Federal Register Vol. 83, No.218,

Federal Register Volume 83, Issue 218 (November 9, 2018)

Page Range55931-56253
FR Document

83_FR_218
Current View
Page and SubjectPDF
83 FR 56253 - Continuation of the National Emergency With Respect to the Proliferation of Weapons of Mass DestructionPDF
83 FR 56251 - Continuation of the National Emergency With Respect to IranPDF
83 FR 56079 - Sunshine Act MeetingPDF
83 FR 56100 - U.S.-Japan Trade Agreement: Advice on the Probable Economic Effect of Providing Duty-Free Treatment for Currently Dutiable Imports; Institution of Investigation and Scheduling of HearingPDF
83 FR 56124 - Sunshine Act MeetingPDF
83 FR 56104 - Notice of Lodging of Proposed Consent Decree Under the Clean Water ActPDF
83 FR 56086 - Tedor Pharma, Inc., et al.; Withdrawal of Approval of 10 Abbreviated New Drug ApplicationsPDF
83 FR 56087 - Determination That AXIRON (Testosterone) Transdermal Metered Solution, 30 Milligrams/1.5 Milliliter Actuation, Was Not Withdrawn From Sale for Reasons of Safety or EffectivenessPDF
83 FR 56099 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Bureau of Reclamation Use Authorization ApplicationPDF
83 FR 56052 - North Pacific Fishery Management Council; Public MeetingPDF
83 FR 56051 - North Pacific Fishery Management Council; Public MeetingPDF
83 FR 56050 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingPDF
83 FR 56096 - Notice of Availability of a Draft Environmental Impact Statement for the Ho-Chunk Nation Fee-to-Trust and Casino Project, City of Beloit, Rock County, WisconsinPDF
83 FR 56089 - DHS Data Privacy and Integrity Advisory CommitteePDF
83 FR 56031 - Auction of Cross-Service FM Translator Construction Permits; Comment Sought on Competitive Bidding Procedures for Auction 100PDF
83 FR 56089 - Agency Information Collection Activities: Transfer of Cargo to a Container StationPDF
83 FR 55934 - Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection ClaimsPDF
83 FR 56053 - New England Fishery Management Council; Public MeetingPDF
83 FR 56085 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
83 FR 56079 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
83 FR 56080 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
83 FR 55975 - Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region; Reopening of the Commercial Sector for King Mackerel in the Gulf of Mexico Western ZonePDF
83 FR 56051 - New England Fishery Management Council; Public MeetingPDF
83 FR 56097 - Notice of National Petroleum Reserve in Alaska 2018 Oil and Gas Lease Sale; Notice of Availability of the Detailed Statement of Sale for the NPR-A 2018 Oil and Gas Lease SalePDF
83 FR 55970 - Tin Oxide; Exemption From the Requirement of a TolerancePDF
83 FR 56053 - Procurement List; Proposed Addition and DeletionsPDF
83 FR 56054 - Procurement List; Additions and DeletionsPDF
83 FR 56002 - Air Plan Approval; Kentucky; Attainment Plan for Jefferson County SO2PDF
83 FR 56015 - Adopting Subpart Ba Requirements in Emission Guidelines for Municipal Solid Waste Landfills; CorrectionPDF
83 FR 56078 - Proposed Information Collection Request; Comment Request; EPA Strategic Plan Information on Source Water ProtectionPDF
83 FR 56151 - Proposed Extension of Information Collection Request Submitted for Public Comment; Relief for Service in Combat Zone and for Presidentially Declared DisasterPDF
83 FR 56121 - Submission for OMB Review; Comment RequestPDF
83 FR 56122 - Proposed Collection; Comment RequestPDF
83 FR 55969 - Multiple Safety Zones; Fireworks Displays in Captain of the Port New York ZonePDF
83 FR 56132 - Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of MinnesotaPDF
83 FR 56133 - Presidential Declaration Amendment of a Major Disaster for the State of GeorgiaPDF
83 FR 56132 - Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of GeorgiaPDF
83 FR 56132 - Presidential Declaration of a Major Disaster for Public Assistance Only for the State of AlabamaPDF
83 FR 56073 - Notice of Application Accepted for Filing, Soliciting Comments, Motions To Intervene, and Protests; Duke Energy Carolinas, LLCPDF
83 FR 56076 - New England Ratepayers Association; Notice of Petition for Declaratory OrderPDF
83 FR 56073 - Notice of Complaint; Stonegate Power, LLC v. PJM Interconnection, L.L.C.PDF
83 FR 56070 - National Fuel Gas Supply Corporation; Notice of Request Under Blanket AuthorizationPDF
83 FR 56076 - City of Vernon, California; Notice of FilingPDF
83 FR 56131 - Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of MINNESOTAPDF
83 FR 56088 - Notice of Intent To Prepare an Environmental Impact Statement and Notice of Scoping MeetingPDF
83 FR 56140 - Qualification of Drivers; Exemption Applications; VisionPDF
83 FR 56050 - Foreign-Trade Zone (FTZ) 70-Detroit, Michigan, Authorization of Production Activity, Brose New Boston, Inc. (Passenger Vehicle and SUV Subassemblies), New Boston, MichiganPDF
83 FR 56137 - Qualification of Drivers; Exemption Applications; VisionPDF
83 FR 56143 - Qualification of Drivers; Exemption Applications; VisionPDF
83 FR 56138 - Hours of Service of Drivers: National Tank Truck Carriers, Massachusetts Motor Transportation Association; Exemption CorrectionPDF
83 FR 56074 - Combined Notice of Filings #1PDF
83 FR 56058 - Notice of Petition for Waiver of TCL Air Conditioner (zhongshan) Co., Ltd. From the Department of Energy Central Air Conditioners and Heat Pumps Test Procedure, and Notice of Grant of Interim WaiverPDF
83 FR 56065 - Energy Conservation Program: Decision and Order Granting a Waiver to GD Midea Heating & Ventilating Equipment Co., Ltd. From the Department of Energy Central Air Conditioners and Heat Pumps Test Procedure Test ProcedurePDF
83 FR 56152 - Terrorism Risk Insurance Program 2019 Data CallPDF
83 FR 56104 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension Without Change, of a Previously Approved Collection; Federal Coal Lease RequestPDF
83 FR 56136 - Notice of Final Federal Agency Actions on Proposed Highway in CaliforniaPDF
83 FR 56102 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-3D PDF Consortium, Inc.PDF
83 FR 56046 - Changes to the Salmonella and Campylobacter Verification Testing Program: Revised Categorization and Follow-Up Sampling ProceduresPDF
83 FR 55967 - 2018 Quarterly Listings; Safety Zones, Security Zones, Special Local Regulations, Drawbridge Operation Regulations and Regulated Navigation AreasPDF
83 FR 56075 - Combined Notice of Filings #1PDF
83 FR 56071 - MidWest Power; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
83 FR 56070 - TG High Prairie, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
83 FR 56069 - Combined Notice of Filings #2PDF
83 FR 56077 - Combined Notice of Filings #1PDF
83 FR 56071 - Combined Notice of FilingsPDF
83 FR 56080 - Proposed Agency Information Collection Activities; Comment RequestPDF
83 FR 56085 - Decision to Designate a Class of Employees From the Sandia National Laboratories in Albuquerque, New Mexico, To Be Included in the Special Exposure CohortPDF
83 FR 56046 - Submission for OMB Review; Comment RequestPDF
83 FR 56129 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Extend the Operation of its SPXPM Pilot ProgramPDF
83 FR 56116 - Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Chapter XIV, Index Rules, Section 10(g), Pricing When Primary Market Does Not OpenPDF
83 FR 56124 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend ISE Rule 2008(g), Pricing When Primary Market Does Not OpenPDF
83 FR 56127 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Chapter XIV, Index Rules, Section 10(g), Pricing When Primary Market Does Not OpenPDF
83 FR 56113 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Extend the Operation of Its Flexible Exchange Options Pilot Program Regarding Permissible Exercise Settlement Values for Flexible Exchange Index OptionsPDF
83 FR 56109 - Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 1101A, Terms of Option ContractsPDF
83 FR 56119 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Renew the Nonstandard Expirations Pilot ProgramPDF
83 FR 56107 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing of Proposed Rule Change Relating to Amendments to the ICE Clear Europe Limited Liquidity PlanPDF
83 FR 56105 - Notice of Proposed Settlement Agreement and Draft Restoration Plan Under the Oil Pollution Act, the Clean Water Act, and the System Unit Resource Protection ActPDF
83 FR 56058 - Defense Advisory Committee on Women in the Services; Notice of Federal Advisory Committee MeetingPDF
83 FR 56133 - Agency Information Collection Activities: Proposed RequestPDF
83 FR 56106 - Distribution of Cable and Satellite Royalty FundsPDF
83 FR 56102 - Refillable Stainless Steel Kegs From China, Germany, and MexicoPDF
83 FR 56106 - Advisory Committee on the Records of CongressPDF
83 FR 55969 - Drawbridge Operation Regulation; Delaware River, Tacony, PA and Palmyra, NJPDF
83 FR 56101 - Aluminum Wire and Cable From ChinaPDF
83 FR 56111 - Toroso Investments, LLC and Tidal ETF TrustPDF
83 FR 56147 - Request for Comments on the Renewal of a Previously Approved Information Collection: Maritime Administration Annual Service Obligation Compliance ReportPDF
83 FR 56147 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel HARLEY G; Invitation for Public CommentsPDF
83 FR 56146 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel MONEY CAT; Invitation for Public CommentsPDF
83 FR 56015 - Patient Protection and Affordable Care Act; Exchange Program IntegrityPDF
83 FR 56050 - Notice of Public Meeting of the Kentucky Advisory CommitteePDF
83 FR 55931 - Personnel Management in AgenciesPDF
83 FR 56079 - Notice of Termination of ReceivershipsPDF
83 FR 56049 - Notice of Public Meeting of the North Carolina Advisory CommitteePDF
83 FR 55977 - Modernizing Recruitment Requirements for the Temporary Employment of H-2B Foreign Workers in the United StatesPDF
83 FR 55985 - Modernizing Recruitment Requirements for the Temporary Employment of H-2A Foreign Workers in the United StatesPDF
83 FR 56081 - Application of the RFI/C(D) Rating System to Savings and Loan Holding CompaniesPDF
83 FR 56150 - Agency Information Collection Activities: Information Collection Renewal; Comment Request; Consumer Protections for Depository Institution Sales of InsurancePDF
83 FR 56148 - Agency Information Collection Activities: Information Collection Renewal; Comment Request; Market RiskPDF
83 FR 55931 - Oranges and Grapefruit Grown in Lower Rio Grande Valley in Texas; Decreased Assessment RatePDF
83 FR 56094 - 0-Day Notice of Proposed Information Collection: Rural Capacity BuildingPDF
83 FR 56095 - 30-Day Notice of Proposed Information Collection: Office of Native American Program (ONAP) Training and Technical Assistance Evaluation FormPDF
83 FR 56092 - 30-Day Notice of Proposed Information Collection: Voucher Management System (VMS), Section 8 Budget and Financial FormsPDF
83 FR 56091 - 30-Day Notice of Proposed Information Collection: HOPE VI Implementation and HOPE VI Main Street Programs: Funding and Program Data CollectionPDF
83 FR 56093 - 60-Day Notice of Proposed Information Collection: Request for Termination of Multifamily Mortgage InsurancePDF
83 FR 56103 - Bulk Manufacturer of Controlled Substances Application: Chattem ChemicalsPDF
83 FR 56103 - Bulk Manufacturer of Controlled Substances RegistrationPDF
83 FR 55994 - Revisions to the Source-Specific Federal Implementation Plan for Navajo Generating Station, Navajo NationPDF
83 FR 56198 - Cranes and Derricks in Construction: Operator QualificationPDF
83 FR 56078 - Environmental Impact Statements; Notice of AvailabilityPDF
83 FR 56097 - Notice of Intent To Prepare a Resource Management Plan Amendment and Environmental Impact Statement for the Borderlands Wind Project in Catron County, New Mexico; and Notice of Public Lands SegregationPDF
83 FR 55953 - Airworthiness Directives; Airbus SAS AirplanesPDF
83 FR 56038 - Television Broadcasting Services; Morehead and Richmond, KentuckyPDF
83 FR 56039 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Coastal Migratory Pelagics Resources in the Gulf of Mexico and Atlantic Region; Amendment 31PDF
83 FR 55956 - Vessel and Aircraft Discharges From United States Coast Guard in Greater Farallones and Cordell Bank National Marine SanctuariesPDF
83 FR 56156 - American Society of Mechanical Engineers 2015-2017 Code Editions Incorporation by ReferencePDF

Issue

83 218 Friday, November 9, 2018 Contents Agricultural Marketing Agricultural Marketing Service RULES Decreased Assessment Rates: Oranges and Grapefruit Grown in Lower Rio Grande Valley in Texas, 55931-55933 2018-24493 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Food Safety and Inspection Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56046 2018-24529
Antitrust Division Antitrust Division NOTICES Changes under National Cooperative Research and Production Act: 3D PDF Consortium, Inc., 56102-56103 2018-24542 Centers Disease Centers for Disease Control and Prevention NOTICES Petitions to Designate Classes of Employees to be Included in Special Exposure Cohort: Albuquerque, New Mexico; Sandia National Laboratories, 56085 2018-24530 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56085-56086 2018-24592 Civil Rights Civil Rights Commission NOTICES Meetings: Kentucky Advisory Committee, 56050 2018-24503 North Carolina Advisory Committee, 56049-56050 2018-24499 Coast Guard Coast Guard RULES Drawbridge Operations: Delaware River, Tacony, PA and Palmyra, NJ, 55969 2018-24511 Quarterly Listings: Safety Zones, Security Zones, Special Local Regulations, Drawbridge Operation Regulations and Regulated Navigation Areas, 55967-55969 2018-24539 Safety Zones: Fireworks Displays in Captain of the Port New York Zone, 55969-55970 2018-24573 Commerce Commerce Department See

Foreign-Trade Zones Board

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, 56053-56058 2018-24583 2018-24584 Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Consumer Protections for Depository Institution Sales of Insurance, 56150-56151 2018-24495 Market Risk, 56148-56150 2018-24494 Copyright Royalty Board Copyright Royalty Board NOTICES Distribution of Cable and Satellite Royalty Funds, 56106 2018-24516 Defense Department Defense Department NOTICES Meetings: Defense Advisory Committee on Women in the Services, 56058 2018-24519 Drug Drug Enforcement Administration NOTICES Bulk Manufacturers of Controlled Substances; Applications: Chattem Chemicals, 56103-56104 2018-24485 Bulk Manufacturers of Controlled Substances; Registrations, 56103 2018-24484 Employment and Training Employment and Training Administration PROPOSED RULES Modernizing Recruitment Requirements for the Temporary Employment of H-2A Foreign Workers in the United States, 55985-55994 2018-24497 Modernizing Recruitment Requirements for the Temporary Employment of H-2B Foreign Workers in the United States, 55977-55985 2018-24498 Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Central Air Conditioners and Heat Pumps Test Procedure Waiver Approval: TCL Air Conditioner (zhongshan) Co., Ltd., 56058-56065 2018-24548 Energy Conservation Program: Granting of Waiver to GD Midea Heating & Ventilating Equipment Co., Ltd. from the Central Air Conditioners and Heat Pumps Test Procedure Test Procedure, 56065-56069 2018-24547
Environmental Protection Environmental Protection Agency RULES Tolerance Exemptions: Tin Oxide, 55970-55974 2018-24585 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Kentucky; Attainment Plan for Jefferson County SO2 Nonattainment Area, 56002-56015 2018-24582 Revisions to the Source-Specific Federal Implementation Plan for Navajo Generating Station, Navajo Nation, 55994-56002 2018-24482 Emission Guidelines for Municipal Solid Waste Landfills; Correction, 56015 2018-24581 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals:, 56078-56079 2018-24580 Environmental Impact Statements; Availability, etc.: Weekly Receipts, 56078 2018-24456 Executive Office Executive Office for Immigration Review RULES Aliens Subject to a Bar on Entry under Certain Presidential Proclamations; Procedures for Protection Claims, 55934-55953 2018-24594 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus SAS Airplanes, 55953-55956 2018-24394 Federal Communications Federal Communications Commission PROPOSED RULES Auction of Cross-Service FM Translator Construction Permits: Competitive Bidding Procedures for Auction 100, 56031-56038 2018-24596 Television Broadcasting Services: Morehead and Richmond, KY, 56038-56039 2018-24345 Federal Deposit Federal Deposit Insurance Corporation NOTICES Termination of Receiverships: Security Exchange Bank, Marietta, GA; First Cornerstone Bank, King of Prussia, PA, 56079 2018-24500 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 56079 2018-24719 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Duke Energy Carolinas, LLC, 56073-56074 2018-24563 Combined Filings, 56069-56078 2018-24533 2018-24534 2018-24535 2018-24538 2018-24550 Complaints: Stonegate Power, LLC v. PJM Interconnection, L.L.C., 56073 2018-24561 Filings: City of Vernon, CA, 56076 2018-24559 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: MidWest Power, 56071 2018-24537 TG High Prairie, LLC, 56070-56071 2018-24536 Petitions for Declaratory Orders: New England Ratepayers Association, 56076-56077 2018-24562 Requests under Blanket Authorizations: National Fuel Gas Supply Corp., 56070 2018-24560 Federal Highway Federal Highway Administration NOTICES Federal Agency Actions: California; Proposed Highway, 56136-56137 2018-24543 Federal Motor Federal Motor Carrier Safety Administration NOTICES Hours of Service of Drivers; Exemption Correction: National Tank Truck Carriers, Massachusetts Motor Transportation Association, 56138-56139 2018-24551 Qualification of Drivers; Exemption Applications: Vision, 56137-56138, 56140-56146 2018-24552 2018-24553 2018-24556 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56080-56081 2018-24531 Application of the RFI/C(D) Rating System to Savings and Loan Holding Companies, 56081-56085 2018-24496 Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 56080 2018-24590 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 56079 2018-24591 Food and Drug Food and Drug Administration NOTICES Abbreviated New Drug Applications; Approval Withdrawals: Tedor Pharma, Inc., et al., 56086-56087 2018-24605 Determinations that Products Were Not Withdrawn from Sale for Reasons of Safety or Effectiveness: AXIRON (Testosterone) Transdermal Metered Solution, 30 Milligrams/1.5 Milliliter Actuation, 56087-56088 2018-24604 Food Safety Food Safety and Inspection Service NOTICES Changes to the Salmonella and Campylobacter Verification Testing Program: Revised Categorization and Follow-up Sampling Procedures, 56046-56049 2018-24540 Foreign Trade Foreign-Trade Zones Board NOTICES Production Activities: Brose New Boston, Inc., Foreign-Trade Zone 70, Detroit, MI, 56050 2018-24555 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

National Institutes of Health

PROPOSED RULES Patient Protection and Affordable Care Act; Exchange Program Integrity, 56015-56031 2018-24504
Homeland Homeland Security Department See

Coast Guard

See

U.S. Customs and Border Protection

RULES Aliens Subject to a Bar on Entry under Certain Presidential Proclamations; Procedures for Protection Claims, 55934-55953 2018-24594 PROPOSED RULES Modernizing Recruitment Requirements for the Temporary Employment of H-2B Foreign Workers in the United States, 55977-55985 2018-24498 NOTICES Meetings: Data Privacy and Integrity Advisory Committee, 56089-56091 2018-24597
Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: HOPE VI Implementation and HOPE VI Main Street Programs; Funding and Program Data Collection, 56091-56092 2018-24489 Office of Native American Program Training and Technical Assistance Evaluation Form, 56095-56096 2018-24491 Request for Termination of Multifamily Mortgage Insurance, 56093-56094 2018-24488 Rural Capacity Building, 56094-56095 2018-24492 Voucher Management System, Section 8 Budget and Financial Forms, 56092-56093 2018-24490 Indian Affairs Indian Affairs Bureau NOTICES Environmental Impact Statements; Availability, etc.: Ho-Chunk Nation Fee-to-Trust and Casino Project, City of Beloit, Rock County, WI, 56096-56097 2018-24598 Interior Interior Department See

Indian Affairs Bureau

See

Land Management Bureau

See

Reclamation Bureau

Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Relief for Service in Combat Zone and for Presidentially Declared Disaster, 56151 2018-24578 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Aluminum Wire and Cable from China, 56101-56102 2018-24510 Refillable Stainless Steel Kegs from China, Germany, and Mexico, 56102 2018-24515 U.S.-Japan Trade Agreement: Advice on the Probable Economic Effect of Providing Duty-free Treatment for Currently Dutiable Imports, 56100-56101 2018-24704 Justice Department Justice Department See

Antitrust Division

See

Drug Enforcement Administration

See

Executive Office for Immigration Review

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Coal Lease Request, 56104 2018-24544 Proposed Consent Decrees: Clean Air Act, 56104-56105 2018-24606 Proposed Settlement Agreements: Oil Pollution Act, Clean Water Act, System Unit Resource Protection Act, 56105 2018-24520
Labor Department Labor Department See

Employment and Training Administration

See

Occupational Safety and Health Administration

Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Borderlands Wind Project, Catron County, New Mexico, 56097-56099 2018-24401 Oil and Gas Lease Sales: National Petroleum Reserve in Alaska, 56097 2018-24586 Library Library of Congress See

Copyright Royalty Board

Maritime Maritime Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Maritime Administration Annual Service Obligation Compliance Report, 56147 2018-24508 Requested Administrative Waiver of the Coastwise Trade Laws: Vessel HARLEY G, 56147-56148 2018-24507 Vessel MONEY CAT, 56146-56147 2018-24506 National Archives National Archives and Records Administration NOTICES Meetings: Advisory Committee on the Records of Congress, 56106 2018-24513 National Institute National Institutes of Health NOTICES Environmental Impact Statements; Availability, etc.: Surgery, Radiology and Lab Medicine Building, 56088-56089 2018-24557 National Oceanic National Oceanic and Atmospheric Administration RULES Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region: Reopening of the Commercial Sector for King Mackerel in the Gulf of Mexico Western Zone, 55975-55976 2018-24589 Vessel and Aircraft Discharges from United States Coast Guard in Greater Farallones and Cordell Bank National Marine Sanctuaries, 55956-55967 2018-24200 PROPOSED RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Coastal Migratory Pelagics Resources in the Gulf of Mexico and Atlantic Region; Amendment 31, 56039-56045 2018-24343 NOTICES Meetings: Mid-Atlantic Fishery Management Council, 56050-56051 2018-24600 New England Fishery Management Council, 56051, 56053 2018-24588 2018-24593 North Pacific Fishery Management Council, 56051-56053 2018-24599 2018-24601 2018-24602 Nuclear Regulatory Nuclear Regulatory Commission PROPOSED RULES American Society of Mechanical Engineers 2015-2017 Code Editions Incorporation by Reference, 56156-56196 2018-24076 Occupational Safety Health Adm Occupational Safety and Health Administration RULES Cranes and Derricks in Construction: Operator Qualification, 56198-56247 2018-24481 Personnel Personnel Management Office RULES Personnel Management in Agencies, 55931 2018-24501 Presidential Documents Presidential Documents ADMINISTRATIVE ORDERS Iran; Continuation of National Emergency (Notice of November 8, 2018), 56249-56251 2018-24808 Weapons of Mass Destruction, Proliferation; Continuation of National Emergency (Notice of November 8, 2018), 56253 2018-24810 Reclamation Reclamation Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Bureau of Reclamation Use Authorization Application, 56099-56100 2018-24603 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56121-56124 2018-24577 2018-24575 Applications: Toroso Investments, LLC and Tidal ETF Trust, 56111-56113 2018-24509 Meetings; Sunshine Act, 56124 2018-24632 Self-Regulatory Organizations; Proposed Rule Changes: Cboe Exchange, Inc., 56113-56116, 56119-56121, 56129-56131 2018-24522 2018-24524 2018-24528 ICE Clear Europe Ltd., 56107-56109 2018-24521 Nasdaq BX, Inc., 56116-56118 2018-24527 Nasdaq ISE, LLC, 56124-56127 2018-24526 Nasdaq PHLX LLC, 56109-56111 2018-24523 The Nasdaq Stock Market LLC, 56127-56129 2018-24525 Small Business Small Business Administration NOTICES Major Disaster Declarations: Alabama; Public Assistance Only, 56132 2018-24564 Georgia, 56133 2018-24568 Georgia; Amendment 1, 56132-56133 2018-24565 Minnesota, 56132 2018-24569 Minnesota; Public Assistance Only; Amendment 1, 56131-56132 2018-24558 Social Social Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56133-56136 2018-24517 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Motor Carrier Safety Administration

See

Maritime Administration

Treasury Treasury Department See

Comptroller of the Currency

See

Internal Revenue Service

NOTICES Terrorism Risk Insurance Program 2019 Data Call, 56152-56154 2018-24546
Customs U.S. Customs and Border Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Transfer of Cargo to a Container Station, 56089 2018-24595 Separate Parts In This Issue Part II Nuclear Regulatory Commission, 56156-56196 2018-24076 Part III Labor Department, Occupational Safety and Health Administration, 56198-56247 2018-24481 Part IV Presidential Documents, 56249-56251, 56253 2018-24808 2018-24810 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.

To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.

83 218 Friday, November 9, 2018 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 250 Personnel Management in Agencies AGENCY:

Office of Personnel Management.

ACTION:

Correcting amendment.

SUMMARY:

On December 12, 2016, the Office of Personnel Management (OPM) published revisions to its regulations concerning personnel management in agencies. That document inadvertently failed to properly cite agencies covered by the Chief Financial Officers Act. This document corrects the final regulations.

DATES:

Effective November 9, 2018.

FOR FURTHER INFORMATION CONTACT:

For information, please contact Jan Chisolm-King by email at [email protected] or by telephone at (202) 606-1958.

SUPPLEMENTARY INFORMATION:

OPM maintains statutory responsibility under 5 U.S.C. 1103(c) to guide, enable, and assess agency strategic human capital management processes. On December 12, 2016, OPM published the Personnel Management in Agencies final rule in the Federal Register (81 FR 89357) to amend 5 CFR 250, subpart B, Strategic Human Capital Management. This document corrects an incorrect cite reference contained in § 250.201 (Coverage and Purpose).

List of Subjects in 5 CFR Part 250

Authority for Personnel actions in agencies, Strategic Human Capital Management.

Accordingly, 5 CFR 250, subpart B, is corrected by making the following correcting amendment:

PART 250—PERSONNEL MANAGEMENT IN AGENCIES 1. The authority citation for part 250 continues to read as follows: Authority:

5 U.S.C. 1101 note, 1103(a)(5), 1103(c), 1104, 1302, 3301, 3302; E.O. 10577, 12 FR 1259, 3 CFR, 1954-1958 Comp., p. 218; E.O. 13197, 66 FR 7853, 3 CFR 748 (2002).

2. Revise § 250.201 to read as follows:
§ 250.201 Coverage and purpose.

Pursuant to 5 U.S.C. 1103(c), this subpart defines a set of systems, including standards and metrics, for assessing the management of human capital by Federal agencies. These regulations apply to agencies covered by 31 U.S.C. 901(b) of the Chief Financial Officers (CFO) Act of 1990 (Pub. L. 101-576), as well as 5 U.S.C. 1401 and support the performance planning and reporting that is required by sections 1115(a)(3) and (f) and 1116(d)(5) of title 31, United States Code.

Office of Personnel Management. Alexys Stanley, Regulatory Affairs Analyst.
[FR Doc. 2018-24501 Filed 11-8-18; 8:45 am] BILLING CODE 6325-39-P
DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 906 [Doc. No. AMS-SC-18-0044; SC18-906-1 FR] Oranges and Grapefruit Grown in Lower Rio Grande Valley in Texas; Decreased Assessment Rate AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

This rule implements a recommendation from the Texas Valley Citrus Committee (Committee) to decrease the assessment rate established for the 2018-19 and subsequent fiscal periods. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.

DATES:

Effective December 10, 2018.

FOR FURTHER INFORMATION CONTACT:

Doris Jamieson, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or Email: [email protected] or [email protected]

Small businesses may request information on complying with this regulation 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:

This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rule is issued under Marketing Agreement and Order No. 906, as amended (7 CFR part 906), regulating the handling of oranges and grapefruit grown in the Lower Rio Grande Valley in Texas. Part 906, 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.” The Committee locally administers the Order and is comprised of producers and handlers of oranges and grapefruit operating within the production area.

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 13563 and 13175. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. 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 OMB's 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).

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the Order now in effect, Texas citrus handlers are subject to assessments. Funds to administer the Order are derived from such assessments. It is intended that the assessment rate will be applicable to all assessable oranges and grapefruit for the 2018-19 crop year and continue until amended, suspended, or terminated.

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. Such 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 not later than 20 days after the date of the entry of the ruling.

The Order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members are familiar with the Committee's needs and with the costs of goods and services in their local area and can formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting and all directly affected persons have an opportunity to participate and provide input.

This rule decreases the assessment rate from $0.02, the rate that was established for the 2017-18 and subsequent fiscal periods, to $0.01 per 7/10-bushel carton or equivalent of oranges and grapefruit handled for the 2018-19 and subsequent fiscal periods. The Committee recommended decreasing the assessment rate and utilizing funds from its authorized reserve to reduce the reserve balance. The reserve balance has been greater than the sum allowable under § 906.35 of the Order, which is approximately equivalent to one year's operating expenses, since 2017. In 2017-18, the Committee was able to reduce its budget by more than $595,000 when an alternative funding source was found for the Mexican fruit fly control program. This dramatic reduction in the overall budget prompted the Committee's need to reduce the balance of the authorized reserve to reflect the lower operating budget.

The Committee met on May 23, 2018, and unanimously recommended 2018-19 expenditures of $152,920 and an assessment rate of $0.01 per 7/10-bushel carton or equivalent of oranges and grapefruit. The itemized budgeted expenses, including $79,220 for management, $50,000 for compliance, and $23,700 for operating expenses, are the same as the previous fiscal period. However, the assessment rate of $0.01 is lower than the $0.02 rate currently in effect.

The assessment rate recommended by the Committee was derived by considering anticipated expenses, expected shipments of 7.5 million 7/10-bushel cartons, and the amount of funds available in the authorized reserve. Income derived from handler assessments, calculated at $75,000 (7.5 million × $0.01), along with interest income and funds from the Committee's authorized reserve, should be adequate to cover budgeted expenses of $152,920. Funds in the reserve are estimated to be $287,295 at the end of the 2017-18 fiscal period. No additional funds can be added to the reserve until the balance drops below approximately one fiscal period's expenses as stated in § 906.35.

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2018-19 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.

Final Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule 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 in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 170 producers of oranges and grapefruit in the production area and 13 handlers subject to regulation under the Order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).

According to Committee data, the average price for Texas citrus during the 2016-17 season was approximately $16 per carton and total shipments were 7.6 million cartons. Using the average price and shipment information, the number of handlers, and assuming a normal distribution, the majority of handlers would have average annual receipts of greater than $7,500,000 ($16 per carton times 7.6 million cartons equals $121.6 million, divided by 13 equals $9.4 million per handler).

In addition, based on National Agricultural Statistics Service information, the weighted grower price for Texas citrus during the 2016-17 season was approximately $9.35 per carton. Using the weighted average price and shipment information, the number of producers and assuming a normal distribution, the majority of producers would have annual receipts of $418,000, which is less than $750,000 ($9.35 per carton times 7.6 million cartons equals $71.06 million, divided by 170 equals $418,000 per producer). Thus, the majority of handlers of Texas citrus may be classified as large entities, while the majority of producers may be classified as small entities.

This rule decreases the assessment rate collected from handlers for the 2018-19 and subsequent fiscal periods from $0.02 to $0.01 per 7/10-bushel carton or equivalent of Texas citrus. The Committee unanimously recommended 2018-19 expenditures of $152,920 and an assessment rate of $0.01 per 7/10-bushel carton or equivalent handled. The assessment rate of $0.01 is $0.01 lower than the 2017-18 rate. The quantity of assessable oranges and grapefruit for the 2018-19 fiscal period is estimated at 7.5 million 7/10-bushel cartons. The $0.01 rate should provide $75,000 in assessment income (7.5 million × $0.01). Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve, should be adequate to cover budgeted expenses.

The major expenditures recommended by the Committee for the 2018-19 year include $79,220 for management, $50,000 for compliance, and $23,700 for operating expenses. Budgeted expenses for these items in 2017-18 were the same.

The Committee recommended decreasing the assessment rate and utilizing funds from its authorized reserve to reduce the reserve balance to bring it in line with the limitation under the Order of approximately one year's expenses.

Prior to arriving at this budget and assessment rate, the Committee considered information from various sources, such as the Committee's Budget and Personnel Committee, and the Research Committee. Alternative expenditure levels were discussed by these committees who reviewed the relative value of various activities to the Texas citrus industry. These committees determined that all program activities were adequately funded and essential to the functionality of the Order; thus, no alternative expenditure levels were deemed appropriate. Additionally, the Committee discussed alternatives of maintaining the current assessment rate of $0.02 and lowering the assessment rate to $0.015 per 7/10-bushel carton or equivalent. These alternatives were not recommended because the Committee determined that these assessment rates would not draw enough funds from the authorized reserve to bring the reserve fund total in line with Order requirements.

Based on these discussions and estimated shipments, the recommended assessment rate of $0.01 should provide $75,000 in assessment income. The Committee determined that assessment revenue, along with funds from the reserve and interest income, should be adequate to cover budgeted expenses for the 2018-19 fiscal period.

A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the average grower price for the 2018-19 season should be approximately $9.50 per 7/10-bushel carton or equivalent of oranges and grapefruit. The estimated assessment revenue for the 2018-19 crop year as a percentage of total grower revenue would be about 0.1 percent.

This action decreases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. Decreasing the assessment rate reduces the burden on handlers and may also reduce the burden on producers.

The Committee's meeting was widely publicized throughout the Texas citrus industry. All interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the May 23, 2018, meeting was a public meeting, and all entities, both large and small, were able to express views on this issue.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by the OMB and assigned OMB No. 0581-0189, Fruit Crops. No changes in those requirements because of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This rule imposes no additional reporting or recordkeeping requirements on either small or large Texas orange and grapefruit handlers. 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. As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

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.

A proposed rule concerning this action was published in the Federal Register on August 24, 2018 (83 FR 42805). Copies of the proposed rule were also mailed or sent via facsimile to all Texas citrus handlers. The proposal was made available through the internet by USDA and the Office of the Federal Register. A 30-day comment period ending September 24, 2018, was provided for interested persons to respond to the proposal.

One comment was received. The commenter expressed concern that the beginning of the applicable timeframe for the new assessment rate precedes the closing date for public comments. The Order requires that the rate of assessment for each fiscal period apply to all assessable Texas citrus handled during such fiscal period. Further, the rulemaking process is designed to provide interested parties with the opportunity to comment on actions being considered by USDA. All comments timely received were considered prior to the finalization of this rule. Accordingly, no changes will be made to the rule as proposed, based on the comment received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule will tend to effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 906

Grapefruit, Marketing agreements, Oranges, Reporting and recordkeeping requirements.

For the reasons set forth in the preamble, 7 CFR part 906 is amended as follows:

PART 906—ORANGES AND GRAPEFRUIT GROWN IN LOWER RIO GRANDE VALLEY IN TEXAS 1. The authority citation for 7 CFR part 906 continues to read as follows: Authority:

7 U.S.C. 601-674.

2. Section 906.235 is revised to read as follows:
§ 906.235 Assessment rate.

On and after August 1, 2018, an assessment rate of $0.01 per 7/10-bushel carton or equivalent is established for oranges and grapefruit grown in the Lower Rio Grande Valley in Texas.

Dated: November 5, 2018. Bruce Summers, Administrator, Agricultural Marketing Service.
[FR Doc. 2018-24493 Filed 11-8-18; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF HOMELAND SECURITY 8 CFR Part 208 RIN 1615-AC34 DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Parts 1003 and 1208 [EOIR Docket No. 18-0501; A.G. Order No. 4327-2018] RIN 1125-AA89 Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims AGENCY:

U.S. Citizenship and Immigration Services, Department of Homeland Security; Executive Office for Immigration Review, Department of Justice.

ACTION:

Interim final rule; request for comment.

SUMMARY:

The Department of Justice and the Department of Homeland Security (“DOJ,” “DHS,” or, collectively, “the Departments”) are adopting an interim final rule governing asylum claims in the context of aliens who are subject to, but contravene, a suspension or limitation on entry into the United States through the southern border with Mexico that is imposed by a presidential proclamation or other presidential order (“a proclamation”) under section 212(f) or 215(a)(1) of the Immigration and Nationality Act (“INA”). Pursuant to statutory authority, the Departments are amending their respective existing regulations to provide that aliens subject to such a proclamation concerning the southern border, but who contravene such a proclamation by entering the United States after the effective date of such a proclamation, are ineligible for asylum. The interim rule, if applied to a proclamation suspending the entry of aliens who cross the southern border unlawfully, would bar such aliens from eligibility for asylum and thereby channel inadmissible aliens to ports of entry, where they would be processed in a controlled, orderly, and lawful manner. This rule would apply only prospectively to a proclamation issued after the effective date of this rule. It would not apply to a proclamation that specifically includes an exception for aliens applying for asylum, nor would it apply to aliens subject to a waiver or exception provided by the proclamation. DHS is amending its regulations to specify a screening process for aliens who are subject to this specific bar to asylum eligibility. DOJ is amending its regulations with respect to such aliens. The regulations would ensure that aliens in this category who establish a reasonable fear of persecution or torture could seek withholding of removal under the INA or protection from removal under regulations implementing U.S. obligations under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).

DATES:

Effective date: This rule is effective November 9, 2018.

Submission of public comments: Written or electronic comments must be submitted on or before January 8, 2019. Written comments postmarked on or before that date will be considered timely. The electronic Federal Docket Management System will accept comments prior to midnight eastern standard time at the end of that day.

ADDRESSES:

You may submit comments, identified by EOIR Docket No. 18-0501, by one of the following methods:

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

Mail: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2616, Falls Church, VA 22041. To ensure proper handling, please reference EOIR Docket No. 18-0501 on your correspondence. This mailing address may be used for paper, disk, or CD-ROM submissions.

Hand Delivery/Courier: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2616, Falls Church, VA 22041, Contact Telephone Number (703) 305-0289 (not a toll-free call).

FOR FURTHER INFORMATION CONTACT:

Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2616, Falls Church, VA 22041, Contact Telephone Number (703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION: I. Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule. The Departments also invite comments that relate to the economic or federalism effects that might result from this rule. To provide the most assistance to the Departments, comments should reference a specific portion of the rule; explain the reason for any recommended change; and include data, information, or authority that supports the recommended change.

All comments submitted for this rulemaking should include the agency name and EOIR Docket No. 18-0501. Please note that all comments received are considered part of the public record and made available for public inspection at www.regulations.gov. Such information includes personally identifiable information (such as a person's name, address, or any other data that might personally identify that individual) that the commenter voluntarily submits.

If you want to submit personally identifiable information as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONALLY IDENTIFIABLE INFORMATION” in the first paragraph of your comment and precisely and prominently identify the information of which you seek redaction.

If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment and precisely and prominently identify the confidential business information of which you seek redaction. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on www.regulations.gov. Personally identifiable information and confidential business information provided as set forth above will be placed in the public docket file of DOJ's Executive Office of Immigration Review (“EOIR”), but not posted online. To inspect the public docket file in person, you must make an appointment with EOIR. Please see the FOR FURTHER INFORMATION CONTACT paragraph above for the contact information specific to this rule.

II. Purpose of This Interim Final Rule

This interim final rule (“interim rule” or “rule”) governs eligibility for asylum and screening procedures for aliens subject to a presidential proclamation or order restricting entry issued pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), or section 215(a)(1) of the INA, 8 U.S.C. 1185(a)(1), that concerns entry to the United States along the southern border with Mexico and is issued on or after the effective date of this rule. Pursuant to statutory authority, the interim rule renders such aliens ineligible for asylum if they enter the United States after the effective date of such a proclamation, become subject to the proclamation, and enter the United States in violation of the suspension or limitation of entry established by the proclamation. The interim rule, if applied to a proclamation suspending the entry of aliens who cross the southern border unlawfully, would bar such aliens from eligibility for asylum and thereby channel inadmissible aliens to ports of entry, where such aliens could seek to enter and would be processed in an orderly and controlled manner. Aliens who enter prior to the effective date of an applicable proclamation will not be subject to this asylum eligibility bar unless they depart and reenter while the proclamation remains in effect. Aliens also will not be subject to this eligibility bar if they fall within an exception or waiver within the proclamation that makes the suspension or limitation of entry in the proclamation inapplicable to them, or if the proclamation provides that it does not affect eligibility for asylum.

As discussed further below, asylum is a discretionary immigration benefit. In general, aliens may apply for asylum if they are physically present or arrive in the United States, irrespective of their status and irrespective of whether or not they arrive at a port of entry, as provided in section 208(a) of the INA, 8 U.S.C. 1158(a). Congress, however, provided that certain categories of aliens could not receive asylum and further delegated to the Attorney General and the Secretary of Homeland Security (“Secretary”) the authority to promulgate regulations establishing additional bars on eligibility that are consistent with the asylum statute and “any other conditions or limitations on the consideration of an application for asylum” that are consistent with the INA. See INA 208(b)(2)(C), (d)(5)(B), 8 U.S.C. 1158(b)(2)(C), (d)(5)(B).

In the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (“IIRIRA”), Public Law 104-208, Congress, concerned with rampant delays in proceedings to remove illegal aliens, created expedited procedures for removing inadmissible aliens, and authorized the extension of such procedures to aliens who entered illegally and were apprehended within two years of their entry. See generally INA 235(b), 8 U.S.C. 1225(b). Those procedures were aimed at facilitating the swift removal of inadmissible aliens, including those who had entered illegally, while also expeditiously resolving any asylum claims. For instance, Congress provided that any alien who asserted a fear of persecution would appear before an asylum officer, and that any alien who is determined to have established a “credible fear”—meaning a “significant possibility . . . that the alien could establish eligibility for asylum” under the asylum statute—would be detained for further consideration of an asylum claim. See INA 235(b)(1), (b)(1)(B)(v), 8 U.S.C. 1225(b)(1), (b)(1)(B)(v).

When the expedited procedures were first implemented approximately two decades ago, relatively few aliens within those proceedings asserted an intent to apply for asylum or a fear of persecution. Rather, most aliens found inadmissible at the southern border were single adults who were immediately repatriated to Mexico. Thus, while the overall number of illegal aliens apprehended was far higher than it is today (around 1.6 million in 2000), aliens could be processed and removed more quickly, without requiring detention or lengthy court proceedings.

In recent years, the United States has seen a large increase in the number and proportion of inadmissible aliens subject to expedited removal who assert an intent to apply for asylum or a fear of persecution during that process and are subsequently placed into removal proceedings in immigration court. Most of those aliens unlawfully enter the country between ports of entry along the southern border. Over the past decade, the overall percentage of aliens subject to expedited removal and referred, as part of the initial screening process, for a credible-fear interview jumped from approximately 5% to above 40%, and the total number of credible-fear referrals for interviews increased from about 5,000 a year in Fiscal Year (“FY”) 2008 to about 97,000 in FY 2018. Furthermore, the percentage of cases in which asylum officers found that the alien had established a credible fear—leading to the alien's placement in full immigration proceedings under section 240 of the INA, 8 U.S.C. 1229a—has also increased in recent years. In FY 2008, when asylum officers resolved a referred case with a credible-fear determination, they made a positive finding about 77% of the time. That percentage rose to 80% by FY 2014. In FY 2018, that percentage of positive credible-fear determinations has climbed to about 89% of all cases. After this initial screening process, however, significant proportions of aliens who receive a positive credible-fear determination never file an application for asylum or are ordered removed in absentia. In FY 2018, a total of about 6,000 aliens who passed through credible-fear screening (17% of all completed cases, 27% of all completed cases in which an asylum application was filed, and about 36% of cases where the asylum claim was adjudicated on the merits) established that they should be granted asylum.

Apprehending and processing this growing number of aliens who cross illegally into the United States and invoke asylum procedures thus consumes an ever increasing amount of resources of DHS, which must surveil, apprehend, and process the aliens who enter the country. Congress has also required DHS to detain all aliens during the pendency of their credible-fear proceedings, which can take days or weeks. And DOJ must also dedicate substantial resources: Its immigration judges adjudicate aliens' claims, and its officials are responsible for prosecuting and maintaining custody over those who violate the criminal law. The strains on the Departments are particularly acute with respect to the rising numbers of family units, who generally cannot be detained if they are found to have a credible fear, due to a combination of resource constraints and the manner in which the terms of the Settlement Agreement in Flores v. Reno have been interpreted by courts. See Stipulated Settlement Agreement, Flores v. Reno, No. 85-cv-4544 (N.D. Cal. Jan. 17, 1997).

In recent weeks, United States officials have each day encountered an average of approximately 2,000 inadmissible aliens at the southern border. At the same time, large caravans of thousands of aliens, primarily from Central America, are attempting to make their way to the United States, with the apparent intent of seeking asylum after entering the United States unlawfully or without proper documentation. Central American nationals represent a majority of aliens who enter the United States unlawfully, and are also disproportionately likely to choose to enter illegally between ports of entry rather than presenting themselves at a port of entry. As discussed below, aliens who enter unlawfully between ports of entry along the southern border, as opposed to at a port of entry, pose a greater strain on DHS's already stretched detention and processing resources and also engage in conduct that seriously endangers themselves, any children traveling with them, and the U.S. Customs and Border Protection (“CBP”) agents who seek to apprehend them.

The United States has been engaged in sustained diplomatic negotiations with Mexico and the Northern Triangle countries (Honduras, El Salvador, and Guatemala) regarding the situation on the southern border, but those negotiations have, to date, proved unable to meaningfully improve the situation.

The purpose of this rule is to limit aliens' eligibility for asylum if they enter in contravention of a proclamation suspending or restricting their entry along the southern border. Such aliens would contravene a measure that the President has determined to be in the national interest. For instance, a proclamation restricting the entry of inadmissible aliens who enter unlawfully between ports of entry would reflect a determination that this particular category of aliens necessitates a response that would supplement existing prohibitions on entry for all inadmissible aliens. Such a proclamation would encourage such aliens to seek admission and indicate an intention to apply for asylum at ports of entry. Aliens who enter in violation of that proclamation would not be eligible for asylum. They would, however, remain eligible for statutory withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), or for protections under the regulations issued under the authority of the implementing legislation regarding Article 3 of the CAT.

The Departments anticipate that a large number of aliens who would be subject to a proclamation-based ineligibility bar would be subject to expedited-removal proceedings. Accordingly, this rule ensures that asylum officers and immigration judges account for such aliens' ineligibility for asylum within the expedited-removal process, so that aliens subject to such a bar will be processed swiftly. Furthermore, the rule continues to afford protection from removal for individuals who establish that they are more likely than not to be persecuted or tortured in the country of removal. Aliens rendered ineligible for asylum by this interim rule and who are referred for an interview in the expedited-removal process are still eligible to seek withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), or protections under the regulations issued under the authority of the implementing legislation regarding Article 3 of the CAT. Such aliens could pursue such claims in proceedings before an immigration judge under section 240 of the INA, 8 U.S.C. 1229a, if they establish a reasonable fear of persecution or torture.

III. Background A. Joint Interim Rule

The Attorney General and the Secretary of Homeland Security publish this joint interim rule pursuant to their respective authorities concerning asylum determinations.

The Homeland Security Act of 2002, Public Law 107-296, as amended, transferred many functions related to the execution of federal immigration law to the newly created Department of Homeland Security. The Homeland Security Act of 2002 charges the Secretary “with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens,” 8 U.S.C. 1103(a)(1), and grants the Secretary the power to take all actions “necessary for carrying out” the provisions of the INA, id. 1103(a)(3). The Homeland Security Act of 2002 also transferred to DHS some responsibility for affirmative asylum applications, i.e., applications for asylum made outside the removal context. See 6 U.S.C. 271(b)(3). Those authorities have been delegated to U.S. Citizenship and Immigration Services (“USCIS”). USCIS asylum officers determine in the first instance whether an alien's affirmative asylum application should be granted. See 8 CFR 208.9.

But the Homeland Security Act of 2002 retained authority over certain individual immigration adjudications (including those related to defensive asylum applications) in DOJ, under the Executive Office for Immigration Review (“EOIR”) and subject to the direction and regulation of the Attorney General. See 6 U.S.C. 521; 8 U.S.C. 1103(g). Thus, immigration judges within DOJ continue to adjudicate all asylum applications made by aliens during the removal process (defensive asylum applications), and they also review affirmative asylum applications referred by USCIS to the immigration court. See INA 101(b)(4), 8 U.S.C. 1101(b)(4); 8 CFR 1208.2; Dhakal v. Sessions, 895 F.3d 532, 536-37 (7th Cir. 2018) (describing affirmative and defensive asylum processes). The Board of Immigration Appeals (“BIA” or “Board”), also within DOJ, in turn hears appeals from immigration judges' decisions. 8 CFR 1003.1. In addition, the INA provides “[t]hat determination and ruling by the Attorney General with respect to all questions of law shall be controlling.” INA 103(a)(1), 8 U.S.C. 1103(a)(1). This broad division of functions and authorities informs the background of this interim rule.

B. Legal Framework for Asylum

Asylum is a form of discretionary relief under section 208 of the INA, 8 U.S.C. 1158, that precludes an alien from being subject to removal, creates a path to lawful permanent resident status and citizenship, and affords a variety of other benefits, such as allowing certain alien family members to obtain lawful immigration status derivatively. See R-S-C v. Sessions, 869 F.3d 1176, 1180 (10th Cir. 2017); see also, e.g., INA 208(c)(1)(A), (C), 8 U.S.C. 1158(c)(1)(A), (C) (asylees cannot be removed and can travel abroad with prior consent); INA 208(b)(3), 8 U.S.C. 1158(b)(3) (allowing derivative asylum for asylee's spouse and unmarried children); INA 209(b), 8 U.S.C. 1159(b) (allowing the Attorney General or Secretary to adjust the status of an asylee to that of a lawful permanent resident); INA 316(a), 8 U.S.C. 1427(a) (describing requirements for naturalization of lawful permanent residents). Aliens who are granted asylum are authorized to work in the United States and may receive certain financial assistance from the federal government. See INA 208(c)(1)(B), (d)(2), 8 U.S.C. 1158(c)(1)(B), (d)(2); 8 U.S.C. 1612(a)(2)(A), (b)(2)(A); 8 U.S.C. 1613(b)(1); 8 CFR 274a.12(a)(5); see also 8 CFR 274a.12(c)(8) (providing that asylum applicants may seek employment authorization 150 days after filing a complete application for asylum).

Aliens applying for asylum must establish that they meet the definition of a “refugee,” that they are not subject to a bar to the granting of asylum, and that they merit a favorable exercise of discretion. INA 208(b)(1), 240(c)(4)(A), 8 U.S.C. 1158(b)(1), 1229a(c)(4)(A); see Moncrieffe v. Holder, 569 U.S. 184, 187 (2013) (describing asylum as a form of “discretionary relief from removal”); Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir. 2007) (“Asylum is a discretionary form of relief . . . . Once an applicant has established eligibility . . . it remains within the Attorney General's discretion to deny asylum.”). Because asylum is a discretionary form of relief from removal, the alien bears the burden of showing both eligibility for asylum and why the Attorney General or Secretary should exercise discretion to grant relief. See INA 208(b)(1), 240(c)(4)(A), 8 U.S.C. 1158(b)(1), 1229a(c)(4)(A); Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004).

Section 208 of the INA provides that, in order to apply for asylum, an applicant must be “physically present” or “arriv[e]” in the United States, “whether or not at a designated port of arrival” and “irrespective of such alien's status”—but the applicant must also “apply for asylum in accordance with” the rest of section 208 or with the expedited-removal process in section 235 of the INA. INA 208(a)(1), 8 U.S.C. 1158(a)(1). Furthermore, to be granted asylum, the alien must demonstrate that he or she meets the statutory definition of a “refugee,” INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A), and is not subject to an exception or bar, INA 208(b)(2), 8 U.S.C. 1158(b)(2). The alien bears the burden of proof to establish that he or she meets these criteria. INA 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i); 8 CFR 1240.8(d).

For an alien to establish that he or she is a “refugee,” the alien generally must be someone who is outside of his or her country of nationality and “is unable or unwilling to return to . . . that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A).

In addition, if evidence indicates that one or more of the grounds for mandatory denial may apply, an alien must show that he or she does not fit within one of the statutory bars to granting asylum and is not subject to any “additional limitations and conditions . . . under which an alien shall be ineligible for asylum” established by a regulation that is “consistent with” section 208 of the INA. INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C); see 8 CFR 1240.8(d). The INA currently bars a grant of asylum to any alien: (1) Who “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of” a protected ground; (2) who, “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States”; (3) for whom there are serious reasons to believe the alien “has committed a serious nonpolitical crime outside the United States” prior to arrival in the United States; (4) for whom “there are reasonable grounds for regarding the alien as a danger to the security of the United States”; (5) who is described in the terrorism-related inadmissibility grounds, with limited exceptions; or (6) who “was firmly resettled in another country prior to arriving in the United States.” INA 208(b)(2)(A)(i)-(vi), 8 U.S.C. 1158(b)(2)(A)(i)-(vi).

An alien who falls within any of those bars is subject to mandatory denial of asylum. Where there is evidence that “one or more of the grounds for mandatory denial of the application for relief may apply,” the applicant in immigration court proceedings bears the burden of establishing that the bar at issue does not apply. 8 CFR 1240.8(d); see also, e.g., Rendon v. Mukasey, 520 F.3d 967, 973 (9th Cir. 2008) (applying 8 CFR 1240.8(d) in the context of the aggravated felony bar to asylum); Gao v. U.S. Att'y Gen., 500 F.3d 93, 98 (2d Cir. 2007) (applying 8 CFR 1240.8(d) in the context of the persecutor bar); Chen v. U.S. Att'y Gen., 513 F.3d 1255, 1257 (11th Cir. 2008) (same).

Because asylum is a discretionary benefit, aliens who are eligible for asylum are not automatically entitled to it. After demonstrating eligibility, aliens must further meet their burden of showing that the Attorney General or Secretary should exercise his or her discretion to grant asylum. See INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A) (the “Secretary of Homeland Security or the Attorney General may grant asylum to an alien” who applies in accordance with the required procedures and meets the definition of a “refugee”). The asylum statute's grant of discretion “is a broad delegation of power, which restricts the Attorney General's discretion to grant asylum only by requiring the Attorney General to first determine that the asylum applicant is a `refugee.'” Komarenko v. INS, 35 F.3d 432, 436 (9th Cir. 1994), overruled on other grounds by Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc) (per curiam). Immigration judges and asylum officers exercise that delegated discretion on a case-by-case basis. Under the Board's decision in Matter of Pula, 19 I&N Dec. 467 (BIA 1987), and its progeny, “an alien's manner of entry or attempted entry is a proper and relevant discretionary factor” and “circumvention of orderly refugee procedures” can be a “serious adverse factor” against exercising discretion to grant asylum, id. at 473, but “[t]he danger of persecution will outweigh all but the most egregious adverse factors,” Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996).

C. Establishing Bars to Asylum

The availability of asylum has long been qualified both by statutory bars and by administrative discretion to create additional bars. Those bars have developed over time in a back-and-forth process between Congress and the Attorney General. The original asylum provisions, as set out in the Refugee Act of 1980, Public Law 96-212, simply directed the Attorney General to “establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien's status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee” within the meaning of the title. See 8 U.S.C. 1158(a) (1982); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 427-29 (1987) (describing the 1980 provisions).

In the 1980 implementing regulations, the Attorney General, in his discretion, established several mandatory bars to granting asylum that were modeled on the mandatory bars to eligibility for withholding of deportation under the existing section 243(h) of the INA. See Refugee and Asylum Procedures, 45 FR 37392, 37392 (June 2, 1980) (“The application will be denied if the alien does not come within the definition of refugee under the Act, is firmly resettled in a third country, or is within one of the undesirable groups described in section 243(h) of the Act, e.g., having been convicted of a serious crime, constitutes a danger to the United States.”). Those regulations required denial of an asylum application if it was determined that (1) the alien was “not a refugee within the meaning of section 101(a)(42)” of the INA, 8 U.S.C. 1101(a)(42); (2) the alien had been “firmly resettled in a foreign country” before arriving in the United States; (3) the alien “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular group, or political opinion”; (4) the alien had “been convicted by a final judgment of a particularly serious crime” and therefore constituted “a danger to the community of the United States”; (5) there were “serious reasons for considering that the alien ha[d] committed a serious non-political crime outside the United States prior to the arrival of the alien in the United States”; or (6) there were “reasonable grounds for regarding the alien as a danger to the security of the United States.” See id. at 37394-95.

In 1990, the Attorney General substantially amended the asylum regulations while retaining the mandatory bars for aliens who persecuted others on account of a protected ground, were convicted of a particularly serious crime in the United States, firmly resettled in another country, or presented reasonable grounds to be regarded as a danger to the security of the United States. See Asylum and Withholding of Deportation Procedures, 55 FR 30674, 30683 (July 27, 1990); see also Yang v. INS, 79 F.3d 932, 936-39 (9th Cir. 1996) (upholding firm-resettlement bar); Komarenko, 35 F.3d at 436 (upholding particularly-serious-crime bar). In the Immigration Act of 1990, Public Law 101-649, Congress added an additional mandatory bar to applying for or being granted asylum for “[a]n[y] alien who has been convicted of an aggravated felony.” Public Law 101-649, sec. 515.

In IIRIRA and the Antiterrorism and Effective Death Penalty Act of 1996, Public Law 104-132, Congress amended the asylum provisions in section 208 of the INA, 8 U.S.C. 1158. Among other amendments, Congress created three exceptions to section 208(a)(1)'s provision that an alien may apply for asylum, for (1) aliens who can be removed to a safe third country pursuant to bilateral or multilateral agreement; (2) aliens who failed to apply for asylum within one year of arriving in the United States; and (3) aliens who have previously applied for asylum and had the application denied. Public Law 104-208, div. C, sec. 604(a); see INA 208(a)(2)(A)-(C), 8 U.S.C. 1158(a)(2)(A)-(C).

Congress also adopted six mandatory exceptions to the authority of the Attorney General or Secretary to grant asylum that largely reflect pre-existing bars set forth in the Attorney General's asylum regulations. These exceptions cover (1) aliens who “ordered, incited, or otherwise participated” in the persecution of others on account of a protected ground; (2) aliens convicted of a “particularly serious crime”; (3) aliens who committed a “serious nonpolitical crime outside the United States” before arriving in the United States; (4) aliens who are a “danger to the security of the United States”; (5) aliens who are inadmissible or removable under a set of specified grounds relating to terrorist activity; and (6) aliens who have “firmly resettled in another country prior to arriving in the United States.” Public Law 104-208, div. C, sec. 604(a); see INA 208(b)(2)(A)(i)-(vi), 8 U.S.C. 1158(b)(2)(A)(i)-(vi). Congress further added that aggravated felonies, defined in 8 U.S.C. 1101(a)(43), would be considered “particularly serious crime[s].” Public Law 104-208, div. C, sec. 604(a); see INA 201(a)(43), 8 U.S.C. 1101(a)(43).

Although Congress enacted specific exceptions, that statutory list is not exhaustive. Congress, in IIRIRA, expressly authorized the Attorney General to expand upon two of those exceptions—the bars for “particularly serious crimes” and “serious nonpolitical offenses.” While Congress prescribed that all aggravated felonies constitute particularly serious crimes, Congress further provided that the Attorney General may “designate by regulation offenses that will be considered” a “particularly serious crime” that “constitutes a danger to the community of the United States.” INA 208(b)(2)(A)(ii), (B)(ii), 8 U.S.C. 1158(b)(2)(A)(ii), (B)(ii). Courts and the Board have long held that this grant of authority also authorizes the Board to identify additional particularly serious crimes (beyond aggravated felonies) through case-by-case adjudication. See, e.g., Ali v. Achim, 468 F.3d 462, 468-69 (7th Cir. 2006); Delgado v. Holder, 648 F.3d 1095, 1106 (9th Cir. 2011) (en banc). Congress likewise authorized the Attorney General to designate by regulation offenses that constitute “a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States.” INA 208(b)(2)(A)(iii), (B)(ii), 8 U.S.C. 1158(b)(2)(A)(iii), (B)(ii). Although these provisions continue to refer only to the Attorney General, the Departments interpret these provisions to also apply to the Secretary of Homeland Security by operation of the Homeland Security Act of 2002. See 6 U.S.C. 552; 8 U.S.C. 1103(a)(1).

Congress further provided the Attorney General with the authority, by regulation, to “establish additional limitations and conditions, consistent with [section 208 of the INA], under which an alien shall be ineligible for asylum under paragraph (1).” INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). As the Tenth Circuit has recognized, “the statute clearly empowers” the Attorney General to “adopt[] further limitations” on asylum eligibility. R-S-C, 869 F.3d at 1187 & n.9. By allowing the imposition by regulation of “additional limitations and conditions,” the statute gives the Attorney General and the Secretary broad authority in determining what the “limitations and conditions” should be. The additional limitations on eligibility must be established “by regulation,” and must be “consistent with” the rest of section 208 of the INA. INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C).

Thus, the Attorney General in the past has invoked section 208(b)(2)(C) of the INA to limit eligibility for asylum based on a “fundamental change in circumstances” and on the ability of an applicant to safely relocate internally within the alien's country of nationality or of last habitual residence. See Asylum Procedures, 65 FR 76121, 76126 (Dec. 6, 2000). The courts have also viewed section 208(b)(2)(C) as conferring broad discretion, including to render aliens ineligible for asylum based on fraud. See R-S-C, 869 F.3d at 1187; Nijjar v. Holder, 689 F.3d 1077, 1082 (9th Cir. 2012) (noting that fraud can be “one of the `additional limitations . . . under which an alien shall be ineligible for asylum' that the Attorney General is authorized to establish by regulation”).

Section 208(d)(5) of the INA, 8 U.S.C. 1158(d)(5), also establishes certain procedures for consideration of asylum applications. But Congress specified that the Attorney General “may provide by regulation for any other conditions or limitations on the consideration of an application for asylum,” so long as those limitations are “not inconsistent with this chapter.” INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B).

In sum, the current statutory framework leaves the Attorney General (and, after the Homeland Security Act, the Secretary) significant discretion to adopt additional bars to asylum eligibility. Beyond providing discretion to further define particularly serious crimes and serious nonpolitical offenses, Congress has provided the Attorney General and Secretary with discretion to establish by regulation any additional limitations or conditions on eligibility for asylum or on the consideration of applications for asylum, so long as these limitations are consistent with the asylum statute.

D. Other Forms of Protection

Aliens who are not eligible to apply for or be granted asylum, or who are denied asylum on the basis of the Attorney General's or the Secretary's discretion, may nonetheless qualify for protection from removal under other provisions of the immigration laws. A defensive application for asylum that is submitted by an alien in removal proceedings is also deemed an application for statutory withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3). See 8 CFR 208.30(e)(2)-(4), 1208.3(b), 1208.16(a). An immigration judge may also consider an alien's eligibility for withholding and deferral of removal under regulations issued pursuant to the authority of the implementing legislation regarding Article 3 of the CAT. See Foreign Affairs Reform and Restructuring Act of 1998, Public Law 105-277, div. G, sec. 2242(b); 8 CFR 1208.3(b); see also 8 CFR 1208.16-1208.17.

These forms of protection bar an alien's removal to any country where the alien would “more likely than not” face persecution or torture, meaning that the alien would face a clear probability that his or her life or freedom would be threatened on account of a protected ground or a clear probability of torture. 8 CFR 1208.16(b)(2), (c)(2); see Kouljinski v. Keisler, 505 F.3d 534, 544-45 (6th Cir. 2007); Sulaiman v. Gonzales, 429 F.3d 347, 351 (1st Cir. 2005). Thus, if an alien proves that it is more likely than not that the alien's life or freedom would be threatened on account of a protected ground, but is denied asylum for some other reason—for instance, because of a statutory exception, an eligibility bar adopted by regulation, or a discretionary denial of asylum—the alien may be entitled to statutory withholding of removal if not otherwise barred for that form of protection. INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR 208.16, 1208.16; see also Garcia v. Sessions, 856 F.3d 27, 40 (1st Cir. 2017) (“[W]ithholding of removal has long been understood to be a mandatory protection that must be given to certain qualifying aliens, while asylum has never been so understood.”). Likewise, an alien who establishes that he or she will more likely than not face torture in the country of removal will qualify for CAT protection. See 8 CFR 208.16(c), 1208.16(c). But, unlike asylum, statutory withholding and CAT protection do not: (1) Prohibit the Government from removing the alien to a third country where the alien would not face the requisite probability of persecution or torture; (2) create a path to lawful permanent resident status and citizenship; or (3) afford the same ancillary benefits (such as protection for derivative family members). See R-S-C, 869 F.3d at 1180.

E. Implementation of Treaty Obligations

The framework described above is consistent with certain U.S. obligations under the 1967 Protocol Relating to the Status of Refugees (“Refugee Protocol”), which incorporates Articles 2 to 34 of the 1951 Convention Relating to the Status of Refugees (“Refugee Convention”), as well as U.S. obligations under Article 3 of the CAT. Neither the Refugee Protocol nor the CAT is self-executing in the United States. See Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 2009) (`[T]he [Refugee] Protocol is not self-executing.”); Auguste v. Ridge, 395 F.3d 123, 132 (3d Cir. 2005) (the CAT “was not self-executing”). These treaties are not directly enforceable in U.S. law, but some of the obligations they contain have been implemented through domestic implementing legislation. For example, the United States has implemented the non-refoulement provisions of these treaties—i.e., provisions prohibiting the return of an individual to a country where he or she would face persecution or torture—through the withholding of removal provisions at section 241(b)(3) of the INA and the CAT regulations, not through the asylum provisions at section 208 of the INA. See Cardoza-Fonseca, 480 U.S. at 440-41; Foreign Affairs Reform and Restructuring Act of 1998, Public Law 105-277, div. G, sec. 2242(b); 8 CFR 208.16(c), 208.17-208.18; 1208.16(c), 1208.17-1208.18. Limitations on the availability of asylum that do not affect the statutory withholding of removal or protection under the CAT regulations are consistent with these provisions. See R-S-C, 869 F.3d at 1188 & n.11; Cazun v. Att'y Gen., 856 F.3d 249, 257 & n.16 (3d Cir. 2017); Ramirez-Mejia v. Lynch, 813 F.3d 240, 241 (5th Cir. 2016).

Limitations on eligibility for asylum are also consistent with Article 34 of the Refugee Convention, concerning assimilation of refugees, as implemented by section 208 of the INA, 8 U.S.C. 1158. Section 208 of the INA reflects that Article 34 is precatory and not mandatory, and accordingly does not provide that all refugees shall receive asylum. See Cardoza-Fonseca, 480 U.S. at 441; Garcia, 856 F.3d at 42; Cazun, 856 F.3d at 257 & n. 16; Mejia v. Sessions, 866 F.3d 573, 588 (4th Cir. 2017); R-S-C, 869 F.3d at 1188; Ramirez-Mejia, 813 F.3d at 241. As noted above, Congress has long recognized the precatory nature of Article 34 by imposing various statutory exceptions and by authorizing the creation of new bars to asylum eligibility through regulation.

Courts have likewise rejected arguments that other provisions of the Refugee Convention require every refugee to receive asylum. Courts have held, in the context of upholding the bar on eligibility for asylum in reinstatement proceedings under section 241(a)(5) of the INA, 8 U.S.C. 1231(a)(5), that limiting the ability to apply for asylum does not constitute a prohibited “penalty” under Article 31(1) of the Refugee Convention. Cazun, 856 F.3d at 257 & n.16; Mejia, 866 F.3d at 588. Courts have also rejected the argument that Article 28 of the Refugee Convention, governing the issuance of international travel documents for refugees “lawfully staying” in a country's territory, mandates that every person who might qualify for statutory withholding must also be granted asylum. Garcia, 856 F.3d at 42; R-S-C, 869 F.3d at 1188.

IV. Regulatory Changes A. Limitation on Eligibility for Asylum for Aliens Who Contravene a Presidential Proclamation Under Section 212(f) or 215(a)(1) of the INA Concerning the Southern Border

Pursuant to section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C), the Departments are revising 8 CFR 208.13(c) and 8 CFR 1208.13(c) to add a new mandatory bar on eligibility for asylum for certain aliens who are subject to a presidential proclamation suspending or imposing limitations on their entry into the United States pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), or section 215(a)(1) of the INA, 8 U.S.C. 1185(a)(1), and who enter the United States in contravention of such a proclamation after the effective date of this rule. The bar would be subject to several further limitations: (1) The bar would apply only prospectively, to aliens who enter the United States after the effective date of such a proclamation; (2) the proclamation must concern entry at the southern border; and (3) the bar on asylum eligibility would not apply if the proclamation expressly disclaims affecting asylum eligibility for aliens within its scope, or expressly provides for a waiver or exception that entitles the alien to relief from the limitation on entry imposed by the proclamation.

The President has both statutory and inherent constitutional authority to suspend the entry of aliens into the United States when it is in the national interest. See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (“The exclusion of aliens is a fundamental act of sovereignty” that derives from “legislative power” and also “is inherent in the executive power to control the foreign affairs of the nation.”); see also Proposed Interdiction of Haitian Flag Vessels, 5 Op. O.L.C. 242, 244-45 (1981) (“[T]he sovereignty of the Nation, which is the basis of our ability to exclude all aliens, is lodged in both political branches of the government,” and even without congressional action, the President may “act[ ] to protect the United States from massive illegal immigration.”).

Congress, in the INA, has expressly vested the President with broad authority to restrict the ability of aliens to enter the United States. Section 212(f) states: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” 8 U.S.C. 1182(f). “By its plain language, [8 U.S.C.] § 1182(f) grants the President broad discretion to suspend the entry of aliens into the United States,” including the authority “to impose additional limitations on entry beyond the grounds for exclusion set forth in the INA.” Trump v. Hawaii, 138 S. Ct. 2392, 2408−12 (2018). For instance, the Supreme Court considered it “perfectly clear that 8 U.S.C. 1182(f) . . . grants the President ample power to establish a naval blockade that would simply deny illegal Haitian immigrants the ability to disembark on our shores,” thereby preventing them from entering the United States and applying for asylum. Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 187 (1993).

The President's broad authority under section 212(f) is buttressed by section 215(a)(1), which states it shall be unlawful “for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.” 8 U.S.C. 1185(a)(1). The presidential orders that the Supreme Court upheld in Sale were promulgated pursuant to both sections 212(f) and 215(a)(1)—see 509 U.S. at 172 & n.27; see also Exec. Order 12807 (May 24, 1992) (“Interdiction of Illegal Aliens”); Exec. Order 12324 (Sept. 29, 1981) (“Interdiction of Illegal Aliens”) (revoked and replaced by Exec. Order 12807)—as was the proclamation upheld in Trump v. Hawaii, see 138 S. Ct. at 2405. Other presidential orders have solely cited section 215(a)(1) as authority. See, e.g., Exec. Order 12172 (Nov. 26, 1979) (“Delegation of Authority With Respect to Entry of Certain Aliens Into the United States”) (invoking section 215(a)(1) with respect to certain Iranian visa holders).

An alien whose entry is suspended or limited by a proclamation is one whom the President has determined should not enter the United States, or only should do so under certain conditions. Such an order authorizes measures designed to prevent such aliens from arriving in the United States as a result of the President's determination that it would be against the national interest for them to do so. For example, the proclamation and order that the Supreme Court upheld in Sale, Proc. 4865 (Sept. 29, 1981) (“High Seas Interdiction of Illegal Aliens”); Exec. Order 12324, directed the Coast Guard to interdict the boats of tens of thousands of migrants fleeing Haiti to prevent them from reaching U.S. shores, where they could make claims for asylum. The order further authorized the Coast Guard to intercept any vessel believed to be transporting undocumented aliens to the United States, “[t]o make inquiries of those on board, examine documents, and take such actions as are necessary to carry out this order,” and “[t]o return the vessel and its passengers to the country from which it came, or to another country, when there is reason to believe that an offense is being committed against the United States immigration laws.” Exec. Order 12807, sec. 2(c).

An alien whose entry is suspended or restricted under such a proclamation, but who nonetheless reaches U.S. soil contrary to the President's determination that the alien should not be in the United States, would remain subject to various procedures under immigration laws. For instance, an alien subject to a proclamation who nevertheless entered the country in contravention of its terms generally would be placed in expedited-removal proceedings under section 235 of the INA, 8 U.S.C. 1225, and those proceedings would allow the alien to raise any claims for protection before being removed from the United States, if appropriate. Furthermore, the asylum statute provides that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival),” and “irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, [8 U.S.C.] 1225(b).” INA 208(a)(1), 8 U.S.C. 1158(a)(1). Some past proclamations have accordingly made clear that aliens subject to an entry bar may still apply for asylum if they have nonetheless entered the United States. See, e.g., Proc. 9645, sec. 6(e) (Sept. 24, 2017) (“Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”) (“Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.”).

As noted above, however, the asylum statute also authorizes the Attorney General and Secretary “by regulation” to “establish additional limitations and conditions, consistent with [section 208 of the INA], under which an alien shall be ineligible for asylum,” INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C), and to set conditions or limitations on the consideration of an application for asylum, INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B). The Attorney General and the Secretary have determined that this authority should be exercised to render ineligible for a grant of asylum any alien who is subject to a proclamation suspending or restricting entry along the southern border with Mexico, but who nonetheless enters the United States after such a proclamation goes into effect. Such an alien would have engaged in actions that undermine a particularized determination in a proclamation that the President judged as being required by the national interest: That the alien should not enter the United States.

The basis for ineligibility in these circumstances would be the Departments' conclusion that aliens who contravene such proclamations should not be eligible for asylum. Such proclamations generally reflect sensitive determinations regarding foreign relations and national security that Congress recognized should be entrusted to the President. See Trump v. Hawaii, 138 S. Ct. at 2411. Aliens who contravene such a measure have not merely violated the immigration laws, but have also undercut the efficacy of a measure adopted by the President based upon his determination of the national interest in matters that could have significant implications for the foreign affairs of the United States. For instance, previous proclamations were directed solely at Haitian migrants, nearly all of whom were already inadmissible by virtue of other provisions of the INA, but the proclamation suspended entry and authorized further measures to ensure that such migrants did not enter the United States contrary to the President's determination. See, e.g., Proc. 4865; Exec. Order 12807.

In the case of the southern border, a proclamation that suspended the entry of aliens who crossed between the ports of entry would address a pressing national problem concerning the immigration system and our foreign relations with neighboring countries. Even if most of those aliens would already be inadmissible under our laws, the proclamation would impose limitations on entry for the period of the suspension against a particular class of aliens defined by the President. That judgment would reflect a determination that certain illegal entrants—namely, those crossing between the ports of entry on the southern border during the duration of the proclamation—were a source of particular concern to the national interest. Furthermore, such a proclamation could authorize additional measures to prevent the entry of such inadmissible aliens, again reflecting the national concern with this subset of inadmissible aliens. The interim final rule reflects the Departments' judgment that, under the extraordinary circumstances presented here, aliens crossing the southern border in contravention of such a proclamation should not be eligible for a grant of asylum during the period of suspension or limitation on entry. The result would be to channel to ports of entry aliens who seek to enter the United States and assert an intention to apply for asylum or a fear of persecution, and to provide for consideration of those statements there.

Significantly, this bar to eligibility for a grant of asylum would be limited in scope. This bar would apply only prospectively. This bar would further apply only to a proclamation concerning entry along the southern border, because this interim rule reflects the need to facilitate urgent action to address current conditions at that border. This bar would not apply to any proclamation that expressly disclaimed an effect on eligibility for asylum. And this bar would not affect an applicant who is granted a waiver or is excepted from the suspension under the relevant proclamation, or an alien who did not at any time enter the United States after the effective date of such proclamation.

Aliens who enter in contravention of a proclamation will not, however, overcome the eligibility bar merely because a proclamation has subsequently ceased to have effect. The alien still would have entered notwithstanding a proclamation at the time the alien entered the United States, which would result in ineligibility for asylum (but not for statutory withholding or for CAT protection). Retaining eligibility for asylum for aliens who entered the United States in contravention of the proclamation, but evaded detection until it had ceased, could encourage aliens to take riskier measures to evade detection between ports of entry, and would continue to stretch government resources dedicated to apprehension efforts.

This restriction on eligibility to asylum is consistent with section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1). The regulation establishes a condition on asylum eligibility, not on the ability to apply for asylum. Compare INA 208(a), 8 U.S.C. 1158(a) (describing conditions for applying for asylum), with INA 208(b), 8 U.S.C. 1158(b) (identifying exceptions and bars to granting asylum). And, as applied to a proclamation that suspends the entry of aliens who crossed between the ports of entry at the southern border, the restriction would not preclude an alien physically present in the United States from being granted asylum if the alien arrives in the United States through any border other than the southern land border with Mexico or at any time other than during the pendency of a proclamation suspending or limiting entry.

B. Screening Procedures in Expedited Removal for Aliens Subject to Proclamations

The rule would also modify certain aspects of the process for screening claims for protection asserted by aliens who have entered in contravention of a proclamation and who are subject to expedited removal under INA 235(b)(1), 8 U.S.C. 1225(b)(1). Under current procedures, aliens who unlawfully enter the United States may avoid being removed on an expedited basis by making a threshold showing of a credible fear of persecution at a initial screening interview. At present, those aliens are often released into the interior of the United States pending adjudication of such claims by an immigration court in section 240 proceedings especially if those aliens travel as family units. Once an alien is released, adjudications can take months or years to complete because of the increasing volume of claims and the need to expedite cases in which aliens have been detained. The Departments expect that a substantial proportion of aliens subject to an entry proclamation concerning the southern border would be subject to expedited removal, since approximately 234,534 aliens in FY 2018 who presented at a port of entry or were apprehended at the border were referred to expedited-removal proceedings.1 The procedural changes within expedited removal would be confined to aliens who are ineligible for asylum because they are subject to a regulatory bar for contravening an entry proclamation.

1 As noted below, in FY 2018, approximately 171,511 aliens entered illegally between ports of entry, were apprehended by CBP, and were placed in expedited removal. Approximately 59,921 inadmissible aliens arrived at ports of entry and were placed in expedited removal. Furthermore, ICE arrested some 3,102 aliens and placed them in expedited removal.

1. Under existing law, expedited-removal procedures—streamlined procedures for expeditiously reviewing claims and removing certain aliens—apply to those individuals who arrive at a port of entry or those who have entered illegally and are encountered by an immigration officer within 100 miles of the border and within 14 days of entering. See INA 235(b), 8 U.S.C. 1225(b); Designating Aliens For Expedited Removal, 69 FR 48877, 48880 (Aug. 11, 2004). To be subject to expedited removal, an alien must also be inadmissible under INA 212(a)(6)(C) or (a)(7), 8 U.S.C. 1182(a)(6)(C) or (a)(7), meaning that the alien has either tried to procure documentation through misrepresentation or lacks such documentation altogether. Thus, an alien encountered in the interior of the United States who entered in contravention of a proclamation and who is not otherwise amenable to expedited removal would be placed in proceedings under section 240 of the INA. The interim rule does not invite comment on existing regulations implementing the present scope of expedited removal.

Section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), prescribes procedures in the expedited-removal context for screening an alien's eligibility for asylum. When these provisions were being debated in 1996, legislators expressed particular concern that “[e]xisting procedures to deny entry to and to remove illegal aliens from the United States are cumbersome and duplicative,” and that “[t]he asylum system has been abused by those who seek to use it as a means of `backdoor' immigration.” See H.R. Rep. No. 104-469, pt. 1, at 107 (1996). Members of Congress accordingly described the purpose of expedited removal and related procedures as “streamlin[ing] rules and procedures in the Immigration and Nationality Act to make it easier to deny admission to inadmissible aliens and easier to remove deportable aliens from the United States.” Id. at 157; see Am. Immigration Lawyers Ass'n v. Reno, 18 F. Supp. 2d 38, 41 (D.D.C. 1998), aff'd, 199 F.3d 1352 (DC Cir. 2000) (rejecting several constitutional challenges to IIRIRA and describing the expedited-removal process as a “summary removal process for adjudicating the claims of aliens who arrive in the United States without proper documentation”).

Congress thus provided that aliens “inadmissible under [8 U.S.C.] 1182(a)(6)(C) or 1182(a)(7)” shall be “removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under [8 U.S.C. 1158] or a fear of persecution.” INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i); see INA 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii) (such aliens shall be referred “for an interview by an asylum officer”). On its face, the statute refers only to proceedings to establish eligibility for an affirmative grant of asylum and its attendant benefits, not to statutory withholding of removal or CAT protection against removal to a particular country.

An alien referred for a credible-fear interview must demonstrate a “credible fear,” defined as a “significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under [8 U.S.C. 1158].” INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). According to the House report, “[t]he credible-fear standard [wa]s designed to weed out non-meritorious cases so that only applicants with a likelihood of success will proceed to the regular asylum process.” H.R. Rep. No. 104-69, at 158.

If the asylum officer determines that the alien lacks a credible fear, then the alien may request review by an immigration judge. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). If the immigration judge concurs with the asylum officer's negative credible-fear determination, then the alien shall be removed from the United States without further review by either the Board or the courts. INA 235(b)(1)(B)(iii)(I), (b)(1)(C), 8 U.S.C. 1225(b)(1)(B)(iii)(I), (b)(1)(C); INA 242(a)(2)(A)(iii), (e)(5), 8 U.S.C. 1252(a)(2)(A)(iii), (e)(5); Pena v. Lynch, 815 F.3d 452, 457 (9th Cir. 2016). By contrast, if the asylum officer or immigration judge determines that the alien has a credible fear—i.e., “a significant possibility . . . that the alien could establish eligibility for asylum,” INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v)—then the alien, under current regulations, is placed in section 240 proceedings for a full hearing before an immigration judge, with appeal available to the Board and review in the federal courts of appeals, see INA 235(b)(1)(B)(ii), (b)(2)(A), 8 U.S.C. 1225(b)(1)(B)(ii), (b)(2)(A); INA 242(a), 8 U.S.C. 1252(a); 8 CFR 208.30(e)(5), 1003.1. The interim rule does not invite comment on existing regulations implementing this framework.

By contrast, section 235 of the INA is silent regarding procedures for the granting of statutory withholding of removal and CAT protection; indeed, section 235 predates the legislation directing implementation of U.S. obligations under Article 3 of the CAT. See Foreign Affairs Reform and Restructuring Act of 1998, Public Law 105-277, sec. 2242(b) (requiring implementation of CAT); IIRIRA, Public Law 104-208, sec. 302 (revising section 235 of the INA to include procedures for dealing with inadmissible aliens who intend to apply for asylum). The legal standards for ultimately granting asylum on the merits versus statutory withholding or CAT protection are also different. Asylum requires an applicant to ultimately establish a “well-founded fear” of persecution, which has been interpreted to mean a “reasonable possibility” of persecution—a “more generous” standard than the “clear probability” of persecution or torture standard that applies to statutory withholding or CAT protection. See INS v. Stevic, 467 U.S. 407, 425, 429-30 (1984); Santosa v. Mukasey, 528 F.3d 88, 92 & n.1 (1st Cir. 2008); compare 8 CFR 1208.13(b)(2)(i)(B) with 8 CFR 1208.16(b)(2), (c)(2). As a result, applicants who establish eligibility for asylum are not necessarily eligible for statutory withholding or CAT protection.

Current regulations instruct USCIS adjudicators and immigration judges to treat an alien's request for asylum in expedited-removal proceedings under section 1225(b) as a request for statutory withholding and CAT protection as well. See 8 CFR 208.3(b), 208.30(e)(2)-(4), 1208.3(b), 1208.16(a). In the context of expedited-removal proceedings, “credible fear of persecution” is defined to mean a “significant possibility” that the alien “could establish eligibility for asylum under section 1158,” not CAT or statutory withholding. INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). Regulations nevertheless have generally provided that aliens in expedited removal should be subject to the same process for considering statutory withholding of removal claims under INA 241(b)(3), 8 U.S.C. 1231(b)(3), and claims for protection under the CAT, as they are for asylum claims. See 8 CFR 208.30(e)(2)-(4).

Thus, when the Immigration and Naturalization Service provided for claims for statutory withholding of removal and CAT protection to be considered in the same expedited-removal proceedings as asylum, the result was that if an alien showed that there was a significant possibility of establishing eligibility for asylum and was therefore referred for removal proceedings under section 240 of the INA, any potential statutory withholding and CAT claims the alien might have were referred as well. This was done on the assumption that that it would not “disrupt[ ] the streamlined process established by Congress to circumvent meritless claims.” Regulations Concerning the Convention Against Torture, 64 FR 8478, 8485 (Feb. 19, 1999). But while the INA authorizes the Attorney General and Secretary to provide for consideration of statutory withholding and CAT claims together with asylum claims or other matters that may be considered in removal proceedings, the INA does not require that approach, see Foti v. INS, 375 U.S. 217, 229-30 & n.16 (1963), or that they be considered in the same way.

Since 1999, regulations also have provided for a distinct “reasonable fear” screening process for certain aliens who are categorically ineligible for asylum and can thus make claims only for statutory withholding or CAT protections. See 8 CFR 208.31. Specifically, if an alien is subject to having a previous order of removal reinstated or is a non-permanent resident alien subject to an administrative order of removal resulting from an aggravated felony conviction, then he is categorically ineligible for asylum. See id. § 208.31(a), (e). Such an alien can be placed in withholding-only proceedings to adjudicate his statutory withholding or CAT claims, but only if he first establishes a “reasonable fear” of persecution or torture through a screening process that tracks the credible-fear process. See id. § 208.31(c), (e). Reasonable fear is defined by regulation to mean a “reasonable possibility that [the alien] would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion, or a reasonable possibility that he or she would be tortured in the country of removal.” Id. § 208.31(c). “This . . . screening process is modeled on the credible-fear screening process, but requires the alien to meet a higher screening standard.” Regulations Concerning the Convention Against Torture, 64 FR at 8485; see also Garcia v. Johnson, No. 14-CV-01775, 2014 WL 6657591, at *2 (N.D. Cal. Nov. 21, 2014) (describing the aim of the regulations as providing “fair and efficient procedures” in reasonable-fear screening that would comport with U.S. international obligations).

Significantly, when establishing the reasonable-fear screening process, DOJ explained that the two affected categories of aliens should be screened based on the higher reasonable-fear standard because, “[u]nlike the broad class of arriving aliens who are subject to expedited removal, these two classes of aliens are ineligible for asylum,” and may be entitled only to statutory withholding of removal or CAT protection. Regulations Concerning the Convention Against Torture, 64 FR at 8485. “Because the standard for showing entitlement to these forms of protection (a probability of persecution or torture) is significantly higher than the standard for asylum (a well-founded fear of persecution), the screening standard adopted for initial consideration of withholding and deferral requests in these contexts is also higher.” Id.

2. Drawing on the established framework for considering whether to grant withholding of removal or CAT protection in the reasonable-fear context, this interim rule establishes a bifurcated screening process for aliens subject to expedited removal who are ineligible for asylum by virtue of entering in contravention of a proclamation, but who express a fear of return or seek statutory withholding or CAT protection. The Attorney General and Secretary have broad authority to implement the immigration laws, see INA 103, 8 U.S.C. 1103, including by establishing regulations, see INA 103, 8 U.S.C. 1103(a)(3), and to regulate “conditions or limitations on the consideration of an application for asylum,” id. 1158(d)(5)(B). Furthermore, the Secretary has the authority—in her “sole and unreviewable discretion,” the exercise of which may be “modified at any time”—to designate additional categories of aliens that will be subject to expedited-removal procedures, so long as the designated aliens have not been admitted or paroled nor continuously present in the United States for two years. INA 235(b)(1)(A)(iii), 8 U.S.C. 1225(b)(1)(A)(iii). The Departments have frequently invoked these authorities to establish or modify procedures affecting aliens in expedited-removal proceedings, as well as to adjust the categories of aliens subject to particular procedures within the expedited-removal framework.2

2See, e.g., Eliminating Exception to Expedited Removal Authority for Cuban Nationals Arriving by Air, 82 FR 4769 (Jan. 17, 2017); Designating Aliens For Expedited Removal, 69 FR 48877; Implementation of the Agreement Between the Government of the United States of America and the Government of Canada Regarding Asylum Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR 10620 (March 8, 2004); New Rules Regarding Procedures for Asylum and Withholding of Removal, 63 FR 31945 (June 11, 1998); Asylum Procedures, 65 FR 76121; Regulations Concerning the Convention Against Torture, 64 FR 8478 (Feb. 19, 1999).

This rule does not change the credible-fear standard for asylum claims, although the regulation would expand the scope of the inquiry in the process. An alien who is subject to a relevant proclamation and nonetheless has entered the United States after the effective date of such a proclamation in contravention of that proclamation would be ineligible for asylum and would thus not be able to establish a “significant possibility . . . [of] eligibility for asylum under section 1158.” INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). As current USCIS guidance explains, under the credible-fear standard, “[a] claim that has no possibility, or only a minimal or mere possibility, of success, would not meet the `significant possibility' standard.” USCIS, Office of Refugee, Asylum, & Int'l Operations, Asylum Div., Asylum Officer Basic Training Course, Lesson Plan on Credible Fear at 15 (Feb. 13, 2017). Consistent with section 235(b)(1)(B)(iii)(III) of the INA, the alien could still obtain review from an immigration judge regarding whether the asylum officer correctly determined that the alien was subject to a limitation or suspension on entry imposed by a proclamation. Further, consistent with section 235(b)(1)(B) of the INA, if the immigration judge reversed the asylum officer's determination, the alien could assert the asylum claim in section 240 proceedings.

Aliens determined to be ineligible for asylum by virtue of contravening a proclamation, however, would still be screened, but in a manner that reflects that their only viable claims would be for statutory withholding or CAT protection pursuant to 8 CFR 208.30(e)(2)-(4) and 1208.16(a). After determining the alien's ineligibility for asylum under the credible-fear standard, the asylum officer would apply the long-established reasonable-fear standard to assess whether further proceedings on a possible statutory withholding or CAT protection claim are warranted. If the asylum officer determined that the alien had not established the requisite reasonable fear, the alien then could seek review of that decision from an immigration judge (just as the alien may under existing 8 CFR 208.30 and 208.31), and would be subject to removal only if the immigration judge agreed with the negative reasonable-fear finding. Conversely, if either the asylum officer or the immigration judge determined that the alien cleared the reasonable-fear threshold, the alien would be put in section 240 proceedings, just like aliens who receive a positive credible-fear determination for asylum. Employing a reasonable-fear standard in this context, for this category of ineligible aliens, would be consistent with the Department of Justice's longstanding rationale that “aliens ineligible for asylum,” who could only be granted statutory withholding of removal or CAT protection, should be subject to a different screening standard that would correspond to the higher bar for actually obtaining these forms of protection. See Regulations Concerning the Convention Against Torture, 64 FR at 8485 (“Because the standard for showing entitlement to these forms of protection . . . is significantly higher than the standard for asylum . . . the screening standard adopted for initial consideration of withholding and deferral requests in these contexts is also higher.”).

The screening process established by the interim rule will accordingly proceed as follows. For an alien subject to expedited removal, DHS will ascertain whether the alien seeks protection, consistent with INA 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). All aliens seeking asylum, statutory withholding of removal, or CAT protection will continue to go before an asylum officer for screening, consistent with INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B). The asylum officer will ask threshold questions to elicit whether an alien is ineligible for a grant of asylum pursuant to a proclamation entry bar. If there is a significant possibility that the alien is not subject to the eligibility bar (and the alien otherwise demonstrates sufficient facts pertaining to asylum eligibility), then the alien will have established a credible fear.

If, however, an alien lacks a significant possibility of eligibility for asylum because of the proclamation bar, then the asylum officer will make a negative credible-fear finding. The asylum officer will then apply the reasonable-fear standard to assess the alien's claims for statutory withholding of removal or CAT protection.

An alien subject to the proclamation-based asylum bar who clears the reasonable-fear screening standard will be placed in section 240 proceedings, just as an alien who clears the credible-fear standard will be. In those proceedings, the alien will also have an opportunity to raise whether the alien was correctly identified as subject to the proclamation ineligibility bar to asylum, as well as other claims. If an immigration judge determines that the alien was incorrectly identified as subject to the proclamation, the alien will be able to apply for asylum. Such aliens can appeal the immigration judge's decision in these proceedings to the BIA and then seek review from a federal court of appeals.

Conversely, an alien who is found to be subject to the proclamation asylum bar and who does not clear the reasonable-fear screening standard can obtain review of both of those determinations before an immigration judge, just as immigration judges currently review negative credible-fear and reasonable-fear determinations. If the immigration judge finds that either determination was incorrect, then the alien will be placed into section 240 proceedings. In reviewing the determinations, the immigration judge will decide de novo whether the alien is subject to the proclamation asylum bar. If, however, the immigration judge affirms both determinations, then the alien will be subject to removal without further appeal, consistent with the existing process under section 235 of the INA. In short, aliens subject to the proclamation eligibility bar to asylum will be processed through existing procedures by DHS and EOIR in accordance with 8 CFR 208.30 and 1208.30, but will be subject to the reasonable-fear standard as part of those procedures with respect to their statutory withholding and CAT protection claims.3

3 Nothing about this screening process or in this interim rule would alter the existing procedures for processing alien stowaways under the INA and associated regulations. An alien stowaway is unlikely to be subject to 8 CFR 208.13(c)(3) and 1208.13(c)(3) unless a proclamation specifically applies to stowaways or to entry by vessels or aircraft. INA 101(a)(49), 8 U.S.C. 1101(a)(49). Moreover, an alien stowaway is barred from being placed into section 240 proceedings regardless of the level of fear of persecution he establishes. INA 235(a)(2), 8 U.S.C. 1225(a)(2). Similarly, despite the incorporation of a reasonable-fear standard into the evaluation of certain cases under credible-fear procedures, nothing about this screening process or in this interim rule implicates existing reasonable-fear procedures in 8 CFR 208.31 and 1208.31.

2. The above process will not affect the process in 8 CFR 208.30(e)(5) for certain existing statutory bars to asylum eligibility. Under that regulatory provision, many aliens who appear to fall within an existing statutory bar, and thus appear to be ineligible for asylum, can nonetheless be placed in section 240 proceedings if they are otherwise eligible for asylum and obtain immigration judge review of their asylum claims, followed by further review before the BIA and the courts of appeals. Specifically, with the exceptions of stowaways and aliens entering from Canada at a port of entry (who are generally ineligible to apply for asylum by virtue of a safe-third-country agreement), 8 CFR 208.30(e)(5) provides that “if an alien is able to establish a credible fear of persecution or torture but appears to be subject to one or more of the mandatory bars to applying for, or being granted, asylum contained in section 208(a)(2) and 208(b)(2) of the [INA] . . . [DHS] shall nonetheless place the alien in proceedings under section 240 of the [INA] for full consideration of the alien's claim.”

The language providing that the agency “shall nonetheless place the alien in proceedings under section 240 of the [INA]” was promulgated in 2000 in a final rule implementing asylum procedures after the 1996 enactment of IIRIRA. See Asylum Procedures, 65 FR at 76137. The explanation for this change was that some commenters suggested that aliens should be referred to section 240 proceedings “regardless of any apparent statutory ineligibility under section 208(a)(2) or 208(b)(2)(A) of the [INA]. The Department has adopted that suggestion and has so amended the regulation.” Id. at 76129.

This rule will avoid a textual ambiguity in 8 CFR 208.30(e)(5), which is unclear regarding its scope, by adding a new sentence clarifying the process applicable to an alien barred under a covered proclamation. See 8 CFR 208.30(e)(5) (referring to an alien who “appears to be subject to one or more of the mandatory bars to . . . asylum contained in section 208(a)(2) and 208(b)(2) of the [INA]”). By using a definite article (“the mandatory bars to . . . asylum”) and the phrase “contained in,” 8 CFR 208.30(e)(5) may refer only to aliens who are subject to the defined mandatory bars “contained in” specific parts of section 208 of the INA, such as the bar for aggravated felons, INA 208(b)(2)(B)(i), 8 U.S.C. 1558(b)(2)(B)(i), or the bar for aliens reasonably believed to be a danger to U.S. security, INA 208(b)(2)(A)(iv), 8 U.S.C. 1158(b)(2)(A)(iv). It is thus not clear whether an alien subject to a further limitation or condition on asylum eligibility adopted pursuant to section 208(b)(2)(C) of the INA would also be subject to the procedures set forth in 8 CFR 208.30(e)(5). Notably, the preamble to the final rule adopting 8 CFR 208.30(e)(5) indicated that it was intended to apply to “any apparent statutory ineligibility under section 208(a)(2) or 208(b)(2)(A) of the [INA],” and did not address future regulatory ineligibility under section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C). Asylum Procedures, 65 FR at 76129. This rule does not resolve that question, however, but instead establishes an express regulatory provision dealing specifically with aliens subject to a limitation under section 212(f) or 215(a)(1) of the INA.

C. Anticipated Effects of the Rule

1. The interim rule aims to address an urgent situation at the southern border. In recent years, there has been a significant increase in the number and percentage of aliens who seek admission or unlawfully enter the United States and then assert an intent to apply for asylum or a fear of persecution. The vast majority of such assertions for protection occur in the expedited-removal context, and the rates at which such aliens receive a positive credible-fear determination have increased in the last five years. Having passed through the credible-fear screening process, many of these aliens are released into the interior to await further section 240 removal proceedings. But many aliens who pass through the credible-fear screening thereafter do not pursue their claims for asylum. Moreover, a substantial number fail to appear for a section 240 proceeding. And even aliens who passed through credible-fear screening and apply for asylum are granted it at a low rate.

Recent numbers illustrate the scope and scale of the problems caused by the disconnect between the number of aliens asserting a credible fear and the number of aliens who ultimately are deemed eligible for, and granted, asylum. In FY 2018, DHS identified some 612,183 inadmissible aliens who entered the United States, of whom 404,142 entered unlawfully between ports of entry and were apprehended by CBP, and 208,041 presented themselves at ports of entry. Those numbers exclude the inadmissible aliens who crossed but evaded detection, and interior enforcement operations conducted by U.S. Immigration and Customs Enforcement (“ICE”). The vast majority of those inadmissible aliens—521,090—crossed the southern border. Approximately 98% (396,579) of all aliens apprehended after illegally crossing between ports of entry made their crossings at the southern border, and 76% of all encounters at the southern border reflect such apprehensions. By contrast, 124,511 inadmissible aliens presented themselves at ports of entry along the southern border, representing 60% of all port traffic for inadmissible aliens and 24% of encounters with inadmissible aliens at the southern border.

Nationwide, DHS has preliminarily calculated that throughout FY 2018, approximately 234,534 aliens who presented at a port of entry or were apprehended at the border were referred to expedited-removal proceedings. Of that total, approximately 171,511 aliens were apprehended crossing between ports of entry; approximately 59,921 were inadmissible aliens who presented at ports of entry; and approximately 3,102 were arrested by ICE and referred to expedited removal.4 The total number of aliens of all nationalities referred to expedited-removal proceedings has significantly increased over the last decade, from 161,516 aliens in 2008 to approximately 234,534 in FY 2018 (an overall increase of about 45%). Of those totals, the number of aliens from the Northern Triangle referred to expedited-removal proceedings has increased from 29,206 in FY 2008 (18% of the total 161,516 aliens referred) to approximately 103,752 in FY 2018 (44% of the total approximately 234,534 aliens referred, an increase of over 300%). In FY 2018, nationals of the Northern Triangle represented approximately 103,752 (44%) of the aliens referred to expedited-removal proceedings; approximately 91,235 (39%) were Mexican; and nationals from other countries made up the remaining balance (17%). As of the date of this rule, final expedited-removal statistics for FY 2018 specific to the southern border are not available. But the Departments' experience with immigration enforcement has demonstrated that the vast majority of expedited-removal actions have also occurred along the southern border.

4 All references to the number of aliens subject to expedited removal in FY 2018 reflect data for the first three quarters of the year and projections for the fourth quarter of FY 2018. It is unclear whether the ICE arrests reflect additional numbers of aliens processed at ports of entry. Another approximately 130,211 aliens were subject to reinstatement, meaning that the alien had previously been removed and then unlawfully entered the United States again. The vast majority of reinstatements involved Mexican nationals. Aliens subject to reinstatement who express a fear of persecution or torture receive reasonable-fear determinations under 8 CFR 208.31.

Once in expedited removal, some 97,192 (approximately 41% of all aliens in expedited removal) were referred for a credible-fear interview with an asylum officer, either because they expressed a fear of persecution or torture or an intent to apply for protection. Of that number, 6,867 (7%) were Mexican nationals, 25,673 (26%) were Honduran, 13,433 (14%) were Salvadoran, 24,456 (25%) were Guatemalan, and other nationalities made up the remaining 28% (the largest proportion of which were 7,761 Indian nationals).

In other words: Approximately 61% of aliens from Northern Triangle countries placed in expedited removal expressed the intent to apply for asylum or a fear of persecution and triggered credible-fear proceedings in FY 2018 (approximately 69% of Hondurans, 79% of Salvadorans, and 49% of Guatemalans). These aliens represented 65% of all credible-fear referrals in FY 2018. By contrast, only 8% of aliens from Mexico trigger credible-fear proceedings when they are placed in expedited removal, and Mexicans represented 7% of all credible-fear referrals. Other nationalities compose the remaining 26,763 (28%) referred for credible-fear interviews.

Once these 97,192 aliens were interviewed by an asylum officer, 83,862 cases were decided on the merits (asylum officers closed the others).5 Those asylum officers found a credible fear in 89% (74,574) of decided cases—meaning that almost all of those aliens' cases were referred on for further immigration proceedings under section 240, and many of the aliens were released into the interior while awaiting those proceedings.6 As noted, nationals of Northern Triangle countries represent the bulk of credible-fear referrals (65%, or 63,562 cases where the alien expressed an intent to apply for asylum or asserted a fear). In cases where asylum officers decided whether nationals of these countries had a credible fear, they received a positive credible-fear finding 88% of the time.7 Moreover, when aliens from those countries sought review of negative findings by an immigration judge, they obtained reversals approximately 18% of the time, resulting in some 47,507 cases in which nationals of Northern Triangle countries received positive credible-fear determinations.8 In other words: Aliens from Northern Triangle countries ultimately received a positive credible-fear determination 89% of the time. Some 6,867 Mexican nationals were interviewed; asylum officers gave them a positive credible-fear determination in 81% of decided cases (4,261), and immigration judges reversed an additional 91 negative credible-fear determinations, resulting in some 4,352 cases (83% of cases decided on the merits) in which Mexican nationals were referred to section 240 proceedings after receiving a positive credible-fear determination.

5 DHS sometimes calculates credible-fear grant rates as a proportion of all cases (positive, negative, and closed cases). Because this rule concerns the merits of the screening process and closed cases are not affected by that process, this preamble discusses the proportions of determinations on the merits when describing the credible-fear screening process. This preamble does, however, account for the fact that some proportion of closed cases are also sent to section 240 proceedings when discussing the number of cases that immigration judges completed involving aliens referred for a credible-fear interview while in expedited-removal proceedings.

6 Stowaways are the only category of aliens who would receive a positive credible-fear determination and go to asylum-only proceedings, as opposed to section 240 proceedings, but the number of stowaways is very small. Between FY 2013 and FY 2017, an average of roughly 300 aliens per year were placed in asylum-only proceedings, and that number includes not only stowaways but all classes of aliens subject to asylum-only proceedings. 8 CFR 1208.2(c)(1) (describing 10 categories of aliens, including stowaways found to have a credible fear, who are subject to asylum-only proceedings).

7 Asylum officers decided 53,205 of these cases on the merits and closed the remaining 10,357 (but sent many of the latter to section 240 proceedings). Specifically, 25,673 Honduran nationals were interviewed; 21,476 of those resulted in a positive screening on the merits, 2,436 received a negative finding, and 1,761 were closed—meaning that 90% of all Honduran cases involving a merits determination resulted in a positive finding, and 10% were denied. Some 13,433 Salvadoran nationals were interviewed; 11,034 of those resulted in a positive screening on the merits 1,717 were denied, and 682 were closed—meaning that 86% of all Salvadoran cases involving a merits determination resulted in a positive finding, and 14% were denied. Some 24,456 Guatemalan nationals were interviewed; 14,183 of those resulted in a positive screening on the merits, 2,359 were denied, and 7,914 were closed—meaning that 86% of all Guatemalan cases involving a merits determination resulted in a positive finding, and 14% were denied. Again, the percentages exclude closed cases so as to describe how asylum officers make decisions on the merits.

8 Immigration judges in 2018 reversed 18% (288) of negative credible-fear determinations involving Hondurans, 19% (241) of negative credible-fear determinations involving Salvadorans, and 17% (285) of negative credible-fear determinations involving Guatemalans.

These figures have enormous consequences for the asylum system writ large. Asylum officers and immigration judges devote significant resources to these screening interviews, which the INA requires to happen within a fixed statutory timeframe. These aliens must also be detained during the pendency of expedited-removal proceedings. See INA 235(b), 8 U.S.C. 1225(b); Jennings v. Rodriguez, 138 S. Ct. 830, 834 (2018). And assertions of credible fear in expedited removal have rapidly grown in the last decade—especially in the last five years. In FY 2008, for example, fewer than 5,000 aliens were in expedited removal (5%) and were thus referred for a credible-fear interview. In FY 2014, 51,001 referrals occurred (representing 21% of aliens in expedited removal). The credible-fear referral numbers today reflect a 190% increase from FY 2014 and a nearly 2000% increase from FY 2008. Furthermore, the percentage of cases in which asylum officers found that aliens had established a credible fear—leading to the aliens being placed in section 240 removal proceedings—has also increased in recent years. In FY 2008, asylum officers found a credible fear in about 3,200 (or 77%) of all cases. In FY 2014, asylum officers found a credible fear in about 35,000 (or 80%) of all cases in which they made a determination. And in FY 2018, asylum officers found a credible fear in nearly 89% of all such cases.

Once aliens are referred for section 240 proceedings, their cases may take months or years to adjudicate due to backlogs in the system. As of November 2, 2018, there were approximately 203,569 total cases pending in the immigration courts that originated with a credible-fear referral—or 26% of the total backlog of 791,821 removal cases. Of that number, 136,554 involved nationals of Northern Triangle countries (39,940 cases involving Hondurans; 59,702 involving Salvadoran nationals; 36,912 involving Guatemalan nationals). Another 10,736 cases involved Mexican nationals.

In FY 2018, immigration judges completed 34,158 total cases that originated with a credible-fear referral. 9 Those aliens were likely referred for credible-fear screening between 2015 and 2018; the vast majority of these cases arose from positive credible-fear determinations as opposed to the subset of cases that were closed in expedited removal and referred for section 240 proceedings. In a significant proportion of these cases, the aliens did not appear for section 240 proceedings or did not file an application for asylum in connection with those proceedings. In FY 2018, of the 34,158 completions that originated with a credible-fear referral, 24,361 (71%) were completed by an immigration judge with the issuance of an order of removal. Of those completed cases, 10,534 involved in absentia removal orders, meaning that in approximately 31% of all initial completions in FY 2018 that originated from a credible-fear referral, the alien failed to appear at a hearing. Moreover, of those 10,534 cases, there were 1,981 cases where an asylum application was filed, meaning 8,553 did not file an asylum application and failed to appear at a hearing. Further, 40% of all initial completions originating with a credible-fear referral (or 13,595 cases, including the 8,553 aliens just discussed) were completed in FY 2018 without an alien filing an application for asylum. In short, in nearly half of the cases completed by an immigration judge in FY 2018 involving aliens who passed through a credible-fear referral, the alien failed to appear at a hearing or failed to file an asylum application.

9 All descriptions of case outcomes before immigration judges reflect initial case completions by an immigration judge during the fiscal year unless otherwise noted. All references to applications for asylum generally involve applications for asylum, as opposed to some other form of protection, but EOIR statistics do not distinguish between, for instance, the filing of an application for asylum or the filing of an application for statutory withholding. As noted, an application for asylum is also deemed an application for other forms of protection, and whether an application will be for asylum or only for some other form of protection is often a post-filing determination made by the immigration judge (for instance, because the one-year filing bar for asylum applies).

Those figures are consistent with trends from FY 2008 through FY 2018, during which time DHS pursued some 354,356 cases in the immigration courts that involved aliens who had gone through a credible-fear review (i.e., the aliens received a positive credible-fear determination or their closed case was referred for further proceedings). During this period, however, only about 53% (189,127) of those aliens filed an asylum application, despite the fact that they were placed into further immigration proceedings under section 240 because they alleged a fear during expedited-removal proceedings.

Even among those aliens who received a credible-fear interview, filed for asylum, and appeared in section 240 proceedings to resolve their asylum claims—a category that would logically include the aliens with the greatest confidence in the merits of their claims—only a very small percentage received asylum. In FY 2018 immigration judges completed 34,158 cases that originated with a credible-fear referral; only 20,563 of those cases involved an application for asylum, and immigration judges granted only 5,639 aliens asylum. In other words, in FY 2018, less than about 6,000 aliens who passed through credible-fear screening (17% of all completed cases, 27% of all completed cases in which an asylum application was filed, and about 36% of cases where the asylum claim was adjudicated on the merits) established that they should be granted asylum. (An additional 322 aliens received either statutory withholding or CAT protection.) Because there may be multiple bases for denying an asylum application and immigration judges often make alternative findings for consideration of issues on appeal, EOIR does not track reasons for asylum denials by immigration judges at a granular level. Nevertheless, experience indicates that the vast majority of those asylum denials reflect a conclusion that the alien failed to establish a significant possibility of persecution, rather than the effect of a bar to asylum eligibility or a discretionary decision by an immigration judge to deny asylum to an alien who qualifies as a refugee.

The statistics for nationals of Northern Triangle countries are particularly illuminating. In FY 2018, immigration judges in section 240 proceedings adjudicated 20,784 cases involving nationals of Northern Triangle countries who were referred for credible-fear interviews and then referred to section 240 proceedings (i.e., they expressed a fear and either received a positive credible-fear determination or had their case closed and referred to section 240 proceedings for an unspecified reason). Given that those aliens asserted a fear of persecution and progressed through credible-fear screening, those aliens presumably would have had the greatest reason to then pursue an asylum application. Yet in only about 54% of those cases did the alien file an asylum application. Furthermore, about 38% of aliens from Northern Triangle countries who were referred for credible-fear interviews and passed to section 240 proceedings did not appear, and were ordered removed in absentia. Put differently: Only a little over half of aliens from Northern Triangle countries who claimed a fear of persecution and passed threshold screening submitted an application for asylum, and over a third did not appear at section 240 proceedings.10 And only 1,889 aliens from Northern Triangle countries were granted asylum, or approximately 9% of completed cases for aliens from Northern Triangle countries who received a credible-fear referral, 17% of the cases where such aliens filed asylum applications in their removal proceedings, and about 23% of cases where such aliens' asylum claims were adjudicated on the merits. Specifically, in FY 2018, 536 Hondurans, 408 Guatemalans, and 945 Salvadorans who initially were referred for a credible-fear interview (whether in FY 2018 or earlier) and progressed to section 240 proceedings were granted asylum.

10 These percentages are even higher for particular nationalities. In FY 2018, immigration judges adjudicated 7,151 cases involving Hondurans whose cases originated with a credible-fear referral in expedited-removal proceedings. Of that 7,151, only 49% (3,509) filed an application for asylum, and 44% (3,167) had their cases completed with an in absentia removal order because they failed to appear. Similarly, immigration judges adjudicated 5,382 cases involving Guatemalans whose cases originated with a credible-fear referral; only 46% (2,457) filed an asylum application, and 41% (2,218) received in absentia removal orders. The 8,251 Salvadoran cases had the highest rate of asylum applications (filed in 65% of cases, or 5,341), and 31% of the total cases (2,534) involved in absentia removal orders. Numbers for Mexican nationals reflected similar trends. In FY 2018, immigration judges adjudicated 3,307 cases involving Mexican nationals who progressed to section 240 proceedings after being referred for a credible-fear interview; 49% of them filed applications for asylum in these proceedings, and 25% of the total cases resulted in an in absentia removal order.

The Departments thus believe that these numbers underscore the major costs and inefficiencies of the current asylum system. Again, numbers for Northern Triangle nationals—who represent the vast majority of aliens who claim a credible fear—illuminate the scale of the problem. Out of the 63,562 Northern Triangle nationals who expressed an intent to apply for asylum or a fear of persecution and received credible-fear screening interviews in FY 2018, 47,507 received a positive credible-fear finding from the asylum officer or immigration judge. (Another 10,357 cases were administratively closed, some of which also may have been referred to section 240 proceedings.) Those aliens will remain in the United States to await section 240 proceedings while immigration judges work through the current backlog of nearly 800,000 cases—136,554 of which involve nationals of Northern Triangle countries who passed through credible-fear screening interviews. Immigration judges adjudicated 20,784 cases involving such nationals of Northern Triangle countries in FY 2018; slightly under half of those aliens did not file an application for asylum, and over a third were screened through expedited removal but did not appear for a section 240 proceeding. Even when nationals of Northern Triangle countries who passed through credible-fear screening applied for asylum (as 11,307 did in cases completed in FY 2018), immigration judges granted asylum to only 1,889, or 17% of the cases where such aliens filed asylum applications in their removal proceedings. Immigration judges found in the overwhelming majority of cases that the aliens had no significant possibility of persecution.

These existing burdens suggest an unsustainably inefficient process, and those pressures are now coupled with the prospect that large caravans of thousands of aliens, primarily from Central America, will seek to enter the United States unlawfully or without proper documentation and thereafter trigger credible-fear screening procedures and obtain release into the interior. The United States has been engaged in ongoing diplomatic negotiations with Mexico and the Northern Triangle countries (Guatemala, El Salvador, and Honduras) about the problems on the southern border, but those negotiations have, to date, proved unable to meaningfully improve the situation.

2. In combination with a presidential proclamation directed at the crisis on the southern border, the rule would help ameliorate the pressures on the present system. Aliens who could not establish a credible fear for asylum purposes due to the proclamation-based eligibility bar could nonetheless seek statutory withholding of removal or CAT protection, but would receive a positive finding only by establishing a reasonable fear of persecution or torture. In FY 2018, USCIS issued nearly 7,000 reasonable-fear determinations (i.e., made a positive or negative determination)—a smaller number because the current determinations are limited to the narrow categories of aliens described above. Of those determinations, USCIS found a reasonable fear in 45% of cases in 2018, and 48% of cases in 2017. Negative reasonable-fear determinations were then subject to further review, and immigration judges reversed approximately 18%.

Even if rates of positive reasonable-fear findings increased when a more general population of aliens became subject to the reasonable-fear screening process, this process would better filter those aliens eligible for that form of protection. Even assuming that grant rates for statutory withholding in the reasonable-fear screening process (a higher standard) would be the same as grant rates for asylum, this screening mechanism would likely still allow through a significantly higher percentage of cases than would likely be granted. And the reasonable-fear screening rates would also still allow a far greater percentage of claimants through than would ultimately receive CAT protection. Fewer than 1,000 aliens per year, of any nationality, receive CAT protection.

To the extent that aliens continued to enter the United States in violation of a relevant proclamation, the application of the rule's bar to eligibility for asylum in the credible-fear screening process (combined with the application of the reasonable-fear standard to statutory withholding and CAT claims) would reduce the number of cases referred to section 240 proceedings. Finally, the Departments emphasize that this rule would not prevent aliens with claims for statutory withholding or CAT protection from having their claims adjudicated in section 240 proceedings after satisfying the reasonable-fear standard.

Further, determining whether an alien is subject to a suspension of entry proclamation would ordinarily be straightforward, because such orders specify the class of aliens whose entry is restricted. Likewise, adding questions designed to elicit whether an alien is subject to an entry proclamation, and employing a bifurcated credible-fear analysis for the asylum claim and reasonable-fear review of the statutory withholding and CAT claims, will likely not be unduly burdensome. Although DHS has generally not applied existing mandatory bars to asylum in credible-fear determinations, asylum officers currently probe for this information and note in the record where the possibility exists that a mandatory bar may apply. Though screening for proclamation-based ineligibility for asylum may in some cases entail some additional work, USCIS will account for it under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., as needed, following issuance of a covered proclamation. USCIS asylum officers and EOIR immigration judges have almost two decades of experience applying the reasonable-fear standard to statutory withholding and CAT claims, and do so in thousands of cases per year already (13,732 in FY 2018 for both EOIR and USCIS). See, e.g., Memorandum for All Immigration Judges, et al., from The Office of the Chief Immigration Judge, Executive Office for Immigration Review at 6 (May 14, 1999) (explaining similarities between credible-fear and reasonable-fear proceedings for immigration judges).

That said, USCIS estimates that asylum officers have historically averaged four to five credible-fear interviews and completions per day, but only two to three reasonable-fear case completions per day. Comparing this against current case processing targets, and depending on the number of aliens who contravene a presidential proclamation, such a change might result in the need to increase the number of officers required to conduct credible-fear or reasonable-fear screenings to maintain current case completion goals. However, current reasonable-fear interviews are for types of aliens (aggravated felons and aliens subject to reinstatement) for whom relevant criminal and immigration records take time to obtain, and for whom additional interviewing and administrative processing time is typically required. The population of aliens who would be subject to this rule would generally not have the same type of criminal and immigration records in the United States, but additional interviewing time might be necessary. Therefore, it is unclear whether these averages would hold once the rule is implemented.

If an asylum officer determines that credible fear has been established but for the existence of the proclamation bar, and the alien seeks review of such determination before an immigration judge, DHS may need to shift additional resources towards facilitating such review in immigration court in order to provide records of the negative credible-fear determination to the immigration court. However, ICE attorneys, while sometimes present, generally do not advocate for DHS in negative credible-fear or reasonable-fear reviews before an immigration judge.

DHS would, however, also expend additional resources detaining aliens who would have previously received a positive credible-fear determination and who now receive, and challenge, a negative credible-fear and reasonable-fear determination. Aliens are generally detained during the credible-fear screening, but may be eligible for parole or release on bond if they establish a credible fear. To the extent that the rule may result in lengthier interviews for each case, aliens' length of stay in detention would increase. Furthermore, DHS anticipates that more negative determinations would increase the number of aliens who would be detained and the length of time they would be detained, since fewer aliens would be eligible for parole or release on bond. Also, to the extent this rule would increase the number of aliens who receive both negative credible-fear and reasonable-fear determinations, and would thus be subject to immediate removal, DHS will incur increased and more immediate costs for enforcement and removal of these aliens. That cost would be counterbalanced by the fact that it would be considerably more costly and resource-intensive to ultimately remove such an alien after the end of section 240 proceedings, and the desirability of promoting greater enforcement of the immigration laws.

Attorneys from ICE represent DHS in full immigration proceedings, and immigration judges (who are part of DOJ) adjudicate those proceedings. If fewer aliens are found to have credible fear or reasonable fear and referred to full immigration proceedings, such a development will allow DOJ and ICE attorney resources to be reallocated to other immigration proceedings. The additional bars to asylum are unlikely to result in immigration judges spending much additional time on each case where the nature of the proclamation bar is straightforward to apply. Further, there will likely be a decrease in the number of asylum hearings before immigration judges because certain respondents will no longer be eligible for asylum and DHS will likely refer fewer cases to full immigration proceedings. If DHS officers identify the proclamation-based bar to asylum (before EOIR has acquired jurisdiction over the case), EOIR anticipates a reduction in both in-court and out-of-court time for immigration judges.

A decrease in the number of credible-fear findings and, thus, asylum grants would also decrease the number of employment authorization documents processed by DHS. Aliens are generally eligible to apply for and receive employment authorization and an Employment Authorization Document (Form I-766) after their asylum claim has been pending for more than 180 days. See INA 208(d)(5)(A)(iii), 8 U.S.C. 1158(d)(5)(A)(iii); 8 CFR 1208.7(a)(1)(2). This rule and any associated future presidential proclamations would also be expected to have a deterrent effect that could lessen future flows of illegal immigration.

3. The Departments are not in a position to determine how all entry proclamations involving the southern border could affect the decision calculus for various categories of aliens planning to enter the United States through the southern border in the near future. The focus of this rule is on the tens of thousands of aliens each year (97,192 in FY 2018) who assert a credible fear in expedited-removal proceedings and may thereby be placed on a path to release into the interior of the United States. The President has announced his intention to take executive action to suspend the entry of aliens between ports of entry and instead to channel such aliens to ports of entry, where they may seek to enter and assert an intent to apply for asylum in a controlled, orderly, and lawful manner. The Departments have accordingly assessed the anticipated effects of such a presidential action so as to illuminate how the rule would be applied in those circumstances.

a. Effects on Aliens. Such a proclamation, coupled with this rule, would have the most direct effect on the more than approximately 70,000 aliens a year (as of FY 2018) estimated to enter between the ports of entry and then assert a credible fear in expedited-removal proceedings.11 If such aliens contravened a proclamation suspending their entry unless they entered at a port of entry, they would become ineligible for asylum, but would remain eligible for statutory withholding or CAT protection. And for the reasons discussed above, their claims would be processed more expeditiously. Conversely, if such aliens decided to instead arrive at ports of entry, they would remain eligible for asylum and would proceed through the existing credible-fear screening process.

11 The Departments estimated this number by using the approximately 171,511 aliens in FY 2018 who were referred to expedited removal after crossing illegally between ports of entry and being apprehended by CBP. That number excludes the approximately 3,102 additional aliens who were arrested by ICE, because it is not clear at this time whether such aliens were ultimately processed at a port of entry. The Departments also relied on the fact that approximately 41% of aliens in expedited removal in FY 2018 triggered credible-fear screening.

Such an application of this rule could also affect the decision calculus for the estimated 24,000 or so aliens a year (as of FY 2018) who arrive at ports of entry along the southern border and assert a credible fear in expedited-removal proceedings.12 Such aliens would likely face increased wait times at a U.S. port of entry, meaning that they would spend more time in Mexico. Third-country nationals in this category would have added incentives to take advantage of Mexican asylum procedures and to make decisions about travel to a U.S. port of entry based on information about which ports were most capable of swift processing.

12 The Departments estimated this number by using the approximately 59,921 aliens in FY 2018 who were referred to expedited removal after presenting at a port of entry. That number excludes the approximately 3,102 additional aliens who were arrested by ICE, because it is not clear at this time whether such aliens were ultimately processed at a port of entry. The Departments also relied on the fact that approximately 41% of aliens in expedited removal in FY 2018 triggered credible-fear screening.

Such an application of this rule could also affect aliens who apply for asylum affirmatively or in removal proceedings after entering through the southern border. Some of those asylum grants would become denials for aliens who became ineligible for asylum because they crossed illegally in contravention of a proclamation effective before they entered. Such aliens could, however, still obtain statutory withholding of removal or CAT protection in section 240 proceedings.

Finally, such a proclamation could also affect the thousands of aliens who are granted asylum each year. Those aliens' cases are equally subject to existing backlogs in immigration courts, and could be adjudicated more swiftly if the number of non-meritorious cases declined. Aliens with meritorious claims could thus more expeditiously receive the benefits associated with asylum.

b. Effects on the Departments' Operations. Applying this rule in conjunction with a proclamation that channeled aliens seeking asylum to ports of entry would likely create significant overall efficiencies in the Departments' operations beyond the general efficiencies discussed above. Channeling even some proportion of aliens who currently enter illegally and assert a credible fear to ports of entry would, on balance, be expected to help the Departments more effectively leverage their resources to promote orderly and efficient processing of inadmissible aliens.

At present, CBP dedicates enormous resources to attempting to apprehend aliens who cross the southern border illegally. As noted, CBP apprehended 396,579 such aliens in FY 2018. Such crossings often occur in remote locations, and over 16,000 CBP officers are responsible for patrolling hundreds of thousands of square miles of territory, ranging from deserts to mountainous terrain to cities. When a United States Border Patrol (“Border Patrol” or “USBP”) agent apprehends an alien who enters unlawfully, the USBP agent takes the alien into custody and transports the alien to a Border Patrol station for processing—which could be hours away. Family units apprehended after crossing illegally present additional logistical challenges, and may require additional agents to assist with the transport of the illegal aliens from the point of apprehension to the station for processing. And apprehending one alien or group of aliens may come at the expense of apprehending others while agents are dedicating resources to transportation instead of patrolling.

At the Border Patrol station, a CBP agent obtains an alien's fingerprints, photographs, and biometric data, and begins asking background questions about the alien's nationality and purpose in crossing. At the same time, agents must make swift decisions, in coordination with DOJ, as to whether to charge the alien with an immigration-related criminal offense. Further, agents must decide whether to apply expedited-removal procedures, to pursue reinstatement proceedings if the alien already has a removal order in effect, to authorize voluntary return, or to pursue some other lawful course of action. Once the processing of the alien is completed, the USBP temporarily detains any alien who is referred for removal proceedings. Once the USBP determines that an alien should be placed in expedited-removal proceedings, the alien is expeditiously transferred to ICE custody in compliance with federal law. The distance between ICE detention facilities and USBP stations, however, varies. Asylum officers and immigration judges review negative credible-fear findings during expedited-removal proceedings while the alien is in ICE custody.

By contrast, CBP officers are able to employ a more orderly and streamlined process for inadmissible aliens who present at one of the ports of entry along the southern border—even if they claim a credible fear. Because such aliens have typically sought admission without violating the law, CBP generally does not need to dedicate resources to apprehending or considering whether to charge such aliens. And while aliens who present at a port of entry undergo threshold screening to determine their admissibility, see INA 235(b)(2), 8 U.S.C. 1225(b)(2), that process takes approximately the same amount of time as CBP's process for obtaining details from aliens apprehended between ports of entry. Just as for illegal entrants, CBP officers at ports of entry must decide whether inadmissible aliens at ports of entry are subject to expedited removal. Aliens subject to such proceedings are then generally transferred to ICE custody so that DHS can implement Congress's statutory mandate to detain such aliens during the pendency of expedited-removal proceedings. As with stations, ports of entry vary in their proximity to ICE detention facilities.

The Departments acknowledge that in the event all of the approximately 70,000 aliens per year who cross illegally and assert a credible fear instead decide to present at a port of entry, processing times at ports of entry would be slower in the absence of additional resources or policies that would encourage aliens to enter at less busy ports. Using FY 2018 figures, the number of aliens presenting at a port of entry would rise from about 124,511 to about 200,000 aliens if all illegal aliens who assert a credible fear went to ports of entry. That would likely create longer lines at U.S. ports of entry, although the Departments note that such ports have variable capacities and that wait times vary considerably between them. The Departments nonetheless believe such a policy would be preferable to the status quo. Nearly 40% of inadmissible aliens who present at ports of entry today are Mexican nationals, who rarely claim a credible fear and who accordingly can be processed and admitted or removed quickly.

Furthermore, the overwhelming number of aliens who would have an incentive under the rule and a proclamation to arrive at a port of entry rather than to cross illegally are from third countries, not from Mexico. In FY 2018, CBP apprehended and referred to expedited removal an estimated 87,544 Northern Triangle nationals and an estimated 66,826 Mexican nationals, but Northern Triangle nationals assert a credible fear over 60% of the time, whereas Mexican nationals assert a credible fear less than 10% of the time. The Departments believe that it is reasonable for third-country aliens, who appear highly unlikely to be persecuted on account of a protected ground or tortured in Mexico, to be subject to orderly processing at ports of entry that takes into account resource constraints at ports of entry and in U.S. detention facilities. Such orderly processing would be impossible if large proportions of third-country nationals continue to cross the southern border illegally.

To be sure, some Mexican nationals who would assert a credible fear may also have to spend more time waiting for processing in Mexico. Such nationals, however, could still obtain statutory withholding of removal or CAT protection if they crossed illegally, which would allow them a safeguard against persecution. Moreover, only 178 Mexican nationals received asylum in FY 2018 after initially asserting a credible fear of persecution in expedited-removal proceedings, indicating that the category of Mexican nationals most likely to be affected by the rule and a proclamation would also be highly unlikely to establish eligibility for asylum.

Regulatory Requirements A. Administrative Procedure Act

While the Administrative Procedure Act (“APA”) generally requires agencies to publish notice of a proposed rulemaking in the Federal Register for a period of public comment, it provides an exception “when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). This exception relieves agencies of the notice-and-comment requirement in emergency situations, or in circumstances where “the delay created by the notice and comment requirements would result in serious damage to important interests.” Woods Psychiatric Inst. v. United States, 20 Cl. Ct. 324, 333 (1990), aff'd, 925 F.2d 1454 (Fed. Cir. 1991); see also Nat'l Fed'n of Federal Emps. v. Nat'l Treasury Emps. Union, 671 F.2d 607, 611 (D.C. Cir. 1982); United States v. Dean, 604 F.3d 1275, 1279 (11th Cir. 2010). Agencies have previously relied on this exception in promulgating a host of immigration-related interim rules.13 Furthermore, DHS has invoked this exception in promulgating rules related to expedited removal—a context in which Congress recognized the need for dispatch in addressing large volumes of aliens by giving the Secretary significant discretion to “modify at any time” the classes of aliens who would be subject to such procedures. See INA 235(b)(1)(A)(iii)(I), 8 U.S.C. 1225(b)(1)(A)(iii)(I).14

13See, e.g., Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended, 81 FR 5906, 5907 (Feb. 4, 2016) (interim rule citing good cause to immediately require additional documentation from certain Caribbean agricultural workers to avoid “an increase in applications for admission in bad faith by persons who would otherwise have been denied visas and are seeking to avoid the visa requirement and consular screening process during the period between the publication of a proposed and a final rule”); Suspending the 30-Day and Annual Interview Requirements From the Special Registration Process for Certain Nonimmigrants, 68 FR 67578, 67581 (Dec. 2, 2003) (interim rule claiming good cause exception for suspending certain automatic registration requirements for nonimmigrants because “without [the] regulation approximately 82,532 aliens would be subject to 30-day or annual re-registration interviews” over six months).

14See, e.g., Eliminating Exception to Expedited Removal Authority for Cuban Nationals Arriving by Air, 82 FR at 4770 (claiming good cause exception because the ability to detain certain Cuban nationals “while admissibility and identity are determined and protection claims are adjudicated, as well as to quickly remove those without protection claims or claims to lawful status, is a necessity for national security and public safety”); Designating Aliens For Expedited Removal, 69 FR at 48880 (claiming good cause exception for expansion of expedited-removal program due to “[t]he large volume of illegal entries, and attempted illegal entries, and the attendant risks to national security presented by these illegal entries,” as well as “the need to deter foreign nationals from undertaking dangerous border crossings, and thereby prevent the needless deaths and crimes associated with human trafficking and alien smuggling operations”).

The Departments have concluded that the good-cause exceptions in 5 U.S.C. 553(b)(B) and (d)(3) apply to this rule. Notice and comment on this rule, along with a 30-day delay in its effective date, would be impracticable and contrary to the public interest. The Departments have determined that immediate implementation of this rule is essential to avoid creating an incentive for aliens to seek to cross the border during pre-promulgation notice and comment under 5 U.S.C. 553(b) or during the 30-day delay in the effective date under 5 U.S.C. 553(d).

DHS concluded in January 2017 that it was imperative to give immediate effect to a rule designating Cuban nationals arriving by air as eligible for expedited removal because “pre-promulgation notice and comment would . . . endanger[] human life and hav[e] a potential destabilizing effect in the region.” Eliminating Exception to Expedited Removal Authority for Cuban Nationals Arriving by Air, 82 FR at 4770. DHS in particular cited the prospect that “publication of the rule as a proposed rule, which would signal a significant change in policy while permitting continuation of the exception for Cuban nationals, could lead to a surge in migration of Cuban nationals seeking to travel to and enter the United States during the period between the publication of a proposed and a final rule.” Id. DHS found that “[s]uch a surge would threaten national security and public safety by diverting valuable Government resources from counterterrorism and homeland security responsibilities. A surge could also have a destabilizing effect on the region, thus weakening the security of the United States and threatening its international relations.” Id. DHS concluded: “[A] surge could result in significant loss of human life.” Id.; accord, e.g., Designating Aliens For Expedited Removal, 69 FR 48877 (noting similar destabilizing incentives for a surge during a delay in the effective date); Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended, 81 FR at 5907 (finding the good-cause exception applicable because of similar short-run incentive concerns).

These same concerns would apply here as well. Pre-promulgation notice and comment, or a delay in the effective date, could lead to an increase in migration to the southern border to enter the United States before the rule took effect. For instance, the thousands of aliens who presently enter illegally and make claims of credible fear if and when they are apprehended would have an added incentive to cross illegally during the comment period. They have an incentive to cross illegally in the hopes of evading detection entirely. Even once apprehended, at present, they are able to take advantage of a second opportunity to remain in the United States by making credible-fear claims in expedited-removal proceedings. Even if their statements are ultimately not found to be genuine, they are likely to be released into the interior pending section 240 proceedings that may not occur for months or years. Based on the available statistics, the Departments believe that a large proportion of aliens who enter illegally and assert a fear could be released while awaiting section 240 proceedings. There continues to be an “urgent need to deter foreign nationals from undertaking dangerous border crossings, and thereby prevent the needless deaths and crimes associated with human trafficking and alien smuggling operations.” Designating Aliens For Expedited Removal, 69 FR at 48878.

Furthermore, there are already large numbers of migrants—including thousands of aliens traveling in groups, primarily from Central America—expected to attempt entry at the southern border in the coming weeks. Some are traveling in large, organized groups through Mexico and, by reports, intend to come to the United States unlawfully or without proper documentation and to express an intent to seek asylum. Creating an incentive for members of those groups to attempt to enter the United States unlawfully before this rule took effect would make more dangerous their already perilous journeys, and would further strain CBP's apprehension operations. This interim rule is thus a practical means to address these developments and avoid creating an even larger short-term influx; an extended notice-and-comment rulemaking process would be impracticable.

Alternatively, the Departments may forgo notice-and-comment procedures and a delay in the effective date because this rule involves a “foreign affairs function of the United States.” 5 U.S.C. 553(a)(1). The flow of aliens across the southern border, unlawfully or without appropriate travel documents, directly implicates the foreign policy interests of the United States. See, e.g., Exec. Order 13767 (Jan. 25, 2017). Presidential proclamations invoking section 212(f) or 215(a)(1) of the INA at the southern border necessarily implicate our relations with Mexico and the President's foreign policy, including sensitive and ongoing negotiations with Mexico about how to manage our shared border.15 A proclamation under section 212(f) of the INA would reflect a presidential determination that some or all entries along the border “would [be] detrimental to the interests of the United States.” And the structure of the rule, under which the Attorney General and the Secretary are exercising their statutory authority to establish a mandatory bar to asylum eligibility resting squarely on a proclamation issued by the President, confirms the direct relationship between the President's foreign policy decisions in this area and the rule.

15 For instance, since 2004, the United States and Mexico have been operating under a memorandum of understanding concerning the repatriation of Mexican nationals. Memorandum of Understanding Between the Department of Homeland Security of the United States of America and the Secretariat of Governance and the Secretariat of Foreign Affairs of the United Mexican States, on the Safe, Orderly, Dignified and Humane Repatriation of Mexican Nationals (Feb. 20, 2004). Article 6 of that memorandum reserves the movement of third-country nationals through Mexico and the United States for further bilateral negotiations.

For instance, a proclamation aimed at channeling aliens who wish to make a claim for asylum to ports of entry at the southern border would be inextricably related to any negotiations over a safe-third-country agreement (as defined in INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A)), or any similar arrangements. As noted, the vast majority of aliens who enter illegally today come from the Northern Triangle countries, and large portions of those aliens assert a credible fear. Channeling those aliens to ports of entry would encourage these aliens to first avail themselves of offers of asylum from Mexico.

Moreover, this rule would be an integral part of ongoing negotiations with Mexico and Northern Triangle countries over how to address the influx of tens of thousands of migrants from Central America through Mexico and into the United States. For instance, over the past few weeks, the United States has consistently engaged with the Security and Foreign Ministries of El Salvador, Guatemala, and Honduras, as well as the Ministries of Governance and Foreign Affairs of Mexico, to discuss how to address the mass influx of aliens traveling together from Central America who plan to seek to enter at the southern border. Those ongoing discussions involve negotiations over issues such as how these other countries will develop a process to provide this influx with the opportunity to seek protection at the safest and earliest point of transit possible, and how to establish compliance and enforcement mechanisms for those who seek to enter the United States illegally, including for those who do not avail themselves of earlier offers of protection. Furthermore, the United States and Mexico have been engaged in ongoing discussions of a safe-third-country agreement, and this rule will strengthen the ability of the United States to address the crisis at the southern border and therefore facilitate the likelihood of success in future negotiations.

This rule thus supports the President's foreign policy with respect to Mexico and the Northern Triangle countries in this area and is exempt from the notice-and-comment and delayed-effective-date requirements in 5 U.S.C. 553. See Am. Ass'n of Exporters & Importers-Textile & Apparel Grp. v. United States, 751 F.2d 1239, 1249 (Fed. Cir. 1985) (noting that foreign affairs exception covers agency actions “linked intimately with the Government's overall political agenda concerning relations with another country”); Yassini v. Crosland, 618 F.2d 1356, 1361 (9th Cir. 1980) (because an immigration directive “was implementing the President's foreign policy,” the action “fell within the foreign affairs function and good cause exceptions to the notice and comment requirements of the APA”).

Invoking the APA's foreign affairs exception is also consistent with past rulemakings. In 2016, for example, in response to diplomatic developments between the United States and Cuba, DHS changed its regulations concerning flights to and from the island via an immediately effective interim final rule. This rulemaking explained that it was covered by the foreign affairs exception because it was “consistent with U.S. foreign policy goals”—specifically, the “continued effort to normalize relations between the two countries.” Flights to and From Cuba, 81 FR 14948, 14952 (Mar. 21, 2016). In a similar vein, DHS and the State Department recently provided notice that they were eliminating an exception to expedited removal for certain Cuban nationals. The notice explained that the change in policy was subject to the foreign affairs exception because it was “part of a major foreign policy initiative announced by the President, and is central to ongoing diplomatic discussions between the United States and Cuba with respect to travel and migration between the two countries.” Eliminating Exception To Expedited Removal Authority for Cuban Nationals Encountered in the United States or Arriving by Sea, 82 FR at 4904-05.

For the foregoing reasons, taken together, the Departments have concluded that the foreign affairs exemption to notice-and-comment rulemaking applies.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). A regulatory flexibility analysis is not required when a rule is exempt from notice-and-comment rulemaking.

C. Unfunded Mandates Reform Act of 1995

This interim final rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

D. Congressional Review Act

This interim final rule is not a major rule as defined by section 804 of the Congressional Review Act. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

E. Executive Order 12866, Executive Order 13563, and Executive Order 13771 (Regulatory Planning and Review)

This interim final rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 because the rule is exempt under the foreign-affairs exemption in section 3(d)(2) as part of the actual exercise of diplomacy. The rule is consequently also exempt from Executive Order 13771 because it is not a significant regulatory action under Executive Order 12866. Though the potential costs, benefits, and transfers associated with some proclamations may have any of a range of economic impacts, this rule itself does not have an impact aside from enabling future action. The Departments have discussed what some of the potential impacts associated with a proclamation may be, but these impacts do not stem directly from this rule and, as such, they do not consider them to be costs, benefits, or transfers of this rule.

This rule amends existing regulations to provide that aliens subject to restrictions on entry under certain proclamations are ineligible for asylum. The expected effects of this rule for aliens and on the Departments' operations are discussed above. As noted, this rule will result in the application of an additional mandatory bar to asylum, but the scope of that bar will depend on the substance of relevant triggering proclamations. In addition, this rule requires DHS to consider and apply the proclamation bar in the credible-fear screening analysis, which DHS does not currently do. Application of the new bar to asylum will likely decrease the number of asylum grants. By applying the bar earlier in the process, it will lessen the time that aliens who are ineligible for asylum and who lack a reasonable fear of persecution or torture will be present in the United States. Finally, DOJ is amending its regulations with respect to aliens who are subject to the proclamation bar to asylum eligibility to ensure that aliens who establish a reasonable fear of persecution or torture may still seek, in proceedings before immigration judges, statutory withholding of removal under the INA or CAT protection.

Executive Order 13132 (Federalism)

This rule 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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

This rule does not propose new or revisions to existing “collection[s] of information” as that term is defined under the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320.

List of Subjects 8 CFR Part 208

Administrative practice and procedure, Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 1003

Administrative practice and procedure, Aliens, Immigration, Legal services, Organization and functions (Government agencies).

8 CFR Part 1208

Administrative practice and procedure, Aliens, Immigration, Reporting and recordkeeping requirements.

Regulatory Amendments DEPARTMENT OF HOMELAND SECURITY

Accordingly, for the reasons set forth in the preamble, the Secretary of Homeland Security amends 8 CFR part 208 as follows:

PART 208—PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL 1. The authority citation for part 208 continues to read as fol1ows: Authority:

8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title VII of Public Law 110-229, 8 CFR part 2.

2. In § 208.13, add paragraph (c)(3) to read as follows:
§ 208.13 Establishing asylum eligibility.

(c) * * *

(3) Additional limitation on eligibility for asylum. For applications filed after November 9, 2018, an alien shall be ineligible for asylum if the alien is subject to a presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico that is issued pursuant to subsection 212(f) or 215(a)(1) of the Act on or after November 9, 2018 and the alien enters the United States after the effective date of the proclamation or order contrary to the terms of the proclamation or order. This limitation on eligibility does not apply if the proclamation or order expressly provides that it does not affect eligibility for asylum, or expressly provides for a waiver or exception that makes the suspension or limitation inapplicable to the alien.

3. In § 208.30, revise the section heading and add a sentence at the end of paragraph (e)(5) to read as follows:
§ 208.30 Credible fear determinations involving stowaways and applicants for admission who are found inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the Act or whose entry is limited or suspended under section 212(f) or 215(a)(1) of the Act.

(e) * * *

(5) * * * If the alien is found to be an alien described in 8 CFR 208.13(c)(3), then the asylum officer shall enter a negative credible fear determination with respect to the alien's application for asylum. The Department shall nonetheless place the alien in proceedings under section 240 of the Act for full consideration of the alien's claim for withholding of removal under section 241(b)(3) of the Act, or for withholding or deferral of removal under the Convention Against Torture if the alien establishes a reasonable fear of persecution or torture. However, if an alien fails to establish, during the interview with the asylum officer, a reasonable fear of either persecution or torture, the asylum officer will provide the alien with a written notice of decision, which will be subject to immigration judge review consistent with paragraph (g) of this section, except that the immigration judge will review the reasonable fear findings under the reasonable fear standard instead of the credible fear standard described in paragraph (g) and in 8 CFR 1208.30(g).

Approved:

Dated: November 5, 2018. Kirstjen M. Nielsen, Secretary of Homeland Security.
DEPARTMENT OF JUSTICE

Accordingly, for the reasons set forth in the preamble, the Attorney General amends 8 CFR parts 1003 and 1208 as follows:

PART 1003—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 4. The authority citation for part 1003 continues to read as follows: Authority:

5 U.S.C. 301; 6 U.S.C 521; 8 U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.

5. In § 1003.42, add a sentence at the end of paragraph (d) to read as follows:
§ 1003.42 Review of credible fear determination.

(d) * * * If the alien is determined to be an alien described in 8 CFR 208.13(c)(3) or 1208.13(c)(3) and is determined to lack a reasonable fear under 8 CFR 208.30(e)(5), the immigration judge shall first review de novo the determination that the alien is described in 8 CFR 208.13(c)(3) or 1208.13(c)(3) prior to any further review of the asylum officer's negative determination.

PART 1208—PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL 6. The authority citation for part 1208 continues to read as fol1ows: Authority:

8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title VII of Public Law 110-229.

7. In § 1208.13, add paragraph (c)(3) to read as follows:
§ 1208.13 Establishing asylum eligibility.

(c) * * *

(3) Additional limitation on eligibility for asylum. For applications filed after November 9, 2018, an alien shall be ineligible for asylum if the alien is subject to a presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico that is issued pursuant to subsection 212(f) or 215(a)(1) of the Act on or after November 9, 2018 and the alien enters the United States after the effective date of the proclamation or order contrary to the terms of the proclamation or order. This limitation on eligibility does not apply if the proclamation or order expressly provides that it does not affect eligibility for asylum, or expressly provides for a waiver or exception that makes the suspension or limitation inapplicable to the alien.

8. In § 1208.30, revise the section heading and add paragraph (g)(1) to read as follows:
§ 1208.30 Credible fear determinations involving stowaways and applicants for admission who are found inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the Act or whose entry is limited or suspended under section 212(f) or 215(a)(1) of the Act.

(g) * * *

(1) Review by immigration judge of a mandatory bar finding. If the alien is determined to be an alien described in 8 CFR 208.13(c)(3) or 1208.13(c)(3) and is determined to lack a reasonable fear under 8 CFR 208.30(e)(5), the immigration judge shall first review de novo the determination that the alien is described in 8 CFR 208.13(c)(3) or 1208.13(c)(3). If the immigration judge finds that the alien is not described in 8 CFR 208.13(c)(3) or 1208.13(c)(3), then the immigration judge shall vacate the order of the asylum officer, and DHS may commence removal proceedings under section 240 of the Act. If the immigration judge concurs with the credible fear determination that the alien is an alien described in 8 CFR 208.13(c)(3) or 1208.13(c)(3), the immigration judge will then review the asylum officer's negative decision regarding reasonable fear made under 8 CFR 208.30(e)(5) consistent with paragraph (g)(2) of this section, except that the immigration judge will review the findings under the reasonable fear standard instead of the credible fear standard described in paragraph (g)(2).

Dated: November 6, 2018. Jefferson B. Sessions III, Attorney General.
[FR Doc. 2018-24594 Filed 11-8-18; 4:15 pm] BILLING CODE 4410-30-P; 9111-97-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0589; Product Identifier 2018-NM-021-AD; Amendment 39-19489; AD 2018-23-03] RIN 2120-AA64 Airworthiness Directives; Airbus SAS Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Airbus SAS Model A318 and A319 series airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. This AD was prompted by reports of false resolution advisories (RAs) from certain traffic collision avoidance systems (TCASs). This AD requires modification or replacement of certain TCAS processors. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective December 14, 2018.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of December 14, 2018.

ADDRESSES:

For service information identified in this final rule, contact Honeywell Aerospace, Technical Publications and Distribution, M/S 2101-201, P.O. Box 52170, Phoenix, AZ 85072-2170; phone: 602-365-5535; fax: 602-365-5577; internet: http://www.honeywell.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0589.

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-2018-0589; 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:

Steven Dzierzynski, Aerospace Engineer, Avionics and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7367; fax 516-794-5531.

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A318 and A319 series airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. The NPRM published in the Federal Register on July 10, 2018 (83 FR 31911). The NPRM was prompted by reports of false RAs from certain TCASs. The NPRM proposed to require modification or replacement of certain TCAS processors.

We are issuing this AD to address the occurrence of false RAs from the TCAS, which could lead to a loss of separation from other airplanes, possibly resulting in a mid-air collision.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0196, dated October 5, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A318 and A319 series airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. The MCAI states:

Since 2012, a number of false TCAS resolution advisories (RA) have been reported by various European Air Navigation Service Providers. EASA has published certification guidance material for collision avoidance systems (AMC 20-15) which defines a false TCAS RA as an RA that is issued, but the RA condition does not exist. It is possible that more false (or spurious) RA events have occurred, but were not recorded or reported. The known events were mainly occurring on Airbus single-aisle (A320 family) aeroplanes, although several events have also occurred on Airbus A330 aeroplanes. Investigation determined that the false RAs are caused on aeroplanes with a Honeywell TPA-100B TCAS processor installed, P/N [part number] 940-0351-001. This was caused by a combination of three factors: (1) Hybrid surveillance enabled; (2) processor connected to a hybrid GPS [global positioning system] source, without a direct connection to a GPS source; and (3) an encounter with an intruder aeroplane with noisy (jumping) ADS-B Out position.

EASA previously published Safety Information Bulletin (SIB) 2014-33 to inform owners and operators of affected aeroplanes about this safety concern. At that time, the false RAs were not considered an unsafe condition. Since the SIB was issued, further events have been reported, involving a third aeroplane.

This condition, if not corrected, could lead to a loss of separation with other aeroplanes, possibly resulting in a mid-air collision.

Prompted by these latest findings, and after review of the available information, EASA reassessed the severity and rate of occurrence of false RAs and has decided that mandatory action must be taken to reduce the rate of occurrence, and the risk of loss of separation with other aeroplanes. Honeywell International Inc. published Service Bulletin (SB) 940-0351-34-0005 [Publication Number D201611000002] to provide instructions for an upgrade, introducing software version 05/01, changing the processor unit to P/N 940-0351-005.

EASA previously issued AD 2017-0091 (later revised) to address the unsafe condition on aeroplanes that had the P/N 940-0351-001 processor installed by Airbus major change or SB. However, part of the fleet had the same P/N installed by STC [supplemental type certificate]. The relevant STC approval holders (see section Remarks of this [EASA] AD for contact details) have been notified and modification instructions (see section Ref. Publications of this [EASA] AD) can be obtained from those companies.

For the reason described above, this [EASA] AD requires modification or replacement of Honeywell TPA-100B P/N 940-0351-001 TCAS processors. This [EASA] AD also prohibits installation of those processors on post-mod aeroplanes.

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0589.

Comments

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

Request To Withdraw the NPRM

Delta Air Lines (DAL) observed that the proposed AD is redundant to AD 2018-06-01, Amendment 39-19221 (83 FR 12852, March 26, 2018) (“AD 2018-06-01”), because they both address the modification or replacement of a TCAS processor. We infer a request to withdraw the NPRM.

We disagree because this AD pertains to aircraft that have had their TCAS processor modified by an FAA-validated supplemental type certificate (STC), whereas AD 2018-06-01 pertains to the aircraft type certificate (TC) and the TCAS processor modification required by that AD does not include airplanes modified by an FAA STC. We have made no change to this AD in this regard.

Conclusion

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

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

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

Related Service Information Under 1 CFR Part 51

H4 Aerospace has issued Service Bulletin H4ASB009, Issue 1, dated September 18, 2017; and PMV Engineering has issued Service Bulletin AVI-00690-SB-S99-R01, Revision 01, dated October 5, 2017. This service information, provided by the applicable design change FAA STC approval holders, describes the modification or replacement of the Honeywell TPA-100B TCAS processor. These documents are distinct because they apply to airplanes having different STCs installed. 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.

Other Related Service Information

Honeywell International, Inc., has issued Service Bulletin 940-0351-34-0005, Revision 2, dated December 1, 2017. This service information describes procedures for updating the software of the Honeywell TPA-100B TCAS processor either on the airplane or at an authorized service center.

Costs of Compliance

We estimate that this AD affects 1209 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
  • Modification 1 work-hour × $85 per hour = $85 Up to $1,623 Up to $1,708 Up to $2,064,972.
    Estimated Costs for Optional Actions Action Labor cost Parts cost Cost per
  • product
  • Replacement 1 work-hour × $85 per hour = $85 $121,993 $122,078

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

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-23-03 Airbus SAS: Amendment 39-19489; Docket No. FAA-2018-0589; Product Identifier 2018-NM-021-AD. (a) Effective Date

    This AD is effective December 14, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the Airbus SAS airplanes identified in paragraphs (c)(1) through (c)(4) of this AD, certificated in any category, if modified by H4 Aerospace Supplemental Type Certificate (STC) ST03708NY or PMV Engineering STC ST03835NY.

    (1) Model A318-111, -112, -121, and -122 airplanes.

    (2) Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes.

    (3) Model A320-211, -212, -214, -231, -232, and -233 airplanes.

    (4) Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes.

    (d) Subject

    Air Transport Association (ATA) of America Code 34, Navigation.

    (e) Reason

    This AD was prompted by reports of false resolution advisories (RAs) from certain traffic collision avoidance systems (TCASs). We are issuing this AD to address the occurrence of false RAs from the TCAS, which could lead to a loss of separation from other airplanes, possibly resulting in a mid-air collision.

    (f) Compliance

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

    (g) Definition of an Affected TCAS Processor

    For the purposes of this AD, an affected TCAS processor is defined as a Honeywell TPA-100B TCAS processor having part number (P/N) 940-0351-001.

    (h) Modification or Replacement of TCAS Processor

    Within 12 months after the effective date of this AD: Update the software of the affected TCAS processor and change the part number to P/N 940-0351-005, or replace the affected TCAS processor with a TPA-100B TCAS processor P/N 940-0351-005, in accordance with the Accomplishment Instructions of H4 Aerospace Service Bulletin H4ASB009, Issue 1, dated September 18, 2017; or PMV Engineering Service Bulletin AVI-00690-SB-S99-R01, Revision 01, dated October 5, 2017; as applicable.

    Note 1 to paragraph (h) of this AD:

    Guidance for accomplishing the actions required by paragraph (h) of this AD can be found in Honeywell Service Bulletin 940-0351-34-0005, Revision 2, dated December 1, 2017.

    (i) Parts Installation Prohibition

    After modification or replacement of the TCAS processor as required by paragraph (h) of this AD, no person may install on that airplane an affected TCAS processor, as defined in paragraph (g) of this AD.

    (j) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, New York ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

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

    (k) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0196, dated October 5, 2017, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0589.

    (2) For more information about this AD, contact Steven Dzierzynski, Aerospace Engineer, Avionics and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7367; fax 516-794-5531.

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

    (l) Material Incorporated by Reference

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

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

    (i) H4 Aerospace Service Bulletin H4ASB009, Issue 1, dated September 18, 2017.

    (ii) PMV Engineering Service Bulletin AVI-00690-SB-S99-R01, Revision 01, dated October 5, 2017.

    (3) For service information identified in this AD, contact Honeywell Aerospace, Technical Publications and Distribution, M/S 2101-201, P.O. Box 52170, Phoenix, AZ 85072-2170; phone: 602-365-5535; fax: 602-365-5577; internet: http://www.honeywell.com.

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

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

    Issued in Des Moines, Washington, on October 26, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-24394 Filed 11-8-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 922 [Docket No. 170315274-7274-01] RIN 0648-BG73 Vessel and Aircraft Discharges From United States Coast Guard in Greater Farallones and Cordell Bank National Marine Sanctuaries AGENCY:

    Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).

    ACTION:

    Final rule.

    SUMMARY:

    With this final rule, the National Oceanic and Atmospheric Administration (NOAA) is allowing the United States Coast Guard (USCG or Coast Guard) to carry out certain otherwise prohibited activities within waters of Greater Farallones National Marine Sanctuary (GFNMS) and Cordell Bank National Marine Sanctuary (CBNMS) beyond approximately 3 nautical miles (nm) from the shore, in the areas of the sanctuaries that were expanded in 2015. This final rule will further the ability of the USCG to complete its mission requirements and NOAA's policy of facilitating uses of the sanctuaries to the extent compatible with resource protection. There is no change to the regulatory prohibitions or exceptions applicable to the pre-expansion boundaries of the two sanctuaries. NOAA published a proposed rule and draft environmental assessment (EA) under the National Environmental Policy Act (NEPA) on November 22, 2017. NOAA received written and oral public comments on the proposed rule and draft EA, and NOAA considers and responds to the comments in this final rule and the final EA.

    DATES:

    This final rule is effective on December 10, 2018.

    ADDRESSES:

    Copies of the final EA described in this rule and the Finding of No Significant Impact (FONSI) are available upon written request from Maria Brown, Superintendent, Greater Farallones National Marine Sanctuary, 991 Marine Drive, The Presidio, San Francisco, CA 94129. Copies of the final EA and the final rule can also be viewed or downloaded at https://farallones.noaa.gov/manage/regulations.html or at www.regulations.gov (search for docket NOAA-NOS-2017-0140).

    FOR FURTHER INFORMATION CONTACT:

    Maria Brown, Greater Farallones National Marine Sanctuary Superintendent, at [email protected] or 415-561-6622.

    SUPPLEMENTARY INFORMATION: I. Background and Purpose of Regulatory Change A. Introduction

    On March 12, 2015, NOAA expanded the boundaries of GFNMS and CBNMS to an area north and west of their previous boundaries. In that rule, pursuant to a request from the USCG, NOAA announced that it would postpone the effective date for the discharge requirements in both expansion areas (defined as the areas that were added to the existing 1981 and 1989 boundaries for GFNMS and CBNMS, respectively) with regard to USCG activities. The purpose of the postponement was to look at ways to address Coast Guard's concerns that the discharge regulations would impair the operations of Coast Guard vessels in, and aircraft over, the sanctuaries, and to consider, among other things, whether to exempt Coast Guard activities in both sanctuary expansion areas. This final rule allows the USCG to carry out otherwise prohibited discharges within waters of the expansion areas of GFNMS and CBNMS seaward of approximately 3 nm from the shore, as described in more detail below.1 In formulating this final rule, NOAA considered a number of factors discussed more fully in the final EA, including the ability of the USCG to complete its mission requirements and the policy of facilitating uses of the sanctuaries to the extent compatible with resource protection.

    1 The specific boundary lines that designate the areas where the new discharge exceptions for certain USCG activities applies are identified by coordinates included in appendices to the regulatory text.

    B. Greater Farallones and Cordell Bank National Marine Sanctuaries

    NOAA is charged with managing areas of the marine environment that are of special national significance as the National Marine Sanctuary System (16 U.S.C. 1431(b)(1)). The Office of National Marine Sanctuaries (ONMS) is the federal office within NOAA that manages the National Marine Sanctuary System (System). The mission of ONMS is to identify, protect, conserve, and enhance the natural and cultural resources, values, and qualities of the System for this and future generations throughout the nation. This System includes 13 national marine sanctuaries, among them GFNMS and CBNMS. ONMS also manages Papahānaumokuākea and Rose Atoll marine national monuments. GFNMS was designated in 1981 and protects approximately 3,295 square miles (2,488 square nm). CBNMS was designated in 1989 and protects approximately 1,286 square miles (971 square nm). NOAA expanded both sanctuaries to their current size on March 12, 2015 (80 FR 13078). When referring to the expansion areas of the sanctuaries, NOAA means the areas that were added to the existing 1981 and 1989 boundaries for GFNMS and CBNMS, respectively.

    Both GFNMS and CBNMS regulations prohibit discharging or depositing, from within or into the sanctuary, any material or other matter (15 CFR 922.82(a)(2), (3) and 15 CFR 922.112(a)(2)(i) and (ii)). Both GFNMS and CBNMS regulations also prohibit discharging or depositing, from beyond the boundary of the sanctuary, any material or other matter that subsequently enters the sanctuary and injures a sanctuary resource or quality (15 CFR 922.82(a)(4); 15 CFR 922.112(a)(2)(iii)). Most national marine sanctuaries have similar regulatory prohibitions. The discharge prohibitions are aimed at maintaining and improving water quality within national marine sanctuaries to enhance conditions for their living marine resources. The discharge prohibitions include the following exceptions relevant to the final action:

    • For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient holding tank capacity to hold sewage while within the sanctuary, clean effluent generated incidental to vessel use by an operable Type I or II marine sanitation device that is approved in accordance with section 312 of the Federal Water Pollution Control Act,2 as amended (FWPCA); vessel operators must lock all marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage (15 CFR 922.82(a)(2)(ii) and 922.112(a)(2)(i)(B));

    2 The Federal Water Pollution Control Act is more commonly referred to as the Clean Water Act.

    • For a vessel less than 300 GRT, or a vessel 300 GRT or greater without sufficient holding tank capacity to hold graywater while within the sanctuary, clean graywater as defined by section 312 of the FWPCA (15 CFR 922.82(a)(2)(iv) and 922.112(a)(2)(i)(D));

    • Activities necessary to respond to an emergency threatening life, property or the environment (15 CFR 922.82(c) and 922.112(b));

    • Activities allowed in accordance with national marine sanctuary permits (15 CFR 922.82(d) and 922.112(d)).

    The following definitions apply to these exceptions:

    • “Clean” means not containing detectable levels of a harmful matter (15 CFR 922.81 and 922.111); and,

    • “Graywater” means galley, bath, and shower water (33 U.S.C. 1322(a)(11)).

    The first two existing discharge exceptions listed above apply to all vessels other than cruise ships. Therefore, upon finalization of this rulemaking, they will continue to apply to existing or future USCG vessels with appropriate marine sanitation devices (MSDs) on board.

    C. USCG Activities

    The USCG, part of the U.S. Department of Homeland Security, is a military service and a branch of the armed forces (14 U.S.C. 1), charged with carrying out eleven maritime safety, security and stewardship missions (6 U.S.C. 468(a)).

    One of the missions of the USCG is to enforce or assist in the enforcement of all applicable federal laws on, under, and over the high seas and waters subject to the jurisdiction of the United States. As part of this mission, the USCG supports resource protection efforts within GFNMS and CBNMS by providing surveillance of activities within the sanctuaries and enforcement of the National Marine Sanctuaries Act (NMSA) and other laws and their implementing regulations. The USCG has the authority to enforce the NMSA under 14 U.S.C. 2 and 14 U.S.C. 89. Law enforcement activities for the two sanctuaries are also conducted by other agencies, primarily NOAA's Office of Law Enforcement and the California Department of Fish and Wildlife. In GFNMS, the National Park Service and several local agencies also assist with law enforcement activities.

    The USCG also leads incident planning and response activities for oil spills and other incidents in U.S. coastal and ocean waters. These activities are necessary components of GFNMS and CBNMS management. Other USCG missions conducted inside national marine sanctuary boundaries, some of which also support national marine sanctuary management, include waterways and coastal security; aids to navigation, including tending buoys; search and rescue (SAR); living marine resources; marine safety; and marine environmental protection. The USCG may concurrently conduct activities to support more than one of its missions when operating vessels within or aircraft above GFNMS and CBNMS.

    According to the USCG Environmental Vessel Manual, USCG practices allow for discharges of untreated sewage and non-clean graywater from USCG vessels in waters beyond 3 nm from shore. USCG vessels have continued these discharges beyond 3 nm from shore in the expansion areas of GFNMS and CBNMS, due to NOAA's decision to temporarily delay the effective date of applying sanctuary discharge prohibitions with respect to USCG activities in the expansion areas of GFNMS and CBNMS while NOAA assessed these activities and their potential environmental effects.

    According to other regulatory requirements and USCG guidance and practices, vessel discharges are not allowed to take place within approximately 3 nm of the shore. The FWPCA requires (in section 312) that vessels with installed toilets must only discharge sewage through a Type I or II marine sanitation device within three miles 3 of shore (33 U.S.C. 1322(h)(4); 33 U.S.C. 1362(7)-(8)). The California Harbors and Navigation Code 775(a)(2) and (b) require compliance with the FWPCA. There is also a U.S. Environmental Protection Agency (USEPA) designated No Discharge Zone (NDZ) prohibiting sewage discharges in the marine waters of the state that applies to specified vessels of 300 gross tons or greater,4 which would apply to several classes of USCG vessels. Further, the USCG Vessel Environmental Manual includes a restriction on discharging raw sewage within 3.5 miles (3 nm) of land.

    3 The FWPCA refers to “miles” but the common interpretation is “nautical miles”, as statute miles are not used by mariners, and many states use a 3 nm from shore boundary (http://www.gc.noaa.gov/gcil_seaward.html).

    4 Various laws and regulations refer to gross tons or gross registered tons (GRT). In this document, NOAA uses the terms exactly as they appear in the specific legal source cited.

    D. Need for Action

    In the course of the rulemaking to expand GFNMS and CBNMS, NOAA received a letter dated February 4, 2013, from the USCG stating that the then-proposed prohibitions for the GFNMS and CBNMS expansion areas had the potential to jeopardize their ability to stay “mission ready” and would impair USCG surface and airborne use of force training activities, and SAR training activities. Of specific concern to the USCG were the then-proposed prohibitions on vessel sewage discharge and the ability of Coastal Patrol Boats to conduct any mission within the sanctuaries, in particular law enforcement and SAR missions.

    Following the publication of the proposed rule for the expansion (79 FR 20981), NOAA and USCG conducted interagency consultation to address the issue brought up during scoping. In a letter dated February 9, 2015, USCG communicated to the Office of Information and Regulatory Affairs at the White House Office of Management and Budget that they were prepared to discuss the possibility of a regulatory exception with NOAA after publication of the final rule to expand the sanctuaries. To accommodate the need for these USCG activities to take place after the expansion rule entered into effect, NOAA postponed, for six months from the effective date of the rule, the applicability of the discharge requirements to Coast Guard activities in both expanded areas. NOAA published the final rule for the expansion of GFNMS and CBNMS on March 12, 2015 (80 FR 13078), in the Federal Register and the rule became effective on June 9, 2015 (80 FR 34047). Additional six-month postponements of the effectiveness of the discharge requirements in the expansion areas were published in the Federal Register on December 1, 2015 (80 FR 74985), May 31, 2016 (81 FR 34268), December 6, 2016 (81 FR 87803), and June 7, 2017 (82 FR 26339) to enable completion of the environmental assessment and to determine NOAA's next steps. Another postponement of the effectiveness of the discharge requirements in the expansion areas (82 FR 55502) was published concurrently with the proposed rule (82 FR 55529) and draft environmental assessment, on November 22, 2017. The November 22, 2017 postponement extends the discharge requirements for the USCG activities in the expansion areas until December 9, 2018 or 30 days after this final rule publishes, whichever comes first, to provide adequate time for completion of a final EA and final rule, as appropriate. Therefore, the postponement of the discharge requirements will be superseded on the date this final rule is effective, 30 days after publication in the Federal Register.

    Of primary concern to USCG, prior to this final rule becoming effective, has been the discharge regulations in both expanded sanctuaries and USCG compliance with these regulations. USCG vessels have limited capacity to treat sewage and some have limited capacity to hold sewage and graywater, and are without Type I or II marine sanitation devices onboard to treat the wastewater prior to discharge. Accordingly, the discharges from such vessels would not fit within the existing regulatory exemptions for discharge within GFNMS and CBNMS. Training exercises designed to make USCG personnel ready for missions involving use of force and SAR involve discharging live ammunition and pyrotechnic materials. NOAA is concerned with protecting sanctuary resources and habitats, resolving any conflicts that could occur among sanctuary user groups (e.g., fishermen and USCG when conducting live fire training), and ensuring continued USCG enforcement of sanctuary regulations and other mission activities that support sanctuary management.

    Prior to the expansion of GFNMS and CBNMS, the USCG was able to comply with the sanctuaries' vessel discharge regulations by discharging untreated vessel sewage and non-clean 5 graywater in ocean waters outside GFNMS and CBNMS or by pumping it out at shoreside pump-out facilities. The expansion of GFNMS and CBNMS, with the resulting larger sizes of the sanctuaries and extension of discharge prohibitions to the expanded portions of the sanctuaries, would have made it difficult for the USCG to both fulfill its missions and comply with the vessel discharge prohibitions. The USCG vessels have constraints for treating and holding sewage and non-clean graywater, and crews would have had to plan for the extra time required to travel from the GFNMS and CBNMS expansion areas to USCG shoreside pump-out facilities in Bodega Bay and San Francisco Bay or to ocean waters outside national marine sanctuary boundaries to discharge vessel holding tanks (where allowed by state and federal regulations).

    5 Here and thereafter, ONMS intends to refer to graywater that does not meet the definition of “clean”, defined as not containing any detectable levels of a harmful matter (15 CFR 922.111), as non-clean graywater.

    Similarly, with regard to training activities, prior to the expansion of GFNMS and CBNMS, the USCG planned and conducted these exercises outside the sanctuaries' boundaries and within relatively short distances from USCG stations (e.g., Bodega Bay) without violating sanctuary discharge regulations. Because the USCG maritime enforcement, defense readiness, and SAR capabilities are enhanced by conducting live-fire and SAR exercises in the areas in which its personnel normally operate, the expansion of GFNMS and CBNMS and extension of discharge prohibitions to the expanded portions of the sanctuaries had the potential to impair the ability of USCG to operate and train to remain “mission ready”.

    E. History of Action

    Prior to the expansion of the two sanctuaries' boundaries, GFNMS and USCG had been discussing potentially allowing USCG to make discharges within the sanctuary during live fire and SAR training exercises. In 2012 and 2013, USCG District 11 and GFNMS held a series of meetings focused on discharges of flares, ammunition, and targets related to live fire and SAR training. During this time, GFNMS and USCG identified several areas for potentially allowing seasonal training-related discharges, as well as possible operating protocols. The intention was to consider allowing USCG training discharges via a national marine sanctuary permit, if the activities could be conducted in a way that would minimize potential impacts to marine mammals and other living marine resources. The USCG did not submit an application for a permit, and therefore NOAA did not issue a permit.

    After receiving the USCG's February 4, 2013 letter, NOAA initiated discussions with the USCG to address the full range of USCG discharges from training activities and untreated vessel sewage and non-clean graywater discharges in both GFNMS and CBNMS. As part of these discussions, the USCG and NOAA reviewed potential environmental effects and various approaches to mitigate potential harm to sanctuary resources from these USCG discharges, including national marine sanctuary permits and best practices for USCG discharge activities. In January 2015, prior to the publication of the final rule to expand GFNMS and CBNMS, NOAA and the USCG entered into interagency consultation to address both agencies' concerns. The details of this consultation are described above under “Need for Action”.

    From April 21 to May 31, 2016 (81 FR 23445), NOAA accepted public comments and information to determine the relevant scope of issues and range of alternatives for NOAA to address in the environmental assessment and proposed rule. Public and agency comments were received via the Federal e-Rulemaking Portal, by mail, and at three public meetings that were held in Sausalito, Bodega Bay and Gualala on May 10, 11 and 12, 2016, respectively. Comments received are available at www.regulations.gov (search for docket NOAA-NOS-2017-0140). NOAA considered these comments in preparing the proposed rule and associated draft EA, which were published on November 22, 2017.

    From November 22, 2017 to January 15, 2018 (82 FR 55529), NOAA accepted public comments on the draft EA and proposed rule for this action. Public and agency comments were received via the Federal e-Rulemaking Portal, by mail, and at two public meetings that were held in Sausalito and Gualala, CA on December 5 and 13, 2017, respectively. Comments received are available at www.regulations.gov (search for docket NOAA-NOS-2017-0140). NOAA considered these comments in preparing this final rule and associated final EA, and NOAA provides responses to these comments in these documents.

    F. Process

    The process for this action is composed of four major stages: (1) Information collection and characterization and public scoping; (2) preparation and release of a draft environmental assessment under the National Environmental Policy Act (NEPA), and any proposed amendments to the regulations if appropriate; (3) public review and comment of the proposed amendments and the draft environmental assessment; (4) preparation and release of a final environmental review document, and any final amendments to the GFNMS and CBNMS regulations, if appropriate. With the publication of this final rule, NOAA completes the fourth phase of this process.

    NOAA fulfilled its responsibilities to complete required consultations and/or receive necessary authorizations under the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361 et seq.), Section 7 of the Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.), Section 106 of the National Historic Preservation Act (NHPA; 54 U.S.C. 300101), and Federal Consistency review under the Coastal Zone Management Act (CZMA; 16 U.S.C. 1451 et seq.), along with its ongoing NEPA (42 U.S.C. 4321 et seq.) process including the use of NEPA documents and public meetings, to also meet the requirements of other federal laws (See Section IV below). Together with this final rule, NOAA is releasing a final EA containing more detailed information on the considerations of this action, including assessment of alternatives, analysis of potential environmental impacts, and references. NOAA has prepared a FONSI for this action. The EA can be found on the website and the EA and FONSI can be obtained from the official listed in the FOR FURTHER INFORMATION CONTACT section above.

    II. Summary of the Regulatory Change A. Sewage and Graywater

    With this final rule, NOAA amends the regulations for GFNMS and CBNMS to allow USCG vessels to discharge untreated sewage and non-clean graywater only in the federal waters of the expansion areas of GFNMS and CBNMS, seaward of a line, approximately 6 3.5 miles (3 nautical miles (nm)) from the shoreline, that is designated in coordinates included in appendices to the regulatory text. USCG discharges of untreated sewage and non-clean graywater from vessels that are not equipped with a Type I or II MSD and without sufficient holding tank capacity will be allowed to continue, as per historic and current routine USCG operational practices in waters of both expansion areas beyond 3 nm from shore. As previously described, these discharges have continued since June 2015 due to NOAA's decision to temporarily delay the effective date of applying sanctuary discharge prohibitions with respect to USCG activities while NOAA assessed these activities, alternatives, and their potential environmental effects.

    6 The designated coordinate points reflect the seaward boundary of “state waters”, which are herein referred to as approximately 3 nm from the California shoreline. The term “state waters” within GFNMS generally refers to the portion of GFNMS from the California shoreline (including around the Farallon Islands) to approximately 3 nm from shore (California Harbors and Navigation Code 775.5[h]; United States of America v. State of California (135 S.Ct. 563 (Mem) (2014) (establishing the seaward boundary of state submerged lands; http://www.slc.ca.gov/Info/Water_Boundaries.html)). CBNMS is not located within state waters. While this seaward boundary is fixed, the phrase “approximately 3 nm from the shoreline” is used because the exact distance of the coordinate points from the shore may have some slight variation, due to continuing shoreline and sea level changes and different mapping/data conventions. The new regulatory text includes appendices with coordinates to identify the areas where the new discharge exceptions for certain USCG activities apply.

    The existing GFNMS and CBNMS discharge prohibitions provide an exception for clean sewage discharge (“clean effluent”) through a Type I or II MSD for: (1) A vessel less than 300 GRT, or (2) a vessel 300 GRT or greater without sufficient holding tank capacity to hold sewage while within the Sanctuary (15 CFR 922.82(a)(2)(ii) and 922.112(a)(2)(i)(B)). They also provide an exception for clean graywater to be discharged from: (1) A vessel less than 300 GRT, or (2) a vessel 300 GRT or greater without sufficient holding tank capacity to hold graywater while within the Sanctuary (15 CFR 922.82(a)(2)(iv) and 922.112(a)(2)(i)(D)). According to the USCG, its vessels operating in GFNMS and CBNMS are without Type I or II MSDs onboard to treat sewage or sewage mixed with graywater, prior to discharge. Some classes of USCG vessels also have limited capacity to hold sewage and non-clean graywater until it may be discharged outside GFNMS and CBNMS, or pumped out at an onshore disposal facility. Thus, if the 2015 regulations had taken effect in the expansion areas of GFNMS and CBNMS, the vessels would not have been able to legally discharge in those portions of the sanctuaries in a manner consistent with these existing regulatory exceptions. The USCG discharge exceptions to the GFNMS and CBNMS prohibitions contained in this final rule are in addition to the existing exceptions noted earlier.

    The areas within GFNMS and CBNMS in which these USCG vessel discharges are excepted from the sanctuaries' discharge prohibitions correspond to the waters seaward of approximately 3 nm from shore in the expansion areas of GFNMS and CBNMS (i.e., the areas added when the sanctuaries expanded in 2015). The geographic coordinates of these areas are listed in an appendix to each sanctuary's regulations (appendix G of subpart H for GFNMS and appendix C of subpart K for CBNMS). Aside from the exceptions for USCG training-related discharges (see below), the USCG will be required to continue complying with all other existing prohibitions provided in 15 CFR 922.82 and 922.112 in both the pre-expansion areas and the expanded sanctuaries' boundaries and comply with the prohibitions for vessel discharges within the pre-expansion boundaries of the two sanctuaries.

    NOAA has made some minor changes to the exceptions to the GFNMS and CBNMS regulatory prohibitions on discharges proposed on November 22, 2017 (82 FR 55529). In the proposed rule, NOAA considered exceptions for “a United States Coast Guard vessel that is without sufficient holding tank capacity and is without a Type I or II marine sanitation device, and that is operating within the designated area [. . .]” (proposed 15 CFR 922.82(a)(2)(vi) and proposed 15 CFR 922.112(a)(2)(i)(F)). NOAA removed the words “that is” in the regulatory text as they were not grammatically necessary. NOAA also clarified in the regulatory text that the “designated area” means the portion of the 2015 expansion area for GFNMS specified in Appendix G to Subpart H of Part 922 and the entire 2015 expansion area for CBNMS as specified in Appendix C to Subpart K of Part 922. Though the coordinates for the boundaries of the designated area are presented in table form, adding the term “2015 expansion area” in the regulations makes it easier to understand. There are no changes to the regulatory prohibitions or exceptions applicable to the pre-expansion areas of the sanctuaries. Lastly, NOAA is also making a correction to a printing error that inadvertently omitted sub-paragraph 15 CFR 922.82(a)(3) and repeated sub-paragraph 15 CFR 922.82(a)(4) twice in the November 2017 proposed rule.7 These minor changes to the rule text do not, in practice, expand the exception to cover any additional USCG vessels that currently operate in the expansion areas of GFNMS and CBNMS. Rather, the revision is a minor, technical, and nonsubstantive correction to reduce any confusion about the areas where this new exception would apply. The correction would not substantially change the proposed action, alternatives, or the impact conclusions in a way that would lead to new or different, reasonably foreseeable environmental impacts. For these reasons, NOAA has determined that supplementation of the EA and reissuance of the rule for public comment are not required at this time.

    7 The printing error affected the Federal Register formatting of the proposed revised regulation, including duplicating the language of one of the sub-paragraphs, but the printing error did not affect the substance or effect of the proposed regulation as revised. No revisions were proposed within sub-paragraph 15 CFR 922.82(a)(3).

    B. Discharges of Ammunition and Pyrotechnic Materials During Training

    NOAA amends the GFNMS and CBNMS regulations to allow USCG discharges of ammunition and pyrotechnic materials (including warning projectiles, flares, smoke floats and marine markers) during live ammunition and search and rescue training exercises only in the federal waters of the expansion areas of GFNMS and CBNMS, seaward of approximately 3.5 miles (3 nautical miles (nm)) from the shoreline. The geographic coordinates of this designated area, where training discharges are excepted from the sanctuary discharge prohibition within GFNMS and CBNMS, are the same as the coordinates for the designated area for USCG vessel discharges and listed in an appendix to each sanctuary's regulations.

    Aside from the previously described exceptions for USCG vessel discharges of untreated sewage and graywater, the USCG will be required to continue complying with all other existing prohibitions—in 15 CFR 922.82 and 922.112 in both the pre-expansion areas and the expanded sanctuaries' boundaries, and will be required to continue complying with the prohibitions for vessel discharges within the pre-expansion boundaries of the two sanctuaries. There are no changes to the regulatory prohibitions or exceptions applicable to the pre-expansion areas of the sanctuaries.

    This final rule focuses on regulatory exceptions to the GFNMS and CBNMS general discharge prohibitions for the specified USCG discharges. However, NOAA presents in the final EA a variety of alternatives for protecting sanctuary resources while addressing the USCG's request to allow for USCG's routine discharges of untreated sewage and graywater from vessels and training discharges in GFNMS and CBNMS, allowing the USCG to fulfill its missions, including missions of enforcing the NMSA and other resource protection laws, and comply with the sanctuaries' regulations. The final EA also lays out in more detail NOAA's consideration and analysis of factors pertinent to this final rule. These include the ability of USCG to complete its mission operations and, in the expansion areas of the sanctuaries, constraints in certain USCG vessel capabilities to treat and hold sewage and graywater; the role that USCG live fire and search and rescue trainings in the expansion areas of the sanctuaries play in USCG mission readiness; and the extent to which such USCG activities may be conducted, to the maximum extent feasible, in a manner consistent with the sanctuaries' primary objective of resource protection. This final rule was prepared following consideration of the alternatives and potential environmental impacts discussed in the EA; consideration of the extent to which each alternative would meet the purpose and need of allowing USCG to continue discharging certain materials in the expansion areas of GFNMS and CBNMS, while remaining consistent with sanctuary resource protection and other purposes and policies of the NMSA; and consideration of public comments received on the proposed rule and draft EA. The final regulatory amendments are the same as those NOAA presented for public comment in the proposed rule, with no changes other than a correction to a printing error that repeated one sub-paragraph twice.

    III. Response to Comments

    NOAA received 13 comments on the proposed rule and draft environmental assessment during the November 22, 2017 to January 16, 2018 public review period, which are available online at https://www.regulations.gov/docket?D=NOAA-NOS-2017-0140. NOAA received comments via online submissions to the regulations.gov website and via oral testimony during a public hearing. Some of the comments contain combined input from multiple individuals on several topics (e.g., two individuals provided oral testimony at one public hearing, as indicated in the comment submitted for the hearing). NOAA grouped the comments into five topic areas with subtopics, which are summarized below, along with NOAA's responses. NOAA did not summarize or respond to three comments that were not relevant to the proposed rule and the draft environmental assessment, and therefore not relevant to this final rule.

    Support USCG Missions

    Comment: Expressed support for USCG missions and activities in GFNMS and CBNMS, particularly activities conducted as part of the cooperative relationship with national marine sanctuaries, including law enforcement, monitoring, interdiction, resource protection, marine navigation support, national security readiness, SAR, and emergency oil spill response.

    Response: NOAA acknowledges and supports the USCG mission to enforce all applicable federal laws within this region and USCG actions supporting NOAA's activities to protect resources and facilitate public and private uses within national marine sanctuaries, compatible with resource protection. In addition, NOAA recognizes that the USCG is charged with conducting a number of other important missions that are not related to the sanctuaries' management.

    Better Justify Necessity of USCG Training Discharges

    Comment: NOAA should provide convincing information regarding the necessity to discharge firearms, flares and other training devices within the sanctuaries' expansion areas.

    Response: The USCG indicated to NOAA that planning and conducting the training exercises involving discharges of ammunition and pyrotechnic materials in the GFNMS and CBNMS expansion areas is logistically and economically preferable to the USCG, allowing USCG personnel to be able to train within relatively short distances from local USCG stations in an environment similar to that of real-life missions. As an example, it would take the 87-foot Coastal Patrol boats based in San Francisco and farther north an average of two to three days to transit to offshore training areas used by the USCG in Southern California, which would extend the duration of a day-long training exercise to almost a week. SAR/pyrotechnics training is an annual requirement for all boat crew members. The USCG states its maritime enforcement, defense readiness, and SAR capabilities are enhanced by conducting live fire and SAR training exercises in the areas in which their personnel normally operate. The USCG, prior to expansion of GFNMS and CBNMS in 2015 and until the present, has had the ability to conduct training-related discharges in the areas into which the two sanctuaries expanded. Due to the USCG's need to train in the areas in which they would have to conduct actual operations along with other logistical, budgetary, and operational challenges, the USCG has stated that conducting all live fire and SAR trainings in other areas outside the expanded portions of the sanctuaries would affect its ability to maintain mission readiness of its personnel.

    Oppose Regulatory Exceptions

    Comment: NOAA should not exempt the discharge of harmful pollutants into national marine sanctuaries. A regulatory exemption has the potential to set an undesirable precedent for future national marine sanctuary management decisions.

    Response: NOAA's action is specific to the expansion areas of GFNMS and CBNMS, and focuses on USCG discharges that have historically been taking place in those areas. For any proposed action, including one involving a proposed sanctuary expansion or other type of rulemaking, NOAA evaluates the purpose and need, according to the particular geography, marine resources, environmental conditions, human uses, anticipated effects and other factors, on a case-by-case basis. In selecting a final action, NOAA further considers and evaluates, on a case-by-case basis, the proposed action and alternatives in light of public comments received. While previous agency actions may serve to inform future decision-making on similar subjects, they do not predetermine future actions NOAA may make.

    Support for No Action Alternatives

    Comment: NOAA should adopt the No Action alternatives, Sewage/Graywater Alternative 3 and Training Alternative 3, which would prohibit untreated sewage, graywater, projectiles, flares, etc. resulting from USCG operations in national marine sanctuaries.

    Response: Under the No Action alternatives (Sewage/Graywater Alternative 3 and Training Alternative 3), NOAA would take no further action with respect to USCG discharges, thereby allowing the discharge prohibitions to go into effect for USCG activities. Therefore, adopting the No Action alternatives would result in the USCG no longer being allowed to lawfully discharge in the expanded portions of the sanctuaries. This would negatively affect the USCG's ability to meet its mission requirements, including missions to protect sanctuaries' resources and enforce sanctuaries' regulations, and would negatively affect NOAA's ability to meet the purpose and need for the proposed action. Therefore, NOAA continues to find compelling reasons to adopt the action alternatives to allow the discharges.

    Support for Permits for Selection as Final Action

    Comment: NOAA should, in conjunction with the No Action alternatives, issue permits to the USCG to allow USCG discharges to continue in order to maintain USCG operations. A permitting approach would not set a precedent; it would allow NOAA to assess conditions periodically and allow for future adaptive management, by inclusion of special terms and conditions in permits to protect the sanctuaries' resources and wildlife. Suggestions for various permitting conditions include issuing multi-year permits, setting specific boundaries for discharges, requiring best management practices and reporting the discharges to NOAA. Issuing permits could be an interim measure until advanced treatment technologies could be installed on USCG vessels.

    Response: During interagency consultation on the final rule for the boundary expansion for the sanctuaries, USCG requested an exception to regulations as opposed to a permit and indicated to NOAA it does not intend to submit a national marine sanctuary permit application regarding this matter. NOAA cannot issue a permit without first receiving a national marine sanctuary permit application. Since NOAA and USCG are federal agency partners, and USCG supports sanctuary missions, NOAA elected to consider, and propose for public review and comment, the option of creating regulatory exceptions. In the draft EA, NOAA included a discussion of the possibility of issuing permits for USCG discharges under the section for alternatives considered and eliminated from further analysis. As further discussed in the EA, because a permit alternative may be more disruptive or burdensome to USCG mission operations of protecting sanctuary resources and enforcing sanctuary regulations than would regulatory exceptions, this alternative would be less suited to meeting the purpose and need of the proposed action. Moreover, the impacts on the environment and human uses of discharges allowed by a permit would likely be similar, and in some cases identical, to those that would be allowed by the regulatory exceptions proposed in Sewage/Graywater Alternatives 1 and 2 and Training Alternatives 1 and 2. In the final EA, to clarify that the issuance of national marine permits is not an action NOAA would intend to take as part of the No Action alternatives, NOAA revised the descriptions of the No Action alternatives.

    Effects of USCG Untreated Vessel Sewage and Non-Clean Vessel Graywater Discharges

    Comment: NOAA should not allow untreated sewage and graywater discharges because they pose risks to or may cause harmful impacts to the local marine ecosystem, including the death of marine species found in GFNMS and CBNMS. Raw sewage in the ocean may transmit dangerous pathogens and intensify future harmful algal blooms and may cause or contribute to eutrophication, localized ocean acidification, or hypoxic or anoxic conditions. Raw sewage contains high levels of harmful microbes, which can be transferred to marine mammals and cause disease or injury. Sewage dumping is known to increase the occurrence and intensity of harmful algal blooms that regularly occur off of the California coast, including within the sanctuaries, which can cause a variety of impacts to or death of marine species.

    Response: NOAA shares concerns with discharge of untreated sewage and non-clean graywater into national marine sanctuary waters. However, as described in the EA, NOAA expects the infrequent, minor and limited amount of untreated sewage and non-clean graywater discharges from the USCG vessels to quickly disperse and thereby reduce or eliminate any adverse effects on the marine environment. For the reasons explained in the EA, NOAA's preferred alternative for the sewage and graywater discharges is not likely to cause significant adverse impacts on existing water quality conditions in offshore waters, and thus no significant adverse impact beyond the status quo in these portions of the sanctuaries. Additionally, the USCG vessel discharges are already occurring and have been taking place historically, with no observed adverse impacts on environmental conditions. NOAA emphasizes that this analysis is specific to the action evaluated here—regulatory exceptions for certain USCG vessel discharges—and does not predetermine or control any evaluation of potential impacts of other vessel discharges within the sanctuaries.

    Effects of USCG Training Discharges of Ammunition and Pyrotechnic Materials

    Comment: NOAA should not allow the USCG to discharge materials incidental to training activities within GFNMS and CBNMS that may poison wildlife or harm human health. For example, various ammunition components may contain dangerous metals, such as arsenic, cadmium, lead, or mercury. In many states, the use of lead products during hunting and fishing has been banned to preserve the health of fish and wildlife. NOAA should work with local communities of biologists to try to avoid or lessen conflict with animal migrations, such as those of whales and seabirds.

    Response: NOAA does not have any evidence to indicate the USCG live ammunition and SAR training-related discharges in the GFNMS and CBNMS expansion areas have been resulting or in the future would result in any significant adverse impacts to water quality, wildlife or human health. Two of the types of ammunition used during training the USCG characterized as copper-jacketed and the third was uncharacterized by the USCG. The USCG has not indicated it plans to discharge any toxic or hazardous materials or substances in quantities or locations that would be expected to cause significant adverse effects in living resource or humans. Under this final rule, the GFNMS and CBNMS regulations exclude sensitive areas for both marine mammals and seabirds typically found along shorelines, beaches, and rocky outcroppings in nearshore waters. While trace amounts of chemical constituents discharged from weapons and pyrotechnic devices mostly burn up above the surface of the water, some constituents may fall into the water. In general, in the areas within GFNMS and CBNMS in which training discharges are allowed under this final rule, the dynamic oceanic conditions would be expected to disperse these trace amounts of any residual chemical constituents that enter the water as they sink through the water column. There is some risk of fish and wildlife ingestion of the training discharges materials, but the risk is low due to the very infrequent occurrence of these exercises and the rapid sinking and dispersal of residual components of the discharges. Some residual constituents could sink and persist in marine sediments. Training on a given day normally does not take more than 12 hours, including transit times, and is completed in the same day. The USCG generally conducts live fire and SAR trainings 3-5 days per year (up to 6-10 during a worst case scenario). More information on USCG training activities can be found in the EA. NOAA would not expect significant adverse effects to benthic habitat to occur given the small number of training days and limited number of discharges.

    Comment: NOAA should not allow USCG-training related discharges in GFNMS and CBNMS in areas that could interfere with recreational and commercial fishing vessels or conflict with human activities near harbor mouths (such as in Bodega Bay or Point Arena). NOAA should work with local communities of biologists and fishermen to try to avoid or lessen conflicts with human activities that may occur as a result of the training-related discharges, and should consider limiting the size and location of the training area.

    Response: NOAA found no documentation of significant adverse impacts on human uses from past USCG discharges in the GFNMS and CBNMS expansion areas. Under the final rule, the GFNMS and CBNMS discharge prohibitions apply to USCG discharges from the shoreline out to about 3.5 miles (3 nm) in the expanded portions of the two sanctuaries. Thus, the USCG will not be making any discharges adjacent to harbor mouths or by shoreline areas where humans might gather mussels or other resources known to bioaccumulate hazardous or toxic substances. Furthermore, NOAA will continue to actively manage both national marine sanctuaries, including working closely with all the users of the sanctuaries. If concerns arise in the future about interference between USCG discharges and other users, NOAA will discuss those with the USCG and may complete further reviews as needed.

    Endangered Species Act (ESA) Consultation on Effects of Discharges

    Comment: Because the proposed exceptions for untreated sewage, graywater and other toxic materials may result in the take of species listed under the ESA, NOAA's ESA section 7 consultation must ensure that granting exceptions for those discharges do not jeopardize the continued existence of any listed species.

    Response: Upon release of the draft environmental assessment and proposed rule, NOAA informally consulted with NMFS and the USFWS on the proposed action, pursuant to section 7 of the ESA. NMFS responded to NOAA that it concurred with NOAA's determination that the proposed action may affect, but is not likely to adversely affect species and critical habitat. As of June 5, 2018, the USFWS did not provide a response to NOAA's consultation request, at which point NOAA presumed concurrence for the reasons provided in the Classification section below. Like NOAA, the USCG is required to follow all relevant federal and state laws, including compliance with environmental statutes, for USCG activities that may affect the environment. The USCG is responsible for complying with ESA section 7 consultation requirements for the effects of the actual USCG activities on threatened and endangered species, as the USCG would be the federal agency performing these activities.

    Retrofit Vessels

    Comment: NOAA did not fully consider, and dismissed as infeasible, the alternative of installation of MSDs and graywater treatment facilities on all USCG vessels. The USCG has not explained why it cannot retrofit its vessels and has not explained the costs of doing so. The USCG should be able to make improvements so its vessels do not discharge untreated sewage, by installing Type I or II MSDs and larger holding tanks for untreated sewage and graywater or find other solutions. Retrofitting vessels would be the best solution and would eliminate the need to discharge untreated sewage and graywater at sea. NOAA should encourage the USCG to retrofit vessels over time.

    Response: NOAA has encouraged the USCG to consider retrofitting its vessels with equipment to eliminate the need for discharging untreated sewage and non-clean graywater. However, implementation of this alternative would be beyond the scope of NOAA's authority and jurisdiction under current and reasonably foreseeable circumstances. Moreover, as discussed in the EA section on alternatives considered but eliminated from further analysis, analyzing this alternative would be speculative in the absence of objective information on the status of USCG plans and funding for future vessel designs and acquisition to replace its current fleet of vessels used in GFNMS and CBNMS, or on the feasibility of implementing this alternative 20 years in the future. Moreover, the information needed to conduct a full analysis of this potential alternative is not relevant to a reasonably foreseeable significant adverse impact, as the EA concludes that the effects of the proposed action and alternatives would be less than significant, and is not essential to a reasoned choice among alternatives.

    New Vessels

    Comment: NOAA should encourage the USCG to include sewage and graywater treatment or larger holding tanks in any new vessels expected to operate in these marine sanctuaries, rather than permanently allowing discharges of pollutants into sensitive marine environments. Improved technologies and advanced treatment on modern vessels should become available to the USCG.

    Response: NOAA has encouraged the USCG to consider purchasing new vessels outfitted with Type I or II MSDs (as pertinent to vessel sizes), larger holding tanks or other equipment to prevent discharge of untreated sewage and non-clean graywater. However, the purpose and need of the proposed action reflects the need for existing USCG vessels with Type III MSDs currently to make untreated sewage and non-clean graywater discharges in the expansion areas of GFNMS and CBNMS. NOAA's discussions with USCG on the lifecycles of their vessels indicate that the existing vessels typically operating in GFNMS and CBNMS have at least another 20 years of lifespan before new vessels would replace them. NOAA previously considered having the USCG purchase new vessels as an alternative, but dismissed it from further consideration, because analysis of this alternative would be speculative and implementation of this alternative would also be beyond the scope of NOAA's authority and jurisdiction under current and reasonably foreseeable circumstances.

    Inadequacy of Environmental Impact Analysis

    Comment: The environmental assessment is inadequate. NOAA should develop a full environmental impact statement (EIS) for this proposed action.

    Response: After reviewing the available information on the proposed action, the information provided during the public comment period, and the results of consultations as required under applicable natural and cultural resource statutes, NOAA determined that no significant impacts to resources or the quality of the human environment are expected to result from the final rule. Accordingly, under NEPA (43 U.S.C. 4321 et seq.) an environmental impact statement is not required to analyze the potential impacts of this action.

    Maintain High Conservation Standards

    Comment: NOAA should maintain the high conservation standards in the sanctuaries' expansion areas that have been in place in the original sanctuary areas [prior to expansion]. The present discharge prohibitions have proven critical to maintaining and improving water quality and living marine resources. The proposed exceptions for USCG discharges of raw sewage, dirty graywater and other toxic materials such as ammunition go against the primary policies of the NMSA (16 U.S.C. 1431(b)(3, 4)), the history of management of sanctuaries, sound stewardship of ecological resources, the rules designating the sanctuaries, and the sanctuaries' regulations that prohibit discharging untreated vessel waste. The final rule designating GFNMS (then the Point Reyes-Farallon Islands National Marine Sanctuary; 46 FR 7936) listed “discharges incidental to vessel use” as one of the chief threats facing the sanctuary; the proposed rule for designating CBNMS (52 FR 32563) determined that limiting human-caused discharges of “any material or substance” was a primary conservation management goal. Also, the 2008 GFNMS and CBNMS management plans cite the need to continue efforts to control dumping and other discharges.

    Response: In evaluating the proposed and final action, NOAA considered the purpose and need for the action, the area potentially affected, the purposes and policies of the NMSA, the GFNMS and CBNMS regulations, and the management plans (from 2008 and 2014), among other factors. The action supports the purposes and policies of the NMSA, particularly: “(2) to provide for comprehensive and coordinated conservation and management of these marine areas, and activities affecting them, in a manner which complements existing authorities;. . .(6) to facilitate to the extent compatible with the primary objective of resource protection, all public and private uses of these marine areas not prohibited pursuant to other authorities; . . .[and] (7) to develop and implement coordinated plans for the protection and management of these areas with appropriate Federal agencies . . .”. (16 U.S.C. 1431(b)). In addition, NOAA's regulatory and management framework for GFNMS and CBNMS do contemplate limited allowances of discharges as compatible with the purposes and policies of the NMSA: The existing regulatory discharge prohibitions in GFNMS and CBNMS contain limited exceptions for certain discharges, including some discharges incidental to vessel use. (15 CFR 922.82(a)(2), 922.112(a)(2)(i)). In the EA and analysis for this rule, NOAA has determined that water quality in the GFNMS and CBNMS expansion areas is relatively good, and that the action is not expected to result in significant adverse impacts on water quality or on living marine resources. Further, the number of USCG vessels that will discharge limited amounts of untreated sewage and non-clean graywater is small and training-related discharges of limited quantities of ammunition and pyrotechnic materials will occur only a few days per year (estimated to average 3-5 days, or a maximum of 6-10 days should a serious national security event happen and the USCG needed to expand its normal training program to address it). Therefore, NOAA finds this action appropriate under the NMSA, because it is compatible with the primary objective of resource protection of the sanctuaries and would facilitate the management and enforcement actions of an important federal partner within the GFNMS and CBNMS expansion areas. For additional information on the analyses and alternatives considered and NOAA's rationale for finalizing this action, please see the preamble of the final rule and the final EA.

    Other Alternatives Not Fully Considered

    Comment: NOAA did not fully consider or dismissed any alternatives that would eliminate the need for allowing the USCG to dump untreated pollutants and therefore the need for regulatory exception.

    Response: NOAA described the alternatives it considered to implement the action. For each alternative eliminated from further consideration, NOAA provided the reasons why it did not consider further consideration to be appropriate or feasible, or within the scope of NOAA's authority and jurisdiction under current and reasonably foreseeable circumstances.

    Comment: A possible alternative NOAA should consider is installing pump-out stations at key locations along the coast, a recommended action in the 2008 GFNMS and CBNMS management plans. NOAA should consider requiring the USCG to use the pump-out stations at Bodega Bay, Eureka, and San Francisco Bay. NOAA should foster the development, accessibility, and use of coastal pump-out stations.

    Response: The four classes of USCG vessels with Type III MSDs operating in the GFNMS and CBNMS expansion areas already use non-public USCG pump-out stations at Bodega Bay and San Francisco Bay, and a non-public facility in Eureka. NOAA understands that these USCG vessels occasionally reach holding tank capacities while conducting operations, and it could be detrimental to mission objectives for USCG personnel to break off their missions to travel outside the sanctuaries' boundaries to discharge (where permitted) or to return to discharge at the shoreside facilities. The final rule is intended to address discharges from USCG vessels without sufficient holding tank capacities, Type I MSDs or Type II MSDs. NOAA did not consider an alternative of immediate installation of additional pump-out stations along the coast adjacent to the GFNMS and CBNMS expansion areas and then requiring USCG vessels to pump out at such stations because implementation of such actions is beyond the scope of NOAA's authority. Planning for, installation and continued operation of new shoreside pump-out facilities in counties adjacent to the expansion areas that would be able to accommodate USCG vessels 87 to 418 feet in length would be dependent upon the availability of suitable geographic locations and subject to the approval of state and relevant local harbor management entities.

    Comment: A possible alternative NOAA should consider is restricting the discharges to waters a safe distance away from the sanctuaries and state waters. NOAA should not allow the discharges in state waters, especially in waters used for commercial and recreational purposes, such as Tomales Bay.

    Response: The action does not allow discharges in state waters. NOAA considered and evaluated not allowing USCG to discharge in all waters of the expanded portions of GFNMS and CBNMS by analyzing Sewage/Graywater Alternative 3 (No Action), and rejected this alternative as not feasible for allowing the USCG to meet its mission requirements in the expansion areas, and thus not feasible for meeting the purpose and need of the proposed action.

    Public Process

    Comment: NOAA's amendment of the regulations to allow the USCG to discharge in the expansion areas would undermine the strength and purpose of the public process and adoption of the regulations in the 2015 final rule. This proposed regulation could invite future legal, legislative or political challenges to the protections of the sanctuaries.

    Response: NOAA has properly followed the relevant procedures for its action and for its final rule to expand GFNMS and CBNMS, including obtaining comments from interested parties during public comment periods as part of scoping and after release of the draft environmental analysis documents and proposed rules. NOAA determines proposed actions based on analyses of available information and on the factors discussed in the relevant environmental analysis documents, in conjunction with public comments received. Public support or opposition may help guide important public policies or other decisions. Future challenges to management and protection of GFNMS and CBNMS are not currently known and therefore would be speculative to analyze.

    Changing Regulations

    Comment: Amending the approved regulations would lock in unique exceptions for the USCG that could not easily be modified, as evidenced by the difficulty and lengthy time in considering the current proposals.

    Response: NOAA acknowledges that the process to amend federal regulations may be lengthy. However, if in the future, the need for the USCG to continue making the discharges in the GFNMS and CBNMS expansion areas should substantively decrease or cease, causing any part of the regulatory exceptions to become obsolete, NOAA could consider initiating a subsequent rulemaking process to alter the regulations.

    Consideration of Sanctuary Advisory Councils' Advice

    Comment: NOAA should give great consideration to the fact that both sanctuary advisory councils have unanimously passed resolutions opposing any changes in the regulations, supporting Sewage/Graywater Alternative 3 and Training Alternative 3.

    Response: NOAA appreciates the advice provided by the two sanctuary advisory councils in this instance and on an ongoing basis. While advisory council recommendations are a valuable source of input from stakeholders and experts on sanctuary management issues, they are not determinative of agency action: Rather, the agency must propose and evaluate actions and alternatives under the established public regulatory and environmental review process. NOAA has carefully considered the input of both sanctuary advisory councils, along with the other comments received, information presented in the environmental assessment and the results of consultations with other agencies and public comment. Based on the stated purpose and need for the action and the environmental analysis conducted, as well as the fact that the USCG is one of NOAA's partners in sanctuary resource protection, requested a regulatory exception during interagency consultation, and has not applied for a national marine sanctuary permit, NOAA continues to find compelling reasons to implement the final rule.

    USCG Enforcement of Discharge Regulations and Uniform Application of Discharge Prohibitions

    Comment: The USCG is getting a pass (or “bye”) for discharges that others, including fishermen, are not allowed to make in the sanctuaries. NOAA should fairly apply regulations and procedures to government organizations and the public alike. Moreover, the USCG is tasked with enforcing the sanctuaries' discharge regulations. Any regulation allowing one group (e.g., the USCG) to undertake otherwise prohibited discharges of pollutants anywhere in GFNMS and CBNMS weakens the protections established under the NMSA.

    Response: NOAA acknowledges that the USCG, as part of its portfolio of missions, has a law enforcement mission and enforcing the sanctuaries' regulations is one of the USCG's responsibilities. NOAA has detailed the reasons for the USCG's need to continue making the discharges in the GFNMS and CBNMS expansion areas, as it has done prior to the expansion of the sanctuaries in 2015. NOAA has described the purpose for this action and how the USCG assists NOAA with management of the sanctuaries, which is consistent with the purposes and policies of the NMSA, particularly: “(2) to provide for comprehensive and coordinated conservation and management of these marine areas, and activities affecting them, in a manner which complements existing authorities; . . . (6) to facilitate to the extent compatible with the primary objective of resource protection, all public and private uses of these marine areas not prohibited pursuant to other authorities; . . . [and] (7) to develop and implement coordinated plans for the protection and management of these areas with appropriate Federal agencies. . . .” As described in detail in the EA, NOAA expects that the minor and limited volumes of USCG discharges will not cause any significant adverse impacts on sanctuary resources or human uses. The number of other vessels that operate in the national marine sanctuaries is extremely large compared to the number of vessels used for USCG missions, resulting in the potential for cumulative vessel discharge from those vessels vastly greater than that from the USCG. Additionally, NOAA finds that the functions and activities the USCG performs to assist management of GFNMS and CBNMS are beneficial to NOAA, and they could not be easily replaced, if at all, if the USCG had to curtail or cease them in the expanded portions of the sanctuaries.

    IV. Classification A. National Environmental Policy Act

    NOAA has prepared a final environmental assessment (EA) to evaluate the potential impacts on the human environment of this rulemaking, including the preferred action analyzed in the final EA, as well as alternative actions. No significant adverse impacts to resources and the human environment are expected, and accordingly, under NEPA (43 U.S.C. 4321 et seq.) an environmental assessment is the appropriate document to analyze the potential impacts of this action. NOAA finalized its NEPA analysis and findings and prepared a final EA document and Finding of No significant Impact. Copies of the final EA are available at the address and website listed in the ADDRESSES section of this final rule.

    B. Executive Order 12866: Regulatory Impact

    This final rule has been determined to be not significant within the meaning of Executive Order 12866.

    C. Executive Order 13771: Regulatory Reform

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

    D. Executive Order 13132: Federalism Assessment

    NOAA has concluded this regulatory action does not have federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132.

    E. Regulatory Flexibility Act

    The purpose of the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) is to fit regulatory requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to the regulation. The RFA requires that agencies determine, to the extent feasible, the rule's economic impact on small entities, explore regulatory options for reducing any significant economic impact on a substantial number of such entities, and explain their ultimate choice of regulatory approach. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) at the proposed rule stage that the final rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is that the changes are specifically targeted to the activities of the USCG in CBNMS and GFNMS, and will not have an economic effect on any small businesses. Also, this final rule will not substantively alter the rights, responsibilities, or legal obligations pertaining to vessel discharges for the regulated community. As a result, a final regulatory flexibility analysis is not required and none has been prepared.

    F. Paperwork Reduction Act

    This final rule does not create any new information collection requirement, nor does it revise the information collection requirement that was approved by the Office of Management and Budget (OMB Control Number 0648-0141) under the Paperwork Reduction Act of 1980 (PRA; 44 U.S.C. 3501 et seq). Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

    G. National Historic Preservation Act

    In fulfilling its responsibility under the National Historic Preservation Act (NHPA;54 U.S.C. 300101 et seq.), and NEPA, NOAA determined the proposed action was not the type of activity that would affect historic properties and communicated to the California State Historic Preservation Officer (SHPO) upon publication of the proposed rule that it expected no adverse effect to historic properties resulting from this undertaking. On December 20, 2017, the California SHPO responded with no objection to NOAA's determination, thereby completing NHPA requirements. No individuals or organizations notified NOAA after publication of the proposed rule that they wished to participate as a consulting party.

    Satisfying consultation requirements for the effects of the actual USCG activities, including vessel discharges of untreated sewage and non-clean graywater and training-related discharges, on historic properties remain the responsibility of USCG, as USCG will be the federal agency performing these activities.

    H. Endangered Species Act

    The Endangered Species Act (ESA) of 1973 as amended (16 U.S.C. 1531, et seq.), provides for the conservation of endangered and threatened species of fish, wildlife, and plants. Federal agencies have an affirmative mandate to conserve ESA-listed species. Section 7(a)(2) of the ESA requires federal agencies to, in consultation with the National Marine Fisheries Service (NMFS) and/or the U.S. Fish and Wildlife Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of an ESA-listed species or result in the destruction or adverse modification of designated critical habitat. NOAA's ONMS initiated informal consultation under the ESA with NOAA's NMFS Office of Protected Resources (OPR) and the United States Fish and Wildlife Service (USFWS) upon publication of the proposed rule and draft EA. The ONMS consultations focused on potential adverse effects to threatened and endangered species by providing regulatory exceptions to its discharge prohibitions within waters of the GFNMS and CBNMS expansion areas seaward of approximately 3 nm from the shore. ONMS provided the proposed rule, the draft environmental assessment, a biological evaluation, and additional information to staff of NMFS and USFWS. NMFS responded that it concurred with ONMS's determination of no adverse impacts to species listed as threatened or endangered and critical habitat designated under the ESA from the proposed action. The USFWS did not provide a response to NOAA's consultation request dated November 22, 2017. Subsequently, NOAA submitted a follow-up request to USFWS on May 22, 2018, stating that if NOAA did not receive a response by June 5, 2018, NOAA would assume USFWS concurrence with the determination that the proposed action may affect but is not likely to adversely affect listed species. No response was received by June 5, 2018, at which point NOAA presumed USFWS concurrence.

    Satisfying consultation requirements for the effects of the actual USCG vessel discharges of untreated sewage and non-clean graywater, and training-related discharges, on threatened and endangered species remain the responsibility of USCG, as USCG will be the lead agency performing these activities.

    I. Marine Mammal Protection Act

    The Marine Mammal Protection Act (MMPA) of 1972 (16 U.S.C. 1361 et seq.), as amended, prohibits the “take” 8 of marine mammals in U.S. waters. Section 101(a)(5)(A-D) of the MMPA provides a mechanism for allowing, 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 or directed research on marine mammals) within a specified geographic region. ONMS requested technical assistance from NMFS on October 16, 2017, with ONMS's preliminary assessment that this action was not likely to result in take of marine mammals. ONMS' request for technical assistance focused on the effects on marine mammals of providing regulatory exceptions to its discharge prohibitions in CBNMS and GFNMS beyond 3 nm from the shore in the GFNMS and CBNMS expansion areas. On October 24, 2017, NMFS deemed that the proposed action would not likely result in the take of marine mammals, thereby completing MMPA requirements for this action. Satisfying consultation requirements for the effects on marine mammals of the actual USCG activities, including vessel discharges of untreated sewage and non-clean graywater and training-related discharges, remain the responsibility of USCG, as USCG will be the federal agency performing these activities.

    8 The MMPA defines take as: “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture or kill any marine mammal.” Harassment means any act of pursuit, torment, or annoyance which, (1) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (2) 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).

    J. Coastal Zone Management Act (CZMA)

    The principal objective of the CZMA is to encourage and assist states in developing coastal management programs, to coordinate state activities, and to preserve, protect, develop and, where possible, to restore or enhance the resources of the nation's coastal zone. Section 307(c) of the CZMA requires federal activity affecting the land or water uses or natural resources of a state's coastal zone to be consistent with that state's approved coastal management program, to the maximum extent practicable. NOAA provided to the California Coastal Commission copies of the proposed rule and the draft EA upon publication, and a statement that NOAA's proposed action, providing regulatory exceptions to its discharge prohibitions in CBNMS and GFNMS beyond 3 nm from the shoreline in the GFNMS and CBNMS expansion areas, would not affect the land or water uses of the coastal zone beyond what is currently occurring under the status quo, and did not require a consistency determination. On December 8, 2017, the California Coastal Commission staff agreed with NOAA's negative determination and concluded that this action would not constitute a change in existing conditions and would not adversely affect coastal zone resources, thereby completing the CZMA requirements.

    Satisfying consultation requirements for the effects on land or water uses or natural resources of California's coastal zone of the actual USCG activities, including vessel discharges of untreated sewage and non-clean graywater and training-related discharges, remain the responsibility of the USCG, as the USCG will be the federal agency performing these activities.

    K. Magnuson-Stevens Fishery Conservation and Management Act (MSA)

    In 1976, Congress passed the MSA (16 U.S.C. 1801, et seq.). The MSA fosters long-term biological and economic sustainability of the nation's marine fisheries out to 200 nautical miles from shore. Key objectives of the MSA are to prevent overfishing, rebuild overfished stocks, increase long-term economic and social benefits, and ensure a safe and sustainable supply of seafood. The MSA promotes domestic commercial and recreational fishing under sound conservation and management principles and provides for the preparation and implementation, in accordance with national standards, of fishery management plans (FMPs). Essential fish habitat (EFH [50 CFR 600.10]) describes all waters and substrate necessary for fish for spawning, breeding, feeding, or growth to maturity. Section 305(b) of the MSA (16 U.S.C. 1855(b)) outlines the consultation requirements for EFH for federal agencies.

    NOAA's ONMS initiated consultation with NMFS on EFH concurrently with the informal consultation with NMFS under the ESA upon publication of the draft environmental assessment and proposed rule. For the EFH consultations ONMS provided NMFS with a list of species assemblages for which EFH has been designated, the proposed rule, and the draft environmental assessment. NOAA's consultation focused on the effects on EFH of providing regulatory exceptions to its discharge prohibitions in CBNMS and GFNMS beyond 3 nm from the shoreline in the GFNMS and CBNMS expansion areas.

    ONMS determined that the proposed action would not adversely affect EFH, therefore no EFH consultation was required. The ONMS determination of “not adversely affect EFH” completes the EFH consultation.

    Satisfying consultation requirements for the effects of the actual USCG activities, including vessel discharges of untreated sewage and non-clean graywater training-related discharges, on EFH remain the responsibility of the USCG, as the USCG would be the federal agency performing these activities.

    List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Fishing gear, Marine resources, Natural resources, Penalties, Recreation and recreation areas, Wildlife.

    (Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary Program) Paul M. Scholz, Associate Assistant Administrator for Management and CFO/CAO, Ocean Services and Coastal Zone Management.

    Accordingly, for the reasons set forth above, NOAA is amending part 922, title 15 of the Code of Federal Regulations as follows:

    PART 922—NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS 1. The authority citation for part 922 continues to read as follows: Authority:

    16 U.S.C. 1431 et seq.

    Subpart H—Greater Farallones National Marine Sanctuary 2. Amend § 922.82 by revising paragraphs (a)(2)(iv) and (v), adding paragraph (a)(2)(vi), and revising paragraph (a)(4) to read as follows:
    § 922.82 Prohibited or otherwise regulated activities.

    (a) * * *

    (2) * * *

    (iv) For a vessel less than 300 GRT or a vessel 300 GRT or greater without sufficient holding capacity to hold graywater while within the Sanctuary, clean graywater as defined by section 312 of the FWPCA;

    (v) Vessel engine or generator exhaust; or

    (vi) For a United States Coast Guard vessel without sufficient holding tank capacity and without a Type I or II marine sanitation device, and operating within the designated area [2015 expansion area] defined in appendix G of this subpart, sewage and non-clean graywater as defined by section 312 of the FWPCA generated incidental to vessel use, and ammunition, pyrotechnics or other materials directly related to search and rescue and live ammunition training activities conducted by United States Coast Guard vessels and aircraft in the designated areas defined in appendix G of this subpart.

    (4) Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except for the material or other matter excepted in paragraphs (a)(2)(i) through (vi) and (a)(3) of this section.

    3. Add appendix Gto subpart H to read as follows: Appendix G to Subpart H of Part 922—Designated Area for Certain United States Coast Guard Discharges

    Coordinates listed in this appendix are unprojected (Geographic Coordinate System) and based on the North American Datum of 1983 (NAD83).

    The portion of the Greater Farallones National Marine Sanctuary area [2015 expansion area] where the exception for discharges from United States Coast Guard activities applies is defined as follows. Beginning with Point 1 identified in the coordinate table in this appendix, the boundary extends from Point 1 to Point 2 in a straight line arc, and continues from Point 2 to Point 3 in a straight line arc, and from Point 3 to Point 4 in a straight line arc. From Point 4 the boundary extends east and north along a straight line arc towards Point 5 until it intersects the fixed offshore boundary between the United States and California (approximately 3 NM seaward of the coast as defined in United States vs. California, 135 S. Ct. 563 (2014)). The boundary then extends northward following the fixed offshore boundary between the United States and California until it intersects the line segment formed between Point 6 and Point 7. From this intersection, the boundary extends west along the northern boundary of Greater Farallones National Marine Sanctuary to Point 7 where it ends.

    Point No. Latitude Longitude 1 39.00000 −124.33350 2 38.29989 −123.99988 3 38.29989 −123.20005 4 38.26390 −123.18138 5 1 38.29896 −123.05989 6 1 39.00000 −123.75777 7 39.00000 −124.33350 1 These coordinates are not a part of the boundary for the Designated Area for Certain United States Coast Guard Discharges. These coordinates are reference points used to draw line segments that intersect with the fixed offshore boundary between the United States and California.
    Subpart K—Cordell Bank National Marine Sanctuary 4. Amend § 922.112 by revising paragraphs (a)(2)(i)(D) and (E) and adding paragraph (a)(2)(i)(F) to read as follows:
    § 922.112 Prohibited or otherwise regulated activities.

    (a) * * *

    (2)(i) * * *

    (D) For a vessel less than 300 GRT or a vessel 300 GRT or greater without sufficient holding capacity to hold graywater while within the Sanctuary, clean graywater as defined by section 312 of the FWPCA;

    (E) Vessel engine or generator exhaust; or

    (F) For a United States Coast Guard vessel without sufficient holding tank capacity and without a Type I or II marine sanitation device, and operating within the designated area [2015 expansion area] defined in appendix C of this subpart, sewage and non-clean graywater as defined by section 312 of the FWPCA generated incidental to vessel use, and ammunition, pyrotechnics or other materials directly related to search and rescue and live ammunition training activities conducted by United States Coast Guard vessels and aircraft in the designated areas defined in appendix C of this subpart.

    5. Add appendix C to subpart K to read as follows: Appendix C to Subpart K of Part 922—Designated Area for Certain United States Coast Guard Discharges

    Coordinates listed in this appendix are unprojected (Geographic Coordinate System) and based on the North American Datum of 1983 (NAD83).

    The portion of the Cordell Bank National Marine Sanctuary area [2015 expansion area] where the exception for discharges from United States Coast Guard activities applies is defined as follows. Beginning with Point 1, identified in the coordinate table in this appendix, the boundary extends from Point 1 to Point 2 in a straight line arc and continues in numerical order through each subsequent point to Point 38. From Point 38 the boundary extends west along the northern boundary of Cordell Bank National Marine Sanctuary to Point 39 where it ends.

    Point No. Latitude Longitude 1 38.29989 −123.99988 2 37.76687 −123.75143 3 37.76716 −123.42758 4 37.77033 −123.43466 5 37.78109 −123.44694 6 37.78383 −123.45466 7 37.79487 −123.46721 8 37.80094 −123.47313 9 37.81026 −123.46897 10 37.81365 −123.47906 11 37.82296 −123.49280 12 37.84988 −123.51749 13 37.86189 −123.52197 14 37.87637 −123.52192 15 37.88541 −123.52967 16 37.90725 −123.53937 17 37.92288 −123.54360 18 37.93858 −123.54701 19 37.94901 −123.54777 20 37.95528 −123.56199 21 37.96683 −123.57859 22 37.97761 −123.58746 23 37.98678 −123.59988 24 37.99847 −123.61331 25 38.01366 −123.62494 26 38.01987 −123.62450 27 38.02286 −123.61531 28 38.02419 −123.59864 29 38.03409 −123.59904 30 38.04614 −123.60611 31 38.05308 −123.60549 32 38.06188 −123.61546 33 38.07451 −123.62162 34 38.08289 −123.62065 35 38.11256 −123.63344 36 38.13219 −123.64265 37 38.26390 −123.18138 38 38.29989 −123.20005 39 38.29989 −123.99988
    [FR Doc. 2018-24200 Filed 11-8-18; 8:45 am] BILLING CODE 3510-NK-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Parts 100, 117, 147, and 165 [USCG-2018-0983] 2018 Quarterly Listings; Safety Zones, Security Zones, Special Local Regulations, Drawbridge Operation Regulations and Regulated Navigation Areas AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notification of expired temporary rules issued.

    SUMMARY:

    This document provides notification of substantive rules issued by the Coast Guard that were made temporarily effective but expired before they could be published in the Federal Register. This document lists temporary safety zones, security zones, special local regulations, drawbridge operation regulations and regulated navigation areas, all of limited duration and for which timely publication in the Federal Register was not possible.

    DATES:

    This document lists temporary Coast Guard rules that became effective, primarily between July 2018 to September 2018, unless otherwise indicated, and were terminated before they could be published in the Federal Register.

    ADDRESSES:

    Temporary rules listed in this document may be viewed online, under their respective docket numbers, using the Federal eRulemaking Portal at http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    For questions on this document contact Yeoman First Class David Hager, Office of Regulations and Administrative Law, telephone (202) 372-3862.

    SUPPLEMENTARY INFORMATION:

    Coast Guard District Commanders and Captains of the Port (COTP) must be immediately responsive to the safety and security needs within their jurisdiction; therefore, District Commanders and COTPs have been delegated the authority to issue certain local regulations. Safety zones may be established for safety or environmental purposes. A safety zone may be stationary and described by fixed limits or it may be described as a zone around a vessel in motion. Security zones limit access to prevent injury or damage to vessels, ports, or waterfront facilities. Special local regulations are issued to enhance the safety of participants and spectators at regattas and other marine events. Drawbridge operation regulations authorize changes to drawbridge schedules to accommodate bridge repairs, seasonal vessel traffic, and local public events. Regulated Navigation Areas are water areas within a defined boundary for which regulations for vessels navigating within the area have been established by the regional Coast Guard District Commander.

    Timely publication of these rules in the Federal Register may be precluded when a rule responds to an emergency, or when an event occurs without sufficient advance notice. The affected public is, however, often informed of these rules through Local Notices to Mariners, press releases, and other means. Moreover, Coast Guard patrol vessels provide actual notification when enforcing the restrictions imposed by the rule. Because Federal Register publication was not possible before the end of the effective period, mariners were personally notified of the contents of these safety zones, security zones, special local regulations, regulated navigation areas or drawbridge operation regulations by Coast Guard officials on-scene prior to any enforcement action. However, the Coast Guard, by law, must publish in the Federal Register notice of substantive rules adopted. To meet this obligation without imposing undue expense on the public, the Coast Guard periodically publishes a list of these temporary safety zones, security zones, special local regulations, regulated navigation areas and drawbridge operation regulations. Permanent rules are not included in this list because they are published in their entirety in the Federal Register. Temporary rules are also published in their entirety if sufficient time is available to do so before they are placed in effect or terminated.

    The following unpublished rules were placed in effect temporarily during the period between July 2018 to September 2018 unless otherwise indicated. To view copies of these rules, visit www.regulations.gov and search by the docket number indicated in the following table.

    Docket Number Type Location Effective date USCG-2017-1017 Safety Zones Los Angeles, CA 4/25/2018 USCG-2018-0319 Safety Zones Pittsburgh, PA 5/24/2018 USCG-2018-0345 Safety Zones San Diego, CA 5/27/2018 USCG-2018-0206 Safety Zones Main Ship Channel 5/30/2018 USCG-2018-0547 Safety Zones Chicago, IL 6/12/2018 USCG-2018-0418 Special Local Regulations South Haven, MI 6/19/2018 USCG-2018-0640 Safety Zones Detroit, MI 6/27/2018 USCG-2018-0506 Safety Zones Blackslough Landing, CA 6/30/2018 USCG-2018-0576 Safety Zones Hempstead, NY 6/30/2018 USCG-2018-0293 Safety Zones Baltimore County, MD 6/30/2018 USCG-2018-0429 Special Local Regulations Cape May, NJ 7/1/2018 USCG-2018-0651 Safety Zones Little Traverse Bay, MI 7/1/2018 USCG-2018-0446 Security Zones Corpus Christi, TX 7/3/2018 USCG-2018-0370 Special Local Regulations Christi, TX 7/4/2018 USCG-2018-0500 Safety Zones Panama City, FL 7/4/2018 USCG-2018-0478 Safety Zones Dempolois, AL 7/4/2018 USCG-2018-0555 Safety Zones Shreveport, LA 7/4/2018 USCG-2018-0203 Safety Zones Murrells Inlet, SC 7/4/2018 USCG-2018-0171 Safety Zones North Charleston, SC 7/4/2018 USCG-2018-0145 Safety Zones Charleston, SC 7/4/2018 USCG-2018-0436 Safety Zones Myrtle Beach, SC 7/4/2018 USCG-2018-0568 Special Local Regulations New York, NY 7/4/2018 USCG-2018-0454 Safety Zones Long Island 7/4/2018 USCG-2018-0543 Safety Zones Bullhead City, Arizona 7/4/2018 USCG-2018-0355 Safety Zones San Diego COPT Zone 7/4/2018 USCG-2012-1036 Safety Zones Port Long Island Zone 7/4/2018 USCG-2018-0620 Special Local Regulations Mystic, CT 7/8/2018 USCG-2018-0699 Safety Zones Huron, MI 7/12/2018 USCG-2018-0649 Safety Zones Buffalo, NY 7/13/2018 USCG-2018-0646 Safety Zones Cleveland, OH 7/13/2018 USCG-2018-0378 Safety Zones Orange, TX 7/14/2018 USCG-2018-0690 Safety Zones Lake St. Clair 7/18/2018 USCG-2018-0705 Security Zones St. Louis, MO 7/19/2018 USCG-2018-0719 Safety Zones Delaware City, DE 7/21/2018 USCG-2018-0721 Safety Zones Clayton, NY 7/21/2018 USCG-2018-0545 Safety Zones Port Lake Michigan Zone 7/21/2018 USCG-2018-0642 Safety Zones Cleveland, OH 7/21/2018 USCG-2018-0721 Safety Zones Clayton, NY 7/21/2018 USGC-2018-0463 Safety Zones Beaufort, SC 7/21/2018 USCG-2018-0471 Special Local Regulations San Juan, Harbor 7/22/2018 USCG-2018-0726 Safety Zones Branson, MO 7/23/2018 USCG-2018-0616 Safety Zones Spring Valley, IL 7/23/2018 USCG-2018-0727 Security Zones Louis, MO 7/26/2018 USCG-2018-0311 Security Zones Louis, MO 7/26/2018 USCG-2018-0564 Safety Zones Ocean City, NJ 7/28/2018 USCG-2018-0687 Special Local Regulations Port Duluth Zone 7/28/2018 USCG-2018-0747 Security Zones Oahu, HI 7/31/2018 USCG-2018-0609 Safety Zones Copt New York Zone 8/3/2018 USCG-2018-0734 Safety Zones San Francisco, CA 8/4/2018 USCG-2018-0758 Safety Zones St. Paul, MN 8/8/2018 USCG-2018-0768 Safety Zones Steukacoom, WA 8/10/2018 USCG-2018-0741 Safety Zones Bellaire, OH 8/11/2018 USCG-2018-0830 Special Local Regulations Shreveport, LA 8/11/2018 USCG-2018-0756 Notices Lake Michigan Zone 8/11/2018 USCG-2018-0715 Special Local Regulations Bullhead City, Arizona 8/11/2018 USCG-2018-0755 Safety Zones Manitowoc, WI 8/17/2018 USCG-2018-0816 Safety Zones Lodi, NY 8/23/2018 USCG-2018-0829 Special Local Regulations Greenville, MS 8/24/2018 USCG-2018-0806 Security Zones Corpus Christi, TX 8/25/2018 USCG-2018-0766 Safety Zones Sinclair Inlet, WA 8/28/2018 USCG-2018-0861 Safety Zones Gulf of Mexico 8/31/2018 USCG-2012-1036 Safety Zones Island Park 9/1/2018 USCG-2018-0823 Safety Zones Port Michigan Zone 9/1/2018 USCG-2018-0858 Security Zones Annapolis, MD 9/2/2018 USCG-2018-0712 Security Zones San Diego, CA 9/2/2018 USCG-2018-0748 Safety Zones Naval Base Guam 9/3/2018 USCG-2018-0650 Safety Zones San Francisco, CA 9/4/2018 USCG-2018-0783 Safety Zones Carnelian Bay, CA 9/7/2018 USCG-2018-0851 Safety Zones Pennsville, NJ 9/8/2018 USCG-2018-0581 Safety Zones Hawaiian Island 9/10/2018 USCG-2018-0618 Special Local Regulations San Diego, CA 9/14/2018 USCG-2018-0738 Special Local Regulations San Diego, CA 9/14/2018 USCG-2018-0865 Safety Zones Sandusky, OH 9/15/2018 USCG-2018-0723 Safety Zones Philadelphia, PA 9/16/2018 USCG-2018-0902 Safety Zones Seattle, WA 9/19/2018 USCG-2018-0833 Safety Zones Chicago, IL 9/20/2018 USCG-2018-0892 Safety Zones WI, Harbor 9/21/2018 USCG-2018-0898 Special Local Regulations Toledo, OH 9/22/2018 USCG-2018-0900 Drawbridges Seaside Heights, NJ 9/26/2018 USCG-2018-0802 Special Local Regulations Hartford, CT 9/29/2018 USCG-2018-0897 Safety Zones Washington DC 9/30/2018 USCG-2018-0643 Special Local Regulations Clearwater Beach, FL 9/30/2018 Date: October 25, 2018. Katia Kroutil, Office Chief, Office of Regulations and Administrative Law, United States Coast Guard.
    [FR Doc. 2018-24539 Filed 11-8-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2018-0975] Drawbridge Operation Regulation; Delaware River, Tacony, PA and Palmyra, NJ AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the SR 73/Tacony-Palmyra Bridge which carries SR 73 across the Delaware River, mile 107.2, between Tacony, PA and Palmyra, NJ. The deviation is necessary to facilitate bridge maintenance. This deviation allows the bridge to remain in the closed-to-navigation position.

    DATES:

    The deviation is effective from 6 a.m. through 6 p.m. on November 20, 2018.

    ADDRESSES:

    The docket for this deviation, USCG-2018-0975 is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Mr. Michael Thorogood, Bridge Administration Branch Fifth District, Coast Guard, telephone 757-398-6557, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Burlington County Bridge Commission, owner and operator of the SR 73/Tacony-Palmyra Bridge which carries SR 73 across the Delaware River, mile 107.2, between Tacony, PA and Palmyra, NJ, has requested a temporary deviation from the current operating schedule to facilitate installation of a replacement electrical festoon control cable of the double bascule span of the drawbridge. The bridge has a vertical clearance of 50 feet above mean high water in the closed position and unlimited vertical clearance above mean high water in the open position.

    The current operating schedule is set out in 33 CFR 117.716. Under this temporary deviation, the bridge will be in the closed-to-navigation position from 6 a.m. through 6 p.m. on November 20, 2018.

    The Delaware River is used by a variety of vessels including deep draft commercial vessels, U.S. government and public vessels, small commercial vessels, tug and barge traffic, and recreational vessels. The Coast Guard has carefully coordinated the restrictions with waterway users in publishing this temporary deviation.

    Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will not be able to open for emergencies and there is no immediate alternative route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterway through our Local Notice and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

    Dated: October 31, 2018. Hal R. Pitts, Bridge Program Manager, Fifth Coast Guard District.
    [FR Doc. 2018-24511 Filed 11-8-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2018-0957] Multiple Safety Zones; Fireworks Displays in Captain of the Port New York Zone AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce a safety zone within the Captain of the Port New York Zone on the specified date and times. This action is necessary to ensure the safety of vessels, spectators and participants from hazards associated with fireworks displays and swim events. During the enforcement period, no person or vessel may enter the safety zones without permission of the Captain of the Port (COTP).

    DATES:

    The regulation for the safety zone described in 33 CFR 165.160 will be enforced on the date and times listed in the table below.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this notice of enforcement, call or email Petty Officer First Class Ronald Sampert U.S. Coast Guard; telephone 718-354-4197, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce the safety zones listed in 33 CFR 165.160 on the specified date and time as indicated in Table 1 below. This regulation was published in the Federal Register on November 9, 2011 (76 FR 69614).

    Table 1 1. Pyro Engineering Inc., Liberty Island Safety Zone, 33 CFR 165.160 (2.1) • Launch site: A barge located in approximate position 40°41′16.5″ N 074°02′23″ W (NAD 1983), located in Federal Anchorage 20-C, about 360 yards east of Liberty Island. This Safety Zone is a 360-yard radius from the barge. • Date: November 29, 2018. • Time: 10:00 p.m.-11:30 p.m. 2. Circle Line Sightseeing Yachts NYE, Liberty Island Safety Zone, 3 CFR 165.160 (2.1) • Launch site: A barge located in approximate position 40°41′16.5″ N 074°02′23″ W (NAD 1983), located in Federal Anchorage 20-C, about 360 yards east of Liberty Island. This Safety Zone is a 360-yard radius from the barge. • Date: December 31, 2018-January 1, 2019. • Time: 11:00 p.m.-01:00 a.m.

    Under the provisions of 33 CFR 165.160, vessels may not enter the safety zones unless given permission from the COTP or a designated representative. Spectator vessels may transit outside the safety zones but may not anchor, block, loiter in, or impede the transit of other vessels. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

    This notice of enforcement is issued under authority of 33 CFR 165.160(a) and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide mariners with advanced notification of enforcement periods via the Local Notice to Mariners and marine information broadcasts.

    If the COTP determines that a safety zone need not be enforced for the full duration stated in this notice of enforcement, a Broadcast Notice to Mariners may be used to grant general permission to enter the safety zone.

    Dated: October 3, 2018. J.P. Tama, Captain, U.S. Coast Guard, Captain of the Port New York.
    [FR Doc. 2018-24573 Filed 11-8-18; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2017-0614; FRL-9982-73] Tin Oxide; Exemption From the Requirement of a Tolerance AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes an exemption from the requirement of a tolerance for residues of tin oxide (CAS Reg. No. 18282-10-5) when used as an inert ingredient (seed treatment colorant) not to exceed 40% by weight in pesticide formulations applied to growing crops. Exponent on behalf of Aceto Corporation submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting establishment of an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of tin oxide.

    DATES:

    This regulation is effective November 9, 2018. Objections and requests for hearings must be received on or before January 8, 2019, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2017-0614, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. 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 OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael L. Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. General Information A. Does this action apply to me?

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0614 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before January 8, 2019. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0614, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Petition for Exemption

    In the Federal Register of March 21, 2018 (83 FR 12311) (FRL-9974-76), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-11058) by Exponent (1150 Connecticut Ave. NW, Suite 1100, Washington, DC 20036), on behalf of Aceto Corporation (Aceto, 4 Tri Harbor Court, Port Washington, NY 11050). The petition requested that 40 CFR 180.920 be amended by establishing an exemption from the requirement of a tolerance for residues of tin oxide (CAS Reg. No. 18282-10-5) when used as an inert ingredient (seed treatment colorant) in pesticide formulations applied to growing crops not to exceed 40% by weight. That document referenced a summary of the petition prepared by Exponent on behalf of Aceto Corporation, the petitioner, which is available in the docket, http://www.regulations.gov. There were no timely comments received in response to the notice of filing.

    III. Inert Ingredient Definition

    Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

    IV. Aggregate Risk Assessment and Determination of Safety

    Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

    EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

    Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for tin oxide including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with tin oxide follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by tin oxide as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

    Although limited data are available on tin oxide, tin oxide belongs to the chemical class of water insoluble inorganic tins; therefore, the Agency used data available on inorganic tins, specifically tin (II) chloride (CAS Reg No. 21651-19-4) to fill data gaps.

    The acute oral toxicity of tin oxide is very low. The lethal dose, (LD)50>20,000 milligrams/kilograms (mg/kg) in rats and mice. There is no eye irritation in Leghorn eggs nor in bovine cornea.

    The only repeated dose studies available with tin oxide are the 28-day and 13-week oral toxicity studies in rats. No toxicity is observed in either study up to 1,000 and 500 mg/kg/day, respectively of tin oxide, the highest dose tested in both studies.

    Although developmental and reproduction toxicity studies are not available on tin oxide, evidence of potential developmental or reproduction toxicity is not observed in the available studies with tin oxide and no toxicity is seen up to 500 mg/kg/day, the highest dose tested. Available reproduction and developmental studies with tin (II) chloride that show no maternal, offspring or reproduction toxicity at 40 mg/kg/day, the highest dose tested, in rats, although these studies are of limited value since the doses tested were not high enough to assess developmental and reproduction effects. Nevertheless, there is no concern for fetal susceptibility due to dietary exposure to tin oxide because it is insoluble and is not expected to be absorbed or cause systemic toxicity. Also, no toxicity is observed in reproduction organs at 500 and 1,000 mg/kg/day, the highest doses tested in the 13- and 4-week, respectively, oral toxicity studies in rats.

    Carcinogenicity studies with tin (II) chloride in rats and mice indicate that inorganic tins are not carcinogenic at 40 and 60 mg/kg/day, respectively, the highest dose tested.

    In an in vitro mutagenicity assay, tin oxide caused micronuclei and karyorrhexis in lung macrophages. The toxicologic significance of this finding is equivocal.

    Neurotoxicity and immunotoxicity studies are not available for review. However, no evidence of neurotoxicity and immunotoxicity is observed in the submitted studies.

    The absorption of inorganic tin compounds from the gastrointestinal tract in humans and animals is very low with as much as 98% excreted directly in the feces. Because of their limited absorption, inorganic tin compounds have low systemic toxicity.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

    The 13-week oral toxicity study in rats is selected for the chronic dietary exposure scenario. No toxicity is observed up to 500 mg/kg/day, the highest dose tested. The lowest NOAEL in the database is found in the developmental and reproduction toxicity studies in the rat. In these studies, no treatment related adverse toxicity is observed at 800 ppm (40 mg tin/kg/day), the highest dose tested in both studies. However, the developmental and reproduction toxicity studies are not considered appropriate for risk assessment since tested doses are not high enough to assess developmental and reproduction toxicity. Therefore, the 13-week toxicity study in rats treated with tin oxide is used for the chronic dietary exposure scenario. There is no concern for the lack of developmental and reproduction toxicity studies because tin oxide is an insoluble tin and is not expected to be absorbed or cause systemic toxicity. Further supporting the lack of toxicity, no systemic toxicity or adverse effects are observed up to 500 mg/kg/day, the highest dose tested, in the 13-week toxicity study in rats. Based on the weight of evidence, there is no concern for increased susceptibility and no additional uncertainty factor is necessary. The standard inter- and intra-species uncertainty factors of 10x are applied. Dermal and inhalation endpoints were not selected as tin oxide is not expected to be dermally absorbed because it is insoluble, and not expected to be absorbed in the lungs due to its particle size.

    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to tin oxide, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from tin oxide in food as follows:

    Dietary exposure (food and drinking water) to tin oxide can occur following ingestion of foods with residues from treated crops with pesticide formulations containing tin oxide. In addition, dietary exposure can occur from exposure to non-pesticidal sources of tin oxide. FDA has approved the use of tin oxide as a colorant in food-contact articles at a maximum level of 1.1% by weight in colorants otherwise composed of mica and titanium dioxide, provided that the maximum loading rate for the colorant in the food-contact material does not exceed 3% by weight for polymers, 5% for paper and paperboard, 15% for coatings, or 30% for ink formulations. See Food and Drug Administration (FDA) threshold of regulation (TOR) exemption 98-004. It may be used, in combination with silicon dioxide and titanium dioxide, as a colorant for food-contact polymers, paper and paperboard, coatings, and in printing inks applied to non-food-contact surfaces of food-contact articles. The food contact substance will be used at a level not to exceed 6% of the total colorant weight. See FDA, Food Contact Notification (FCN) 000431. Tin oxide can also be used as a pigment for all polyolefins for food contact applications as long as the use level does not exceed 0.5% by weight of the polymer and is subject to certain limitations. See FDA, Food Contact Notification (FCN) 235.

    Because no adverse effects attributable to a single exposure of tin oxide are seen in the toxicity databases, an acute dietary risk assessment is not necessary. For the chronic dietary risk assessment, EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCIDTM), Version 3.16, and food consumption information from the U.S. Department of Agriculture's (USDA's) 2003-2008 National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, no residue data were submitted for tin oxide. In the absence of specific residue data, EPA utilized a highly conservative assumption that the residues on all commodities are 47 ppm based on the effective application rate of tin oxide when used as a colorant for seed treatment pesticide products and the presumption that all applied tin oxide would be present in the edible portions of crops derived from treated seed. A complete description of the general approach taken to assess inert ingredient risks in the absence of residue data is contained in the memorandum entitled “Alkyl Amines Polyalkoxylates (Cluster 4): Acute and Chronic Aggregate (Food and Drinking Water) Dietary Exposure and Risk Assessments for the Inerts,” (D361707, S. Piper, 2/25/09) and can be found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2008-0738.

    2. Dietary exposure from drinking water. For the purpose of the screening level dietary risk assessment to support this request for an exemption from the requirement of a tolerance for tin oxide, a conservative drinking water concentration value of 100 parts per billion (ppb) based on screening level modeling was used to assess the contribution to drinking water for the chronic dietary risk assessments for parent compound. These values were directly entered into the dietary exposure model.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

    Tin oxide is not expected to be used as an inert ingredient in pesticide products that are registered for specific uses that may result in residential exposure, as the requested use is for commercial use only. However, tin oxide is present in cosmetics and personal care products. The typical reported concentration for tin oxide in cosmetics and personal care products ranges from 0.03 to 1.3%. Based on the 2013 Cosmetic Ingredient Review (CIR) document, tin oxide is used in dusting powders (up to 0.03%), body and hand cosmetic sprays (up to 0.06%), and other fragrance preparations (up to 0.08%).

    4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

    EPA has not found tin oxide to share a common mechanism of toxicity with any other substances, and tin oxide does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that tin oxide does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www.epa.gov/pesticides/cumulative.

    D. Safety Factor for Infants and Children

    Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA SF. In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    The Agency has concluded that there is reliable data to determine that infants and children will be safe if the FQPA SF of 10x is reduced to 1X for the chronic dietary assessment for the following reasons. First, the toxicity database for tin oxide contains subchronic, carcinogenicity and mutagenicity studies. There is no indication of immunotoxicity or neurotoxicity in the available studies; therefore, there is no need to require an immunotoxicity or neurotoxicity study. Although no developmental and reproduction toxicity studies with tin oxide are available, there is no concern for fetal susceptibility because tin oxide is insoluble and is not expected to be absorbed or cause systemic toxicity. Further supporting the lack of toxicity, no adverse effects or systemic toxicity are observed up to 500 mg/kg/day, the highest dose tested, in the 13-week toxicity study in rats. Based on the weight of evidence, there is no concern for increased susceptibility and, the Agency has concluded that reducing the FQPA SF to 1X is appropriate.

    E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

    1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to tin oxide from food and water will utilize 38.3% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the available data, oral exposure to tin oxide residues from non-pesticide uses is expected to be negligible compared to the conservative estimates of exposure resulting from the proposed use as a colorant for seed treatment pesticides, and not expected to significantly impact dietary exposure.

    3. Short- and intermediate-term risks. Short- and intermediate-term aggregate exposures take into account short- and intermediate-term residential exposures plus chronic exposure to food and water (considered to be a background exposure level).

    Tin oxide is not expected to be used as an inert ingredient in pesticide products that could result in short- and intermediate-term residential exposure as the request is strictly for commercial seed treatment use only, although tin oxide is currently approved for use in cosmetic, manufacturing applications.

    Dermal exposure to residues of tin oxide is not expected to result in systemic toxicity as tin oxide is insoluble and not absorbed through the skin. Inhalation exposure is possible due to its use in cosmetics and personal care products. However, as reported in the CIR 2013 on tin oxide, inhalation exposure to tin oxide particles are not expected as 95-99% of the particles are >10 micrometers (um) and not expected to enter the lungs. Because of the lack of adverse effects from dermal or inhalation exposure, the Agency does not expect these residential exposures to pose risks of concern.

    4. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two rodent carcinogenicity studies, tin oxide is not expected to pose a cancer risk to humans.

    5. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to tin oxide residues.

    V. Other Considerations A. Analytical Enforcement Methodology

    An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation. The Agency ensures compliance with the limitation in the tolerance exemption through the registration of pesticides with formulations that satisfy the limitation under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

    VI. Conclusions

    Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.920 for residues of tin oxide (CAS Reg. No. 18282-10-5) when used as an inert ingredient (colorant) in pesticide seed treatment formulations applied to growing crops not to exceed 40% by weight.

    VII. Statutory and Executive Order Reviews

    This action establishes an exemption to the requirement for a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

    Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

    This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

    VIII. Congressional Review Act

    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).

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: November 1, 2018. Michael L. Goodis, Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.920, add alphabetically the inert ingredient “Tin oxide (CAS Reg. No. 18282-10-5)” to the table to read as follows:
    § 180.920 Inert ingredients used pre-harvest; exemptions from the requirement of a tolerance. Inert ingredients Limits Uses *         *         *         *         *         *         * Tin oxide (CAS Reg. No. 18282-10-5) Not to exceed 40% by weight for use in seed treatment pesticide formulations only Colorant. *         *         *         *         *         *         *
    [FR Doc. 2018-24585 Filed 11-8-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 160426363-7275-02] RIN 0648-XG595 Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region; Reopening of the Commercial Sector for King Mackerel in the Gulf of Mexico Western Zone AGENCY:

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

    ACTION:

    Temporary rule; reopening.

    SUMMARY:

    NMFS reopens the commercial sector for king mackerel in the western zone of the Gulf of Mexico (Gulf) exclusive economic zone (EEZ) through this temporary rule. The most recent commercial landings data for king mackerel in the Gulf western zone indicate the commercial quota for the 2018-2019 fishing year has not yet been reached. Therefore, NMFS reopens the commercial sector for king mackerel in the Gulf western zone for 7 days to allow the commercial quota to be caught.

    DATES:

    This temporary rule is effective at 12:01 a.m., local time, on November 12, 2018, until 12:01 a.m., local time, on November 19, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Lauren Waters, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The fishery for coastal migratory pelagic fish includes king mackerel, Spanish mackerel, and cobia, and is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. All of the following weights for king mackerel apply as either round or gutted weight.

    The commercial quota for Gulf migratory group king mackerel (Gulf king mackerel) in the western zone is 1,116,000 lb (506,209 kg) for the current fishing year, July 1, 2018, through June 30, 2019 (50 CFR 622.384(b)(1)(i)).

    The western zone of Gulf king mackerel is located in the EEZ between a line extending east from the international border of the United States and Mexico, and 87°31.1′ W long., which is a line extending south from the state boundary of Alabama and Florida. The western zone includes the EEZ off Texas, Louisiana, Mississippi, and Alabama.

    Regulations at 50 CFR 622.388(a)(1)(i) require NMFS to close the commercial sector for Gulf king mackerel in the western zone when the commercial quota is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS previously projected that the commercial quota of 1,116,000 lb (506,209 kg) for Gulf king mackerel in the western zone would be reached on October 5, 2018. Accordingly, NMFS published a temporary rule to close the western zone to commercial fishing for Gulf king mackerel effective at noon, local time, on October 5, 2018, through June 30, 2019, the end of the current fishing year (83 FR 50295, October 5, 2018). However, a recent landings update indicates that the commercial quota for king mackerel in the Gulf western zone was not reached on October 5, 2018. Approximately 8,500 lb (3,856 kg) of the commercial quota remain, and NMFS projects that this amount will be harvested in 7 days.

    For the reasons stated above, and in accordance with 50 CFR 622.8(c), NMFS temporarily reopens the commercial sector for king mackerel in the Gulf western zone beginning at 12:01 a.m., local time, on November 12, 2018. The commercial sector will close 7 days later at 12:01 a.m., local time, on November 19, 2018, and remain closed until July 1, 2019, the start of the next fishing year. NMFS has determined that reopening the Gulf western zone will allow additional opportunities to harvest the commercial quota of king mackerel in that zone.

    During the closure beginning at 12:01 a.m., local time, on November 19, 2018, a person on board a vessel that has been issued a valid Federal commercial or charter vessel/headboat permit for coastal migratory pelagic fish may continue to retain king mackerel in the western zone under the recreational bag and possession limits specified in 50 CFR 622.382(a)(1)(ii) and (a)(2), as long as the recreational sector for Gulf king mackerel is open (50 CFR 622.384(e)(1)).

    Also during the closure, king mackerel from the closed zone, including those harvested under the bag and possession limits, may not be purchased or sold. This prohibition does not apply to king mackerel from the closed zone that were harvested, landed ashore, and sold prior to the closure and were held in cold storage by a dealer or processor (50 CFR 622.384(e)(2)).

    Classification

    The Regional Administrator for the NMFS Southeast Region has determined this temporary rule is necessary for the conservation and management of Gulf king mackerel and is consistent with the Magnuson-Stevens Act and other applicable laws.

    This action is taken under 50 CFR 622.8(c) and is exempt from review under Executive Order 12866.

    These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

    This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the regulations at 50 CFR 622.8(c) have already been subject to notice and public comment, and all that remains is to notify the public that additional harvest is available under the established commercial quota, and therefore, the commercial sector for king mackerel in the western zone of the Gulf EEZ will reopen.

    Prior notice and an opportunity to comment is contrary to the public interest, because NMFS previously determined the commercial quota for king mackerel in the western zone of the Gulf EEZ would be reached and, therefore, closed the commercial sector for king mackerel in this zone. However, following a recent landings update the commercial quota for king mackerel in the Gulf western zone was not reached on October 5, 2018, and therefore, additional commercial quota of king mackerel in the Gulf western zone is available for harvest during the 2018-2019 fishing year. Reopening quickly is expected to help achieve optimum yield by making additional king mackerel available to consumers and resulting in revenue increases to commercial vessels.

    For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 6, 2018. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-24589 Filed 11-6-18; 4:15 pm] BILLING CODE 3510-22-P
    83 218 Friday, November 9, 2018 Proposed Rules DEPARTMENT OF HOMELAND SECURITY RIN 1615-AC33 DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Part 655 [Docket No. ETA-2018-0003] RIN 1205-AB91 Modernizing Recruitment Requirements for the Temporary Employment of H-2B Foreign Workers in the United States AGENCY:

    U.S. Citizenship and Immigration Services, Department of Homeland Security and Employment and Training Administration, Department of Labor.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Department of Homeland Security (DHS) and the Department of Labor (DOL) (collectively, the Departments), are jointly proposing regulatory revisions that would modernize the recruitment an employer seeking H-2B nonimmigrant workers must conduct when applying for a temporary labor certification. In particular, the Departments are proposing to replace the print newspaper advertisements that their regulations currently require with electronic advertisements posted on the internet, which the Departments believe will be a more effective and efficient means of disseminating information about job openings to U.S. workers. The Departments are proposing to replace, rather than supplement, the newspaper requirements because they believe that exclusive electronic advertisements posted on a website appropriate for the workers likely to apply for the job opportunity in the area of intended employment would best ensure that U.S. workers learn of job opportunities.

    DATES:

    Comments must be submitted, in writing, on or before December 10, 2018.

    ADDRESSES:

    You may send comments, identified by the agencies' names and the DOL Docket No. ETA-2018-0003 or Regulatory Information Number (RIN) 1205-AB91, by any of the following methods:

    Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the website instructions for submitting comments (under “Help” > “How to use Regulations.gov”).

    Mail and hand delivery/courier: Submit written comments and any additional material to Adele Gagliardi, Administrator, Office of Policy Development and Research, U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210.

    Instructions: Label all submissions with “RIN 1205-AB91.” Please submit your comments by only one method. All submissions must include the agencies' names and the DOL RIN 1205-AB91.

    Please be advised that DOL will post all comments received that relate to this notice of proposed rulemaking (NPRM) on http://www.regulations.gov without making any change to the comments or redacting any information. The http://www.regulations.gov website is the Federal e-rulemaking portal, and all comments posted there are available and accessible to the public. Therefore, DOL recommends that commenters remove personal information (either about themselves or others) such as Social Security Numbers, personal addresses, telephone numbers, and email addresses included in their comments, as such information may become easily available to the public via the http://www.regulations.gov website. It is the responsibility of the commenter to safeguard personal information.

    Also, please note that, due to security concerns, postal mail delivery in Washington, DC may be delayed. Therefore, DOL encourages the public to submit comments on http://www.regulations.gov.

    Docket: To read or download comments or other material in the electronic docket, go to http://www.regulations.gov website (search using RIN 1205-AB91 or Docket No. ETA-2018-0003). DOL also will make all the comments it receives available for public inspection by appointment during normal business hours at the above address. If you need assistance to review the comments, DOL will provide appropriate aids, such as readers or print magnifiers. DOL will make copies of this proposed rule available, upon request, in large print and electronic file on computer disk. To schedule an appointment to review the comments and/or obtain the proposed rule in an alternative format, contact the Office of Policy Development and Research at (202) 693-3700 (this is not a toll-free number). You may also contact Adele Gagliardi, Administrator, Office of Policy Development and Research, U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210.

    Comments under the Paperwork Reduction Act (PRA): In addition to filing comments with ETA, persons wishing to comment on the information collection (IC) aspects of this rule may send comments to: Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-ETA, Office of Management and Budget, Room 10235, 725 17th Street NW, Washington, DC 20503, Fax: (202) 395-6881 (this is not a toll-free number), email: [email protected] See Paperwork Reduction Act section of this proposal for particular areas of interest.

    FOR FURTHER INFORMATION CONTACT:

    Regarding the Department of Labor: William W. Thompson, II, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, Box #12-200, 200 Constitution Ave. NW, Washington, DC 20210, telephone (202) 513-7350 (this is not a toll-free number). Regarding the Department of Homeland Security: Kevin J. Cummings, Chief, Business and Foreign Workers Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Ave. NW, Suite 1100, Washington, DC 20529-2120, telephone (202) 272-8377 (not a toll-free call).

    Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 1-877-889-5627 (TTY/TDD).

    SUPPLEMENTARY INFORMATION:

    I. Background A. Legal Framework

    The Immigration and Nationality Act (INA), 8 U.S.C. 1101, et seq., establishes the H-2B nonimmigrant classification for a nonagricultural temporary worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform . . . temporary [non-agricultural] service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.” 8 U.S.C. 1101(a)(15)(H)(ii)(b).1 The Secretary of Homeland Security, in administering the H-2B program, may grant a petition for an otherwise eligible H-2B nonimmigrant worker “after consultation with appropriate agencies of the Government.” 8 U.S.C. 1184(c)(1). The Secretary of Homeland Security also may delegate to “any employee of the United States, with the consent of the head of the applicable Department or other independent establishment, . . . any of the powers, privileges, or duties conferred or imposed” on DHS under the INA. 8 U.S.C. 1103(a)(6); see also 8 CFR 2.1. DHS regulations provide that an H-2B petition for temporary employment in the United States must be accompanied by an approved temporary labor certification from DOL. 8 CFR 214.2(h)(6)(iii)(A) and (iv)(A). Pursuant to and in accordance with the above authorities, the temporary labor certification serves as DHS's consultation with DOL to determine the question of whether a qualified U.S. worker is available to fill the petitioning H-2B employer's job opportunity and whether a foreign worker's employment in the job opportunity will adversely affect the wages or working conditions of similarly employed U.S. workers. See 8 CFR 214.2(h)(6)(iii)(A) and (D).

    1 For ease of reference, sections of the INA are referred to by their corresponding section in the United States Code.

    In order to advise DHS on the availability of U.S. workers and the potential for adverse effect on the wages and working conditions of similarly employed U.S. workers, DOL's Office of Foreign Labor Certification (OFLC) provides consultation to DHS through issuance of temporary labor certifications, in accordance with 8 U.S.C. 1103(a) and 1184(c);). See 8 CFR 214.2(h)(6)(iii)(A) and (D). The Departments have jointly issued regulations that govern the standards and procedures applicable to OFLC's issuance of temporary labor certifications under the H-2B program. See 20 CFR 655 subpart A. The regulations at 20 CFR 655 subpart A require employers seeking H-2B temporary labor certification to, among other things, actively recruit for U.S. workers before submitting petitions with DHS to hire foreign workers.

    The standards and procedures governing the recruitment of U.S. workers generally are set forth in 20 CFR 655.40-655.48. These regulations generally require, among other things, that an employer seeking an H-2B temporary labor certification (1) place two print advertisements in a newspaper of general circulation serving the area of intended employment, § 655.42(a); (2) contact former U.S. workers employed in the previous year to solicit their return, § 655.43; and (3) contact the bargaining unit, if one exists, to seek referrals of U.S. workers, or if a bargaining unit does not exist, post the job opportunity at the place(s) of employment for at least 15 consecutive business days, § 655.45. An employer may need to conduct additional recruitment, as provided in section 655.46(a), where the OFLC Certifying Officer (CO) determines there is a likelihood that qualified U.S. workers will be available to fill the employer's job opportunity.

    As relevant here, section 655.42(a) requires an employer seeking an H-2B temporary labor certification to place a print advertisement on two separate days, one of which must be a Sunday, in a newspaper of general circulation serving the area of intended employment and appropriate to the occupation and workers likely to apply for the job opportunity. If the employer's job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, then section 655.42(b) permits the CO to direct the employer, in place of a Sunday edition, to place a print advertisement in the regularly published daily edition with the widest circulation in the area of intended employment. Both advertisements must meet the minimum content requirements set forth in section 655.41, and the employer is required to maintain documentation of the actual newspaper advertisement(s) published in the event of an audit or other review. § 655.42(d).

    B. Joint Issuance

    In order to effectuate DHS's requirement for DOL consultation, which is provided in the form of temporary labor certifications, DOL must issue regulations to structure procedures and substantive standards for its issuance of labor certifications, as DOL has done for almost 50 years. On April 29, 2015, following a court's vacatur of nearly all of DOL's H-2B regulations, the Departments jointly promulgated an interim final rule (IFR) governing DOL's role in issuing temporary labor certifications and enforcing the statutory and regulatory rights and obligations applicable to employment under the H-2B program. See Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 80 FR 24,042 (Apr. 29, 2015) (codified at 8 CFR part 214, 20 CFR part 655, and 29 CFR part 503) (“2015 H-2B IFR”).

    As explained in the 2015 H-2B IFR, following conflicting legal decisions about DOL's authority to independently issue legislative rules to carry out its duties for the H-2B program under the INA, the Departments jointly issued the 2015 H-2B IFR “to ensure that there can be no question about the authority for and validity of the regulations in this area.” 80 FR at 24,045; see also 80 FR at 24,044-24,047.2 Specifically, DHS's participation in the rulemaking is pursuant to its broad authority to issue rules in the H-2B program under 8 U.S.C. 1103(a)(3) and 1184(a), and, as referenced above, DOL—which has the institutional expertise on all matters relating to the domestic labor market and has for decades issued temporary labor certifications and legislative rules governing them in the non-agricultural foreign worker program—is necessarily authorized to promulgate rules governing its issuance of temporary labor certifications pursuant to 8 U.S.C. 1103(a) and 1184(c). The Departments further explained that by issuing the 2015 H-2B IFR jointly, “the Departments affirm that this rule is fully consistent with the INA and implementing DHS regulations and is vital to DHS's ability to faithfully implement the statutory labor protections attendant to the program.” 80 FR at 24,045-46. Litigation on these and related matters is ongoing. Accordingly, notwithstanding that DOL has authority to independently issue this NPRM, DHS is joining DOL in this rulemaking to ensure that there can be no question about the authority underlying this action.

    2 DOL's authority to jointly regulate with DHS has not been found invalid. While the same district court twice issued an injunction against DOL's unilaterally-issued H-2B rules, see Bayou Lawn & Landscape Servs. v. Solis, 2012 WL 12887385 (N.D. Fla. Apr. 26, 2012) and Bayou Lawn v. Perez, 81 F. Supp. 3d 1291, 1300 (N.D. Fla. 2014) (Bayou II), it has since upheld the joint rules, Bayou Lawn v. Johnson, 173 F. Supp. 3d 1271, 1277, 1289-91 (N.D. Fla. 2016) (Bayou III), with the court noting that the primary difference between the enjoined 2012 rules and the 2015 rules was their joint promulgation. Id. at 1277, n2.

    C. Need for Rulemaking

    The Departments are proposing to modernize the recruitment that an employer must conduct under section 655.42 by replacing print newspaper advertisements with electronic advertisements posted on the internet. After due consideration, the Departments believe that advertisements posted on the types of websites described below will reduce burden on employers and applicants, and be a more effective and efficient means of recruiting U.S. workers than the print newspaper advertisements that section 655.42 currently requires.

    The Departments are basing this proposal on several considerations. First, available data suggest that U.S. workers are now much more likely to turn to the internet to search for work than classified newspaper advertisements in print newspapers. For instance, a recent survey conducted by the Pew Research Center indicated that 79 percent of Americans research jobs online, whereas only 32 percent use “ads in print publications,” and only four percent found ads in print publications to be the most useful tool in obtaining their recent employment.3 This trend is likely to continue as U.S. workers gain increased and more convenient access to the internet via smartphones and other digital devices,4 and print newspaper circulation continues to decline.5 Consequently, classified advertisements in print editions are becoming a less effective means of notifying potential applicants about available job opportunities.6 In recognition of these facts, many newspapers now offer online classified employment listings using multi-platform content providers, and popular online job search websites power the job boards of thousands of newspaper sites, providing a lower cost recruiting option for employers and job seekers alike.7

    3 Aaron Smith, Searching for Work in the Digital Era, Pew Research Center, Nov. 19, 2015, http://www.pewinternet.org/2015/11/19/searching-for-work-in-the-digital-era/; see also R. Jason Faberman & Marianna Kudlyak, What Does Online Job Search Tell Us About The Labor Market?, Economic Perspectives, Jan. 2016, https://www.chicagofed.org/~/media/publications/economic-perspectives/2016/ep2016-1-pdf.pdf (observing that the online job search has become the preferred method of search for nearly all types of job seekers and recent research suggests that it is the new norm for how job seekers find work); Richard Hernandez, Online Job Search: The New Normal, Monthly Labor Review (Bureau of Labor Statistics, U.S. Dep't. of Labor, Wash. DC), Jan. 2017, https://www.bls.gov/opub/mlr/2017/beyond-bls/pdf/online-job-search-the-new-normal.pdf (reporting that the online job search is now the most popular method of job hunting).

    4 In 2018, 89 percent of American adults used the internet, and 77 percent of American adults owned a smartphone, up from just 35 percent in 2011. See internet/Broadband Fact Sheet, Pew Research Center, Feb. 5, 2018, http://www.pewinternet.org/fact-sheet/internet-broadband/; Mobile Fact Sheet, Pew Research Center, Feb. 5, 2018, http://www.pewinternet.org/fact-sheet/mobile/.

    5 By 2014, fewer than 15 percent of Americans received a daily newspaper. See Elaine C. Kamarck and Ashley Gabriele, The News Today: 7 Trends in Old and New Media, The Brookings Institution, Nov. 10, 2015, https://www.brookings.edu/research/the-news-today-7-trends-in-old-and-new-media.

    6 According to the Pew Research Center, the total circulation of U.S. daily newspapers (print and digital combined) in 2017 was approximately 31 million, down 38 percent from more than 50 million in 2007. Pew Research Center, June 13, 2018, http://www.journalism.org/fact-sheet/newspapers/ Newspapers Fact Sheet. Conversely, job search websites today are attracting a far larger pool of potential applicants to find jobs. For example, the top 15 job search websites alone attract nearly 200 million unique visitors each month to search for employment.

    7See Christine Del Castillo, Does Anyone Advertise Jobs in Newspapers Anymore?, Workable, May 19, 2016, https://resources.workable.com/blog/newspaper-job-ads.

    Second, this general trend is consistent with anecdotal evidence that the Departments have received from stakeholders, who have reported that print newspaper advertisements are not an effective method of recruiting prospective U.S. workers for job opportunities filled by H-2B workers. For instance, two comments submitted in response to the 2015 H-2B IFR indicated that reliance on newspaper advertising to recruit U.S. workers was outmoded. Specifically, the Northwest Workers' Justice Project (NWJP), a not-for-profit organization that provides civil legal assistance to low-income persons, stated:

    We support the general notion of modernizing the forms of outreach to potential workers to be used to recruit domestic workers. The use of alternative advertising forums reflects changes in information exchanges and job searches and is appropriate. Fewer and fewer unemployed U.S. workers search for jobs through newspapers, and the elimination of newspaper advertising should have a minimal impact on domestic worker recruiting. We recommend that the regulations should expressly discuss new innovations now widely used by employers of domestic workers to recruit new employees, such as web-based advertising on sites such as Monster.com and participation in job fairs.

    NWJP comment at 11 (July 2, 2015).8 Similarly, the American Immigration Lawyers Association (AILA), a national not-for-profit organization of immigration attorneys and law professors, requested that the Departments:

    8 Accessed at https://www.regulations.gov/document?D=ETA-2015-0005-0124.

    move beyond newspaper advertisements as a method for recruiting American workers. Newspaper circulation has been in decline for years, as is evidenced by the overall decline in the number of print newspapers currently on the market. The decrease in newspaper readership, coupled with increased access to internet job banks has changed the way workers look for jobs. Requiring lengthier (and significantly more costly) ads will not result in more applicants, just more funds expended by employers. DOL should focus on new electronic avenues of job notification instead of requiring employers to run expensive advertisements. AILA Comment at 10 (July 2, 2015).9

    9 Accessed at https://www.regulations.gov/document?D=ETA-2015-0005-0125.

    Finally, electronic advertisements offer employers a less expensive, more convenient means of broadly disseminating information about their job opportunities to potential U.S. workers. Many websites offer standard advertising packages for free or at significantly lower marginal costs than the standard print newspaper advertisement, and advertisements can be posted on these sites for longer periods than a typical print newspaper advertisement remains in circulation, providing greater exposure of the employer's job opportunity to U.S. workers at no additional cost to the employer. Moreover, unlike print advertisements, which are subject to publishing deadlines that can delay exposure of the job opportunity to U.S. workers, an electronic advertisement can be posted within minutes or hours of submission to the website.

    In light of the foregoing, the Departments are proposing to revise the recruitment that an employer must conduct under section 655.42 to replace print newspaper advertisements with electronic advertisements posted on the internet, as described below. The Departments are also proposing minor amendments to sections 655.48 and 655.71 to conform those sections with the Departments' proposed elimination of print newspaper advertisements.

    II. Discussion of Proposed Revisions to 20 CFR Part 655, Subpart A A. Revise Section 655.42 To Replace Newspaper Advertisements With Electronic Advertisements

    The Departments are proposing to revise section 655.42(a) to replace the requirement that an employer place print newspaper advertisements with a requirement that the employer advertise its job opportunity on a website that is widely viewed and appropriate for use by workers who are likely to apply for the job opportunity in the area of intended employment. The Departments propose to remove the word “occupation” from the text in order to address a possible redundancy in the language. This proposed drafting change is stylistic only, and the Departments intend to effect no substantive change by it.

    The proposed rule would not mandate that an employer post its advertisement on a specific website. Rather, proposed section 655.42(a) would allow an employer to place an advertisement on any of a variety of websites that are widely viewed and appropriate for use by workers who are likely to apply for the job opportunity in the area of intended employment, including websites that specialize in advertising job opportunities for the specific industry or occupation, and websites that specifically serve the local area, such as localized online job listing services and digital classified sections of local newspapers. Proposed section 655.42(a) also contemplates the use of websites that are not specifically directed at workers in the area of intended employment or the particular occupation, so long as the website is appropriate for the occupation and adequately serves the area of intended employment.

    The Departments anticipate that advertisements posted on the types of websites described above will provide greater exposure of job opportunities to U.S. workers than the print newspaper advertisements that section 655.42 currently requires, because they can be more easily accessed by applicants across a much larger geographic area and for a longer period. The Departments invite comments on whether they should establish qualifying criteria (e.g., minimum number of unique visitors per month), or define the types of websites on which an employer may place an electronic advertisement under the proposed rule, and whether the rule should exclude websites maintained by the employer and/or the employer-client of a job contractor seeking to employ H-2B workers, as defined in section 655.5. The Departments also solicit comments on whether, instead of eliminating print newspaper advertisements, they should instead offer electronic advertisements as an alternative means of satisfying the existing print advertising requirement in section 655.242. The Departments are not proposing this option, given the data and trends discussed in Section I.C., which suggest that electronic advertisements will be more effective in disseminating information about job opportunities to the American workforce. However, the Departments invite comments on whether there are employers that lack the technology or internet access necessary to place the electronic advertisements described in the proposed rule, and if so, how the Departments should determine whether such employers have met their obligation to recruit U.S. workers. For instance, the Departments could leave current recruitment requirements in place as an option for such employers. The Departments solicit comments on whether there are alternative methods that would more broadly and effectively disseminate information about available job opportunities to U.S. workers.

    Proposed section 655.42(b) specifies that an employer's advertisement must be clearly visible on the website's homepage or be easily retrievable using the search tools on the website. Any advertisement that is not clearly visible on the website's homepage must be easily retrievable. An advertisement is easily retrievable if it can be quickly accessed using a prominently displayed link on the website's homepage or the search tools and filters that are prominently displayed on the website's homepage. Each navigation choice or interaction that a job seeker has with the website should take him or her closer to the job opportunity being advertised, and applicants should be able to quickly locate job vacancies using a number of search criteria, such as occupation, job or position title, geographic location, pay range, and keywords in the job description. The employer must use commonly understood terms and keywords to describe its job opportunity when placing the advertisement, so that U.S. workers who are likely to apply for the position will retrieve the advertisement when using the website's search function.

    Proposed section 655.42(b) would also require an employer to post the electronic advertisement for a period of no less than 14 consecutive calendar days. Unlike the print newspaper advertisements that an employer must place under the current rule, which are typically published once, many websites offer standard advertising packages that allow an employer to place an advertisement for a weekly period or up to 30 calendar days for free or at a much lower marginal cost than a standard print newspaper advertisement. Accordingly, the Departments anticipate that the fourteen-day consecutive posting period in proposed section 655.42(b) will attract more U.S. workers to job opportunities than the print newspaper advertisements that this section currently requires, because an employer's job opportunity will be easily accessible to U.S. workers seeking jobs for a longer period than a print newspaper advertisement, at no additional cost to the employer.

    Further, in order to assure that the job opportunity described in the advertisement is readily available to U.S. workers, proposed section 655.42(b) would require that the advertisement be publicly accessible at no cost to an applicant. To meet this requirement, the website on which the advertisement is placed cannot require U.S. workers to pay fees to establish personal accounts or make payments of any kind to view the advertisement. The website must also be functionally compatible with the latest commercial web browser platforms and easily viewable on mobile smartphones and similar portable devices. Moreover, like the current rule, proposed section 655.42(b) would require that the advertisement comply with the minimum content requirements set forth in section 655.41.

    In order to ensure that an employer retains the evidence necessary to demonstrate compliance with proposed section 655.42(a) and (b), proposed section 655.42(c) would require an employer to print and retain screen shots of the web pages on which its advertisement appears and screen shots of the web pages establishing the path used to access the advertisement. Although the proposed rule does not require employers to submit this documentation to the CO with their recruitment reports, an employer must nevertheless retain this documentation in accordance with 20 CFR 655.56 and provide it to DOL in the event of an audit or other review.

    The proposed section 655.42(d) includes a transition provision that would permit an employer submitting an Application for Temporary Employment Certification with a date of need prior to October 1, 2019 to elect between placing (a) an electronic advertisement in accordance with the requirements in the proposed rule, or (b) two newspaper advertisements in accordance with existing requirements. Because the Departments are proposing to have this rule take effect immediately upon publication of the final rule, the Departments are including this transition period to provide flexibility to employers that seek additional time to understand and comply with the proposed regulatory revisions, while simultaneously permitting employers that wish to place electronic advertisements immediately upon the effective date of the final rule the ability to do so. The transition provision is intended to better ensure, among other things, that employers who have purchased newspaper advertising space in advance do not lose the benefit of such purchase.

    However, the option to elect between the placement of newspaper and electronic advertisements would apply only to those applications with a date of need prior to October 1, 2019. All employers submitting an Application for Temporary Employment Certification with a date of need after the transition period ends (i.e., employers with dates of need beginning on or after October 1, 2019) would be required to place an advertisement in accordance with the proposed revisions to 655.42(a)-(c).

    B. Other Minor Changes for Conformance

    The Departments are proposing minor revisions to two other sections in subpart A in order to conform the regulatory text of those sections with the proposed revision to section 655.42. First, the Departments are proposing to amend section 655.48(a)(i), relating to recruitment reports, by revising the requirement that an employer provide the name of the newspaper used to satisfy the recruitment requirement in section 655.42 to instead require the name of the website used to satisfy this requirement. Second, the Departments are proposing to amend section 655.71(c)(2) by deleting the option to use newspaper advertisements for assisted recruitment.

    C. DOL-Assisted Advertising

    DOL, with the concurrence of DHS, has taken initial steps toward creating an online platform to assist employers in complying with the requirements for electronic advertising under this proposed rule. Pending the outcome of this rulemaking, DOL intends to leverage the latest advertising technologies by establishing a mechanism to make advertising data available to popular job-search websites. Specifically, DOL is evaluating the development of a centralized platform to automate the electronic advertising of approved H-2B job opportunities. DOL anticipates that, once fully developed and implemented, this electronic advertising platform would maintain a standard set of data on each job opportunity that can be integrated with a wide array of job search website technologies. Through this platform, DOL would make available to job-search websites real-time access to the information that employers provide about their job opportunities subject to agreement to abide by terms of service. The companies that operate job-search websites would execute standard protocols to pull new H-2B jobs from the online platform in real time for advertising to U.S. workers.

    If developed as currently envisioned, DOL expects that employers would provide information about their job opportunities, at the time of filing their H-2B temporary labor certification applications, and indicate their intention to use the electronic advertising platform. Employers that elect to use this platform would have information about their job opportunities transmitted by DOL to companies offering to provide advertising services, which in turn would advertise these jobs on the companies' job search websites.

    The Departments believe that facilitating employers' use of technology is in the best interest of employers and U.S. workers. Because information about the job opportunity would already be provided at the time of filing theH-2B temporary labor certification application and transmitted by DOL to companies operating these job search websites, the burden associated with placing separate electronic advertisements would be significantly reduced. The goal is to reduce burdens on the regulated community, while ensuring that the maximum number of U.S. workers learn about job opportunities. Having DOL maintain a publicly available list of the companies participating in this advertising platform would give U.S. workers and other organizations that provide employment placement services a greater degree of certainty regarding where these temporary or seasonal jobs will be advertised and available for U.S. workers to apply. Employers that elect to use the new platform would satisfy the advertising requirements in § 655.42. Finally, offering this platform to employers would ensure more uniform compliance with advertising requirements.

    The Departments are not soliciting comments on this electronic advertising platform at this time, but the Departments, or DOL acting alone, may inform the public about the advertising platform's completion through a notice in the Federal Register.

    III. Administrative Information A. Administrative Procedure Act

    The Departments propose to claim an exception under 5 U.S.C. 553(d)(1) from the 30-day delayed effective date requirement on the basis that relieves the restriction against on-line advertising of jobs for which an employer seeks to hire H-2B workers. The final rule would relieve regulated parties of the requirement that they only place paper advertisements in newspapers of general circulation in the area of intended employment. During the transition period, which would apply to all employers who file an Application for Temporary Employment Certification with a date of need prior to October 1, 2019, the rule would allow employers to select between placing two paper newspaper advertisements or placing an online advertisement. After the transition period ends, the rule would altogether replace the newspaper advertising requirement with online advertising, which is anticipated to be more cost-effective and flexible for employers, as well as a more effective way of reaching U.S. workers who may be able, willing, and qualified for the employers' job opportunities. The online advertising would also provide flexibility for U.S. workers who are job seekers to identify and apply for the job opportunities for which employers seek to hire H-2B workers. As discussed in greater detail in this preamble, this approach is in line with commenter requests on the 2015 H-2B joint Interim Final Rule, urging the Departments to transition to an online recruitment model. The Departments anticipate that allowing employers additional time to transition away from advertising by newspaper over an approximately six-month period after the rule's publication would provide needed flexibility, and thus provide employers with notice and time to conform their business practices to the new rule. This rule would take effect immediately upon publication of the final rule.

    B. Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review), and 13771 (Reducing Regulation and Controlling Regulatory Costs)

    Under Executive Order (E.O.) 12866, the Office of Management and Budget (OMB)'s Office of Information and Regulatory Affairs determines whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and review by OMB. 58 FR 51735. Sec. 3(f) of E.O. 12866 defines a “significant regulatory action” as an action that is likely to result in a rule that (1) has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O. Id. OMB has determined that this proposed rule is a significant, but not an economically significant, regulatory action under Sec. 3(f) of E.O. 12866. Consequently, OMB has reviewed this rule.

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

    E.O. 13771, titled Reducing Regulation and Controlling Regulatory Costs, was issued on January 30, 2017. This proposed rule is expected to be an E.O. 13771 deregulatory action because the cost savings to H-2B employers associated with the rule are larger than the costs. The estimated cost savings associated with this regulatory action are derived from the proposed revision to section 655.42(a), which would replace print newspaper advertisements with electronic advertisements posted on the internet.

    1. Subject-by-Subject Analysis

    The Departments' analysis below considers the expected impacts of the following aspects of the proposed rule against the baseline (i.e., the 2015 Interim Final Rule): (a) The replacement of newspaper advertisements with electronic advertisements, and (b) the time it takes the regulated community to read and review the rule.

    a. Electronic Advertisements

    The Departments are proposing to modernize the positive recruitment that an employer must conduct under the regulations by eliminating the use of print newspaper advertisements and replacing it with electronic advertisements posted on the internet, which will make the job opportunity more broadly available to U.S. workers. Specifically, the Departments are proposing to revise section 655.42(a) to replace print newspaper advertisement requirements with a requirement for an electronic advertisement posted on a website appropriate for the workers who are likely to apply for the job opportunity in the area of intended employment. As discussed in section I.C. of the preamble to this NPRM, the basis for this proposal is rooted in the Departments' determination that electronic advertisements will be a more effective and efficient means of recruiting U.S. workers than the print newspaper advertisements that the regulations currently require.

    i. Cost Savings

    To estimate the cost savings to employers that would result from the proposed rule, the Departments first calculated the average number of H-2B temporary labor certifications approved in a Fiscal Year (FY) based on data from FY 2015-2017, which yielded an annual average of 5,879.10 Next, the Departments identified the top five states in which prospective H-2B employers received temporary labor certifications and researched the cost of placing a newspaper advertisement in the most populous city in each of these states (for several newspapers, including large and local papers) that would satisfy the advertising content requirements.11 The Departments then averaged the data obtained to estimate the average cost of complying with section 655.42. Based on these data, the Departments determined that the average cost of placing a single, one-day newspaper advertisement required by section 655.42 is $803.08.12

    10 The average is based on 5,106 H-2B temporary labor certifications in FY 2015; 5,933 temporary labor certifications in FY 2016; and 6,599 temporary labor certifications in FY 2017. Calculation: (5,106 + 5,933 + 6,599)/3 = 5,879 (rounded)). See https://www.foreignlaborcert.doleta.gov/performancedata.cfm.

    11 The top 5 states in which employers seek to place H-2B workers are Colorado, Florida, Louisiana, Texas, and Virginia.

    12 The Departments assume that these advertisements would be placed in the newspaper classified section for employment.

    As mentioned above, the Departments believe, based on preliminary research, that employers can choose to advertise using online job search websites free of charge or at significantly lower marginal costs, so removing the requirement to advertise in a print newspaper would result in a cost savings equal to the cost of complying with the current regulation.13 Although section 655.42 currently requires employers to advertise on two consecutive days, one of which must be a Sunday, the Departments did not identify a significant difference in cost between advertisements placed on Sundays and weekdays, so the Departments did not distinguish between these two costs when calculating total advertising cost savings. To estimate the annual cost savings of newspaper advertising costs that employers will avoid under the proposed rule, the Departments multiplied the average annual number of approved H-2B temporary labor certifications (5,879) by the average newspaper advertising cost of $803.08, and multiplied it by two to account for each of the days that employers seeking H-2B workers are currently required to place newspaper advertisements. This yielded an average annual cost savings of $9.44 million 14 for employers.

    13 The Departments have data on three commonly used job-search websites that allow employers to advertise free of charge.

    14 Calculation: 5,879 × $803.08 = $9,442,615 = $9.44 million (rounded).

    b. Time To Understand Rule

    During the first year that this rule would be in effect, employers seeking H-2B workers would need time to learn about the new requirements. The Departments assume that many employers participating in the H-2B program would learn about the requirements of the new rule from an industry newsletter or bulletin. The Departments assume that the amount of time required to understand the rule change to be 10 minutes. The proposed rule addresses only the job advertising requirements for employers seeking H-2B workers.

    i. Costs

    This requirement represents a cost to employers participating in the H-2B program in the first year of the rule. The Departments estimate this cost by multiplying the time required to read and review the new rule (10 minutes) by the median hourly wage of a human resources specialist ($31.84),15 multiplied by a factor of two (2) to account for fringe benefits and overhead, which yields a cost of $10.61 16 per employer. The Departments estimate the total cost of reading and reviewing the rule by multiplying $10.61 by the average annual number of employers participating in the H-2B program over FY 2015-2017 (6,151). This calculation results in a cost of $65,283 17 in the first year.

    15 Wage derived from Bureau of Labor Statistics median hourly wage for HR Specialists (occupation code 13-1071), U.S. Department of Labor, Bureau of Labor Statistics, Occupational Employment Statistics, May 2017, Human Resources Specialist: https://www.bls.gov/oes/2017/may/oes131071.htm.

    16 Calculation: ($31.84 × 2)/6 (10 minutes) = $10.61 (rounded).

    17 Calculation: $10.61 × 6,151 = $65,283 (rounded).

    The Departments acknowledge, however, that there are some potentially limited situations—particularly in rural communities—where the upfront costs associated with accessing the internet and learning how to post such advertisements may result in noteable opportunity costs for employers. The Departments believe that very few employers who currently participate in the H-2B program do not currently have access to the internet. For those employers that do not currently have internet access, the Departments estimate that it will take two hours to access the internet (which may include transporation to the nearest library), research the websites and pick one to use, establish an account on that website, learn how to post a job on the website, and establish an email account. In addition, employers would need to make additional trips to check for responses from U.S. workers. Because of the uncertainties, we are unable to provide an estimate of the number of employers who do not have access to the internet and would incur these additional costs to post advertisements online. The Departments seek comment from the public on the likely magnitude and incidence of these costs. For employers with access to the internet who are not familiar with posting such advertisements online, there will be some up front costs associated with the time it takes to research job advertisement sites, establish an account, and learn how to post a job on the website.

    However, online advertisements for H-2B employment would increase the visibility of job openings to potential U.S. workers and increase the number of workers that would be able to access these jobs. This benefit would significantly outweigh any cost potentially incurred by the negligible number of employers who do not currently have access to the internet due to transitioning from print newspaper advertisements to online job postings. The Departments therefore believe that the net societal benefit of implementing this rule would be maximized if all H-2B employers are required to utilize online advertisements. As such this rule constitutes as a deregulatory action.

    2. Summary of Impacts

    The Departments estimate the total first-year costs of the proposed rule to be $65,283. This cost results from the estimated time required to read and review the proposed rule by a human resources specialist. This cost is incurred by all employers seeking H-2B workers subject to proposed section 655.42(a). The Departments estimate a first-year cost savings of $9.44 million. This cost savings results from replacing the requirement that employers place print newspaper advertisements with a requirement that employers place internet advertisements. Net first-year cost savings amount to $9.38 million.18 This estimated cost savings excludes any increase in costs to employers without current access to the internet.

    18 Calculation: $9,442,615 − $65,283 = $9,377,332 = $9.38 million (rounded).

    Generally, annual cost savings are expected to be $9.44 million in all years following the first year due to the lack of monetized costs regarding the time required to read and review the proposed rule. The 10-year discounted net cost savings of the proposed rule range from $66.25 million to $80.46 million (with 7- and 3-percent discount rates, respectively). The annualized net cost savings of the proposed rule is $9.43 million (with 3- and 7-percent discount rates). When the Departments use a perpetual time horizon to allow for cost comparisons under E.O. 13771, the annualized cost savings of this proposed rule are $9.44 million at a discount rate of 7 percent (excluding any increased costs to employers without access to the internet).

    C. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121 (March 29, 1996), requires federal agencies engaged in rulemaking to consider the impact of their proposals on small entities, consider alternatives to minimize that impact, and solicit public comment on their analyses. The RFA requires the assessment of the impact of a regulation on a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions. Agencies must perform a review to determine whether a proposed or final rule would have a significant economic impact on a substantial number of small entities. 5 U.S.C. 603 and 604.

    This proposed rule may impact small businesses that request H-2B temporary labor certifications. The Departments assume that the average number of H-2B temporary labor certifications requested by any small business per year would be one. The Departments estimate that small businesses would incur a one-time cost of $10.61 to familiarize themselves with the rule and would incur annual cost savings of $1,606.16 associated with advertising online rather than in print newspapers. Over a 10-year analysis period, the net annualized cost savings for a small business would be $1,604.74 at a 7-percent discount rate.

    The Departments reviewed the impacts of the proposed rule for two North American Industry Classification System (NAICS) Codes that frequently request H-2B temporary labor certifications: NAICS 561730: Landscaping Services, and NAICS 721110: Hotels (except Casino Hotels) and Motels. The Small Business Administration estimates that revenue for a small business with NAICS Code 561730 is $7.5 million and for NAICS Code 721110 is $32.5 million.19 The impact of the proposed rule would be less than 1 percent of annual revenue for the smallest businesses in these industries with the employment size fewer than 5 ($197,491 for NAICS 561730 and $321,239 for NAICS 721110).20 Based on this determination, the Departments certify that the proposed rule would not have a significant economic impact on a substantial number of small entities.

    19 U.S. Small Business Administration (2017), Table of Small Business Size Standards Matched to North American Industry Classification System Codes, retrieved from: https://www.naics.com/wp-content/uploads/2017/10/SBA_Size_Standards_Table.pdf.

    20 U.S. Census, 2012 SUSB Annual Data Tables by Establishment Industry, https://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html.

    D. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., provides that a Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6. DOL has submitted the Information Collection Request (ICR) contained in this rule to OMB and obtained approval using emergency clearance procedures outlined at 5 CFR 1320.13.

    More specifically, this rule proposes to replace print newspaper advertisements with an advertisement posted on at least one website that is widely viewed and appropriate for use by U.S. workers who are likely to apply for the job opportunity in the area of intended employment. The proposed rule would require that this advertisement be clearly visible on the website's homepage or be easily retrievable through the website, posted for a period of no less than 14 consecutive calendar days, publicly accessible to U.S. workers at no cost using the latest browser technologies and mobile devices, and satisfy the advertising content requirements set forth in § 655.41. Under the proposed rule and in accordance with 20 CFR 655.56(c)(2)(ii), an employer would be required to retain documentation demonstrating that it posted an electronic advertisement in compliance with the requirements in the proposed rule, including screen shots of the web page on which the advertisement appears and screen shots of the web pages establishing the path that U.S. workers must follow to access the advertisement. The employer must be prepared to produce all information and records contained in this information collection in the event of an audit examination, investigation, or other enforcement proceedings in the H-2B program. The Departments are using technology to reduce burden by replacing newspaper advertisements with electronic advertisements. The information collection requirements associated with this rule are summarized as follows:

    Agency: DOL-ETA.

    Type of Information Collection: New.

    Title of the Collection: Advertising Requirements for Employers Seeking to Employ H-2B Nonimmigrant Workers.

    Agency Form Number: None.

    Affected Public: Private Sector—businesses or other for-profits.

    Total Estimated Number of Respondents: 5,879.

    Average Responses per Year per Respondent: 2.

    Total Estimated Number of Responses: 11,758.

    Average Time per Response: 7 minutes per application.

    Total Estimated Annual Time Burden: 686 hours.

    Total Estimated Other Costs Burden: $0.

    D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act 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 $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector.

    This NPRM, if finalized, does not exceed the $100 million expenditure in any 1 year when adjusted for inflation, and this rulemaking does not contain such a mandate. The requirements of Title II of the Act, therefore, do not apply, and the Departments have not prepared a statement under the Act.

    E. Small Business Regulatory Enforcement Fairness Act of 1996

    This NPRM, if finalized, would not be a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996, Public Law 104-121, 804, 110 Stat. 847, 872 (1996), 5 U.S.C. 804(2). The Office of Information and Regulatory Affairs has found that this rule is not likely to result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic or export markets.

    F. Executive Order 13132: Federalism

    This NPRM does not have federalism implications because it would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, Executive Order 13132, Federalism, requires no further agency action or analysis.

    G. Executive Order 13175, Indian Tribal Governments

    This NPRM does not have “tribal implications” because it would not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Accordingly, Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, requires no further agency action or analysis.

    H. The Treasury and General Government Appropriations Act of 1999: Assessment of Federal Regulations and Policies on Families

    This NPRM would have no effect on family well-being or stability, marital commitment, parental rights or authority, or income or poverty of families and children. Accordingly, section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires no further agency action, analysis, or assessment.

    I. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    This NPRM would have no adverse impact on children. Accordingly, Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks, as amended by Executive Orders 13229 and 13296, requires no further agency action or analysis.

    J. Environmental Impact Assessment

    This action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This action is therefore categorically excluded from further review under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4375.

    K. Executive Order 13211, Energy Supply

    This NPRM has not been identified to have impacts on energy supply. Accordingly, Executive Order 13211 requires no further agency action or analysis.

    L. Executive Order 12630, Constitutionally Protected Property Rights

    This NPRM, would not implement a policy with takings implications. Accordingly, Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, requires no further agency action or analysis.

    M. Executive Order 12988, Civil Justice Reform Analysis

    This NPRM was drafted and reviewed in accordance with Executive Order 12988, Civil Justice Reform. It was written to provide a clear legal standard for affected conduct and was carefully reviewed to eliminate drafting errors and ambiguities, so as to minimize litigation and undue burden on the Federal court system. It meets the applicable standards provided in section 3 of Executive Order 12988.

    List of Subjects in 20 CFR Part 655

    Administrative practice and procedure, Employment, Employment and training, Enforcement, Foreign workers, Forest and forest products, Fraud, Health professions, Immigration, Labor, Longshore and harbor work, Migrant workers, Nonimmigrant workers, Passports and visas, Penalties, Reporting and recordkeeping requirements, Unemployment, Wages, Working conditions.

    For the reasons stated in this document, 20 CFR part 655 is proposed to be amended as follows:

    PART 655—TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES 1. The authority citation for part 655 is revised to read as follows: Authority:

    Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 2135, as amended; Pub. L. 109-423, 120 Stat. 2900; sec. 205 of division M, Pub. L. 115-141, 132 Stat. 348; 8 CFR 2.1, 214.2(h)(4)(i), and 214.2(h)(6)(iii).

    Subpart A issued under 8 CFR 214.2(h).

    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 CFR 214.2(h).

    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701.

    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701.

    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

    2. Revise § 655.42 to read as follows:
    § 655.42 Advertising in the area of intended employment.

    (a) Where to conduct recruitment. The employer must place an advertisement for the job opportunity on at least one website that is widely viewed and appropriate for use by U.S. workers who are likely to apply for the job opportunity in the area of intended employment.

    (b) Nature of the recruitment. The advertisement must be clearly visible on the website's homepage or be easily retrievable through the website, posted for a period of no less than 14 consecutive calendar days, publicly accessible to U.S. workers at no cost using the latest browser technologies and mobile devices, and satisfy the requirements set forth in § 655.41.

    (c) Proof of recruitment. An employer must retain documentation in accordance with § 655.56(c)(2)(ii) that demonstrates compliance with paragraphs (a) and (b) of this section. Such documentation must include screen shots of the web page on which the advertisement appears and screen shots of the web pages establishing the path that U.S. workers must follow to access the advertisement.

    (d) Transition period for applications with dates of need prior to October 1, 2019. (1) All employers submitting an Application for Temporary Employment Certification with a date of need on or after October 1, 2019 must place and retain documentation of an electronic advertisement in accordance with paragraphs (a) through (c) of this section.

    (2) An employer submitting an Application for Temporary Employment Certification with a date of need prior to October 1, 2019 may elect to place two newspaper advertisements in compliance with requirements in paragraphs (d)(2)(i) through (iv) of this section, in lieu of placing and retaining documentation of the electronic advertisement required by paragraphs (a) through (c) of this section.

    (i) The employer must place an advertisement (which must be in a language other than English, where the CO determines appropriate) on 2 separate days, which may be consecutive, one of which must be a Sunday (except as provided in paragraph (d)(2)(ii) of this section), in a newspaper of general circulation serving the area of intended employment and appropriate to the occupation and the workers likely to apply for the job opportunity.

    (ii) If the job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the CO may direct the employer, in place of a Sunday edition, to advertise in the regularly published daily edition with the widest circulation in the area of intended employment.

    (iii) The newspaper advertisements must satisfy the requirements in § 655.41.

    (iv) The employer must maintain copies of newspaper pages (with date of publication and full copy of the advertisement), or tear sheets of the pages of the publication in which the advertisements appeared, or other proof of publication furnished by the newspaper containing the text of the printed advertisements and the dates of publication, consistent with the document retention requirements in § 655.56. If the advertisement was required to be placed in a language other than English, the employer must maintain a translation and retain it in accordance with § 655.56.

    3. Amend § 655.48 by revising paragraph (a)(1) to read as follows:
    § 655.48 Recruitment report.

    (a) * * *

    (1) The name of each recruitment activity or source (e.g., job order and the name of the website as required in § 655.42(a) on which the job opportunity was advertised);

    4. Amend § 655.71 by revising paragraph (c)(2) as follows:
    § 655.71 CO-ordered assisted recruitment.

    (c) * * *

    (2) Designating the sources where the employer must recruit for U.S. workers, directing the employer to place the advertisement(s) in such sources;

    Kirstjen M. Nielsen, Secretary of Homeland Security. R. Alexander Acosta, Secretary of Labor.
    [FR Doc. 2018-24498 Filed 11-8-18; 8:45 am] BILLING CODE 4510-FP-P; 9111-97-P
    DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Part 655 [Docket No. ETA-2018-0002] RIN 1205-AB90 Modernizing Recruitment Requirements for the Temporary Employment of H-2A Foreign Workers in the United States AGENCY:

    Employment and Training Administration, Labor.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Department of Labor (the Department or DOL) is proposing regulatory revisions that would modernize the recruitment an employer seeking H-2A nonimmigrant agricultural workers must conduct when applying for a temporary labor certification. In particular, the Department is proposing to replace the print newspaper advertisements that its regulations currently require with electronic advertisements posted on the internet, which the Department believes will be a more effective and efficient means of disseminating information about job openings to U.S. workers. The Department is proposing to replace, rather than supplement, the newspaper requirements because it believes that exclusive electronic advertisements posted on a website appropriate for the workers likely to apply for the job opportunity in the area of intended employment would best ensure that U.S. workers learn of job opportunities.

    DATES:

    Comments must be submitted, in writing, on or before December 10, 2018.

    ADDRESSES:

    You may send comments, identified by Docket No. ETA-2018-0002 or Regulatory Information Number (RIN) 1205-AB90, by any of the following methods:

    Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the website instructions for submitting comments (under “Help” > “How to use Regulations.gov”).

    Mail and Hand Delivery/Courier: Submit written comments and any additional material to Adele Gagliardi, Administrator, Office of Policy Development and Research, U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210.

    Instructions: Label all submissions with “RIN 1205-AB90.” Please submit your comments by only one method.

    Please be advised that the Department will post all comments received that relate to this notice of proposed rulemaking (NPRM) on http://www.regulations.gov without making any change to the comments or redacting any information. The http://www.regulations.gov website is the Federal e-rulemaking portal, and all comments posted there are available and accessible to the public. Therefore, the Department recommends that commenters remove personal information (either about themselves or others) such as Social Security Numbers, personal addresses, telephone numbers, and email addresses included in their comments, as such information may become easily available to the public via the http://www.regulations.gov website. It is the responsibility of the commenter to safeguard personal information.

    Also, please note that, due to security concerns, postal mail delivery in Washington, DC may be delayed. Therefore, the Department encourages the public to submit comments on http://www.regulations.gov.

    Docket: To read or download comments or other material in the electronic docket, go to http://www.regulations.gov website (search using RIN 1205-AB90 or Docket No. ETA-2018-0002). The Department also will make all the comments it receives available for public inspection by appointment during normal business hours at the above address. If you need assistance to review the comments, the Department will provide appropriate aids, such as readers or print magnifiers. The Department will make copies of this proposed rule available, upon request, in large print and electronic file on computer disk. To schedule an appointment to review the comments and/or obtain the proposed rule in an alternative format, contact the Office of Policy Development and Research at (202) 693-3700 (this is not a toll-free number). You may also contact Adele Gagliardi, Administrator, Office of Policy Development and Research, U.S. Department of Labor, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210.

    Comments under the Paperwork Reduction Act (PRA): In addition to filing comments with ETA, persons wishing to comment on the information collection (IC) aspects of this rule may send comments to: Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-ETA, Office of Management and Budget, Room 10235, 725 17th Street NW, Washington, DC 20503, Fax: (202) 395-6881 (this is not a toll-free number), email: [email protected] See Paperwork Reduction Act section of this proposal for particular areas of interest.

    FOR FURTHER INFORMATION CONTACT:

    William W. Thompson, II, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, Box #12-200, 200 Constitution Ave. NW, Washington, DC 20210, telephone (202) 513-7350 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 1-877-889-5627 (TTY/TDD).

    SUPPLEMENTARY INFORMATION:

    I. Background A. Legal Framework

    The Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), establishes the H-2A nonimmigrant visa classification for a worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services . . . of a temporary or seasonal nature.” 8 U.S.C. 1101(a)(15)(H)(ii)(a); see also 8 U.S.C. 1184(c)(1) and 1188.1 Among other things, the INA requires the Secretary of Homeland Security to consult with appropriate agencies of the Government—and in particular, DOL—before approving a petition to employ H-2A nonimmigrant agricultural workers. 8 U.S.C. 1184(c)(1). To that end, the Secretary of Homeland Security may not approve a petition to employ H-2A workers unless the petitioning employer has applied to the Secretary of Labor (Secretary) for a certification that:

    1 For ease of reference, sections of the INA are referred to by their corresponding section in the United States Code.

    (A) There are not sufficient U.S. workers who are able, willing, and qualified, and who will be available at the time and place needed to perform the labor or services involved in the petition; and

    (B) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.

    8 U.S.C. 1188(a)(1); see also 20 CFR 655.100. The Secretary has delegated his statutory responsibility to make this certification—known as a “temporary labor certification”—to the Assistant Secretary for Employment and Training. Secretary's Order 06-2010 (October 20, 2010). And the Assistant Secretary has, in turn, delegated the authority to the Office of Foreign Labor Certification (OFLC). 20 CFR 655.101.

    The INA specifies a number of conditions under which the Secretary cannot grant a temporary labor certification. 8 U.S.C. 1188(b). One such condition is where “[t]he Secretary determines that the employer has not made positive recruitment efforts within a multi-state region of traditional or expected labor supply where the Secretary finds that there are a significant number of qualified United States workers who, if recruited, would be willing to make themselves available for work at the time and place needed.” 8 U.S.C. 1188(b)(4). The “positive recruitment” that the INA requires “is in addition to, and shall be conducted within the same time period as, the circulation through the interstate employment service system of the employer's job offer.” 8 U.S.C. 1188(b)(4). An employer's obligation to engage in this recruitment terminates “on the date the H-2A workers depart for the employer's place of employment.” Id.

    Since 1987, the Department has relied on regulations promulgated under the authority of the INA to review and evaluate an application for a temporary labor certification under the H-2A visa classification. 20 CFR part 655, subpart B. The last significant revisions to these regulations, which are published in 20 CFR part 655, subpart B, took effect in 2010, following notice and comment rulemaking. 75 FR 6884 (Feb. 12, 2010) (2010 Final Rule). Pursuant to these regulations, the “positive recruitment” mandated by the INA is defined as “[t]he active participation of an employer or its authorized hiring agent, performed under the auspices and direction of the OFLC, in recruiting and interviewing individuals in the area where the employer's job opportunity is located and any other State designated by the Secretary as an area of traditional or expected labor supply with respect to the area where the employer's job opportunity is located, in an effort to fill specific job openings with U.S. workers.” 20 CFR 655.103.

    The standards and procedures governing the positive recruitment of U.S. workers are set forth in sections 655.151-655.154. These regulations generally require, among other things, that an employer seeking H-2A temporary labor certification (1) place two print advertisements in a newspaper of general circulation serving the area of intended employment, § 655.151(a); (2) contact former U.S. workers who were employed in the previous year, § 655.153; and (3) recruit U.S. workers in up to three additional states designated by the Secretary as states of traditional or expected labor supply, § 655.154.

    As relevant here, section 655.151(a) requires an employer seeking an H-2A temporary labor certification to place a print advertisement on two separate days, one of which must be a Sunday, in a newspaper of general circulation serving the area of intended employment and appropriate to the occupation and workers likely to apply for the job opportunity. Section 655.151(b) provides that if the employer's job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, OFLC may direct the employer, in place of a Sunday edition, to place a print advertisement in the regularly published daily edition with the widest circulation in the area of intended employment. Both advertisements must meet the minimum content requirements set forth in section 655.152, and the employer is required to maintain documentation of the actual newspaper advertisements in the event of an audit or other review, as required by section 655.167(c)(1)(ii).

    In addition, under section 655.154, an employer must conduct positive recruitment within a multistate region of traditional or expected labor supply where an OFLC Certifying Officer (CO) finds that there are a significant number of qualified U.S. workers who, if recruited, would be willing to make themselves available for work at the time and place needed. Paragraph (c) of this section leaves the precise nature of the additional positive recruitment that an employer must conduct to the discretion of the CO. In practice, however, the Department has generally directed employers to place print advertisements in newspapers with the largest circulations in the states identified by the CO as traditional or expected labor supply states.

    B. Need for New Rulemaking

    The Department is proposing to modernize the recruitment that an employer must conduct under its regulations by replacing print newspaper advertisements with electronic advertisements posted on the internet. After due consideration, the Department believes that advertisements posted on the types of websites described below will reduce burden on employers and applicants, and be a more effective and efficient means of recruiting U.S. workers than the print newspaper advertisements that section 655.151 currently requires.

    The Department is basing this proposal on several considerations. First, available data indicates that farmworkers in the United States very rarely, if ever, learn about job opportunities or obtain employment through print newspaper advertisements. According to recent data available from the National Agricultural Workers Survey (NAWS), farmworkers did not identify print newspaper advertisements as a source for obtaining their current job.2 This data is consistent with the Department's experience conducting audit examinations of labor certifications approved under the current rule, as well as anecdotal evidence that the Department has received from stakeholders, who report that print newspaper advertisements are not an effective method of recruiting prospective U.S. workers for agricultural job opportunities.

    2See U.S. Department of Labor, Employment and Training Administration, Findings from the National Agricultural Workers Survey (NAWS) 2013-2014: A Demographic and Employment Profile of United States Farmworkers (Research Report No. 12, Dec. 2016), available at https://www.doleta.gov/naws (last visited June 9, 2018).

    Second, available data also suggests that U.S. workers are now much more likely to turn to the internet to search for work than classified advertisements in print newspapers. For instance, a recent survey conducted by the Pew Research Center indicated that 79 percent of Americans research jobs online, whereas only 32 percent use “ads in print publications,” and only four percent found ads in print publications to be the most useful tool in obtaining their recent employment.3 This trend is likely to continue as U.S. workers gain increased and more convenient access to the internet via smartphones and other digital devices,4 and print newspaper circulation continues to decline.5 Consequently, classified advertisements in print editions are becoming a less effective means of notifying U.S. workers about available job opportunities. 6 In recognition of this fact, many newspapers now offer online classified employment listings using multi-platform content providers, and popular online job search websites power the job boards of thousands of newspaper sites, providing a lower cost recruiting option for employers and job seekers alike.7

    3 Aaron Smith, Searching for Work in the Digital Era, Pew Research Center, Nov. 19, 2015, http://www.pewinternet.org/2015/11/19/searching-for-work-in-the-digital-era/.

    See also R. Jason Faberman & Marianna Kudlyak, What Does Online Job Search Tell Us About The Labor Market?, Economic Perspectives, Jan. 2016, https://www.chicagofed.org/~/media/publications/economic-perspectives/2016/ep2016-1-pdf.pdf (observing that the online job search has become the preferred method of search for nearly all types of job seekers and recent research suggests that it is the new norm for how job seekers find work); Richard Hernandez, Online Job Search: The New Normal, Monthly Labor Review (Bureau of Labor Statistics, U.S. Dept. of Labor, Wash. DC), Jan. 2017, https://www.bls.gov/opub/mlr/2017/beyond-bls/pdf/online-job-search-the-new-normal.pdf (reporting that the online job search is now the most popular method of job hunting).

    4 In 2018, 89 percent of American adults used the internet, and 77 percent of American adults owned a smartphone, up from just 35 percent in 2011. See Internet/Broadband Fact Sheet, Pew Research Center, Feb. 5, 2018, http://www.pewinternet.org/fact-sheet/internet-broadband/; Mobile Fact Sheet, Pew Research Center, Feb. 5, 2018, http://www.pewinternet.org/fact-sheet/mobile/.

    5 By 2014, fewer than 15 percent of Americans received a daily newspaper. See Elaine C. Kamarck and Ashley Gabriele, The News Today: 7 Trends in Old and New Media, The Brookings Institution, Nov. 10, 2015, https://www.brookings.edu/research/the-news-today-7-trends-in-old-and-new-media.

    6 According to the Pew Research Center, the total circulation of U.S. daily newspapers (print and digital combined) in 2017 was approximately 31 million, down 38 percent from more than 50 million in 2007. Pew Research Center, June 13, 2018, http://www.journalism.org/fact-sheet/newspapers/ Newspapers Fact Sheet. Conversely, job search websites today are attracting a far larger pool of potential applicants to find jobs. For example, the top 15 job search websites alone attract nearly 200 million unique visitors each month to search for employment.

    7See Christine Del Castillo, Does Anyone Advertise Jobs in Newspapers Anymore?, Workable, May 19, 2016, https://resources.workable.com/blog/newspaper-job-ads.

    Finally, electronic advertisements offer employers a less expensive, more convenient means of broadly disseminating information about their job opportunities to potential U.S. workers. Many job search websites offer standard advertising packages for free or at significantly lower marginal costs than the standard print newspaper advertisement, and advertisements can be posted on these sites for longer periods than a typical print newspaper advertisement remains in circulation, providing greater exposure of the employer's job opportunity to U.S. workers at no additional cost to the employer. Moreover, unlike print advertisements, which are subject to publishing deadlines that can delay exposure of the job opportunity to U.S. workers, an electronic advertisement can be posted within minutes or hours of submission to the website.

    In light of the foregoing, the Department is proposing to revise the recruitment that an employer must conduct under section 655.151 to replace print newspaper advertisements with the electronic advertisements posted on the internet described below. The Department is also proposing minor amendments to sections 655.167 and 655.225 to conform those sections to the proposed elimination of print newspaper advertisements.

    II. Discussion of Proposed Revisions to 20 CFR Part 655, Subpart B A. Revise Section 655.151 To Replace Newspaper Advertisements With Electronic Advertisements

    The Department is proposing to revise section 655.151(a) to replace the requirement that an employer place print newspaper advertisements with a requirement that the employer advertise its job opportunity on a website that is widely viewed and appropriate for use by workers who are likely to apply for the job opportunity in the area of intended employment. The Department proposes to remove the word “occupation” from the text in order to address a possible redundancy in the language. This proposed drafting change is stylistic only, and the Department intends to effect no substantive change by it.

    The proposed rule would not mandate that an employer post its advertisement on a specific website. Rather, proposed section 655.151(a) would allow an employer to place an advertisement on any of a variety of websites that are widely viewed and appropriate for use by workers who are likely to apply for the job opportunity in the area of intended employment, including websites operated by state or local agricultural associations, job search websites that advertise agricultural job opportunities, and other classified advertisement websites with sections focused on local jobs.

    The Department anticipates that advertisements posted on the types of websites described above will provide greater exposure of agricultural job opportunities to U.S. workers than the print newspaper advertisements that section 655.151 currently requires, because they can be more easily accessed by U.S. workers across a much larger geographic area and for a longer period. The Department included websites operated by state or local agricultural associations as an example of an appropriate website because some state farm bureaus, commissions, and cooperatives provide services that help agricultural employers recruit farm labor for seasonal work, and the Department believes these organizations can be a valuable asset in advertising and coordinating farm labor demands across employers and leveraging social media to connect employers with potential workers in the state or local area.

    The Department invites comments on whether it should establish qualifying criteria (e.g., minimum number of unique visitors per month) or more specifically define the types of websites that would fulfill the requirement in proposed section 655.151, and whether the regulation should explicitly exclude advertisements placed on websites of agricultural associations that serve as agents or sole or joint employers of H-2A workers, as defined in section 655.103. The Department also solicits comments on whether, instead of eliminating print newspaper advertisements, it should instead offer electronic advertisements as an alternative means of satisfying the existing advertising requirement in section 655.151. The Department is not proposing this option, given the data and trends discussed in Section I.B., which suggest that electronic advertisements will be more effective in disseminating information about available job opportunities to the American workforce. The Department invites comments on whether there are agricultural employers that lack the technology or internet access necessary to place the electronic advertisements described in the proposed rule, and if so, how the Department should determine whether such employers have met their obligation to engage in positive recruitment of U.S. workers. For instance, the Department could leave current recruitment requirements in place as an option for such employers. The Department solicits comments on whether there are alternative methods that would more broadly and effectively disseminate information about available job opportunities to U.S. agricultural workers.

    Proposed section 655.151(b) specifies that an employer's advertisement must be clearly visible on the website's homepage or be easily retrievable using the search tools on the website. Any advertisement that is not clearly visible on the website's homepage must be easily retrievable. The Department will consider an advertisement to be easily retrievable if it can be quickly accessed using a prominently displayed link on the website's homepage or the search tools and filters that are prominently displayed on the website's homepage. Each navigation choice or interaction that a job seeker has with the website should take him or her closer to the job opportunity being advertised, and applicants should be able to quickly locate job vacancies using a number of search criteria, such as occupation, job or position title, geographic location, pay range, and keywords in the job description. The employer must use commonly understood terms and keywords to describe its job opportunity when placing the advertisement, so that U.S. workers who are likely to apply for the position will retrieve the advertisement when using the website's search function.

    Proposed section 655.151(b) would also require an employer to post the electronic advertisement for a period of no less than 14 consecutive calendar days. Unlike the print newspaper advertisements that an employer must place under the current rule, which are typically published once, many websites offer standard advertising packages that allow an employer to place an advertisement for a weekly period or up to 30 calendar days for free or at a significantly lower marginal cost than a standard print newspaper advertisement. Accordingly, the Department anticipates that the consecutive fourteen-day posting period in proposed section 655.151(b) will attract more U.S. workers to job opportunities than the print newspaper advertisements that section 655.151 currently requires, because an employer's job opportunity will be easily accessible to U.S. workers for a longer period than a print newspaper advertisement, at no additional cost to the employer.

    Further, in order to ensure that the job opportunity described in the advertisement is readily available to U.S. workers, proposed section 655.151(b) would also require that the advertisement be publicly accessible at no cost to an applicant. To meet this requirement, the website on which the advertisement is placed cannot require U.S. workers to establish personal accounts or make payments of any kind to view the advertisement. The website must also be functionally compatible with the latest commercial web browser platforms and easily viewable on mobile smartphones and similar portable devices. Moreover, like the current rule, proposed section 655.42(b) would require that the advertisement comply with the minimum content requirements set forth in section 655.41.

    In order to ensure that an employer retains the evidence necessary to demonstrate compliance with proposed section 655.151(a) and (b), proposed section 655.151(c) would require an employer to print and retain screen shots of the web pages on which its advertisement appears and screen shots of the web pages establishing the path used to access the advertisement. Although the proposed rule does not require employers to submit this documentation to the CO with their recruitment reports, an employer must nevertheless retain this documentation in accordance with section 655.167 and provide it to the Department in the event of an audit or other review.

    The proposed section 655.151(d) includes a transition provision that would permit an employer submitting an Application for Temporary Employment Certification with a date of need prior to October 1, 2019 to elect between placing (a) an electronic advertisement in accordance with the requirements in the proposed rule, or (b) two newspaper advertisements in accordance with existing requirements. Because the Department is proposing to have this rule take effect immediately upon publication of the final rule, the Department is including this transition period to provide flexibility to employers that seek additional time to understand and comply with the proposed regulatory revisions, while simultaneously permitting employers that wish to place electronic advertisements immediately upon the effective date of the final rule the ability to do so. The transition provision is intended to better ensure, among other things, that employers who have purchased newspaper advertising space in advance do not lose the benefit of such purchase.

    However, the option to elect between the placement of newspaper and electronic advertisements would apply only to those applications with a start date of need prior to October 1, 2019. All employers submitting an Application for Temporary Employment Certification with a start date of need after the transition period ends (i.e., employers with dates of need beginning on or after October 1, 2019) would be required to place an advertisement in accordance with the proposed revisions to section 655.151(a)-(c).

    B. Retain Section 655.154's Requirement for Positive Recruitment

    As previously discussed, employers seeking H-2A temporary labor certification are statutorily required to engage in positive recruitment of U.S. workers in multistate regions of traditional or expected labor supply. Under section 655.154(c), when a job opportunity is located in an area served by traditional or expected labor supply states, the CO will designate no more than three states for each area of intended employment listed on the employer's application and describe the additional positive recruitment steps that the employer must conduct. In determining the specific recruitment steps that an employer must conduct, the CO must consider “the normal recruitment efforts of non H-2A agricultural employers of comparable or smaller size in the area of intended employment, and the kind and degree of recruitment efforts which the potential H-2A employer made to obtain foreign workers.” Section 655.154(b). The Department's standard practice has been to require an employer to place print advertisements in newspapers serving the traditional or expected labor supply states designated by the CO, see 75 FR at 6930; however, given the data and trends discussed in Section I.B., the Department does not intend to continue this practice. While the Department continues to believe that the CO must evaluate the appropriate locations and methods of recruiting U.S. workers in traditional or expected labor supply states on a case-by-case basis, where the CO determines that an electronic advertisement placed under proposed section 655.151 is a sufficient means of recruiting U.S. workers in the traditional or expected labor supply states identified for the employer's job opportunity, this advertisement will likely fulfill the positive recruitment required by section 655.154.

    C. DOL-Assisted Advertising

    The Department has taken initial steps toward creating an online platform to assist employers in complying with the requirements for electronic advertising under this proposed rule. Pending the outcome of this rulemaking, the Department intends to leverage the latest advertising technologies by establishing a mechanism to make advertising data available to popular job-search websites. Specifically, the Department is evaluating the development of a centralized platform to automate the electronic advertising of approved H-2A job opportunities. The Department anticipates that, once fully developed and implemented, this electronic advertising platform would maintain a standard set of data on each job opportunity that can be integrated with a wide array of job search website technologies. Through this platform, DOL would make available to job-search websites real-time access to the information that employers provide about their job opportunities subject to agreement to abide by terms of service. The companies that operate job-search websites would execute standard protocols to pull new H-2A jobs from the online platform in real time for advertising to U.S. workers. DOL is not proposing to mandate the use of the new electronic advertising platform but instead would make participation voluntary for H-2A employers.

    If developed as currently envisioned, the Department expects that employers would provide information about their job opportunities, as part of their H-2A applications for temporary labor certifications, and indicate their intention to use the electronic advertising platform. Employers that elect to use this platform would have information about their job opportunities transmitted by the Department to companies offering to provide advertising services, which in turn would advertise these jobs on the companies' job-search websites.

    The Department believes that facilitating employers' use of technology is in the best interest of employers and U.S. workers. Because information about the job opportunity would already be provided at the time of filing the H-2A application for a temporary labor certification and transmitted by the Department to companies operating these job search websites, the burden associated with placing separate electronic advertisements would be significantly reduced. The goal is to reduce burdens on the regulated community, while ensuring that the maximum number of U.S. workers learn about job opportunities. Having DOL maintain a publicly available list of the companies offering this advertising service, would give U.S. workers and other organizations that provide employment placement services a greater degree of certainty regarding where these temporary or seasonal jobs will be advertised and available for U.S. workers to apply. Employers that elect to use the new platform would satisfy the advertising requirement in § 655.151. Finally, offering this platform to employers would ensure more uniform compliance with advertising requirements.

    The Department is not soliciting comments on this electronic advertising platform at this time, but will inform the public about the advertising platform's completion through notices in the Federal Register.

    D. Other Minor Changes for Conformity

    The Department is proposing minor revisions to two other sections to conform with the proposed changes to section 655.151. First, the Department is proposing to make a technical amendment to section 655.167(c)(1)(ii), which specifies document retention requirements, to delete a reference to print advertisements in professional, trade, or ethnic publications, and to correct the text's cross-reference to another regulatory provision. Currently, the regulation directs employers to retain “advertising as specified in § 655.152.” But the reference to “655.152” is incorrect, as that provision provides the content requirements. The advertising requirement is specified in § 655.151. Accordingly, the text should properly read “advertising as specified in § 655.151.”

    Second, the Department is proposing to amend 655.225(d), which specifies the post-acceptance requirements for positions engaged in the herding or production of livestock on the range, to delete the reference to “a newspaper of general circulation serving the area of intended employment,” in order to conform with the proposed change to the advertisements required by section 655.151.

    III. Administrative Information A. Administrative Procedure Act

    The Department proposes to claim an exception under 5 U.S.C. 553(d)(1) from the 30-day delayed effective date requirement on the basis that this rule relieves the restriction against online advertising of jobs for which an employer seeks to hire H-2A workers. The final rule would relieve regulated parties of the requirement that they only place paper advertisements in newspapers of general circulation in the area of intended employment. During the transition period, which would apply to all employers who file an Application for Temporary Employment Certification with a date of need prior to October 1, 2019, the rule would allow employers to select between placing two paper newspaper advertisements or placing an online advertisement. After the transition period ends, the rule would altogether replace the newspaper advertising requirement with online advertising, which is anticipated to be more cost-effective and flexible for employers, as well as a more effective way of reaching U.S. workers who may be able, willing, and qualified for the employers' job opportunities. The online advertising would also provide flexibility for U.S. workers who are job seekers to identify and apply for the job opportunities for which employers seek to hire H-2A workers. The Department anticipates that allowing employers additional time to transition away from advertising by newspaper over an approximately six-month period after the rule's publication would provide needed flexibility, and thus provide employers with notice and time to conform their business practices to the new rule. Therefore, this rule would take effect immediately upon publication of the final rule.

    B. Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review), and 13771 (Reducing Regulation and Controlling Regulatory Costs)

    Under Executive Order (E.O.) 12866, the Office of Management and Budget (OMB)'s Office of Information and Regulatory Affairs determines whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and review by OMB. 58 FR 51735. Sec. 3(f) of E.O. 12866 defines a “significant regulatory action” as an action that is likely to result in a rule that (1) has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O. Id. OMB has determined that this proposed rule is a significant, but not economically significant, regulatory action under Sec. 3(f) of E.O. 12866. Consequently, OMB has reviewed this rule.

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

    E.O. 13771, titled Reducing Regulation and Controlling Regulatory Costs, was issued on January 30, 2017. This proposed rule is expected to be an E.O. 13771 deregulatory action because the cost savings to H-2A employers associated with the rule are larger than the costs. The estimated cost savings associated with this regulatory action are derived from the proposed revision to section 655.151(a), which would replace print newspaper advertisements with electronic advertisements posted on the internet.

    1. Subject-by-Subject Analysis

    The Department's analysis below considers the expected impacts of the following aspects of the proposed rule against the baseline (i.e., the 2010 Final Rule): (a) The replacement of newspaper advertisements with electronic advertisements, and (b) the time it takes the regulated community to read and review the rule.

    a. Electronic Advertisements

    The Department is proposing to modernize the positive recruitment that an employer must conduct under its regulations by eliminating the use of print newspaper advertisements and replacing it with electronic advertisements posted on the internet, which will make the job opportunity more broadly available to U.S. workers. Specifically, the Department is proposing to revise section 655.151(a) to replace print newspaper advertisements requirements with a requirement for an electronic advertisement posted on a website that is widely viewed and appropriate for use by workers who are likely to apply for the job opportunity in the area of intended employment. As discussed in section I.B. of this NPRM, the basis for this proposal is rooted in the Department's determination that electronic advertisements will be a more effective and efficient means of recruiting U.S. workers than the print newspaper advertisements that its regulations currently require.

    i. Cost Savings

    To estimate the cost savings to employers that would result from the proposed rule, the Department first calculated the average number of H-2A temporary labor certifications approved in Fiscal Year (FY) based on data from FY 2015-2017, which yielded an annual average of 9,796.8 Next, the Department identified the top five states in which prospective H-2A employers received temporary labor certifications, and it researched the cost of placing a newspaper advertisement in the most populous city in each of these states (for several newspapers, including large and local papers) that would satisfy the content requirements set forth in section 655.152.9 The Department then averaged the data it obtained to estimate the average cost of complying with section 655.151. Based on these data, the Department determined that the average cost of placing the newspaper advertisements required by section 655.151 is $672 (or $336 for each advertisement).

    8 The average is based on 8,721 H-2A temporary labor certifications in FY 2015; 9,751 temporary labor certifications in FY 2016; and 10,917 temporary labor certifications in FY 2017. See https://www.foreignlaborcert.doleta.gov/performancedata.cfm.

    9 The top 5 states in which employers seek to place H-2A workers are California, Florida, Georgia, North Carolina, and Washington.

    As mentioned above, the Department believes, based on preliminary research, employers can choose to advertise using online job search websites free of charge, so removing the requirement to advertise in a print newspaper would result in a cost savings equal to the cost of complying with the current regulation.10 Although section 655.151 currently requires employers to advertise on two consecutive days, one of which must be a Sunday, the Department did not identify a significant difference in cost between advertisements placed on Sundays and weekdays, so the Department did not distinguish between these two costs when calculating total advertising cost savings. To estimate the annual cost savings of newspaper advertising costs that employers will avoid under the proposed rule, the Department multiplied the average annual number of approved H-2A temporary labor certifications (9,796) by the average newspaper advertising cost of $672. This yielded an average annual cost savings of $6.58 million.

    10 The Department has data on three commonly used job-search websites that allow employers to advertise free of charge.

    b. Time To Understand Rule

    During the first year that this rule would be in effect, employers seeking H-2A workers would need time to learn about the new requirements. The Department assumes that many employers participating in the H-2A program would learn about the requirements of the new rule from an industry newsletter or bulletin. The Department assumes that the amount of time required to understand the rule change to be 10 minutes. The proposed rule addresses only the job advertising requirements for employers seeking H-2A workers.

    i. Costs

    This requirement represents a cost to employers participating in the H-2A program in the first year of the rule. The Department estimates this cost by multiplying the time required to read and review the new rule (10 minutes) by the median hourly wage of a human resources manager at an agricultural business ($31.84),11 multiplied by a factor of two (2) to account for fringe benefits and overhead, which yields a cost of $10.61 per employer. The Department estimates the total cost of reading and reviewing the rule by multiplying $10.61 by the average number of employers participating in the H-2A program over FY 2015-2017 (6,676). This calculation results in a cost of $70,855 in the first year.

    11 Wage derived from Bureau of Labor Statistics median hourly wage for HR Specialists (occupation code 13-1071), May 2017.

    DOL acknowledges, however, that there are some potentially limited situations—particularly in rural communities—where the upfront costs associated with accessing the internet and learning how to post such advertisements may result in notable opportunity costs for employers. DOL believes that very few employers do not have access to the internet. For those employers that do not currently have internet access, DOL estimates that it will take two hours to access the internet (which may include transportation to the nearest library), research the websites and pick one to use, establish an account on that website, learn how to post a job on the website, and establish an email account. In addition, employers would need to make additional trips to check for responses from U.S. workers. For employers with access to the internet who are not familiar with posting such advertisements online, there will be some up-front costs associated with the time it takes to research job advertisement sites, establish an account, and learn how to post a job on the website.

    Because of the uncertainties, we are unable to provide an estimate of the number of employers who do not have access to the internet, or those who have access to the internet but are unfamiliar with posting jobs online, and would incur these additional costs to post advertisements online. DOL seeks comment from the public on the likely magnitude and incidence of these costs. However, online advertisements for H-2A employment would increase the visibility of job openings to potential U.S. workers and increase the number of workers that would be able to access these jobs. This benefit would significantly outweigh any cost potentially incurred by the negligible number of employers that might be affected by the transition from print newspaper advertisements to online job postings. The Department therefore believes that the net societal benefit of implementing this rule would be maximized if all H-2A employers are required to utilize online advertisements. As such this rule constitutes as a deregulatory action.

    2. Summary of Impacts

    The Department estimates the total first-year costs of the proposed rule to be $70,855. This cost results from the time required to read and review the proposed rule. This cost is incurred by employers seeking H-2A workers subject to proposed 655.151(a). The Department estimates first-year cost savings of $6.58 million. This cost savings results from replacing the requirement that employers place print newspaper advertisements with a requirement that employers place internet advertisements. Net first-year cost savings amount to $6.51 million. This estimated cost savings excludes any increase in costs to employers without current access to the internet and any up-front costs incurred by those unfamiliar with posting job advertisements online who need to establish accounts, and invest time in learning how to post online.

    Generally, annual cost savings are expected to be $6.58 million in all years following the first year due to the lack of monetized costs regarding the time required to read and review the proposed rule. The 10-year discounted net cost savings of the proposed rule range from $46.15 million to $56.06 million (with 7- and 3-percent discount rates, respectively). The annualized net cost savings of the proposed rule is $6.57 million (with 3- and 7-percent discount rates). When the Department uses a perpetual time horizon to allow for cost comparisons under E.O. 13771, the annualized cost savings of this proposed rule are $6.57 million at a discount rate of 7 percent (excluding any up-front familiarization costs or increased costs to employers without access to the internet).

    C. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121 (March 29, 1996), requires federal agencies engaged in rulemaking to consider the impact of their proposals on small entities, consider alternatives to minimize that impact, and solicit public comment on their analyses. The RFA requires the assessment of the impact of a regulation on a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions. Agencies must perform a review to determine whether a proposed or final rule would have a significant economic impact on a substantial number of small entities. 5 U.S.C. 603 and 604.

    This proposed rule may impact small businesses that request H-2A temporary labor certifications. The Department assumed that the average number of H-2A temporary labor certifications requested by any small business per year would be one. The Department estimates that small businesses would incur a one-time cost of $10.61 to familiarize themselves with the rule and would incur annual cost savings of $672 associated with advertising online rather than in print newspapers. Over a 10-year period, the net annualized cost savings for a small business would be $672 at a 7-percent discount rate.

    The Department reviewed the impacts of the proposed rule for two North American Industry Classification System (NAICS) Codes that frequently request H-2A temporary labor certifications—NAICS 115115: Farm Labor Contractors & Crew Leaders, and NAICS 111998: All Other Miscellaneous Crop Farming. The Small Business Administration (SBA) estimates that revenue for a small business with NAICS Code 115115 is $15 million and for NAICS Code 111998 is $750,000.12 The impact of the proposed rule would be less than 1 percent of annual revenue for the small businesses in these industries with the employment size fewer than 5 ($710,717 for NAICS 115115 and $430,835 for NAICS 11).13 Based on this determination, the Department certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities.

    12 U.S. Small Business Administration. (2017). Table of Small Business Size Standards Matched to North American Industry Classification System Codes. Retrieved from: https://www.naics.com/wp-content/uploads/2017/10/SBA_Size_Standards_Table.pdf.

    13 U.S. Census, 2012 SUSB Annual Data Tables by Establishment Industry, https://www.census.gov/data/tables/2012/econ/susb/2012-susb-annual.html.

    D. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., provides that a Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6. DOL has submitted the Information Collection Request (ICR) contained in this rule to OMB and obtained approval using emergency clearance procedures outlined at 5 CFR 1320.13.

    More specifically, this rule proposes to replace print newspaper advertisements with an advertisement posted on a website that is widely viewed and appropriate for use by U.S. workers who are likely to apply for the job opportunity in the area of intended employment. The proposed rule would require that this advertisement be clearly visible on the website's homepage or be easily retrievable through the website, posted for a period of no less than 14 consecutive calendar days, publicly accessible to U.S. workers at no cost using the latest browser technologies and mobile devices, and satisfy the advertising content requirements set forth in § 655.152. Under the proposed rule and in accordance with 20 CFR 655.167(c)(1)(ii), an employer would be required to retain documentation demonstrating that it posted an electronic advertisement in compliance with the requirements in the proposed rule, including screen shots of the web page on which the advertisement appears and screen shots of the web pages establishing the path that U.S. workers must follow to access the advertisement. The employer must be prepared to produce all information and records contained in this information collection for the Department or other federal agencies in the event of an audit examination, investigation, or other enforcement proceedings in the H-2A program. The Department is using technology to reduce burden by replacing newspaper advertisements with electronic advertisements. The information collection requirements associated with this rule are summarized as follows:

    Agency: DOL-ETA.

    Type of Information Collection: New.

    Title of the Collection: Advertising Requirements for Employers Seeking to Employ H-2A Nonimmigrant Workers.

    Agency Form Number: None.

    Affected Public: Private Sector—businesses or other for-profits.

    Total Estimated Number of Respondents: 9,796.

    Average Responses per Year per Respondent: 2.

    Total Estimated Number of Responses: 19,592.

    Average Time per Response: 7 minutes per application.

    Total Estimated Annual Time Burden: 1,142 hours.

    Total Estimated Other Costs Burden: $0.

    E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act 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 $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector.

    This NPRM, if finalized, does not exceed the $100 million expenditure in any 1 year when adjusted for inflation, and this rulemaking does not contain such a mandate. The requirements of Title II of the Act, therefore, do not apply, and the Department has not prepared a statement under the Act.

    F. Small Business Regulatory Enforcement Fairness Act of 1996

    This NPRM, if finalized, is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996, Public Law 104-121, 804, 110 Stat. 847, 872 (1996), 5 U.S.C. 804(2). This proposed rule has not been found to result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic or export markets.

    G. Executive Order 13132: Federalism

    This NPRM, if finalized, does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, Executive Order 13132, Federalism, requires no further agency action or analysis.

    H. Executive Order 13175, Indian Tribal Governments

    This NPRM, if finalized, does not have “tribal implications” because it does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Accordingly, Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, requires no further agency action or analysis.

    I. The Treasury and General Government Appropriations Act of 1999: Assessment of Federal Regulations and Policies on Families

    This NPRM, if finalized, will have no effect on family well-being or stability, marital commitment, parental rights or authority, or income or poverty of families and children. Accordingly, section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires no further agency action, analysis, or assessment.

    J. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    This NPRM, if finalized, will have no adverse impact on children. Accordingly, Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks, as amended by Executive Orders 13229 and 13296, requires no further agency action or analysis.

    K. Environmental Impact Assessment

    This action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This action is therefore categorically excluded from further review under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4375.

    L. Executive Order 13211, Energy Supply

    This NPRM, if finalized, has not been identified to have impacts on energy supply. Accordingly, Executive Order 13211 requires no further Agency action or analysis.

    M. Executive Order 12630, Constitutionally Protected Property Rights

    This NPRM, if finalized, will not implement a policy with takings implications. Accordingly, Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, requires no further agency action or analysis.

    N. Executive Order 12988, Civil Justice Reform Analysis

    This NPRM, if finalized, was drafted and reviewed in accordance with Executive Order 12988, Civil Justice Reform. This proposed rule was written to provide a clear legal standard for affected conduct and was carefully reviewed to eliminate drafting errors and ambiguities, so as to minimize litigation and undue burden on the Federal court system. The Department has determined that this proposed rule meets the applicable standards provided in section 3 of Executive Order 12988.

    List of Subjects in 20 CFR Part 655

    Administrative practice and procedure, Employment, Employment and training, Enforcement, Foreign workers, Forest and forest products, Fraud, Health professions, Immigration, Labor, Longshore and harbor work, Migrant workers, Nonimmigrant workers, Passports and visas, Penalties, Reporting and recordkeeping requirements, Unemployment, Wages, Working conditions.

    For the reasons stated in this document, 20 CFR part 655 is proposed to be amended as follows: PART 655—TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES 1. The authority citation for part 655 is revised to read as follows: Authority:

    Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n) and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 2135, as amended; Pub. L. 109-423, 120 Stat. 2900; sec. 205 of division M, Pub. L. 115-141, 132 Stat. 348; 8 CFR 2.1, 214.2(h)(4)(i), and 214.2(h)(6)(iii).

    Subpart A issued under 8 CFR 214.2(h).

    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 CFR 214.2(h).

    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701.

    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701.

    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

    2. Revise § 655.151 to read as follows:
    § 655.151 Advertising in the area of intended employment.

    (a) Where to conduct recruitment. The employer must place an advertisement for the job opportunity on at least one website that is widely viewed and appropriate for use by U.S. workers who are likely to apply for the job opportunity in the area of intended employment.

    (b) Nature of the recruitment. The advertisement must be clearly visible on the website's homepage or be easily retrievable through the website, posted for a period of no less than 14 consecutive calendar days, publicly accessible to U.S. workers at no cost using the latest browser technologies and mobile devices, and satisfy the requirements set forth in § 655.152.

    (c) Proof of recruitment. An employer must retain documentation in accordance with § 655.167(c)(1)(ii) that demonstrates compliance with paragraphs (a) and (b) of this section. Such documentation must include screen shots of the web page on which the advertisement appears and screen shots of the web pages establishing the path that U.S. workers must follow to access the advertisement.

    (d) Transition period for applications with dates of need prior to October 1, 2019. (1) All employers submitting an Application for Temporary Employment Certification with a date of need on or after October 1, 2019 must place and retain documentation of an electronic advertisement in accordance with paragraphs (a) through (c) of this section.

    (2) An employer submitting an Application for Temporary Employment Certification with a date of need prior to October 1, 2019 may elect to place two newspaper advertisements in compliance with the requirements in paragraphs (d)(2)(i) and (ii) of this section, in lieu of placing and retaining documentation of the electronic advertisement required by paragraphs (a) through (c) of this section.

    (i) The employer must place an advertisement (in a language other than English, where the CO determines appropriate) on 2 separate days, which may be consecutive, one of which must be a Sunday (except as provided in paragraph (d)(2)(ii) of this section), in a newspaper of general circulation serving the area of intended employment and is appropriate to the occupation and the workers likely to apply for the job opportunity. Newspaper advertisements must satisfy the requirements set forth in § 655.152.

    (ii) If the job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the CO may direct the employer, in place of a Sunday edition, to advertise in the regularly published daily edition with the widest circulation in the area of intended employment.

    3. Amend § 655.167 by revising paragraph (c)(1)(ii) to read as follows:
    § 655.167 Document retention requirements.

    (c) * * *

    (1) * * *

    (ii) Advertising as specified in § 655.151;

    4. Amend § 655.225 by revising paragraph (d) to read as follows:
    § 655.225 Post-acceptance requirements for herding and range livestock.

    (d) The employer will not be required to place an advertisement as required in § 655.151.

    Molly E. Conway, Acting Assistant Secretary for Employment and Training, Labor.
    [FR Doc. 2018-24497 Filed 11-8-18; 8:45 am] BILLING CODE 4510-FP-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 49 and 52 [EPA-R09-OAR-2018-0590; FRL-9986-21-Region 9] Revisions to the Source-Specific Federal Implementation Plan for Navajo Generating Station, Navajo Nation AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing limited revisions to the source-specific federal implementation plan (FIP) that regulates emissions from the Navajo Generating Station (NGS), a coal-fired power plant located on the reservation lands of the Navajo Nation near Page, Arizona. We are proposing to lower the emission limitation for particulate matter (PM) to conform to the most stringent emission limitation currently applicable to NGS under another EPA regulation, and to replace the opacity limitation and annual PM source testing requirement with a requirement to demonstrate compliance with the lower PM emission limitation using a continuous emission monitoring system for particulate matter.

    DATES:

    Any comments on this proposal must arrive by December 10, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID number EPA-R09-OAR-2018-0590, at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the EPA's full public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Anita Lee, EPA Region IX, (415) 972-3958, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we,” “us” and “our” refer to the EPA.

    Table of Contents I. Background A. Action B. Facility C. Attainment Status D. The EPA's Authority To Promulgate a FIP in Indian Country E. Historical Overview of NGS FIP Actions II. Basis for Proposed Action III. Summary of FIP Provisions A. Proposed FIP Revisions B. Justification for Proposed FIP Revisions IV. Solicitation of Comments V. Environmental Justice Considerations VI. Statutory and Executive Order Reviews I. Background A. Action

    In this action, the EPA is proposing limited revisions to the FIP for NGS that we promulgated on October 3, 1991 (“1991 FIP”), March 5, 2010 (“2010 FIP”), and August 8, 2014 (“2014 FIP”).1 The provisions of the 1991 action are codified in the Code of Federal Regulations (CFR) at 40 CFR 52.145(d), and the 2010 and 2014 regulations are codified at 40 CFR 49.5513. We refer collectively to the provisions from the 1991, 2010, and 2014 actions as the “FIP” or the “NGS FIP.” The NGS FIP includes federally enforceable emission limitations for PM, opacity, sulfur dioxide (SO2), and oxides of nitrogen (NOX).

    1See 56 FR 50172 (October 3, 1991), 75 FR 10174 (March 5, 2010), and 79 FR 46552 (August 8, 2014).

    Generally, the EPA is proposing to move provisions from the 1991 FIP to a different section of the CFR and to update certain provisions in the 1991 FIP to be consistent with recent national rulemakings. Specifically, we are proposing to move the 1991 FIP provisions from 40 CFR 52.145(d) to 40 CFR 49.5513. If finalized, the effect of our action will be to move requirements for NGS from subpart D of part 52, which contains the state implementation plan (SIP) provisions for Arizona, to subpart L of part 49, which contains source-specific FIP requirements for NGS, to consolidate all of the applicable requirements for NGS in one section of the CFR. We are proposing to update the definition of “boiler operating day” in the 1991 FIP to be consistent with the definition in the 2014 FIP.2

    2See 40 CFR 52.145(d)(1) and 40 CFR 49.5513(j)(2)(iii).

    In addition, we are proposing to revise the PM compliance demonstration from annual source testing to the use of PM continuous emissions monitoring systems (PM CEMS), which were installed and calibrated on each of the three units at the facility in 2016. We are also proposing to lower the PM emission limitation in the 2010 FIP from 0.060 pounds per million British thermal units (lb/MMBtu) to 0.030 lb/MMBtu. This lower emission limitation already applies to NGS pursuant to the EPA's Mercury and Air Toxics Standard (MATS) Rule.3 Because the operator of NGS will be using PM CEMS to demonstrate compliance with the 0.030 lb/MMBtu emission limitation for PM, the EPA is also proposing to remove the opacity emission limitation and associated continuous opacity monitoring system (COMS) requirements from the NGS FIP. The opacity limitation and COMS have generally functioned as surrogates for ensuring compliance with PM emission limitations. This proposed revision is consistent with the provisions related to PM CEMS and opacity in the New Source Performance Standard for Electric Utility Steam Generating Units (“NSPS for EGUs”) and the Acid Rain Program requirements at 40 CFR 75.14(e), which generally provide that any owner or operator that elects to install, calibrate, maintain, and operate a PM CEMS for demonstrating compliance with a sufficiently stringent PM emission limitation (i.e., 0.030 lb/MMBtu or lower) need not meet the opacity limit and monitoring requirements.4

    3See 77 FR 9303 (February 16, 2012) and 81 FR 20172 (April 6, 2016) (Final Technical Corrections).

    4See NSPS for EGUs at 40 CFR 60.42Da and the Acid Rain Program requirements at 40 CFR part 75. Subpart Da to part 60 is the “Standard of Performance for Electric Utility Steam Generating Units” and applies to units that are capable of combusting more than 73 MW heat input of fossil fuel and for which construction, modification, or reconstruction commenced after September 18, 1978. The units at NGS were constructed prior to 1978 and are not subject to part 60 subpart Da. The NGS units are subject to the Acid Rain Program requirements of CAA Title IV, but are eligible for an exemption from the requirement for COMS in CAA section 412(a), pursuant to 40 CFR 75.14.

    Finally, we are proposing to clarify requirements that have already been satisfied (e.g., a one-time requirement that has been met to submit a description of dust suppression methods to the Regional Administrator) and update the addresses to which the owner or operator must submit reports.

    B. Facility

    NGS is a coal-fired power plant located on the reservation lands of the Navajo Nation, just east of Page, Arizona, and approximately 135 miles north of Flagstaff. NGS is co-owned by several entities and operated by Salt River Project (SRP).5 The facility currently operates three units, each with a capacity of 750 megawatts (MW) net generation, providing a total capacity of 2250 MW. Operations at the facility produce air pollutant emissions, including emissions of SO2, NOX, and PM. Existing pollution control equipment at NGS includes wet flue gas desulfurization units for SO2 and PM removal, electrostatic precipitators for PM removal, and low-NOX burners with separated over-fire air to reduce NOX formation during the combustion process. In the future, the owner or operator of NGS will be taking steps to reduce emissions of NOX further, pursuant to the requirements of the 2014 FIP.

    5 Currently, the participants in NGS are the United States Bureau of Reclamation, SRP, Arizona Public Service Company, Tucson Electric Company, and NV Energy. SRP, which serves as the facility operator, recently increased its ownership share after it purchased the shares previously owned by the Los Angeles Department of Water and Power.

    C. Attainment Status

    The area around NGS is designated attainment, unclassifiable/attainment or unclassifiable for all criteria pollutants under the Act.6

    6See 40 CFR 81.303.

    D. The EPA's Authority To Promulgate a FIP in Indian Country

    When the CAA was amended in 1990, Congress included a new provision, section 301(d), granting the EPA authority to treat tribes in the same manner as states where appropriate.7 In 1998, the EPA promulgated regulations known as the Tribal Authority Rule (TAR).8 The EPA's promulgation of the TAR clarified, among other things, that state air quality regulations generally do not, under the CAA, apply to facilities located anywhere within the exterior boundaries of Indian reservations.9 Prior to the addition of section 301(d) and the promulgation of the TAR, some states had mistakenly included emission limitations in their SIPs that they may have believed could apply under the CAA to private facilities operating on adjacent Indian reservations.

    7See 40 U.S.C. 7601(d).

    8See 40 CFR parts 9, 35, 49, 50, and 81. See also 63 FR 7254 (February 12, 1998).

    9See 63 FR 7254 at 7258 (noting that unless a state has explicitly demonstrated its authority and has been expressly approved by the EPA to implement CAA programs in Indian country, the EPA is the appropriate entity to implement CAA programs prior to tribal primacy), Arizona Public Service Company v. EPA., 211 F.3d 1280 (D.C. Cir. 2000), cert. denied sub nom, Michigan v. EPA., 532 U.S. 970 (2001) (upholding the TAR); see also Alaska v. Native Village of Venetie Tribal Government, 533 U.S. 520, 526 n.1 (1998) (primary jurisdiction over Indian country generally lies with federal government and tribes, not with states).

    In the preambles to the proposed and final 1998 TAR, the EPA generally discussed the legal basis in the CAA that authorizes the EPA to regulate sources of air pollution in Indian country.10 The EPA concluded that the CAA authorizes the EPA to protect air quality throughout Indian country.11 The TAR, therefore, provides that the EPA “[s]hall promulgate without unreasonable delay such federal implementation plan provisions as are necessary or appropriate to protect air quality, consistent with the provisions of sections [301](a) and 301(d)(4), if a tribe does not submit a tribal implementation plan meeting the completeness criteria of 40 CFR part 51, Appendix V, or does not receive EPA approval of a submitted tribal implementation plan.” 12

    10See 59 FR 43956 (August 25, 1994); 63 FR 7253 (February 12, 1998).

    11See 63 FR 7253 at 7262 (February 12, 1998); 59 FR 43956 at 43960-43961 (August 25, 1994) (citing, among other things, to CAA sections 101(b)(1), 301(a), and 301(d)).

    12See 63 FR at 7273 (codified at 40 CFR 49.11(a)). In the preamble to the final TAR, the EPA explained that it was inappropriate to treat tribes in the same manner as states with respect to section 110(c) of the Act, which directs the EPA to promulgate a FIP within 2 years after the EPA finds a state has failed to submit a complete state plan or within 2 years after the EPA disapproval of a state plan. Although the EPA is not required to promulgate a FIP within the 2-year period for tribes, the EPA promulgated 40 CFR 49.11(a) to clarify that the EPA will continue to be subject to the basic requirement to issue any necessary or appropriate FIP provisions for affected tribal areas within some reasonable time. See 63 FR at 7264-65.

    E. Historical Overview of NGS FIP Actions

    On December 2, 1980, EPA issued regulations addressing visibility impairment that is traceable or “reasonably attributable” to a single source or small group of sources.13 These regulations required a number of states to submit SIPs no later than September 2, 1981. Most states, including Arizona, failed to submit SIPs as called for by the regulations. Accordingly, in 1987, the EPA issued visibility FIPs consisting of general plan requirements and long-term strategies for 29 states including Arizona.14

    13 45 FR 80084 (December 2, 1980), codified at 40 CFR 51.300-51.307.

    14See 52 FR 45132 (November 24, 1987).

    In 1989, based on a report submitted by the National Park Service, the EPA proposed to find that a portion of the visibility impairment in Grand Canyon National Park was reasonably attributable to NGS.15 Under the 1991 FIP, NGS was required to phase-in compliance with the SO2 emission limit, by installing scrubbers in 1997, 1998, and 1999.16 In establishing the SO2 emission limit for NGS in the final 1991 FIP, the EPA determined that the FIP would provide for greater reasonable progress toward the national visibility goal than implementation of Best Available Retrofit Technology (BART).17

    15 56 FR 50172 (October 3, 1991), codified at 40 CFR 52.145.

    16 40 CFR 52.145(d)(7).

    17 56 FR 50172 (October 3, 1991).

    On September 8, 1999, the EPA proposed a source-specific FIP for NGS.18 The 1999 proposed FIP stated: “Although the facility has been historically regulated by Arizona since its construction, the state lacks jurisdiction over the facility or its owners or operations for CAA compliance or enforcement purposes.” The EPA intended for the proposed action in 1999 to “federalize” the emission limitations that Arizona had erroneously included in its SIP.19 The EPA received comments on the proposed FIP but did not finalize the proposal.

    18See 64 FR 48725 (September 8, 1999).

    19 64 FR 48725 at 48727.

    In 2006, the EPA published a new proposed rule to promulgate federally enforceable numerical emission limitations for PM and SO2 and took action to finalize it in 2010.20 The 2010 FIP also established an opacity limit and a requirement for specific control measures to limit dust emissions. In the 2010 FIP, the EPA determined that the emission limitations for PM and SO2 were more stringent than, or at least as stringent as, the emission limitations that had historically applied at NGS pursuant to an operating permit issued by Arizona. Therefore, the EPA concluded that air quality in this area would be positively impacted by the 2010 FIP.21

    20 75 FR 10179 (March 5, 2010) codified at 40 CFR 49.24(a) through (i) and redesignated to 40 CFR 49.5513(a) through (i). See 76 FR 23879 (April 29, 2011).

    21 75 FR 10174 (March 5, 2010).

    On August 8, 2014, the EPA promulgated a final rule that established limits for NOX emissions from NGS under BART provisions of the Regional Haze Rule.22 We finalized an alternative to BART based on agreed-upon recommendations developed by a group of diverse stakeholders. The 2014 FIP limits emissions of NOX from NGS by establishing a long-term facility-wide cap on total NOX emissions from 2009 to 2044 and requires the implementation of one of several alternative operating scenarios to ensure that the 2009 to 2044 cap is met.

    22 79 FR 46514 (August 8, 2014).

    II. Basis for Proposed Action

    In this proposed FIP revision, the EPA is exercising its discretionary authority under sections 301(a) and 301(d)(4) of the CAA and 40 CFR 49.11(a). The EPA is proposing that it is necessary or appropriate to revise the FIP for NGS to be more consistent with the MATS Rule and the NSPS for EGUs. In particular, we are proposing to require the use of PM CEMS to demonstrate compliance with a lower PM emission limitation and remove the opacity limitation and COMS monitoring requirement, which has served as a surrogate for a compliance demonstration for the PM emission limitation. As explained in the preamble to the 2010 FIP establishing the opacity limitation and COMS requirement, water droplets, which are present in the NGS stacks because of the SO2 scrubbers, can cause inaccurate excess emission readings from the COMS.23 Therefore, the PM CEMS would provide a better continuous demonstration of compliance with the PM emission limitation than an opacity limit and COMS.

    23See 75 FR 10175. We also explained that, “NGS will continue to have a requirement to operate COMs on each stack since the COMs do operate properly during start-up and at other times when the SO2 scrubbers are bypassed for maintenance purposes . . . Therefore, in the final rule excess opacity due to uncombined water droplets in the stack does not constitute an exceedance, but it will be reported on the quarterly excess emissions reports.” 75 FR 10177. See also, 40 CFR 49.5113(f)(4).

    For the reasons set forth above, we are proposing to find that limited revisions to the FIP for NGS are necessary or appropriate to further protect air quality on the Navajo Nation.

    III. Summary of FIP Provisions A. Proposed FIP Revisions

    The EPA is proposing the following limited revisions to the FIP for NGS at 40 CFR 52.145(d) and 40 CFR 49.5513. We have included two documents in the docket for this proposed rulemaking that show the original text of 40 CFR 52.145(d) and 40 CFR 49.5513 and the EPA's proposed revisions to those provisions.24

    24See documents titled “2018 NGS part 49 FIP RLSO.docx” and “2018 part 52 FIP RLSO.docx” in the docket for this rulemaking.

    1. Revisions to 40 CFR 52.145(d)

    The EPA is proposing to move the 1991 FIP promulgated at 40 CFR 52.145(d) to 40 CFR 49.5513(k) to consolidate the NGS FIP requirements in a single section of the CFR. We are also proposing to revise 40 CFR 52.145(d) by changing internal citations referring to paragraph (d) to refer instead to paragraph (k). For clarity, in this action we continue to refer to the 1991 FIP as designated in 40 CFR 52.145(d).

    In addition, we are proposing to revise the definition of boiler operating day in paragraph 52.145(d)(1) to be consistent with its definition in the 2014 FIP.

    2. Revisions to 40 CFR 49.5513(b)

    Under paragraph (b) of 40 CFR 49.5513, we are proposing to clarify that the applicable compliance date for this section is April 5, 2010, which was the original effective date for this section, unless otherwise specified within specific provisions in 40 CFR 49.5513.

    3. Revisions to 40 CFR 49.5513(d)

    In 40 CFR 49.5513(d)(2), we are proposing to revise the emission limitation for PM from 0.060 lb/MMBtu to 0.030 lb/MMBtu, add a compliance date for this revised limit, and remove specifications related to PM testing. In 40 CFR 49.5513(d)(3), we are proposing to remove the compliance date for submitting to the EPA a dust suppression plan and to clarify the status of this plan, which the owner or operator submitted on June 4, 2010 and revised on February 2, 2015.25 The final revision we are proposing to 40 CFR 49.5513(d) is to remove the opacity limit and exclusions for water vapor in paragraph (4).

    25See Part 71 Federal Operating Permit Draft Statement Of Basis Navajo Generating Station Permit No. NN-OP-15-06 (September 2015), p. 15.

    4. Revisions to 40 CFR 49.5513(e)

    In 40 CFR 49.5513(e)(1), we are proposing to delete the requirement to operate COMS. In 40 CFR 49.5513(e)(2), we are proposing to replace the existing specifications related to annual PM testing with a requirement to demonstrate compliance with the PM emission limit in 40 CFR 49.5513(d)(2) using PM CEMS in accordance with 40 CFR part 63 subpart UUUUU and add a compliance date for this requirement. Under 40 CFR 49.5513(e)(4), we are proposing to remove the provision related to COMS. Under 40 CFR 49.5513(e)(8), we are proposing to correct an outdated reference.

    5. Revisions to 40 CFR 49.5513(f)

    The EPA is proposing revisions to the reporting and recordkeeping requirements to provide additional clarity that all reports and notifications required in 40 CFR 49.5513(f), (f)(2), and (f)(4), should be reported to the Navajo Nation Environmental Protection Agency (NNEPA) and the EPA. We are also revising 40 CFR 49.5513(f) to update addresses for reporting to the EPA. In addition, in 40 CFR 49.5513(f)(4), consistent with the proposed removal of the opacity emission limitation and COMS requirement in 40 CFR 49.5513(d) and (e), we are proposing to replace a requirement to submit excess opacity reports as recorded by COMS with a requirement to submit excess emission reports for PM as recorded by CEMS, and to remove additional provisions related to the COMS.

    6. Revisions to 40 CFR 49.5513(j)

    Under 40 CFR 49.5513(j)(8), we are proposing to remove addresses for the NNEPA and the EPA that are already provided in 40 CFR 49.5513(f) and to require that all reports and notifications under 40 CFR 49.5513(j) be submitted to the NNEPA and the EPA in accordance with 40 CFR 49.5513(f).

    B. Justification for Proposed FIP Revisions 1. Revisions to 40 CFR 52.145(d)

    We are proposing to move the 1991 FIP from 40 CFR 52.145(d) to 40 CFR 49.5513(k). The 1991 FIP was originally codified in 40 CFR part 52 subpart D, which contains the SIP provisions for the state of Arizona. The provisions at 52.145 relate to visibility protection and paragraph (d) pertains to the control of SO2 emissions from NGS based on the effects of those emissions on visibility at Grand Canyon National Park. Because the EPA has subsequently promulgated FIP requirements for NGS in 40 CFR part 49 subpart L, for regulatory clarity, we are proposing to move the SO2 requirements from the 1991 FIP to the same part of the CFR as the implementation plans in Indian country, including the FIP requirements for NGS promulgated in 2010 and 2014. This move will not relax any existing FIP requirements for NGS and will have no effect on air quality in the area surrounding NGS.

    Throughout 40 CFR 52.145(d), the provisions include internal citations referring to specific subparagraphs in paragraph (d). Consistent with our proposal to move the provisions from the 1991 FIP to 40 CFR 49.5513(k), we are also proposing to revise the internal citations that currently refer to paragraph (d) (i.e., 40 CFR 52.145(d)) to refer instead to paragraph (k) (i.e., 40 CFR 49.5513(k)). This proposed revision will not relax any existing FIP requirements for NGS and will have no effect on air quality in the area surrounding NGS.

    We are also proposing to revise a definition of boiler operating day in 40 CFR 52.145(d)(1). The term is currently defined as a 24-hour calendar day during which coal is combusted in that unit for the entire 24-hours. We are proposing to revise the definition to mean a 24-hour period between 12 midnight and the following midnight during which any fuel is combusted at any time, such that it is not necessary for fuel to be combusted the entire 24-hour period. This revised definition, if finalized, would be identical to the definition of boiler operating day promulgated in the 2014 FIP and would be consistent with the recent changes to the definition promulgated by the EPA elsewhere (e.g., the NSPS for EGUs).

    2. Revisions to 40 CFR 49.5513(b)

    Under paragraph (b) of 40 CFR 49.5513, we are proposing to add a statement to the compliance dates specifying that compliance with the requirements of the section is required by April 5, 2010, which was the original effective date for this section, unless otherwise specified within specific provisions in 40 CFR 49.5513. Because the FIP provisions for NGS promulgated in 1991, 2010, and 2014 all have different compliance dates, we are proposing to revise this provision for regulatory clarity. The compliance date for the FIP provisions for NGS promulgated in 2010 would remain April 5, 2010, while the deadlines for the 1991 and 2014 FIPs would remain as specified in paragraphs 40 CFR 52.145(d)(6) and 49.5513(j) respectively. The compliance dates for the revised PM limit and PM CEMS requirements would be specified in paragraphs 40 CFR 49.5513(d)(2) and (e)(2), as explained below. This proposed revision would not relax any existing FIP requirements for NGS and would have no effect on air quality in the area surrounding NGS.

    3. Revisions to 40 CFR 49.5513(d)

    In 40 CFR 49.5513(d)(2), we are proposing to revise the PM emission limitation from 0.060 lb/MMBtu to 0.030 lb/MMBtu for consistency with the numerical PM emission limitation in the MATS Rule. The current applicable emission limitation for PM in the 2010 FIP is higher than the PM emission limitation in the MATS Rule. Revising the PM emission limitation in 40 CFR 49.5513(d)(2) to 0.030 lb/MMBtu will make the PM emission limitation in the FIP conform to the applicable, more stringent emission limitation in the MATS Rule. The EPA anticipates this will not result in any substantive change in the applicable requirements or the method of PM control for this facility. We propose to require compliance with this limitation in the FIP by the effective date of the final FIP. In 40 CFR 49.5513(d)(2), we are also proposing to delete the current provisions related to PM emissions testing. The requirements for demonstrating compliance with the PM emission limitation are instead addressed in 40 CFR 49.5513(e). In 40 CFR 49.5513(d)(3), we are proposing to clarify the requirement for submitting to the EPA a dust suppression plan.

    In 40 CFR 49.5513, we are proposing to remove paragraph (d)(4), which contains provisions related to the opacity limit. In 2016, SRP installed and calibrated PM CEMS on each unit at NGS. We are proposing to remove the opacity limit from the NGS FIP because in 40 CFR 49.5513(e)(2), we are proposing to add a new requirement to operate the PM CEMS on each unit to demonstrate compliance with the PM emission limitation of 0.030 lb/MMBtu. This provision is consistent with the NSPS for EGUs at 40 CFR 60.42Da(b)(1) and the Acid Rain Program requirements at 40 CFR 75.14(e), which generally provide that any owner or operator that elects to install, calibrate, maintain, and operate a PM CEMS for demonstrating compliance with a sufficiently stringent PM emission limitation (i.e., 0.030 lb/MMBtu or lower) need not meet the opacity limit and monitoring requirements.26 The PM CEMS is a monitoring system that provides a continuous assessment of compliance with a PM emission limitation. Generally, opacity limits and COMS have been used as a surrogate to ensure compliance with a PM emission standard that would otherwise be subject only to periodic source testing.27 NGS is not subject to the NSPS for EGUs at 40 CFR 60.42Da. However, we are proposing to follow the same rationale from Subpart Da to remove the opacity limit and COMS requirement because we are concurrently proposing to revise the NGS FIP to require the installation, calibration, operation, and maintenance of PM CEMS to demonstrate compliance with the lower proposed PM emission limitation of 0.030 lb/MMBtu. As explained in the preamble to our 2010 FIP, water droplets, which are present in the NGS stacks because of the SO2 scrubbers, can cause inaccurate excess emission readings on the COMS.28 Because the PM CEMS provides a better continuous demonstration of compliance with the revised and more stringent PM emission limitation than an opacity limit and COMS, this proposed revision would not relax any existing requirements in the NGS FIP with respect to PM emissions and would not adversely affect air quality in the surrounding area.

    26See NSPS for EGUs at 40 CFR 60.42Da and the Acid Rain Program requirements at 40 CFR part 70. Subpart Da to part 60 is the “Standard of Performance for Electric Utility Steam Generating Units” and applies to units that are capable of combusting more than 73 MW heat input of fossil fuel and for which construction, modification, or reconstruction commenced after September 18, 1978. The units at NGS were constructed prior to 1978 and are not subject to part 60 subpart Da.

    27See, e.g., discussion of opacity in the 2007 FIP for the Four Corners Power Plant, 72 FR 25698 at 25701 (May 7, 2007), stating that opacity limits are generally applied to ensure a unit is meeting its PM limit.

    28See 75 FR 10175. We also explained that, “NGS will continue to have a requirement to operate COMs on each stack since the COMs do operate properly during start-up and at other times when the SO2 scrubbers are bypassed for maintenance purposes . . . Therefore, in the final rule excess opacity due to uncombined water droplets in the stack does not constitute an exceedance, but it will be reported on the quarterly excess emissions reports.” 75 FR 10177. See also, 40 CFR 49.5113(f)(4).

    4. Revisions to 40 CFR 49.5513(e)

    In 40 CFR 49.5513(e)(1) and (e)(4), we are proposing changes to remove testing and monitoring requirements for opacity, consistent with our proposed removal of the opacity limit in 40 CFR 49.5513(d)(4). Because we are proposing to remove the opacity limit, the requirements in 40 CFR 49.5513(e)(1) to operate COMS and in (e)(4) to maintain two sets of opacity filters for the COMS are no longer necessary. In paragraph (e)(2), we are proposing to replace the existing specifications related to annual PM testing with a requirement to install, calibrate, maintain, and operate PM CEMS to demonstrate compliance with the 0.030 lb/MMBtu emission limit in accordance with the specifications in the MATS Rule by the effective date of the final FIP. The use of PM CEMS is a continuous measurement and is a better method for ensuring compliance with the revised and more stringent PM emission limit than annual source testing for the existing less stringent PM emission limit combined with an opacity limit and COMS. Therefore, these combined revisions would not relax existing requirements with respect to PM emissions or result in adverse effects on air quality in the surrounding area.

    Under 40 CFR 49.5513(e)(8), we are proposing to correct an outdated reference to “Section 49.24(d)(3),” which has been recodified as 40 CFR 49.5513(d)(3).29

    29 76 FR 23876 (April 29, 2011).

    5. Revisions to 40 CFR 49.5513(f)

    The EPA is proposing revisions to the reporting and recordkeeping requirements to specify that all reports and notifications required in 40 CFR 49.5513 should be sent to the NNEPA and the Regional Administrator of the Region IX office of the EPA. Because 40 CFR 49.5513(f)(2) repeats addresses and other reporting details already provided in paragraph (f), we are also proposing to delete the redundant provisions in paragraph (f)(2). These proposed administrative changes would not relax any requirements or have any effect on air quality in the area surrounding NGS.

    In addition, consistent with the proposed removal of the COMS requirement in paragraph (e), we are also proposing to remove the reporting requirements related to the COMS in paragraph (f)(4). The use of PM CEMS is a continuous measurement and is a better method for ensuring compliance with the revised and more stringent PM emission limit than annual source testing for the existing less stringent PM emission limit combined with an opacity limit and COMS. Therefore, these combined revisions would not relax existing requirements with respect to PM emissions or result in adverse effects on air quality in the surrounding area.

    6. Revisions to 40 CFR 49.5513(j)

    In 40 CFR 49.5513(j)(8), we are proposing to remove addresses for the NNEPA and the EPA that are already provided in 40 CFR 49.5513(f) and to require that all reports and notifications under paragraph (j) be submitted to the NNEPA and the EPA in accordance with 40 CFR 49.5513(f). This proposed revision removes redundant information and requires reporting for 40 CFR 49.55153(j) to be consistent with the reporting requirements in 40 CFR 49.5513(f). Therefore, these proposed revisions would not adversely affect air quality in the surrounding area. These proposed changes to 40 CFR 49.5513(j)(10) do not relax any requirements or have any effect on air quality in the area surrounding NGS.

    IV. Solicitation of Comments

    As described above, the EPA is proposing the following revisions: (1) Move the 1991 FIP provisions from 40 CFR 52.145(d) to 40 CFR 49.5513; (2) revise a definition of boiler operating day; (3) clarify the compliance dates applicable to the FIP requirements; (4) lower the PM emission limitation in the 2010 FIP from 0.060 lb/MMBtu to 0.030 lb/MMBtu; (5) revise the PM compliance demonstration from annual source testing to the use of PM CEMS; (6) and replace the existing opacity limit and COMS requirement with a new requirement to demonstrate compliance with the PM emission limitation of 0.030 lb/MMBtu using PM CEMS.

    The EPA solicits comments on the limited provisions of the NGS FIP that we are proposing to revise in this rulemaking. We are not accepting comment on any provisions of the NGS FIP that we are not proposing to revise. Accordingly, please limit your comments to those specific provisions listed above that we are proposing to revise in today's action.

    V. Environmental Justice Considerations

    The Navajo Generating Station is located on the reservation lands of the Navajo Nation, and the EPA recognizes there is significant community interest in the emissions and environmental effects of this facility. As discussed elsewhere in this document, the proposed revisions to the NGS FIP would strengthen the FIP by requiring the use of PM CEMS to demonstrate compliance with the lower PM emission limitation of 0.030 lb/MMBtu. Because the proposed revisions strengthen the NGS FIP, the EPA considers this action to be beneficial for human health and the environment, and to have no potential disproportionately high and adverse effects on minority, low-income, or indigenous populations.

    VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. This rule applies to only one facility and is therefore not a rule of general applicability.

    B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

    This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant 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. This rule applies to only one facility. Therefore, its recordkeeping and reporting provisions do not constitute a “collection of information” as defined under 44 U.S.C. 3502(3) and 5 CFR 1320.3(c).

    D. Regulatory Flexibility Act (RFA)

    I certify that this proposed action will not have a significant economic impact on a substantial number of small entities. This action will not impose any requirements on small entities. Firms primarily engaged in the generation, transmission, and/or distribution of electric energy for sale are small if, including affiliates, the total electric output for the preceding fiscal year did not exceed four million megawatt-hours. Each of the owners of the facility affected by this rule, Salt River Project, the Bureau of Reclamation, Arizona Public Service, Tucson Electric Power, and NV Energy, exceed this threshold.

    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.

    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. Although this proposed action affects a facility located in Indian country, the proposed limited revisions to existing provisions in the NGS FIP 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. However, we note that we have engaged in numerous discussions with the NNEPA during the development of this proposed rule and continue to invite consultation on this proposed action.

    H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    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 does not concern an environmental health risk or safety risk.

    I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

    J. National Technology Transfer and Advancement Act

    This action involves technical standards. The technical standards in this action are based on the technical standards used in other rulemakings promulgated by the EPA. We refer to the discussion of the technical standards and voluntary consensus standards in the final rule for 40 CFR part 60 subpart Da and 40 CFR part 63 subpart UUUUU at 77 FR 9304 at 9441 (February 16, 2012).

    K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. If this rule is finalized as proposed, we expect that the limited revisions to the FIP will strengthen requirements for PM compliance demonstrations with a lower PM emission limitation of 0.030 lb/MMBtu, and will not relax any other existing requirements.

    List of Subjects 40 CFR Part 49

    Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Indians, Intergovernmental relations, Reporting and recordkeeping requirements.

    40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Visibility.

    Dated: October 26, 2018. Deborah Jordan, Acting Regional Administrator, Region IX.

    Chapter I, title 40, of the Code of Federal Regulations is proposed to be amended as follows:

    PART 49—INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT 1. The authority citation for part 49 continues to read as follows: Authority:

    42 U.S.C. 7401, et seq.

    Subpart L—Implementation Plans for Tribes—Region IX 2. Section 49.5513 is amended by: a. Revising paragraph (b); b. Revising paragraphs (d)(2) and (3); c. Removing paragraph (d)(4); d. Revising paragraphs (e)(1) and (2); e. Removing and reserving paragraph (e)(4); f. Revising paragraph (8); g. Revising paragraphs (f) introductory text and (f)(2) and (4); h. Revising paragraphs (j)(8) introductory text; and i. Adding paragraph (k).

    The revisions and additions read as follows:

    § 49.5513 Federal Implementation Plan Provisions for Navajo Generating Station, Navajo Nation.

    (b) Compliance dates. Compliance with the requirements of this section is required no later than April 5, 2010, unless otherwise indicated by compliance dates contained in specific provisions.

    (d) * * *

    (2) Particulate matter. By [DATE 30 DAYS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER], no owner or operator shall discharge or cause the discharge of particulate matter into the atmosphere in excess of 0.030 lb/MMBtu, on a plant-wide basis.

    (3) Dust. Each owner or operator shall operate and maintain the existing dust suppression methods for controlling dust from the coal handling and storage facilities, as documented in the dust suppression plan submitted on February 2, 2015, or any subsequent revision thereto. Each owner or operator shall not emit dust with an opacity greater than 20% from any crusher, grinding mill, screening operation, belt conveyor, truck loading or unloading operation, or railcar unloading station, as determined using 40 CFR part 60, Appendix A-4 Method 9.

    (e) Testing and monitoring. (1) On and after the effective date of this regulation, the owner or operator shall maintain and operate Continuous Emissions Monitoring Systems (CEMS) for NOX and SO2 on Units 1, 2, and 3 in accordance with 40 CFR 60.8 and 60.13(e), (f), and (h), and Appendix B of Part 60. The owner or operator shall comply with the quality assurance procedures for CEMS found in 40 CFR part 75.

    (2) By [DATE 30 DAYS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER], the owner or operator shall install, calibrate, maintain, and operate particulate matter CEMS on Units 1, 2, and 3 to assure continuous compliance with the particulate matter limits in paragraph (d)(2) of this section, in accordance with 40 CFR part 63 subpart UUUUU.

    (8) A certified EPA Reference Method 9 of Appendix A-4 of 40 CFR part 60 observer shall conduct a weekly visible emission observation for the equipment and activities described under paragraph (d)(3) of this section. If visible emissions are present at any of the equipment and/or activities, a 6-minute EPA Reference Method 9 observation shall be conducted. The name of the observer, date, and time of observation, results of the observations, and any corrective actions taken shall be noted in a log.

    (f) Reporting and recordkeeping requirements. All requests, reports, submittals, notifications and other communications to the EPA, Regional Administrator, or Administrator required by this section and references therein shall be submitted to the Director, Navajo Environmental Protection Agency, P.O. Box 339, Window Rock, Arizona 86515, (928) 871-7692, (928) 871-7996 (facsimile); and to the Regional Administrator, U.S. Environmental Protection Agency, Region IX, to the attention of Mail Code: ORA-1, at 75 Hawthorne Street, San Francisco, California 94105, (415) 947-8000. For each unit subject to the emissions limitations in this section the owner or operator shall:

    (2) For excess emissions, notify the Regional Administrator by telephone or in writing within one business day. A complete written report of the incident shall be submitted to the Regional Administrator within ten (10) working days after the event. This notification shall include the following information:

    (4) Submit quarterly excess emissions reports for sulfur dioxide and PM as recorded by CEMS together with a CEMS data assessment report to the Regional Administrator no later than 30 days after each calendar quarter. The owner or operator shall complete the excess emissions reports according to the procedures in 40 CFR 60.7(c) and (d) and include the Cylinder Gas Audit.

    (j) * * *

    (8) Reporting. All reports and notifications under this paragraph (j) must be submitted as required by paragraph (f) of this section to the Director, Navajo Nation Environmental Protection Agency and to the Regional Administrator.

    (k) This paragraph (k) is applicable to the fossil fuel-fired, steam-generating equipment designated as Units 1, 2, and 3 at the Navajo Generating Station in the Northern Arizona Intrastate Air Quality Control Region 40 CFR 81.270).

    (1) Definitions(i) Administrator means the Administrator of EPA or his/her designee.

    (ii) Affected unit(s) means the steam-generating unit(s) at the Navajo Generating Station, all of which are subject to the emission limitation in paragraph (k)(2) of this section, that has accumulated at least 365 boiler operating days since the passage of the date defined in paragraph (k)(6) of this section applicable to it.

    (iii) Boiler operating day means a 24-hour period between 12 midnight and the following midnight during which any fuel is combusted at any time in the steam-generating unit. It is not necessary for fuel to be combusted the entire 24-hour period.

    (iv) Owner or operator means the owner, participant in, or operator of the Navajo Generating Station to which this paragraph (k) is applicable.

    (v) Unit-week of maintenance means a period of 7 days during which a fossil fuel-fired steam-generating unit is under repair, and no coal is combusted in the unit.

    (2) Emission limitation. The following emission limitation shall apply at all times. No owner or operator shall discharge or cause the discharge of sulfur oxides into the atmosphere in excess of 42 nanograms per Joule (ng/J) [0.10 pound per million British thermal units (lb/MMBtu)] heat input.

    (3) Compliance determination. Until at least one unit qualifies as an affected unit, no compliance determination is appropriate. As each unit qualifies for treatment as an affected unit, it shall be included in the compliance determination. Compliance with this emission limit shall be determined daily on a plant-wide rolling annual basis as follows:

    (i) For each boiler operating day at each steam generating unit subject to the emission limitation in paragraph (k)(2) of this section, the owner or operator shall record the unit's hourly SO2 emissions using the data from the continuous emission monitoring systems, required in paragraph (k)(4) of this section, and the daily electric energy generated by the unit (in megawatt-hours) as measured by the megawatt-hour meter for the unit.

    (ii) Compute the average daily SO2 emission rate in ng/J (lb/MMBtu) following the procedures set out in method 19, appendix A, 40 CFR part 60 in effect on October 3, 1991.

    (iii) For each boiler operating day for each affected unit, calculate the product of the daily SO2 emission rate (computed according to paragraph (k)(3)(ii) of this section) and the daily electric energy generated (recorded according to paragraph (k)(3)(i) of this section) for each unit.

    (iv) For each affected unit, identify the previous 365 boiler operating days to be used in the compliance determination. Except as provided in paragraphs (k)(9) and (k)(10) of this section, all of the immediately preceding 365 boiler operating days will be used for compliance determinations.

    (v) Sum, for all affected units, the products of the daily SO2 emission rate-electric energy generated (as calculated according to paragraph (k)(3)(iii) of this section) for the boiler operating days identified in paragraph (k)(3)(iv) of this section.

    (vi) Sum, for all affected units, the daily electric energy generated (recorded according to paragraph (k)(3)(i) of this section) for the boiler operating days identified in paragraph (k)(3)(iv) of this section.

    (vii) Calculate the weighted plant-wide annual average SO2 emission rate by dividing the sum of the products determined according to paragraph (k)(3)(v) of this section by the sum of the electric energy generated determined according to paragraph (k)(3)(vi) of this section.

    (viii) The weighted plant-wide annual average SO2 emission rate shall be used to determine compliance with the emission limitation in paragraph (k)(2) of this section.

    (4) Continuous emission monitoring. The owner or operator shall install, maintain, and operate continuous emission monitoring systems to determine compliance with the emission limitation in paragraph (k)(2) of this section as calculated in paragraph (k)(3) of this section. This equipment shall meet the specifications in appendix B of 40 CFR part 60 in effect on October 3, 1991. The owner or operator shall comply with the quality assurance procedures for continuous emission monitoring systems found in appendix F of 40 CFR part 60 in effect on October 3, 1991.

    (5) Reporting requirements. For each steam generating unit subject to the emission limitation in paragraph (k)(2) of this section, the owner or operator:

    (i) Shall furnish the Administrator written notification of the SO2, oxygen, and carbon dioxide emissions according to the procedures found in 40 CFR 60.7 in effect on October 3, 1991;

    (ii) Shall furnish the Administrator written notification of the daily electric energy generated in megawatt-hours;

    (iii) Shall maintain records according to the procedures in 40 CFR 60.7 in effect on October 3, 1991; and

    (iv) Shall notify the Administrator by telephone or in writing within one business day of any outage of the control system needed for compliance with the emission limitation in paragraph (k)(2) of this section and shall submit a follow-up written report within 30 days of the repairs stating how the repairs were accomplished and justifying the amount of time taken for the repairs.

    (6) Compliance dates. The requirements of this paragraph shall be applicable to one unit at the Navajo Generating Station beginning November 19, 1997, to two units beginning November 19, 1998, and to all units beginning on August 19, 1999.

    (7) Schedule of compliance. The owner or operator shall take the following actions by the dates specified, but the interim deadlines will be extended if the owner or operators can demonstrate to the Administrator that compliance with the deadlines in paragraph (k)(6) of this section will not be affected:

    (i) By June 1, 1992, award binding contracts to an architectural and engineering firm to design and procure the control system needed for compliance with the emission limitation in paragraph (k)(2) of this section.

    (ii) By January 1, 1995, initiate on-site construction or installation of a control system for the first unit.

    (iii) By May 1, 1997, initiate start-up testing of the control system for the first unit.

    (iv) By May 1, 1998, initiate start-up testing of the control system for the second unit.

    (v) By February 1, 1999, initiate start-up testing of the control system for the third unit.

    (8) Reporting on compliance schedule. Within 30 days after the specified date for each deadline in the schedule of compliance in paragraph (k)(7) of this section, the owner or operator shall notify the Administrator in writing whether the deadline was met. If it was not met, the notice shall include an explanation why it was not met and the steps which shall be taken to ensure future deadlines will be met.

    (9) Exclusion for equipment failure during initial operation. (i) For each unit, in determining compliance for the first year that such unit is required to meet the emission limitation in paragraph (k)(2) of this section, periods during which one of the following conditions are met shall be excluded.

    (A) Equipment or systems do not meet designer's or manufacturer's performance expectations.

    (B) Field installation including engineering or construction precludes equipment or systems from performing as designed.

    (ii) The periods to be excluded shall be determined by the Administrator based on the periodic reports of compliance with the emission limitation in paragraph (k)(2) of this section which shall identify the times proposed for exclusion and provide the reasons for the exclusion, including the reasons for the control system outage. The report also shall describe the actions taken to avoid the outage, to minimize its duration, and to reduce SO2 emissions at the plant to the extent practicable while the control system was not fully operational. Whenever the time to be excluded exceeds a cumulative total of 30 days for any control system for any affected unit, the owner or operators shall submit a report within 15 days addressing the history of and prognosis for the performance of the control system.

    (10) Exclusion for catastrophic failure. In addition to the exclusion of periods allowed in paragraph (d)(9) of this section, any periods of emissions from an affected unit for which the Administrator finds that the control equipment or system for such unit is out of service because of catastrophic failure of the control system which occurred for reasons beyond the control of the owner or operators and could not have been prevented by good engineering practices will be excluded from the compliance determination. Events which are the consequence of lack of appropriate maintenance or of intentional or negligent conduct or omissions of the owner or operators or the control system design, construction, or operating contractors do not constitute catastrophic failure.

    (11) Equipment operation. The owner or operator shall optimally operate all equipment or systems needed to comply with the requirements of this paragraph consistent with good engineering practices to keep emissions at or below the emission limitation in paragraph (k)(2) of this section, and following outages of any control equipment or systems the control equipment or system will be returned to full operation as expeditiously as practicable.

    (12) Maintenance scheduling. On March 16 of each year starting in 1993, the owner or operator shall prepare and submit to the Administrator a long-term maintenance plan for the Navajo Generating Station that accommodates the maintenance requirements for the other generating facilities on the Navajo Generating Station grid covering the period from March 16 to March 15 of the next year and showing at least 6 unit-weeks of maintenance for the Navajo Generating Station during the November 1 to March 15 period, except as provided in paragraph (k)(13) of this section. This plan shall be developed consistent with the criteria established by the Western States Coordinating Council of the North American Electric Reliability Council to ensure an adequate reserve margin of electric generating capacity. At the time that a plan is transmitted to the Administrator, the owner or operator shall notify the Administrator in writing if less than the full scheduled unit-weeks of maintenance were conducted for the period covered by the previous plan and shall furnish a written report stating how that year qualified for one of the exceptions identified in paragraph (k)(13) of this section.

    (13) Exceptions for maintenance scheduling. The owner or operator shall conduct a full 6 unit-weeks of maintenance in accordance with the plan required in paragraph (k)(12) of this section unless the owner or operator can demonstrate to the satisfaction of the Administrator that a full 6 unit-weeks of maintenance during the November 1 to March 15 period should not be required because one of the conditions in paragraph (k)(13)(i) through (iv) of this section are met. If the Administrator determines that a full 6 unit-weeks of maintenance during the November 1 to March 15 period should not be required, the owner or operator shall nevertheless conduct that amount of scheduled maintenance that is not precluded by the Administrator. Generally, the owner or operator shall make best efforts to conduct as much scheduled maintenance as practicable during the November 1 to March 15 period.

    (i) There is no need for 6 unit-weeks of scheduled periodic maintenance in the year covered by the plan;

    (ii) The reserve margin on any electrical system served by the Navajo Generating Station would fall to an inadequate level, as defined by the criteria referred to in paragraph (k)(12) of this section;

    (iii) The cost of compliance with this requirement would be excessive. The cost of compliance would be excessive when the economic savings to the owner or operator of moving maintenance out of the November 1 to March 15 period exceeds $50,000 per unit-day of maintenance moved; and

    (iv) A major forced outage at a unit occurs outside of the November 1 to March 15 period, and necessary periodic maintenance occurs during the period of forced outage.

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 3. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401, et seq.

    Subpart D—Arizona
    § 52.145 [Amended]
    4. Section 52.145 amended by removing and reserving paragraph (d).
    [FR Doc. 2018-24482 Filed 11-8-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2017-0625; FRL-9986-36-Region 4] Air Plan Approval; Kentucky; Attainment Plan for Jefferson County SO2 Nonattainment Area AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve the State Implementation Plan (SIP) revision, submitted under a cover letter dated June 23, 2017, by the Commonwealth of Kentucky, through the Kentucky Division for Air Quality (KDAQ) on behalf of the Louisville Metro Air Pollution Control District (District or Jefferson County) to EPA, for attaining the 1-hour sulfur dioxide (SO2) primary national ambient air quality standard (NAAQS) for the Jefferson County SO2 nonattainment area (hereafter referred to as the “Jefferson County nonattainment area,” “nonattainment Area” or “Area”). The Jefferson County nonattainment area is comprised of a portion of Jefferson County in Kentucky surrounding the Louisville Gas and Electric Mill Creek Electric Generating Station (hereafter referred to as “Mill Creek” or “LG&E”). This plan (hereafter called a “nonattainment plan” or “SIP” or “attainment SIP”) includes Kentucky's attainment demonstration and other elements required under the Clean Air Act (CAA or Act). In addition to an attainment demonstration, the plan addresses the requirement for meeting reasonable further progress (RFP) toward attainment of the NAAQS, reasonably available control measures and reasonably available control technology (RACM/RACT), base-year and projection-year emissions inventories, enforceable emission limits, nonattainment new source review (NNSR) and contingency measures. EPA proposes to conclude that Kentucky has appropriately demonstrated that the nonattainment plan provisions provide for attainment of the 2010 1-hour primary SO2 NAAQS in the Jefferson County nonattainment area by the applicable attainment date and that the nonattainment plan meets the other applicable requirements under CAA.

    DATES:

    Comments must be received on or before December 10, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R04-OAR-2017-0625 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Richard Wong, 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. Wong can be reached via telephone at (404) 562-8726 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Requirement for Kentucky to Submit an SO2 Attainment Plan for the Jefferson County Area II. Requirements for SO2 Attainment Plans III. Attainment Demonstration and Longer Term Averaging IV. Review of Attainment Plan Requirements A. Emission Inventory B. Attainment Modeling Demonstration 1. Model Selection 2. Meteorological Data 3. Emissions Data 4. Emission Limits i. Enforceability ii. Longer Term Average Limits 5. Background Concentration 6. Summary of Modeling Results C. RACM/RACT D. New Source Review (NSR) E. Reasonable Further Progress (RFP) F. Contingency Measures V. Incorporation by Reference VI. EPA's Proposed Action VII. Statutory and Executive Orders I. Requirements for Kentucky to Submit an SO2 Plan for the Jefferson County Area.

    On June 22, 2010 (75 FR 35520), EPA promulgated a new 1-hour primary SO2 NAAQS of 75 parts per billion (ppb), which is met at an ambient air quality monitoring site when the 3-year average of the annual 99th percentile of daily maximum 1-hour average concentrations does not exceed 75 ppb, as determined in accordance with Appendix T of 40 CFR part 50. See 40 CFR 50.17(a)-(b). On August 5, 2013 (78 FR 47191), EPA designated a first set of 29 areas of the country as nonattainment for the 2010 SO2 NAAQS. See 40 CFR part 81, subpart C. These designations included the Jefferson County nonattainment area, which encompasses the primary SO2 emitting source Mill Creek and the nearby Watson Lane SO2 monitor (Air Quality Site (AQS) ID: 21-11-0051). These area designations were effective October 4, 2013. Section 191 of the CAA directs states to submit SIPs for areas designated as nonattainment for the SO2 NAAQS to EPA within 18 months of the effective date of the designation, i.e., by no later than April 4, 2015, in this case. Under CAA section 192(a), these SIPs are required to demonstrate that their respective areas will attain the NAAQS as expeditiously as practicable, but no later than 5 years from the effective date of designation, which is October 4, 2018.

    For the Jefferson County nonattainment area (and many other areas), EPA published a notice on March 18, 2016 (81 FR 14736), that Kentucky (and other pertinent states) had failed to submit the required SO2 nonattainment plan by the submittal deadline. This finding initiated a deadline under CAA section 179(a) for the potential imposition of NSR offset and highway funding sanctions. However, pursuant to Kentucky's submittal of June 23, 2017,1 and EPA's subsequent letter dated October 10, 2017, to Kentucky finding the submittal to be complete and noting the termination of these sanctions deadlines, these sanctions under section 179(a) were not and will not be imposed as a result of Kentucky having missed the April 4, 2015, submittal deadline. Under CAA section 110(c), EPA's March 18, 2016, finding also triggered a requirement that EPA promulgate a federal implementation plan (FIP) within two years of the finding unless, by that time (a) the state has made the necessary complete submittal and (b) EPA has approved the submittal as meeting applicable requirements. EPA's FIP duty will be terminated if EPA issues a final approval of Kentucky's SIP revision.

    1 EPA received Kentucky's submittal on July 6, 2017.

    II. Requirements for SO2 Nonattainment Area Plans

    Nonattainment areas must provide SIPs meeting the applicable requirements of the CAA, and specifically CAA sections 110(a), 172, 191 and 192 for the SO2 NAAQS. EPA's regulations governing nonattainment SIPs are set forth at 40 CFR part 51, with specific procedural requirements and control strategy requirements residing at subparts F and G, respectively. Soon after Congress enacted the 1990 Amendments to the CAA, EPA issued general guidance on SIPs, in a document entitled the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” published at 57 FR 13498 (April 16, 1992) (General Preamble). Among other things, the General Preamble addressed SO2 SIPs and fundamental principles for SIP control strategies. Id., at 13545-49, 13567-68. On April 23, 2014, EPA issued guidance for meeting the statutory requirements in SO2 SIPs under the 2010 primary NAAQS, in a document entitled, “Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions,” available at https://www.epa.gov/sites/production/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf (hereafter referred to as SO2 nonattainment guidance). In this guidance, EPA described the statutory requirements for SO2 SIPs for nonattainment areas, which include: An accurate emissions inventory of current emissions for all sources of SO2 within the nonattainment area; an attainment demonstration; demonstration of RFP; implementation of RACM (including RACT); NNSR; enforceable emissions limitations and control measures; and adequate contingency measures for the affected area.

    For EPA to fully approve a SIP as meeting the requirements of CAA sections 110, 172 and 191-192, and EPA's regulations at 40 CFR part 51, the SIP for the affected area needs to demonstrate to EPA's satisfaction that each of the aforementioned requirements have been met. Under CAA sections 110(l) and 193, EPA may not approve a SIP that would interfere with any applicable requirement concerning NAAQS attainment and RFP, or any other applicable requirement, and no requirement in effect (or required to be adopted by an order, settlement, agreement, or plan in effect before November 15, 1990) in any area which is a nonattainment area for any air pollutant, may be modified in any manner unless it insures equivalent or greater emission reductions of such air pollutant. EPA is proposing to approve Kentucky's June 23, 2017, SO2 attainment SIP for the Jefferson County nonattainment area because EPA has preliminarily determined that the plan satisfies the aforementioned CAA and regulatory requirements for nonattainment areas. Furthermore, EPA notes that current 2015-2017 quality-assured and certified data for the Watson Lane monitor (AQS ID: AQS ID: 21-11-0051) in the nonattainment area indicates a design value below the 1-hour SO2 standard.

    III. Attainment Demonstration and Longer Term Averaging

    CAA sections 172(c)(1) and (6) direct states with areas designated as nonattainment to demonstrate that the submitted plan provides for attainment of the NAAQS. 40 CFR part 51, subpart G further delineates the control strategy requirements that SIPs must meet, and EPA has long required that all SIPs and control strategies reflect four fundamental principles of quantification, enforceability, replicability, and accountability. General Preamble, at 13567-68. SO2 attainment plans must consist of two components: (1) Emission limits and other control measures that assure implementation of permanent, enforceable and necessary emission controls, and (2) a modeling analysis which meets the requirements of 40 CFR part 51, Appendix W which demonstrates that these emission limits and control measures provide for timely attainment of the primary SO2 NAAQS as expeditiously as practicable, but by no later than the CAA maximum attainment date for the affected area. In all cases, the emission limits and control measures must be accompanied by appropriate methods and conditions to determine compliance with the respective emission limits and control measures and must be quantifiable (i.e., a specific amount of emission reduction can be ascribed to the measures), fully-enforceable (specifying clear, unambiguous and measurable requirements for which compliance can be practicably determined), replicable (the procedures for determining compliance are sufficiently specific and non-subjective so that two independent entities applying the procedures would obtain the same result), and accountable (source specific limits must be permanent and must reflect the assumptions used in the SIP demonstrations).

    EPA's April 2014 SO2 nonattainment guidance recommends that the emission limits be expressed as short-term average limits (e.g., addressing emissions averaged over one or three hours), but also describes the option to establish emission limits with longer averaging times of up to 30 days so long as the limits meet certain recommended criteria. See SO2 nonattainment guidance, pp. 22 to 39. The guidance recommends that—should states and sources utilize longer averaging times—the longer term average limit should be a lower-adjusted level that reflects a stringency comparable to the 1-hour average limit at the critical emission value (CEV) shown by modeling to provide for attainment that the plan otherwise would have set.

    EPA's SO2 nonattainment guidance provides an extensive discussion of EPA's rationale for concluding that appropriately set comparably stringent limitations based on averaging times as long as 30 days can be found to provide for attainment of the 2010 SO2 NAAQS. In evaluating this option, EPA considered the nature of the standard, conducted detailed analyses of the impact concerning the use of 30-day average limits on the prospects for attaining the standard, and carefully reviewed how best to achieve an appropriate balance among the various factors that warrant consideration in judging whether a state's plan provides for attainment. Id. at pp. 22 to 39. See also id. at Appendices B, C, and D.

    As specified in 40 CFR 50.17(b), the 1-hour primary SO2 NAAQS is met at an ambient air quality monitoring site when the 3-year average of the annual 99th percentile of daily maximum 1-hour average concentrations is less than or equal to 75 ppb. In a year with 365 days of valid monitoring data, the 99th percentile would be the fourth highest daily maximum 1-hour value. The 2010 SO2 NAAQS, including this form of determining compliance with the standard, was upheld by the U.S. Court of Appeals for the District of Columbia Circuit in Nat'l Envt'l Dev. Ass'n's Clean Air Project v. EPA, 686 F.3d 803 (D.C. Cir. 2012). Because the standard has this form, a single hourly exceedance of the 75-ppb level does not create a violation of the standard. Instead, at issue is whether a source operating in compliance with a properly set longer term average could cause exceedances, and if so the resulting frequency and magnitude of such exceedances, and in particular, whether EPA can have reasonable confidence that a properly set longer term average limit will provide that the 3-year average of the annual fourth highest daily maximum 1-hour value will be at or below 75 ppb. A synopsis of how EPA judges whether such plans “provide for attainment,” based on modeling of projected allowable emissions and in light of the SO2 NAAQS form for determining attainment at monitoring sites, follows.

    For SO2 plans that are based on 1-hour emission limits, the standard approach is to conduct modeling using fixed emission rates. The maximum emission rate that would be modeled to result in attainment (i.e., in an “average year” 2 shows three, not four days with maximum hourly levels exceeding 75 ppb) is labeled the “critical emission value.” The modeling process for identifying this critical emissions value inherently considers the numerous variables that affect ambient concentrations of SO2, such as meteorological data, background concentrations, and topography. In the standard approach, the state would then provide for attainment by setting a continuously applicable 1-hour emission limit at this critical emission value.

    2 An “average year” is used to mean a year with average air quality. While 40 CFR 50 Appendix T provides for averaging three years of 99th percentile daily maximum hourly values (e.g., the fourth highest maximum daily hourly concentration in a year with 365 days with valid data), this discussion and an example below uses a single “average year” to simplify the illustration of relevant principles.

    EPA recognizes that some sources have highly variable emissions, for example due to variations in fuel sulfur content and operating rate, that can make it extremely difficult, even with a well-designed control strategy, to ensure in practice that emissions for any given hour do not exceed the critical emission value. EPA also acknowledges the concern that longer term emission limits can allow short periods with emissions above the “critical emission value,” which, if coincident with meteorological conditions conducive to high SO2 concentrations, could in turn create the possibility of a NAAQS exceedance occurring on a day when an exceedance would not have occurred if emissions were continuously controlled at the level corresponding to the critical emission value. However, for several reasons, EPA believes that the approach recommended in its guidance document suitably addresses this concern. First, from a practical perspective, EPA expects the actual emission profile of a source subject to an appropriately set longer term average limit to be similar to the emission profile of a source subject to an analogous 1-hour average limit. EPA expects this similarity because it has recommended that the longer term average limit be set at a level that is comparably stringent to the otherwise applicable 1-hour limit (reflecting a downward adjustment from the critical emissions value) and that takes the source's emissions profile into account. As a result, EPA expects either form of emission limit to yield comparable air quality.

    Second, from a more theoretical perspective, EPA has compared the likely air quality with a source having maximum allowable emissions under an appropriately set longer term limit, to the likely air quality with the source having maximum allowable emissions under the comparable 1-hour limit. In this comparison, in the 1-hour average limit scenario, the source is presumed at all times to emit at the critical emission level, and in the longer term average limit scenario the source is presumed to occasionally emit more than the critical emission value but on average, and presumably at most times, to emit well below the critical emission value. In an “average year,” compliance with the 1-hour limit is expected to result in three exceedance days (i.e., three days with hourly values above 75 ppb) and a fourth day with a maximum hourly value at 75 ppb. By comparison, with the source complying with a longer term limit, it is possible that additional exceedances would occur that would not occur in the 1-hour limit scenario (if emissions exceed the critical emission value at times when meteorology is conducive to poor air quality). However, this comparison must also factor in the likelihood that exceedances that would be expected in the 1-hour limit scenario would not occur in the longer term limit scenario. This result arises because the longer term limit requires lower emissions most of the time (because the limit is set well below the critical emission value), so a source complying with an appropriately set longer term limit is likely to have lower emissions at critical times than would be the case if the source were emitting as allowed with a 1-hour limit.

    As a hypothetical example to illustrate these points, suppose a source that always emits 1000 pounds of SO2 per hour, which results in air quality at the level of the NAAQS (i.e., results in a design value of 75 ppb). Suppose further that in an “average year,” these emissions cause the 5-highest maximum daily average 1-hour concentrations to be 100 ppb, 90 ppb, 80 ppb, 75 ppb, and 70 ppb. Then suppose that the source becomes subject to a 30-day average emission limit of 700 pounds per hour (lb/hr). It is theoretically possible for a source meeting this limit to have emissions that occasionally exceed 1000 lb/hr, but with a typical emissions profile, emissions would much more commonly be between 600 and 800 lb/hr. In this simplified example, assume a zero-background concentration, which allows one to assume a linear relationship between emissions and air quality. (A nonzero background concentration would make the mathematics more difficult but would give similar results.) Air quality will depend on what emissions happen on what critical hours, but suppose that emissions at the relevant times on these 5 days are 800 lb/hr, 1100 lb/hr, 500 lb/hr, 900 lb/hr, and 1200 lb/hr, respectively. (This is a conservative example because the average of these emissions, 900 lb/hr, is well over the 30-day average emission limit.) These emissions would result in daily maximum 1-hour concentrations of 80 ppb, 99 ppb, 40 ppb, 67.5 ppb, and 84 ppb. In this example, the fifth day would have an exceedance that would not otherwise have occurred, but the third day would not have an exceedance that otherwise would have occurred, and the fourth day would have a concentration below, rather than at, 75 ppb. In this example, the fourth highest maximum daily concentration under the 30-day average would be 67.5 ppb.

    This simplified example illustrates the findings of a more complicated statistical analysis that EPA conducted using a range of scenarios using actual plant data. As described in Appendix B of EPA's SO2 nonattainment guidance, EPA found that the requirement for lower average emissions is highly likely to yield better air quality than is required with a comparably stringent 1-hour limit. Based on analyses described in Appendix B of its nonattainment guidance, EPA expects that an emission profile with maximum allowable emissions under an appropriately set comparably stringent 30-day average limit is likely to have the net effect of having a lower number of exceedances and better air quality than an emission profile with maximum allowable emissions under a 1-hour emission limit at the critical emission value. This result provides a compelling policy rationale for allowing the use of a longer averaging period, in appropriate circumstances where the facts indicate this result can be expected to occur.

    The question then becomes whether this approach—which is likely to produce a lower number of overall exceedances even though it may produce some unexpected exceedances above the critical emission value—meets the requirements in sections 110(a)(1) and 172(c)(1) and (6) for SIPs to contain enforceable emissions limitations and other control measures to “provide for attainment” of the NAAQS. For SO2, as for other pollutants, it is generally impossible to design a nonattainment plan in the present that will guarantee that attainment will occur in the future. A variety of factors can cause a well-designed attainment plan to fail and unexpectedly not result in attainment, for example if meteorology occurs that is more conducive to poor air quality than was anticipated in the plan. Therefore, in determining whether a plan meets the requirement to provide for attainment, EPA's task is commonly to judge not whether the plan provides absolute certainty that attainment will in fact occur, but rather whether the plan provides an adequate level of confidence of prospective NAAQS attainment. From this perspective, in evaluating use of a 30-day average limit, EPA must weigh the likely net effect on air quality. Such an evaluation must consider the risk that occasions with meteorology conducive to high concentrations will have elevated emissions leading to exceedances that would not otherwise have occurred, and must also weigh the likelihood that the requirement for lower emissions on average will result in days not having exceedances that would have been expected with emissions at the critical emissions value. Additional policy considerations, such as in this case the desirability of accommodating real world emissions variability without significant risk of violations, are also appropriate factors for EPA to weigh in judging whether a plan provides a reasonable degree of confidence that the plan will lead to attainment. Based on these considerations, especially given the high likelihood that a continuously enforceable limit averaged over as long as 30 days, determined in accordance with EPA's nonattainment guidance, will result in attainment, EPA believes as a general matter that such limits, if appropriately determined, can reasonably be considered to provide for attainment of the 2010 SO2 NAAQS.

    The SO2 nonattainment guidance offers specific recommendations for determining an appropriate longer term average limit. The recommended method starts with determination of the 1-hour emission limit that would provide for attainment (i.e., the critical emission value), and applies an adjustment factor to determine the (lower) level of the longer term average emission limit that would be estimated to have a degree of stringency comparable to the otherwise necessary 1-hour emission limit. This method uses a database of continuous emission data reflecting the type of control that the source will be using to comply with the SIP emission limits, which (if compliance requires new controls) may require use of an emission database from another source. The recommended method involves using these data to compute a complete set of emission averages, computed according to the averaging time and averaging procedures of the prospective emission limitation. In this recommended method, the ratio of the 99th percentile among these long-term averages to the 99th percentile of the 1-hour values represents an adjustment factor that may be multiplied by the candidate 1-hour emission limit to determine a longer term average emission limit that may be considered comparably stringent.3 The guidance also addresses a variety of related topics, such as the potential utility of setting supplemental emission limits, such as mass-based limits, to reduce the likelihood and/or magnitude of elevated emission levels that might occur under the longer term emission rate limit.

    3 For example, if the critical emission value is 1000 pounds of SO2 per hour, and a suitable adjustment factor is determined to be 70 percent, the recommended longer term average limit would be 700 lb/hr.

    Preferred air quality models for use in regulatory applications are described in Appendix A of EPA's Guideline on Air Quality Models (40 CFR part 51, Appendix W), also referred to as Guideline. In 2005, EPA promulgated AERMOD as the Agency's preferred near-field dispersion modeling for a wide range of regulatory applications addressing stationary sources (for example in estimating SO2 concentrations) in all types of terrain based on extensive developmental and performance evaluation. Supplemental guidance on modeling for purposes of demonstrating attainment of the SO2 NAAQS is provided in Appendix A to the SO2 nonattainment guidance document referenced above. Appendix A provides extensive guidance on the modeling domain, the source inputs, assorted types of meteorological data, and background concentrations. Consistency with the recommendations in this guidance is generally necessary for the attainment demonstration to offer adequately reliable assurance that the plan provides for attainment.

    As stated previously, attainment demonstrations for the 2010 1-hour primary SO2 NAAQS must demonstrate future attainment and maintenance of the NAAQS in the entire area designated as nonattainment (i.e., not just at the violating monitor) by using air quality dispersion modeling (see Appendix W to 40 CFR part 51) to show that the mix of sources and enforceable control measures and emission rates in an identified area will not lead to a violation of the SO2 NAAQS. For a short-term (i.e., 1-hour) standard, EPA believes that dispersion modeling of stationary sources as applied consistent with EPA's Guideline is technically appropriate, efficient and effective in demonstrating attainment in nonattainment areas because it appropriately takes into consideration combinations of meteorological and emission source operating conditions that may contribute to peak ground-level concentrations of SO2. The SIP modeling should follow requirements in the Guideline for conducting a cumulative impact assessment and, thus, should use EPA's preferred dispersion model, the AERMOD modeling system (or approved alternative model) and follow Section 8 of the Guideline in terms of characterizing contributions to total concentrations.

    IV. Review of Attainment Plan Requirements A. Emissions Inventory

    The emissions inventory and source emission rate data for an area serve as the foundation for air quality modeling and other analyses that enable states to: (1) Estimate the degree to which different sources within a nonattainment area contribute to violations within the affected area; and (2) Assess the expected improvement in air quality within the nonattainment area due to the adoption and implementation of control measures. As noted above, the state must develop and submit to EPA a comprehensive, accurate and current inventory of actual emissions from all sources of SO2 emissions in each nonattainment area, as well as any sources located outside the nonattainment area which may affect attainment in the area. See CAA section 172(c)(3) and (4) and EPA's SO2 nonattainment guidance.

    The base year inventory establishes a baseline that is used to evaluate emission reductions achieved by the control strategy and to assess reasonable further progress requirements. Kentucky used 2011 as the base year for emission inventory preparation. At the time of preparation of the attainment SIP, 2011 reflected the most recent triennial National Emission Inventory (NEI v2),4 Version 2 supported the requirement for timeliness of data, and was also representative of a year with violations of the primary SO2 NAAQS (i.e., one of the 3-years for which EPA designated the area nonattainment).

    4 2011 NEI Data—https://www.epa.gov/air-emissions-inventories/2011-national-emissions-inventory-nei-data (accessed January 31, 2017).

    For the base-year inventory, Kentucky reviewed and compiled county-level actual SO2 emissions for all source categories (i.e., point, mobile (on-road and non-road), area (non-point) and event (wildfires and prescribed burns)) in Jefferson County and then utilized county and partial county (the portion in the nonattainment area) population and land use data to determine estimated SO2 emission inventories for sources of SO2 in the partial county nonattainment area. The emissions inventory provided in the June 23, 2017, submission reflects the most current emissions profile for all source categories. Additionally, EPA has provided supplemental emissions information to accurately account for point source emissions for the County. In Jefferson County, point sources account for approximately 99 percent of the total county-level SO2 emissions. Kentucky provided an SO2 emission inventory for those point sources in the County that emitted over 10 tons per year (tpy) based on the 2011 NEI. Table 1 below shows county-level SO2 emissions that emitted greater than 10 tpy in 2011.

    Table 1—Jefferson County 2011 Base Year Point Source SO2 Emission Inventory (tpy) Plant/facility site name SO2
  • Emissions
  • (tpy)
  • Louisville Gas & Electric—Mill Creek 29,944.72 Louisville Gas & Electric—Cane Run 7,823.72 Louisville Medical Center Steam Plant 475.90 Brown-Forman/Early Times 257.81 Cemex (Kosmos) Cement Company Inc 187.47 American Synthetic Rubber Company 136.87 Louisville International Airport 136.19 Rohm and Haas Company 28.44 Total emissions for sources greater than 10 tpy 5 38,991.12 Other SO2 sources 19.24 Total 39,010.37

    The primary SO2-emitting point source located within the partial county nonattainment area is LG&E's Mill Creek Generating Station (Mill Creek). Mill Creek consists of four coal-fired boilers (U1-U4). A breakdown of the actual 2011 emissions by unit in tpy are as follows: Unit 1—5,211 tpy; Unit 2—6,802 tpy; Unit 3—7,175 tpy and Unit 4—10,756 tpy. LG&E replaced the existing wet Flue Gas Desulfurization (FGD) control equipment with more efficient FGD controls, to comply with the mercury air toxics standard (MATS). These replacements have been operational for all four units as of June 8, 2016. Mill Creek is the only SO2 point source located in the partial nonattainment area that is listed in Table 1. Refer to sections IV.B.4 and IV.C for more information on Mill Creek and the 1-hour SO2 control strategy.

    5 The 39,010.37 total SO2 point source emissions in Table 1 above is the supplemented comprehensive county-level base year SO2 point source emission inventory. EPA notes that the Table 1 total county-level 2011 SO2 point source emissions of 39,010.37 tons differs from the 38,854.87 tons sum of point source SO2 emissions listed in Table 3 of Kentucky's 2017 attainment SIP. Table 1 above accounts for EPA's review of the 2011 NEI v2 for all SO2 point sources in Jefferson County. The Commonwealth's Table 3 lists all point sources in the county that emitted over 10 tpy of SO2 which the Commonwealth acquired from EPA's 2011 NEI v2 on January 31, 2017. However, the Commonwealth's Table 3 inadvertently omits the Louisville International Airport point source listed in Table 1 above. Additionally, EPA notes Table 1 above compiles all county-level SO2 emissions from point sources according to the 2011 NEI v2 including those point sources that emitted less than 10 tpy while Kentucky's Table 3 accounts for those point sources that emitted greater than 10 tpy as indicated in the 2011 NEI v2. Lastly, EPA also notes the point source emissions entry in Kentucky's attainment SIP Table 2 is different from the sum of point source emissions in Kentucky's Table 3 and EPA's Table 1 total above. Therefore, the 39,010.37 tons of SO2 for point sources total in Table 1 above accounts for the comprehensive compilation of county-level point sources as indicated in the 2011 NEI v2.

    Prior to 2016, LG&E Cane Run Generating Station (Cane Run) was the next largest SO2 source located in the northern portion of the County and outside the nonattainment area. The facility had three boilers and reported SO2 emissions of 7,823 tons in 2011. In 2015, LG&E constructed a new natural gas combined cycle turbine (U15) at the Cane Run facility and shut-down coal-fired units U4 thru U8 and U10.6

    6 KDAQ submitted information regarding the shut-down of the coal-fired units U4 thru U8 and U10 and the new natural gas combined cycle (U15) and auxiliary unit (U16) to EPA on June 20, 2016, to satisfy part of its obligations under the SO2 Data Requirements Rule at 40 CFR 51.1203(b). The Title V operating permit 175-00-TV(R2) established a natural gas fuel restriction for EGUs U15 and U16 is included in the docket for this proposal (ID: EPA-R04-OAR-2017-0625).

    The CEMEX Kosmos Louisville Cement Plant (Kosmos) is outside the boundary of, but adjacent to, the Jefferson County nonattainment area. The facility produces Portland and masonry cement and has a production design capacity of 1.6 million short tons of cement per year. The primary source of the SO2 emissions are from kiln operations, which emitted 187 tons in 2011.

    Mill Creek is the only point source in the nonattainment area and the primary source of the violation at the Watson Lane monitor at the time of designations for the nonattainment area listed in Table 1. Therefore, Mill Creek was the only SO2 source the Commonwealth and the District considered for further evaluation determined to impact the nonattainment area. Cane Run, Kosmos and the remaining county-level point sources in Table 1 are all located outside of the nonattainment area and were accounted for in the attainment modeling through the background monitor (see section IV.B.4 below).

    KDAQ used the 2011 NEIv2 to obtain estimates of the area and nonroad sources. For on-road mobile source emissions, KDAQ utilized EPA's Motor Vehicle Emissions Simulator (MOVES2014) and NONROAD. A more detailed discussion of the emissions inventory development for the Jefferson County Area can be found in the June 23, 2017, submittal. Table 2 below provides Kentucky's 2011 base year county-level SO2 emission inventory for Jefferson County.

    Table 2—2011 Base Year Emissions Inventory for Jefferson County (tpy) Year Point On-road Nonroad Area Event Total 2011 7 39,010.37 64.20 158.75 38.28 2.61 39,274.21

    Based on an evaluation of county and partial county (nonattainment area) census and land use data, Kentucky determined that the nonattainment area accounted for 0.42 percent of the total county land use 8 or a total of 1.1 tpy when applied to the county-level source categories in Table 2, excluding the point source category (see Table 1 above). As noted above, Mill Creek is the only point source in the nonattainment area. Table 3 below shows the level of SO2 emissions, expressed in tpy, in the partial Jefferson County nonattainment area for the 2011 base year by emissions source category.

    7 EPA notes that the total county-level 2011 SO2 point source emissions of 39,010.37 tons differ from the 38,966.95 tons sum of point source SO2 emissions listed in Table 2 of Kentucky's 2017 attainment SIP. Table 2 above accounts for EPA's review of the 2011 NEI v2 for all SO2 point sources in Jefferson County.

    8 Based on the 2010 census data, the population in Jefferson County was 741,096 in a land area of approximately 380.42 square miles. At the census tract level for the county including the nonattainment area, roughly 8.25 square miles, the population was estimated to 7,170 or approximately 1 percent of the total county population. The nonattainment area occupies only 1.61 square miles of the census tracts or approximately 0.42 percent of the total land area.

    Table 3—2011 Base Year Emission Inventory for the Jefferson County Partial Nonattainment Area emissions (tpy) 9 Base year Point On-road Nonroad Area Event Total 2011 10 29,944.72 0.27 0.67 0.16 0.01 29,945.83

    The attainment demonstration also provides for a projected 2018 attainment year inventory that includes estimated emissions for all emission sources of SO2 which are determined to impact the nonattainment area for the year in which the Area is expected to attain the standard. This inventory should also address any future growth in the Area or any potential increases in emissions of the pollutant for which the Jefferson County Area is nonattainment due to the construction and operation of new major sources, major modifications to existing sources, or increased minor source activity. KDAQ stated in its June 23, 2017, submittal that because the Area is rural and relatively small, it is unlikely that there will be any significant growth in the nonattainment area. However, the Commonwealth cites to the District's Regulation 2.04, Construction or Modification of Major Sources in or Impacting Upon Non-Attainment Areas, which requires NNSR, approved into the SIP and last updated on October 23, 2001 (see 66 FR 53660). The District's SIP-approved NNSR program requires lowest achievable emissions rate, offsets, and public participation requirements for major stationary sources and major modification and therefore, would account for potential growth in the nonattainment area. Kentucky reviewed and compiled county-level actual SO2 emissions for all source categories (i.e., point, mobile (on-road and non-road), area (non-point) and event) in Jefferson County and then utilized county and partial county nonattainment area population and land use data to determine estimated SO2 emission inventories for sources of SO2 in the nonattainment area. The Commonwealth developed a projected emissions inventory for county-level SO2 emissions source categories based on the 2011 NEI as well as the 2008 NEI inventory to extrapolate emissions to 2018. The point source emissions were estimated by taking credit at Mill Creek for the new wet FGD controls and title V operating permit limits of 0.20 lb/MMBtu per unit based on a rolling 30-day average.11 Point sources in the County are still expected to account for approximately 99 percent of the total county-level SO2 emissions.12 Emission estimates for on-road sources were re-estimated with MOVES2014; nonroad emissions were projected using national growth factors, and area source emissions were scaled based on emission factors developed using the Annual Energy Outlook 2014 for consumption and production forecasts. Table 4 below provides Kentucky's 2018 projected county-level SO2 emission inventory for Jefferson County.

    9 Table 2 of Kentucky's 2017 attainment SIP lists the county-level emissions. EPA applied the 0.42 percent to the county-level on-road, nonroad and area source categories in Table 2 to derive the emissions for the nonattainment area.

    10 Mill Creek.

    11 Title V operating permit 145-97-TV(R3) issued by Jefferson County is in the Docket (ID: EPA-R04-OAR-2017-0625) for this proposal action.

    12 Kentucky developed an adjusted 2018 projected attainment year inventory to account for SO2 emission reductions from additional point sources in the County including LG&E Mill Creek and Cane Run. The attainment SIP submission indicates the SO2 emissions reductions from sources outside of the nonattainment area are not required to demonstrate attainment but acknowledges decreases in other source SO2 point source emissions with the replacement from coal-fired units to other fuel at LG&E Cane Run, University of Louisville (99 percent decrease), and Duke Energy's Gallagher Electric Generating Station (92 percent decrease) in Floyd County, Indiana.

    Table 4—2018 Projected Attainment Year SO2 Emissions Inventory for Jefferson County Year Point On-road Nonroad Area Event Total 2018 18,391.77 38.04 158.75 55.62 5.99 18,650.17

    Based on county and partial county nonattainment area census and land use data, similar to the base-year nonattainment area inventory, Kentucky applied the 0.42 percent nonattainment area land use ratio to the 2018 county-level projected emissions inventory in Table 4 resulting in total of 1.06 tpy for on-road, non-road and area sources, excluding point source category.13 Table 5 below shows the level of emissions, expressed in tpy, in the Jefferson County nonattainment area for the 2018 projected attainment year inventory.

    13 Mill Creek is the only point source in the nonattainment Area.

    KDAQ provided a future year projected emissions inventory for all known sources included in the 2011 base year inventory, discussed above. The projected emissions are consistent with expected levels beyond October 4, 2018, when the control strategy for the attainment demonstration will be fully implemented. Therefore, as an annual future year inventory, the point source portion is reasonably estimated beyond October 4, 2018, and would represent an annual inventory for 2019 or beyond. The projected emissions in Table 2 are estimated actual emissions, representing a 55 percent reduction from the base year SO2 emissions.

    Table 5—2018 Projected Attainment Year Emissions Inventory for Jefferson County Partial Nonattainment Area (tpy) 14 Year Point On-road Nonroad Area Event Total 2018 13,490 0.16 0.67 0.23 0.03 13,491.09

    EPA has evaluated Kentucky's 2011 base year and projected emissions inventory for the Jefferson County nonattainment area and has made the preliminary determination that these inventories were developed consistent with EPA's April 2014 SO2 nonattainment guidance. Although EPA has noted minor discrepancies between Kentucky's inventory provided in the nonattainment SIP and the 2011 NEI, EPA is proposing to find that Kentucky's inventory is sufficiently comprehensive and accurate to serve the planning purposes for which the inventory is required. Therefore, EPA is proposing to determine the Jefferson County SO2 attainment SIP meets the requirements of CAA section 172(c)(3) and (4) for the Jefferson County nonattainment area.

    14 Table 5 of Kentucky's 2017 attainment SIP lists the county-level projected emissions. EPA applied the 0.42 percent to the county-level on-road, nonroad and area source categories in Table 5 to derive the emissions for the partial county nonattainment area.

    B. Attainment Modeling Demonstration

    The following discussion is an evaluation of various features of the modeling that Kentucky used in its attainment demonstration.

    1. Model Selection

    Kentucky's attainment demonstration used AERMOD, the EPA's preferred model for this application. The Commonwealth used AERMOD version 15181 with regulatory default options and a rural land use designation. Version 15181 of the AERMOD modeling system was the current regulatory version at the time Kentucky was preparing the attainment demonstration. Appendix 3 in Kentucky's June 23, 2017, submittal, provides a summary of the modeling procedures and options, including details explaining how they applied the Auer technique to determine that the rural dispersion coefficients were appropriate for the modeling. Model receptors were located throughout the nonattainment area using a grid with 100 meters spacing between receptors. Receptor elevations and hill heights required by AERMOD were determined using the AERMAP terrain preprocessor version 11103. The meteorological data was processed using AERMET version 15181 and AERMINUTE version 15272. The surface characteristics around the meteorological surface station were determined using AERSURFACE version 13016. An analysis of Good Engineering Practice (GEP) stack heights and building downwash was performed using BPIPPRIME version 04274. The results of the downwash analysis show that the actual stack heights at the Mill Creek facility exceed the GEP heights, so the GEP stack heights for each stack were used in the modeling. EPA proposes to find the model selection and procedures used to run the model appropriate.

    2. Meteorological Data

    The Commonwealth incorporated the most recently available five years of meteorology data from 2011-2015, as measured at a spatially representative National Weather Service airport site. The 1-minute surface-level data came from the Louisville Standiford Field station in Louisville, Kentucky located about 20 kilometers (km) to the northeast of the facility. Twice daily upper-air meteorological information came from the Wilmington Air Park, Wilmington, Ohio station located about 240 km to the northeast. The surface characteristics of the meteorological surface station were processed using AERSURFACE version 13016 following EPA-recommended procedures and were determined to be representative of the facility by the Commonwealth. EPA proposes to find that the meteorological data selection and processing are appropriate.

    3. Emissions Data

    As previously stated, Mill Creek is the only SO2 emitting major point source in the nonattainment area and the only emission source explicitly modeled in the attainment modeling analysis for the Jefferson County nonattainment area. All minor area sources and other major point sources (located outside the nonattainment area boundary) were accounted for with the background concentration discussed in Section IV.B.5. Mill Creek operates four coal-fired boiler units (U1 thru U4) that emit from three stacks. Unit 1 and Unit 2 have a joint stack (S33) while Unit 3 and Unit 4 have separate stacks (S4 and S34, respectively). Mill Creek replaced its wet FGD Units on all stacks to improve SO2 reduction efficiencies. All FGD construction was completed and operational by June 8, 2016.

    The Commonwealth evaluated the emissions from Mill Creek and derived a set of three SO2 critical emission values (CEVs), one for each stack, from AERMOD modeling simulations to show compliance with the 2010 SO2 NAAQS. The AERMOD modeling analysis resulted in the following CEV's: Stack S33, which serves Units 1 and 2, was modeled at 225.4 grams/second (g/s) equivalent to 1,789 lb/hr; stack S4, which serves Unit 3, was modeled at 152.6 g/s equivalent to 1,211 lb/hr; and stack S34, which serves Unit 4, was modeled at 183.6 g/s equivalent to 1,457 lb/hr. In each case, the modeled emission rate corresponds to 0.29 pounds per million British thermal units (lb/MMBtu) times the maximum heat input capacity (MMBtu/hr) of the unit(s) associated with each stack. This form of an emission limit, in lb/MMBtu, is a frequent form of emission limit associated with electric generating units. The Commonwealth determined from these AERMOD modeling simulations that an hourly emission limit of 0.29 lb/MMBtu would suffice to ensure modeled attainment of the SO2 NAAQS. However, the Commonwealth opted to apply a 30-day average limit, following EPA's SO2 nonattainment guidance for setting longer term average limits. The Commonwealth determined that a 30-day average limit of 0.20 lb/MMBtu could be considered comparably stringent to a 1-hour limit of 0.29 lb/MMBtu. Section IV.B.4.ii below, entitled “Longer Term Average Limits,” provides more discussion on how the Commonwealth made this determination.

    4. Emission Limits

    An important prerequisite for approval of an attainment plan is that the emission limits that provide for attainment be quantifiable, fully-enforceable, replicable, and accountable. See General Preamble at 13567-68. Therefore, part of the review of Kentucky's attainment plan must address the use of these limits, both with respect to the general suitability of using such limits for this purpose and with respect to whether the limits included in the plan have been suitably demonstrated to provide for attainment. The first subsection that follows addresses the enforceability of the limits in the plan, and the second subsection that follows addresses the 30-day average limits.

    i. Enforceability

    Section 172(c)(6) provides that emission limits and other control measures in the attainment SIP shall be enforceable. Kentucky's attainment SIP for the Jefferson County nonattainment area relies on control measures and enforceable emission limits for the four coal-fired boilers at Mill Creek. These emission reduction measures were accounted for in the attainment modeling for Mill Creek, which demonstrates attainment for the 2010 SO2 NAAQS. Kentucky's control strategy for the Jefferson County nonattainment area consists of replacing FGD control equipment with more efficient FGD controls at Mill Creek, addressing SO2 emissions for all four units (U1, U2, U3 and U4): Unit 4 new FGD went into service on December 9, 2014; Units 1 and 2 new combined FGD went into service on May 27, 2015; and Unit 3 new FGD went into service on June 8, 2016.

    LG&E installed wet FGD replacements at Mill Creek to comply with the MATS Rule.15 Jefferson County issued a construction permit (No. 34595-12-C) on June 15, 2012, to LG&E authorizing the construction for wet FGD control equipment replacements for the four coal-fired boilers at the Mill Creek facility. This construction permit also included a 0.20 lb/MMBtu limit for SO2 as a surrogate for the hydrochloric acid gas requirements for MATS. This emission limit was incorporated into the title V permit on July 31, 2014, (145-97-TV (R2)). LG&E was required to comply with the MATS Rule by April 2016.16 Effective June 8, 2016, the Mill Creek facility completed installation of improved wet FGD SO2 controls on all three stacks, which has reduced SO2 emissions by approximately 89 percent since 2014 emission levels.17

    15 On December 16, 2011, EPA established the MATS Rule to reduce emissions of toxic air pollutants for coal or oil power plants larger than 25 megawatts. The rule establishes alternative numeric emission standards, including SO2 (as an alternate to hydrochloric acid), individual non-mercury metal air toxics (as an alternate to particulate matter (PM)), and total non-mercury metal air toxics (as an alternate to PM) for certain subcategories of power plants. CAA section 112, MACT regulations for coal-and oil fired EGUs, known as the Mercury and Air Toxics Standards, were targeted at reducing EGU emissions of HAPs (e.g., mercury, hydrochloric acid (HCl), hydrogen fluoride (HF), dioxin, and various metals) and not explicitly targeted at reducing emissions of SO2. Under the MATS, EGUs meeting specific criteria may choose to demonstrate compliance with alternative SO2 emission limits in lieu of demonstrating compliance with HCl emission limits.

    16 Mill Creek was required to comply with the MATS Rule by April 16, 2016 (extended compliance date).

    17 Mill Creek annual SO2 emissions have dropped, from 28,149 tons in 2014 to 3,040 tons in 2017. See https://ampd.epa.gov/ampd/.

    As discussed further in the RACT/RACM section 1V.C below, Kentucky determined that the wet FGD replacements at Mill Creek provide for SO2 emission reductions that model attainment for the Jefferson County nonattainment area. With respect to the 1-hour SO2 standard, Kentucky established an independent emission limit of 0.20 lb/MMBtu, for each coal-fired unit at Mill Creek on a 30-day average basis in accordance with EPA's SO2 nonattainment guidance for longer term averaging time for the purpose of demonstrating attainment for the 1-hour SO2 standard (see section IV.B.4. ii). These emission limits apply independently to each of the four coal-fired units (U1 thru U4), which emit SO2 from three separate stacks (S33, S4, and S34). Unit 1 and Unit 2 share a common stack (S33) while Unit 3 and Unit 4 have separate stacks (S4 and S34, respectively). These SO2 limits were established in a revised title V operating permit 145-97-TV(R3) for Mill Creek and became effective on April 5, 2017. Mill Creek demonstrates compliance with the 30-day emission limits through a continuous emission monitoring system on each stack as well as the monitoring of the heat input firing rate of each emission unit. The 30-day SO2 emission limit was established to demonstrate modeled attainment of the 2010 1-hour SO2 standard for the Jefferson County nonattainment area and therefore is separate from the SO2 emission limit of the same numerical value established to comply with the 2012 MATS Rule (i.e., SO2 as a surrogate for hydrochloric acid). These two limits were independently established through unique methodologies and guidance to address distinct and separate CAA requirements for the LG&E Mill Creek facility. Kentucky requested that EPA incorporate into the Jefferson County portion of the Commonwealth's SIP the 30-day SO2 emission limits and operating and compliance parameters (monitoring, record keeping and reporting) established at Plant-wide Specific condition S1-Standards, S2-Monitoring and Record Keeping and S3-Reporting 18 in title V permit 145-97-TV(R3).19 The accountability of the SO2 emission limits is established through KDAQ's request to include the limits in the SIP and in the attainment modeling demonstration to ensure permanent and enforceable emission limitations as necessary to provide for attainment of the 2010 SO2 NAAQS.

    18 The plant-wide specific conditions S2-Monitoring and Recordkeeping and S3-Reporting reference specific compliance parameters for the 30-day SO2 emission limit for each individual EGU (U1, U2, U3 and U4). Therefore, the specific SO2 monitoring and recordkeeping and reporting requirements, for each EGU are located at the Specific Conditions S2-Monitoring and Recordkeeping (b) and S3-Reporting (b) for SO2.

    19 EPA notes that Kentucky originally requested that EPA incorporate into the Kentucky SIP the per unit SO2 emission limits for Mill Creek along with compliance parameters that were established in title V permit 145-97-TV(R2). However, through a supplement Louisville has subsequently requested EPA incorporate portions of permit 145-97-TV(R3) which contains the new 0.20 lb/mmBtu per unit emission limit based on a 30-day averaging time.

    ii. Longer Term Average Limits

    Kentucky established an emission limit of 0.20 lb/MMBtu of SO2 emissions, for each individual coal-fired emission unit at Mill Creek, on a 30-day average basis. This emission limit applies individually to each of the four coal-fired units (U1 thru U4), which emit SO2 from three stacks. Unit 1 and Unit 2 have a joint stack (Stack ID S33) while Unit 3 and Unit 4 each have separate stacks (Stack IDs S4 and S34, respectively). As discussed above in the emissions data section, modeling was performed by Jefferson County and the Commonwealth to determine an appropriate CEV, in g/s, for each of the three stacks (stack S33, which serves Units 1 and 2, was modeled at 225.4 g/s; stack S4, which serves Unit 3, was modeled at 152.6 g/s; and stack S34, which serves Unit 4, was modeled at 183.6 g/s). The corresponding candidate 1-hour emission factor limits (in lb/MMBtu) may be calculated by first converting these g/s CEV values to lb/hr (using a standard unit conversion factor of 1 g/s = 7.937 lb/hr) and then dividing by the maximum heat input capacity of each unit, in MMBtu/hr. In each case, the CEV corresponds to an emission factor of 0.29 lb/MMBtu. Since Units 1 and 2 share a stack (S33), the relevant maximum heat input capacity was the combined value for both units (6,170 MMBtu/hr total). Unit 3 has a maximum heat input capacity of 4,204 MMBtu/hr and vents to a single stack (S4), and Unit 4 has a maximum heat input capacity of 5,025 MMBtu/hr and vents to a single stack (S34).

    As discussed further below, Kentucky used the procedures in EPA's April 2014 SO2 nonattainment guidance to determine a compliance ratio (adjustment factor) of 0.69, which when multiplied by 0.29 lbs/MMBTU yields a 30-day average limit of 0.20 lbs/MMBTU. Each of the four emission units were subject to this 0.20 lb/MMBtu 30-day average permit limit effective April 5, 2017. EPA generally defines the term CEV to mean the 1-hour emission rate for an individual stack that, in combination with the other CEVs for other relevant stacks, is shown through proper modeling to yield attainment. As mentioned above, Kentucky developed a set of CEVs (one per stack) in each case corresponding to an hourly limit of 0.29 lb/MMBtu and demonstrated with AERMOD modeling that these CEVs show modeled compliance with the NAAQS. Unit 1 and Unit 2 have a joint stack (S33) and a combined wet FGD control, while Unit 3 and Unit 4 have separate stacks (S4 and S34, respectively), each with individual wet FGD controls.

    EPA's SO2 nonattainment guidance recommends that any longer term average emission limit should be comparably stringent to the 1-hour limit that has been shown to provide for attainment of the 2010 SO2 standard. The guidance recommends a procedure, detailed in Appendix C, for determining an adjustment factor which may be multiplied times the candidate 1-hour limit to derive a longer term limit that may be estimated to be comparably stringent to the 1-hour limit. Using this procedure (discussed in section II above) and using hourly emission data provided by EPA's Air Markets Program Data database for Mill Creek for the period 2009-2013 (i.e., before the wet FGD replacements), Kentucky determined an adjustment factor of 0.69. Multiplication of this adjustment factor times the candidate 1-hour limit yielded the 0.20 lb/MMBtu 30-day average permit limit that Kentucky established in Mill Creek's title V permit effective April 5, 2017. The period from 2009 to 2013 was a period of stable operation prior to the wet FGD replacements (which were made between late 2014 to mid-2016), a time when similar but less efficient wet FGDs were used for SO2 emission control for each coal-fired unit. EPA believes that these data were the best data available at the time to Kentucky for estimating the variability of emissions to be expected at Mill Creek upon compliance with the permit limits. At the time Kentucky conducted its assessment, only a small amount of post-replacement data was available. Use of a mix of pre-replacement and post-replacement data would have yielded a distorted analysis of variability. Therefore, the 2009 to 2013 data from Mill Creek provided the best representation available to Kentucky of the variability of emissions to be expected from this plant.

    Additionally, the 2009-2013 emissions data set yielded an adjustment factor slightly lower (more conservative) than the average 30-day adjustment factor (0.71) included in Table 1 of Appendix D of EPA's SO2 nonattainment guidance for emission sources with wet scrubbers. The results provided in Appendix D were intended to provide insight into the range of adjustment factors that may be considered typical. For these reasons, EPA believes the 0.69 adjustment factor calculated by Kentucky is an appropriate estimate of the degree of adjustment needed to derive a comparably stringent 30-day average emission limit for this facility.

    In accordance with EPA's SO2 nonattainment guidance, the Commonwealth used the distribution of hourly emissions to determine a corresponding distribution of 30-operating day longer term emission averages at the end of each operating day. The 99th percentile of the 1-hour average emission values and the 4th maximum value of the 30-day average emission values 20 for each year were calculated, then the average value of the five years' 99th percentile value was determined. The adjustment factor was calculated as the ratio of the 99th percentile for the longer term average to the 99th percentile hourly average emissions for each of the four boilers at Mill Creek, separately. The adjustment factors for each of the four units (0.64, 0.68, 0.75 and 0.68) were averaged together to arrive at a single compliance ratio of 0.69. The average compliance ratio was then applied to the 0.29 lb/MMBtu hourly emission rate to create a comparably stringent long term (30-day) emission limit of 0.20 lb/MMBtu, which was imposed on each emission unit individually. EPA believes that use of an average adjustment factor is a suitable means of projecting future variability of the four units at the plant because the use of an average adjustment factor is likely to yield similar results to use of unit-specific adjustment factors; indeed, Kentucky determined that annual potential total SO2 emissions based on use of an average adjustment factor (with a limit of 0.20 lb/MMBtu for all units) are about 137 tpy less than would be allowed with limits of 0.29 lb/MMBtu adjusted by unit-specific adjustment factors.

    20 EPA notes that the SO2 nonattainment guidance recommends the compliance ratio be determined based on the 99th percentile of 30-day values instead of the 4th maximum value used by Kentucky. Kentucky also computed the compliance ratio using the 99th percentile and determined that the individual compliance ratios for each unit did not change because the 99th percentile values are close to the 4th maximum values.

    Based on a review of the Commonwealth's submittal and EPA's additional analysis described below, EPA believes that the 30-day average 0.20 lb/MMBtu limit for each of the four boilers at Mill Creek provides a suitable alternative to establishing a 1-hour average emission limit for each unit at this source. The Commonwealth has used a suitable data base and has derived an adjustment factor that yields an emission limit that has comparable stringency to the 1-hour average limit that Kentucky determined would otherwise have been necessary to provide for attainment. While the 30-day rolling average limit allows occasions in which emissions may be higher than the level that would be allowed with the 1-hour limit, the Commonwealth's limit compensates by requiring average emissions to be lower than the level that would otherwise have been required by a 1-hour average limit.

    EPA's SO2 nonattainment guidance recommends evaluating “whether the longer term average limit, potentially in combination with other limits, can be expected to constrain emissions sufficiently so that any occasions of emissions above the critical emission value will be limited in frequency and magnitude and, if they occur, would not be expected to result in NAAQS violations.” For this purpose, EPA analyzed Air Markets Program Data available from EPA. Mill Creek completed replacements of the FGD equipment during the period from December 2014 to June 2016. EPA believes that the emissions data available after completion of the replacements are the data that best indicate the likely frequency of hourly emission levels above the critical emission value. At the time EPA conducted its analysis, these data were available through the end of March 2018. Therefore, in addition to the analysis submitted by Kentucky, EPA analyzed hourly emissions obtained from the EPA Air Markets Program Data for Mill Creek for the period April 2016 to March 2018,21 which encompasses the time after all the wet FGD replacements were completed and the facility was operating under a 0.20 lb/MMBtu emission limitation. During this time Units 1, 2 and 3 did not have any 30-day average values above 0.20 lb/MMBtu, these units each had only 0.1 percent of the hours exceeding the “critical emission factor” of 0.29 lb/MMBtu. Although Unit 4 slightly exceeded 0.20 lb/MMBtu approximately 5.4 percent of the 30-day averages during this period (based on Kentucky's compliance determination procedures), this unit only exceeded the “critical emission factor” of 0.29 lb/MMBtu for 0.5 percent of the hours. Therefore, EPA is proposing to conclude that Mill Creek can reasonably be expected to exceed the critical emission value only rarely. For details of this analysis, please refer to the spreadsheet titled “Mill Creek Analysis of Values Above the Critical Emission Rate” in the Docket for this proposal action.

    21 FGD replacements were not complete for Unit 3 until June 2016, so the period analyzed for Unit 3 was from July 2016 to March 2018.

    For reasons described above and explained in more detail in EPA's SO2 nonattainment guidance, EPA believes appropriately set longer term average limits provide a reasonable basis by which nonattainment plans may provide for attainment. Based on its review of this information as well as the information in the Commonwealth's plan, EPA proposes to find that the 30-day average limits for Mill Creek provide for attainment of the SO2 standard. Furthermore, EPA notes that 2015-2017 quality-assured and certified design value for the Watson Lane monitor (AQS ID: AQS ID: 21-11-0051) in the nonattainment area is 31 ppb, which is below the 1-hour SO2 standard.

    The Commonwealth requested EPA approve into the Jefferson County portion of the Kentucky SIP, the 30-day, 0.20 lb/MMBtu SO2 emission limit for each boiler as well as operating and compliance parameters (monitoring and reporting requirements) established in Mill Creek's title V permit 145-97-TV (R3). EPA has evaluated these emissions limits and proposes to determine that these limits provide for attainment of the 2010 SO2 NAAQS.

    5. Background Concentration

    Background concentrations of SO2 were included in the modeling using 2013-2015 season-by-hour monitoring data from the Green Valley Road monitor (AQS ID: 18-043-1004) located in New Albany, Indiana. Use of the season-by-hour data is one of the approaches for calculating background concentrations provided in the SO2 nonattainment guidance. The season-by-hour background values ranged from 2.13 ppb to 20.67 ppb. This monitor is located approximately 29 km to the north of the Mill Creek facility in the vicinity of many SO2 emissions sources, including the Duke Energy Indiana, LLC, Gallagher Generating Station coal-fired power plant with 3,500 tpy of SO2 emissions in 2014, which is located approximately 5 km upwind of the monitor. This source, along with other sources in the area upwind of the monitor (including numerous small area sources in the City of Louisville and the Louisville Gas and Electric Company, Cane Run Station power plant), emitted approximately 13,000 tpy of SO2 in 2014. The background concentrations from the Green Valley ambient air monitor were used by the Commonwealth to account for SO2 impacts from all sources besides the Mill Creek facility, which was explicitly modeled with AERMOD to develop an appropriate emissions limit. The Commonwealth evaluated other SO2 monitors in the Louisville area that are closer to the Mill Creek facility and the nonattainment area, including the Watson Lane (AQS ID: 21-111-0051), Cannons Lane (AQS ID: 21-111-0067) and Algonquin Parkway/Firearms Training (AQS ID: 21-111-1041) monitors. However, the Commonwealth determined that each of these monitors had issues with data completeness during the 2013-2015 timeframe and thus were not available for use in their modeling analysis.

    EPA is supplementing the attainment demonstration modeling provided by the Commonwealth with an independent analysis to assess the conclusion that the Green Valley background monitor adequately represents background concentrations of SO2 within this nonattainment area, including the impact from Kosmos that is located outside but adjacent to the nonattainment area to the southeast of the Mill Creek facility. The Commonwealth states in its submission that the Green Valley monitor was determined to be the most appropriate and representative background monitor for the demonstration and that it accounts for impacts from all sources not explicitly modeled, including Kosmos. As described below, EPA's independent analysis supports KDAQ's conclusion that the Green Valley monitor adequately represents impacts from all unmodeled sources including those from Kosmos.

    EPA evaluated whether Kosmos, which is located in close proximity to the nonattainment area boundary (less than 0.50 km), should be considered a “nearby source” or an “other source” as these terms are defined in Section 8.3.1 of EPA's Guideline contained in 40 CFR part 51, Appendix W (Appendix W).22 Section 8.3.1.a.i of Appendix W discusses evaluating significant concentration gradient in the vicinity of the source under consideration for SIP emissions limits for determining if other sources in the area are adequately represented by background ambient monitoring. Section 8.3.3.b.ii of Appendix W further describes the assessment of concentration gradients and states that “the magnitude of a concentration gradient will be greatest in the proximity of the source and will generally not be significant at distances greater than 10 times the height of the stack(s) at that source without consideration of terrain influences.” The height of the cement kiln stack at Kosmos is 75 feet (approximately 23 meters) and there are no significant terrain features located near Kosmos or within the nonattainment area boundary. Evaluating the concentration gradients for Kosmos using the “10 times stack height” general rule of thumb indicates that concentration gradients should be comparatively modest beyond 230 meters from the stack. The closest edge of the nonattainment boundary is approximately 480 meters from the stack, which is more than twice the distance of this general rule of thumb. Therefore, EPA believes that the SO2 emissions from Kosmos likely would not result in a significant concentration gradient within the nonattainment area boundary.

    22 EPA had previously indicated that Kosmos should be treated as a “nearby source.” This position was communicated to the Commonwealth in comments on the Prehearing Attainment Demonstration SIP in a letter dated April 18, 2017. EPA has subsequently performed additional analysis (discussed later in this section), and believes that it is appropriate to treat Kosmos as an “other source,” which can be addressed using a representative ambient background concentration. As an additional measure, Kentucky and Jefferson County have elected to conduct air quality monitoring to better characterize the ambient concentrations of SO2 in the vicinity of the Kosmos facility through an agreed Board Order with Kosmos. The Board Order, approved by Jefferson County Board on April 19, 2017, requires the facility to deploy an ambient air monitor in accordance with 40 CFR part 58 and EPA's nonattainment guidance “SO2 NAAQS Designations Source-Oriented Monitoring Technical Assistance Document” (Monitoring TAD February 2016) and includes a remediation plan indicating if monitored violations of the NAAQS occur, Kosmos agrees to make changes to their operations to prevent future violations. EPA Region 4 approved the monitor location in a letter dated February 1, 2018. Please see the Board Order located in the Docket for this proposed rule at EPA-R04-OAR-2017-0625.

    EPA also evaluated whether the Green Valley background monitor data is adequately representative of potential SO2 concentration impacts from Kosmos within the nonattainment area. This evaluation consisted of an assessment of wind patterns in the Louisville area, the SO2 emissions sources in the vicinity of the Green Valley monitor, and comparing those sources to the Kosmos source. EPA evaluated wind data from 2011-2015 from the Louisville Standiford Field Airport to determine the predominant wind patterns. The results of this analysis show that winds blow predominately from the southeast, south and southwest directions. EPA then identified significant SO2 emissions sources located south, southeast and southwest of the Green Valley monitor. The Commonwealth used Green Valley ambient concentration data from the 2013-2015 time period for the background concentrations. Therefore, EPA used SO2 emissions data contained in the 2014 NEI to evaluate sources in the vicinity of the Green Valley monitor. EPA's evaluation of sources in the 2014 NEI found that a large coal fired power plant, the Duke Energy Indiana, LLC, Gallagher Generating Station, with SO2 emissions of 3,500 tpy, is located approximately 5 km southwest of the Green Valley monitor. Also, the Louisville Gas and Electric Company, Cane Run Station reported 8,700 tpy of SO2 emissions in 2014 and is located approximately 15 km southwest of the Green Valley monitor. Further, the City of Louisville and its associated numerous small area SO2 emissions sources (e.g., diesel vehicles and generators) is located within 9 km southeast of the monitor. Combined, these sources total over 13,000 tpy of SO2 emissions (according to the 2014 NEI) located upwind of the monitor and contribute to the measured SO2 season-by-hour concentrations in 2013-2015 that ranged from 2.13 ppb to 20.67 ppb.

    EPA used its Emissions Inventory System (EIS) Gateway to obtain emissions data for Kosmos for comparison to the emissions sources impacting the Green Valley monitor. The EIS Gateway data for Kosmos show SO2 emissions of 207 tpy in 2014, 289 tpy in 2015, and 364 tpy in 2016. These emissions data demonstrate that Kosmos' SO2 emissions are much less than the emissions sources that are contributing to the measured concentrations at the Green Valley background monitor. While Kosmos is located much closer to the nonattainment area boundary (approximately 0.5 km) than the distance the larger sources of emissions are from the Green Valley monitor (from 5 km to 15 km), the sources near the Green Valley monitor have more than an order of magnitude more emissions than Kosmos. EPA believes that the net effect of these compensating differences is that the Green Valley monitor reasonably indicates the impact of Kosmos on the nonattainment area.

    Based upon EPA's analyses summarized above, EPA is proposing to concur with the Commonwealth's use of ambient SO2 concentration data from the Green Valley monitor to account for potential impacts from Kosmos and all other emissions sources located outside the nonattainment area that were not explicitly modeled in the attainment demonstration modeling analysis.

    6. Summary of Modeling Results

    The AERMOD modeling resulted in a maximum modeled design value of 190.1 micrograms per cubic meter or 72.6 ppb, including the background concentration, which is below the 1-hour SO2 NAAQS of 75 ppb. As discussed above, the AERMOD modeling used hourly SO2 emissions for each stack equivalent to the hourly SO2 emission rate of 0.29 lb/MMBtu, which was used to derive the 30-day average emission limit for the four coal-fired boilers at the Mill Creek facility. Effective June 8, 2016, the Mill Creek facility completed installation of improved wet FGD SO2 controls on all three stacks, and became subject the new 30-day SO2 emission limits on April 5, 2017, which has reduced SO2 emissions by approximately 89 percent from 2014 emission levels.23 Furthermore, the Watson Lane monitoring data trends during the timeframe corroborate the significant SO2 reductions from Mill Creek facility, supporting EPA's view that limiting Mill Creek emissions adequately will assure attainment. EPA has evaluated the modeling procedures, inputs and results and proposes to find that the results of the Commonwealth's modeling analysis demonstrate that the limits on Mill Creek assure that there will be no violations of the NAAQS within the nonattainment area.

    23 Mill Creek annual SO2 emissions have dropped, from 28,149 tons in 2014 to 3,040 tons in 2017. See https://ampd.epa.gov/ampd/.

    C. RACM/RACT

    CAA section 172(c)(1) requires that each attainment plan provide for the implementation of all RACM as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of RACT) and shall provide for attainment of the NAAQS. Additionally, 172(c)(6) require SIPs to contain enforceable emissions limitations and other control measures to “provide for attainment” of the NAAQS. EPA interprets RACM, including RACT, under section 172, as measures that a state determines to be reasonably available and which contribute to attainment as expeditiously as practicable for existing sources in the area.

    Kentucky's plan for attaining the 1-hour SO2 NAAQS in the Jefferson County SO2 nonattainment area included a review of three control measures as potential options which could be implemented at Mill Creek to reduce ambient SO2 concentrations and attain the SO2 NAAQS: More efficient scrubber operation; increased stack height; and restriction of high sulfur fuels. The Commonwealth in coordination with the District determined that FGD is the appropriate control strategy and represents RACT/RACM for the nonattainment area. The new controls increase Mill Creek's ability to control SO2 emissions from previously permitted levels, i.e., around 90 percent, to a 98 percent removal rate. Emissions are expected to be reduced from actual emissions of 29,994 tpy in 2011 to a projected post-control level of 13,489.5 tpy. Effective June 8, 2016, the Mill Creek facility completed installation of improved wet FGD SO2 controls on all three stacks, and became subject the new 30-day SO2 emission limits on April 5, 2017 (discussed in section IV.B.4 above). The replaced FGD controls and April 5, 2017 compliance with the 30-day SO2 emission limits has resulted in reduced SO2 emissions at Mill Creek by approximately 89 percent since 2014 emission levels.24 Furthermore, the monitoring data trends during the time period corroborate the existence of the substantial air quality benefits from the significant SO2 reductions from Mill Creek facility. The Watson Lane monitor has recorded decreasing SO2 concentrations from an annual 99th percentile value of 148.6 ppb in 2014, 54.2 ppb in 2015, 26.1 ppb in 2016 and 13.7 ppb in 2017. Currently, the quality-assured and certified 2015-2017, 3-year design value for the Watson Lane monitor is 31 ppb, which is well below the 1-hour SO2 standard. In addition to the modeling demonstrating attainment of the SO2 standard, actual monitored 99th percentile of 1-hour daily maximum concentrations at the Watson Lane do not show violations of the NAAQS. On this basis, Jefferson County determined that no additional measures could contribute to attainment as expeditiously as practicable. Therefore, the FGD controls for the Mill Creek Generating Station was determined to constitute RACT/RACM for the nonattainment area. Kentucky has determined that these measures suffice to provide for timely attainment. EPA preliminarily concurs with Kentucky's approach and analysis, and proposes to conclude that the Commonwealth has satisfied the requirement in section 172(c)(1) and (6) to adopt and submit all RACT/RACM and emission limitations and control measures as needed to attain the standard as expeditiously as practicable.

    24 According to the CAMD data, Mill Creek annual SO2 emissions have dropped, from 28,149 tons in 2014 to 3,040 tons in 2017. See https://ampd.epa.gov/ampd/.

    D. New Source Review (NSR)

    EPA last approved Louisville's NNSR regulations 2.04—Construction or Modification of Major Sources in or Impacting upon Non-Attainment Areas (Emissions Offset Requirements) on October 23, 2001 (66 FR 53660). These rules provide for appropriate NSR for SO2 sources undergoing construction or major modification in any nonattainment area in Jefferson County including the SO2 nonattainment area without need for modification of the approved rules. Therefore, EPA proposes to conclude that this requirement is met for this Area through Louisville's existing NSR rules.

    E. Reasonable Further Progress (RFP)

    CAA section 172(c)(2) requires attainment plan to require RFP, which is defined in CAA section 171(1) as “annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Administrator for the purpose of ensuring attainment of the SO2 NAAQS by the statutory attainment date.” For pollutants like SO2 where a limited number of sources affect air quality, the General Preamble and the SO2 nonattainment guidance explain that RFP is best construed as an ambitious compliance schedule. As discussed above, LG&E completed installation of FGD replacement scrubbers for all four coal-fired boilers at Mill Creek on June 8, 2016 (Unit 4 new FGD went into service on December 9, 2014; Units 1 and 2's new FGD went into service on May 27, 2015; and Unit 3 25 new FGD went into service on June 8, 2016) to comply with EPA's MATS extended compliance date of April 16, 2016. However, for purposes of demonstrating attainment of the 2010 SO2 standard, Kentucky established an independent SO2 emission limit of 0.20 lb/MMBtu for Mill Creek (title V operating permit 145-97-TV(R3) based on the SO2 emission reductions from the FGD replacement. All FGD controls are currently installed and operational at Mill Creek and the facility is currently complying with the 30-day emission limits as of April 5, 2017 (the date the revised title V permit was issued).26 EPA has evaluated these emissions limits and proposes to determine that these limits provide for modeled attainment of the 2010 SO2 NAAQS in the Jefferson County nonattainment area.

    25 Unit 3 ceased operation on April 9, 2016, to comply with the extended MATS compliance date and did not return to service until all controls and construction necessary to comply with MATS were completed.

    26 See Mill Creek Generating Station title V operating permit No. 145-97-TV(R3) in the Docket (ID: EPA-R04-OAR-2017-0625) for this proposal action.

    SO2 emissions within the nonattainment area have decreased approximately 89 percent since 2014, which correlates to a reduction of SO2 concentrations recorded at the Watson Lane monitor during this period.27 Kentucky finds that this plan requires the affected sources implement appropriate control measures as expeditiously as practicable to ensure attainment of the standard by the applicable attainment date. Mill Creek has met the limits in Kentucky's plan by the April 5, 2017 compliance date (effective date of the new 30-day SO2 emission limits). Therefore, Kentucky concludes that this plan provides for RFP in accordance with EPA's April 2014 SO2 nonattainment guidance. Currently, the Watson Lane monitor 2015-2017 quality-assured and certified SO2 design value is below the 1-hour NAAQS at 31 ppb, EPA expects the Area to show attainment of the 2010 standard by the statutory attainment date. EPA proposes to concur and concludes that the plan provides for RFP, as specified in the General Preamble and the SO2 nonattainment guidance, and therefore satisfies the requirements of CAA section 172(c)(2).

    27 According to CAMD data, annual SO2 emissions have dropped, from 28,149 tons in 2014 to 14,082 tons in 2015. Subsequent years have reported further reductions with 4,335 tons in 2016 and 3,040 tons in 2017. The Watson Lane monitor (AQS ID: 21-111-0051), located less than 2 km east of the Mill Creek facility, recorded decreasing SO2 concentrations from an annual 99th percentile value of 148.6 ppb in 2014, 54.2 ppb in 2015, 26.1 ppb in 2016 and 13.7 ppb in 2017.

    F. Contingency Measures

    As noted above, EPA's SO2 nonattainment guidance describes special features of SO2 planning that influence the suitability of alternative means of addressing the requirement in section 172(c)(9) for contingency measures for SO2, such that an appropriate means of satisfying this requirement is for the Commonwealth to have a comprehensive enforcement program that identifies sources of violations of the SO2 NAAQS and to undertake an aggressive follow-up for compliance and enforcement. Kentucky's plan provides for satisfying the contingency measure requirement in this manner. Jefferson County is authorized by Kentucky Revised Statutes Chapter 77 to ensure that control strategies, including reasonably achievable control technology and contingency measures, necessary to attain the standard by the applicable attainment date are implemented in the nonattainment area. Kentucky's proposed SIP revision has been developed in accordance with this authority. In addition, if a monitored exceedance of the SO2 NAAQS occurs in the future and all sources are found to comply with applicable SIP and permit emission limits, Jefferson County will perform the necessary analysis to determine the cause of the exceedance, and determine what additional control measures are necessary to impose on the Area's stationary sources to continue to maintain attainment of the SO2 NAAQS. Jefferson County will inform any affected stationary sources of SO2 of the potential need for additional control measures. If there is a violation of the NAAQS for SO2 within the nonattainment area, then Jefferson County will notify the stationary source that the potential exists for a NAAQS violation. Within six months of notification, the source must submit a detailed plan of action specifying additional control measures to be implemented no later than 18 months after the notification. The additional control measures will be submitted to the EPA for approval and incorporation into the SIP. EPA preliminarily concurs and proposes to approve Kentucky's plan for meeting the contingency measure requirement as described above and in the proposed SIP revision.

    V. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference into the Jefferson County portion of the Kentucky SIP, a SO2 emission limit and specified compliance conditions established in title V permit 145-97-TV(R3) for each coal-fired emissions unit at the LG&E Mill Creek Generating station in Jefferson County nonattainment area. Specifically, EPA is proposing to incorporate into the Jefferson County portion of the Kentucky SIP a 0.20 lb/MMBtu 30-day SO2 emission limit for each EGU (U1, U2, U3 and U4) and operating and compliance conditions (monitoring, recordkeeping and reporting) all established at Plant-wide Specific condition S1-Standards, S2-Monitoring and Record Keeping and S3-Reporting in title V permit 145-97-TV(R3) for EGU U1, U2, U3 and U4. The SO2 emission standards specified in the permit are the basis for the attainment demonstration. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at EPA Region 4 office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

    VI. EPA's Proposed Action

    EPA is proposing to approve Kentucky's SO2 nonattainment SIP submission, which the Commonwealth submitted to EPA on June 23, 2017, for attaining the 2010 1-hour SO2 NAAQS for the Jefferson County nonattainment area and for meeting other nonattainment area planning requirements. EPA has preliminarily determined that the nonattainment SIP meets the applicable requirements of sections 110, 172, 191 and 192 of the CAA and nonattainment regulatory requirements at 40 CFR part 51. This SO2 nonattainment plan includes Kentucky's attainment demonstration for the Jefferson County nonattainment area and other nonattainment requirements for RFP, RACT/RACM, NNSR, base-year and projection-year emission inventories, enforceable emission limits and control measures and compliance parameters, and contingency measures. Additionally, EPA is proposing to approve into the Jefferson County portion of the Kentucky SIP, Mill Creek's enforceable SO2 emission limits and compliance parameters (monitoring and reporting) established at Plant-wide Specific condition S1-Standards, S2-Monitoring and Record Keeping and S3-Reporting established in title V permit 145-97-TV(R3).

    VII. Statutory and Executive Orders

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

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

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

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

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

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

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

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

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

    • 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.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by Reference, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: November 1, 2018. Onis “Trey” Glenn, III, Regional Administrator, Region 4.
    [FR Doc. 2018-24582 Filed 11-8-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2018-0696; FRL-9986-28-OAR] RIN 2060-AU33 Adopting Subpart Ba Requirements in Emission Guidelines for Municipal Solid Waste Landfills; Correction AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule; correction.

    SUMMARY:

    This document corrects the preamble to a proposed rule published in the Federal Register on October 30, 2018, regarding the implementing regulations that govern the Emission Guidelines for Municipal Solid Waste (MSW) Landfills. The listed docket number in that preamble was incorrect. Any comments received prior to this correction have been redirected to the correct docket.

    DATES:

    Comments. Comments must be received on or before December 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    For questions about this proposed action, contact Andrew Sheppard, Sector Policies and Programs Division (E143-03), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-4161; fax number: (919) 541-0516; and email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    In proposed rule FR 2018-23700, in the issue of Tuesday, October 30, 2018, on page 54527, in the third column, correct the docket numbers listed in the ADDRESSES section to read:

    ADDRESSES: Comments. Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2018-0696 at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. See SUPPLEMENTARY INFORMATION for detail about how the EPA treats submitted comments. Regulations.gov is our preferred method of receiving comments. However, the following other submission methods are also accepted:

    Email: [email protected] Include Docket ID No. EPA-HQ-OAR-2018-0696 in the subject line of the message.

    Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-2018-0696.

    Mail: To ship or send mail via the United States Postal Service, use the following address: U.S. Environmental Protection Agency, EPA Docket Center, Docket ID No. EPA-HQ-OAR-2018-0696, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.

    Hand/Courier Delivery: Use the following Docket Center address if you are using express mail, commercial delivery, hand delivery, or courier: EPA Docket Center, EPA WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. Delivery verification signatures will be available only during regular business hours.”

    In proposed rule FR 2018-23700, in the issue of Tuesday, October 30, 2018, on page 54528, make the following correction to the docket numbers listed in the SUPPLEMENTARY INFORMATION section. In the second paragraph of the section, in the first column, revise the docket number in the first sentence to say, “Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2018-0696.”

    In the third paragraph of the section, in the first column, revise the docket number in the first sentence to say, “Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2018-0696.”

    In the sixth paragraph of the section, in the third column, revise the docket number in the last sentence to say, “Send or deliver information identified as CBI only to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2018-0696.”

    Dated: November 2, 2018. William L. Wehrum, Assistant Administrator, Office of Air and Radiation.
    [FR Doc. 2018-24581 Filed 11-8-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES 45 CFR Parts 155 and 156 [CMS-9922-P] RIN 0938-AT53 Patient Protection and Affordable Care Act; Exchange Program Integrity AGENCY:

    Centers for Medicare & Medicaid Services (CMS), HHS.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule would revise standards relating to oversight of Exchanges established by states, periodic data matching frequency and authority, and the length of a consumer's authorization for the Exchange to obtain updated tax information. This proposed rule would also propose new requirements for certain issuers related to the collection of a separate payment for the premium portion attributable to coverage for certain abortion services. Many of these proposed changes would help strengthen Exchange program integrity.

    DATES:

    Comments: To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on January 8, 2019.

    ADDRESSES:

    In commenting, please refer to file code CMS-9922-P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.

    Comments, including mass comment submissions, must be submitted in one of the following three ways (please choose only one of the ways listed):

    1. Electronically. You may submit electronic comments on this regulation to http://www.regulations.gov. Follow the “Submit a comment” instructions.

    2. By regular mail. You may mail written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-9922-P, P.O. Box 8016, Baltimore, MD 21244-8010.

    Please allow sufficient time for mailed comments to be received before the close of the comment period.

    3. By express or overnight mail. You may send written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-9922-P, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.

    For information on viewing public comments, see the beginning of the SUPPLEMENTARY INFORMATION section.

    FOR FURTHER INFORMATION CONTACT:

    Emily Ames, (301) 492-4246, or Christine Hammer, (202) 260-6089, for general information.

    SUPPLEMENTARY INFORMATION:

    Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following website as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that website to view public comments.

    I. Executive Summary

    American Health Benefit Exchanges, or “Exchanges” (also called “Marketplaces”) are entities established under the Patient Protection and Affordable Care Act (Pub. L. 111-148), as amended by the Heath Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) (collectively referred to as PPACA) through which qualified individuals and qualified employers can purchase health insurance coverage. Exchanges that were established by states (State Exchanges) include State-based Exchanges (SBEs) which perform eligibility and enrollment functions, as well as State-based Exchanges on the Federal platform (SBE-FPs) that utilize the Federally-facilitated Exchange's infrastructure to perform eligibility and enrollment functions. Many individuals who enroll in qualified health plans (QHPs) through individual market Exchanges are eligible to receive a premium tax credit (PTC) to reduce their costs for health insurance premiums, and receive reductions in required cost-sharing payments to reduce out-of-pocket expenses for health care services. Eligible individuals can receive the estimated amount of the PTC on an advance basis, known as advance payments of the premium tax credit (APTC), in accordance with section 1412 of the PPACA.

    Strengthening program integrity with respect to subsidy payments in the individual market is a top priority of this Administration. Key areas of focus include—(1) ensuring that eligible enrollees receive the correct amount of APTC and cost-sharing reduction (CSR) (as applicable), and do not receive APTC or CSRs for abortion coverage and/or services for which such payments are not available under section 1303 of the PPACA; (2) conducting effective and efficient monitoring and oversight of State Exchanges to ensure that consumers are receiving the correct amount of APTC and CSRs in SBEs, and that State Exchanges are meeting the standards of federal law in a transparent manner; and (3) protecting the interests of taxpayers, and consumers, and the financial integrity of Federally-facilitated Exchanges (FFEs) through oversight of health insurance issuers, including ensuring compliance with Exchange requirements, such as maintenance of records and participation in investigations and compliance reviews, and with the requirements of section 1303 of the PPACA.

    The Department of Health and Human Services (HHS) has recently made significant strides in these areas. For example, we have implemented policy-based payments in the FFEs and almost all of the SBEs, a critical system change across Exchanges and issuers that ensures the data used to generate APTC and CSR payments to issuers are verified and associated with particular enrollees.

    We also recently implemented pre-enrollment verification of eligibility for applicable individual market special enrollment periods for all Exchanges served by the federal eligibility and enrollment platform (the HealthCare.gov platform), ensuring that only those who qualify for special enrollment periods receive them. In the HHS Notice of Benefit and Payment Parameters for 2019 Final Rule (83 FR 16930) (April 17, 2018), we established a policy to require documentary evidence for certain consumers who attest to income that is significantly higher than the amount found in the Exchange's income data. This new check will be conducted for applicants for whom trusted data sources (such as the Internal Revenue Service, the Social Security Administration, the Department of Homeland Security, Veterans Health Administration, Peace Corps, the Department of Defense, Experian, and Carahsoft).1 This new check will not be performed with respect to non-citizen applicants who are ineligible for Medicaid based on their immigration status, as these applicants may be statutorily eligible for APTC with annual household income below 100 percent of the FPL. An accurate eligibility determination is critical for consumers near this threshold to ensure APTC is not paid on behalf of consumers who are statutorily ineligible for APTC.

    1 One criterion for eligibility for APTC is an income equal to or greater than 100 percent but not greater than 400 percent of an amount equal to the poverty line based on family size.

    In late 2017, we developed an innovative approach to provide additional notification to tax filers who, based on Internal Revenue Service (IRS) data, had received APTC for a prior benefit year but failed to reconcile these payments on their tax returns. The notices explained that the tax filer was required to take action to reconcile these prior APTC payments, or APTC associated with all enrollees for whom the individual is the tax filer would be terminated. While HHS was already contacting these affected households through its standard annual notification processes, this supplemental notice provided further clarification and instruction for the tax filer, while adhering to IRS' protocols regarding the safe disclosure of protected federal tax information.

    We continue to explore opportunities to improve program integrity. We work on an ongoing basis on improving program oversight and procedures to conduct comprehensive audits of FFE processes to verify their integrity. These efforts further our goal of protecting consumers enrolled in FFEs and safeguarding taxpayer dollars. We review consumer complaints and allegations of fraud and abuse received by the FFE call center from insurers, as well as law enforcement and states. Additionally, we analyze data to identify issues and vulnerabilities, share relevant information with issuers, and identify administrative actions to stop bad actors and protect consumers.

    We are proposing several changes targeting these priorities. First, we are planning changes to the current periodic data matching (PDM) processes, which are the processes through which Exchanges periodically examine available data sources to identify changes that would affect enrollees' eligibility for subsidies. Second, we are planning to add an optional authorization to the Exchange application that would allow an individual to authorize the FFE to receive Medicare eligibility and enrollment information about the enrollee. If an applicant provides this authorization and elects to have the Exchange automatically terminate QHP coverage if the applicant is found to be dually enrolled, then the FFE will end enrollees' QHP coverage on their behalf in such a circumstance, even if the enrollee is not receiving APTC or CSRs. Third, we propose to specify that Exchanges must conduct PDM for Medicare, Medicaid, the Children's Health Insurance Program (CHIP), and the Basic Health Program (BHP), if applicable, at least twice a year, beginning with the 2020 calendar year, to ensure that Exchanges make adequate efforts to discontinue APTC and CSR for those who are eligible for or enrolled in other minimum essential coverage (MEC) and, therefore, are ineligible for APTC or CSRs.

    We are also proposing changes to improve program integrity related to State Exchanges. To strengthen the mechanisms and tools HHS uses in its oversight of compliance by State Exchanges with federal requirements, including eligibility and enrollment requirements under 45 CFR part 155, subparts D and E, we are proposing changes that provide further specificity to their program reporting requirements. In addition, to ensure proper eligibility determinations and enrollments in SBEs, we are proposing to clarify the scope of the annual programmatic audits that SBEs are required to conduct and submit results of annually to HHS, and include testing of SBE eligibility and enrollment transactions in the annual programmatic audits.

    Lastly, we are proposing changes related to the separate payment requirement in section 1303 of the PPACA. To align the regulatory requirements for issuer billing of the portion of the enrollee's premium attributable to certain abortion services with the separate payment requirement applicable to issuers offering coverage of these services, we are proposing changes to the billing and payment collection requirements for QHP issuers in connection with their plans offered through an individual market Exchange that include coverage for abortion services for which federal funding is prohibited.

    II. Background A. Legislative and Regulatory Overview

    Sections 1311(b) and 1321(b) of the PPACA provide that each state has the opportunity to establish an Exchange. Section 1311(b)(1) of the PPACA gives each state the opportunity to establish an Exchange that both facilitates the purchase of QHPs by individuals and families, and provides for the establishment of a Small Business Health Options Program (SHOP) that is designed to assist qualified employers in the state who are small employers in facilitating the enrollment of their employees in QHPs offered in the small group market in the state.

    Section 1313 of the PPACA describes the steps the Secretary of Health and Human Services (the Secretary) may take to oversee Exchanges' compliance with HHS standards related to Title I of the PPACA and ensure their financial integrity, including conducting investigations and annual audits.

    Section 1321(a) of the PPACA provides broad authority for the Secretary to establish standards and regulations to implement the statutory standards related to Exchanges, QHPs, and other standards of title I of the PPACA.

    Section 1321(c)(2) of the PPACA authorizes the Secretary to enforce the Exchange standards using civil money penalties (CMPs) on the same basis as detailed in section 2723(b) of the Public Health Service Act (PHS Act). Section 2723(b) of the PHS Act authorizes the Secretary to impose CMPs as a means of enforcing the individual and group market reforms contained in Part A of title XXVII of the PHS Act when a state fails to substantially enforce these provisions.

    Section 1411(c) of the PPACA requires the Secretary to submit certain information provided by applicants under section 1411(b) of the PPACA to other federal officials for verification, including income and family size information to the Secretary of the Treasury.

    Section 1411(d) of the PPACA provides that the Secretary must verify the accuracy of information provided by applicants under section 1411(b) of the PPACA for which section 1411(c) does not prescribe a specific verification procedure, in such manner as the Secretary determines appropriate.

    Section 1411(f)(1)(B) of the PPACA requires the Secretary to establish procedures to redetermine eligibility on a periodic basis, in appropriate circumstances, including for eligibility to purchase a QHP through the Exchange and for APTC and CSRs.

    Section 1411(g) of the PPACA allows the exchange of applicant information only for the limited purposes of, and to the extent necessary to, ensure the efficient operation of the Exchange, including by verifying eligibility to enroll through the Exchange and for APTC and CSRs.

    On October 30, 2013, we published a final rule entitled, “Patient Protection and Affordable Care Act; Program Integrity: Exchange, Premium Stabilization Programs, and Market Standards; Amendments to the HHS Notice of Benefit and Payment Parameters for 2014,” (78 FR 65046), to implement certain program integrity standards and oversight requirements for State Exchanges.

    Section 1303 of the PPACA, as implemented in 45 CFR 156.280, specifies standards for issuers of QHPs through the Exchanges that cover abortion services for which public funding is prohibited (also referred to as non-Hyde abortion services). The statute and regulations establish that, unless otherwise prohibited by state law, a QHP issuer may elect to cover such non-Hyde abortion services. If an issuer elects to cover such services under a QHP sold through an individual market Exchange, the issuer must take certain steps to ensure that no PTC or CSR funds are used to pay for abortion services for which public funding is prohibited. One such step is that individual market Exchange issuers must determine the amount of, and collect, from each enrollee, a “separate payment” for an amount equal to the actuarial value of the coverage for abortions for which public funding is prohibited,2 which must be no less than $1 per enrollee per month. QHP issuers must also segregate funds for non-Hyde abortion services collected through this payment into a separate allocation account used exclusively to pay for non-Hyde abortion services.

    2 Section 1303 also specifies how such actuarial value is to be calculated.

    In the 2012 Exchange Establishment Rule, we codified the statutory provisions of section 1303 of the PPACA in regulation at 45 CFR 156.280. On February 27, 2015, we published the Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2016, (80 FR 10750) (herein after referred to as the 2016 Payment Notice) providing guidance regarding acceptable billing and premium collection methods for the portion of the consumer's total premium attributable to non-Hyde abortion coverage for purposes of satisfying the statutory separate payment requirement.

    B. Stakeholder Consultation and Input

    HHS has consulted with stakeholders on policies related to the operation of Exchanges. We have held a number of listening sessions with consumers, providers, employers, health plans, the actuarial community, and state representatives to gather public input, with a particular focus on risks to the individual and small group markets, and how we can alleviate burdens facing patients and issuers. We consulted with stakeholders through regular meetings with the National Association of Insurance Commissioners, regular contact with State Exchanges through the Exchange Blueprint process and ongoing oversight and technical assistance engagements, and meetings with Tribal leaders and representatives, health insurance issuers, trade groups, consumer advocates, employers, and other interested parties.

    III. Provisions of the Proposed Regulations A. Exchange Establishment Standards and Other Related Standards Under the Affordable Care Act 1. Functions of an Exchange (§ 155.200)

    Section 155.200 of the PPACA establishes the functions that an Exchange must perform. Section 155.200(c) of the PPACA specifies that the Exchange must perform oversight and financial integrity functions, specifically that the Exchange must perform required functions related to oversight and financial integrity requirements in accordance with section 1313 of the PPACA. HHS interprets this requirement broadly to include program integrity functions related to protecting against fraud, waste, and abuse, including functions not explicitly identified in section 1313 of the PPACA. We believe SBEs have generally interpreted this requirement broadly as well, as evidenced by their engagement in activities designed to combat fraud and abuse related to the Exchange.

    However, questions about the breadth of this function have arisen when Exchanges have sought to understand what uses and disclosures of personally identifiable information (PII) are permitted under § 155.260.3 Specifically, we have received questions about whether Exchanges are permitted under § 155.260 to disclose applicant PII to certain entities, such as the state departments of insurance, when investigating fraudulent behavior related to Exchange enrollments on the part of agents and brokers. We believe that use and disclosure related to Exchange program integrity efforts, like combatting fraud, currently fall under § 155.200(c), but believe the regulation is not as clear as it could be. Therefore, we propose to revise § 155.200(c) to clarify that the Exchanges must perform oversight functions generally, and cooperate with oversight activities, in accordance with section 1313 of the PPACA and as required under 45 CFR part 155, including overseeing its Exchange programs, Navigators, agents, brokers, and other non-Exchange entities as defined in § 155.260(b). Because this change is a clarification and not a new function, we do not believe it would impose additional burdens on State Exchanges, but instead would help resolve questions about whether states have the necessary tools and authority to enable them to effectively oversee and combat potentially fraudulent behavior. We seek comment on this proposal, including with respect to our understanding of the potential imposition of additional burden on State Exchanges.

    3 Section 155.260 limits an Exchange's use and disclosure of PII when an Exchange creates or collects personally identifiable information for the purposes of determining eligibility for enrollment in a qualified health plan; determining eligibility for other insurance affordability programs, as defined in § 155.300; or determining eligibility for exemptions from the individual shared responsibility provisions in section 5000A of the Code. One of the permitted uses and disclosures is for the Exchange to carry out the functions described in § 155.200.

    2. Verification Process Related to Eligibility for Insurance Affordability Programs (§ 155.320)

    Currently, under § 155.330, Exchanges are required to periodically examine available data sources to identify, with respect to enrollees on whose behalf APTC or CSRs are being paid, eligibility or enrollment determinations for Medicare, Medicaid, CHIP, or the BHP, if a BHP is operating in the service area of the Exchange. Individuals identified as enrolled both in Exchange coverage with or without APTC or CSRs and one of these other forms of coverage are referred to as dually enrolled consumers.

    If a consumer is eligible for premium-free Medicare Part A or enrolled in Medicare Part A or Part C (also known as Medicare Advantage), all of which qualify as MEC, he or she is not eligible to receive APTC or CSRs to help pay for an Exchange plan or covered services.

    The Secretary has broad authority under section 1321(a) of the PPACA to establish regulations setting standards to implement the statutory requirements under title I of the PPACA, including with respect to the establishment and operation of Exchanges, the offering of QHPs through the Exchanges, the establishment of statutory reinsurance and risk adjustment programs, and such other requirements as the Secretary determines appropriate. Additionally, section 1411(g) of the PPACA allows the exchange of certain applicant information as necessary to ensure the efficient operation of the Exchange, including verifying eligibility to enroll in coverage through the Exchange and to receive APTC or CSRs.

    Section 155.320(b)(2) specifies that the disclosure to HHS of information regarding eligibility for and enrollment in a health plan that is a government program, which may be considered protected health information (PHI), is expressly authorized for the purposes of verification of applicant eligibility for MEC as part of the eligibility determination process for APTC or CSRs. Section 155.430(b)(1)(ii) requires an Exchange to provide an opportunity at the time of plan selection for an enrollee to choose to remain enrolled in a QHP if he or she becomes eligible for other MEC, or to terminate QHP coverage if the enrollee does not choose to remain enrolled in the QHP upon completion of the redetermination process. As such, we added language to the existing single, streamlined application used by Exchanges using the federal eligibility and enrollment platform to allow consumers to authorize the Exchange to obtain eligibility and enrollment data and, if desired, to end their QHP coverage if the Exchange finds that the consumer has become eligible for or enrolled in other qualifying coverage, such as Medicare, Medicaid/CHIP, or BHP, during periodic checks.

    In addition, for plan years beginning with the 2020 plan year, we also plan to add a new authorization to the single, streamlined application used by Exchanges using the federal eligibility and enrollment platform, which will meet Health Insurance Portability and Accountability Act of 1996 (HIPAA) (Pub. L. 104-191) standards regarding how one's PHI is collected and used. This new authorization will expand the current scope of Medicare PDM to individuals in the Exchange population not receiving financial assistance who authorize the FFE to conduct certain PDM for them. Specifically, this new authorization will allow applicants or QHP enrollees, whether or not they have applied for or are receiving APTC or CSRs, to authorize the Exchange, when conducting Medicare PDM, to request PHI from HHS such as their name, Social Security Number, Medicare eligibility or enrollment status, and other data elements the Exchange may determine necessary, to allow the Exchange to determine whether the consumer is simultaneously enrolled in Medicare and, if requested, to act on the enrollee's behalf to terminate QHP coverage in cases of dual enrollment. We note that, because entitlement to premium-free Medicare Part A is based on age and information held by the Social Security Administration (that is, the number of quarters of coverage toward a Social Security benefit under Title II of the Act), the Exchange will not be able to identify through this process any consumer who is eligible for premium-free Part A; we encourage all consumers who are age 65 and older to apply with the Social Security Administration to receive an eligibility determination with respect to Medicare. Our adoption of this new optional authorization to access Medicare enrollment information does not extend to access to Medicaid, CHIP, or BHP information for applicants who are not receiving APTC or CSRs, because these programs are targeted to relatively lower income consumers and we would not expect to identify a significant number of enrollees dually enrolled in one of these programs and an unsubsidized QHP through the Exchange.

    For consumers who request voluntary termination upon a finding of dual enrollment, the Exchange would terminate coverage after following the current PDM process outlined in § 155.330(e)(2)(i), which requires the Exchange to provide notice of the updated information the Exchange has found and a 30-day period for the enrollee to respond. For example, upon receiving the required notice, the enrollee could (1) return to the Exchange and terminate his or her QHP coverage, (2) revoke the prior authorization for the Exchange to terminate his or her QHP coverage in the event dual enrollment is found, so that he or she would remain enrolled both in the QHP and in Medicare, or (3) notify the Exchange that he or she is not eligible for, or enrolled in, Medicare. For consumers who revoke their prior authorization for the Exchange to terminate their QHP enrollment where the Exchange finds the enrollee is eligible for or enrolled in Medicare, or who disagree that they are eligible for or enrolled in Medicare, the Exchange would only proceed to terminate the enrollee's APTC and CSRs, and not his or her enrollment in QHP coverage through the Exchange, using the process specified in § 155.330(e)(2)(i). Again, as the Exchange cannot identify through this process those consumers who are eligible for but not enrolled in premium-free Part A, we encourage all consumers who are 65 and older to apply with the Social Security Administration to receive an eligibility determination with respect to Medicare.

    Based on our experience performing Medicare PDM, we believe that many consumers are inadvertently enrolled in Medicare and QHP coverage at the same time, and that their dual enrollment does not represent an informed decision. For example, we have found that, once consumers are informed of the consequences of their dual enrollment, such as paying full price for a QHP and risk for financial penalties for delaying Medicare Part B enrollment, the majority of consumers end their QHP coverage shortly thereafter. Furthermore, our own internal analyses show that the majority of QHP enrollees who become dually enrolled do so by aging into Medicare and failing to terminate the APTC or CSRs they are receiving through the Exchange (and, if desired, their Exchange coverage itself) during their Medicare initial enrollment period. We believe that Exchanges should play an important role in helping to ensure that consumers, regardless of whether the consumer has applied for, or is receiving, APTC or CSRs through the Exchange, are aware of their dual enrollment, the fact that their QHP coverage may duplicate coverage available to them through Medicare at potentially lower expense, and their potential risk for tax liability for APTC received during months of overlapping coverage (for consumers receiving APTC) or financial penalties (such as the Medicare Part B late enrollment penalty if they delay enrolling in Medicare during their initial eligibility period).

    We believe these changes will support HHS's program integrity efforts regarding the Exchanges by helping promote a balanced risk pool for the individual market as Medicare and Medicaid/CHIP beneficiaries tend to be higher utilizers of medical services, ensuring that consumers are accurately determined eligible for APTC and income-based CSRs, and safeguarding consumers against enrollment in unnecessary or duplicative coverage. Such unnecessary or duplicative coverage, coupled with typically higher utilization, generally results in higher premiums across the individual market, leading to unnecessarily inflated expenditures of federal funds on PTC for taxpayers eligible for PTC in the individual market. We also encourage SBEs and enhanced direct enrollment partners to adopt these changes if they are not already using the single, streamlined application. We seek comment on these plans.

    3. Eligibility Redetermination During a Benefit Year (§ 155.330)

    In accordance with § 155.330(d), Exchanges must periodically examine available data sources to determine whether enrollees in a QHP through an Exchange with APTC or CSRs have been determined eligible for or enrolled in other qualifying coverage through Medicare, Medicaid, CHIP, or the BHP, if applicable. HHS has not previously defined “periodically.” Currently, FFEs conduct Medicare PDM and Medicaid/CHIP PDM twice a year. To ensure that all Exchanges are taking adequate steps to check for enrollees who have become eligible for or enrolled in these other forms of MEC, and to terminate APTC and CSRs if so, we propose to add a clearer requirement to conduct Medicare, Medicaid/CHIP, and BHP, if applicable, periodic data matching with regular frequency. Specifically, we propose to add paragraph (d)(3) to specify that Exchanges conduct Medicare, Medicaid/CHIP, and BHP, if applicable, PDM at least twice a year, beginning with the 2020 calendar year. We believe this timeframe will give Exchanges that are not already performing these PDM checks twice a year sufficient time to implement any business, operational, and information technology changes needed to comply with the proposed new requirement. Based on HHS's experience, Exchanges should consider spacing Medicare, Medicaid/CHIP, and BHP, if applicable, PDM checks evenly throughout the year, which we believe would help ensure the greatest number of potentially affected enrollees are identified and notified. Further, we do not anticipate that the proposal—to apply Medicare PDM to those enrollees who are not receiving APTC/CSRs but authorize the Exchange to receive Medicare enrollment information—would add significant costs to performing Medicare PDM. Based on HHS's experience, the dually enrolled unsubsidized population is significantly smaller than the population receiving APTC/CSRs. We believe this policy would likely reduce QHP premiums and improve program integrity for all Exchanges, since Medicare and Medicaid/CHIP beneficiaries tend to have a higher risk profile than a typical Exchange enrollee and, therefore, may have negative impacts on the risk pool because of the typically increased utilization of services expected for these populations, which include significant numbers of older and disabled beneficiaries or poorer health outcomes associated with lower income statuses.4 As noted above, this negative effect on the risk pool likely results in higher premiums across the individual market, leading to increased expenditures of federal funds on PTC for taxpayers eligible for PTC resulting from unnecessary or duplicative coverage. So that the FFEs and SBEs may prioritize the implementation of the proposed requirement to conduct PDM for Medicare, Medicaid, CHIP, and BHP (if applicable) eligibility or enrollment at least twice yearly, we are not proposing to require Exchanges to perform PDM for death at least twice in a calendar year. We will consider whether to require this check to be performed at a particular frequency through future rulemaking.

    4 For example, see Urban Institute and Center on Society and Health, How Are Income and Wealth Linked to Health and Longevity? (April 2015), available at https://www.urban.org/sites/default/files/publication/49116/2000178-How-are-Income-and-Wealth-Linked-to-Health-and-Longevity.pdf.

    Since most SBEs have shared, integrated eligibility systems with their respective Medicaid programs, Medicaid/CHIP and BHP, if applicable, PDM requirements may be met differently for SBEs than for the FFEs. While there is some variation among SBEs in their Medicaid/CHIP and BHP, if applicable, PDM processes, most SBEs have implemented fully integrated eligibility systems where the design of the system mitigates risk of dual enrollment in, or inconsistent eligibility results regarding, APTC/CSRs and Medicaid/CHIP and BHP, if applicable, coverage by having one eligibility rules engine for eligibility determinations for all these programs. In these SBEs, an individual cannot be enrolled in both a QHP through the Exchange with APTC/CSRs, and Medicaid/CHIP or BHP, if applicable, coverage, at any given time. At paragraph (d)(3), we propose to specify that we will deem these SBEs to be in compliance with the requirement to perform Medicaid/CHIP PDM or BHP PDM, if applicable. SBEs that do not have fully integrated eligibility systems for APTC/CSRs and Medicaid/CHIP would be required to perform Medicaid/CHIP PDM at least twice a year. Similarly, SBEs in states that have implemented the BHP, but where the BHP is not integrated into the state's shared eligibility system, would be required to perform BHP PDM at least twice a year. We anticipate most SBEs will meet or exceed the proposed requirements for Medicaid/CHIP PDM and BHP PDM, if applicable, based on current or planned operations for calendar year 2018, as reported to us through the State-based Marketplace Annual Reporting Tool and through technical assistance engagements. Therefore, we anticipate that the proposed requirement to conduct Medicaid/CHIP PDM and BHP PDM, if applicable, at least twice a year would not result in a significant administrative burden for SBEs that are not deemed to be in compliance (and no administrative burden for those that are so deemed).

    Although we believe that compliance by SBEs with these proposed requirements is critically important for program integrity, we are not proposing specific penalties if SBEs do not comply. However, we note that under current authority HHS requires a SBE to take corrective action if it is not complying with federal guidance and regulations. We utilize specific oversight tools (SMART, programmatic audits, etc. as described in the preamble to § 155.1200) to identify issues with, and place corrective actions on Exchanges, and provide technical assistance and ongoing monitoring to track those actions until the Exchange comes into compliance.

    Additionally, under section 1313(a)(4) PPACA, if HHS determines that an Exchange has engaged in serious misconduct with respect to compliance with Exchange requirements, it has the option to rescind up to 1 percent of payments due a state under any program administered by HHS until it is resolved. These existing authorities would apply to the proposed periodic data matching requirements in § 155.330(d). If HHS determines it is necessary to apply this authority due to non-compliance by an Exchange with § 155.330(d), HHS would also determine the HHS-administered program from which it will rescind payments that are due to that state.

    Lastly, we propose to make a technical correction in § 155.330(d)(1) by adding an additional reference to the process and authority in § 155.320(b). This reference was omitted previously, but the requirements in § 155.320(b), specifying that Exchanges must verify whether an applicant is eligible for MEC other than through an eligible employer-sponsored plan using information obtained by transmitting identifying information specified by HHS to HHS for verification purposes, apply to the PDM process in § 155.330.

    4. General Program Integrity and Oversight Requirements (§ 155.1200)

    As section 1311 of the PPACA Exchange Establishment grant program has come to a conclusion and State Exchanges are financially self-sustaining, HHS has a need for strengthening the mechanisms and tools for overseeing SBE and SBE-FP ongoing compliance with federal requirements for Exchanges, including eligibility and enrollment requirements under 45 CFR part 155.

    HHS approves or conditionally approves a state to establish a State Exchange (either an SBE or SBE-FP) based on an assessment of a state's attested compliance with statutory and regulatory rules. Once approved or conditionally approved, State Exchanges must meet specific program integrity and oversight requirements specified at section 1313(a) of the PPACA, §§ 155.1200 and 155.1210. These requirements provide HHS with the authority to oversee the Exchanges after their establishment. Currently, annual reporting requirements for State Exchanges at § 155.1200(b) include the annual submission of: (1) A financial statement in accordance with generally accepted accounting principles (GAAP); (2) eligibility and enrollment reports; and (3) performance monitoring data.

    Additionally, under § 155.1200(c), each State Exchange is required to contract with an independent external auditing entity that follows generally accepted governmental auditing standards (GAGAS) to perform annual independent external financial and programmatic audits. State Exchanges are required to provide HHS with the results of the annual external audits, including corrective action plans to address any material weaknesses or significant deficiencies identified by the auditor. All corrective action plans are monitored by HHS until closed. Currently, the audits must address compliance with all Exchange requirements under 45 CFR part 155.

    HHS designed and developed the State-based Marketplace Annual Reporting Tool (SMART) in 2014 to assist Exchanges in conducting a defined set of oversight activities. The SMART was designed to facilitate State Exchanges' reporting to HHS on how they are meeting federal program requirements and operational requirements set forth in statute, regulations, and applicable guidance that implements the statutory and regulatory requirements, including reporting compliance with Federal eligibility and enrollment program requirements under 45 CFR 155 subparts D and E. The SMART, thus, enables HHS to evaluate and monitor State Exchange progress in coming into compliance with federal requirements where needed. Since then, HHS has come to utilize the SMART, along with the annual programmatic and financial audit reports, as primary oversight tools for identifying and addressing State Exchange non-compliance issues. HHS requires State Exchanges to take corrective actions to address issues that are identified through the SMART and annual programmatic and financial audits, and HHS monitors the implementation of the corrective actions. We propose to modify § 155.1200(b)(2) to reflect that HHS requires State Exchanges to submit annual compliance reports (such as the SMART), that encompass eligibility and enrollment reporting, but also include reporting on compliance across other Exchange program requirements under 45 CFR part 155. We also propose to modify § 155.1200(b)(1) to eliminate the April 1st date in which states must provide a financial statement to HHS, to provide HHS the flexibility to align the financial statement deadline with the SMART deadline, which is set annually by HHS. Because we are proposing to remove the April 1st date, but intend to maintain the requirement that State Exchanges submit the required reports by a deadline, we also propose to modify the introductory text to § 155.1200(b) to specify that State Exchanges must provide the required annual reporting by deadlines to be set by HHS.

    We propose to retain the requirement at § 155.1200(c) that an annual programmatic audit be conducted by SBEs and SBE-FPs, but make a minor change from “state” to “State Exchanges” to be consistent and clear on the entities to which this rule applies. We also propose to add specificity to the annual programmatic audit requirement by proposing a clarification of § 155.1200(d)(2) to make clear that HHS may specify or target the scope of a programmatic audit to address compliance with particular Exchange program areas or requirements. This would provide HHS with the ability to specify those Exchange functions that are most pertinent to a particular State Exchange model (SBE or SBE-FP) and need to be regularly included in the audit; target those Exchange functions most likely to impact program integrity, such as eligibility verifications; and reduce burden on State Exchanges where possible. In addition, we propose to modify § 155.1200(d) by replacing existing paragraph (d)(4) with new paragraphs (d)(4) and (5). These requirements specify that SBEs must ensure that the independent audits implement testing procedures or other auditing procedures that assess whether an SBE is conducting accurate eligibility determinations and enrollment transactions under 45 CFR 155 subparts D and E. Such auditing procedures include the use of statistically valid sampling methods in the testing or auditing procedures.

    We believe these proposed changes will strengthen our programmatic oversight and the program integrity of State Exchanges, while providing flexibility for HHS in the collection of information. Through the Paperwork Reduction Act (PRA) process, we are able to make updates and refinements to the SMART reporting tool to align with our oversight and program integrity priorities for Exchanges as they evolve. In addition, allowing HHS to specify the scope of the programmatic audit at § 155.1200(d)(2) would provide us the ability to target our oversight to specific Exchange program requirements based on the particular State Exchange model, our program integrity priorities, and the goal of reducing burden on State Exchanges where possible. For instance, this would allow the audits to focus on SBE compliance with Exchange eligibility and enrollment requirements in 45 CFR 155 subparts D and E, and SBE-FP compliance with Exchange requirements in 45 CFR 155 subpart C. We believe this approach will provide HHS and states with greater insight into SBE and SBE-FP compliance with federal standards in a more cost-effective manner. We believe these two tools, state reporting and independent testing, coupled with our ongoing oversight activities would strengthen program integrity in State Exchanges.

    We believe this approach would allow HHS to identify State Exchange non-compliance issues with more precision and efficacy. It would also allow HHS to provide more effective, targeted technical assistance to State Exchanges in developing corrective action plans to address issues that are identified, thus mitigating the need for more drastic or severe enforcement actions against a State Exchange. We believe this approach can reduce administrative burden on State Exchanges while maintaining the traditional role of State Exchanges in managing and operating their Exchanges, with HHS maintaining its role of overseeing State Exchange compliance with federal requirements through structured reporting processes. We seek comment on these proposals.

    B. Health Insurance Issuer Standards Under the Affordable Care Act, Including Standards Related to Exchanges Segregation of Funds for Abortion Services (§ 156.280)

    Since 1976, the Congress has included language, commonly known as the Hyde Amendment, in the Labor, Health and Human Services, Education and Related Agencies appropriations legislation.5 The Hyde Amendment as currently in effect permits federal funds to be used for abortion services only in the limited cases of rape, incest, or if a woman suffers from a life-threatening physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed (Hyde abortion coverage). The Hyde Amendment prohibits the use of federal funds for abortion coverage in instances beyond those limited circumstances (non-Hyde abortion coverage). Consistent with the Hyde Amendment, section 1303(b)(2) of the PPACA prohibits the issuer of a QHP that includes non-Hyde abortion coverage from using any amount attributable to PTC (including APTC) or CSRs (including advance payments of those funds to the issuer, if any) for abortions for which federal funds appropriated for HHS are prohibited, “based on the law as in effect as of the date that is 6 months before the beginning of the plan year involved.” 6

    5 Accordingly, the Hyde Amendment is not permanent Federal law, but applies only to the extent reenacted by Congress from time to time in appropriations legislation.

    6 Section 1303(b)(1)(B)(I) of the PPACA.

    Section 1303 of the PPACA outlines specific accounting and notice requirements that QHPs covering non-Hyde abortion services on the Exchanges must follow to ensure that no federal funding is used to pay for those services. Under section 1303(b)(2)(B) of the PPACA, as implemented in § 156.280(e)(2)(i), QHP issuers must collect a “separate payment,” from each enrollee in a plan “without regard to the enrollee's age, sex, or family status,” for an amount equal to the greater of the actuarial value of the coverage for abortions for which public funding is prohibited or $1 per enrollee per month. Section 1303(b)(2)(D) of the PPACA, implemented in § 156.280(e)(4), provides that the estimation is to be determined on an average actuarial basis and that QHP issuers may take into account the impact on overall costs of the inclusion of such coverage, but may not take into account any cost reduction estimated to result from such services, including prenatal care, delivery, or postnatal care. Section 1303(b)(2)(D) of the PPACA as implemented in § 156.280(e)(4) further states that QHP issuers are to estimate these costs as if the coverage were included for the entire population covered. With respect to the “separate payment” requirement, if an enrollee's premium for coverage under the plan is paid through employee payroll deposit (or deduction) under section 1303(b)(2)(B), the separate payments “shall each be paid by a separate deposit.”

    As mentioned above, QHP issuers that offer coverage for non-Hyde abortion may not use APTC to pay for such coverage, or use CSR funds to pay for such services. Pursuant to section 1303(b)(2)(D)(ii)(III) of the PPACA, these QHP issuers may not estimate the premium attributable to the benefit to be less than $1 per enrollee per month, regardless of the actual cost of the benefit. Currently, in certain rare scenarios, the FFE system allocates an amount of APTC to a policy such that the share of the aggregate premium for which the consumer is responsible is too low to meet this minimum standard. We intend to make system changes for open enrollment for plan year 2019 to ensure that the minimum premium amount of $1 per enrollee per month is assigned to all enrollments into plans offering coverage of non-Hyde abortion, so that issuers may separately collect this amount directly from consumers for the portion of the total premium attributable to coverage of non-Hyde abortion services.

    Under section 1303(b)(3)(A) of the PPACA as implemented in § 156.280(f), QHP issuers must provide notice to enrollees as part of the Summary of Benefits and Coverage (SBC) at the time of enrollment if non-Hyde abortion services are covered by the QHP. As required under § 155.205(b)(1)(ii), each Exchange must maintain an up-to-date website that provides the SBCs. Section 147.200(a)(4) requires that individual market QHP issuers that provide the SBC electronically must place it in a prominent and readily accessible location on the QHP issuer's internet website. Additionally, pursuant to section 1303(b)(2)(C) of the PPACA, as implemented at § 156.280(e)(3), QHP issuers must segregate funds for non-Hyde abortion services collected from consumers into a separate allocation account that is to be used exclusively to pay for non-Hyde abortion services. Thus, if a QHP issuer disburses funds for a non-Hyde abortion on behalf of a consumer, it must draw those funds from the segregated allocation account. The account cannot be used for any other purpose.

    Section 1303 of the PPACA and regulations at § 156.280 do not specify the method a QHP issuer must use to comply with the separate payment requirement under section 1303(b)(2)(B)(i) of the PPACA and § 156.280(e)(2)(i). In the 2016 Payment Notice, we provided guidance with respect to acceptable methods that a QHP issuer offering non-Hyde abortion coverage on the individual market Exchange may use to comply with the separate payment requirement. We stated that the QHP issuer could satisfy the separate payment requirement in one of several ways, including by sending the enrollee a single monthly invoice or bill that separately itemizes the premium amount for non-Hyde abortion services; sending the enrollee a separate monthly bill for these services; or sending the enrollee a notice at or soon after the time of enrollment that the monthly invoice or bill will include a separate charge for such services and specify the charge. In the 2016 Payment Notice, we also stated that a consumer may make the payment for non-Hyde abortion services and the separate payment for all other services in a single transaction. On October 6, 2017, we released a bulletin that discussed the statutory requirements for separate payment, as well as this previous guidance with respect to the separate payment requirement.7

    7 CMS Bulletin Addressing Enforcement of Section 1303 of the Patient Protection and Affordable Care Act (October 6, 2017), available at https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/Section-1303-Bulletin-10-6-2017-FINAL-508.pdf.

    HHS now believes that some of the methods for billing and collection of the separate payment for non-Hyde abortion services noted as permissible in the preamble to the 2016 Payment Notice do not adequately reflect what we see as Congressional intent that the QHP issuer bill separately for two distinct (that is, “separate”) payments, one for the non-Hyde abortion services, and one for all other services covered under the policy, rather than simply itemizing these two components of a single total billed amount or notifying the enrollee, at or soon after the time of enrollment, that the monthly invoice or bill will include a separate charge for these services. Although we recognize that itemizing or providing advance notice about the amounts arguably identifies two “separate” amounts for two separate purposes, we believe that the statute contemplates issuers billing for two separate “payments” of these two amounts (for example, two different checks or two distinct transactions), consistent with the requirement on issuers in section 1303(b)(2)(B)(i) of the PPACA to collect two separate payments. HHS, thus, believes that requiring QHP issuers to separately bill the portion of the consumer's premium attributable to non-Hyde abortion services and instruct consumers to make a separate payment for this amount is a better implementation of the statutory requirement for issuers to collect a separate payment for these services.

    As such, we are proposing an amendment at § 156.280(e)(2) relating to billing and payment of the consumer's portion of the premium attributable to non-Hyde abortion services to reflect this interpretation of the statute. Specifically, we are proposing that, if these policies are finalized, as of the effective date of the final rule, QHP issuers (1) send an entirely separate monthly bill to the policy subscriber for only the portion of premium attributable to non-Hyde abortion coverage, and (2) instruct the policy subscriber to pay the portion of their premium attributable to non-Hyde abortion coverage in a separate transaction from any payment the policy subscriber makes for the portion of their premium not attributable to non-Hyde abortion coverage. We believe that these proposals would better align the regulatory requirements for QHP issuer billing of enrollee premiums with the separate payment requirement in section 1303 of the PPACA. If these proposals are finalized, QHP issuers would no longer be permitted to send the enrollee a single monthly invoice or bill that separately itemizes the premium amount for non-Hyde abortion services, or send the enrollee a notice at or soon after the time of enrollment that the monthly invoice or bill will include a separate charge for such services and specify the charge in order to meet the separate payment requirement. Instead, QHP issuers would have to send a separate bill and instruct enrollees to send a separate payment in the manner specified by the final rule.8 We invite comment on these proposals.

    8 We noted above the situation where, as a result of APTCs, the out-of-pocket premium payable by the consumer is less than $1 per enrollee per month. Under this proposed rule, and to ensure compliance with section 1303, if the QHP includes non-Hyde abortion coverage, the QHP issuer would be required to bill the consumer at least $1 per enrollee per month.

    To better align the regulatory requirements for issuer billing of enrollee premiums with the separate payment requirement in section 1303 of the PPACA, our proposal would require the QHP issuer to send this separate bill in a separate mailing with separate postage. If a QHP issuer sends bills electronically, we propose that it provide consumers with the two bills in separate emails or other electronic communications. We believe this approach will help reduce consumer confusion about receiving two separate bills in a single envelope. For example, consumers may inadvertently miss or discard a second paper bill included in a single envelope, increasing terminations of coverage for failure to pay premiums. The QHP issuer would also be required to produce an invoice or bill that is distinctly separate from the invoice or bill for the other portion of the consumer's premium that is not attributable to non-Hyde abortion coverage, whether in paper or electronic format. We solicit comment on any operational issues that may arise from this aspect of the proposed rule.

    We also seek comment on ways to mitigate any possible confusion, for example through an annual notice or standard explanatory language on each of the two monthly bills. To meet the requirements of this new proposal, QHP issuers would be required to instruct policy subscribers to pay the separately billed or invoiced portion of the premium for non-Hyde abortion coverage in a transaction separate from the transaction for payment of the other portion of the premium that is not attributable to non-Hyde abortion coverage and make reasonable efforts to collect the payment separately, such as by including a separate payment stub on each of the separately mailed bills or invoices (if sent on paper) or providing a separate payment link in the separate email or electronic communication with a separate payment field on the payment web page for each separate payment to be collected (if sending an electronic bill, or accepting electronic payments regardless of how the bills were transmitted). Under this proposal, consumer non-payment of any premium due (including non-payment of the portion of the consumer's premium attributable to non-Hyde abortion coverage) would continue to be subject to state and federal rules regarding grace periods. In the event that a policy subscriber does not follow the separate payment instructions, however, and pays the entire premium in a single transaction (both the portion attributable to non-Hyde abortion coverage, as well as the portion attributable to coverage for other services), the QHP issuer would not be permitted to refuse to accept such a combined payment on the basis that the policy subscriber did not send two checks as requested by the QHP issuer, and to then terminate the policy, subject to any applicable grace period, for non-payment of premiums. We believe that potential loss of coverage would be an unreasonable result of a consumer paying in full but failing to adhere to the QHP issuer's requested payment procedure. Under our new interpretation, a QHP issuer would thus be required to accept a combined payment, to the extent necessary to avoid this result.

    QHP issuers that do receive combined consumer premiums covering the portion attributable to non-Hyde abortion coverage as well as the portion attributable to coverage for other services in one single payment would treat the portion of the premium attributable to non-Hyde abortion services as a separate payment for which the QHP issuer would be expected to disaggregate into the separate allocation account used solely for these services. We would expect the QHP issuer in this scenario to again explain to the consumer the separate payment requirement in the law, and take steps to inform the consumer not complying with this policy that he or she should do so in future months, including documentation of such outreach and educational efforts. Again, if the consumer still declines to do so, however, the combined payment must be accepted to avoid a loss of coverage. Likewise, QHP issuers would not be permitted to refuse to accept separate premium payments paid to the issuer in a single return envelope (for example, two separate checks returned to the issuer in a single return envelope) on the basis that the consumer did not separately return each premium payment in a separate mailing. We seek comment on these proposals.

    We are also proposing a technical change, to Section 156.280(e)(2)(iii) as redesignated, to insert appropriate cross reference to the explanation of the separate payments.

    Consistent with § 156.715, HHS has broad authority to perform compliance reviews to monitor FFE issuer compliance. HHS conducts compliance reviews throughout the year, and issuer notification of selection for a review may occur at any time during the year. Detailed examples of regulatory and operational areas that will be reviewed are included in the Key Priorities for FFM Compliance Review, which is updated each year with new key oversight priorities.9 Consistent with this authority, we propose updating our compliance reviews governing QHP certification to include new reviews of FFE issuer compliance with § 156.280, including the segregation of funds requirement and the new proposals for separate billing of the portion of the consumer's premium attributable to coverage of non-Hyde abortion services as specified in this rule. FFE issuers subject to these compliance reviews should maintain all documents and records of compliance with section 1303 of the PPACA and these requirements in accordance with § 156.705, and should anticipate making available to HHS the types of records specified at § 156.715(b) that would be necessary to establish their compliance with these requirements. For example, FFE issuers subject to compliance reviews for § 156.280 should anticipate supplying HHS with documentation of their estimate of the basic per enrollee per month cost, determined on an average actuarial basis, for coverage of non-Hyde abortion services; detailed invoice and billing records demonstrating they are separately billing in a separate mailing or separate electronic communication and collecting the portion of the premium attributable to coverage of non-Hyde abortion services as specified in this rule; and appropriately segregating the funds collected from consumers into a separate allocation account that is used exclusively to pay for non-Hyde abortion services. We believe the addition of these compliance reviews will help to address remaining issuer compliance issues, if any, previously identified by the 2014 U.S. Government Accountability Office report.10 We seek comment on this proposal.

    9 CCIIO Examinations, Audits and Reviews of Issuers: Issuer Resources, available at https://www.cms.gov/CCIIO/Resources/Forms-Reports-and-Other-Resources/Exams_Audits_Reviews_Issuer_Resources-.html.

    10 U.S. Government Accountability Office, “Health Insurance Exchanges: Coverage of Non-excepted Abortion Services by Qualified Health Plans,” (Sept. 15, 2014), available at http://www.gao.gov/products/GAO-14-742R.

    As is the case with many provisions in the PPACA, states are the entities primarily responsible for implementing and enforcing the provisions in section 1303 of the PPACA related to individual market QHP coverage of non-Hyde abortion services. Section 1303(b)(2)(E)(i) of the PPACA, as implemented at § 156.280(e)(5), designates the state insurance commissioners as the entities responsible for monitoring, overseeing, and enforcing the provisions in section 1303 of the PPACA related to QHP segregation of funds for non-Hyde abortion services. However, as stated in 2017 guidance,11 where we are charged with directly enforcing these statutory requirements in the FFEs, we intend to do so fully in instances of issuer non-compliance. We call upon states that operate their own Exchanges to fully enforce these requirements as codified in the federal regulations governing the Exchanges. To the extent such a state operating its own Exchange fails to substantially enforce these requirements, HHS would expect to enforce them in the state's place. However, as states remain the primary enforcers of these requirements, we propose that HHS involvement in enforcement would be limited to ensuring that federal funds are appropriately managed. For example, HHS enforcement would be limited to instances where it becomes clear that the state department of insurance is not overseeing the requirement for the QHP issuer to determine the actuarial value of the coverage of non-Hyde abortions, to separately bill (and collect) premium of at least $1 per enrollee per month for such coverage, or to segregate funds effectively; a state department of insurance or other entity notifies HHS of suspected misuse of federal funding for coverage of non-Hyde abortion services; or the state's enforcement actions are inadequate and fail to result in compliance from the QHP issuer. The Office of Personnel Management may issue guidance related to these provisions for multi-state plan issuers.12

    11 CMS Bulletin Addressing Enforcement of Section 1303 of the Patient Protection and Affordable Care Act (October 6, 2017), available at https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/Section-1303-Bulletin-10-6-2017-FINAL-508.pdf.

    12 Section 1334(a)(6) of the PPACA requires that at least one multi-state plan in each Exchange excludes coverage of non-Hyde abortion services. Currently, no multi-state plan options cover non-Hyde abortion services. See OPM's Frequently Asked Questions: Insurance, available at https://www.opm.gov/faqs/QA.aspx?fid=fd635746-de0a-4dd7-997d-b5706a0fd8d2&pid=8313a65b-c5b8-4d58-a58f-9d81f26856a2.

    We remind issuers that pursuant to § 156.280(e)(5)(ii), any issuer offering coverage of non-Hyde abortions services on the Exchange must submit a plan to its state department of insurance that details the issuer's process and methodology for meeting the requirements of section 1303(b)(2)(C), (D), and (E) of the PPACA (hereinafter, “separation plan”) to the state health insurance commissioner. The separation plan should describe the QHP issuer's financial accounting systems, including appropriate accounting documentation and internal controls, that would ensure the segregation of funds required by section 1303(b)(2)(C), (D), and (E) of the PPACA. Issuers should refer to § 156.280(e)(5)(ii) for more information on precisely what issuers should include in their separation plans to demonstrate compliance with these requirements.

    As mentioned previously, consistent with HHS's authority under § 156.715, we propose monitoring FFE issuer compliance with the requirements under § 156.280 by requiring QHP issuers in FFEs to show documentation of compliance with the requirement to estimate the basic per enrollee per month cost, determined on an average actuarial basis, for coverage of non-Hyde abortion services and charge at least $1 per enrollee per month for such coverage, as well as with the segregation of funds requirements when undergoing compliance reviews, including detailed records and documentation demonstrating compliance with the separate billing (including mailing, as applicable) and collection requirements proposed in this rule, as well as the segregation of funds requirements. We also remind issuers offering medical QHPs in the FFEs that they must already attest to adhering to all applicable requirements of 45 CFR part 156 as part of the QHP certification application, including those requirements related to the segregation of funds for abortion services implemented in § 156.280.13 If the separate billing and premium collection proposals at § 156.280(e)(2) are finalized as proposed, issuers in the FFE completing this attestation would also attest to adhering to these new separate billing and collection requirements. As part of the QHP certification process, issuers in states with FFEs where the States perform plan management functions must also complete similar program attestations attesting to adherence with § 156.280.14 Issuers in states with SBEs that offer QHPs including non-Hyde abortion coverage should contact their state for attestation requirements as part of the QHP certification process.

    13 2019 Qualified Health Plan Issuer Application Instructions, available at: https://www.qhpcertification.cms.gov/s/2019QHPInstructionsVersion1.pdf?v=1.

    14 State Partnership Exchange Issuer Program Attestation Response Form, available at: https://www.qhpcertification.cms.gov/s/SuppDoc_SPE_Attestationsed._revised_508.pdf?v=1.

    We seek comment on these proposals.

    IV. Collection of Information Requirements

    Under the Paperwork Reduction Act of 1995 (PRA), we are required to provide 60-day notice in the Federal Register and solicit public comment before a collection of information requirement is submitted to the Office of Management and Budget (OMB) for review and approval. This proposed rule contains information collection requirements (ICRs) that are subject to review by OMB. A description of these provisions is given in the following paragraphs.

    In order to fairly evaluate whether an information collection should be approved by OMB, section 3506(c)(2)(A) of the PRA requires that we solicit comment on the following issues:

    • The need for the information collection and its usefulness in carrying out the proper functions of our agency.

    • The accuracy of our estimate of the information collection burden.

    • The quality, utility, and clarity of the information to be collected.

    • Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.

    We are soliciting public comment on each of these issues for the following sections of this document that contain ICRs:

    A. ICRs Regarding General Program Integrity and Oversight Requirements (§ 155.1200)

    The burden associated with State Exchanges meeting the proposed program integrity reporting requirements in § 155.1200 have already been assessed and encompassed through SMART currently approved under OMB control number: 0938-1244 (CMS-10507). This proposed rule does not impose any new burden or add any additional requirements to the existing collection.

    B. ICRs Regarding Segregation of Funds for Abortion Services (§ 156.280)

    In the preamble to § 156.280, we explain that the proposals to require separate issuer billing for, and collection of, the portion of the premium attributable to non-Hyde abortion coverage would be subject to future HHS compliance reviews of FFE issuers, requiring issuers in the FFE to maintain and submit records showing compliance with these requirements to HHS. We have determined that the requirements associated with compliance reviews have already been assessed and encompassed by the Program Integrity: Exchange, Premium Stabilization Programs, and Market Standards; Amendments to the HHS Notice of Benefit and Payment Parameters for 2014; Final Rule II ICR currently approved under OMB control number: 0938-1277 (CMS-10516).

    To show compliance with FFE standards and program requirements, all issuers seeking QHP certification in FFE states are required to submit responses to program attestations as part of their QHP application. This response already includes an attestation that the issuer agrees to adhere to the requirements related to the segregation of funds for abortion services implemented in § 156.280. We have determined that the requirements associated with QHP certification have already been assessed and encompassed by the Establishment of Exchanges and Qualified Health Plans; Exchange Standard for Employers approved under OMB control number 0938-1187 (CMS-10433). Therefore, proposed § 156.280(e)(2) adds no new ICRs as it relates to program attestations.

    In § 156.280(e)(2), we propose that QHP issuers must send an entirely separate monthly bill in a separate mailing or separate electronic communication to the policy subscriber for only the portion of premium attributable to non-Hyde abortion coverage, and instruct the policy subscriber to pay the portion of their premium attributable to non-Hyde abortion coverage in a separate transaction from any payment the policy subscriber makes for the portion of their premium not attributable to non-Hyde abortion coverage. Based on 2018 QHP certification data in the FFEs and SBE-FPs, we estimate that 15 QHP issuers offered a total of 111 plans with coverage of non-Hyde abortion services in 7 States. In SBEs, we estimate that 60 QHP issuers offered a total of approximately 1,000 plans offering this coverage across 10 SBEs. In total, this leads to an estimated 75 QHP issuers offering a total of 1,111 plans covering non-Hyde abortion services across 17 states. As such, the ICRs associated with these proposals would create a new burden on QHP issuers and plans and are subject to the Paperwork Reduction Act. Salaries for the positions cited below were taken from the May 2017 National Occupational Employment and Wage Estimates United States Department of Labor's Bureau of Labor Statistics (BLS) (http://www.bls.gov/oes/current/oes_nat.htm) based on the listed national median hourly wage. All wages on the following pages are inflated by 100 percent to account for the cost of fringe benefits and overhead costs.

    We anticipate that populating the enrollee information on the separate electronic or paper bill, transmitting the separate electronic or paper bill in a separate mailing or separate electronic communication, and processing the enrollee's separate electronic or mailed payment, will be an automated process that occurs monthly after a computer programmer adds this functionality to the QHP issuer's billing and payment operating system. We estimate that, on a one-time basis, a computer programmer will require 10 hours to add this functionality to an affected QHP issuer's systems (at a rate of $84.16 per hour) for a total burden of 10 hours. We estimate that this will result in a one-time cost of $841.60 per QHP issuer that offers plans that cover non-Hyde abortion services to meet this reporting requirement. This would be a one-time cost, such that the overall burden for all 75 QHP issuers would be 750 hours, with an associated total cost of $63,120.

    Because an estimated 75 QHP issuers offered a total of 1,111 plans with coverage of non-Hyde abortion services across 17 states, we estimate that the total number of QHP issuers that offer plans with coverage of non-Hyde abortion, for which they would be required to send separate bills in a separate mailing or separate electronic communication and collect separate payments as proposed at § 156.280(e)(2), would be 75 per year, for a total one-time burden of 750 hours. Below is the estimate of the burden imposed on a single QHP issuer subject to the reporting requirements of this rule. The aggregate burden for 3 years will be same as for 1 year: $841.60 per respondent and $63,120 for all respondents.

    Labor category Respondents Responses Burden per
  • response
  • (hours)
  • Wage rate
  • (p/hr) including
  • 100% fringe
  • benefits
  • Total annual
  • burden per
  • response
  • (hours)
  • Labor cost
  • of one-time
  • reporting
  • ($)
  • Total one-time
  • cost for all
  • respondents
  • ($)
  • Computer programmer to add automated billing & payment processing functionality 75 75 10 $42.08 10 $841.60 $63,120 Total 75 75 10 42.08 10 841.60 63,120

    Although we anticipate that populating the enrollee information on the separate electronic or paper bill and transmitting that bill in a separate mailing or separate electronic communication would be an automated process, we estimate that a general office clerk working for an affected QHP issuer would require 2 hours monthly (at a rate of $30.28 per hour) per plan to determine which enrollees are enrolled in plans that cover non-Hyde abortion and to oversee the process of sending a separately packaged complete and accurate bill in a separate mailing or separate electronic communication to these enrollees for the portion of their premium attributable to that coverage, for an annual burden of 24 hours. This estimate includes the amount of time the office clerk would spend determining which enrollees prefer paper billing versus electronic billing, and ensuring that the bills are complete and accurate and are being sent in a separate mailing or separate electronic communication. We estimate that it would cost $726.72 annually per plan that covers non-Hyde abortion services to meet the reporting requirement, with a total annual burden for all 1,111 plans of 26,664 hours and an associated total annual cost of $807,385.92.

    We similarly anticipate that processing the payment made by enrollees for this portion of their premium would be an automated process. However, we estimate that a general office clerk working for an affected QHP issuer would require 2 hours monthly (at a rate of $30.28 per hour) per plan to review for accuracy the separate payment an enrollee in a plan covering non-Hyde abortion services sends for the portion of their premium attributable to that coverage and to process any payments or paper checks made by enrollees through the mail, for an annual burden of 24 hours. This estimate includes the amount of additional time the office clerk would need to spend reviewing for accuracy the separate payments returned in separate mailings from the payments received for the portion of the policy subscriber's premium not attributable to non-Hyde abortion. We estimate that it would cost $726.72 annually per plan that covers non-Hyde abortion services to meet the reporting requirement, with a total annual burden for all 1,111 plans of 26,664 hours and an associated total cost of $807,385.92.

    As such, we estimate that the total number of plans for which QHP issuers would need to send separate bills in a separate mailing or separate electronic communication and collect separate payments as proposed at § 156.280(e)(2) would be 1,111 per year, for a total burden of 53,328 hours to meet these reporting requirements per year. Below is the estimate of the burden imposed on a single plan subject to the reporting requirements of this rule. The aggregate burden for 3 years will be $4,360.32 per respondent and $4,844,315.52 for all respondents.

    Labor category Respondents Responses Burden per
  • response
  • (hours)
  • Total annual
  • burden per
  • response
  • (hours)
  • Wage rate
  • (p/hr) including
  • 100% fringe
  • benefits
  • Labor cost
  • of reporting
  • annually
  • ($)
  • Total annual
  • cost for all
  • respondents
  • ($)
  • General office clerk for preparing and sending the bill 1,111 1,111 2 24 $30.28 $726.72 $807,385.92 General office clerk for receiving and processing the separate payment 1,111 1,111 2 24 30.28 726.72 807,385.92 Total 2,222 2,222 4 48 60.56 1,453.44 1,614,771.84
    C. Submission of PRA-Related Comments

    We have submitted a copy of this proposed rule to OMB for its review of the rule's information collection and recordkeeping requirements. The requirements are not effective until they have been approved by OMB.

    We invite public comments on these information collection requirements. If you wish to comment, please identify the rule (CMS-9922-P) and, where applicable, the ICR's CFR citation, CMS ID number, and OMB control number.

    To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:

    1. Access CMS's website address at https://www.cms.gov/Regulations-and-Guidance/Legislation/PaperworkReductionActof1995/PRA-Listing.html.

    2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to [email protected]

    3. Call the Reports Clearance Office at (410) 786-1326.

    See this rule's DATES and ADDRESSES sections for the comment due date and for additional instructions.

    V. Response to Comments

    Because of the large number of public comments we normally receive on Federal Register documents, we are not able to acknowledge or respond to them individually. We will consider all comments we receive by the date and time specified in the DATES section of this preamble, and, when we proceed with a subsequent document, we will respond to the comments in the preamble to that document.

    VI. Regulatory Impact Statement

    We have examined the impact of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), the Congressional Review Act (5 U.S.C. 804(2)), and Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs (January 30, 2017).

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity).

    Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a regulation: (1) Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

    A regulatory impact analysis must be prepared for major rules with economically significant effects ($100 million or more in any 1 year), and an “economically significant” regulatory action is subject to review by the Office of Management and Budget (OMB). As discussed below regarding their anticipated effects, these proposals are not likely to have economic impacts of $100 million or more in any 1 year, and therefore do not meet the definition of “economically significant” under Executive Order 12866. However, OMB has determined that the actions are significant within the meaning of section 3(f)(4) of the Executive Order. Therefore, OMB has reviewed these final rules and the Departments have provided the following assessment of their impact.

    A. Need for Regulatory Action

    HHS is committed to promoting program integrity throughout its programs to ensure that federal statutory requirements are met and federal monies are not being inappropriately spent. Ensuring that consumers receive the correct amount of APTC and CSRs at the time of enrollment or re-enrollment is a top priority for us, and necessitates regulatory action. Accurate and up-to-date eligibility determinations help reduce the possibility that an individual or family is paying a premium amount that is either higher or lower than they should have to, the latter of which could result in the individual or family needing to pay a large amount back to the federal Treasury on their federal income tax returns. We propose a number of changes in this rule to help mitigate the risk of federal dollars incorrectly leaving the federal Treasury in the form of APTC during the year. To further improve program integrity and ensure that individuals receiving APTC/CSRs are appropriately enrolled in insurance affordability programs, we are also proposing to specify that Exchanges must conduct Medicare PDM, Medicaid/CHIP PDM, and BHP PDM, if applicable, pursuant to § 155.330(d)(1)(ii), at least twice a year beginning with the 2020 calendar year. We also believe this policy would likely reduce QHP premiums and improve program integrity for all Exchanges, since Medicare and Medicaid/CHIP beneficiaries tend to have a higher risk profile than a typical Exchange enrollee and, therefore, may have negative impacts on the risk pool because of the typically increased utilization of services expected for these populations, which include significant numbers of older and disabled beneficiaries or poorer health outcomes associated with lower income statuses.15 As noted above, this negative effect on the risk pool results in higher premiums across the individual market, leading to increased expenditures of federal funds on PTC for taxpayers eligible for PTC resulting from duplicative coverage.

    15 For example, see Urban Institute and Center on Society and Health, How Are Income and Wealth Linked to Health and Longevity? (April 2015), available at https://www.urban.org/sites/default/files/publication/49116/2000178-How-are-Income-and-Wealth-Linked-to-Health-and-Longevity.pdf.

    As part of our efforts to strengthen program integrity with respect to subsidy payments in the individual market, we also believe improvements should be made to our ability to conduct effective and efficient oversight of State Exchanges to ensure consumers receive the correct amount of APTC and CSRs (as applicable). As section 1311 of the PPACA Exchange Establishment grant program has come to a conclusion and State Exchanges are financially self-sustaining, HHS has a need to strengthen the mechanisms and tools for overseeing ongoing compliance by State Exchanges with federal program requirements, including eligibility and enrollment requirements under 45 CFR part 155. For these reasons, we are proposing to add specificity to the reporting requirements for State Exchanges at § 155.1200 to focus on activities that speak to compliance with Exchange program requirements, including eligibility and enrollment requirements. We are also proposing changes at § 155.1200 to clarify the scope of annual programmatic audits that State Exchanges are required to conduct, and include new requirements that focus on ensuring proper eligibility determinations and enrollments in SBEs. It is our intent that these changes would enable us to better identify and address State Exchange non-compliance issues.

    HHS believes that some of the methods for billing and collection of the separate payment for non-Hyde abortion services noted as permissible in the preamble to the 2016 Payment Notice do not adequately reflect what we see as Congressional intent that the QHP issuer bill separately for two distinct (that is, “separate”) payments as required by section 1303 of the PPACA. To remedy this, we are proposing at § 156.280(e)(2) that: (1) QHP issuers send an entirely separate monthly bill to the policy subscriber for only the portion of premium attributable to non-Hyde abortion coverage, and (2) instruct the policy subscriber to pay the portion of their premium attributable to non-Hyde abortion coverage in a separate transaction from any payment the policy subscriber makes for the portion of their premium not attributable to non-Hyde abortion coverage. We believe that these proposals are necessary to better align the regulatory requirements for QHP issuer billing of enrollee premiums with the separate payment requirement in section 1303 of the PPACA. HHS believes that requiring QHP issuers to separately bill the portion of the policy subscriber's premium attributable to non-Hyde abortion services and instruct policy subscribers to make a separate payment for this amount is a better interpretation of, and would result in greater compliance with this interpretation of, the statutory requirement for QHP issuers to collect a separate payment for these services.

    B. Anticipated Effects

    Revising § 155.200(c) to clarify that the Exchanges must perform oversight functions or cooperate with activities related to oversight and financial integrity requirements is a clarification and not a new function. Therefore, it would not impose additional burdens on State Exchanges.

    Our proposal that Exchanges conduct Medicare PDM, Medicaid/CHIP PDM, and BHP PDM, if applicable, at least twice a year beginning with the 2020 calendar year, merely adds specificity to the existing requirement that Exchanges must periodically examine available data sources to determine whether Exchange enrollees have been determined eligible for or enrolled in other qualifying coverage such as Medicare, Medicaid, CHIP, or the BHP, if applicable. Therefore, we expect the costs associated with this proposal to be minimal. However, SBEs that are not already conducting PDM with the frequency proposed, or deemed in compliance with the Medicaid, CHIP, and BHP (where applicable) PDM requirements, would likely be required to engage in IT system development activity in order to communicate with these programs and act on enrollment data either in a new way, or in the same way more frequently. Thus, there may be additional associated administrative cost for these SBEs to implement the proposed PDM requirements. We anticipate a majority (about eight) of the twelve SBEs would be exempt from the requirement to perform Medicaid, CHIP, and BHP (where applicable) PDM because they have shared, integrated eligibility systems, as they would be deemed in compliance with this requirement. However, at this point we are not able to confirm the exact number because we have not yet set specific criteria and process to assess and confirm which SBEs would be exempt, and would need additional operational information from SBEs to confirm our assessment. We would establish and engage in that process after finalization of the rule. For an SBE not already conducting Medicare, Medicaid/CHIP, and BHP PDM at least twice a year, and that does not already have a shared, integrated eligibility system with its respective Medicaid/CHIP, and BHP (where applicable) programs, we estimate that it would cost approximately $1,740,000 per SBE to build such capabilities in their system. These costs would be incurred by the SBE as they are required to be financially self-sustaining and do not receive federal funding for their establishment or operational activities.

    We believe these changes will support HHS's program integrity efforts regarding the Exchanges by helping promote a balanced risk pool for the individual market as Medicare and Medicaid/CHIP beneficiaries tend to be higher utilizers of medical services, ensuring that consumers are accurately determined eligible for APTC and income-based CSRs, and safeguarding consumers against enrollment in unnecessary or duplicative coverage. Such unnecessary or duplicative coverage, coupled with typically higher utilization, generally results in higher premiums across the individual market, leading to unnecessarily inflated expenditures of federal funds on PTC for taxpayers eligible for PTC in the individual market.

    We expect our plan to permit HHS to verify applicant eligibility for or enrollment in MEC in order for HHS to perform the periodic checks required under § 155.330(d) for those consumers who provide consent to the Exchange to obtain their eligibility and enrollment data, and, if desired, to end their QHP coverage if found dually enrolled in other qualifying coverage, to have minimal economic impact. Based on HHS's experience, the dually enrolled unsubsidized population is significantly smaller than those receiving APTC or CSRs. This plan would help expand the scope of the population that is part of Medicare PDM, rather than adding new Exchange requirements.

    We do not anticipate the proposed changes to § 155.1200 will result in any additional cost for the State Exchanges because the changes leverage an existing reporting mechanism, the annual State Based Marketplace Reporting Tool, for meeting eligibility and enrollment reporting requirements in § 155.1200(b). Additionally, State Exchanges are already required to annually contract with, and budget accordingly for, an external independent audit entity to perform an annual financial and programmatic audit as required under § 155.1200(c). We believe the proposed requirement that HHS be able to specify the scope of annual programmatic audits to focus on the program areas that are most pertinent to a State Exchange model (SBE or SBE-FP), or have the greatest program integrity implications, would allow State Exchanges to utilize the funds that they already allocate to contracting with an external independent audit entity in the most cost-effective manner.

    In § 156.280, we propose to amend billing and premium collection requirements related to the separate payment requirement for abortions for which public funding is prohibited pursuant to section 1303 of the PPACA, as implemented at § 156.280. Specifically, the proposals described at § 156.280(e)(2) would require QHP issuers offering non-Hyde abortion coverage through an Exchange to send an entirely separate monthly bill in a separate mailing or separate electronic communication to the policy subscriber for only the portion of premium attributable to non-Hyde abortion coverage, and instruct the policy subscriber to pay the portion of their premium attributable to non-Hyde abortion coverage in a separate transaction from any payment the policy subscriber makes for the portions of the premium not attributable to coverage for non-Hyde abortion services. These proposals aim to better align the regulatory requirements for QHP issuer billing of premiums with the separate payment requirement in section 1303 of the PPACA.

    As reflected in the associated ICRs for the proposals at § 156.280(e)(2), we recognize that QHP issuers that cover non-Hyde abortion services may experience an increase in burden if these proposals are finalized. We anticipate that QHP issuers would need to invest additional time and resources to develop a separate invoice for non-Hyde abortion services, separately mail with separate postage the bill for the portion of the premium attributable to non-Hyde abortion coverage or separately email or electronically send the separate bill, as well as additional time and resources for receipt and processing of the separate payment through a separate transaction as proposed at § 156.280(e)(2). Specifically, we anticipate QHP issuers would need to invest time and resources to oversee the process of sending in a separate mailing or separate electronic communication a complete and accurate bill to these enrollees for the portion of their premium attributable to that coverage, to review for accuracy the separate payment a policy subscriber in a QHP covering non-Hyde abortion sends for the portion of their premium attributable to that coverage, and to process separate payments, whether made electronically or by mail. We also anticipate that QHP issuers would need to add functionality to their operating systems to develop an automated process to populate the enrollee information on the separate bill, transmit the separate bill in a separate mailing or separate electronic communication, and process the separate payment.

    Based on 2018 QHP certification data in FFEs and SBE-FPs, 15 QHP issuers offered a total of 111 plans with coverage of non-Hyde abortion services in 7 states. In SBEs, we estimate that 60 issuers offered a total of 1,000 QHPs offering non-Hyde abortion coverage across 10 SBEs. In total, this leads to an estimated 75 QHP issuers offering a total of 1,111 QHPs covering non-Hyde abortion services across 17 states. This rule could significantly increase the administrative burden for QHP issuers covering non-Hyde abortion services in developing, sending, and processing the separate invoices required under this proposal.

    Based on 2018 QHP Certification data in FFEs and SBE-FPs, there were approximately 300,000 enrollees across the 111 QHPs covering non-Hyde abortion coverage. In SBEs, we estimate that there were approximately 1,000,000 enrollees across the approximate 1,000 QHPs offering non-Hyde abortion coverage. If finalized, these requirements would also increase burden on those 1,300,000 consumers, related to paying the portion of the premium attributable to non-Hyde abortion services through a separate paper check or electronic transaction; that burden, however, is contemplated by the specific language of section 1303 which requires a QHP issuer “to collect from each enrollee in the plan . . . a separate payment” for the coverage of non-Hyde abortion services. In order to develop a preliminary estimate of the consumer cost of this proposed provision, we assume that a policy subscriber reading their separately received paper or electronic bill and writing out an additional paper check or filling in the necessary information for completion of a separate electronic payment adds approximately ten minutes per month to a policy subscriber's' monthly payment process for payment of their QHP premiums, for a total of 2 hours per year. Based on the May 2017 National Occupational Employment and Wage Estimates United States Department of Labor's Bureau of Labor Statistics (BLS) (http://www.bls.gov/oes/current/oes_nat.htm), using the listed national mean hourly wage for the 25th percentile,16 it would cost a policy subscriber $11.91 for an additional hour of burden, or approximately $1.98 for an additional 10 minutes of burden. As such, the 10 minute monthly estimated burden for filling out a separate check or online payment for a policy subscriber would be $1.98, and the yearly added burden for each policy subscriber would be $23.76. We note that many consumers are enrolled on the Exchange for an average of 10 months. For those enrollees, the annual consumer burden would be $19.80 for a total annual burden of $25,740,000. However, in total for all affected enrollees in QHPs covering non-Hyde abortion enrolled in plans for 12 months, we estimate that it would annually cost $30,888,000 for policy subscribers to comply with these proposals. This estimate excludes the cost of consumer learning (which may have significant upfront costs and could also continue to be resource intensive on an ongoing basis given the potential confusion of consumers in receiving multiple bills. In some cases, these may entail costs not just to consumers but also to QHP issuers, such as in increased volume of requests for customer service assistance and follow up needed to consumers to pay their full bill). However, HHS believes that, if finalized as proposed, the proposed changes would better align the regulatory requirements for QHP issuer billing of premiums with the separate payment requirement in section 1303 of the PPACA. As such, HHS believes that this outweighs the estimated consumer burden. We solicit comments on the impact of the proposed policy at § 156.280(e)(2) and on whether other impacts should be considered or quantified.

    16 The 25th percentile mean hourly wage most closely resembles the group of consumers likely to be affected by this proposal as most enrollees enrolled in QHPs on the Exchange are between 100% and 400% of the federal poverty level.

    We request comment on both our assessment of the need for the regulatory action and an explanation of how the regulatory action will meet that need, as well as our assessment of the potential costs and benefits of the regulatory action. To be sure our analysis is as accurate as possible with respect to any additional costs to states, issuers, or other entities, we encourage robust comment in this area.

    The RFA requires agencies to analyze options for regulatory relief of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Individuals and states are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined, and the Secretary certifies, that this proposed rule would not have a significant economic impact on a substantial number of small entities.

    Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2018, that threshold is approximately $150 million. This rule will have no consequential effect on state, local, or tribal governments or on the private sector.

    Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. This proposed rule does not impose substantial direct costs on state and local governments or preempt state law. However, we believe the rule has Federalism implications.

    In HHS's view, this regulation has Federalism implications due to our proposal that Exchanges conduct Medicare, Medicaid/CHIP, and, if applicable, BHP PDM at least twice a year, beginning with the 2020 calendar year. However, HHS believes that the Federalism implications are substantially mitigated because the proposed requirement sets only a minimum frequency with which Exchanges must conduct Medicare, Medicaid/CHIP, and, if applicable, BHP PDM, which is already required to be conducted periodically; SBEs would continue to have the flexibility to conduct PDM with greater frequency.

    Additionally, the proposed changes to State Exchange oversight and reporting requirements in § 155.1200 have Federalism implications since those rules would require State Exchanges to submit certain reports to HHS and require them to enter into contracts with an external independent audit entity to perform audits, and incur the associated costs. However, HHS believes that the Federalism implications are substantially mitigated because the proposed changes do not impose new requirements on State Exchanges, but rather add specificity to the existing requirements.

    This proposed rule is subject to the Congressional Review Act (5 U.S.C. 801, et seq.), which specifies that before a rule can take effect, the federal agency promulgating the rule shall submit to each House of the Congress and to the Comptroller General a report containing a copy of the rule along with other specified information, and has been transmitted to the Congress and the Comptroller General for review.

    Executive Order 13771, titled Reducing Regulation and Controlling Regulatory Costs, was issued on January 30, 2017. Section 2(a) of Executive Order 13771 requires an agency, unless prohibited by law, to identify at least two existing regulations to be repealed when the agency publicly proposes for notice and comment, or otherwise promulgates, a new regulation. In furtherance of this requirement, section 2(c) of Executive Order 13771 requires that the new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. OMB Guidance Implementing Executive Order 13771 (April 5, 2017) defines a regulatory action as (1) a significant regulatory action as defined in section 3(f) of Executive Order 12866, or (2) a significant guidance document (for example, significant interpretive guidance) that has been reviewed by OMB under the procedures of Executive Order 12866 and that, when finalized, is expected to impose total costs greater than zero. This proposed rule, if finalized as proposed, is expected to be an E.O. 13771 regulatory action. Details on the estimated costs appear in the preceding analysis.

    C. Regulatory Review Costs

    If regulations impose administrative costs on private entities, such as the time needed to read and interpret this proposed rule, we estimate the cost associated with regulatory review. Due to the uncertainty involved with accurately quantifying the number of entities that will review the rule, we assume that the total number of unique commenters on similar Exchange-related CMS rules will be the number of reviewers of this proposed rule. We acknowledge this assumption may understate or overstate the costs of reviewing this rule. It is possible that not all commenters will review the rule in detail, and it is also possible that some reviewers will chose not to comment on the proposed rule. For these reasons, we consider the number of past commenters on similar CMS rules will be a fair estimate of the number of reviewers of this rule. We welcome any comments on the approach in estimating the number of entities which will review this proposed rule.

    We recognize that different types of entities may be affected by only certain provisions of this proposed rule, and therefore, for the purposes of our estimate, we assume that each reviewer reads approximately 50 percent of the rule.

    Using the wage information from the Bureau of Labor and Statistics (BLS) for medical and health service managers (Code 11-9111), we estimate that the cost of reviewing this rule is $107.38 per hour, including overhead and fringe benefits.17 We estimate that it would take approximately 1 hour for the staff to review the relevant portions of this proposed rule. Based on previous and similar CMS rules, we assume that 321 entities will review this proposed rule. Therefore, we estimate that the total cost of reviewing this regulation is approximately $34,469 ($107.38 × 321 reviewers).

    17https://www.bls.gov/oes/current/oes_nat.htm.

    This may underestimate the review costs, since not all reviewers may have submitted comments. In addition, stakeholders may need to do a detailed analysis in order to implement the unanticipated provisions of this rule will need additional time and personnel, which will vary depending on the extent to which they are affected. To estimate an upper bound, we assume that on average 530 issuers and 50 states will spend 10 hours each, 100 other organizations will spend 5 hours each and 100 individuals will spend 1 hour each to review the rule. Under these assumptions, total time spent reviewing the rule would be 6,400 hours with an estimated cost of approximately $673,024.

    In accordance with the provisions of Executive Order 12866, this proposed rule was reviewed by the Office of Management and Budget.

    List of Subjects 45 CFR Part 155

    Administrative practice and procedure, Advertising, Brokers, Conflict of interests, Consumer protection, Grants administration, Grant programs—health, Health care, Health insurance, Health maintenance organizations (HMO), Health records, Hospitals, Indians, Individuals with disabilities, Intergovernmental relations, Loan programs—health, Medicaid, Organization and functions (Government agencies), Public assistance programs, Reporting and recordkeeping requirements, Technical assistance, Women and youth.

    45 CFR Part 156

    Administrative practice and procedure, Advertising, Advisory committees, Brokers, Conflict of interests, Consumer protection, Grant programs—health, Grants administration, Health care, Health insurance, Health maintenance organization (HMO), Health records, Hospitals, Indians, Individuals with disabilities, Loan programs—health, Medicaid, Organization and functions (Government agencies), Public assistance programs, Reporting and recordkeeping requirements, State and local governments, Sunshine Act, Technical assistance, Women, Youth.

    For the reasons set forth in the preamble, the Department of Health and Human Services proposes to amend 45 CFR parts 155 and 156 as set forth below:

    PART 155—EXCHANGE ESTABLISHMENT STANDARDS AND OTHER RELATED STANDARDS UNDER THE AFFORDABLE CARE ACT 1. The authority citation for part 155 is revised to read as follows: Authority:

    42 U.S.C. 18021-18024, 18031-18033, 18041-18042, 18051, 18054, 18071, and 18081-18083.

    2. Section 155.200 is amended by revising paragraph (c) to read as follows:
    § 155.200 Functions of an Exchange.

    (c) Oversight and financial integrity. The Exchange must perform required functions and cooperate with activities related to oversight and financial integrity requirements in accordance with section 1313 of the Affordable Care Act and as required under this part, including overseeing its Exchange programs, assisters, and other non-Exchange entities as defined in § 155.260(b)(1).

    3. Section 155.330 is amended by revising paragraph (d)(1) introductory text and adding paragraph (d)(3) to read as follows:
    § 155.330 Eligibility redetermination during a benefit year

    (d) * * *

    (1) General requirement. Subject to paragraph (d)(3) of this section, the Exchange must periodically examine available data sources described in §§ 155.315(b)(1) and 155.320(b) to identify the following changes:

    (3) Definition of periodically. Beginning with the 2020 calendar year, the Exchange must perform the periodic examination of data sources described in paragraph (d)(1)(ii) of this section at least twice in a calendar year. SBEs that have implemented a fully integrated eligibility system that determines eligibility for advance payments of the premium tax credit, cost-sharing reductions, Medicaid, CHIP, and the BHP, if a BHP is operating in the service area of the Exchange, will be deemed in compliance with paragraphs (d)(1)(ii) and (d)(3) of this section.

    4. Section 155.1200 is amended by— a. Revising paragraphs (b) introductory text, (b)(1) and (2), (c) introductory text, and (d)(2) and (3); b. Redesignating (d)(4) as paragraph (d)(5); c. Adding a new paragraph (d)(4); and d. Revising newly redesignated paragraph (d)(5).

    The revisions and addition read as follows:

    § 155.1200 General program integrity and oversight requirements.

    (b) Reporting. The State Exchange must, at least annually, provide to HHS, in a manner specified by HHS and by applicable deadlines specified by HHS, the following data and information:

    (1) A financial statement presented in accordance with GAAP,

    (2) Information showing compliance with Exchange requirements under this part 155 through submission of annual reports,

    (c) External audits. The State Exchange must engage an independent qualified auditing entity which follows generally accepted governmental auditing standards (GAGAS) to perform an annual independent external financial and programmatic audit and must make such information available to HHS for review. The State Exchange must:

    (d)* * *

    (2) Compliance with subparts D and E of this part 155, or other requirements under this part 155 as specified by HHS;

    (3) Processes and procedures designed to prevent improper eligibility determinations and enrollment transactions, as applicable;

    (4) Compliance with eligibility and enrollment standards through sampling, testing, or other equivalent auditing procedures that demonstrate the accuracy of eligibility determinations and enrollment transactions; and

    (5) Identification of errors that have resulted in incorrect eligibility determinations, as applicable.

    PART 156—HEALTH INSURANCE ISSUER STANDARDS UNDER THE AFFORDABLE CARE ACT, INCLUDING STANDARDS RELATED TO EXCHANGES 5. The authority citation for part 156 is revised to read as follows: Authority:

    42 U.S.C. 18021-18024, 18031-18032, 18041-18042, 18044, 18054, 18061, 18063, 18071, 18082, 26 U.S.C. 36B, and 31 U.S.C. 9701.

    6. Section 156.280 is amended by — a. Redesignating paragraph (e)(2)(ii) as (e)(2)(iii); b. Adding a new paragraph (e)(2)(ii); and c. Revising newly redesignated paragraph (e)(2)(iii).

    The revisions and addition read as follows:

    § 156.280 Segregation of funds for abortion services.

    (e) * * *

    (2) * * *

    (ii) Send to each policy subscriber (without regard to the policy subscriber's age, sex, or family status) in the QHP separate monthly bills for each of the amounts specified in paragraphs (e)(2)(i)(A) and (B) of this section, and instruct the policy subscriber to pay each of these amounts through separate transactions. If the policy subscriber fails to pay each of these amounts in a separate transaction as instructed by the issuer, the issuer may not terminate the policy subscriber's coverage on this basis, provided the amount due is otherwise paid.

    (iii) Deposit all such separate payments into separate allocation accounts as provided in paragraph (e)(3) of this section. In the case of an enrollee whose premium for coverage under the QHP is paid through employee payroll deposit, the separate payments required under paragraph (e)(2)(i) of this section shall each be paid by a separate deposit.

    Dated: October 11, 2018. Seema Verma, Administrator, Centers for Medicare & Medicaid Services. Dated: October 18, 2018. Alex M. Azar II, Secretary, Department of Health and Human Services.
    [FR Doc. 2018-24504 Filed 11-7-18; 4:15 pm] BILLING CODE 4120-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1 and 73 [AU Docket No. 17-329; DA 18-1038] Auction of Cross-Service FM Translator Construction Permits; Comment Sought on Competitive Bidding Procedures for Auction 100 AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule; proposed auction procedures.

    SUMMARY:

    The Wireless Telecommunications and Media Bureaus (Bureaus) announce an auction of certain cross-service FM translator construction permits. This document also seeks comment on competitive bidding procedures and proposed minimum opening bids for Auction 100.

    DATES:

    Comments are due on or before November 15, 2018, and reply comments are due on or before November 28, 2018.

    ADDRESSES:

    Interested parties may submit comments in response to the Auction 100 Comment Public Notice by any of the following methods:

    FCC's Website: Federal Communications Commission's Electronic Comment Filing System (ECFS): http://apps.fcc.gov/ecfs. Follow the instructions for submitting comments.

    Mail: FCC Headquarters, 445 12th Street SW, Room TW-A325, Washington, DC 20554.

    People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, or audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). For detailed instructions for submitting comments, see the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    For auction legal questions, Lynne Milne in the Wireless Telecommunications Bureau's Auctions and Spectrum Access Division at (202) 418-0660. For general auction questions, the Auctions Hotline at (717) 338-2868. For FM translator service questions, James Bradshaw, Lisa Scanlan or Tom Nessinger in the Media Bureau's Audio Division at (202) 418-2700.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Auction 100 Comment Public Notice in AU Docket No.17-329, DA 18-1038, released on October 19, 2018. The complete text of this document, including its attachment, is available for public inspection and copying from 8:00 a.m. to 4:30 p.m. Eastern Time (ET) Monday through Thursday or from 8:00 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The Auction 100 Comment Public Notice and related documents also are available on the internet at the Commission's website: https://www.fcc.gov/auction/100/, or by using the search function for AU Docket No. 17-329 on the Commission's ECFS web page at https://www.fcc.gov/ecfs/.

    All filings in response to the Auction 100 Comment Public Notice must refer to AU Docket No. 17-329. The Bureaus strongly encourage interested parties to file comments electronically, and request that an additional copy of all comments and reply comments be submitted electronically to the following address: [email protected]

    Electronic Filers: Comments may be filed electronically using the internet by accessing ECFS: http://apps.fcc.gov/ecfs. Follow the instructions for submitting comments.

    Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission (FCC). All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to the FCC Headquarters at 445 12th Street SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. Eastern Time (ET). All hand deliveries must be held together with rubber bands or fasteners. Any envelope or box must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.

    I. Introduction

    1. On December 4, 2017, the Bureaus announced a second auction filing window for AM broadcasters seeking new cross-service FM translator station construction permits. By this Public Notice, the Bureaus seek comment on the procedures to be used for Auction 100. Auction 100 will be a closed auction: Only those entities listed in Attachment A of the Auction 100 Comment Public Notice will be eligible to participate further in Auction 100.

    2. The Bureaus anticipate that the bidding for Auction 100 will commence in fiscal year 2019. The Bureaus will announce a schedule for bidding in Auction 100 by public notice, to provide applicants with sufficient time to submit upfront payments and prepare for bidding in the auction.

    II. Construction Permits in Auction 100

    3. Auction 100 will resolve by competitive bidding mutually exclusive (MX) engineering proposals for construction permits for up to 13 new cross-service FM translator stations. The locations and channels of these proposed stations are identified in Attachment A of the Auction 100 Comment Public Notice. Attachment A also specifies a proposed minimum opening bid and a proposed upfront payment amount for each construction permit listed.

    4. An applicant listed in Attachment A may become qualified to bid only if it complies with the additional filing, qualification, and payment requirements, and otherwise complies with applicable rules, policies, and procedures. Each qualified bidder will be eligible to bid on only those construction permits specified for that qualified bidder in Attachment A of the Auction 100 Comment Public Notice. All of the engineering proposals in each MX group are directly mutually exclusive with one another; therefore, no more than one construction permit will be awarded for each MX group identified in Attachment A. Under the Commission's established precedent, once mutually exclusive applications are accepted for a construction permit and thus mutual exclusivity exists for auction purposes, an applicant cannot obtain a construction permit without placing a bid, even if no other applicant for that particular construction permit becomes qualified to bid or in fact places a bid.

    5. The Commission adopted eligibility criteria for filing window opportunities in its 2015 AM Radio Revitalization rulemaking order. Chesapeake-Portsmouth Broadcasting Corporation requested a waiver of the eligibility restriction for the Auction 100 filing window opportunity. MHR License LLC filed an objection to this waiver request. The Bureaus intend to address the Chesapeake-Portsmouth waiver request by the release of the public notice establishing procedures for Auction 100.

    III. Processing of Short-Form Applications (FCC FORM 175) and Minor Corrections A. Initial Review of FCC Form 175

    6. Applicants listed in Attachment A to the Auction 100 Comment Public Notice previously filed short-form applications (FCC Form 175). The Bureaus will process the Forms 175 filed by the 25 applicants listed in Attachment A to determine which are complete, and subsequently will issue a public notice identifying those that are complete and those that are incomplete or deficient because of minor defects that may be corrected. That public notice will provide instructions for applicants to make only minor corrections to their Forms 175. The public notice will include a deadline for resubmitting corrected Forms 175.

    B. Updates to Auction Applications Outside of Filing Windows

    7. As required by 47 CFR 1.65, an applicant must maintain the accuracy and completeness of information furnished in its pending application and must notify the Commission of any substantial change that may be of decisional significance to that application. Thus, section 1.65 requires an auction applicant to notify the Commission of any substantial change to the information or certifications included in its pending short-form application. See also 47 CFR 1.2105(b)(4), (c).

    8. If information needs to be submitted pursuant to sections 1.65 or 1.2105 outside of the upcoming resubmission window in Auction 100, the applicant must submit a letter briefly summarizing the changes by email to [email protected] Such email must include a subject or caption referring to Auction 100 and the name of the applicant. If any information needs to be submitted during the upcoming resubmission window pursuant to sections 1.65 or 1.2105, that information must be submitted within an Auction 100 applicant's Form 175.

    IV. Bureaus Seek Comment on Procedures for Auction Applications

    9. The Bureaus previously announced that section 1.2105(a)(3)'s prohibition on the filing of more than one auction application (Form 175) in an auction by entities with any of the same controlling interests would be waived for Auction 100 applicants in recognition of the specific eligibility provisions and filing procedures established by the Commission for this cross-service FM translator filing window. Thus, entities controlled by the same individual or set of individuals were permitted to file separate short-form applications for Auction 100.

    10. The rule provision that was waived in the Auction 100 Filing Instructions Public Notice, section 1.2105(a)(3), was adopted in 2015 in conjunction with other rule changes. Under section 1.2105(a), as revised in 2015, each auction applicant must certify that it has disclosed any arrangements or understandings of any kind relating to the licenses being auctioned to which it (or any party that controls or is controlled by it) is a party, and must certify that it (or any party that controls or is controlled by it) has not entered and will not enter any arrangement or understanding of any kind relating directly or indirectly to bidding at auction with, among others, any other applicant for the auction. Also in 2015, section 1.2105(c) was extended to prohibit communication of bids or bidding strategies between any applicants for an auction, and thus is no longer limited to a communication between applicants that had applied for construction permits to serve the same area. In addition, the 2015 revisions to that rule removed a prior exception to section 1.2105(c) under which applicants that had entered into bidding-related agreements could engage in certain communications so long as each entity had disclosed the other as a party to such an agreement on its auction application, pursuant to section 1.2105(a)(2)(viii). In applying the prohibited communications rule, the Bureaus have found that, where an individual served as an officer or director for two or more applicants subject to the rule, the bids and bidding strategies of one applicant are presumptively conveyed to the other applicant. Consequently, the Bureaus determined that, absent a disclosed bidding agreement between such applicants creating an applicable exception under the prior rule, an apparent violation of section 1.2105(c) would occur. Finally, in a change related to the prohibition on joint bidding agreements and the changes to the prohibited communications rule, revised section 1.2105(a)(2)(iii) now prohibits any individual from serving as an authorized bidder of more than one applicant.

    11. In recognition that some Auction 100 applicants under common control may have filed separate Forms 175 relying on the waiver of section 1.2105(a)(3), the Bureaus seek comment on whether it would be appropriate to waive or modify for Auction 100 the application of certain other provisions of section 1.2105 so that such applicants will not thereby violate such other provisions of the rule. For instance, in the absence of relief, such applicants could be at risk of violating section 1.2105(c) because the Commission presumes that bidding strategies are communicated between entities that share a common officer or director. Moreover, current rules bar most kinds of joint bidding agreements that may have, under the prior rule, permitted certain communications between commonly controlled entities or other auction applicants under the former rules.

    12. Accordingly, the Bureaus seek comment on whether it would be appropriate to waive or modify the application of section 1.2105 provisions so that Auction 100 applicants relying on the waiver of section 1.2105(a)(3) will not thereby violate such other provisions. Commenters may wish to consider the Bureaus' prior observations regarding circumstances under which competitive bidding rules might be waived or modified in particular situations and should review carefully that discussion in the Auction 100 Comment Public Notice and references in that section.

    V. Bureaus Seek Comment on Bidding Procedures

    13. The Bureaus, under delegated authority, seek comment on multiple issues relating to the conduct of Auction 100.

    A. Auction Structure

    14. Simultaneous Multiple Round Auction Design. The Bureaus propose to use the Commission's standard simultaneous multiple-round auction format for Auction 100. This type of auction offers every construction permit for bidding at the same time and consists of successive bidding rounds in which eligible bidders may place bids on individual construction permits. Typically, bidding remains open on all construction permits until bidding stops on every construction permit. The Bureaus seek comment on this proposal.

    15. Bidding Rounds. Auction 100 will consist of sequential bidding rounds, each followed by the release of round results. The Commission will conduct Auction 100 over the internet using the FCC auction bidding system. Qualified bidders will also have the option of placing bids by telephone through a dedicated auction bidder line.

    16. The Bureaus propose to retain the discretion to change the bidding schedule to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. Under this proposal, the Bureaus may change the amount of time for the bidding rounds, the amount of time between rounds, or the number of rounds per day, depending upon bidding activity and other factors. The Bureaus seek comment on this proposal. Commenters on this issue should address the role of the bidding schedule in managing the pace of the auction, specifically discussing the tradeoffs in managing auction pace by bidding schedule changes, by changing the activity requirements or bid amount parameters, or by using other means.

    17. Stopping Rule. To complete bidding in the auction within a reasonable time, the Bureaus propose to employ a simultaneous stopping rule approach for Auction 100, which means all construction permits remain available for bidding until bidding stops on every construction permit. Specifically, bidding would close on all construction permits after the first round in which no bidder submits any new bids, no bidder applies a proactive waiver, or, if bid withdrawals are permitted in this auction, no bidder withdraws any provisionally winning bid which is a bid that would become a final winning bid if the auction were to close in that given round. Thus, unless the Bureaus announce alternative procedures, under the proposed simultaneous stopping approach bidding would remain open on all construction permits until bidding stops on every construction permit. Consequently, it is not possible to determine in advance how long the bidding in this auction will last.

    18. Further, the Bureaus propose to retain the discretion to exercise any of the following options during Auction 100. (1) Use a modified version of the simultaneous stopping rule that would close the auction for all construction permits after the first round in which no bidder applies a waiver, no bidder withdraws a provisionally winning bid (if withdrawals are permitted in this auction), or no bidder places any new bid on a construction permit for which it is not the provisionally winning bidder, which means that, absent any other bidding activity, a bidder placing a new bid on a construction permit for which it is the provisionally winning bidder would not keep the auction open under this modified stopping rule. (2) Use a modified version of the simultaneous stopping rule that would close the auction for all construction permits after the first round in which no bidder applies a waiver, no bidder withdraws a provisionally winning bid (if withdrawals are permitted in this auction), or no bidder places any new bid on a construction permit that already has a provisionally winning bid, which means that, absent any other bidding activity, a bidder placing a new bid on an FCC-held construction permit (a construction permit that does not already have a provisionally winning bid) would not keep the auction open under this modified stopping rule. (3) Use a modified version of the simultaneous stopping rule that combines options (1) and (2). (4) The auction would close after a specified number of additional rounds (special stopping rule) to be announced by the Bureaus. If the Bureaus invoke this special stopping rule, they will accept bids in the specified final round(s), after which the auction will close. (5) The auction would remain open even if no bidder places any new bid, applies a waiver, or withdraws any provisionally winning bid (if withdrawals are permitted in this auction). In this event, the effect will be the same as if a bidder had applied a waiver. The activity rule will apply as usual, and a bidder with insufficient activity will either lose bidding eligibility or use a waiver.

    19. The Bureaus propose to exercise these options only in certain circumstances, for example, where the auction is proceeding unusually slowly or quickly, there is minimal overall bidding activity, or it appears likely that the auction will not close within a reasonable period of time or will close prematurely. Before exercising these options, the Bureaus are likely to attempt to change the pace of the auction. For example, the Bureaus may adjust the pace of bidding by changing the number of bidding rounds per day and/or the minimum acceptable bids. The Bureaus proposed to retain the discretion to exercise any of these options with or without prior announcement during the auction. The Bureaus seek comment on these proposals.

    20. Auction Delay, Suspension or Cancellation. Pursuant to 47 CFR 1.2104(i), the Bureaus propose that they may delay, suspend, or cancel bidding in Auction 100 in the event of a natural disaster, technical obstacle, administrative or weather necessity, evidence of an auction security breach or unlawful bidding activity, or for any other reason that affects the fair and efficient conduct of competitive bidding. The Bureaus would notify participants of any such delay, suspension or cancellation by public notice and/or through the FCC auction bidding system's announcement function. If bidding is delayed or suspended, the Bureaus may, in their sole discretion, elect to resume the auction starting from the beginning of the current round or from some previous round, or cancel the auction in its entirety. Network interruption may cause the Bureaus to delay or suspend the auction. The Bureaus emphasized that they will exercise this authority solely at their discretion, and not as a substitute for situations in which bidders may wish to apply activity rule waivers. The Bureaus seek comment on this proposal.

    B. Auction Procedures

    21. Upfront Payments and Bidding Eligibility. The Bureaus have determined an appropriate upfront payment for each construction permit being auctioned, taking into account such factors as the efficiency of the auction process and the potential value of similar construction permits. The upfront payment is a refundable deposit made by an applicant to establish eligibility to bid on construction permits. Upfront payments that are related to the specific construction permits being auctioned protect against frivolous or insincere bidding and provide the Commission with a source of funds from which to collect payments owed at the close of bidding. With these considerations in mind, the Bureaus proposed the upfront payments set forth in Attachment A of the Auction 100 Comment Public Notice. The Bureaus seek comment on the upfront payments specified in that Attachment A.

    22. The Bureaus further propose that the amount of the upfront payment submitted by a bidder will determine its initial bidding eligibility in bidding units. The Bureaus propose to assign each construction permit a specific number of bidding units, equal to one bidding unit per dollar of the upfront payment listed in Attachment A of the Auction 100 Comment Public Notice. The number of bidding units for a given construction permit is fixed and does not change during the auction as prices change. If an applicant is found to be qualified to bid on more than one permit in Auction 100, such a bidder may place bids on multiple construction permits, provided that the total number of bidding units associated with those construction permits does not exceed the bidder's current eligibility. A bidder cannot increase its eligibility during the auction; it can only maintain its eligibility or decrease its eligibility. Thus, in calculating its upfront payment amount and hence its initial bidding eligibility, an applicant must determine the maximum number of bidding units on which it may wish to bid (or hold provisionally winning bids) in any single round, and submit an upfront payment amount covering that total number of bidding units. The Bureaus request comment on these proposals.

    23. Activity Rule. To ensure that the auction closes within a reasonable period of time, an activity rule requires bidders to bid actively throughout the auction, rather than wait until late in the auction before participating. The Bureaus propose a single stage auction with the following activity requirement: In each round of the auction, a bidder desiring to maintain its current bidding eligibility is required to be active on 100 percent of its bidding eligibility. A bidder's activity in a round will be the sum of the bidding units associated with any construction permits upon which it places bids during the current round and the bidding units associated with any construction permits for which it holds provisionally winning bids. Failure to maintain the requisite activity level would result in the use of an activity rule waiver, if any, or a reduction in the bidder's eligibility, possibly curtailing or eliminating the bidder's ability to place additional bids in the auction. The Bureaus seek comment on this proposal.

    24. Activity Rule Waivers and Reducing Eligibility. For the proposed simultaneous multiple round auction format, the Bureaus propose that when a bidder's eligibility in the current round is below the required minimum level, it may preserve its current level of eligibility through an activity rule waiver, if available. An activity rule waiver applies to an entire round of bidding, not to a particular construction permit. Activity rule waivers can be either proactive or automatic. Activity rule waivers are principally a mechanism for a bidder to avoid the loss of bidding eligibility if exigent circumstances prevent it from bidding in a particular round.

    25. The FCC auction bidding system will assume that a bidder that does not meet the activity requirement would prefer to use an activity rule waiver (if available) rather than lose bidding eligibility. Therefore, the system will automatically apply a waiver at the end of any bidding round in which a bidder's activity is below the minimum required unless (1) the bidder has no activity rule waivers remaining or (2) the bidder overrides the automatic application of a waiver by reducing eligibility, thereby meeting the activity requirement. If a bidder has no waivers remaining and does not satisfy the required activity level, the bidder's current eligibility will be permanently reduced, possibly curtailing or eliminating the ability to place additional bids in the auction.

    26. A bidder with insufficient activity may wish to reduce its bidding eligibility rather than use an activity rule waiver. If so, the bidder must affirmatively override the automatic waiver mechanism during the bidding round by using the reduce eligibility function in the FCC auction bidding system. In this case, the bidder's eligibility would be permanently reduced to bring it into compliance with the specified activity requirement. Reducing eligibility is an irreversible action; once eligibility has been reduced, a bidder cannot regain its lost bidding eligibility.

    27. Under the proposed simultaneous stopping rule, a bidder may apply an activity rule waiver proactively as a means to keep the auction open without placing a bid. If a bidder proactively were to apply an activity rule waiver (using the proactive waiver function in the FCC auction bidding system) during a bidding round in which no bids are placed or withdrawn (if bid withdrawals are permitted in this auction), the auction would remain open and the bidder's eligibility would be preserved. An automatic waiver applied by the FCC auction bidding system in a round in which there are no new bid, no bid withdrawal (if bid withdrawals are permitted in this auction), or no proactive waiver would not keep the auction open. The Bureaus propose that each bidder in Auction 100 be provided with three activity rule waivers that may be used at the bidder's discretion during the course of the auction. The Bureaus seek comment on this proposal.

    28. Reserve Price or Minimum Opening Bids. Normally, a reserve price is an absolute minimum price below which a construction permit or license will not be sold in a given auction. The Bureaus did not propose to establish separate reserve prices for the Auction 100 construction permits.

    29. A minimum opening bid is the minimum bid price set at the beginning of the auction below which no bids are accepted. Because it is an effective tool for accelerating the competitive bidding process, the Bureaus propose minimum opening bid amounts for Auction 100 determined by taking into account the type of service and class of facility offered, market size, population covered by the proposed broadcast facility, and recent broadcast transaction data. Attachment A of the Auction 100 Comment Public Notice lists a proposed minimum opening bid amount for each construction permit available in Auction 100. Consistent with 47 U.S.C. 309(j)(4)(f), the Bureaus seek comment on the minimum opening bid amounts specified in Attachment A of the Auction 100 Comment Public Notice.

    30. If commenters believe that these minimum opening bid amounts will result in unsold construction permits, are not reasonable amounts, or should instead operate as reserve prices, they should explain why this is so and comment on the desirability of an alternative approach. The Bureaus ask commenters to support their claims with valuation analyses and suggested amounts or formulas for reserve prices or minimum opening bids. In establishing the minimum opening bid amounts, the Bureaus particularly seek comment on factors that could reasonably have an impact on bidders' valuation of the broadcast spectrum, including the type of service offered, market size, population covered by the proposed broadcast facility, and any other relevant factors.

    31. Bid Amounts. The Bureaus propose that, if the bidder has sufficient eligibility to place a bid on a particular construction permit in a round, an eligible bidder will be able to place a bid on that construction permit in any of up to nine different amounts. In the event of duplicate bid amounts due to rounding, the FCC auction system will omit the duplicates and will list fewer than nine acceptable bid amounts for that construction permit. Under this proposal, the FCC auction bidding system interface will list the acceptable bid amounts for each construction permit.

    32. The first of the acceptable bid amounts is called the minimum acceptable bid amount. The minimum acceptable bid amount for a construction permit will be equal to its minimum opening bid amount until there is a provisionally winning bid for the construction permit. After there is a provisionally winning bid for a construction permit, the minimum acceptable bid amount will be a certain percentage higher. The percentage used for this calculation, the minimum acceptable bid increment percentage, is multiplied by the provisionally winning bid amount, and the resulting amount is added to the provisionally winning bid amount. If, for example, the minimum acceptable bid increment percentage is 10 percent, then the provisionally winning bid amount is multiplied by 10 percent. The result of that calculation is added to the provisionally winning bid amount, and that sum is rounded using the Commission's standard rounding procedure for auctions. If bid withdrawals are permitted in this auction, in the case of a construction permit for which the provisionally winning bid has been withdrawn, the minimum acceptable bid amount will equal the second highest bid received for the construction permit.

    33. The eight additional bid amounts would be calculated using the minimum acceptable bid amount and an additional bid increment percentage. The minimum acceptable bid amount is multiplied by the additional bid increment percentage, and that result, rounded, is the additional increment amount. The first additional acceptable bid amount equals the minimum acceptable bid amount plus the additional increment amount. The second additional acceptable bid amount equals the minimum acceptable bid amount plus two times the additional increment amount; the third additional acceptable bid amount is the minimum acceptable bid amount plus three times the additional increment amount; etc. If, for example, the additional bid increment percentage is 5 percent, then the calculation of the additional increment amount is (minimum acceptable bid amount) * (0.05), rounded. The first additional acceptable bid amount equals (minimum acceptable bid amount) + (additional increment amount); the second additional acceptable bid amount equals (minimum acceptable bid amount) + (2 *(additional increment amount)); the third additional acceptable bid amount equals (minimum acceptable bid amount) + (3 *(additional increment amount)); etc. The Bureaus will round the results using the Commission's standard rounding procedures for auctions.

    34. For Auction 100, the Bureaus propose to use a minimum acceptable bid increment percentage of 10 percent. This means that the minimum acceptable bid amount for a construction permit will be approximately 10 percent greater than the provisionally winning bid amount for the construction permit. To calculate the additional acceptable bid amounts, the Bureaus propose to use an additional bid increment percentage of 5 percent. The Bureaus seek comment on these proposals.

    35. Consistent with past practice, the Bureaus propose to retain the discretion to change the minimum acceptable bid amounts, the minimum acceptable bid increment percentage, the additional bid increment percentage, and the number of acceptable bid amounts if the Bureaus determine that circumstances so dictate. Further, the Bureaus propose to retain the discretion to do so on a construction-permit-by-construction-permit basis. The Bureaus also propose to retain the discretion to limit (a) the amount by which a minimum acceptable bid for a construction permit may increase compared with the corresponding provisionally winning bid, and (b) the amount by which an additional bid amount may increase compared with the immediately preceding acceptable bid amount. For example, the Bureaus could set a $1,000 limit on increases in minimum acceptable bid amounts over provisionally winning bids. Thus, if calculating a minimum acceptable bid using the minimum acceptable bid increment percentage results in a minimum acceptable bid amount that is $1,200 higher than the provisionally winning bid on a construction permit, the minimum acceptable bid amount would instead be capped at $1,000 above the provisionally winning bid. The Bureaus seek comment on the circumstances under which the Bureaus should employ such a limit, factors the Bureaus should consider when determining the dollar amount of the limit, and the tradeoffs in setting such a limit or changing other parameters, such as changing the minimum acceptable bid percentage, the bid increment percentage, or the number of acceptable bid amounts. If the Bureaus exercise this discretion, they will alert bidders by announcement in the FCC auction bidding system during the auction. The Bureaus seek comment on these proposals

    36. Provisionally Winning Bids. Provisionally winning bids are bids that would become winning bids if the auction were to close in that given round. At the end of each bidding round, the FCC auction bidding system will determine a provisionally winning bid for each construction permit based on the highest bid amount received for that permit. A provisionally winning bid will remain the provisionally winning bid until there is a higher bid on the same construction permit at the close of a subsequent round. Provisionally winning bids become the winning bid at the end of the auction.

    37. The auction bidding system assigns a pseudo-random number to each bid when the bid is entered. If identical high bid amounts are submitted on a construction permit in any given round (i.e., tied bids), the FCC auction bidding system will use a pseudo-random number generator to select a single provisionally winning bid from among the tied bids. The tied bid with the highest pseudo-random number wins the tiebreaker and becomes the provisionally winning bid. The remaining bidders, as well as the provisionally winning bidder, can submit higher bids in subsequent rounds. However, if the auction were to close with no other bids being placed, the winning bidder would be the one that placed the provisionally winning bid. If the construction permit receives any bids in a subsequent round, the provisionally winning bid again will be determined by the highest bid amount received for the construction permit.

    38. A provisionally winning bid will be retained until there is a higher bid on the construction permit at the close of a subsequent round, unless the provisionally winning bid is withdrawn (if bid withdrawals are permitted in this auction). As a reminder, provisionally winning bids count toward a bidder's activity level for purposes of the activity rule.

    39. Bid Removal and Bid Withdrawal. The FCC auction bidding system allows each bidder to remove any of the bids it placed in a round before the close of that round. By removing a bid placed within a round, a bidder effectively unsubmits the bid. A bidder removing a bid placed in the same round is not subject to a withdrawal payment. Once a round closes, a bidder is no longer permitted to remove a bid.

    40. The Bureaus seek comment on whether bid withdrawals should be permitted in Auction 100. When permitted in an auction, bid withdrawals provide a bidder with the option of withdrawing bids placed in prior rounds that have become provisionally winning bids. A bidder would be able to withdraw its provisionally winning bids using the withdraw function in the FCC auction bidding system. A bidder that withdraws its provisionally winning bid(s), if permitted in this auction, is subject to the bid withdrawal payment provisions of 47 CFR 1.2104(g) and 1.2109.

    41. Based on the stand-alone nature of FM translator facilities and the Auction 100 limit of one FM translator station proposal per AM station, as well as the experience of the Bureaus with past auctions of broadcast construction permits, the Bureaus propose to prohibit bidders from withdrawing any bid after the close of the round in which that bid was placed. The Bureaus made this proposal in light of the site- and applicant-specific nature and wide geographic dispersion of the permits available in this closed auction, all of which suggest that potential applicants for this auction will not need to use the auction process to aggregate construction permits (as compared with bidders in many auctions of wireless licenses). Thus, the Bureaus believe that it is unlikely that bidders will have a need to withdraw bids in this auction. Also, allowing bid withdrawals may encourage insincere bidding or increase opportunities for anti-competitive bidding in certain circumstances. The Bureaus also remain mindful that bid withdrawals, particularly those made late in this auction, could result in delays in licensing new cross-service FM translator stations and attendant delays in the offering of new broadcast service to the public. The Bureaus seek comment on their proposal to prohibit bid withdrawals in Auction 100.

    C. Post-Auction Payments

    42. Interim Withdrawal Payment Percentage. A bidder that withdraws a bid during an auction is subject to a withdrawal payment equal to the difference between the amount of the withdrawn bid and the amount of the winning bid in the same or a subsequent auction. However, if a construction permit for which a bid has been withdrawn does not receive a subsequent higher bid or winning bid in the same auction, the FCC cannot calculate the final withdrawal payment until that construction permit receives a higher bid or winning bid in a subsequent auction. In such cases, when that final withdrawal payment cannot yet be calculated, in accordance with 47 CFR 1.2104(g)(1) the FCC imposes on the bidder responsible for the withdrawn bid an interim bid withdrawal payment, which will be applied toward any final bid withdrawal payment that is ultimately assessed.

    43. Pursuant to 47 CFR 1.2104(g)(1), the amount of the interim bid withdrawal payment may range from 3 to 20 percent of the withdrawn bid amount. If the Bureaus allow bid withdrawals in Auction 100, the Bureaus propose that the interim bid withdrawal payment be 20 percent of the withdrawn bid amount. The Bureaus request comment on using 20 percent for calculating an interim bid withdrawal payment amount in Auction 100. Commenters advocating the use of bid withdrawals in Auction 100 should also address the percentage of the interim bid withdrawal payment.

    44. Additional Default Payment Percentage. Any winning bidder that defaults or is disqualified after the close of an auction (i.e., fails to remit the required down payment by the specified deadline, fails to submit a timely long-form application, fails to make full and timely final payment, or is otherwise disqualified) is liable for a default payment under 47 CFR 1.2104(g)(2). This default payment consists of a deficiency payment equal to the difference between the amount of the Auction 100 bidder's winning bid and the amount of the winning bid the next time a construction permit covering the same spectrum is won in an auction, plus an additional payment equal to a percentage of the defaulter's bid or of the subsequent winning bid, whichever is less. Based on the nature of the service and the construction permits being offered, the Bureaus propose for Auction 100 an additional default payment amount of 20 percent of the applicable winning bid. The Bureaus seek comment on this proposal.

    VI. Procedural Matters A. Initial Paperwork Reduction Act of 1995 Analysis

    45. This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198. See 44 U.S.C. 3506(c)(4).

    B. Supplemental Initial Regulatory Flexibility Analysis

    46. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), 5 U.S.C. 603, the Commission prepared Initial Regulatory Flexibility Analyses (IRFAs) as part of the 1997 Broadcast Competitive Bidding Notice of Proposed Rulemaking (NPRM) and other Commission notices (collectively, Broadcast Competitive Bidding NPRMs) pursuant to which Auction 100 will be conducted. Final Regulatory Flexibility Analyses (FRFAs) likewise were prepared in the 1998 Broadcast First Report and Order and other Commission rulemaking orders (collectively, Broadcast Competitive Bidding Orders). The Bureaus have prepared this Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) of the possible significant economic impact on a substantial number of small entities of the policies and rules addressed in the Auction 100 Comment Public Notice, to supplement the Commission's Initial and Final Regulatory Flexibility Analyses completed in the Broadcast First Report and Order and other Commission orders pursuant to which Auction 100 will be conducted. Written public comments are requested on this Supplemental IRFA. Comments must be identified as responses to the Supplemental IRFA and must be filed by the same filing deadline for comments specified on the first page of the Auction 100 Comment Public Notice. The Commission will send a copy of the Public Notice, including this Supplemental IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA), 5 U.S.C. 603(a).

    47. Need for, and Objectives of, the Proposed Rules. In addition to providing notice of proposed procedures in the Auction 100 Comment Public Notice, consistent with 47 U.S.C. 309(j)(3)(E)(i), the Bureaus intend to provide adequate time for participants to comment on proposed procedures to govern Auction 100, an auction of up to 13 cross-service FM translator construction permits. To promote the efficient and fair administration of the competitive bidding process for all Auction 100 participants, including small businesses, the Bureaus seek comment on the following proposed procedures: (1) Whether certain aspects of the rules governing auction applications should be waived or modified in conjunction with the Bureaus' prior decision to allow eligible AM licensees having any of the same controlling interest in common to file separate auction applications (Forms 175), rather than a single Form 175; (2) Use of a simultaneous multiple-round auction format, consisting of sequential bidding rounds with a simultaneous stopping rule (with discretion by the Bureaus to exercise alternative stopping rules under certain circumstances); (3) A specific minimum opening bid amount for each construction permit available in Auction 100; (4) A specific upfront payment amount for each construction permit; (5) Establishment of a bidder's initial bidding eligibility in bidding units based on that bidder's upfront payment through assignment of a specific number of bidding units for each construction permit; (6) Use of an activity rule that would require bidders to bid actively during the auction rather than waiting until late in the auction before participating; (7) A single stage auction in which a bidder is required to be active on 100 percent of its bidding eligibility in each round of the auction; (8) Provision of three activity rule waivers for each bidder to allow it to preserve bidding eligibility during the course of the auction; (9) Use of minimum acceptable bid amounts and additional bid increments, along with a proposed methodology for calculating such amounts, with the Bureaus retaining discretion to change their methodology if circumstances dictate; (10) A procedure for breaking ties if identical high bid amounts are submitted on a permit in a given round; (11) Bid removal procedures; (12) Whether to permit bid withdrawals; (13) Establishment of an interim bid withdrawal percentage of 20 percent of the withdrawn bid in the event the Bureaus allow bid withdrawals in Auction 100; and (14) Establishment of an additional default payment of 20 percent under 47 CFR 1.2104(g)(2) in the event that a winning bidder defaults or is disqualified after the auction.

    48. Legal Basis. The Commission's statutory obligations to small businesses participating in a spectrum auction under the Communications Act of 1934, as amended (the Act), are found in 47 U.S.C. 309(j)(3)(B) and 309(j)(4)(D). The statutory basis for the Commission's competitive bidding rules is found in various provisions of the Act, including 47 U.S.C. 154(i), 301, 302, 303(e), 303(f), 303(r), 304, 307, and 309(i). The Commission has established a framework of competitive bidding rules pursuant to which it has conducted auctions since the inception of the auction program in 1994 and would conduct Auction 100. In promulgating those rules, the Commission conducted numerous Regulatory Flexibility Act analyses to consider the possible impact of competitive bidding rules on small businesses that might seek to participate in Commission auctions. The Commission has directed the Bureaus, under delegated authority, to seek comment on a variety of auction-specific procedures prior to the start of bidding in each auction.

    49. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted, 5 U.S.C. 603(b)(3). The RFA generally defines the term small entity as having the same meaning as the terms small business, small organization, and small government jurisdiction, 5 U.S.C. 601(6). In addition, the term small business has the same meaning as the term small business concern under the Small Business Act, 15 U.S.C. 632. A small business concern is one which: (1) Is independently owned and operated, (2) is not dominant in its field of operation, and (3) satisfies any additional criteria established by the SBA, 5 U.S.C. 632.

    50. The specific procedures and minimum opening bid amounts on which comment is sought in the Auction 100 Comment Public Notice will affect directly all applicants participating in Auction 100. There are a maximum of 25 individuals or entities that may become qualified bidders in Auction 100, in which applicant eligibility is closed. Therefore, the specific competitive bidding procedures and minimum opening bid amounts described in the Auction 100 Comment Public Notice will affect only the 25 individuals or entities listed in Attachment A to that Public Notice and who are the only parties eligible to complete the remaining steps to become qualified to bid in Auction 100. These specific 25 Auction 100 individuals or entities include firms of all sizes.

    51. Radio Stations. This Economic Census category comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has established a small business size standard for this category as firms having $38.5 million or less in annual receipts. Economic Census data for 2012 shows that 2,849 radio station firms operated during that year. Of that number, 2,806 firms operated with annual receipts of less than $25 million per year, 17 with annual receipts between $25 million and $49,999,999 and 26 with annual receipts of $50 million or more. Therefore, based on the SBA's size standard, the majority of such entities are small entities.

    52. According to Commission staff review of the BIA/Kelsey, LLC's Media Access Pro Radio Database as of September 6, 2018, about 11,024 (or about 99.92 percent) of 11,033 commercial radio stations had revenues of $38.5 million or less and thus qualify as small entities under the SBA definition. The Bureaus note, however, that the SBA size standard data does not enable the Bureaus to make a meaningful estimate of the number of small entities who may participate in Auction 100.

    53. In assessing whether a business entity qualifies as small under the SBA definition, business control affiliations must be included. The Bureaus' estimate therefore likely overstates the number of small entities that might be affected by its action because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. Moreover, the definition of small business also requires that an entity not be dominant in its field of operation and that the entity be independently owned and operated. The estimate of small businesses to which Auction 100 competitive bidding rules may apply does not exclude any radio station from the definition of a small business on these bases and is therefore over-inclusive to that extent. Furthermore, the Bureaus are unable at this time to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. In addition, the Bureaus note that it is difficult to assess these criteria in the context of media entities and therefore estimates of small businesses to which they apply may be over-inclusive to this extent.

    54. The Bureaus also note that they are unable to accurately develop an estimate of how many of these 25 individuals or entities in Auction 100 are small businesses based on the number of small entities that applied to participate in prior broadcast auctions because that information is not collected from applicants for broadcast auctions in which bidding credits are not based on an applicant's size (as is the case in auctions of licenses for wireless services). Due to specific eligibility criteria adopted in a 2015 Commission rulemaking order, potential eligible bidders in Auction 100 include existing holders of broadcast station construction permits or licenses. In 2013, the Commission estimated that 97 percent of radio broadcasters met the SBA's prior definition of small business concern, based on annual revenues of $7 million. The SBA has since increased that revenue threshold to $38.5 million, which suggests that an even greater percentage of radio broadcasters would fall within the SBA's definition at 13 CFR 121.201. Based on Commission staff review of BIA/Kelsey, LLC's Media Access Pro Radio Database, 4,626 (99.94%) of 4,629 a.m. radio stations have revenue of $38.5 million or less. Accordingly, based on this data, the Bureaus conclude that the majority of Auction 100 eligible bidders would likely meet the SBA's definition of a small business concern.

    55. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities. In the Auction 100 Comment Public Notice, the Bureaus propose no new reporting, recordkeeping, or other compliance requirements for small entities or other auction applicants. The Commission designed the auction application process itself to minimize reporting and compliance requirements for applicants, including small business applicants. In the first part of the Commission's two-phased auction application process, parties desiring to participate in an auction file streamlined, short-form applications in which they certify under penalty of perjury as to their qualifications. Eligibility to participate in bidding is based on an applicant's short-form application and certifications, as well as its upfront payment. In the second phase of the process, there are additional compliance requirements for winning bidders. Thus, a small business that fails to become a winning bidder does not need to file a long-form application and provide the additional showings and more detailed demonstrations required of a winning bidder.

    56. Steps Taken To Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities, 5 U.S.C. 603(c)(1)-(4).

    57. The Bureaus intend that the proposals of the Auction 100 Comment Public Notice to facilitate participation in Auction 100 will result in both operational and administrative cost savings for small entities and other auction participants. In light of the numerous resources that will be available from the Commission at no cost, the processes and procedures proposed in the Auction 100 Comment Public Notice should result in minimal economic impact on small entities. For example, prior to the auction, the Commission will hold a mock auction to allow eligible bidders the opportunity to familiarize themselves with both the bidding processes and systems that will be used in Auction 100. During the auction, participants will be able to access and participate in bidding via the internet using a web-based system, or telephonically, providing two cost-effective methods of participation and avoiding the cost of travel for in-person participation. Further, small entities as well as other auction participants will be able to avail themselves of telephone hotlines for assistance with auction processes and procedures as well as technical support hotlines to assist with issues such as access to or navigation within the electronic FCC Form 175 and use of the FCC's auction system. In addition, all auction participants, including small business entities, will have access to various other sources of information and databases through the Commission that will aid in both their understanding of and participation in the process. These mechanisms are made available to facilitate participation in Auction 100 by all eligible bidders and may result in significant cost savings for small business entities who utilize these mechanisms. These steps, coupled with the advance description of the bidding procedures in Auction 100, should ensure that the auction will be administered efficiently and fairly, thus providing certainty for small entities as well as other auction participants.

    58. These proposed procedures for the conduct of Auction 100 constitute the more specific implementation of the competitive bidding rules contemplated by 47 CFR parts 1 and 73 and the underlying rulemaking orders, including the Broadcast First Report and Order and relevant competitive bidding orders, and are fully consistent therewith.

    59. Federal Rules That May Duplicate, Overlap or Conflict With the Proposed Rules. None.

    C. Ex Parte Rules

    60. This proceeding has been designated as a permit-but-disclose proceeding in accordance with the Commission's ex parte rules. While additional information is provided in the Auction 100 Comment Public Notice on the relevant reporting requirements, participants in Auction 100 should familiarize themselves with the Commission's ex parte rules.

    Federal Communications Commission. Gary D. Michaels, Deputy Chief, Auctions and Spectrum Access Division, Wireless Telecommunications Bureau.
    [FR Doc. 2018-24596 Filed 11-8-18; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket No. 18-320; RM-11817; DA 18-1070] Television Broadcasting Services; Morehead and Richmond, Kentucky AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    At the request of ION Media Lexington License, Inc. (ION), licensee of television station WUPX-TV, channel 21, Morehead, Kentucky (WUPX), the Commission is proposing to amend the DTV Table of Allotments to change WUPX's community of license from Morehead to Richmond, Kentucky. ION asserts that the proposed reallotment is consistent with the Commission's second allotment priority by providing Richmond with its first local transmission service. ION also asserts that the proposed reallotment will not deprive Morehead of its sole broadcast station because it will continue to be served by station WKMR(TV), licensed to Kentucky Authority for Educational TV, on channel *15 at Morehead. ION is not currently proposing to change WUPX's licensed facilities as part of its proposed reallotment.

    DATES:

    Comments must be filed on or before November 26, 2018 and reply comments on or before December 4, 2018.

    ADDRESSES:

    Federal Communications Commission, Office of the Secretary, 445 12th Street SW, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve counsel for petitioner as follows: ION Media Networks, Inc., c/o Terri McGalliard, 601 Clearwater Park Road, West Palm Beach, Florida 33401.

    FOR FURTHER INFORMATION CONTACT:

    Darren Fernandez, Media Bureau, at [email protected]; or Joyce Bernstein, Media Bureau, at [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 18-320; RM-11817; DA 18-1070, adopted October 18, 2018, and released October 18, 2018. Pursuant to section 1.420(i) of the Commission's rules, 47 CFR 1.420(i). The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street SW, Washington, DC 20554, or online at http://apps.fcc.gov/ecfs/. To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to [email protected] or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

    This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

    Members of the public should note that all ex parte contacts are prohibited from the time a Notice of Proposed Rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in §§ 1.1204(a) of the Commission's rules, 47 CFR 1.1204(a).

    See §§ 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.

    List of Subjects in 47 CFR Part 73

    Television.

    Federal Communications Commission. Barbara Kreisman, Chief, Video Division, Media Bureau. Proposed Rule

    For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

    PART 73—RADIO BROADCAST SERVICE 1. The authority citation for part 73 continues to read as follows: Authority:

    47 U.S.C. 154, 303, 334, 336, and 339.

    § 73.622 [Amended]
    2. Amend § 73.622(i), the Post-Transition Table of DTV Allotments under Kentucky, by removing in the entry for Morehead, channel 21, and adding, in alphabetical order an entry for Richmond, channel 21.
    [FR Doc. 2018-24345 Filed 11-8-18; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 600, 622, and 697 [Docket No. 181009921-8921-01] RIN 0648-BI46 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Coastal Migratory Pelagics Resources in the Gulf of Mexico and Atlantic Region; Amendment 31 AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    NMFS proposes to implement management measures described in Amendment 31 to the Fishery Management Plan (FMP) for Coastal Migratory Pelagics (CMP) of the Gulf of Mexico (Gulf) and Atlantic Region (Amendment 31), as prepared by the Gulf of Mexico (Gulf Council) and South Atlantic Fishery Management Councils (South Atlantic Council) (Councils). This proposed rule would remove Atlantic migratory group cobia (Atlantic cobia) from Federal management under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). At the same time, this proposed rule would implement comparable regulations under the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act) to replace the existing Magnuson-Stevens Act based regulations in Atlantic Federal waters. The purpose of Amendment 31 is to facilitate improved coordination of Atlantic cobia in state and Federal waters, thereby more effectively constraining harvest and preventing overfishing and decreasing adverse socio-economic effects to fishermen.

    DATES:

    Written comments must be received by December 10, 2018.

    ADDRESSES:

    You may submit comments on the proposed temporary rule, identified by “NOAA-NMFS-2018-0114,” by either of the following methods:

    Electronic submission: Submit all electronic public comments via the Federal e-Rulemaking Portal: http://www.regulations.gov. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0114 click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Karla Gore, NMFS Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in required fields if you wish to remain anonymous).

    Electronic copies Amendment 31 may be obtained from the Southeast Regional Office website at https://www.fisheries.noaa.gov/action/coastal-migratory-pelagics-amendment-31-management-atlantic-migratory-group-cobia. Amendment 31 includes an environmental assessment, a fishery impact statement, a regulatory impact review, and a Regulatory Flexibility Act (RFA) analysis.

    FOR FURTHER INFORMATION CONTACT:

    Karla Gore, NMFS Southeast Regional Office, telephone: 727-551-5753, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The coastal migratory pelagics fishery in the Atlantic region is managed under the FMP and includes cobia, along with king and Spanish mackerel. The FMP was prepared by the Councils and is implemented by NMFS through regulations at 50 CFR part 622 under authority of the Magnuson-Stevens Act.

    Background

    Through the CMP FMP, cobia is managed in two distinct migratory groups. The first is the Gulf migratory group of cobia that ranges both in the Gulf from Texas through Florida as well as in the Atlantic off the east coast of Florida (Gulf cobia). The second is the Atlantic migratory group of cobia that is managed from Georgia through New York (Atlantic cobia). The boundary between these two migratory groups is the Georgia-Florida state boundary. Both the Gulf and the Atlantic migratory groups of cobia were assessed through SEDAR 28 in 2013 and neither stock was determined to be overfished or experiencing overfishing.

    The majority of Atlantic cobia landings occur in state waters and, despite closures in Federal water in recent years, recreational landings have exceeded the recreational annual catch limit (ACL) and the combined stock ACL. This has resulted in shortened fishing seasons, which have been ineffective at constraining harvest. Following overages of the recreational and combined stock ACLs in 2015 and 2016, Federal waters closures for recreational harvest occurred in both 2016 (June 20) and 2017 (January 24). Additionally, Federal waters were closed to commercial harvest of Atlantic cobia in 2016 (December 5) and 2017 (September 4), because the commercial ACL was projected to be reached during the fishing year.

    Allowable harvest in state waters following the Federal closures varied by time and area. Georgia did not close state waters to recreational harvest of Atlantic cobia in 2016 or 2017. South Carolina allowed harvest in 2016 during May in the Southern Cobia Management Zone and closed state waters in 2017 when Federal waters closed. Most harvest of Atlantic cobia off Georgia and South Carolina occurs in Federal waters. Off North Carolina recreational harvest of Atlantic cobia closed on September 30, 2016; in 2017, harvest was allowed May 1 through August 31. Off Virginia in 2016, harvest was allowed until August 30, 2016, and in 2017, Virginia allowed harvest June 1 through September 15. Harvest in state waters during the Federal closures contributed to the overage of the recreational ACL and the combined stock ACL.

    The South Atlantic Council requested that the Atlantic States Marine Fisheries Commission (ASMFC) consider complementary management measures for Atlantic cobia, as constraining harvest in Federal waters has not prevented the recreational and combined ACLs from being exceeded. The ASMFC consists of 15 Atlantic coastal states that manage and conserve their shared coastal fishery resources. The majority of ASMFC's fisheries decision-making occurs through the Interstate Fisheries Management Program, where species management boards determine management strategies that the states implement through fishing regulations.

    In May 2016, the ASMFC started developing an interstate FMP for Atlantic cobia with the purpose of improving cobia management in the Atlantic. In April 2018, the ASFMC implemented the Interstate FMP, which established state management for Atlantic cobia. Each affected state developed an implementation plan that included regulations in their state waters. In addition, the ASMFC is currently amending the Interstate FMP for Atlantic cobia to establish a mechanism for recommending future management measures to NMFS. If Amendment 31 is implemented, such management measures would need to be implemented in Federal waters through the authority and process defined in the Atlantic Coastal Act.

    The management measures contained within the ASMFC's Interstate FMP are consistent with the current Federal regulations for Atlantic cobia. For the recreational sector, the management measures in the Interstate FMP include a recreational bag and possession limit of one fish per person, not to exceed six fish per vessel per day, and a minimum size limit of 36 inches (91.4 cm), fork length. For the commercial sector, the management measures in the Interstate FMP include a commercial possession limit of two cobia per person, not to exceed six fish per vessel, and a minimum size limit of 33 inches (83.8 cm), fork length. Under the ASMFC plan, regulations in each state must match, or be more restrictive than, the Interstate FMP management measures. Georgia, South Carolina, North Carolina, and Virginia have implemented more restrictive regulations for the recreational sector in their state waters than those specified in the Interstate FMP. Those regulations include recreational bag and vessel limits, and minimum size limits, in addition to allowable fishing seasons. The Interstate FMP also provides the opportunity for states to declare de minimis status for their Atlantic cobia recreational sector if a state's recreational landings for 2 of the previous 3 years is less than 1 percent of the coastwide recreational landings for the same time period. States in a de minimis status would be required to adopt the regulations (including season) of the closest adjacent non-de minimis state or accept a one fish per vessel per day trip limit and a minimum size limit of 29 inches (73.7 cm), fork length. Maryland, Delaware, and New Jersey have declared a de minimis status.

    The Magnuson-Stevens Act requires a council to prepare an FMP for each fishery under its authority that requires conservation and management. Any stocks that are predominately caught in Federal waters and are overfished or subject to overfishing, or likely to become overfished or subject to overfishing, are considered to require conservation and management (50 CFR 600.305(c)(1)). Beyond such stocks, councils may determine that additional stocks require conservation and management. Thus, not every fishery requires Federal management and the NMFS National Standard Guidelines at 50 CFR 600.305(c) provide factors that NMFS and the councils should consider when considering removal of a stock from a FMP. This analysis is contained in Amendment 31.

    Based on this analysis, the Councils and NMFS have determined that Atlantic cobia is no longer in need of conservation and management within the South Atlantic Council's jurisdiction and the stock is eligible for removal from the CMP FMP. The majority of Atlantic group cobia landings are in state waters and the stock is not overfished or undergoing overfishing. Additionally, the CMP FMP has proven ineffective at resolving the primary ongoing user conflict between the recreational fishermen from different states, and it does not currently appear to be capable of promoting a more efficient utilization of the resource. Most significantly, the harvest of Atlantic cobia is adequately managed in state waters by the ASMFC and their Interstate FMP, which was implemented in April 2018. Georgia, South Carolina, North Carolina, and Virginia have implemented more restrictive recreational regulations than those specified in the Interstate FMP. Furthermore, the Interstate FMP requires that if a state's average annual landings over the 3-year time period are greater than their annual harvest target, then that state must adjust their recreational season length or recreational vessel limits for the following 3 years, as necessary, to prevent exceeding their harvest target in the future years. For the commercial sector, the ASMFC's Interstate FMP specified management measures for Atlantic cobia that are consistent with the current ACL and AM specified in the Federal regulations implemented pursuant to the CMP FMP.

    Therefore, NMFS and the Councils have determined that management by the states, in conjunction with the ASMFC and Secretary of Commerce, will be more effective at constraining harvest and preventing overfishing; thereby, offering greater biological protection to the stock and decreasing adverse socioeconomic effects to fishermen. Further, management of Atlantic cobia by the ASMFC is expected to promote a more equitable distribution of harvest of the species among the states.

    Management Measure Contained in This Proposed Rule

    This proposed rule would remove Atlantic cobia from Federal management under the Magnuson-Stevens Act. At the same time, it would implement comparable regulations, in Federal waters, under the Atlantic Coastal Act.

    Current commercial management measures for Atlantic cobia include a minimum size limit of 33 inches (83.8 cm), fork length and a commercial trip limit of two fish per person per day, not to exceed six fish per vessel per day. Federal regulations for recreational harvest of Atlantic cobia in Federal waters include a minimum size limit of 36 inches (91.4 cm), fork length and a bag and possession of one fish per person per day, not to exceed six fish per vessel per day.

    Under the authority of the Atlantic Coastal Act, this proposed rule would implement these same minimum size limits, recreational bag and possession limits, and commercial trip limits in Federal waters. Additionally, this proposed rule would implement regulations consistent with current CMP FMP regulations for the fishing year, general prohibitions, authorized gear, and landing fish intact provisions specific to Atlantic cobia.

    The current Atlantic cobia commercial ACL is 50,000 lb (22,680 kg) and the recreational ACL is 620,000 lb (281,227 kg). The proposed removal of Atlantic cobia from Federal management under the Magnuson-Stevens Act would remove these sector ACLs. Under this proposed rule, a commercial quota of 50,000 lb (22,280 kg), would be implemented consistent with the current commercial ACL. The current commercial accountability measure (AM) requires that if commercial landings reach or are projected to reach the ACL, then commercial harvest will be prohibited for the remainder of the fishing year. This proposed rule would implement commercial quota closure provisions through the Atlantic Coastal Act to prohibit commercial harvest once the commercial quota is reached or projected to be reached.

    The ASMFC's Interstate FMP has specified a recreational harvest limit (RHL) of 613,800 lb (278,415 kg) in state and Federal waters and state-by-state recreational quota shares (harvest targets) of the coastwide RHL. During the development of the Interstate FMP, one percent of the amount of the recreational allocation of the current Federal ACL (initially 6,200 lb (2,812 kg)) was set aside to account for harvests in de minimis states (Maryland, Delaware, and New Jersey). The harvest targets for each state, in both state and Federal waters, are 58,311 lb (26,449 kg) for Georgia, 74,885 lb (33,967 kg) for South Carolina, 236,316 lb (107,191 kg) for North Carolina and 244,292 lb (110,809 kg) for Virginia. Percentage allocations are based on states' percentages of the coastwide historical landings in numbers of fish, derived as 50 percent of the 10-year average landings from 2006-2015 and 50 percent of the 5-year average landings from 2011-2015.

    The proposed removal of Atlantic cobia from Federal management under the Magnuson-Stevens Act would remove the recreational sector AM for Atlantic cobia. The recreational AM requires that both the recreational ACL and the stock ACL are exceeded in a fishing year then in the following fishing year, recreational landings will be monitored for a persistence in increased landings, and, if necessary, the recreational vessel limit will be reduced to no less than 2 fish per vessel to ensure recreational landings achieve the recreational annual catch target, but do not exceed the recreational ACL in that fishing year. Additionally, if the reduction in the recreational vessel limit is determined to be insufficient to ensure that recreational landings will not exceed the recreational ACL, then the length of the recreational fishing season will also be reduced.

    In place of the current recreational AM, state-defined regulations and seasons implemented consistent with the ASMFC's Interstate FMP are designed to keep harvest within the state harvest targets. If a state's average annual landings over the 3-year time period are greater than their annual harvest target, then the Interstate FMP requires the state to adjust their recreational season length or recreational vessel limits for the following 3 years, as necessary, to prevent exceeding their harvest target in the future years.

    If Amendment 31 is subsequently approved and implemented, Atlantic cobia would be managed under the ASMFC's Interstate FMP in state waters and through Atlantic Coastal Act regulations in Federal waters. This will ensure that Atlantic cobia continues to be managed in Federal waters and that there would be no lapse in management of the stock. These regulations would be expected to be implemented concurrently with the removal of Atlantic cobia from the CMP FMP and serve essentially the same function as the current CMP FMP based management measures. It is expected that the Interstate FMP and Atlantic Coastal Act would provide adequate management of Atlantic cobia in state and Federal waters and ensure that the stock has sufficient conservation and management measures in place.

    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 Amendment 31, the FMP, the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment. Additionally, this proposed rule is compatible with the effective implementation of the ASMFC's Interstate Fishery management Plan for Atlantic Migratory Group Cobia.

    This proposed rule has been determined to be not significant for purposes of Executive Order 12866. NMFS expects this proposed rule would reduce regulatory complexity and administrative costs, as well as provide economic benefits to recreational anglers through expanded harvest opportunities in Federal waters and a more stable recreational fishing season for Atlantic cobia.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination follows.

    A description of this proposed rule, why it is being considered, and the objectives of this proposed rule are contained in the preamble. The Magnuson-Stevens Act and the Atlantic Coastal Act provide the statutory basis for this proposed rule.

    This proposed rule would apply to all commercial vessels, charter vessels and headboats (for-hire vessels), and recreational anglers that fish for or harvest Atlantic cobia in Federal waters of the Atlantic. Because no Federal permit is required for the commercial harvest or sale of Atlantic cobia, the distinction between commercial and recreational fishing activity for the purposes of this proposed rule is whether the fish are sold. Individuals that harvest Atlantic cobia under the recreational bag limit in Federal waters and who do not subsequently sell these fish are considered to be recreational anglers. Recreational anglers who would be directly affected by this proposed rule are not considered small entities under the RFA, and are, therefore, outside the scope of this analysis. 5 U.S.C. 603. Small entities include “small businesses,” “small organizations,” and “small governmental jurisdictions.” 5 U.S.C. 601(6) and 601(3)-(5). Recreational anglers are not businesses, organizations, or governmental jurisdictions. In summary, only the impacts on businesses that engage in commercial fishing (i.e., those that sell their harvests of Atlantic cobia) will be discussed.

    For-hire vessels sell fishing services to recreational anglers. The proposed changes to the CMP FMP would not directly alter the services sold by these for-hire vessels. Any change in anglers' demand for these fishing services (and associated economic effects) as a result of the proposed action would be secondary to any direct effect on anglers and, therefore, would be an indirect effect of this proposed rule. Indirect effects are not germane to the RFA; however, because for-hire captains and crew are allowed to harvest and sell Atlantic cobia under the possession limit when the commercial season is open, for-hire businesses, or employees thereof, could be directly affected by this proposed rule as well.

    Data from 2012 through 2016 were used in Amendment 31 and these data provided the basis for the Councils' decisions. Although no Federal permit is required for the commercial harvest and sale of Atlantic cobia, vessels with other Federal commercial permits are required to report their catches for all species harvested, including Atlantic cobia. On average from 2012 through 2016, there were only 100 commercial vessels with Federal permits that reported landings of Atlantic cobia in the South Atlantic (excluding east Florida, which is outside of the Atlantic cobia stock boundary). Their average annual vessel-level revenue from all species for 2012 through 2016 was approximately $62,000 (2017 dollars) and Atlantic cobia accounted for less than 1 percent of this revenue. The maximum annual revenue from all species reported by a single one of these vessels from 2012 through 2016 was approximately $300,000 (2017 dollars). In the Mid-Atlantic, there were 28 vessels, on average, that harvested Atlantic cobia from 2012 through 2016. Complete revenue profiles for these vessels are not available; however, on average, each vessel earned approximately $2,000 (2017 dollars) per year from the sale of Atlantic cobia. Finally, it is unknown how many non-federally permitted vessels may have fished commercially for Atlantic cobia in Federal waters during this time.

    As of June 15, 2018, there were 1,757 valid Federal South Atlantic charter/headboat CMP permits. Although the for-hire permit application collects information on the primary method of operation, the resultant permit itself does not identify the permitted vessel as either a headboat or a charter vessel. Operation as either a headboat or charter vessel is not restricted by permitting regulations and vessels may operate in both capacities. However, only selected headboats are required to submit harvest and effort information to the NMFS Southeast Region Headboat Survey (SRHS). Participation in the SRHS is based on determination by the Southeast Fisheries Science Center that the vessel primarily operates as a headboat. As of June 11, 2018, 64 South Atlantic headboats were registered in the SRHS. As a result, of the 1,757 vessels with South Atlantic charter/headboat CMP permits, up to 64 may primarily operate as headboats and the remainder as charter vessels. The average charter vessel is estimated to receive approximately $120,000 (2017 dollars) in annual revenue. The average headboat is estimated to receive approximately $213,000 (2017 dollars) in annual revenue.

    For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. All of the commercial vessels directly regulated by this proposed rule are believed to be small entities based on the NMFS size standard.

    The SBA 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 would be directly affected by this proposed rule.

    This proposed rule would remove Atlantic cobia and associated regulatory measures from the CMP FMP. The ASMFC would manage Atlantic cobia in state waters and NMFS would promulgate regulations under the Atlantic Coastal Act to replace the existing Magnuson-Stevens Act based regulations in Federal waters. This would ensure that Atlantic cobia continues to be managed in Federal waters and there is no lapse in management of the stock. It is expected that commercial management measures for Atlantic cobia implemented in state waters through the ASMFC Interstate FMP, and in Federal waters through the Atlantic Coastal Act would remain consistent with those currently in place, thereby, not generating any direct economic effects on any small entities.

    The information provided above supports a determination that this proposed rule would not have a significant adverse economic impact on a substantial number of small entities. Because this rule, if implemented, is not expected to have a significant adverse economic impact on any small entities, an initial regulatory flexibility analysis is not required and none has been prepared.

    No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this proposed rule. Accordingly, the Paperwork Reduction Act does not apply to this proposed rule.

    List of Subjects in 50 CFR Parts 600, 622 and 697

    Atlantic, Cobia, Fisheries, Fishing, South Atlantic.

    Dated: November 1, 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 parts 600, 622, and 697 are proposed to be amended as follows:

    PART 600—MAGNUSON-STEVENS ACT PROVISIONS 1. The authority citation for part 600 continues to read as follows: Authority:

    5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

    2. In § 600.725, in paragraph (v), in the table under heading “III. South Atlantic Fishery Management Council,” remove and reserve entry 8.C and add entry 25 to read as follows:
    § 600.725 General prohibitions.

    (v) * * *

    Fishery Authorized gear types *         *         *         *         *         *         * III. South Atlantic Fishery Management Council *         *         *         *         *         *         * 25. Atlantic Migratory Group Cobia (Non-FMP): A. Commercial Fishery A. Longline, handline, rod and reel, bandit gear, spear. B. Recreational Fishery B. Bandit gear, rod and reel, handline, spear. *         *         *         *         *         *         *
    PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC 3. The authority citation for part 622 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    4. In § 622.1, amend Table 1 to § 622.1—FMPs Implemented Under Part 622 by revising the entry for “FMP for Coastal Migratory Pelagic Resources”, and adding footnote 9 to read as follows:
    § 622.1 Purpose and scope. Table 1 to § 622.1—FMPs Implemented Under Part 622 FMP title Responsible fishery management council(s) Geographical area FMP for Coastal Migratory Pelagic Resources GMFMC/SAFMC Gulf 19, Mid-Atlantic 19, South Atlantic 19. *         *         *         *         *         *         * 1 Regulated area includes adjoining state waters for purposes of data collection and quota monitoring. *         *         *         *         *         *         * 9 Cobia is managed by the FMP in the Gulf EEZ and in the South Atlantic EEZ south of a line extending due east from the Florida/Georgia border.
    5. In § 622.375, revise paragraph (a)(2) to read as follows:
    § 622.375 Authorized and unauthorized gear.

    (a) * * *

    (2) Cobia, Gulf migratory group. Subject to the prohibitions on gear/methods specified in § 622.9, the following are the only fishing gears that may be used in the Gulf EEZ, and in the South Atlantic EEZ south of a line extending due east from the Florida/Georgia border for cobia—all gear except drift gillnet and long gillnet.

    6. In § 622.380, revise paragraph (a)(1) and remove and reserve paragraph (a)(2).
    § 622.380 Size limits.

    (a) * * *

    (1) In the Gulf and in the South Atlantic EEZ south of a line extending due east from the Florida/Georgia border—33 inches (83.8 cm), fork length.

    7. In § 622.381, revise the first sentence of paragraph (a) to read as follows:
    § 622.381 Landing fish intact.

    (a) Cobia in or from the Gulf and in the South Atlantic EEZ south of a line extending due east from the Florida/Georgia border, and king mackerel and Spanish mackerel in or from the Gulf, Mid-Atlantic, or South Atlantic EEZ, except as specified for king mackerel and Spanish mackerel in paragraph (b) of this section, must be maintained with head and fins intact. Such fish may be eviscerated, gilled, and scaled, but must otherwise be maintained in a whole condition.* * *

    8. In § 622.382, revise the heading for paragraph (a) and remove paragraph (a)(1)(vi) to read as follows:
    § 622.382 Bag and possession limits.

    (a) King mackerel and Spanish mackerel—* * *

    § 622.384 [Amended]
    9. In § 622.384, remove and reserve paragraph (d)(2).
    § 622.385 [Amended]
    10. In § 622.385, remove paragraph (c).
    § 622.388 [Amended]
    11. § 622.388, remove paragraph (f). 12. Revise Figure 3 of Appendix G to part 622 to read as follows: Appendix G to Part 622—Coastal Migratory Pelagics Zone Illustrations EP09NO18.000 PART 697-ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT 13. The authority citation for part 697 continues to read as follows: Authority:

    16 U.S.C. 5101 et seq.

    14. In § 697.2(a), add the definition for “Atlantic migratory group cobia” in alphabetical order to read as follows:
    § 697.2 Definitions.

    (a) * * *

    Atlantic migratory group cobia, means Rachycentron canadum, a whole fish or a part thereof, bounded by a line extending from the intersection point of New York, Connecticut, and Rhode Island (41°18′16.249″ N lat. and 71°54′28.477″ W long.) southeast to 37°22′32.75″ N lat. and the intersection point with the outward boundary of the EEZ and south to a line extending due east of the Florida/Georgia border (30°42′45.6″ N lat.).

    15. In § 697.7, add paragraph (g) to read as follows:
    § 697.7 Prohibitions.

    (g) Atlantic migratory group cobia. In addition to the prohibitions set forth in § 600.725 of this chapter, it is unlawful for any person to do any of the following:

    (1) Use or possess prohibited gear or methods or possess fish in association with possession or use of prohibited gear, as specified in this part.

    (2) Fish in violation of the prohibitions, restrictions, and requirements applicable to seasonal and/or area closures, including but not limited to: Prohibition of all fishing, gear restrictions, restrictions on take or retention of fish, fish release requirements, and restrictions on use of an anchor or grapple, as specified in this part or as may be specified under this part.

    (3) Possess undersized fish, fail to release undersized fish, or sell or purchase undersized fish, as specified in this part.

    (4) Fail to maintain a fish intact through offloading ashore, as specified in this part.

    (5) Exceed a bag or possession limit, as specified in this part.

    (6) Fail to comply with the species-specific limitations, as specified in this part.

    (7) Fail to comply with the restrictions that apply after closure of a fishery, sector, or component of a fishery, as specified in this part.

    (8) Possess on board a vessel or land, purchase, or sell fish in excess of the commercial trip limits, as specified in this part.

    (9) Fail to comply with the restrictions on sale/purchase, as specified in this part.

    (10) Interfere with fishing or obstruct or damage fishing gear or the fishing vessel of another, as specified in this part.

    (11) Fail to comply with any other requirement or restriction specified in this part or violate any provision(s) in this part.

    16. Add § 697.28 to 50 CFR part 697, Subpart B, to read as follows:
    § 697.28 Atlantic migratory group cobia.

    (a) Fishing year. The fishing year for Atlantic migratory cobia is January 1 through December 31.

    (b) Authorized gear. Subject to the prohibitions on gear/methods in § 697.7, the following are the only fishing gears that may be used for cobia in the EEZ of the Atlantic migratory group—automatic reel, bandit gear, handline, rod and reel, pelagic longline, and spear (including powerheads).

    (c) Size limits. All size limits in this section are minimum size limits. Atlantic migratory group cobia not in compliance with its size limit, as specified in this section, in or from the EEZ, may not be possessed, sold, or purchased. A fish not in compliance with its size limit must be released immediately with a minimum of harm. The operator of a vessel that fishes in the EEZ is responsible for ensuring that fish on board are in compliance with the size limits specified in this section. If a size limit in paragraph (c)(1) or (2) of this section differs from a size limit from an Atlantic state(s), then any vessel operator in the EEZ must comply with the more restrictive requirement or measure when in the waters off that state.

    (1) 33 inches (83.8), fork length, for cobia that are sold (commercial sector).

    (2) 36 inches (91.4 cm), fork length, for cobia that are not sold (recreational sector).

    (d) Landing fish intact. Atlantic migratory group cobia in the EEZ, must be maintained with head and fins intact. Such fish may be eviscerated, gilled, and scaled, but must otherwise be maintained in a whole condition. The operator of a vessel that fishes in the EEZ is responsible for ensuring that fish on that vessel in the EEZ are maintained intact and, if taken from the EEZ, are maintained intact through offloading ashore, as specified in this section.

    (e) Bag and possession limits. If a bag and/or possession limit in paragraph (e)(1) or (2) of this section differs from a bag and/or possession limit from an Atlantic state(s), then any vessel operator in the EEZ must comply with the more restrictive requirement or measure when in the waters off that state.

    (1) Atlantic migratory group cobia that are not sold (recreational sector)—1, not to exceed 6 fish per vessel per day.

    (2) Possession limits. A person who is on a trip that spans more than 24 hours may possess no more than two daily bag limits, provided such trip is on a vessel that is operating as a charter vessel or headboat, the vessel has two licensed operators aboard, and each passenger is issued and has in possession a receipt issued on behalf of the vessel that verifies the length of the trip.

    (f) Quotas. All weights are in round and eviscerated weight combined.

    (1) The following quota applies to persons who fish for cobia and sell their catch—50,000 lb (22,680 kg). If the sum of the cobia landings that are sold, as estimated by the SRD, reach or are projected to reach the quota specified in this paragraph (f)(1) of this section, the AA will file a notification with the Office of the Federal Register to prohibit the sale and purchase of cobia for the remainder of the fishing year.

    (2) Restrictions applicable after a quota closure. (i) If the recreational sector for Atlantic migratory group cobia is open, the bag and possession specified in paragraph (e) of this section apply to all harvest or possession in or from the EEZ. If the recreational sector is closed, all applicable harvest or possession in or from the EEZ is prohibited.

    (ii) The sale or purchase of Atlantic migratory group cobia in or from the EEZ during a closure is prohibited. The prohibition on the sale or purchase during a closure does not apply to Atlantic migratory group cobia that were harvested, landed ashore, and sold prior to the effective date of the closure and were held in cold storage by a dealer or processor.

    (g) Commercial trip limits. Commercial trip limits are limits on the amount of Atlantic migratory group cobia that may be possessed on board or landed, purchased, or sold from a vessel per day. A person who fishes in the EEZ may not combine a trip limit specified in this section with any trip or possession limit applicable to state waters. Atlantic migratory group cobia specified in this section taken in the EEZ may not be transferred at sea, regardless of where such transfer takes place, and such species may not be transferred in the EEZ. Commercial trip limits apply as follows—Until the commercial quota specified in paragraph (f)(1) of this section is reached, 2 fish per person, not to exceed 6 fish per vessel.

    [FR Doc. 2018-24343 Filed 11-8-18; 8:45 am] BILLING CODE 3510-22-P
    83 218 Friday, November 9, 2018 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request November 6, 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 required 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 December 10, 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), New Executive Office Building, 725—17th Street NW, Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to: [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.

    Farm Service Agency

    Title: Request for Aerial Photography.

    OMB Control Number: 0560-0176.

    Summary of Collection: The information collection is needed to enable the Department of Agriculture to effectively administrate the Aerial Photography Program. The Aerial Photography Field Office (APFO) has the responsibility for conducting and coordinating the FSA's aerial photography, remote sensing programs, and the aerial photography flying contract programs. The digital and film imagery secured by Farm Service Agency (FSA) is public domain and reproductions are available at cost to any customer with a need. All receipts from the sale of aerial photography products and services are retained by FSA. The FSA-441, Request for Aerial Photography, is the form FSA supplies to the customers for placing an order for aerial imagery products and services. FSA also collects information using the following two FSA 441B, Customer Digital Print Form, and FSA 441C APFO Service Quality Survey.

    Need and Use of the Information: FSA will collect the name, address, contact name, telephone, fax, email, customer code, agency code, purchase order number, credit card number/exp. date and amount remitted/PO amount. Customers have the option of placing orders by mail, fax, telephone, and walk-in. Furnishing this information requires the customer to research and prepare their request before submitting it to APFO. Information collected is used to process fiscal obligations, communicate with the customer, process the request, and ship the requested products.

    Description of Respondents: Farms; Individuals or household; Business or other for-profit; Federal Government; State, Local or Tribal Government.

    Number of Respondents: 1,465.

    Frequency of Responses: Recordkeeping; Reporting; Annually; Other (when ordering).

    Total Burden Hours: 433.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2018-24529 Filed 11-8-18; 8:45 am] BILLING CODE 3410-05-P
    DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service [Docket No. FSIS-2018-0043] Changes to the Salmonella and Campylobacter Verification Testing Program: Revised Categorization and Follow-Up Sampling Procedures AGENCY:

    Food Safety and Inspection Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    The Food Safety and Inspection Service (FSIS) is announcing and requesting comments on revised categorization and follow-up sampling procedures relative to pathogen reduction performance standards. FSIS will proceed with web-posting individual establishments' category status for pathogen reduction performance standards for Salmonella in raw chicken parts and not-ready-to-eat (NRTE) comminuted chicken and turkey, as previously announced, and updating individual poultry carcass establishments' category status in November. However, the category status reported will be based on FSIS sample results during the 52-week window ending the last Saturday of the previous month, rather than on results during the last 13 completed 52-week windows. At the same time, FSIS will no longer include follow-up sampling results as part of the moving window when determining establishment category status. Finally, FSIS will update the individual establishments' category status on its website on a monthly basis and will maintain the last six months of historical establishment-specific categorization data on the website, as it becomes available, using the revised categorization procedures announced in this notice.

    FSIS intends to use the revised categorization procedures for all establishments subject to a pathogen reduction performance standard for Salmonella or Campylobacter, including beef and pork establishments, in the future. FSIS will announce any expanded use of the revised procedures in the Federal Register and will request public comment.

    FSIS will proceed with implementing the changes on the date announced in this notice. However, FSIS is seeking comments on the changes as part of its effort to continuously assess and improve the effectiveness of Agency policy.

    DATES:

    Submit comments on or before December 10, 2018. On November 23, 2018, FSIS will:

    • Web-post individual establishments' category status for pathogen reduction performance standards for Salmonella in raw chicken parts and NRTE comminuted chicken and turkey and update individual poultry carcass establishments' category status based on FSIS sample results during the 52-week window ending on October 27, 2018;

    • Discontinue including follow-up sampling results as part of the moving window when determining category status for that establishment; and

    • Begin updating individual establishments' category status on the FSIS website on a monthly basis using the revised procedures announced in this notice.

    ADDRESSES:

    FSIS invites interested persons to submit comments on this notice. Comments may be submitted by one of the following methods:

    Federal eRulemaking Portal: This website provides the ability to type short comments directly into the comment field on this web page or attach a file for lengthier comments. Go to http://www.regulations.gov. Follow the on-line instructions at that site for submitting comments.

    Mail, including CD-ROMs, etc.: Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, 1400 Independence Avenue SW, Mailstop 3758, Room 6065, Washington, DC 20250-3700.

    Hand- or courier-delivered submittals: Deliver to 1400 Independence Avenue SW, Room 6065, Washington, DC 20250-3700.

    Instructions: All items submitted by mail or electronic mail must include the Agency name and docket number FSIS-2018-0043. Comments received in response to this docket will be made available for public inspection and posted without change, including any personal information, to http://www.regulations.gov.

    Docket: For access to background documents or comments received, call (202) 720-5627 to schedule a time to visit the FSIS Docket Room at 1400 Independence Avenue SW, Room 6065, Washington, DC 20250-3700.

    FOR FURTHER INFORMATION CONTACT:

    Roberta Wagner, Assistant Administrator, Office of Policy and Program Development by telephone at (202) 205-0495.

    SUPPLEMENTARY INFORMATION:

    FSIS is responsible for verifying that the nation's commercial supply of meat, poultry, and egg products is safe, wholesome, and correctly packaged and labeled. In support of this mission, FSIS began its Salmonella verification testing program with the final rule entitled “Pathogen Reduction; Hazard Analysis and Critical Control Point Systems” (PR/HACCP Rule), published on July 25, 1996 (61 FR 38805). Among other things, the PR/HACCP Rule established Salmonella pathogen reduction performance standards for establishments that slaughter selected classes of food animals and/or that produce selected classes of raw ground products. FSIS continues to use the pathogen reduction performance standards to ensure that eligible establishments are consistently controlling or reducing harmful bacteria on raw meat and poultry products.

    FSIS began posting individual establishment categories for Salmonella performance standards for poultry carcasses in May 2016.1 In November 2016, FSIS temporarily suspended the web posting of category status for individual carcass establishments to analyze the effect of the use of FSIS's new neutralizing Buffered Peptone Water on the Salmonella performance standards and to assess the implementation of follow-up sampling at Category 3 poultry carcass establishments (that is, establishments not meeting the standard). Upon conclusion of these analyses, FSIS resumed web posting of individual establishments' category status for Salmonella performance standards for poultry carcasses on January 23, 2018. As discussed in the February 11, 2016 Federal Register notice, data support that public posting of establishment performance encourages establishments to make changes to address Salmonella (81 FR 7285).

    1https://www.fsis.usda.gov/wps/portal/fsis/topics/data-collection-and-reports/microbiology/salmonella-verification-testing-program/establishment-categories-cu.

    FSIS also explained in the February 2016 Federal Register notice how it would assess establishment performance using a moving window of FSIS sampling results in poultry establishments subject to a pathogen reduction performance standard. For all establishments, FSIS defines an individual window as the results from FSIS sampling over 52 consecutive Sunday-to-Saturday weeks. Under the policy in the February 2016 Federal Register notice, FSIS used for each window all FSIS samples taken in any given week, including follow-up samples collected by FSIS to verify the adequacy of corrective actions taken by an establishment that was not meeting a performance standard. The category assigned to an establishment has been based on results in the 13 most recent completed 52-week windows, which includes 64 weeks of data. If the establishment exceeded the performance standard in any of the last 13 completed windows, it was assigned to Category 3, i.e., designated as not meeting the standard (81 FR at 7287). Thus, under this policy, establishments that implemented effective corrective actions and demonstrated sustained process control remained in Category 3 until all 13 windows registered Category 1 or 2, i.e., reflected that the establishment was meeting the performance standard over 13 52-week windows.

    Although assessing 13 windows of data reduces the chance that an establishment's category status will change when there is no actual improvement in process control and improves FSIS's ability to assign small and very small establishments to a category,2 an establishment's category status may not necessarily reflect the current conditions in an establishment that has taken effective corrective actions. Under the current policy, even if an establishment has been in category 1 for multiple weeks, if it was in category 3 in any one of the last 13 52-week windows, FSIS would designate that establishment as category 3. Representatives from the poultry industry have raised these concerns to FSIS. In response to their concerns and internal concerns about whether the 13-window categorization procedure is accurately indicating the state of an establishment's process control following implementation of corrective actions, FSIS has reevaluated its policies.

    2 Since there are 13 52-week windows, an establishment has 13 chances to be categorized. With fewer windows, fewer establishments may be categorized. This is because there is a minimum number of samples needed to assess process control for each product class by pathogen (e.g., the minimum number of samples for Salmonella in broiler carcasses is 11).

    Changes to Categorization Procedure

    With the goal of encouraging sustained improvements in process control while still accurately reflecting current conditions in the establishment, FSIS has considered a full range of alternatives to the current 13-window categorization procedure. Based on the evaluation of available data, FSIS concluded that reducing the number of completed 52-week windows assessed from 13 to one (1) is the best means to accomplish this goal. This approach will continue to minimize the effect of seasonal variation in pathogen incidence on category status, while providing a pathway for establishments to improve their category status after implementing effective corrective actions. This approach is far less complex than the current 13-window categorization procedure. This approach will not have an effect on public health.

    FSIS anticipates that the revised categorization procedure could reduce category stability over time, meaning that establishments could experience more frequent changes in category status. Using data analyzed over a 20-month period (from January 2017 to August 2018), FSIS compared the current 13-window categorization procedure to the revised 1-window categorization procedure and found the effect on stability of the revised categorization procedure for establishments was minimal for most establishments. The largest effect on stability was observed with establishments producing raw chicken parts. For these establishments, the number of establishments assigned to Category 3 two or more times over the 20-month period increased, from six establishments (1 percent) under the current 13-window categorization procedure, to 49 establishments (12 percent) using the revised 1-window categorization procedure. This finding could be due to the variability in the incidence of Salmonella in raw chicken parts compared to other products.

    In addition, available data suggests the revised categorization procedure has the greatest potential to reduce the time an establishment spends in Category 3 when it has taken effective corrective actions. FSIS evaluated the impact of the revised categorization procedure for eligible establishments producing chicken carcasses from January 2017 to August 2018. Under the revised procedure, the 75th percentile for time spent in Category 3 for these establishments was 156 days, compared to 234 days under the current 13-window categorization procedure. This means that with the revised categorization procedure, 75 percent of these establishments remained in Category 3 for 156 days or less, compared to 234 days or less for the current 13-window categorization procedure.

    On November 23, 2018, FSIS will post on its website the category status of individual establishments for pathogen reduction performance standards for Salmonella in raw chicken parts and NRTE comminuted chicken and turkey, as previously announced,3 and updated individual poultry carcass establishments' category status. However, the category status reported will be based on FSIS sample results, excluding any follow-up sample results, during the 52-week window ending on October 27, 2018, rather than on sample results, including follow-up sample results, in the last 13 completed 52-week windows. FSIS will categorize these establishments following the criteria below:

    3 On May 4, 2018, FSIS announced an initial posting date for raw chicken parts and NRTE comminuted poultry products of “October 2018” in the Constituent Update. Subsequently, the date was extended to “November 2018 . . . after Thanksgiving.” Webinar presented to stakeholders with new date is available at https://www.fsis.usda.gov/wps/wcm/connect/f059169f-5cb3-4ae5-9388-7de79b9fa217/Salmonella-Categorization-Webinar061318.pdf?MOD=AJPERES.

    Category 1: Establishments that have achieved 50 percent or less of the maximum allowable percent positive during the most recent completed 52-week moving window.

    Category 2: Establishments that meet the maximum allowable percent positive but have results greater than 50 percent of the maximum allowable percent positive during the most recent completed 52-week moving window.

    Category 3: Establishments that have exceeded the maximum allowable percent positive during the most recent completed 52-week moving window.

    Thereafter, FSIS will update category status on the FSIS website for these establishments using the revised categorization procedures on a monthly basis based on the category status for the 52-week window ending the last Saturday of the previous month.

    To be clear, the pathogen reduction performance standards for Salmonella in young chicken or turkey carcasses, raw chicken parts, and NRTE comminuted chicken and turkey products, and the minimum number of samples needed for FSIS to assess whether these establishments meet the standards have not changed.

    Follow-Up Sampling

    FSIS also examined the role of follow-up samples established in the February 2016 Federal Register notice, where FSIS stated that follow-up samples would count towards the samples collected as part of the moving window for that establishment. FSIS established that policy because we thought it would more quickly assess whether establishments have reduced variability of process control. FSIS evaluated follow-up sampling results from establishments producing chicken carcasses since January 2017, when this sampling was introduced. The Agency concluded that follow-up sample results did not significantly influence the amount of time that establishments resided in Category 3 and that FSIS could effectively categorize establishments without including Agency follow-up sampling results.

    Therefore, starting with the data posted on November 23, 2018, FSIS will no longer include follow-up sampling results as part of the moving window when determining establishment category status. FSIS's evaluation of its follow-up sampling strategy is ongoing. Potential changes being considered include the timing and number of follow-up samples collected. While these and other potential changes are considered, FSIS will continue conducting follow-up sampling in establishments that do not meet a Salmonella pathogen reduction performance standard. However, to reduce the potential for redundant FSIS resource expenditure in establishments that undergo multiple changes in category status over a short period of time, FSIS will consider limiting the number of follow-up sets of samples 4 and Public Health Risk Evaluations initiated when an establishment exceeds a pathogen reduction performance standard to no more than once every 120 days. The justification for this is that an establishment is provided 30 days to implement corrective actions prior to assignment of the follow-up sample set in the Public Health Information System. Establishments then have 90 days to validate any changes to their Hazard Analysis and Critical Control Point (HACCP) system after being notified that it is in Category 3.

    4 Depending on production volume, 16 or 8 samples would be collected as part of a follow-up sample set.

    Additional Information

    In addition to posting establishment-specific category status information, FSIS intends to begin maintaining historical individual establishment categorization data on the FSIS website. FSIS estimates providing six months of historical categorization data for each establishment would be useful for those who want to make business decisions using the information. FSIS currently only maintains the most recent monthly individual establishment posting on its website. FSIS will also continue providing aggregate sampling results relative to categories for establishments producing young chicken or turkey carcasses, raw chicken parts, or NRTE comminuted chicken and turkey products.5 FSIS will continue to maintain the most recent year of aggregate data reports on its website as well.

    5 Available at https://www.fsis.usda.gov/wps/portal/fsis/topics/data-collection-and-reports/microbiology/salmonella-verification-testing-program/aggregate-data.

    FSIS intends to use the revised categorization and any follow-up sampling methodology, as well as the web posting procedures announced in this notice, for any establishment subject to a pathogen reduction performance standard for Salmonella or Campylobacter at a future time, including beef and pork establishments. FSIS will announce any expanded use of the revised procedures in the Federal Register and will request public comment.

    Additional Public Notification

    Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication online through the FSIS web page located at: http://www.fsis.usda.gov/federal-register.

    FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. The Constituent Update is available on the FSIS web page. Through the web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service, which provides automatic and customized access to selected food safety news and information. This service is available at: http://www.fsis.usda.gov/subscribe. Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

    USDA Non-Discrimination Statement

    No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.

    How To File a Complaint of Discrimination

    To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your authorized representative.

    Send your completed complaint form or letter to USDA by mail, fax, or email:

    Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW, Washington, DC 20250-9410.

    Fax: (202) 690-7442.

    Email: [email protected]

    Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

    Carmen M. Rottenberg, Administrator.
    [FR Doc. 2018-24540 Filed 11-8-18; 8:45 am] BILLING CODE 3410-DM-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the North Carolina Advisory Committee AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Notice of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights and the Federal Advisory Committee Act that the North Carolina Advisory Committee will hold a meeting on Thursday, December 12, 2018, to discuss potential project topics.

    DATES:

    The meeting will be held on Thursday, December 12, 2018, 12:00 p.m. EST.

    ADDRESSES:

    The meeting will be by teleconference. Toll-free call-in number: 1-855-710-4181, conference ID: 7959093.

    For Additional Information Contact: Jeff Hinton, DFO, at [email protected] or 1-202-499-0263.

    SUPPLEMENTARY INFORMATION:

    Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference operator will ask callers to identify themselves, the organizations they are affiliated with (if any), and an email address prior to placing callers into the conference call. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Program Unit Office, U.S. Commission on Civil Rights, 230 S. Dearborn, Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353-8324, or emailed to Regional Director, Jeffrey Hinton at [email protected] Persons who desire additional information may contact the Regional Program Unit Office at (312) 353-8311.

    Records generated from this meeting may be inspected and reproduced at the Regional Program Unit, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, North Carolina Advisory Committee link. Persons interested in the work of this Committee are directed to the Commission's website, http://www.usccr.gov, or may contact the Southern Regional Office at the above email or street address.

    Agenda Welcome and Introductions Thea Monet, Chair North Carolina Advisory Committee discussion of potential project topics Thea Monet, Chair Open Comment Staff/Advisory Committee Public Participation Adjournment Dated: November 5, 2018. David Mussatt, Supervisory Chief, Regional Program Unit.
    [FR Doc. 2018-24499 Filed 11-8-18; 8:45 am] BILLING CODE P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Kentucky Advisory Committee AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Notice of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights and the Federal Advisory Committee Act that the Kentucky Advisory Committee will hold a meeting on Thursday, December 6, 2018, for the purpose of continuing committee discussion of project proposal topics.

    DATES:

    The meeting will be held on Thursday, December 6, 2018, 3:30 p.m. EST.

    ADDRESSES:

    The meeting will be by teleconference. Toll-free call-in number: 1-855-710-4181, conference ID: 8905137.

    FOR FURTHER INFORMATION CONTACT:

    Jeff Hinton, DFO, at [email protected] or 1-202-499-0263.

    SUPPLEMENTARY INFORMATION:

    Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference operator will ask callers to identify themselves, the organizations they are affiliated with (if any), and an email address prior to placing callers into the conference call. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Program Unit Office, U.S. Commission on Civil Rights, 230 S. Dearborn, Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353-8324, or emailed to Regional Director, Jeffrey Hinton at [email protected] Persons who desire additional information may contact the Regional Program Unit Office at (312) 353-8311.

    Records generated from this meeting may be inspected and reproduced at the Regional Program Unit, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Kentucky Advisory Committee link. Persons interested in the work of this Committee are directed to the Commission's website, http://www.usccr.gov, or may contact the Southern Regional Office at the above email or street address.

    Agenda Welcome and attendance of advisory committee members Dr. Betty Griffin, Chairman/Jeff Hinton, Regional Director, USCCRSRO Kentucky Advisory Committee update/discussion of project proposal topics Dr. Betty Griffin, Chairman, Advisory Committee Open Comment Advisory Committee Public Participation Adjournment Dated: November 5, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-24503 Filed 11-8-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-45-2018] Foreign-Trade Zone (FTZ) 70—Detroit, Michigan, Authorization of Production Activity, Brose New Boston, Inc. (Passenger Vehicle and SUV Subassemblies), New Boston, Michigan

    On July 6, 2018, Brose New Boston, Inc. submitted a notification of proposed production activity to the FTZ Board for its facility within Subzone 70X, in New Boston, Michigan.

    The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the Federal Register inviting public comment (83 FR 33918, July 18, 2018). On November 5, 2018, the applicant was notified of the FTZ Board's decision that no further review of the activity is warranted at this time. The production activity described in the notification was authorized, subject to the FTZ Act and the FTZ Board's regulations, including Section 400.14.

    Dated: November 5, 2018. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2018-24555 Filed 11-8-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG620 Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The Research Steering Committee of the Mid-Atlantic Fishery Management Council will hold a meeting.

    DATES:

    The meeting will be held on Tuesday, November 27, beginning at 10 a.m. and conclude by 12 p.m. For agenda details, see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    The meeting will be held via webinar. Details on the proposed agenda, webinar listen-in access, and briefing materials will be posted at the MAFMC's website: www.mafmc.org.

    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:

    Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.

    SUPPLEMENTARY INFORMATION:

    The purpose of this Research Steering Committee meeting is to discuss the current state of the Collaborative Research Program, as well as make recommendations to the Council regarding future collaborative research initiatives. Agenda topics include: A review of the current program, status of Council funded research projects, future research topics and opportunities, and research set-aside.

    Dated: November 6, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-24600 Filed 11-8-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG610 New England Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Wednesday, November 28, 2018 at 9 a.m.

    ADDRESSES:

    The meeting will be held at the Hilton Providence, 21 Atwells Avenue, Providence, RI 02903; phone: (401) 919-5007.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION:

    Agenda

    The Scallop Committee will be discussing Framework 30 with an emphasis on reviewing specifications alternatives in Framework 30 and make final recommendations. Framework 30 will set specifications including acceptable biological catch/annual catch limit (ABC/ACLs), Days at Sea (DAS), access area allocations for Limited Access (LA) and Limited Access General Category (LAGC), Total Allowable Catch (TAC) for Northern Gulf of Maine (NGOM) management area, target-TAC for LAGC incidental catch and set-asides for the observer and research programs for fishing year 2019 and default specifications for fishing year 2020. Review standard default measures developed through Framework 30 and make final recommendations. Other business may be discussed as necessary.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 6, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-24588 Filed 11-8-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG615 North Pacific Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of public meetings of the North Pacific Fishery Management Council and its advisory committees.

    SUMMARY:

    The North Pacific Fishery Management Council (Council) and its advisory committees will meet December 3, 2018 through December 11, 2018.

    DATES:

    The Council will begin its plenary session at 8 a.m. in the Aleutian Room on Wednesday, December 5, 2018 continuing through Tuesday, December 11, 2018. The Council's Scientific and Statistical Committee (SSC) will begin at 8 a.m. in the King Salmon/Iliamna Room on Monday, December 3, 2018 and continue through Wednesday, December 5, 2018. The Council's Advisory Panel (AP) will begin at 8 a.m.in the Dillingham/Katmai Room on Tuesday, December 4, 2018 and continue through Saturday, December 8, 2018. The Charter Halibut Management Committee will meet on Monday, December 3, 2018 from 1 p.m. to 5 p.m. (room TBD). The Cook Inlet Salmon Committee will meet on Tuesday, December 4, 2018 from 8 a.m. to 5 p.m. (room TBD). The Enforcement Committee will meet on Tuesday, December 4, 2018 from 1 p.m. to 4 p.m.

    ADDRESSES:

    The meeting will be held at the Anchorage Hilton Hotel, 500 W 3rd Ave, Anchorage, AK 99501.

    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 Evans, Council staff; telephone: (907) 271-2809.

    SUPPLEMENTARY INFORMATION:

    Agenda Monday, December 3, 2018 through Tuesday, December 11, 2018

    Council Plenary Session: The agenda for the Council's plenary session will include the following issues. The Council may take appropriate action on any of the issues identified.

    (1) Executive Director's Report (including Joint Protocol Committee Report, and update on Halibut Stakeholder Committee) (2) NMFS Management Report (including year-end inseason management report, Final 2019 Observer Annual Deployment Plan) (3) NOAA GC Report (including report on recusal rule (T)) (4) NOAA Enforcement Report (5) ADF&G Report (6) USCG Report (7) USFWS Report (8) IPHC Report (9) Protected Species Report (10) 2019 Charter halibut management measures—Final action (11) GOA Groundfish Harvest Specifications—Final specifications, Ecosystem Status report, PT report (12) BSAI Groundfish Harvest Specifications—Final specifications, Ecosystem Status report, PT report (13) Bering Sea Fishery Ecosystem Plan—Adopt FEP, Ecosystem Committee report (14) AI Pacific cod set aside adjustment—Final action (15) Bering Sea Snow Crab PSC limits—Initial Review (16) GOA pollock, cod seasons/allocations—Initial Review (17) Exempted Fishing Permits for Adak pollock, A80 crab monitoring—Review (18) Western GOA pollock vessel limitations—Discussion paper (19) Observer coverage on vessels delivering to tenders—Update, action as necessary (20) Trawl EM 2019 Cooperative Research Plan—Review, EMC report (21) Central GOA Rockfish reauthorization—Discussion Paper (22) BSAI Pacific cod allocation review—Review workplan (23) Cook Inlet Salmon FMP amendment—Discussion Paper, CISC report (24) Social Science Planning Team—Report, staff suggestions for tribal representative

    The Advisory Panel will address Council agenda items (10) through (24).

    The SSC agenda will include the following issues:

    (1) Exempted Fishing Permits for Adak pollock, A80 crab monitoring—Review (2) BSAI Pacific cod allocation review—Review workplan (3) GOA Groundfish Harvest Specifications—Final specifications, Ecosystem Status report, PT report (4) BSAI Groundfish Harvest Specifications—Final specifications, Ecosystem Status report, PT report (5) Bering Sea Snow Crab PSC limits—Initial Review (6) GOA pollock, cod seasons/allocations—Initial Review (7) Bering Sea Fishery Ecosystem Plan—Adopt FEP, Ecosystem Committee report

    In addition to providing ongoing scientific advice for fishery management decisions, the SSC functions as the Council's primary peer review panel for scientific information, as described by the Magnuson-Stevens Act section 302(g)(1)(e), and the National Standard 2 guidelines (78 FR 43066). The peer review process is also deemed to satisfy the requirements of the Information Quality Act, including the OMB Peer Review Bulletin guidelines.

    The Charter Halibut Management Committee will review and recommend management measures for the charter halibut fisheries in International Pacific Halibut Commission (IPHC) areas 2C and 3A for implementation in 2019, and other business. The Enforcement Committee will review the Enforcement Committee Terms of Reference and Enforcement Precepts, and will receive a presentation of anonymous survey results from Observers regarding observer safety/harassment.

    The Cook Inlet Salmon Committee agenda will include the following issues:

    (1) Review and provide comments on specific, Council-identified issues (2) Develop options for fishery management measures for specific, Council-identified management needs (3) Provide perspectives on potential social and economic impacts of proposed fishery management measures

    The Agendas are subject to change, and the latest versions will be posted at http://www.npfmc.org/

    Public Comment

    Public comment letters will be accepted and should be submitted either electronically via the eCommenting portal at: meetings.npfmc.orgor through the mail: North Pacific Fishery Management Council, 605 W. 4th Ave., Suite 306, Anchorage, AK 99501-2252. Deadline for comments is November 30, 2018, at 12 p.m.

    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: November 6, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-24601 Filed 11-8-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG616 North Pacific Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of telephonic meeting.

    SUMMARY:

    The North Pacific Fishery Management Council (Council) Ecosystem Committee will hold a teleconference on November 27, 2018.

    DATES:

    The meeting will be held on Tuesday, November 27, 2018 from 1 p.m. to 4 p.m., Alaska Standard Time.

    ADDRESSES:

    The meeting will be held telephonically. Teleconference line: (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:

    Steve MacLean, Council staff; telephone: (907) 271-2809.

    SUPPLEMENTARY INFORMATION:

    Agenda Tuesday, November 27, 2018

    The meeting agenda includes review and discussion of the Bering Sea Fishery Ecosystem Plan. The Agenda is subject to change, and the latest version will be posted at: https://www.npfmc.org/committees/ecosystem-committee

    Public Comment

    Public comment letters will be accepted and should be submitted either electronically to Steve MacLean, 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 co-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: November 6, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-24599 Filed 11-8-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG617 North Pacific Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of telephonic meeting.

    SUMMARY:

    The North Pacific Fishery Management Council (Council) Halibut Stakeholder Committee will hold a teleconference on November 29, 2018.

    DATES:

    The meeting will be held on Thursday, November 29, 2018, from 10 a.m. to 12 p.m., Alaska Standard Time.

    ADDRESSES:

    The meeting will be held telephonically. Teleconference line: (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:

    Diana Stram, Council staff; telephone: (907) 271-2809.

    SUPPLEMENTARY INFORMATION:

    Agenda Thursday, November 29, 2018

    The agenda will be to discuss terms of reference for the committee, timing and process for submission of scenarios, information available, process for recommending management objectives and performance metrics, scheduling, and other issues. The Agenda is subject to change, and the latest version will be posted at: https://www.npfmc.org

    Public Comment

    Public comment letters will be accepted and should be submitted either electronically to Diana Stram, 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: November 6, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-24602 Filed 11-8-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG609 New England Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Tuesday, November 27, 2018 at 9 a.m.

    ADDRESSES:

    The meeting will be held at the Hilton Providence, 21 Atwells Avenue, Providence, RI 02903; phone: (401) 919-5007.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION:

    Agenda

    The Scallop Advisory Panel will be discussing Framework 30 with an emphasis on reviewing specifications alternatives in Framework 30 and make final recommendations. Framework 30 will set specifications including acceptable biological catch/annual catch limit (ABC/ACLs), Days at Sea (DAS), access area allocations for Limited Access (LA) and Limited Access General Category (LAGC), Total Allowable Catch (TAC) for Northern Gulf of Maine (NGOM) management area, target-TAC for LAGC incidental catch and set-asides for the observer and research programs for fishing year 2019 and default specifications for fishing year 2020. Review standard default measures developed through Framework 30 and make final recommendations. Other business may be discussed as necessary.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 6, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-24593 Filed 11-8-18; 8:45 am] BILLING CODE 3510-22-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Proposed Addition and Deletions AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Proposed addition to and deletions from the Procurement List.

    SUMMARY:

    The Committee is proposing to add a service to the Procurement List that will be provided by a nonprofit agency employing persons who are blind or have other severe disabilities, and deletes products and services previously furnished by such agencies.

    DATES:

    Comments must be received on or before: December 9, 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.

    Addition

    If the Committee approves the proposed addition, the entities of the Federal Government identified in this notice will be required to procure the service listed below from a nonprofit agency employing persons who are blind or have other severe disabilities.

    The following service is proposed for addition to the Procurement List for production by the nonprofit agency listed:

    Service Type: Total Facility Management Service Mandatory for: U.S. Coast Guard, U.S. Coast Guard Training Center (TRACEN), U.S. Coast Guard Training Center, Yorktown, VA Mandatory Source of Supply: Skookum Educational Programs, Bremerton, WA Contracting Activity: U.S. Coast Guard SILC BSS Deletions

    The following products and services are proposed for deletion from the Procurement List:

    Products NSN(s)—Product Name(s): 6645-01-623-8819—Clock, Wall, Quartz, Mahogany, 15.5″ Diameter 6645-01-623-8820—Clock, Wall, Self-Set, Mahogany, 15.5″ Diameter 6645-01-623-8821—Clock, Wall, Quartz, Custom Logo, Mahogany, 15.5″ Diameter 6645-01-623-8822—Clock, Wall, Self-Set, Custom Logo, Mahogany, 15.5″ Diameter 6645-01-557-3159—Clock, Wall, Self-Set, Bronze, 8″ Diameter 6645-01-557-8132—Clock, Wall, Self-Set, Custom Logo, Bronze, 8″ Diameter Mandatory Source of Supply: Chicago Lighthouse Industries, Chicago, IL Contracting Activity: GSA/FAS ADMIN SVCS ACQUISITION BR(2), NEW YORK, NY NSN(s)—Product Name(s): MR 440—Candle, Soy, Vanilla Cupcake Scented, 8.5oz MR 441—Candle, Soy, Berry Fusion Scented, 8.5oz MR 442—Candle, Soy, Cinnamon Apple Scented, 8.5oz MR 444—Candle, Soy, Macintosh Apple Scented, 8.5oz MR 446—Candle, Soy, Caribbean Breezes Scented, 8.5oz MR 357—Tumblers, Red, White and Blue, Includes Shipper 10357 Mandatory Source of Supply: Industries for the Blind and Visually Impaired, Inc., West Allis, WI Contracting Activity: Defense Commissary Agency Services Service Type: Janitorial/Custodial Service Mandatory for: U.S. Army Reserve Center: 5200 Wissahickon Avenue, Philadelphia, PA U.S. Army Reserve Center: 500 W. 24th Street, Chester, PA Mandatory Source of Supply: The Chimes, Inc., Baltimore, MD Contracting Activity: Dept of the Army, W40M Northeregion Contract OFC Service Type: Janitorial/Custodial Service Mandatory for: U.S. Army Reserve Center: 1750 East 29th Street Tucson, AZ Mandatory Source of Supply: Catholic Community Services of Southern Arizona, Tucson, AZ Contracting Activity: Dept of the Army, W40M Northeregion Contract OFC Service Type: Grounds Maintenance Service Mandatory for: Naval Support Activity: 2300 General Meyers Avenue 2300 General Meyers Avenue Algiers, LA Mandatory Source of Supply: Goodworks, Inc., New Orleans, LA Contracting Activity: Dept of the Navy, NAVFAC Southeast Service Type: Janitorial/Custodial Service Mandatory for: Navy Aviation Supply Office: Buildings 3A, 3B, 3C, 3D, 4A, 5A, 5B, 36/1, 36/2, 36/3, and 11 Trailers Philadelphia, PA Mandatory Source of Supply: The Chimes, Inc., Baltimore, MD Contracting Activity: Dept of the Navy, U.S. Fleet Forces Command Service Type: Facilities Maintenance Service Mandatory for: Mississippi Air National Guard: ANG CRTC/LGC 4715 Hewes Avenue, Building 1 Gulfport, MS Mandatory Source of Supply: Mississippi Goodworks, Inc., Gulfport, MS Contracting Activity: Dept of Defense, DOD/OFF of Secretary of DEF (EXC MIL DEPTS) Service Type: Janitorial/Custodial Service Mandatory for: New Orleans Naval Support Activity: (basewide except Commissary & Exchange facilities) New Orleans, LA Mandatory Source of Supply: Goodworks, Inc., New Orleans, LA Contracting Activity: Dept of the Navy, NAVFAC Southeast Service Type: Grounds Maintenance Service Mandatory for: Fort Ord Fort Ord, CA Mandatory Source of Supply: UNKNOWN Contracting Activity: Dept of the Army, W40M Northeregion Contract OFC Michael R. Jurkowski, Business Management Specialist, Business Operations.
    [FR Doc. 2018-24584 Filed 11-8-18; 8:45 am] BILLING CODE 6353-01-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Additions and Deletions AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Additions to and deletions from the Procurement List.

    SUMMARY:

    This action adds products and a service to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products from the Procurement List previously furnished by such agencies.

    DATES:

    Date added to and deleted from the Procurement List: December 9, 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:

    Additions

    On 4/27/2018 (83 FR 82), 5/4/2018 (83 FR 87), and 9/21/2018 (83 FR 184), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.

    After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and service and impact of the additions on the current or most recent contractors, the Committee has determined that the products and service listed below are 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 organizations that will furnish the products and service to the Government.

    2. The action will result in authorizing small entities to furnish the products and 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 products and service proposed for addition to the Procurement List.

    End of Certification

    Accordingly, the following products and service are added to the Procurement List:

    Products NSN(s)—Product Name(s): 2540-01-454-0415—Blade, Refill, Windshield Wiper, HMMW Vehicle, 20″L 2540-01-377-3125—Arm, Windshield Wiper, HMMW Vehicle, 20″L 2540-01-271-8026—Blade, Windshield Wiper, HMMW Vehicle, 16″L 2540-01-262-7708—Blade, Windshield Wiper, HMMW Vehicle, 20″L 2540-00-248-4603—Blade, Windshield Wiper, HMMW Vehicle, 18″L Mandatory Source of Supply: Center for the Visually Impaired Foundation, Inc., Atlanta, GA Mandatory for: 100% of the requirement of the Department of Defense Contracting Activity: Defense Logistics Agency Land and Maritime Distribution: C-List NSN(s)—Product Name(s): 5975-00-985-6630—Strap, Tie Down, Electrical Component Mandatory for: Broad Government Requirement Mandatory Source of Supply: North Central Sight Services, Inc., Williamsport, PA Contracting Activity: Defense Logistics Agency Aviation Distribution: B-List Service Service Type: Mailroom Service Mandatory for: Centers for Disease Control & Prevention National Center for Health Statistics 3311 Toledo Road, Hyattsville, MD Mandatory Source of Supply: ServiceSource, Inc., Oakton, VA Contracting Activity: Centers for Disease Control and Prevention, CDC—Pittsburg Deletions

    On 10/5/2018 (83 FR 194), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.

    After consideration of the relevant matter presented, the Committee has determined that the products 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 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 deleted from the Procurement List.

    End of Certification

    Accordingly, the following products are deleted from the Procurement List:

    Products NSN(s)—Product Name(s): 8410-00-NIB-0002 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 2 Long 8410-00-NIB-0003 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 4 Long 8410-00-NIB-0004 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 18 X-Short 8410-00-NIB-0005 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 20 X-Short 8410-00-NIB-0006 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 20 Short 8410-00-NIB-0007 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 20 Long 8410-01-536-2974 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 2 Short 8410-01-536-2977 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 2 Regular 8410-01-536-2980 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 4 X-Short 8410-01-536-2982 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 4 Short 8410-01-536-2994 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 4 Regular 8410-01-536-3000 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 6 X-Short 8410-01-536-3760 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 6 Short 8410-01-536-3763 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 6 Regular 8410-01-536-3769 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 8 X-Short 8410-01-536-3772 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 8 Short 8410-01-536-3776 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 8 Regular 8410-01-536-3779 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 6 Long 8410-01-536-3782 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 8 Long 8410-01-536-3784 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 10 X-Short 8410-01-536-3787 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 10 Short 8410-01-536-3789 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 10 Regular 8410-01-536-3792 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 10 Long 8410-01-536-3793 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 12 X-Short 8410-01-536-3795 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 12 Short 8410-01-536-3797 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 12 Regular 8410-01-536-3799 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 12 Long 8410-01-536-3800 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 14 X-Short 8410-01-536-3803 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 14 Short 8410-01-536-3804 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 14 Regular 8410-01-536-3805 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 14 Long 8410-01-536-3807 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 16 X-Short 8410-01-536-3808 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 16 Short 8410-01-536-3812 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 16 Regular 8410-01-536-3814 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 16 Long 8410-01-536-3816 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 18 Short 8410-01-536-3819 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 18 Regular 8410-01-536-3822 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 18 Long 8410-01-536-3825 Coat, Airman's Battle Uniform, USAF, Woman's, Camouflage, 20 Regular 8415-00-NIB-0489 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 32 X-Long 8415-00-NIB-0490 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 44 X-Short 8415-00-NIB-0491 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 46 X-Short 8415-00-NIB-0492 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 48 X-Short 8415-00-NIB-0493 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 48 X-Long 8415-00-NIB-0494 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 50 X-Long 8415-01-535-4170 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 32 X-Short 8415-01-536-4134 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 32 Short 8415-01-536-4170 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 32 X-Short 8415-01-536-4178 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 32 Regular 8415-01-536-4180 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 32 Long 8415-01-536-4182 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 34 X-Short 8415-01-536-4184 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 34 Short 8415-01-536-4188 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 34 Regular 8415-01-536-4189 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 34 Long 8415-01-536-4192 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 34 X-Long 8415-01-536-4193 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 36 X-Short 8415-01-536-4197 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 36 Short 8415-01-536-4224 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 36 Regular 8415-01-536-4227 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 36 Long 8415-01-536-4237 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 36 X-Long 8415-01-536-4239 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 38 X-Short 8415-01-536-4241 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 38 Short 8415-01-536-4367 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 38 Regular 8415-01-536-4369 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 38 Long 8415-01-536-4571 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 38 X-Long 8415-01-536-4572 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 40 X-Short 8415-01-536-4573 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 40 Short 8415-01-536-4574 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 40 Regular 8415-01-536-4576 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 40 Long 8415-01-536-4577 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 40 X-Long 8415-01-536-4578 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 42 X-Short 8415-01-536-4581 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 42 Short 8415-01-536-4583 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 42 Regular 8415-01-536-4584 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 42 Long 8415-01-536-4585 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 42 X-Long 8415-01-536-4586 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 44 Short 8415-01-536-4588 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 50 X-Short 8415-01-536-4590 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 44 Regular 8415-01-536-4591 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 44 Long 8415-01-536-4592 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 44 X-Long 8415-01-536-4593 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 46 Short 8415-01-536-4596 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 46 Regular 8415-01-536-4600 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 46 Long 8415-01-536-4606 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 46 X-Long 8415-01-536-4639 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 48 Short 8415-01-536-4640 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 48 Regular 8415-01-536-4651 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 48 Long 8415-01-536-4674 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 50 Short 8415-01-536-4682 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 50 Regular 8415-01-536-4712 Coat, Airman's Battle Uniform, USAF, Man's, Camouflage, 50 Long 8410-00-NIB-0008 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 2 X-Short 8410-00-NIB-0009 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 2 Long 8410-00-NIB-0010 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 18 X-Short 8410-00-NIB-0011 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 20 X-Short 8410-00-NIB-0012 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 20 Short 8410-00-NIB-0015 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 4 Long 8410-00-NIB-0016 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 22 X-Short 8410-00-NIB-0017 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 22 Short 8410-01-536-2711 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 2 Regular 8410-01-536-2714 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 4 X-Short 8410-01-536-2715 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 4 Regular 8410-01-536-2718 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 6 X-Short 8410-01-536-2719 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 6 Short 8410-01-536-2720 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 6 Regular 8410-01-536-2721 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 6 Long 8410-01-536-2723 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 8 X-Short 8410-01-536-2725 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 8 Short 8410-01-536-2734 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 8 Regular 8410-01-536-2736 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 8 Long 8410-01-536-2739 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 10 X-Short 8410-01-536-2740 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 10 Short 8410-01-536-2742 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 10 Regular 8410-01-536-2744 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 10 Long 8410-01-536-2746 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 12 X-Short 8410-01-536-2748 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 12 Short 8410-01-536-2749 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 12 Regular 8410-01-536-2752 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 12 Long 8410-01-536-2754 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 14 X-Short 8410-01-536-2756 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 14 Short 8410-01-536-2760 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 14 Regular 8410-01-536-2761 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 14 Long 8410-01-536-2765 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 16 X-Short 8410-01-536-2766 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 16 Short 8410-01-536-2770 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 16 Regular 8410-01-536-2771 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 16 Long 8410-01-536-2773 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 18 Short 8410-01-536-2774 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 18 Regular 8410-01-536-2778 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 18 Long 8410-01-536-2780 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 20 Regular 8410-01-536-2783 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 20 Long 8410-01-536-2785 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 22 Regular 8410-01-536-2801 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 4 Short 8410-01-NIB-0014 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 22 Long 8415-00-NIB-0495 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 42 X-Short 8415-00-NIB-0496 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 42 X-Long 8415-00-NIB-0497 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 44 X-Short 8415-00-NIB-0498 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 44 Long 8415-00-NIB-0499 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 46 X-Short 8415-00-NIB-0500 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 46 Short 8415-00-NIB-0501 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 46 X-Long 8415-00-NIB-0502 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 44 X-Long 8415-01-536-3759 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 28 Short 8415-01-536-3774 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 28 Regular 8415-01-536-3777 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 28 Long 8415-01-536-3791 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 28 X-Long 8415-01-536-3794 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 30 Short 8415-01-536-3809 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 30 X-Short 8415-01-536-3817 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 30 Regular 8415-01-536-3821 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 30 Long 8415-01-536-3823 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 30 X-Long 8415-01-536-3826 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 32 X-Short 8415-01-536-3830 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 32 Short 8415-01-536-3833 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 32 Regular 8415-01-536-3836 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 32 Long 8415-01-536-3844 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 32 X-Long 8415-01-536-3846 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 34 X-Short 8415-01-536-3849 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 34 Short 8415-01-536-3855 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 34 Regular 8415-01-536-3869 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 34 Long 8415-01-536-3874 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 34 X-Long 8415-01-536-3880 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 36 X-Short 8415-01-536-3890 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 40 X-Short 8415-01-536-3893 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 36 Short 8415-01-536-3903 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 36 Regular 8415-01-536-3905 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 36 Long 8415-01-536-3912 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 36 X-Long 8415-01-536-3916 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 38 X-Short 8415-01-536-3920 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 38 Short 8415-01-536-3927 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 38 Regular 8415-01-536-3935 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 38 Long 8415-01-536-4021 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 38 X-Long 8415-01-536-4067 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 40 Short 8415-01-536-4071 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 40 Regular 8415-01-536-4073 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 40 Long 8415-01-536-4075 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 40 X-Long 8415-01-536-4077 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 42 Short 8415-01-536-4081 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 42 Regular 8415-01-536-4088 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 42 Long 8415-01-536-4102 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 44 Regular 8415-01-536-4103 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 44 Short 8415-01-536-4109 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 44 Long 8415-01-536-4111 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 46 Regular 8415-01-536-4121 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 46 Long 8410-01-536-2709 Trousers, Airman's Battle Uniform, USAF, Woman's, Camouflage, 2 Short 8415-01-536-3758 Trousers, Airman's Battle Uniform, USAF, Man's, Camouflage, 28 X-Short Mandatory Sources of Supply: ReadyOne Industries, Inc., El Paso, TX, Blind Industries & Services of Maryland, Baltimore, MD Winston-Salem Industries for the Blind, Inc., Winston-Salem, NC, LC Industries, Inc., Durham, NC, Goodwill Industries of South Florida, Inc., Miami, FL Contracting Activity: Defense Logistics Agency Troop Support NSN(s)—Product Name(s): 7045-01-269-8115—Tape, Electronic Data Processing 7045-01-321-0642—Tape, Electronic Data Processing Mandatory Source of Supply: North Central Sight Services, Inc., Williamsport, PA Contracting Activity: Defense Logistics Agency Troop Support NSN(s)—Product Name(s): 7110-01-657-7729—Whiteboard, Customizable Surface, Magnetic Backing, Aluminum Frame, 47.5″ x 35″ 7110-01-657-7733—Whiteboard, Customizable Surface, Magnetic Backing, Aluminum Frame, 37.5″ x 23″ 7110-01-657-7738—Whiteboard, Customizable Surface, Magnetic Backing, Aluminum Frame, 12″ x 20.5″ Mandatory Source of Supply: The Lighthouse for the Blind, Inc. (Seattle Lighthouse), Seattle, WA Contracting Activity: General Services Administration, Philadelphia, PA NSN(s)—Product Name(s): 6515-00-NIB-0227—Aloud Audio Labels Mandatory Source of Supply: Central Association for the Blind & Visually Impaired, Utica, NY Contracting Activity: Department of Veterans Affairs, Strategic Acquisition Center NSN(s)—Product Name(s): 8465-00-001-6471—(Nylon cloth) Mandatory Sources of Supply: Alabama Industries for the Blind, Talladega, AL, Georgia Industries for the Blind, Bainbridge, GA, Envision, Inc., Wichita, KS, RLCB, Inc., Raleigh, NC, PA, Virginia Industries for the Blind, Charlottesville, VA Contracting Activity: Defense Logistics Agency Troop Support NSN(s)—Product Name(s): 8445-01-242-1009—Necktab, Womens Shirt Mandatory Source of Supply: BSW, Inc., Butte, MT Contracting Activity: Defense Logistics Agency Troop Support Michael R. Jurkowski, Business Management Specialist, Business Operations.
    [FR Doc. 2018-24583 Filed 11-8-18; 8:45 am] BILLING CODE 6353-01-P
    DEPARTMENT OF DEFENSE Office of the Secretary Defense Advisory Committee on Women in the Services; Notice of Federal Advisory Committee Meeting AGENCY:

    Under Secretary of Defense for Personnel and Readiness, Department of Defense.

    ACTION:

    Notice of Federal Advisory Committee meeting.

    SUMMARY:

    The Department of Defense (DoD) is publishing this notice to announce that the following Federal Advisory Committee meeting of the Defense Advisory Committee on Women in the Services will take place.

    DATES:

    Day 1—Open to the public Tuesday, December 11, 2018 from 8:00 a.m. to 11:45 a.m. Day 2—Open to the public Wednesday, December 12, 2018 from 8:00 a.m. to 11:00 a.m.

    ADDRESSES:

    The address of the open meeting is the Hilton Alexandria—Mark Center, 5000 Seminary Rd., Alexandria, VA 22311.

    FOR FURTHER INFORMATION CONTACT:

    Colonel Toya J. Davis, U.S. Army, (703) 697-2122 (Voice), 703-614-6233 (Facsimile), [email protected] (Email). Mailing address is 4800 Mark Center Drive, Suite 04J25-01, Alexandria, VA 22350. Website: http://dacowits.defense.gov. The most up-to-date changes to the meeting agenda can be found on the website.

    SUPPLEMENTARY INFORMATION:

    This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.140 and 102-3.150.

    Purpose of the Meeting: The purpose of the meeting is for the DACOWITS to receive briefings and updates relating to their current work. The meeting will open with the Designated Federal Officer (DFO) giving a status update on the DACOWITS' requests for information. Day one will start with two separate briefings from the Military Services on the following topics: Gender Representation Among Instructors/Trainers; and Breastfeeding and Lactation Support. There will be a Public Comment period at t