor practices and industry standards; and (3) the applicability of the CIP Reliability Standards to supply chain risks. The interim report concludes with three categories of identified next steps for further analysis and investigation.

    27. First, EPRI identifies four noteworthy industry practices, not already required by the CIP Reliability Standards, which may potentially reduce future supply chain risks if implemented correctly: (1) Third-party accreditation processes; (2) secure hardware delivery; (3) threat-informed procurement language; and (4) processes related to unsupported or open-source technology. Second, EPRI recommends further study in modeling and assessing the potential impact of common-mode vulnerabilities, especially those targeting low-impact BES Cyber Systems. EPRI states that “risks of common-mode vulnerabilities . . . can be mitigated if supply chain security practices are applied uniformly across cyber asset types.” 45 Finally, EPRI recommends various methods to obtain additional data on industry practices. These methods included issuing pre-audit surveys and questionnaires; targeting outreach to bulk electric system vendors; developing standard vendor data sheets related to the CIP Reliability Standards; and independently testing legacy assets. In its accompanying filing, NERC states its intention to continue to study supply chain risks over the coming months, develop recommendations for follow-up actions, and present a final report to the NERC BOT at its February 2019 meeting.

    45Id. at 5-1.

    II. Discussion

    28. Pursuant to section 215(d)(2) of the FPA, the Commission approves supply chain risk management Reliability Standards CIP-013-1, CIP-005-6, and CIP-010-3 as just, reasonable, not unduly discriminatory or preferential, and in the public interest. We determine that the supply chain risk management Reliability Standards will enhance existing protections for bulk electric system reliability by addressing the four objectives identified in Order No. 829: (1) Software integrity and authenticity; (2) vendor remote access; (3) information system planning; and (4) vendor risk management and procurement controls.

    29. Reliability Standard CIP-013-1 addresses information system planning and vendor risk management and procurement controls by requiring that responsible entities develop and implement one or more documented supply chain cybersecurity risk management plan(s) for high and medium impact BES Cyber Systems. The required plans must address, as applicable, a baseline set of six security concepts: (1) Vendor security event notification; (2) coordinated incident response; (3) vendor personnel termination notification; (4) product/services vulnerability disclosures; (5) verification of software integrity and authenticity; and (6) coordination of vendor remote access controls. Reliability Standard CIP-005-6 addresses vendor remote access by creating two new requirements for determining active vendor remote access sessions and for having one or more methods to disable active vendor remote access sessions. Reliability Standard CIP-010-3 addresses software authenticity and integrity by creating a new requirement that responsible entities verify the identity of the software source and the integrity of the software obtained from the software source prior to installing software that changes established baseline configurations, when methods are available to do so.

    30. While we determine that the approved supply chain risk management Reliability Standards constitute substantial progress in addressing the supply chain cybersecurity risks identified in Order No. 829, as discussed below, we find that the exclusion of EACMS from the scope of the Reliability Standards presents risks to the cybersecurity of the bulk electric system. As explained in Order No. 848, EACMS are defined in the NERC Glossary as “Cyber Assets that perform electronic access control or electronic access monitoring of the Electronic Security Perimeter(s) or BES Cyber Systems. This includes Intermediate Systems.” Among other things, EACMS include firewalls, authentication servers, security event monitoring systems, intrusion detection systems and alerting systems. The purpose of an ESP, in turn, is to manage electronic access to BES Cyber Systems to support the protection of the BES Cyber Systems against compromise that could lead to misoperation or instability in the bulk electric system.46 The record indicates that the vulnerabilities associated with EACMS are well understood and appropriate for mitigation. Thus, pursuant to section 215(d)(5) of the FPA, we direct NERC to develop modifications to the CIP Reliability Standards to include EACMS within the scope of the supply chain risk management Reliability Standards. We direct NERC to submit the directed modifications within 24 months of the effective date of this final rule.

    46 Order No. 848, 164 FERC ¶ 61,033 at PP 39-40.

    31. In addition, while PACS and PCAs also present concerns, we agree with NERC and others that further study is warranted with regard to the impacts and benefits of directing that the ERO address the risks associated with PACS and PCAs in the supply chain risk management Reliability Standards. Accordingly, we accept NERC's commitment to evaluate the cybersecurity supply chain risks presented by PACS and PCAs in the cybersecurity supply chain risks study directed by the BOT. The Commission further directs NERC to file the BOT-directed final report with the Commission upon its completion.

    32. In the sections below, we discuss the following issues: (A) Inclusion of EACMS in the supply chain risk management Reliability Standards; (B) inclusion of PACS and PCAs in the BOT-directed study on cybersecurity supply chain risks and filing of the BOT-directed final report with the Commission; (C) supply chain risk management Reliability Standards' implementation plan and effective date; and (D) other issues raised in the NOPR comments.

    A. Inclusion of EACMS in CIP Reliability Standards 1. NOPR

    33. The NOPR observed that the supply chain risk management Reliability Standards do not apply to low impact BES Cyber Systems or Cyber Assets associated with medium and high impact BES Cyber Systems (i.e., EACMS, PACS, and PCAs). The NOPR, however, recognized that the BOT-directed study on cybersecurity supply chain risks will examine the risks posed by low impact BES Cyber Systems.47 While acknowledging NERC's commitment to study these issues, as evinced by the BOT-directed study, the NOPR proposed to direct NERC to modify the supply chain risk management Reliability Standards to include within their scope EACMS associated with medium and high impact BES Cyber Systems.48

    47 NOPR, 162 FERC ¶ 61,044 at P 33.

    48Id. P 39.

    34. Specifically, the NOPR explained that BES Cyber Systems have associated Cyber Assets, which, if compromised, pose a threat to the BES Cyber System by virtue of, inter alia, the security control function they perform.49 In particular, EACMS support BES Cyber Systems and are part of the network and security architecture that allows BES Cyber Systems to work as intended by performing electronic access control or electronic access monitoring of the ESP or BES Cyber Systems.

    49 Reliability Standard CIP-002-5.1a (Cyber Security—BES Cyber System Categorization), Background at 6.

    35. The NOPR indicated that since EACMS support and enable BES Cyber System operation, misoperation and unavailability of EACMS that support a given BES Cyber System could also contribute to misoperation of a BES Cyber System or render it unavailable, which could adversely affect bulk electric system reliability. The NOPR also explained that EACMS control electronic access, including interactive remote access, into the ESP that protects high and medium impact BES Cyber Systems. As the NOPR further noted, an attacker does not need physical access to the facility housing a BES Cyber System in order to gain access to a BES Cyber System or PCA via an EACMS compromise. The NOPR concluded that EACMS represent the most likely route an attacker would take to access a BES Cyber System or PCA within an ESP.50

    50 NOPR, 162 FERC ¶ 61,044 at P 35.

    2. Comments

    36. NERC does not support the proposed directive to include EACMS within the scope of the supply chain risk management Reliability Standards at this time. NERC indicates that it is currently analyzing supply chain risks associated with EACMS, among other things, as part of the BOT-directed study of supply chain risks related to low impact BES Cyber Systems. NERC explains that the “study will help identify and differentiate the risks presented by various types of EACMS” to help in any directed standards development process.51 NERC requests that the Commission refrain from issuing a directive on EACMS until the results of the BOT-directed study to assess supply chain risks associated with EACMS are received.52

    51 NERC Comments at 6.

    52Id. at 4-6.

    37. Most commenters agree with NERC that the Commission should approve the supply chain risk management Reliability Standards as filed and not direct the inclusion of EACMS at this time. Instead, Trade Associations, EEI, ITC, IRC, and MISO TOs support evaluating in the BOT-directed study the possibility of including EACMS in the supply chain risk management Reliability Standards.53

    53 Trade Associations Comments at 10, EEI Comments at 10, ITC Comments at 5, IRC Comments at 3.

    38. Trade Associations contend that first allowing completion of the BOT-directed study would allow NERC to assess the diversity of EACMS that perform control or monitoring functions with varying risk levels and “is likely to provide more specific information and analysis concerning whether any category of EACMS might be appropriately included within the scope of the supply chain Reliability Standards.” 54 Trade Associations also maintain that first having the BOT-directed study results will facilitate a more efficient and effective standards development process.

    54 Trade Associations Comments at 10.

    39. While also supportive of awaiting the results of the BOT-directed study, EEI asserts that EACMS are protected under existing CIP Reliability Standards. EEI cites Reliability Standards CIP-005-5, Requirements R1, Part 1.3 and R2, Parts 2.1-2.3, CIP-007-6, Requirements R1, Part 1.1, R2, R3, R4, and R5, and CIP-010-2, Requirement 2, Part 2.1 as protecting EACMS against compromise.55 Moreover, EEI states that the likelihood of compromise of an EACMS from potential supply chain-derived threats was not addressed in the NOPR and “should be evaluated before directing a CIP Standard scope expansion.” 56 Even so, EEI supports further evaluating the feasibility, as well as the benefits, of adding EACMS to the supply chain risk management Reliability Standards. EEI contends that waiting for the BOT-directed study will allow industry time to gain experience implementing the supply chain risk management Reliability Standard requirements as well as help identify potential follow-up actions.57

    55 EEI Comments at 8.

    56Id.

    57Id. at 10.

    40. MISO TOs likewise aver that EACMS, while important, are “not unprotected” under currently-effective CIP Reliability Standards. MISO TOs, like EEI, reference Reliability Standard CIP-007-6 (Cyber Security — System Security Management), which requires responsible entities to manage system security by specifying select technical, operational, and procedural requirements in support of protecting BES Cyber Systems. MISO TOs state that this Reliability Standard applies to EACMS. AECC also contends that the existing CIP Reliability Standards already sufficiently cover any risks associated with EACMS.58 In particular, AECC states that “CIP-005-6 already addresses vendor-initiated remote access . . . [and] developing technology services for BEC Cyber Systems under CIP-010-3 inherently already requires coverage for EACMS, PACS, and PCAs due to the nature of the technology.” 59

    58 AECC Comments at 2-3.

    59Id. at 3.

    41. ITC, IRC, and MISO TOs assert that including EACMS within the supply chain risk management Reliability Standards would constitute a substantial expansion of the Reliability Standards and would require significant additional resources for compliance, without a commensurate improvement in bulk electric system reliability. According to ITC, the record does not contradict NERC's technical assessment that inclusion of EACMS within the supply chain risk management Reliability Standards is not justified. ITC claims that the NOPR, while “descriptively accurate,” misunderstands the purpose and function of EACMS, which, ITC states, are intended to protect the ESP and the BES Cyber Assets contained therein and are not intended to provide a reliability function. ITC concludes that misoperation of an EACMS, while serious, does not rise to the level of a direct threat to the reliability of the bulk electric system.

    42. IRC similarly believes that including EACMS within the scope of the supply chain risk management Reliability Standards would require “significant resources and effort” and because EACMS vendors supply such systems to a larger market than just the power sector there would need to be coordination with other industries before implementing a supply chain risk management Reliability Standard for EACMS.60 MISO TOs also contend that including EACMS would affect numerous pieces of equipment and assets, with associated costs, system changes, and other burdens, without showing commensurate benefits.61

    60 IRC Comments at 2-3.

    61 MISO TO Comments at 16.

    43. Idaho Power, for its part, does not believe that EACMS should be included in the scope of the supply chain risk management Reliability Standards based on its view that EACMS are used in other industries and are not specific to critical infrastructure. Instead, Idaho Power states that the focus should be on correctly configuring EACMS devices as opposed to addressing procurement practices.62

    62 Idaho Power Comments at 2.

    44. Appelbaum, Reclamation, Resilient Societies, Isologic, Mabee, and MPUC support the NOPR directive regarding EACMS associated with medium and high impact BES Cyber Systems. In addition, the commenters urge the Commission to extend the scope of the supply chain risk management Reliability Standards to low impact BES Cyber Systems.63 MPUC states, for example, that the supply chain risk management Reliability Standards should apply to all BES Cyber System assets, unless the specific asset can be shown to be completely isolated from the bulk electric system.64 Resilient Societies states that the supply chain risk management Reliability Standards should apply to low impact BES Cyber Systems since the compromise of a low impact BES Cyber System could lead to the compromise of medium or high impact BES Cyber Systems.65

    63 Appelbaum Comments at 6, Reclamation Comments at 7, Resilient Societies Comments at 3-4, Isologic Comments at 3, Mabee Comments at 4, MPUC Comments at 6.

    64 MPUC Comments at 6.

    65 Resilient Societies Comments at 3.

    45. APS states that it supports the NOPR proposal to direct NERC to modify the supply chain risk management Reliability Standards to include EACMS associated with medium and high impact BES Cyber Systems. However, APS contends that the Commission should delay their inclusion until NERC and industry complete their analysis of the potential need to separate the functions reflected in the current EACMS definition (e.g., electronic access control versus electronic access monitoring). APS states that, including EACMS that perform electronic access control functions within the scope of the supply chain risk management Reliability Standards “represents good cybersecurity posture . . . [h]owever, at this time, the definition of EACMS is not sufficiently mature to make the necessary distinction discussed above.” 66

    66 APS Comments at 5.

    3. Commission Determination

    46. Pursuant to section 215(d)(5) of the FPA, we adopt the NOPR proposal and direct NERC to develop modifications to include EACMS associated with medium and high impact BES Cyber Systems within the scope of the supply chain risk management Reliability Standards. While we are sensitive to the position taken by NERC and other commenters that the Commission should not issue a directive until after completion of the BOT-directed final report, we conclude that the record before us supports directing NERC to include at least some subset of EACMS associated with medium and high impact BES Cyber Systems at this time. We are not persuaded by comments advocating delay in view of the forthcoming BOT-directed final report because the standard drafting team will have the benefit of the BOT-directed final report, which is due in February 2019, when developing the directed Reliability Standard modifications.67

    67 As we have imposed a 24-month deadline for NERC to file the modified supply chain risk management Reliability Standards, the standard drafting team will have ample time to review and incorporate the findings in the BOT-directed final report.

    47. We continue to believe that EACMS represent the most likely route an attacker would take to access a BES Cyber System or PCA within an ESP based on the functions they perform.68 EACMS support BES Cyber Systems and are part of the network and security architecture that allows BES Cyber Systems to work as intended because they perform electronic access control or electronic access monitoring of the ESP or BES Cyber Systems. In particular, EACMS control electronic access, including interactive remote access, into the ESP that protects high and medium impact BES Cyber Systems. One specific function of electronic access control is to prevent malware or malicious actors from gaining access to the BES Cyber Systems and PCAs within the ESP.69 Given the significant role that EACMS play in the protection scheme for medium and high impact BES Cyber Systems, we determine that EACMS should be within the scope of the supply chain risk management Reliability Standards to provide minimum protection against supply chain attack vectors.

    68See NOPR, 162 FERC ¶ 61,044 at P 35.

    69Id.

    48. No commenter disagreed with the NOPR that misoperation or unavailability of EACMS that support a given BES Cyber System could contribute to the misoperation of the BES Cyber System or render it unavailable, which could pose a significant risk to reliable operation. Instead, commenters generally agree that EACMS perform important security-related functions.70 For example, NERC states that a compromised firewall “may allow unfettered access to the ESP.” 71 EEI also agrees that the compromise of certain EACMS that control access could adversely affect the reliable operation of an associated BES Cyber System, although EEI asserts that other CIP Reliability Standards adequately protect those EACMS.72 Although some commenters, as discussed below, maintain that the reliability benefit of including EACMS in the supply chain risk management Reliability Standards is outweighed by the perceived costs, these commenters do not challenge the proposition that misoperation or unavailability of EACMS has negative reliability ramifications. For example, ITC, while opposing the NOPR directive, recognizes that misoperation of an EACMS is “serious” and “[w]ere CIP resources infinite, it would no doubt increase BES reliability by some degree to include EACMS within this Standard.” 73

    70See NERC Comments at 5-6, Appelbaum Comments at 5-6, APS Comments at 5, EEI Comments at 7-8, IRC Comments at 3, Idaho Power Comments at 2, MPUC Comments at 6.

    71 NERC Comments at 5.

    72 EEI Comments at 7-8.

    73 ITC Comments at 5.

    49. We disagree with the comments asserting that existing CIP Reliability Standards adequately protect EACMS against supply chain-based threats. While existing CIP Reliability Standards include requirements that address aspects of supply chain risk management, existing Reliability Standards do not adequately protect EACMS based on the four security objectives in Order No. 829.74 The CIP Reliability Standards cited by EEI, MISO TOs and AECC address aspects of electronic access control, systems security management, and configuration monitoring, but they do not address protection from supply chain threats such as insertion of counterfeits or malicious software, unauthorized production, tampering, or theft, as well as poor manufacturing and development practices. By contrast, the supply chain risk management Reliability Standards approved in this final rule specifically address the above listed supply chain threats, and, we determine, should be extended to at least some subset of EACMS.

    74 Order No. 829, 156 FERC ¶ 61,050 at P 71.

    50. Specifically, the goal of the supply chain risk management Reliability Standards is “to help ensure that responsible entities establish organizationally-defined processes that integrate a cybersecurity risk management framework into the system development life cycle.” 75 The current CIP Reliability Standards identified in the comments, however, do not adequately address supply chain risks. For example, while Reliability Standard CIP-005-5 provides a level of electronic access protection for an ESP through controls applied to an Electronic Access Point associated with an EACMS, those controls would only apply after an asset is procured and deployed on a responsible entity's system. In this situation, the EACMS at issue could already contain built-in vulnerabilities making it susceptible to compromise or, in the worst-case scenario, could have been compromised before acquisition.

    75 NERC Comments at 23.

    51. Given the documented risks to the cyber posture of the bulk electric system associated with EACMS, we are not persuaded to await the completion of the BOT-directed final report before issuing a directive regarding EACMS.76 Instead, it is reasonable to initiate modification of the supply chain risk management Reliability Standards based on the conclusion that at least some categories of EACMS should be included. As discussed above, we are convinced that EACMS in general are a known risk that should be protected under the supply chain risk management Reliability Standards. But we leave it to the standard drafting team to assess the various types of EACMS and their associated levels of risk. We are confident that the standard drafting team will be able to develop modifications that include only those EACMS whose compromise by way of the cybersecurity supply chain can affect the reliable operation of high and medium impact BES Cyber Systems. While it will no doubt inform the standard drafting team's work, the BOT-directed final report is not, in our view, likely to alter the conclusion that at least some EACMS functions should be included in the supply chain risk management Reliability Standards.77

    76See NERC Comments at 4-6, EEI Comments at 7-10, IRC Comments at 3, ITC Comments at 5, Trade Associations at 8-12, MISO TOs Comments at 16-18.

    77 The BOT-directed interim report provides the example of a situation where a firewall used to protect BES Cyber Systems within an ESP was compromised due to supply chain vulnerability, noting that each system within the ESP could be exposed due to its logical proximity to the compromised firewalls. NERC Interim Report at 4-4.

    52. The record does not support delaying a directive to modify the CIP Reliability Standards to include EACMS. While commenters opposing the NOPR proposal contend that the Commission should not act until NERC has the results of the BOT-directed final report, we note that: (1) NERC will have 24 months from the effective date of this final rule to develop and submit the modified Reliability Standards; and (2) the BOT-directed final report is due in the near term (i.e., February 2019). Nothing in our directive prevents the standard drafting team from using the findings in the BOT-directed final report to refine its understanding of which types of EACMS functions present the greatest risk and are worthy of inclusion in the supply chain risk management Reliability Standards. Indeed, as discussed below, in view of the BOT-directed study and the Commission's guidance, the standard drafting team could modify the supply chain risk management Reliability Standards to include an appropriate subset of EACMS functions similar to the approach in Order No. 848.78

    78 Order No. 848, 164 FERC ¶ 61,033 at PP 53-54.

    53. As we have indicated above, including EACMS within the scope of the supply chain risk management Reliability Standards is consistent with the approach in Order No. 848 regarding cybersecurity incident reporting. In Order No. 848, the Commission determined that EACMS that perform certain functions are significant to bulk electric system reliability so as to justify their being within the scope of the cybersecurity incident reporting Reliability Standards. Specifically, Order No. 848 addressed the identification of EACMS that should be subject to mandatory reporting requirements:

    With regard to identifying EACMS for reporting purposes, NERC's reporting threshold should encompass the functions that various electronic access control and monitoring technologies provide. Those functions must include, at a minimum: (1) Authentication; (2) monitoring and logging; (3) access control; (4) interactive remote access; and (5) alerting.79

    79Id. P 54.

    54. As with cybersecurity incident reporting, in the context of this proceeding, if, for example, a vulnerability in the supply chain for EACMS is found, we determine that responsible entities should have processes in place to be notified of such vulnerabilities by the vendor, as required by Reliability Standard CIP-013-1, Requirement R1.2.4. We recognize that including EACMS within the scope of the supply chain risk management Reliability Standards will impose a burden on responsible entities. Nonetheless, the burden of possible procurement inefficiencies or resource constraints must be weighed against the significant risk of a cyber incident resulting from unmitigated supply chain vulnerabilities.80

    80 EEI Comments at 9, MISO TOs Comments at 16-17, ITC Comments at 5.

    55. It is also important to consider that in Order No. 848 the Commission determined that the modified reporting Reliability Standard need not include all EACMS as currently defined and, instead, the standard drafting team may analyze the matter to determine an appropriate subset of EACMS for reporting purposes.81 Likewise, the standard drafting team that is formed in response to our present directive may determine, based on the work done in response to Order No. 848 as well as the results of the BOT-directed study, what EACMS functions are most important to the reliable operation of the Bulk-Power System and therefore should be included in the supply chain risk management Reliability Standards.

    81 Order No. 848, 164 FERC ¶ 61,033 at P 53.

    56. We find the remaining objections to our directive unpersuasive. BES Cyber Systems rely on EACMS to enable and secure the communications capability that these systems depend on to control their assigned portion of the bulk electric system. Commenters opposing the NOPR directive fail to provide convincing examples of why EACMS should not receive the same level of protection as the BES Cyber Systems with which they are associated. In addition, contrary to EEI's assertion that the “likelihood of compromise” is unclear, ample evidence exists that supply chain vulnerabilities are an active issue for vendors, whom malicious parties have intentionally targeted.82 By contrast, commenters supporting the NOPR directive provided examples where notable vendors of EACMS functions announced vulnerabilities, specifically in firewall firmware.83 Reliability Standard CIP-013-1, Requirement R1, Part 1.2.1, when applied to certain EACMS functions, will require that responsible entities have processes to require notification by the vendor of the discovery of such vulnerabilities, representing a clear enhancement of the protections provided by the CIP Reliability Standards.

    82 EEI Comments at 8-9.

    83 Resilient Societies Comments at 3 (noting a February 2016 Cisco “critical” security advisory on a vulnerability that could allow an unauthenticated, remote attacker to obtain full control of its Industrial Security Appliance line of firewalls, and a December 2015 Juniper “out-of-cycle security advisory” on unauthorized code identified in a specific operating system that could allow an attacker to access some firewalls).

    57. Although some commenters question the importance of the EACMS monitoring function, we note that these systems work in concert with access control systems to alert of possible intrusion.84 Standard monitoring systems such as intrusion detection systems are an essential component designed to recognize suspicious activity and collect data used for incident reporting. A compromised intrusion detection system may provide false information and generate false alarms. Indeed, a compromised intrusion detection system may not only negate the value of the reported information, but could also potentially provide misleading information. Various intrusion detection system modules collect user logs, provide audit trails and indicate whether suspicious activity is malicious or normal. An attacker could change the various settings, removing or inserting false information. A compromised intrusion detection system may also allow the attacker to manipulate the system continuously without generating an alarm. In addition, an attacker may alter the compromised system such that it will deny legitimate activity and accept malicious activity.85

    84 EEI Comments at 7, APS Comments at 3-5, MISO TOs Comments 17-18.

    85 International Journal of Information Sciences and Techniques (IJIST) Vol.6, No.1/2, March 2016, Cyber Attacks on Intrusion Detection Systems at P 195, http://aircconline.com/ijist/V6N2/6216ijist20.pdf.

    58. For the reasons discussed above, we adopt the NOPR proposal and, pursuant to section 215(d)(5) of the FPA, direct NERC to develop modifications to the CIP Reliability Standards to include EACMS associated with medium and high impact BES Cyber Systems within the scope of the supply chain risk management Reliability Standards. We direct NERC to submit the directed modifications within 24 months of the effective date of this final rule.

    B. Study of PACS and PCAs in the BOT-Directed Cybersecurity Supply Chain Risk Study 1. NOPR

    59. The NOPR stated that it would be appropriate to await the findings from the BOT-directed study on cybersecurity supply chain risks before considering whether low impact BES Cyber Systems should be addressed in the supply chain risk management Reliability Standards. The NOPR explained that the BOT resolutions stated that the BOT-directed study should examine the risks posed by low impact BES Cyber Systems, but the BOT resolutions did not identify PACS and PCAs as subjects of the study. The NOPR noted, however, that NERC's petition suggests that NERC will evaluate PACS and PCAs as part of the BOT-directed study.86

    86 NOPR, 162 FERC ¶ 61,044 at P 27 (citing NERC Petition at 21 (“over the next 18 months, NERC, working with various stakeholders, will continue to assess whether supply chain risks related to low impact BES Cyber Systems, PACS, EACMS, and PCA necessitate further consideration for inclusion in a mandatory Reliability Standard”)).

    60. The NOPR proposed to direct that NERC, consistent with the representation made in NERC's petition, include PACS and PCAs in the BOT-directed study and to await the findings of the study's final report before considering further action. The NOPR indicated that the risks posed by EACMS also apply to varying degrees to PACS and PCAs. However, the NOPR explained the distinction between EACMS and the other Cyber Assets: For example, a compromise of a PACS through the supply chain, which would potentially grant an attacker physical access to a BES Cyber System or PCA, is more difficult since it would also require physical access. Physical access is not required to take advantage of a compromised EACMS. Accordingly, the NOPR proposed immediate action to provide for the protection of EACMS, because they represent the most likely route an attacker would take to access a BES Cyber System or PCA within an ESP, while possible action on other Cyber Assets can await completion of the BOT-directed study's final report.87

    87 NOPR, 162 FERC ¶ 61,044 at P 42.

    61. In addition to proposing to direct NERC to include PACS and PCAs in the BOT-directed study, the NOPR proposed to direct that NERC file the study's interim and final reports with the Commission upon their completion.88

    88Id. P 43.

    2. Comments

    62. NERC concurs with the NOPR proposal and states that the Commission should “await the results of the Board-requested study before considering whether low impact BES Cyber Systems, PACS, and PCAs should be addressed in the proposed Reliability Standards.” 89 NERC maintains that the BOT-directed report will help determine whether the supply chain risk management Reliability Standards are appropriately scoped to mitigate the risks identified by the Commission.90

    89 NERC Comments at 4.

    90Id. at 5.

    63. EEI and Trade Associations support the supply chain risk management Reliability Standards' exclusion of low impact BES Cyber Systems. EEI agrees with the NOPR proposal to wait for NERC to study the supply chain risks posed by low impact BES Cyber Systems as well as PACS and PCAs before directing further modifications.91 Trade Associations also “strongly support” limiting the supply chain risk management Reliability Standards' applicability to medium and high impact BES Cyber Systems.92

    91 EEI Comments at 3.

    92 Trade Associations Comments at 7.

    64. Other commenters contend that low impact BES Cyber Systems pose a significant risk and disagree with the view that excluding such assets will focus industry resources on protecting systems with heightened risk, while not being overly burdensome. For example, Resilient Societies maintains that cyber attackers could use low impact BES Cyber Systems as network entry points to attack high and medium impact BES Cyber Systems, with a potential coordinated cyberattack on multiple low impact facilities causing a cascading collapse.93 Similarly, Appelbaum asserts that “if a large number of [low impact BES Cyber Systems] are compromised, then the effort to correct or replace the compromised assets could be significant.” 94 Reclamation also recommends including low impact BES Cyber Systems in the proposed Reliability Standards in order to avoid gaps that could compromise bulk electric system security.95

    93 Resilient Societies Comments at 3-4.

    94 Appelbaum Comments at 6.

    95 Reclamation Comments at 1.

    65. MPUC states that many of the concerns identified in the NOPR apply to all classifications of BES Cyber Systems and that responsible entities should be required to apply the supply chain risk management Reliability Standards to all BES Cyber System assets, unless the entities can show the assets in question to be completely isolated.96 Reclamation has similar concerns and states that the supply chain risk management Reliability Standards should apply to all BES Cyber System impact ratings, including low impact.97 Mabee cautions against giving industry the discretion to determine which cyber systems are “easy” to protect and which are “burdensome” to protect.98 Isologic also disagrees with the exclusion of low impact BES Cyber Systems and contends that awaiting the BOT-directed final report would unduly delay an examination by the Commission of risks involving the “massive array of unprotected [low impact] transmission substations.” 99

    96 MPUC Comments at 6.

    97 Reclamation Comments at 1.

    98 Mabee Comments at 4.

    99 Isologic Comments at 5.

    3. Commission Determination

    66. We accept NERC's commitment to evaluate the cybersecurity supply chain risks presented by low impact BES Cyber Systems, PACS, and PCAs in the study of cybersecurity supply chain risks directed by the NERC BOT. In light of that commitment, we conclude it is not necessary to separately direct that NERC expand the scope of the BOT-directed study. However, we adopt the NOPR proposal to direct NERC to file the BOT-directed study's final report with the Commission upon its completion.

    67. We continue to believe that it is appropriate to await the findings from the BOT-directed final report on cybersecurity risks before considering whether low impact BES Cyber Systems, PACS and PCAs should be addressed in modified supply chain risk management Reliability Standards.100 While we do not prejudge the findings from the forthcoming final report, at this time we find that NERC is taking adequate and timely steps to study whether low impact BES Cyber Systems, PACS and PCAs should be included in the supply chain risk management Reliability Standards. Given that the BOT-directed final report is scheduled to be completed in February 2019, we do not view our determination as unduly delaying consideration of this important issue. Once NERC submits the BOT-directed final report, the Commission will be in a better position to consider what further steps, if any, should be taken to provide for the reliability of the bulk electric system.

    100 NOPR, 162 FERC ¶ 61,044 at P 40.

    C. Implementation Plan 1. NOPR

    68. The NOPR stated that the 18-month implementation period proposed by NERC may not be justified based on the anticipated effort required to develop and implement a supply chain risk management plan. The NOPR explained that while, according to NERC, the proposed implementation period is “designed to afford responsible entities sufficient time to develop and implement their supply chain cybersecurity risk management plans required under proposed Reliability Standard CIP-013-1 and implement the new controls required in proposed Reliability Standards CIP-005-6 and CIP-010-3,” the security objectives of the proposed Reliability Standards are process-based and do not prescribe technology that might justify an extended implementation period.101 Accordingly, the NOPR proposed to reduce the time for implementation such that the supply chain risk management Reliability Standards would become effective the first day of the first calendar quarter that is 12 months, as opposed to NERC's 18 months, following the effective date of a Commission order approving the Reliability Standards.

    101 NOPR, 162 FERC ¶ 61,044 at P 44 (citing NERC Petition at 35).

    2. Comments

    69. NERC does not support the NOPR proposal to reduce the implementation period for the supply chain risk management Reliability Standards to 12 months. NERC states that the proposed 18-month implementation period is intended to give responsible entities adequate time to develop and implement a supply chain risk management plan required under proposed Reliability Standard CIP-013-1, as well as to implement new controls required under proposed Reliability Standards CIP-005-6 and CIP-010-3. NERC explains that although proposed Reliability Standard CIP-013-1 is process-based, the development and implementation of the underlying Reliability Standard requirements “involves performing a complex risk assessment process for planning and procuring BES Cyber Systems.” 102

    102 NERC Comments at 7.

    70. Other commenters support NERC's proposed 18-month implementation period and contend that 12 months is not enough time for responsible entities to develop and implement the plan and controls required under the supply chain risk management Reliability Standards. EEI, Idaho Power, IRSC, MISO TOs, and Trade Associations contend that while the Commission is correct that the requirements in the Reliability Standards are process-based, certain requirements will require technology enhancements, as well as coordination with vendors.103 For example, Trade Associations state that Reliability Standard CIP-005-6 will require work with vendors to facilitate the ability to disable vendor remote access, while Reliability Standard CIP-010-3 will also require technology upgrades.104 APS does not agree with the NOPR's assessment that a 12-month implementation period is reasonable, noting the potential need for new technology and the limitations imposed by capital budget and planning cycles.105 ITC and MISO TOs argue that the Commission does not have the legal authority to modify the implementation period unilaterally for a proposed Reliability Standard.

    103See EEI Comments at 3-4, Idaho Power Comments at 3-4, IRC Comments at 4, Trade Associations Comments at 12-13.

    104 Trade Associations Comments at 12-13 (citing NOPR, 152 FERC ¶ 61,054 at P 44).

    105 APS Comments at 5-7.

    71. Appelbaum supports a shortened implementation period for proposed Reliability Standards CIP-010-3 and CIP-005-6, for the reasons stated in the NOPR, but contends that an 18-month implementation period for proposed Reliability Standard CIP-013-1 is more appropriate. Specifically, Appelbaum notes that the proposed Reliability Standard includes new risk planning and documentation requirements that will take time to implement. Appelbaum also contends that the risk assessment will likely involve multiple vendors and various different assets. Appelbaum states that an 18-month implementation period would provide the time to develop a supply chain risk management policy and associated processes, and then apply the processes to current and future procurement activities.106

    106 Appelbaum Comments at 4.

    3. Commission Determination

    72. We do not adopt the NOPR proposal to reduce the implementation period and instead approve the implementation plan and effective date as proposed by NERC. The NOPR proposal was largely based on the premise that the security objectives of the supply chain risk management Reliability Standards are process-based and do not prescribe technology that might justify a longer implementation period. However, based on the comments, we are persuaded that technical upgrades are likely necessary to meet the security objectives of the supply chain risk management Reliability Standards, which could involve longer time-horizon capital budgets and planning cycles.

    73. While the Commission could, as Appelbaum suggests, direct an 18-month implementation period for Reliability Standard CIP-013-1 and a 12-month period for Reliability Standards CIP-005-6 and CIP-010-3, we conclude that different timelines could complicate implementation and potentially increase the administrative burden of implementation without a commensurate improvement in security.

    74. Based on the discussion above, we do not adopt the NOPR proposal and approve NERC's proposed implementation plan whereby the supply chain risk management Reliability Standards will be effective on the first day of the first calendar quarter that is 18 months following the effective date of this final rule.

    D. Other Issues 1. Comments

    75. Certain commenters raised additional issues not addressed in the NOPR. MISO TOs, APS, and Trade Associations request clarification regarding the term “vendor.” Specifically, APS seeks clarification of the definition of “vendor” and on the applicability of Reliability Standard CIP-013-1 to those vendors that would only provide services associated with a BES Cyber System that is already procured and in service.107 APS also seeks clarification on whether responsible entities are required to perform individualized vendor assessments for every in-scope procurement activity.108

    107 APS Comments at 9-11.

    108Id.

    76. MISO TOs contend that the Commission should clarify that the supply chain risk management Reliability Standards do not apply to vendors and that responsible entities will not be responsible for vendor noncompliance. MISO TOs also request that the Commission clarify that responsible entities do not have any obligation to work only with compliant vendors.109

    109 MISO TOs Comments at 7-9.

    77. APS also seeks clarification regarding the scope of access intended within the term “system-to-system access.” 110 As an example, APS asserts that, although there is a connection, User Datagram Protocol would not qualify as “system-to-system access” and seeks clarification regarding the scope of connections that would qualify as “system-to-system access.” 111

    110 APS Comments at 9-11.

    111Id.

    2. Commission Determination

    78. The Supplemental Materials for Reliability Standard CIP-013-1 explain the meaning of the term “vendor.” Specifically, the Supplemental Materials state that a vendor “is limited to those persons, companies, or other organizations with whom the [r]esponsible [e]ntity, or its affiliates, contracts with to supply BES Cyber Systems and related services.” 112 The Supplemental Materials also note that a vendor, for purposes of the supply chain risk management Reliability Standards, may include: (i) Developers or manufacturers of information systems, system components, or information system services; (ii) product resellers; or (iii) system integrators.113

    112 Reliability Standard CIP-013-1 at 12.

    113Id.

    79. With regard to vendor-related compliance concerns, vendors are not subject to the supply chain risk management Reliability Standards. As NERC explains, “the proposed Reliability Standards apply only to registered entities and do not directly impose obligations on suppliers, vendors or other entities that provide products or services to registered entities.” 114 This is consistent with the Commission's guidance in Order No. 829 that “any action taken by NERC in response to the Commission's directive to address the supply chain-related reliability gap should respect `section 215 jurisdiction by only addressing the obligations of responsible entities' and `not directly impose obligations on suppliers, vendors or other entities that provide products or services to responsible entities.' ” 115

    114 NERC Petition at 14.

    115 Order No. 829, 156 FERC ¶ 61,050 at P 21.

    80. As to the question of responsible entity liability for vendor noncompliance, NERC explains that “any resulting obligation that a supplier, vendor or other entity accepts in providing products or services to the registered entity is a contractual matter between the registered entity and the third party outside the scope of the proposed Reliability Standard[.]” 116 The security objective of the supply chain risk management Reliability Standards is to “ensure that [r]esponsible [e]ntities consider the security, integrity, quality, and resilience of the supply chain, and take appropriate mitigating action when procuring BES Cyber Systems to address threats and vulnerabilities in the supply chain.” 117 Therefore, while a responsible entity is not directly liable for vendor actions, the responsible entity is required to mitigate any resulting risks. Finally, the supply chain risk management Reliability Standards do not dictate a responsible entity's contracting decision.

    116 NERC Petition at 17.

    117Id. at 13.

    81. As to the term “system-to-system,” NERC explains that the objective of Reliability Standard CIP-005-6, Requirement R2.4 is for entities to have visibility of active vendor remote access sessions, including Interactive Remote Access and system-to-system remote access, taking place on their system.118 Reliability Standard CIP-005-6 requires entities to have a method to determine all active vendor remote access sessions.119

    118Id. at 31.

    119See Reliability Standard CIP-005-6 at 28.

    III. Information Collection Statement

    82. The FERC-725B information collection requirements contained in this final rule are subject to review by the Office of Management and Budget (OMB) under section 3507(d) of the Paperwork Reduction Act of 1995.120 OMB's regulations require approval of certain information collection requirements imposed by agency rules.121 Upon approval of a collection of information, OMB will assign an OMB control number and expiration date. Respondents subject to the filing requirements of this rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number. In the NOPR, the Commission solicited comments on the Commission's need for this information, whether the information will have practical utility, the accuracy of the burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected or retained, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. The Commission did not receive any comments on the specific burden estimates discussed below.

    120 44 U.S.C. 3507(d).

    121 5 CFR 1320.11.

    83. The Commission bases its paperwork burden estimates on the changes in paperwork burden presented by the approved CIP Reliability Standard CIP-013-1 and the approved revisions to CIP Reliability Standard CIP-005-6 and CIP-010-3 as compared to the current Commission-approved Reliability Standards CIP-005-5 and CIP-010-2, respectively. As discussed above, the final rule addresses several areas of the CIP Reliability Standards through Reliability Standard CIP-013-1, Requirements R1, R2, and R3. Under Requirement R1, responsible entities would be required to have one or more processes to address the following baseline set of security concepts, as applicable, in their procurement activities for high and medium impact BES Cyber Systems: (1) Vendor security event notification processes (Part 1.2.1); (2) coordinated incident response activities (Part 1.2.2); (3) vendor personnel termination notification for employees with access to remote and onsite systems (Part 1.2.3); (4) product/services vulnerability disclosures (Part 1.2.4); (5) verification of software integrity and authenticity (Part 1.2.5); and (6) coordination of vendor remote access controls (Part 1.2.6). Requirement R2 mandates that each responsible entity implement its supply chain cybersecurity risk management plan. Requirement R3 requires a responsible entity to review and obtain the CIP Senior Manager's approval of its supply chain risk management plan at least once every 15 calendar months in order to ensure that the plan remains up-to-date.

    84. Separately, Reliability Standard CIP-005-6, Requirement R2.4 requires one or more methods for determining active vendor remote access sessions, including Interactive Remote Access and system‐to‐system remote access. Reliability Standard CIP-005-6, Requirement R2.5 requires one or more methods to disable active vendor remote access, including Interactive Remote Access and system‐to‐system remote access. Reliability Standard CIP-010-3, Requirement R1.6 requires responsible entities to verify software integrity and authenticity in the operational phase, if the software source provides a method to do so.

    85. The NERC Compliance Registry, as of December 2017, identifies approximately 1,250 unique U.S. entities that are subject to mandatory compliance with Reliability Standards. Of this total, we estimate that 288 entities will face an increased paperwork burden under the approved Reliability Standards CIP-013-1, CIP-005-6, and CIP-010-3. Based on these assumptions, we estimate the following reporting burden:

    RM17-13-000 Final Rule [Mandatory Reliability Standards for Critical Infrastructure Protection Reliability Standards] Number of
  • respondents
  • Annual
  • number of
  • responses per
  • respondent
  • Total number of responses Average burden & cost per
  • response 122
  • Total annual
  • burden hours
  • & total annual cost
  • Cost per
  • respondent
  • ($)
  • (1) (2) (1) * (2) = (3) (4) (3) * (4) = (5) (5) ÷ (1) Create supply chain risk management plan (one-time) 123 (CIP-013-1 R1) 288 1 288 546 hrs.; $44,226 157,248 hrs.; $12,737,088 $44,226 Updates and reviews of supply chain risk management plan (ongoing) 124 (CIP-013-1 R2) 288 1 288 30 hrs.; 2,430 8,640 hrs.; 699,840 2,430 Develop Procedures to update remote access requirements (one time) (CIP-005-6 R1-R4) 288 1 288 50 hrs.; 4,050 14,400 hrs.; 1,166,400 4,050 Develop procedures for software integrity and authenticity requirements (one time) (CIP-010-3 R1-R4) 288 1 288 50 hrs.; 4,050 14,400 hrs.; 1,166,400 4,050 Total (one-time) 864 186,048 hrs.; 15,069,888 Total (ongoing) 288 8,640 hrs.; 699,840

    The one-time burden of 186,048 hours will be averaged over three years (186,048 hours ÷ 3 = 62,016 hours/year over three years).

    122 The loaded hourly wage figure (includes benefits) is based on the average of the occupational categories for 2017 found on the Bureau of Labor Statistics website (http://www.bls.gov/oes/current/naics2_22.htm):

    Legal (Occupation Code: 23-0000): $143.68.

    Information Security Analysts (Occupation Code 15-1122): $61.55.

    Computer and Information Systems Managers (Occupation Code: 11-3021): $96.51.

    Management (Occupation Code: 11-0000): $94.28.

    Electrical Engineer (Occupation Code: 17-2071): $66.90.

    Management Analyst (Code: 43-0000): $63.32.

    These various occupational categories are weighted as follows: [($94.28)(.10) + ($61.55)(.315) + ($66.90)(.02) + ($143.68)(.15) + ($96.51)(.10) + ($63.32)(.315)] = $81.30. The figure is rounded to $81.00 for use in calculating wage figures in this final rule.

    123 One-time burdens apply in Year One only.

    124 Ongoing burdens apply in Year 2 and beyond.

    .

    The ongoing burden of 8,640 hours applies to only Years 2 and beyond.

    The number of responses is also average over three years (864 responses (one-time) + (288 responses (Year 2) + 288 responses (Year 3)) ÷ 3 = 480 responses.

    The responses and burden for Years 1-3 will total respectively as follows:

    • Year 1: 480 responses; 62,016 hours • Year 2: 480 responses; 62,016 hours + 8,640 hours = 70,656 hours • Year 3: 480 responses; 62,016 hours + 8,640 hours = 70,656 hours.

    86. The following shows the annual cost burden for each year, based on the burden hours in the table above:

    • Year 1: $15,069,888

    • Years 2 and beyond: $699,840

    • The paperwork burden estimate includes costs associated with the initial development of a policy to address requirements relating to: (1) Developing the supply chain risk management plan; (2) updating the procedures related to remote access requirements (3) developing the procedures related to software integrity and authenticity. Further, the estimate reflects the assumption that costs incurred in year 1 will pertain to plan and procedure development, while costs in years 2 and 3 will reflect the burden associated with maintaining the supply chain risk management plan and modifying it as necessary on a 15-month basis.

    87. Title: FERC-725B (Mandatory Reliability Standards, Revised Critical Infrastructure Protection Reliability Standards).

    Action: Information Collection, FERC-725B (Supply Chain Risk Management Reliability Standards).

    OMB Control No.: 1902-0248.

    Respondents: Businesses or other for-profit institutions; not-for-profit institutions.

    Frequency of Responses: On Occasion.

    Necessity of the Information: This final rule approves the requested modifications to Reliability Standards pertaining to critical infrastructure protection. As discussed above, the Commission approves NERC's CIP Reliability Standards CIP-013-1, CIP-005-6, and CIP-010-3 pursuant to section 215(d)(2) of the FPA because they improve upon the currently-effective suite of cybersecurity CIP Reliability Standards.

    Internal Review: The Commission has reviewed the approved Reliability Standards and made a determination that its action is necessary to implement section 215 of the FPA.

    88. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director, email: [email protected], phone: (202) 502-8663, fax: (202) 273-0873].

    89. For submitting comments concerning the collection(s) of information and the associated burden estimate(s), please send your comments to the Commission, and to the Office of Management and Budget, Office of Information and Regulatory Affairs, 725 17th Street NW, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission, phone: (202) 395-4638, fax: (202) 395-7285]. For security reasons, comments to OMB should be submitted by email to: [email protected] Comments submitted to OMB should include Docket Number RM17-13-000 and OMB Control Number 1902-0248.

    IV. Environmental Analysis

    90. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.125 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Included in the exclusion are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended.126 The actions taken herein fall within this categorical exclusion in the Commission's regulations.

    125Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, FERC Stats. & Regs. ¶ 30,783 (1987).

    126 18 CFR 380.4(a)(2)(ii).

    V. Regulatory Flexibility Act Analysis

    91. The Regulatory Flexibility Act of 1980 (RFA) generally requires a description and analysis of proposed rules that will have significant economic impact on a substantial number of small entities.127 The Small Business Administration's (SBA) Office of Size Standards develops the numerical definition of a small business.128 The SBA revised its size standard for electric utilities (effective January 22, 2014) to a standard based on the number of employees, including affiliates (from the prior standard based on megawatt hour sales).129

    127 5 U.S.C. 601-12.

    128 13 CFR 121.101.

    129 13 CFR 121.201, Subsector 221.

    92. Reliability Standards CIP-013-1, CIP-005-6, CIP-010-3 are expected to impose an additional burden on 288 entities 130 (reliability coordinators, generator operators, generator owners, interchange coordinators or authorities, transmission operators, balancing authorities, and transmission owners).

    130 Public utilities may fall under one of several different categories, each with a size threshold based on the company's number of employees, including affiliates, the parent company, and subsidiaries. For the analysis in this NOPR, we are using a 500 employee threshold due to each affected entity falling within the role of Electric Bulk Power Transmission and Control (NAISC Code: 221121).

    93. Of the 288 affected entities discussed above, we estimate that approximately 248 or 86.2 percent of the affected entities are small entities. We estimate that each of the 248 small entities to whom the approved modifications to Reliability Standards CIP-013-1, CIP-005-6, and CIP-010-3 apply will incur one-time costs of approximately $52,326 per entity to implement the approved Reliability Standards, as well as the ongoing paperwork burden reflected in the Information Collection Statement (approximately $2,430 per year per entity). We do not consider the estimated costs for these 248 small entities to be a significant economic impact. Accordingly, we certify that Reliability Standards CIP-013-1, CIP-005-6, and CIP-010-3 will not have a significant economic impact on a substantial number of small entities.

    VI. Document Availability

    94. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE, Room 2A, Washington, DC 20426.

    95. From the Commission's Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number of this document, excluding the last three digits, in the docket number field. User assistance is available for eLibrary and the Commission's website during normal business hours from the Commission's Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected]

    VII. Effective Date and Congressional Notification

    96. The final rule is effective December 26, 2018. The Commission has determined that this final rule imposes no substantial effect upon either NERC or NERC registered entities 131 and, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. This final rule is being submitted to the Senate, House, and Government Accountability Office.

    131 5 U.S.C. 804(3)c.

    By the Commission. Chairman McIntyre was not present at the Commission Meeting held on October 18, 2018 and did not vote on this item.

    Issued: October 18, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    Note:

    The following appendix will not appear in the Code of Federal Regulations.

    Appendix Commenters Abbreviation Commenter AECC Arkansas Electric Cooperative Corporation. Appelbaum Jonathan Appelbaum. APS Arizona Public Service Company. EEI Edison Electric Institute. Idaho Power Idaho Power Company. IRC ISO/RTO Council. Isologic Isologic LLC. ITC International Transmission Company. Mabee Michael Mabee. MISO TOs MISO Transmission Owners. MPUC Maine Public Utilities Commission. NERC North American Electric Reliability Corporation. Reclamation U.S. Bureau of Reclamation. Resilient Societies Foundation for Resilient Societies. Trade Associations American Public Power Association, Electricity Consumers Resource Council, Large Public Power Council, National Rural Electric Cooperative Association, and Transmission Access Policy Study Group.
    [FR Doc. 2018-23201 Filed 10-25-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 868 [Docket No. FDA-2018-N-3729] Medical Devices; Anesthesiology Devices; Classification of the High Flow Humidified Oxygen Delivery Device AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is classifying the high flow humidified oxygen delivery device into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the high flow humidified oxygen delivery device's classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.

    DATES:

    This order is effective October 26, 2018. The classification was applicable on April 10, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Derya Coursey, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 2563, Silver Spring, MD 20993-0002, 240-402-6130, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    Upon request, FDA has classified the high flow humidified oxygen delivery device as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.

    The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).

    FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).

    FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.

    Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).

    Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.

    Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.

    We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see 21 U.S.C. 360c(f)(2)(B)(i)). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application to market a substantially equivalent device (see 21 U.S.C. 360c(i), defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.

    II. De Novo Classification

    On January 3, 2017, Vapotherm, Inc. submitted a request for De Novo classification of the Precision Flow® HVNI. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.

    We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.

    Therefore, on April 10, 2018, FDA issued an order to the requester classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 868.5454. We have named the generic type of device high flow humidified oxygen delivery device, and it is identified as a prescription device that delivers high flow oxygen with humidification for patients who are suffering from respiratory distress and/or hypoxemia.

    FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.

    Table 1—High Flow Humidified Oxygen Delivery Device Risks and Mitigation Measures Identified risks Mitigation measures Adverse tissue reaction Biocompatibility evaluation, Non-clinical performance testing, and Labeling. Interference with other devices Electromagnetic compatibility testing, Radiofrequency identification testing, and Labeling. Infection Cleaning validation and Labeling. Device software failure leading to delayed initiation of therapy Software verification, validation, and hazard analysis; and Labeling. Device failure/malfunction leading to ineffective treatment Non-clinical performance testing and Labeling. Electrical shock injury from device failure Electrical safety, thermal safety, and mechanical safety testing. Use error/improper device use leading to hypoxia or worsening hypercarbia Labeling.

    FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.

    At the time of classification, high flow humidified oxygen delivery devices are for prescription use only. Prescription devices are exempt from the requirement for adequate directions for use for the layperson under section 502(f)(1) of the FD&C Act (21 U.S.C. 352(f)(1)) and 21 CFR 801.5, as long as the conditions of 21 CFR 801.109 are met (referring to 21 U.S.C. 352(f)(1)).

    III. Analysis of Environmental Impact

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

    IV. Paperwork Reduction Act of 1995

    This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in the guidance document “De Novo Classification Process (Evaluation of Automatic Class III Designation)” have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485.

    List of Subjects in 21 CFR Part 868

    Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 868 is amended as follows:

    PART 868—ANESTHESIOLOGY DEVICES 1. The authority citation for part 868 continues to read as follows: Authority:

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

    2. Add § 868.5454 to subpart F to read as follows:
    § 868.5454 High flow humidified oxygen delivery device.

    (a) Identification. A high flow humidified oxygen delivery device is a prescription device that delivers high flow oxygen with humidification for patients who are suffering from respiratory distress and/or hypoxemia.

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

    (1) The patient-contacting components of the device must be demonstrated to be biocompatible.

    (2) Non-clinical performance testing must demonstrate that the device performs as intended under anticipated conditions for use, including the following:

    (i) Alarm testing must be performed;

    (ii) Continuous use thermal stability testing must be performed;

    (iii) Humidity output testing must be performed; and

    (iv) Blender performance testing must evaluate fraction of inspired oxygen (FiO2) blending accuracy.

    (3) Performance data must validate cleaning instructions for any reusable components of the device.

    (4) Electrical safety, thermal safety, mechanical safety, electromagnetic compatibility, and radiofrequency identification testing must be performed.

    (5) Software verification, validation, and hazard analysis must be performed.

    (6) Labeling must include:

    (i) A description of available FiO2 ranges for different flowrates and inlet gas pressures;

    (ii) Instructions for applicable flowrates for all intended populations;

    (iii) A warning that patients on high flow oxygen are acute and require appropriate monitoring, to include pulse oximetry;

    (iv) A warning regarding the risk of condensation at low set temperatures and certain flows; and

    (v) A description of all alarms and their functions.

    Dated: October 22, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-23409 Filed 10-25-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 874 [Docket No. FDA-2018-N-3772] Medical Devices; Ear, Nose, and Throat Devices; Classification of the Active Implantable Bone Conduction Hearing System AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is classifying the active implantable bone conduction hearing system into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the active implantable bone conduction hearing system's classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.

    DATES:

    This order is effective October 26, 2018. The classification was applicable on July 20, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Oldooz Hazrati, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 2455, Silver Spring, MD 20993-0002, 240-402-9903, [email protected].

    SUPPLEMENTARY INFORMATION: I. Background

    Upon request, FDA has classified the active implantable bone conduction hearing system as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.

    The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).

    FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).

    FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.

    Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).

    Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.

    Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.

    We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see 21 U.S.C. 360c(f)(2)(B)(i)). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application to market a substantially equivalent device (see 21 U.S.C. 360c(i), defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.

    II. De Novo Classification

    On February 16, 2017, MED-EL Elektromedizinische Geraete GmbH submitted a request for De Novo classification of the BONEBRIDGE. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.

    We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.

    Therefore, on July 20, 2018, FDA issued an order to the requester classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 874.3340. We have named the generic type of device active implantable bone conduction hearing system, and it is identified as a prescription device consisting of an implanted transducer, implanted electronics components, and an audio processor. The active implantable bone conduction hearing system is intended to compensate for conductive or mixed hearing losses by conveying amplified acoustic signals to the cochlea via mechanical vibrations on the skull bone.

    FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.

    Table 1—Active Implantable Bone Conduction Hearing System Risks and Mitigation Measures Identified risks Mitigation measures Dural erosion or compression resulting from failure to confirm adequate thickness and consistency of bone and related anatomy Labeling. Surgical complications leading to: • Bleeding/hematoma • Seizures • Cerebrospinal fluid (CSF) leak • Implant damage or migration leading to revision/explantation Clinical performance testing and Labeling. Device software failure Software verification, validation, and hazard analysis. Implant failure due to: • Fatigue • Damage/breakage • Loss of hermeticity Clinical performance testing and Non-clinical performance testing. Device failure to compensate for hearing loss Clinical performance testing and Non-clinical performance testing. Interference with other devices Electromagnetic compatibility testing, Wireless coexistence testing, Electrical safety testing, and Labeling. Adverse tissue reaction Biocompatibility evaluation and Labeling. Infection Sterilization validation, Shelf life testing, and Labeling.

    FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.

    At the time of classification, active implantable bone conduction hearing systems are for prescription use only. Prescription devices are exempt from the requirement for adequate directions for use for the layperson under section 502(f)(1) of the FD&C Act (21 U.S.C. 352(f)(1)) and 21 CFR 801.5, as long as the conditions of 21 CFR 801.109 are met (referring to 21 U.S.C. 352(f)(1)).

    III. Analysis of Environmental Impact

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

    IV. Paperwork Reduction Act of 1995

    This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in the guidance document “De Novo Classification Process (Evaluation of Automatic Class III Designation)” have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485.

    List of Subjects in 21 CFR Part 874

    Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 874 is amended as follows:

    PART 874—EAR, NOSE, AND THROAT DEVICES 1. The authority citation for part 874 is revised to read as follows: Authority:

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

    2. Add § 874.3340 to subpart D to read as follows:
    § 874.3340 Active implantable bone conduction hearing system.

    (a) Identification. An active implantable bone conduction hearing system is a prescription device consisting of an implanted transducer, implanted electronics components, and an audio processor. The active implantable bone conduction hearing system is intended to compensate for conductive or mixed hearing losses by conveying amplified acoustic signals to the cochlea via mechanical vibrations on the skull bone.

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

    (1) Clinical performance testing must characterize any adverse events observed during implantation and clinical use, and must also demonstrate that the device performs as intended under anticipated conditions of use.

    (2) Non-clinical performance testing must demonstrate that the device performs as intended under anticipated conditions of use, including the following:

    (i) Performance data must validate force output in a clinically relevant model.

    (ii) Impact testing in a clinically relevant anatomic model must be performed.

    (iii) Mechanical integrity testing must be performed.

    (iv) Reliability testing consistent with expected device life must be performed.

    (3) The patient-contacting components of the device must be demonstrated to be biocompatible.

    (4) Performance data must demonstrate the sterility of the patient-contacting components of the device.

    (5) Performance data must support the shelf life of the device by demonstrating continued sterility, package integrity, and device functionality over the identified shelf life.

    (6) Performance data must demonstrate the wireless compatibility, electromagnetic compatibility, and electrical safety of the device.

    (7) Software verification, validation, and hazard analysis must be performed.

    (8) Labeling must include:

    (i) A summary of clinical testing conducted with the device that includes a summary of device-related complications and adverse events;

    (ii) Instructions for use;

    (iii) A surgical guide for implantation, which includes instructions for imaging to assess bone dimensions;

    (iv) A shelf life, for device components provided sterile;

    (v) A patient identification card; and

    (vi) A patient user manual.

    Dated: October 22, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-23412 Filed 10-25-18; 8:45 am] BILLING CODE 4164-01-P
    LIBRARY OF CONGRESS U.S. Copyright Office 37 CFR Part 201 [Docket No. 2017-10] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies AGENCY:

    U.S. Copyright Office, Library of Congress.

    ACTION:

    Final rule.

    SUMMARY:

    In this final rule, the Librarian of Congress adopts exemptions to the provision of the Digital Millennium Copyright Act (“DMCA”) that prohibits circumvention of technological measures that control access to copyrighted works, codified in the United States Code. As required under the statute, the Acting Register of Copyrights, following a public proceeding, submitted a Recommendation concerning proposed exemptions to the Librarian of Congress. After careful consideration, the Librarian adopts final regulations based upon the Acting Register's Recommendation.

    DATE:

    Effective October 28, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Regan A. Smith, General Counsel and Associate Register of Copyrights, by email at [email protected], Anna Chauvet, Assistant General Counsel, by email at [email protected], or Kevin Amer, Senior Counsel for Policy and International Affairs, by email at [email protected] Each can be contacted by telephone by calling (202) 707-8350.

    SUPPLEMENTARY INFORMATION:

    The Librarian of Congress, pursuant to section 1201(a)(1) of title 17, United States Code, has determined in this seventh triennial rulemaking proceeding that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply to persons who engage in noninfringing uses of certain classes of such works. This determination is based upon the Recommendation of the Acting Register of Copyrights, which was transmitted to the Librarian on October 5, 2018.1

    1 Acting Register of Copyrights, Section 1201 Rulemaking: Seventh Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Acting Register of Copyrights (Oct. 2018) (“Acting Register's Recommendation”).

    The below discussion summarizes the rulemaking proceeding and Register's Recommendation, announces the Librarian's determination, and publishes the regulatory text specifying the exempted classes of works. A more complete discussion of the rulemaking process, the evidentiary record, and the Acting Register's analysis can be found in the Acting Register's Recommendation, which is posted at www.copyright.gov/1201/2018/.

    I. Background A. Statutory Requirements

    Congress enacted the DMCA in 1998 to implement certain provisions of the WIPO Copyright and WIPO Performances and Phonograms Treaties. Among other things, title I of the DMCA, which added a new chapter 12 to title 17 of the U.S. Code, prohibits circumvention of technological measures employed by or on behalf of copyright owners to protect access to their works. In enacting this aspect of the law, Congress observed that technological protection measures (“TPMs”) can “support new ways of disseminating copyrighted materials to users, and . . . safeguard the availability of legitimate uses of those materials by individuals.” 2

    2 Staff of H. Comm. on the Judiciary, 105th Cong., Section-by-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4, 1998, at 7 (Comm. Print 1998).

    Section 1201(a)(1) provides in pertinent part that “[n]o person shall circumvent a technological measure that effectively controls access to a work protected under [title 17].” Under the statute, to “circumvent a technological measure” means “to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” 3 A technological measure that “effectively controls access to a work” is one that “in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.” 4

    3 17 U.S.C. 1201(a)(3)(A).

    4Id. at 1201(a)(3)(B).

    Section 1201(a)(1) also includes what Congress characterized as a “fail-safe” mechanism,5 which requires the Librarian of Congress, following a rulemaking proceeding, to publish any class of copyrighted works as to which the Librarian has determined that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected by the prohibition against circumvention in the succeeding three-year period, thereby exempting that class from the prohibition for that period.6 The Librarian's determination to grant an exemption is based upon the recommendation of the Register of Copyrights, who conducts the rulemaking proceeding.7 The Register, in turn, consults with the Assistant Secretary for Communications and Information of the Department of Commerce, who oversees the National Telecommunications and Information Administration (“NTIA”), in the course of formulating her recommendation.8

    5See H.R. Rep. No. 105-551, pt. 2, at 36 (1998) (“Commerce Comm. Report”).

    6See 17 U.S.C. 1201(a)(1).

    7Id. at 1201(a)(1)(C).

    8Id.

    The primary responsibility of the Register and the Librarian in the rulemaking proceeding is to assess whether the implementation of access controls impairs the ability of individuals to make noninfringing uses of copyrighted works within the meaning of section 1201(a)(1). To do this, the Register develops a comprehensive administrative record using information submitted by interested members of the public, and makes recommendations to the Librarian concerning whether exemptions are warranted based on that record.

    Under the statutory framework, the Librarian, and thus the Register, must consider “(i) the availability for use of copyrighted works; (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (v) such other factors as the Librarian considers appropriate.” 9

    9Id.

    Significantly, exemptions adopted by rule under section 1201(a)(1) apply only to the conduct of circumventing a technological measure that controls access to a copyrighted work. Other parts of section 1201, by contrast, address the manufacture and provision of—or “trafficking” in—products and services designed for purposes of circumvention. Section 1201(a)(2) bars trafficking in products and services that are used to circumvent technological measures that control access to copyrighted works (for example, a password needed to open a media file),10 while section 1201(b) bars trafficking in products and services used to circumvent technological measures that protect the exclusive rights of the copyright owner in their works (for example, technology that prevents the work from being reproduced).11 The Librarian of Congress has no authority to adopt exemptions for the anti-trafficking prohibitions contained in section 1201(a)(2) or (b).12 More broadly, activities conducted under the regulatory exemptions must still comply with other applicable laws, including non-copyright provisions.

    10Id. at 1201(a)(2).

    11Id. at 1201(b).

    12See id. at 1201(a)(1)(E) (“Neither the exception under subparagraph (B) from the applicability of the prohibition contained in subparagraph (A), nor any determination made in a rulemaking conducted under subparagraph (C), may be used as a defense in any action to enforce any provision of this title other than this paragraph.”).

    Also significant is the fact that the statute contains certain permanent exemptions to permit specified uses. These include: Section 1201(d), which exempts certain activities of nonprofit libraries, archives, and educational institutions; section 1201(e), which exempts “lawfully authorized investigative, protective, information security, or intelligence activity” of a state or the federal government; section 1201(f), which exempts certain “[r]everse engineering” activities to facilitate interoperability; section 1201(g), which exempts certain types of research into encryption technologies; section 1201(h), which exempts certain activities to prevent the “access of minors to material on the internet”; section 1201(i), which exempts certain activities “solely for the purpose of preventing the collection or dissemination of personally identifying information”; and section 1201(j), which exempts certain acts of “security testing” of computers and computer systems.

    C. Rulemaking Standards

    In adopting the DMCA, Congress imposed legal and evidentiary requirements for the section 1201 rulemaking proceeding, as discussed in greater detail in the Acting Register's Recommendation and the Copyright Office's recent policy study on section 1201.13 The Register will recommend granting an exemption only “when the preponderance of the evidence in the record shows that the conditions for granting an exemption have been met.” 14 “[I]t is the totality of the rulemaking record (i.e., the evidence provided by commenters or administratively noticed by the Office) that must, on balance, reflect the need for an exemption by a preponderance of the evidence. Such evidence must, on the whole, show that it is more likely than not that users of a copyrighted work will, in the succeeding three‐year period, be adversely affected by the prohibition on circumvention in their ability to make noninfringing uses of a particular class of copyrighted works.” 15

    13 Acting Register's Recommendation at 9-19; U.S. Copyright Office, Section 1201 of Title 17 105-15 (2017), https://www.copyright.gov/policy/1201/section-1201-full-report.pdf (“Section 1201 Report”).

    14 Section 1201 Report at 111; accord Register of Copyrights, Section 1201 Rulemaking: Sixth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Register of Copyrights 14 (Oct. 2015). References to the Register's Recommendations in prior rulemakings are cited by the year of publication followed by “Recommendation” (e.g., “2015 Recommendation”). Prior Recommendations are available on the Copyright Office website at https://www.copyright.gov/1201/.

    15 Section 1201 Report at 112.

    To establish a case for an exemption, proponents must show at a minimum (1) that uses affected by the prohibition on circumvention are or are likely to be noninfringing; and (2) that as a result of a technological measure controlling access to a copyrighted work, the prohibition is causing, or in the next three years is likely to cause, an adverse impact on those uses. In addition, the Librarian must also examine the statutory factors listed in section 1201(a)(1)(C): “(i) The availability for use of copyrighted works; (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (v) such other factors as the Librarian considers appropriate.” In some cases, weighing these factors requires the consideration of the benefits that the technological measure brings with respect to the overall creation and dissemination of works in the marketplace, in addition to any negative impact.

    Finally, when granting an exemption, section 1201(a)(1) specifies that the exemption adopted as part of this rulemaking must be defined based on “a particular class of works.” 16 Among other things, the determination of the appropriate scope of a “class of works” recommended for exemption may also take into account the adverse effects an exemption may have on the market for or value of copyrighted works. Accordingly, “it can be appropriate to refine a class by reference to the use or user in order to remedy the adverse effect of the prohibition and to limit the adverse consequences of an exemption.” 17

    16 17 U.S.C. 1201(a)(1)(B).

    17 2006 Recommendation at 19.

    D. Streamlined Renewal Process

    Following a comprehensive policy study, and in response to stakeholder feedback, for this seventh triennial proceeding, the Office introduced a streamlined process to renew section 1201 exemptions adopted during the 2015 rulemaking.18 Previously, in recognition of legislative history stating that the basis of an exemption should be established de novo in each triennial proceeding,19 the Office had required the factual record be developed anew in each rulemaking.20 In its Section 1201 Report, the Office evaluated the possibility of a renewal process, noting a “broad consensus in favor of streamlining the process for renewing exemptions to which there is no meaningful opposition.” 21 As described in further detail in that report, the Office ultimately concluded that “the statutory language appears to be broad enough to permit determinations to be based upon evidence drawn from prior proceedings, but only upon a conclusion that this evidence remains reliable to support granting an exemption in the current proceeding.” 22 The Office concluded that renewal may be sought only for exemptions in their current form, without modification, and that the Register “must apply the same evidentiary standards in recommending the renewal of exemptions as for first- time exemption requests.” 23

    18 Section 1201 Report at 127-28, 145-46.

    19See Commerce Comm. Report at 37 (explaining that for every rulemaking, “the assessment of adverse impacts on particular categories of works is to be determined de novo”).

    20 Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 82 FR 29804, 29805 (June 30, 2017) (“NOI”).

    21 Section 1201 Report at vi.

    22Id. at 143.

    23Id. at 142, 145.

    The Office detailed the renewal process in its notices for this proceeding.24 Streamlined renewal is based upon a determination that, due to a lack of legal, marketplace, or technological changes, the factors that led the Register to recommend adoption of the exemption in the prior rulemaking are expected to continue into the forthcoming triennial period.25 That is, the same material facts and circumstances underlying the previously-adopted regulatory exemption may be relied on to renew the exemption.26 Because the statute itself requires that exemptions must be adopted upon a fresh determination concerning the next three-year period, the fact that the Librarian previously adopted an exemption creates no presumption that readoption is appropriate. Instead, the Office first solicited petitions summarizing the continuing need and justification for the exemption, and petitioners signed a declaration stating that, “to the best of their personal knowledge, there has not been any material change in the facts, law, or other circumstances set forth in the prior rulemaking record such that renewal of the exemption would not be justified.” 27 Next, the Office solicited comments from participants opposing the readoption of the exemption. Opponents were required to provide evidence that would allow the Acting Register to reasonably conclude that the prior rulemaking record and any further information provided in the petitions are insufficient for her to recommend renewal without the benefit of a further developed record. For example, “a change in case law might affect whether a particular use is noninfringing, new technological developments might affect the availability for use of copyrighted works, or new business models might affect the market for or value of copyrighted works.” 28 If the appropriateness of renewing an exemption is meaningfully contested, that exemption would be fully noticed for written comment and public hearing to generate an updated administrative record for the Register to evaluate whether to recommend readoption, modification, or elimination of that exemption to the Librarian.29

    24 NOI, 82 FR at 29805-07; Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 82 FR 49550, 49552 (Oct. 26, 2017) (“NPRM”).

    25 NOI, 82 FR at 29805-06; NPRM, 82 FR at 49552.

    26 Section 1201 Report at 143-44; NOI, 82 FR at 29806; NPRM, 82 FR at 49552.

    27 NPRM, 82 FR at 49552.

    28 Section 1201 Report at 145.

    29See NPRM, 82 FR at 49554 (stating that if a renewal petition is meaningfully opposed, “the exemption would be considered pursuant to the more comprehensive rulemaking process (i.e., three rounds of written comment, followed by public hearings)”).

    The streamlined renewal process elicited favorable responses during the 2018 rulemaking hearings. As detailed below, as a result of this new process, the Acting Register was able to recommend renewal of all exemptions adopted in the 2015 rulemaking, and subsequently consider whether some of them should be modified to accommodate additional new uses through the development of an expanded administrative record.

    II. History of the Seventh Triennial Proceeding

    In this rulemaking, the Copyright Office used the phased comment structure introduced in the last proceeding, to best facilitate a clear and thorough record. As promised in its Section 1201 Report,30 the Office also created video tutorials explaining the rulemaking process, issued the Notice of Proposed Rulemaking (“NPRM”) earlier to give parties more time to participate, and offered increased opportunities for participant input, including through an established procedure for transparent ex parte meetings.

    30 Section 1201 Report at 149-51.

    The Office initiated the seventh triennial rulemaking proceeding through a Notice of Inquiry (“NOI”) on June 30, 2017.31 The NOI requested petitions for renewals, petitions in opposition to renewal, and any petitions for new exemptions. In response, the Office received thirty-nine renewal petitions, five comments regarding the scope of the renewal petitions, and one comment in opposition to renewal of a current exemption.32 The Office also received twenty-three petitions for new exemptions, including seventeen seeking to expand certain current exemptions, and six petitions for new exemptions.

    31 NOI, 82 FR at 29804.

    32 Comments received in this rulemaking are available at http://copyright.gov/1201/2018.

    Next, on October 26, 2017, the Office issued its NPRM identifying the existing exemptions for which the Acting Register intended to recommend renewal, and outlined the proposed classes for new exemptions (including proposed expansions of previously- adopted exemptions) for which three rounds of public comments were initiated.33 Those classes were organized into twelve classes of works. Seven of the twelve proposed exemptions seek expansions of existing exemptions, while five propose new exemptions. The Office received 181 total submissions in response to the NPRM, substantially less than the approximately 40,000 submissions received in the last rulemaking.

    33 NPRM, 82 FR at 49550, 49553-63.

    After analyzing the written comments, the Office held seven days of hearings in Washington, DC (April 10-13) and Los Angeles, California (April 23-25). For the first time, the roundtables at both locations held audience participation panels and were live streamed online. Video recordings for these roundtables are available through the Office's website and YouTube pages.34 In total, the Office heard testimony from seventy-seven individuals. After the hearings, the Office issued questions to hearing participants in four proposed classes and received eighteen responses.35 Subsequently, the Office received an unsolicited letter from the Computer Crime and Intellectual Property Section of the Criminal Division of the United States Department of Justice (“CCIPS”) regarding Proposed Class 10, and the Office solicited comment from Class 10 participants in response.36

    34 Video recordings of the roundtables are available at https://www.copyright.gov/1201/2018/ and https://www.youtube.com/uscopyrightoffice/.

    35 Participant's post-hearing letter responses are available on the Office's website. Responses to Post- Hearing Questions, U.S. Copyright Office, (last visited Oct 2, 2018), https://www.copyright.gov/1201/2018/post-hearing/answers/.

    36 Letter from John T. Lynch, Jr., Chief, Comput. Crime & Intellectual Prop. Section, Criminal Div., U.S. Dep't of Justice, to Regan A. Smith, Gen. Counsel & Assoc. Register of Copyrights, U.S. Copyright Office (June 28, 2018), https://www.copyright.gov/1201/2018/USCO-letters/USDOJ_Letter_to_USCO.pdf; Letter from to Regan A. Smith, Gen. Counsel & Assoc. Register of Copyrights, U.S. Copyright Office, to Class 10 Participants (June 29, 2018), https://www.copyright.gov/1201/2018/additional-correspondence/Proposed_Class_10_Letter.pdf.

    As noted in its NPRM, the Office determined that further informal communications with non-governmental participants might be beneficial in limited circumstances.37 The Office thus established guidelines for ex parte meetings, noting that the Office will not consider or accept any new documentary materials at these meetings, and requiring participants to provide a letter summarizing the meeting for the Office to include in the rulemaking record.38 The Office held nine ex parte meetings with participants concerning five proposed classes.39

    37 NPRM, 82 FR at 49563; see Section 1201 Report at 150-51 (documenting stakeholder desire for such further communication).

    38 NPRM, 82 FR at 49563; Ex Parte Communications, U.S. Copyright Office (last visited Oct. 2, 2018), https://www.copyright.gov/1201/2018/ex-parte-communications.html.

    39See Ex Parte Communications, U.S. Copyright Office, https://www.copyright.gov/1201/2018/ex-parte-communications.html (last visited Oct. 2, 2018).

    As required by section 1201(a)(1), the Acting Register consulted with NTIA during this rulemaking. NTIA provided input at various stages and participated in the public hearings held in Washington, DC and Los Angeles. NTIA formally communicated its views on each of the proposed exemptions to the Acting Register on September 25, 2018.40

    40 NTIA's recommendations can be viewed at https://www.copyright.gov/1201/2018/2018_NTIA_Letter.pdf.

    III. Summary of Register's Recommendation A. Renewal Recommendations

    As set forth in the NPRM, the Acting Register received petitions to renew every one of the exemptions adopted pursuant to the sixth triennial rulemaking. To the extent any renewal petition proposed uses beyond the current exemption, the Office disregarded those portions of the petition for purposes of considering the renewal of the exemption, and instead focused on whether it provided sufficient information to warrant readoption of the exemption in its current form.41 While a single party filed an opposition to renewal, the Acting Register concluded that its opposition was not sufficiently material to undermine the conclusion that the record and legal reasoning from the prior rulemaking supported renewal.42 Finding the renewal petitions sufficient under the guidelines outlined above, the Acting Register thus recommended renewal of each of the existing exemptions.43 The existing exemptions, and the bases for the recommendation to readopt each exemption in accordance with the streamlined renewal process, are summarized below. Where noted, these exemptions served as a baseline for the Acting Register in considering subsequent requests for expansion.

    41See, e.g., NPRM, 82 FR at 49554.

    42Id.

    43 The Acting Register's analysis and conclusions regarding streamlined renewals can be found in the NPRM. See id. at 49552-58.

    1. Literary Works Distributed Electronically—Assistive Technologies

    Multiple organizations petitioned to renew the exemption for literary works distributed electronically (i.e., e-books), for use with assistive technologies for persons who are blind, visually impaired, or have print disabilities. No oppositions were filed against readoption of this exemption. The petitions demonstrated the continuing need and justification for the exemption, stating that individuals who are blind, visually impaired, or print disabled are significantly disadvantaged with respect to obtaining accessible e-book content because TPMs interfere with the use of assistive technologies such as screen readers and refreshable Braille displays. In addition, the petitioners demonstrated personal knowledge and experience with regard to the assistive technology exemption; they are all organizations that advocate for the blind, visually impaired, and print disabled.

    Accordingly, the Acting Register recommends renewal of the following exemption:

    Literary works, distributed electronically, that are protected by technological measures that either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies:

    (i) When a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, that the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels; or

    (ii) When such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121.

    2. Literary Works—Compilations of Data Generated by Implanted Medical Devices—To Access Personal Data

    Hugo Campos, member of the Coalition of Medical Device Patients and Researchers, and represented by the Harvard Law School Cyberlaw Clinic, petitioned to renew the exemption covering access to patient data on networked medical devices. No oppositions were filed against the petition to renew this exemption. Mr. Campos's petition demonstrated the continuing need and justification for the exemption, stating that patients continue to need access to data output from their medical devices to manage their health. Mr. Campos himself is a patient needing access to the data output from his medical device.

    Accordingly, the Acting Register recommends renewal of the following exemption:

    Literary works consisting of compilations of data generated by medical devices that are wholly or partially implanted in the body or by their corresponding personal monitoring systems, where such circumvention is undertaken by a patient for the sole purpose of lawfully accessing the data generated by his or her own device or monitoring system and does not constitute a violation of applicable law, including without limitation the Health Insurance Portability and Accountability Act of 1996, the Computer Fraud and Abuse Act of 1986 or regulations of the Food and Drug Administration, and is accomplished through the passive monitoring of wireless transmissions that are already being produced by such device or monitoring system.

    3. Computer Programs—“Unlocking” of Cellphones, Tablets, Mobile Hotspots, or Wearable Devices

    Multiple organizations petitioned to renew the exemption for computer programs that operate cellphones, tablets, mobile hotspots, or wearable devices (e.g., smartwatches), to allow connection of a used device to an alternative wireless network (“unlocking”). No oppositions were filed against the petitions seeking to renew this exemption. The petitions demonstrated the continuing need and justification for the exemption, stating that consumers of the enumerated products continue to need to be able to unlock the devices so they can switch network providers. For example, the Institute of Scrap Recycling Industries, Inc. (“ISRI”) stated that its members continue to purchase or acquire donated cell phones and tablets, and try to reuse them, but that wireless carriers still lock devices to prevent them from being used on other carriers. In addition, the petitioners demonstrated personal knowledge and experience with regard to this exemption: Competitive Carriers Association, Owners' Rights Initiative (“ORI”), and ISRI represent companies that rely on the ability to unlock cellphones.

    Accordingly, the Acting Register recommends renewal of this exemption and will consider proposed expansions below in the discussion on Proposed Class 5.

    4. Computer Programs—“Jailbreaking” of Smartphones, Smart TVs, Tablets, or Other All-Purpose Mobile Computing Devices

    Multiple organizations petitioned to renew the exemptions for computer programs that operate smartphones, smart TVs, tablets, or other all-purpose mobile computing devices, to allow the device to interoperate with or to remove software applications (“jailbreaking”). The petitions demonstrate the continuing need and justification for the exemptions, and that petitioners had personal knowledge and experience with regard to these exemptions. Specifically, the petitions state that, absent the exemptions, TPMs applied to the enumerated products would have an adverse effect on noninfringing uses, such as being able to install third-party applications on a smartphone or to download third-party software on a smart TV to enable interoperability. For example, the Electronic Frontier Foundation's (“EFF's”) petition outlined its declarant's experience searching current mobile computing device markets and technologies, working as a software engineer, and participating in four prior 1201 rulemakings. Similarly, the Libiquity petition was submitted by a person who “work[s] with the operating system and many of the system libraries that lie at the core of the firmware systems of a large majority of smartphones, portable all-purpose mobile computing devices, and smart televisions.” In a brief two-page comment, BSA | The Software Alliance (“BSA”) opposed the readoption of this exemption, asserting that “alternatives to circumvention exist,” and that “jailbreaking can undermine the integrity and security of a platform's operating system in a manner that facilitates copyright infringement and exposes users to heightened risks of privacy violations.”

    In the NPRM, the Office concluded that BSA's opposition was not sufficient to draw the conclusion that the past rulemaking record is no longer reliable, or that the reasoning adopted in the Register's 2015 Recommendation cannot be relied upon for the next three-year period. Specifically, the Office stated that BSA's comment largely re-articulated a general opposition to a jailbreaking exemption, and noted that the past three rulemakings have adopted some form of an exemption for jailbreaking certain types of mobile computing devices. The Office also noted that BSA had failed to identify any specific circumvention alternatives, changes in case law, new technological developments, or new issues that had not already been considered and evaluated in granting the exemption previously.

    Accordingly, the Acting Register recommends renewal of this exemption and will consider proposed expansions below in the discussion on Proposed Class 6.

    5. Computer Programs—Diagnosis, Repair, and Lawful Modification of Motorized Land Vehicles

    Multiple organizations petitioned to renew the exemption for computer programs that control motorized land vehicles, including farm equipment, for purposes of diagnosis, repair, and modification of the vehicle. The petitions demonstrated the continuing need and justification for the exemption to prevent owners of motorized land vehicles from being adversely impacted in their ability to diagnose, repair, and modify their vehicles as a result of TPMs that protect the copyrighted computer programs on the electronic control units (“ECUs”) that control the functioning of the vehicles. Indeed, the Motor & Equipment Manufacturers Association, which during the sixth triennial rulemaking initially opposed any exemption that would impact the software and TPMs in vehicles, now supports the exemption as striking an appropriate balance between encouraging marketplace competition and innovation while mitigating the impact on safety, regulatory, and environmental compliance. The petitioners demonstrated personal knowledge and experience with regard to this exemption; each either represents or gathered information from individuals conducting repairs or businesses that manufacture, distribute, and sell motor vehicle parts, and perform vehicle service and repair.

    Accordingly, the Acting Register recommends renewal of this exemption and will consider proposed expansions below in the discussion on Proposed Class 7.

    6. Computer Programs—Security Research

    Multiple organizations and security researchers petitioned to renew the exemption for purposes of good-faith security research. The petitioners demonstrated the continuing need and justification for the exemption, and personal knowledge and experience with regard to this exemption. For example, Professors Bellovin, Blaze, and Heninger stated that they have conducted their own security research in reliance on the existing exemption, and that they “regularly engage” with other security researchers who have similarly relied on the exemption. They provided an example of a recent computer security conference in which thousands of participants relied on the existing exemption to examine and test electronic voting devices—the results of which were reported to election officials to improve the security of their voting systems.

    Accordingly, the Acting Register recommends renewal of this exemption and will consider proposed expansions below in the discussion on Proposed Class 10.

    7. Computer Programs—3D Printers

    Michael Weinberg and ORI jointly petitioned to renew the exemption for computer programs that operate 3D printers to allow use of alternative feedstock. No oppositions were filed against readoption of this exemption. The petition demonstrated the continuing need and justification for the exemption, and the petitioners demonstrated personal knowledge and experience, in particular, through Mr. Weinberg's experience petitioning for the exemption adopted in 2015. In addition, the petition states that printers continue to restrict the use of third-party feedstock, thereby requiring renewal of the exemption.

    Accordingly, the Acting Register recommends renewal of this exemption and will consider proposed expansions below in the discussion on Proposed Class 12.

    8. Video Games Requiring Server Communication—for Continued Individual Play and Preservation of Games by Libraries, Archives, and Museums

    Multiple organizations petitioned to renew the exemption for video games for which outside server support has been discontinued. The petitions stated that individuals still need the exemption to engage in continued play and libraries and museums continue to need the exemption to preserve and curate video games in playable form. In addition, the petitioners demonstrated personal knowledge and experience with regard to this exemption through past participation in the 1201 triennial rulemaking relating to access controls on video games and consoles, and/or representing major library associations with members that have relied on this exemption.

    Accordingly, the Acting Register recommends renewal of this exemption and will consider proposed expansions below in the discussion on Proposed Class 8.

    9. Audiovisual Uses—Educational and Derivative Uses

    Multiple individuals and organizations petitioned to renew the exemption consisting of multiple subparts covering use of short portions of motions pictures for various educational and derivative uses. No oppositions were filed. Petitions to renew the various subparts of the exemption are discussed below.

    9a. Audiovisual Uses—Educational Uses—Colleges and Universities

    Multiple individuals and organizations petitioned to renew the exemption's subpart covering use of motion picture clips for educational uses by college and university instructors and students (codified at 37 CFR 201.40(b)(1)(iv) (2016)). No oppositions were filed against readoption. The petitions demonstrated the continuing need and justification for the exemption, and personal knowledge and experience with regard to the exempted use. For example, Professors Decherney, Sender, and Carpini, the Department of Communications at the University of Michigan (“DCSUM”), the International Communication Association (“ICA”), the Society for Cinema and Media Studies (“SCMS”), the American Association of University Professors (“AAUP”), and the Library Copyright Alliance (“LCA”) stated that courses on video essays (or multimedia or videographer criticism), now taught at many universities, would not be able to exist without relying on this exemption. Similarly, Professor Hobbs, who represents more than 17,000 digital and media literacy educators, and the National Association for Media Literacy Education (“NAMLE”), an organization devoted to media literacy with more than 3,500 members, stated that teachers must sometimes circumvent a DVD protected by the Content Scramble System (“CSS”) when screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content.

    9b. Audiovisual Uses—Educational Uses—Primary and Secondary Schools (K-12)

    Multiple organizations petitioned to renew the exemption's subparts covering use of motion picture clips for educational uses by K-12 instructors and students. No oppositions were filed against readoption. The petitions demonstrated the continuing need and justification for the exemption, stating that K-12 instructors and students continue to rely on excerpts from digital media for class presentations and coursework, and must sometimes use screen-capture technology. In addition, the petitioners demonstrated personal knowledge and experience with regard to this exemption through representation of thousands of digital and literacy educators and/or members supporting K-12 instructors and students, combined with past participation in the section 1201 triennial rulemaking.

    9c. Audiovisual Uses—Educational Uses—Massive Open Online Courses (“MOOCs”).

    Professors Decherney, Sender, and Carpini, DCSUM, ICA, SCMS, and LCA petitioned to renew the exemption's subpart covering use of motion picture clips for educational uses in MOOCs. No oppositions were filed against readoption. The petition demonstrated the continuing need and justification for the exemption, stating that instructors continue to rely on the exemption to develop, provide, and improve MOOCs, as well as increase the number of (and therefore access to) MOOCs in the field of film and media studies. For example, the declarant, Professor Decherney, demonstrated personal knowledge by describing his reliance on the exemption to teach MOOCs on film and media studies.

    9d. Audiovisual Uses—Educational Uses—Educational Programs Operated by Libraries, Museums, and Other Nonprofits

    Multiple organizations petitioned to renew the subpart of the exemption covering use of motion picture clips for educational uses in digital and literacy programs offered by libraries, museums, and other nonprofits. No oppositions were filed against readoption. The petitions demonstrated the continuing need and justification for the exemption, and demonstrated personal knowledge and experience with regard to the exempted use. For example, LCA stated that librarians across the country have relied on the current exemption and will continue to do so for their digital and literacy programs. In addition, Professor Hobbs and NAMLE stated that librarians will continue to rely on the exemption for their digital and literacy programs, and to advance the digital media knowledge of their patrons.

    9e. Audiovisual Uses—Derivative Uses—Multimedia E-Books Offering Film Analysis

    A professor and two organizations collectively petitioned to renew the subpart of the exemption covering the use of motion picture clips for multimedia e-books offering film analysis. No oppositions were filed against readoption. The petition demonstrated the continuing need and justification for the exemption, attesting that the availability of video necessary for authors to undertake film analysis in e-books continues to be limited to formats encumbered by technological protection measures. In addition, the petitioners demonstrated personal knowledge through Professor Buster's continued work on an e-book series based on her lecture series, “Deconstructing Master Filmmakers: The Uses of Cinematic Enchantment,” and Authors Alliance's feedback that its members continue to desire authoring e-books that incorporate film for the purpose of analysis.

    9f. Audiovisual Uses—Derivative Uses—Documentary Filmmaking

    Multiple organizations petitioned to renew the subpart of the exemption covering the use of motion picture clips for uses in documentary films. No oppositions were filed against readoption. The petitions summarized the continuing need and justification for the exemption, and the petitioners demonstrated personal knowledge and experience with regard to the exempted use. For example, Film Independent (“FI”), the International Documentary Association (“IDA”), Kartemquin Educational Films, Inc. (“KEF”), the Center for Independent Documentary (“CID”), and Women in Film and Video (“WIFV”) stated that TPMs such as encryption continue to prevent filmmakers from accessing needed material in a sufficiently high quality to satisfy demands of distributors and viewers. Petitioners state that they personally know many filmmakers who have found it necessary to rely on this exemption, and will continue to do so.

    9g. Audiovisual Uses—Derivative Uses—Noncommercial Remix Videos

    Two organizations petitioned to renew the subpart of the exemption covering the use of motion picture clips for uses in noncommercial videos. No oppositions were filed against readoption. The petitions demonstrated the continuing need and justification for the exemption, and the petitioners demonstrated personal knowledge and experience with regard to the exempted use. For example, the Organization for Transformative Works (“OTW”) has advocated for the noncommercial video exemption in past triennial rulemakings, and has heard from a number of noncommercial remix artists who have used the exemption and anticipate needing to use it in the future. Similarly, New Media Rights (“NMR”) stated that it has spoken to a number of noncommercial video creators who have relied on this exemption, and intend to do so in the future.

    Accordingly, the Acting Register recommends renewal of this exemption, including all of its subparts, and will consider proposed expansions below in the discussion on Proposed Class 1.

    B. New or Expanded Designations of Classes

    Based upon the record in this proceeding regarding proposed expansions to existing exemptions or newly proposed exemptions, the Acting Register recommends that the Librarian determine that the following classes of works be exempt from the prohibition against circumvention of technological measures set forth in section 1201(a)(1):

    1. Proposed Class 1: Audiovisual Works—Criticism and Comment 44

    Several petitions sought expansion of the existing exemption for circumvention of access controls protecting “short portions” of motion pictures on DVDs, Blu-Ray discs, and digitally transmitted video for purposes of criticism and comment by various users, including creators of noncommercial videos, college and university faculty and students, faculty of MOOCs, documentary filmmakers, and for nonfiction multimedia e-books offering film analysis. With the exception of one petition, proponents sought to keep the limitation to circumvention for uses of “short portions” of motion pictures, which the Register has previously found to be “integral” in recommending the current exemption. The proposed expansions implicate the same types of TPMs regardless of proposed noninfringing use, namely CSS-protected DVDs, AACS-protected Blu-ray discs, and various TPMs applicable to online distribution services. Because the new proposals raised some shared concerns, including the impact of TPMs on the alleged noninfringing uses of motion pictures and whether alternative methods of accessing the content could alleviate potential adverse impacts, the Office grouped these petitions into one class. This approach also accounted for a petition which proposed an “overarching exemption that would embrace multiple audiovisual classes” and collapse (essentially) all of the subparts in the existing exemption to eliminate limitations on the types of user or use—and instead allow circumvention so long as the purpose is for criticism and comment.

    44 The Acting Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 31-89.

    Screen-Capture Technology

    For several of the activities it covers, the current exemption expressly permits the use of screen-capture technology and also allows circumvention only where the user “reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content.” Here, proponents sought to remove references to screen-capture technology, arguing that it is not a viable alternative because it does not permit the proposed uses, or else results in degraded-quality (and thus unusable) content. Others contended that the dual references to screen-capture technology are confusing. In response, opponents argued that screen-capture technology remains an adequate alternative to circumvention.

    In the 2015 rulemaking, the Register concluded that certain uses of motion picture clips for criticism and comment do not require access to higher-quality content, and that screen-capture technology may be an alternative to circumvention—but that it can be unclear to users as to whether screen-capture technology may in fact involve circumvention. Accordingly, in this rulemaking the Acting Register recommended retaining a screen-capture provision for these categories to address the possibility of circumvention when using this technology. In addition, the Acting Register found it appropriate to continue to distinguish between purposes requiring high-quality motion picture clips and more general purposes that do not.

    AACS2 Technology

    Opponents argued that the exemption should not be expanded to include AACS2 technology, which is employed to protect ultra-high-definition or “4K” content distributed on Ultra HD Blu-ray discs. Opponents maintained that none of the petitions expressly sought extension to AACS2, and that the current exemption does not extend to AACS2 on Ultra HD Blu-ray discs, as that technology did not exist at the time of the 2015 rulemaking. In response, proponents asserted that the Acting Register should extend the proposed exemption to AACS2 technology because although AACS2 is different in form, it is fundamentally the same in function.

    The Acting Register found the record insufficient to support extending the proposed class to AACS2. Her analysis of this proposed exemption thus addressed only TPMs employed on DVDs and Blu-ray discs, and by various online streaming services to protect motion pictures.

    a. Single Overarching Exemption for Purposes of Comment and Criticism

    EFF, NMR, and OTW proposed permitting circumvention to make use of motion picture excerpts so long as the purpose is for criticism and comment. They did not provide specific examples of proposed noninfringing uses or analyze such proposed uses under the 1201 statutory factors, but rather focused on “the value of adopting a simple overarching exemption that would embrace multiple audiovisual classes” for purposes of criticism and comment. EFF, NMR, and OTW asserted that the existing language is “practically unreadable” due to their complexities, and “a challenge for clients and attorneys alike to apply in practice.”

    Opponents contended that the petition to create a single overarching exemption overstates the complexity of the existing exemption, and that the proposed expansion would eliminate carefully drawn distinctions among potential users of motion picture content. Opponents also asserted that to be appropriately narrow, exemptions should identify the specific persons who will be adversely affected in their abilities to make noninfringing uses by the section 1201 prohibition.

    NTIA opposed the removal of all limitations on the types of user or use, concluding that “eliminating all of the categories of specific users . . . would stray too far from the statutory requirement of specificity.”

    The Acting Register declined to recommend adopting EFF, NMR, and OTW's proposed language, finding it overly broad for purposes of section 1201, and inconsistent with the rulemaking record upon which the current exemption has been adopted. She noted that courts evaluate fair use claims on a case-by-case basis, and the context in which use of the work is being made is part of that inquiry (e.g., commercial versus noncommercial use). She found that the proposed language would eliminate these legally important distinctions.

    b. Universities and K-12 Educational Institutions

    BYU filed a petition to create a single consolidated exemption that would permit circumvention for nonprofit educational purposes in accordance with sections 110(1) and 110(2) of the Copyright Act. BYU proposed eliminating the “criticism and comment” limitation, references to screen-capture technology, and distinctions based on education level and type of educational course.

    Opponents argued that although section 110(1) allows certain public performances of complete motion pictures in classrooms without obtaining licenses, it does not allow those performances to be made from unauthorized copies. Opponents also noted that sections 110(1) and 110(2) provide exceptions only to the public performance and display rights, not to the rights of reproduction or distribution, and that therefore they would not fully cover the proposed uses, which involve making and “librarying” copies of full-length films.

    NTIA recommended allowing circumvention for colleges and universities to make use of entire motion pictures. In its view, the storage of a copy “in a central secured server available only for transmission to the institution's classrooms” is “not fundamentally different from the uses allowed by the existing exemption” for purposes of analyzing whether the activity is a fair use.

    The Acting Register concluded that section 110 cannot, by itself, establish that BYU's proposed activities are noninfringing because any performances of motion pictures under sections 110(1) and 110(2) must originate from lawfully acquired copies. The Acting Register thus evaluated whether the copies made and used to facilitate the proposed motion picture performances were themselves noninfringing under section 112(f) and/or the fair use doctrine. The Acting Register determined that on its face, section 112(f) does not permit nonprofit educational institutions to make copies to facilitate performances under section 110(1). She found, however, that section 112(f) does support a conclusion that making and temporarily storing digital copies of motion pictures to perform “reasonable and limited portions” in distance teaching would be noninfringing, assuming the other requirements of section 110(2) are met. But she determined that such activity appears to be already covered by the existing exemption.

    Regarding the use of short motion picture clips in face-to-face teaching, the Acting Register concluded that the record demonstrates that a significant number of the proposed uses are likely to be fair, such as using short film clips to create compilations from foreign language films with and without subtitles. By contrast, based on the relevant case law, the Acting Register could not conclude as a general matter that the contemplated uses of full-length motion pictures are likely to be fair. She found that DVD and Blu-ray players are still widely available on the market and that extending the exemption to such uses could undermine the value of the market for works in those formats. She noted that, although institutions may incur a cost in re-purchasing digital versions of audiovisual works, the section 1201 exemption process is not meant to guarantee consumers the ability to access content through their preferred method or format.

    Ultimately, the Acting Register recommended an expansion that allows K-12 and university faculty and students to engage with motion picture excerpts of high quality in contexts other than courses requiring close analysis of film excerpts, as well as for teaching or scholarship more generally. Based upon additional examples provided in this rulemaking cycle, the Acting Register recommended that the exemption retain the requirement that a person must reasonably believe that non-circumventing alternatives are unworkable, but remove the references to “film studies or other courses requiring close analysis” and eliminate distinctions between K-12 and universities and colleges, as well as between faculty and students. The Acting Register recommended, however, that the exemption require K-12 students to act under the direct supervision of K-12 educators.

    c. Massively Open Online Courses (“MOOCs”)

    Professors Decherney, Sender, Carpini, and DCSUM requested an expansion to allow faculty of MOOCs to circumvent for “all online courses” (i.e., remove the limitation to “film studies or other courses requiring close analysis of film and media excerpts”), and for MOOCs offered by unaccredited and for-profit educational institutions. They maintained that without expanding the exempted use of MOOCs, there would be no ability for unaccredited, for-profit, or for-credit online educational offerings to use motion picture clips in MOOCs without licensing. They also argued that because the motion picture clips in this context would be used exclusively for educational purposes, such use would be unlikely to harm the market for motion pictures.

    Opponents argued that proponents failed to support their assertion that including for-profit and unaccredited educational institutions likely constitutes fair use, and that the record lacked any examples of for-profit or unaccredited educational institutions wanting, but unable, to offer MOOCs, suggesting the expansion would cover only speculative uses.

    Based on its review of the record, NTIA recommended expansion to for-profit educational institutions, but not to unaccredited educational institutions.

    The Acting Register concluded that the record lacked examples sufficient to evaluate or recommend expansion to for-profit or unaccredited educational institutions, and did not demonstrate that section 1201 is inhibiting the use of motion pictures in online education offered by for-profit and/or unaccredited educational institutions. The Acting Register also found that proponents' broadly framed proposal seeking to encompass “all online courses” would seemingly encompass any online video that could be characterized as an educational experience. The Register therefore recommended that the MOOCs language from the existing exemption be readopted without substantive changes.

    d. Filmmaking

    FI, IDA, and KEF sought expansion of the current exemption to permit circumvention for use of motion picture clips in all types of films (i.e., remove the “documentary” limitation), a request rejected by the Register in 2015. Proponents argued that the exemption should be expanded because defining a “documentary” film is difficult, as many films that are not traditionally classified as a “documentary” use motion picture excerpts to engage in educational and social commentary. Proponents also asserted that many filmmakers do not know whether they are permitted to use the exemption.

    The 2015 rulemaking identified fair use as the noninfringing basis for this exemption, and the Acting Register evaluated the proposed expansion on the same grounds. Proponents provided multiple examples of non-documentary films using short motion picture clips for parody or for the clip's biographical or historical significance, ostensibly to provide criticism or commentary. Proponents also disputed that either clips created using non-circumventing screen capture technology, or clips obtained via licensing are viable alternatives for the proposed uses, and argued that expansion of the exemption to non-documentaries would not affect the market for motion pictures.

    Opponents maintained that proponents failed to develop a record of likely noninfringing uses to support extension of the exemption to non-documentary films. Opponents also argued that the proposed uses would negatively impact the clip licensing market for motion pictures, and that licenses are readily available for using short portions of motion pictures. Opponents further contended that screen-capture technologies serve as valid alternatives to circumvention.

    NTIA concluded that the existing exemption should be expanded to all films. It maintained that the record supports a finding that in many instances the use of short portions of motion pictures is likely a noninfringing fair use and that opponents failed to demonstrate the expansion to non-documentaries would cause market harm.

    Based on the extensive record, the Acting Register recommended that the existing exemption for documentary films be expanded to include a subset of fictional (e.g., narrative) films for purposes of criticism and comment, where the clip is used for parody or its biographical or historically significant nature. She concluded this limitation would best reflect the examples in the record, many of which appear to involve the use of clips for purposes of criticism and comment, while preserving the requirement that filmmakers continue to seek authorization before using excerpts for general storytelling uses. The Acting Register found that the use of small portions of films for these purposes is consistent with principles of fair use and is unlikely to supplant the market for motion pictures, but cautioned that filmmakers would continue to need to obtain authorization for uses of clips outside of these uses.

    e. Multimedia E-Books

    The Authors Alliance, AAUP, OTW, the Interactive Fiction Technology Foundation, and Professor Buster (collectively, “Authors Alliance et al.”) sought expansion of the current exemption to permit circumvention for use of motion picture clips in all nonfiction multimedia e-books by removing the “offering film analysis” limitation. Authors Alliance et al. also sought expansion to fictional multimedia e-books and removal of references to screen-capture technology.

    The 2015 rulemaking identified fair use as the noninfringing basis for this exemption, and the proposed expansion was evaluated on the same grounds. Proponents asserted that the uses of clips for comment or criticism in nonfiction multimedia e-books beyond those offering film analysis, as well as fictional multimedia e-books, are transformative and thus fair. Proponents also argued that expansion will not negatively impact the market for or value of copyrighted works. Proponents asserted that screen capture is an inadequate alternative to circumvention and that licensing remains an unworkable alternative due to high fees, difficulties in locating the rightsholders, and the delays caused by protracted negotiations.

    In response, opponents argued that the record lacked evidence of actual use of a motion picture clip in a fictional e-book or in an “other nonfiction” e-book, and that in the absence of actual use, evaluating the proposal is all but impossible. Regarding nonfictional uses, opponents asserted that many of the alleged additional uses would qualify under the current “film analysis” limitation. As to fictional uses, opponents maintained that the creation of fan fiction multimedia e-books would frequently infringe the right to prepare derivative works. Opponents also asserted that as with the proposed filmmaking expansion, there will be harm to the clip licensing market if the proposed e-books uses are exempted.

    NTIA recommended expanding the exempted use to include all nonfiction multimedia e-books (i.e., eliminating the “offering film analysis” limitation), but did not recommend expansion to fictional multimedia e-books.

    The Acting Register found that the record failed to establish that the proposed uses in fictional e-books would likely be noninfringing, and thus she did not recommend expanding the exemption to such works. She did find, however, that the record supported expansion to all nonfiction multimedia e-books. Such an expansion, she concluded, is unlikely to harm, and may increase, the availability of copyrighted works. In addition, the Acting Register found that the proposed uses will facilitate criticism, comment, teaching and/or scholarship, and that they are unlikely to substitute for the original work in the marketplace.

    f. Conclusion for Class 1

    Accordingly, the Acting Register recommends that the Librarian adopt the following exemption:

    Motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Content System, or via a digital transmission protected by a technological measure, and the person engaging in circumvention under paragraph (b)(1)(i) and (b)(1)(ii)(A) and (B) of this section reasonably believes that non-circumventing alternatives are unable to produce the required level of high-quality content, or the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, where circumvention is undertaken solely in order to make use of short portions of the motion pictures in the following instances:

    (i) For the purpose of criticism or comment:

    (A) For use in documentary filmmaking, or other films where the motion picture clip is used in parody or for its biographical or historically significant nature;

    (B) For use in noncommercial videos (including videos produced for a paid commission if the commissioning entity's use is noncommercial); or

    (C) For use in nonfiction multimedia e-books.

    (ii) For educational purposes:

    (A) By college and university faculty and students or kindergarten through twelfth-grade (K-12) educators and students (where the K-12 student is circumventing under the direct supervision of an educator), including of accredited general educational development (GED) programs, for the purpose of criticism, comment, teaching, or scholarship;

    (B) By faculty of massive open online courses (MOOCs) offered by accredited nonprofit educational institutions to officially enrolled students through online platforms (which platforms themselves may be operated for profit), in film studies or other courses requiring close analysis of film and media excerpts, for the purpose of criticism or comment, where the MOOC provider through the online platform limits transmissions to the extent technologically feasible to such officially enrolled students, institutes copyright policies and provides copyright informational materials to faculty, students, and relevant staff members, and applies technological measures that reasonably prevent unauthorized further dissemination of a work in accessible form to others or retention of the work for longer than the course session by recipients of a transmission through the platform, as contemplated by 17 U.S.C. 110(2); or

    (C) By educators and participants in nonprofit digital and media literacy programs offered by libraries, museums, and other nonprofit entities with an educational mission, in the course of face-to-face instructional activities, for the purpose of criticism or comment, except that such users may only circumvent using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted.

    2. Proposed Class 2: Audiovisual Works—Accessibility 45

    Proposed Class 2 would allow circumvention of technological measures protecting motion pictures (including television shows and videos) on DVDs, Blu-ray discs, and via digital transmissions, for disability services professionals at educational institutions to create accessible versions for students with disabilities by adding captions and/or audio description.46 Proponents explained that nearly all educational institutions are subject to disability laws such as the Americans With Disabilities Act (“ADA”), section 504 of the Rehabilitation Act (“Section 504”), and the Individuals With Disabilities Education Act (“IDEA”), which require accommodations for students with disabilities. Proponents maintained that creating accessible versions by adding captions and/or audio description is necessary because inaccessible motion pictures remain prevalent in the video industry, and copyright owners fail to retroactively make motion pictures accessible or grant permission to disability services offices to make those works accessible, even when contacted directly.

    45 The Acting Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 89-111.

    46 “Captioning” is “the process of converting the audio content” of audiovisual material, such as a motion picture, “into text and displaying the text on a screen, monitor, or other visual display system.” Nat'l Ass'n of the Deaf, What is Captioning?, NAD.ORG, https://www.nad.org/resources/technology/captioning-for-access/what-is-captioning/ (last visited Oct. 2, 2018). By contrast, “audio description” is a narration added to the soundtrack of audiovisual material, such as a motion picture, to describe significant visual details (e.g., descriptions of new scenes, settings, costumes, body language) for individuals with sight impairments. Am. Council of the Blind, The Audio Description Project, ACB.ORG, http://www.acb.org/adp/ad.html (last visited Oct. 2, 2018). Audio description may also be referred to as “video description” or “descriptive narration.” Id.

    Proponents asserted that adding captions and/or audio description to motion pictures for the purpose of making them accessible to students with disabilities constitutes fair use based on the legislative history of section 107. Proponents also argued that viable alternatives to circumvention do not exist, and that not allowing circumvention will negatively affect the market for the copyrighted motion pictures because educational institutions will not use content that they cannot easily convert into an accessible format.

    In response, opponents noted that while accessibility is an important issue, the proposed class was too broad because it did not take into account the extent to which DVDs and Blu-ray discs already include closed captions and audio description. They argued that the result of altering a motion picture—such as by adding captioning and/or audio description—is likely a derivative work that involves a creative interpretation of the underlying work. Opponents generally contended that the wide availability of versions with captioning and/or audio description already in the market constitutes a viable alternative to circumvention.

    NTIA recommended that the proposed exemption allow “disability services offices and equivalent units” to “circumvent TPMs on audiovisual works in educational settings to add accessibility features” to motion pictures, including “through the provision of closed and open captions and audio description.” In agreement with the Acting Register, NTIA believes that the exemption should apply “regardless of grade level” of the student, and apply to both nonprofit and for-profit educational institutions required to make motion pictures accessible to students under disability laws.

    The Acting Register concluded that an exemption should be granted, with a few adjustments to the language outlined in the petition. She recommended that the exemption permit circumvention where the accessible version is created as a necessary accommodation for a student or students with disabilities under a federal or state disability law, such as the ADA, IDEA, or Section 504. In addition, the Acting Register recommended that the exemption apply to for-profit and nonprofit educational institutions, as well as to K-12 institutions, colleges, and universities, because they are subject to such disability laws. The Acting Register also recommended that the exemption allow circumvention only after the educational institution has conducted a reasonable market check and determined that an accessible version is not available, not available at a fair price, or not available in a timely way. The record suggested that these searches are already occurring, and that regardless of whether a decision is made to create an accessible version, outsource the creation of an accessible version, or purchase an accessible version, the educational institution would incur a cost. In this way, the market check requirement seeks to prevent copies being made of works already available in accessible formats, while encouraging the motion picture industry to further expand the availability of accessible versions in the marketplace. Finally, the recommended exemption requires the accessible versions to be provided to students and stored by the educational institution in a manner that reasonably prevents unauthorized further dissemination of the work.

    Accordingly, the Acting Register recommends that the Librarian adopt the following exemption:

    (i) Motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where the motion picture is lawfully acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Content System, or via a digital transmission protected by a technological measure, where:

    (A) Circumvention is undertaken by a disability services office or other unit of a kindergarten through twelfth-grade educational institution, college, or university engaged in and/or responsible for the provision of accessibility services to students, for the purpose of adding captions and/or audio description to a motion picture to create an accessible version as a necessary accommodation for a student or students with disabilities under an applicable disability law, such as the Americans With Disabilities Act, the Individuals with Disabilities Education Act, or Section 504 of the Rehabilitation Act;

    (B) The educational institution unit in paragraph (b)(2)(i)(A) of this section has, after a reasonable effort, determined that an accessible version cannot be obtained at a fair price or in a timely manner; and

    (C) The accessible versions are provided to students or educators and stored by the educational institution in a manner intended to reasonably prevent unauthorized further dissemination of a work.

    (ii) For purposes of this paragraph (b)(2), “audio description” means an oral narration that provides an accurate rendering of the motion picture.

    3. Proposed Class 5: Computer Programs—Unlocking 47

    Proposed Class 5 would expand an existing exemption for activity known as “unlocking,” that is, circumvention of access controls on computer programs for the purpose of enabling a wireless device to connect to a different mobile network provider. The Copyright Office has received petitions to permit the unlocking of cellphones since 2006. In 2015, as directed by the Unlocking Consumer Choice and Wireless Competition Act (“Unlocking Act”),48 the Register considered whether to expand the exemption to additional categories of wireless devices. Based on the record in that proceeding, the Register recommended, and the Librarian granted, an exemption covering cellphones, all-purpose tablet computers, portable mobile connectivity devices such as mobile hotspots, and wearable devices such as smartwatches or fitness devices.

    47 The Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 145-63.

    48 Public Law 113-144, 128 Stat. 1751 (2014).

    The current exemption also is limited to used devices, i.e. those previously activated on a wireless carrier. First adopted in 2010, this limitation was implemented in response to concerns raised by wireless carriers engaged in the business of selling cellphones at substantially discounted prices and recouping that investment through the sale of prepaid wireless service. These companies feared that including new phones in the class could foster illegal trafficking activity, which involves “the bulk purchase of unused handsets that have been offered for sale at subsidized prices . . . and then unlocking and reselling those unlocked handsets for a profit.” 49

    49 2015 Recommendation at 145.

    In this proceeding, ISRI petitioned for expansions that would (1) remove the enumerated device categories and instead permit circumvention to unlock “any wireless device”; and (2) eliminate the requirement that a wireless device be “used.” As to the limitation on devices, proponents argued that the owner of any connected device should be able to transfer it to the carrier of his or her choice. Proponents warned that the rapid pace of innovation within the Internet of Things industry makes it impossible to predict the specific categories of wireless devices that consumers may need to unlock. Regarding the “used” limitation, proponents argued that illegal trafficking does not implicate copyright interests and that concerns about such activity therefore are outside the proper scope of this rulemaking. Proponents further suggested that, in contrast to 2015, there now exists a need to unlock unused devices, offering examples of corporations acquiring excess devices that are never activated but that they later seek to recycle. The Office received no comments opposing either of these requested expansions.

    NTIA recommended granting both aspects of the petition. As it did in 2015, NTIA concluded that “proponents have provided sufficient evidence to demonstrate that circumvention of TPMs on all lawfully acquired wireless devices is a noninfringing use.” In its view, the statutory prohibition “limits consumer choice of wireless network providers, limits recyclers' ability to recycle or resell wireless devices, and limits competition between wireless network providers.” NTIA also concluded that proponents met their burden with respect to unused devices, pointing to evidence that since 2015, “business practices have changed, resulting in a need for bulk and individual unlocking of new wireless devices.” NTIA proposes replacing the term “used” in the exemption with the phrase “lawfully acquired.”

    The Acting Register recommended expanding the exemption to unused devices falling within the categories listed in the current exemption. She concluded that unlocking such devices is likely noninfringing under section 117(a) of the Copyright Act for the same reasons noted in the 2015 Recommendation with respect to used devices. She further found that unlocking such devices is likely a fair use, regardless of whether the devices are new or used. With respect to potential cellphone trafficking, the Acting Register found that although such activity limits the network provider's ability to sell devices at a discount, there were no allegations relating to trafficking raised in this proceeding, and it is not clear that the economic harm caused by that activity affects the value of the computer programs allowing devices to connect to wireless networks. She further noted that other causes of action, such as unfair competition or unjust enrichment, may be available to address injury to non-copyright interests. In addition, the Acting Register concluded that absent an exemption, users are likely to be adversely affected in their ability to unlock unused devices of these types. She found that extending the exemption to such devices will increase the availability of the software within them and that the record lacked evidence that doing so would harm the market for copyrighted works.

    The Acting Register therefore recommended removal of the provision in the current exemption requiring that a covered device be “used.” Consistent with NTIA's recommendation, she proposed adding language requiring that such a device be “lawfully acquired.” Because the regulations implementing the Unlocking Act already require that circumvention under this exemption be initiated by the “owner” of the relevant device or by a person or service provider at the direction of the owner, the Acting Register views this as a technical, rather than a substantive, change.50

    50 37 CFR 201.40(c) (2016).

    The Acting Register determined, however, that the record was insufficient to support expanding the exemption to additional types of wireless devices. As in 2015, she found the record too sparse to support a finding that unlocking wireless devices of all types is likely to be a fair use. Proponents did provide evidence regarding three specific categories of devices: Home security devices, agricultural equipment, and vehicle GPS trackers. Based on the record, the Acting Register concluded that these devices are similar to those covered by the current exemption in relevant respects, and that unlocking them therefore is likely to be a fair use. But she concluded that proponents failed to establish that they are, or are likely to be, adversely affected by section 1201 in their ability to unlock these types of devices. Proponents did not demonstrate that it would be possible to connect these devices to an alternate wireless network even if an exemption were granted. The Acting Register thus found that they failed to carry their burden to show actual or likely adverse effects resulting from the bar on circumvention. She therefore declined to recommend removal of the exemption's enumerated device categories.

    Accordingly, the Acting Register recommends that the Librarian adopt the following exemption:

    Computer programs that enable the following types of lawfully acquired wireless devices to connect to a wireless telecommunications network, when circumvention is undertaken solely in order to connect to a wireless telecommunications network and such connection is authorized by the operator of such network:

    (i) Wireless telephone handsets (i.e., cellphones);

    (ii) All-purpose tablet computers;

    (iii) Portable mobile connectivity devices, such as mobile hotspots, removable wireless broadband modems, and similar devices; and

    (iv) Wearable wireless devices designed to be worn on the body, such as smartwatches or fitness devices.

    4. Proposed Class 6: Computer Programs—Jailbreaking 51

    51 The Acting Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 163-85.

    Proposed Class 6 would expand an existing exemption for activity known as “jailbreaking”—that is, the process of gaining access to the operating system of a computing device to install and execute software that could not otherwise be installed or run on that device, or to remove pre-installed software that could not otherwise be uninstalled. An existing exemption permits the jailbreaking of smartphones and portable all-purpose mobile computing devices. In this proceeding, EFF filed a petition seeking to expand the current exemption by: (1) Adding voice assistant devices, such as the Amazon Echo and Google Home, to the categories of devices covered by the exemption; and (2) allowing jailbreaking not only to install, run, or remove software, but also for the purpose of enabling or disabling hardware features of the relevant device.

    In proponents' view, the fair use analysis relied upon by the Register in recommending the previous jailbreaking exemptions is equally applicable in the context of voice assistant devices. Moreover, regarding the 1201 statutory factors, proponents argued that a jailbreaking exemption will have either no effect or a positive effect on the availability of copyrighted firmware and application software.

    Opponents principally argued that jailbreaking is likely to enable voice assistant devices to access pirated content. Opponents asserted that piracy concerns are greater in the context of voice assistant devices than in that of other devices, as the former are relatively simple devices that do not incorporate the same “hardware and software complexity” that exists in personal computers, and therefore they provide more limited security options. Opponents further suggested that jailbreaking would facilitate the installation of counterfeit apps and apps that enable unauthorized access to copyrighted content. Opponents challenged the contention that jailbreaking is necessary to promote the development of new applications.

    NTIA recommended granting the exemption in the form requested by proponents.

    It agreed that jailbreaking voice assistant devices is unlikely to harm the market for copyrighted works, noting that there is no evidence of market harm for the devices covered by the current exemption. NTIA rejected opponents' argument about unauthorized access to entertainment content on the ground that it “fail[s] to explain why infringement is more likely on voice assistant platforms than on smartphones, tablets, and other devices already subject to the exemption.” NTIA further concluded that proponents had demonstrated that users in this class are adversely affected by the statutory prohibition.

    The Acting Register found that proponents met their burden of showing that jailbreaking voice assistant devices within the meaning of the current exemption is likely to be a fair use. She concluded that the record failed to show that the prior jailbreaking exemptions have harmed the market for firmware in smartphones or all-purpose mobile devices, and that nothing in the record suggests that a different conclusion is warranted for voice assistant devices. Additionally, the Acting Register found the record insufficient to establish that an expanded exemption is likely to harm the market for copyrighted works streamed to voice assistant devices. While acknowledging that piracy of streamed content is a highly significant concern, the evidence was insufficient to conclude that allowing jailbreaking of voice assistant devices created a greater risk of unauthorized access to streaming content than exists with respect to other devices, and suggested that subscription streaming services typically control access to their content with TPMs separate from those protecting the firmware. The Acting Register thus recommended adoption of an exemption authorizing the jailbreaking of voice assistant devices, which must be “designed to take user input primarily by voice.” The recommended exemption excludes video game consoles, set-top boxes, DVD and Blu-Ray players, and similar devices that typically are operated using buttons. To address opponents' serious concerns over the potential use of jailbroken devices as platforms for unauthorized content, the Acting Register recommended including language expressly excluding circumvention undertaken for purpose of accessing such material.

    Accordingly, the Acting Register recommends that the Librarian adopt the following exemption:

    Computer programs that enable voice assistant devices to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the device, or to permit removal of software from the device, and is not accomplished for the purpose of gaining unauthorized access to other copyrighted works. For purposes of this paragraph (b)(8), a “voice assistant device” is a device that is primarily designed to run a wide variety of programs rather than for consumption of a particular type of media content, is designed to take user input primarily by voice, and is designed to be installed in a home or office.

    5. Proposed Class 7: Computer Programs—Repair 52

    52 The Acting Register's analysis and conclusions for these classes, including citations to the record and relevant legal authority, can be found in the Recommendation at 185-231.

    Several organizations petitioned to expand the current exemption allowing for circumvention of access controls controlling the functioning of motorized land vehicles for purposes of diagnosis, repair, or lawful modification of a vehicle function to allow an additional range of activities. The Office synthesized these suggestions into Proposed Class 7. Although the commenters' proposals varied in scope, and there was no singular unified proposed exemption, the Acting Register grouped them into the following four categories:

    (1) Removing the current limitation prohibiting circumvention of TPMs to access computer programs primarily designed for the control of vehicle telematics and entertainment systems;

    (2) expanding the exemption to apply to other types of software-enabled devices, including appliances, computers, toys, and other Internet of Things devices;

    (3) extending the exemption to allow circumvention by third-party service providers, and in particular, independent vehicle repair shops, for purposes of diagnosis, repair, and lawful modification; and

    (4) allowing the acquisition, use, and dissemination of circumvention tools in furtherance of diagnosis, repair, and modification.

    The Acting Register first considered proposed expansions within the context of motorized land vehicles, and then addressed expansion of the exemption to other types of devices.

    Regarding motorized land vehicles, proponents asserted that diagnosis, repair, and lawful modification of vehicle telematics and entertainment systems are fair uses and noninfringing under section 117. Proponents contended that, because these systems are increasingly integrated with functional vehicle firmware, access is necessary to engage in diagnosis, repair, and lawful modification of vehicle functions—activities the Register found to be likely noninfringing in recommending the existing exemption. Proponents sought access to telematics systems in order to obtain diagnostic data for the same purposes. Proponents asserted that vehicle firmware is “effectively useless” outside of the vehicle, with essentially no separate market for the software apart from the vehicles. In addition, proponents suggested users should be permitted to access “storage capacity” in vehicle entertainment systems, and to repair infotainment/entertainment modules.

    In response, opponents contended that the proposed activities are not favored under fair use because access to entertainment and telematics systems could allow unauthorized access to expressive content. Opponents asserted that telematics and entertainment firmware have value apart from a vehicle, and may be paid for on a continuing basis separate from the vehicle purchase. Opponents also argued that circumvention of telematics is unnecessary because diagnostic data is still available through the onboard diagnostics port and, further, a nationwide Memorandum of Understanding requires manufacturers to make this data available to vehicle owners and independent repair shops.

    Commenters seeking to expand the exemption to allow diagnosis, repair, and modification of other software-enabled devices likewise asserted that these activities are noninfringing under the fair use doctrine and section 117. The Acting Register considered these arguments for those types of devices cognizably reflected in the record, namely home appliances, smartphones, video game consoles, computers and ancillary or peripheral computing devices, and consumables, plus a few examples of specific additional devices.

    Opponents maintained that repair of these devices is not a transformative use because it merely causes a device to be used for the same purpose for which it was originally intended. In some cases, opponents also suggested that once the firmware on some devices is accessed, even for repair, it is compromised such that it can no longer prevent piracy; and consequently, these uses diminish the value of and market for the devices and other creative works. Regarding repair of video game consoles specifically, opponents expressed concern that circumvention of TPMs creates the risk of unauthorized access to content and piracy.

    Concerning third-party assistance, several proponents requested that the exemption specifically permit third parties, such as repair services, to assist owners in carrying out the authorized activities. Alternatively, proponents suggested removing the current exemption language requiring that circumvention be “undertaken by the authorized owner” of the vehicle. Regarding circumvention tools, proponents asked the Office to recommend language that would allow exemption beneficiaries, including third parties, to not only make, use, and acquire tools, but also to distribute them. Opponents contended that the proposals concerning third-party assistance and circumvention tools would impermissibly expand the exemption to activity that would constitute unlawful trafficking in violation of sections 1201(a)(2) and (b).

    NTIA supported expanding the exemption to a “new definable sub-class” of home appliances and mobile handsets (such as cell phones) “when circumvention is a necessary step to allow the diagnosis, repair, or lawful modification of a device function.” NTIA concluded that these are noninfringing fair uses, in part because “diagnosis is a critical component of repairing a device” and subsequent modification of devices is transformative. With respect to vehicles, NTIA supported expanding the existing exemption to allow “use of telematics data for diagnostic purposes.” It recommended, however, “limiting use to obtaining the diagnostic data from the telematics module for purposes of repair and modification of the vehicle, and not repair or modification to the module itself.” As to vehicle entertainment systems, NTIA “continue[d] to have reservations about the strength of [the] record and the potential for infringement” and did not recommend an expansion to permit access for the proposed uses, including “storage capacity.”

    NTIA further recommended removing the current exemption's reference to “the authorized owner of the vehicle”—a change that it characterizes as “extending the current exemption to allow third-party service providers to diagnose, repair and modify software- enabled vehicles on behalf of owners.” But NTIA recommended denying the proposals to “permit third-party commercialization of software repair tools for vehicles in this class,” concluding that such activity is “likely to constitute trafficking.”

    The Acting Register recommended expanding the current exemption in areas where there was sufficient record support for such a change, while retaining language to ensure that both the class of works and the permitted uses are appropriately defined. As a result, the Acting Register recommended two separate exemptions, one relating to motorized land vehicles, and one related to the repair and maintenance of additional categories of devices.

    Regarding motor vehicles, the recommended exemption removes the requirement that circumvention be “undertaken by the authorized owner” of the vehicle, instead providing that it apply where such items are “lawfully acquired.” This change responds to proponents' concerns that the language of the existing exemption improperly excludes other users with a legitimate interest in engaging in noninfringing diagnosis, repair, or modification activities. The Acting Register expressed no view on whether particular types of third-party assistance may or may not implicate the anti-trafficking provisions. Those provisions, found in section 1201(a)(2) and (b), are unchanged and must be separately analyzed to determine whether third-party assistance would be permissible.

    The Acting Register also recommended removing the language excluding access to computer programs designed for the control of telematics or entertainment systems. The Acting Register was persuaded that, due to increasing integration of vehicle computer systems since the 2015 rulemaking, retaining this limitation may impede noninfringing uses that can only be accomplished by incidentally accessing these systems. Nonetheless, the Acting Register credited opponents' concerns about unauthorized access to expressive works through subscription services unrelated to vehicle functioning, and accordingly the recommended exemption specifically excludes access to “programs accessed through a separate subscription service.” While the broadened exemption permits incidental access to a vehicle infotainment system, it provides that such access is allowed only to the extent it is “a necessary step to allow the diagnosis, repair or lawful modification of a vehicle function” and includes the additional requirement that circumvention may not be “accomplished for the purpose of gaining unauthorized access to other copyrighted works.” Because the Acting Register found the record insufficient to support expanding the exemption to permit diagnosis, repair, or lawful modification of the telematics and infotainment systems themselves, the regulatory language does not extend to those activities.

    In addition, the Acting Register recommended a new exemption allowing for the circumvention of TPMs restricting access to firmware that controls smartphones and home appliances and home systems for the purposes of diagnosis, maintenance, or repair. In doing so, the Acting Register adopted the definitions of “maintenance” and “repair” in section 117(d). Here again, the recommended text includes the condition that circumvention not be “accomplished for the purpose of gaining unauthorized access to other copyrighted works.” The Acting Register did not recommend extending this exemption to circumvention for purposes of modifying a device function, concluding that “modification” was not defined with sufficient precision to conclude as a general category it is likely to be noninfringing.

    Accordingly, the Acting Register recommends that the Librarian adopt the following exemptions:

    (1) Computer programs that are contained in and control the functioning of a lawfully acquired motorized land vehicle such as a personal automobile, commercial vehicle or mechanized agricultural vehicle, except for programs accessed through a separate subscription service, when circumvention is a necessary step to allow the diagnosis, repair or lawful modification of a vehicle function, where such circumvention does not constitute a violation of applicable law, including without limitation regulations promulgated by the Department of Transportation or the Environmental Protection Agency, and is not accomplished for the purpose of gaining unauthorized access to other copyrighted works.

    (2) Computer programs that are contained in and control the functioning of a lawfully acquired smartphone or home appliance or home system, such as a refrigerator, thermostat, HVAC or electrical system, when circumvention is a necessary step to allow the diagnosis, maintenance or repair of such a device or system, and is not accomplished for the purpose of gaining access to other copyrighted works. For purposes of this paragraph (b)(10):

    (i) The “maintenance” of a device or system is the servicing of the device or system in order to make it work in accordance with its original specifications and any changes to those specifications authorized for that device or system; and

    (ii) The “repair” of a device or system is the restoring of the device or system to the state of working in accordance with its original specifications and any changes to those specifications authorized for that device or system.

    6. Proposed Class 9: Computer Programs—Software Preservation 53

    53 Because the issues in this class are relevant to the analysis in Proposed Class 8, which pertains specifically to video games, the Acting Register addresses this class first. The Acting Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 231-56.

    Proposed Class 9 seeks to address concerns that TPMs applied to computer programs can interfere with legitimate preservation activities. The Software Preservation Network (“SPN”) and the LCA filed a petition that would allow “libraries, archives, museums, and other cultural heritage institutions” to circumvent TPMs on “lawfully acquired software for the purposes of preserving software and software-dependent materials.” SPN and LCA explained that the proposed exemption is intended to enable cultural heritage institutions to preserve both TPM-protected computer programs, as well as “dependent” materials—“writings, calculations, software programs, etc.” stored in digital formats that are inaccessible without running the underlying program. Although proposed Class 9 constitutes a new exemption, proponents noted that the Register recommended, and the Librarian granted, exemptions for software preservation in 2003 and 2006, which allowed circumvention of access controls on computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access. Proponents advanced three bases for finding their proposed activities to be noninfringing: (1) The fair use doctrine, (2) the section 108(c) exception for library and archival replacement copies, and (3) the section 117(a) exception for archival copies of computer programs.

    Opponents contended that the proposal is overbroad because (1) the exemption would improperly allow circumvention for activities beyond those provided for in the section 108 exceptions for libraries and archives; (2) the term “computer program-dependent materials” might be read to sweep in any category of copyrightable work; and (3) the term “other cultural heritage institutions” within the class of beneficiaries is undefined. Although opponents did not directly contest proponents' fair use arguments, they did assert that section 117(a)(2) does not protect proponents' activities.

    NTIA supported adopting the proposed exemption. In its view, the class was appropriately defined because it was limited to “computer programs, to preservation uses, and to preservation-oriented institutional users.” It agreed with proponents that the exemption should expressly refer to preservation of “computer program-dependent materials,” concluding that “a user would not be able to access those materials without preserving the software protected by a TPM.” It also agreed that the exemption should include video games, noting that proponents provided specific examples of games that may not be covered by the current preservation exemption. In addition, it found that there were no reasonable alternatives to circumvention, as the use of software with backwards compatibility “is inadequate and can distort the original work.”

    The Acting Register recommended granting an exemption that incorporates most of the substance of proponents' request, with certain changes to address opponents' concerns. First, the recommended language limits the eligible users to libraries, archives, and museums, as defined according to the criteria proposed in the Office's recent Section 108 Discussion Document.54 The Acting Register declined to recommend including “other cultural heritage institutions” within the class of beneficiaries, finding that term to be undefined and potentially far-reaching. In addition, the Acting Register recommended that the exemption incorporate proponents' suggestion that the class be defined as computer programs “that have been lawfully acquired and that are no longer reasonably available in the commercial marketplace.” The Acting Register also recommended that in lieu of including the phrase “computer program-dependent materials” as a defined term, the recommended exemption simply provide that circumvention is permitted for the purpose of “lawful preservation . . . of digital materials dependent upon a computer program as a condition of access.” Finally, in response to concerns over having video game preservation governed by two separate exemptions, the Acting Register recommended that the portion of this class pertaining to video games be codified in the existing video game preservation exemption. Thus, the recommended exemption for Class 9 will cover computer programs other than video games, while an addition to the prior exemption for video games will provide for preservation of the video games addressed by this class (i.e., those that do not require an external server for gameplay). Preservation of server-based games will continue to be governed by the recommended exemption for Class 8.

    54See U.S. Copyright Office, Section 108 of Title 17 51 (2017), https://www.copyright.gov/policy/section108/discussion-document.pdf.

    Accordingly, the Acting Register recommends that the Librarian adopt the following exemption:

    (i) Computer programs, except video games, that have been lawfully acquired and that are no longer reasonably available in the commercial marketplace, solely for the purpose of lawful preservation of a computer program, or of digital materials dependent upon a computer program as a condition of access, by an eligible library, archives, or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the program is not distributed or made available outside of the physical premises of the eligible library, archives, or museum.

    (ii) For purposes of the exemption in paragraph (b)(13)(i) of this section, a library, archives, or museum is considered “eligible” if—

    (A) The collections of the library, archives, or museum are open to the public and/or are routinely made available to researchers who are not affiliated with the library, archives or museum;

    (B) The library, archives, or museum has a public service mission;

    (C) The library, archives, or museum's trained staff or volunteers provide professional services normally associated with libraries, archives, or museums;

    (D) The collections of the library, archives, or museum are composed of lawfully acquired and/or licensed materials; and

    (E) The library, archives, or museum implements reasonable digital security measures as appropriate for the activities permitted by this paragraph (b)(13).

    8. Proposed Class 8: Computer Programs—Video Game Preservation 55

    55 The Acting Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 256-84.

    Class 8 proponents sought expansion of the provisions in the existing exemption that allows eligible institutions to circumvent access controls to preserve video games for which external server support has been discontinued. As explained in the 2015 rulemaking, some video games require a network connection to a remote server operated by the game's developer before the video game can be accessed and played. When the developer takes such a server offline, a game can be rendered unplayable or limited to certain functions, such as single-player play or multiplayer play on a local network. The current exemption allows an eligible library, archives, or museum to circumvent this type of authentication mechanism to preserve lawfully acquired games in “complete” form, i.e., those that can be played without accessing or reproducing copyrightable content stored or previously stored on an external computer server. The exemption requires that such games not be distributed or made available outside of the physical premises of the eligible institution.

    The Museum of Art and Digital Entertainment (“MADE”) filed a petition seeking to expand the exemption to allow for circumvention of access controls on video games that need to access creative content stored on a remote server, which MADE refers to as “online” games. MADE contended that the current exemption, while helpful, does not allow it to preserve the growing number of online video games for future generations to study. Proponents explained that libraries, archives, and museums cannot engage in certain preservation activities involving online games without either copying the game's server code or reconstructing that server's functionality, which would also require an exemption to circumvent TPMs on these works. MADE also sought to broaden the class of users of the exemption to include volunteer “affiliate archivists,” who wish to circumvent access controls off-premises, but under the supervision of preservation entities.

    Opponents objected to the proposed expansions, arguing that proponents' intended use of the video games is not a true preservation use. Instead, opponents contended that proponents wish to engage in recreational play that could function as a market substitute. In addition, the Entertainment Software Association expressed concern that the server copy proponents wish to recreate is an unpublished work that has never been distributed to the public. Overall, opponents contend that the proposed uses are infringing. Opponents also objected to the use of affiliate archivists, contending that there is a heightened risk of market harm if the public can circumvent access controls on video games in their own homes.

    NTIA supported the adoption of an expanded exemption, but one narrower than that requested by proponents. It proposed an expansion to allow preservation “where the user uses the server component—while still not providing any substantial expressive content—for administrative tasks beyond authentication, including command and control functions such as tracking player progress, facilitating communications between players, or storing high scores.” To accommodate these uses, it recommended regulatory language that would apply in situations where “all or nearly all of the audiovisual content and gameplay mechanics reside on the player or institution's lawfully acquired local copy of the game.” NTIA did not, however, support adding an “affiliate archivist” user class, concluding that adding such a provision risks “introducing confusing language or suggesting that any such preservationists may not need to be answerable to the institutions for which they are volunteering.”

    The Acting Register found that the record supported granting an expansion in the relatively discrete circumstances where a preservation institution legally possesses a copy of a video game's server code and the game's local code. She concluded that in such circumstances, the preservation activities described by proponents are likely to be fair uses. She further found that proponents demonstrated that such uses would be adversely affected by the statutory prohibition absent an exemption. The record indicated that an exemption would enable future scholarship by enabling researchers to experience games as they were originally played and thereby better understand their design or construction. The Acting Register additionally found such activity unlikely to harm the market for video games.

    The Acting Register did not, however, recommend an exemption to allow for instances where the preservation institution lacks lawful possession of the server software. She found the record insufficient to support a finding that the recreation of video game server software as described by proponents is likely to be a fair use. A number of scenarios described by proponents do not involve preserving server software that is already in an institution's collections, but instead appear to involve something more akin to reconstructing the remote server. She found that this activity distinguishes proponents' request from the preservation activity at issue in the case law upon which they relied. Moreover, she noted, the reconstruction of a work implicates copyright owners' exclusive right to prepare derivative works.

    Additionally, the Acting Register concluded that the record did not support the addition of an “affiliate archivist” user class to the exemption, finding such activity unlikely to constitute fair use. She noted that both the proposed exemption language and the proponents' institutions' practices seemed to lack appropriate protective guidelines to govern such volunteers' use of copyrighted materials.

    In light of the foregoing, the Acting Register recommended an exemption for “server-dependent games,” defined as video games that can be played by users who lawfully possess both a copy of a game intended for a personal computer or video game console and a copy of the game's code that is stored or was previously stored on an external computer server. The Acting Register continues to recommend an exemption for “complete games,” but proposed revising the exemption language to reflect that the exemption for “complete games” applies to both gamers and preservation uses, but the exemption for “server dependent games” applies only to preservation uses. In addition, for the reasons explained above in the discussion of Proposed Class 9, the Acting Register recommended adding a paragraph to the exemption in this class to accommodate preservation of non-server-based video games.

    Accordingly, the Acting Register recommends that the Librarian adopt the following exemption:

    (i) Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, when the copyright owner or its authorized representative has ceased to provide access to an external computer server necessary to facilitate an authentication process to enable gameplay, solely for the purpose of:

    (A) Permitting access to the video game to allow copying and modification of the computer program to restore access to the game for personal, local gameplay on a personal computer or video game console; or

    (B) Permitting access to the video game to allow copying and modification of the computer program to restore access to the game on a personal computer or video game console when necessary to allow preservation of the game in a playable form by an eligible library, archives, or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the video game is not distributed or made available outside of the physical premises of the eligible library, archives, or museum.

    (ii) Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, that do not require access to an external computer server for gameplay, and that are no longer reasonably available in the commercial marketplace, solely for the purpose of preservation of the game in a playable form by an eligible library, archives, or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the video game is not distributed or made available outside of the physical premises of the eligible library, archives, or museum.

    (iii) Computer programs used to operate video game consoles solely to the extent necessary for an eligible library, archives, or museum to engage in the preservation activities described in paragraph (b)(12)(i)(B) or (b)(12)(ii) of this section.

    (iv) For purposes of this paragraph (b)(12), the following definitions shall apply:

    (A) For purposes of paragraph (b)(12)(i)(A) and (b)(12)(ii) of this section, “complete games” means video games that can be played by users without accessing or reproducing copyrightable content stored or previously stored on an external computer server.

    (B) For purposes of paragraph (b)(12)(i)(B) of this section, “complete games” means video games that meet the definition in paragraph (b)(12)(iv)(A) of this section, or that consist of both a copy of a game intended for a personal computer or video game console and a copy of the game's code that was stored or previously stored on an external computer server.

    (C) “Ceased to provide access” means that the copyright owner or its authorized representative has either issued an affirmative statement indicating that external server support for the video game has ended and such support is in fact no longer available or, alternatively, server support has been discontinued for a period of at least six months; provided, however, that server support has not since been restored.

    (D) “Local gameplay” means gameplay conducted on a personal computer or video game console, or locally connected personal computers or consoles, and not through an online service or facility.

    (E) A library, archives, or museum is considered “eligible” when the collections of the library, archives, or museum are open to the public and/or are routinely made available to researchers who are not affiliated with the library, archives, or museum.

    7. Proposed Class 10: Computer Programs—Security Research 56

    56 The Acting Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 284-315.

    The Office received multiple petitions to expand the existing exemption allowing circumvention for the purpose of conducting good-faith security research on certain types of software-enabled devices and machines. Proponents argued that the current language contains limitations that unnecessarily restrict its scope, as well as ambiguities that chill legitimate research. These include: (1) A provision limiting the exemption to specified categories of devices (“Device Limitation”); (2) a requirement that a device be “lawfully acquired” (“Lawfully Acquired Limitation”); (3) a requirement that circumvention be “solely” for the purpose of good-faith security research, and the definition of such research as accessing a program “solely” for purposes of good-faith testing, investigation, and/or correction (“Access Limitation”); (4) a requirement that the research be “carried out in a controlled environment designed to avoid any harm to individuals or the public” (“Controlled Environment Limitation”); (5) a requirement that “the information derived from the activity [be] used primarily to promote the security or safety of the class of devices or machines . . . or those who use such devices or machines, and is not used or maintained in a manner that facilitates copyright infringement” (“Use Limitation”); and (6) a requirement that the circumvention “not violate any applicable law” (“Other Laws Limitation”). Proponents maintained that the proposed activity is noninfringing on one or both grounds relied upon by the Register in 2015—section 117 and fair use.

    Opponents objected to removal of each of these provisions, arguing that the current language appropriately balances the interests of security researchers, copyright owners, and the general public. In their view, the adverse effects asserted by proponents are unsupported by the record and are based on unreasonable readings of the relevant text. Opponents also variously argued that removing the limitations would render the class impermissibly broad, give rise to infringing uses, and jeopardize public safety and national security.

    Following the close of the public comment period and the completion of the public hearings, the Office received a letter concerning this class from CCIPS. The CCIPS letter stated that “[m]any of the changes sought in the petition appear likely to promote productive cybersecurity research, and CCIPS supports them,” subject to certain limitations. With respect to the Device Limitation, CCIPS advised that it would support eliminating the language confining the exemption to devices “primarily designed for use by individual consumers.” It recommended clarification of the Controlled Environment Limitation and said that it “would not object to its removal.” As to the Lawfully Acquired Limitation, CCIPS stated concluded that the current language is preferable to conditioning the exemption on ownership of a particular copy of software. CCIPS also addressed the Other Laws Limitation, stating that it would not object to removal of the phrase “any applicable law” were it standing alone, but recommending retaining the express reference to the Computer Fraud and Abuse Act of 1986.

    NTIA recommended granting the proposed expansion and proposed the same regulatory text it offered in 2015. That language would allow circumvention “in order to conduct good faith security research” on computer programs, “regardless of the device on which they are run.” NTIA further recommended that the Other Laws Limitation be replaced with a statement that the exemption “does not obviate the need to comply with all other applicable laws and regulations.” In addition, NTIA recommended removal of the Controlled Environment, Access, and Use Limitations, largely agreeing with proponents that those provisions may chill legitimate research.

    The Acting Register found that good-faith security research involving devices beyond those covered by the current exemption is likely to be a fair use. As the Register found in 2015, the Acting Register concluded that good-faith security research promotes several of the activities identified in section 107 as examples of favored purposes, including criticism, comment, teaching, scholarship, and research. In contrast to 2015, the current rulemaking record contained many additional examples of activities security researchers wished to engage in but for the Device Limitation. But the Acting Register did not find that section 117 provides an additional basis for finding such activity to be noninfringing. She found the record insufficient to support the conclusion that security researchers as a general matter are likely to own the copies of the device software, as is required under section 117.

    Ultimately, the Acting Register recommended that the exemption remove the Device Limitation, and include a provision allowing circumvention to be undertaken on a “computer, computer system, or computer network on which the computer program operates.” The latter provision is intended to address situations in which a researcher seeks access to a structure, such as a building automation system, that cannot be “acquired” in the sense of obtaining physical possession of it, in contrast to instances where the researcher can lawfully acquire a device or machine. The exemption requires that circumvention in these circumstances be undertaken “with the authorization of the owner or operator of such computer, computer system, or computer network.” In addition, to address proponents' concerns over potential ambiguity in the Controlled Environment Limitation, the exemption removes the term “controlled,” so that it simply would require the research to be “carried out in an environment designed to avoid any harm to individuals or the public.” The Acting Register did not recommend removal of the other limitations challenged by proponents, finding that proponents had failed to demonstrate that those provisions are causing, or are likely to cause, any adverse effect on noninfringing security research.

    Accordingly, the Acting Register recommends that the Librarian adopt the following exemption:

    (i) Computer programs, where the circumvention is undertaken on a lawfully acquired device or machine on which the computer program operates, or is undertaken on a computer, computer system, or computer network on which the computer program operates with the authorization of the owner or operator of such computer, computer system, or computer network, solely for the purpose of good-faith security research and does not violate any applicable law, including without limitation the Computer Fraud and Abuse Act of 1986.

    (ii) For purposes of this paragraph (b)(11), “good-faith security research” means accessing a computer program solely for purposes of good-faith testing, investigation, and/or correction of a security flaw or vulnerability, where such activity is carried out in an environment designed to avoid any harm to individuals or the public, and where the information derived from the activity is used primarily to promote the security or safety of the class of devices or machines on which the computer program operates, or those who use such devices or machines, and is not used or maintained in a manner that facilitates copyright infringement.

    8. Proposed Class 12: Computer Programs—3D Printing 57

    57 The Acting Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 319-31.

    3D printing—also known as “additive” manufacturing—is a technology that translates digital files into physical objects by adding successive layers of material. Some 3D printer manufacturers use TPMs to limit the types of material—or “feedstock”—that can be used in their 3D printers to manufacturer-approved feedstock.

    Proponents sought to expand a current exemption that permits the circumvention of access controls on computer programs in 3D printers to enable the use of non- manufacturer-approved feedstock. Michael Weinberg filed a petition to eliminate the following language at the end of the exemption: “provided, however, that the exemption shall not extend to any computer program on a 3D printer that produces goods or materials for use in commerce the physical production of which is subject to legal or regulatory oversight or a related certification process, or where the circumvention is otherwise unlawful.”

    Proponents put forth two arguments as to why the Acting Register should broaden the exemption by dropping this language: (1) The clause creates ambiguity such that the exemption itself cannot be applied or used in the majority of circumstances, and (2) the concerns that the clause seeks to address are more suitably addressed by other agencies. Stratasys, an opponent to the exemption, contended that this expanded range of activities is less likely to constitute fair use and should remain prohibited for reasons of public policy.

    NTIA supported renewing the exemption as well as expanding the exemption by removing the relevant limiting language. NTIA's proposed language differed from the current regulatory language in additional ways. For example, NTIA proposed incorporating the restriction that “circumvention is undertaken for the purpose of enabling interoperability of feedstock or filament with the device.” NTIA, however, did not provide specific support for altering the regulatory text beyond removing the qualifying language.

    The 2015 rulemaking identified fair use as the noninfringing basis for this exemption, and the proposed expansion was evaluated on the same grounds. Because the record indicated that the state of the 3D printing market appears to be substantially the same as in 2015, and case law has not significantly altered the relevant fair use issues, the Acting Register concluded that the copying or modifying of printer software to accept non-manufacturer-approved feedstock is likely to be a fair use.

    Because the first four statutory factors do not fit neatly onto this situation, the Acting Register focused most of her analysis on the fifth factor to consider these related concerns. The Acting Register determined that the expanded record now shows that there are situations in which an individual may be complying with relevant law or regulations but still be at risk of violating section 1201 due to the exemption's qualifying language (e.g., individual sellers of homemade wares). The Acting Register concluded that the record established that the qualifying language in the existing exemption may be inhibiting otherwise beneficial or innovative uses of alternate feedstock, which is contrary to the intention of that exemption—and moreover, that there are safeguards outside of the current exemption addressing health and safety concerns associated with 3D printing.

    Accordingly, the Acting Register recommends that the Librarian adopt the following exemption:

    Computer programs that operate 3D printers that employ microchip-reliant technological measures to limit the use of feedstock, when circumvention is accomplished solely for the purpose of using alternative feedstock and not for the purpose of accessing design software, design files, or proprietary data.

    C. Classes Considered but Not Recommended

    Based upon the record in this proceeding, the Acting Register of Copyrights recommended that the Librarian determine that the following classes of works shall not be exempt from the prohibition against circumvention of technological measures set forth in section 1201(a)(1):

    1. Proposed Class 3: Audiovisual Works—Space-Shifting 58

    58 The Acting Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 111-28.

    Proposed Class 3 would allow circumvention of technical measures protecting motion pictures and other audiovisual works to engage in “space-shifting.” As the 2015 rulemaking described, the Copyright Office's understanding is that space-shifting occurs when a work is transferred from one storage medium to another, such as from a DVD to a computer hard drive. Chris De Pretis petitioned for an exemption to allow circumvention by individuals to create a personal digital backup of content for private use, a proposal similar to those sought and rejected in previous rulemakings. The Office also received a petition from OmniQ, a corporate entity, proposing an exemption to allow so-called “non-reproductive” space-shifting, including for commercial uses. A third proponent, SolaByte Corporation, filed a one-page comment in support of OmniQ and testified at the public hearing.

    OmniQ primarily argued that its proposed technology did not result in a reproduction of a copyrighted work, and thus fair use analysis was unnecessary. Proponents also argued that the overall availability of works for public use is shrinking because the hardware and software needed to play disc media are becoming less available in the marketplace. They argued that online content distribution platforms, taken in the aggregate, only offer a small and always-changing fraction of the titles historically available on DVD and Blu-ray disc, and that the costs of these services are unacceptable, especially when users already own the content in disc form.

    In response, opponents argued that OmniQ's technology would reproduce works because they would constitute entirely new things (i.e., a copy). Opponents also contended that recent case law developments further demonstrate that space-shifting is not a fair use. In addition, opponents provided evidence of alternatives to circumvention in the form of a substantial number of online distribution platforms for accessing copyrighted audiovisual works, the vast majority of which they claim exist as viable business models only because of the ability to employ TPMs to protect the content from unauthorized uses.

    Unlike in prior rulemakings where NTIA “supported limited versions of a noncommercial space-shifting exemption . . . mainly in the interest of consumer protection,” NTIA did not support an exemption for this class in the present rulemaking. NTIA acknowledged that the “legal status of the concept of space-shifting remains a matter of dispute among copyright experts” and that it “has not been explicitly established as non-infringing on the basis of the fair use doctrine.” NTIA added that “proponents ha[d] not established in this proceeding that their specific proposal would be non-infringing.” Moreover, NTIA recognized that “[p]roponents failed to demonstrate that the `prevalence of [encrypted digital content] is diminishing the ability of individuals to use these works in ways that are otherwise lawful.' ”

    The Acting Register found that under current law, OmniQ's self-described process is likely to result in an unauthorized reproduction in violation of section 106(1), and that, as in 2015, the case law maintains that transferring digital files from one location to another implicates the reproduction right and is therefore infringing, even where the original copy is contemporaneously or subsequently deleted. With regard to personal space-shifting, in light of the lack of record and in the absence of clear supporting precedent, the Acting Register found no basis to depart from the fair use analysis and ultimate conclusion reached in the 2015 proceeding, where the Register was unable to determine that the proposed uses were noninfringing. She noted that the commercial nature and potential market effects of the OmniQ and SolaByte business models complicate the fair use analysis, and not in their favor. For example, the record included substantial evidence of extensive markets for internet-based distribution services for copyrighted audiovisual works, including digital rentals, online streaming and over-the-top services, on-demand cable and satellite television offerings, disc-to-digital services, and digital locker services, which could be negatively impacted by the proposed exemption. These markets also served as sufficient alternatives to circumvention, as they demonstrated a wide availability of easily accessible copyrighted works that could potentially be negatively affected by an exemption that allowed unauthorized copies to compete with these authorized access models. Based on the record in this proceeding, the Acting Register did not find that the statutory factors supported the proposed exemption.

    2. Proposed Class 4: Audiovisual Works—HDCP/HDMI 59

    59 The Acting Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 128- 45.

    Proposed Class 4 would allow circumvention “to make noninfringing uses of audiovisual works that are subjected to High-bandwidth Digital Content Protection (HDCP).” Petitioner Andrew “bunnie” Huang described HDCP as “a protocol used to restrict content sent over High-Definition Multimedia Interface (HDMI) cables,” or “a standard for video transport from one device to another.” He explained that many devices that play video discs and video game software encode their output using HDCP, and that this interferes with capturing the output for subsequent noninfringing uses.

    Multiple participants opposed this exemption, arguing that section 1201 does not permit such a broad exemption, noting that HDCP is the industry standard for protecting audiovisual works in transit to a display device and that past Registers have rejected exemptions for “all noninfringing uses.” They characterized Huang's discussion of the proposed uses as “cursory,” and suggested it was not possible to evaluate the proposed uses under the exemption without further detail. Opponents also suggested that multiple proposed uses would actually be infringing, and highlighted what they see as a significant online infringement risk if the exemption permitted in-the-clear copies of entire works. In addition, opponents set forth a large number of concrete examples of potential alternatives to circumvention that the petitioner failed to meaningfully challenge. Finally, they asserted that “HDCP is a critically important component of the secure ecosystem through which content is delivered for home entertainment” and noted that section 1201 was intended to encourage copyright owners to make their works available digitally and foster new means of distribution by providing reasonable assurances against fears of piracy.

    NTIA recommended against this exemption, stating that “[p]roponents did not provide sufficient evidence on the record about the alleged non-infringing uses,” and that “[w]hile there are several examples of potential non-infringing uses that could serve as the basis for an exemption, the proponents [had] not developed the argument in the record . . . .” NTIA also observed that the proposed exemption “appear[ed] to be for the HDCP TPM itself, which is not appropriate for this rulemaking process.”

    The Acting Register also recommended against the exemption, largely agreeing with many of the bases advanced by opponents. Specifically, the Acting Register concluded that the proposed exemption was overly broad, as HDCP is the industry standard for protecting audiovisual works in transit to a display device, and thus limiting the proposal this way did not very meaningfully focus the scope beyond the starting point of all audiovisual works. The Acting Register also determined that some of the proposed uses may potentially be fair use depending upon factual circumstances, but that the record lacked the requisite detail and legal support for the Acting Register to conclude that the proposed uses are or are not likely to be noninfringing. Based upon the record, the Acting Register could not conclude that the overall availability for use of copyrighted works has been diminished or is likely to be in the next three years absent an exemption, noting that the proposed activities may well have a negative effect on the market for or value of copyrighted works. Finally, she concluded that the request was an individual case of de minimis impact, as it was largely made upon a single request of an individual who resides in Singapore for which there appeared to be myriad alternative ways to achieve the proposed uses.

    3. Proposed Class 11: Computer Programs—Avionics 60

    60 The Acting Register's analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 315-19.

    Proposed Class 11 would permit circumvention of access controls on electronic systems used in aircraft, i.e., avionics, to enable access to aircraft flight, operations, maintenance and security bulk data collected by third parties upon authorization of the aircraft owner or operator in the course of complying with Federal Aviation Administration (“FAA”) standards, rules, and regulations. Due to reliance upon these electronic systems, proponents asserted that aircraft “operators have faced a . . . rise in the complexity and scope of work needed to keep their fleet secure and operating efficiently,” and that the FAA “has mandated the review of the data, information, logs[,] and other information [by aircraft owners or operators] as a means to ensure safety, security[,] and regulatory compliance.”

    In NTIA's view, “[p]roponents failed to demonstrate that the proposed class includes copyrighted works protected by TPMs.” Moreover, NTIA continued, “Air Informatics failed to identify clearly the proposed users of the exemption,” suggesting that “the prohibition on circumvention does not adversely affect and is not likely to adversely affect users.” Lastly, NTIA maintained that “[r]easonable alternatives to circumvention seem to exist,” noting that “the two relevant parties can come to an agreement for access to and use of the data.”

    The Acting Register found that the record suggested that the data collected by aircrafts at issue consist of facts, which are not copyrightable. According to the petitioner, the information represents objective details about aircraft, such as flight operations and fuel economy. As Public Knowledge explained, the data inputs and outputs “are not classifiable as a `work' protected under Title 17” and such “access does not implicate any colorable copyright concerns.” The Acting Register also concluded that the collected information would not qualify as a copyrightable compilation, because it is formatted and compiled in accordance with an industry-wide standard. The Acting Register accordingly concluded that proponents have not alleged that the data or data compilations they are seeking to access are copyrightable, and thus subject to the prohibition on circumvention. Although petitioner raised some concerns regarding attempts by airplane manufacturers to control the aftermarket for the data in security research and analytics, the Acting Register determined that it was not clear that section 1201 is facilitating those actions, and noted that the security research exemption may potentially be utilized to cover such activities, to the extent applicable.

    C. Conclusion

    Having considered the evidence in the record, the contentions of the commenting parties, and the statutory objectives, the Acting Register of Copyrights has recommended that the Librarian of Congress publish certain classes of works, as designated above, so that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply to persons who engage in noninfringing uses of those particular classes of works.

    Dated: October 19, 2018. Karyn A. Temple, Acting Register of Copyrights and Director of the U.S. Copyright Office. Determination of the Librarian of Congress

    Having duly considered and accepted the Recommendation of the Acting Register of Copyrights, which Recommendation is hereby incorporated by reference, the Librarian of Congress, pursuant to 17 U.S.C. 1201(a)(1)(C) and (D), hereby publishes as a new rule the classes of copyrighted works that shall for a three-year period be subject to the exemption provided in 17 U.S.C. 1201(a)(1)(B) from the prohibition against circumvention of technological measures that effectively control access to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A).

    List of Subjects in 37 CFR Part 201

    Copyright, Exemptions to prohibition against circumvention.

    Final Regulations

    For the reasons set forth in the preamble, 37 CFR part 201 is amended as follows:

    PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 continues to read as follows: Authority:

    17 U.S.C. 702.

    2. Section 201.40 is amended by revising paragraphs (b) and (c) to read as follows:
    § 201.40 Exemptions to prohibition against circumvention.

    (b) Classes of copyrighted works. Pursuant to the authority set forth in 17 U.S.C. 1201(a)(1)(C) and (D), and upon the recommendation of the Register of Copyrights, the Librarian has determined that the prohibition against circumvention of technological measures that effectively control access to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A) shall not apply to persons who engage in noninfringing uses of the following classes of copyrighted works:

    (1) Motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Content System, or via a digital transmission protected by a technological measure, and the person engaging in circumvention under paragraph (b)(1)(i) and (b)(1)(ii)(A) and (B) of this section reasonably believes that non-circumventing alternatives are unable to produce the required level of high-quality content, or the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, where circumvention is undertaken solely in order to make use of short portions of the motion pictures in the following instances:

    (i) For the purpose of criticism or comment:

    (A) For use in documentary filmmaking, or other films where the motion picture clip is used in parody or for its biographical or historically significant nature;

    (B) For use in noncommercial videos (including videos produced for a paid commission if the commissioning entity's use is noncommercial); or

    (C) For use in nonfiction multimedia e-books.

    (ii) For educational purposes:

    (A) By college and university faculty and students or kindergarten through twelfth-grade (K-12) educators and students (where the K-12 student is circumventing under the direct supervision of an educator), including of accredited general educational development (GED) programs, for the purpose of criticism, comment, teaching, or scholarship;

    (B) By faculty of massive open online courses (MOOCs) offered by accredited nonprofit educational institutions to officially enrolled students through online platforms (which platforms themselves may be operated for profit), in film studies or other courses requiring close analysis of film and media excerpts, for the purpose of criticism or comment, where the MOOC provider through the online platform limits transmissions to the extent technologically feasible to such officially enrolled students, institutes copyright policies and provides copyright informational materials to faculty, students, and relevant staff members, and applies technological measures that reasonably prevent unauthorized further dissemination of a work in accessible form to others or retention of the work for longer than the course session by recipients of a transmission through the platform, as contemplated by 17 U.S.C. 110(2); or

    (C) By educators and participants in nonprofit digital and media literacy programs offered by libraries, museums, and other nonprofit entities with an educational mission, in the course of face-to-face instructional activities, for the purpose of criticism or comment, except that such users may only circumvent using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted.

    (2)(i) Motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where the motion picture is lawfully acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Content System, or via a digital transmission protected by a technological measure, where:

    (A) Circumvention is undertaken by a disability services office or other unit of a kindergarten through twelfth-grade educational institution, college, or university engaged in and/or responsible for the provision of accessibility services to students, for the purpose of adding captions and/or audio description to a motion picture to create an accessible version as a necessary accommodation for a student or students with disabilities under an applicable disability law, such as the Americans With Disabilities Act, the Individuals with Disabilities Education Act, or Section 504 of the Rehabilitation Act;

    (B) The educational institution unit in paragraph (b)(2)(i)(A) of this section has, after a reasonable effort, determined that an accessible version cannot be obtained at a fair price or in a timely manner; and

    (C) The accessible versions are provided to students or educators and stored by the educational institution in a manner intended to reasonably prevent unauthorized further dissemination of a work.

    (ii) For purposes of this paragraph (b)(2), “audio description” means an oral narration that provides an accurate rendering of the motion picture.

    (3) Literary works, distributed electronically, that are protected by technological measures that either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies:

    (i) When a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, that the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels; or

    (ii) When such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121.

    (4) Literary works consisting of compilations of data generated by medical devices that are wholly or partially implanted in the body or by their corresponding personal monitoring systems, where such circumvention is undertaken by a patient for the sole purpose of lawfully accessing the data generated by his or her own device or monitoring system and does not constitute a violation of applicable law, including without limitation the Health Insurance Portability and Accountability Act of 1996, the Computer Fraud and Abuse Act of 1986 or regulations of the Food and Drug Administration, and is accomplished through the passive monitoring of wireless transmissions that are already being produced by such device or monitoring system.

    (5) Computer programs that enable the following types of lawfully acquired wireless devices to connect to a wireless telecommunications network, when circumvention is undertaken solely in order to connect to a wireless telecommunications network and such connection is authorized by the operator of such network:

    (i) Wireless telephone handsets (i.e., cellphones);

    (ii) All-purpose tablet computers;

    (iii) Portable mobile connectivity devices, such as mobile hotspots, removable wireless broadband modems, and similar devices; and

    (iv) Wearable wireless devices designed to be worn on the body, such as smartwatches or fitness devices.

    (6) Computer programs that enable smartphones and portable all-purpose mobile computing devices to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smartphone or device, or to permit removal of software from the smartphone or device. For purposes of this paragraph (b)(6), a “portable all-purpose mobile computing device” is a device that is primarily designed to run a wide variety of programs rather than for consumption of a particular type of media content, is equipped with an operating system primarily designed for mobile use, and is intended to be carried or worn by an individual.

    (7) Computer programs that enable smart televisions to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smart television.

    (8) Computer programs that enable voice assistant devices to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the device, or to permit removal of software from the device, and is not accomplished for the purpose of gaining unauthorized access to other copyrighted works. For purposes of this paragraph (b)(8), a “voice assistant device” is a device that is primarily designed to run a wide variety of programs rather than for consumption of a particular type of media content, is designed to take user input primarily by voice, and is designed to be installed in a home or office.

    (9) Computer programs that are contained in and control the functioning of a lawfully acquired motorized land vehicle such as a personal automobile, commercial vehicle, or mechanized agricultural vehicle, except for programs accessed through a separate subscription service, when circumvention is a necessary step to allow the diagnosis, repair, or lawful modification of a vehicle function, where such circumvention does not constitute a violation of applicable law, including without limitation regulations promulgated by the Department of Transportation or the Environmental Protection Agency, and is not accomplished for the purpose of gaining unauthorized access to other copyrighted works.

    (10) Computer programs that are contained in and control the functioning of a lawfully acquired smartphone or home appliance or home system, such as a refrigerator, thermostat, HVAC, or electrical system, when circumvention is a necessary step to allow the diagnosis, maintenance, or repair of such a device or system, and is not accomplished for the purpose of gaining access to other copyrighted works. For purposes of this paragraph (b)(10):

    (i) The “maintenance” of a device or system is the servicing of the device or system in order to make it work in accordance with its original specifications and any changes to those specifications authorized for that device or system; and

    (ii) The “repair” of a device or system is the restoring of the device or system to the state of working in accordance with its original specifications and any changes to those specifications authorized for that device or system.

    (11)(i) Computer programs, where the circumvention is undertaken on a lawfully acquired device or machine on which the computer program operates, or is undertaken on a computer, computer system, or computer network on which the computer program operates with the authorization of the owner or operator of such computer, computer system, or computer network, solely for the purpose of good-faith security research and does not violate any applicable law, including without limitation the Computer Fraud and Abuse Act of 1986.

    (ii) For purposes of this paragraph (b)(11), “good-faith security research” means accessing a computer program solely for purposes of good-faith testing, investigation, and/or correction of a security flaw or vulnerability, where such activity is carried out in an environment designed to avoid any harm to individuals or the public, and where the information derived from the activity is used primarily to promote the security or safety of the class of devices or machines on which the computer program operates, or those who use such devices or machines, and is not used or maintained in a manner that facilitates copyright infringement.

    (12)(i) Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, when the copyright owner or its authorized representative has ceased to provide access to an external computer server necessary to facilitate an authentication process to enable gameplay, solely for the purpose of:

    (A) Permitting access to the video game to allow copying and modification of the computer program to restore access to the game for personal, local gameplay on a personal computer or video game console; or

    (B) Permitting access to the video game to allow copying and modification of the computer program to restore access to the game on a personal computer or video game console when necessary to allow preservation of the game in a playable form by an eligible library, archives, or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the video game is not distributed or made available outside of the physical premises of the eligible library, archives, or museum.

    (ii) Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, that do not require access to an external computer server for gameplay, and that are no longer reasonably available in the commercial marketplace, solely for the purpose of preservation of the game in a playable form by an eligible library, archives, or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the video game is not distributed or made available outside of the physical premises of the eligible library, archives, or museum.

    (iii) Computer programs used to operate video game consoles solely to the extent necessary for an eligible library, archives, or museum to engage in the preservation activities described in paragraph (b)(12)(i)(B) or (b)(12)(ii) of this section.

    (iv) For purposes of this paragraph (b)(12), the following definitions shall apply:

    (A) For purposes of paragraph (b)(12)(i)(A) and (b)(12)(ii) of this section, “complete games” means video games that can be played by users without accessing or reproducing copyrightable content stored or previously stored on an external computer server.

    (B) For purposes of paragraph (b)(12)(i)(B) of this section, “complete games” means video games that meet the definition in paragraph (b)(12)(iv)(A) of this section, or that consist of both a copy of a game intended for a personal computer or video game console and a copy of the game's code that was stored or previously stored on an external computer server.

    (C) “Ceased to provide access” means that the copyright owner or its authorized representative has either issued an affirmative statement indicating that external server support for the video game has ended and such support is in fact no longer available or, alternatively, server support has been discontinued for a period of at least six months; provided, however, that server support has not since been restored.

    (D) “Local gameplay” means gameplay conducted on a personal computer or video game console, or locally connected personal computers or consoles, and not through an online service or facility.

    (E) A library, archives, or museum is considered “eligible” when the collections of the library, archives, or museum are open to the public and/or are routinely made available to researchers who are not affiliated with the library, archives, or museum.

    (13)(i) Computer programs, except video games, that have been lawfully acquired and that are no longer reasonably available in the commercial marketplace, solely for the purpose of lawful preservation of a computer program, or of digital materials dependent upon a computer program as a condition of access, by an eligible library, archives, or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the program is not distributed or made available outside of the physical premises of the eligible library, archives, or museum.

    (ii) For purposes of the exemption in paragraph (b)(13)(i) of this section, a library, archives, or museum is considered “eligible” if—

    (A) The collections of the library, archives, or museum are open to the public and/or are routinely made available to researchers who are not affiliated with the library, archives, or museum;

    (B) The library, archives, or museum has a public service mission;

    (C) The library, archives, or museum's trained staff or volunteers provide professional services normally associated with libraries, archives, or museums;

    (D) The collections of the library, archives, or museum are composed of lawfully acquired and/or licensed materials; and

    (E) The library, archives, or museum implements reasonable digital security measures as appropriate for the activities permitted by this paragraph (b)(13).

    (14) Computer programs that operate 3D printers that employ microchip-reliant technological measures to limit the use of feedstock, when circumvention is accomplished solely for the purpose of using alternative feedstock and not for the purpose of accessing design software, design files, or proprietary data.

    (c) Persons who may initiate circumvention. To the extent authorized under paragraph (b) of this section, the circumvention of a technological measure that restricts wireless telephone handsets or other wireless devices from connecting to a wireless telecommunications network may be initiated by the owner of any such handset or other device, by another person at the direction of the owner, or by a provider of a commercial mobile radio service or a commercial mobile data service at the direction of such owner or other person, solely in order to enable such owner or a family member of such owner to connect to a wireless telecommunications network, when such connection is authorized by the operator of such network.

    Dated: October 19, 2018.

    Carla D. Hayden, Librarian of Congress
    .
    [FR Doc. 2018-23241 Filed 10-25-18; 8:45 am] BILLING CODE 1410-30-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 9 and 721 [EPA-HQ-OPPT-2017-0464; FRL-9985-55] 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 19 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 43538 on August 27, 2018, is withdrawn effective October 26, 2018.

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2017-0464 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 27, 2018 (83 FR 43538) (FRL-9982-24). 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 27, 2018 (83 FR 43538) (FRL-9982-24), EPA issued direct final SNURs for 19 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 19 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 27, 2018 (83 FR 43538) (FRL-9982-24), EPA issued proposed SNURs covering these 19 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 27, 2018 Federal Register (83 FR 43538). 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 17, 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 27, 2018 (83 FR 43538), are withdrawn effective October 26, 2018.
    [FR Doc. 2018-23574 Filed 10-25-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 9 and 721 [EPA-HQ-OPPT-2017-0560; FRL-9985-56] 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 10 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 43527 on August 27, 2018, is withdrawn effective October 26, 2018.

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2017-0560, 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 27, 2018 (83 FR 43527) (FRL-9982-77). 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 27, 2018 (83 FR 43527) (FRL-9982-77), EPA issued direct final SNURs for 10 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 10 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 27, 2018 (83 FR 43527) (FRL-9982-77), EPA issued proposed SNURs covering these 10 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 27, 2018 Federal Register (83 FR 43527). 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 17, 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 27, 2018 (83 FR 43527), are withdrawn effective October 26, 2018.
    [FR Doc. 2018-23582 Filed 10-25-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [NC-2018; FRL-9974-83-Region 4] Air Plan Approval; North Carolina; Update to Materials Incorporated by Reference AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule; notification of administrative change.

    SUMMARY:

    The Environmental Protection Agency (EPA) is updating the materials that are incorporated by reference (IBR) into the North Carolina state implementation plan (SIP). EPA is also revising the format for materials submitted by the local agency “Western North Carolina” that have been incorporated by reference into the SIP. The regulations affected by this update have been previously submitted by North Carolina and the local agencies, and have been previously approved by EPA. This update affects the materials that are available for public inspection at the National Archives and Records Administration (NARA) and the EPA Regional Office.

    DATES:

    This action is effective October 26, 2018.

    ADDRESSES:

    SIP materials which are incorporated by reference into 40 CFR part 52 are available for inspection at the following locations: Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, GA 30303; and the National Archives and Records Administration. 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. To view the materials at the Region 4 Office, EPA requests that you email the contact listed in the FOR FURTHER INFORMATION CONTACT section.

    FOR FURTHER INFORMATION CONTACT:

    Sean Lakeman, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Mr. Lakeman can be reached via telephone at (404) 562-9043 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    Each state has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring networks, attainment demonstrations, and enforcement mechanisms.

    Each state must formally adopt the control measures and strategies in the SIP after the public has had an opportunity to comment on them and then submit the proposed SIP revisions to EPA. Once these control measures and strategies are approved by EPA, and after notice and comment, they are incorporated into the federally-approved SIP and are identified in part 52 “Approval and Promulgation of Implementation Plans,” Title 40 of the Code of Federal Regulations (40 CFR part 52). The full text of the state regulation approved by EPA is not reproduced in its entirety in 40 CFR part 52, but is “incorporated by reference.” This means that EPA has approved a given state regulation or specified changes to the given regulation with a specific effective date. The public is referred to the location of the full text version should they want to know which measures are contained in a given SIP. The information provided allows EPA and the public to monitor the extent to which a state implements a SIP to attain and maintain the NAAQS and to take enforcement action if necessary.

    The SIP is a living document which the state can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on proposed revisions containing new and/or revised state regulations. A submission from a state can revise one or more rules in their entirety or portions of rules, even change a single word. The state indicates the changes in the submission (such as, by using redline/strikethrough) and EPA then takes action on the requested changes. EPA establishes a docket for its actions using a unique Docket Identification Number which is listed in each action. These dockets and the complete submission are available for viewing on www.regulations.gov.

    On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference, into the Code of Federal Regulations, materials approved by EPA into each state SIP. These changes revised the format for the identification of the SIP in 40 CFR part 52, streamlined the mechanisms for announcing EPA approval of revisions to a SIP, and streamlined the mechanisms for EPA's updating of the IBR information contained for each SIP in 40 CFR part 52. The revised procedures also called for EPA to maintain “SIP Compilations” that contain the federally-approved regulations and source specific permits submitted by each state agency. These SIP Compilations are updated primarily on an annual basis. Under the revised procedures, EPA must periodically publish an informational document in the rules section of the Federal Register notifying the public that updates have been made to a SIP Compilation for a particular state. EPA applied the 1997 revised procedures to: North Carolina on May 20, 1999 (64 FR 27465); Forsyth County on August 9, 2002 (67 FR 51763); and Mecklenburg County on October 22, 2002 (67 FR 64999).

    II. EPA Action

    This action represents EPA's publication of the North Carolina, Forsyth County, Mecklenburg County and Western North Carolina SIP Compilation update, appearing in 40 CFR part 52: specifically, the materials in paragraph (c) at 40 CFR 52.1770. This notice changes the format of paragraph (c) by: (1) Converting Tables 1, 2 and 3 to Volumes (1), (2) and (3); (2) adding Volume 4 “Western North Carolina”; (3) correcting typographical errors and; (4) provides notice of the following corrections to Volumes (1), (2) and (3) (previously Tables 1, 2 and 3) of paragraph (c) in section 52.1770, as described below:

    Changes Applicable to Volume (1), (2) and (3) (Previously Tables 1, 2 and 3)

    A. Under the “State Citation” column, “Sect” is changed to “Section” before all rules in table.

    B. Under the “State effective date” and “EPA approval date” columns: The 2-digit year is changed to reflect a 4-digit year (for consistency), any leading zeroes have been removed for the month, and numerous Federal Register citations are corrected to reflect the first page of the preamble as opposed to the regulatory text page.

    C. The last column is changed to read “Explanation” in all Volumes for consistency.

    Changes Applicable to Volume 1—EPA Approved North Carolina Regulations (Previously Table 1) Subchapter 2D—Air Pollution Control Requirements

    A. Section .0101 and Section .0103: The State effective date was revised to read “12/1/2005”.

    B. Section .0520 and Section .0929: The entries were removed from the table because EPA previously approved removal of these provisions from the SIP. See 62 FR 41277 (August 1, 1997).

    C. Section .0530: The EPA approval date was added to read “9/14/2016, 81 FR 63107.”

    D. Section .0903: The Title/subject was revised to read “Recordkeeping: Reporting: Monitoring”.

    E. Section .0907, Section .0910, and Section .0911: These entries were removed from the table because EPA previously approved removal of these provisions from the SIP. 64 FR 55831 (October 15, 1999).

    F. Section .0909: The Title/subject was revised to read “Compliance Schedules for Sources in Ozone Nonattainment and Maintenance Areas.”

    G. Section .0913, Section .0914, Section .0915, Section .0916, Section .0917, Section .0920, Section .0921, Section .0934, Section .0936, Section .0939, Section .0940, Section .0941, Section .0942, Section .1416, Section .1417, Section .1419, Section .1420, Section .1421, and Section .1422: These entries were removed from the table because EPA previously approved removal of these provisions from the SIP. 78 FR 27065 (May 9, 2013).

    H. Section .0938: The entry was removed from the table because EPA previously approved removal of this provision from the SIP. 64 FR 61213 (November 10, 1999).

    I. Section .0953 and Section .0954: The entries were removed from the table because EPA previously approved removal of these provisions from the SIP. 78 FR 58184 (September 23, 2013).

    J. Section .0959: The entry was removed because this provision was not incorporated into the SIP. See 68 FR 66350 (November 26, 2003).

    K. Section .0963: The Title/subject was revised to read “Fiberglass Boat Manufacturing Materials”.

    L. Section .0966: The Title/subject was revised to read “Paper, Film and Foil Coatings.”

    M. Section .1004: The entry was removed from the table because EPA previously approved removal of this provision from the SIP. See 80 FR 6455 (February 5, 2015).

    N. Section .1409: The Title/subject was revised to read “Stationary Internal Combustion Engines.”

    O. Section .1418: The Title/subject was revised to read “New Electric Generating Units, Large Boilers, and Large I/C Engines.”

    P. Section .1903: The Title/subject was revised to read “Open Burning Without An Air Quality Permit.”

    Q. Section .1901, Section .1902, and Section .1903: The State effective date was revised to read “7/1/2007.”

    R. Section .2001: The State effective date was revised to read “12/1/2005”.

    S. Section .2602: The Title/subject was revised to read “General Provisions on Test Methods and Procedures.”

    T. Section .2614: The Title/subject was revised to read “Determination of VOC Emission Control System Efficiency.”

    Subchapter 2Q—Air Quality Permits

    A. Section .0103, Section .0105, Section .0304, and Section .0305: The State effective date was revised to read “12/1/2005.”

    B. Section .0806: The State effective date was revised to read “6/1/2004.”

    Changes Applicable to Volume 2—EPA Approved Forsyth County Regulations (Previously Table 2) Subchapter 3D—Air Pollution Control Requirements

    A. Section .0103: The Title/subject was revised to read “Copies of Referenced Federal Regulations”.

    B. Section .0504: The word “Repealed” was removed from the Explanation column (previously Comment column) because the section was approved into the SIP on September 16, 2003 (68 FR 54163).

    C. Section .0507: The FR citation was corrected to read “2/17/2000, 65 FR 8053.”

    D. Section .0512: The State effective date was revised to read “7/28/1997” and the EPA approval date was revised to read “12/31/1998, 63 FR 72190”.

    E. Section .0516: The State effective date was revised to read “11/29/1995” and the EPA approval date was revised to read “5/23/1996, 61 FR 25789”.

    F. Section .0517: The State effective date was revised to read “6/14/1990” and the EPA approval date was revised to read “5/2/1991, 56 FR 20140”.

    G. Section .0542: A duplicate entry in Section .0500 Emission Control Standards for Section .0542 was removed, and the word “Repealed” was removed from the Explanation column (previously Comment column) because EPA previously approved the section into the SIP.

    H. Section .0914: The Title/subject was revised to read “Determination of VOC Emission Control System Efficiency”.

    I. Section .0944: The Title/subject was revised to read “Manufacture of Polyethylene, Polypropylene and Polystyrene”.

    J. Section .0947: The Title/subject was revised to read “Manufacture of Synthesized Pharmaceutical Products”.

    K. Section .0957: The State effective date was revised to read “11/29/1995” and the EPA approval date was revised to read “5/23/1996, 61 FR 25789”.

    Subchapter 3Q—Air Quality Permits

    A. Section .0311: The Title/subject was revised to read “Permitting of Facilities at Multiple Temporary Sites”.

    B. Section .0803: The State effective date was revised to read “7/30/1999” and the EPA approval date was revised to read “10/22/2002, 75 FR 64994”.

    Changes Applicable to Volume 3—EPA Approved Mecklenburg County Regulations (Previously Table 3) Article 1.000 Permitting Provisions for Air Pollution Sources, Rules and Operating Regulations for Acid Rain Sources, Title V and Toxic Air Pollutants

    A. Section 1.5231: The Title/subject was revised to read “Air Quality Fees”.

    Article 2.0000 Air Pollution Control Regulations and Procedures

    A. Section 2.0610: The Title/subject was revised to read “Federal Monitoring Requirements”.

    B. Section 2.0925: The State effective date was revised to read “3/1/1991” and the EPA approval date was revised to read “6/23/1994, 59 FR 32362”.

    C. Section 2.0926: The State effective date was revised to read “3/1/1991” and the EPA approval date was revised to read “6/23/1994, 59 FR 32362”.

    D. Section 2.0928: The State effective date was revised to read “3/1/1991” and the EPA approval date was revised to read “6/23/1994, 59 FR 32362”.

    E. Section 2.0929: The State effective date was revised to read “3/1/1991” and the EPA approval date was revised to read “6/23/1994, 59 FR 32362”.

    F. Section 2.0930: The State effective date was revised to read “3/1/1991” and the EPA approval date was revised to read “6/23/1994, 59 FR 32362”.

    G. Section 2.0934: The State effective date was revised to read “3/1/1991” and the EPA approval date was revised to read “6/23/1994, 59 FR 32362”.

    H. Section 2.0943: The State effective date was revised to read “3/1/1991” and the EPA approval date was revised to read “6/23/1994, 59 FR 32362”.

    I. Section 2.0944: The State effective date was revised to read “3/1/1991” and the EPA approval date was revised to read “6/23/1994, 59 FR 32362”.

    J. Section 2.0951: An entry was added for Section 2.0951 “Miscellaneous Volatile Organic Compound Emissions”, which was approved on 10/22/2002 (67 FR 64999).

    K. Section 2.0958: An entry was added for Section 2.0958 “Work Practices for Sources of Volatile Organic Compounds”, which was approved on 10/22/2002 (67 FR 64999).

    III. Good Cause Exemption

    EPA has determined that this action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make an action effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). This administrative action simply codifies provisions which are already in effect as a matter of law in Federal and approved state programs and corrects typographical errors appearing in the CFR. Under section 553(b)(3)(B) of the APA, an agency may find good cause where procedures are “impracticable, unnecessary, or contrary to the public interest.” Public comment for this administrative action is “unnecessary” and “contrary to the public interest” since the codification (and typographical corrections) only reflect existing law. Immediate notice of this action in the Federal Register benefits the public by providing the public notice of the updated North Carolina SIP Compilation and notice of typographical corrections to the North Carolina “Identification of Plan” portion of the Federal Register. Further, pursuant to section 553(d)(3), making this action immediately effective benefits the public by immediately updating both the SIP compilation and the CFR “Identification of plan” section (which includes table entry corrections).

    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 previously EPA-approved regulations promulgated by North Carolina, Forsyth County, Mecklenburg County, and Western North Carolina, and federally effective prior to October 1, 2017. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    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 Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this notification of administrative change 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);

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

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

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

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

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

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

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

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

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

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

    EPA also believes that the provisions of section 307(b)(1) of the CAA pertaining to petitions for judicial review are not applicable to this action. This is because prior EPA rulemaking actions for each individual component of the North Carolina SIP compilations previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA believes judicial review of this action under section 307(b)(1) is not available.

    List of Subjects in 40 CFR Part 52

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

    Dated: August 28, 2018. Onis “Trey” Glenn, III, Regional Administrator, Region 4.

    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 II—North Carolina 2. In § 52.1770 paragraphs (b) and (c) are revised to read as follows:
    § 52.1770 Identification of plan.

    (b) Incorporation by reference. (1) Material listed in paragraph (c) of this section with an EPA approval date prior to October 1, 2017, for North Carolina (Volume 1), Forsyth County (Volume 2), Mecklenburg County (Volume 3) and Western North Carolina (Volume 4) was approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Material is incorporated as it exists on the date of the approval, and notice of any change in the material will be published in the Federal Register. Entries in paragraph (c)(1), (2), (3) and (4) of this section with EPA approval dates after October 1, 2017, for North Carolina (Volume 1), Forsyth County (Volume 2), Mecklenburg County (Volume 3) and Western North Carolina (Volume 4), will be incorporated by reference in the next update to the SIP compilation.

    (2) EPA Region 4 certifies that the rules/regulations provided by EPA in the SIP compilation at the addresses in paragraph (b)(3) of this section are an exact duplicate of the officially promulgated State rules/regulations which have been approved as part of the State Implementation Plan as of the dates referenced in paragraph (b)(1).

    (3) Copies of the materials incorporated by reference may be inspected at the Region 4 EPA Office at 61 Forsyth Street SW, Atlanta, GA 30303. To obtain the material, please call (404) 562-9022. You may inspect the material with an EPA approval date prior to October 1, 2017, for North Carolina at the National Archives and Records Administration. For information on the availability of this material at NARA go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    (c) EPA approved regulations.

    (1) EPA Approved North Carolina Regulations State citation Title/subject State
  • effective date
  • EPA approval date Explanation
    Subchapter 2D Air Pollution Control Requirements Section .0100 Definitions and References Section .0101 Definitions 12/1/2005 7/18/2017, 82 FR 32767 Section .0103 Copies of Referenced Federal Regulations 12/1/2005 7/18/2017, 82 FR 32767 Section .0104 Incorporation by Reference 1/15/1998 11/10/1999, 64 FR 61213 Section .0105 Mailing List 7/1/2002 9/17/2003, 68 FR 54362 Section .0200 Air Pollution Sources Section .0201 Classification of Air Pollution Sources 4/12/1984 10/11/1985, 50 FR 41501 Section .0202 Registration of Air Pollution Sources 1/15/1998 11/10/1999, 64 FR 61213 Section .0300 Air Pollution Emergencies Section .0301 Purpose 2/1/1976 6/3/1986, 51 FR 19834 Section .0302 Episode Criteria 1/15/1998 11/10/1999, 64 FR 61213 Section .0303 Emission Reduction Plans 4/12/1984 10/11/1985, 50 FR 41501 Section .0304 Preplanned Abatement Program 4/14/1988 12/12/1988, 53 FR 49881 Section .0305 Emission Reduction Plan—Alert Level 4/12/1984 10/11/1985, 50 FR 41501 Section .0306 Emission Reduction Plan—Warning Level 4/12/1984 10/11/1985, 50 FR 41501 Section .0307 Emission Reduction Plan—Emergency Level 4/12/1984 10/11/1985, 50 FR 41501 Section .0400 Ambient Air Quality Standards Section .0401 Purpose 12/1/1992 8/15/1994, 59 FR 41708 Section .0402 Sulfur Dioxide 9/1/2011 7/20/2015, 80 FR 42733 Section .0403 Total Suspended Particulates 7/1/1988 1/16/1990, 55 FR 1419 Section .0404 Carbon Monoxide 10/1/1989 3/12/1990, 55 FR 9125 Section .0405 Ozone 1/1/2010 5/16/2013, 78 FR 28747 Section .0407 Nitrogen Dioxide 9/1/2011 7/20/2015, 80 FR 42733 Section .0408 Lead 1/1/2010 5/16/2013, 78 FR 28747 Section .0409 Particulate Matter 1/1/2010 6/30/2014, 79 FR 36655 Section .0410 PM2.5 Particulate Matter 9/1/2015 7/14/2016, 81 FR 45421 Section .0500 Emission Control Standards Section .0501 Compliance with Emission Control Standards 4/1/2001 8/8/2002, 67 FR 51461 Section .0502 Purpose 3/1/1981 7/26/1982, 47 FR 32118 Section .0503 Particulates from Fuel Burning Indirect Heat Exchangers 5/1/1999 10/22/2002, 67 FR 64989 Section .0504 Particulates from Wood Burning Indirect Heat Exchangers 7/1/2002 12/27/2002, 67 FR 78980 Section .0505 Control of Particulates from Incinerators 7/1/1987 2/29/1988, 53 FR 5974 Section .0506 Particulates from Hot Mix Asphalt Plants 3/20/1998 11/10/1999, 64 FR 61213 Section .0507 Particulates from Chemical Fertilizer Manufacturing Plants 4/1/2003 9/17/2003, 68 FR 54362 Section .0508 Particulates from Pulp and Paper Mills 3/20/1998 11/10/1999, 64 FR 61213 Section .0509 Particulates from Mica or Feldspar Processing Plants 4/1/2003 9/17/2003, 68 FR 54362 Section .0510 Particulates from Sand, Gravel, or Crushed Stone Operations 3/20/1998 11/10/1999, 64 FR 61213 Section .0511 Particulates from Lightweight Aggregate 3/20/1998 11/10/1999, 64 FR 61213 Section .0512 Particulates from Wood Products Finishing Plants 11/1/1984 12/19/1986, 51 FR 45468 Section .0513 Particulates from Portland Cement Plants 3/20/1998 11/10/1999, 64 FR 61213 Section .0514 Particulates from Ferrous Jobbing Foundries 3/20/1998 11/10/1999, 64 FR 61213 Section .0515 Particulates from Miscellaneous Industrial Processes 4/1/2003 9/17/2003, 68 FR 54362 Section .0516 Sulfur Dioxide Emissions from Combustion Sources 4/1/2003 9/17/2003, 68 FR 54362 Section .0517 SO2 Emissions from Plants Producing Sulfuric Acid 11/1/1984 12/19/1986, 51 FR 45468 Section .0519 Control of Nitrogen Dioxide and Nitrogen Oxides 1/1/2005 8/22/2008, 73 FR 49613 Section .0521 Control of Visible Emissions 1/1/2005 10/25/2005, 70 FR 61556 Approving changes to Paragraphs (c) and (d) that reference new Paragraph (g). Also, approving Paragraph (g) excluding the following language: “excluding startups, shutdowns, maintenance periods when fuel is not being combusted, and malfunctions approved as such according to procedures approved under Rule .0535 of this Section.” Section .0522 Control and Prohibition of Odorous Emissions 2/1/1976 6/3/1986, 51 FR 19834 Section .0523 Control of Conical Incinerators 1/1/1985 9/9/1987, 52 FR 33933 Section .0527 Emissions from Spodumene Ore Roasting 11/1/1984 12/19/1986, 51 FR 45468 Section .0530 Prevention of Significant Deterioration 9/1/2017 [Use current CFR date and citation] Section .0531 Sources in Nonattainment Areas 9/1/2013 9/14/2016, 81 FR 63107 Section .0532 Sources Contributing to an Ambient Violation 7/1/1994 2/1/1996, 61 FR 3584 Section .0533 Stack Height 7/1/1994 2/1/1996, 61 FR 3584 Section .0535 Excess Emissions Reporting and Malfunctions 7/1/1996 8/1/1997, 62 FR 41277 Section .0536 Particulate Emissions from Electric Utility Boilers 8/1/1991 2/14/1996, 61 FR 5689 Section .0540 Particulates from Fugitive Non-process Dust Emission Sources 3/20/1998 11/10/1999, 64 FR 61213 Section .0542 Control of Particulate Emissions from Cotton Ginning Operations 7/1/2002 12/27/2002, 67 FR 78980 Section .0543 Best Available Retrofit Technology 9/6/2006 6/27/2012, 77 FR 38185 Section .0544 Prevention of Significant Deterioration Requirements for Greenhouse Gases 12/16/2010 10/18/2011, 76 FR 64240 Section .0600 Air Contaminants; Monitoring, Reporting Section .0601 Monitoring: Recordkeeping: Reporting 4/1/1999 8/8/2002, 67 FR 51461 Section .0602 Definitions 4/1/1999 8/8/2002, 67 FR 51461 Section .0604 Exceptions to Monitoring and Reporting Requirements 4/1/1999 8/8/2002, 67 FR 51461 Section .0605 General Recordkeeping and Reporting Requirements 11/1/2006 10/31/2007, 72 FR 61531 Section .0606 Sources Covered by Appendix P of 40 CFR part 51 1/1/2005 8/22/2008, 73 FR 49613 Section .0607 Large Wood and Wood-Fossil Fuel Combination Units 4/1/1999 8/8/2002, 67 FR 51461 Section .0608 Other Large Coal or Residual Oil Burners 1/1/2005 8/22/2008, 73 FR 49613 Section .0609 Monitoring Condition in Permit 4/12/1984 10/4/1985, 50 FR 41501 Section .0610 Federal Monitoring Requirements 4/1/1999 8/8/2002, 67 FR 51461 Section .0611 Monitoring Emissions from Other Sources 4/1/1999 8/8/2002, 67 FR 51461 Section .0612 Alternative Monitoring and Reporting Procedures 4/1/1999 8/8/2002, 67 FR 51461 Section .0613 Quality Assurance Program 4/1/1999 8/8/2002, 67 FR 51461 Section .0614 Compliance Assurance Monitoring 4/1/1999 8/8/2002, 67 FR 51461 Section .0615 Delegation 4/1/1999 8/8/2002, 67 FR 51461 Section .0900 Volatile Organic Compounds Section .0901 Definitions 1/1/2009 5/9/2013, 78 FR 27065 Section .0902 Applicability 5/1/2013 9/23/2013, 78 FR 58184 This approval does not include the start-up shutdown language as described in Section II.A.a. of EPA's 3/13/2013 proposed rule (78 FR 15895). Section .0903 Recordkeeping: Reporting: Monitoring 5/1/2013 7/25/2013, 78 FR 44892 Section .0905 Petition for Alternative Controls 11/8/1984 12/19/1986, 51 FR 45468 Section .0906 Circumvention 11/8/1984 12/19/1986, 51 FR 45468 Section .0908 Equipment Modification Compliance Schedules 11/8/1984 12/19/1986, 51 FR 45468 Section .0909 Compliance Schedules for Sources in Ozone Nonattainment and Maintenance Areas 5/1/2013 9/23/2013, 78 FR 58186 Section .0912 General Provisions on Test Methods and Procedures 3/13/2008 5/9/2013, 78 FR 27065 Section .0918 Can Coating 7/1/1996 8/1/1997, 62 FR 41277 Section .0919 Coil Coating 7/1/1996 8/1/1997, 62 FR 41277 Section .0922 Metal Furniture Coating 9/1/2010 5/9/2013, 78 FR 27065 Section .0923 Surface Coating of Large Appliance 9/1/2010 5/9/2013, 78 FR 27065 Section .0924 Magnet Wire Coating 7/1/1996 8/1/1997, 62 FR 41277 Section .0925 Petroleum Liquid Storage 12/1/1989 6/23/1994, 59 FR 32362 Section .0926 Bulk Gasoline Plants 7/1/1996 8/1/1997, 62 FR 41277 Section .0927 Bulk Gasoline Terminals 6/1/2008 5/9/2013, 78 FR 27065 Section .0928 Gasoline Service Stations Stage I 7/1/1996 8/1/1997, 62 FR 41277 Section .0930 Solvent Metal Cleaning 6/1/2008 5/9/2013, 78 FR 27065 Section .0931 Cutback Asphalt 12/1/1989 6/23/1994, 59 FR 32362 Section .0932 Gasoline Truck Tanks and Vapor Collection Systems 11/7/2007 5/9/2013, 78 FR 27065 Section .0933 Petroleum Liquid Storage in External Floating Roof Tanks 8/1/2004 5/9/2013, 78 FR 27065 Section .0935 Factory Surface Coating of Flat Wood Paneling 9/1/2010 5/9/2013, 78 FR 27065 Section .0937 Manufacture of Pneumatic Rubber Tires 7/1/1996 8/1/1997, 62 FR 41277 Section .0943 Synthetic Organic Chemical and Polymer Manufacturing 11/7/2007 5/9/2013, 78 FR 27065 Section .0944 Manufacture of Polyethylene, Polypropylene, and Polystyrene 3/14/1985 11/19/1986, 51 FR 41786 Section .0945 Petroleum Dry Cleaning 11/7/2007 5/9/2013, 78 FR 27065 Section .0947 Manufacture of Synthesized Pharmaceutical Products 7/1/1994 5/5/1995, 60 FR 22284 Section .0948 VOC Emissions from Transfer Operations 7/1/2000 8/27/2001, 66 FR 34117 Section .0949 Storage of Miscellaneous Volatile Organic Compounds 7/1/2000 8/27/2001, 66 FR 34117 Section .0951 RACT for Sources of Volatile Organic Compounds 5/1/2013 7/25/2013, 78 FR 44890 Section .0952 Petitions for Alternative Controls for RACT 9/18/2009 9/23/2013, 78 FR 58184 Section .0955 Thread Bonding Manufacturing 4/1/1995 2/1/1996, 61 FR 3588 Section .0956 Glass Christmas Ornament Manufacturing 4/1/1995 2/1/1996, 61 FR 3588 Section .0957 Commercial Bakeries 4/1/1995 2/1/1996, 62 FR 3588 Section .0958 Work Practices for Sources of Volatile Organic Compounds 7/1/2000 8/27/2001, 66 FR 34117 Section .0961 Offset Lithographic Printing and Letterpress Printing 5/1/2013 7/25/2013, 78 FR 44890 Section .0962 Industrial Cleaning Solvents 5/1/2013 7/25/2013, 78 FR 44890 Section .0963 Fiberglass Boat Manufacturing Materials 9/1/2010 5/9/2013, 78 FR 27065 Section .0964 Miscellaneous Industrial Adhesives 9/1/2010 5/9/2013, 78 FR 27065 Section .0965 Flexible Package Printing 9/1/2010 5/9/2013, 78 FR 27065 Section .0966 Paper, Film and Foil Coatings 9/1/2010 5/9/2013, 78 FR 27065 Section .0967 Miscellaneous Metal and Plastic Parts Coatings 9/1/2010 5/9/2013, 78 FR 27065 Section .0968 Automobile and Light Duty Truck Assembly Coatings 9/1/2010 5/9/2013, 78 FR 27065 Section .1000 Motor Vehicle Emissions Control Standards Section .1001 Purpose 7/1/2002 10/30/2002, 67 FR 66056 Section .1002 Applicability 1/1/2014 4/10/2017, 82 FR 17145 Paragraph (a)(3) of Section .1002 is hereby rescinded as this paragraph is inconsistent with the limits on the waiver of sovereign immunity established in section 118(a) of the CAA. Section .1003 Definitions 2/1/2014 2/5/2015, 80 FR 6455 Section .1005 On-Board Diagnostic Standards 1/1/2014 2/5/2015, 80 FR 6455 Section .1300 Oxygenated Gasoline Standard Section .1301 Purpose 9/1/1996 6/19/2007, 72 FR 33692 Section .1302 Applicability 9/1/1996 6/19/2007, 72 FR 33692 Section .1303 Definitions 9/1/1992 6/30/1994, 59 FR 33683 Section .1304 Oxygen Content Standard 9/1/1996 06/19/2007, 72 FR 33692 Section .1305 Measurement and Enforcement 9/1/1992 6/30/1994, 59 FR 33683 Section .1400 Nitrogen Oxides Section .1401 Definitions 7/15/2002 12/27/2002, 67 FR 78987 Section .1402 Applicability 1/1/2010 5/9/2013, 78 FR 27065 Section .1403 Compliance Schedules 7/1/2007 5/9/2013, 78 FR 27065 Section .1404 Recordkeeping: Reporting: Monitoring 5/1/2004 5/9/2013, 78 FR 27065 Section .1407 Boilers and Indirect Process Heaters 7/15/2002 5/9/2013, 78 FR 27065 Section .1408 Stationary Combustion Turbines 7/15/2002 5/9/2013, 78 FR 27065 Section .1409 Stationary Internal Combustion Engines 3/13/2008 5/9/2013, 78 FR 27065 Section .1410 Emissions Averaging 3/13/2008 5/9/2013, 78 FR 27065 Section .1411 Seasonal Fuel Switching 3/13/2008 5/9/2013, 78 FR 27065 Section .1412 Petition for Alternative Limitations 3/13/2008 5/9/2013, 78 FR 27065 Section .1415 Test Methods and Procedures 3/13/2008 5/9/2013, 78 FR 27065 Section .1418 New Electric Generating Units, Large Boilers, and Large I/C Engines 3/13/2008 5/9/2013, 78 FR 27065 Section .1423 Large Internal Combustion Engines 7/15/2002 12/27/2002, 67 FR 78987 Section .1900 Open Burning Section .1901 Open Burning: Purpose: Scope 7/1/2007 7/18/2017, 82 FR 32767 Section .1902 Definitions 7/1/2007 7/18/2017, 82 FR 32767 Section .1903 Open Burning Without an Air Quality Permit 7/1/2007 7/18/2017, 82 FR 32767 Section .1904 Air Curtain Burners 7/1/1996 8/1/1997, 62 FR 41277 Section .2000 Transportation Conformity Section .2001 Purpose, Scope and Applicability 12/1/2005 7/18/2017, 82 FR 32767 Section .2002 Definitions 4/1/1999 12/27/2002, 67 FR 78983 Section .2003 Transportation Conformity Determination 4/1/1999 12/27/2002, 67 FR 78983 Except for the incorporation by reference of 40 CFR 93.104(e) of the Transportation Conformity Rule. Section .2004 Determining Transportation Related Emissions 4/1/1999 12/27/2002, 67 FR 78983 Section .2005 Memorandum of Agreement 4/1/1999 12/27/2002, 67 FR 78983 Section .2400 Clean Air Interstate Rules Section .2401 Purpose and Applicability 5/1/2008 11/30/2009, 74 FR 62496 Section .2402 Definitions 5/1/2008 11/30/2009, 74 FR 62496 Section .2403 Nitrogen Oxide Emissions 5/1/2008 11/30/2009, 74 FR 62496 Section .2404 Sulfur Dioxide 5/1/2008 11/30/2009, 74 FR 62496 Section .2405 Nitrogen Oxide Emissions During Ozone Season 5/1/2008 11/30/2009, 74 FR 62496 Section .2406 Permitting 7/1/2006 11/30/2009, 74 FR 62496 Section .2407 Monitoring, Reporting, and Recordkeeping 5/1/2008 11/30/2009, 74 FR 62496 Section .2408 Trading Program and Banking 7/1/2006 11/30/2009, 74 FR 62496 Section .2409 Designated Representative 5/1/2008 11/30/2009, 74 FR 62496 Section .2410 Computation of Time 7/1/2006 11/30/2009, 74 FR 62496 Section .2411 Opt-In Provisions 7/1/2006 11/30/2009, 74 FR 62496 Section .2412 New Unit Growth 5/1/2008 11/30/2009, 74 FR 62496 Section .2413 Periodic Review and Reallocations 7/1/2006 11/30/2009, 74 FR 62496 Section .2600 Source Testing Section .2601 Purpose and Scope 3/13/2008 5/9/2013, 78 FR 27065 Section .2602 General Provisions on Test Methods and Procedures 3/13/2008 5/9/2013, 78 FR 27065 Section .2603 Testing Protocol 3/13/2008 5/9/2013, 78 FR 27065 Section .2604 Number of Test Points 3/13/2008 5/9/2013, 78 FR 27065 Section .2605 Velocity and Volume Flow Rate 3/13/2008 5/9/2013, 78 FR 27065 Section .2606 Molecular Weight 3/13/2008 5/9/2013, 78 FR 27065 Section .2607 Determination of Moisture Content 3/13/2008 5/9/2013, 78 FR 27065 Section .2608 Number of Runs and Compliance Determination 3/13/2008 5/9/2013, 78 FR 27065 Section .2612 Nitrogen Oxide Testing Methods 3/13/2008 5/9/2013, 78 FR 27065 Section .2613 Volatile Organic Compound Testing Methods 3/13/2008 5/9/2013, 78 FR 27065 Section .2614 Determination of VOC Emission Control System Efficiency 3/13/2008 5/9/2013, 78 FR 27065 Section .2615 Determination of Leak Tightness and Vapor Leaks 3/13/2008 5/9/2013, 78 FR 27065 Section .2621 Determination of Fuel Heat Content Using F-Factor 3/13/2008 5/9/2013, 78 FR 27065 Subchapter 2Q Air Quality Permits Section .0100 General Provisions Section .0101 Required Air Quality Permits 3/20/1998 11/10/1999, 64 FR 61213 Section. 0102 Activities Exempted from Permit Requirements 1/1/2005 8/22/2008, 73 FR 49613 Section .0103 Definitions 12/1/2005 7/18/2017, 82 FR 32767 Section .0104 Where to Obtain and File Permit Applications 7/1/2002 12/27/2002, 67 FR 78980 Section .0105 Copies of Referenced Documents 12/1/2005 7/18/2017, 82 FR 32767 Section .0106 Incorporation by Reference 8/15/1994 2/1/1996, 61 FR 3584 Section .0107 Confidential Information 5/1/1999 10/22/2002, 67 FR 64989 Section .0108 Delegation of Authority 3/15/1998 11/10/1999, 64 FR 61213 Section .0109 Compliance Schedule for Previously Exempted Activities 4/1/2001 8/8/2002, 67 FR 51461 Section .0110 Retention of Permit at Permitted Facility 8/15/1994 2/1/1996, 61 FR 3584 Section .0111 Applicability Determinations 8/15/1994 2/1/1996, 61 FR 3584 Section .0200 Permit Fees Section .0207 Annual Emissions Reporting 7/1/2007 4/24/2012, 77 FR 24382 Section .0300 Construction and Operating Permits Section .0301 Applicability 7/1/1994 7/28/1995, 60 FR 38710 Section .0303 Definitions 7/1/1994 7/28/1995, 60 FR 38710 Section .0304 Applications 12/1/2005 7/18/2017, 82 FR 32767 Section .0305 Application Submittal Content 12/1/2005 7/18/2017, 82 FR 32767 Section .0306 Permits Requiring Public Participation 7/1/1999 10/22/2002, 67 FR 64989 Section .0307 Public Participation Procedures 1/15/1998 11/10/1999, 64 FR 61213 Section .0308 Final Action on Permit Applications 7/1/1994 7/28/1995, 60 FR 38710 Section .0309 Termination, Modification and Revocation of Permits 7/1/1999 10/22/2002, 67 FR 64989 Section .0310 Permitting of Numerous Similar Facilities 7/1/1994 7/28/1995, 60 FR 38710 Section .0311 Permitting of Facilities at Multiple Temporary Sites 7/1/1996 8/1/1997, 62 FR 41277 Section .0312 Application Processing Schedule 3/20/1998 11/10/1999, 64 FR 61213 Section .0313 Expedited Application Processing Schedule 4/17/1997 11/10/1999, 64 FR 61213 Section .0314 General Permitting Requirements 7/1/1999 10/22/2002, 67 FR 64989 Section .0315 Synthetic Minor Facilities 7/1/1999 10/22/2002, 67 FR 64989 Section .0316 Administrative Permit Amendments 4/1/2001 8/8/2002, 67 FR 51461 Section .0317 Avoidance Conditions 4/1/2001 8/8/2002, 67 FR 51461 Section .0800 Exclusionary Rules Section .0801 Purpose and Scope 5/1/1999 10/22/2002, 67 FR 64989 Section .0802 Gasoline Servicing Stations and Dispensing Facilities 8/1/1995 9/20/1996, 61 FR 49413 Section .0803 Coating, Solvent Cleaning, Graphic Arts Operations 5/1/1999 10/22/2002, 67 FR 64989 Section .0804 Dry Cleaning Facilities 8/1/1995 9/20/1996, 61 FR 49414 Section .0805 Grain Elevators 4/1/2001 8/8/2002, 67 FR 51461 Section .0806 Cotton Gins 6/1/2004 7/18/2017, 82 FR 32767 Section .0807 Emergency Generators 4/1/2002 8/8/2002, 67 FR 51461 Section .0808 Peak Shaving Generators 7/1/1999 10/22/2002, 67 FR 64989 Section .0809 Concrete Batch Plants 4/1/2004 9/27/2017, 82 FR 45473 Section .0900 Permit Exemptions Section .0901 Purpose and Scope 1/1/2005 9/27/2017, 82 FR 45473 Section .0902 Portable Crushers 1/1/2005 9/27/2017, 82 FR 45473
    (2) EPA Approved Forsyth County Regulations State citation Title/subject State
  • effective date
  • EPA
  • approval date
  • Explanation
    Subchapter 3A Air Pollution Control Requirements Section .0100 In General Section .0101 Department Established 6/14/1990 5/2/1991, 56 FR 20140 Section .0102 Enforcement of Chapter 6/14/1990 5/2/1991, 56 FR 20140 Section .0103 General Powers and Duties of Director 6/14/1990 5/2/1991, 56 FR 20140 Section .0104 Authority of Director to Establish Administrative Procedures 6/14/1990 5/2/1991, 56 FR 20140 Section .0105 Fees for Inspections, Permits, and Certificates Required by Chapter 6/14/1990 5/2/1991, 56 FR 20140 Section .0106 Penalties for Violation of Chapter 1/17/1997 2/17/2000, 65 FR 8053 Section .0107 Civil Relief for Violations of Chapter 6/14/1990 5/2/1991, 56 FR 20140 Section .0108 Chapter Does Not Prohibit Private Actions For Relief 6/14/1990 5/2/1991, 56 FR 20140 Section .0109 Judicial Review of Administrative Decisions Rendered Under Chapter 6/14/1990 5/2/1991, 56 FR 20140 Section .0111 Copies of Referenced Federal Regulations 6/14/1990 5/2/1991, 56 FR 20140 Section .0200 Advisory Board Section .0201 Established; Composition; Terms of Members 6/14/1990 5/2/1991, 56 FR 20140 Section .0202 Secretary 6/14/1990 5/2/1991, 56 FR 20140 Section .0203 Meetings 6/14/1990 5/2/1991, 56 FR 20140 Section .0204 To Serve in Advisory Capacity; General Functions 6/14/1990 5/2/1991, 56 FR 20140 Section .0205 Appeals to and Other Appearances Before Board 6/14/1990 5/2/1991, 56 FR 20140 Section .0206 Opinions Not Binding 6/14/1990 5/2/1991, 56 FR 20140 Section .0300 Remedies for Enforcement of Standards—Special Orders Section .0301 Applicability 6/14/1990 5/2/1991, 56 FR 20140 Section .0302 Issuance 6/14/1990 5/2/1991, 56 FR 20140 Section .0303 Definitions 6/14/1990 5/2/1991, 56 FR 20140 Section .0304 Categories of Sources 6/14/1990 5/2/1991, 56 FR 20140 Section .0305 Enforcement Procedures 6/14/1990 5/2/1991, 56 FR 20140 Section .0306 Required Procedures for Issuance of Special Orders by Consent and Special Orders 6/14/1990 5/2/1991, 56 FR 20140 Section .0307 Documentation for Special Orders 6/14/1990 5/2/1991, 56 FR 20140 Section .0308 Public Hearing 6/14/1990 5/2/1991, 56 FR 20140 Section .0309 Compliance Bonds 6/14/1990 5/2/1991, 56 FR 20140 Section .0400 Forsyth County Air Quality Technical Code Section .0401 Adopted 6/14/1990 5/2/1991, 56 FR 20140 Subchapter 3B Relationship to State Code Section .0101 In General 6/14/1990 5/2/1991, 56 FR 20140 Section .0102 Air Pollution Control Requirements (Subchapter 3D) 6/14/1990 5/2/1991, 56 FR 20140 Section .0103 Air Quality Permits (Subchapter 3Q) 6/14/1990 5/2/1991, 56 FR 20140 Subchapter 3D Air Pollution Control Requirements Section .0100 Definitions and References Section .0101 Definitions 11/6/1998 2/17/2000, 65 FR 8093 Section .0103 Copies of Referenced Federal Regulations 6/14/1990 5/2/1991, 56 FR 20140 Section .0104 Incorporation by Reference 5/24/1999 10/22/2002, 67 FR 64994 Section .0200 Air Pollution Sources Section .0201 Classification of Air Pollution Sources 6/14/1990 5/2/1991, 56 FR 20140 Section .0202 Registration of Air Pollution Sources 6/14/1990 5/2/1991, 56 FR 20140 Section .0300 Air Pollution Emergencies Section .0301 Purpose 6/14/1990 5/2/1991, 56 FR 20140 Section .0302 Episode Criteria 6/14/1990 5/2/1991, 56 FR 20140 Section .0303 Emission Reduction Plans 6/14/1990 5/2/1991, 56 FR 20140 Section .0304 Preplanned Abatement Program 6/14/1990 5/2/1991, 56 FR 20140 Section .0305 Emission Reduction Plan: Alert Level 6/14/1990 5/2/1991, 56 FR 20140 Section .0306 Emission Reduction Plan: Warning Level 6/14/1990 5/2/1991, 56 FR 20140 Section .0307 Emission Reduction Plan: Emergency Level 6/14/1990 5/2/1991, 56 FR 20140 Section .0400 Ambient Air Quality Standards Section .0401 Purpose 6/14/1990 5/2/1991, 56 FR 20140 Section .0402 Sulfur Oxides 6/14/1990 5/2/1991, 56 FR 20140 Section .0403 Total Suspended Particulates 6/14/1990 5/2/1991, 56 FR 20140 Section .0404 Carbon Monoxide 6/14/1990 5/2/1991, 56 FR 20140 Section .0405 Ozone 5/24/1999 10/22/2002, 67 FR 64994 Section .0407 Nitrogen Dioxide 6/14/1990 5/2/1991, 56 FR 20140 Section .0408 Lead 6/14/1990 5/2/1991, 56 FR 20140 Section .0409 PM 10 Particulate Matter 6/14/1990 5/2/1991, 56 FR 20140 Section .0410 PM 2.5 Particulate Matter 5/24/1999 10/22/2002, 67 FR 64994 Section .0500 Emission Control Standards Section .0501 Compliance With Emission Control Standards 5/24/1999 10/22/2002, 67 FR 64994 Section .0502 Purpose 6/14/1990 5/2/1991, 56 FR 20140 Section .0503 Particulates from Fuel Burning Indirect Heat Exchangers 5/24/1999 10/22/2002, 67 FR 64994 Section .0504 Particulates from Wood Burning Indirect Heat Exchangers 7/22/2002 9/16/2003, 68 FR 54166 Section .0506 Particulates from Hot Mix Asphalt Plants 11/6/1998 2/17/2000, 65 FR 8053 Section .0507 Particulates from Chemical Fertilizer Manufacturing Plants 11/6/1998 2/17/2000, 65 FR 8053 Section .0508 Particulates from Pulp and Paper Mills 11/6/1998 2/17/2000, 65 FR 8053 Section .0509 Particulates from MICA or FELDSPAR Processing Plants 11/6/1998 2/17/2000, 65 FR 8053 Section .0510 Particulates from Sand, Gravel, or Crushed Stone Operations 11/6/1998 2/17/2000, 65 FR 8053 Section .0511 Particulates from Lightweight Aggregate Processes 11/6/1998 2/17/2000, 65 FR 8053 Section .0512 Particulates from Wood Products Finishing Plants 7/28/1997 12/31/1998, 63 FR 72190 Section .0513 Particulates from Portland Cement Plants 6/14/1990 5/2/1991, 56 FR 20140 Section .0514 Particulates from Ferrous Jobbing Foundries 6/14/1990 5/2/1991, 56 FR 20140 Section .0515 Particulates from Miscellaneous Industrial Processes 11/6/1998 2/17/2000, 65 FR 8053 Section .0516 Sulfur Dioxide Emissions from Combustion Sources 11/29/1995 5/26/1996, 61 FR 25789 Section .0517 Emissions from Plants Producing Sulfuric Acid 6/14/1990 5/2/1991, 56 FR 20140 Section .0519 Control of Nitrogen Dioxide and Nitrogen Oxides Emissions 6/14/1990 5/2/1991, 56 FR 20140 Section .0521 Control of Visible Emissions 11/6/1998 2/17/2000, 65 FR 8053 Section .0522 Control and Prohibition of Odorous Emissions 6/14/1990 5/2/1991, 56 FR 20140 Section .0524 New Source Performance Standards 6/14/1990 5/2/1991, 56 FR 20140 Section .0527 Emissions from Spodumene Ore Roasting 6/14/1990 5/2/1991, 56 FR 20140 Section .0528 Total Reduced Sulfur from Kraft Pulp Mills 6/14/1990 5/2/1991, 56 FR 20140 Section .0529 Fluoride Emissions from Primary Aluminum 24 Reduction Plants 6/14/1990 5/2/1991, 56 FR 20140 Section .0530 Prevention of Significant Deterioration 10/10/1997 12/31/1998, 63 FR 72190 Section .0531 Sources in Nonattainment Areas 11/6/1998 2/17/2000, 65 FR 8053 Section .0532 Sources Contributing to an Ambient Violation 6/14/1990 5/2/1991, 56 FR 20140 Section .0533 Stack Heights 6/14/1990 5/2/1991, 56 FR 20140 Section .0534 Fluoride Emissions from Phosphate Fertilizer Industry 6/14/1990 5/2/1991, 56 FR 20140 Section .0535 Excess Emissions Reporting and Malfunctions 11/6/1998 2/17/2000, 65 FR 8053 Section .0536 Particulate Emissions from Electric Utility Boilers 6/14/1990 5/2/1991, 56 FR 20140 Section .0537 Control of Mercury Emissions 6/14/1990 5/2/1991, 56 FR 20140 Section .0538 Control of Ethylene Oxide Emissions 6/14/1990 5/2/1991, 56 FR 20140 Section .0539 Odor Control of Feed Ingredient Manufacturing Plants 6/14/1990 5/2/1991, 56 FR 20140 Section .0540 Particulates from Fugitive Non-Process Dust Emission Sources 6/14/1990 5/2/1991, 56 FR 20140 Section .0541 Control of Emissions from Abrasive Blasting 6/14/1990 5/2/1991, 56 FR 20140 Section .0542 Control of Particulate Emissions from Cotton Ginning Operations 7/22/2002 9/16/2003, 68 FR 54163 Section .0600 Monitoring: Recordkeeping: Reporting Section .0601 Purpose and Scope 5/24/1999 10/22/2002, 67 FR 64994 Section .0602 Definitions 5/24/1999 10/22/2002, 67 FR 64994 Section .0604 Exceptions to Monitoring and Reporting Requirements 5/24/1999 10/22/2002, 67 FR 64994 Section .0605 General Recordkeeping and Reporting Requirements 5/24/1999 10/22/2002, 67 FR 64994 Section .0606 Sources Covered By Appendix P of 40 CFR Part 51 5/24/1999 10/22/2002, 67 FR 64994 Section .0607 Large Wood and Wood-fossil Fuel Combination Units 5/24/1999 10/22/2002, 67 FR 64994 Section .0611 Monitoring Emissions from Other Sources 5/24/1999 10/22/2002, 67 FR 64994 Section .0612 Alternative Monitoring and Reporting Procedures 5/24/1999 10/22/2002, 67 FR 64994 Section .0613 Quality Assurance Program 5/24/1999 10/22/2002, 67 FR 64994 Section .0614 Compliance Assurance Monitoring 5/24/1999 10/22/2002, 67 FR 64994 Section .0615 Delegation 6/14/1990 5/2/1991, 56 FR 20140 Section .0800 Transportation Facilities Section .0801 Purpose and Scope 6/14/1990 5/2/1991, 56 FR 20140 Section .0802 Definitions 6/14/2000 5/2/1991, 56 FR 20140 Section .0803 Highway Projects 6/14/1990 5/2/1991, 56 FR 20140 Section .0804 Airport Facilities 6/14/1990 5/2/1991, 56 FR 20140 Section .0805 Parking Facilities 6/14/1990 5/2/1991, 56 FR 20140 Section .0806 Ambient Monitoring and Modeling Analysis 6/14/1990 5/2/1991, 56 FR 20140 Section .0900 Volatile Organic Compounds Section .0901 Definitions 6/14/1990 5/2/1991, 56 FR 20140 Section .0902 Applicability 10/10/1997 12/31/1998, 63 FR 72190 Section .0903 Recordkeeping: Reporting: Monitoring 5/24/1999 10/22/2002, 67 FR 64994 Section .0906 Circumvention 6/14/1990 5/2/1991, 56 FR 20140 Section .0909 Compliance Schedules for Sources in New Nonattainment Areas 11/6/1998 2/17/2000, 65 FR 8053 Section .0912 General Provisions on Test Methods and Procedures 6/14/1990 5/2/1991, 56 FR 20140 Section .0913 Determination of Volatile Content of Surface Coatings 6/14/1990 5/2/1991, 56 FR 20140 Section .0914 Determination of VOC Emission Control System Efficiency 11/6/1998 2/17/2000, 65 FR 8053 Section .0915 Determination of Solvent Metal Cleaning VOC Emissions 6/14/1990 5/2/1991, 56 FR 20140 Section .0916 Determination: VOC Emissions from Bulk Gasoline Terminals 6/14/1990 5/2/1991, 56 FR 20140 Section .0917 Automobile and Light-Duty Truck Manufacturing 6/14/1990 5/2/1991, 56 FR 20140 Section .0918 Can Coating 6/14/1990 5/2/1991, 56 FR 20140 Section .0919 Coil Coating 6/14/1990 5/2/1991, 56 FR 20140 Section .0920 Paper Coating 6/14/1990 5/2/1991, 56 FR 20140 Section .0921 Fabric and Vinyl Coating 6/14/1990 5/2/1991, 56 FR 20140 Section .0922 Metal Furniture Coating 6/14/1990 5/2/1991, 56 FR 20140 Section .0923 Surface Coating of Large Appliances 6/14/1990 5/2/1991, 56 FR 20140 Section .0924 Magnet Wire Coating 6/14/1990 5/2/1991, 56 FR 20140 Section .0925 Petroleum Liquid Storage in Fixed Roof Tanks 6/14/1990 5/2/1991, 56 FR 20140 Section .0926 Bulk Gasoline Plants 6/14/1990 5/2/1991, 56 FR 20140 Section .0927 Bulk Gasoline Terminals 7/22/2002 9/16/2003, 68 FR 54166 Section .0928 Gasoline Service Stations Stage I 6/14/1990 5/2/1991, 56 FR 20140 Section .0930 Solvent Metal Cleaning 6/14/1990 5/2/1991, 56 FR 20140 Section .0931 Cutback Asphalt 6/14/1990 5/2/1991, 56 FR 20140 Section .0932 Gasoline Truck Tanks and Vapor Collection Systems 7/22/2002 9/16/2003, 68 FR 54166 Section .0933 Petroleum Liquid Storage in External Floating Roof Tanks 6/14/1990 5/2/1991, 56 FR 20140 Section .0934 Coating of Miscellaneous Metal Parts and Products 6/14/1990 5/2/1991, 56 FR 20140 Section .0935 Factory Surface Coating of Flat Wood Paneling 6/14/1990 5/2/1991, 56 FR 20140 Section .0936 Graphic Arts 6/14/1990 5/2/1991, 56 FR 20140 Section .0937 Manufacture of Pneumatic Rubber Tires 6/14/1990 5/2/1991, 56 FR 20140 Section .0939 Determination of Volatile Organic Compound Emissions 6/14/1990 5/2/1991, 56 FR 20140 Section .0940 Determination of Leak Tightness and Vapor Leaks 6/14/1990 5/2/1991, 56 FR 20140 Section .0941 Alternative Method for Leak Tightness 6/14/1990 5/2/1991, 56 FR 20140 Section .0942 Determination of Solvent in Filter Waste 6/14/1990 5/2/1991, 56 FR 20140 Section .0943 Synthetic Organic Chemical and Polymer Manufacturing 6/14/1990 5/2/1991, 56 FR 20140 Section .0944 Manufacture of Polyethylene, Polypropylene and Polystyrene 6/14/1990 5/2/1991, 56 FR 20140 Section .0945 Petroleum Dry Cleaning 6/14/1990 5/2/1991, 56 FR 20140 Section .0947 Manufacture of Synthesized Pharmaceutical Products 6/14/1990 5/2/1991, 56 FR 20140 Section .0948 VOC Emissions from Transfer Operations 6/14/1990 5/2/1991, 56 FR 20140 Section .0949 Storage of Miscellaneous Volatile Organic Compounds 6/14/1990 5/2/1991, 56 FR 20140 Section .0951 Miscellaneous Volatile Organic Compound Emissions 6/14/1990 5/2/1991, 56 FR 20140 Section .0952 Petition for Alternative Controls 11/29/1995 5/23/1996, 61 FR 25789 Section .0953 Vapor Return Piping for Stage II Vapor Recovery 11/6/1998 2/17/2000, 65 FR 8053 Section .0954 Stage II Vapor Recovery 10/10/1997 12/31/1998, 63 FR 72190 Section .0955 Thread Bonding Manufacturing 11/29/1995 5/23/1996, 61 FR 25789 Section .0956 Glass Christmas Ornament Manufacturing 11/29/1995 5/23/1996, 61 FR 25789 Section .0957 Commercial Bakeries 11/29/1995 5/23/1996, 61 FR 25789 Section .0958 Work Practices for Sources of Volatile Organic Compounds 6/14/1990 5/2/1991, 56 FR 20140 Section .1200 Control of Emissions from Incinerators 111(a) Section .1201 Purpose and Scope 6/14/1990 5/2/1991, 56 FR 20140 Section .1202 Definitions 6/14/1990 5/2/1991, 56 FR 20140 Section .1900 Open Burning Section .1901 Purpose, Scope, and Impermissible Open Burning 7/1/1996 8/1/1997, 62 FR 41277 Section .1902 Definitions 6/14/1990 5/2/1991, 56 FR 20140 Section .1903 Permissible Open Burning 10/25/1999 8/8/2002, 67 FR 51763 Section .1904 Air Curtain Burners 6/14/1990 5/2/1991, 56 FR 20140 Section .1905 Office Location 6/14/1990 5/2/1991, 56 FR 20140 Subchapter 3Q Air Quality Permits Section .0100 General Provisions Section .0101 Required Air Quality Permits 11/6/1998 2/17/2000, 65 FR 8053 Section .0102 Activities Exempted from Permit Requirements 7/22/2002 9/16/2003, 68 FR 54166 Section .0103 Definitions 5/24/1999 10/22/2002, 67 FR 64994 Section .0104 Where to Obtain and File Permit Applications 10/10/1997 12/31/1998, 63 FR 72190 Section .0107 Confidential Information 5/24/1999 10/22/2002, 67 FR 64994 Section .0200 Permit Fees Section .0207 Annual Emissions Reporting 11/6/1998 2/17/2000, 65 FR 8053 Section .0300 Construction and Operation Permit Section .0301 Applicability 11/6/1998 2/17/2000, 65 FR 8053 Section .0302 Facilities Not Likely to Contravene Demonstration 11/6/1998 2/17/2000, 65 FR 8053 Section .0303 Definitions 6/14/1990 5/2/1991, 56 FR 20140 Section .0304 Applications 07/1/1999 10/22/2002, 67 FR 64994 Section .0305 Application Submittal Content 6/14/1990 5/2/1991, 56 FR 20140 Section .0306 Permits Requiring Public Participation 7/1/1999 10/22/2002, 67 FR 64994 Section .0307 Public Participation Procedures 10/10/1997 12/31/1998, 63 FR 72190 Section .0308 Final Action on Permit Applications 3/14/1995 2/1/1996, 61 FR 3586 Section .0309 Termination, Modification and Revocation of Permits 7/1/1999 10/22/2002, 67 FR 64994 Section .0310 Permitting of Numerous Similar Facilities 6/14/1990 5/2/1991, 56 FR 20140 Section .0311 Permitting of Facilities at Multiple Temporary Sites 6/14/1990 5/2/1991, 56 FR 20140 Section .0312 Application Processing Schedule 11/6/1998 2/17/2000, 65 FR 8053 Section .0314 General Permit Requirements 5/24/1999 10/22/2002, 67 FR 64994 Section .0315 Synthetic Minor Facilities 7/1/1999 10/22/2002, 67 FR 64994 Section .0800 Exclusionary Rules Section .0801 Purpose and Scope 5/24/1999 10/22/2002, 67 FR 64994 Section .0802 Gasoline Service Stations and Dispensing Facilities 6/14/1990 5/2/1991, 56 FR 20140 Section .0803 Coating, Solvent Cleaning, Graphic Arts Operations 7/30/1999 10/22/2002, 75 FR 64994 Section .0804 Dry Cleaning Facilities 6/14/1990 5/2/1991, 56 FR 20140 Section .0805 Grain Elevators 11/6/1998 2/17/2000, 65 FR 8093 Section .0806 Cotton Gins 11/6/1998 2/17/2000, 65 FR 8093 Section .0807 Emergency Generators 11/6/1998 2/17/2000, 65 FR 8093 Section .0808 Peak Shaving Generators 7/1/1999 10/22/2002, 67 FR 64990
    (3) EPA Approved Mecklenburg County Regulations State citation Title/subject State
  • effective date
  • EPA approval date Explanation
    Article 1.000 Permitting Provisions for Air Pollution Sources, Rules and Operating Regulations for Acid Rain Sources, Title V and Toxic Air Pollutants Section 1.5100 General Provisions and Administrations Section 1.5101 Declaration of Policy 6/14/1990 5/2/1991, 56 FR 20140 Section 1.5102 Definition of Terms 11/21/2000 10/22/2002, 67 FR 64999 Section 1.5103 Enforcement Agency 6/14/1990 5/2/1991, 56 FR 20140 Section 1.5104 General Duties and Powers of the Director, With the Approval of the Board 6/14/1990 5/2/1991, 56 FR 20140 Section 1.5111 General Recordkeeping, Reporting and Monitoring Requirements 7/1/1996 6/30/2003, 68 FR 38632 Section 1.5200 Air Quality Permits Section 1.5210 Purpose and Scope 6/14/1990 5/2/1991, 56 FR 20140 Section 1.5211 Applicability 11/21/2000 10/22/2002, 67 FR 64999 Section 1.5212 Applications 7/1/1996 6/30/2003, 68 FR 38632 Section 1.5213 Action on Application; Issuance of Permit 7/1/1996 6/30/2003, 68 FR 38632 Section 1.5214 Commencement of Operation 7/1/1996 6/30/2003, 68 FR 38632 Section 1.5215 Application Processing Schedule 7/1/1996 6/30/2003, 68 FR 38632 Section 1.5216 Incorporated By Reference 6/6/1994 7/28/1995, 60 FR 38715 Section 1.5217 Confidential Information 6/14/1990 5/2/1991, 56 FR 20140 Section 1.5218 Compliance Schedule for Previously Exempted Activities 6/14/1990 5/2/1991, 56 FR 20140 Section 1.5219 Retention of Permit at Permitted Facility 6/6/1994 7/28/1995, 60 FR 38715 Section 1.5220 Applicability Determinations 6/14/1990 5/2/1991, 56 FR 20140 Section 1.5221 Permitting of Numerous Similar Facilities 6/6/1994 7/28/1995, 60 FR 38715 Section 1.5222 Permitting of Facilities at Multiple Temporary Sites 6/6/1994 7/28/1995, 60 FR 38715 Section 1.5230 Permitting Rules and Procedures 6/14/1990 5/2/1991, 56 FR 20140 Section 1.5231 Air Quality Fees 7/1/1996 6/30/2003, 68 FR 38632 Section 1.5232 Issuance, Revocation, and Enforcement of Permits 7/1/1996 6/30/2003, 68 FR 38632 Section 1.5234 Hearings 6/6/1994 7/28/1995, 60 FR 38715 Section 1.5235 Expedited Application Processing Schedule 6/14/1990 5/2/1991, 56 FR 20140 Section 1.5300 Enforcement; Variances; Judicial Review Section 1.5301 Special Enforcement Procedures 6/14/1990 5/2/1991, 56 FR 20140 Section 1.5302 Criminal Penalties 6/14/1990 5/2/1991, 56 FR 20140 Section 1.5303 Civil Injunction 6/14/1990 5/2/1991, 56 FR 20140 Section 1.5304 Civil Penalties 6/14/1990 5/2/1991, 56 FR 20140 Section 1.5305 Variances 7/1/1996 6/30/2003, 68 FR 38632 Section 1.5306 Hearings 7/1/1996 6/30/2003, 68 FR 38632 Section 1.5307 Judicial Review 6/14/1990 5/2/1991, 56 FR 20140 Section 1.5600 Transportation Facility Procedures Section 1.5604 Public Participation 7/1/1996 6/30/2003, 68 FR 38632 Section 1.5607 Application Processing Schedule 7/1/1996 6/30/2003, 68 FR 38632 Article 2.0000 Air Pollution Control Regulations and Procedures Section 2.0100 Definitions and References Section 2.0101 Definitions 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0104 Incorporated By Reference 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0200 Air Pollution Sources Section 2.0201 Classification of Air Pollution Sources 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0202 Registration of Air Pollution Sources 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0300 Air Pollution Emergencies Section 2.0301 Purpose 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0302 Episode Criteria 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0303 Emission Reduction Plans 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0304 Preplanned Abatement Program 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0305 Emission Reduction Plan: Alert Level 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0306 Emission Reduction Plan: Warning Level 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0307 Emission Reduction Plan: Emergency Level 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0400 Ambient Air Quality Standards Section 2.0401 Purpose 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0402 Sulfur Oxides 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0403 Total Suspended Particulates 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0404 Carbon Monoxide 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0405 Ozone 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0407 Nitrogen Dioxide 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0408 Lead 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0409 PM10 Particulate Matter 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0500 Emission Control Standards Section 2.0501 Compliance With Emission Control Standards 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0502 Purpose 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0503 Particulates from Fuel Burning Indirect Heat Exchangers 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0504 Particulates from Wood Burning Indirect Heat Exchangers 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0506 Particulates from Hot Mix Asphalt Plants 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0507 Particulates from Chemical Fertilizer Manufacturing Plants 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0508 Particulates from Pulp and Paper Mills 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0509 Particulates from MICA or FELDSPAR Processing Plants 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0510 Particulates from Sand, Gravel, or Crushed Stone Operations 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0511 Particulates from Lightweight Aggregate Processes 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0512 Particulates from Wood Products Finishing Plants 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0513 Particulates from Portland Cement Plants 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0514 Particulates from Ferrous Jobbing Foundries 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0515 Particulates from Miscellaneous Industrial Processes 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0516 Sulfur Dioxide Emissions from Combustion Sources 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0517 Emissions From Plants Producing Sulfuric Acid 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0518 Miscellaneous Volatile Organic Compound Emissions 11/21/2000 10/22/2002, 67 FR 64999 Section 2.0519 Control of Nitrogen Dioxide and Nitrogen Oxides Emissions 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0523 Control of Conical Incinerators 11/21/2000 10/22/2002, 67 FR 64999 Section 2.0527 Emissions from Spodumene Ore Roasting 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0530 Prevention of Significant Deterioration 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0531 Sources in Nonattainment Areas 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0532 Sources Contributing to an Ambient Violation 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0533 Stack Height 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0535 Excess Emissions Reporting and Malfunctions 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0538 Control of Ethylene Oxide Emissions 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0539 Odor Control of Feed Ingredient Manufacturing Plants 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0600 Monitoring: Recordkeeping: Reporting Section 2.0601 Purpose and Scope 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0602 Definitions 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0604 Exceptions to Monitoring and Reporting Requirements 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0605 General Recordkeeping and Reporting Requirements 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0606 Sources Covered by Appendix P of 40 CFR Part 51 06/14/1991 5/2/1991, 56 FR 20140 Section 2.0607 Large Wood and Wood-Fossil Fuel Combination Units 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0608 Other Large Coal or Residual Oil Burners 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0610 Federal Monitoring Requirements 11/21/2000 10/22/2002, 67 FR 64999 Section 2.0611 Monitoring Emissions From Other Sources 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0612 Alternative Monitoring and Reporting Procedures 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0613 Quality Assurance Program 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0614 Compliance Assurance Monitoring 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0615 Delegation 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0800 Transportation Facilities Section 2.0801 Purpose and Scope 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0802 Definitions 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0803 Highway Projects 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0804 Airport Facilities 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0900 Volatile Organic Compounds Section 2.0901 Definitions 3/1/1991 6/23/1994, 59 FR 32362 Section 2.0902 Applicability 10/16/2004 9/12/07, 72 FR 52012 Section 2.0903 Recordkeeping: Reporting: Monitoring 7/1/1991 6/23/1994, 59 FR 32362 Section 2.0906 Circumvention 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0907 Equipment Installation Compliance Schedule 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0909 Compliance Schedules for Sources In New Nonattainment Areas 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0910 Alternate Compliance Schedule 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0912 General Provisions on Test Methods and Procedures 7/1/1991 6/23/1994, 59 FR 32362 Section 2.0913 Determination of Volatile Content of Surface Coatings 3/1/1991 6/23/1994, 59 FR 32362 Section 2.0914 Determination of VOC Emission Control System Efficiency 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0915 Determination of Solvent Metal Cleaning VOC Emissions 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0916 Determination: VOC Emissions From Bulk Gasoline Terminals 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0917 Automobile and Light-Duty Truck Manufacturing 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0918 Can Coating 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0919 Coil Coating 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0920 Paper Coating 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0921 Fabric and Vinyl Coating 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0922 Metal Furniture Coating 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0923 Surface Coating of Large Appliances 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0924 Magnet Wire Coating 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0925 Petroleum Liquid Storage in Fixed Roof Tanks 3/1/1991 6/23/1994, 59 FR 32362 Section 2.0926 Bulk Gasoline Plants 3/1/1991 6/23/1994, 59 FR 32362 Section 2.0927 Bulk Gasoline Terminals 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0928 Gasoline Service Stations Stage I 3/1/1991 6/23/1994, 59 FR 32362 Section 2.0929 Petroleum Refinery 3/1/1991 6/23/1994, 59 FR 32362 Section 2.0930 Solvent Metal Cleaning 3/1/1991 6/23/1994, 59 FR 32362 Section 2.0931 Cutback Asphalt 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0932 Gasoline Truck Tanks and Vapor Collection Systems 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0933 Petroleum Liquid Storage In External Floating Roof Tanks 10/16/2004 9/12/07, 72 FR 52012 Section 2.0934 Coating of Miscellaneous Metal Parts and Products 3/1/1991 6/23/1994, 59 FR 32362 Section 2.0935 Factory Surface Coating of Flat Wood Paneling 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0936 Graphic Arts 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0937 Manufacture of Pneumatic Rubber Tires 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0939 Determination of Volatile Organic Compound Emissions 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0940 Determination of Leak Tightness and Vapor Leaks 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0941 Alternative Method for Leak Tightness 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0942 Determination of Solvent in Filter Waste 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0943 Synthetic Organic Chemical and Polymer Manufacturing 3/1/1991 6/23/1994, 59 FR 32362 Section 2.0944 Manufacture of Polyethylene, Polypropylene and Polystyrene 3/1/1991 6/23/1994, 59 FR 32362 Section 2.0945 Petroleum Dry Cleaning 6/14/1990 5/2/1991, 56 FR 20140 Section 2.0951 Miscellaneous Volatile Organic Compound Emissions 7/1/2000 10/22/2002, 67 FR 64999 Section 2.0958 Work Practices for Sources of Volatile Organic Compounds 7/1/2000 10/22/2002, 67 FR 64999
    (4) EPA Approved Western North Carolina Regulations State citation Title/subject State
  • effective date
  • EPA
  • approval date
  • Explanation
    Chapter 1 Resolution, Organization, Administration Section .0101 Resolution 6/14/1990 5/2/1991, 56 FR 20140 Section .0102 Ordinance 6/14/1990 5/2/1991, 56 FR 20140 Section .0103 Authority 6/14/1990 5/2/1991, 56 FR 20140 Section .0104 Organization 6/14/1990 5/2/1991, 56 FR 20140 Section .0105 General Powers and Duties of Director 6/14/1990 5/2/1991, 56 FR 20140 Section .0106 Authority of Director to Establish Administrative Procedures 6/14/1990 5/2/1991, 56 FR 20140 Section .0107 Administrative Procedures 6/14/1990 5/2/1991, 56 FR 20140 Section .0108 Appeals to and Other Appearances Before Board 6/14/1990 5/2/1991, 56 FR 20140 Section .0109 Penalties for Violation 6/14/1990 5/2/1991, 56 FR 20140 Section .0110 Civil Relief for Violation 6/14/1990 5/2/1991, 56 FR 20140 Section .0111 Fees for Inspection, Permits, and Certificates 6/14/1990 5/2/1991, 56 FR 20140 Section .0112 Chapter does not Prohibit Private Actions for Relief 6/14/1990 5/2/1991, 56 FR 20140 Section .0113 Judicial Review of Administration, Decisions Rendered Under Chapter 6/14/1990 5/2/1991, 56 FR 20140 Section .0114 Opinions Not Binding 6/14/1990 5/2/1991, 56 FR 20140 Chapter 4 Air Pollution Control Requirements Section .0100 Definitions and References Section .0101 Definitions 9/15/1994 7/28/1998, 60 FR 38707 Section .0103 Copies of Referenced Federal Regs 6/14/1990 5/2/1991, 56 FR 20140 Section .0104 Incorporation by Reference 6/14/1990 5/2/1991, 56 FR 20140 Section .0200 Air Pollution Sources Section .0201 Classification of Air Pollution Sources 6/14/1990 5/2/1991, 56 FR 20140 Section .0202 Registration of Air Pollution Sources 6/14/1990 5/2/1991, 56 FR 20140 Section .0300 Air Pollution Emergencies Section .0301 Purpose 6/14/1990 5/2/1991, 56 FR 20140 Section .0302 Episode Criteria 6/14/1990 5/2/1991, 56 FR 20140 Section .0303 Emission Reduction Plans 6/14/1990 5/2/1991, 56 FR 20140 Section .0304 Preplanned Abatement Program 6/14/1990 5/2/1991, 56 FR 20140 Section .0305 Emission Reduction Plan—Alert Level 6/14/1990 5/2/1991, 56 FR 20140 Section .0306 Emission Reduction Plan—Warning Level 6/14/1990 5/2/1991, 56 FR 20140 Section .0307 Emission Reduction Plan—Emergency Level 6/14/1990 5/2/1991, 56 FR 20140 Section .0400 Ambient Air Quality Standards Section .0401 Purpose 6/14/1990 5/2/1991, 56 FR 20140 Section .0402 Sulfur Oxides 6/14/1990 5/2/1991, 56 FR 20140 Section .0403 Total Suspended Particulate 6/14/1990 5/2/1991, 56 FR 20140 Section .0404 Carbon Monoxide 6/14/1990 5/2/1991, 56 FR 20140 Section .0405 Ozone 6/14/1990 5/2/1991, 56 FR 20140 Section .0407 Nitrogen Dioxide 6/14/1990 5/2/1991, 56 FR 20140 Section .0408 Lead 6/14/1990 5/2/1991, 56 FR 20140 Section .0409 Particulate Matter 6/14/1990 5/2/1991, 56 FR 20140 Section .0500 Emission Control Standards Section .0501 Compliance with Emissions Control Standards 9/15/1994 7/28/1998, 60 FR 38707 Section .0502 Purpose 6/14/1990 5/2/1991, 56 FR 20140 Section .0503 Particulates from Fuel Burning Indirect Heat Exchangers 9/15/1994 7/28/1998, 60 FR 38707 Section .0504 Particulates from Wood Burning Indirect Heat Exchangers 6/14/1990 5/2/1991, 56 FR 20140 Section .0506 Control of Particulates from Hot Mix Asphalt Plants 6/14/1990 5/2/1991, 56 FR 20140 Section .0507 Particulates from Chemical Fertilizer Manufacturing Plants 6/14/1990 5/2/1991, 56 FR 20140 Section .0508 Control of Particulates from Pulp and Paper Mills 6/14/1990 5/2/1991, 56 FR 20140 Section .0509 Particulates from Mica or Feld Spar Processing Plants 6/14/1990 5/2/1991, 56 FR 20140 Section .0510 Particulates-Sand, Gravel, or Crushed Stone Operations 6/14/1990 5/2/1991, 56 FR 20140 Section .0511 Particulates from Lightweight Aggregate Processes 6/14/1990 5/2/1991, 56 FR 20140 Section .0512 Particulates from Wood Products Finishing Plants 6/14/1990 5/2/1991, 56 FR 20140 Section .0513 Control of Particulates from Portland Cement Plants 6/14/1990 5/2/1991, 56 FR 20140 Section .0514 Control of Particulates from Ferrous Jobbing Foundries 9/15/1994 7/28/1998, 60 FR 38707 Section .0515 Particulates from Miscellaneous Industrial Processes 6/14/1990 5/2/1991, 56 FR 20140 Section .0516 Sulfur Dioxide from Combustion Sources 6/14/1990 5/2/1991, 56 FR 20140 Section .0517 Emissions from Plants Producing Sulfuric Acid 6/14/1990 5/2/1991, 56 FR 20140 Section .0518 Miscellaneous Volatile Organic Compound Emissions 6/14/1990 5/2/1991, 56 FR 20140 Section .0519 Control of Nitrogen Dioxide and Nitrogen Oxides Emissions 6/14/1990 5/2/1991, 56 FR 20140 Section .0521 Control of Visible Emissions 6/14/1990 5/2/1991, 56 FR 20140 Section .0523 Control of Conical Incinerators 6/14/1990 5/2/1991, 56 FR 20140 Section .0527 Emissions from Spodumene Ore Roasting 6/14/1990 5/2/1991, 56 FR 20140 Section .0528 Total Reduced Sulfur from Kraft Pulp Mills 6/14/1990 5/2/1991, 56 FR 20140 Section .0530 Prevention of Significant Deterioration 9/15/1994 7/28/1998, 60 FR 38707 Section .0532 Sources Contributing to an Ambient Violation 9/15/1994 7/28/1998, 60 FR 38707 Section .0533 Stack Height 6/14/1990 5/2/1991, 56 FR 20140 Section .0535 Excess Emissions Reporting and Malfunctions 6/14/1990 5/2/1991, 56 FR 20140 Section .0536 Particulate Emissions from Electric Utility Boilers 6/14/1990 5/2/1991, 56 FR 20140 Section .0540 Particulates from Fugitive Non-process Dust Emission Sources 6/14/1990 5/2/1991, 56 FR 20140 Section .0600 Air Pollutants: Monitoring, Reporting Section .0601 Purpose and Scope Section .0602 Definitions 6/14/1990 5/2/1991, 56 FR 20140 Section .0604 Sources Covered by Implementation Plan Requirements 6/14/1990 5/2/1991, 56 FR 20140 Section .0605 Wood and Wood-Fossil Fuel Combination Units 6/14/1990 5/2/1991, 56 FR 20140 Section .0606 Other Coal or Residual Oil Burners 6/14/1990 5/2/1991, 56 FR 20140 Section .0607 Exceptions to Monitoring and Reporting Requirements 6/14/1990 5/2/1991, 56 FR 20140 Section .0608 Program 6/14/1990 5/2/1991, 56 FR 20140 Schedule .0610 Delegation 6/14/1990 5/2/1991, 56 FR 20140 Section .0800 Transportation Facilities Section .0801 Purpose and Scope 6/14/1990 5/2/1991, 56 FR 20140 Section .0802 Definitions 6/14/1990 5/2/1991, 56 FR 20140 Section .0803 Highway Projects 6/14/1990 5/2/1991, 56 FR 20140 Section .0804 Airport Facilities 6/14/1990 5/2/1991, 56 FR 20140 Section .0805 Parking Facilities 6/14/1990 5/2/1991, 56 FR 20140 Section .0806 Ambient Monitoring and Modeling Analysis 6/14/1990 5/2/1991, 56 FR 20140 Section .0900 Volatile Organic Compounds Section .0901 Definitions 6/14/1990 5/2/1991, 56 FR 20140 Section .0902 Applicability 6/14/1990 5/2/1991, 56 FR 20140 Section .0903 Recordkeeping: Reporting, Monitoring 6/14/1990 5/2/1991, 56 FR 20140 Section .0906 Circumvention 6/14/1990 5/2/1991, 56 FR 20140 Section .0912 General Provisions on Test Methods and Procedures 6/14/1990 5/2/1991, 56 FR 20140 Section .0913 Determination of Volatile Content of Surface Coatings 6/14/1990 5/2/1991, 56 FR 20140 Section .0914 Determination of VOC Emission Control System Efficiency 6/14/1990 5/2/1991, 56 FR 20140 Section .0915 Determination of Solvent Metal Cleaning VOC Emissions 6/14/1990 5/2/1991, 56 FR 20140 Section .0925 Petroleum Liquid in Fixed Roof Tank 6/14/1990 5/2/1991, 56 FR 20140 Section .0926 Bulk Gasoline Plants 6/14/1990 5/2/1991, 56 FR 20140 Section .0927 Bulk Gasoline Terminals 6/14/1990 5/2/1991, 56 FR 20140 Section .0928 Gasoline Service Stations Stage I 6/14/1990 5/2/1991, 56 FR 20140 Section .0932 Gasoline Truck Tanks and Vapor Collection Systems 6/14/1990 5/2/1991, 56 FR 20140 Section .0933 Petroleum Liquid Storage in External Roof Tanks 6/14/1990 5/2/1991, 56 FR 20140 Section .1900 Control of Open Burning Section .1901 Purpose, Scope, and Impermissible Open Burning 6/14/1990 5/2/1991, 56 FR 20140 Section .1902 Definitions 6/14/1990 5/2/1991, 56 FR 20140 Section .1903 Permissible Open Burning Without a Permit 6/14/1990 5/2/1991, 56 FR 20140 Section .1904 Air Curtain Burners 6/14/1990 5/2/1991, 56 FR 20140 Section .1906 Delegation To County Governments 6/14/1990 5/2/1991, 56 FR 20140 Chapter 17 Air Quality Permits Procedures Section .0100 General Provisions Section .0101 Required Air Quality Permits 6/14/1990 5/2/1991, 56 FR 20140 Section .0102 Activities Exempted from Permit Requirements 6/14/1990 5/2/1991, 56 FR 20140 Section .0103 Definitions 6/14/1990 5/2/1991, 56 FR 20140 Section .0104 Where to Obtain and File Permit Applications 6/14/1990 5/2/1991, 56 FR 20140 Section .0105 Copies of Referenced Documents 6/14/1990 5/2/1991, 56 FR 20140 Section .0106 Incorporation by Reference 6/14/1990 5/2/1991, 56 FR 20140 Section .0107 Confidential Information 6/14/1990 5/2/1991, 56 FR 20140 Section .0109 Compliance Schedule for Previously Exempted Activities 6/14/1990 5/2/1991, 56 FR 20140 Section .0110 Retention of Permit at Permitted Facility 6/14/1990 5/2/1991, 56 FR 20140 Section .0111 Applicability Determinations 6/14/1990 5/2/1991, 56 FR 20140 Section .0112 Applications Requiring Professional Engineer Seal 6/14/1990 5/2/1991, 56 FR 20140 Section .0300 Construction and Operating Permit Section .0301 Applicability 6/14/1990 5/2/1991, 56 FR 20140 Section .0302 Facilities not Likely to Contravene Demonstration 6/14/1990 5/2/1991, 56 FR 20140 Section .0303 Definitions 6/14/1990 5/2/1991, 56 FR 20140 Section .0304 Applications 6/14/1990 5/2/1991, 56 FR 20140 Section .0305 Application Submittal Content 6/14/1990 5/2/1991, 56 FR 20140 Section .0306 Permits Requiring Public Participation 6/14/1990 5/2/1991, 56 FR 20140 Section .0307 Public Participation Procedures 6/14/1990 5/2/1991, 56 FR 20140 Section .0308 Final Action On Permit Applications 6/14/1990 5/2/1991, 56 FR 20140 Section .0309 Termination, Modification and Revocation of Permits 6/14/1990 5/2/1991, 56 FR 20140 Section .0310 Permitting of Numerous Similar Facilities 6/14/1990 5/2/1991, 56 FR 20140 Section .0311 Permitting of Facilities at Multiple Temporary Sites 6/14/1990 5/2/1991, 56 FR 20140 Section .0312 Application Processing Schedule 6/14/1990 5/2/1991, 56 FR 20140
    [FR Doc. 2018-23246 Filed 10-25-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2018-0221, FRL-9985-84-Region 9] Approval and Promulgation of Air Quality Implementation Plans; Nevada; Rescission of Regional Haze Federal Implementation Plan for the Reid Gardner Generating Station AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving the Nevada Division of Environmental Protection's (NDEP) request to rescind a Regional Haze Federal Implementation Plan (RH FIP) that regulates air pollutant emissions from Reid Gardner Generating Station (RGGS) Units 1, 2, and 3. The EPA is approving NDEP's request because RGGS Units 1-3 have been permanently decommissioned and are being dismantled and demolished.

    DATES:

    This rule is effective November 26, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2018-0221. All documents in the docket are listed on the https://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 https://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Krishna Viswanathan, EPA, Region IX, Air Division, Air Planning Office, (520) 999-7880 or [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we,” “us,” and “our” refer to the EPA.

    Table of Contents I. Proposed Action and Public Comment Period II. Final Action III. Statutory and Executive Order Reviews I. Proposed Action and Public Comment Period

    On May 31, 2018, the EPA proposed to rescind the RH FIP for RGGS Units 1-3 because RGGS Units 1-3 have been permanently decommissioned and are being dismantled and demolished, as demonstrated by the supporting documentation provided by NDEP.1 The EPA's proposed action provided a 45-day public comment period. The EPA did not receive any timely or germane comments on the proposal to rescind the RGGS RH FIP.

    1 For details on the EPA's RH FIP and additional background, see proposal at 83 FR 24952 (May 31, 2018).

    II. Final Action

    For the reasons explained in our proposal, we are approving the NDEP's request to rescind the RH FIP for RGGS Units 1-3.

    III. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

    This action is not an Executive Order 13771 regulatory action because this action removes existing Federal Implementation Plan and associated requirements covering a single electric power generating station and therefore is a rule of particular applicability. Rules of particular applicability are exempted under Executive Order 12866.

    C. Paperwork Reduction Act (PRA)

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

    D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. As detailed in the proposal to this action, small entities are not subject to the requirements of this rule. 2

    2 For details on the EPA's RH FIP and additional background, see proposal at 83 FR 24952 (May 31, 2018).

    E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

    F. Executive Order 13132: Federalism

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

    G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on any 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. Thus, Executive Order 13175 does not apply to this action.

    H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern 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 merely rescinds a Federal Implementation Plan (FIP) covering a generating station that has been permanently decommissioned and is being dismantled and demolished.

    I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

    J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards. The EPA is not revising any technical standards or imposing any new technical standards in this action.

    K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994), because it does not affect the level of protection to human health or the environment. This rule will not cause any emissions increases because this rule merely rescinds a FIP covering a generating station that has been permanently decommissioned and is being dismantled and demolished.

    L. Determination Under Section 307(d)

    Pursuant to CAA section 307(d)(1)(B), the EPA has determined that this action is subject to the provisions of section 307(d). Section 307(d) establishes procedural requirements specific to certain rulemaking actions under the CAA. Pursuant to CAA section 307(d)(1)(B), the rescission of the RGGS RH FIP is subject to the requirements of CAA section 307(d), as it constitutes a revision to a FIP under CAA section 110(c). Furthermore, CAA section 307(d)(1)(V) provides that the provisions of section 307(d) apply to “such other actions as the Administrator may determine.” The EPA determines that the provisions of 307(d) apply to the EPA's action on the RGGS RH FIP rescission.

    M. Congressional Review Act (CRA)

    This rule is exempt from the CRA because it is a rule of particular applicability. The EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability that only applies to a single facility.

    N. Petitions for Judicial Review

    Under CAA section 307(b)(1), petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 26, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, Incorporation by reference.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: October 19, 2018. Andrew R. Wheeler, Acting Administrator.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations 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 DD—Nevada 2. Section 52.1488 is amended by removing and reserving paragraph (f).
    [FR Doc. 2018-23470 Filed 10-25-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF VETERANS AFFAIRS 48 CFR Part 870 RIN 2900-AP81 VA Acquisition Regulation: Describing Agency Needs; Contract Financing; Correction AGENCY:

    Department of Veterans Affairs.

    ACTION:

    Final rule; correction.

    SUMMARY:

    The Department of Veterans Affairs is correcting a final rule that published in the Federal Register on October 1, 2018 amending and updating its VA Acquisition Regulation (VAAR). Two instructions in the rule are unneeded and are being removed.

    DATES:

    The correction is effective October 31, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Rafael N. Taylor, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 382-2787. (This is not a toll-free number.)

    SUPPLEMENTARY INFORMATION:

    On September 24, 2018, at 83 FR 48257, VA published a final rule (AQ04) that removes part 870 as the guidance included therein was either moved to other parts, out of date, or duplicative of the FAR. That rule (AQ04) is effective on October 24, 2018, however on October 1, 2018 at 83 FR 49302 VA published a final rule (AP81) with instructions to revise the authority citation for part 870 and remove §§ 870.112 and 870.113 with an effective date of October 31, 2018.

    With this document, VA is removing the unneeded instructions amending part 870 in the final rule (AP81) published on October 1, 2018 (83 FR 49302).

    Correction

    In FR Doc. 2018-18984, appearing on page 49302 in the Federal Register of October 1, 2018, the following correction is made:

    PART 870—[CORRECTED] 1. On page 49311, in the third column, under part 870, remove instructions 37 and 38. Dated: October 23, 2018. Consuela Benjamin, Regulations Development Coordinator, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs.
    [FR Doc. 2018-23420 Filed 10-25-18; 8:45 am] BILLING CODE 8320-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 180808738-8738-01] RIN 0648-XG417 Fisheries of the Northeastern United States; Golden Tilefish Fishery; 2019 Specifications AGENCY:

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

    ACTION:

    Temporary final rule.

    SUMMARY:

    We are finalizing specifications for the 2019 commercial golden tilefish fishery, including the annual catch and total allowable landings limits. This action establishes allowable harvest levels and other management measures to prevent overfishing while allowing optimum yield, consistent with the Magnuson-Stevens Fishery Conservation and Management Act and the Tilefish Fishery Management Plan.

    DATES:

    Effective November 1, 2018, through October 31, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Douglas Potts, Fishery Policy Analyst, 978-281-9341.

    SUPPLEMENTARY INFORMATION:

    Background

    The golden tilefish fishery is managed by the Mid-Atlantic Fishery Management Council under the Tilefish Fishery Management Plan (FMP), which outlines the Council's process for establishing annual specifications. Regulations implementing the Tilefish FMP appear at 50 CFR part 648, subparts A and N, which require the Council to recommend acceptable biological catch (ABC), annual catch limit (ACL), annual catch target (ACT), total allowable landings (TAL), and other management measures, for up to three years at a time. On September 7, 2017, NMFS proposed 2018 specifications for the golden tilefish fishery and announced projected specifications for 2019 and 2020 based on Council recommendations (82 FR 42266). Public comment was accepted through September 22, 2017. We published a final rule implementing the 2018 specifications on November 7, 2017 (82 FR 51578).

    On October 23, 2017, we published a proposed rule (82 FR 48967) to implement Framework Adjustment 2 to the Tilefish FMP, and accepted public comment through November 7, 2017. A final rule implementing Framework 2 was published on March 13, 2018 (83 FR 10803). One provision of Framework 2 changed how assumed discards are accounted for in the specifications setting process. As a result, the Framework 2 final rule adjusted the previously published 2018 specifications and projected specifications for 2019 and 2020 (Table 1). Additional background information regarding the development of these specifications was provided in these rules and is not repeated here.

    Table 1—Summary of Golden Tilefish Specifications 2018 mt million lb Final 2019 mt million lb Projected 2020 mt million lb Overfishing Limit 1,058 2.332 1,098 2.421 1,039 2.291 ABC 742 1.636 742 1.636 742 1.636 ACL 742 1.636 742 1.636 742 1.636 IFQ ACT 705 1.554 705 1.554 705 1.554 Incidental ACT 37 0.082 37 0.082 37 0.082 IFQ TAL 705 1.554 705 1.554 705 1.554 Incidental TAL 33 0.072 33 0.072 33 0.072

    At the end of each fishing year, we evaluate catch information and determine if the ACL has been exceeded. If the ACL is exceeded, the regulations at 50 CFR 648.293 require a pound-for-pound reduction in a subsequent fishing year. During fishing year 2018, there were no annual catch limit or total allowable landings overages. Also, there is no new biological information that would require altering the projected 2019 specifications. Because no overages have occurred, we are announcing the final specifications for fishing year 2019, as projected in the Framework 2 rule, and outlined above in Table 1.

    As in previous years, no golden tilefish quota has been allocated for research set-aside. All other management measures in the golden tilefish fishery will remain unchanged for the 2018-2020 fishing years. The incidental trip limit will stay at 500 lb (226.8 kg), or 50 percent, by weight, of all species being landed, including tilefish; whichever is less. The recreational catch limit will remain eight fish per-angler, per-trip. Annual IFQ allocations will be issued to individual quota shareholders in mid-October, before the November 1 start of the fishing year.

    The fishery management plan allows for the previous year's specifications to remain in place until replaced by a subsequent specifications action (rollover provision). As a result, the 2018 specifications remain in effect until replaced by the 2019 specifications included in this rule.

    We will publish notice in the Federal Register of any revisions to these specifications if an overage occurs in 2019 that would require adjusting the 2020 projected specifications. We will provide notice of the final 2020 specifications prior to the November 1, 2019, start of the 2020 fishing year.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this rule is consistent with the Tilefish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

    The Assistant Administrator for Fisheries, NOAA (AA), finds it is impracticable, unnecessary, and contrary to the public interest to provide for prior notice and an opportunity for public comment, pursuant to authority set forth at U.S.C. 553(b)(B). The proposed rules for the 2018-2020 specifications and Framework 2 provided the public with the opportunity to comment on the projected specifications for 2019 and 2020, and the specifications for fishing year 2019 remain the same as projected in the Framework 2 rulemaking. All comments received were addressed in the respective final rules for the 2018-2020 specifications and Framework 2. Similarly, the need to implement these measures in a timely manner for the start of the golden tilefish fishing year, constitutes good cause under authority contained in 5 U.S.C. 553(d)(3), to establish an effective date less than 30 days after date of publication. The public and fishing industry participants expect this action because we previously alerted the public in the proposed and final rules that we would conduct this review in interim years of the status quo multi-year specifications and announce the final quota prior to the start of the fishing year on November 1.

    This rule is exempt from review under Executive Order 12866 because this action contains no implementing regulations.

    This rule does not duplicate, conflict, or overlap with any existing Federal rules.

    A final regulatory flexibility analysis (FRFA) was prepared for the 2018-2020 specifications final rule. That analysis included the potential impacts of the projected specifications for 2019 and 2020, and no new information has arisen that would change the conclusions drawn in that previous analysis. Because advance notice and the opportunity for public comment are not required for this action under the Administrative Procedure Act, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., do not apply to this rule. Therefore, no new regulatory flexibility analysis is required and none has been prepared.

    This action does not contain a collection of information requirement for the purposes of the Paperwork Reduction Act.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 23, 2018. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2018-23431 Filed 10-25-18; 8:45 am] BILLING CODE 3510-22-P
    83 208 Friday, October 26, 2018 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Docket No. FAA-2018-0918; Notice No. 23-18-03-SC] Special Conditions: Innovative Solutions & Support, Inc.; Textron Aviation, Inc. Model B200-Series Airplanes; Autothrust Functions AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed special conditions.

    SUMMARY:

    This action proposes special conditions for Textron Aviation, Inc. B200-series airplanes. These airplanes as modified by Innovative Solutions & Support, Inc., will have a novel or unusual design feature associated with an autothrust system. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    Send your comments on or before December 10, 2018.

    ADDRESSES:

    Send comments identified by docket number FAA-2018-0918 using any of the following methods:

    Federal eRegulations Portal: Go to http://www.regulations.gov and follow the online instructions for sending your comments electronically.

    Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room W12-140, West Building Ground Floor, Washington, DC, 20590-0001.

    Hand Delivery of Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: The FAA will post all comments it receives, without change, to http://regulations.gov, including any personal information the commenter provides. Using the search function of the docket website, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov.

    Docket: Background documents or comments received may be read at http://www.regulations.gov at any time. Follow the online instructions for accessing the docket or go to the Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m., and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Jeff Pretz, AIR-691, Regulations & Policy Section, Small Airplane Standards Branch, Policy & Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 901 Locust; Kansas City, Missouri 64106; telephone (816) 329-3239; facsimile (816) 329-4090; email [email protected].

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

    We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

    Background

    On December 14, 2017, Innovative Solutions & Support, Inc. (Innovative Solutions), applied for a supplemental type certificate for installation of an autothrust system (ATS)—also known as an autothrottle system—in Textron Aviation, Inc., (Textron) B200-series airplanes. The B200-series airplanes are powered by two Pratt & Whitney PT6A turbo-propeller engines—depending on airplane model—that can carry thirteen passengers, including two-flightcrew members. These airplanes have a service ceiling up to 35,000-feet and a maximum takeoff weight of up to 12,500 pounds in the normal category. These airplanes are approved for single-pilot operation.

    The installation of an ATS in Textron B200-series airplanes is intended to reduce pilot workload. The ATS is useable in all phases of flight except below decision height on approach. The system includes a torque and airspeed mode along with monitors to prevent the system from exceeding critical engine or airspeed limits. Throttle movement is provided by a stepper motor acting through a linear actuator, which acts as a link between the stepper motor and throttle. The liner actuator can be overridden by pilot movement of the throttle and automatically disengages upon disagreement in the expected throttle position versus its actual position.

    Section 23.1329, amendment 23-49, only contained requirements for automatic pilot systems that act on the airplane flight controls. Autothrust systems are automatic systems that act on the thrust controls. These systems provide enhanced automation and safety, but may also introduce pilot confusion, countering the safety benefit. 14 CFR 25.1329, amendment 25-119, addresses these concerns. Therefore, these proposed special conditions are based on § 25.1329 and provide additional requirements to standardize the pilot interface and system behavior and enhance pilot awareness of system active and armed modes.

    Type Certification Basis

    Under the provisions of § 21.101, Innovative Solutions must show that B200-series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate (TC) No. A24CE 1 or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in TC No. A24CE are as follows: 14 CFR part 23, amendments 23-1 through 23-9, plus various later part 23 amendments—depending on the model and serial number of the airplane—as noted on Type Certification Data Sheet A24CE.

    1See http://rgl.faa.gov/.

    If the Administrator finds the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for B200-series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

    Special conditions are initially applicable to the model(s) for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same or similar novel or unusual design feature, the FAA would apply these special conditions to the other model under § 21.101.

    In addition to the applicable airworthiness regulations and special conditions, B200-series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

    The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.

    Novel or Unusual Design Features

    Textron B200-series airplanes will incorporate the following novel or unusual design features:

    Autothrust system, which provides commands to two linear actuators, one attached to each throttle lever, that automatically control thrust on each engine. The autothrust system can be operated in either Torque Control Mode or Airspeed Mode.

    Discussion

    The current part 23 airworthiness regulations do not contain appropriate safety standards for an ATS installation; hence, the need for special conditions. However, part 25 regulations contain appropriate airworthiness standards; therefore, these proposed special conditions are derived from 14 CFR 25.1329, amendment 25-119. Sections 23.143, amendment 23-50, and 23.1309, amendment 23-62, would be used instead of the corresponding part 25 regulations referenced in § 25.1329.

    Applicability

    As discussed above, these special conditions are applicable to Textron B200-series airplanes. Should Innovative Solutions apply at a later date for a supplemental type certificate to modify any other model included on TC No. A24CE to incorporate the same novel or unusual design feature, the FAA would apply these special conditions to that model as well.

    Conclusion

    This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

    List of Subjects in 14 CFR Part 23

    Aircraft, Aviation safety, Signs and symbols.

    The authority citation for these special conditions is as follows:

    Authority:

    49 U.S.C. 106(f), 106(g), 40113, 44701-44702, 44704, Pub. L. 113-53, 127 Stat. 584 (49 U.S.C. 44704) note.

    The Proposed Special Conditions Accordingly, the FAA proposes the following special conditions as part of the type certification basis for Textron Aviation, Inc., B200-series airplanes as modified by Innovative Solutions & Support, Inc. 1. Autothrottle System

    In addition to the requirements of §§ 23.143, 23.1309, and 23.1329, the following apply:

    (a) Quick disengagement controls for the autothrust functions must be provided for each pilot. The autothrust quick disengagement controls must be located on the thrust control levers. Quick disengagement controls must be readily accessible to each pilot while operating the thrust control levers.

    (b) The effects of a failure of the system to disengage the autothrust functions when manually commanded by the pilot must be assessed in accordance with the requirements of § 23.1309.

    (c) Engagement or switching of the flight guidance system, a mode, or a sensor may not cause the autothrust system to affect a transient response that alters the airplane's flight path any greater than a minor transient, as defined in paragraph (1)(l)(1) of this section.

    (d) Under normal conditions, the disengagement of any automatic control function of a flight guidance system may not cause a transient response of the airplane's flight path any greater than a minor transient.

    (e) Under rare normal and non-normal conditions, disengagement of any automatic control function of a flight guidance system may not result in a transient any greater than a significant transient, as defined in paragraph (1)(l)(2) of this section.

    (f) The function and direction of motion of each command reference control, such as heading select or vertical speed, must be plainly indicated on, or adjacent to, each control if necessary to prevent inappropriate use or confusion.

    (g) Under any condition of flight appropriate to its use, the flight guidance system may not produce hazardous loads on the airplane, nor create hazardous deviations in the flight path. This applies to both fault-free operation and in the event of a malfunction, and assumes the pilot begins corrective action within a reasonable period of time.

    (h) When the flight guidance system is in use, a means must be provided to avoid excursions beyond an acceptable margin from the speed range of the normal flight envelope. If the airplane experiences an excursion outside this range, a means must be provided to prevent the flight guidance system from providing guidance or control to an unsafe speed.

    (i) The flight guidance system functions, controls, indications, and alerts must be designed to minimize flight crew errors and confusion concerning the behavior and operation of the flight guidance system. Means must be provided to indicate the current mode of operation, including any armed modes, transitions, and reversions. Selector switch position is not an acceptable means of indication. The controls and indications must be grouped and presented in a logical and consistent manner. The indications must be visible to each pilot under all expected lighting conditions.

    (j) Following disengagement of the autothrust function, a caution (visual and auditory) must be provided to each pilot.

    (k) During autothrust operation, it must be possible for the flightcrew to move the thrust levers without requiring excessive force. The autothrust may not create a potential hazard when the flightcrew applies an override force to the thrust levers.

    (l) For purposes of this section, a transient is a disturbance in the control or flight path of the airplane that is not consistent with response to flight crew inputs or environmental conditions.

    (1) A minor transient would not significantly reduce safety margins and would involve flightcrew actions that are well within their capabilities. A minor transient may involve a slight increase in flight crew workload or some physical discomfort to passengers or cabin crew.

    (2) A significant transient may lead to a significant reduction in safety margins, an increase in flight crew workload, discomfort to the flightcrew, or physical distress to the passengers or cabin crew, possibly including non-fatal injuries. Significant transients do not require, in order to remain within or recover to the normal flight envelope, any of the following:

    (i) Exceptional piloting skill, alertness, or strength.

    (ii) Forces applied by the pilot that are greater than those specified in § 23.143(c).

    (iii) Accelerations or attitudes in the airplane that might result in further hazard to secured or non-secured occupants.

    Issued in Kansas City, Missouri, on October 10, 2018. Jacqueline Jambor, Acting Manager, Small Airplane Standards Branch, Aircraft Certification Service.
    [FR Doc. 2018-22661 Filed 10-25-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF THE TREASURY 31 CFR Part 1 RIN 1505-AC35 Freedom of Information Act Regulations AGENCY:

    Department of the Treasury.

    ACTION:

    Proposed rule.

    SUMMARY:

    This rule proposes revisions to the Department's regulations under the Freedom of Information Act (FOIA). The regulations are being revised to update and streamline procedures and incorporate certain changes brought about by the amendments to the FOIA under the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016. Additionally, the regulations are being updated to reflect developments in the case law and to include current cost figures to be used in calculating and charging fees.

    DATES:

    Comment due date: December 26, 2018.

    ADDRESSES:

    You may submit comments by any of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov.

    Fax: (202) 622-3895, ATTN Ryan Law.

    Mail: Ryan Law, Deputy Assistant Secretary for Privacy, Transparency and Records, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington, DC 20220.

    Comments received by mail will be considered timely if they are postmarked on or before the comment date. The www.regulations.gov site will accept comments until 11:59 p.m. eastern time on the comment due date. The Department will consolidate all received comments and make them available, without change, including any business or personal information that you provide such as name and address information, email addresses, or phone numbers. Received comments, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not enclose any information in your comments or supporting materials that you consider confidential or inappropriate for public disclosure. Properly submitted comments will be available for inspection and downloading at http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Ryan Law, Deputy Assistant Secretary for Privacy, Transparency and Records, 202-622-0930, extension 2 (this is not a toll-free number).

    SUPPLEMENTARY INFORMATION:

    Discussion

    This rule proposes revisions to the Department's regulations under the FOIA to update and streamline the language of several procedural provisions and to incorporate certain of the changes brought about by the amendments to the FOIA under the OPEN Government Act of 2007, Public Law 110-175, 121 Stat. 2524 and the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538. Additionally, the regulations are being updated to reflect developments in case law and to include current cost figures to be used in calculating and charging fees.

    The revisions of the FOIA regulations in 31 CFR subpart A of part 1 incorporate changes to the language and structure of the regulations. Revised provisions include § 1.1 (General Provisions), § 1.2 (Proactive disclosure of Department records), § 1.3 (Requirements for making requests), § 1.4 (Responsibility for responding to requests), § 1.5 (Timing of responses to requests), § 1.6 (Responses to requests), § 1.7 (Confidential commercial information), § 1.8 (Administrative appeals), § 1.9 (Preservation of records), § 1.10 (Fees), and § 1.11 (Other rights and services).

    Sections 1.2, 1.3, 1.5, 1.6, and 1.10 all address the role of the FOIA Public Liaison in assisting requesters with resolving disputes related to their FOIA requests, as required by the OPEN Government Act of 2007.

    The 2007 Act also required agencies to assign tracking numbers to requests that will take longer than 10 days to process. This requirement is implemented through § 1.6.

    The FOIA Improvement Act of 2016 provides that agencies must allow a minimum of 90 days for requesters to file an administrative appeal. The Act also requires that agencies notify requesters of the availability of dispute resolution services at various times throughout the FOIA process. This proposed rule updates the Department's regulations to reflect those statutory changes (§§ 1.5, 1.6, 1.8).

    A number of changes have been made to the section on fees (§ 1.10). The definition of representative of the news media has been updated to reflect amendments to the FOIA under the OPEN Government Act of 2007. Further, § 1.10 has been updated to reflect amendments to the FOIA in 2007 and 2016 that limit the agency's ability to assess fees when certain timelines or conditions are not met. The current regulation also revises § 1.10 to conform to a recent decision of the U.S. Court of Appeals for the District of Columbia Circuit addressing the “educational institution” fee category. See Sack v. Dept. of Defense, 823 F.3d 687 (D.C. Cir. 2016). Specifically, the definition of “educational institution” is revised to reflect the holding in Sack that students who make FOIA requests in furtherance of their coursework or other school-sponsored activities may qualify under this requester category. Therefore, the requirement that such a requester show that the request is made under the auspices of the educational institution is replaced with a requirement that the requester show that the request is made in connection with the requester's role at the educational institution. Section1.10 also proposes revisions to the Department's fee schedule. The duplication charge for photocopying will decrease to $.15 per page, while document search and review charges have been established at $21.00, $16.50, and $13.00 per quarter hour for executive, professional, and administrative time, respectively. Treasury components will be given flexibility to publish their own fee schedules that deviate from the Department's fee schedule as circumstances may warrant. Treasury components differ in the grades of employees that process FOIA requests, whether executive, professional, or administrative, and in the nature of records regularly produced for requesters. Therefore, Treasury has determined that as long as a component follows the OMB fee guidelines, it should have the discretion to establish its own fee structure.

    Finally, the Appendices to the current regulation have been revised to reflect changes in organizational structure. Appendices pertaining to the United States Customs Service, United States Secret Service, Bureau of Alcohol, Tobacco and Firearms, Federal Law Enforcement Training Center, and the Office of Thrift Supervision have been deleted as these components are no longer part of the Department of the Treasury. The Bureau of the Public Debt and the Financial Management Service were merged in 2012 to form the Bureau of the Fiscal Service (Appendix D in these revised regulations). Appendices for two new components have been added: The Alcohol and Tobacco Tax and Trade Bureau (Appendix H) and the Treasury Inspector General for Tax Administration (Appendix I).

    Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., requires agencies to prepare an initial regulatory flexibility analysis (IRFA) to determine the economic impact of the rule on small entities. A small entity is defined as either a small business, a small organization, or a small governmental jurisdiction; an individual is not a small entity. Section 605(b) of the RFA allows an agency to prepare a certification in lieu of an IRFA if the rule will not have a significant economic impact on a substantial number of small entities. Pursuant to 5 U.S.C. 605(b), it is hereby certified that this regulation will not have a significant economic impact on a substantial number of small entities. Under the FOIA, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for requesters. Thus, fees assessed by the Department are nominal. Further, the “small entities” that make FOIA requests, as compared with individual requesters and other requesters, are relatively few in number. Notwithstanding this certification, the Department invites comments on the impact this rule would have on small entities.

    Regulatory Planning and Review

    Executive Orders 13563 and 12866 direct agencies to assess 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 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a “significant regulatory action” under Executive Order 12866.

    List of Subjects in 31 CFR Part 1

    Disclosure of Records, Freedom of Information Act, Other disclosure provisions, Privacy Act.

    For the reasons stated in the preamble, the Department of the Treasury proposes to amend 31 CFR, part 1, as follows:

    PART 1—DISCLOSURE OF RECORDS 1. The authority citation for part 1 is revised to read as follows: Authority:

    5 U.S.C. 301, 552, 552a, 553; 31 U.S.C. 301, 321; 31 U.S.C. 3717.

    2. Subpart A of part 1 is revised to read as follows: Subpart A—Freedom of Information Act Sec. 1.1 General provisions. 1.2 Proactive disclosures of Department records. 1.3 Requirements for making requests. 1.4 Responsibility for responding to requests. 1.5 Timing of responses to requests. 1.6 Responses to requests. 1.7 Confidential commercial information. 1.8 Administrative appeals. 1.9 Preservation of records. 1.10 Fees. 1.11 Other rights and services. Appendix A to Subpart A of Part 1—Departmental Offices Appendix B to Subpart A of Part 1—Internal Revenue Service Appendix C to Subpart A of Part 1—Bureau of Engraving and Printing Appendix D to Subpart A of Part 1—Bureau of the Fiscal Service Appendix E to Subpart A of Part 1—United States Mint Appendix F to Subpart A of Part 1—Office of the Comptroller of the Currency Appendix G to Subpart A of Part 1—Financial Crimes Enforcement Network Appendix H to Subpart A of Part 1—Alcohol and Tobacco Tax and Trade Bureau Appendix I to Subpart A of Part 1—Treasury Inspector General for Tax Administration Subpart A—Freedom of Information Act
    § 1.1 General provisions.

    (a) This subpart contains the rules that the Department of the Treasury follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552 as amended. These regulations apply to all components of the Department of the Treasury. Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed under subpart C of part 1 as well as under this subpart.

    (b) The components of the Department of the Treasury for the purposes of this subpart are the following offices and bureaus:

    (1) The Departmental Offices, which include the offices of:

    (A) The Secretary of the Treasury, including immediate staff;

    (B) The Deputy Secretary of the Treasury, including immediate staff;

    (C) The Chief of Staff, including immediate staff;

    (D) The Executive Secretary of the Treasury and all offices reporting to such official, including immediate staff;

    (E) The Under Secretary (International Affairs) and all offices reporting to such official, including immediate staff;

    (F) The Under Secretary (Domestic Finance) and all offices reporting to such official, including immediate staff;

    (G) The Director of the Community Development Financial Institution Fund and all offices reporting to such official, including immediate staff;

    (H) The Director of the Office of Financial Research and all offices reporting to such official, including immediate staff;

    (I) The Under Secretary (Terrorism and Financial Intelligence) and all offices reporting to such official, including immediate staff;

    (J) The Director of the Office of Foreign Assets Control and all offices reporting to such official, including immediate staff;

    (K) The General Counsel and all offices reporting to such official, including immediate staff, but not including legal counsel to the components listed in paragraphs (b)(2) through (10) of this section;

    (L) The Treasurer of the United States, including immediate staff;

    (M) The Assistant Secretary (Legislative Affairs) and all offices reporting to such official, including immediate staff;

    (N) The Assistant Secretary (Public Affairs) and all offices reporting to such official, including immediate staff;

    (O) The Assistant Secretary (Economic Policy) and all offices reporting to such official, including immediate staff;

    (P) The Assistant Secretary (Tax Policy) and all offices reporting to such official, including immediate staff;

    (Q) The Assistant Secretary (Management) and all offices reporting to such official, including immediate staff; and

    (R) The Inspector General and all offices reporting to such official, including immediate staff;

    (2) The Alcohol and Tobacco Tax and Trade Bureau;

    (3) The Bureau of Engraving and Printing;

    (4) The Bureau of the Fiscal Service;

    (5) The Financial Crimes Enforcement Network;

    (6) The Internal Revenue Service;

    (7) The Office of the Comptroller of the Currency;

    (8) The United States Mint;

    (9) The Treasury Inspector General for Tax Administration;

    (10) The Special Inspector General for the Troubled Asset Relief Program.

    (c) Any Treasury office which is now in existence or may hereafter be established, which is not specifically listed above and is not a subsidiary unit of a component of those listed above, shall be deemed a part of the Departmental Offices for the purpose of these regulations.

    (d) The head of each component is hereby authorized to substitute the official designated and change the address specified in the appendix to this subpart applicable to that component. Components may issue supplementary regulations applicable only to the component in question, which (except with respect to fee schedules) shall be consistent with these regulations. Persons interested in the records of a particular component should, therefore, also consult the Code of Federal Regulations for any rules or regulations promulgated specifically with respect to that component (see Appendices to this subpart for cross references). In the event of any actual or apparent inconsistency, these Departmental regulations shall govern.

    § 1.2 Proactive disclosure of Department records.

    (a) Records that are required by the FOIA to be made available for public inspection in an electronic format may be accessed through the Department's website, http://www.treasury.gov, and/or on the website of the component that maintains such records. The FOIA office of each component is responsible for determining which of the component's records are required to be made publicly available, as well as identifying additional records of interest to the public that are appropriate for public disclosure, and for posting such records. Each component has a FOIA Public Liaison who can assist individuals in locating records particular to that component. A list of the Department's FOIA Public Liaisons is available at: https://home.treasury.gov/footer/freedom-of-information-act.

    (b) When a component receives three or more requests for the same records, it shall make available for public inspection in an electronic format, any records released in response to those requests.

    § 1.3 Requirements for making requests.

    (a) General information.

    (1) Requests should be addressed to the FOIA office of the component that maintains the requested records. The appendices to this subpart list the addresses of each FOIA office and the methods for submitting requests to each component. Requesters are encouraged to submit requests online (through FOIA.gov, component web pages or by completing the “Submit an Online Request” form located at https://home.treasury.gov/footer/freedom-of-information-act.

    (2) When a requester is unable to determine the appropriate Departmental component to which to direct a request, the requester may send the request to Freedom of Information Act Request, Department of the Treasury, Departmental Offices (DO), Director, FOIA and Transparency, 1500 Pennsylvania Avenue NW, Washington, DC 20220. The FOIA and Transparency team will forward the request to the component(s) that it determines to be most likely to maintain the records that are sought.

    (3) A requester who is making a request for records about himself or herself must comply with the verification of identity provision set forth in section 1.26 of subpart C of this part.

    (4) Where a request for records pertains to a third party, a requester may receive greater access by submitting either a notarized authorization signed by that individual or a declaration by that individual made in compliance with the requirements set forth in 28 U.S.C. 1746, authorizing disclosure of the records to the requester, or submitting proof that the individual is deceased (e.g., a copy of a death certificate). As an exercise of its administrative discretion, each component can require a requester to supply additional information, if necessary, in order to verify that a particular individual has consented to disclosure.

    (b) Description of records sought. Requesters must describe the records sought in sufficient detail to enable Department personnel to locate them with a reasonable amount of effort. To the extent possible, requesters should include specific information that may assist a component in identifying the requested records, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number. Requesters should refer to the Appendices of this subpart for additional component-specific requirements. In general, requesters should include as much detail as possible about the specific records or the types of records that they are seeking. If the requester fails to reasonably describe the records sought, the component shall inform the requester what additional information is needed or why the request is deficient. Requesters who are attempting to reformulate or modify such a request may discuss their request with the component's designated FOIA contact or the FOIA Public Liaison. When a requester fails to provide sufficient detail after having been asked to clarify a request, the component shall notify the requester that the request has not been properly made and that the request will be administratively closed.

    § 1.4 Responsibility for responding to requests.

    (a) In general. The component that first receives a request for a record and maintains that record is the component responsible for responding to the request. In determining which records are responsive to a request, a component ordinarily will include only records in its possession as of the date that it begins its search. If any other date is used, the component shall inform the requester of that date. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), shall not be considered responsive to a request.

    (b) Authority to grant or deny requests. The head of a component, or designee, is authorized to grant or to deny any requests for records that are maintained by that component.

    (c) Re-routing of misdirected requests. When a component's FOIA office determines that a request was misdirected within the agency, the receiving component's FOIA office must route the request to the FOIA office of the proper component(s) within the agency.

    (d) Consultation, referral, and coordination. When reviewing records located by a component in response to a request, the component will determine whether another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under the FOIA. As to any such record, the agency must proceed in one of the following ways:

    (1) Consultation. When records originated with the component processing the request, but contain within them information of interest to another agency or other Federal Government office, the agency processing the request should typically consult with that other entity prior to making a release determination.

    (2) Referral. (i) When the component processing the request believes that a different agency is best able to determine whether to disclose the record, the component typically should refer the responsibility for responding to the request regarding that record to that agency. Ordinarily, the agency that originated the record is presumed to be the best agency to make the disclosure determination. However, if the component processing the request is in the best position to respond regarding the record, then the record may be handled as a consultation.

    (ii) Whenever a component refers any part of the responsibility for responding to a request to another agency, it must document the referral, maintain a copy of the record that it refers, and notify the requester of the referral, informing the requester of the name(s) of the agency to which the record was referred, including that agency's FOIA contact information.

    (3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. For example, if a non-law enforcement agency responding to a request for records on a living third party locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if an agency locates within its files material originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the agency that received the request should coordinate with the originating agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination should then be conveyed to the requester by the agency that originally received the request.

    (4) Timing of responses to consultations and referrals. All consultations and referrals will be handled according to the date that the FOIA request was initially received by the component or other agency of the Federal government.

    (5) Agreements regarding consultations and referrals. Components may establish agreements with other Treasury components or agencies of the Federal government to eliminate the need for consultations or referrals with respect to particular types of records.

    (e) Classified information. On receipt of any request involving classified information, the component shall take appropriate action to ensure compliance with part 2 of this title and with all other laws and regulations relating to proper handling of classified information. Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another component or agency under any applicable executive order concerning the classification of records, the receiving component shall refer the responsibility for responding to the request regarding that information to the component or agency that classified the information, or that should consider the information for classification. Whenever a component's record contains information that has been derivatively classified, i.e., it contains information classified by another component or agency of the Federal government, the component shall refer the responsibility for responding to that portion of the request to the component or agency that classified the underlying information.

    § 1.5 Timing of responses to requests.

    (a) In general. Components ordinarily will respond to requests according to their order of receipt. The Appendices to this subpart contain the list of the Departmental components that are designated to accept requests. In instances involving misdirected requests, i.e., where a request is sent to one of the components designated in the Appendices but is actually seeking records maintained by another component, the response time will commence on the date that the request is received by the appropriate component, but in any event not later than ten working days after the request is first received.

    (b) Multitrack processing. All components must designate a specific track for requests that are granted expedited processing, in accordance with the standards set forth in paragraph (e) of this section. A component may also designate additional processing tracks that distinguish between simple and more complex requests based on the estimated amount of work or time needed to process the request. A component can consider factors such as the number of pages involved in processing the request or the need for consultations or referrals. Components shall advise requesters of the track into which their request falls and, when appropriate, shall offer the requesters an opportunity to narrow their request so that it can be placed in a different processing track.

    (c) Unusual circumstances. Whenever the statutory time limits for processing a request cannot be met because of “unusual circumstances,” as defined in the FOIA, and the component extends the time limits on that basis, the component shall, before expiration of the twenty-day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which processing of the request can be expected to be completed. Where the extension exceeds ten working days, the component shall, as described by the FOIA, provide the requester with an opportunity to modify the request or agree to an alternative time period for processing. The component shall make available its designated FOIA contact or its FOIA Public Liaison for this purpose. The component must also alert requesters to the availability of the Office of Government Information Services to provide dispute resolution services.

    (d) Aggregating requests. For the purposes of identifying unusual circumstances under the FOIA, components may aggregate requests in cases where it reasonably appears that multiple requests, submitted either by a requester or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances. Components will not aggregate multiple requests that involve unrelated matters.

    (e) Expedited processing. (1) Requests and appeals will be processed on an expedited basis only upon request and when it is determined that they involve:

    (i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;

    (ii) An urgency to inform the public about an actual or alleged Federal government activity, if made by a person who is primarily engaged in disseminating information. The standard of “urgency to inform” requires that the records requested pertain to a matter of current exigency to the public and that delaying a response to a request for records would compromise a significant recognized interest to and throughout the general public; or

    (iii) The loss of substantial due process rights.

    (2) A request for expedited processing may be made at any time. Requests must be submitted to the component that maintains the records requested. The time period for making the determination on the request for expedited processing under this section shall commence on the date that the component receives the request.

    (3) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. As a matter of administrative discretion, a component may waive the formal certification requirement.

    (4) A requester seeking expedited processing under paragraph (e)(1)(ii) of this section, who is not a full-time member of the news media must establish that he or she is a person whose primary professional activity or occupation is information dissemination. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public's right to know about government activity generally.

    (5) A component shall notify the requester within ten calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request shall be given priority, placed in the processing track for expedited requests, and shall be processed as soon as practicable. If a component denies expedited processing, any appeal of that decision that complies with the procedures set forth in § 1.8 of this subpart shall be acted on expeditiously.

    § 1.6 Responses to requests.

    (a) Acknowledgments of requests. Upon receipt of a request that will take longer than ten business days to process, a component shall send the requester an acknowledgment letter that assigns the request an individualized tracking number. The component shall also include in the acknowledgment a brief description of the records sought to allow requesters to more easily keep track of their requests.

    (b) Grants of requests. Once a component makes a determination to grant a request in full or in part, it shall notify the requester in writing. The component also shall inform the requester of any fees charged under § 1.10 of this subpart and shall disclose the requested records to the requester promptly upon payment of any applicable fees. The component must also inform the requester of the availability of the FOIA Public Liaison to offer assistance.

    (c) Adverse determinations of requests. A component making an adverse determination denying a request in any respect shall notify the requester of that determination in writing. Adverse determinations, or denials of requests, include decisions that: the requested record is exempt, in whole or in part; the request does not reasonably describe the records sought; the information requested is not a record subject to the FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format sought by the requester. Adverse determinations also include denials involving fees or fee waiver matters, and denials of requests for expedited processing.

    (d) Content of denial letter. The denial letter shall be signed by the head of the component, or FOIA designee, and shall include, when applicable:

    (1) The name and title or position of the person responsible for the denial;

    (2) A brief statement of the reasons for the denial, including any FOIA exemption applied by the component in denying the request; and

    (3) An estimate of the volume of any records or information withheld, for example, by providing the number of pages or some other reasonable form of estimation. This estimation is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part, or if the estimate would cause a harm protected by one of the exemptions.

    (4) A statement that the denial may be appealed under § 1.8(a) of this subpart, and a description of the requirements set forth therein.

    (5) A statement notifying the requester of the assistance available from the component's FOIA Public Liaison and the dispute resolution services offered by the Office of Government Information Services.

    (e) Markings on released documents. Records disclosed in part must be marked clearly to show the amount of information deleted and the exemption under which the deletion was made unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted shall also be indicated on the record, if technically feasible.

    (f) Use of record exclusions.

    (1) In the event a component identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component shall consult with the Department of Justice, Office of Information Policy (OIP), before applying the exclusion.

    (2) A component invoking an exclusion must maintain an administrative record of the process of invocation and of the consultation with OIP.

    § 1.7 Confidential commercial information.

    (a) Definitions.

    (1) Confidential commercial information means trade secrets and commercial or financial information obtained by the Department from a submitter that may be protected from disclosure under Exemption 4 of the FOIA.

    (2) Submitter means any person or entity from whom the Department obtains confidential commercial information, directly or indirectly.

    (3) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, either at the time of submission or within a reasonable time thereafter, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations will expire ten years after the date of the submission unless the submitter requests and provides justification for a longer designation period.

    (b) When notice to submitters is required.

    (1) A component shall promptly provide written notice to a submitter whenever:

    (i) The requested confidential commercial information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or

    (ii) The component has a reason to believe that the requested confidential commercial information may be protected from disclosure under Exemption 4 of the FOIA.

    (2) The notice shall either describe the confidential commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it.

    (c) Exceptions to submitter notice requirements. The notice requirements of this section shall not apply if:

    (1) The component determines that the confidential commercial information is exempt from disclosure under the FOIA;

    (2) The confidential commercial information lawfully has been published or has been officially made available to the public; or

    (3) Disclosure of the confidential commercial information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987;

    (d) Opportunity to object to disclosure. (1) A component will specify a reasonable time period as determined within its administrative discretion within which the submitter must respond to the notice referenced above. If a submitter has any objections to disclosure, it should provide the component a detailed written statement that specifies all grounds for withholding the particular confidential commercial information under any exemption of the FOIA. In order to rely on Exemption 4 as a basis for nondisclosure, the submitter must explain why the information constitutes a trade secret, or commercial or financial information that is privileged or confidential.

    (2) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. An objection to disclosure received by the component after the time period specified in the notice will not be considered by the component. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA and/or protected from disclosure by applicable exemptions or by a statute other than the FOIA.

    (e) Analysis of objections. A component shall consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested confidential commercial information.

    (f) Notice of intent to disclose. Whenever a component decides to disclose confidential commercial information over the objection of a submitter, the component shall provide the submitter written notice, which shall include:

    (1) A statement of the reasons why each of the submitter's disclosure objections was not sustained;

    (2) Copies of the records that the component intends to disclose or, in the alternative, a description of the confidential commercial information to be disclosed; and

    (3) A specified disclosure date, which shall be a reasonable time subsequent to the notice.

    (g) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, the component shall promptly notify the submitter.

    (h) Requester notification. The component shall notify a requester whenever it provides the submitter with notice and an opportunity to object to disclosure; whenever it notifies the submitter of its intent to disclose the requested confidential commercial information; and whenever a submitter files a lawsuit to prevent the disclosure of the confidential commercial information.

    § 1.8 Administrative appeals.

    (a) Requirements for making an appeal. Before seeking review by a court of a component's adverse determination, a requester generally must first submit a timely administrative appeal. A requester may appeal any adverse determinations denying his or her request to the official specified in the appropriate Appendix to this subpart. Examples of adverse determinations are provided in § 1.6(c) of this subpart. The requester must make the appeal in writing and to be considered timely it must be postmarked, or in the case of electronic submissions, transmitted, within 90 calendar days after the date of the component's final response. The appeal letter should clearly identify the component's determination that is being appealed and the assigned request number. The requester should mark both the appeal letter and envelope, or subject line of the electronic transmission, “Freedom of Information Act Appeal.”

    (b) Adjudication of appeals.

    (1) The FOIA appeal official or designee specified in the appropriate Appendix will act on all appeals under this section.

    (2) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.

    (3) On receipt of any appeal involving classified information, the FOIA appeal official or designee must take appropriate action to ensure compliance with applicable classification rules.

    (c) Decision on appeals. A decision on an appeal must be made in writing by the component within 20 business days after receipt of the appeal. A decision that upholds a component's determination must contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. The decision must provide the requester with notification of the statutory right to file a lawsuit and will inform the requester of the mediation services offered by the Office of Government Information Services of the National Archives and Records Administration as a non-exclusive alternative to litigation. If a component's decision is remanded or modified on appeal the requester will be notified of that determination in writing. The component will then further process the request in accordance with that appeal determination and respond directly to the requester. Appeals that have not been postmarked or transmitted within the specified time frame will be considered untimely and will be administratively closed with written notice to the requester.

    (d) Engaging in dispute resolution services provided by Office of Government Information Services (OGIS). Mediation is a voluntary process. If a component agrees to participate in the mediation services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute.

    § 1.9 Preservation of records.

    Each component shall preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code or the General Records Schedule 4.2 of the National Archives and Records Administration. Records that are identified as responsive to a request will not be disposed of or destroyed while they are the subject of a pending request, administrative appeal, or lawsuit under the FOIA.

    § 1.10 Fees.

    (a) In general. Components may charge for processing requests under the FOIA in accordance with the provisions of this section or may issue their own fee schedules as long as they are consistent with the OMB Guidelines. In order to resolve any fee issues that arise under this section, a component may contact a requester for additional information. A component ordinarily will collect all applicable fees before sending copies of records to a requester. Requesters must pay fees by check or money order made payable to the Treasury of the United States, or by other means specified at https://home.treasury.gov/footer/freedom-of-information-act.

    (b) Definitions. For purposes of this section:

    (1) Commercial-use request is a request for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation.

    (2) Direct costs are those expenses that a component expends in searching for and duplicating (and, in the case of commercial-use requests, reviewing) records in order to respond to a FOIA request. For example, direct costs include the salary of the employee performing the work (i.e., the basic rate of pay for the employee, plus 16 percent of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. Direct costs do not include overhead expenses such as the costs of space, and of heating or lighting a facility. Components shall ensure that searches, review, and duplication are conducted in the most efficient and the least expensive manner.

    (3) Duplication is reproducing a copy of a record or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others.

    (4) Educational institution is any school that operates a program of scholarly research. A requester in this category must show that the request is made in connection with the requester's role at the educational institution. Components may seek assurance from the requester that the request is in furtherance of scholarly research and will advise requesters of their placement in this category.

    (5) Noncommercial scientific institution is an institution that is not operated on a “commercial” basis, as defined in paragraph (b)(1) of this section, and that is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry. A requester in this category must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are sought to further scientific research and not for a commercial use.

    (6) Representative of the news media is any person or entity that actively gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting news to the public at large and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public. A request for records that supports the news-dissemination function of the requester shall not be considered to be for a commercial use. “Freelance” journalists who demonstrate a solid basis for expecting publication through a news media entity shall be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, components shall also consider a requester's past publication record in making this determination.

    (7) Other requester refers to a requester who does not fall within any of the previously described categories.

    (8) Review is the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. Review time includes time spent processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review time also includes time spent obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under § 1.7 of this subpart, but it does not include time spent resolving general legal or policy issues regarding the application of exemptions. Review costs are properly charged even if a record ultimately is not disclosed.

    (9) Search is the process of looking for and retrieving records or information responsive to a request. Search time includes time devoted to page-by-page or line-by-line identification of information within records; and the reasonable efforts expended to locate and retrieve information from electronic records.

    (c) Charging fees. Unless a component has issued a separate fee schedule, or a waiver or reduction of fees has been granted under paragraph (k) of this section, components shall charge the following fees. Because the fee amounts provided below already account for the direct costs associated with a given fee type, components should not add any additional costs to those charges.

    (1) Search. (i) Search fees shall be charged for all requests, subject to the restrictions of paragraph (d) of this section. Components will charge search fees for all other requesters, subject to the restrictions of paragraph (d) of this section. Components may properly charge for time spent searching even if they do not locate any responsive records or if they determine that the records are entirely exempt from disclosure.

    (ii) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees shall be as follows: Executive—$21; professional—$16.50; and administrative—$13.00.

    (iii) In addition, requesters will be charged the direct costs associated with the creation of any new computer program required to locate the requested records.

    (2) Duplication. Duplication fees will be charged to all requesters, subject to the restrictions of paragraph (d) of this section. A component shall honor a requester's preference for receiving a record in a particular form or format where it is readily reproducible by the component in the form or format requested. Where photocopies are supplied, the component will provide one copy per request at a cost of $0.15 per page. For copies of records produced on tapes, disks, other forms of duplication, or other electronic media, components will charge the direct costs of producing the copy, including operator time. Where paper documents must be scanned in order to comply with a requester's preference to receive the records in an electronic format, the requester shall pay the direct costs associated with scanning those materials, including operator's time. For other forms of duplication, components will charge the direct costs.

    (3) Review. Review fees will only be charged to requesters who make commercial-use requests. Review fees will be assessed in connection with the initial review of the record, i.e., the review conducted by a component to determine whether an exemption applies to a particular record or portion of a record. No charge will be made for review at the administrative appeal stage of exemptions applied at the initial review stage. However, when the appellate authority determines that a particular exemption no longer applies, any costs associated with a component's re-review of the records in order to consider the use of other exemptions may be assessed as review fees. Review costs are properly charged even if a record ultimately is not disclosed. Review fees will be charged at the same rates as those charged for a search under paragraph (c)(1)(ii) of this section.

    (d) Restrictions on charging fees. (1) No search fees will be charged for requests by educational institutions, noncommercial scientific institutions, or representatives of the news media (unless the records are sought for commercial use).

    (2) If a component fails to comply with the FOIA's time limits in which to respond to a request, it may not charge search fees, or, in the instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees, except as described in paragraphs (d)(2)(i) through (iii) of this section.

    (i) If a component has determined that unusual circumstances as defined by the FOIA apply and the agency provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional ten days.

    (ii) If a component has determined that unusual circumstances as defined by the FOIA apply, and more than 5,000 pages are necessary to respond to the request, the component may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees if the following steps are taken. The component must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and the component must have discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, the component may charge all applicable fees incurred in the processing of the request.

    (iii) If a court has determined that exceptional circumstances exist as defined in the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order.

    (3) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.

    (4) Except for requesters seeking records for a commercial use, components will provide without charge:

    (i) The first 100 pages of duplication (or the cost equivalent for other media); and

    (ii) The first two hours of search.

    (5) When, after first deducting the 100 free pages (or its cost equivalent) and the first two hours of search, a total fee calculated under paragraph (c) of this section is $25.00 or less for any request, no fee will be charged.

    (e) Notice of anticipated fees in excess of $25.00. When a component determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, the component shall notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, the component shall advise the requester accordingly. In cases in which a requester has been notified that the actual or estimated fees are in excess of $25.00, the request shall not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee. Such a commitment must be made by the requester in writing, must indicate a given dollar amount the requester is willing to pay, and must be received by the component within 30 calendar days from the date of notification of the fee estimate. If a commitment is not received within this period, the requester shall be notified, in writing, that the request shall be closed. Components will inform the requester of their right to seek assistance from the appropriate component FOIA Public Liaison or other FOIA professional to assist the requester in reformulating request in an effort to reduce fees. Components are not required to accept payments in installments. If the requester has indicated a willingness to pay some designated amount of fees, but the component estimates that the total fee will exceed that amount, the component will toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The Component will inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.

    (f) Charges for other services. Although not required to provide special services, if a component chooses to do so as a matter of administrative discretion, the direct costs of providing the service will be charged. Examples of such services include certifying that records are true copies, providing multiple copies of the same document, or sending records by means other than first class mail.

    (g) Charging interest. Components may charge interest on any unpaid bill starting on the 31st day following the date of billing the requester. Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the billing date until payment is received by the component. Components will follow the provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.

    (h) Aggregating requests. When a component reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a single request into a series of requests for the purpose of avoiding fees, the component may aggregate those requests and charge accordingly. Components may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. For requests separated by a longer period, components will aggregate them only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved. Multiple requests involving unrelated matters will not be aggregated.

    (i) Advance payments. (1) For requests other than those described in paragraphs (i)(2) and (i)(3) of this section, a component shall not require the requester to make an advance payment before work is commenced or continued on a request. Payment owed for work already completed (i.e., payment before copies are sent to a requester) is not an advance payment.

    (2) When a component determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. A component may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment.

    (3) Where a requester has previously failed to pay a properly charged FOIA fee to any component or agency within 30 calendar days of the billing date, a component may require that the requester pay the full amount due, plus any applicable interest on that prior request and the component may require that the requester make an advance payment of the full amount of any anticipated fee before the component begins to process a new request or continues to process a pending request, or any pending appeal. Where a component has a reasonable basis to believe that a requester has misrepresented his or her identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity.

    (4) In cases in which a component requires advance payment, the request shall not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of the component's fee determination letter, the request will be closed.

    (j) Other statutes specifically providing for fees. The fee schedule of this section does not apply to fees charged under any statute that specifically requires an agency to set and collect fees for particular types of records. In instances where records responsive to a request are subject to a statutorily-based fee schedule program, the component will inform the requester of the contact information for that source.

    (k) Requirements for waiver or reduction of fees.

    (1) Requesters may seek a waiver of fees by submitting a written application demonstrating how disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.

    (2) A component must furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. In deciding whether this standard is satisfied the component must consider the factors described in paragraphs (k)(2)(i) through (iii) of this section:

    (i) Disclosure of the requested information would shed light on the operations or activities of the government. The subject of the request must concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated.

    (ii) Disclosure of the requested information would be likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met:

    (A) Disclosure of the requested records must be meaningfully informative about government operations or activities. The disclosure of information that is already in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding.

    (B) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as the requester's ability and intention to effectively convey information to the public must be considered. Components will presume that a representative of the news media will satisfy this consideration.

    (iii) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, components will consider the following criteria:

    (A) Components must identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters must be given an opportunity to provide explanatory information regarding this consideration.

    (B) If there is an identified commercial interest, the component must determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (k)(2)(i) and (ii) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. Components ordinarily will presume that when a news media requester has satisfied the requirements of paragraphs (k)(2)(i) and (ii) of this section, the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.

    (3) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.

    (4) Requests for a waiver or reduction of fees should be made when the request is first submitted to the component and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester shall be required to pay any costs incurred up to the date the fee waiver request was received.

    (5) The requester shall be notified in writing of the decision to grant or deny the fee waiver.

    § 1.11 Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.

    Appendix A to Subpart A of Part 1—Departmental Offices

    1. In general. This appendix applies to the Departmental Offices as defined in 31 CFR 1.1(b)(1).

    2. Public Reading Room. The public reading room for the Departmental Offices is the Treasury Library. The library is located in the Freedman's Bank Building (Treasury Annex), Room 1020, 1500 Pennsylvania Avenue NW, Washington, DC 20220. For building security purposes, visitors are required to make an appointment by calling 202-622-0990. Treasury also maintains an electronic reading room, which may be accessed at https://home.treasury.gov/footer/freedom-of-information-act.

    3. Requests for records.

    (a) Initial determinations as to whether to grant requests for records of the Departmental Offices will be made by the Director for FOIA and Transparency, or the designee of such official, with the exception of initial determinations by the Office of the Inspector General and the Special Inspector General for the Troubled Asset Relief Program, which will be made by the designee of the respective Inspector General.

    (b) Requests for records should be sent to: Freedom of Information Request, Departmental Offices, Director, FOIA and Transparency, Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington, DC 20220. Requests may also be submitted via email at [email protected]

    4. Administrative appeal of initial determination to deny records.

    (a) Appellate determinations with respect to records of the Departmental Offices or requests for expedited processing will be made by the Deputy Assistant Secretary for Privacy, Transparency, and Records, or the designee of such official, with the exception of appellate determinations by the Office of the Inspector General and the Special Inspector General for the Troubled Asset Relief Program, which will be made by the respective Inspector General or his or her designee.

    (b) Appeals should be addressed to: Freedom of Information Appeal, Departmental Offices, FOIA and Transparency, Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington, DC 20220. Appeals may also be submitted via email at [email protected]

    Appendix B to Subpart A of Part 1—Internal Revenue Service

    1. In general. This appendix applies to the Internal Revenue Service (IRS). See also 26 CFR 601.702.

    2. Public reading room. The IRS no longer maintains physical reading rooms. Documents for the public are found on various websites at irs.gov including the electronic FOIA Reading Room located at https://www.irs.gov/uac/electronic-reading-room.

    3. Requests for records. Initial determinations as to whether to grant requests for records of the IRS, grant expedited processing, grant a fee waiver, or determine requester category will be made by those officials specified in 26 CFR 601.702.

    Requests for records should be submitted to the IRS using the information below:

    IRS Accepts FOIA Requests by Fax or by Mail If your request is for IRS Headquarters Office records concerning matters of nationwide applicability, such as published guidance (regulations and revenue rulings), program management, operations, or policies, including National or Headquarters Offices of Chief Counsel records that are not available at the Electronic FOIA Reading Room site: If your request is for your own records or other records controlled at IRS field locations including Division Counsel offices that are not available at the Electronic FOIA Reading Room site: Fax: 877-807-9215 Fax: 877-891-6035. Mail: IRS FOIA Request, Stop 211, P.O. Box 621506, Atlanta, GA 30362-3006. Mail: IRS FOIA Request, Stop 93A, Post Office Box 621506, Atlanta GA 30362-3006.

    4. Administrative appeal of initial determination to deny records. Appellate determinations with respect to records of the Internal Revenue Service will be made by the Commissioner of Internal Revenue or the delegate of such officer. Appeals must be in writing and addressed to: IRS Appeals Attention: FOIA Appeals, M/Stop 55202, 5045 E. Butler Ave., Fresno, CA 93727-5136.

    Appendix C to Subpart A of Part 1—Bureau of Engraving and Printing

    1. In general. This appendix applies to the Bureau of Engraving and Printing (BEP).

    2. Public reading room. BEP's public reading room is located at 14th and C Streets SW, Washington, DC 20228. Individuals wishing to visit the public reading room must request an appointment by telephoning (202) 874-2500. The reading room is open on official business days from 10:00 a.m. to 4:00 p.m. eastern standard time. Visitors shall comply with 31 CFR part 605, governing the conduct of persons within the buildings and grounds of the BEP. In addition, BEP also maintains an electronic reading room, which may be accessed at http://www.bep.gov/bepfoialibrary.html.

    3. Requests for records. Initial determinations as to whether to grant or deny requests for records of the BEP or applicable fees will be made by the BEP Director delegate, i.e., Disclosure Officer. Requests may be mailed or faxed to: FOIA/PA Request, Disclosure Officer, Bureau of Engraving and Printing, Office of the Chief Counsel—FOIA and Transparency Services, Washington, DC 20228-0001, Fax Number: (202) 874-2951.

    4. Administrative Appeal of initial determination to deny records. Appellate determinations with respect to records of the BEP will be made by the Director of the BEP or the delegate of the Director for purposes of this section. Appeals may be mailed or delivered in person to: FOIA/PA APPEAL, Director, Bureau of Engraving and Printing, Office of the Director, 14th and C Streets SW, Washington, DC 20228-0001.

    Appendix D to Subpart A of Part 1— Bureau of the Fiscal Service

    1. In general. This appendix applies to the Bureau of the Fiscal Service.

    2. Public reading room. The public reading room for the Bureau of the Fiscal Service is the Treasury Library. The library is located in the Freedman's Bank Building (Treasury Annex), Room 1020, 1500 Pennsylvania Avenue NW, Washington, DC 20220. For building security reasons, visitors are required to make an appointment by calling 202-622-0990. Fiscal Service also maintains an electronic reading room, which may be accessed at https://www.fiscal.treasury.gov/foia/foia_readingroom.htm.

    3. Requests for records. Initial determinations whether to grant requests for records will be made by the Disclosure Officer, Bureau of the Fiscal Service. Requests may be mailed or delivered in person to: Freedom of Information Request, Disclosure Officer, Bureau of the Fiscal Service, 401 14th Street SW, Washington, DC 20227.

    4. Administrative appeal of initial determination to deny records. Appellate determinations will be made by the Commissioner, Bureau of the Fiscal Service, or that official's delegate. Appeals may be mailed to: Freedom of Information Appeal (FOIA), Commissioner, Bureau of the Fiscal Service 401 14th Street SW, Washington, DC 20227.

    Appeals may be delivered personally to the Office of the Commissioner, Bureau of the Fiscal Service, 401 14th Street SW, Washington, DC.

    Appendix E to Subpart A of Part 1—United States Mint

    1. In general. This appendix applies to the United States Mint.

    2. Public reading room. The U.S. Mint will provide a room on an ad hoc basis when necessary. Contact the Freedom of Information/Privacy Act Officer, United States Mint, Judiciary Square Building, 7th Floor, 633 3rd Street NW, Washington, DC 20220.

    3. Requests for records. Initial determinations as to whether to grant requests for records of the United States Mint will be made by the Freedom of Information/Privacy Act Officer, United States Mint. Requests may be mailed or delivered in person to: Freedom of Information Act Request, Freedom of Information/Privacy Act Officer, United States Mint, Judiciary Square Building, 7th Floor, 633 3rd Street NW, Washington, DC 20220.

    4. Administrative appeal of initial determination to deny records. Appellate determinations with respect to records of the United States Mint will be made by the Director of the Mint. Appeals made by mail should be addressed to: Freedom of Information Appeal, Director, United States Mint, Judiciary Square Building, 7th Floor, 633 3rd Street NW, Washington, DC 20220.

    Appendix F to Subpart A of Part 1—Office of the Comptroller of the Currency

    1. In general. This appendix applies to the Office of the Comptroller of the Currency.

    2. Public reading room. The Office of the Comptroller of the Currency will make materials available through its Public Information Room at 250 E Street SW, Washington, DC 20219.

    3. Requests for records. Initial determinations as to whether to grant requests for records of the Office of the Comptroller of the Currency will be made by the Disclosure Officer or the official so designated. Requests may be mailed or delivered in person to: Freedom of Information Act Request, Disclosure Officer, Communications Division, 3rd Floor, Comptroller of the Currency, 250 E Street SW, Washington, DC 20219.

    4. Administrative appeal of initial determination to deny records. Appellate determinations with respect to records of the Comptroller of the Currency will be made by the Chief Counsel or delegates of such official. Appeals made by mail shall be addressed to: Communications Division, Comptroller of the Currency, 250 E Street SW, Washington, DC 20219.

    Appeals may be delivered personally to the Communications Division, Comptroller of the Currency, 250 E Street SW, Washington, DC.

    Appendix G to Subpart A of Part 1—Financial Crimes Enforcement Network

    1. In general. This appendix applies to the Financial Crimes Enforcement Network (FinCEN).

    2. Public reading room. FinCEN will provide records on the online reading room located on the FinCEN FOIA page or in the Code of Federal Regulations.

    3. Requests for records. Initial determinations as to whether to grant requests for records of FinCEN will be made by the Freedom of Information Act/Privacy Act Officer, FinCEN. Requests for records may be mailed to: Freecom of Information Act/Privacy Act Request, Financial Crimes Enforcement Network, Post Office Box 39, Vienna, VA 22183.

    4 Administrative appeal of initial determination to deny records. Appellate determinations with respect to the records of FinCEN will be made by the Director of FinCEN or the delegate of the Director. Appeals should be mailed to: Freedom of Information Act Appeal, Post Office Box 39, Vienna, VA 22183, or emailed to: [email protected]

    Appendix H to Subpart A of Part 1—Alcohol and Tobacco Tax and Trade Bureau

    1. In general. This appendix applies to the Alcohol and Tobacco Tax and Trade Bureau (TTB).

    2. Public reading room. The public reading room for TTB is maintained at 1310 G Street NW, Washington, DC 20005. For building security purposes, visitors are required to make an appointment by calling 202-882-9904.

    3. Requests for records. Initial determinations as to whether to grant requests for records of TTB will be made by the Director, Regulations and Rulings Division. Requests for records may be mailed to: TTB FOIA Requester Service Center, 1310 G Street NW, Box 12, Washington, DC 20005. Requests may also be faxed to: 202-453-2331.

    4. Administrative appeal of initial determination to deny records. Appellate determinations with respect to the records of TTB will be made by the Assistant Administrator (Headquarters Operations), Alcohol and Tobacco Tax and Trade Burea or the delegate of such official. Appeals may be mailed or delivered in person to: FOIA Appeal, Assistant Administrator (Headquarters Operations), Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005.

    Appendix I to Subpart A of Part 1—Treasury Inspector General for Tax Administration

    1. In general. This appendix applies to the Treasury Inspector General for Tax Administration (TIGTA).

    2. Public reading room. TIGTA will provide a room upon request when necessary. Contact the Disclosure Branch, Office of Chief Counsel, TIGTA, at 202-622-4068.

    3. Requests for records. Initial determinations as to whether to grant requests for records of TIGTA will be made by the Disclosure Officer, TIGTA. Requests for records may be mailed to: Freedom of Information Act/Privacy Act Request, Treasury Inspector General for Tax Administration, Office of Chief Counsel, Disclosure Branch, 1401 H Street NW, Room 469, Washington, DC 20005. You may also view the How to Make a FOIA Request for TIGTA Records at https://www.treasury.gov/tigta/important_foia_mafr.shtml. TIGTA's FOIA email address is [email protected]

    4. Administrative appeal of initial determination to deny records. Appellate determinations with respect to the records of TIGTA will be made by the Chief Counsel, TIGTA, or the delegate of the Chief Counsel. Appeals should be mailed to: Freedom of Information Act/Privacy Act Appeal, Treasury Inspector General for Tax Administration, Office of Chief Counsel, 1401 H Street NW, Room 469, Washington, DC 20005.

    David F. Eisner, Assistant Secretary for Management.
    [FR Doc. 2018-23447 Filed 10-25-18; 8:45 am] BILLING CODE 4810-25-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 180212157-8897-01] RIN 0648-BH72 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Electronic Reporting for Federally Permitted Charter Vessels and Headboats in Gulf of Mexico Fisheries AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    NMFS proposes to implement management measures described in the Gulf For-hire Electronic Reporting Amendment, as prepared and submitted by the Gulf of Mexico (Gulf) Fishery Management Council (Gulf Council) and the South Atlantic Fishery Management Council (South Atlantic Council). The Gulf For-hire Reporting Amendment includes amendments to the Fishery Management Plan (FMP) for Reef Fish Resources of the Gulf of Mexico (Reef Fish FMP) and the Coastal Migratory Pelagic (CMP) Resources of the Gulf of Mexico and Atlantic Region (CMP FMP). If implemented, this proposed rule would revise reporting requirements for federally permitted charter vessels and headboats (for-hire vessels). This proposed rule would require an owner or operator of a for-hire vessel with a Federal charter vessel/headboat permit for Gulf Reef Fish or Gulf CMP to submit an electronic fishing report for each fishing trip before offloading fish from the vessel, using NMFS-approved hardware and software. The proposed rule would also require that a for-hire vessel owner or operator use NMFS-approved hardware and software with global positioning system (GPS) capabilities that, at a minimum, archive vessel position data during a trip. Lastly, prior to departing for any trip, this proposed rule would require the owner or operator of a federally permitted charter vessel or headboat to notify NMFS and declare whether they are departing on a for-hire trip, or on another trip type. The purpose of this proposed rule is to increase and improve fisheries information collected from federally permitted for-hire vessels in the Gulf. The information is expected to improve recreational fisheries management of the for-hire component in the Gulf.

    DATES:

    Written comments on the proposed rule must be received by November 26, 2018.

    ADDRESSES:

    You may submit comments on the proposed rule, identified by “NOAA-NMFS-2018-0111,” by either of the following methods:

    Electronic submission: Submit all electronic comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/docket?D=NOAA-NMFS-2018-0111, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit all written comments to Rich Malinowski, 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).

    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 Adam Bailey, NMFS Southeast Regional Office, [email protected], or by email to [email protected], or fax to 202-395-5806.

    Electronic copies of the Gulf For-hire Reporting Amendment may be obtained from www.regulations.gov or the Southeast Regional Office website at http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/For-HireElectronicReporting/index.html.

    The Gulf For-hire Reporting Amendment includes an environmental assessment, regulatory impact review, Regulatory Flexibility Act (RFA) analysis, and fishery impact statement.

    FOR FURTHER INFORMATION CONTACT:

    Rich Malinowski, NMFS Southeast Regional Office, telephone: 727-824-5305, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The CMP fishery in the Gulf is managed jointly under the CMP FMP by the Gulf Council and South Atlantic Council. The Gulf Council manages the reef fish fishery under the Reef Fish FMP. These FMPs are implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

    Background

    The Magnuson-Stevens Act requires that NMFS and regional fishery management councils prevent overfishing and achieve, on a continuing basis, the optimum yield from federally managed fish stocks. These mandates are intended to ensure that fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems. To further this goal, the Magnuson-Stevens Act states that the collection of reliable data is essential to the effective conservation, management, and scientific understanding of the nation's fishery resources.

    On February 3, 2014, NMFS implemented management measures contained in a framework action to the Reef Fish FMP and the CMP FMP (Headboat Reporting Framework), which modified recordkeeping and reporting provisions for an owner or operator of a headboat with a Federal charter vessel/headboat permit for Gulf reef fish or Gulf CMP, who is selected to participate in the Southeast Region Headboat Survey (SRHS) (79 FR 6097, February 3, 2014). That final rule required a headboat owner or operator to submit a weekly electronic fishing report, or at shorter intervals if notified by the Science and Research Director (SRD) of NMFS' Southeast Fisheries Science Center (SEFSC). Additionally, the final rule for the Headboat Reporting Framework prohibited headboats from continuing to fish until any delinquent electronic fishing reports are submitted to NMFS. The purpose of the Headboat Reporting Framework was to obtain more timely fishing information from headboats to better monitor recreational annual catch limits (ACLs), improve stock assessments, and improve compliance with reporting in Gulf recreational fisheries.

    The SEFSC manages and operates the SRHS. Currently, headboats in the southeast region submit an electronic fishing report to NMFS via the internet by the Sunday following the end of each reporting week, which runs from Monday through Sunday; in other words, reports are due within 7 days after a reporting week ends. This final rule for the Gulf For-hire Reporting Amendment would shorten the time after a trip that federally permitted headboats in the Gulf have to submit electronic fishing reports to NMFS. These reports would be required after each trip before offloading fish from the vessel. If no fish were retained on a trip, submission of an electronic fishing report would be required within 30 minutes after the trip ends.

    Similarly, this proposed rule would require that information from a federally permitted charter vessel be reported after each trip through the submission of electronic fishing reports before offloading fish from the vessel, or if no fish were retained, within 30 minutes after the trip ends. Currently, landings and discards from federally permitted charter vessels in the Gulf reef fish and CMP fisheries are monitored through the survey of charter vessels by the Marine Recreational Information Program (MRIP). Fishing effort is calculated based on a monthly sample of federally permitted charter vessels through a phone survey. Catch rate observations and catch sampling are provided through dockside monitoring, also conducted by MRIP. This MRIP charter vessel information is then available in 2-month increments known as waves, so that there are six waves during the calendar year, e.g., January through February, March through April, etc. If NMFS implements the electronic reporting requirements described in the Gulf For-hire Reporting Amendment, the MRIP survey of charter vessels would continue until the proposed electronic reporting program described in the amendment is certified by NMFS, and then the electronic reporting program could replace the MRIP survey of federally permitted charter vessels.

    Accurate and reliable fisheries information about catch, effort, and discards is important for stock assessments and the evaluation of management measures. In addition, catch from federally permitted for-hire vessels represents a substantial portion of the total recreational catch for some fish species managed by the Gulf Council, such as red snapper, gray triggerfish, greater amberjack, and mutton snapper. The Gulf Council determined that electronic reporting on a per trip basis could provide more timely information than the current MRIP survey and SRHS, and more accurate and reliable information for those species that have low catches, small ACLs, or are rarely encountered by fishery participants. The Gulf Council expects electronic reporting on a per trip basis by all federally permitted for-hire vessels to enhance data collection efforts, providing for better fisheries management, such as through more data-rich stock assessments and improved data accuracy.

    Management Measures Contained in This Proposed Rule

    This proposed rule would require the owners or operators of vessels with Federal charter vessel/headboat permits for Gulf reef fish or Gulf CMP species to submit electronic reports, via NMFS-approved hardware and software, on a per trip basis before offloading fish. If no fish are landed, the electronic fishing report must be submitted within 30 minutes after the completion of each fishing trip. This proposed rule would also require that a for-hire vessel owner or operator use NMFS-approved hardware and software with GPS capabilities that, at a minimum, archive vessel position data during a trip for subsequent transmission to NMFS. Lastly, this proposed rule would require the owner or operator of a federally permitted charter vessel or headboat to notify NMFS prior to departing for any trip and declare whether they are departing on a for-hire trip, or on another trip type. If the vessel will be operating as a charter vessel or headboat during the specified trip, the vessel owner or operator must also report details of the trip's expected completion.

    Electronic Reporting

    This proposed rule would require an owner or operator of a charter vessel or headboat with a Federal charter vessel/headboat permit for Gulf reef fish or CMP species, and is operating as a for-hire vessel, to submit an electronic fishing report for each trip before offloading fish from the vessel, or within 30 minutes after the end of each trip if no fish were landed. The electronic fishing report would include any species that were caught or harvested in or from any area, e.g., in state or Federal waters in the Gulf or Atlantic, as well as information about the permit holder, vessel, location fished, fishing effort, discards, and socio-economic data.

    If the proposed rule is implemented, the owner or operator of a vessel with a Federal charter vessel/headboat permit for Gulf reef fish or Gulf CMP species would be required to submit an electronic fishing report using NMFS-approved hardware and software, which could include sending data through a cellular or satellite-based service. NMFS-approved hardware could include devices such as computers, tablets, smartphones, and vessel monitoring system units that allow for internet access and are capable of operating approved software. NMFS is currently evaluating potential software applications for the electronic for-hire reporting program and is considering existing software applications used by partners in the region, including eTRIPS online and eTRIPS mobile, which are reporting products developed by the Atlantic Coastal Cooperative Statistics Program. NMFS maintains a list of NMFS type-approved vessel monitoring system (VMS) units for commercial fisheries at this website https://www.fisheries.noaa.gov/national/enforcement/noaa-fisheries-type-approved-vms-units. These systems will be evaluated and potentially modified by the vendors to meet the proposed Gulf for-hire reporting requirements. Hardware and software that meet the NMFS type approval would be posted on the NMFS Southeast Region website upon publication of any final rule to implement revisions to the Gulf for-hire electronic reporting program. Public reporting burden for the proposed requirements is estimated to average 10 minutes per electronic fishing report.

    This proposed rule also extends other provisions to federally permitted charter vessels that currently apply to headboats to allow for modified reporting during catastrophic conditions, such as after a hurricane, and to address delinquent reporting. During NMFS-declared catastrophic conditions, NMFS may accept paper reporting forms, and can modify or waive reporting requirements. Also, a delinquent report would result in a prohibition on the harvest or possession of the applicable species by the for-hire vessel permit holder until all required and delinquent reports have been submitted and received by NMFS according to the reporting requirements.

    Location Tracking and Reporting

    This proposed rule would require that vessels with Federal charter vessel/headboat permits for Gulf reef fish or Gulf CMP species have NMFS-approved hardware and software with GPS capabilities that, at a minimum, archive vessel position data during a trip for subsequent transmission to NMFS, which could include sending data through a cellular or satellite-based service. The location information would be transmitted electronically to NMFS, along with all other required reporting information, prior to offloading fish at the end of each trip, or within 30 minutes after a trip is completed if no fish were landed. To meet these proposed requirements, separate hardware devices may be required to record and submit fishing reports and GPS locations. If it is necessary to submit separate fishing and location reports at the end of each trip, NMFS estimates the reporting burden to submit location information at 2 minutes per trip. The purpose of this proposed requirement is to verify whether a vessel is at the dock.

    The GPS portion of the hardware, i.e., the vessel's location tracking device, would have to be permanently affixed to the vessel and must have uninterrupted power, unless the owner or operator applies for and is granted a power-down exemption, e.g., if the vessel is removed from the water for repairs. If a VMS unit approved for the Gulf electronic reporting program is used, the VMS unit would also be required to have uninterrupted power unless a power-down exemption is granted.

    In the Gulf, federally permitted commercial reef fish vessels are already required to use a NMFS-approved VMS unit for submitting trip notifications and commercial landings estimates. NMFS has also issued Gulf charter vessel/headboat permits to some of these vessels. However, not all VMS units approved for use on commercial reef fish vessels may be approved for use in the proposed Gulf for-hire reporting program. NMFS-approved VMS units would need software updates by the vendors to meet the proposed for-hire reporting requirements. If a VMS unit required for the Gulf commercial reef fish fishery is not capable of meeting the proposed Gulf for-hire reporting requirements, the owner or operator would need to purchase a VMS unit that is approved for both commercial reef fish and for-hire vessels or purchase a GPS unit that meets the proposed Gulf for-hire reporting requirements. As stated earlier, NMFS would post approved hardware and software on the NMFS Southeast Region website upon publication of any final rule to implement the proposed Gulf electronic reporting program. NMFS expects to choose an effective date for any final rule that would allow time for affected fishery participants to purchase and install approved hardware and software.

    This proposed rule would have similar requirements for powering down the GPS or VMS unit as currently exists for commercial vessels. The current VMS regulations allow for an owner or operator of a commercial vessel to discontinue the use of a VMS unit for a specific period, provided they obtain a VMS power-down exemption letter from NOAA's Southeast Office of Law Enforcement (50 CFR 622.28). To obtain this exemption letter for powering down a GPS unit, the permit holder must fill out the appropriate information on the GPS power down exemption request form, and submit the form by mail or fax to NMFS. NMFS is currently developing an electronic method to submit the GPS power down exemption request form that would need to be completed and approved by NMFS prior to turning off the vessel's GPS unit. NMFS expects this electronic method to be available by the effective date of any final rule. NMFS estimates a GPS or VMS power-down exemption request would require an average of 5 minutes to complete per occurrence.

    Trip Notification

    This proposed rule would require an owner or operator of a federally permitted charter vessel or headboat to submit a trip notification to NMFS before departing for any trip. The trip notification would indicate whether the vessel is departing on a for-hire trip or another type of trip, such as a commercial trip. If the vessel will be departing on a for-hire trip, the owner or operator must also report the expected trip completion date, time, and landing location. The Gulf Council determined that a trip notification would improve effort estimation for charter vessels and headboats, and improve the ability of port agents and law enforcement to meet a vessel at end of a trip for biological sampling and landings validation. This validation would improve the data being collected. The trip notification would be accomplished using a NMFS-approved device, such as the GPS or VMS unit, or by other electronic reporting hardware. Public reporting burden to complete the proposed trip notification requirement is estimated to average 2 minutes per trip.

    Other Electronic Reporting Programs

    In April 2018, NMFS published a proposed rule in the Federal Register to implement electronic reporting requirements contained in the South Atlantic For-Hire Reporting Amendment applicable to the for-hire component of recreational fisheries in the South Atlantic Council's jurisdiction (83 FR 14400, April 4, 2018). NMFS approved the South Atlantic For-Hire Reporting Amendment on June 11, 2018. Under the South Atlantic reporting program, an owner or operator of a for-hire vessel issued a Federal charter vessel/headboat permit for species managed under the FMPs for CMP (in the Atlantic), Atlantic Dolphin and Wahoo, or South Atlantic Snapper-Grouper, and is operating as a for-hire vessel, would have to submit an electronic fishing report using NMFS-approved hardware and software on a weekly basis. However, the South Atlantic Council's intent is to prevent multiple reporting by allowing the owner or operator of a vessel with numerous Federal for-hire permits to fulfill the South Atlantic requirements by submitting reports under other programs, if those reporting requirements are more stringent. Therefore, an owner or operator of a for-hire vessel with a Federal charter vessel/headboat permit for an applicable fishery managed by the South Atlantic Council, who would be required to report under the proposed Gulf electronic reporting system, would not also need to report under the South Atlantic's program.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Gulf For-hire Reporting Amendment, the respective FMPs, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.

    This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

    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 this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, the objectives of, and legal basis for this action 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 NMFS (see ADDRESSES). A summary of the IRFA follows.

    The Magnuson-Stevens Act provides the statutory basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified.

    This proposed rule would apply to all vessels with a Federal charter vessel/headboat permit for Gulf reef fish or Gulf CMP species. In 2017, there were 1,376 vessels with at least one valid (non-expired) or renewable Federal charter vessel/headboat permit for Gulf reef fish or Gulf CMP species, including historical captain permits. These Gulf charter vessel/headboat permits are limited access permits. More than one type of Federal charter vessel/headboat permit has been issued to most for-hire vessels. Among the 1,376 vessels with at least one Gulf charter vessel/headboat permit, in 2017, 1,259 for-hire vessels had Federal permits for both Gulf reef fish and Gulf CMP species, 52 had only a Gulf reef fish permit, and 65 had only a Gulf CMP permit. Additionally, 172 of these vessels had a Gulf commercial reef fish permit. Finally, 377 of the vessels with at least one Gulf charter vessel/headboat permit had at least one charter vessel/headboat permit for Atlantic CMP species, Atlantic dolphin and wahoo, or South Atlantic snapper-grouper species.

    Although the charter vessel/headboat permit application for Gulf reef fish or Gulf CMP species collects information on the primary method of operation, the permit itself does not identify the permitted vessel as either a charter vessel or a headboat, and vessels may operate in both capacities on different trips. However, if a for-hire vessel meets the selection criteria used by the SRHS and is selected to report by the SRD of the SEFSC, it is considered to operate primarily as a headboat and is required to submit catch and effort information to the SRHS. As of February 2017, there were 73 Gulf headboats that participate in the SRHS. As a result, the estimated 1,376 for-hire vessels that may be affected by this proposed rule are expected to consist of approximately 1,303 charter vessels and 73 headboats. The average charter vessel operating in the Gulf is estimated to receive approximately $86,000 (2017 dollars) in annual revenue. The average headboat is estimated to receive approximately $261,000 (2017 dollars) in annual revenue.

    The Small Business Association has established size criteria for all major industry sectors in the U.S., including fish harvesters. A business involved in the for-hire fishing industry 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 $7.5 million (NAICS code 487210, for-hire businesses) for all its affiliated operations worldwide. All for-hire businesses expected to be directly affected by this proposed rule are believed to be small business entities.

    NMFS has not identified any other small entities that might be directly affected by this proposed rule.

    This proposed rule would require an owner or operator of a federally permitted charter vessel or headboat to submit an electronic fishing report to NMFS for each trip via NMFS-approved hardware and software, prior to offloading fish from the vessel. NMFS does not expect the submission of an electronic fishing report to require special professional skills. The use of computers, the internet, smartphones, or other forms of electronic connections and communication is commonplace in the business environment. All headboat operators have been required to submit electronic reports since January 2014 and are expected to be proficient with electronic reporting. As a result, NMFS expects all affected headboat businesses to already have staff with the appropriate skills to meet the proposed change in the timing of report submissions. However, charter vessel operators have not been subject to mandatory electronic reporting of fishing activity and, therefore, may lack experience reporting such, beyond the collection and compilation of similar information for their own business management purposes. As a result, although NMFS does not expect the information required to be reported to be complex or substantially beyond that necessary to meet the record-keeping needs of normal fishing business operational purposes, these operators may need some time to become proficient in the reporting requirements. The hiring of new employees with specialized skills, however, should not be necessary.

    While no conflicting Federal rules have been identified, an estimated 377 vessels have Federal permits to harvest species managed by both the Gulf Council and the South Atlantic Council. Among these 377 vessels, approximately 138 primarily operate as headboats. NMFS has published a proposed rule to require electronic reporting for owners and operators of federally permitted charter vessels in the South Atlantic and modify the reporting deadline for owners and operators of headboats. In order to reduce multiple reporting, the South Atlantic Council would accept, as fulfillment of the requirements of their proposed reporting program, reports submitted under other programs, if the reporting requirements in those other programs are more stringent than those proposed by the South Atlantic Council and meet the core data elements identified by the South Atlantic Council. Because NMFS expects the reporting requirements under this proposed rule to meet these criteria, an owner or operator of a for-hire vessel that has both Gulf and South Atlantic charter vessel/headboat permits and that is required to submit electronic reports under this proposed rule would not be required to also report under the South Atlantic Council's proposed for-hire electronic reporting program. However, owners or operators of for-hire vessels that possess a Gulf reef fish or Gulf CMP permit may also possess one or more Federal for-hire permits to harvest species managed by other regional fishery management councils. It is unknown how many vessels currently fit this description; however, the number is expected to be small. A vessel with Federal for-hire permits in other regions would also have to comply with any applicable reporting requirements under those permits.

    NMFS expects this proposed rule, if implemented, to directly affect an estimated 1,376 for-hire vessels that possess a Federal permit necessary to fish for Gulf reef fish or Gulf CMP species. Because all entities expected to be affected by this proposed rule are small entities, NMFS has determined that this proposed rule would affect a substantial number of small entities. Moreover, the issue of disproportionate effects on small versus large entities does not arise in the present case.

    This proposed rule would require that the owner or operator of a charter vessel or headboat for which a charter vessel/headboat permit for Gulf reef fish or Gulf CMP species has been issued to submit fishing reports to NMFS for each trip via electronic reporting. These submissions would need to be made prior to offloading fish using NMFS-approved hardware and software. If no fish are retained on a for-hire trip, the report would have to be submitted within 30 minutes of arriving at the dock, following the conclusion of the trip. Because the majority of charter and headboat trips are half-day trips, this proposed rule could require multiple submissions in a single day. Electronic reporting is estimated to take approximately 10 minutes per trip, which is the time burden that is approximately equivalent to that of the current headboat reporting requirements. However, the proposed rule would provide less flexibility to headboats in terms of how and when to allocate labor resources for reporting. NMFS expects that the time and labor associated with filing these reports would be borne by existing vessel personnel and would not represent the need for additional staff. However, it would necessitate that vessel personnel, as opposed to onshore support staff, complete the reports. There would be an opportunity cost associated with redirecting effort from normal trip operations to the report submission process. Reports could be completed during transit back to port or within normal business activities, once the vessel is tied up to the dock. NMFS expects that each business would adopt the strategy most efficient to its staffing and operational characteristics, thus minimizing any resultant implicit or explicit costs. These costs cannot be estimated with available data.

    Because electronic reporting has been a requirement for headboat owners and operators for the past 3 years, the labor and costs associated with reporting have been internalized within each headboat business. For charter vessel owners, if treated as a new and distinct explicit labor cost, the annual reporting burden is estimated to cost approximately $340,000 to $1.73 million (2017 dollars) in total, or $244 to $1,259 per vessel on average. These are upper bound cost estimates and would be equivalent to 1.5 percent or less of average annual charter vessel revenue. However, as previously stated, the reporting burden would likely be absorbed by existing vessel personnel, and therefore, labor costs would likely be less. Some of the effort to complete the proposed electronic fishing reports may be redirected from current operational activities, such as normal trip record-keeping that a vessel completes for standard business purposes. The information that would be required under electronic reporting would be accessible to the reporting vessel and, therefore, would satisfy reporting obligations and support business operations. In effect, the electronic reporting system may serve as the record repository for this component of a vessel's business records. In addition to the need to maintain records on the number of trips and passengers a vessel takes, the services for-hire vessels sell require reasonable levels of fishing success. Thus, records of what species a vessel catches, where they are caught, the time of the year they are caught, and how these change over time are vital to managing a successful business. As a result, the information that is expected to be required under the proposed electronic reporting should be substantially duplicative of information already recorded by these businesses and should augment their ability to monitor and adjust their fishing practices, supporting more successful operations.

    Additionally, this proposed rule would require that, prior to departing for any trip, the owner or operator of a vessel issued a charter vessel/headboat permit for Gulf reef fish or Gulf CMP species to notify NMFS, report the vessel identification number, and declare the type of trip (e.g., for-hire or other trip). When departing on a for-hire trip they would also need to report the expected return time, date, and landing location. NMFS expects that the technology cost to for-hire businesses associated with the trip notification system would be minimal. For the sake of comparison, the trip notification system designed by NMFS for commercial Gulf Reef Fish permit holders allows for low cost submission of trip notification reports, either utilizing a toll-free number or existing vessel monitoring system (VMS) equipment. Although the trip notification requirement would be an additional burden on for-hire vessel operators' time, the opportunity cost of complying with such would be expected to be low, because of the limited amount of information that would need to be submitted to NMFS. NMFS estimates that a trip notification would require 2 minutes to complete.

    Finally, the proposed rule would require that these vessel owners or operators use NMFS-approved hardware and software with GPS capabilities that, at a minimum, archive vessel position data during a trip for subsequent transmission to NMFS. NMFS estimates that if it is necessary to submit separate trip and location reports, estimated at 10 and 2 minutes, respectively, due to hardware or software configurations on a vessel, the time burden could be up to 12 minutes per trip. The GPS portion of the hardware would need to be permanently affixed to the vessel and have uninterrupted power, unless the owner or operator applies for and is granted a power-down exemption.

    In addition to the total burden on vessel operators' time, estimated at up to 14 minutes per trip, as discussed earlier, examples of costs borne by the for-hire fleet may include the purchase and installation costs of the approved hardware units and associated service charges. Cost estimates to the for-hire industry were generated for several general options including a tablet-based system, a handheld GPS, and a smartphone-based system, where the smartphone is hardwired to a vessel's GPS. If a vessel does not already have an approved type of hardware, the estimated startup costs for each affected vessel under the options listed above would range from $150 to $450 in the year of implementation. These costs would be equivalent to less than 1 percent of average annual charter vessel or headboat revenue. The recurring annual cost in subsequent years was estimated to be approximately $20 per vessel. These estimates assume that for-hire vessels already have a basic data plan through a wireless service provider. Some vessels may be more or less affected than others by the proposed rule depending on their existing technology assets and data service plans at the time of implementation, as well as the availability of wireless service coverage at their port of landing. For the affected vessels that currently do not have any wireless carrier contract, the estimated additional cost for an unlimited data plan would range from approximately $60 to $100 per month. This is an upper bound estimate based on advertised rates from four major wireless service providers in 2017 and cheaper plans would likely be available. Because details of the NMFS-approved hardware and software have not yet been determined, all cost estimates provided here are subject to change and could go up or down based on the technology that NMFS ultimately approves and the data that are required to be reported.

    The following discussion describes the alternatives that were not selected as preferred by the Gulf Council.

    Four alternatives were considered for the action to modify the frequency and mechanism of data reporting for charter vessels. The first alternative, the no-action alternative, would retain current reporting requirements for federally permitted charter vessels. This would not be expected to alter for-hire business costs relative to the status quo, so no direct economic effects to small entities would be expected to occur. This alternative was not selected by the Gulf Council because it would forgo important biological, economic, and social benefits from improved management as afforded by more timely and accurate estimates of effort, landings, and discards.

    The second alternative would require that the owner or operator of a charter vessel for which a charter vessel/headboat permit for Gulf reef fish or Gulf CMP species has been issued to submit fishing reports to the SRD weekly, or at intervals shorter than a week if notified by the SRD, via electronic reporting using NMFS-approved hardware and software. Under this alternative, reports would need to be filed by Tuesday following each reporting week. Although this alternative could result in additional implicit or explicit costs to affected vessels relative to the status quo, it would be less burdensome than this proposed rule, because charter vessels would have a longer period of time to report and more flexibility in terms of when and how to report. This alternative would be less likely than the proposed rule to interfere with normal operations during charter trips and would allow for onshore support staff assistance, as well potentially cheaper data transmission methods (e.g., via a personal computer or laptop connected to the internet). This alternative was not selected by the Gulf Council because it would result in less timely data, as well as potentially less accurate data, due to a lack of dockside validation and greater potential for recall bias.

    The third alternative would require that the owner or operator of a charter vessel for which a charter vessel/headboat permit for Gulf reef fish or Gulf CMP species has been issued to submit fishing reports to the SRD daily via electronic reporting using NMFS-approved hardware and software. Under this alternative, reports would need to be filed by noon (local time) of the following day. The costs of this alternative to affected small entities, in terms of magnitude, would likely fall between those of the second alternative and those of this proposed rule. There would be less flexibility than under the second alternative in terms of when reports are filed; however, it would still be possible to utilize onshore support staff and technology resources to meet the requirements. Even though the data would be timelier under daily reporting than weekly reporting, and recall bias would likely be lower, the Gulf Council did not select this alternative because the lack of dockside validation would still be a major drawback in ensuring high quality and accurate data.

    Four alternatives were considered for the action to modify the frequency and mechanism of data reporting for headboats. The first alternative, the no-action alternative, would retain current reporting requirements for federally permitted headboats. This would not be expected to alter for-hire business costs relative to the status quo, so no direct economic effects to small entities would be expected to occur. This alternative was not selected by the Gulf Council because it would forgo important biological, economic, and social benefits from improved management as afforded by more timely and accurate estimates of effort, landings, and discards.

    The second alternative would require that the owner or operator of a headboat for which a charter vessel/headboat permit for Gulf reef fish or Gulf CMP species has been issued submit fishing reports to the SRD weekly, or at intervals shorter than a week if notified by the SRD, via electronic reporting using NMFS-approved hardware and software. Under this alternative, reports would need to be filed by Tuesday following each reporting week, which is 5 days sooner than under the status quo. Although this alternative could result in additional implicit or explicit costs to affected vessels relative to the status quo, it would be less burdensome than this proposed rule, because headboats would have a longer period of time to report and more flexibility in terms of when and how to report. This alternative would be less likely to interfere with normal operations during headboat trips and would allow for onshore support staff assistance, as well potentially cheaper data transmission methods (e.g., via a personal computer or laptop connected to the internet). This alternative was not selected by the Council because it would result in less timely data, as well as potentially less accurate data, due to a lack of dockside validation and greater potential for recall bias.

    The third alternative would require that the owner or operator of a headboat for which a charter vessel/headboat permit for Gulf reef fish or Gulf CMP species has been issued submit fishing reports to the SRD daily via electronic reporting using NMFS-approved hardware and software. Under this alternative, reports would need to be filed by noon (local time) of the following day. The costs of this alternative to affected small entities, in terms of magnitude, would likely fall between those of the second alternative and those of this proposed rule. There would be less flexibility than under the second alternative in terms of when reports are filed; however, it would still be possible to utilize onshore support staff and technology resources to meet the requirements. Even though the data would be timelier under daily reporting than weekly reporting and recall bias would likely be lower, the Council did not select this alternative because the lack of dockside validation would still be a major drawback in ensuring high quality and accurate data.

    Three alternatives were considered for the action to implement trip notification requirements for federally permitted charter vessels and headboats. The first alternative, the no-action alternative, would maintain current reporting requirements for for-hire vessels and would not require trip declarations or landing notifications. Therefore, it would not be expected to result in any direct economic effects on any small entities. The Gulf Council did not select the first alternative because it would not satisfy the data needs required for dockside validation and would not aid in enforcement. The second alternative and two options were selected as preferred, and would require that both federally permitted charter vessels and headboats submit trip declarations to NMFS prior to departing on any trip. The third alternative would require that prior to arriving at the dock at the end of each for-hire trip, the owner or operator of a vessel for which a Federal charter vessel/headboat permit for Gulf reef fish or Gulf CMP species has been issued to provide a landing notification and submit fishing reports via NMFS-approved hardware and software. The third alternative contained two options. The first and second options would require federally permitted charter vessels and headboats, respectively, to comply with the landing notification requirement. The Gulf Council did not select the third alternative because requiring vessels to provide a landing notification and submit fishing reports prior to arriving at the dock is not necessary with the preferred reporting alternatives, which require fishing reports be submitted at the end of each trip.

    Four alternatives were considered for the action to implement hardware and software requirements for reporting. The first alternative, the no-action alternative, would not change current reporting requirements for for-hire vessels. Therefore, it would not be expected to result in any direct economic effects on any small entities. This alternative was not selected by the Gulf Council because there is currently no reporting platform for charter vessels, and therefore, no means by which charter vessels would be able to submit electronic reports. Additionally, this alternative would not allow for the same level of trip validation, because it would not require GPS unit hardware to be permanently affixed to the vessel.

    The second alternative and two options were selected as preferred and would require charter vessel and headboat owners or operators to submit fishing reports via NMFS-approved hardware and software. Under this preferred alternative and options, a for-hire vessel owner or operator would also be required to use NMFS-approved hardware and software with GPS capabilities that, at a minimum, archive vessel position data during a trip. The GPS portion of the hardware would need to be permanently affixed to the vessel.

    The third alternative would require for-hire vessel owners or operators to submit fishing reports via NMFS-approved hardware and software with GPS capabilities that, at a minimum, provide real-time vessel position data to NMFS. The GPS portion of the hardware would need to be permanently affixed to the vessel. The third alternative contained two options. The first and second options would require federally permitted charter vessels and headboats, respectively, to comply with the hardware and software requirements of the third alternative. The estimated startup costs for each affected for-hire vessel under the third alternative and two options would total approximately $300 in the year of implementation, which falls within the estimated startup cost range for this proposed rule. The recurring annual service cost associated with the transmission of real-time location data in subsequent years would be approximately $200 per vessel, which is greater than the recurring cost associated with this proposed rule. As discussed earlier, these estimates assume for-hire vessels have existing wireless service contracts and sufficient data plans for submitting electronic fishing reports to NMFS. If that is not the case, for-hire vessels may incur additional expenses in the range of $60 to $100 per month. The third alternative was not selected by the Gulf Council because of the higher estimated recurring costs to industry.

    The fourth alternative would require for-hire vessel owners or operators to submit fishing reports via NMFS-approved hardware and software that provide vessel position data to NMFS via VMS. The antenna and junction box would need to be permanently affixed to the vessel. The fourth alternative contained two options. The first and second options would require federally permitted charter vessels and headboats, respectively, to comply with the hardware and software requirements of the fourth alternative. The estimated startup costs for each affected vessel to purchase, install, and operate a VMS unit would range from $2,500 to $4,400 in the year of implementation. This would be equivalent to approximately 3 to 5 percent of average annual charter vessel revenue and 1 to 2 percent of average annual headboat revenue. The recurring annual cost associated with maintaining and operating VMS hardware and software in subsequent years was estimated to be approximately $750 per vessel. The fourth alternative was not selected by the Council, because the estimated startup and recurring costs to the industry were much higher than those of the preferred alternative.

    This proposed rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). These proposed requirements have been submitted to OMB for approval. NMFS is proposing to revise the collection-of-information requirements under OMB Control Number 0648-0016, Southeast Region Logbook Family of Forms. The proposed rule would require owners or operators of vessels with Federal charter vessel/headboat permits for Gulf reef fish or Gulf CMP species, and when operating as such, to submit an electronic fishing report to NMFS for each trip via NMFS-approved hardware and software, prior to offloading fish from the vessel. Public reporting burden for the proposed requirements are estimated to average 2 minutes to complete the trip notification, 10 minutes per electronic fishing report, and, if separate from the fishing report, 2 minutes to report location information. NMFS estimates a GPS or VMS power-down exemption request would require an average of 5 minutes to complete per occurrence. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the necessary data, and compiling, reviewing, and submitting the information to be collected.

    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 will have practical utility; the accuracy of 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 Southeast Regional Office at the ADDRESSES above, and by email to [email protected] or fax to 202-395-5806.

    Notwithstanding any other provision of the law, no person is required to respond to, and no person will 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. All currently approved collections of information may be viewed at http://www.cio.noaa.gov/services_programs/prasubs.html.

    List of Subjects in 50 CFR Part 622

    Atlantic, Charter vessel, Cobia, Fisheries, Fishing, Gulf of Mexico, Headboat, King mackerel, Recordkeeping and reporting, Reef fish, South Atlantic, Spanish mackerel.

    Dated: October 22, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:

    PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 622.20, revise paragraph (b)(1)(ii)(A)(2) to read as follows:
    § 622.20 Permits and endorsements.

    (b) * * *

    (1) * * *

    (ii) * * *

    (A) * * *

    (2) Charter vessel and headboat recordkeeping and reporting requirements specified in § 622.26(b);

    3. In § 622.26, revise paragraph (b) to read as follows:
    § 622.26 Recordkeeping and reporting.

    (b) Charter vessel/headboat owners and operators—(1) General reporting requirement—The owner or operator of a charter vessel or headboat for which a charter vessel/headboat permit for Gulf reef fish has been issued, as required under § 622.20(b), and whose vessel is operating as a charter vessel or headboat, regardless of fishing location, must submit an electronic fishing report of all fish harvested and discarded, and any other information requested by the SRD for each trip within the time period specified in paragraph (b)(2) of this section. The electronic fishing report must be submitted to the SRD via NMFS approved hardware and software, as specified in paragraph (b)(5) of this section.

    (2) Reporting deadlines. Completed electronic fishing reports required by paragraph (b)(1) of this section must be submitted to the SRD prior to removing any fish from the vessel. If no fish were retained by any person on the vessel during a trip, the completed electronic fishing report must be submitted to the SRD within 30 minutes of the completion of the trip, e.g., arrival at the dock.

    (3) Catastrophic conditions. During catastrophic conditions only, NMFS provides for use of paper forms for basic required functions as a backup to the electronic reports required by paragraph (b) of this section. The RA will determine when catastrophic conditions exist, the duration of the catastrophic conditions, and which participants or geographic areas are deemed affected by the catastrophic conditions. The RA will provide timely notice to affected participants via publication of notification in the Federal Register, and other appropriate means, such as fishery bulletins or NOAA weather radio, and will authorize the affected participants' use of paper forms for the duration of the catastrophic conditions. The paper forms will be available from NMFS. During catastrophic conditions, the RA has the authority to waive or modify reporting time requirements.

    (4) Compliance requirement. Electronic reports required by paragraph (b)(1) of this section must be submitted and received by NMFS according to the reporting requirements under this section. A report not received within the applicable time specified in paragraph (b)(2) of this section is delinquent. A delinquent report automatically results in the owner and operator of a charter vessel or headboat for which a charter vessel/headboat permit for Gulf reef fish has been issued being prohibited from harvesting or possessing such species, regardless of any additional notification to the delinquent owner and operator by NMFS. The owner and operator who are prohibited from harvesting or possessing such species due to delinquent reports are authorized to harvest or possess such species only after all required and delinquent reports have been submitted and received by NMFS according to the reporting requirements under this section.

    (5) Hardware and software requirements for electronic reporting. The owner or operator of a vessel for which a charter vessel/headboat permit for Gulf reef fish has been issued must submit electronic reports using NMFS-approved hardware and software with a minimum capability of archiving GPS locations. The GPS portion of the hardware must be permanently affixed to the vessel and have uninterrupted operation.

    (i) Use of a NMFS-approved VMS. An owner or operator of a vessel for which a charter vessel/headboat permit for Gulf reef fish has been issued, and who uses a NMFS-approved VMS to comply with the reporting and recordkeeping requirements of this section, must adhere to the VMS requirements specified in § 622.28, except for the trip notification requirements specified in § 622.28(e). For trip notification requirements, see paragraph (b)(6) of this section.

    (ii) Use of other NMFS-approved hardware and software. An owner or operator of a vessel for which a charter vessel/headboat permit for Gulf reef fish has been issued, and who uses NMFS-approved hardware and software other than a VMS to comply with the reporting and recordkeeping requirements of this section must comply with the following—

    (A) Ensure that such vessel has an operating GPS unit approved by NMFS on board at all times whether or not the vessel is underway, unless exempted by NMFS under the power-down exemptions specified in paragraph (b)(5)(iii)(D) of this section. An operating GPS unit includes an operating mobile transmitting unit on the vessel and a functioning communication link between the unit and NMFS as provided by a NMFS-approved communication service provider. NMFS maintains a current list of approved GPS units and communication providers, which is available at https://www.fisheries.noaa.gov/southeast/about-us/sustainable-fisheries-division-gulf-mexico-branch. If NMFS removes a GPS unit from the approved list, a vessel owner who purchased and installed such a GPS unit prior to its removal from the approved list will still comply with the requirement to have an approved unit, unless otherwise notified by NMFS. At the end of a GPS unit's service life, it must be replaced with a currently approved unit.

    (B) Hourly position reporting requirement. An owner or operator of a vessel using a NMFS-approved GPS unit as specified in paragraph (b)(5)(iii)(A) of this section must ensure that the required GPS unit archives the vessel's accurate position at least once per hour, 24 hours a day, every day of the year, unless exempted from this requirement under paragraphs (b)(5)(iii)(C) or (D) of this section.

    (C) In-port exemption. While in port, an owner or operator of a vessel with a type-approved GPS unit configured with the 4-hour position reporting feature may utilize the 4-hour reporting feature rather than comply with the hourly position reporting requirement specified in paragraph (b)(5)(iii)(B) of this section. Once the vessel is no longer in port, the hourly position reporting requirement specified in paragraph (b)(5)(ii)(B) of this section applies. For the purposes of this section, “in port” means secured at a land-based facility, or moored or anchored after the return to a dock, berth, beach, seawall, or ramp.

    (D) Power-down exemptions. An owner or operator of a vessel subject to the requirement to have a GPS unit operating at all times as specified in paragraph (b)(5)(ii)(A) of this section can be exempted from that requirement and may power down the required GPS unit if—

    (1) The vessel will be continuously out of the water or in port, as defined in paragraph (b)(5)(ii)(C) of this section, for more than 72 consecutive hours;

    (2) The owner or operator of the vessel applies for and obtains a valid letter of exemption from NMFS. The letter of exemption must be maintained on board the vessel and remains valid for the period specified in the letter for all subsequent power-down requests conducted for the vessel consistent with the provisions of paragraphs (b)(5)(ii)(D)(3) and (4) of this section.

    (3) Prior to each power down, the owner or operator of the vessel files a report using a NMFS-approved form that includes the name of the person filing the report, vessel name, U.S. Coast Guard vessel documentation number or state vessel registration number, charter vessel/headboat reef fish permit number, vessel port location during GPS power down, estimated duration of the power-down exemption, and reason for power down; and

    (4) Prior to powering down the GPS unit, the owner or operator of the vessel receives a confirmation from NMFS that the information was successfully delivered.

    (E) Installation and activation of a GPS unit. Only a GPS unit that has been approved by NMFS for the Gulf reef fish fishery may be used, and the GPS unit must be installed by a qualified marine electrician. When installing and activating or when reinstalling and reactivating the NMFS-approved GPS unit, the vessel owner or operator must—

    (1) Follow procedures indicated on the GPS installation and activation form, which is available from NMFS; and

    (2) Submit a completed and signed GPS installation and activation form to NMFS as specified on the form.

    (F) Interference with the GPS. No person may interfere with, tamper with, alter, damage, disable, or impede the operation of the GPS, or attempt any of the same.

    (G) Interruption of operation of the GPS. When a vessel's GPS is not operating properly or if notified by NMFS that a vessel's GPS is not operating properly, the vessel owner or operator must immediately contact NMFS and follow NMFS' instructions. In either event, such instructions may include, but are not limited to, manually communicating to a location designated by NMFS the vessel's positions, or returning to port until the GPS is operable.

    (iii) Access to position data. As a condition of authorized fishing for or possession of Gulf reef fish subject to the reporting and recordkeeping requirements in this section, a vessel owner or operator subject to the hardware and software requirements in this section must allow NMFS, the U.S. Coast Guard, and their authorized officers and designees access to the vessel's position data obtained from the VMS or GPS.

    (6) Trip notification requirements. Prior to departure for each trip, the owner or operator of a vessel for which a charter vessel/headboat permit for Gulf reef fish has been issued must notify NMFS and report the type of trip, the U.S. Coast Guard vessel documentation number or state vessel registration number, and whether the vessel will be operating as a charter vessel or headboat, or is departing on another type of trip, such as a commercial trip. If the vessel will be operating as a charter vessel or headboat during the trip, the owner or operator must also report the expected trip completion date, time, and landing location.

    4. In § 622.373, revise paragraph (c)(1) to read as follows:
    § 622.373 Limited access system for charter vessel/headboat permits for Gulf coastal migratory pelagic fish.

    (c) * * * (1) Renewal of a charter vessel/headboat permit for Gulf coastal migratory pelagic fish is contingent upon compliance with the recordkeeping and reporting requirements specified in § 622.374(b).

    5. In § 622.374, revise paragraph (b) to read as follows:
    § 622.374 Recordkeeping and reporting.

    (b) Charter vessel/headboat owners and operators—(1) General reporting requirement—(i) Gulf of Mexico. The owner or operator of a charter vessel or headboat for which a charter vessel/headboat permit for Gulf coastal migratory pelagic fish has been issued, as required under § 622.370(b)(1), and whose vessel is operating as a charter vessel or headboat, regardless of fishing location, must submit an electronic fishing report of all fish harvested and discarded, and any other information requested by the SRD for each trip within the time period specified in paragraph (b)(2)(i) of this section. An electronic fishing report must be submitted to the SRD via NMFS approved hardware and software, as specified in paragraph (b)(5) of this section.

    (ii) Atlantic headboats. The owner or operator of a headboat for which a charter vessel/headboat permit for Atlantic coastal migratory pelagic fish has been issued, as required under § 622.370(b)(1), or whose vessel fishes for or lands Atlantic coastal migratory pelagic fish in or from state waters adjoining the South Atlantic or Mid-Atlantic EEZ, who is selected to report by the SRD must submit an electronic fishing record for each trip of all fish harvested within the time period specified in paragraph (b)(2)(ii) of this section, via the Southeast Region Headboat Survey.

    (2) Reporting deadlines—(i) Gulf of Mexico. Completed electronic fishing reports required by paragraph (b)(1)(i) of this section must be submitted to the SRD prior to removing any fish from the vessel. If no fish were retained by any person on the vessel during a trip, the completed electronic fishing report must be submitted to the SRD within 30 minutes of the completion of the trip, e.g., arrival at the dock.

    (ii) Atlantic headboats. Electronic fishing records required by paragraph (b)(1)(ii) of this section for headboats must be submitted at weekly intervals (or intervals shorter than a week if notified by the SRD) by 11:59 p.m., local time, the Sunday following a reporting week. If no fishing activity occurred during a reporting week, an electronic report so stating must be submitted for that reporting week by 11:59 p.m., local time, the Sunday following a reporting week.

    (3) Catastrophic conditions. During catastrophic conditions only, NMFS provides for use of paper forms for basic required functions as a backup to the electronic reports required by paragraphs (b)(1)(i) and (ii) of this section. The RA will determine when catastrophic conditions exist, the duration of the catastrophic conditions, and which participants or geographic areas are deemed affected by the catastrophic conditions. The RA will provide timely notice to affected participants via publication of notification in the Federal Register, and other appropriate means, such as fishery bulletins or NOAA weather radio, and will authorize the affected participants' use of paper-based components for the duration of the catastrophic conditions. The paper forms will be available from NMFS. During catastrophic conditions, the RA has the authority to waive or modify reporting time requirements.

    (4) Compliance requirement. Electronic reports required by paragraphs (b)(1)(i) and (ii) of this section must be submitted and received by NMFS according to the reporting requirements under this section. A report not received within the applicable time specified in paragraphs (b)(2)(i) or (ii) is delinquent. A delinquent report automatically results in the owner and operator of a charter vessel or headboat for which a charter vessel/headboat permit for Gulf or Atlantic coastal migratory pelagic fish has been issued, as required under § 622.370(b)(1), being prohibited from harvesting or possessing such species, regardless of any additional notification to the delinquent owner and operator by NMFS. The owner and operator who are prohibited from harvesting or possessing such species due to delinquent reports are authorized to harvest or possess such species only after all required and delinquent reports have been submitted and received by NMFS according to the reporting requirements under this section.

    (5) Hardware and software requirements for electronic reporting. (i) An owner or operator of a vessel for which a charter vessel/headboat permit for Gulf or Atlantic coastal migratory pelagic fish has been issued must submit electronic reports using NMFS-approved hardware and software.

    (ii) For a vessel for which a charter vessel/headboat permit for Gulf coastal migratory pelagic fish has been issued, the NMFS-approved hardware and software must have a minimum capability of archiving GPS locations, and the GPS portion of the hardware must be permanently affixed to the vessel and have uninterrupted operation.

    (iii) Use of a NMFS-approved VMS. An owner or operator of a vessel for which a charter vessel/headboat permit for Gulf coastal migratory pelagic fish has been issued, and who uses a NMFS-approved VMS to comply with the reporting and recordkeeping requirements of this section, must adhere to the VMS requirements for the Gulf reef fish fishery specified in § 622.28 of this part, except for the trip notification requirements specified in § 622.28(e) of this part. For trip notification requirements, see paragraph (b)(6) of this section.

    (iv) Use of other NMFS-approved hardware and software. An owner or operator of a vessel for which a charter vessel/headboat permit for Gulf coastal migratory pelagic fish has been issued, and who uses NMFS-approved hardware and software other than a VMS to comply with reporting and recordkeeping requirements of this section must comply with the following—

    (A) Ensure that such vessel has an operating GPS unit approved by NMFS on board at all times whether or not the vessel is underway, unless exempted by NMFS under the power-down exemptions specified in paragraph (b)(5)(iv)(D) of this section. An operating GPS unit includes an operating mobile transmitting unit on the vessel and a functioning communication link between the unit and NMFS as provided by a NMFS-approved communication service provider. NMFS maintains a current list of approved GPS units and communication providers, which is available at https://www.fisheries.noaa.gov/southeast/about-us/sustainable-fisheries-division-gulf-mexico-branch. If NMFS removes a GPS unit from the approved list, a vessel owner who purchased and installed such a GPS unit prior to its removal from the approved list will still comply with the requirement to have an approved unit, unless otherwise notified by NMFS. At the end of a GPS unit's service life, it must be replaced with a currently approved unit.

    (B) Hourly position reporting requirement. An owner or operator of a vessel using a NMFS-approved GPS unit as specified in paragraph (b)(5)(iv)(A) of this section must ensure that the required GPS unit archives the vessel's accurate position at least once per hour, 24 hours a day, every day of the year, unless exempted from this requirement under paragraphs (b)(5)(iv)(C) or (D) of this section.

    (C) In-port exemption. While in port, an owner or operator of a vessel with a type-approved GPS unit configured with the 4-hour position reporting feature may utilize the 4-hour reporting feature rather than comply with the hourly position reporting requirement specified in paragraph (b)(5)(iv)(B) of this section. Once the vessel is no longer in port, the hourly position reporting requirement specified in paragraph (b)(5)(iv)(B) of this section applies. For the purposes of this section, “in port” means secured at a land-based facility, or moored or anchored after the return to a dock, berth, beach, seawall, or ramp.

    (D) Power-down exemptions. An owner or operator of a vessel subject to the requirement to have a GPS unit operating at all times as specified in paragraph (b)(5)(iv)(A) of this section can be exempted from that requirement and may power down the required GPS unit if—

    (1) The vessel will be continuously out of the water or in port, as defined in paragraph (b)(5)(iv)(C) of this section, for more than 72 consecutive hours; and

    (2) The owner or operator of the vessel applies for and obtains a valid letter of exemption from NMFS. The letter of exemption must be maintained on board the vessel and remains valid for the period specified in the letter for all subsequent power-down requests conducted for the vessel consistent with the provisions of paragraphs (b)(5)(iv)(D)(3) and (4) of this section.

    (3) Prior to each power down, the owner or operator of the vessel files a report using a NMFS-approved form that includes the name of the person filing the report, vessel name, U.S. Coast Guard vessel documentation number or state vessel registration number, permit number of the Gulf coastal migratory pelagic charter vessel/headboat permit, vessel port location during GPS power down, estimated duration of the power-down exemption, and reason for power down; and

    (4) Prior to powering down the GPS unit, the owner or operator of the vessel receives a confirmation from NMFS that the information was successfully delivered.

    (E) Installation and activation of a GPS unit. Only a GPS unit that has been approved by NMFS for the Gulf coastal migratory pelagic fishery may be used, and the GPS unit must be installed by a qualified marine electrician. When installing and activating or when reinstalling and reactivating the NMFS-approved GPS unit, the vessel owner or operator must—

    (1) Follow procedures indicated on the GPS installation and activation form, which is available from NMFS; and

    (2) Submit a completed and signed GPS installation and activation form to NMFS as specified on the form.

    (F) Interference with the GPS. No person may interfere with, tamper with, alter, damage, disable, or impede the operation of the GPS, or attempt any of the same.

    (G) Interruption of operation of the GPS. When a vessel's GPS is not operating properly or if notified by NMFS that a vessel's GPS is not operating properly, the vessel owner or operator must immediately contact NMFS and follow NMFS' instructions. In either event, such instructions may include, but are not limited to, manually communicating to a location designated by NMFS the vessel's positions or returning to port until the GPS is operable.

    (v) Access to position data. As a condition of authorized fishing for or possession of Gulf coastal migratory pelagic fish subject to the reporting and recordkeeping requirements in this section, a vessel owner or operator subject to the hardware and software requirements in this section must allow NMFS, the U.S. Coast Guard, and their authorized officers and designees access to the vessel's position data obtained from the VMS or GPS.

    (6) Trip notification requirements in the Gulf. Prior to departure for each trip, the owner or operator of a vessel for which a charter vessel/headboat permit for Gulf coastal migratory pelagic fish has been issued must notify NMFS and report the type of trip, the U.S. Coast Guard vessel documentation number or state vessel registration number, and whether the vessel will be operating as a charter vessel or headboat, or is departing on another type of trip, such as a commercial trip. If the vessel will be operating as a charter vessel or headboat during the trip, the owner or operator must also report the expected trip completion date, time, and landing location.

    [FR Doc. 2018-23348 Filed 10-25-18; 8:45 am] BILLING CODE 3510-22-P
    83 208 Friday, October 26, 2018 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request October 23, 2018.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments regarding this information collection received by November 26, 2018 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Food and Nutrition Service

    Title: 7 CFR part 220, School Breakfast Program.

    OMB Control Number: 0584-0012.

    Summary of Collection: Section 4 of the Child Nutrition Act (CNA) of 1966 (42 U.S.C. 1773) authorizes the School Breakfast Program as a nutrition assistance program and authorizes payments to States to assist them to initiate, maintain, or expand nonprofit breakfast programs in schools. The provision requires that “Breakfasts served by schools participating in the School Breakfast Program under this section shall consist of a combination of foods and shall meet minimum nutritional requirements prescribed by the Secretary on the basis of tested nutritional research.” The School Breakfast Program is administered and operated in accordance with the National School Lunch Act (NSLA). The Program is administered at the State and school food authority (SFA) levels and the operations include the submission and approval of applications, execution of agreements, submission of claims, payment of claims, monitoring, and providing technical assistance.

    Need and Use of the Information: States, SFAs, and schools are required to keep accounts and records as may be necessary to enable FNS to determine whether the program is in compliance. SFAs collect breakfast counts from the schools so that they can submit claims and related information to the State agencies. The State agencies then report this information to FNS. The State agencies, the SFAs, and the schools also maintain records related to the School Breakfast Program. FNS uses the information to monitor State agency and SFA compliance, determine the amount of funds to be reimbursed, evaluate and adjust program operations, and to monitor program funding and program trends.

    Description of Respondents: State, Local, or Tribal Government.

    Number of Respondents: 110,268.

    Frequency of Responses: Recordkeeping; Reporting: On occasion; Monthly.

    Total Burden Hours: 3,857,770.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2018-23462 Filed 10-25-18; 8:45 am] BILLING CODE 3410-30-P
    DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2018-0064] Environmental Assessment; Southwestern Willow Flycatcher Conservation Program AGENCY:

    Animal and Plant Health Inspection Service, USDA.

    ACTION:

    Notice of intent to conduct a scoping process and prepare an environmental assessment.

    SUMMARY:

    We are advising the public that the U.S. Department of Agriculture (USDA) and its sub-agency, the Animal and Plant Health Inspection Service (APHIS), are considering developing a conservation program pursuant to the Endangered Species Act for the southwestern willow flycatcher, a small, neotropical migrant bird found in Arizona, California, Colorado, Nevada, New Mexico, Texas, and Utah. We are also planning to prepare an environmental assessment to analyze the effects of the proposed conservation program. This notice identifies potential issues, alternatives, and conservation measures that USDA and APHIS propose to review, and requests public comments to determine the relevant scope of issues and range of alternatives to be addressed in the environmental process from individuals, organizations, Tribes, and government agencies on this topic.

    DATES:

    We will consider all comments that we receive on or before November 26, 2018.

    ADDRESSES:

    You may submit comments by either of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2018-0064.

    Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2018-0064, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238.

    Supporting documents and any comments we receive on this docket may be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2018-0064 or in our reading room, which is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW, Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Kai Caraher, Biological Scientist, PPQ, APHIS, 4700 River Road, Unit 150, Riverdale, MD 20737-1231; (301) 851-2345; [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    Saltcedar, also known as tamarisk (Tamarix spp.), is an invasive plant widely established in riparian areas in the western United States. This non-native weed, which can take the form of a shrub or small tree, was introduced into the United States in the latter 19th century. Although saltcedar is an invasive plant, native animals have adapted to its presence.

    In 2000, the Animal and Plant Health Inspection Service (APHIS) began issuing permits for the release of the tamarisk leaf beetle (Diorhabda species) for research and biological control of saltcedar. During May 2001, the United States Department of Agriculture's (USDA) Agricultural Research Service (ARS) released tamarisk leaf beetles from field cages into the open environment at 10 sites. The beetles overwintered and defoliated saltcedar at Lovelock, NV, during 2002 to 2004. Further redistribution without permit was prohibited by APHIS.

    In February 2004, Congress passed the Salt Cedar and Russian Olive Control Demonstration Act directing the Secretary of the Interior, working with other Federal agencies, to undertake saltcedar eradication demonstration projects. In 2005, APHIS initiated a biological control program for saltcedar defoliation in the northern United States using the tamarisk leaf beetle as the biological control agent. Although the beetle was released in limited locations outside of the habitat of the southwestern willow flycatcher (SWFL, Empidonax traillii extimus, a small, neotropical migrant bird found in Arizona, California, Colorado, Nevada, New Mexico, Texas, and Utah), greater than anticipated natural and intentional human-assisted movement of the beetle resulted in the presence of tamarisk leaf beetles in SWFL habitat. The beetle defoliates saltcedar trees as intended as a biological control agent; however, in SWFL habitat, nesting success can be adversely affected because the SWFL nests in the saltcedar.

    After tamarisk beetles were discovered in SWFL habitat, APHIS terminated its saltcedar biological control program in 2010 and canceled release permits owing to the potential adverse effects to SWFL. APHIS reinitiated consultation with the U.S. Fish and Wildlife Service (FWS) on these actions, in compliance with section 7(a)(2) of the Endangered Species Act (ESA) and 16 U.S.C. 1536(a)(2), and FWS concurred with APHIS' determination that these actions were not likely to adversely affect the SWFL.

    On September 30, 2013, the Center for Biological Diversity filed a lawsuit against USDA, APHIS, ARS, the Department of the Interior (DOI), and FWS alleging that the APHIS saltcedar biological control program violated the National Environmental Policy Act (NEPA) and the ESA. On May 3, 2016, the Court granted the plaintiff's second of five claims, finding that APHIS did not comply with the ESA section 7(a)(1), which requires Federal agencies to consult with DOI and “utilize their authorities in furtherance of the purposes of [the ESA] by carrying out programs for the conservation of endangered species and threatened species listed pursuant to [16 U.S.C. 1533]” 16 U.S.C. 1536(a)(1). On June 19, 2018, the Court ordered USDA and APHIS to publish proposed conservation program alternatives in compliance with ESA section 7(a)(1) and solicit public comments on the proposed alternatives. USDA and APHIS ultimately intend to prepare an environmental assessment (EA) for the conservation program, or an environmental impact statement (EIS) should it be appropriate.

    The EA will examine the environmental effects of possible program alternatives including conservation measures available to USDA and APHIS, as well as a no action alternative. The EA will be used for planning and decision-making and to inform the public about the environmental effects of the various conservation actions.

    Proposed Programmatic Alternatives

    We are requesting public comment on the listed conservation program alternatives that may help us identify additional potential alternatives and environmental issues the EA should examine. Based on the comments that we receive, we may determine that we should prepare an EIS instead of an EA. In that case, we would notify the public of our intent to prepare an EIS in a notice published in the Federal Register.

    The EA will be prepared in accordance with: (1) NEPA, (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA's regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' regulations implementing NEPA (7 CFR part 372). APHIS requests that Federal, State, Tribal or local government entities who manage areas, or have jurisdictional control over sites or actions under consideration as part of this conservation program, participate as cooperating agencies in this environmental risk analysis and development of the NEPA documents.

    We have identified two alternatives for further examination in the EA:

    No action. Under this alternative, USDA and APHIS would evaluate the current USDA and APHIS programs benefitting the SWFL and would not develop any new conservation programs for SWFL. For example, the USDA Natural Resource Conservation Service has restored 2,623 acres of SWFL habitat since 2012. This alternative represents the baseline against which a proposed action may be compared.

    Conservation Program. Under this alternative, APHIS would develop a new conservation program that would have a beneficial impact on the SWFL. USDA and APHIS are considering a number of measures, listed below, that could comprise or be part of a new conservation program.

    1. Riparian Restoration. Funding intensive third-party riparian restoration efforts or otherwise facilitating the mass planting of native vegetation at high-risk and medium-risk sites within the SWFL's occupied habitat to ensure that suitable habitat exists to mitigate the potential adverse effects of the beetles' defoliation of saltcedar in these areas, including but not limited to:

    • Middle Rio Grande River, including sites at the Elephant Buttes Reservoir and the Bosque del Apache National Wildlife Refuge;

    • Gila River (entire reach);

    • San Pedro River, including sites from the Narrows to the Gila River confluence;

    • Bill Williams River, including sites at the Alamo Lake margin, the Big Sandy confluence, and the Santa Maria confluence;

    • Burnt Springs/Colorado River confluence within Grand Canyon National Park managed by the National Park Service;

    • Colorado River Mile 274 within Grand Canyon National Park managed by the National Park Service;

    • Pearce Ferry within the Lake Mead National Recreation Area managed by the National Park Service;

    • Cottonwood Cove on the western shore of Lake Mohave within the Lake Mead National Recreation Area managed by the National Park Service;

    • Lands within the Fort Mohave Indian Reservation along the Colorado River above and adjoining Topock Marsh and the Havasu Wildlife Refuge;

    • Colorado River, including sites at the Chemehuevi Indian Reservation below Lake Havasu;

    • Virgin River, including sites at Mesquite, Mormon Mesa, Littlefield, and St. George;

    • Muddy River, including sites at Overton Wildlife Management Area to Lake Mead;

    • Lower Colorado River, including sites from Glen Canyon Dam to Lake Mead, Davis Dam to Parker Dam, and Parker Dam to Imperial Dam;

    • Verde River, including sites from Horseshoe Lake to Salt River;

    • Roosevelt Lake;

    • Santa Maria River, including sites upstream from U.S. Highway 93 and from Date Creek to Alamo Lake;

    • Big Sandy, including sites from the USGS gage to Alamo Lake; and

    • Lower Tonto Creek.

    2. Tamarisk Leaf Beetle Surveying and Data Collection. Compiling and synthesizing the results of survey and data collection efforts to better understand the tamarisk leaf beetle's past and projected movements into SWFL habitat.

    3. Geographic Information System (GIS) Habitat Mapping. Fund and assist with GIS mapping of saltcedar and native riparian cover across the southwestern United States—and specifically throughout the SWFL's occupied range. APHIS may collaborate with the U.S. Geological Survey to improve a SWFL habitat assessment model that uses satellite imagery and create an online mapping platform for conservation groups and land management agencies to access the model results.

    4. Educational Campaign. Continue current public outreach efforts and collaborate with Federal, State, Tribal, and local authorities to prohibit or strongly discourage any further intrastate movement, distribution, or release of tamarisk leaf beetles, as a means of slowing the beetle's spread into farther reaches of SWFL habitat.

    5. Streamlined Permitting Process. Collaborate with FWS and other relevant agencies to streamline the ESA permitting process for third parties engaged in restoration work to benefit SWFLs and their habitat.

    6. Watershed Partnership Collaboration. Work cooperatively with, and provide restoration funding for, established watershed partnerships that have already developed detailed restoration plans, some of which are listed below.

    7. Streamlined Funding Sources. Ensure that funding streams for restoration projects are in easily accessible structures such as block grants administered by the National Fish and Wildlife Foundation or a similar entity, rather than through cost share programs.

    8. Information Repository. Fund and facilitate a long-term centralized and standardized information repository concerning the tamarisk leaf beetle, its spread, vegetative resources in the southwestern United States, and the SWFL's status.

    9. Invasive Weed Control. Conduct invasive weed control and monitoring in riparian areas where habitat restoration with native vegetation is planned or has been conducted. USDA and APHIS are currently considering the following areas, but are soliciting other potential restoration sites:

    • Escalante River watershed in southern Utah restored by the Grand Staircase Escalante Partners;

    • Areas of the Verde River from Paulden to Sheep's Crossing, AZ, restored by the Friends of the Verde River;

    • Gila River in Graham and Greenlee Counties in New Mexico, restored by the Gila Watershed Partnership;

    • Rio Grande in the Bosque del Apache National Wildlife Refuge in New Mexico; and

    • Rio Grande in the Orilla Verde Recreation Area in New Mexico.

    10. SWFL Data Collection Surveying. Fund data collection surveys throughout the range of the SWFL. Data collected by researchers may include but is not limited to: SWFL presence or absence surveys, determining breeding status for each bird, site evaluations and descriptions, SWFL nest searches, SWFL nest monitoring at breeding sites in order to calculate parasitism and predation rates, impact of habitat restoration efforts, and the amount of saltcedar defoliation caused by the tamarisk leaf beetle.

    Potential Environmental Impacts

    We have identified the following potential environmental impacts for further examination in the EA:

    • Effects on wildlife, including consideration of migratory bird species and changes in native wildlife habitat and populations, and federally listed endangered and threatened species.

    • Effects on soil, air, and water quality.

    • Effects on human health and safety.

    • Effects on cultural and historic resources.

    • Effects on economic resources.

    We welcome comments on the alternatives and environmental impacts or issues that should be considered for further examination in the EA. In addition, we welcome suggestions for conservation measures for APHIS to include in its conservation plan. Upon completion of the draft EA, we will publish a notice in the Federal Register announcing its availability and an invitation to comment.

    Done in Washington, DC, this 22nd day of October 2018. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2018-23384 Filed 10-25-18; 8:45 am] BILLING CODE 3410-34-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Washington Advisory Committee AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Announcement 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 (FACA) that the meeting of the Washington Advisory Committee (Committee) to the Commission will be held at 1 p.m. (Pacific Time) Friday, November 16, 2018. The purpose of this meeting is for the Committee to discuss their project proposals.

    DATES:

    These meetings will be held on Friday, November 16, 2018 at 1 p.m. PT.

    Public Call Information:

    Dial: 877-260-1479.

    Conference ID: 1445248.

    FOR FURTHER INFORMATION CONTACT:

    Alejandro Ventura (DFO) at [email protected] or (213) 894-3437.

    SUPPLEMENTARY INFORMATION:

    This meeting is available to the public through the following toll-free call-in number: 877-260-1479, conference ID number: 1445248. Any interested member of the public may call this number and listen to the meeting. 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 1-800-877-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012. They may be faxed to the Commission at (213) 894-0508, or emailed Alejandro Ventura at [email protected] Persons who desire additional information may contact the Regional Programs Unit at (213) 894-3437.

    Records and documents discussed during the meeting will be available for public viewing prior to and after the meetings at https://facadatabase.gov/committee/meetings.aspx?cid=280. Please click on the “Meeting Details” and “Documents” links. Records generated from these meetings may also be inspected and reproduced at the Regional Programs Unit, as they become available, both before and after the meetings. Persons interested in the work of this Committee are directed to the Commission's website, https://www.usccr.gov, or may contact the Regional Programs Unit at the above email or street address.

    Agenda I. Welcome and Roll Call II. Adoption of Minutes III. Discussion Regarding Project Proposals IV. Public Comment V. Next Steps VI. Adjournment Dated: October 22, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-23413 Filed 10-25-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-103-2018] Approval of Subzone Status; MAS US Holdings, Inc.; Siler City and Asheboro, North Carolina

    On July 23, 2018, the Acting Executive Secretary of the Foreign-Trade Zones (FTZ) Board docketed an application submitted by the Triangle J Council of Governments, grantee of FTZ 93, requesting subzone status subject to the existing activation limit of FTZ 93, on behalf of MAS US Holdings, Inc. in Siler City and Asheboro, North Carolina.

    The application was processed in accordance with the FTZ Act and Regulations, including notice in the Federal Register inviting public comment (83 FR 35611, July 27, 2018). The FTZ staff examiner reviewed the application and determined that it meets the criteria for approval.

    Pursuant to the authority delegated to the FTZ Board's Executive Secretary (15 CFR Sec. 400.36(f)), the application to establish Subzone 93J was approved on October 22, 2018, subject to the FTZ Act and the Board's regulations, including Section 400.13, and further subject to FTZ 93's 2,000-acre activation limit.

    Dated: October 22, 2018. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2018-23455 Filed 10-25-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-106-2018] Approval of Subzone Status; Liquilux Gas Corporation; Ponce, Puerto Rico

    On July 27, 2018, the Executive Secretary of the Foreign-Trade Zones (FTZ) Board docketed an application submitted by CODEZOL, C.D., grantee of FTZ 163, requesting subzone status subject to the existing activation limit of FTZ 163, on behalf of Liquilux Gas Corporation, in Ponce, Puerto Rico.

    The application was processed in accordance with the FTZ Act and Regulations, including notice in the Federal Register inviting public comment (83 FR 37462-37463, August 1, 2018). The FTZ staff examiner reviewed the application and determined that it meets the criteria for approval.

    Pursuant to the authority delegated to the FTZ Board's Executive Secretary (15 CFR Sec. 400.36(f)), the application to establish Subzone 163K was approved on October 22, 2018, subject to the FTZ Act and the Board's regulations, including Section 400.13, and further subject to FTZ 163's 917.36-acre activation limit.

    Dated: October 22, 2018. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2018-23456 Filed 10-25-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security Transportation and Related Equipment Technical Advisory Committee; Notice of Partially Closed Meeting

    The Transportation and Related Equipment Technical Advisory Committee will meet on November 14, 2018, 9:30 a.m., in the Herbert C. Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues NW, Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to transportation and related equipment or technology.

    Agenda Public Session

    1. Welcome and Introductions.

    2. Status reports by working group chairs.

    3. Public comments and Proposals.

    Closed Session

    4. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3).

    The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at [email protected] no later than November 7, 2018.

    A limited number of seats will be available during the public session of the meeting. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.

    The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on August 24, 2018, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § (10)(d)), that the portion of the meeting dealing with pre-decisional changes to the Commerce Control List and U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.

    For more information, call Yvette Springer at (202) 482·2813.

    Yvette Springer, Committee Liaison Officer.
    [FR Doc. 2018-23435 Filed 10-25-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE International Trade Administration [A-201-805] Certain Circular Welded Non-Alloy Steel Pipe From Mexico: Rescission of Antidumping Duty Administrative Review; 2016-2017 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) is rescinding its administrative review of the antidumping duty order on certain circular welded non-alloy steel pipe from Mexico for the period of review (POR) November 1, 2016, through October 31, 2017.

    DATES:

    Applicable October 26, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Mark Flessner, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6312.

    SUPPLEMENTARY INFORMATION:

    Background

    On November 1, 2017, Commerce published in the Federal Register a notice of opportunity to request an administrative review of the antidumping duty order 1 on certain circular welded non-alloy steel pipe from Mexico for the POR.2 Commerce received a timely request from Wheatland Tube (the petitioner), in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213(b), to conduct an administrative review of this antidumping duty order with respect to 25 companies.3 No other party submitted a request for administrative review.

    1See Notice of Antidumping Duty Orders: Certain Circular Welded Non-Alloy Steel Pipe from Brazil, the Republic of Korea (Korea), Mexico, and Venezuela and Amendment to Final Determination of Sales at Less Than Fair Value: Certain Welded Non-Alloy Steel Pipe from Korea, 57 FR 49453 (November 2, 1992) (the Order).

    2See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 82 FR 50260 (November 1, 2017).

    3See Petitioner Letter re: Certain Circular Welded Non-Alloy Steel Pipe from Mexico: Request for Administrative Review, dated November 30, 2017.

    On January 11, 2018, Commerce published in the Federal Register a notice of initiation with respect to 25 companies.4 Commerce stated in its initiation of this review that it intended to rely on U.S. Customs and Border Protection (CBP) data to select respondents.5 However, our review of the CBP data, with respect to the companies for which reviews were requested, showed no entries of certain circular welded non-alloy steel pipe originating in Mexico which were subject to antidumping (AD) duties during the POR.6

    4See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 83 FR 1329 (January 11, 2018) (Initiation Notice), at 1330-1331. The 25 companies listed were: Acerorey; Arcelormittal Monterrey; Arco Metal; Fischer Mexicana; Forza Steel; Mach 1 Aero Servicios S De RL De Cv; Nacional De Acero; Nova Steel; Perfiles Y Herrajes; Precitubo; Procarsa; Productos Especializados De Acero; Productos Laminados de Monterrey, S.A. de C.V.; PYTCO, S.A. de C.V.; Regiomontana de Perfiles y Tubos, S.A. de C.V.; Rymco Conduit S.A. De C.V.; Swecomex S.A. De C.V.; Ternium Tuberia; Tubac; Tubacero; Tuberia Laguna; Tubesa; Tubos Omega; Tumex; and Villacero Tuna.

    5See Initiation Notice, 83 FR at 1329.

    6See Memorandum: “Certain Circular Welded Non-Alloy Steel Pipe from Mexico, 2016-2017 Administrative Review: Placement of Customs and Border Protection (CBP) Information on the Record of this Administrative Review,” dated February 15, 2018 (CBP Information Memorandum).

    Between January 17, 2018, and February 12, 2018, Tubacero S. de R.L. de C.V. (“Tubacero”); Lamina y Placa Comercial, S.A. de C.V. (“LYPCSA”) and its affiliate Tuberia Nacional, S.A. de C.V. (“TUNA”); 7 Regiomontana de Perfiles y Tubos S.A. de C.V. (“Regiopytsa”) and its affiliate Pytco, S.A. de C.V. (“Pytco”); 8 and Mach 1 Global Services, Inc. and its affiliate Mach 1 Aero Servicios S De RL de CV each timely submitted a certification of no shipments.9 On February 15, 2018, we placed on the record the results of our query of the CBP database and invited comment from interested parties.10 We received no comments.

    7See Villacero Tuna Letter re: Circular Welded Non-Alloy Steel Pipe and Tube from Mexico: Notice of No Sales, dated January 26, 2018.

    8See Regiopytsa/Pytco Letter re: Circular Welded Non-Alloy Steel Pipe from Mexico: No Shipment Notification, dated February 1, 2018. Commerce has collapsed Regiopytsa and Pytco in past segments of this proceeding. See, e.g., Certain Circular Welded Non-Alloy Steel Pipe from Mexico: Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2014-2015, 82 FR 27039 (June 13, 2017), at 27040.

    9See Mach 1 Letter re: Certain Circular Welded Non-Alloy Steel Pipes and Tubes: Notice of no Exports, Sales, or Entries, dated February 12, 2018.

    10See Memorandum: “Certain Circular Welded Non-Alloy Steel Pipe from Mexico, 2016-2017 Administrative Review: Placement of Customs and Border Protection (CBP) Information on the Record of this Administrative Review,” dated February 15, 2018 (CBP Information Memorandum).

    In accordance with our standard practice, we transmitted port inquiry messages to CBP requesting that any CBP import officer with information contrary to the statements of no shipments submitted by Lamina y Placa, TUNA, Tubacero, Villacero Tuna, Regiopytsa, Pytco, or Mach 1 report that information to Commerce.11 We received no information from CBP contrary to the statements of no shipments from Lamina y Placa, TUNA, Tubacero, Villacero Tuna, Pytco, or Mach 1. In addition, we received no comment from any party with regard to these port inquiry messages.

    11See re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Mach 1 Aero Servicios S De RL De Cv (A-201-805), message number 8064304, dated March 5, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by PYTCO, S.A. de C.V. (A-201-805), message number 8064305, dated March 5, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Regiomontana de Perfiles y Tubos S.A. de C.V. (A-201-805), message number 8064308, dated March 5, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Villacero Tuna (A-201-805), message number 8064307, dated March 5, 2018.

    On March 20, 2018, we placed on the record the CBP response to our port inquiry message for Regiopytsa, which showed certain entries, and invited comment from interested parties.12 We received no comments. Consequent to the CBP response to our port inquiry message for Regiopytsa, we requested the entry documents for the entries in question. On May 15, 2018, we placed the entry documents we received from CBP on the record, inviting interested parties to submit rebuttal factual information.13 On May 29, 2018, Regiopytsa submitted rebuttal factual information and contended that the entries in question did not constitute subject merchandise.14 Specifically, Regiopytsa submitted a copy of Commerce's 2016 Regiopytsa Scope Ruling,15 and noted that the products in question had already been determined to be not within the scope of the Order. 16 Moreover, Regiopytsa stated that it subsequently revised the categorization of these entries with CBP.17 We confirmed this revision of categorization with CBP. No party commented upon Regiopytsa's rebuttal factual information submission.

    12See Memorandum: “Certain Circular Welded Non-Alloy Steel Pipe from Mexico, 2016-2017 Administrative Review: Placement of Customs and Border Protection (CBP) Response to Port Inquiry on the Record of this Administrative Review,” dated March 20, 2018.

    13See Memorandum: “Certain Circular Welded Non-Alloy Steel Pipe from Mexico, 2016-2017 Administrative Review: Placement of Customs and Border Protection (CBP) Entry Documents on the Record of this Administrative Review,” dated May 15, 2018.

    14See Regiopytsa Letter re: Circular Welded Non-Alloy Steel Pipe from Mexico, Rebuttal Factual Information, dated May 29, 2018 (Regiopytsa's rebuttal factual information submission).

    15See Memorandum: “Final Scope Ruling on Certain Black, Circular Tubing Produced to ASTM A-513 Specifications by Regiomontana de Perfiles y Tubos S.A. de C.V.,” dated March 31, 2016 (Regiopytsa Scope Ruling), placed on the record of this administrative review as Exhibit 3 of Regiopytsa's rebuttal factual information submission.

    16See Notice of Antidumping Duty Orders: Certain Circular Welded Non-Alloy Steel Pipe from Brazil, the Republic of Korea (Korea), Mexico, and Venezuela and Amendment to Final Determination of Sales at Less Than Fair Value: Certain Welded Non-Alloy Steel Pipe from Korea, 57 FR 49453 (November 2, 1992) (the Order).

    17See Regiopytsa's rebuttal factual information submission, at 1 and Exhibit 1.

    We subsequently transmitted additional port inquiry messages to CBP requesting that any CBP import officer with information of entries by the remaining 21 companies under review 18 report that information to Commerce.19 We received no such information from CBP. We received no comment from any party with regard to these port inquiry messages.

    18 The 21 remaining companies under review for which we sent this second set of port inquiry messages were: Acerorey; Arcelormittal Monterrey; Arco Metal; Fischer Mexicana; Forza Steel; Nacional De Acero; Nova Steel; Perfiles Y Herrajes; Precitubo; Procarsa; Productos Especializados De Acero; Productos Laminados de Monterrey, S.A. de C.V.; Rymco Conduit S.A. De C.V.; Swecomex S.A. De C.V.; Ternium Tuberia; Tubac; Tubacero; Tuberia Laguna; Tubesa; Tubos Omega; and Tumex.

    19See re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Acerorey (A-201-805), message number 8212314, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Arcelormittal Monterrey (A-201-805), message number 8212315, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Arco Metal (A-201-805), message number 8212316, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Fischer Mexicana (A-201-805), message number 8212317, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Forza Steel (A-201-805), message number 8212318, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Nacional De Acero (A-201-805), message number 8212319, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Nova Steel (A-201-805), message number 8212320, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Perfiles Y Herrajes (A-201-805), message number 8212321, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Precitubo (A-201-805), message number 8212307, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Procarsa (A-201-805), message number 8212322, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Productos Especializados De Acero (A-201-805), message number 8212323, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Productos Laminados de Monterrey, S.A. de C.V. (A-201-805), message number 8212324, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Rymco Conduit S.A. De C.V. (A-201-805), message number 8212325, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Swecomex S.A. De C.V. (A-201-805), message number 8212326, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Ternium Tuberia (A-201-805), message number 8212327, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Tubac (A-201-805), message number 8212328, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Tubacero (A-201-805), message number 8212329, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Tuberia Laguna (A-201-805), message number 8212331, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Tubesa (A-201-805), message number 8212330, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Tubos Omega (A-201-805), message number 8212332, dated July 31, 2018; see also re: No shipments inquiry for certain circular welded non-alloy steel pipe from Mexico produced and/or exported by Tumex (A-201-805), message number 8212333, dated July 31, 2018.

    On August 29, 2018, we issued a memorandum stating that, because the CBP data showed that there are no suspended entries of subject merchandise from any of the companies subject to this review upon which to assess duties, we intended to rescind this review.20 We invited parties to comment on this memorandum, but did not receive any comments.

    20See Memorandum: “Certain Circular Welded Non-Alloy Steel Pipe from Mexico: Intent to Rescind 2016-2017 Administrative Review,” dated August 29, 2018.

    Rescission of Administrative Review

    It is Commerce's practice to rescind an administrative review pursuant to 19 CFR 351.213(d)(3) when there are no entries of subject merchandise during the POR subject to AD/CVD duties and for which liquidation is suspended.21 At the end of the administrative review, the suspended entries are liquidated at the assessment rate computed for the review period.22 Therefore, for an administrative review to be conducted, there must be a reviewable, suspended entry to be liquidated at the newly calculated assessment rate. Because the CBP data showed that there are no suspended entries of subject merchandise from any of the companies subject to this review upon which to assess duties, we are rescinding this review of the antidumping duty order on certain circular welded non-alloy steel pipe from Mexico for the period of review (POR) November 1, 2016, through October 31, 2017, in its entirety, pursuant to 19 CFR 351.213(d)(3).

    21See, e.g., Certain Preserved Mushrooms from India: Notice of Rescission of Antidumping Duty Administrative Review, 79 FR 52300 (September 3, 2014); see also Certain Frozen Warmwater Shrimp from Brazil: Notice of Rescission of Antidumping Duty Administrative Review; 2012-2013, 78 FR 30272 (May 22, 2013); see also Solid Fertilizer Grade Ammonium Nitrate from the Russian Federation: Notice of Rescission of Antidumping Duty Administrative Review, 77 FR 65532 (October 29, 2012); see also Certain Hot-Rolled Carbon Steel Flat Products from India: Final Results of Antidumping Duty Administrative Review, 76 FR 42679 (July 19, 2011); see also Certain Cut-to-Length Carbon-Quality Steel Plate Products from Italy: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 71 FR 39299, 39302 (July 12, 2006). Commerce's practice of rescinding annual reviews when there are no entries of subject merchandise during the POR has been upheld by the Court of Appeals for the Federal Circuit, see Allegheny Ludlum Com. v. United States, 346 F.3d 1368 (Fed. Cir. 2003).

    22See 19 CFR 351.212(b)(1); see also section 751(a)(2)(A) of the Act.

    Notification Regarding Administrative Protective Orders

    This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    This notice is published in accordance with section 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).

    Dated: October 22, 2018. James Maeder, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the duties of Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2018-23454 Filed 10-25-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-570-087] Steel Propane Cylinders From the People's Republic of China: Preliminary Affirmative Countervailing Duty Determination and Alignment of Final Determination With Final Antidumping Duty Determination AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that countervailable subsidies are being provided to producers and exporters of steel propane cylinders from the People's Republic of China (China) for the period of investigation December 1, 2017, through January 31, 2017. Interested parties are invited to comment on this preliminary determination.

    DATES:

    Applicable October 26, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Samuel Brummitt, 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) 482-7851.

    SUPPLEMENTARY INFORMATION: Background

    This preliminary determination is made in accordance with section 703(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on June 18, 2018.1 On August 1, 2018, Commerce postponed the preliminary determination of this investigation until October 19, 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 discussed 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 http://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 at http://enforcement.trade.gov/frn/. The signed and electronic versions of the Preliminary Decision Memorandum are identical in content.

    1See Steel Propane Cylinders from the People's Republic of China: Initiation of Countervailing Duty Investigation, 83 FR 28189 (June 18, 2018) (Initiation Notice).

    2See Steel Propane Cylinders from the People's Republic of China: Postponement of Preliminary Determination in the Countervailing Duty Investigation, 83 FR 37463 (August 1, 2018).

    3See Memorandum, “Decision Memorandum for the Preliminary Affirmative Determination in the Countervailing Duty Investigation of Steel Propane Cylinders from the People's Republic of China,” dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum).

    Scope of the Investigation

    The products covered by this investigation are steel propane cylinders from China. 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, (i.e., scope).5 Certain interested parties commented on the scope of the investigation as it appeared in the Initiation Notice. Commerce intends to issue its preliminary decision regarding comments concerning the scope of the AD and CVD investigations in the preliminary determination of the companion AD investigation.

    4See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27323 (May 19, 1997).

    5See Initiation Notice.

    Methodology

    Commerce is conducting this investigation in accordance with section 701 of the Act. For each of the subsidy programs found countervailable, we preliminarily determines that there is a subsidy, i.e., a financial contribution by an “authority” that gives rise to a benefit to the recipient, and that the subsidy is specific.6 In making these findings, we relied, in part, on facts available and, because we find that one or more producers and exporters did not act to the best of their ability to respond our requests for information, we drew an adverse inference where appropriate in selecting from among the facts otherwise available.7 For further information, see “Use of Facts Otherwise Available and Adverse Inferences” in the Preliminary Decision Memorandum.

    6See sections 771(5)(B) and (D) of the Act regarding financial contribution; section 771(5)(E) of the Act regarding benefit; and section 771(5A) of the Act regarding specificity.

    7See sections 776(a) and (b) of the Act.

    Alignment

    As noted in the Preliminary Decision Memorandum, in accordance with section 705(a)(1) of the Act and 19 CFR 351.210(b)(4), Commerce is aligning the final countervailing duty (CVD) determination in this investigation with the final determination in the companion antidumping duty (AD) investigation of steel propane cylinders from China based on a request made by the petitioners.8 Consequently, the final CVD determination will be issued on the same date as the final AD determination, which is currently scheduled to be issued no later than March 4, 2019, unless postponed.9

    8See Letter from the petitioners, “Steel Propane Cylinders from the People's Republic of China—Petitioners” Request to Postpone Preliminary Determination,” dated July 20, 2018 (Request for Postponement).

    9See Steel Propane Cylinders from the People's Republic of China and Thailand: Postponement of Preliminary Determinations in the Less-Than-Fair Value Investigations, 83 FR 51927 (October 15, 2018).

    All-Others Rate

    Sections 703(d) and 705(c)(5)(A) of the Act provide that in the preliminary determination, Commerce shall determine an estimated all-others rate for companies not individually examined. This rate shall be an amount equal to the weighted average of the estimated subsidy rates established for those companies individually examined, excluding any zero and de minimis rates and any rates based entirely under section 776 of the Act.

    In this investigation, Commerce preliminarily assigned a rate based entirely on facts available to TPA Metals and Machinery (SZ) Co. Ltd. (TPA Metals). Therefore, the only rate that is not zero, de minimis or based entirely on facts otherwise available is the rate calculated for Shandong Huanri Group Co. Ltd. (Huanri). Consequently, the rate calculated for Huanri is also assigned as the rate for all-other producers and exporters.

    Preliminary Determination

    Commerce preliminarily determines that the following estimated countervailable subsidy rates exist:

    Company Subsidy rate
  • (percent)
  • Guangzhou Lion Cylinders Co. Ltd 145.37 Hubei Daly LPG Cylinder Manufacturer Co. Ltd 145.37 Shandong Huanri Group Co. Ltd 42.77 Taishan Machinery Factory Ltd 145.37 TPA Metals and Machinery (SZ) Co. Ltd 145.37 Wuyi Xilinde Machinery Manufacture Co., Ltd 145.37 Zhejiang Jucheng Steel Cylinder Co., Ltd 145.37 All-Others 42.77
    Suspension of Liquidation

    In accordance with section 703(d)(1)(B) and (d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries 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. Further, pursuant to 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the rates indicated above.

    Disclosure

    Commerce intends to disclose its calculations and analysis performed to interested parties in this preliminary determination within five days of its public announcement, or if there is no public announcement, within five days of the date 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 the 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 verification report is issued in this investigation. 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 703(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its determination. 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.

    Notification to Interested Parties

    This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act and 19 CFR 351.205(c).

    Dated: October 19, 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 products subject to this investigation are steel cylinders for compressed or liquefied propane gas (steel propane cylinders) meeting the requirements of, or produced to meet the requirements of, U.S. Department of Transportation (USDOT) Specifications 4B, 4BA, or 4BW, or Transport Canada Specification 4BM, 4BAM, or 4BWM, or United Nations pressure receptacle standard ISO 4706. The scope includes steel propane cylinders regardless of whether they have been certified to these specifications before importation. Steel propane cylinders range from 2.5 pound nominal gas capacity (approximate 6 pound water capacity and approximate 4-6 pound tare weight) to 42 pound nominal gas capacity (approximate 100 pound water capacity and approximate 28-32 pound tare weight). Steel propane cylinders have two or fewer ports and may be imported assembled or unassembled (i.e., welded or brazed before or after importation), with or without all components (including collars, valves, gauges, tanks, foot rings, and overfill prevention devices), and coated or uncoated. Also included within the scope are drawn cylinder halves, unfinished propane cylinders, collars, and foot rings for steel propane cylinders.

    An “unfinished” or “unassembled” propane cylinder includes drawn cylinder halves that have not been welded into a cylinder, cylinders that have not had flanges welded into the port hole(s), cylinders that are otherwise complete but have not had collars or foot rings welded to them, otherwise complete cylinders without a valve assembly attached, and cylinders that are otherwise complete except for testing, certification, and/or marking.

    This investigation also covers steel propane cylinders that meet, are produced to meet, or are certified as meeting, other U.S. or Canadian government, international, or industry standards (including, for example, American Society of Mechanical Engineers (ASME), or American National Standard Institute (ANSI)), if they also meet, are produced to meet, or are certified as meeting USDOT Specification 4B, 4BA, or 4BW, or Transport Canada Specification 4BM, 4BAM, or 4BWM, or a United Nations pressure receptacle standard ISO 4706.

    Subject merchandise also includes steel propane cylinders that have been further processed in a third country, including but not limited to, attachment of collars, foot rings, or handles by welding or brazing, heat treatment, painting, testing, certification, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope steel propane cylinders.

    Specifically excluded are seamless steel propane cylinders and propane cylinders made from stainless steel (i.e., steel containing at least 10.5 percent chromium by weight and less than 1.2 percent carbon by weight), aluminum, or composite fiber material. Composite fiber material is material consisting of the mechanical combination of two components: Fiber (typically glass, carbon, or aramid (synthetic polymer)) and a matrix material (typically polymer resin, ceramic, or metallic).

    The merchandise subject to this investigation is properly classified under statistical reporting numbers 7311.00.0060 and 7311.00.0090 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS statistical reporting numbers are provided for convenience and customs purposes, the written description of the merchandise is dispositive.

    Appendix II List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Scope Comments IV. Scope of the Investigation V. Alignment VI. Injury Test VII. Application of the CVD Law to Imports From the China VIII. Diversification of China's Economy IX. Subsidies Valuation X. Benchmarks and Interest Rates XI. Use of Facts Otherwise Available and Adverse Inferences XII. Analysis of Programs XIII. Calculation of the All-Others Rate XIV. ITC Notification XV. Disclosure and Public Comment XVI. Verification XVII. Recommendation
    [FR Doc. 2018-23453 Filed 10-25-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG580 North Pacific Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The North Pacific Fishery Management Council's (Council) Social Science Planning Team will hold a teleconference on November 9, 2018.

    DATES:

    The meeting will be held on Friday, November 9, 2018, from 9 a.m. to 1 p.m.

    ADDRESSES:

    The meeting will be held telephonically at (907) 271-2896.

    Council address: North Pacific Fishery Management Council, 605 W 4th Ave. Suite 306, Anchorage, AK 99501-2252; telephone: (907) 271-2809.

    FOR FURTHER INFORMATION CONTACT:

    Sarah Marrinan, Council staff; telephone: (907) 271-2809.

    SUPPLEMENTARY INFORMATION:

    Agenda Friday, November 9, 2018

    Agenda topics for the teleconference include the following:

    • Discuss and adopt terms of reference • Consider document on socio-economic guidance in other Councils • Gap analysis update and future plans • Consider response to Council's request for Tribal representation • Agenda items for next in-person meeting • Other business

    This meeting schedule is subject to change. Final agenda will be posted at: https://www.npfmc.org/committees/social-science-planning-team/.

    Public Comment

    Public comment letters will be accepted before November 5, 2018 and should be submitted either electronically to Sarah Marrinan, Council staff: [email protected] or through the mail: North Pacific Fishery Management Council, 605 W 4th Ave. Suite 306, Anchorage, AK 99501-2252. Oral public testimony will be accepted at the discretion of the chair.

    Special Accommodations

    The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shannon Gleason at (907) 271-2809 at least 7 working days prior to the meeting date.

    Dated: October 23, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-23446 Filed 10-25-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG537 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Oil and Gas Activities in Cook Inlet, Alaska AGENCY:

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

    ACTION:

    Notice; receipt of application for Letter of Authorization; request for comments and information.

    SUMMARY:

    NMFS has received a request from Hilcorp Alaska, LLC (Hilcorp) for authorization to take small numbers of marine mammals incidental to oil and gas activities in Cook Inlet, Alaska over the course of five years from the date of issuance. Pursuant to regulations implementing the Marine Mammal Protection Act (MMPA), NMFS is announcing receipt of the Hilcorp's request for the development and implementation of regulations governing the incidental taking of marine mammals. NMFS invites the public to provide information, suggestions, and comments on the Hilcorp's application and request.

    DATES:

    Comments and information must be received no later than November 26, 2018.

    ADDRESSES:

    Comments on the applications should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to [email protected]

    Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments received electronically, including all attachments, must not exceed a 25-megabyte file size. Attachments to electronic comments will be accepted in Microsoft Word or Excel or Adobe PDF file formats only. All comments received are a part of the public record and will generally be posted online at https://www.fisheries.noaa.gov/node/23111 without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

    FOR FURTHER INFORMATION CONTACT:

    Sara Young, Office of Protected Resources, NMFS, (301) 427-8401. An electronic copy of the Hilcorp's application may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-oil-and-gas.htm. In case of problems accessing these documents, please call the contact listed above.

    SUPPLEMENTARY INFORMATION:

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An incidental take authorization shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.

    NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

    The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Summary of Request

    On September 29, 2018, NMFS received an adequate and complete application from Hilcorp requesting authorization for take of marine mammals incidental to oil and gas activities in Cook Inlet, Alaska. The requested regulations would be valid for five years, from April 1, 2019 through March 31, 2024. Hilcorp's plans to conduct necessary work, including 2D and 3D seismic surveys, geohazard surveys, vibratory sheet pile driving, and drilling of exploratory well. The proposed action may incidentally expose marine mammals occurring in the vicinity to sources of harassment, particularly through elevated levels of underwater sound in the marine environment, thereby resulting in incidental take, by Level A and Level B harassment. Therefore, Hilcorp requests authorization to incidentally take marine mammals.

    Specified Activities

    Hilcorp owns and operates in over 29 oil and has field production facilities, including several located in Cook Inlet. Hilcorp plans to continue to conduct exploration and production activities in Cook Inlet. The petition includes all four stages of oil and gas activities: Exploration, development, production, and decommissioning. The work expected to span five years includes: 30 days of 2D seismic survey, 45-60 days of 3D seismic survey, geohazard surveys in the Outer Continenal Shelf (OCS) (30 days), middle Cook Inlet subseawall area (14 days), and Trading Bay (30 days), exploratory wells in the OCS (40-60 days per well, 2-4 wells annually for three years) and Trading Bay (120-150 days), Iniskin Peninsula exploration and development (180 days annually for two years), platform and pipeline maintenance (180 days annually for five years), middle Cook Inlet well abandonment (90 days), and Drift River terminal decommissioning (120 days). Eleven species of marine mammal are known to occur in Cook Inlet: Eight cetacean species and three pinniped species. Of those species, the Northeastern Pacific stock of fin whale, Western North Pacific stock of humpback whale, Cook Inlet stock of beluga whale, and Western Distinct Population of Steller sea lion are listed as Endangered under the Endangered Species Act.

    Information Solicited

    Interested persons may submit information, suggestions, and comments concerning Hilcorp's request (see ADDRESSES). NMFS will consider all information, suggestions, and comments related to the request during the development of proposed regulations governing the incidental taking of marine mammals by Hilcorp, if appropriate.

    Dated: October 22, 2018. Donna Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-23405 Filed 10-25-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Solicitation for Members of the NOAA Science Advisory Board; Correction AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Office of Oceanic and Atmospheric Research (OAR), Department of Commerce (DOC).

    ACTION:

    Notice of solicitation for members of the NOAA Science Advisory Board; correction.

    SUMMARY:

    On October 17, 2018, NOAA published a notice in the Federal Register soliciting nominations for members of the NOAA Science Advisory Board (SAB). The closing date for receiving nominations in that notice was incorrect. This document corrects that date to November 30, 2018.

    DATES:

    The closing date for receiving nominations for the notice published October 17, 2018, at 83 FR 52417, is corrected. Nominations must be received by November 30, 2018, and should be sent to the web address specified.

    ADDRESSES:

    Applications should be submitted electronically to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Dr. Cynthia Decker, Executive Director, Science Advisory Board, NOAA, Rm. 11230, 1315 East-West Highway, Silver Spring, Maryland 20910. (Phone: 301-734-1156, Fax: 301-713-1459, Email: [email protected]); or visit the NOAA SAB website at http://www.sab.noaa.gov.

    SUPPLEMENTARY INFORMATION:

    NOAA is soliciting nominations for members of the NOAA Science Advisory Board. The SAB is the only Federal Advisory Committee with the responsibility to advise the Under Secretary of Commerce for Oceans, Atmosphere, and NOAA Administrator on long- and short-range strategies for research, education, and application of science to resource management and environmental assessment and prediction. The SAB consists of approximately fifteen members reflecting the full breadth of NOAA's areas of responsibility and assists NOAA in maintaining a complete and accurate understanding of scientific issues critical to the agency's missions.

    The notice that published October 17, 2018, incorrectly established November 16, 2018, as the closing date for submitting nominations. This notice corrects that date to November 30, 2018, as originally intended.

    At this time, individuals are sought with expertise in cloud computing, artificial intelligence and data management; weather modeling and data assimilation; remote/autonomous sensing technology; ocean exploration science and technology; and `omics science. Individuals with expertise in other NOAA mission areas are also welcome to apply.

    Composition and Points of View: The Board will consist of approximately fifteen members, including a Chair, designated by the Under Secretary in accordance with FACA requirements.

    Members will be appointed for three-year terms, renewable once, and serve at the discretion of the Under Secretary. If a member resigns before the end of his or her first term, the vacancy appointment shall be for the remainder of the unexpired term, and shall be renewable twice if the unexpired term is less than one year. Members will be appointed as special government employees (SGEs) and will be subject to the ethical standards applicable to SGEs. Members are reimbursed for actual and reasonable travel and per diem expenses incurred in performing such duties but will not be reimbursed for their time. As a Federal Advisory Committee, the Board's membership is required to be balanced in terms of viewpoints represented and the functions to be performed as well as the interests of geographic regions of the country and the diverse sectors of U.S. society.

    The SAB meets in person three times each year, exclusive of teleconferences or subcommittee, task force, and working group meetings. Board members must be willing to serve as liaisons to SAB working groups and/or participate in periodic reviews of the NOAA Cooperative Institutes and overarching reviews of NOAA's research enterprise.

    Nominations: Interested persons may nominate themselves or third parties.

    Applications: An application is required to be considered for Board membership, regardless of whether a person is nominated by a third party or self-nominated. The application package must include: (1) The nominee's full name, title, institutional affiliation, and contact information; (2) the nominee's area(s) of expertise; (3) a short description of his/her qualifications relative to the kinds of advice being solicited by NOAA in this Notice; and (4) a current resume (maximum length four [4] pages).

    Dated: October 22, 2018. David Holst, Chief Financial Officer/Administrative Officer, Office of Oceanic and Atmospheric Research, National Oceanic and Atmospheric Administration.
    [FR Doc. 2018-23460 Filed 10-25-18; 8:45 am] BILLING CODE 3510-KD-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG577 North Pacific Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of public meeting.

    SUMMARY:

    The North Pacific Fishery Management Council (Council) Groundfish Plan Teams will meet November 13, 2018 through November 16, 2018.

    DATES:

    The meetings will be held on Tuesday, November 13, 2018 through Friday, November 16, 2018 from 9 a.m. to 5 p.m. Pacific Time.

    ADDRESSES:

    Meeting address: The meetings will be held at the Alaska Fishery Science Center in the Traynor Room 2076 and NMML Room 2079, 7600 Sand Point Way NE, Building 4, Seattle, WA 98115. Teleconference numbers and connection information for the online broadcast of the meeting will be posted at the NPFMC web address provided below.

    Council address: North Pacific Fishery Management Council, 605 W 4th Ave., Suite 306, Anchorage, AK 99501-2252; telephone: (907) 271-2809.

    FOR FURTHER INFORMATION CONTACT:

    Diana Stram or Jim Armstrong, Council staff; telephone: (907) 271-2809.

    SUPPLEMENTARY INFORMATION: Agenda Tuesday, November 13, 2018 to Friday, November 16, 2018

    The Plan Teams will compile and review the annual Groundfish Stock Assessment and Fishery Evaluation (SAFE) reports, (including the Economic Report, the Ecosystems/assessment and status report, and the stock assessments for Bering Sea and Aleutian Islands (BSAI) and Gulf of Alaska (GOA) groundfishes), and recommend final groundfish harvest specifications for 2019/20.

    The Agenda is subject to change, and the latest version will be posted at http://www.npfmc.org/fishery-management-plan-team/goa-bsai-groundfish-plan-team/.

    Public Comment

    Public comment letters will be accepted and should be submitted either electronically to Jim Armstrong, Council staff: [email protected] or through the mail: North Pacific Fishery Management Council, 605 W 4th Ave., Suite 306, Anchorage, AK 99501-2252. In-person oral public testimony will be accepted at the discretion of the chairs.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shannon Gleason at (907) 271-2809 at least 7 working days prior to the meeting date.

    Dated: October 23, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-23445 Filed 10-25-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG545 Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting AGENCY:

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

    ACTION:

    Notice; public workshop.

    SUMMARY:

    The Mid-Atlantic Fishery Management Council will hold a public workshop for the purposes of addressing law enforcement issues in for-hire fisheries operations, particularly operator versus angler (client) responsibility for fisheries violations that occur on for-hire vessels and law enforcement options for addressing these and issues related to the sale of fish by private recreational anglers (particularly golden tilefish and tunas) focusing on the need for vessels selling fish to comply with U.S. Coast Guard requirements and/or Federal permits that allow for the sale of fish.

    DATES:

    The workshop will be held from Tuesday, November 13, 2018, from 12 noon to 5 p.m. and Wednesday, November 14, 2018, from 8:30 a.m. to 4 p.m.

    ADDRESSES:

    Meeting address: The workshop will be held at the Embassy Suites by Hilton Philadelphia Airport 9000 Bartram Avenue, Philadelphia, PA 19153; phone: (215) 796-6001.

    This workshop has a limited number of spaces. Participants are strongly encouraged to register early so that workshop personnel can provide background information and plan accordingly. Please register at http://www.mafmc.org/workshop/law-enforcement-for-hire-workshop or email the workshop coordinator at [email protected]

    Council address: Mid-Atlantic Fishery Management Council, 800 N. State Street, Suite 201, Dover, DE 19901; telephone: (302) 674-2331; www.mafmc.org.

    FOR FURTHER INFORMATION CONTACT:

    Andrew Loftus, Workshop Coordinator; telephone: (410) 295-5997; email: [email protected] or Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 526-5255. The Council's website, www.mafmc.org also has details on the proposed agenda and briefing materials.

    SUPPLEMENTARY INFORMATION:

    Fishing activity on for-hire (party and charter boats) fishing vessels generally differs from that on commercial or private recreational vessels in that the vessel operator is not the primary fisher, but is generally hired by the fisher to take them onto the water and provide access to fish. However, even though the for-hire operator may never partake in reeling in or handling the fish, they are still responsible for ensuring that their customers adhere to fishing regulations and can be subject to fines and other legal actions for violations by their customers. Operators and crew of these vessels may be faced with difficulties in tracking the fishing activities of every customer given the multiple tasks associated with safely operating the vessel and taking care of up to 40 or more passengers at a time. This may be particularly difficult when fishing is heavy and crew members are kept busy assisting many customers at any one time. The issue of whether the vessel operator should be legally responsible for infractions (intentional or unintentional) of their customer has been a long-running discussion among some in the Mid-Atlantic for-hire community.

    Additionally, concerns have been expressed about the sale of golden tilefish and tuna by operators of recreational vessels that do not possess permits allowing for the sale of those species or possess Coast Guard (vessel safety) requirements for commercial vessels. High prices that can be obtained from the sale of some of these species may provide greater incentives for this to occur.

    The MAFMC's Law Enforcement Committee, Tilefish Committee, and Highly Migratory Species Committee held a joint conference call on September 20, 2018 to discuss these two issues. During the call, a draft outline of agenda topics for a future workshop were discussed. Subsequently, during the MAFMC meeting on October 4, 2018, a presentation was made regarding these issues and Council members made brief remarks regarding them. Recordings of both meetings are available at the Council's website www.mafmc.org.

    To address these issues further, a workshop will be held November 13-14 bringing together representatives of the federal fisheries law enforcement community (principally NOAA Fisheries and U.S. Coast Guard), representatives of state fisheries law enforcement agencies, the Mid-Atlantic for-hire community, and other interested members of the public to further refine these issues and develop potential solutions. A workshop summary and recommendations will be presented to the MAFMC during their December 2018 meeting. An agenda and background documents will be posted at the Council's website (www.mafmc.org) prior to the meeting.

    Special Accommodations

    The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.

    Dated: October 23, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-23444 Filed 10-25-18; 8:45 am] BILLING CODE 3510-22-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Addition and Deletions AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Addition to and deletions from the Procurement List.

    SUMMARY:

    This action adds a service to the Procurement List that will be provided by the nonprofit agency employing persons who are blind or have other severe disabilities, and deletes products and services from the Procurement List previously furnished by such agencies.

    DATES:

    Date added to and deleted from the Procurement List: November 25, 2018.

    ADDRESSES:

    Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202-4149.

    FOR FURTHER INFORMATION CONTACT:

    Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email [email protected]

    SUPPLEMENTARY INFORMATION:

    Addition

    On 7/27/2018 (83 FR 145), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed addition to the Procurement List.

    After consideration of the material presented to it concerning capability of qualified nonprofit agency to provide the service and impact of the addition on the current or most recent contractors, the Committee has determined that the service listed below is suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

    Regulatory Flexibility Act Certification

    I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

    1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organization that will provide the service to the Government.

    2. The action will result in authorizing a small entity to provide the service to the Government.

    3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the service proposed for addition to the Procurement List.

    End of Certification

    Accordingly, the following service is added to the Procurement List:

    Service Service Type: Grounds Maintenance Service Mandatory for: U.S. Air Force, Cannon Air Force Base, 110 Alison Avenue, Cannon AFB, NM Mandatory Source of Supply: CW Resources, Inc., New Britain, CT Contracting Activity: Dept of the Air Force, FA4855 27 SOCONS LGC Deletions

    On 9/7/2018 (83 FR 174), 9/14/2018 (83 FR 179), and 9/21/2018 (83 FR 184), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed deletions from the Procurement List.

    After consideration of the relevant matter presented, the Committee has determined that the products and services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

    Regulatory Flexibility Act Certification

    I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

    1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.

    2. The action may result in authorizing small entities to furnish the products and services to the Government.

    3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and services deleted from the Procurement List.

    End of Certification

    Accordingly, the following products and services are deleted from the Procurement List:

    Products

    NSN(s)—Product Name(s): 8140-01-004-9410—Container, Wood, Rocket Motor

    Mandatory Source of Supply: Helena Industries, Inc., Helena, MT Contracting Activity: NAVAIR WARFARE CTR Aircraft Div LKE, Joint Base MDL, NJ NSN(s)—Product Name(s): 5365-01-138-6660—Spacer, Sleeve Mandatory Source of Supply: Arizona Industries for the Blind, Phoenix, AZ Contracting Activity: Defense Logistics Agency Troop Support NSN(s)—Product Name(s): MR 10681—Bib, Baby, Halloween MR 10683—Socks, Halloween MR 10684—Gloves, Halloween MR 10685—Party Favors, Halloween, Spiders and Webs MR 10686—Party Favors, Halloween, Witch's Fingers MR 10687—Party Favors, Halloween, Nose and Glasses MR 10688—Party Favors, Halloween, Fangs MR 10689—Party Favors, Halloween, Mini Spiral Note Book MR 10690—Party Favors, Halloween, Sticky Eyes MR 10679—Baster, Bottletop MR 10668—Jar, Drinking, 19 oz., Licensed MR 10664—Bowl, Cereal and Sipping, Sesame Street MR 10665—Holder, Juice Box, Sesame Street MR 385—Kit, Gifts for Santa

    Mandatory Source of Supply: Winston-Salem Industries for the Blind, Inc., Winston-Salem, NC

    Contracting Activity: Defense Commissary Agency NSN(s)—Product Name(s): 8475-01-217-7456—Pad, Nape Mandatory Source of Supply: Cambria County Association for the Blind and Handicapped, Johnstown, PA Contracting Activity: Defense Logistics Agency Troop Support NSN(s)—Product Name(s): 8415-01-576-8355—Pants, Loft, Type 2 Level 7, PCU, Army, Woodland Camouflage, XXXLL 8415-01-577-0103—Vest, Loft, Level 7, PCU, Army, Woodland Camouflage, XS 8415-01-576-9714—Vest, Loft, Level 7, PCU, Army, Desert Camouflage, XS 8415-01-576-9978—Vest, Loft, Level 7, PCU, Army, Desert Camouflage, SR 8415-01-576-9990—Vest, Loft, Level 7, PCU, Army, Desert Camouflage, ML 8415-01-576-9992—Vest, Loft, Level 7, PCU, Army, Desert Camouflage, LR 8415-01-577-0052—Vest, Loft, Level 7, PCU, Army, Desert Camouflage, LL 8415-01-577-0058—Vest, Loft, Level 7, PCU, Army, Desert Camouflage, XLL 8415-01-577-0068—Vest, Loft, Level 7, PCU, Army, Desert Camouflage, XXL 8415-01-577-0072—Vest, Loft, Level 7, PCU, Army, Desert Camouflage, XXLL 8415-01-577-0083—Vest, Loft, Level 7, PCU, Army, Desert Camouflage, XXXL 8415-01-577-0100—Vest, Loft, Level 7, PCU, Army, Desert Camouflage, XXXLL 8415-01-576-8700—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Desert Camouflage, XS 8415-01-576-8704—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Desert Camouflage, SR 8415-01-576-8708—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Desert Camouflage, MR 8415-01-576-8713—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Desert Camouflage, LR 8415-01-576-9193—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Desert Camouflage, L 8415-01-576-9190—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Desert Camouflage, ML 8415-01-576-9187—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Desert Camouflage, XL 8415-01-576-9202—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Desert Camouflage, XXL 8415-01-576-9231—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Desert Camouflage, XLL 8415-01-576-9233—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Desert Camouflage, XXL 8415-01-576-9243—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Desert Camouflage, XXLL 8415-01-576-7734—Pants, Loft, Type 2 Level 7, PCU, Army, Desert Camouflage, XS 8415-01-576-7751—Pants, Loft, Type 2 Level 7, PCU, Army, Desert Camouflage, SR 8415-01-576-7754—Pants, Loft, Type 2 Level 7, PCU, Army, Desert Camouflage, MR 8415-01-576-7761—Pants, Loft, Type 2 Level 7, PCU, Army, Desert Camouflage, ML 8415-01-576-7769—Pants, Loft, Type 2 Level 7, PCU, Army, Desert Camouflage, LR 8415-01-576-7775—Pants, Loft, Type 2 Level 7, PCU, Army, Desert Camouflage, LL 8415-01-576-7780—Pants, Loft, Type 2 Level 7, PCU, Army, Desert Camouflage, XL 8415-01-576-7943—Pants, Loft, Type 2 Level 7, PCU, Army, Desert Camouflage, XLL 8415-01-576-7945—Pants, Loft, Type 2 Level 7, PCU, Army, Desert Camouflage, XXL 8415-01-576-8329—Pants, Loft, Type 2 Level 7, PCU, Army, Desert Camouflage, XXLL 8415-01-577-0108—Vest, Loft, Level 7, PCU, Army, Woodland Camouflage, SR 8415-01-577-0115—Vest, Loft, Level 7, PCU, Army, Woodland Camouflage, MR 8415-01-577-0120—Vest, Loft, Level 7, PCU, Army, Woodland Camouflage, ML 8415-01-577-0127—Vest, Loft, Level 7, PCU, Army, Woodland Camouflage, LR 8415-01-577-0159—Vest, Loft, Level 7, PCU, Army, Woodland Camouflage, LL 8415-01-577-0163—Vest, Loft, Level 7, PCU, Army, Woodland Camouflage, XL 8415-01-577-0165—Vest, Loft, Level 7, PCU, Army, Woodland Camouflage, XLL 8415-01-577-0167—Vest, Loft, Level 7, PCU, Army, Woodland Camouflage, XXL 8415-01-577-0169—Vest, Loft, Level 7, PCU, Army, Woodland Camouflage, XXLL 8415-01-577-0174—Vest, Loft, Level 7, PCU, Army, Woodland Camouflage, XXXL 8415-01-577-0177—Vest, Loft, Level 7, PCU, Army, Woodland Camouflage, XXXLL 8415-01-576-9249—Jacket, Loft, Type 1 Level 7, PCU, Army, Woodland Camouflage, XS 8415-01-576-9759—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Woodland Camouflage, SR 8415-01-576-9761—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Woodland Camouflage, MR 8415-01-576-9764—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Woodland Camouflage, ML 8415-01-576-9767—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Woodland Camouflage, LR 8415-01-576-9776—Jacket, Loft, Type 1 Level 7, PCU, Army, Woodland Camouflage, XL 8415-01-576-9781—Jacket, Loft, Type 1 Level 7, PCU, Army, Woodland Camouflage, XLL 8415-01-576-9785—Jacket, Loft, Type 1 Level 7, PCU, Army, Woodland Camouflage, XXL 8415-01-576-9788—Jacket, Loft, Type 1 Level 7, PCU, Army, Woodland Camouflage, XXLL 8415-01-576-9791—Jacket, Loft, Type 1 Level 7, PCU, Army, Woodland Camouflage, XXXL 8415-01-576-9794—Jacket, Loft, Type 1 Level 7, PCU, Army, Woodland Camouflage, XXXLL 8415-01-576-8380—Pants, Loft, Type 2 Level 7, PCU, Army, Woodland Camouflage, XS 8415-01-576-8429—Pants, Loft, Type 2 Level 7, PCU, Army, Woodland Camouflage, SR 8415-01-576-8438—Pants, Loft, Type 2 Level 7, PCU, Army, Woodland Camouflage, MR 8415-01-576-9152—Pants, Loft, Type 2 Level 7, PCU, Army, Woodland Camouflage, LR 8415-01-576-9155—Pants, Loft, Type 2 Level 7, PCU, Army, Woodland Camouflage, LL 8415-01-576-9173—Pants, Loft, Level 7, PCU, Army, Woodland Camouflage, XXL 8415-01-576-9183—Pants, Loft, Level 7, PCU, Army, Woodland Camouflage, XXLL 8415-01-576-9648—Pants, Loft, Level 7, PCU, Army, Woodland Camouflage, XXXL 8415-01-576-9652—Pants, Loft, Level 7, PCU, Army, Woodland Camouflage, XXXLL 8415-01-576-9987—Vest, Loft, Level 7, PCU, Army, Desert Camouflage, MR 8415-01-577-0055—Vest, Loft, Level 7, PCU, Army, Desert Camouflage, XL 8415-01-576-8533—Pants, Loft, Type 2 Level 7, PCU, Army, Woodland Camouflage, ML 8415-01-576-9199—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Desert Camouflage, XLL 8415-01-576-8344—Pants, Loft, Type 2 Level 7, PCU, Army, Desert Camouflage, XXXL 8415-01-576-9775—Jacket, Loft, Level 7, Type 1, ECWCS, PCU, Army, Woodland Camouflage, LL 8415-00-NSH-3123—Drawers, PCU, Army, Level 1 FR Boxer Shorts, Brown, SR 8415-00-NSH-3124—Drawers, PCU, Army, Level 1 FR Boxer Shorts, Brown, MR 8415-00-NSH-3125—Drawers, PCU, Army, Level 1 FR Boxer Shorts, Brown, LR 8415-00-NSH-3126—Drawers, PCU, Army, Level 1 FR Boxer Shorts, Brown, LL 8415-00-NSH-3127—Drawers, PCU, Army, Level 1 FR Boxer Shorts, Brown, XLR 8415-00-NSH-3128—Drawers, PCU, Army, Level 1 FR Boxer Shorts, Brown, XLL 8415-00-NSH-3129—Drawers, PCU, Army, Level 1 FR Boxer Shorts, Brown, XXLR 8415-01-584-1682—Vest, Loft, Level 7, PCU, Army, Multi Camouflage, XSR 8415-01-584-1686—Vest, Loft, Level 7, PCU, Army, Multi Camouflage, SR 8415-01-584-1696—Vest, Loft, Level 7, PCU, Army, Multi Camouflage, ML 8415-01-584-1709—Vest, Loft, Level 7, PCU, Army, Multi Camouflage, LR 8415-01-584-1712—Vest, Loft, Level 7, PCU, Army, Multi Camouflage, LL 8415-01-584-1734—Vest, Loft, Level 7, PCU, Army, Multi Camouflage, XL 8415-01-584-1722—Vest, Loft, Level 7, PCU, Army, Multi Camouflage, XLL 8415-01-584-1743—Vest, Loft, Level 7, PCU, Army, Multi Camouflage, XXL 8415-01-584-1875—Vest, Loft, Level 7, PCU, Army, Multi Camouflage, XXLL 8415-01-584-1869—Vest, Loft, Level 7, PCU, Army, Multi Camouflage, XXXL 8415-01-584-1865—Vest, Loft, Level 7, PCU, Army, Multi Camouflage, XXXLL 8415-01-584-1923—Jacket, Loft, Type 1 Level 7, PCU, Army, Multi Camouflage, XS 8415-01-584-1930—Jacket, Loft, Type 1 Level 7, PCU, Army, Multi Camouflage, SR 8415-01-584-1975—Jacket, Loft, Type 1 Level 7, PCU, Army, Multi Camouflage, ML 8415-01-584-1995—Jacket, Loft, Type 1 Level 7, PCU, Army, Multi Camouflage, LR 8415-01-584-1997—Jacket, Loft, Type 2 Level 7, PCU, Army, Multi Camouflage, LL 8415-01-584-1918—Jacket, Loft, Type 1 Level 7, PCU, Army, Multi Camouflage, XL 8415-01-584-2005—Jacket, Loft, Type 2 Level 7, PCU, Army, Multi Camouflage, XLL 8415-01-584-2018—Jacket, Loft, Type 1 Level 7, PCU, Army, Multi Camouflage, XXL 8415-01-584-2002—Jacket, Loft, Type 2 Level 7, PCU, Army, Multi Camouflage, XXLL 8415-01-584-2000—Jacket, Loft, Type 1 Level 7, PCU, Army, Multi Camouflage, XXXL 8415-01-584-4410—Pants, Loft, Level 7, PCU, Army, Multi Camouflage, XS 8415-01-584-4418—Pants, Loft, Level 7, PCU, Army, Multi Camouflage, SR 8415-01-584-4421—Pants, Loft, Level 7, PCU, Army, Multi Camouflage, MR 8415-01-584-4424—Pants, Loft, Level 7, PCU, Army, Multi Camouflage, ML 8415-01-584-4426—Pants, Loft, Level 7, PCU, Army, Multi Camouflage, LR 8415-01-584-4431—Pants, Loft, Level 7, PCU, Army, Multi Camouflage, LL 8415-01-584-4441—Pants, Loft, Level 7, PCU, Army, Multi Camouflage, XLL 8415-01-584-4446—Pants, Loft, Level 7, PCU, Army, Multi Camouflage, XXL 8415-01-584-4448—Pants, Loft, Level 7, PCU, Army, Multi Camouflage, XXLL 8415-01-584-4455—Pants, Loft, Level 7, PCU, Army, Multi Camouflage, XXXL 8415-01-584-4462—Pants, Loft, Level 7, PCU, Army, Multi Camouflage, XXXLL 8415-01-584-4434—Pants, Loft, Level 7, PCU, Army, Multi Camouflage, XL 8415-01-584-1692—Vest, Loft, Level 7, PCU, Army, Multi Camouflage, MR 8415-01-584-1971—Jacket, Loft, Type 1 Level 7, PCU, Army, Multi Camouflage, MR Mandatory Source of Supply: Southeastern Kentucky Rehabilitation Industries, Inc., Corbin, KY Contracting Activity: Army Contracting Command—Aberdeen Proving Ground, Natick Contracting Division Services Service Type: Janitorial/Custodial Service Mandatory for: Cherry Capital Airport System Support Center, General Aviation Terminal Bldg., 1220 Airport Access Road, 2nd Floor, Traverse City, MI Mandatory Source of Supply: Grand Traverse Industries, Inc., Traverse City, MI Contracting Activity: Federal Aviation Administration, FAA Service Type: Switchboard Operation Service Mandatory for: VA Medical Clinic: 25 North Spruce, Colorado Springs, CO Mandatory Source of Supply: Bayaud Industries, Inc., Denver, CO Contracting Activity: Veterans Affairs, Department of, 259-Network Contract OFC 19(00259) Service Type: Food Service Attendant Service Mandatory for: Schofield Barracks: Building 3004, Fort Shafter, HI Mandatory Source of Supply: Opportunities and Resources, Inc., Wahiawa, HI Contracting Activity: DEPT OF THE ARMY, 0413 AQ HQ
    Patricia Briscoe, Deputy Director, Business Operations (Pricing and Information Management).
    [FR Doc. 2018-23467 Filed 10-25-18; 8:45 am] BILLING CODE 6353-01-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Proposed Deletions AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Proposed deletions from the Procurement List.

    SUMMARY:

    The Committee is proposing to delete products and services from the Procurement List that was previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.

    DATES:

    Comments must be received on or before: November 25, 2018.

    ADDRESSES:

    Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202-4149.

    FOR FURTHER INFORMATION CONTACT:

    For further information or to submit comments contact: Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email [email protected]

    SUPPLEMENTARY INFORMATION:

    This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.

    Deletions

    The following products and services are proposed for deletion from the Procurement List:

    Products NSN(s)—Product Name(s): 5330-00-884-4807—Gasket and Preformed Packing Set Mandatory Source of Supply: Walterboro Vocational Rehabilitation Center, Walterboro, SC Contracting Activity: DLA Troop Support NSN(s)—Product Name(s): 7240-00-889-3785—Pail, Utility, Plastic, 5-Pint Mandatory Source of Supply: Community Enterprises of St Clair County, Port Huron, MI Contracting Activity: GSA/FSS Greater Southwest Acquisition, Fort Worth, TX Services Service Type: Janitorial/Custodial Service Mandatory for: U.S. Army Reserve Center: 2838-98 Woodhaven Road, Philadelphia Memorial, Philadelphia, PA Mandatory Source of Supply: The Chimes, Inc., Baltimore, MD Contracting Activity: Dept of the Army, W40M NORTHEREGION Contract OFC Service Type: Switchboard Operation Service Mandatory for: Shaw Air Force Base, SC Mandatory Source of Supply: Palmetto Goodwill Services, North Charleston, SC Contracting Activity: Dept of the Air Force, FA4803 20 CONS LGCA Service Type: Grounds Maintenance Service Mandatory for: U.S. Army Reserve Center: 2838-98 Woodhaven Road, Philadelphia Memorial, Philadelphia, PA U.S. Army Reserve Center: 2501 Ford Road, Bristol Veterans, Bristol, PA Mandatory Source of Supply: The Chimes, Inc., Baltimore, MD Contracting Activity: Dept of the Army, W6QM MICC CTR-FT DIX (RC) Service Type: Laundry Service Mandatory for: Department of Homeland Security: Alien Detention & Removal (ADR), Immigration & Customs Enforcement (IEC) and Custom, San Diego, CA Mandatory Source of Supply: Job Options, Inc., San Diego, CA Contracting Activity: U.S. Customs and Border Protection, Border Enforcement Contracting Division Service Type: Janitorial/Custodial Service Mandatory for: Veterans Affairs Medical Center: OI Services Center, Edward Hines Jr., 1st Avenue, Bldg. 20, Hines, IL

    Mandatory Source of Supply: Jewish Vocational Service and Employment Center, Chicago, IL

    Contracting Activity: Veterans Affairs, Department of, Acquisition Service—FREDERICK

    Patricia Briscoe, Deputy Director, Business Operations (Pricing and Information Management).
    [FR Doc. 2018-23465 Filed 10-25-18; 8:45 am] BILLING CODE 6353-01-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID: DOD-2018-OS-0085] Proposed Collection; Comment Request AGENCY:

    Office of the Under Secretary of Defense for Research and Engineering, DoD.

    ACTION:

    Information collection notice.

    SUMMARY:

    In compliance with the Paperwork Reduction Act of 1995, the Office of the Under Secretary of Defense for Research and Engineering announces a proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the agency's estimate of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.

    DATES:

    Consideration will be given to all comments received by December 26, 2018.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for subm