Federal Register Vol. 83, No.220,

Federal Register Volume 83, Issue 220 (November 14, 2018)

Page Range56699-57306
FR Document

83_FR_220
Current View
Page and SubjectPDF
83 FR 57305 - World Freedom Day, 2018PDF
83 FR 57303 - Honoring the Victims of the Tragedy in Thousand Oaks, CaliforniaPDF
83 FR 56876 - Sunshine Act MeetingsPDF
83 FR 56876 - Sunshine Act Meeting; National Science BoardPDF
83 FR 56835 - Sunshine Act Meeting NoticePDF
83 FR 56844 - Sunshine Act MeetingPDF
83 FR 56867 - Notice of Proposed Reinstatement of Terminated Oil and Gas Lease COC75893, ColoradoPDF
83 FR 56897 - Qualification of Drivers; Exemption Applications; HearingPDF
83 FR 56899 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
83 FR 56900 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure DisordersPDF
83 FR 56902 - Qualification of Drivers; Exemption Applications; VisionPDF
83 FR 56896 - Qualification of Drivers; Exemption Applications; Implantable Cardioverter DefibrillatorsPDF
83 FR 56905 - Qualification of Drivers; Exemption Applications; HearingPDF
83 FR 56862 - Test to Collect Facial Images From Occupants in Moving Vehicles at the Anzalduas Port of Entry (Anzalduas Biometric Test)PDF
83 FR 56908 - Qualification of Drivers; Exemption Applications; VisionPDF
83 FR 56831 - Privacy Act of 1974; System of Records-National Center for Education Statistics (NCES) Longitudinal and Cross-Sectional StudiesPDF
83 FR 56907 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure DisordersPDF
83 FR 56894 - E.O. 13224 Designation of Jawad Nasrallah, aka, Mohammad Jawad Nasrallah, aka Juad Nasrallah, as a Specially Designated Global TerroristPDF
83 FR 56894 - E.O. 13224 Designation of Al-Mujahidin Brigades, aka Khatib Al-Mujahidin, aka Holy Warriors Battalion, aka Al Mujahideen Brigades, aka Ansar al-Mujahidin Movemement as a Specially Designated Global TerroristPDF
83 FR 56894 - Review of the Designation as a Foreign Terrorist Organization of Hizballah (and Other Aliases)PDF
83 FR 56894 - Coos Bay Rail Line, Inc.-Change in Operators Exemption-Coos Bay Railroad Operating Company, LLCd/b/a Coos Bay Rail LinkPDF
83 FR 56895 - Oregon International Port of Coos Bay-Continuance in Control Exemption-Coos Bay Rail Line, Inc.PDF
83 FR 56843 - Federal Advisory Committee Act; Communications Security, Reliability, and Interoperability CouncilPDF
83 FR 56843 - Information Collections Being Reviewed by the Federal Communications CommissionPDF
83 FR 56842 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
83 FR 56916 - Proposed Collection; Comment Request for Notice 2018-81PDF
83 FR 56844 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
83 FR 56841 - Information Collections Being Reviewed by the Federal Communications Commission Under DelegatedPDF
83 FR 56909 - Notice of Application for Approval of Discontinuance or Modification of a Railroad Signal SystemPDF
83 FR 56912 - Petition for Waiver of CompliancePDF
83 FR 56740 - Fisheries of the Exclusive Economic Zone Off Alaska; Reallocation of Pacific Cod in the Bering Sea and Aleutian Islands Management AreaPDF
83 FR 56791 - Emergency Release Notification Regulations on Reporting Exemption for Air Emissions From Animal Waste at Farms; Emergency Planning and Community Right-to-Know ActPDF
83 FR 56773 - Air Plan Approval; NC; Miscellaneous RevisionsPDF
83 FR 56840 - National Environmental Justice Advisory Council; Notification of Public Teleconference and Public CommentPDF
83 FR 56777 - Air Plan Approval; Michigan; Infrastructure SIP Requirements for the 2012 PM2.5PDF
83 FR 56781 - Determinations of Attainment by the Attainment Date, Extensions of the Attainment Date, and Reclassification of Several Areas Classified as Moderate for the 2008 Ozone National Ambient Air Quality StandardsPDF
83 FR 56775 - Air Plan Approval; Ohio; Ohio Less Than 10 TPY BAT ExemptionPDF
83 FR 56876 - Watts Bar Nuclear Plant, Unit 2PDF
83 FR 56880 - Entergy Operations, Inc., River Bend Station, Unit 1PDF
83 FR 56763 - Hardship Distributions of Elective Contributions, Qualified Matching Contributions, Qualified Nonelective Contributions, and EarningsPDF
83 FR 56834 - Environmental Management Site-Specific Advisory Board, HanfordPDF
83 FR 56874 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Consortium for Strategic and Spectrum Mission Advanced Resilient Trusted SystemsPDF
83 FR 56816 - Large Diameter Welded Pipe From the People's Republic of China: Final Determination of Sales at Less Than Fair ValuePDF
83 FR 56811 - Large Diameter Welded Pipe From India: Final Determination of Sales at Less Than Fair Value; 2017PDF
83 FR 56804 - Countervailing Duty Investigation of Large Diameter Welded Pipe From the People's Republic of China: Final Affirmative DeterminationPDF
83 FR 56819 - Large Diameter Welded Pipe From India: Final Affirmative Countervailing Duty DeterminationPDF
83 FR 56845 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
83 FR 56845 - Notice of Proposals To Engage In or To Acquire Companies Engaged in Permissible Nonbanking ActivitiesPDF
83 FR 56800 - Carbon and Certain Alloy Steel Wire Rod From Mexico: Preliminary Results of Antidumping Duty Administrative Review; 2016-2017PDF
83 FR 56807 - Certain Uncoated Paper From Indonesia: Amended Final Results of Countervailing Duty Administrative Review; 2015-2016PDF
83 FR 56802 - Agreement Suspending the Antidumping Duty Investigation on Uranium From the Russian Federation: Preliminary Results of 2016-2017 Administrative Review and Postponement of Final ResultsPDF
83 FR 56808 - Preliminary Results of Changed Circumstances Reviews of the Antidumping Duty Orders on Large Residential Washers From the Republic of Korea and Mexico, and the Countervailing Duty Order on Large Residential Washers From the Republic of KoreaPDF
83 FR 56800 - Foreign-Trade Zone (FTZ) 52-Suffolk County, New York; Notification of Proposed Production Activity; LNK International, Inc. (Pharmaceutical Products), Hauppauge, New YorkPDF
83 FR 56821 - Certain Hot-Rolled Steel Flat Products From the Republic of Korea: Preliminary Results of Antidumping Duty Administrative Review; 2016-2017PDF
83 FR 56805 - Certain Hot-Rolled Steel Flat Products From Republic of Turkey: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2016-2017PDF
83 FR 56813 - Certain Hot-Rolled Steel Flat Products From Japan: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2016-2017PDF
83 FR 56817 - Certain Hot-Rolled Steel Flat Products From Australia: Preliminary Results of Antidumping Duty Administrative Review; 2016-2017PDF
83 FR 56819 - Correction To Notice of Opportunity To Request Administrative ReviewPDF
83 FR 56823 - Certain Uncoated Paper From Indonesia: Rescission of 2017 Countervailing Duty Administrative ReviewPDF
83 FR 56852 - Agency Information Collection Activities; Proposed Collection; Comment Request; Medical Device User Fee Small Business Qualification and CertificationPDF
83 FR 56914 - Saint Lawrence Seaway Development Corporation Advisory Board-Notice of Public MeetingsPDF
83 FR 56874 - Proposed Extension of Information Collection; Health Standards for Diesel Particulate Matter ExposurePDF
83 FR 56886 - Submission of Information Collection for OMB Review; Comment Request; Qualified Domestic Relations Orders Submitted to PBGCPDF
83 FR 56856 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Labeling of Certain Beers Subject to the Labeling Jurisdiction of the Food and Drug AdministrationPDF
83 FR 56845 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Disclosures of Descriptive Presentations in Professional Oncology Prescription Drug PromotionPDF
83 FR 56865 - Montana; Major Disaster and Related DeterminationsPDF
83 FR 56839 - GE Oleander LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
83 FR 56838 - Cleco Cajun LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
83 FR 56837 - Combined Notice of FilingsPDF
83 FR 56839 - Combined Notice of FilingsPDF
83 FR 56838 - Combined Notice of Filings #1PDF
83 FR 56864 - Commonwealth of the Northern Mariana Islands; Amendment No. 1 to Notice of an Emergency DeclarationPDF
83 FR 56866 - Commonwealth of the Northern Mariana Islands; Amendment No. 2 to Notice of a Major Disaster DeclarationPDF
83 FR 56864 - Commonwealth of the Northern Mariana Islands; Amendment No. 1 to Notice of a Major Disaster DeclarationPDF
83 FR 56798 - Notice of Intent To Request To Conduct a New Information CollectionPDF
83 FR 56768 - Safety Zone for Fireworks Displays; Upper Potomac River, Washington Channel, DCPDF
83 FR 56885 - Information Collection: Form 790, Classification RecordPDF
83 FR 56884 - Information Collection: NRC Form 171, “Duplication Request”PDF
83 FR 56827 - Agency Information Collection Activities: Notice of Intent To Renew Collection 3038-0043, Rules Relating To Review of National Futures Association Decisions in Disciplinary, Membership Denial, Registration, and Member Responsibility ActionsPDF
83 FR 56840 - North Dakota Pollutant Discharge Elimination System; Transfer; CorrectionPDF
83 FR 56871 - Notice of Intent To Repatriate Cultural Items: Minnesota Historical Society, St. Paul, MNPDF
83 FR 56868 - Notice of Inventory Completion: Kansas State Historical Society, Topeka, KSPDF
83 FR 56872 - Notice of Inventory Completion: U.S. Department of the Interior, Bureau of Land Management, Idaho State Office, Boise, IDPDF
83 FR 56869 - Notice of Inventory Completion: U.S. Army Corps of Engineers, Albuquerque District, Trinidad Lake, COPDF
83 FR 56867 - Notice of Inventory Completion: Riverside Metropolitan Museum, Riverside, CAPDF
83 FR 56857 - Nonmetastatic, Castration-Resistant Prostate Cancer: Considerations for Metastasis-Free Survival Endpoint in Clinical Trials; Draft Guidance for Industry; AvailabilityPDF
83 FR 56854 - International Cooperation on Harmonisation of Technical Requirements for Registration of Veterinary Medicinal Products; Study Design Recommendations for Residue Studies in Honey for Establishing Maximum Residue Levels and Withdrawal Periods; Guidance for Industry; AvailabilityPDF
83 FR 56828 - Agency Information Collection Activities: Notice of Intent To Extend Collection 3038-0094; Clearing Member Risk ManagementPDF
83 FR 56918 - Agency Information Collection Activity: Notice of DisagreementPDF
83 FR 56919 - Rehabilitation Research and Development Service Scientific Merit Review Board; Notice of MeetingsPDF
83 FR 56861 - Agency Information Collection Activities: Passenger List/Crew ListPDF
83 FR 56860 - Agency Information Collection Activities: Visa Waiver Program Carrier AgreementPDF
83 FR 56739 - General Services Administration Acquisition Regulation; Removing Duplicative Responsibility Determination GuidancePDF
83 FR 56799 - Notice of Public Meeting of the Virginia Advisory CommitteePDF
83 FR 56886 - Submission of Information Collection for OMB Review; Comment Request; Annual Reporting (Form 5500 Series)PDF
83 FR 56799 - Notice of Public Meeting of the Pennsylvania Advisory CommitteePDF
83 FR 56883 - Meeting of the Advisory Committee on Reactor Safeguards (ACRS); Subcommittee on Plant License RenewalPDF
83 FR 56883 - Meeting of the Advisory Committee on Reactor Safeguards (ACRS); Subcommittee on Thermal-Hydraulic PhenomenaPDF
83 FR 56879 - Meeting of the Advisory Committee on Reactor Safeguards (ACRS); Subcommittee on Regulatory Policies and PracticesPDF
83 FR 56875 - Meeting of Humanities PanelPDF
83 FR 56713 - Testing Regulations for Air Emission SourcesPDF
83 FR 56873 - Notice of Audit Delegation Renewal for the States of Montana, New Mexico, and OklahomaPDF
83 FR 56830 - Proposed Collection; Comment RequestPDF
83 FR 56736 - Air Plan Approval; Arizona; Hayden and Miami Areas; Lead and Sulfur Dioxide Control Measures-Copper SmeltersPDF
83 FR 56830 - Administrative Suspension of Department of Defense Federal Advisory CommitteePDF
83 FR 56734 - Approval of Arizona Air Plan; Hayden Lead Nonattainment Area Plan for the 2008 Lead StandardPDF
83 FR 56865 - Georgia; Amendment No. 4 to Notice of a Major Disaster DeclarationPDF
83 FR 56866 - Georgia; Amendment No. 3 to Notice of a Major Disaster DeclarationPDF
83 FR 56865 - Georgia; Amendment No. 1 to Notice of an Emergency DeclarationPDF
83 FR 56917 - Proposed Extension of Information Collection Request Submitted for Public Comment; Comment Request for Form 5213PDF
83 FR 56918 - Proposed Extension of Information Collection Request Submitted for Public Comment; Excise Tax; Tractors, Trailers, Trucks, and Tires; Reporting and Recordkeeping RequirementsPDF
83 FR 56888 - Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Derivative Securities Traded Under Unlisted Trading PrivilegesPDF
83 FR 56890 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change To Amend Rule 7.44-EPDF
83 FR 56916 - Proposed Collection; Comment Request for Regulation ProjectPDF
83 FR 56915 - Proposed Collection; Comment Request for Regulation ProjectPDF
83 FR 56742 - Almonds Grown in California; Proposed Amendments to Marketing Order 981 and Referendum OrderPDF
83 FR 56881 - ZionSolutions, LLC; Zion Nuclear Power Station, Units 1 and 2; Independent Spent Fuel Storage InstallationPDF
83 FR 56888 - New Postal ProductPDF
83 FR 56887 - Senior Executive Service-Performance Review BoardPDF
83 FR 56914 - Mutual Savings Association Advisory CommitteePDF
83 FR 56859 - Medicare Program; Administrative Law Judge Hearing Program for Medicare Claim and Entitlement Appeals; Quarterly Listing of Program Issuances-July Through September 2018PDF
83 FR 56711 - Amendment of Class D and Class E Airspace, and Revocation of Class E Airspace; Juneau, AKPDF
83 FR 56895 - Aviation Rulemaking Advisory Committee; MeetingPDF
83 FR 56909 - Proposed Agency Information Collection Activities; Comment RequestPDF
83 FR 56913 - Proposed Agency Information Collection Activities; Comment RequestPDF
83 FR 56824 - Developing a Privacy FrameworkPDF
83 FR 56827 - Proposed Voluntary Product Standard 2-10, Performance Standard for Wood-Based Structural-Use PanelsPDF
83 FR 56746 - Energy Conservation Program: Test Procedures for Consumer Warm Air Furnaces, Notice of Petition for RulemakingPDF
83 FR 56704 - Airworthiness Directives; Airbus SAS AirplanesPDF
83 FR 56758 - Construction and Maintenance-Promoting Innovation in Use of Patented and Proprietary ProductsPDF
83 FR 56709 - Airworthiness Directives; Airbus SAS AirplanesPDF
83 FR 56699 - Airworthiness Directives; The Boeing Company AirplanesPDF
83 FR 56702 - Airworthiness Directives; Airbus SAS AirplanesPDF
83 FR 56770 - Air Plan Approval; Texas; Reasonably Available Control TechnologyPDF
83 FR 56750 - Flexible Vinyl Alliance; Filing of Food Additive PetitionPDF
83 FR 57264 - Medicaid Program; Medicaid and Children's Health Insurance Plan (CHIP) Managed CarePDF
83 FR 56922 - Medicare Program; End-Stage Renal Disease Prospective Payment System, Payment for Renal Dialysis Services Furnished to Individuals With Acute Kidney Injury, End-Stage Renal Disease Quality Incentive Program, Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) Competitive Bidding Program (CBP) and Fee Schedule Amounts, and Technical Amendments To Correct Existing Regulations Related to the CBP for Certain DMEPOSPDF
83 FR 57076 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to the U.S. Navy Training and Testing Activities in the Atlantic Fleet Training and Testing Study AreaPDF

Issue

83 220 Wednesday, November 14, 2018 Contents Agricultural Marketing Agricultural Marketing Service PROPOSED RULES Marketing Orders: Almonds Grown in California, 56742-56746 2018-24727 Agriculture Agriculture Department See

Agricultural Marketing Service

See

National Agricultural Statistics Service

Antitrust Division Antitrust Division NOTICES Changes under National Cooperative Research and Production Act: Consortium for Strategic and Spectrum Mission Advanced Resilient Trusted Systems, 56874 2018-24809 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare Program: End-Stage Renal Disease Prospective Payment System, Payment for Renal Dialysis Services Furnished to Individuals with Acute Kidney Injury, End-Stage Renal Disease Quality Incentive Program, Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) Competitive Bidding Program (CBP) and Fee Schedule Amounts, and Technical Amendments to Correct Existing Regulations Related to the CBP for Certain DMEPOS, 56922-57073 2018-24238 PROPOSED RULES Medicaid Program: Medicaid and Childrens Health Insurance Plan Managed Care, 57264-57299 2018-24626 Civil Rights Civil Rights Commission NOTICES Meetings: Pennsylvania Advisory Committee, 56799-56800 2018-24752 Virginia Advisory Committee, 56799 2018-24754 Coast Guard Coast Guard PROPOSED RULES Safety Zones: Fireworks Displays, Upper Potomac River, Washington Channel, DC, 56768-56770 2018-24773 Commerce Commerce Department See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

Commodity Futures Commodity Futures Trading Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Clearing Member Risk Management, 56828-56830 2018-24761 Rules Relating to Review of National Futures Association Decisions in Disciplinary, Membership Denial, Registration, and Member Responsibility Actions, 56827-56828 2018-24770 Comptroller Comptroller of the Currency NOTICES Charter Renewals: Mutual Savings Association Advisory Committee, 56914 2018-24723 Defense Department Defense Department NOTICES Administrative Suspension of Department of Defense Federal Advisory Committee, 56830 2018-24742 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56830 2018-24744 Education Department Education Department NOTICES Privacy Act; Systems of Records, 56831-56834 2018-24847 Energy Department Energy Department See

Federal Energy Regulatory Commission

PROPOSED RULES Energy Conservation Program: Test Procedures for Consumer Warm Air Furnaces; Petition for Rulemaking, 56746-56750 2018-24697 NOTICES Meetings: Environmental Management Site-Specific Advisory Board, Hanford, 56834-56835 2018-24811
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Arizona Air Plan; Hayden Lead Nonattainment Area Plan for the 2008 Lead Standard, 56734-56736 2018-24740 Arizona; Hayden and Miami Areas; Lead and Sulfur Dioxide Control Measures—Copper Smelters, 56736-56739 2018-24743 Testing Regulations for Air Emission Sources, 56713-56734 2018-24747 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Michigan; Infrastructure State Implementation Plan Requirements for the 2012 Fine Particulate Matter National Ambient Air Quality Standard; Multistate Transport, 56777-56781 2018-24817 North Carolina; Miscellaneous Revisions, 56773-56775 2018-24819 Ohio Less than 10 Tons per Year Best Available Technology Exemption, 56775-56777 2018-24815 Texas; Reasonably Available Control Technology, 56770-56773 2018-24658 Emergency Release Notification Regulations: Reporting Exemption for Air Emissions from Animal Waste at Farms; Emergency Planning and Community Right-to-Know Act, 56791-56797 2018-24821 National Ambient Air Quality Standards: Determinations of Attainment, Extensions of the Attainment Date, and Reclassification of Several Areas Classified as Moderate for the 2008 Ozone Standards, 56781-56791 2018-24816 NOTICES Meetings: National Environmental Justice Advisory Council, 56840 2018-24818 North Dakota Pollutant Discharge Elimination System; Transfer; Correction, 56840-56841 2018-24769 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus SAS Airplanes, 56702-56711 2018-24683 2018-24686 2018-24688 The Boeing Company Airplanes, 56699-56702 2018-24684 Amendment of Class D and Class E Airspace, and Revocation of Class E Airspace: Juneau, AK, 56711-56713 2018-24721 NOTICES Meetings: Aviation Rulemaking Advisory Committee, 56895-56896 2018-24720 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56841-56844 2018-24829 2018-24830 2018-24832 2018-24833 Meetings: Communications Security, Reliability, and Interoperability Council, 56843-56844 2018-24834 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 56844-56845 2018-24902 Federal Emergency Federal Emergency Management Agency NOTICES Emergency Declarations: Georgia; Amendment No. 1, 56865 2018-24736 Northern Mariana Islands; Amendment No. 1, 56864-56865 2018-24778 Major Disaster and Related Determinations: Montana, 56865-56866 2018-24784 Major Disaster Declarations: Georgia; Amendment No. 3, 56866-56867 2018-24737 Georgia; Amendment No. 4, 56865 2018-24738 Northern Mariana Islands; Amendment No. 1, 56864 2018-24776 Northern Mariana Islands; Amendment No. 2, 56866 2018-24777 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 56837-56839 2018-24779 2018-24780 2018-24781 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Cleco Cajun, LLC, 56838 2018-24782 GE Oleander, LLC, 56839-56840 2018-24783 Meetings; Sunshine Act, 56835-56837 2018-24920 Federal Highway Federal Highway Administration PROPOSED RULES Construction and Maintenance—Promoting Innovation in Use of Patented and Proprietary Products, 56758-56763 2018-24687 Federal Motor Federal Motor Carrier Safety Administration NOTICES Qualification of Drivers; Exemption Applications: Diabetes Mellitus, 56899-56900 2018-24859 Epilepsy and Seizure Disorders, 56900-56902, 56907-56908 2018-24844 2018-24858 Hearing, 56897-56899, 56905-56907 2018-24852 2018-24861 Implantable Cardioverter Defibrillators, 56896-56897 2018-24855 Vision, 56902-56905, 56908-56909 2018-24849 2018-24856 Federal Railroad Federal Railroad Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56909-56914 2018-24715 2018-24716 Applications: Approval to Discontinue or Modify a Railroad Signal System, 56909 2018-24826 Petitions for Waivers of Compliance, 56912-56913 2018-24825 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 56845 2018-24803 Proposals to Engage in or to Acquire Companies Engaged in Permissible Nonbanking Activities, 56845 2018-24802 Food and Drug Food and Drug Administration PROPOSED RULES Food Additive Petitions: Flexible Vinyl Alliance, 56750-56758 2018-24657 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Disclosures of Descriptive Presentations in Professional Oncology Prescription Drug Promotion, 56845-56852 2018-24785 Labeling of Certain Beers Subject to the Labeling Jurisdiction of the Food and Drug Administration, 56856-56857 2018-24786 Medical Device User Fee Small Business Qualification and Certification, 56852-56854 2018-24790 Guidance: International Cooperation on Harmonisation of Technical Requirements for Registration of Veterinary Medicinal Products; Study Design Recommendations for Residue Studies in Honey for Establishing Maximum Residue Levels and Withdrawal Periods, 56854-56856 2018-24762 Nonmetastatic, Castration-Resistant Prostate Cancer: Considerations for Metastasis-Free Survival Endpoint in Clinical Trials, 56857-56859 2018-24763 Foreign Trade Foreign-Trade Zones Board NOTICES Proposed Production Activities: LNK International, Inc., Foreign-Trade Zone 52, Suffolk County, New York, 56800 2018-24797 General Services General Services Administration RULES General Services Administration Acquisition Regulation: Removing Duplicative Responsibility Determination Guidance, 56739-56740 2018-24755 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

NOTICES Medicare Program: Administrative Law Judge Hearing Program for Medicare Claim and Entitlement Appeals; Quarterly Listing of Program Issuances—July Through September 2018, 56859-56860 2018-24722
Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Customs and Border Protection

Interior Interior Department See

Land Management Bureau

See

National Park Service

See

Office of Natural Resources Revenue

Internal Revenue Internal Revenue Service PROPOSED RULES Hardship Distributions of Elective Contributions, Qualified Matching Contributions, Qualified Nonelective Contributions, and Earnings, 56763-56768 2018-24812 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56916-56917 2018-24735 2018-24831 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Excise Tax; Tractors, Trailers, Trucks, and Tires; Reporting and Recordkeeping Requirements, 56918 2018-24734 Regulation Project, 56915-56917 2018-24729 2018-24730 2018-24731 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Carbon and Certain Alloy Steel Wire Rod from Mexico, 56800-56802 2018-24801 Certain Hot-Rolled Steel Flat Products from Australia, 56817-56819 2018-24793 Certain Hot-Rolled Steel Flat Products from Japan, 56813-56815 2018-24794 Certain Hot-Rolled Steel Flat Products from Republic of Turkey, 56805-56807 2018-24795 Certain Hot-Rolled Steel Flat Products from the Republic of Korea, 56821-56823 2018-24796 Certain Uncoated Paper from Indonesia, 56807-56808, 56823-56824 2018-24791 2018-24800 Large Diameter Welded Pipe from India, 56819-56821 2018-24804 Large Diameter Welded Pipe from the People's Republic of China, 56804-56805 2018-24805 Large Residential Washers from the Republic of Korea and Mexico, 56808-56811 2018-24798 Uranium from the Russian Federation, 56802-56804 2018-24799 Determinations of Sales at Less Than Fair Value: Large Diameter Welded Pipe from India, 56811-56813 2018-24806 Large Diameter Welded Pipe from the People's Republic of China, 56816-56817 2018-24807 Opportunity to Request Administrative Review; Correction, 56819 2018-24792 Justice Department Justice Department See

Antitrust Division

Labor Department Labor Department See

Mine Safety and Health Administration

Land Land Management Bureau NOTICES Terminated Oil and Gas Leases; Proposed Reinstatements: COC75893, Colorado, 56867 2018-24862 Mine Mine Safety and Health Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Health Standards for Diesel Particulate Matter Exposure, 56874-56875 2018-24788 National Agricultural National Agricultural Statistics Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56798-56799 2018-24775 National Endowment for the Humanities National Endowment for the Humanities NOTICES Meetings: Humanities Panel, 56875 2018-24748 National Foundation National Foundation on the Arts and the Humanities See

National Endowment for the Humanities

National Institute National Institute of Standards and Technology NOTICES Proposed Voluntary Product Standards: Performance Standard for Wood-Based Structural-Use Panels, 56827 2018-24713 Requests for Information: Developing a Privacy Framework, 56824-56827 2018-24714 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Reallocation of Pacific Cod in the Bering Sea and Aleutian Islands Management Area, 56740-56741 2018-24824 Takes of Marine Mammals Incidental to Specified Activities: U.S. Navy Training and Testing Activities in the Atlantic Fleet Training and Testing Study Area, 57076-57261 2018-24042 National Park National Park Service NOTICES Inventory Completions: Kansas State Historical Society, Topeka, KS, 56868-56869 2018-24767 Riverside Metropolitan Museum, Riverside, CA, 56867-56868 2018-24764 U.S. Army Corps of Engineers, Albuquerque District, Trinidad Lake, CO, 56869-56871 2018-24765 U.S. Department of the Interior, Bureau of Land Management, Idaho State Office, Boise, ID, 56872-56873 2018-24766 Repatriation of Cultural Items: Minnesota Historical Society, St. Paul, MN, 56871-56872 2018-24768 National Science National Science Foundation NOTICES Meetings; Sunshine Act, 56876 2018-24923 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 56884-56886 2018-24771 2018-24772 Environmental Impact Statements; Availability, etc.: Entergy Operations, Inc., River Bend Station, Unit 1, 56880-56881 2018-24813 Exemptions: ZionSolutions, LLC; Zion Nuclear Power Station, Units 1 and 2 Independent Spent Fuel Storage Installation, 56881-56883 2018-24726 License Amendments: Watts Bar Nuclear Plant, Unit 2, 56876-56879 2018-24814 Meetings: Advisory Committee on Reactor Safeguards Subcommittee on Plant License Renewal, 56883 2018-24751 Advisory Committee on Reactor Safeguards Subcommittee on Regulatory Policies and Practices, 56879-56880 2018-24749 Advisory Committee on Reactor Safeguards Subcommittee on Thermal-Hydraulic Phenomena, 56883-56884 2018-24750 Meetings; Sunshine Act, 56876 2018-24948 Natural Resources Office of Natural Resources Revenue NOTICES Audit Delegation Renewal: Montana, New Mexico, and Oklahoma, 56873-56874 2018-24745 Pension Benefit Pension Benefit Guaranty Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Annual Reporting, 56886-56887 2018-24753 Qualified Domestic Relations Orders Submitted to PBGC, 56886 2018-24787 Personnel Personnel Management Office NOTICES Senior Executive Service—Performance Review Board, 56887-56888 2018-24724 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 56888 2018-24725 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Honoring the Victims of the Tragedy in Thousand Oaks, CA (Proc. 9820), 57301-57303 2018-25042 World Freedom Day (Proc. 9821), 57305-57306 2018-25046 Saint Lawrence Saint Lawrence Seaway Development Corporation NOTICES Meetings: Saint Lawrence Seaway Development Corporation Advisory Board, 56914 2018-24789 Securities Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Nasdaq BX, Inc., 56888-56890 2018-24733 NYSE Arca, Inc., 56890-56894 2018-24732 State Department State Department NOTICES Designations as Foreign Terrorist Organizations: Hizballah (and Other Aliases), 56894 2018-24840 Designations as Global Terrorists: Al-Mujahidin Brigades, aka Khatib Al-Mujahidin, aka Holy Warriors Battalion, aka Al Mujahideen Brigades, aka Ansar al-Mujahidin Movemement, 56894 2018-24841 Jawad Nasrallah, aka, Mohammad Jawad Nasrallah, aka Juad Nasrallah, 56894 2018-24843 Surface Transportation Surface Transportation Board NOTICES Changes in Operators Exemption: Coos Bay Rail Line, Inc.; Coos Bay Railroad Operating Company, LLC d/b/a Coos Bay Rail Link, 56894-56895 2018-24839 Continuances in Control Exemption: Oregon International Port of Coos Bay; Coos Bay Rail Line, Inc., 56895 2018-24838 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

See

Saint Lawrence Seaway Development Corporation

Treasury Treasury Department See

Comptroller of the Currency

See

Internal Revenue Service

Customs U.S. Customs and Border Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Passenger List/Crew List, 56861-56862 2018-24757 Visa Waiver Program Carrier Agreement, 56860-56861 2018-24756 Test to Collect Facial Images from Occupants in Moving Vehicles at the Anzalduas Port of Entry (Anzalduas Biometric Test), 56862-56864 2018-24850 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Notice of Disagreement, 56918-56919 2018-24759 Meetings: Rehabilitation Research and Development Service Scientific Merit Review Board, 56919 2018-24758 Separate Parts In This Issue Part II Health and Human Services Department, Centers for Medicare & Medicaid Services, 56922-57073 2018-24238 Part III Commerce Department, National Oceanic and Atmospheric Administration, 57076-57261 2018-24042 Part IV Health and Human Services Department, Centers for Medicare & Medicaid Services, 57264-57299 2018-24626 Part V Presidential Documents, 57301-57303, 57305-57306 2018-25042 2018-25046 Reader Aids

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83 220 Wednesday, November 14, 2018 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0408; Product Identifier 2017-NM-146-AD; Amendment 39-19495; AD 2018-23-09] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are superseding Airworthiness Directive (AD) 2016-13-16, which applied to all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. AD 2016-13-16 required an inspection or records check to determine if affected horizontal stabilizers are installed, related investigative actions, and, for affected horizontal stabilizers, repetitive inspections for any crack of the horizontal stabilizer rear spar upper chord, and corrective action if necessary. This AD requires retaining the requirements of AD 2016-13-16, with revised service information that clarifies the inspection areas and serial number information of the horizontal stabilizer. This AD was prompted by reports of a manufacturing oversight, in which a supplier omitted the required protective finish on certain bushings installed in the rear spar upper chord on horizontal stabilizers, which could lead to galvanic corrosion and consequent cracking of the rear spar upper chord. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective December 19, 2018.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 19, 2018.

ADDRESSES:

For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet https://www.myboeingfleet.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0408.

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-2018-0408; 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:

Lu Lu, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3525; email: [email protected]

SUPPLEMENTARY INFORMATION: Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2016-13-16, Amendment 39-18581 (81 FR 44503, July 8, 2016) (“AD 2016-13-16”). AD 2016-13-16 applied to all The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. The NPRM published in the Federal Register on May 15, 2018 (83 FR 22417). The NPRM was prompted by a determination that clarification of inspection areas and serial number information of the horizontal stabilizer is necessary and reports of a manufacturing oversight, in which a supplier omitted the required protective finish on certain bushings installed in the rear spar upper chord on horizontal stabilizers, which could lead to galvanic corrosion and consequent cracking of the rear spar upper chord. The NPRM proposed to continue to require an inspection or records check to determine if affected horizontal stabilizers are installed, related investigative actions, and, for affected horizontal stabilizers, repetitive inspections for any crack of the horizontal stabilizer rear spar upper chord, and corrective action if necessary. The NPRM also proposed to clarify the inspection areas and serial number information of the horizontal stabilizer. We are issuing this AD to address cracking of the rear spar upper chord, which could result in the failure of the upper chord, consequent departure of the horizontal stabilizer from the airplane, and loss of control of the airplane.

Comments

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment. Air Line Pilots Association, International (ALPA), Boeing, and United Airlines stated that they supported the NPRM.

Effect of Winglets on Accomplishment of the Proposed Actions

Aviation Partners Boeing stated that accomplishing the supplemental type certificate (STC) ST00830SE does not affect the actions specified in the NPRM.

We concur with the commenter. We have redesignated paragraph (c) of the proposed AD as paragraph (c)(1) of this AD and added paragraph (c)(2) to this AD to state that installation of STC ST00830SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST00830SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

Request To Review Parts Installation Limitations Paragraph

Southwest Airlines (SWA) requested that we review the “Parts Installation Limitation” paragraph in the proposed AD. SWA stated that Boeing Alert Service Bulletin 737-55A1097, Revision 1, dated September 20, 2017, specifies that an operator can either do a check of delivery and maintenance records to find the serial number of the horizontal stabilizer installed on the airplane during production and to determine if the horizontal stabilizer has been exchanged, or an operator can gain access to the horizontal stabilizer identification plate and do an inspection of the identification plate to find the serial numbers of the horizontal stabilizers.

SWA stated that it does not agree with the use of maintenance records to validate serial numbers based on the potential error of not recording the full serial number (manufacturer code and serial number) from the identification plate within the maintenance record documentation. SWA commented that it has determined that the delivery record and physical verification are correct methods in confirming that the serial numbers are installed.

We partially agree with the commenter's request. We have reviewed the effectiveness of performing a records check. We disagree with the commenter that a records check is not a valid method and note that it is acceptable for complying with certain actions required by paragraph (g) of this AD. As specified in Note 17 of paragraph 3.A., “General Information” of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-55A1097, Revision 1, dated September 20, 2017, “A check of the airplane maintenance and delivery records is an acceptable method to determine if the left and right horizontal stabilizers are affected provided the installed components can be conclusively determined from that check.” We agree that if an operator is not confident that it cannot positively identify the affected stabilizers by using maintenance records, then this method should not be used. In addition, Boeing Alert Service Bulletin 737-55A1097, Revision 1, dated September 20, 2017, specifies a check of delivery and maintenance records with a table for the affected manufacturer code and serial number combination to ensure all the affected parts are captured.

In regards to the “Parts Installation Limitation” paragraph in this AD, there is no option to do a check of the airplane maintenance and delivery records. As specified in paragraph (i)(1) of this AD, a horizontal stabilizer may be installed if the part is inspected in accordance with “Part 2: Horizontal Stabilizer Identification Plate Inspection” of the Accomplishments Instructions of Boeing Alert Service Bulletin 737-55A1097, Revision 1, dated September 20, 2017, and no affected serial number is found. As specified in paragraph (i)(2) of this AD, a horizontal stabilizer may be installed if the part is inspected in accordance with “Part 2: Horizontal Stabilizer Identification Plate Inspection” of the Accomplishments Instructions of Boeing Alert Service Bulletin 737-55A1097, Revision 1, dated September 20, 2017, and an affected serial number is found, provided the actions specified in paragraphs (i)(2)(i) and (i)(2)(ii) of this AD are done, as applicable. We have not changed this AD in this regard.

Conclusion

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

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

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

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

Related Service Information Under 1 CFR Part 51

We reviewed Boeing Alert Service Bulletin 737-55A1097, Revision 1, dated September 20, 2017. This service information describes procedures for an identification plate inspection or records check to determine whether affected horizontal stabilizers are installed, related investigative actions, and for affected horizontal stabilizers, repetitive high frequency eddy current (HFEC) inspections for any crack of the horizontal stabilizer rear spar upper chord, and corrective action. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 1,748 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspection or records check to determine the serial number of the horizontal stabilizer 1 work-hour × $85 per hour = $85 $0 $85 $148,580. HFEC inspection (horizontal stabilizer with affected serial number) 6 work-hour × $85 per hour = 510 0 510 Up to $891,480.

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

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

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2016-13-16, Amendment 39-18581 (81 FR 44503, July 8, 2016), and adding the following new AD: 2018-23-09 The Boeing Company: Amendment 39-19495; Docket No. FAA-2018-0408; Product Identifier 2017-NM-146-AD. (a) Effective Date

    This AD is effective December 19, 2018.

    (b) Affected ADs

    This AD replaces AD 2016-13-16, Amendment 39-18581 (81 FR 44503, July 8, 2016) (“AD 2016-13-16”).

    (c) Applicability

    (1) This AD applies to all The Boeing Company Model 737-600, -700, -700C, -800, -900, and 900ER series airplanes, certificated in any category.

    (2) Installation of Supplemental Type Certificate (STC) ST00830SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST00830SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

    (d) Subject

    Air Transport Association (ATA) of America Code 55, Stabilizers.

    (e) Unsafe Condition

    This AD was prompted by reports of a manufacturing oversight, in which a supplier omitted the required protective finish on certain bushings installed in the rear spar upper chord on horizontal stabilizers, which could lead to galvanic corrosion and consequent cracking of the rear spar upper chord. We are issuing this AD to address cracking of the rear spar upper chord, which could result in the failure of the upper chord, consequent departure of the horizontal stabilizer from the airplane, and loss of control of the airplane.

    (f) Compliance

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

    (g) Required Actions

    Except as required by paragraph (h) of this AD: At the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-55A1097, Revision 1, dated September 20, 2017, do all applicable actions identified as “RC” (required for compliance) in, and in accordance with, the Accomplishment Instructions of Boeing Alert Service Bulletin 737-55A1097, Revision 1, dated September 20, 2017.

    (h) Exceptions to Service Information

    (1) For purposes of determining compliance with the requirements of this AD: Where Boeing Alert Service Bulletin 737-55A1097, Revision 1, dated September 20, 2017, uses the phrase “the Revision 1 date of this service bulletin,” this AD requires using “the effective date of this AD.”

    (2) Where Boeing Alert Service Bulletin 737-55A1097, Revision 1, dated September 20, 2017, specifies contacting Boeing, and specifies that action as RC: This AD requires repair using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (i) Parts Installation Limitations

    As of the effective date of this AD, no person may install a horizontal stabilizer on any airplane, except as specified in paragraphs (i)(1) or (i)(2) of this AD.

    (1) A horizontal stabilizer may be installed if the part is inspected in accordance with “Part 2: Horizontal Stabilizer Identification Plate Inspection” of the Accomplishments Instructions of Boeing Alert Service Bulletin 737-55A1097, Revision 1, dated September 20, 2017, and no affected serial number is found.

    (2) A horizontal stabilizer may be installed if the part is inspected in accordance with “Part 2: Horizontal Stabilizer Identification Plate Inspection” of the Accomplishments Instructions of Boeing Alert Service Bulletin 737-55A1097, Revision 1, dated September 20, 2017, and an affected serial number is found, provided that the actions specified in paragraphs (i)(2)(i) and (i)(2)(ii) of this AD are done, as applicable.

    (i) Initial and repetitive high frequency eddy current (HFEC) inspections, which are part of the required actions specified in paragraph (g) of this AD, are completed within the compliance times specified in paragraph (g) of this AD.

    (ii) All applicable corrective actions, which are part of the required actions specified in paragraph (g) of this AD, are done within the compliance times specified in paragraph (g) of this AD.

    (j) Credit for Previous Actions

    For Groups 1 and 2, Configuration 1 airplanes, as identified in Boeing Alert Service Bulletin 737-55A1097, Revision 1, dated September 20, 2017: This paragraph provides credit for the actions specified in paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Boeing Alert Service Bulletin 737-55A1097, dated July 1, 2015.

    (k) Alternative Methods of Compliance (AMOCs)

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

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

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

    (4) AMOCs approved previously for AD 2016-13-16 are approved as AMOCs for the corresponding provisions of Boeing Alert Service Bulletin 737-55A1097, Revision 1, dated September 20, 2017, that are required by paragraph (g) of this AD.

    (5) Except as required by paragraph (h)(2) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (k)(5)(i) and (k)(5)(ii) of this AD apply.

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

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

    (l) Related Information

    (1) For more information about this AD, contact Lu Lu, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3525; email: [email protected]

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

    (m) Material Incorporated by Reference

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

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

    (i) Boeing Alert Service Bulletin 737-55A1097, Revision 1, dated September 20, 2017.

    (ii) [Reserved]

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

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

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

    Issued in Des Moines, Washington, on November 2, 2018. Jeffrey E. Duven, Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-24684 Filed 11-13-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0758; Product Identifier 2018-NM-093-AD; Amendment 39-19493; AD 2018-23-07] 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 A350-941 airplanes. This AD was prompted by a review of the Airbus A350 structure design principles database for type definition that revealed that the balancer fitting part, installed on the tail cone, on a certain frame (FR) has several corrosion-resistant stainless steel nuts that do not meet the requirements for protection against corrosion. This AD requires application of a new additional overcoat sealant and elastic varnish on the affected nuts and fasteners. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective December 19, 2018.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 19, 2018.

    ADDRESSES:

    For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAL, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; internet http://www.airbus.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0758.

    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-2018-0758; 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:

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

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A350-941 airplanes. The NPRM published in the Federal Register on August 16, 2018 (83 FR 40708). The NPRM was prompted by a review of the Airbus A350 structure design principles database for type definition that revealed that the balancer fitting part, installed on the tail cone, on a certain FR has several corrosion-resistant stainless steel nuts that do not meet the requirements for protection against corrosion. The NPRM proposed to require application of a new additional overcoat sealant and elastic varnish on the affected nuts and fasteners.

    We are issuing this AD to address several corrosion-resistant stainless steel nuts installed on elementary aluminum parts, which do not meet the requirements for protection against corrosion, and if not corrected, could reduce the structural integrity of the airplane.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0123, dated June 4, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A350-941 airplanes. The MCAI states:

    Following a complete review of the Airbus A350 structure design principles database for type definition, it was revealed that the balancer fitting part, installed on the tail cone, lower section of Frame (FR) 103, has several corrosion resistant stainless steel nuts installed on elementary aluminium parts, which does not meet the requirements for protection against corrosion.

    This condition, if not corrected, could reduce the structural integrity of the aeroplane.

    To address this unsafe condition, Airbus developed production mod 110319 to improve protection against corrosion, and issued the SB [Airbus Service Bulletin A350-53-P024] to provide modification instructions for in-service pre-mod aeroplanes. At the same time the production mod 110348 is equivalent to in-service solution.

    For the reasons described above, this [EASA] AD requires a modification, adding new additional overcoat sealant and elastic varnish on the affected nuts and fastener heads.

    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-2018-0758.

    Comments

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

    Support for the NPRM

    The Air Line Pilots Association, International (ALPA) indicated their support for the NPRM.

    Request To Clarify the Proposed AD's Applicability

    The commenter Mary Dunn inquired about the proposed AD's effect on similar airplanes and if the actions proposed in the NPRM are proactive or retroactive.

    We acknowledge the comment and note that this AD will only affect certain Airbus SAS Model A350-941 airplanes, not airplanes similar to Airbus SAS Model A350-941 airplanes. The unsafe condition has only been identified to affect Airbus SAS Model A350-941 airplanes, not other models, so no action is needed on other airplane models. This AD does have both proactive and retroactive components, in that this AD applies to existing Airbus SAS Model A350-941 airplanes, as specified in paragraph (c) of this AD, while the actions required by paragraph (g) of this AD will be embodied on future Airbus SAS Model A350-941 airplanes in production. No change to this AD has been made in this regard.

    Conclusion

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

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

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

    Related Service Information Under 1 CFR Part 51

    Airbus has issued Service Bulletin A350-53-P024, dated April 3, 2018. This service information describes procedures for application of a new additional overcoat sealant and elastic varnish on the affected nuts and fasteners. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 7 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated Costs Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • 2 work-hours × $85 per hour = $170 $500 $670 $4,690

    According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all known 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): 2018-23-07 Airbus SAS: Amendment 39-19493; Docket No. FAA-2018-0758; Product Identifier 2018-NM-093-AD. (a) Effective Date

    This AD is effective December 19, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Airbus SAS Model A350-941 airplanes, certificated in any category, except those on which Airbus modification 110319 or Airbus modification 110348 has been embodied in production.

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Reason

    This AD was prompted by a review of the Airbus A350 structure design principles database for type definition that revealed that the balancer fitting part, installed on the tail cone, lower section of frame (FR) 103, has several corrosion-resistant stainless steel nuts installed on elementary aluminum parts, and this configuration does not meet the requirements for protection against corrosion. We are issuing this AD to address this condition, which if not corrected, could reduce the structural integrity of the airplane.

    (f) Compliance

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

    (g) Required Action

    Within 72 months since the date of issuance of the original airworthiness certificate or the date of issuance of the original export certificate of airworthiness, apply additional overcoat sealant and elastic varnish to the fastener heads and the anchor nuts of the balancer fitting at FR 103, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A350-53-P024, dated April 3, 2018.

    (h) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

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

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

    (i) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018-0123, dated June 4, 2018, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0758.

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

    (j) Material Incorporated by Reference

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

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

    (i) Airbus Service Bulletin A350-53-P024, dated April 3, 2018.

    (ii) [Reserved]

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

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

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

    Issued in Des Moines, Washington, on November 2, 2018. Jeffrey E. Duven, Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-24683 Filed 11-13-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0297; Product Identifier 2017-NM-181-AD; Amendment 39-19497; AD 2018-23-11] 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 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 investigations that revealed that the cover seal of the brake dual distribution valve (BDDV) was damaged and did not ensure efficient sealing. This AD requires identifying the BDDV part number installed on the airplane, and modifying or replacing BDDVs having certain part numbers. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective December 19, 2018.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of December 19, 2018.

    ADDRESSES:

    For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EIAS, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; internet http://www.airbus.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0297.

    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-2018-0297; 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:

    Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3223.

    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 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 April 17, 2018 (83 FR 16799). The NPRM was prompted by investigations that revealed that the cover seal of the BDDV was damaged and did not ensure efficient sealing. The NPRM proposed to require identifying the BDDV part number installed on the airplane, and modifying or replacing BDDVs having certain part numbers.

    We are issuing this AD to address water ingestion in the BDDV, freezing of the BDDV in flight, and consequent loss of braking system function after landing. These conditions could possibly result in damage to the airplane and injury to occupants.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0119, dated July 11, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model 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:

    In 1998, an operator experienced a dual loss of braking systems. Investigation results revealed that the cover seal of the BDDV was damaged and did not ensure the sealing efficiency.

    This condition, if not corrected, could lead to water ingestion in the BDDV, freezing of the BDDV in flight, and consequent loss of braking system function after landing, possibly resulting in damage to the aeroplane and injury to occupants.

    To address this potential unsafe condition, Airbus issued Alert Operator Telex (AOT) 32-19 and Service Bulletin (SB) A320-32-1199, providing instructions for repetitive functional tests. In addition, Airbus developed mod 28301 and published SB A320-32-1203 to provide modification instructions.

    Consequently, DGAC [Directorate General for Civil Aviation] France issued AD 2000-258-146 [which corresponds to FAA AD 2001-15-10, Amendment 39-12344 (66 FR 39413, July 31, 2001) (“AD 2001-15-10”)] to require repetitive functional tests as a temporary solution (valid for a period of 15 months) and modification of the BDDV with a new cover and installation of a draining tube with a cap, which was terminating action for the repetitive functional tests. For pre-mod 27833 and pre-SB A320-32-1200 aeroplanes, repetitive inspections per SB A320-32-1199 were required as interim action, prior to the terminating action modification per SB A320-32-1203.

    After that [DGAC] AD was issued, following a new event, Airbus developed a new modification of the BDDV drain tube which leaves it open, ensuring continuous drainage of any ingested water, thereby preventing freezing of the brake system.

    Consequently, EASA issued AD 2014-0251 (later revised), partially retaining the requirements of DGAC France AD 2000-258-146, which was superseded, and requiring an additional modification of the BDDV drain tube and re-identification of the BDDV.

    Since EASA AD 2014-0251R1 [which corresponds to FAA AD 2016-06-13, Amendment 39-18444 (81 FR 17365, March 29, 2016) (“AD 2016-06-13”)] was issued, comments were received that indicated a need for correction and clarification. Consequently, this [EASA] AD retains the requirements of EASA AD 2014-0251R1, which is superseded, and expands the list of BDDV Part Numbers (P/N) which must be removed from service and are no longer eligible for installation on an aeroplane [and includes replacing affected part numbers as an option]. This [EASA] AD also clarifies the intended requirements of EASA AD 2014-0251 and introduces editorial changes, not affecting the requirements.

    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-2018-0297.

    Comments

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

    Supportive Comments

    Air Line Pilots Association, International stated its support for the NPRM. In addition, United Airlines (UAL) stated it concurs with the expansion of the affected BDDV part numbers as identified in Figure 1 to paragraphs (g) and (h) of the proposed AD.

    Request To Withdraw the NPRM

    Delta Air lines (DAL) requested that we withdraw the NPRM. DAL stated that the NPRM does not address an unsafe condition and, therefore, it is unnecessary. DAL commented that airplanes included in paragraph (c) of the proposed AD are already required to comply with the actions required by AD 2001-15-10, depending on modification status. DAL also commented that the NPRM does not add any airplanes to the applicability of AD 2001-15-10 and 2016-06-13. DAL stated that tracking compliance with the redundant requirements of the proposed AD would place an undue burden on airlines.

    DAL stated that paragraphs (j)(1)(i) and (j)(2)(i) of the proposed AD give credit for actions accomplished using previously issued service information. DAL commented that FAA Letter ANM-116-16-491, dated September 27, 2016, gives operators the authority to accomplish paragraph (g) of AD 2016-06-13 as an alternative method of compliance (AMOC), and it is also a terminating action for the actions required by paragraphs (e) and (f) of AD 2001-15-10. DAL stated that the compliance times for AD 2001-15-10 and AD 2016-06-13 have passed, therefore, all airplanes must be in compliance.

    We partially agree with the commenter's request. We agree that airplanes included in paragraph (c) of this AD are also required to comply with AD 2001-15-10 and AD 2016-06-13, and that this AD does not add any new Model airplanes related to those listed in AD 2001-15-10 and AD 2016-06-13. However, as stated in paragraph (i) of this AD, compliance with paragraph (g) of this AD terminates the requirements in paragraphs (e) and (f) of AD 2001-15-10 (which terminates all requirements of AD 2001-15-10 for Model A318, A319 and A320 series airplanes) and all requirements of AD 2016-06-13. For clarification, we have modified paragraph (i)(1) of this AD to state that compliance with paragraph (g) of this AD terminates all requirements of AD 2001-15-10 for Model A319, A320 and A321 series airplanes. We agree that operators will be required to track certain ADs with expired compliance times, but we are in process of rescinding some of those ADs through future rulemaking. We agree that AMOC letter ANM-116-16-491 dated September 27, 2016, will still be applicable to AD 2016-06-13.

    We disagree with the commenter's request to withdraw this AD. We, along with EASA, have determined that water ingestion in the BDDV, freezing of the BDDV in flight, and consequent loss of braking system function after landing, could possibly result in damage to the airplane and injury to occupants, and therefore, does constitute an unsafe condition, and that additional mandatory actions in this AD are required to mitigate the risks associated with the unsafe condition. Further, even if the current U.S.-Registered fleet is in compliance with the requirements of this AD, the issuance of the rule is still necessary to ensure that any affected airplane imported and placed on the U.S. Register in the future would be required to be in compliance as well. This AD expands the list of BDDV part numbers, which must be removed from service and are no longer eligible for installation on an airplane. Therefore, all U.S.-Registered airplanes might not be in compliance with the actions of this AD even when in full compliance with AD 2001-15-10 and AD 2016-06-13. However, if DAL concludes that it is in compliance with the requirements of this AD, then it may utilize the provision in paragraph (f) to demonstrate compliance. We have not changed this AD in this regard.

    Request To Correct Certain Wording

    DAL observed that the word “actions” was inadvertently omitted from the first sentence in paragraph (g)(2) of the proposed AD after the word “corrective.” We agree and have added the missing word accordingly.

    Request To Revise Certain Wording for Clarification

    UAL requested that we revise the wording in certain paragraphs of the proposed AD for clarification. UAL suggested that paragraph (g)(3) of the proposed AD be reworded because the way it is currently written, it could be interpreted as “a part number specified as new P/N in figure 2 to paragraphs (g)(3) and (h)(2)” cannot be installed.

    UAL also suggested that paragraph (h) of the proposed AD be revised to eliminate paragraphs (h)(1) and (h)(2) and be reworded to simply prohibit the installation of affected BDDVs as specified in figure 1 to paragraphs (g) and (h) of the proposed AD.

    We partially agree to the commenter's requests. We agree to clarify paragraph (g)(3) of this AD. We have revised paragraph (g)(3) of this AD to clarify that operators should replace the old part number with a new part number as specified in figure 2 to paragraphs (g)(3) and (h)(2) of this AD.

    However, we disagree to simply prohibit installation of discrepant parts that are specified in figure 1 to paragraphs (g) and (h) of this AD from the effective date of this AD. Paragraph (h) provides operators flexibility by providing the full compliance time as specified in paragraph (g) to modify or replace discrepant parts, unless the discrepant part is either currently installed as of the effective date of this AD and is subsequently modified or replaced (after the effective date of this AD) as stated in paragraph (h)(1) of this AD, or has already been modified or replaced as of the effective date of this AD as stated in paragraph (h)(2) of this AD. Operators have the discretion to prohibit operation with a discrepant part in figure 1 to paragraphs (g) and (h) of this AD from the effective date of this AD. We have not changed the AD in this regard.

    Request To Clarify the Compliance Requirements

    JetBlue requested that we clarify the compliance requirements in paragraphs (g)(2), (g)(3), and (h)(2) of the proposed AD because of contradictory requirements. The commenter did not clearly identify which requirements needed clarification.

    We do not agree to revise paragraph (g)(2) of this AD. This AD and the Accomplishment Instructions of Airbus Service Bulletin A320-32-1415, Revision 02, dated December 10, 2015, specify that, if corrosion is found in a non-permitted area, replace the BDDV before further flight. We have not changed this AD in this regard.

    As we stated previously, we have revised paragraph (g)(3) of this AD to clarify that operators should replace the old part number with a new part number as specified in figure 2 to paragraphs (g)(3) and (h)(2) of this AD.

    We agree to clarify the compliance requirements of paragraph (h)(2) of this AD. As stated in the previous comment response, paragraph (h) is intended to provide operators flexibility by providing the full compliance time as specified in paragraph (g) to modify or replace discrepant parts. However, paragraph (h)(2) of this AD specifically prohibits installation of a discrepant part as of the effective date of this AD if the discrepant part has already been modified or replaced as of the effective date of this AD. Paragraph (h)(1) of this AD prohibits installation of a discrepant part as of the effective date of this AD, if a discrepant part is currently installed as of the effective of this AD, but is modified or replaced after the effective date of this AD. Operators have the discretion to prohibit operation with a discrepant part in figure 1 to paragraphs (g) and (h) of this AD from the effective date of this AD. We have not changed the AD in this regard.

    Conclusion

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

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

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

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

    Related Service Information Under 1 CFR Part 51

    Airbus SAS has issued Service Bulletin A320-32-1203, Revision 02, dated February 9, 2001. This service information describes procedures for identifying the BDDV part number installed on the airplane, and modifying or replacing BDDVs having certain part numbers.

    Airbus SAS has also issued Service Bulletin A320-32-1415, Revision 02, dated December 10, 2015. This service information describes procedures for modifying and re-identifying the BDDV. The modification includes modifying the drain hose of the BDDV, and doing all related investigative and corrective actions if applicable. The related investigative actions include an inspection for corrosion. Corrective actions include replacing the BDDV.

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

    Costs of Compliance

    We estimate that this AD affects 1,136 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
  • Identification and modification or replacement Up to 6 work-hours × $85 per hour = $510 Up to $395 Up to $905 Up to $1,028,080.

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

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-23-11 Airbus SAS: Amendment 39-19497; Docket No. FAA-2018-0297; Product Identifier 2017-NM-181-AD. (a) Effective Date

    This AD is effective December 19, 2018.

    (b) Affected ADs

    This AD affects AD 2001-15-10, Amendment 39-12344 (66 FR 39413, July 31, 2001) (“AD 2001-15-10”), and AD 2016-06-13, Amendment 39-18444 (81 FR 17365, March 29, 2016) (“AD 2016-06-13”).

    (c) Applicability

    This AD applies to the airplanes identified in paragraphs (c)(1) through (c)(3) of this AD, certificated in any category, all manufacturer serial numbers, except those on which Airbus Modification 26925 has been embodied in production, which introduces a modified alternate braking system that removes the brake dual distribution valve (BDDV).

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

    (2) Airbus SAS Model A320-211, -212, -214, -231, -232, and -233 airplanes.

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

    (d) Subject

    Air Transport Association (ATA) of America Code 32, Landing gear.

    (e) Reason

    This AD was prompted by investigations that revealed that the cover seal of the brake dual distribution valve (BDDV) was damaged and did not ensure efficient sealing. We are issuing this AD to prevent water ingestion in the BDDV, freezing of the BDDV in flight, and consequent loss of braking system function after landing. These conditions could possibly result in damage to the airplane and injury to occupants.

    (f) Compliance

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

    (g) Identification and Modification or Replacement

    Within 3 months after the effective date of this AD, identify the BDDV part number installed on the airplane. For each affected BDDV part number specified in figure 1 to paragraphs (g) and (h) of this AD, within 3 months after the effective date of this AD, do the actions in paragraph (g)(1), (g)(2), or (g)(3) of this AD. A review of airplane maintenance records is acceptable to identify the BDDV part number if the part number of the BDDV can be conclusively determined from that review.

    ER14NO18.001

    (1) Modify and re-identify the affected BDDV, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-32-1203, Revision 02, dated February 9, 2001.

    (2) Modify and re-identify the affected BDDV, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-32-1415, Revision 02, dated December 10, 2015. Do all applicable related investigative and corrective actions before further flight.

    (3) Replace the affected BDDV with a BDDV having a part number not specified in figure 1 to paragraphs (g) and (h) of this AD, or replace the old part number with a new part number as specified in figure 2 to paragraphs (g)(3) and (h)(2) of this AD. Do the replacement using a method approved by the Manager, International Section, Transport Standards 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.

    ER14NO18.002 (h) Parts Installation Prohibition

    As of the applicable time specified in paragraph (h)(1) or (h)(2) of this AD, no person may install a BDDV having a part number specified in figure 1 to paragraphs (g) and (h) of this AD, on any airplane.

    (1) For any airplane that, on the effective date of this AD, has a BDDV installed with a part number specified in figure 1 to paragraphs (g) and (h) of this AD: After modification or replacement of the BDDV, as required by paragraph (g) of this AD.

    (2) For any airplane that, on the effective date of this AD, has a BDDV installed or replaced with a part number specified as `new P/N' in figure 2 to paragraphs (g)(3) and (h)(2) of this AD, or has a BDDV installed or replaced with a part number not specified in figure 1 to paragraphs (g) and (h) of this AD: As of the effective date of this AD.

    (i) Terminating Action for Other ADs

    (1) Doing the actions in paragraph (g) of this AD terminates the requirements in paragraphs (e) and (f) of AD 2001-15-10 for Model A319, A320 and A321 series airplanes.

    (2) Doing the actions in paragraph (g) of this AD terminates all of the requirements of AD 2016-06-13.

    (j) Credit for Previous Actions

    (1) This paragraph provides credit for actions required by paragraph (g)(1) of this AD, if those actions were performed before the effective date of this AD using the service information in paragraphs (j)(1)(i) or (j)(1)(ii) of this AD.

    (i) Airbus Service Bulletin A320-32-1203, dated June 4, 1999, which was incorporated by reference in AD 2001-15-10.

    (ii) Airbus Service Bulletin A320-32-1203, Revision 01, dated October 12, 2000.

    (2) This paragraph provides credit for actions required by paragraph (g)(2) of this AD, if those actions were performed before the effective date of this AD using the service information in paragraphs (j)(2)(i) or (j)(2)(ii) of this AD.

    (i) Airbus Service Bulletin A320-32-1415, dated September 2, 2014, which was incorporated by reference in AD 2016-06-13.

    (ii) Airbus Service Bulletin A320-32-1415, Revision 01, dated April 23, 2015.

    (k) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

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

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

    (l) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0119, dated July 11, 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-2018-0297.

    (2) For more information about this AD, contact Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3223.

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

    (m) Material Incorporated by Reference

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

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

    (i) Airbus Service Bulletin A320-32-1203, Revision 02, dated February 9, 2001.

    (ii) Airbus Service Bulletin A320-32-1415, Revision 02, dated December 10, 2015.

    (3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EIAS, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; internet http://www.airbus.com.

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

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

    Issued in Des Moines, Washington, on November 5, 2018. Christopher Spangenberg, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-24688 Filed 11-13-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0637; Product Identifier 2018-NM-091-AD; Amendment 39-19496; AD 2018-23-10] RIN 2120-AA64 Airworthiness Directives; Airbus SAS Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Airbus SAS Model A350-941 airplanes. This AD was prompted by leakage of shrouded pipe T-boxes in the potable water system. This AD requires replacement of the affected potable water T-boxes and clamps with new parts. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective December 19, 2018.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 19, 2018.

    ADDRESSES:

    For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAL, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; internet http://www.airbus.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0637.

    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-2018-0637; 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:

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

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A350-941 airplanes. The NPRM published in the Federal Register on August 2, 2018 (83 FR 37766). The NPRM was prompted by leakage of shrouded pipe T-boxes in the potable water system. The NPRM proposed to require replacement of the affected potable water T-boxes and clamps with new parts.

    We are issuing this AD to address the possible leakage of water into the avionics bay. This condition, if not corrected, could lead to the loss of systems/equipment located inside the avionics bay and possible loss of control of the airplane.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0111R1, dated May 30, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A350-941 airplanes. The MCAI states:

    During a pressure test on the A350 Final Assembly Line (FAL), leakage was observed on the potable water system shrouded pipes, due to a crack failure on the T-Boxes. Leakage of a primary pipe may cause water ingress into the avionics bay. Additionally, during another pressure proof test on the A350 FAL, loss of torque was detected on the clamps used to attach the shrouded pipes on the T-Boxes.

    This condition, if not corrected, could lead to loss of systems/equipment located inside the avionics bay, possibly resulting in an unsafe condition.

    Prompted by these findings, Airbus developed improved potable water T-Boxes and clamps, which are embodied in production through Airbus mod 111435 or mod 111440, and introduced in service through the SB [Service Bulletin A350-38-P004].

    For the reasons described above, this [EASA] AD requires replacement of the affected potable water shrouded pipe T-Boxes and clamps with new parts.

    This [EASA] AD was revised to exclude post-mod 111440 aeroplanes from the Applicability.

    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-2018-0637.

    Comments

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

    Request To Reference Maintenance Procedure (MP) Task for Additional Information

    Delta Air Lines (DAL) requested that we reference Airbus MP Task A350-A-20-51-64-01001-25BA-A in the proposed AD as a guide for installing and torqueing the hardware. DAL stated that the additional information provided in the MP task would ensure a more complete set of installation instructions.

    We agree with the commenter, because the referenced MP task does provide proper torque values. We have added a reference to the specified MP task as a note to paragraph (g) of this AD.

    Request To Remove Leak Test Requirement

    DAL requested that we remove the system leak test requirement from the proposed AD. DAL stated that Airbus gave them permission to forego the test because the potable water system requires no maintenance, and that the test is therefore unnecessary.

    We disagree with removing the required test, because we have insufficient evidence to warrant removing a required test from this AD for all operators. DAL may request approval of an alternative method of compliance (AMOC), if it can provide sufficient data to substantiate that skipping the test would provide an acceptable level of safety for DAL's fleet. We have not changed this AD in this regard.

    Request To Provide Alternative Hardware Solution

    DAL requested that we modify the proposed AD by raising the required torque value or requiring a lockwire for the clamp screw. DAL asserted that the torque value given in the service information is very low for this type of clamp, and that if the screw loses its torque, the clamp could depart the shell and fall into the avionics bay, creating a possible hazard to safe navigation.

    We disagree with DAL's request because we have confirmed with Airbus and EASA that the clamp torque specified in the referenced service information is correct. Concerned operators may request approval of an AMOC for a lockwire solution under the provisions of paragraph (h) of this AD. We have not changed this AD in this regard.

    Conclusion

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

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

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

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

    Related Service Information Under 1 CFR Part 51

    Airbus has issued Service Bulletin A350-38-P004, dated April 11, 2018. This service information describes procedures for replacing the affected potable water T-boxes and clamps with new parts. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 7 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated Costs Labor cost Parts cost Cost per product Cost on U.S.
  • operators
  • Up to 16 work-hours × $85 per hour = $1,360 Up to $2,050 Up to $3,410 Up to $23,870.

    According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all known 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): 2018-23-10 Airbus SAS: Amendment 39-19496; Docket No. FAA-2018-0637; Product Identifier 2018-NM-091-AD. (a) Effective Date

    This AD is effective December 19, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Airbus SAS Model A350-941 airplanes, certificated in any category, except those on which Airbus modification (mod) 111435 or mod 111440 has been embodied in production.

    (d) Subject

    Air Transport Association (ATA) of America Code 38, Water/waste.

    (e) Reason

    This AD was prompted by leakage of shrouded pipe T-boxes in the potable water system. We are issuing this AD to address the possible leakage of water into the avionics bay. This condition, if not corrected, could lead to the loss of systems/equipment located inside the avionics bay and possible loss of control of the airplane.

    (f) Compliance

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

    (g) Required Actions

    Within 36 months after the effective date of this AD: Replace the affected potable water T-boxes and clamps with new parts in accordance with the Accomplishment Instructions of Airbus Service Bulletin A350-38-P004, dated April 11, 2018.

    Note 1 to paragraph (g) of this AD:

    Airbus Maintenance Procedure (MP) Task A350-A-20-51-64-01001-25BA-A provides additional information for installing and torqueing the hardware.

    (h) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

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

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

    (i) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018-0111R1, dated May 30, 2018, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0637.

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

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

    (j) Material Incorporated by Reference

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

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

    (i) Airbus Service Bulletin A350-38-P004, dated April 11, 2018.

    (ii) [Reserved]

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

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

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

    Issued in Des Moines, Washington, on November 5, 2018. Chris Spangenberg, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-24686 Filed 11-13-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0125; Airspace Docket No. 18-AAL-5] RIN 2120-AA66 Amendment of Class D and Class E Airspace, and Revocation of Class E Airspace; Juneau, AK AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action amends Class D airspace, Class E surface area airspace, Class E airspace extending upward from 700 feet above the surface, and removes Class E airspace designated as an extension at Juneau International Airport, Juneau, AK. Airspace redesign is necessary as the FAA transitions from ground-based to satellite-based navigation for the safety and management of instrument flight rules (IFR) operations at this airport. This action also updates the airport's geographic coordinates to match the FAA's aeronautical database for the associated Class D and E airspace areas, and replaces the outdated term Airport/Facility Directory with Chart Supplement in the Class D airspace legal description.

    DATES:

    Effective 0901 UTC, January 3, 2019. The Director of the Federal Register approves this incorporation by reference action under Title 1 Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

    FAA Order 7400.11C, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA).

    For information on the availability of this material at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

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

    FOR FURTHER INFORMATION CONTACT:

    Richard Roberts, Federal Aviation Administration, Operations Support Group, Western Service Center, 2200 S 216th Street, Des Moines, WA 98198-6547; telephone (206) 231-2245.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies Class D airspace, Class E surface area airspace, Class E airspace extending upward from 700 feet above the surface, and removes Class E airspace designated as an extension at Juneau International Airport, Juneau, AK, to support IFR operations at this airport.

    History

    The FAA published a notice of proposed rulemaking in the Federal Register (83 FR 19653; May 4, 2018) for Docket No. FAA-2018-0125 to modify Class D airspace, Class E surface area airspace, Class E airspace extending upward from 700 feet above the surface and remove Class E airspace designated as an extension at Juneau International Airport, Juneau, AK. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One commenter was concerned that VFR operations would be problematic because the Airport Traffic Control Tower (ATCT) would not be able to see to the lateral boundaries of the proposed Class D area and weather may be inconsistent between the outer areas of the proposed Class D and the area closer to the airport.

    The FAA's response is that these conditions exist in several locations across the CONUS and Air Traffic Control is skilled at operations within these environments. Pilots operating under Visual Flight Rules (VFR) at the lateral boundaries of the proposed Class D may continue to operate VFR provided weather minimums can be maintained and Special VFR requirements are applied, when appropriate.

    In addition, the commenter wrote that communication below 1,500 feet above ground level (AGL) was limited in the proposed airspace to the west.

    The FAA performed a communication analysis at both 1,000 and 1,500 feet AGL and determined that communication in the area is provided by both a Remote Communications Air/Ground facility (RCAG) and a Back Up Emergency Communication (BUEC) facility. The analysis determined that, while some terrain features may create communication difficulties in specific locations, the available systems should provide communication coverage either on the primary frequency with Juneau ATCT or the BUEC through Anchorage Air Route Traffic Control Center.

    Class D and Class E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11C, dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Rule

    This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 modifies Class D airspace, Class E surface area airspace, Class E airspace extending upward from 700 feet above the surface and removes Class E designated as an extension at Juneau International Airport, Juneau, AK.

    Class D airspace is modified to within a 3-mile radius of Juneau International Airport and within 2.5 miles each side of the 271° bearing from the airport extending from the 3-mile radius to 5.2 miles west of the airport, and within 1 mile southwest and 2.6 miles northeast of the airport 135° bearing extending from the airport 3-mile radius to 5 miles southeast of the airport, excluding that airspace below 2,000 feet MSL within the area bounded by a line beginning at lat. 58°19′35″ N, long. 134°24′31″ W, to lat. 58°19′02″ N, long. 134°25′33″ W, to lat. 58°20′16″ N, long. 134°27′28″ W, to lat. 58°20′34″ N, long. 134°26′22″ W, thence to the point of beginning. The areas to the west and southeast of the airport contains IFR departures and arrivals. A small area within the extended area to the southeast near Salmon Creek is excluded from Class D airspace below 2,000 feet MSL to ensure 2-way radio communication with the Juneau Airport Traffic Control Tower is possible prior to entering Class D airspace from that area.

    Class E surface area airspace is modified to be coincident with the Class D airspace area described above.

    Class E airspace designated as an extension is removed since the Class D airspace contains arrival aircraft within 1,000 feet of the surface, and a Class E arrival extension is not required.

    Class E airspace extending upward from 700 feet above the surface is modified to a polygon approximately 12-18 miles wide by 42-miles long (from approximately 48 miles wide by 70 miles long) oriented northwest to southeast (from west to east). The area is defined as that airspace upward from 700 feet above the surface within the area bounded by a line beginning at lat. 58°27′33″ N, long. 134°37′40″ W, to lat. 58°13′13″ N, long. 134°11′51″ W, to lat. 58°05′59″ N, long. 134°21′04″ W, to lat. 58°10′51″ N, long. 134°59′18″ W, to lat. 58°23′41″ N, long. 135°31′13″ W, to lat. 58°32′22″ N, long. 135°18′32″ W, to lat. 58°27′17″ N, long. 135°01′27″ W, thence to the point of beginning. This modification reduces the airspace area to only that area necessary to contain IFR operations as they transition between the airport and en route environments. Also, Class E airspace extending upward from 1,200 feet above the surface designated for Juneau International Airport is removed since this airspace is wholly contained within the Southeast Alaska Class E en route airspace, and duplication is not necessary.

    This action also makes an editorial change to the Class D airspace legal description replacing Airport/Facility Directory with Chart Supplement.

    Regulatory Notices and Analyses

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

    Environmental Review

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

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018, is amended as follows: Paragraph 5000 Class D Airspace. AAL AK D Juneau, AK [Amended] Juneau International Airport, AK (Lat. 58°21′17″ N, long. 134°34′42″ W)

    That airspace extending upward from the surface to and including 2,500 feet MSL within a 3-mile radius of Juneau International Airport, and within 2.5 miles each side of the 271° bearing from the airport extending from the 3-mile radius to 5.2 miles west of the airport, and within 1 mile southwest and 2.6 miles northeast of the airport 135° bearing extending from the airport 3-mile radius to 5 miles southeast of the airport, excluding that airspace below 2,000 feet MSL within the area bounded by a line beginning at lat. 58°19′35″ N, long. 134°24′31″ W, to lat. 58°19′02″ N, long. 134°25′33″ W, to lat. 58°20′16″ N, long. 134°27′28″ W, to lat. 58°20′34″ N, long. 134°26′22″ W, thence to the point of beginning. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6002 Class E Airspace Areas Designated as Surface Areas. AAL AK E2 Juneau, AK [Amended] Juneau International Airport, AK (Lat. 58°21′17″ N, long. 134°34′42″ W)

    That airspace extending upward from the surface within a 3-mile radius of Juneau International Airport, and within 2.5 miles each side of the 271° bearing from the airport extending from the 3-mile radius to 5.2 miles west of the airport, and within 1 mile southwest and 2.6 miles northeast of the airport 135° bearing extending from the airport 3-mile radius to 5 miles southeast of the airport, excluding that airspace below 2,000 feet MSL within the area bounded by a line beginning at lat. 58°19′35″ N, long. 134°24′31″ W, to lat. 58°19′02″ N, long. 134°25′33″ W, to lat. 58°20′16″ N, long. 134°27′28″ W, to lat. 58°20′34″ N, long. 134°26′22″ W, thence to the point of beginning. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6004 Class E Airspace Designated as an Extension to a Class D or Class E Surface Area. AAL AK E4 Juneau, AK [Removed] Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AAL AK E5 Juneau, AK [Amended] Juneau International Airport, AK (Lat. 58°21′17″ N, long. 134°34′42″ W)

    That airspace upward from 700 feet above the surface within the area bounded by a line beginning at lat. 58°27′33″ N, long. 134°37′40″ W, to lat. 58°13′13″ N, long. 134°11′51″ W, to lat. 58°05′59″ N, long. 134°21′04″ W, to lat. 58°10′51″ N, long. 134°59′18″ W, to lat. 58°23′41″ N, long. 135°31′13″ W, to lat. 58°32′22″ N, long. 135°18′32″ W, to lat. 58°27′17″ N, long. 135°01′27″ W, thence to the point of beginning.

    Issued in Seattle, Washington, on November 1, 2018. Shawn M. Kozica, Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2018-24721 Filed 11-13-18; 8:45 am] BILLING CODE 4910-13-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 51, 60, and 63 [EPA-HQ-OAR-2016-0510; FRL-9986-42-OAR] RIN 2060-AS95 Testing Regulations for Air Emission Sources AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This action amends certain existing testing regulations to reflect corrections, updates, and the addition of alternative equipment and methods for source testing of emissions. These revisions will improve the quality of data and provide flexibility in the use of approved alternative procedures. The revisions do not impose any new substantive requirements on source owners or operators.

    DATES:

    The final rule is effective on January 14, 2019. The incorporation by reference materials listed in the rule are approved by the Director of the Federal Register as of January 14, 2019.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2016-0510. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy. Publicly available docket materials are available electronically through http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Lula H. Melton, Office of Air Quality Planning and Standards, Air Quality Assessment Division (E143-02), Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number: (919) 541-2910; fax number: (919) 541-0516; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    The supplementary information in this preamble is organized as follows:

    Table of Contents I. General Information A. Does this action apply to me? B. What action is the agency taking? C. Judicial Review II. Background III. Summary of Amendments A. Method 201A of Appendix M of Part 51 B. Method 204 of Appendix M of Part 51 C. Method 205 of Appendix M of Part 51 D. General Provisions (Subpart A) of Part 60 E. Fossil-Fuel-Fired Steam Generators (Subpart D) Part 60 F. Electric Utility Steam Generating Units (Subpart Da) Part 60 G. Industrial-Commercial-Institutional Steam Generating Units (Subpart Db) Part 60 H. Small Industrial-Commercial-Institutional Steam Generating Units (Subpart Dc) Part 60 I. Municipal Waste Combustors for Which Construction is Commenced After December 20, 1989 and on or Before September 20, 1994 (Subpart Ea) Part 60 J. Glass Manufacturing Plants (Subpart CC) Part 60 K. New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air Furnaces (Subpart QQQQ) Part 60 L. Method 2B of Appendix A-1 of Part 60 M. Method 5 of Appendix A-3 of Part 60 N. Method 5B of Appendix A-3 of Part 60 O. Method 5I of Appendix A-3 of Part 60 P. Method 7 of Appendix A-4 of Part 60 Q. Method 8 of Appendix A-4 of Part 60 R. Method 18 of Appendix A-6 of Part 60 S. Method 22 of Appendix A-7 of Part 60 T. Method 26 of Appendix A-8 of Part 60 U. Method 26A of Appendix A-8 of Part 60 V. Test Method 28WHH of Appendix A-8 of Part 60 W. Performance Specification 1 of Appendix B of Part 60 X. Performance Specification 2 of Appendix B of Part 60 Y. Performance Specification 3 of Appendix B of Part 60 Z. Performance Specification 11 of Appendix B of Part 60 AA. Performance Specification 15 of Appendix B of Part 60 BB. Performance Specification 18 of Appendix B of Part 60 CC. Procedure 1 of Appendix F of Part 60 DD. General Provisions (Subpart A) Part 63 EE. Wool Fiberglass Manufacturing (Subpart NNN) Part 63 FF. Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters (Subpart DDDDD) Part 63 GG. Coal- and Oil-Fired Electric Utility Steam Generating Units (Subpart UUUUU) Part 63 HH. Method 303 of Appendix A of Part 63 II. Method 308 of Appendix A of Part 63 JJ. Method 320 of Appendix A of Part 63 KK. Method 323 of Appendix A of Part 63 LL. Method 325A of Appendix A of Part 63 MM. Method 325B of Appendix A of Part 63 IV. Public Comments on the Proposed Rule V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs C. Paperwork Reduction Act (PRA) D. Regulatory Flexibility Act (RFA) E. Unfunded Mandates Reform Act (UMRA) F. Executive Order 13132: Federalism G. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments H. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use J. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR part 51 K. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations L. Congressional Review Act (CRA) I. General Information A. Does this action apply to me?

    The revisions promulgated in this final rule apply to industries that are subject to the current provisions of 40 Code of Federal Regulations (CFR) parts 51, 60, and 63. We did not list all of the specific affected industries or their North American Industry Classification System (NAICS) codes herein since there are many affected sources in numerous NAICS categories. If you have any questions regarding the applicability of this action to a particular entity, consult either the air permitting authority for the entity or your EPA Regional representative as listed in 40 CFR 63.13.

    B. What action is the agency taking?

    We are promulgating corrections and updates to regulations for source testing of emissions. More specifically, we are correcting typographical and technical errors, updating obsolete testing procedures, adding approved testing alternatives, and clarifying testing requirements.

    C. Judicial Review

    Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of this final rule is available by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by January 14, 2019. Under section 307(d)(7)(B) of the CAA, only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements that are the subject of this final rule may not be challenged later in civil or criminal proceedings brought by the EPA to enforce these requirements.

    II. Background

    The revisions to testing regulations for air emission sources were proposed in the Federal Register on January 26, 2018 (83 FR 3636). The public comment period ended March 27, 2018, and 83 comment letters were received from the public; 23 of the comment letters were relevant, and the other 60 comment letters were considered beyond the scope of the proposed rule. This final rule was developed based on public comments that the agency received on the proposed rule.

    III. Summary of Amendments A. Method 201A of Appendix M of Part 51

    In Method 201A, in section 12.5, the denominator of equation 24 is corrected as proposed; the proposed c′p in the denominator is changed to Cp′ to be consistent with the nomenclature in section 12.1. The cp in the numerator is changed to Cp also to be consistent with the nomenclature in section 12.1.

    B. Method 204 of Appendix M of Part 51

    In Method 204, in section 8.2, the statement regarding equation 204-2 is corrected to “The NEAR must be ≤0.05,” as proposed.

    C. Method 205 of Appendix M of Part 51

    In Method 205, section 2.1.1 is revised to allow the use of National Institute of Standards and Technology (NIST)-traceable transfer standards to calibrate the gas dilution system as proposed. The agency continues to believe that these standards are widely available and provide the accuracy necessary to perform the calibration. Section 2.1.1 is also revised as proposed to require testers to report the results of the calibration of the dilution system to enable the regulatory authority to review this information.

    D. General Provisions (Subpart A) of Part 60

    In the General Provisions of part 60, § 60.17(h) is revised as proposed to add ASTM D6216-12 to the list of incorporations by reference and to re-number the remaining consensus standards that are incorporated by reference in alpha-numeric order.

    E. Fossil-Fuel-Fired Steam Generators (Subpart D) Part 60

    In a change from proposal, the allowed filter temperature in § 60.46(b)(2)(i) is not revised. Based on comments we received on the proposed revisions, we are deferring finalizing the proposed revisions of the temperature tolerances of probe and filter holder heating systems as part of this rulemaking. We will continue to review supporting information and data we received on the proposed rule and may propose either revisions or similar requirements as part of future rulemakings.

    F. Electric Utility Steam Generating Units (Subpart Da) Part 60

    In a change from proposal, the allowed filter temperature in § 60.50Da (b)(1)(ii)(A) is not revised. Based on comments we received on the proposed revisions, we are deferring finalizing the proposed revisions of the temperature tolerances of probe and filter holder heating systems as part of this rulemaking. We will continue to review supporting information and data we received on the proposed rule and may propose either revisions or similar requirements as part of future rulemakings.

    G. Industrial-Commercial-Institutional Steam Generating Units (Subpart Db) Part 60

    In a change from proposal, the allowed filter temperature in § 60.46b(d)(4) is not revised. Based on comments we received on the proposed revisions, we are deferring finalizing the proposed revisions of the temperature tolerances of probe and filter holder heating systems as part of this rulemaking. We will continue to review supporting information and data we received on the proposed rule and may propose either revisions or similar requirements as part of future rulemakings.

    H. Small Industrial-Commercial-Institutional Steam Generating Units (Subpart Dc) Part 60

    In a change from proposal, the allowed filter temperature in § 60.45c(a)(5) is not revised. Based on comments we received on the proposed revisions, we are deferring finalizing the proposed revisions of the temperature tolerances of probe and filter holder heating systems as part of this rulemaking. We will continue to review supporting information and data we received on the proposed rule and may propose either revisions or similar requirements as part of future rulemakings.

    I. Municipal Waste Combustors for Which Construction is Commenced After December 20, 1989 and on or Before September 20, 1994 (Subpart Ea) Part 60

    In a change from proposal, the allowed filter temperature in § 60.58a(b)(3) is not revised. Based on comments we received on the proposed revisions, we are deferring finalizing the proposed revisions of the temperature tolerances of probe and filter holder heating systems as part of this rulemaking. We will continue to review supporting information and data we received on the proposed rule and may propose either revisions or similar requirements as part of future rulemakings.

    J. Glass Manufacturing Plants (Subpart CC) Part 60

    In a change from proposal, the allowed filter temperatures in §§ 60.293(f) and 60.296(d)(2) are not revised. Based on comments we received on the proposed revisions, we are deferring finalizing the proposed revisions of the temperature tolerances of probe and filter holder heating systems as part of this rulemaking. We will continue to review supporting information and data we received on the proposed rule and may propose either revisions or similar requirements as part of future rulemakings.

    K. New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air Furnaces (Subpart QQQQ) Part 60

    In subpart QQQQ, in Method 28WHH, in section 13.5.1, equation 8 is corrected as proposed.

    L. Method 2B of Appendix A-1 of Part 60

    In Method 2B, in section 12.1, the definition of ambient carbon dioxide concentration is revised as proposed. The agency continues to believe that the global monthly mean (CO2)a concentration varies over time. Also, a website link is added to the definition as specified at proposal.

    M. Method 5 of Appendix A-3 of Part 60

    In a change from proposal, allowed filter temperatures in Method 5, sections 2.0, 6.1.1.2, 6.1.1.6, 6.1.1.7, and 8.5 are not revised. Based on comments we received on the proposed revisions, we are deferring finalizing the proposed revisions of the temperature tolerances of probe and filter holder heating systems as part of this rulemaking. We will continue to review supporting information and data we received on the proposed rule and may propose either revisions or similar requirements as part of future rulemakings.

    Section 6.1.1.9 is revised as proposed to allow the use of a single temperature sensor in lieu of two temperature sensors on the dry gas meter as allowed by Technical Information Document 19 (TID-19) and the approved broadly applicable alternative, ALT-117 (see https://www.epa.gov/emc). Consistent with our response to the comment regarding allowing flexibility for the weighing container in section 11.2.1, Method 5B, the first sentence in section 11.2.1, Method 5 is revised similarly.

    N. Method 5B of Appendix A-3 of Part 60

    In a change from proposal, the allowed filter temperatures in Method 5B, sections 2.0, 6.1, and 8.2 are not revised. Based on comments we received on the proposed revisions, we are deferring finalizing the proposed revisions of the temperature tolerances of probe and filter holder heating systems as part of this rulemaking. We will continue to review supporting information and data we received on the proposed rule and may propose either revisions or similar requirements as part of future rulemakings.

    Section 11.0 is revised as proposed to replace the reference to Method 5, section 11.0 with specific analytical procedures and to report the results using Figure 5B-1 for complete data review. Section 17.0 is revised as proposed to delete the word “Reserved” from the title, and Figure 5B-1 (Analytical Data Sheet) is added.

    O. Method 5I of Appendix A-3 of Part 60

    In a change from proposal, Method 5I, sections 2.1 and 8.5.2.2 are not revised to tighten the allowed filter temperatures. Based on comments we received on the proposed revisions, we are deferring finalizing the proposed revisions of the temperature tolerances of probe and filter holder heating systems as part of this rulemaking. We will continue to review supporting information and data we received on the proposed rule and may propose either revisions or similar requirements as part of future rulemakings.

    P. Method 7 of Appendix A-4 of Part 60

    In Method 7, sections 10.1.2 and 11.3 reference erroneous sections; the correct section is inserted, as proposed. The proposed referenced section 10.1.1.2 is changed to 10.1.1 to include procedures in both sections 10.1.1.1 and 10.1.1.2.

    Q. Method 8 of Appendix A-4 of Part 60

    As proposed, Method 8, sections 6.1.1.1 through 6.1.1.4 are renumbered to 6.1.1.2 through 6.1.1.5; a new section 6.1.1.1 is added to clarify the requirements that apply to the probe nozzle; and, in response to comments, Figure 8-1 (Sulfuric Acid Sampling Train) is corrected by: (1) Modifying the impinger graphics to make it consistent with the text in section 6.1.1.4 and (2) revising the proposed label S-Type Pitot Tube to Type S Pitot Tube for consistency. The proposed first sentence in section 6.1.1.1 is revised to “Borosilicate or quartz glass with a sharp, tapered leading edge and coupled to the probe liner using a polytetrafluoroethylene (PTFE) or glass-lined union (e.g., fused silica, Silico, or equivalent).” Based on a public comment that recommended adding Silco coated stainless steel unions as an option for Teflon unions, and for consistency with other test methods, we have replaced Teflon with the generic option polytetrafluoroethylene (PTFE).

    R. Method 18 of Appendix A-6 of Part 60

    In Method 18, in section 13.1, the erroneous paragraph (c) designation is re-designated as (b), as proposed.

    S. Method 22 of Appendix A-7 of Part 60

    In Method 22, sections 11.2.1 and 11.2.2 are revised as proposed to allow digital photography to be used for a subset of the recordkeeping requirements. As proposed, section 11.2.3 is added to specify the requirements for digital photographic records. In response to comments on the proposal, the next to the last sentence in section 11.2.3 regarding photographs that must be taken within 15 minutes of the observation period is revised from the proposal, and another sentence is added to provide clarity. The revised and new sentences read: “The photograph(s) representing the environmental conditions including the sky conditions and the position of the sun relative to the observer and the emission point must be taken within a reasonable time of the observation (i.e., 15 minutes). When observations are taken from exactly the same observation point on a routine basis (e.g., daily) and as long as there are no modifications to the units depicted, only a single photograph each day is necessary to document the observer's location relative to the emissions source, the process unit being observed, and the location of potential and actual emission points.” The agency notes that ALT-109 (see https://www.epa.gov/emc) is the associated broadly applicable alternative that allows the use of digital photographs for specific recordkeeping requirements.

    T. Method 26 of Appendix A-8 of Part 60

    As proposed, Method 26, section 6.2.2 is revised to allow the use of glass sample storage containers as an option to allow flexibility and to be consistent with Method 26A. The proposed title of section 6.2.2, “Storage Bottles,” is changed to “Storage Containers” to be consistent with the language in section 6.2.2.

    U. Method 26A of Appendix A-8 of Part 60

    As proposed, in Method 26A, section 6.2.1 is revised to remove the language regarding sample storage containers. In response to comments on our proposal, we have determined that high-density polyethylene is an acceptable material for sample storage containers in addition to the currently allowed glass. Therefore, in a new section 6.2.4., we have specified that both high-density polyethylene and glass are acceptable sample storage containers.

    V. Test Method 28WHH of Appendix A-8 of Part 60

    In Test Method 28WHH, equation 8 in section 13.5.1 is corrected, as proposed.

    W. Performance Specification 1 of Appendix B of Part 60

    As proposed, in Performance Specification 1, references to ASTM D6216-98 (in sections 2.1, 3.1, 6.1, 8.1(1), 8.1(3)(ii), 8.2(1), 8.2(2), 8.2(3), 9.0, 12.1, 13.0, 13.1, 13.2, and 16.0 paragraph 8) are replaced with ASTM D6216-12. As noted at proposal, if the initial certification of the continuous opacity monitoring system (COMS) has already occurred using D6216-98, D6216-03, or D6216-07, it will not be necessary to recertify using D6216-12. In response to comments on our decision to add ASTM D6216 to the list of consensus standards, the April 1998 publication date for ASTM D6216 in paragraph 8 in section 16.0 is replaced with October 2012, the ASTM D6216-12 publication date. In response to comments, for consistency with section 2.1, and for purposes of clarification, the note at the end of section 2.1 is added to section 13.0.

    X. Performance Specification 2 of Appendix B of Part 60

    In Performance Specification 2, section 13.2 is replaced with a table that indicates the relative accuracy performance specifications, as proposed. Given that the equals to (=) signs were erroneously omitted from several of the < and > values during publication of the table in the proposed rule, these values have been corrected.

    Y. Performance Specification 3 of Appendix B of Part 60

    In Performance Specification 3, the two sentences in section 12.0 that read, “Calculate the arithmetic difference between the RM and the CEMS output for each run. The average difference of the nine (or more) data sets constitute the RA.” are deleted, as proposed; these two sentences are no longer necessary since equations 3-1 and 3-2 would be moved from section 13.2 to section 12.0. The sentence, “Calculate the RA using equations 3-1 and 3-2.” is added to the beginning of section 12.0.

    Z. Performance Specification 11 of Appendix B of Part 60

    In Performance Specification 11, section 13.1, the word “average” erroneously exists in the second sentence and is deleted, as proposed.

    AA. Performance Specification 15 of Appendix B of Part 60

    As proposed, in Performance Specification 15, section 13.0 is added as “Method Performance [Reserved].”

    BB. Performance Specification 18 of Appendix B of Part 60

    As proposed, in Performance Specification 18, in section 11.8.7, the last sentence is revised to clarify the duration of the drift check. In Table 1, the erroneous acronym “NO2” is replaced with “NO,” as proposed. In the appendix of Performance Specification 18, the inadvertently omitted reserved section 12.0 is added, as proposed.

    CC. Procedure 1 of Appendix F of Part 60

    As proposed, in Procedure 1, in section 5.1.2 (1), the sentence immediately following the table that reads, “Challenge the CEMS three times at each audit point, and use the average of the three responses in determining accuracy.” is replaced with, “Introduce each of the audit gases, three times each for a total of six challenges. Introduce the gases in such a manner that the entire CEMS is challenged. Do not introduce the same gas concentration twice in succession.” In order to obtain six distinct readings during the cylinder gas audit (CGA), the same gas must not be introduced twice in succession, and this revised language accurately reflects this standard scientific practice. As also proposed, in section 5.1.2 (3), the reference to EPA's traceability protocol for gaseous calibration standards is updated, and the language regarding the use of EPA Method 205 for dilution of audit gases is clarified.

    DD. General Provisions (Subpart A) of Part 63

    Sections 63.7(g)(2), 63.7(g)(2)(v), and 63.8(e)(5)(i) of the General Provisions (subpart A) of part 63 are revised, as proposed, to require the reporting of specific test data for continuous monitoring system performance evaluation tests and ongoing quality assurance (QA) tests. These data elements are required regardless of the format of the report, i.e., electronic or paper. These modifications will ensure that performance evaluation and QA test reporting include all data necessary for the compliance authority to assess and assure the quality of the reported data and that the reported information describes and identifies the specific unit covered by the evaluation test report. In response to comment, we specified the level of reporting needed for continuous parameter monitoring systems (CPMS) versus other continuous monitoring systems including continuous emission monitoring systems (CEMS), COMS, and predictive emissions monitoring systems (PEMS).

    EE. Wool Fiberglass Manufacturing (Subpart NNN) Part 63

    In a change from proposal, the allowed filter temperature in § 63.1385(a)(5) is not revised. Based on comments we received on the proposed revisions, we are deferring finalizing proposed revisions of the temperature tolerances of probe and filter holder heating systems as part of this rulemaking. We will continue to review supporting information and data we received on the proposed rule and may propose either revisions or similar requirements as part of future rulemakings.

    FF. Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters (Subpart DDDDD) Part 63

    As proposed, in Table 6 of subpart DDDDD, row 1.f. is revised to allow the use of EPA SW-846-7471B (for liquid samples) in addition to EPA SW-846-7470A for measuring mercury to allow for compliance flexibility.

    GG. Coal- and Oil-Fired Electric Utility Steam Generating Units (Subpart UUUUU) Part 63

    In a change from proposal, the allowed filter temperature in § 63.10010(h)(7)(i)(1) is not revised. Based on comments we received on the proposed revisions, we are deferring finalizing proposed revisions of the temperature tolerances of probe and filter holder heating systems as part of this rulemaking. We will continue to review supporting information and data we received on the proposed rule and may propose either revisions or similar requirements as part of future rulemakings.

    As proposed, in Table 5, Method 5I is specified as a test method option because, as explained at proposal, Method 5I is designed for low particulate matter (PM) application.

    HH. Method 303 of Appendix A of Part 63

    In Method 303, section 12.4, equation 303-3 is corrected, as proposed, by inserting “where y = ” in front of the equation.

    II. Method 308 of Appendix A of Part 63

    As proposed, in Method 308, deionized distilled water replaces the aqueous n-proponal solution; the affected sections are 2.0, 7.2.2, 7.2.3.3, and 11.3.2. Section 7.2.2, which defines the aqueous n-proponal solution, is removed, as proposed. In section 7.2.3.3, the erroneous “four” is replaced as proposed, with “three” in the sentence that reads “Pipette 5, 15, and 25 ml of this standard, respectively into four 50-ml volumetric flasks.” Section 8.1.2 is revised, as proposed, to require a leak check prior to the sampling run (in addition to after the sampling run) for QA purposes; as explained at proposal, requiring a leak check prior to the sampling run would potentially save time and money. In section 9.1, methanol spike recovery check is added as a quality control (QC) measure in Table 9.1, as proposed. In section 12.1, variables used in equations 308-4 and 308-5 are added and section 12.5, which includes equations 308-4 and 308-5, is added, as proposed. In section 13.0, the title “Reserved” is replaced with “Method Performance” and QA requirements would be added to be consistent with other methods, as proposed. The erroneous proposed paragraph (a) of section 13.0 is replaced, as proposed, with “Calibration standards must meet the requirements in section 10.2.1 or 10.2.2 as applicable.”

    JJ. Method 320 of Appendix A of Part 63

    In section 8.2.2.4, the denominator in equation 2 is corrected from PSS to PS, as proposed. In section 9.2.3, the word “where” in the statement, “Calculate the dilution ratio using the tracer gas as follows: where:” is deleted, as proposed. Also in section 9.2.3, the inadvertently superscripted “dir” on the definition of spike is subscripted, as proposed.

    KK. Method 323 of Appendix A of Part 63

    In Method 323, section 12.9, the denominator in equation 323-8 is corrected, as proposed.

    LL. Method 325A of Appendix A of Part 63

    In Method 325A, section 8.2.1.3 is revised, as proposed, to clarify that only one extra sampling site is required near known sources of volatile organic compounds (VOCs) when the source is located both within 50 meters of the boundary and between two monitors. Based on a public comment we received on the proposed regulatory text, wording changes have been made to the language in section 8.2.1.3. As proposed, the label under Figure 8.1 is corrected from “Refinery (20% angle)” to “Refinery (20° angle).” Section 8.2.3.2 is revised, as proposed, to include facilities with a monitoring perimeter length equal to 7,315 meters (24,000 feet). Section 8.2.3.3 is added, as proposed, to provide clarification and an equivalent procedure in Option 2 (linear distance between sites) for site locations that parallel section 8.2.2.2.4 in Option 1 (radial distance between sites). In response to comments, section 8.4.3 is added to address worker safety during extenuating circumstances.

    MM. Method 325B of Appendix A of Part 63

    In Method 325B, section 9.3.2 is revised, as proposed, to correct an error in the number of field blank samples required for a sampling period and to provide consistency with the sample analysis required in Method 325B. In sections 9.13 and 11.3.2.5, the erroneous reference to section 10.6.3 is corrected to 10.0, as proposed. Also in section 11.3.2.5, the erroneous reference to section 10.9.5 is corrected to 9.13, as proposed. Section 12.2.2 is revised, as proposed, to correct the calculation of target compound concentrations at standard conditions, and the erroneous reference to Ustd in the note in section 12.2.2 is revised to UNTP. Sections 12.2.3 and 12.2.4 are deleted, as proposed, because the equations for target concentrations are incorrect. Table 17-1 is revised, as proposed, to add inadvertently omitted QC criteria from section 9.3.3.

    IV. Public Comments on the Proposed Rule

    Eighty-three (83) comment letters were received from the public; 23 of the comment letters were relevant, and the other 60 comment letters were considered as beyond the scope of the proposed rule. The public comments and the agency's responses are summarized in the Response to Comments document located in the docket for this rule. See the ADDRESSES section of this preamble.

    A summary of the relevant portions of significant comments that we received on the proposal and agency responses are presented below.

    Comment: Three commenters provided comments on our proposed revisions to the General Provisions (Subpart A) of Part 63. One commenter stated that the proposed revisions impose new requirements on CMS performance evaluations and QA testing for types of monitors not previously subject to such requirements. Another commenter remarked that the proposed revisions to various requirements in Part 63 revisions were vague. Yet another commenter remarked that the proposed revisions to § 63.8(e)(5) would shorten the CMS performance evaluation reporting period for CMS associated with performance tests.

    Response: We disagree with the comment that the proposed changes to § 63.8(e)(5)(i) would impose new requirements given that at proposal, the agency had explained that they were intended to clarify and codify data elements and reporting requirements that are already routinely requested by the Administrator's delegated authorities. With regard to § 63.8(e)(5), in a change from proposal, we have retained the existing requirement that allows for the simultaneous submission of the report of a CMS performance evaluation with results of performance testing required under 40 CFR 63.7. We also edited the final rule language for 40 CFR 63.7(g)(2)(v) to improve clarity and to eliminate confusion.

    Comment: Fifteen commenters provided comments arguing against the proposal to tighten the filter temperature tolerance in 40 CFR 60.46(b)(2)(i); 60.50Da(b)(1)(ii)(A); 60.45c(a)(5); 60.58a(b)(3); 60.293(f); 60.296(d)(2); 63.1385(a)(5); and sections 2.0, 6.1.1.2, 6.1.1.6, 6.1.1.7 and 8.5 of Method 5, Appendix A-3 of Part 60. They cited issues that included: weather (e.g., ambient temperature fluctuations and windy conditions); costs; lack of justification and data for the revision; inconsistent language (e.g., the use of “shall” vs. “may” and proposed revisions to temperature tolerance in Methods 5, 5B, and 5I but not in Methods 5D, 5E, and 5F); and safety risks. Nine commenters remarked that ambient conditions (cold climates, wind gusts, etc.) can cause temperature fluctuations that are difficult to manage. More specifically, one commenter stated that the reduced allowable temperature range would be problematic during testing in cold, windy ambient conditions that are persistent in the winter months in northern climates because the time required for temperature recovery after a component change in these conditions could add hours and possibly days to testing programs. One commenter remarked that the proposed ±5 °C is unattainable for sources in cold or windy climates.

    Eight commenters stated that alteration or replacement of equipment components would likely be necessary to achieve the proposed temperature tolerances resulting in additional costs. One commenter noted potential equipment improvements, such as increased probe sheath tubing diameter to make room for added insulation around every probe heater; re-design of filter heating ovens; improved sealing and insulation of the openings at the inlet and outlet of filter heating ovens; and/or for sources with high stack temperatures, more frequent use of air-cooled or water-cooled probes. One commenter remarked that this revision would force cold weather stack testers to replace or retrofit equipment with higher power heating devices and possibly more refined control devices which would be costly. One commenter remarked that this revision will most likely require air sampling equipment suppliers to redesign sample probes by either increasing sheath diameter, altering the placement or increasing the number of thermocouples used to control the probe heating system, and/or increasing the insulation around the sample liner. The commenter added that an increase in the diameter of the probe sheath would have a cascading effect either requiring test companies to purchase new sample hot boxes or retrofit existing sample hot boxes to accommodate the increased probe sheath diameter.

    Seven commenters stated that neither information nor data was provided to support, justify, or quantify the claimed increased precision of filterable PM measurements, and a few of these commenters noted that the Electric Power Research Institute (EPRI) paper that the EPA used as the basis for tightening the filter temperature tolerance was from a comparison of results measured at four coal-fired power plants.

    One commenter requested that the statement in § 60.50Da(b)(1)(ii)(A), “The probe and filter holder heating system in the sampling train may be set to provide an average gas temperature of no greater than 160 ±5 °C (320 ±9 °F),” be changed to, “The probe and filter holder heating system in the sampling train shall be set to provide an average gas temperature of 160 ±5 °C (320 ±9 °F),” because they believe that this was the agency's intent. Similarly, another commenter requested that the statement in § 60.296(d)(2), “The probe and filter holder heating system may be set to provide a gas temperature no greater than 177 ±5 °C (320 ±9 °F),” be changed to, “The probe and filter holder heating system shall be set to provide an average gas temperature 160 ±5 °C (320 ±9 °F),” because they believe that this was the agency's intent. One commenter also recommended changing the sentence in Method 5B to, “The collected sample is then heated in an oven at 160 °C (320 °F) for 6 hours . . . ,” to, “The collected sample is then heated in an oven at 160 ±5 °C (320 ±9 °F) for 6 hours . . .,” to be internally consistent.

    Three commenters noted that if the temperature tolerances are changed in Method 5, methods that reference Method 5 (namely Method 5D, section 2.1; Method 5E, section 2.0; and Method 5F, section 2.0) would also need to be revised.

    Three commenters remarked that tightening the filter temperature tolerance conflicts with the assertion that the proposed rule will improve the quality of data but will not impose new substantive requirements. Two of the three commenters further remarked that the proposed rule does not meet the requirements of Executive Order 13771 nor the Paperwork Reduction Act (PRA).

    Three commenters acknowledged that an improvement in measurement precision could benefit the data quality in limited situations, such as the Mercury and Air Toxics Standards (MATS).

    Four commenters remarked that if the proposed revisions to the temperature tolerances lead to a measurable change in reported PM emissions, sources that were previously in compliance with their emission standards may become non-compliant; one commenter added that the opposite situation may occur. One commenter stated that the proposed revision may have the unintended consequence of redefining the filterable PM being measured leading to either higher or lower PM measurements as compared to sampling runs conducted with wider tolerances.

    Two commenters mentioned that this revision could result in a potential safety risk. One of the commenters remarked that the added weight and handling difficulties associated with air- or water-cooled probes (if necessary to control the probe temperature) can increase safety risks to testing personnel, and the other commenter remarked that the proposed requirements may require the use of encapsulated probes which are heavy and cumbersome resulting in hazards.

    Response: In response to these comments and in a change from proposal, we are deferring finalizing proposed revisions of the temperature tolerances of probe and filter holder heating systems as part of this rulemaking. We will continue to review supporting information and data we received on the proposed rule and may propose either revisions or similar requirements as part of future rulemakings.

    V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

    B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

    This action is considered an Executive Order 13771 deregulatory action. This final rule provides meaningful burden reduction by allowing regulated facilities the flexibility to use newly-approved alternative procedures for compliance demonstration purposes, which may result in lower labor costs for some facilities (e.g., allowing digital photography in lieu of manual documentation in EPA Method 22); lower compliance testing costs (e.g., additional sample storage container options now allowed by Method 26); reducing the likelihood of re-testing (e.g., revised QA requirements in Method 308); and expediting data processing (e.g., simplified calculations in Method 325B).

    C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA. The revisions do not substantively revise the existing information collection requirements but simply corrects, updates, and clarifies performance testing and continuous monitoring requirements.

    D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action will not impose emission measurement requirements beyond those specified in the current regulations, nor does it change any emission standard. We have, therefore, concluded that this action will have no net regulatory burden for all directly regulated small entities.

    E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

    F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

    G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in Executive Order 13175. This action simply corrects and updates existing testing regulations. Thus, Executive Order 13175 does not apply to this action.

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

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

    I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    J. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR part 51

    This action involves technical standards. The EPA used ASTM D6216-12 for continuous opacity monitors in Performance Specification 1. The ASTM D6216-12 standard covers the procedure for certifying continuous opacity monitors and includes design and performance specifications, test procedures, and QA requirements to ensure that continuous opacity monitors meet minimum design and calibration requirements necessary, in part, for accurate opacity monitoring measurements in regulatory environmental opacity monitoring applications subject to 10 percent or higher opacity standards.

    The ASTM D6216-12 standard was developed and adopted by the American Society for Testing and Materials (ASTM). The standard may be obtained from http://www.astm.org or from the ASTM at 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959.

    K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action is a technical correction to previously promulgated regulatory actions and does not have an impact on human health or the environment.

    L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule report to each house of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects 40 CFR Part 51

    Environmental protection, Air pollution control, Performance specifications, Test methods and procedures.

    40 CFR Part 60

    Environmental protection, Air pollution control, Incorporation by reference, Performance specifications, Test methods and procedures.

    40 CFR Part 63

    Environmental protection, Air pollution control, Incorporation by reference, Performance specifications, Test methods and procedures.

    Dated: November 5, 2018. Andrew R. Wheeler, Acting Administrator.

    For the reasons stated in the preamble, the Environmental Protection Agency amends title 40, chapter I of the Code of Federal Regulations as follows:

    PART 51—REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS 1. The authority citation for part 51 continues to read as follows: Authority:

    23 U.S.C. 101; 42 U.S.C. 7401-7671q.

    2. Amend appendix M to part 51 as follows: a. Revise section 12.5, equation 24, in Method 201A. b. Revise the last sentence in section 8.2 in Method 204. c. Revise section 2.1.1 in Method 205.

    The revisions read as follows:

    Appendix M to Part 51—Recommended Test Methods for State Implementation Plans Method 201A—Determination of PM10 and PM2.5 Emissions From Stationary Sources (Constant Sampling Rate Procedure)

    12.5 * * *

    ER14NO18.059 Method 204—Criteria for and Verification of a Permanent or Temporary Total Enclosure

    8.2 * * *

    The NEAR must be ≤0.05.

    Method 205—Verification of Gas Dilution Systems for Field Instrument Calibrations

    2.1.1 The gas dilution system shall be recalibrated once per calendar year using NIST-traceable flow standards with an uncertainty ≤0.25 percent. You shall report the results of the calibration by the person or manufacturer who carried out the calibration whenever the dilution system is used, listing the date of the most recent calibration, the due date for the next calibration, calibration point, reference flow device (ID, S/N), and acceptance criteria. Follow the manufacturer's instructions for the operation and use of the gas dilution system. A copy of the manufacturer's instructions for the operation of the instrument, as well as the most recent calibration documentation, shall be made available for inspection at the test site.

    PART 60—STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES 3. The authority citation for part 60 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    4. In § 60.17, revise paragraph (h)(177) to read as follows:
    § 60.17 Incorporations by reference.

    (h) * * *

    (177) ASTM D6216-12, Standard Practice for Opacity Monitor Manufacturers to Certify Conformance with Design and Performance Specifications, approved October 1, 2012; IBR approved for appendix B to part 60.

    5. In Appendix A-1 to part 60, revise “(CO2)a” in section 12.1 in Method 2B to read as follows: Appendix A-1 to Part 60—Test Methods 1 through 2F Method 2B—Determination of Exhaust Gas Volume Flow Rate From Gasoline Vapor Incinerators

    12.1 * * *

    (CO2)a = Ambient carbon dioxide concentration, ppm (if not measured during the test period, may be assumed to equal the global monthly mean CO2 concentration posted at http://www.esrl.noaa.gov/gmd/ccgg/trends/global.html#global_data).

    6. In appendix A-3 to part 60: a. Revise sections 6.1.1.9 and 11.2.1 in Method 5. b. Revise section 11.0 in Method 5B. c. Add section 17.0 in Method 5B.

    The revisions and addition read as follows:

    Appendix A-3 to Part 60—Test Methods 4 through 5I Method 5—Determination of Particulate Matter Emissions From Stationary Sources

    6.1.1.9 Metering System. Vacuum gauge, leak-free pump, calibrated temperature sensors, dry gas meter (DGM) capable of measuring volume to within 2 percent, and related equipment, as shown in Figure 5-1. Other metering systems capable of maintaining sampling rates within 10 percent of isokinetic and of determining sample volumes to within 2 percent may be used, subject to the approval of the Administrator. When the metering system is used in conjunction with a pitot tube, the system shall allow periodic checks of isokinetic rates. The average DGM temperature for use in the calculations of section 12.0 may be obtained by averaging the two temperature sensors located at the inlet and outlet of the DGM as shown in Figure 5-3 or alternatively from a single temperature sensor located at the immediate outlet of the DGM or the plenum of the DGM.

    11.2.1 Container No. 1. Leave the contents in the shipping container or transfer the filter and any loose PM from the sample container to a tared weighing container. Desiccate for 24 hours in a desiccator containing anhydrous calcium sulfate. Weigh to a constant weight, and report the results to the nearest 0.1 mg. For the purposes of this section, the term “constant weight” means a difference of no more than 0.5 mg or 1 percent of total weight less tare weight, whichever is greater, between two consecutive weighings, with no less than 6 hours of desiccation time between weighings. Alternatively, the sample may be oven dried at 104 °C (220 °F) for 2 to 3 hours, cooled in the desiccator, and weighed to a constant weight, unless otherwise specified by the Administrator. The sample may be oven dried at 104 °C (220 °F) for 2 to 3 hours. Once the sample has cooled, weigh the sample, and use this weight as a final weight.

    Method 5B-Determination of Nonsulfuric Acid Particulate Matter Emissions From Stationary Sources 11.0 Analytical Procedure

    11.1 Record and report the data required on a sheet such as the one shown in Figure 5B-1.

    11.2 Handle each sample container as follows:

    11.2.1 Container No. 1. Leave the contents in the shipping container or transfer the filter and any loose PM from the sample container to a tared non-reactive oven-proof container. Oven dry the filter sample at a temperature of 160 ±5 °C (320 ±9 °F) for 6 hours. Cool in a desiccator for 2 hours, and weigh to constant weight. Report the results to the nearest 0.1 mg. For the purposes of this section, the term “constant weight” means a difference of no more than 0.5 mg or 1 percent of total weight less tare weight, whichever is greater, between two consecutive weighings, with no less than 6 hours of desiccation time between weighings.

    11.2.2 Container No. 2. Note the level of liquid in the container, and confirm on the analysis sheet whether leakage occurred during transport. If a noticeable amount of leakage has occurred, either void the sample or use methods, subject to the approval of the Administrator, to correct the final results. Measure the liquid in this container either volumetrically to ±1 ml or gravimetrically to ±0.5 g. Transfer the contents to a tared 250 ml beaker, and evaporate to dryness at ambient temperature and pressure. Then oven dry the probe sample at a temperature of 160 ±5 °C (320 ±9 °F) for 6 hours. Cool in a desiccator for 2 hours, and weigh to constant weight. Report the results to the nearest 0.1 mg.

    11.2.3 Container No. 3. Weigh the spent silica gel (or silica gel plus impinger) to the nearest 0.5 g using a balance. This step may be conducted in the field.

    11.2.4 Acetone Blank Container. Measure the acetone in this container either volumetrically or gravimetrically. Transfer the acetone to a tared 250 ml beaker, and evaporate to dryness at ambient temperature and pressure. Desiccate for 24 hours, and weigh to a constant weight. Report the results to the nearest 0.1 mg.

    Note: The contents of Container No. 2 as well as the acetone blank container may be evaporated at temperatures higher than ambient. If evaporation is done at an elevated temperature, the temperature must be below the boiling point of the solvent; also, to prevent “bumping,” the evaporation process must be closely supervised, and the contents of the beaker must be swirled occasionally to maintain an even temperature. Use extreme care, as acetone is highly flammable and has a low flash point.

    17.0 Tables, Diagrams, Flowcharts, and Validation Data Container number Weight of particulate collected, mg Final weight Tare weight Weight gain 1. 2. Total: Less acetone blank Weight of particulate matter Volume of liquid water collected Impinger volume, Silica gel weight, ml g Final Initial Liquid collected Total volume collected g* ml * Convert weight of water to volume by dividing total weight increase by density of water (1 g/ml). Figure 5B-1. Analytical Data Sheet
    7. In appendix A-4 to part 60: a. Revise sections 10.1.2 and 11.3 in Method 7. b. Redesignate sections 6.1.1.1 through 6.1.1.4 as sections 6.1.1.2 through 6.1.1.5 in Method 8. c. Add a new section 6.1.1.1 in Method 8. d. Revise Figure 8-1 in Method 8.

    The revisions and addition read as follows:

    Appendix A-4 to Part 60—Test Methods 6 Through 10B Method 7—Determination of Nitrogen Oxide Emissions From Stationary Sources

    10.1.2 Determination of Spectrophotometer Calibration Factor Kc. Add 0 ml, 2.0 ml, 4.0 ml, 6.0 ml, and 8.0 ml of the KNO3 working standard solution (1 ml = 100 µg NO2) to a series of five 50-ml volumetric flasks. To each flask, add 25 ml of absorbing solution and 10 ml water. Add 1 N NaOH to each flask until the pH is between 9 and 12 (about 25 to 35 drops). Dilute to the mark with water. Mix thoroughly, and pipette a 25-ml aliquot of each solution into a separate porcelain evaporating dish. Beginning with the evaporation step, follow the analysis procedure of section 11.2 until the solution has been transferred to the 100-ml volumetric flask and diluted to the mark. Measure the absorbance of each solution at the optimum wavelength as determined in section 10.1.1. This calibration procedure must be repeated on each day that samples are analyzed. Calculate the spectrophotometer calibration factor as shown in section 12.2.

    11.3 Sample Analysis. Mix the contents of the flask thoroughly, and measure the absorbance at the optimum wavelength used for the standards (section 10.1.1), using the blank solution as a zero reference. Dilute the sample and the blank with equal volumes of water if the absorbance exceeds A4, the absorbance of the 400-µg NO2 standard (see section 10.1.3).

    Method 8—Determination of Sulfuric Acid and Sulfur Dioxide Emissions From Stationary Sources

    6.1.1.1 Probe Nozzle. Borosilicate or quartz glass with a sharp, tapered leading edge and coupled to the probe liner using a polytetrafluoroethylene (PTFE) or glass-lined union (e.g., fused silica, Slico, or equivalent). When the stack temperature exceeds 210 °C (410 °F), a leak-free ground glass fitting or other leak free, non-contaminating fitting must be used to couple the nozzle to the probe liner. It is also acceptable to use a one-piece glass nozzle/liner assembly. The angle of the taper shall be ≤30°, and the taper shall be on the outside to preserve a constant internal diameter. The probe nozzle shall be of the button-hook or elbow design, unless otherwise specified by the Administrator. Other materials of construction may be used, subject to the approval of the Administrator. A range of nozzle sizes suitable for isokinetic sampling should be available. Typical nozzle sizes range from 0.32 to 1.27 cm (1/8 to 1/2 in) inside diameter (ID) in increments of 0.16 cm (1/16 in). Larger nozzles sizes are also available if higher volume sampling trains are used.

    17.0 * * *

    ER14NO18.060
    Appendix A-6 to Part 60—[Amended] 8. In Appendix A-6 to part 60, redesignate paragraph (c) as paragraph (b) in section 13.1 in Method 18. 9. In appendix A-7 to part 60: a. Revise sections 11.2.1 and 11.2.2 in Method 22. b. Add section 11.2.3 in Method 22.

    The revisions and addition read as follows:

    Appendix A-7 to Part 60—Test Methods 19 Through 25E Method 22—Visual Determination of Fugitive Emissions From Material Sources and Smoke Emissions From Flares

    11.2.1 Outdoor Location. Record the following information on the field data sheet (Figure 22-1): Company name, industry, process unit, observer's name, observer's affiliation, and date. Record also the estimated wind speed, wind direction, and sky condition. Sketch the process unit being observed, and note the observer location relative to the source and the sun. Indicate the potential and actual emission points on the sketch. Alternatively, digital photography as described in section 11.2.3 may be used for a subset of the recordkeeping requirements of this section.

    11.2.2 Indoor Location. Record the following information on the field data sheet (Figure 22-2): Company name, industry, process unit, observer's name, observer's affiliation, and date. Record as appropriate the type, location, and intensity of lighting on the data sheet. Sketch the process unit being observed, and note the observer location relative to the source. Indicate the potential and actual fugitive emission points on the sketch. Alternatively, digital photography as described in section 11.2.3 may be used for a subset of the recordkeeping requirements of this section.

    11.2.3 Digital Photographic Records. Digital photographs, annotated or unaltered, may be used to record and report sky conditions, observer's location relative to the source, observer's location relative to the sun, process unit being observed, potential emission points and actual emission points for the requirements in sections 11.2.1 and 11.2.2. The image must have the proper lighting, field of view and depth of field to properly distinguish the sky condition (if applicable), process unit, potential emission point and actual emission point. At least one digital photograph must be from the point of the view of the observer. The photograph(s) representing the environmental conditions including the sky conditions and the position of the sun relative to the observer and the emission point must be taken within a reasonable time of the observation (i.e., 15 minutes). When observations are taken from exactly the same observation point on a routine basis (i.e., daily) and as long as there are no modifications to the units depicted, only a single photograph each is necessary to document the observer's location relative to the emissions source, the process unit being observed, and the location of potential and actual emission points. Any photographs altered or annotated must be retained in an unaltered format for recordkeeping purposes.

    10. In appendix A-8 to part 60: a. Revise section 6.2.2 in Method 26. b. Revise section 6.2.1 in Method 26A. c. Add section 6.2.4 in Method 26A. d. Revise equation 8 in section 13.5.1 in Test Method 28WHH.

    The revisions and additions read as follows:

    Appendix A-8 to Part 60—Test Methods 26 Through 30B Method 26—Determination of Hydrogen Halide and Halogen Emissions From Stationary Sources Non-Isokinetic Method

    6.2.2 Storage Containers. 100- or 250-ml, high-density polyethylene or glass sample storage containers with Teflon screw cap liners to store impinger samples.

    Method 26A—Determination of Hydrogen Halide and Halogen Emissions From Stationary Sources Isokinetic Method

    6.2.1 Probe-Liner and Probe-Nozzle Brushes, Wash Bottles, Petri Dishes, Graduated Cylinder and/or Balance, and Rubber Policeman. Same as Method 5, sections 6.2.1, 6.2.2, 6.2.4, 6.2.5, and 6.2.7.

    6.2.4 Sample Storage Containers. High-density polyethylene or glass sample storage containers with Teflon screw cap liners to store impinger samples.

    Test Method 28WHH for Measurement of Particulate Emissions and Heating Efficiency of Wood-Fired Hydronic Heating Appliances

    13.5.1 * * *

    ER14NO18.061
    11. In appendix B to part 60: a. Add the following entries to the list of Performance Specifications in numeric order: i. Performance Specification 12B—Specifications and Test Procedures for Monitoring Total Vapor Phase Mercury Emissions From Stationary Sources Using A Sorbent Trap Monitoring System ii. Performance Specification 17 [Reserved] iii. Performance Specification 18—Performance Specifications and Test Procedures for Gaseous Hydrogen Chloride (HCl) Continuous Emission Monitoring Systems at Stationary Sources iv. PS-18—Appendix A Standard Addition Procedures b. In Performance Specification 1, remove “D 6216-98” wherever it appears and add in its place “D6216-12”, and revise section 2.1, the introductory text of section 13.0, sections 13.1 and 13.2, and paragraph 8. of section 16.0. c. In Performance Specification 2, revise section 13.2. d. In Performance Specification 3, revise sections 12.0 and 13.2. e. In Performance Specification 11, revise section 13.1. f. In Performance Specification 15, add reserved section 13.0. g. In Performance Specification 18, revise section 11.8.7 and table 1 in section 17.0, and add reserved section 12.0 to PS-18.

    The revisions and additions read as follows:

    Appendix B to Part 60—Performance Specifications Performance Specification 1—Specifications and Test Procedures for Continuous Opacity Monitoring Systems in Stationary Sources

    2.1 ASTM D6216-12 (incorporated by reference, see § 60.17) is the reference for design specifications, manufacturer's performance specifications, and test procedures. The opacity monitor manufacturer must periodically select and test an opacity monitor, that is representative of a group of monitors produced during a specified period or lot, for conformance with the design specifications in ASTM D6216-12. The opacity monitor manufacturer must test each opacity monitor for conformance with the manufacturer's performance specifications in ASTM D6216-12. Note: If the initial certification of the opacity monitor occurred before November 14, 2018 using D6216-98, D6216-03, or D6216-07, it is not necessary to recertify using D6216-12.

    13.0 What Specifications Does a COMS Have to Meet for Certification?

    A COMS must meet the following design, manufacturer's performance, and field audit performance specifications:

    Note: If the initial certification of the opacity monitor occurred before November 14, 2018 using D6216-98, D6216-03, or D6216-07, it is not necessary to recertify using D6216-12.A. COMS must meet the following design, manufacturer's performance, and field audit performance specifications.

    13.1 Design Specifications. The opacity monitoring equipment must comply with the design specifications of ASTM D6216-12.

    13.2 Manufacturer's Performance Specifications. The opacity monitor must comply with the manufacturer's performance specifications of ASTM D6216-12.

    16.0 * * *

    8. ASTM D6216-12: Standard Practice for Opacity Monitor Manufacturers to Certify Conformance with Design and Performance Specifications. ASTM. October 2012.

    Performance Specification 2—Specifications and Test Procedures for SO2 and NOX Continuous Emission Monitoring Systems in Stationary Sources

    13.2 Relative Accuracy Performance Specification.

    Calculate . . . RA criteria
  • (%)
  • If average emissions during the RATA are ≥50% of emission standard Use Eq. 2-6, with RM in the denominator ≤20.0 If average emissions during the RATA are <50% of emission standard Use Eq. 2-6, emission standard in the denominator ≤10.0 For SO2 emission standards ≤130 but ≥86 ng/J (0.30 and 0.20 lb/million Btu) Use Eq. 2-6, emission standard in the denominator ≤15.0 For SO2 emission standards <86 ng/J (0.20 lb/million Btu) Use Eq. 2-6, emission standard in the denominator ≤20.0
    Performance Specification 3—Specifications and Test Procedures for O2 and CO2 Continuous Emission Monitoring Systems in Stationary Sources

    12.0 Calculations and Data Analysis

    Calculate the RA using equations 3-1 and 3-2. Summarize the results on a data sheet similar to that shown in Figure 2.2 of PS2.

    ER14NO18.062 ER14NO18.073

    13.2 CEMS Relative Accuracy Performance Specification. The RA of the CEMS must be no greater than 20.0 percent of the mean value of the reference method (RM) data when calculated using equation 3-1. The results are also acceptable if the result of Equation 3-2 is less than or equal to 1.0 percent O2 (or CO2).

    Performance Specification 11—Specifications and Test Procedures for Particulate Matter Continuous Emission Monitoring Systems at Stationary Sources

    13.1 What is the 7-day drift check performance specification? Your daily PM CEMS internal drift checks must demonstrate that the daily drift of your PM CEMS does not deviate from the value of the reference light, optical filter, Beta attenuation signal, or other technology-suitable reference standard by more than 2 percent of the response range. If your CEMS includes diluent and/or auxiliary monitors (for temperature, pressure, and/or moisture) that are employed as a necessary part of this performance specification, you must determine the calibration drift separately for each ancillary monitor in terms of its respective output (see the appropriate performance specification for the diluent CEMS specification). None of the calibration drifts may exceed their individual specification.

    Performance Specification 15—Performance Specification for Extractive FTIR Continuous Emissions Monitor Systems in Stationary Sources

    13.0 Method Performance [Reserved]

    Performance Specification 18—Performance Specifications and Test Procedures for Gaseous Hydrogen Chloride (HCl) Continuous Emission Monitoring Systems at Stationary Sources

    11.8.7 The zero-level and mid-level CD for each day must be less than 5.0 percent of the span value as specified in section 13.2 of this PS. You must meet this criterion for 7 consecutive operating days.

    17.0 * * *

    Table 1—Interference Test Gas Concentrations Potential interferent gas 1 Approximate concentration (balance N2) CO2 15% ± 1% CO2.2 CO 100 ± 20 ppm. CH2O 20 ± 5 ppm. CH4 100 ± 20 ppm. NH3 10 ± 5 ppm (extractive CEMS only). NO 250 ± 50 ppm. SO2 200 ± 20 ppm. O2 3% ± 1% O2.2 H2O 10% ± 1% H2O.2 N2 Balance.2 1 Any of these specific gases can be tested at a lower level if the manufacturer has provided reliable means for limiting or scrubbing that gas to a specified level in CEMS field installations. 2 Gases for short path IP cell interference tests cannot be added above 100 percent stack equivalent concentration. Add these gases at the indicated percentages to make up the remaining cell volume.

    PS-18 Appendix A Standard Addition Procedures

    12.0 [Reserved]

    12. Revise sections 5.1.2(1) and (3) in Procedure 1 of appendix F to part 60 to read as follows: Appendix F to Part 60—Quality Assurance Procedures Procedure 1—Quality Assurance Requirements for Gas Continuous Emission Monitoring Systems Used For Compliance Determination

    5.1.2 * * *

    (1) Challenge the CEMS (both pollutant and diluent portions of the CEMS, if applicable) with an audit gas of known concentration at two points within the following ranges:

    Audit point Audit range Pollutant monitors Diluent monitors for— CO2 O2 1 20 to 30% of span value 5 to 8% by volume 4 to 6% by volume. 2 50 to 60% of span value 10 to 14% by volume 8 to 12% by volume.

    Introduce each of the audit gases, three times each for a total of six challenges. Introduce the gases in such a manner that the entire CEMS is challenged. Do not introduce the same gas concentration twice in succession.

    Use of separate audit gas cylinder for audit points 1 and 2. Do not dilute gas from audit cylinder when challenging the CEMS.

    The monitor should be challenged at each audit point for a sufficient period of time to assure adsorption-desorption of the CEMS sample transport surfaces has stabilized.

    (3) Use Certified Reference Materials (CRM's) (See Citation 1) audit gases that have been certified by comparison to National Institute of Standards and Technology (NIST) Standard Reference Materials (SRM's) or EPA Protocol Gases following the most recent edition of the EPA Traceability Protocol for Assay and Certification of Gaseous Calibration Standards (See Citation 2). Procedures for preparation of CRM's are described in Citation 1. Procedures for preparation of EPA Protocol Gases are described in Citation 2. In the case that a suitable audit gas level is not commercially available, Method 205 (See Citation 3) may be used to dilute CRM's or EPA Protocol Gases to the needed level. The difference between the actual concentration of the audit gas and the concentration indicated by the monitor is used to assess the accuracy of the CEMS.

    PART 63—NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR SOURCE CATEGORIES 13. The authority citation for part 63 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    14. In § 63.7, revise paragraphs (g)(2) introductory text and (g)(2)(v) to read as follows:
    § 63.7 Performance testing requirements.

    (g) * * *

    (2) Contents of a performance test, CMS performance evaluation, or CMS quality assurance test report (electronic or paper submitted copy). Unless otherwise specified in a relevant standard, test method, CMS performance specification, or quality assurance requirement for a CMS, or as otherwise approved by the Administrator in writing, the report shall include the elements identified in paragraphs (g)(2)(i) through (vi) of this section.

    (v) Where a test method, CEMS, PEMS, or COMS performance specification, or on-going quality assurance requirement for a CEMS, PEMS, or COMS requires you record or report, the following shall be included in your report: Record of preparation of standards, record of calibrations, raw data sheets for field sampling, raw data sheets for field and laboratory analyses, chain-of-custody documentation, and example calculations for reported results.

    15. In § 63.8, revise paragraph (e)(5)(i) to read as follows:
    § 63.8 Monitoring requirements.

    (e) * * *

    (5) * * * (i) The owner or operator shall furnish the Administrator a copy of a written report of the results of the performance evaluation containing the information specified in § 63.7(g)(2)(i) through (vi) simultaneously with the results of the performance test required under § 63.7 or within 60 days of completion of the performance evaluation, unless otherwise specified in a relevant standard.

    16. Revise Table 6 to Subpart DDDDD of part 63 to read as follows: Table 6 to Subpart DDDDD of Part 63—Fuel Analysis Requirements

    As stated in § 63.7521, you must comply with the following requirements for fuel analysis testing for existing, new or reconstructed affected sources. However, equivalent methods (as defined in § 63.7575) may be used in lieu of the prescribed methods at the discretion of the source owner or operator:

    To conduct a fuel analysis for the following pollutant . . . You must . . . Using . . . 1. Mercury a. Collect fuel samples Procedure in § 63.7521(c) or ASTM D5192a, or ASTM D7430a, or ASTM D6883a, or ASTM D2234/D2234Ma (for coal) or EPA 1631 or EPA 1631E or ASTM D6323a (for solid), or EPA 821-R-01-013 (for liquid or solid), or ASTM D4177a (for liquid), or ASTM D4057a (for liquid), or equivalent. b. Composite fuel samples Procedure in § 63.7521(d) or equivalent. c. Prepare composited fuel samples EPA SW-846-3050Ba (for solid samples), ASTM D2013/D2013Ma (for coal), ASTM D5198a (for biomass), or EPA 3050a (for solid fuel), or EPA 821-R-01-013a (for liquid or solid), or equivalent. d. Determine heat content of the fuel type ASTM D5865a (for coal) or ASTM E711a (for biomass), or ASTM D5864a for liquids and other solids, or ASTM D240a or equivalent. e. Determine moisture content of the fuel type ASTM D3173a, ASTM E871a, or ASTM D5864a, or ASTM D240a, or ASTM D95a (for liquid fuels), or ASTM D4006a (for liquid fuels), or equivalent. f. Measure mercury concentration in fuel sample ASTM D6722a (for coal), EPA SW-846-7471Ba or EPA 1631 or EPA 1631Ea (for solid samples), or EPA SW-846-7470Aa or EPA SW-846-7471Ba (for liquid samples), or EPA 821-R-01-013a (for liquid or solid), or equivalent. g. Convert concentration into units of pounds of mercury per MMBtu of heat content For fuel mixtures use Equation 8 in § 63.7530. 2. HCl a. Collect fuel samples Procedure in § 63.7521(c) or ASTM D5192a, or ASTM D7430a, or ASTM D6883a, or ASTM D2234/D2234Ma (for coal) or ASTM D6323a (for coal or biomass), ASTM D4177a (for liquid fuels) or ASTM D4057a (for liquid fuels), or equivalent. b. Composite fuel samples Procedure in § 63.7521(d) or equivalent. c. Prepare composited fuel samples EPA SW-846-3050Ba (for solid samples), ASTM D2013/D2013Ma (for coal), or ASTM D5198a (for biomass), or EPA 3050a or equivalent. d. Determine heat content of the fuel type ASTM D5865a (for coal) or ASTM E711a (for biomass), ASTM D5864a, ASTM D240a or equivalent. e. Determine moisture content of the fuel type ASTM D3173a or ASTM E871a, or D5864a, or ASTM D240a, or ASTM D95a (for liquid fuels), or ASTM D4006a (for liquid fuels), or equivalent. f. Measure chlorine concentration in fuel sample EPA SW-846-9250a, ASTM D6721a, ASTM D4208a (for coal), or EPA SW-846-5050a or ASTM E776a (for solid fuel), or EPA SW-846-9056a or SW-846-9076a (for solids or liquids) or equivalent. g. Convert concentrations into units of pounds of HCl per MMBtu of heat content For fuel mixtures use Equation 7 in § 63.7530 and convert from chlorine to HCl by multiplying by 1.028. 3. Mercury Fuel Specification for other gas 1 fuels a. Measure mercury concentration in the fuel sample and convert to units of micrograms per cubic meter, or Method 30B (M30B) at 40 CFR part 60, appendix A-8 of this chapter or ASTM D5954a, ASTM D6350a, ISO 6978-1:2003(E)a, or ISO 6978-2:2003(E)a, or EPA-1631a or equivalent. b. Measure mercury concentration in the exhaust gas when firing only the other gas 1 fuel is fired in the boiler or process heater Method 29, 30A, or 30B (M29, M30A, or M30B) at 40 CFR part 60, appendix A-8 of this chapter or Method 101A or Method 102 at 40 CFR part 61, appendix B of this chapter, or ASTM Method D6784a or equivalent. 4. TSM a. Collect fuel samples Procedure in § 63.7521(c) or ASTM D5192a, or ASTM D7430a, or ASTM D6883a, or ASTM D2234/D2234Ma (for coal) or ASTM D6323a (for coal or biomass), or ASTM D4177a, (for liquid fuels), or ASTM D4057a (for liquid fuels), or equivalent. b. Composite fuel samples Procedure in § 63.7521(d) or equivalent. c. Prepare composited fuel samples EPA SW-846-3050Ba (for solid samples), ASTM D2013/D2013Ma (for coal), ASTM D5198a or TAPPI T266a (for biomass), or EPA 3050a or equivalent. d. Determine heat content of the fuel type ASTM D5865a (for coal) or ASTM E711a (for biomass), or ASTM D5864a for liquids and other solids, or ASTM D240a or equivalent. e. Determine moisture content of the fuel type ASTM D3173a or ASTM E871a, or D5864a, or ASTM D240a, or ASTM D95a (for liquid fuels), or ASTM D4006a (for liquid fuels), or ASTM D4177a (for liquid fuels) or ASTM D4057a (for liquid fuels), or equivalent. f. Measure TSM concentration in fuel sample ASTM D3683a, or ASTM D4606a, or ASTM D6357a or EPA 200.8a or EPA SW-846-6020a, or EPA SW-846-6020Aa, or EPA SW-846-6010Ca, EPA 7060a or EPA 7060Aa (for arsenic only), or EPA SW-846-7740a (for selenium only). g. Convert concentrations into units of pounds of TSM per MMBtu of heat content For fuel mixtures use Equation 9 in § 63.7530. a Incorporated by reference, see § 63.14.
    17. Revise Table 5 to Subpart UUUUU of part 63 to read as follows: Table 5 to Subpart UUUUU of Part 63—Performance Testing Requirements

    As stated in § 63.10007, you must comply with the following requirements for performance testing for existing, new or reconstructed affected sources: 1

    1 Regarding emissions data collected during periods of startup or shutdown, see §§ 63.10020(b) and (c) and 63.10021(h).

    To conduct a performance test for the following pollutant . . . Using . . . You must perform the following activities, as applicable to your input- or output-based emission limit . . . Using . . .2 1. Filterable Particulate matter (PM) Emissions Testing a. Select sampling ports location and the number of traverse points Method 1 at appendix A-1 to part 60 of this chapter. b. Determine velocity and volumetric flow-rate of the stack gas Method 2, 2A, 2C, 2F, 2G or 2H at appendix A-1 or A-2 to part 60 of this chapter. c. Determine oxygen and carbon dioxide concentrations of the stack gas Method 3A or 3B at appendix A-2 to part 60 of this chapter, or ANSI/ASME PTC 19.10-1981.3 d. Measure the moisture content of the stack gas Method 4 at appendix A-3 to part 60 of this chapter. e. Measure the filterable PM concentration Methods 5 and 5I at appendix A-3 to part 60 of this chapter.
  • For positive pressure fabric filters, Method 5D at appendix A-3 to part 60 of this chapter for filterable PM emissions.
  • Note that the Method 5 or 5I front half temperature shall be 160° ±14 °C (320° ±25 °F).
  • f. Convert emissions concentration to lb/MMBtu or lb/MWh emissions rates Method 19 F-factor methodology at appendix A-7 to part 60 of this chapter, or calculate using mass emissions rate and gross output data (see § 63.10007(e)). OR OR PM CEMS a. Install, certify, operate, and maintain the PM CEMS Performance Specification 11 at appendix B to part 60 of this chapter and Procedure 2 at appendix F to part 60 of this chapter. b. Install, certify, operate, and maintain the diluent gas, flow rate, and/or moisture monitoring systems Part 75 of this chapter and § 63.10010(a), (b), (c), and (d). c. Convert hourly emissions concentrations to 30 boiler operating day rolling average lb/MMBtu or lb/MWh emissions rates Method 19 F-factor methodology at appendix A-7 to part 60 of this chapter, or calculate using mass emissions rate and gross output data (see § 63.10007(e)). 2. Total or individual non-Hg HAP metals Emissions Testing a. Select sampling ports location and the number of traverse points Method 1 at appendix A-1 to part 60 of this chapter. b. Determine velocity and volumetric flow-rate of the stack gas Method 2, 2A, 2C, 2F, 2G or 2H at appendix A-1 or A-2 to part 60 of this chapter. c. Determine oxygen and carbon dioxide concentrations of the stack gas Method 3A or 3B at appendix A-2 to part 60 of this chapter, or ANSI/ASME PTC 19.10-1981.3 d. Measure the moisture content of the stack gas Method 4 at appendix A-3 to part 60 of this chapter. e. Measure the HAP metals emissions concentrations and determine each individual HAP metals emissions concentration, as well as the total filterable HAP metals emissions concentration and total HAP metals emissions concentration Method 29 at appendix A-8 to part 60 of this chapter. For liquid oil-fired units, Hg is included in HAP metals and you may use Method 29, Method 30B at appendix A-8 to part 60 of this chapter; for Method 29, you must report the front half and back half results separately. When using Method 29, report metals matrix spike and recovery levels. f. Convert emissions concentrations (individual HAP metals, total filterable HAP metals, and total HAP metals) to lb/MMBtu or lb/MWh emissions rates Method 19 F-factor methodology at appendix A-7 to part 60 of this chapter, or calculate using mass emissions rate and gross output data (see § 63.10007(e)). 3. Hydrogen chloride (HCl) and hydrogen fluoride (HF) Emissions Testing a. Select sampling ports location and the number of traverse points Method 1 at appendix A-1 to part 60 of this chapter. b. Determine velocity and volumetric flow-rate of the stack gas Method 2, 2A, 2C, 2F, 2G or 2H at appendix A-1 or A-2 to part 60 of this chapter. c. Determine oxygen and carbon dioxide concentrations of the stack gas Method 3A or 3B at appendix A-2 to part 60 of this chapter, or ANSI/ASME PTC 19.10-1981.3 d. Measure the moisture content of the stack gas Method 4 at appendix A-3 to part 60 of this chapter. e. Measure the HCl and HF emissions concentrations Method 26 or Method 26A at appendix A-8 to part 60 of this chapter or Method 320 at appendix A to part 63 of this chapter or ASTM D6348-03 3 with (1) the following conditions when using ASTM D6348-03: (A) The test plan preparation and implementation in the Annexes to ASTM D6348-03, Sections A1 through A8 are mandatory; (B) For ASTM D6348-03 Annex A5 (Analyte Spiking Technique), the percent (%) R must be determined for each target analyte (see Equation A5.5); (C) For the ASTM D6348-03 test data to be acceptable for a target analyte, %R must be 70% ≥R ≤130%; and

    3.e.1(D) The %R value for each compound must be reported in the test report and all field measurements corrected with the calculated %R value for that compound using the following equation:

    ER14NO18.072 and To conduct a performance test for the following pollutant . . . (cont'd) Using . . . (cont'd) You must perform the following activities, as applicable to your input- or output-based emission limit . . . (cont'd) Using . . .2 (cont'd) (2) spiking levels nominally no greater than two times the level corresponding to the applicable emission limit. Method 26A must be used if there are entrained water droplets in the exhaust stream. f. Convert emissions concentration to lb/MMBtu or lb/MWh emissions rates Method 19 F-factor methodology at appendix A-7 to part 60 of this chapter, or calculate using mass emissions rate and gross output data (see § 63.10007(e)). OR OR HCl and/or HF CEMS a. Install, certify, operate, and maintain the HCl or HF CEMS Appendix B of this subpart. b. Install, certify, operate, and maintain the diluent gas, flow rate, and/or moisture monitoring systems Part 75 of this chapter and § 63.10010(a), (b), (c), and (d). c. Convert hourly emissions concentrations to 30 boiler operating day rolling average lb/MMBtu or lb/MWh emissions rates Method 19 F-factor methodology at appendix A-7 to part 60 of this chapter, or calculate using mass emissions rate and gross output data (see § 63.10007(e)). 4. Mercury (Hg) Emissions Testing a. Select sampling ports location and the number of traverse points Method 1 at appendix A-1 to part 60 of this chapter or Method 30B at Appendix A-8 for Method 30B point selection. b. Determine velocity and volumetric flow-rate of the stack gas Method 2, 2A, 2C, 2F, 2G or 2H at appendix A-1 or A-2 to part 60 of this chapter. c. Determine oxygen and carbon dioxide concentrations of the stack gas Method 3A or 3B at appendix A-1 to part 60 of this chapter, or ANSI/ASME PTC 19.10-1981.3 d. Measure the moisture content of the stack gas Method 4 at appendix A-3 to part 60 of this chapter. e. Measure the Hg emission concentration Method 30B at appendix A-8 to part 60 of this chapter, ASTM D6784,3 or Method 29 at appendix A-8 to part 60 of this chapter; for Method 29, you must report the front half and back half results separately. f. Convert emissions concentration to lb/TBtu or lb/GWh emission rates Method 19 F-factor methodology at appendix A-7 to part 60 of this chapter, or calculate using mass emissions rate and gross output data (see § 63.10007(e)). OR OR Hg CEMS a. Install, certify, operate, and maintain the CEMS Sections 3.2.1 and 5.1 of appendix A of this subpart. b. Install, certify, operate, and maintain the diluent gas, flow rate, and/or moisture monitoring systems Part 75 of this chapter and § 63.10010(a), (b), (c), and (d). c. Convert hourly emissions concentrations to 30 boiler operating day rolling average lb/TBtu or lb/GWh emissions rates Section 6 of appendix A to this subpart. OR OR Sorbent trap monitoring system a. Install, certify, operate, and maintain the sorbent trap monitoring system Sections 3.2.2 and 5.2 of appendix A to this subpart. b. Install, operate, and maintain the diluent gas, flow rate, and/or moisture monitoring systems Part 75 of this chapter and § 63.10010(a), (b), (c), and (d). c. Convert emissions concentrations to 30 boiler operating day rolling average lb/TBtu or lb/GWh emissions rates Section 6 of appendix A to this subpart. OR OR LEE testing a. Select sampling ports location and the number of traverse points Single point located at the 10% centroidal area of the duct at a port location per Method 1 at appendix A-1 to part 60 of this chapter or Method 30B at Appendix A-8 for Method 30B point selection. b. Determine velocity and volumetric flow-rate of the stack gas Method 2, 2A, 2C, 2F, 2G, or 2H at appendix A-1 or A-2 to part 60 of this chapter or flow monitoring system certified per appendix A of this subpart. c. Determine oxygen and carbon dioxide concentrations of the stack gas Method 3A or 3B at appendix A-1 to part 60 of this chapter, or ANSI/ASME PTC 19.10-1981,3 or diluent gas monitoring systems certified according to part 75 of this chapter. d. Measure the moisture content of the stack gas Method 4 at appendix A-3 to part 60 of this chapter, or moisture monitoring systems certified according to part 75 of this chapter. e. Measure the Hg emission concentration Method 30B at appendix A-8 to part 60 of this chapter; perform a 30 operating day test, with a maximum of 10 operating days per run (i.e., per pair of sorbent traps) or sorbent trap monitoring system or Hg CEMS certified per appendix A of this subpart. f. Convert emissions concentrations from the LEE test to lb/TBtu or lb/GWh emissions rates Method 19 F-factor methodology at appendix A-7 to part 60 of this chapter, or calculate using mass emissions rate and gross output data (see § 63.10007(e)). g. Convert average lb/TBtu or lb/GWh Hg emission rate to lb/year, if you are attempting to meet the 29.0 lb/year threshold Potential maximum annual heat input in TBtu or potential maximum electricity generated in GWh. 5. Sulfur dioxide (SO2) SO2 CEMS a. Install, certify, operate, and maintain the CEMS Part 75 of this chapter and § 63.10010(a) and (f). b. Install, operate, and maintain the diluent gas, flow rate, and/or moisture monitoring systems Part 75 of this chapter and § 63.10010(a), (b), (c), and (d). c. Convert hourly emissions concentrations to 30 boiler operating day rolling average lb/MMBtu or lb/MWh emissions rates Method 19 F-factor methodology at appendix A-7 to part 60 of this chapter, or calculate using mass emissions rate and gross output data (see § 63.10007(e)).
    18. In appendix A to Part 63:

    2 See Tables 1 and 2 to this subpart for required sample volumes and/or sampling run times.

    3 Incorporated by reference, see § 63.14.

    a. Revise section 12.4 in Method 303. b. Revise section 2.0 in Method 308. c. Remove and reserve section 7.2.2 in Method 308. d. Revise sections 7.2.3.3, 8.1.2, 9.1, 11.3.2, and 12.1 in Method 308. e. Add sections 12.5 and 13.0 in Method 308. f. Revise sections 8.2.2.4 and 9.2.3 in Method 320. g. Revise section 12.9 in Method 323. h. Revise section 8.2.1.3, Figure 8.1. and section 8.2.3.2 in Method 325A. i. Add sections 8.2.3.3 and 8.4.3 in Method 325A. j. Revise sections 9.3.2, 9.13, 11.3.2.5, and 12.2.2 in Method 325B. k. Remove sections 12.2.3 and 12.2.4 in Method 325B. l. Revise table 17.1 in Method 325B.

    The revisions and additions read as follows:

    Appendix A to Part 63—Test Methods Method 303—Determination of Visible Emissions From By-Product Coke Oven Batteries

    12.4 Average Duration of VE from Charging Operations. Use Equation 303-3 to calculate the daily 30-day rolling log average of seconds of visible emissions from the charging operation for each battery using these current day's observations and the 29 previous valid daily sets of observations.

    ER14NO18.063 Method 308—Procedure for Determination of Methanol Emission From Stationary Sources

    2.0 Summary of Method

    A gas sample is extracted from the sampling point in the stack. The methanol is collected in deionized distilled water and adsorbed on silica gel. The sample is returned to the laboratory where the methanol in the water fraction is separated from other organic compounds with a gas chromatograph (GC) and is then measured by a flame ionization detector (FID). The fraction adsorbed on silica gel is extracted with deionized distilled water and is then separated and measured by GC/FID.

    7.2.2 [Reserved]

    7.2.3.3 Methanol Standards for Adsorbent Tube Samples. Prepare a series of methanol standards by first pipetting 10 ml of the methanol working standard into a 100-ml volumetric flask and diluting the contents to exactly 100 ml with deionized distilled water. This standard will contain 10 µg/ml of methanol. Pipette 5, 15, and 25 ml of this standard, respectively, into three 50-ml volumetric flasks. Dilute each solution to 50 ml with deionized distilled water. These standards will have 1, 3, and 5 µg/ml of methanol, respectively. Transfer all four standards into 40-ml glass vials capped with Teflon®-lined septa and store under refrigeration. Discard any excess solution.

    8.1.2 Leak Check. A leak check before and after the sampling run is mandatory. The leak-check procedure is as follows:

    Temporarily attach a suitable (e.g., 0- to 40-ml/min) rotameter to the outlet of the DGM, and place a vacuum gauge at or near the probe inlet. Plug the probe inlet, pull a vacuum of at least 250 mm (10 inch) Hg or the highest vacuum experienced during the sampling run, and note the flow rate as indicated by the rotameter. A leakage rate in excess of 2 percent of the average sampling rate is acceptable.

    Note: Carefully release the probe inlet plug before turning off the pump.

    9.1 Miscellaneous Quality Control Measures. The following quality control measures are required:

    Section Quality control measure Effect 8.1.2, 8.1.3, 10.1 Sampling equipment leak check and calibration Ensures accurate measurement of sample volume. 10.2 GC calibration Ensures precision of GC analysis. 13.0 Methanol spike recovery check Verifies all methanol in stack gas is being captured in impinge/adsorbent tube setup.

    11.3.2 Desorption of Samples. Add 3 ml of deionized distilled water to each of the stoppered vials and shake or vibrate the vials for 30 minutes.

    12.1 Nomenclature.

    Caf = Concentration of methanol in the front of the adsorbent tube, µg/ml. Cab = Concentration of methanol in the back of the adsorbent tube, µg/ml. Ci = Concentration of methanol in the impinger portion of the sample train,µg/ml. E = Mass emission rate of methanol, µg/hr (lb/hr). ms = Total mass of compound measured in impinger and on adsorbent with spiked train (mg). mu = Total mass of compound measured in impinger and on adsorbent with unspiked train (mg). mv = Mass per volume of spiked compound measured (mg/L). Mtot = Total mass of methanol collected in the sample train, µg. Pbar = Barometric pressure at the exit orifice of the DGM, mm Hg (in. Hg). Pstd = Standard absolute pressure, 760 mm Hg (29.92 in. Hg). Qstd = Dry volumetric stack gas flow rate corrected to standard conditions, dscm/hr (dscf/hr). R = fraction of spiked compound recovered s = theoretical concentration (ppm) of spiked target compound Tm = Average DGM absolute temperature, degrees K (°R). Tstd = Standard absolute temperature, 293 degrees K (528 °R). Vaf = Volume of front half adsorbent sample, ml. Vab = Volume of back half adsorbent sample, ml. Vi = Volume of impinger sample, ml. Vm = Dry gas volume as measured by the DGM, dry cubic meters (dcm), dry cubic feet (dcf). Vm(std) = Dry gas volume measured by the DGM, corrected to standard conditions, dry standard cubic meters (dscm), dry standard cubic feet (dscf).

    12.5 Recovery Fraction (R)

    ER14NO18.064 ER14NO18.065

    13.0 Method Performance

    Since a potential sample may contain a variety of compounds from various sources, a specific precision limit for the analysis of field samples is impractical. Precision in the range of 5 to 10 percent relative standard deviation (RSD) is typical for gas chromatographic techniques, but an experienced GC operator with a reliable instrument can readily achieve 5 percent RSD. For this method, the following combined GC/operator values are required.

    (a) Precision. Calibration standards must meet the requirements in section 10.2.1 or 10.2.2 as applicable.

    (b) Recovery. After developing an appropriate sampling and analytical system for the pollutants of interest, conduct the following spike recovery procedure at each sampling point where the method is being applied.

    i. Methanol Spike. Set up two identical sampling trains. Collocate the two sampling probes in the stack. The probes shall be placed in the same horizontal plane, where the first probe tip is 2.5 cm from the outside edge of the other. One of the sampling trains shall be designated the spiked train and the other the unspiked train. Spike methanol into the impinger, and onto the adsorbent tube in the spiked train prior to sampling. The total mass of methanol shall be 40 to 60 percent of the mass expected to be collected with the unspiked train. Sample the stack gas into the two trains simultaneously. Analyze the impingers and adsorbents from the two trains utilizing identical analytical procedures and instrumentation. Determine the fraction of spiked methanol recovered (R) by combining the amount recovered in the impinger and in the adsorbent tube, using the equations in section 12.5. Recovery values must fall in the range: 0.70 ≤ R ≤ 1.30. Report the R value in the test report.

    ii. [Reserved]

    Method 320—Measurement of Vapor Phase Organic and Inorganic Emissions By Extractive Fourier Transform Infrared (FTIR) Spectroscopy

    8.2.2.4 Determine the percent leak volume %VL for the signal integration time tSS and for ΔPmax, i.e., the larger of ΔPv or ΔPp, as follows:

    ER14NO18.066 Where: 50 = 100% divided by the leak-check time of 2 minutes.

    9.2.3 Calculate the dilution ratio using the tracer gas as follows:

    ER14NO18.067 ER14NO18.068 DF = Dilution factor of the spike gas; this value shall be ≥10. SF6(dir) = SF6 (or tracer gas) concentration measured directly in undiluted spike gas. SF6(spk) = Diluted SF6 (or tracer gas) concentration measured in a spiked sample. Spikedir = Concentration of the analyte in the spike standard measured by filling the FTIR cell directly. CS = Expected concentration of the spiked samples. Unspike = Native concentration of analytes in unspiked samples. Method 323—Measurment of Formaldehyde Emissions From Natural Gas-Fired Stationary Sources-Acetyl Acetone Derivitization Method

    12.9 Formaldehyde Concentration Corrected to 15% Oxygen

    ER14NO18.069 Method 325A—Volatile Organic Compounds From Fugitive and Area Sources: Sampler Deployment and VOC Sample Collection

    8.2.1.3 An extra sampler must be placed near known sources of VOCs if potential emission sources are within 50 meters (162 feet) of the boundary and the source or sources are located between two monitors. Measure the distance (x) between the two monitors and place another monitor approximately halfway between (x/2 ±10 percent) the two monitors. Only one extra sampler is required between two monitors to account for known sources of VOCs. For example, in Figure 8.1, the facility added three additional monitors (i.e., light shaded sampler locations), and in Figure 8.2, the facility added two additional monitors to provide sufficient coverage of all area sources.

    ER14NO18.070 Figure 8.1. Facility with a Regular Shape Between 750 and 1,500 Acres in Area

    8.2.3.2 For facilities with a monitoring perimeter length greater than or equal to 7,315 meters (24,000 feet), sampling locations are spaced 610 ± 76 meters (2,000 ± 250 feet) apart.

    8.2.3.3 Unless otherwise specified in an applicable regulation, permit or other requirement, for small disconnected subareas with known sources within 50 meters (162 feet) of the monitoring perimeter, sampling points need not be placed closer than 152 meters (500 feet) apart as long as a minimum of 3 monitoring locations are used for each subarea.

    8.4.3 When extenuating circumstances do not permit safe deployment or retrieval of passive samplers (e.g., extreme weather, power failure), sampler placement or retrieval earlier or later than the prescribed schedule is allowed but must occur as soon as safe access to sampling sites is possible.

    Method 325B—Volatile Organic Compounds From Fugitive and Area Sources: Sampler Preparation and Analysis

    9.3.2 Field blanks must be shipped to the monitoring site with the sampling tubes and must be stored at the sampling location throughout the monitoring exercise. The field blanks must be installed under a protective hood/cover at the sampling location, but the long-term storage caps must remain in place throughout the monitoring period (see Method 325A). The field blanks are then shipped back to the laboratory in the same container as the sampled tubes. Collect at least two field blank samples per sampling period to ensure sample integrity associated with shipment, collection, and storage.

    9.13 Routine CCV at the Start of a Sequence. Run CCV before each sequence of analyses and after every tenth sample to ensure that the previous multi-level calibration (see section 10.0) is still valid.

    11.3.2.5 Whenever the thermal desorption—GC/MS analytical method is changed or major equipment maintenance is performed, you must conduct a new five-level calibration (see section 10.0). System calibration remains valid as long as results from subsequent CCV are within 30 percent of the most recent 5-point calibration (see section 9.13). Include relevant CCV data in the supporting information in the data report for each set of samples.

    12.2.2 Determine the equivalent concentrations of compounds in atmospheres as follows. Correct target compound concentrations determined at the sampling site temperature and atmospheric pressure to standard conditions (25 °C and 760 mm mercury) using Equation 12.5.

    ER14NO18.071 Where:
    mmeas = The mass of the compound as measured in the sorbent tube (µg). t = The exposure time (minutes). tss = The average temperature during the collection period at the sampling site (K). UNTP = The method defined diffusive uptake rate (sampling rate) (mL/min).

    Note: Diffusive uptake rates (UNTP) for common VOCs, using carbon sorbents packed into sorbent tubes of the dimensions specified in section 6.1, are listed in Table 12.1. Adjust analytical conditions to keep expected sampled masses within range (see sections 11.3.1.3 to 11.3.1.5). Best possible method detection limits are typically in the order of 0.1 ppb for 1,3-butadiene and 0.05 ppb for volatile aromatics such as benzene for 14-day monitoring. However, actual detection limits will depend upon the analytical conditions selected.

    Table 17.1—Summary of GC/MS Analysis Quality Control Procedures Parameter Frequency Acceptance criteria Corrective action Bromofluorobenzene Instrument Tune Performance Check Daily a prior to sample analysis Evaluation criteria presented in Section 9.5 and Table 9.2 (1) Retune and or
  • (2) Perform Maintenance.
  • Five point calibration bracketing the expected sample concentration Following any major change, repair or maintenance or if daily CCV does not meet method requirements. Recalibration not to exceed three months (1) Percent Deviation (%DEV) of response factors ±30%
  • (2) Relative Retention Times (RRTs) for target peaks ±0.06 units from mean RRT
  • (1) Repeat calibration sample analysis.
  • (2) Repeat linearity check.
  • (3) Prepare new calibration standards as necessary and repeat analysis.
  • Calibration Verification (CCV Second source calibration verification check) Following the calibration curve The response factor ±30% DEV from calibration curve average response factor (1) Repeat calibration check.
  • (2) Repeat calibration curve.
  • Laboratory Blank Analysis Daily a following bromofluoro benzene and calibration check; prior to sample analysis (1) ≤0.2 ppbv per analyte or ≤3 times the LOD, whichever is greater
  • (2) Internal Standard (IS) area response ±40% and IS Retention Time (RT) ±0.33 min. of most recent calibration check
  • (1) Repeat analysis with new blank tube.
  • (2) Check system for leaks, contamination.
  • (3) Analyze additional blank.
  • Blank Sorbent Tube Certification One tube analyzed for each batch of tubes cleaned or 10 percent of tubes whichever is greater <0.2 ppbv per VOC targeted compound or 3 times the LOD, whichever is greater Re-clean all tubes in batch and reanalyze. Samples—Internal Standards All samples IS area response ±40% and IS RT ±0.33 min. of most recent calibration validation Flag Data for possible invalidation. Field Blanks Two per sampling period No greater than one-third of the measured target analyte or compliance limit Flag Data for possible invalidation due to high blank bias. a Every 24 hours.
    [FR Doc. 2018-24747 Filed 11-13-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2018-0222; FRL-9986-31-Region 9] Approval of Arizona Air Plan; Hayden Lead Nonattainment Area Plan for the 2008 Lead Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the State of Arizona to meet Clean Air Act (CAA or “Act”) requirements applicable to the Hayden lead nonattainment area (“Hayden Lead NAA”). The EPA is approving the base year emissions inventory, the attainment demonstration, the control strategy, including reasonably available control technology and reasonably available control measures demonstrations, the reasonable further progress demonstration, and the contingency measure as meeting the requirements of the CAA and the EPA's implementing regulations for the 2008 lead national ambient air quality standard (NAAQS). We also find that the State has demonstrated that the Arizona SIP meets the new source review (NSR) requirements of CAA section 172(c)(5) for the Hayden Lead NAA.

    DATES:

    This final rule is effective on December 14, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2018-0222. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through https://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Ginger Vagenas, EPA Region IX, 415-972-3964, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, the terms “we,” “us,” and “our” mean the EPA.

    Table of Contents I. Background II. Proposed Action and Public Comment III. Final Action IV. Statutory and Executive Order Reviews I. Background

    Lead is generally emitted in the form of particles that are deposited in water, soil, and dust. People may be exposed to lead by inhaling it or by ingesting lead-contaminated food, water, soil, or dust. Once in the body, lead is quickly absorbed into the bloodstream and can result in a broad range of adverse health effects including damage to the central nervous system, cardiovascular function, kidneys, immune system, and red blood cells. Children are particularly vulnerable to lead exposure, in part because they are more likely to ingest lead and in part because their still-developing bodies are more sensitive to the effects of lead. The harmful effects to children's developing nervous systems (including their brains) arising from lead exposure may include IQ 1 loss, poor academic achievement, long-term learning disabilities, and an increased risk of delinquent behavior.

    1 IQ (intelligence quotient) is a score created by dividing a person's mental age score, obtained by administering an intelligence test, by the person's chronological age, both expressed in terms of years and months. “Glossary of Important Assessment and Measurement Terms,” Philadelphia, PA: National Council on Measurement in Education. 2016.

    The EPA first established a lead standard in 1978 at 1.5 micrograms per meter cubed (µg/m3) as a quarterly average.2 Based on new health and scientific data, the EPA revised the federal lead standard to 0.15 µg/m3 and revised the averaging time for the standard on October 15, 2008.3 A violation of the standard occurs when ambient lead concentrations exceed 0.15 µg/m3 averaged over a 3-month rolling period.

    2 43 FR 46246 (October 5, 1978).

    3 73 FR 66964 (November 12, 2008) (“lead NAAQS rule”).

    Following the promulgation of a new or revised NAAQS, the EPA is required by the CAA to designate areas throughout the United States as attaining or not attaining the NAAQS. This process is set forth in section 107(d)(1) of the Act. After initially being designated unclassifiable due to insufficient monitoring data, the Hayden area was redesignated nonattainment on September 3, 2014, effective October 3, 2014.4 5 The designation of the Hayden area as nonattainment for the 2008 lead NAAQS triggered requirements under section 191(a) of the CAA requiring Arizona to submit a SIP revision with a plan to attain the standard as expeditiously as practicable, but no later than October 3, 2019.

    4 79 FR 52205.

    5 For an exact description of the Hayden Lead NAA, see 40 CFR 81.303.

    The Arizona Department of Environmental Quality (ADEQ) is the air quality agency that develops SIP revisions for the Hayden area. The SIP revision for the Hayden Lead NAA, entitled “SIP Revision: Hayden Lead Nonattainment Area” (“2017 Hayden Lead Plan” or “Plan”) was adopted by ADEQ on March 3, 2017, and submitted to the EPA on the same day.6 The Plan includes a 2012 base year emissions inventory, a demonstration that controls required under the Plan are sufficient to bring the area into attainment of the 2008 lead NAAQS, an analysis that demonstrates reasonably available control measures/reasonably available control technology (RACM/RACT) levels of control are required to be implemented, a demonstration that the Plan provides for reasonable further progress (RFP) towards attainment, and a contingency measure that will be implemented if the area fails to make RFP or to attain the NAAQS by the applicable deadlines. The Plan also describes ADEQ's NSR program and its intention to submit revisions to its NSR rules to address deficiencies identified by the EPA.7

    6 Letter dated March 3, 2017, from Timothy S. Franquist, Director, Air Quality Division, ADEQ, to Alexis Strauss, Acting Regional Administrator, EPA Region IX.

    7 ADEQ subsequently submitted the changes and, on May 4, 2018, the EPA approved the revision into the SIP (83 FR 19631). The SIP revision ensures that ADEQ's rules provide for appropriate NSR for lead sources undergoing construction or major modification in the Hayden Lead NAA.

    II. Proposed Action and Public Comment

    On July 3, 2018, the EPA published a notice of proposed rulemaking in which we proposed to approve the Plan as a revision to the Arizona SIP.8 9 The rationale for our proposed action is included in the proposal, and will not be restated here.

    8 83 FR 31087.

    9 ADEQ has determined that the cause of the nonattainment status in the Hayden area is the primary copper smelter owned and operated by ASARCO, which accounts for over 99 percent of lead emissions, and that the emissions generally come from the hot-metal smelting process and lead-bearing fugitive dust. Plan, 38. ADEQ's control strategy for the Hayden Lead NAA relies on the implementation of two source-specific regulations in the Arizona Administrative Code: Rule R18-2-B1301 (limits on Lead Emissions from the Hayden Smelter) and Rule R-18-2-B1301.01 (Limits on Lead-Bearing Fugitive Dust from the Hayden Smelter), and two associated appendices. We approved Rule R-18-B1301.01 and Appendix 15 into the Arizona SIP on February 22, 2018 (83 FR 7614) and, in a notice signed on October 30, 2018, we approved Rule R18-2-B1301 and Appendix 14.

    The EPA's proposed action provided a 30-day public comment period. During this period, we received six anonymous comments. After reviewing the comments, we determined that two were “test comments” that did not include any text and therefore do not necessitate a response. Three comments were outside the scope of our proposed action and failed to identify any material issue necessitating a response.

    The sixth comment included the observation that the EPA had used the term “off-road” when describing a portion of mobile source inventory, but the term “non-road” was used in the table summarizing ADEQ's base year emissions inventory. The commenter asked if, to make it consistent, would “off-road” be used throughout the proposal?

    In the proposal, we explained that emissions can be grouped into two general categories: Stationary and mobile. We further noted that stationary source category can be subdivided into point and area sources and that the mobile source category can be subdivided into on-road and off-road categories.10 In tables 1 and 3, which immediately follow that discussion, we listed emissions for point, area, mobile source (non-road) and mobile source (on-road) categories.11 In our proposed action, we used the terms interchangeably and believe their equivalent meaning is apparent from the context.

    10 83 FR 31087, 31090.

    11 Id. Note that the terms off-road and non-road do not appear elsewhere in the notice.

    The comments have been added to the docket for this action and are accessible at https://www.regulations.gov/docket?D=EPA-R09-OAR-2018-0222.

    III. Final Action

    For the reasons discussed in the proposal, the EPA is approving under CAA section 110(k)(3) the 2017 Hayden Lead Plan as a revision to the Arizona SIP. Specifically, we are approving:

    (1) The SIP's base year emissions inventory as meeting the requirements of CAA section 172(c)(3) and 40 CFR 51.117(e)(1);

    (2) the attainment demonstration, including air quality modeling, as meeting the requirements of CAA section 172(c)(1);

    (3) the RACM/RACT demonstration as meeting the requirements of CAA section 172(c)(1);

    (4) the RFP demonstration as meeting the requirements of CAA section 172(c)(2); and

    (5) the contingency measure as meeting the requirements of the CAA section 172(c)(9);

    We also find that the State has demonstrated that the Arizona SIP meets the NSR requirements of CAA section 172(c)(5) for the Hayden Lead NAA.

    IV. Statutory and Executive Order Reviews

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

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

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

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

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

    • does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (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 the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). We offered to consult with San Carlos Apache Tribe, which has lands adjacent to the Hayden lead nonattainment area. The tribe did not respond to the EPA's offer to consult.

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 14, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, and Reporting and recordkeeping requirements.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: October 31, 2018. Deborah Jordan, Acting Regional Administrator, Region IX.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart D—Arizona 2. Section 52.120 in paragraph (e), Table 1 is amended by adding, under the table heading “Part D Elements and Plans (Other than for the Metropolitan Phoenix and Tucson Areas),” an entry for “SIP Revision: Hayden Lead Nonattainment Area, excluding Appendix C.” after the entry for “Maintenance Plan Renewal, 1971 Sulfur Dioxide National Ambient Air Quality Standards, Douglas Maintenance Area.” The addition reads as follows:
    § 52.120 Identification of plan.

    (e) * * *

    Table 1—EPA-Approved Non-Regulatory and Quasi-Regulatory Measures [Excluding certain resolutions and statutes, which are listed in tables 2 and 3, respectively] 1 Name of SIP provision Applicable geographic or nonattainment area or title/subject State submittal date EPA approval date Explanation The State of Arizona Air Pollution Control Implementation Plan *         *         *         *         *         *         * SIP Revision: Hayden Lead Nonattainment Area, excluding Appendix C Hayden, AZ Lead Nonattainment Area March 3, 2017 [INSERT Federal Register CITATION], November 14, 2018 Adopted by the Arizona Department of Environmental Quality on March 3, 2017. *         *         *         *         *         *         * 1 Table 1 is divided into three parts: Clean Air Act Section 110(a)(2) State Implementation Plan Elements (excluding Part D Elements and Plans), Part D Elements and Plans (other than for the Metropolitan Phoenix or Tucson Areas), and Part D Elements and Plans for the Metropolitan Phoenix and Tucson Areas.
    [FR Doc. 2018-24740 Filed 11-13-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2017-0661; FRL-9986-32-Region 9] Air Plan Approval; Arizona; Hayden and Miami Areas; Lead and Sulfur Dioxide Control Measures—Copper Smelters AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve revisions to the Arizona State Implementation Plan (SIP). These revisions concern emissions of lead and sulfur dioxide (SO2) from the copper smelter at Hayden, AZ and SO2 from the copper smelter at Miami, AZ. We are approving local rules that regulate these emission sources under the Clean Air Act (CAA or the Act).

    DATES:

    This rule will be effective on December 14, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2017-0661. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through https://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Kevin Gong, EPA Region IX, (415) 972-3073, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. Proposed Action II. Public Comments and EPA Responses III. EPA Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Proposed Action

    On March 30, 2018 (83 FR 13716), the EPA proposed to approve the following rules into the Arizona SIP.1

    1 In addition to the rules addressed in this action, ADEQ's April 6, 2017 submittal also included R18-2-B1301.01—Limits on Lead-Bearing Fugitive Dust from the Hayden Smelter; R18-2-B1302—Limits on SO2 Emissions from the Hayden Smelter; R18-2-715—Standards of Performance for Existing Primary Copper Smelters: Site-Specific Requirements; and R18-2-715.01—Standards of Performance for Existing Primary Copper Smelters; Compliance and Monitoring. The EPA has already approved R18-2-B1301.01 into the SIP, 83 FR 7614 (February 22, 2018) and intends to take action on the remaining rules in a separate rulemaking.

    Rule citation Rule title Effective Submitted R18-2-B1301 Limits on Lead Emissions from the Hayden Smelter 7/1/2018 or 180 calendar days after completion of all Converter Retrofit Project improvements authorized by Significant Permit Revision No. 60647 4/6/2017 R18-2-C1302 Limits on SO2 Emissions from the Miami Smelter On the later of the effective date of the EPA Administrator's action approving it as part of the state implementation plan or January 1, 2018 4/6/2017 Appendix 14 Procedures for Sulfur Dioxide and Lead Fugitive Emissions Studies for the Hayden Smelter 5/7/2017 4/6/2017 R18-2-715.02 Standards of Performance for Existing Primary Copper Smelters; Fugitive Emissions 5/7/2017 4/6/2017

    We proposed to approve these rules because we determined that they comply with the relevant CAA requirements. Our proposed action contains more information on the rules and our evaluation.

    II. Public Comments and EPA Responses

    The EPA's notice of proposed rulemaking provided a 30-day public comment period. During this period, we received 15 comments. Nine of these comments address issues not related to the subject of this rulemaking, including: Environmental quality issues in Asia, climate change policy, and other federal requirements not related to SO2 or lead pollution in Arizona. Six comments are germane to this rulemaking, and are supportive of the EPA's proposal to approve these regulations. One of these commenters raised a concern about the State and the EPA's statement that controlling emissions from the 1,000-foot stack would result in improved air quality at the ground level monitors at Hillcrest and Globe Highway in the Hayden Area. This commenter also suggested that the EPA should pay additional attention to fugitive lead emissions that may result from other smelter processes, including furnace dust and from residue from converter bed cleaning. We thank the commenter for the questions and suggestion and address the issues raised below.

    The Arizona Department of Environmental Quality (ADEQ) and the EPA believe that the prime contributors to lead nonattainment are fugitive emissions from smelter operations and leaded dust surrounding the smelter. Rule R18-2-B1301.01, approved into the Arizona SIP in 83 FR 7614, addresses leaded dust control measures for non-smelting process sources, which includes sources such as the bedding plant and reverts piles. Dust and material generated from smelter process sources, such as furnace and converter dust, are collected and deposited in these non-smelting process sources for disposal or reintroduction into the smelter process. Rule R18-2-B1301 addresses fugitive emissions from smelter operations by establishing operational standards for process equipment and control devices, requirements for the process gas capture system and control devices operations and maintenance plan (O&M plan), performance testing and compliance demonstration requirements, and recordkeeping and reporting requirements. However, Rule R18-2-B1301 does not include a numeric fugitive lead emissions limit. The EPA recognized this issue during the rule development process and requested that ADEQ provide supplementary analysis to address this concern. ADEQ responded on October 11, 2018, stating that continuous monitoring of fugitive lead emissions is technically infeasible, and that parametric monitoring of capture and control device efficiency (which would minimize uncontrolled fugitive emissions, and increase the volume of process gas directed to control devices and ultimately the 1,000-foot stack) was a suitable proxy for a numeric fugitive lead limit. ADEQ also reiterated that the fugitive emissions analyses required by Appendix 14 would be used to validate this approach.2 The EPA generally agrees with this reasoning.

    2 Letter from Timothy S. Franquist, Director, Air Quality Division, Arizona Department of Environmental Quality, to Michael Stoker, Regional Administrator, U.S. Environmental Protection Agency, Region 9, “Re: Justification and Clarification on Arizona Administrative Code R18-2-B1301, Limits on Lead Emissions from the Hayden Smelter,” dated October 11, 2018.

    The EPA also requested that ADEQ address an issue regarding the allowance for alternative sampling points for SO2 at the Miami Smelter. Specifically, we requested that ADEQ eliminate a provision that allowed for the owner or operator of the Miami Smelter to petition for an alternative sampling point if the current locations proved infeasible. Such flexibility might have been necessary at the time of rule development, as capture and control upgrades were still being installed; however, now that the upgrades are complete, we do not believe this flexibility is still necessary. ADEQ agreed to withdraw subsection (E)(6) of Rule R18-2-C1302 allowing for alternative sampling point since none are needed at the Miami Smelter.3

    3 Letter from Timothy S. Franquist, Director, Air Quality Division, Arizona Department of Environmental Quality, to Michael Stoker, Regional Administrator, U.S. Environmental Protection Agency, Region 9, “Re: Request to Withdraw from EPA Consideration, Arizona Administrative Code R18-2-C1302, Subsection (E)(6),” dated August 27, 2018.

    The comments and additional analysis from ADEQ have been added to the docket for this action and are accessible at https://www.regulations.gov/docket?D=EPA-R09-OAR-2017-0661.

    III. EPA Action

    No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is approving these rules into the Arizona SIP, with the exception of subsection (E)(6) in Rule R18-2-C1302, which was withdrawn by ADEQ. The EPA is also approving Appendix 14 and revised R18-2-715.02.

    IV. Incorporation by Reference

    In this rule the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the ADEQ rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.4

    4 62 FR 27968 (May 22, 1997).

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804, however, exempts from section 801 the following types of rules: Rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). Because this is a rule of particular applicability, the EPA is not required to submit a rule report regarding this action under section 801.

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 14, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: October 30, 2018. Michael Stoker, Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart D—Arizona 2. In § 52.120, table 2 in paragraph (c) is amended by: a. Revising the entry “R18-2-715.02”; b. Adding the entry “R18-2-B1301” after the subheading “Article 13 (State Implementation Plan Rules for Specific Locations)”; and c. Adding the entries “R18-2-C1302, excluding subsection (E)(6)” and “Appendix 14” after the entry “R18-2-B1301.01”.

    The revision and additions read as follows:

    § 52.120 Identification of plan.

    (c) * * *

    Table 2—EPA-Approved Arizona Regulations State citation Title/subject State effective date EPA approval date Additional explanation *         *         *         *         *         *         * Article 7 (Existing Stationary Source Performance Standards) *         *         *         *         *         *         * R18-2-715.02 Standards of Performance for Existing Primary Copper Smelters; Fugitive Emissions 5/7/2017 11/14/2018, [insert Federal Register citation] Submitted by the Governor's designee on April 6, 2017. *         *         *         *         *         *         * Article 13 (State Implementation Plan Rules for Specific Locations) R18-2-B1301 Limits on Lead Emissions from the Hayden Smelter 7/1/2018 11/14/2018, [insert Federal Register citation] Submitted by the Governor's designee on April 6, 2017. *         *         *         *         *         *         * R18-2-C1302, excluding subsection (E)(6) Limits on SO2 Emissions from the Miami Smelter 12/14/2018 11/14/2018, [insert Federal Register citation] Submitted by the Governor's designee on April 6, 2017. Subsection (E)(6) was withdrawn by the Arizona Department of Environmental Quality. Appendix 14 Procedures for Sulfur Dioxide and Lead Fugitive Emissions Studies for the Hayden Smelter 5/7/2017 11/14/2018, [insert Federal Register citation] Submitted by the Governor's designee on April 6, 2017. *         *         *         *         *         *         *
    [FR Doc. 2018-24743 Filed 11-13-18; 8:45 am] BILLING CODE 6560-50-P
    GENERAL SERVICES ADMINISTRATION 48 CFR Part 509 [GSAR Change 96; GSAR Case 2017-G503; Docket No. 2018-0012; Sequence No. 1] RIN 3090-AJ87 General Services Administration Acquisition Regulation; Removing Duplicative Responsibility Determination Guidance AGENCY:

    Office of Acquisition Policy, General Services Administration (GSA).

    ACTION:

    Direct final rule.

    SUMMARY:

    GSA is amending the General Services Administration Acquisition Regulation (GSAR) to remove duplicative text already contained in the Federal Acquisition Regulation.

    DATES:

    Effective date: This rule is effective January 14, 2019 unless GSA receives adverse comments during the comment period. If GSA receives adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect.

    Comment date: Comments are due December 14, 2018 by any of the methods listed in the Addresses section of this rule.

    ADDRESSES:

    Submit comments in response to GSAR Case 2017-G503 by any of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for “GSAR Case 2017-G503”. Select the link “Comment Now” that corresponds with “GSAR Case 2017-G503.” Follow the instructions provided on the screen. Please include your name, company name (if any), and “GSAR Case 2017-G503” on your attached document.

    Mail: General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Lois Mandell, 1800 F Street NW, 2nd floor, Washington, DC 20405.

    Instructions: Please submit comments only and cite “GSAR Case 2017-G503” in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    FOR FURTHER INFORMATION CONTACT:

    Ms. Johnnie McDowell, Procurement Analyst, at 202-718-6112 or [email protected], for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite GSAR Case 2017-G503.

    SUPPLEMENTARY INFORMATION:

    I. Background

    FAR 1.304(b) states that agency regulations shall not “unnecessarily repeat, paraphrase, or otherwise restate material contained in the FAR.” Here, both GSAR 509.105-1(b) and FAR 9.105(b) provide guidance to obtaining information from Government sources for a responsibility determination of potential Government contractors.

    II. Discussion and Analysis

    Both GSAR 509.105-1(b) and FAR 9.105-1(b) pertain to how contracting officers obtain information regarding a contractor's responsibility. GSAR 509.105-1(b) states “[t]he contracting officer may solicit and consider information from any appropriate activities[.]” FAR 9.105-1(b) states “[g]enerally, the contracting officer shall obtain information regarding the responsibility of prospective contractors, including requesting pre-award surveys when necessary (see 9.106) promptly after bid opening or receipt of offers . . .” GSAR 509.105-1(b) simply paraphrases FAR 9.105-1(b) as it restates that a contracting officer should obtain information regarding a contractor's responsibility through “any appropriate activities” which is implied through FAR 9.105-1(b)'s language. Further, FAR 9.105 includes that standards and procedures for requesting and obtaining information sufficient to determine the responsibility of a prospective contractor, i.e., that an offeror meets the standards at FAR 9.104. Therefore, GSAR 509.105-1(b) will be removed from the GSAR because it violates FAR 1.304(b) by unnecessarily paraphrasing FAR 9.105-1(b).

    III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    IV. Executive Order 13771

    This final rule is not subject to E.O. 13771, because this rule is not a significant regulatory action under E.O. 12866.

    V. Regulatory Flexibility Act

    This rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because the rule merely removes unnecessarily duplicative regulatory language. The rule imposes no new reporting, recordkeeping, or other information collection requirements. Therefore, a Regulatory Flexibility Analysis has not been performed.

    VI. Paperwork Reduction Act

    This rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Part 509

    Government procurement.

    Dated: November 7, 2018. Jeffrey A. Koses, Senior Procurement Executive, Office of Acquisition Policy, Office of Government-wide Policy, General Services Administration.

    Therefore, GSA is amending 48 CFR part 509 as set forth below:

    PART 509—CONTRACTOR QUALIFICATIONS 1. The authority citation for part 509 continues to read as follows: Authority:

    40 U.S.C. 121(c).

    2. Revise section 509.105-1 to read as follows:
    509.105-1 Obtaining information.

    FAR 9.105-1 lists a number of sources of information that a contracting officer may utilize before making a determination of responsibility. The contracting officer may request information directly from a prospective contractor using GSA Form 527, Contractor's Qualifications and Financial Information, but only after exhausting other available sources of information.

    [FR Doc. 2018-24755 Filed 11-13-18; 8:45 am] BILLING CODE 6820-61-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 170817779-8161-02] RIN 0648-XG591 Fisheries of the Exclusive Economic Zone Off Alaska; Reallocation of Pacific Cod in the Bering Sea and Aleutian Islands Management Area AGENCY:

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

    ACTION:

    Temporary rule; reallocation.

    SUMMARY:

    NMFS is reallocating the projected unused amount of Pacific cod total allowable catch (TAC) from vessels using jig gear, trawl catcher vessels, and American Fisheries Act (AFA) catcher/processors to catcher vessels less than 60 feet (18.3 m) length overall (LOA) using hook-and-line or pot gear in the Bering Sea and Aleutian Islands management area. This action is necessary to allow the 2018 TAC of Pacific cod to be harvested.

    DATES:

    Effective November 13, 2018, through 2400 hours, Alaska local time (A.l.t.), December 31, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Steve Whitney, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The 2018 Pacific cod TAC specified for vessels using jig gear in the BSAI is 249 metric tons (mt) as established by the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018) and reallocation (83 FR 42227, August 21, 2018).

    The 2018 Pacific cod TAC specified for trawl catcher vessels in the BSAI is 40,227 mt as established by the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018).

    The 2018 Pacific cod TAC specified for AFA catcher/processors in the BSAI is 4,186 mt as established by the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018).

    The 2018 Pacific cod TAC allocated to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear in the BSAI is 6,290 mt as established by final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018) and reallocation (83 FR 42227, August 21, 2018).

    The Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that jig vessels will not be able to harvest 100 mt of the 2018 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(1), the trawl catcher vessels will not be able to harvest 2,200 mt of the 2018 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(9), and the AFA catcher/processors will not be able to harvest 158 mt of the 2018 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(7). Therefore, in accordance with § 679.20(a)(7)(iii)(A), NMFS apportions 100 mt of Pacific cod from the jig vessel apportionment, 2,200 mt of Pacific cod from the trawl catcher vessel apportionment, and 158 mt of Pacific cod from the AFA catcher/processor apportionment to the annual amount specified for catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear. The harvest specifications for Pacific cod included in final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018) and reallocations (83 FR 42227, August 21, 2018) are revised as follows: 149 mt to the annual amount for vessels using jig gear, 38,027 mt to trawl catcher vessels, 4,028 mt to AFA catcher/processors, and 8,748 mt to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocations of Pacific cod to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear. Since the fishery is currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of November 7, 2018.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    This action is required by § 679.20 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 8, 2018. Karen H. Abrams, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-24824 Filed 11-13-18; 8:45 am] BILLING CODE 3510-22-P
    83 220 Wednesday, November 14, 2018 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 981 [AMS-SC-18-0018; SC18-981-3] Almonds Grown in California; Proposed Amendments to Marketing Order 981 and Referendum Order AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule and referendum order.

    SUMMARY:

    This rulemaking proposes amendments to Marketing Order No. 981, which regulates the handling of almonds in California. The Almond Board of California (Board) recommended changing the dates associated with the process to nominate members to the Board as well as the start of the term of office of members of the Board. The Board also recommended adding authority to allow future revisions of the nomination methods and term of office start date through the development of regulations using informal rulemaking.

    DATES:

    The referendum will be conducted from March 25, 2019, through April 5, 2019. The representative period for the referendum is August 1, 2017, through July 31, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Debbie Wray, Senior Marketing Specialist, or Michelle Sharrow, Deputy Director, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected] or [email protected].

    Small businesses may request information on 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 proposal, pursuant to 5 U.S.C. 553, proposes amendments to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposal is issued under Marketing Order No. 981, as amended (7 CFR part 981), regulating the handling of almonds grown in California. Part 981 (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.” Section 608c(17) of the Act and the applicable rules of practice and procedure governing the formulation of marketing agreements and orders (7 CFR part 900) authorizes amendment of the Order through this informal rulemaking action.

    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 proposed 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 proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This rulemaking is not intended to have retroactive effect.

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

    Section 1504 of the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill)(Pub. L. 110-246) amended section 608c(17) of the Act, which in turn required the addition of supplemental rules of practice to 7 CFR part 900 (73 FR 49307; August 21, 2008). The amendment of section 608c(17) of the Act and additional supplemental rules of practice authorize the use of informal rulemaking (5 U.S.C. 553) to amend Federal fruit, vegetable, and nut marketing agreements and orders. USDA may use informal rulemaking to amend marketing orders based on the nature and complexity of the proposed amendments, the potential regulatory and economic impacts on affected entities, and any other relevant matters.

    AMS has considered these factors and has determined that the amendments proposed are not unduly complex and the nature of the proposed amendments is appropriate for utilizing the informal rulemaking process to amend the Order.

    The proposed amendments were unanimously recommended by the Board following deliberations at a public meeting held on December 4, 2017. The proposal would amend the Order by: (1) Changing the nomination deadline for Board nominees from January 20 to April 1, the deadline for presenting nominees to USDA for selection from February 20 to June 1, and the start of the term of office from March 1 to August 1; (2) adding the ability to propose future revisions to Board nomination methods by developing regulations through informal rulemaking; and (3) adding the ability to propose future revisions to the start date of the Board's term of office by developing regulations through informal rulemaking. In addition to these proposals, AMS proposes to make any additional changes to the Order as may be necessary to conform to any amendment that may result from this rulemaking action.

    A proposed rule soliciting comments on the proposed amendments was issued on July 2, 2018, and published in the Federal Register on July 6, 2018 (83 FR 31473). One comment was received, but it did not pertain to this proposal; therefore, no changes were made to the proposed amendments. AMS will conduct a grower referendum to determine support for the proposed amendments. If appropriate, a final rule will then be issued to effectuate the amendments favored by growers in the referendum.

    The Board's proposed amendments would amend the Order by changing the dates associated with the process to nominate members to the Board, changing the start date for the term of office of members of the Board, and adding authority to the Order to allow future revisions of the nomination methods and term of office start date through the development of regulations using informal rulemaking.

    Proposal 1—Nomination and Term of Office Dates

    Section 981.32 provides that, each year, nominees for open Board member and alternate member positions shall be chosen by ballot delivered to the Board. In support of this nomination process, § 981.32 further provides that on or before January 20 of each year, the Board shall mail to all handlers and growers, other than the cooperative(s) of record, the required ballots with all necessary voting information; and that nominees chosen shall be submitted by the Board to the USDA Secretary of Agriculture (Secretary) on or before February 20 of each year. If a nomination for any Board member or alternate is not received by the Secretary on or before February 20, the Secretary may select, without nomination, such member or alternate from persons belonging to the group to be represented.

    Section 981.33 provides that the term of office of Board members and alternate members selected by the Secretary pursuant to § 981.32 shall begin on March 1.

    This proposal would amend § 981.32 by changing the nomination deadline for Board nominees from January 20 to April 1 and the deadline for presenting nominees for selection to the Secretary from February 20 to June 1. It would also amend § 981.33 by changing the start of the term of office from March 1 to August 1. A clarifying change would also be made to § 981.33 to remove language related to a previous amendment to the Order that is no longer needed.

    Changing the two nomination process dates from January 20 and February 20 to April 1 and June 1, respectively, could provide several benefits. First, preparing ballots to mail in January is very challenging for the Board because it prepares for and hosts major industry activities in December, including a Board meeting and a large, multi-day almond conference that is held at an off-site location. The Board office is also closed the last week of December every year. Because of these year-end activities, it is difficult for the Board to prepare for a nomination mailing in January. Changing the nomination dates would allow the Board enough time to prepare nominations for mailing.

    In addition, the Board believes that more industry members might participate in the nomination process if it occurred later in the calendar year. This is because many industry members are busy with or returning from winter holiday season activities in December and January and, therefore, may be less likely to participate in nomination proceedings that are occurring at that time.

    In addition to the challenges the Board faces in meeting the January nomination deadline, there is currently only one month between the deadline for mailing ballots (January 20) and the date that the Board must process returned ballots and prepare a nomination package to submit to USDA (February 20). In addition to this short timeframe, there are only 9 or 10 days between the February 20 deadline by which the Board must submit nominations to USDA and the March 1 term of office start date. This short timeframe does not provide adequate time for the nominations to be processed and new member selections to be made prior to the new term of office. The proposed changes would provide 60 days between the April 1 and June 1 nomination process deadline dates, compared to the existing 30 days between the current dates of January 20 and February 20. The proposed changes would also provide 60 days between the June 1 deadline for the Board to submit the nominations to USDA and the new August 1 term of office start date, compared to the existing 10 days between the current dates of February 20 and March 1. Extending the times between these dates would improve the overall preparation and processing of nominations.

    The proposal to change the term of office start date would improve Board cohesiveness because the Board would then operate on the same timeline as the crop year and the Board's committees. The Order's crop year is defined in § 981.19 as August 1 through July 31. The Board is responsible for all program planning and budgeting for each crop year. However, with the current term of office beginning on March 1, Board members responsible for annual program planning and budget recommendations leave office prior to the end of the crop year; conversely, new Board members also begin serving in the middle of a crop year. Starting the term of office on August 1 would allow Board members to administer activities for an entire crop year as well as provide valuable insight related to the next crop year's activities. Changing the start of the term of office to August 1 would align with the appointment of individuals to various committees that operate under the Board, which occurs at the beginning of each crop year.

    Changing the term of office start date from March 1 to August 1 would require current members and alternates to serve a few additional months, beyond the original March 1 start date, until their respective successors were selected and qualified pursuant to § 981.33(a).

    These changes to the nomination and term of office dates that appear in two sections of the Order (§§ 981.32 and 981.33) are being proposed as a single amendment because of the relation of the nomination process to the start date of the term of office; that is, if the nomination process dates are changed to occur later in the calendar year (on April 1 and June 1, respectively, as described above), then the start date of the term of office would also need to change from March 1 to a date that would follow the new nomination process dates. As noted above, the Board recommended the term of office start date be changed to August 1.

    For the reasons stated above, it is proposed that § 981.32, Nominations, be amended by changing the nomination deadline for Board nominees from January 20 to April 1 and the deadline for presenting nominees for selection to the Secretary from February 20 to June 1. Further, it is proposed that § 981.33, Selection and term of office, be amended by changing the start of the term of office from March 1 to August 1 and by making a clarifying change to remove language related to a previous amendment to the Order that is no longer needed.

    Proposal 2—Regulation Authority for Nomination Methods

    Section 981.32 provides the methods by which nominations for open Board member and alternate member positions shall be chosen, including the dates by which (1) ballots and voting information shall be mailed by the Board to all handlers and growers, other than cooperative(s) of record, and (2) nominations shall be submitted by the Board to the Secretary. Changes to these dates are included in Proposal 1 above.

    This proposal would change § 981.32 by adding authority to modify the nomination methods described in paragraph (a) through the future development of regulations using the informal rulemaking process. Currently, changes to the nomination methods require formal rulemaking. The Board would still be required to discuss future proposed changes at its meetings and to vote on whether to recommend changes to USDA. If amended, future changes would still require notice be given to the public with an opportunity for the public to comment on the proposed changes. However, it is anticipated that this proposed amendment would streamline future changes to the Order by allowing such changes to be proposed and finalized using informal rulemaking.

    For the reasons stated above, it is proposed that § 981.32, Nominations, be amended by adding a new paragraph that would provide the Board with authority to modify its nomination methods by developing regulations using the informal rulemaking process.

    Proposal 3—Regulation Authority for Term of Office Start Date

    Section 981.33 provides that the term of office of Board members and alternate members selected by the Secretary pursuant to § 981.32 shall begin on March 1. A change to this term of office start date is included in Proposal 1.

    This proposal would change § 981.33 by adding authority to modify the term of office start date through the future development of regulations using the informal rulemaking process. Currently, changes to the term of office start date require formal rulemaking. The Board would still be required to discuss a future proposed change at its meetings and to vote on whether to recommend a change to USDA. If amended, a future change to the term of office start date would still require notice be given to the public with an opportunity for the public to comment on the proposed change. However, it is anticipated that this proposed amendment would streamline future changes to the Order by allowing such changes to be proposed and finalized using informal rulemaking.

    For the reasons stated above, it is proposed that § 981.33, Selection and term of office, be amended by adding a new paragraph that would provide the Board with authority to modify the term of office start date by developing regulations using the informal rulemaking process.

    Final Regulatory Flexibility Analysis

    Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

    The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and 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 6,800 almond growers in the production area and approximately 100 almond handlers subject to regulation under the Order. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).

    The National Agricultural Statistics Service (NASS) reported in its 2012 Agricultural Census that there were 6,841 almond farms in the production area (California), of which 6,204 had bearing acres. The following computation provides an estimate of the proportion of agricultural producers (farms) and agricultural service firms (handlers) that would be considered small under the SBA definitions.

    The NASS Census data indicates that out of the 6,204 California farms with bearing acres of almonds, 4,471 (72 percent) have fewer than 100 bearing acres.

    For the almond industry's most recently reported crop year (2016), NASS reported an average yield of 2,280 pounds per acre and a season average grower price of $2.44 per pound. A 100-acre farm with an average yield of 2,280 pounds per acre would produce about 228,000 pounds of almonds. At $2.44 per pound, that farm's production would be valued at $556,320. The Census of Agriculture indicates that the majority of California's almond farms are smaller than 100 acres; therefore, it could be concluded that the majority of growers had annual receipts from the sale of almonds in 2016-17 of less than $556,320, which is below the SBA threshold of $750,000. Thus, over 70 percent of California's almond growers would be classified as small entities according to SBA's definition.

    To estimate the proportion of almond handlers that would be considered small businesses, it was assumed that the unit value per shelled pound of almonds exported in a particular year could serve as a representative almond price at the handler level. A unit value for a commodity is the value of exports divided by the quantity. Data from USDA's Foreign Agricultural Service showed that the value of almond exports from August 2016 to July 2017 (combining shelled and inshell almonds) was $4.072 billion. The quantity of almond exports over that period was 1.406 billion pounds, combining shelled exports and the shelled equivalent of inshell exports. Dividing the export value by the quantity yields a unit value of $2.90 per pound. Subtracting this figure from the NASS 2016 estimate of season average grower price per pound ($2.44) yields $0.46 per pound as a representative grower-handler margin. Applying the $2.90 representative handler price per pound to 2016-17 handler shipment quantities provided by the Board showed that approximately 40 percent of California's almond handlers shipped almonds valued under $7,500,000 during the 2016-17 crop year and would therefore be considered small entities according to the SBA definition.

    The proposed amendments would change the dates associated with the process to nominate Board members and alternates as well as the start of the term of office of Board members. The proposed amendments would also add authority to allow future revisions of the nomination methods and term of office dates through the development of regulations using informal rulemaking. These amendments would improve the nomination process, align the term of office with the crop year and appointment of Board committees, and streamline the process for making similar changes in the future.

    The Board's proposed amendments were unanimously recommended at a public meeting of the Board on December 4, 2017. The proposed amendments are administrative in nature; therefore, if any or all the proposals are approved in referendum, there should be no economic impact on growers or handlers. Changing the nomination dates could encourage greater industry participation on the Board because the timing of the current nominations occurs immediately after the winter holiday season, when many industry members are just returning to their operations and may be less inclined to participate. The changes to the nomination process dates and the term of office start date are expected to streamline and improve operations of the Board. Adding authority to allow the development of regulations through informal rulemaking for making future changes to the nomination methods and term of office start date could reduce the time it takes to implement the changes, thereby allowing the Board to function more effectively.

    Alternatives to the proposals, including recommending no changes, were considered. However, the Board believes that changing the nomination process dates and term of office start date, as well as adding authority to make similar changes in the future by creating regulations through informal rulemaking, will be beneficial to the industry by enhancing Board operations and effectiveness.

    Paperwork Reduction Act

    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 OMB and assigned OMB No. 0581-0178 (Vegetable and Specialty Crops). No changes in those requirements because of this action would be necessary. Should any changes become necessary, they would be submitted to OMB for approval.

    As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this 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.

    The Board's meeting was widely publicized throughout the almond industry. All interested persons were invited to attend the meeting and encouraged to participate in Board deliberations on all issues. Like all Board meetings, the December 4, 2017, meeting was public, and all entities, both large and small, were encouraged to express their views on these proposals.

    A proposed rule concerning this action was published in the Federal Register on July 6, 2018 (83 FR 31473). Copies of the proposed rule were sent via email to all Board members and almond handlers. Finally, the rule was made available through the internet by USDA and the Office of the Federal Register. A 60-day comment period ending September 4, 2018, was provided to allow interested persons to respond to the proposal. One comment was received, but it did not pertain to this proposal; therefore, no changes were made to the proposed amendments.

    A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://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.

    Findings and Conclusions

    The findings and conclusions and general findings and determinations included in the proposed rule set forth in the July 6, 2018, issue of the Federal Register are hereby approved and adopted.

    Marketing Order

    Annexed hereto and made a part hereof is the document entitled “Order Amending the Order Regulating the Handling of Almonds Grown in California.” This document has been decided upon as the detailed and appropriate means of effectuating the foregoing findings and conclusions. It is hereby ordered that this entire rule be published in the Federal Register.

    Referendum Order

    It is hereby directed that a grower referendum be conducted in accordance with the procedure for the conduct of referenda (7 CFR 900.400-407) to determine whether the annexed order amending the Order regulating the handling of almonds grown in California is approved by growers who have engaged in the production of almonds within the production area during the representative period. The representative period for the conduct of such referendum is hereby determined to be August 1, 2017, to July 31, 2018.

    The agents of the Secretary to conduct such referendum are designated to be Peter Sommers and Terry Vawter, California Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (559) 487-5901, Fax: (559) 487-5906, or Email: [email protected] or [email protected], respectively.

    Order Amending the Order Regulating the Handling of Almonds Grown in California 1 Findings and Determinations

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

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

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

    2. The Order, as amended, and as hereby proposed to be further amended, regulates the handling of almonds grown in California in the same manner as, and are applicable only to, persons in the respective classes of commercial and industrial activity specified in the Order;

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

    4. The Order, as amended, and as hereby proposed to be further amended, prescribe, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of almonds produced in the production area; and

    5. All handling of almonds produced in the production area as defined in the Order is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.

    Order Relative to Handling

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

    The provisions of the proposed marketing order amending the Order contained in the proposed rule issued by the Administrator on July 2, 2018, and published in the Federal Register (83 FR 31473) on July 6, 2018, will be and are the terms and provisions of this order amending the Order and are set forth in full herein.

    List of Subjects in 7 CFR Part 981

    Almonds, Marketing agreements, Nuts, Reporting and recordkeeping requirements.

    Dated: November 7, 2018. Bruce Summers, Administrator, Agricultural Marketing Service.

    For the reasons discussed in the Preamble, 7 CFR part 981 is proposed to be amended as follows.

    PART 981—ALMONDS GROWN IN CALIFORNIA 1. The authority citation for 7 CFR part 981 continues to read as follows: Authority:

    7 U.S.C. 601-674.

    2. Amend § 981.32 by revising paragraph (a)(1) and adding paragraph (a)(3) to read as follows:
    § 981.32 Nominations.

    (a) Method. (1) Each year the terms of office of three of the members elected pursuant to § 981.31(a) and (b) shall expire, except every third year when the term of office for two of those members shall expire. Nominees for each respective member and alternate member shall be chosen by ballot delivered to the Board. Nominees chosen by the Board in this manner shall be submitted by the Board to the Secretary on or before June 1 of each year together with such information as the Secretary may require. If a nomination for any Board member or alternate is not received by the Secretary on or before June 1, the Secretary may select such member or alternate from persons belonging to the group to be represented without nomination. The Board shall mail to all handlers and growers, other than the cooperative(s) of record, the required ballots with all necessary voting information including the names of incumbents willing to accept renomination, and, to such growers, the name of any person proposed for nomination in a petition signed by at least 15 such growers and filed with the Board on or before April 1. Distribution of ballots shall be announced by press release, furnishing pertinent information on balloting, issued by the Board through newspapers and other publications having general circulation in the almond producing areas.

    (3) The Board may recommend, subject to the approval of the Secretary, a change to the nomination method, should the Board determine that a revision is necessary.

    3. Amend § 981.33 by revising the first sentence of paragraphs (a) and (b), revising the last sentence of paragraph (c), and adding paragraph (d) to read as follows:
    § 981.33 Selection and term of office.

    (a) Members and their respective alternates for positions open on the Board shall be selected by the Secretary from persons nominated pursuant to § 981.32, or, at the discretion of the Secretary, from other qualified persons, for a term of office beginning August 1. * * *

    (b) The term of office of members of the Board shall be for a period of three years beginning on August 1 of the years selected except where otherwise provided. * * *

    (c) * * * This limitation on tenure shall not apply to alternate members.

    (d) The Board may recommend, subject to approval of the Secretary, revisions to the start date for the term of office of members of the Board.

    [FR Doc. 2018-24727 Filed 11-13-18; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF ENERGY 10 CFR Part 430 Energy Conservation Program: Test Procedures for Consumer Warm Air Furnaces, Notice of Petition for Rulemaking AGENCY:

    Office of Energy Efficiency and Renewable Energy, Department of Energy.

    ACTION:

    Notice of petition for rulemaking; request for comment.

    SUMMARY:

    On October 12, 2018, the Department of Energy (DOE) received a petition from the Air-Conditioning, Heating, and Refrigeration Institute (AHRI) asking DOE to initiate notice-and-comment rulemaking to develop a new, unified test procedure for residential furnaces which would replace the three currently required performance metrics (i.e., annual fuel utilization efficiency (AFUE), fan efficiency ratio (FER), and standby mode/off mode energy consumption (PW,SB and PW,OFF)) with a single new metric (AFUE2). As the petition acknowledges, a combined metric would necessitate a translation of the existing energy conservation standards applicable to residential furnaces using an appropriate crosswalk. Through this announcement, DOE seeks comment on the petition, as well as any data or information that could be used in DOE's determination whether to proceed with the petition.

    DATES:

    Written comments and information are requested on or before January 14, 2019.

    ADDRESSES:

    Interested persons are encouraged to submit comments, identified by “Test Procedure for Consumer Warm Air Furnaces Petition,” by any of the following methods:

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

    Email: [email protected]. Include Docket No. EERE-2018-BT-PET-0017 in the subject line of the message.

    Postal Mail: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. If possible, please submit all items on a compact disc (CD), in which case it is not necessary to include printed copies.

    Hand Delivery/Courier: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, 950 L'Enfant Plaza SW, Suite 600, Washington, DC 20024. Telephone: (202) 287-1445. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

    Docket: For access to the docket to read background documents, or comments received, go to the Federal eRulemaking Portal at: http://www.regulations.gov/docket?D=EERE-2018-BT-PET-0017.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Eric Stas, U.S. Department of Energy, Office of the General Counsel, 1000 Independence Avenue SW, Washington, DC 20585. Telephone: (202) 586-9507. Email: [email protected].

    SUPPLEMENTARY INFORMATION:

    The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., provides among other things, that “[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” (5 U.S.C. 553(e)) DOE received a petition from AHRI, as described in this notice and set forth verbatim below,1 requesting that DOE develop a new test procedure for residential furnaces with a combined metric (annual fuel utilization efficiency 2 (AFUE2)), which would encompass the three existing metrics currently required (i.e., AFUE, FER, and PW,SB/PW,OFF). In promulgating this petition for public comment, DOE is seeking views on whether it should grant the petition and undertake a rulemaking to consider the proposal contained in the petition. By seeking comment on whether to grant this petition, DOE takes no position at this time regarding the merits of the suggested rulemaking or the assertions in AHRI's petition.

    1 Attachments and data submitted by AHRI with its petition for rulemaking are available in the docket at http://www.regulations.gov/docket?D=EERE-2018-BT-PET-0017.

    In its petition, AHRI requests that DOE undertake notice-and-comment rulemaking to develop a new test procedure for residential warm air furnaces that would consolidate all aspects of the regulation of such furnaces using a single metric (AFUE2) and yield a unified timeline for rulemaking and compliance. Currently, residential furnaces are subject to separate requirements for heating (AFUE), air circulation (FER), and standby mode and off mode energy consumptions (power in watts for standby mode and off mode (PW,SB and PW,OFF)). The petitioner asserts that its recommended single metric would reduce regulatory burden on manufacturers by streamlining test requirements and aligning regulatory review schedules, thereby promoting design flexibility and product innovation. The petitioner further asserts that consumers would also benefit by having a single, combined metric for product comparison purposes and by receiving some portion of anticipated cost savings, all of which could be achieved without sacrificing energy savings. As the petition acknowledges, a combined metric would necessitate a translation of the existing energy conservation standards applicable to residential furnaces using an appropriate crosswalk.

    DOE welcomes comments and views of interested parties on any aspect of the petition for rulemaking.

    In conjunction with its petition, AHRI requested that DOE not enforce the reporting, certification and compliance obligations related to the furnace fan energy conservation standards (for which compliance is required on July 3, 2019) pending consideration of this petition for rulemaking.2 In response to AHRI's request, DOE is issuing an enforcement policy regarding enforcement of the furnace fan standards. Further details will be provided on the DOE website.3

    2 AHRI's request is available in the docket at http://www.regulations.gov/docket?D=EERE-2018-BT-PET-0017.

    3See http://www.energy.gov/gc/enforcement/.

    Submission of Comments

    DOE invites all interested parties to submit in writing by January 14, 2019 comments and information regarding this petition.

    Submitting comments via http://www.regulations.gov. The http://www.regulations.gov webpage will require you to provide your name and contact information prior to submitting comments. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

    However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

    Do not submit to http://www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through http://www.regulations.gov cannot be claimed as CBI. Comments received through the website will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

    DOE processes submissions made through http://www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that http://www.regulations.gov provides after you have successfully uploaded your comment.

    Submitting comments via email, hand delivery, or postal mail. Comments and documents via email, hand delivery, or postal mail will also be posted to http://www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information on a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

    Include contact information in your cover letter each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (faxes) will be accepted.

    Comments, data, and other information submitted electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English, and free of any defects or viruses. Documents should not include any special characters or any form of encryption, and, if possible, they should carry the electronic signature of the author.

    Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

    Confidential Business Information. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery two well-marked copies: One copy of the document marked “Confidential” including all the information believed to be confidential, and one copy of the document marked “Non-confidential” with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

    Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time, and (7) why disclosure of the information would be contrary to the public interest.

    It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

    DOE considers public participation to be a very important part of its process for considering rulemaking petitions. DOE actively encourages the participation and interaction of the public during the comment period. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in determining how to proceed with a petition. Anyone who wishes to be added to DOE mailing list to receive future notices and information about this petition should contact Appliance and Equipment Standards Program staff at (202) 287-1445 or via email at [email protected].

    Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this notice of petition for rulemaking.

    Signed in Washington, DC, on November 2, 2018. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy. Before the UNITED STATES DEPARTMENT OF ENERGY Office of Energy Efficiency and Renewable Energy Energy Conservation Program: Test Procedures for Consumer Warm Air Furnaces PETITION FOR A RULEMAKING

    The Air-Conditioning, Heating, and Refrigeration Institute (AHRI) submits this Petition for a Rulemaking to formally request that the Department of Energy (DOE or the Department) promulgate a new test procedure for residential furnaces pursuant to its authority under the Energy Policy and Conservation Act (EPCA), 42 U.S.C. § 6293. Currently, three separate Federal test procedures measure three different performance characteristics of consumer warm-air furnaces: fuel efficiency (AFUE), air-movement efficiency (FER), and stand-by/off-mode energy consumption. AHRI petitions DOE to establish a new test procedure that will designate a single efficiency metric for the entire product and replace the existing test procedures for all three performance characteristics. A whole-product test procedure and single performance metric will reduce regulatory burden and increase opportunity for innovation.

    AHRI Petitions DOE to Conduct a Notice-and-Comment Rulemaking to Adopt the AFUE2 Test Procedure and Metric for Residential Furnaces

    AHRI is the trade association representing air conditioning, heating, commercial refrigeration, and ventilation equipment manufacturers. AHRI advocates for the HVACR industry, administers a third-party certification program that verifies the performance of HVACR equipment, and publishes global industry standards. Many of AHRI's 315 members design, develop, and manufacture residential furnaces. Any AHRI member that manufactures a furnace for sale in the United States or Canada is eligible to participate in AHRI's Furnace Product Section. The Furnace Engineering Committee is a subcommittee of the Furnace Product Section and is comprised of furnace product engineers with decades of experience. Over a year ago, the Furnace Engineering Committee identified challenges with the existing residential furnace Federal test procedures and has dedicated its time and resources to developing a more functional and facile test procedure. The goal of the new test procedure is to combine the three existing furnace test procedures into a single test using a single metric: AFUE2.4

    4 During previous discussions with DOE about unrelated performance metric changes, DOE staff indicated that the name of a metric is mandated by statute, and therefore any metric change must retain the codified nomenclature. If upon further review, DOE determines that the nomenclature, like the test procedure, is mutable, then AHRI encourages DOE to adopt a fitting identifier for the metric. AHRI is not bound to “AFUE2.”

    I. Description of the Test Method and Metric

    The AFUE2 test procedure is based upon the methods established by the ASHRAE 103-2017 AFUE test procedure; 5 the Federal FER test procedure (10 CFR § 430 Appx AA); and the Federal stand-by loss/off-mode test procedure (10 CFR § 430 Appx N). The AFUE2 metric accounts for furnace fuel, fan power, and stand-by and off-mode power consumption. The measured value represents the sum of usable heat and fan benefit, divided by the total fuel and electricity consumed. A draft of the test procedure is attached.6 For the benefit of the Department and the public, a description of the notable features of the test procedure and metric are provided below.

    5 AFUE2 fuel efficiency measures are based primarily on ASHRAE 103-2017. DOE has codified ASHRAE 103-1993 in 10 CFR § 430 Appx N. The relevant portions of the ASHRAE 103-2017 that are referenced in the AFUE2 test procedure are similar to the equivalent provisions in ASHRAE 103-1993/10 CFR 430 Appendix N. Other provisions, related to cyclic testing, are only applicable to products with draft hoods and draft diverter technologies.

    6 Exhibit 1 AFUE2 Draft Test Procedure.

    The first step in the process is to measure the fuel consumption. The furnace is set up and measurements are taken in accordance with the most current industry test standard, ASHRAE 103-2017.7 The AFUE2 test procedure differs most significantly from the ASHRAE 103-2017 test procedure by including only steady-state testing and excluding cyclic testing for fuel and oil furnace models currently available in the U.S. market.8 Cyclic testing is time consuming and requires the execution of complex calculations, and the value of the cyclic testing is limited at best. AHRI's data indicates that for the vast majority of modern products, the steady-state efficiency accurately represents the AFUE efficiency, and cyclic testing and calculations are unnecessary. Based on an analysis of over 100 models, only a handful demonstrated greater than a 1% difference between measured AFUE and steady-state efficiencies (less jacket loss).9 The average difference between actual AFUE and steady-state efficiencies is close to zero. The elimination of cyclic testing for currently compliant products is warranted and reduces testing burden without sacrificing accuracy. Notably, to close any loopholes that might permit technology backsliding, the test procedure specifies that products that incorporate draft hoods and draft diverter technologies must complete the cyclic testing procedures published in ASHRAE 103-2017. AHRI is not aware of any furnaces on the market today that incorporate these technologies.

    7 Per Note 2, DOE regulations currently refer to the ASHRAE 103-1993, but the test set-up is the same with some clarifications.

    8 These are models with power burners as defined by the DOE test procedures.

    9 Exhibit 2: Calculations reflecting steady-state efficiency and measured AFUE efficiency.

    After the fuel consumption is measured, the next step in the procedure is to turn off the equipment and measure the electrical consumption of the furnace when not in heating mode. The procedure for measuring and calculating stand-by and off-mode energy use is identical to the Federal method.

    Finally, the ventilation energy consumption is measured. The AFUE2 test method for measuring and calculating ventilation energy consumption is based on the FER test procedure, with some significant changes. First, the AFUE2 test procedure describes set-up and settings for the ventilation test in greater detail than the FER test procedure. For example, the AFUE2 test procedure specifically identifies the location of the external static pressure taps. These set-up descriptions are intended to reduce test-to-test variability.

    The AFUE2 test procedure also clarifies the hierarchy of speed taps settings for the various modes of ventilation testing. The FER procedure directs manufacturers to test using the “maximum airflow settings,” but this description is ambiguous and can lead to absurd results depending on its interpretation. The AFUE2 test procedure specifies that the airflow be set according to the installation and operations manual, and the test procedure prescribes which airflow setting should be selected if there is overlap between operating modes. If the manual identifies the maximum airflow during the heating mode, and the second highest airflow during cooling mode, then the speed taps should be set accordingly: first heating, then cooling. If the heating and cooling mode airflows are the same, then the cooling mode speed tap is set first, which reflects how the furnace would operate in the field.

    Finally, manufacturers have been challenged with the repeatability of the FER test. Testing has demonstrated more than a 5% difference among tests on the same unit. The poor repeatability of the FER measurements is resolved in AFUE2 due to the relatively small proportion of the electrical consumption. The AFUE fuel efficiency test is well established and repeatable, so overall AFUE2 will be much more repeatable than FER.

    II. The AFUE2 Metric Prevents Double Regulation

    AFUE2 efficiency is the sum of the fan benefit and usable heat, divided by electric and fuel consumption, all weighted by operating hours. The calculations for AFUE2 and FER are based on different operating hours. The hours differ in two meaningful ways: (1) The cooling hours are derived directly from AHRI Standard 210/240, which is incorporated by reference into the Federal standard for central air conditioners; and (2) package equipment is ascribed zero fan operating hours in the cooling mode. The AFUE2 test procedure relies on cooling mode operating hours from AHRI Standard 210/240 based on the simple logic that air conditioners conduct the cooling during furnace-ventilation cooling mode and air conditioner operating hours are already defined in AHRI 210/240. Harmonizing the two standards is preferable and logical, and assigning different operating hours in two different regulations for what is essentially the same product is arbitrary. Packaged equipment is assigned zero operating hours because the ventilation electricity consumption is already directly regulated by DOE's air conditioning standard. DOE is strictly prohibited from regulating the same product twice. Two separate regulations (SEER and FER) imposed on the same component of a single type of equipment is contrary to DOE's statutory authority. Eliminating operating hours for packaged equipment permits the furnace to be measured by AFUE2 without double-regulating the ventilation energy use.

    Aside from the above distinctions, most of the methods and measurements from the currently applicable test procedures and metrics are reflected in the AFUE2 test procedure and metric. The ultimate goal of combining the AFUE, FER, and stand-by/off-mode test procedures is to streamline the testing requirements, align regulatory review schedules, and reduce regulatory burden.

    III. Establishing the AFUE2 as the Federal Test Procedure and Metric Is in the Public Interest A. A Combined Test Procedure and Metric Reduces Burden

    The AFUE2 test procedure and metric will decrease the regulatory burden. At least six different regulations apply to consumer furnace efficiency: (1) AFUE test procedure (2) AFUE energy conservation standard (3) FER test procedure (4) FER energy conservation standard (5) stand-by loss/off-mode test procedure (6) stand-by loss/off-mode energy conservation standard. Each of these regulations is subject to mandatory review—every six years for energy conservation standards and every seven years for test procedures. Each of the six applicable regulations follows a different schedule, which places the equipment manufacturers, distributors, contractors and DOE in a constant state of change and adjustment. The AFUE test procedure was most recently finalized in 2016. DOE is required to review it again by 2023. The FER test procedure was finalized in 2014; it will be reviewed by 2021. The stand-by loss test procedure was finalized in 2013; it will be reviewed by 2020. Stand-by and off-mode test procedures were amended in 2012 and are due for review in 2019. Energy conservation standards for stand-by and FER were published in 2013 and 2014, respectively, while the AFUE standard has been under review since 2011. Industry expects that energy conservation standards will be reviewed again in 2019 and 2020. The Department is perennially reviewing and amending furnace regulations, while manufacturers pour time and resources into public comments, testing, redesign, and ever-shifting compliance requirements. The total reduction in regulatory burden resulting from implementation of AFUE2 will save manufacturers more than $250 million over thirty years.10

    10 Exhibit 3, “Estimated Benefits of AFUE2”

    If DOE adopts the AFUE2 test procedure that assesses all three performance characteristics simultaneously, then the Department would only have to conduct a test procedure rulemaking process once every seven years. Similarly, combining the performance measurements into a single metric will obviate the need for three separate energy conservation standards, and DOE will only have to review energy conservation standards once every six years.

    Resource savings to the Department are relevant, but pale in comparison to the significant savings afforded manufacturers, and consequently consumers, if DOE were to combine the test metric and eliminate four of six rulemaking review cycles. Multiple discordant regulatory requirements generate unnecessary costs. For example, manufacturers must run an FER test, and a separate AFUE test, and stand-by loss testing. The incremental costs of the equipment, the set-up, mounting on the test stand, the laboratory time, and technician costs can be drastically reduced by conducting one test instead of three. The alignment of review cycles and redesign cycles further reduces repetitive testing required for design development and safety certifications. The AFUE2 test procedure mimics many of the existing test methods, but the merging of the instances of active testing cuts superfluous costs.11

    11Id.

    Every time DOE makes an amendment to any of the applicable regulations, manufacturers must redesign equipment, make capital investments to update manufacturing facilities, republish all marketing literature, and educate distributors, contractors, and consumers about the change. Merging six rulemaking cycles into two dramatically reduces the compliance burden associated with regulatory changes because changes will occur two-thirds less frequently. Manufacturers can pass on significant savings to consumers by making all required changes to their furnaces within a single design-cycle rather than spending resources on unnecessary tooling, design, testing, production introduction, training and other related costs.12 Less frequent regulatory changes offer greater certainty to manufacturers, which promotes investment in innovation and product improvements.

    12Id.

    Crucially, reduced costs for manufacturers and consumers does not translate to lost energy savings. Fewer regulatory review cycles does not mean regulatory roll-back or less oversight. AHRI is confident that DOE will take no less interest in the representativeness and effectiveness of the applicable test procedure as a result of this change. And each energy conservation standard review remains targeted at achieving the “maximum energy savings” that are economically justified. Ultimately, DOE will be able to look at the furnace as a whole and make necessary adjustments to testing and energy conservation during a single rulemaking review instead of executing its mandate piecemeal.

    B. The AFUE2 Test Procedure and Metric Will Increase Innovation

    As discussed above, the AFUE2 test metric combines three performance characteristics into a single measure. The current approach fragments furnace efficiency into three separate minimum requirements: stand-by/off mode, ventilation, and fuel efficiency. The practice of setting minimums for discrete characteristics of a single product is overly prescriptive; this approach drives product development in only one direction. Component level regulation restricts design choices between manufacturers. AFUE2 gives manufacturers more design flexibility on how they achieve overall energy savings. The AFUE2 test method and metric requires manufacturers to account for all three performance characteristics, but it promotes innovation by allowing for internal efficiency trade-offs at the product level. Product designers must be given license to develop better ways to save fuel and electricity while improving the quality and performance of the equipment. A combined metric saves energy without prescribing multiple engineering requirements.

    C. The Combined Metric Is Easier for Consumers To Use and Understand

    AFUE2 is easier for consumers to understand. It is difficult for the average consumer to distinguish between the fuel efficiency of a furnace, the electric efficiency of the furnace fans and the watts saved or lost during stand-by or off-mode. The average consumer considers three separate measures for a single product unnecessarily complex and unhelpful. A single metric will serve as an easy basis of comparison between all fuel furnace types. A simple label can concisely represent the single efficiency metric and provide approximate costs of operation, which is a chief concern of consumers.

    The AFUE2 test method and metric improves consumer utility of the efficiency information. Furnace manufacturers question the technical viability of the FER test procedure and metric. A separate regulation for ventilation energy disproportionately emphasizes the electrical consumption of a furnace, when the fuel consumption is much more significant to consumers. A representative proportion of energy use by both parts is described by AFUE2.

    IV. Metric Changes Require a Crosswalk

    AHRI requests that DOE adopt the AFUE2 test procedure pursuant to a notice-and-comment rulemaking. The Department has statutory authority to amend test procedures under 42 U.S.C. 6293(e) of EPCA. The statute prescribes steps to establish a crosswalk from the previous metric to the new metric. Specifically, EPCA states that DOE “shall determine, in the rulemaking carried out with respect to prescribing such procedure, to what extent, if any, the proposed test procedure would alter the measured energy efficiency . . . of a covered product as determined under the existing test procedure.”

    The transition from three independent metrics to one integrated product metric will demonstrably “alter the measured efficiency.” As such, DOE “shall amend the applicable energy conservation standard during the rulemaking carried out with respect to such test procedure. In determining the amended energy conservation standard, the Secretary shall measure, pursuant to the amended test procedure, the energy efficiency . . . of a representative sample of covered products that minimally comply with the existing standard. The average of such energy efficiency . . . determined under the amended test procedure shall constitute the amended conservation standard for the applicable covered products.”

    AHRI has begun analyzing testing data to assist in the development of the required crosswalk. A representative sample of furnaces that are “minimally compliant” with energy conservation minimums at each furnace product class will be tested, rated, and averaged. This average will provide a degradation factor that can be applied to all furnaces within that product class to ensure equivalence across product lines with the current AFUE metric. Uniquely, this particular crosswalk requires translation from three performance characteristics to one product efficiency measure, and each of those performance characteristic standards are currently further divided into separate product classes. It will likely be necessary to adjust the calculated baseline efficiencies to ensure that the maximum permissible energy use of the furnace reflects minimally compliant furnaces at each product class for each metric.

    For example, minimally compliant non-weatherized natural gas furnaces are currently rated with an AFUE of 80%. Based on preliminary estimates, after the application of the degradation factor, the baseline efficiencies for the AFUE2 rating is 77%.13 The FER and stand-by loss regulations also specify different product classes for which the minimally compliant product will also have to be measured and averaged. Using this data, the baseline minimum efficiencies can be adjusted upward to ensure all current energy use is appropriately captured. More testing is required to assign values to this methodology.

    13 The 3% degradation factor is based on preliminary findings. AHRI will provide more substantial testing to support a degradation factor as more tests are conducted. The preliminary value will likely change with more data.

    Crosswalks can create havoc in the market if not carefully executed. AHRI urges DOE to work with stakeholders to ensure a precise and simple transition from “AFUE + FER + Stand-by/off-mode” to “AFUE2.” For clarity, AHRI recommends that the baseline efficiency for translation is the AFUE minimum for each residential furnace product class. Maintaining the established product class structure for residential furnaces will have the least disruptive impact on the market. As described above, these baseline efficiencies can be adjusted to ensure that maximum energy use and minimum efficiencies remain steady, but the decades-old definitions and classifications remain constant for ease of market adoption.

    V. AHRI Requests a Prompt Response

    Finally, AHRI requests that DOE act promptly to initiate a notice-and-comment rulemaking to adopt the proffered test procedure and metric as soon as possible. The FER minimum efficiency standards go into effect in July of 2019, and DOE will have to expedite the release of a notice of proposed rulemaking to ensure that manufacturers do not have to comply with one metric and test procedure while preparing to comply with another. AHRI appreciates the consideration that DOE will give this petition and thanks the Department in advance for its attention to this petition.

    Signed,

    Caroline Davidson-Hood, General Counsel. Air-Conditioning, Heating, and Refrigeration Institute 2311 Wilson Boulevard, Suite 400 Arlington, Virginia 22201 [email protected] (703) 600-0383
    [FR Doc. 2018-24697 Filed 11-13-18; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 175, 176, 177, and 178 [Docket No. FDA-2018-F-3757] Flexible Vinyl Alliance; Filing of Food Additive Petition AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notification of petition.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is announcing that we have filed a petition, submitted by the Flexible Vinyl Alliance (FVA), requesting that we amend our food additive regulations to no longer provide for the use of 26 ortho-phthalates in various food-contact applications because these uses have been permanently abandoned.

    DATES:

    The food additive petition was filed on July 3, 2018. Submit either electronic or written comments by January 14, 2019.

    ADDRESSES:

    You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before January 14, 2019. The https://www.regulations.gov electronic filing system will accept comments until 11:59 p.m. Eastern Time at the end of January 14, 2019. Comments received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2018-F-3757 for “Flexible Vinyl Alliance; Filing of Food Additive Petition.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    Confidential Submissions: To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” We will review this copy, including the claimed confidential information, in our consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or comments received, go to https://www.regulations.gov and insert the docket number found in brackets in the heading of this document into the “Search” box and follow the prompts, and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Stephen DiFranco, Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-2710.

    SUPPLEMENTARY INFORMATION: I. Background

    Under section 409(b)(5) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 348(b)(5)), we are giving notice that we have filed a food additive petition (FAP 8B4820), submitted by FVA, c/o Keller and Heckman, LLP., 1001 G St. NW, Suite 500 West, Washington, DC 20001. The petition requests that we amend our food additive regulations in parts 175, 176, 177, and 178 (21 CFR parts 175, 176, 177, and 178) to revoke the approvals for 26 substances that the petition identifies as ortho-phthalates. The petition requests that we revoke the approvals because the food additive uses have been permanently abandoned. The substances affected by this petition and their corresponding Chemical Abstracts Service (CAS) numbers (when available) are listed in table 1. Some of the substances are the subject of approvals in multiple food additive regulations for different uses, and the petition identifies the regulations that authorize the food additive use of the substances. Therefore, we are also listing the regulations that would be affected by this FAP (see tables 2-19). For each regulation that would be affected, we list the specific ortho-phthalates that the regulation authorizes. The petition asserts that the uses of the ortho-phthalates identified in tables 2-19 have been abandoned. If the FAP is granted in full, none of the ortho-phthalates listed in table 1 would be authorized for food additive use in FDA's food additive regulations. Some of the substances are the subject of prior sanction authorizations. The FAP does not pertain to those prior sanction uses.

    Table 1—Ortho-Phthalates That Would Be Affected by This FAP Food Additive CAS No. Dimethyl phthalate (dimethyl orthophthalate) 131-11-3 Diphenyl phthalate 84-62-8 Methyl phthalyl ethyl glycolate (1,2-Benzenedicarboxylicacid, 1-(2-ethoxy-2-oxoethyl) 2-methyl ester) 85-71-2 Diethyl phthalate 84-66-2 Diphenylguanidine phthalate 1 17573-13-6 Ethyl phthalyl ethyl glycolate (Ethyl carbethoxymethyl phthalate) 84-72-0 Diallyl phthalate 131-17-9 Diisobutyl phthalate 84-69-5 Butyl benzyl phthalate 85-68-7 Di-n-butyl phthalate 84-74-2 Butyl phthalyl butyl glycolate 2 (Butyl carbobutoxymethyl phthalate) 85-70-1 Dihexyl phthalate (Di-n-hexyl phthalate) 84-75-3 Di(butoxyethyl) phthalate (Bis(2-n-butoxyethyl) phthalate) 117-83-9 Dimethylcyclohexyl phthalate 1322-94-7 Diisooctyl phthalate 27554-26-3 Dioctyl phthalate (Di-n-octyl phthalate) 117-84-0 Butyloctyl phthalate (n-butyl n-octyl phthalate) 84-78-6 Di(2-ethylhexyl) hexahydrophthalate 1 84-71-9 Amyl decyl phthalate (n-amyl n-decyl phthalate) 7493-81-4 Butyl decyl phthalate (n-butyl n-decyl phthalate) 89-19-0 Decyl octyl phthalate (Octyldecyl phthalate/n-octyl n-decyl phthalate) 119-07-3 Didecyl phthalate (Di-n-decyl phthalate) 84-77-5 Dodecyl phthalate 21577-80-0 Dihydroabietyl phthalate 26760-71-4 Castor oil phthalate, hydrogenated N/A Castor oil phthalate with adipic acid and fumaric acid-diethylene glycol 68650-73-7 1 We note that while these substances are not chemically classified as ortho-phthalates, they are included in FAP 8B4820. The FAP describes all of the substances as ortho-phthalates, although for these substances that characterization is incorrect. 2 Substance is named Butyl phthalate butyl glycolate in 21 CFR 175.105. We believe this is a typographical error, and it should be named butyl phthalyl butyl glycolate or butyl carbobutoxymethyl phthalate.

    The petition identifies § 175.105, “Adhesives” (21 CFR 175.105) as being impacted by the FAP. Specifically, the petition identifies the use of the substances listed in table 2 as being impacted.

    Table 2—Ortho-Phthalates Authorized by § 175.105 That Would Be Affected by This FAP [“Adhesives”] Food additive CAS No. Dimethyl phthalate (dimethyl orthophthalate) 131-11-3 Diphenyl phthalate 84-62-8 Methyl phthalyl ethyl glycolate (1,2Benzenedicarboxylicacid, 1-(2-ethoxy-2-oxoethyl) 2-methyl ester) 85-71-2 Diethyl phthalate 84-66-2 Ethyl phthalyl ethyl glycolate (Ethyl carbethoxymethyl phthalate) 84-72-0 Diallyl phthalate 131-17-9 Diisobutyl phthalate 84-69-5 Butyl benzyl phthalate 85-68-7 Di-n-butyl phthalate 1 84-74-2 Butyl phthalyl butyl glycolate (Butyl carbobutoxymethyl phthalate) 2 85-70-1 Dihexyl phthalate (Di-n-hexyl phthalate) 84-75-3 Di(butoxyethyl) phthalate (Bis(2-n-butoxyethyl) phthalate) 117-83-9 Diisooctyl phthalate 27554-26-3 Dioctyl phthalate (Di-n-octyl phthalate) 117-84-0 Butyloctyl phthalate (n-butyl n-octyl phthalate) 84-78-6 Di(2-ethylhexyl) hexahydrophthalate 84-71-9 Butyl decyl phthalate (n-butyl n-decyl phthalate) 3 89-19-0 Decyl octyl phthalate (Octyldecyl phthalate/n-octyl n-decyl phthalate) 119-07-3 Dihydroabietyl phthalate 26760-71-4 1 Although the petitioner refers to this substance as di-n-butyl phthalate in the petition, it is listed in § 175.105 as dibutyl phthalate. These terms are synonymous, referring to the same chemical substance. 2 Although the petitioner refers to this substance as Butyl phthalyl butyl glycolate phthalate in the petition, it is listed in § 175.105 as Butyl phthalate butyl glycolate. These terms are synonymous, referring to the same chemical substance. 3 Although the petitioner refers to this substance as Butyl decyl phthalate in the petition, it is listed in § 175.105 as Butyldecyl phthalate. These terms are synonymous, referring to the same chemical substance.

    The petition identifies § 175.300, “Resinous and polymeric coatings” (21 CFR 175.300), as being impacted by the FAP. Specifically, the petition identifies the use of the ortho-phthalates listed in table 3 as being impacted.

    Table 3—Ortho-Phthalates Authorized by § 175.300 That Would Be Affected by This FAP [“Resinous and polymeric coatings”] Food additive CAS No. Diethyl phthalate 84-66-2 Ethyl phthalyl ethyl glycolate (Ethyl carbethoxymethyl phthalate) 84-72-0 Di-n-butyl phthalate 1 84-74-2 Butyl phthalyl butyl glycolate (Butyl carbobutoxymethyl phthalate) 85-70-1 Diisooctyl phthalate 27554-26-3 1 Although the petitioner refers to this substance as di-n-butyl phthalate in the petition, it is listed in § 175.300 as dibutyl phthalate. These terms are synonymous, referring to the same chemical substance.

    The petition identifies § 175.320, “Resinous and polymeric coating for polyolefin films” (21 CFR 175.320), as being impacted by the FAP. Specifically, the petition identifies the use of the ortho-phthalates listed in table 4 as being impacted.

    Table 4—Ortho-phthalates Authorized by § 175.320 That Would Be Affected by This FAP [“Resinous and polymeric coatings for polyolefin films”] Food additive CAS No. Diethyl phthalate 84-66-2 Ethyl phthalyl ethyl glycolate (Ethyl carbethoxymethyl phthalate) 84-72-0 Butyl phthalyl butyl glycolate (Butyl carbobutoxymethyl phthalate) 85-70-1

    The petition identifies § 175.380, “Xylene-formaldehyde resins condensed with 4,4'-isopropylidenediphenol-epichlorohydrin epoxy resins” (21 CFR 175.380), as being impacted by the FAP. Specifically, the petition identifies the use of the ortho-phthalates listed in table 5 as being impacted. Although the regulation in § 175.380 does not directly refer to these ortho-phthalates, the regulation authorizes their use by cross-referencing § 175.300(b)(3). Although use of ortho-phthalates authorized by § 175.380 would be affected by the FAP, the FAP would not require the regulatory text in § 175.380 to be amended.

    Table 5—Ortho-Phthalates Authorized by § 175.380 That Would Be Affected by This FAP [“Xylene-formaldehyde resins condensed with 4,4'-isopropylidenediphenol-epichlorohydrin epoxy resins”] Food additive CAS No. Diethyl phthalate 84-66-2 Ethyl phthalyl ethyl glycolate (Ethyl carbethoxymethyl phthalate) 84-72-0 Di-n-butyl phthalate 1 84-74-2 Butyl phthalyl butyl glycolate (Butyl carbobutoxymethyl phthalate) 2 85-70-1 Diisooctyl phthalate 27554-26-3 1 Although the petitioner refers to this substance as di-n-butyl phthalate in the petition, it is listed in § 175.300(b)(3) as dibutyl phthalate. These terms are synonymous, referring to the same chemical substance.

    The petition identifies § 175.390, “Zinc-silicon dioxide matrix coatings” (21 CFR 175.390) as being impacted by the FAP. Specifically, the petition identifies the use of the ortho-phthalates listed in table 6 as being impacted by the FAP. Although the regulation in § 175.390 does not directly refer to these ortho-phthalates, the regulation authorizes their use by cross-referencing § 175.300. Although use of ortho-phthalates authorized by § 175.390 would be affected by the FAP, the FAP would not require the regulatory text in § 175.390 to be amended.

    Table 6—Ortho-Phthalates Authorized by § 175.390 That Would Be Affected by This FAP [“Zinc-silicon dioxide matrix coatings”] Food additive CAS No. Diethyl phthalate 84-66-2 Ethyl phthalyl ethyl glycolate (Ethyl carbethoxymethyl phthalate) 84-72-0 Di-n-butyl phthalate 1 84-74-2 Butyl phthalyl butyl glycolate (Butyl carbobutoxymethyl phthalate) 85-70-1 Diisooctyl phthalate 27554-26-3 1 Although the petitioner refers to this substance as di-n-butyl phthalate in the petition, it is listed in § 175.300 as dibutyl phthalate. These terms are synonymous, referring to the same chemical substance.

    The petition identifies § 176.170, “Components of paper and paperboard in contact with aqueous and fatty foods” (21 CFR 176.170) as being affected by the FAP. Specifically, the petition identifies the use of the ortho-phthalates listed in table 7 as being impacted.

    Table 7—Ortho-Phthalates Authorized by § 176.170 That Would Be Affected By This FAP [“Components of paper and paperboard in contact with aqueous and fatty foods”] Food additive CAS No. Butyl benzyl phthalate 1 85-68-7 Di-n-butyl phthalate 2 84-74-2 1 Although the petitioner refers to this substance as Butyl benzyl phthalate in the petition, it is listed in § 176.170 as Butylbenzyl phthalate. These terms are synonymous, referring to the same chemical substance. 2 Although the petitioner refers to this substance as di-n-butyl phthalate in the petition, it is listed in § 176.170 as dibutyl phthalate. These terms are synonymous, referring to the same chemical substance.

    The petition identifies § 176.180, “Components of paper and paperboard in contact with dry food” (21 CFR 176.180) as being impacted by the FAP. Specifically, the petition identifies the use of the ortho-phthalates listed in table 8 as being impacted. Although the regulation in § 176.180 does not directly refer to all of these ortho-phthalates, the regulation authorizes the use of all of them either directly or by cross-referencing § 176.170.

    Table 8—Ortho-Phthalates Authorized by § 176.180 That Would Be Affected by This FAP [“Components of paper and paperboard in contact with dry food”] Food additive CAS No. Diallyl phthalate 131-17-9 Butyl benzyl phthalate 85-68-7 Di-n-butyl phthalate 1 84-74-2 Didecyl phthalate (Di-n-decyl phthalate) 84-77-5 Dodecyl phthalate 21577-80-0 1 Although the petitioner refers to this substance as di-n-butyl phthalate in the petition, it is listed in § 176.170 as dibutyl phthalate. These terms are synonymous, referring to the same chemical substance.

    The petition identifies § 176.300, “Slimicides” (21 CFR 176.300), as being impacted by the FAP. Specifically, the petition identifies the ortho-phthalates listed in table 9 as being impacted, some of which are permitted as a result of being listed in §§ 176.170 and 176.180.

    Table 9—Ortho-Phthalates Authorized by § 176.300 That Would Be Affected by This FAP [“Slimicides”] Food additive CAS No. Diallyl phthalate 131-17-9 Butyl benzyl phthalate 85-68-7 Di-n-butyl phthalate 84-74-2 Didecyl phthalate (Di-n-decyl phthalate) 84-77-5 Dodecyl phthalate 21577-80-0

    The petition identifies § 177.1010, “Acrylic and modified acrylic plastics, semirigid and rigid” (21 CFR 177.1010) as being impacted by the FAP. Specifically, the petition identifies the use of the ortho-phthalate listed in table 10 as being impacted.

    Table 10—Ortho-Phthalates Authorized by § 177.1010 That Would Be Affected by This FAP [“Acrylic and modified acrylic plastics, semirigid and rigid”] Food additive CAS No. Dimethyl phthalate (dimethyl orthophthalate) 131-11-3

    The petition identifies § 177.1200, “Cellophane” (21 CFR 177.1200) as being impacted by the FAP. Specifically, the petition identifies the use of the ortho-phthalates listed in table 11 as being impacted.

    Table 11—Ortho-Phthalates Authorized by § 177.1200 That Would Be Affected by This FAP [“Cellophane”] Food additive CAS No. Diisobutyl phthalate 84-69-5 Di-n-butyl phthalate 1 84-74-2 Dimethylcyclohexyl phthalate 1322-94-7 Castor oil phthalate, hydrogenated N/A Castor oil phthalate with adipic acid and fumaric acid-diethylene glycol 68650-73-7 1 Although the petitioner refers to this substance as di-n-butyl phthalate in the petition, it is listed in § 177.1200 as dibutylphthalate. These terms are synonymous, referring to the same chemical substance.

    The petition identifies § 177.1210, “Closures with sealing gaskets for food containers” (21 CFR 177.1210), as being impacted by the FAP. Specifically, the petition identifies the first five ortho-phthalates listed in table 12 as being impacted based on the authorization of their use in § 177.1210. Although the regulation in § 177.1210 does not directly refer to these ortho-phthalates, the regulation authorizes their use by cross-referencing authorizations in 21 CFR parts 174-178 and § 179.45 (21 CFR 179.45). In addition to the first five ortho-phthalates in table 12 that the petition identifies as being authorized under § 177.1210, § 177.1210 also authorizes the use of the remaining substances that are listed in table 12. We have listed these remaining substances in table 12 because the petition seeks to revoke the food additive approvals for these substances, and § 177.1210 authorizes their food additive use by cross-referencing authorizations in parts 174-178 and § 179.45. Although use of the substances authorized by § 177.1210 that are listed in table 12 would be affected by the FAP, the FAP would not require the regulatory text in § 177.1210 to be amended.

    Table 12—Ortho-Phthalates Authorized by § 177.1210 That Would Be Affected by This FAP [“Closures with sealing gaskets for food containers”] Food additive CAS No. Diethyl phthalate 84-66-2 Ethyl phthalyl ethyl glycolate (Ethyl carbethoxymethyl phthalate) 84-72-0 Di-n-butyl phthalate 84-74-2 Butyl phthalyl butyl glycolate (Butyl carbobutoxymethyl phthalate) 85-70-1 Diisooctyl phthalate 27554-26-3 Dimethyl phthalate (dimethyl orthophthalate) 131-11-3 Diphenyl phthalate 84-62-8 Methyl phthalyl ethyl glycolate (1,2-Benzenedicarboxylicacid, 1-(2-ethoxy-2-oxoethyl) 2-methyl ester) 85-71-2 Diphenylguanidine phthalate 17573-13-6 Diallyl phthalate 131-17-9 Diisobutyl phthalate 84-69-5 Butyl benzyl phthalate 85-68-7 Dihexyl phthalate (Di-n-hexyl phthalate) 84-75-3 Di(butoxyethyl) phthalate (Bis(2-n-butoxyethyl) phthalate) 117-83-9 Dimethylcyclohexyl phthalate 1322-94-7 Dioctyl phthalate (Di-n-octyl phthalate) 117-84-0 Butyloctyl phthalate (n-butyl n-octyl phthalate) 84-78-6 Di(2-ethylhexyl) hexahydrophthalate 84-71-9 Amyl decyl phthalate (n-amyl n-decyl phthalate) 7493-81-4 Butyl decyl phthalate (n-butyl n-decyl phthalate) 89-19-0 Decyl octyl phthalate (Octyldecyl phthalate/n-octyl n-decyl phthalate) 119-07-3 Didecyl phthalate (Di-n-decyl phthalate) 84-77-5 Dodecyl phthalate 21577-80-0 Dihydroabietyl phthalate 26760-71-4 Castor oil phthalate, hydrogenated N/A Castor oil phthalate with adipic acid and fumaric acid-diethylene glycol 68650-73-7

    The petition identifies § 177.1400, “Hydoxyethyl cellulose film, water-insoluble” (21 CFR 177.1400), as being impacted by the FAP. Specifically, the petition identifies the use of the ortho-phthalates listed in table 13 as being impacted. Although the regulation in § 177.1400 does not directly refer to these ortho-phthalates, the regulation authorizes their use by cross-referencing § 177.1200(c). Although use of the ortho-phthalates authorized by § 177.1400 would be affected by the FAP, the FAP would not require the regulatory text in § 175.1400 to be amended.

    Table 13—Ortho-Phthalates Authorized by § 177.1400 That Would Be Affected by This FAP [“Hydroxyethyl cellulose film, water-insoluble”] Food additive CAS No. Diisobutyl phthalate 84-69-5 Di-n-butyl phthalate 1 84-74-2 Dimethylcyclohexyl phthalate 1322-94-7 Castor oil phthalate, hydrogenated N/A Castor oil phthalate with adipic acid and fumaric acid-diethylene glycol 68650-73-7 1 Although the petitioner refers to this substance as di-n-butyl phthalate in the petition, it is listed in § 177.1200 as dibutylphthalate. These terms are synonymous, referring to the same chemical substance.

    The petition identifies § 177.1460, “Melamine-formaldehyde resins in molded articles” (21 CFR 177.1460), as being impacted by the FAP. Specifically, the petition identifies the use of the ortho-phthalate listed in table 14 as being impacted.

    Table 14—Ortho-Phthalates Authorized by § 177.1460 That Would Be Affected by This FAP [“Melamine-formaldehyde resins in molded articles”] Food additive CAS No. Dioctyl phthalate (Di-n-octyl phthalate) 117-84-0

    The petition identifies § 177.1590, “Polyester elastomers” (21 CFR 177.1590), as being impacted by the FAP. Specifically, the petition identifies the use of the ortho-phthalate listed in table 15 as being impacted.

    Table 15—Ortho-Phthalates Authorized by § 177.1590 That Would Be Affected by This FAP [“Polyester elastomers”] Food additive CAS No. Dimethyl phthalate (dimethyl orthophthalate) 131-11-3

    The petition identifies § 177.2420, “Polyester resins, cross-linked” (21 CFR 177.2420), as being impacted by the FAP. Specifically, the petition identifies the use of the ortho-phthalates listed in table 16 as being impacted.

    Table 16—Ortho-Phthalates Authorized by § 177.2420 That Would Be Affected by This FAP [“Polyester resins, cross-linked”] Food additive CAS No. Dimethyl phthalate (dimethyl orthophthalate) 131-11-3 Butyl benzyl phthalate 85-68-7 Di-n-butyl phthalate 84-74-2 1 Although the petitioner refers to this substance as di-n-butyl phthalate in the petition, it is listed in § 177.2420 as dibutyl phthalate. These terms are synonymous, referring to the same chemical substance.

    The petition identifies § 177.2600, “Rubber articles for repeated use” (21 CFR 177.2600), as being impacted by the FAP. Specifically, the petition identifies the use of the substances listed in table 17 as being impacted.

    Table 17—Ortho-Phthalates Authorized by § 177.2600 That Would Be Affected by This FAP [“Rubber articles intended for repeated use”] Food additive CAS No. Diphenylguanidine phthalate 17573-13-6 Di-n-butyl phthalate 1 84-74-2 Dioctyl phthalate (Di-n-octyl phthalate) 117-84-0 Amyl decyl phthalate (n-amyl n-decyl phthalate) 7493-81-4 Decyl octyl phthalate (Octyldecyl phthalate/n-octyl n-decyl phthalate) 119-07-3 Didecyl phthalate (Di-n-decyl phthalate) 84-77-5 1 Although the petitioner refers to this substance as di-n-butyl phthalate in the petition, it is listed in § 177.1200 as dibutyl phthalate. These terms are synonymous, referring to the same chemical substance.

    The petition identifies § 178.3740, “Plasticizers in polymeric substances” (21 CFR 178.3740), as being impacted by the FAP. Specifically, the petition identifies the use of the ortho-phthalates listed in table 18 as being impacted.

    Table 18—Ortho-Phthalates Authorized by § 178.3740 That Would Be Affected by This FAP [“Plasticizers in polymeric substances”] Food additive CAS No. Diphenyl phthalate 84-62-8 Butyl benzyl phthalate 85-68-7 Dihexyl phthalate (Di-n-hexyl phthalate) 84-75-3

    The petition identifies § 178.3910, “Surface lubricants used in the manufacture of metallic articles” (21 CFR 178.3910), as being impacted by the FAP. Specifically, the petition identifies the use of the ortho-phthalate listed in table 19 as being impacted.

    Table 19—Ortho-Phthalates Authorized by § 178.3910 That Would Be Affected by This FAP [“Surface lubricants used in the manufacture of metallic articles”] Food additive CAS No. Diethyl phthalate 84-66-2 II. Abandonment

    Under section 409(i) of the FD&C Act, we shall by regulation prescribe the procedure by which regulations under the foregoing provisions of this section may be amended or repealed, and such procedure shall conform to the procedure provided in this section for the promulgation of such regulations. Our regulations specific to administrative actions for food additives provide that the Commissioner of Food and Drugs, on his own initiative or on the petition of any interested person, under 21 CFR part 10, may propose the issuance of a regulation amending or repealing a regulation pertaining to a food additive or granting or repealing an exception for such additive (§ 171.130(a) (21 CFR 171.130(a))). These regulations further provide that any such petition shall include an assertion of facts, supported by data, showing that new information exists with respect to the food additive or that new uses have been developed or old uses abandoned, that new data are available as to toxicity of the chemical, or that experience with the existing regulation or exemption may justify its amendment or appeal (§ 171.130(b)). New data must be furnished in the form specified in 21 CFR 171.1 and 171.100 for submitting petitions (id.). Under these regulations, a petitioner may propose that we amend a food additive regulation if the petitioner can demonstrate that there are “old uses abandoned” for the relevant food additive (id.). Such abandonment must be complete for any intended uses in the U.S. market. While section 409 of the FD&C Act and § 171.130 also provide for amending or revoking a food additive regulation based on safety, an amendment or revocation based on abandonment is not based on safety but is based on the fact that regulatory authorization is no longer necessary because the use of that food additive has been abandoned.

    Abandonment may be based on the abandonment of certain authorized food additive uses for a substance (e.g., if a substance is no longer used in certain product categories), or on the abandonment of all authorized food additive uses of a substance (e.g., if a substance is no longer being manufactured). If a FAP seeks an amendment to a food additive regulation based on the abandonment of certain uses of the food additive, such uses must be adequately defined so that both the scope of the abandonment and any amendment to the food additive regulation are clear.

    As support for the assertion that the food-contact use of the ortho-phthalates listed in the petition has been abandoned, the FAP includes the results of a survey petitioner sent to its members and other firms. The petitioner asked the recipients to verify that they do not:

    • Currently manufacture the ortho-phthalates listed in table 1 for use in food contact applications in the United States;

    • Currently import the ortho-phthalates listed in table 1 for use in food contact applications in the United States;

    • Intend to manufacture or import the ortho-phthalates listed in table 1 for use in food contact applications in the United States in the future;

    • Currently maintain any inventory of the ortho-phthalates listed in table 1 for sale or distribution into commerce that is intended to be marketed for use in food contact applications in the United States; or

    • Possess any knowledge that the ortho-phthalates listed in table 1 are used in food contact applications in the United States.

    The FAP describes the petitioner's members as including plasticizer manufacturers, compounders, formulators, molders and fabricators of polyvinyl chloride (PVC). The petition states that the surveys collected include the substantial majority of phthalate and PVC manufacturers, as well as the downstream compounders and users of the materials.

    In addition, the FAP states that petitioner has confirmed with other industry stakeholders that no entities appear to be using or marketing the ortho-phthalates listed in table 1 in the food-contact applications referenced in tables 2-19. The petition states that other industry stakeholders include members of: (1) The Plastics Industry Association's (PIA's) Food, Drug and Cosmetic Packaging Materials Committee, (2) the Adhesives and Sealants Council, (3) the American Beverage Association, (4) the American Forest and Paper Association, (5) the Grocery Manufacturers Association, and (6) the High Phthalates Panel of the American Chemistry Council. The petition states that no member companies from the organizations indicated that they had any knowledge that the regulatory clearances in tables 2-19 are relied upon for use of the ortho-phthalates listed in table 1. With regard to PIA, the petition states that PIA asked its member companies to advise whether they have any knowledge that the subject ortho-phthalates are being used in food-contact applications.

    The FAP states that the petition captures the substantial majority of domestic and international phthalate manufacturers and users.

    We expressly request comments on FVA's request that we amend §§ 175.105, 175.300, 175.320, 176.170, 176.180, 176.300, 177.1010, 177.1200, 177.1460, 177.1590, 177.2420, 177.2600, 178.3740, and 178.3910 of the food additive regulations to no longer permit the food additive use of the substances listed in table 1 because these uses have been abandoned. Although the regulatory text in §§ 175.380, 175.390, 177.1210, and 179.1400 would not be amended, these regulations would be affected because they authorize certain uses of substances listed in table 1 by cross-referencing other regulations. Accordingly, we request comments that address whether the use of the substances in table 1 (as authorized in the regulations identified in tables 2-19) have been completely abandoned. For example, we request information on whether food contact materials containing these substances are currently being introduced or delivered for introduction into the U.S. market. Any comments indicating that the specified uses of one or more of the 26 substances have not been abandoned should specify the ortho-phthalate(s) (or substances identified in the petition as ortho-phthalates). We also recommend including information about the use, any relevant regulation(s) authorizing the use, and a description of the product that contains the substance(s).

    We are currently unaware of information demonstrating the continued use of these substances in the food contact applications listed. We are providing the public 60 days to submit comments. We anticipate that some interested persons may wish to provide us with certain information they consider to be trade secret or confidential commercial information (CCI) under Exemption 4 of the Freedom of Information Act (5 U.S.C. 552). Interested persons may claim information that is submitted to us as CCI or trade secret by clearly marking both the document and the specific information as “confidential.” Information so marked will not be disclosed except in accordance with the Freedom of Information Act and our disclosure regulations (21 CFR part 20). For electronic submissions to https://www.regulations.gov, indicate in the “comments” box of the appropriate docket that your submission contains confidential information. Interested persons must also submit a copy of the comment that does not contain the information claimed as confidential for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice.

    We are not requesting comments on the safety of these uses of the substances in table 1 because such information is not relevant to abandonment, which is the basis of the proposed action. We will not consider any comments addressing safety in our evaluation of this FAP. In addition to our consideration of this petition, we are considering information on the safety of many of the ortho-phthalates listed in table 1 as part of our consideration of a petition designated for reference as FAP 6B4815 (see 81 FR 31877, May 20, 2016).

    The petitioner has claimed that this action is categorically excluded under 21 CFR 25.32(m) because the petition requests an action that would prohibit or otherwise restrict or reduce the use of a substance in food, food packaging, or cosmetics. In addition, the petitioner has stated that, to petitioner's knowledge, no extraordinary circumstances exist. If FDA determines a categorical exclusion applies, neither an environmental assessment nor an environmental impact statement is required. If FDA determines a categorical exclusion does not apply, we will request an environmental assessment and make it available for public inspection.

    Dated: November 6, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-24657 Filed 11-13-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Parts 630 and 635 [FHWA Docket No. FHWA-2018-0036] RIN 2125-AF84 Construction and Maintenance—Promoting Innovation in Use of Patented and Proprietary Products AGENCY:

    Federal Highway Administration (FHWA), Department of Transportation (DOT).

    ACTION:

    Notice of proposed rulemaking (NPRM); request for comments.

    SUMMARY:

    This rulemaking would provide greater flexibility to States to use proprietary or patented materials in Federal-aid projects. The FHWA is seeking comment on two alternate co-proposals to help advance this objective: First, FHWA proposes to amend and replace the requirements relating to patented and proprietary product approvals with a more flexible general requirement that enhances fairness, open competition, and transparency in the product selection process. Alternatively, the agency proposes rescinding the requirements, thereby encouraging further innovation in the development of new highway transportation technology and methods, as well as potentially reducing costs.

    DATES:

    Comments must be received on or before January 14, 2019. Late-filed comments will be considered to the extent practicable.

    ADDRESSES:

    To ensure that you do not duplicate your docket submissions, please submit them by only one of the following means:

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

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

    Hand Delivery: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. 5 p.m., Monday through Friday, except Federal holidays. The telephone number is (202) 366-9329.

    Instructions: You must include the agency name and docket number or the Regulatory Identification Number (RIN) for the rulemaking at the beginning of your comments. All comments received will be posted without change to www.regulations.gov, including any personal information provided.

    FOR FURTHER INFORMATION CONTACT:

    Mr. John Huyer, Office of Preconstruction, Construction and Pavements, (651) 291-6111 or, Mr. William Winne, Office of the Chief Counsel, (202) 366-1397, Federal Highway Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. Office hours are from 8 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal holidays.

    SUPPLEMENTARY INFORMATION: Electronic Access and Filing

    This document and all comments received may be viewed online through the Federal eRulemaking portal at http://www.regulations.gov. Electronic submission and retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days a year. Please follow the instructions. An electronic copy of this document may also be downloaded from the Office of the Federal Register's home page at: http://www.archives.gov/federal-register and the Government Publishing Office's web page at: http://www.thefederalregister.org/fdsys.

    Background

    There are differing practices across the United States on whether government entities may specify a patented material, article, or process in the letting of public works contracts through competitive bidding.1 Some jurisdictions prohibit the practice altogether on the grounds that it would inhibit competition, particularly where only one contractor can provide the specified material.2 Other jurisdictions allow the specification as long as the use of any other article equally as suitable is also allowed.3 The Federal government's regulations on direct procurement and the uniform regulations on Federal financial assistance take the latter approach.4 In the majority of States, however, the practice of specifying a patented product in government contracts is allowed.5

    1 See generally 10 McQuillin Mun. Corp. § 29.42 (3d ed.).

    2 Examples include Illinois, Indiana, Kentucky, Louisiana, Massachusetts, and Wisconsin.

    3 Examples include California, Iowa, New Jersey, and New York.

    4 See 48 CFR 52.211-6 and 2 CFR 200.319(a)(6).

    5 Examples include Arizona, Colorado, Connecticut, Florida, Idaho, Kansas, Maryland, Michigan, Montana, Nebraska, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, and Washington.

    The Federal-aid Road Act of 1916 (1916 Act) 6 was silent about patented and proprietary products but provided that Federal-aid funded State highway construction was “subject to the inspection and approval of the Secretary of Agriculture, and in accordance with the rules and regulation made pursuant to this Act.” 7

    6 1916 Act, ch. 241, 39 Stat. 355.

    7 The Office of Public Roads was the predecessor agency of FHWA and was part of the Department of Agriculture in 1916.

    Accordingly, regulations implementing the 1916 Act were issued on September 1, 1916. Regulation 8, Section 4 of those rules provided, “No part of the money apportioned under the act shall be used, directly or indirectly, to pay, or to reimburse a State, county, or local subdivision for the payment of any premium or royalty on any patented or proprietary material, specification, process, or type of construction, unless purchased or obtained on open actual competitive bidding at the same or a less cost than unpatented articles or methods equally suitable for the same purpose.” This regulation connected competitive bidding and lower cost to the restriction on the specification of proprietary products in Federal-aid contracts and has been a requirement of the Federal-aid highway program since its issuance.

    In the Federal Highway Act of 1938 (1938 Act), Congress established in statute a competition standard by requiring the Secretary to approve, in connection with federally aided State highway construction projects, “only such methods of bidding and such plans and specifications of highway construction . . . as will be effective in securing competition and conducive to safety, durability, and economy of maintenance.” 8 This legislation preceded the current statute codified at 23 U.S.C. 112(a).

    8 Public Law 75-584, 12, 52 Stat. 633, 636 (1938).

    During the debate related to the enactment of Section 13 of the 1938 Act, Congressman Whittington expressly tied the rule on proprietary products to the newly enacted statutory requirement for competitive bidding. “It says there shall be competitive bidding. This means that all types of roads conducive to safety, durability, and economy will be considered. This means that only plans, specifications, and methods that provide for competition will be approved. All will be given a square deal. No special method, no special material will be selected to the exclusion of other materials.” 9

    9 Daily Congressional Record, May 6, 1938, pp. 6383-6.

    In 1954, Congress explicitly required competitive bidding, while also providing a public interest exception, when it mandated that federally funded State highway construction work be “performed by contract awarded by competitive bidding under such procedures as may by regulations be prescribed by the Secretary . . . unless the Secretary . . . shall affirmatively find that, under the circumstances related to a given project, some other method is in the public interest.” 10 This legislation preceded the current statute codified at 23 U.S.C. 112(b)(1).

    10 Federal-aid Highway Act of 1954, Public Law 83-350, 17(a), 68 Stat. 70, 75 (1954).

    Over the years, the regulation was clarified through various policy and guidance memoranda, and subsequent Federal Register Notices, including 25 FR 4162 published on May 11, 1960. The regulatory language has received only relatively minor changes since that time.

    The current regulation at 23 CFR 635.411 seeks to promote competitive bidding by prohibiting FHWA participation in the cost of patented or proprietary products or materials except when: (1) Such patented or proprietary item is purchased or obtained through competitive bidding with equally suitable unpatented items; (2) a State Department of Transportation (State DOT) certifies either that such patented or proprietary item is essential for synchronization with existing highway facilities, or that no equally suitable alternate exists; or (3) a patented or proprietary item is used for research or for a distinctive type of construction on relatively short sections of road for experimental purposes. In addition, and also under the current regulation, States may specify a material or product based on a showing of public interest. Without using one of the exceptions described above, the State DOT may choose to use a particular patented or proprietary product, but FHWA funds may not participate in its cost. Patented and proprietary products are used widely on Federal-aid projects, through competition and where State DOTs apply one of the exceptions provided in 23 CFR 635.411.

    Many States have been delegated authority under 23 U.S.C. 106 to approve public interest findings without the direct involvement of FHWA. States retain the ability to apply the other exceptions (certification, research) provided under 23 CFR 635.411.

    Following its promulgation shortly after the inception of the Federal-aid road program in 1916, and even with the availability of exceptions, various stakeholders have criticized the regulation in 23 CFR 635.411 and its predecessors. Since 2005, FHWA has received inquiries and some expressions of concern from public agencies and industry about the perceived negative impact of the patented and proprietary products requirements in 23 CFR 635.411 on the development and use of new materials, equipment, or methods. Some claim the regulation has resulted in the unintended consequence of prohibiting the specification of innovative products on Federal-aid projects because the products were patented or proprietary. Others claim the requirements of 23 CFR 635.411 were unclear, were not being implemented uniformly, and resulted in barriers to the use of innovation in material and product selection on highway projects.

    On December 1, 2017, the American Road and Transportation Builders Association (ARTBA) submitted comments to the DOT's Federal Register Notice soliciting Regulatory Review ideas (82 FR 45750, October 2, 2017) (docket ID: DOT-OST-2017-0069-2774). On March 27, 2018, ARTBA submitted a Petition for Rulemaking to repeal the patented and proprietary materials requirements in 23 CFR 635.411. The ARTBA comments and Petition for Rulemaking are available for review on the docket for this rulemaking.

    General Discussion of the Proposed Action

    Ensuring competition and requiring low bid contracting in the Federal-aid highway program remain statutory duties of the Secretary. Statutory text codified at 23 U.S.C. 112(a) provides, “the Secretary shall require such plans and specifications and such methods of bidding as shall be effective in securing competition.” The statute also mandates that the Secretary ensure Federal-aid projects are performed pursuant to a contract awarded through competitive bidding to the lowest responsible bidder under 23 U.S.C. 112(b)(1). The regulation at 23 CFR 635.411 was promulgated to implement the statutory requirement to secure competition.

    The existing regulation could do more to provide States further opportunity to consider the use of innovative, proprietary, or patented materials in Federal-aid projects. The proposals contained in this NPRM would promote the benefits of innovation and new technology and afford the flexibility necessary to take advantage of technological advancements in highway transportation. Such added flexibility may also provide State DOTs an advantage by potentially obtaining highway materials or products at a lower price. Specifying a patented article in the solicitation materials may not, by itself, limit competition. Rather, this practice might encourage various bidders to offer lower prices in the competition to deliver needed materials and ultimately lead to a more cost effective use of Federal funds in the long-term.

    The FHWA believes most State DOTs utilize new product evaluation processes and approved product lists that provide fair and transparent procedures for the evaluation, selection, and use of materials, including patented and proprietary products.

    State DOTs are responsible for the effective and efficient use of Federal-aid funds, subject to the requirements of Federal law. The FHWA believes, absent the current Federal patented and proprietary products requirements, State DOTs may implement material selection procedures that ensure fair and open competition while allowing for, and encouraging, innovation. Nevertheless, the statutory requirements of 23 U.S.C. 112 for competition and competitive bidding continue to apply to Federal-aid assisted State contracts.

    Over the past century, States have assumed greater responsibility for Federal-aid project approval and oversight. For example, States may assume responsibility for “design, plans, specifications, estimates, contract awards, and inspection of projects” on the National Highway System (NHS), including the Interstate System, pursuant to 23 U.S.C. 106(c)(1). For projects that are not on the NHS, the States have assumed responsibility for those activities unless doing so would be inappropriate under 23 U.S.C. 106(c)(2). Providing State DOTs greater flexibility in the selection of products and materials used in Federal-aid projects may also be consistent with the provisions of 23 U.S.C. 106(c).

    Put in context, and pursuant to 23 U.S.C. 145, the Federal-aid highway program is a federally-assisted, State-administered program. To potentially reduce costs and allow greater flexibility for the States in considering innovative products or materials for use in Federal-aid projects, FHWA proposes to amend the requirements at 23 CFR 635.411 related to patented and proprietary product approval. The FHWA seeks comment on two proposals: (1) Amending section 635.411 to allow States to certify compliance with the fair and open competition requirements of 23 U.S.C. 112 in selecting materials in Federal-aid projects; or alternatively, (2) rescinding parts of section 635.411.

    Neither proposal would alter any requirements in the Manual on Uniform Traffic Control Devices found in 23 CFR part 655, subpart F.

    Section-by-Section Discussion Option 1: State Certification and Procedural Requirements

    Under Option 1, the existing regulatory requirements of 23 CFR 635.411(a)-(e) are being proposed for removal. The FHWA proposes replacing them with general certification requirements in new paragraphs 23 CFR 635.411(a) and 23 CFR 630.112(c)(6) to ensure competition in the selection of materials and products. This change would require a State DOT to: (1) Implement procedures and specifications that provide for fair, open, and transparent competition awarded only by contract to the lowest responsive bid submitted by a responsible bidder pursuant to 23 U.S.C. 112; and (2) certify that it adheres to those procedures and specifications. As mentioned above, FHWA believes that many States already have procedures in place that would comply with this proposed requirement. The requirement of 23 CFR 635.411(f) would be retained because it was implemented to fulfill the mandate of section 1525 of the Moving Ahead for Progress in the 21st Century Act (MAP-21). This section is not concerned with patented and proprietary products, but with material types for culverts and storm sewers.

    Option 2: Repeal of 23 CFR 635.411(a)-(e)

    Alternatively, FHWA proposes to rescind the current proprietary and patented materials requirements contained in current paragraphs (a) through (e) and change the title of section 635.411 to “Culvert and Storm Sewer Material Types.” Under its new title, the former paragraph (f) of section 635.411 would be retained to fulfill the mandate of section 1525 of MAP-21 for States to retain autonomy for the selection of culvert and storm sewer material types.

    Request for Comment

    The FHWA is seeking comment on these alternative proposals, including the potential effects of the alternative proposals for the patented and proprietary products rule. Therefore, comments are invited with respect to the following questions:

    (1) What are the challenges in incorporating patented and proprietary products into projects under the current regulatory process?

    (2) How does the current regulation hinder the incorporation of innovative or cost-effective safety and other products into projects?

    (3) How does the current regulation hinder the incorporation of proprietary products into projects?

    (4) How would the proposals support or deter deployment of innovative or cost-effective products on projects? Could the proposals result in any unintended consequences that might deter such deployment?

    (5) How could the proposals to allow specification of patented and proprietary products be implemented consistent with existing competition and low bid requirements?

    (6) If FHWA rescinds the rule, what standards should FHWA rely on to determine if a State's specification of a patented or proprietary product violates the competition mandate in 23 U.S.C. 112? For example, should FHWA rely on the standard found in the Office of Management and Budget's (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards at 2 CFR 200.319(a)(6)? OMB's regulations at Part 200 provide a governmentwide framework for grants management, and 2 CFR 200.319(a)(6) describes seven situations considered to be restrictive of competition.11

    11 The regulations at 2 CFR 200.319(a)(6) describes some situations considered to be restrictive of competition, including: (1) Placing unreasonable requirements on firms in order for them to qualify to do business; (2) requiring unnecessary experience and excessive bonding; (3) noncompetitive pricing practices between firms or between affiliated companies; (4) Noncompetitive contracts to consultants that are on retainer contracts; (5) organizational conflicts of interest; (6) specifying only a “brand name” product instead of allowing “an equal” product to be offered and describing the performance or other relevant requirements of the procurement; and (7) any arbitrary action in the procurement process.

    (7) What positive or negative consequences might result from implementation of the proposals? Could the proposals result in potential costs or cost savings? If so, please describe the costs or cost savings and provide data to support these estimates. What might be the effects of the proposals on transparency in the materials selection process?

    (8) What positive or negative consequences might affect small businesses that do not have the same marketing resources as larger firms?

    (9) What differences in effects and compliance, if any, could result from the two alternative proposals?

    (10) What is the difference between the number of proprietary products used on State and Federal-funded projects?

    (11) Do the States follow rules or processes on State-funded projects similar to the Federal process embodied in section 635.411?

    Rulemaking Analyses and Notices Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), Executive Order 13771 (Reducing Regulations and Controlling Regulatory Costs), and DOT Regulatory Policies and Procedures

    The FHWA has determined that this action would not be a significant regulatory action within the meaning of Executive Order (E.O.) 12866, and within the meaning of the U.S. Department of Transportation's regulatory policies and procedures. This action complies with EOs 12866, 13563, and 13771 to improve regulation. The FHWA anticipates that the economic impact of this rulemaking would be minimal. The FHWA anticipates that the proposed rule would not adversely affect, in a material way, any sector of the economy. In addition, these changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs.

    Although FHWA has determined that this action would not be a significant regulatory action, this proposed rule is expected to be an E.O. 13771 deregulatory action. This proposal could generate cost savings that are applicable to offsetting the costs associated with other regulatory actions as required by E.O. 13771. The FHWA has determined the cost savings of both proposed options are nearly the same. These cost savings, measured in 2018 dollars, are expected to be $313,848 per year.

    The cost savings resulting from this proposed regulatory action result from reduced administrative burden associated with the efforts by the States and FHWA related to the existing methods for approving patented and proprietary materials.

    Currently there are three methods available to approve specific patented and proprietary products for use on Federal aid highway construction projects: 12

    12https://www.fhwa.dot.gov/programadmin/contracts/011106qa.cfm#_Hlk307505978.

    1. Certification: A certification is the written and signed statement of an appropriate contracting agency official certifying that a particular patented or proprietary product is either:

    a. Necessary for synchronization with existing facilities; or

    b. A unique product for which there is no equally suitable alternative.

    2. Experimental Products: If a contracting agency requests to use a proprietary product for research or for a distinctive type of construction on a relatively short section of road for experimental purposes, it must submit an experimental product work plan for review and approval. The work plan should provide for the evaluation of the proprietary product, and where appropriate, a comparison with current technology.

    3. Public Interest Finding (PIF): A PIF is an approval by the FHWA Division Administrator, based on a request from a contracting agency that it is in the public interest to allow the contracting agency to require the use of a specific material or product even though other equally acceptable materials or products are available.

    To estimate the cost savings from removing the need for the above categories of approvals, FHWA estimated the number of new approvals that would be generated in the future in the above categories if the rule does not change as a baseline scenario and compared it to a scenario with the proposed rule. The estimated number of new approvals per year is multiplied by the estimated number of hours required to process the documentation for that specific type of approval (including conducting analysis and documenting methods and results) by the appropriate labor cost (wage rate multiplied by a factor to account for employer provided benefits). Currently, the work related to approvals is conducted by both FHWA and State agencies because, in some cases, FHWA has delegated authority to States via stewardship and oversight agreements for such issues. In addition to the time required to process the approvals, time is also required by FHWA to review the resulting documentation. Finally, both of those activities require a small time allowance for management of the process.

    Under the proposed rule, the costs associated with approvals for patented and proprietary materials may not be completely removed. This is because a number of States are known (according to information from FHWA Division offices) to have their own laws or policies that are similar to the FHWA requirements. Absent other information, this analysis assumes those State laws or policies would remain in place even after an FHWA rule change. For those States, this analysis assumes that the total number of hours associated with processing and managing approvals would remain unchanged but that the work would be conducted solely by State agency staff (rather than a mix of State and FHWA staff as is assumed in the baseline calculations) and that time spent on FHWA review would no longer be needed.

    In addition to the cost savings that have been quantified here, there may be additional positive impacts from the rulemaking related to supporting the adoption of patented and proprietary products. Although FHWA has undertaken various efforts to grant States the flexibility to use such products, to the extent that the current rules and guidance discourage their use, the proposed rule removes those barriers. In the short term, this could lead to States paying more for proprietary and patented products if certain products are specified in Federal-aid contracts. However, ARTBA, in its petition for repeal, states that such products could “save lives, minimize congestion, and otherwise improve the quality of our nation's highways.” 13 Thus, there may be benefits associated with greater adoption of existing products. An increase in the willingness to adopt patented and proprietary products may have secondary impacts and spur additional innovation if product developers perceive there to be a larger market for new products. Those potential benefits from additional innovation have not been quantified in this analysis.

    13 ARTBA, “Petition for Rulemaking to Repeal the Proprietary and Patented Products Rule 23 CFR 635.411”, March 27, 2018.

    The public is invited to comment and provide information related to any aspect of this estimation of cost savings.

    Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), the FHWA has evaluated the effects of this action on small entities and has determined that the action is not anticipated to have a significant economic impact on a substantial number of small entities. The proposed amendment addresses obligation of Federal funds to States for Federal-aid highway projects. As such, it affects only States and States are not included in the definition of small entity set forth in 5 U.S.C. 601. Therefore, the Regulatory Flexibility Act does not apply, and FHWA certifies that the proposed action will not have a significant economic impact on a substantial number of small entities.

    Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, March 22, 1995) as it will not result in the expenditure by State, local, Tribal governments, in the aggregate, or by the private sector, of $155 million or more in any 1 year (2 U.S.C. 1532 et seq.). Additionally, the definition of “Federal mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or Tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program permits this type of flexibility.

    Executive Order 13132 (Federalism)

    This proposed action has been analyzed in accordance with the principles and criteria contained in E.O. 13132 dated August 4, 1999, and FHWA has determined that this proposed action would not have a substantial direct effect or sufficient federalism implications on the States. The FHWA has also determined that this proposed action would not preempt any State law or regulation or affect the States' ability to discharge traditional State governmental functions.

    Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.

    Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et. seq.), Federal agencies must obtain approval from OMB for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that the proposed rule does not contain collection of information requirements for the purposes of the PRA. Any action that might be contemplated in subsequent phases of this proceeding will be analyzed for the purpose of the Paperwork Reduction Act for its impact.

    National Environmental Policy Act

    The FHWA has analyzed this action for the purpose of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.), and has determined that this action would not have any effect on the quality of the environment and meets the criteria for the categorical exclusion at 23 CFR 771.117(c)(20).

    Executive Order 12630 (Taking of Private Property)

    The FHWA has analyzed this proposed rule under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. The FHWA does not anticipate that this proposed action would affect a taking of private property or otherwise have taking implications under E.O. 12630.

    Executive Order 12988 (Civil Justice Reform)

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

    Executive Order 13045 (Protection of Children)

    We have analyzed this rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this proposed action would not cause an environmental risk to health or safety that might disproportionately affect children.

    Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under E.O. 13175, dated November 6, 2000, and believes that the proposed action would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian Tribal governments; and would not preempt Tribal laws. The proposed rulemaking addresses obligations of Federal funds to States for Federal-aid highway projects and would not impose any direct compliance requirements on Indian Tribal governments. Therefore, a Tribal summary impact statement is not required.

    Executive Order 13211 (Energy Effects)

    We have analyzed this action under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The FHWA has determined that this is not a significant energy action under that order since it is not a significant regulatory action under E.O. 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.

    Regulation Identification Number

    A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

    List of Subjects 23 CFR Part 630

    Grant programs, transportation, highways and roads.

    23 CFR Part 635

    Construction materials, Design-build, Grant programs, transportation, highways and roads.

    Issued on: November 6, 2018. Brandye L. Hendrickson, Deputy Administrator, Federal Highway Administration. Option 1

    In consideration of the foregoing, FHWA proposes to amend title 23, Code of Federal Regulations, parts 630 and 635 as follows:

    PART 630—PRECONSTRUCTION PROCEDURES Subpart A—Project Authorization and Agreements 1. The authority citation for part 630 continues to read as follows: Authority:

    23 U.S.C. 106, 109, 112, 115, 315, 320, and 402(a); Sec. 1501 and 1503 of Pub. L. 109-59, 119 Stat. 1144; Pub. L. 105-178, 112 Stat. 193; Pub. L. 104-59, 109 Stat. 582; Pub. L. 97-424, 96 Stat. 2106; Pub. L. 90-495, 82 Stat. 828; Pub. L. 85-767, 72 Stat. 896; Pub. L. 84-627, 70 Stat. 380; 23 CFR 1.32 and 49 CFR 1.48(b), and Pub. L. 112-141, 126 Stat. 405, section 1303.

    2. Amend § 630.112 by adding paragraph (c)(6) as follows:

    (c) * * *

    (6) Competition in Products Certification—By signing the project agreement, the State Department of Transportation (State DOT) agrees to abide by and certify that its product evaluation and selection process, and the specifications used for Federal-aid projects, will provide for fair, open, and transparent competition awarded only by contract to the lowest responsive bid submitted by a responsible bidder pursuant to 23 U.S.C. 112. By signing the project agreement, the State DOT is providing the certification required in 23 CFR 635.411(a).

    PART 635—CONSTRUCTION AND MAINTENANCE Subpart D—General Material Requirements 1. The authority citation for part 635 continues to read as follows: Authority:

    Sections 1525 and 1303 of Pub. L. 112-141, Sec. 1503 of Pub. L. 109-59, 119 Stat. 1144; 23 U.S.C. 101 (note), 109, 112, 113, 114, 116, 119, 128, and 315; 31 U.S.C. 6505; 42 U.S.C. 3334, 4601 et seq.; Sec. 1041(a), Pub. L. 102-240, 105 Stat. 1914; 23 CFR 1.32; 49 CFR 1.85(a)(1).

    2. Revise § 635.411 to read as follows:
    § 635.411 Material or product selection.

    (a) As a condition of receiving Federal-aid funds, the State Department of Transportation (State DOT) certifies that its product evaluation process and the specifications used for Federal-aid projects will provide for fair, open, and transparent competition pursuant to 23 CFR 630.112(c)(6).

    (b) State DOTs shall have the autonomy to determine culvert and storm sewer material types to be included in the construction of a project on a Federal-aid highway.

    Option 2

    In consideration of the foregoing, FHWA proposes to revise title 23, Code of Federal Regulations, part 635 as follows:

    PART 635—CONSTRUCTION AND MAINTENANCE Subpart D—General Material Requirements 1. The authority citation for part 635 continues to read as follows: Authority:

    Sections 1525 and 1303 of Pub. L. 112-141, Sec. 1503 of Pub. L. 109-59, 119 Stat. 1144; 23 U.S.C. 101 (note), 109, 112, 113, 114, 116, 119, 128, and 315; 31 U.S.C. 6505; 42 U.S.C. 3334, 4601 et seq.; Sec. 1041(a), Pub. L. 102-240, 105 Stat. 1914; 23 CFR 1.32; 49 CFR 1.85(a)(1).

    2. Revise § 635.411 to read as follows:
    § 635.411 Culvert and Storm Sewer Material Types.

    State Departments of Transportation (State DOTs) shall have the autonomy to determine culvert and storm sewer material types to be included in the construction of a project on a Federal-aid highway.

    [FR Doc. 2018-24687 Filed 11-13-18; 8:45 am] BILLING CODE 4910-22-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-107813-18] RIN-1545-BO82 Hardship Distributions of Elective Contributions, Qualified Matching Contributions, Qualified Nonelective Contributions, and Earnings AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    This document contains proposed amendments to the regulations relating to hardship distributions from section 401(k) plans. The amendments reflect statutory changes affecting section 401(k) plans, including recent changes made by the Bipartisan Budget Act of 2018. These regulations would affect participants in, beneficiaries of, employers maintaining, and administrators of plans that contain cash or deferred arrangements or provide for employee or matching contributions.

    DATES:

    Comments and requests for a public hearing must be received by January 14, 2019.

    ADDRESSES:

    Send submissions to CC:PA:LPD:PR (REG-107813-18) Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-107813-18), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW, Washington, DC 20224, or sent electronically via the Federal eRulemaking Portal at www.regulations.gov/ (indicate IRS and REG-107813-18).

    FOR FURTHER INFORMATION CONTACT:

    Concerning the proposed regulations, Roger Kuehnle at (202) 317-6060 or; concerning submissions of comments, the hearing, or to be placed on the building access list to attend the hearing, Regina L. Johnson at (202) 317-6901 (not toll-free numbers).

    SUPPLEMENTARY INFORMATION: Paperwork Reduction Act

    The collection of information contained in this notice of proposed rulemaking will be submitted, under approval number 1545-1669, to the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collection of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of information should be received by January 14, 2019. Comments are specifically requested concerning:

    Whether the proposed collection of information is necessary for the proper performance of the functions of the IRS, including whether the information will have practical utility;

    The accuracy of the estimated burden associated with the proposed collection of information;

    How the quality, utility, and clarity of the information to be collected may be enhanced;

    How the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and

    Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.

    The collection of information in this proposed regulation is in § 1.401(k)-1(d)(3)(iii)(B). The collection of information relates to the certification by participants in section 401(k) plans that they have insufficient cash or other liquid assets to cover expenses resulting from a hardship and, thus, will need a distribution from the plan to meet the expenses. The collections of information are required to obtain a benefit.

    The likely recordkeepers are individuals.

    Estimated total annual reporting burden: 101,250 hours.

    Estimated average annual burden per respondent: 45 minutes.

    Estimated number of respondents: 135,000.

    Estimated frequency of responses: On occasion.

    An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.

    Background Section 401(k)

    Section 401(k)(1) of the Internal Revenue Code (Code) provides that a profit-sharing, stock bonus, pre-ERISA money purchase, or rural cooperative plan will not fail to qualify under section 401(a) merely because it contains a cash or deferred arrangement (CODA) that is a qualified CODA. Under section 401(k)(2), a CODA (generally, an arrangement providing for an election by an employee between contributions to a plan or payments directly in cash) constitutes a qualified CODA only if it satisfies certain requirements. Section 401(k)(2)(B) provides that contributions made pursuant to a qualified CODA (referred to as “elective contributions”) may be distributed only on or after the occurrence of certain events, including death, disability, severance from employment, termination of the plan, attainment of age 59-1/2, hardship, or, in the case of a qualified reservist distribution, the date a reservist is called to active duty. Section 401(k)(2)(C) requires that elective contributions be nonforfeitable at all times.

    Section 401(k)(3)(A)(ii) requires that elective contributions satisfy the actual deferral percentage (ADP) test set forth in section 401(k)(3). Sections 401(k)(11), 401(k)(12), and 401(k)(13) each provide an alternative method of meeting the ADP test. Under section 401(k)(3)(D), qualified nonelective contributions (QNECs) and qualified matching contributions (QMACs), as described in sections 401(m)(4)(C) and 401(k)(3)(D)(ii)(I), respectively, are permitted to be taken into account under the ADP test. Among other requirements, QNECs and QMACs must satisfy the distribution limitations of section 401(k)(2)(B) and the nonforfeitability requirements of section 401(k)(2)(C). Similarly, employer contributions that are made pursuant to the safe harbor plan designs of section 401(k)(12) or (13) must meet the distribution limitations of section 401(k)(2)(B).

    Section 401(m)(2)(A) requires that matching contributions and employee contributions satisfy the actual contribution percentage (ACP) test set forth in section 401(m)(2). Sections 401(m)(10), 401(m)(11), and 401(m)(12) each provide an alternative method of meeting the ACP test with respect to matching contributions. As with contributions made to section 401(k) plans pursuant to safe harbor plan designs, employer contributions made pursuant to the safe harbor plan designs of section 401(m)(11) or (12) must meet the distribution limitations of section 401(k)(2)(B).

    The Department of the Treasury (Treasury Department) and the IRS issued comprehensive final regulations under sections 401(k) and 401(m) on December 29, 2004 (TD 9169, 69 FR 78143). Since that time, the regulations have been updated to reflect certain subsequent changes to the applicable statute (see TD 9237, 71 FR 6, and TD 9324, 72 FR 21103, providing guidance on designated Roth contributions under section 402A; and TD 9447, 74 FR 8200, providing guidance on section 401(k)(13)). However, the regulations have not been updated to reflect other statutory changes. The regulations have been amended to address other specific issues (see TD 9319, 72 FR 16878, relating to the definition of compensation; TD 9641, 78 FR 68735, relating to mid-year amendments to safe harbor plan designs; and TD 9835, 83 FR 34469, relating to whether QNECs and QMACs must be nonforfeitable when contributed to the plan).

    Section 1.401(k)-1(d)(3) provides rules for determining whether a distribution is made on account of an employee's hardship. Under those rules, a distribution is made on account of hardship only if the distribution is made on account of an immediate and heavy financial need and the amount of the distribution is not in excess of the amount necessary to satisfy that need (plus any amounts necessary to pay any taxes or penalties reasonably anticipated to result from the distribution). These determinations must be made on the basis of all the relevant facts and circumstances and in accordance with nondiscriminatory and objective standards set forth in the plan.

    Section 1.401(k)-1(d)(3)(iv)(B) provides that a distribution is not treated as necessary to satisfy an immediate and heavy financial need of an employee to the extent the need may be relieved from other resources that are reasonably available to the employee. Under § 1.401(k)-1(d)(3)(iv)(C), in determining whether the need can be relieved from other resources that are reasonably available to an employee, the employer may rely on the employee's representation (unless the employer has actual knowledge to the contrary) that the need cannot reasonably be relieved from resources specified in § 1.401(k)-1(d)(3)(iv)(C).

    To simplify administration, the regulations provide certain safe harbors that may be used to determine whether a distribution is made on account of an employee's hardship. Specifically, § 1.401(k)-1(d)(3)(iii)(B) provides a safe harbor under which distributions for six types of expenses are deemed to be made on account of an immediate and heavy financial need. One of the six types is “expenses for the repair of damage to the employee's principal residence that would qualify for the casualty deduction under section 165 (determined without regard to whether the loss exceeds 10% of adjusted gross income).”

    In addition, § 1.401(k)-1(d)(3)(iv)(E) provides a safe harbor under which a distribution is deemed necessary to satisfy an immediate and heavy financial need. Under that safe harbor, an employee must first obtain all currently available distributions (including distributions of employee stock ownership plan (ESOP) dividends under section 404(k), but not hardship distributions), and nontaxable plan loans from the plan and any other plan maintained by the employer. Under the safe harbor, an employee's ability to make elective contributions and employee contributions to the plan (and any other plan maintained by the employer) must be suspended for at least 6 months after receipt of the hardship distribution. Pursuant to § 1.401(k)-3(c)(6)(v)(B), in the case of a safe harbor plan described in section 401(k)(12) or (13), the suspension period may not exceed 6 months.

    Under § 1.401(k)-1(d)(3)(ii), the maximum amount that may be distributed on account of hardship is the total of the employee's elective contributions that have not previously been distributed (plus earnings, QNECs, and QMACs credited before a specified grandfather date that generally is before 1989). Thus, the maximum amount that may be distributed on account of hardship does not include earnings, QNECs, or QMACs that are not grandfathered.

    Section 403(b)

    Section 403(b)(7)(A)(ii) provides distribution limitations on amounts contributed to a custodial account that is treated as a section 403(b) annuity contract. Section 403(b)(11) provides that contributions made pursuant to a salary reduction agreement (within the meaning of section 402(g)(3)(C)) (generally referred to in the regulations under section 403(b) as “section 403(b) elective deferrals”) may be distributed only on or after the occurrence of certain events, one of which is the employee's hardship. Section 403(b)(11) also provides that no income attributable to these contributions may be distributed on account of hardship.

    Section 1.403(b)-6 provides rules for applying these distribution limitations. Section 1.403(b)-6(b) applies to distributions of amounts that are neither attributable to section 403(b) elective deferrals nor made from custodial accounts, § 1.403(b)-6(c) applies to distributions from custodial accounts that are not attributable to section 403(b) elective deferrals, and § 1.403(b)-6(d) applies to distributions of amounts attributable to section 403(b) elective deferrals. Section 1.403(b)-6(d)(2) provides that a hardship distribution of section 403(b) elective deferrals is subject to the rules and restrictions set forth in § 1.401(k)-1(d)(3) and is limited to the aggregate dollar amount of a participant's section 403(b) elective deferrals, without earnings thereon.

    Statutory Changes Relating to Section 401(k)

    Section 41113 of the Bipartisan Budget Act of 2018, Public Law 115-123 (BBA 2018), directs the Secretary of the Treasury to modify § 1.401(k)-1(d)(3)(iv)(E) to (1) delete the 6-month prohibition on contributions following a hardship distribution, and (2) make any other modifications necessary to carry out the purposes of section 401(k)(2)(B)(i)(IV). Section 41114 of BBA 2018 modifies the hardship distribution rules under section 401(k)(2)(B) by adding section 401(k)(14)(A) to the Code, which states that the maximum amount available for distribution upon hardship includes (i) contributions to a profit-sharing or stock bonus plan to which section 402(e)(3) applies, (ii) QNECs, (iii) QMACs, and (iv) earnings on these contributions. Section 41114 of BBA 2018 also adds section 401(k)(14)(B) to the Code, which provides that a distribution is not treated as failing to be made upon the hardship of an employee solely because the employee does not take any available loan under the plan.

    Section 11044 of the Tax Cuts and Jobs Act, Public Law 115-97 (TCJA), added section 165(h)(5) to the Code. Section 165(h)(5) provides that, for taxable years 2018 through 2025, the deduction for a personal casualty loss generally is available only to the extent the loss is attributable to a federally declared disaster (as defined in section 165(i)(5)).

    Section 826 of the Pension Protection Act of 2006, Public Law 109-280 (PPA ‘06), directs the Secretary of the Treasury to modify the rules relating to hardship distributions to permit a section 401(k) plan to treat a participant's beneficiary under the plan the same as the participant's spouse or dependent in determining whether the participant has incurred a hardship. Notice 2007-07, 2007-5 I.R.B. 395, provides guidance for applying this provision.

    Section 827(a) of PPA ‘06 added to the Code section 72(t)(2)(G), which exempts certain distributions from the application of the section 72(t) additional income tax on early distributions. These distributions, referred to as “qualified reservist distributions,” include distributions attributable to elective contributions that are made during the period that a reservist has been called to active duty. Section 827(b)(1) of PPA ‘06 added section 401(k)(2)(B)(i)(V) to the Code, which permits qualified reservist distributions to be made from a section 401(k) plan.1

    1 While section 827(b)(2) and (3) of PPA ‘06 amended sections 403(b)(7)(A)(ii) and 403(b)(11) to permit qualified reservist distributions to be made from a section 403(b) plan, the regulations under section 403(b) have not yet been updated to reflect these statutory amendments.

    Section 105(b)(1)(A) of the Heroes Earnings Assistance and Relief Tax Act of 2008, Public Law 110-245 (HEART Act), added section 414(u)(12) to the Code. Section 414(u)(12)(B)(ii) provides for a 6-month suspension of elective contributions and employee contributions after certain distributions to individuals performing service in the uniformed services.

    Explanation of Provisions Overview

    These proposed regulations update the section 401(k) and (m) regulations to reflect: (1) The enactment of (a) sections 41113 and 41114 of BBA 2018, (b) sections 826 and 827 of PPA '06, and (c) section 105(b)(1)(A) of the HEART Act; and (2) the application of the hardship distribution rules in light of the modification to the casualty loss deduction rules made by section 11044 of the TCJA.

    Deemed Immediate and Heavy Financial Need

    The proposed regulations modify the safe harbor list of expenses in current § 1.401(k)-1(d)(3)(iii)(B) for which distributions are deemed to be made on account of an immediate and heavy financial need by: (1) Adding “primary beneficiary under the plan” as an individual for whom qualifying medical, educational, and funeral expenses may be incurred; (2) modifying the expense listed in § 1.401(k)-1(d)(3)(iii)(B)(6) (relating to damage to a principal residence that would qualify for a casualty deduction under section 165) to provide that for this purpose the new limitations in section 165(h)(5) (added by section 11044 of the TCJA) do not apply; and (3) adding a new type of expense to the list, relating to expenses incurred as a result of certain disasters. This new safe harbor expense is similar to relief given by the IRS after certain major federally declared disasters, such as the relief relating to Hurricane Maria and California wildfires provided in Announcement 2017-15, 2017-47 I.R.B. 534, and is intended to eliminate any delay or uncertainty concerning access to plan funds following a disaster that occurs in an area designated by the Federal Emergency Management Agency (FEMA) for individual assistance.

    Distribution Necessary To Satisfy Financial Need

    Pursuant to BBA 2018 sections 41113 and 41114, the proposed regulations modify the rules for determining whether a distribution is necessary to satisfy an immediate and heavy financial need by eliminating (1) any requirement that an employee be prohibited from making elective contributions and employee contributions after receipt of a hardship distribution, and (2) any requirement to take plan loans prior to obtaining a hardship distribution. In particular, the proposed regulations eliminate the safe harbor in current § 1.401(k)-1(d)(3)(iv)(E), under which a distribution is deemed necessary to satisfy the financial need only if elective contributions and employee contributions are suspended for at least 6 months after a hardship distribution is made and, if available, nontaxable plan loans are taken.

    In addition, the proposed regulations eliminate the rules in current § 1.401(k)-1(d)(3)(iv)(B) (under which the determination of whether a distribution is necessary to satisfy a financial need is based on all the relevant facts and circumstances) and provide one general standard for determining whether a distribution is necessary. Under this general standard, a hardship distribution may not exceed the amount of an employee's need (including any amounts necessary to pay any federal, state, or local income taxes or penalties reasonably anticipated to result from the distribution), the employee must have obtained other available distributions under the employer's plans, and the employee must represent that he or she has insufficient cash or other liquid assets to satisfy the financial need. A plan administrator may rely on such a representation unless the plan administrator has actual knowledge to the contrary. In light of the timing of the publication of these proposed regulations, the requirement to obtain this representation would only apply for a distribution that is made on or after January 1, 2020.

    The proposed regulations clarify that a plan generally may provide for additional conditions, such as those described in 26 CFR 1.401(k)-1(d)(3)(iv)(B) and (C) (revised as of April 1, 2018) or, for distributions made before January 1, 2020, the representation described in the preceding paragraph, to demonstrate that a distribution is necessary to satisfy an immediate and heavy financial need of an employee. To implement Congress' purpose in enacting section 41113 of BBA 2018 (for example, Congress' concern that a suspension impedes an employee's ability to replace distributed funds), the proposed regulations do not permit a plan to provide for a suspension of elective contributions or employee contributions as a condition of obtaining a hardship distribution. However, in light of the timing of the publication of these proposed regulations, this prohibition would only apply for a distribution that is made on or after January 1, 2020.

    Expanded Sources for Hardship Distributions

    Pursuant to section 41114 of BBA 2018, the proposed regulations modify § 1.401(k)-1(d)(3) to permit hardship distributions from section 401(k) plans of elective contributions, QNECs, QMACs, and earnings on these amounts, regardless of when contributed or earned. However, plans may limit the type of contributions available for hardship distributions and whether earnings on those contributions are included. Safe harbor contributions made to a plan described in section 401(k)(13) may also be distributed on account of an employee's hardship (because these contributions are subject to the same distribution limitations applicable to QNECs and QMACs). See § 1.401(k)-3(k)(3)(i).

    Section 403(b) Plans

    Section 1.403(b)-6(d)(2) provides that a hardship distribution of section 403(b) elective deferrals is subject to the rules and restrictions set forth in § 1.401(k)-1(d)(3); thus, the proposed new rules relating to a hardship distribution of elective contributions from a section 401(k) plan generally apply to section 403(b) plans. However, Code section 403(b)(11) was not amended by section 41114 of BBA 2018; therefore, income attributable to section 403(b) elective deferrals continues to be ineligible for distribution on account of hardship.

    Amounts attributable to QNECs and QMACs may be distributed from a section 403(b) plan on account of hardship only to the extent that, under § 1.403(b)-6(b) and (c), hardship is a permitted distributable event for amounts that are not attributable to section 403(b) elective deferrals. Thus, QNECs and QMACs in a section 403(b) plan that are not in a custodial account may be distributed on account of hardship, but QNECs and QMACs in a section 403(b) plan that are in a custodial account continue to be ineligible for distribution on account of hardship.

    Relief for Victims of Hurricanes Florence and Michael

    The Treasury Department and the IRS realize that employees adversely affected by Hurricane Florence or Hurricane Michael may need expedited access to plan funds. Accordingly, the relief provided under Announcement 2017-15 is extended to similarly situated victims of Hurricanes Florence and Michael, except that the “Incident Dates” (as defined in that announcement) are as specified by FEMA for these 2018 hurricanes, relief is provided through March 15, 2019, and any necessary amendments must be made no later than the deadline for plan amendments set forth in this preamble under Plan Amendments.

    Applicability Dates and Reliance

    The changes to the hardship distribution rules made by BBA 2018 are effective for plan years beginning after December 31, 2018, and the proposed regulations provide that they generally would apply to distributions made in plan years beginning after December 31, 2018. However, the prohibition on suspending an employee's elective contributions and employee contributions as a condition of obtaining a hardship distribution may be applied as of the first day of the first plan year beginning after December 31, 2018, even if the distribution was made in the prior plan year. Thus, for example, a calendar-year plan that provides for hardship distributions under the pre-2019 safe harbor standards may be amended to provide that an employee who receives a hardship distribution in the second half of the 2018 plan year will be prohibited from making contributions only until January 1, 2019 (or may continue to provide that contributions will be suspended for the originally scheduled 6 months).

    In addition, the revised list of safe harbor expenses may be applied to distributions made on or after a date that is as early as January 1, 2018. Thus, for example, a plan that made hardship distributions relating to casualty losses deductible under section 165 without regard to the changes made to section 165 by the TCJA (which, effective in 2018, require that, to be deductible, losses must result from a federally declared disaster) may be amended to apply the revised safe harbor expense relating to casualty losses to distributions made in 2018 so that plan provisions will conform to the plan's operation. Similarly, a plan may be amended to apply the revised safe harbor expense relating to losses (including loss of income) incurred by an employee on account of a disaster that occurs in 2018 (such as Hurricane Florence or Hurricane Michael), provided that the employee's principal residence or principal place of employment at the time of the disaster was located in an area designated by FEMA for individual assistance with respect to the disaster.

    Plan Amendments

    The Treasury Department and the IRS expect that, if these regulations are finalized as they have been proposed, plan sponsors will need to amend their plans' hardship distribution provisions. The deadline for amending a disqualifying provision is set forth in Rev. Proc. 2016-37, 2016-29 I.R.B. 136. For example, with respect to an individually designed plan that is not a governmental plan, the deadline for amending the plan to reflect a change in qualification requirements is the end of the second calendar year that begins after the issuance of the Required Amendments List described in section 9 of Rev. Proc. 2016-37 that includes the change. A plan provision that is not a disqualifying provision, but is integrally related to a plan provision that is a disqualifying provision, may be amended by the same deadline applicable to a disqualifying provision.

    A plan amendment that is related to the final regulations, but does not correct a disqualifying provision, including a plan amendment reflecting (1) the change to section 165 (relating to casualty losses) or (2) the addition of the new safe harbor expense (relating to expenses incurred as a result of certain federally declared disasters), will be treated as integrally related to a disqualifying provision. Therefore all amendments that relate to the final regulations will have the same amendment deadline. This deadline will also apply to an amendment reflecting the extension of the relief under Announcement 2017-15 to victims of Hurricanes Florence and Michael, as provided in this preamble.

    Special Analyses

    The Administrator of the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, has waived review of this proposed rule in accordance with section 6(a)(3)(A) of Executive Order 12866. OIRA will subsequently make a significance determination of the final rule, pursuant to section 3(f) of Executive Order (E.O.) 12866 and the April 11, 2018, Memorandum of Agreement between the Department of the Treasury and the Office of Management and Budget (OMB).

    Because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

    Comments and Requests for Public Hearing

    Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the ADDRESSES heading. The Treasury Department and the IRS request comments on all aspects of the proposed rules. All comments will be available at www.regulations.gov or upon request. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register.

    Drafting Information

    The principal author of these regulations is Roger Kuehnle of the Office of Associate Chief Counsel (Tax Exempt and Governmental Entities). However, other personnel from the IRS and Treasury Department participated in their development.

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority:

    26 U.S.C. 401(m)(9) and 26 U.S.C. 7805 * * *

    Par. 2. Section 1.401(k)-1 is amended by: 1. Revising paragraphs (d)(1)(ii) and (iii) and adding new paragraph (d)(1)(iv). 2. Removing paragraph (d)(3)(ii) and redesignating paragraphs (d)(3)(iii), (iv) and (v) as paragraphs (d)(3)(ii), (iii) and (iv). 3. Revising newly redesignated paragraph (d)(3)(ii)(B) and adding new paragraph (d)(3)(ii)(C). 4. Revising newly redesignated paragraphs (d)(3)(iii) and (iv) and adding new paragraph (d)(3)(v). 5. In paragraph (d)(6), removing examples 3, 4, and 5 and redesignating example 6 as example 3.

    The additions and revisions read as follows:

    § 1.401(k)-1 Certain cash or deferred arrangements.

    (d) * * *

    (1) * * *

    (ii) In the case of a profit-sharing, stock bonus or rural cooperative plan—

    (A) The employee's attainment of age 59 1/2; or

    (B) In accordance with section 401(k)(14), the employee's hardship;

    (iii) In accordance with section 401(k)(10), the termination of the plan; or

    (iv) In the case of a qualified reservist distribution defined in section 72(t)(2)(G)(iii), the date the reservist was ordered or called to active duty.

    (3) * * *

    (ii) * * *

    (B) Deemed immediate and heavy financial need. A distribution is deemed to be made on account of an immediate and heavy financial need of the employee if the distribution is for—

    (1) Expenses for (or necessary to obtain) medical care that would be deductible under section 213(d), determined without regard to the limitations in section 213(a) (relating to the applicable percentage of adjusted gross income and the recipients of the medical care) provided that, if the recipient of the medical care is not listed in section 213(a), the recipient is a primary beneficiary under the plan;

    (2) Costs directly related to the purchase of a principal residence for the employee (excluding mortgage payments);

    (3) Payment of tuition, related educational fees, and room and board expenses, for up to the next 12 months of post-secondary education for the employee, for the employee's spouse, child or dependent (as defined in section 152 without regard to section 152(b)(1), (b)(2) and (d)(1)(B)), or for a primary beneficiary under the plan;

    (4) Payments necessary to prevent the eviction of the employee from the employee's principal residence or foreclosure on the mortgage on that residence;

    (5) Payments for burial or funeral expenses for the employee's deceased parent, spouse, child or dependent (as defined in section 152 without regard to section 152(d)(1)(B)) or for a deceased primary beneficiary under the plan;

    (6) Expenses for the repair of damage to the employee's principal residence that would qualify for the casualty deduction under section 165 (determined without regard to section 165(h)(5) and whether the loss exceeds 10% of adjusted gross income); or

    (7) Expenses and losses (including loss of income) incurred by the employee on account of a disaster declared by the Federal Emergency Management Agency (FEMA) under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-707, provided that the employee's principal residence or principal place of employment at the time of the disaster was located in an area designated by FEMA for individual assistance with respect to the disaster.

    (C) Primary beneficiary under the plan. For purposes of paragraph (d)(3)(ii)(B) of this section, a “primary beneficiary under the plan” is an individual who is named as a beneficiary under the plan and has an unconditional right, upon the death of the employee, to all or a portion of the employee's account balance under the plan.

    (iii) Distribution necessary to satisfy financial need—(A) Distribution may not exceed amount of need. A distribution is treated as necessary to satisfy an immediate and heavy financial need of an employee only to the extent the amount of the distribution is not in excess of the amount required to satisfy the financial need (including any amounts necessary to pay any federal, state, or local income taxes or penalties reasonably anticipated to result from the distribution).

    (B) No alternative means reasonably available. A distribution is not treated as necessary to satisfy an immediate and heavy financial need of an employee unless the employee has obtained all other currently available distributions (including distributions of ESOP dividends under section 404(k), but not hardship distributions) under the plan and all other plans of deferred compensation, whether qualified or nonqualified, maintained by the employer. In addition, for a distribution that is made on or after January 1, 2020, the employee must represent (in writing, by an electronic medium, or in such other form as may be prescribed by the Commissioner) that he or she has insufficient cash or other liquid assets to satisfy the need. The plan administrator may rely on the employee's representation unless the plan administrator has actual knowledge to the contrary.

    (C) Additional conditions. A plan generally may provide for additional conditions, such as those described in 26 CFR 1.401(k)-1(d)(3)(iv)(B) and (C) (revised as of April 1, 2018) or, for distributions made before January 1, 2020, the representation described in paragraph (d)(3)(iii)(B) of this section, to demonstrate that a distribution is necessary to satisfy an immediate and heavy financial need of an employee. For example, a plan may provide that, before a hardship distribution may be made, an employee must obtain all nontaxable loans (determined at the time a loan is made) available under the plan and all other plans maintained by the employer. However, for a distribution that is made on or after January 1, 2020, a plan may not provide for a suspension of an employee's elective contributions or employee contributions as a condition of obtaining a hardship distribution.

    (iv) Commissioner may expand standards. The Commissioner may prescribe additional guidance of general applicability, published in the Internal Revenue Bulletin (see § 601.601(d)(2) of this chapter), expanding the list of distributions deemed to be made on account of immediate and heavy financial needs and setting forth additional methods to demonstrate that a distribution is necessary to satisfy an immediate and heavy financial need.

    (v) Effective/applicability date—(A) General rule. This paragraph (d)(3) applies to distributions made in plan years beginning after December 31, 2018. Except as otherwise provided in this paragraph (d)(3)(v), the rules in 26 CFR 1.401(k)-1(d)(3) (revised as of April 1, 2018) apply to distributions made in plan years beginning before January 1, 2019.

    (B) Options for earlier application. The last sentence of paragraph (d)(3)(iii)(C) of this section (prohibiting the suspension of contributions as a condition of obtaining a hardship distribution) may be applied as of the first day of the first plan year beginning after December 31, 2018, even if the distribution was made in the prior plan year. Thus, for example, a calendar-year plan that provides for hardship distributions under the rules in 26 CFR 1.401(k)-1(d)(3)(iv)(E) (revised as of April 1, 2018) may be amended to provide that an employee who receives a hardship distribution in the second half of the 2018 plan year will be prohibited from making contributions only until January 1, 2019 (or may continue to provide that contributions will be suspended for the originally scheduled 6 months). In addition, paragraph (d)(3)(ii)(B) of this section may be applied to distributions made on or after a date that is as early as January 1, 2018.

    Par. 3. Section 1.401(k)-3 is amended by: 1. Revising paragraph (c)(6)(v). 2. Removing the language “, and, in the case of a hardship distribution, suspends an employee's ability to make elective contributions for 6 months in accordance with § 1.401(k)-1(d)(3)(iv)(E)” in the fifth sentence in paragraph (c)(7), Example 1. 3. Removing the second sentence in paragraph (j)(2)(iv).

    The revision reads as follows:

    § 1.401(k)-3 Safe harbor requirements.

    (c) * * *

    (6) * * *

    (v) Restrictions due to limitations under the Internal Revenue Code. A plan may limit the amount of elective contributions made by an eligible employee under a plan—

    (A) Because of the limitations of section 402(g) or 415;

    (B) Due to a suspension under section 414(u)(12)(B)(ii); or

    (C) Because, on account of a hardship distribution made before January 1, 2020, an employee's ability to make elective contributions has been suspended for 6 months.

    § 1.401(k)-6 [Amended]
    Par. 4. Section 1.401(k)-6 is amended by: 1. Removing the fourth sentence in paragraph (2) of the definition of Eligible employee. 2. Removing the language “, except as provided otherwise in § 1.401(k)-1(c) and (d),” in the definitions of Qualified matching contributions (QMACs) and Qualified nonelective contributions (QNECs). Par. 5. Section 1.401(m)-3 is amended by revising paragraph (d)(6)(v) to read as follows:
    § 1.401(m)-3 Safe harbor requirements.

    (d) * * *

    (6) * * *

    (v) Restrictions due to limitations under the Internal Revenue Code. A plan may limit the amount of contributions made by an eligible employee under a plan—

    (A) Because of the limitations of section 402(g) or section 415;

    (B) Due to a suspension under section 414(u)(12)(B)(ii); or

    (C) Because, on account of a hardship distribution made before January 1, 2020, an employee's ability to make contributions has been suspended for 6 months.

    Kirsten Wielobob, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2018-24812 Filed 11-9-18; 4:15 pm] BILLING CODE 4830-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-1011] RIN 1625-AA00 Safety Zone for Fireworks Displays; Upper Potomac River, Washington Channel, DC AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard is proposing to establish a temporary safety zone for certain waters of the Upper Potomac River. This action is necessary to provide for the safety of life on these navigable waters of the Washington Channel adjacent to The Wharf DC, Washington, DC, for recurring fireworks displays from January 12, 2019, through December 31, 2019. This proposed rulemaking would prohibit persons and vessels from being in the safety zone unless authorized by the Captain of the Port Maryland-National Capital Region or a designated representative. We invite your comments on this proposed rulemaking.

    DATES:

    Comments and related material must be received by the Coast Guard on or before December 14, 2018.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2018-1011 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this proposed rulemaking, call or email Mr. Ron Houck, Sector Maryland-National Capital Region Waterways Management Division, U.S. Coast Guard; telephone 410-576-2674, email [email protected].

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

    On October 30, 2018, Pyrotecnico, Inc., of New Castle, PA, notified the Coast Guard that it will be conducting fireworks displays, sponsored by The Wharf DC, from 7 p.m. to 11:59 p.m. for various events from January 12, 2019, through December 31, 2019. The fireworks are to be launched from a barge in the Washington Channel, adjacent to The Wharf DC in Washington, DC. Hazards from the fireworks displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port Maryland-National Capital Region (COTP) has determined that potential hazards associated with the fireworks to be used in these displays would be a safety concern for anyone within 200 feet of the fireworks barge.

    The purpose of this rulemaking is to ensure the safety of vessels on the navigable waters within 200 feet of the fireworks barge on the Washington Channel before, during, and after the scheduled events. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

    III. Discussion of Proposed Rule

    The COTP proposes to establish a temporary recurring safety zone in the Washington Channel from January 12, 2019, through December 31, 2019. The safety zone would cover all navigable waters of the Washington Channel within 200 feet of the fireworks barge. It is anticipated that the safety zone will be activated for eight separate events during 2019. For each event, the barge will be located within an area bounded on the south by latitude 38°52′30″ W, and bounded on the north by the Francis Case (I-395) Memorial Bridge, located at Washington, DC. The safety zone would be enforced from 7 p.m. until 11:59 p.m. for each fireworks display scheduled from January 12, 2019, through December 31, 2019. The duration of the safety zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled fireworks display. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

    IV. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, duration, and time-of-day of the safety zone. It is anticipated that the safety zone will be activated for eight separate events during 2019. Although vessel traffic will not be able to safely transit around this safety zone when being enforced, the impact would be for less than 5 hours during the evening when vessel traffic in Washington Channel is normally low. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.

    B. Impact on Small Entities

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

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.

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

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone that will be in effect for the entire year, however, when activated, lasting less than 5 hours that would prohibit entry within a portion of the Washington Channel. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

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

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

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

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. Add § 165.T05-1011 to read as follows:
    § 165.T05-1011 Safety Zone for Fireworks Displays, Upper Potomac River, Washington Channel, Washington, DC.

    (a) Location. The following area is a safety zone: All navigable waters of the Washington Channel within 200 feet of the fireworks barge which will be located within an area bounded on the south by latitude 38°52′30″ W, and bounded on the north by the southern extent of the Francis Case (I-395) Memorial Bridge, located at Washington, DC. All coordinates refer to datum NAD 1983.

    (b) Definitions. As used in this section:

    (1) Captain of the Port (COTP) means the Commander, U.S. Coast Guard Sector Maryland-National Capital Region.

    (2) Designated representative means any Coast Guard commissioned, warrant, or petty officer who has been authorized by the Captain of the Port Maryland-National Capital Region to assist in enforcing the safety zone described in paragraph (a) of this section.

    (c) Regulations. (1) Under the general safety zone regulations in subpart C of this part, you may not enter the safety zone described in paragraph (a) of this section unless authorized by the COTP or the COTP's designated representative. All vessels underway within this safety zone at the time it is activated are to depart the zone.

    (2) To seek permission to enter, contact the COTP or the COTP's designated representative by telephone at 410-576-2693 or on Marine Band Radio VHF-FM channel 16 (156.8 MHz). The Coast Guard vessels enforcing this section can be contacted on Marine Band Radio VHF-FM channel 16 (156.8 MHz).

    (3) Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.

    (d) Enforcement officials. The U.S. Coast Guard may be assisted in the patrol and enforcement of the safety zone by Federal, State, and local agencies.

    (e) Enforcement. This safety zone will be enforced January 12, 2019, through December 31, 2019, from 7 p.m. to 11:59 p.m. each day that a barge with a “FIREWORKS—DANGER—STAY AWAY” sign on the port and starboard sides is on-scene or a “FIREWORKS—DANGER—STAY AWAY” sign is posted on land adjacent to the shoreline, near the location described in paragraph (a) of this section. The enforcement times of this section are subject to change, but the duration of each enforcement of the zone is expected to be 5 hours or less. Prior to enforcement, the COTP will provide notice by publishing a Notice of Enforcement in the Federal Register, as well as issuing a Broadcast Notice to Mariners.

    Dated: November 7, 2018. Joseph B. Loring, Captain, U.S. Coast Guard, Captain of the Port Maryland-National Capital Region.
    [FR Doc. 2018-24773 Filed 11-13-18; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2018-0675; FRL-9985-91-Region 6] Air Plan Approval; Texas; Reasonably Available Control Technology AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to convert its September 22, 2017 conditional approval of revisions to the Texas State Implementation Plan (SIP), addressing Oxides of Nitrogen (NOX) Reasonably Available Control Technology (RACT) for the TXI Operations, LP (Texas Industries, Inc., TXI) cement manufacturing plant in Ellis County, to full approval. The August 21, 2018 SIP submittal satisfies Texas' commitment which was the basis for our conditional approval of NOX RACT for this plant. Final approval of this SIP submittal will convert our earlier conditional approval to full approval. We are taking this action in accordance with the Clean Air Act (CAA, the Act) requirements.

    DATES:

    Comments must be received on or before December 14, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket No. EPA-R06-OAR-2018-0675 at http://www.regulations.gov or via email to [email protected]. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact Mr. Alan Shar, (214) 665-6691, [email protected]. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI).

    FOR FURTHER INFORMATION CONTACT:

    Mr. Alan Shar (6MM-AA), (214) 665-6691, [email protected]. To inspect the hard copy materials, please schedule an appointment with Alan Shar.

    SUPPLEMENTARY INFORMATION:

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

    Outline I. Background A. RACT and the RACT Requirements Relevant for This Action B. Conditional Approval II. Evaluation III. Proposed Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Background

    As a part of its July 10, 2015 Dallas Fort Worth (DFW) SIP submittal, TCEQ conducted RACT analyses to demonstrate that the RACT requirements for affected NOX sources in the DFW 2008 8-Hour Ozone nonattainment area have been satisfied, relying on the NOX RACT rules EPA had previously approved for the DFW area for its classification as Serious for the 1997 8-Hour Ozone standard. See March 27, 2015 (80 FR 16292), and 40 CFR 51.1112. The RACT analysis is contained in Appendix F of the TCEQ July 10, 2015 SIP submittal as a component of the DFW 2008 8-Hour Ozone attainment demonstration plan. On September 22, 2017, we conditionally approved NOX RACT for the TXI cement manufacturing plant in Ellis County, and fully approved NOX RACT for all other affected sources in the ten county DFW 2008 8-Hour Ozone nonattainment area.

    On August 21, 2018 TCEQ submitted a revision to Texas SIP addressing NOX RACT for the TXI cement manufacturing plant in Ellis County as a part of its DFW 2008 8-Hour Ozone National Ambient Air Quality Standards (NAAQS) SIP update. The August 21, 2018 SIP submittal contains both an Agreed Order (AO) concerning TXI and a SIP narrative for DFW NOX RACT.

    A. RACT and the RACT Requirements Relevant for This Action

    Section 172(c)(1) of the Clean Air Act (CAA, Act) requires that SIPs for nonattainment areas “provide for the implementation of all reasonably available control measures 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 reasonably available control technology) and shall provide for attainment of the primary National Ambient Air Quality Standards (NAAQS).” The EPA has defined RACT as the lowest emissions limitation that a particular source is capable of meeting by the application of control technology that is reasonably available, considering technological and economic feasibility.1

    1 September 17, 1979 (44 FR 53761).

    Section 182(b)(2) of the Act requires states to submit a SIP revision and implement RACT for major stationary sources in moderate and above ozone nonattainment areas. For a Moderate, Serious, or Severe area, a major stationary source is one that emits, or has the potential to emit, 100, 50, or 25 tons per year (tpy) or more of VOCs or NOX, respectively.2 The DFW area was classified as Serious on December 20, 2010 (75 FR 79302). Ellis County is one of the ten Counties constituting the DFW 2008 8-Hour Ozone nonattainment area. Thus, per section 182(c) of the CAA, a major stationary source in the DFW area, is one which emits, or has the potential to emit, 50 tpy or more of VOCs or NOX. The TXI cement manufacturing plant in Ellis County is a major source of NOX, and subject to RACT.

    2 CAA sections 182(b), 182(c), and 182(d).

    The terms “TXI Operations, LP”, “TXI”, “Martin Marietta”, and “MM” are used interchangeably in this action.3

    3 Index of written testimony, Reference number W-1, August 21, 2018 SIP submission.

    The EPA provides states with guidance concerning what types of controls could constitute RACT for a given source category through the issuance of Control Technique Guidelines (CTG) and Alternative Control Techniques (ACT) documents.4

    4 See http://www.epa.gov/airquality/ozonepollution/SIPToolkit/ctgs.html.

    B. Conditional Approval

    Under section 110(k)(4) of the Act, the Administrator may approve a plan revision based on a commitment of the State to adopt specific enforceable measures by a date certain, but not later than 1 year after the date of approval of the plan revision. Any such conditional approval shall be treated as a disapproval, if the State fails to comply with such commitment.

    The EPA conditionally approved NOX RACT for the TXI cement manufacturing plant in Ellis County on September 22, 2017 (82 FR 44320), with an effective date of October 23, 2017.5 The RACT determination action was based on the State's written commitment to EPA that through an AO or rulemaking action, between TCEQ and TXI, certain conditions of their air permit, concerning the NOX emission limitation of 1.95 lb/ton of clinker produced from kiln #5, would be incorporated into a forthcoming revision to the Texas SIP.6 This SIP revision was necessary so that the emission limit relied upon to implement NOX RACT would be part of the Texas SIP. The forthcoming revision to the Texas SIP was to be submitted to EPA no later than one year from the effective date of final conditional approval of the NOX RACT for kiln #5, or no later than October 23, 2018. See section 110(k)(4) of the CAA.

    5 EPA Docket No. EPA-R06-OAR-2015-0496 available at www.regulations.gov.

    6 July 29, 2016 letter at www.regulations.gov document ID No. EPA-R06-OAR-2015-0496-0035.

    The August 21, 2018 SIP submittal was provided to fulfil TCEQ's written commitment to EPA. RACT for the TXI cement kiln #5 is fulfilled by an AO 7 which is included in the SIP submittal and will become part of the SIP, if EPA finalizes this proposed approval. The scope of this rulemaking action is strictly limited to evaluating the SIP revision, including the AO, and whether it meets the requirements of the conditional approval. The AO includes incorporation of certain TXI's New Source Review (NSR) SIP permit conditions (Specific Conditions 3.A(1)-(3) of NSR Permit 1360A(PSDTX632M1)) such that the AO stands on its own and insures the necessary requirements will become a part of the Texas SIP. No further RACT review or determination is being conducted here. Comments concerning the area's ozone attainment demonstration plan, or review of NOX RACT are beyond the scope of this rulemaking action.

    7 TCEQ Docket No. 2017-1648-SIP, Agreed Order.

    II. Evaluation

    As a part of our July 19, 2017 proposal (82 FR 33026) and September 22, 2017 final (82 FR 44320) rulemaking actions we, among other things, determined the NOX emission limitations and control requirements in Appendix F meet RACT for each cement manufacturing plant in Ellis County, including the TXI cement manufacturing plant in Ellis County.8

    8 Technical Support Document (TSD) ID No. EPA-R06-OAR-2015-0496-0036 at www.regulations.gov.

    As a part of our RACT determination at 82 FR 44320, we found that emission limitations and control requirements for the TXI plant contained in certain terms of TXI's air permit, including the NOX emission limitation of 1.95 lb/ton of clinker are consistent with our guidance and ACT documents, and meet the lowest emission limitation through application of control techniques that are reasonably available considering technological and economic feasibility. The air permit, however, is not part of the SIP. Therefore, our approval was conditioned on certain terms of the permit being approved by EPA as a source-specific SIP revision. TCEQ committed to address the referenced terms of TXI's air permit through rule revision or an AO in a SIP revision, and submit that SIP to the EPA as a revision to its NOX RACT SIP no later than October 23, 2018. See section 110(k)(4) of the Act (conditional approval). As stated above, the August 21, 2018 SIP submittal satisfies that commitment.

    The August 21, 2018 SIP submittal consists of an AO which states that the kiln #5 NOX CEMS is subject to the provisions in 30 TAC section 117.3140(b), 40 CFR 60.13, 40 CFR 60 Appendix B, Performance Specification 2, and is subject to audits in accordance with section 5.1 of Appendix F Quality Assurance Procedures.9

    9 Part I, stipulation 16 of the Agreed Order.

    The kiln #5 stack exhaust flow rate is subject under the AO to 30 TAC section 117.3142(a)(2), which requires monitoring with a flow meter subject to 40 CFR part 60 Appendix B, Performance Specification 6 or 40 CFR part 75 Appendix A.10

    10 Id.

    Pursuant to the AO, the TXI must monitor and record clinker production rates, in tons per hour, tons per day, daily summed on a 30-day rolling basis, and monthly summed on a 12-month rolling basis. Hourly and daily clinker production rates may be based on the previous month's feed-to-clinker ratio multiplied by the measured hourly/daily kiln feed rate, as specified in 40 CFR 60 subpart F section 60.63(b). Records in units of lb NOX/ton of clinker produced are maintained on a 30-day rolling average basis.11

    11 Id.

    The AO also requires that the NOX emission limit is 1.95 lb NOX/ton of clinker for kiln #5, on a 30-day rolling average basis. Furthermore, this limit of 1.95 lb NOX per ton of clinker cannot be revised to be less stringent without an approved revised RACT determination in accordance with the State and Federal requirements for SIP revisions.12

    12 Part I, Item #19 of Agreed Order.

    The AO states that the Company shall make records available upon request by the TCEQ or any other air pollution control agency with jurisdiction over the Company.13

    13 Part II, Item #3 of Agreed Order.

    In addition, Special Conditions outlined in Part II, Item #2, subparagraphs 1, 2, and 3 of the AO shall be incorporated in Company's NSR permit 1360A (PSDTX632M1) as they concern the NOX RACT limit, averaging periods, and NOX CEMS provisions for kiln #5, respectively. These provisions will provide for consistency between the TCEQ air permit and the federally enforceable NOX RACT SIP requirements for kiln #5.

    The AO has gone through public notice and comment at the State level, and it adopts specific enforceable measures in conformance with section 110(k)(4) of the Act.

    We find that the submitted AO meets the conditions for full approval and includes all the required provisions to meet the NOX RACT requirements that EPA approved in the September 22, 2017 final action.

    III. Proposed Action

    We are proposing to find TCEQ's August 21, 2018 SIP submittal satisfies its obligation under the September 22, 2017 (82 FR 44320) conditional approval, and to convert the September 22, 2017 (82 FR 44320) rulemaking to full approval. We are proposing to approve the August 21, 2018 SIP submittal, including approval of the AO as a source-specific NOX RACT revision to the SIP.

    IV. Incorporation by Reference

    In this action, we are proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are proposing to incorporate by reference revisions to Texas' regulations, as described in the Proposed Action section above. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and in hard copy at the EPA Region 6 office.

    V. Statutory and Executive Order Reviews

    Under the Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. Accordingly, 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 action:

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

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

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: November 5, 2018. Anne Idsal, Regional Administrator, Region 6.
    [FR Doc. 2018-24658 Filed 11-13-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2018-0419; FRL-9986-48-Region 4] Air Plan Approval; NC; Miscellaneous Revisions AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve portions of State Implementation Plan (SIP) revisions provided by the State of North Carolina through the North Carolina Division of Air Quality (NCDAQ) in letters dated June 5, 2017, and August 22, 2017. The submissions revise several regulations concerning nitrogen oxides, emission control standards, monitoring, and reporting requirements. EPA is proposing to approve these provisions of the SIP revisions because these changes are consistent with the Clean Air Act (CAA or Act) and federal regulations.

    DATES:

    Comments must be received on or before December 5, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R04-OAR-2018-0419 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. The telephone number is (404) 562-8726. Mr. Wong can also be reached via electronic mail at [email protected].

    SUPPLEMENTARY INFORMATION: I. Background

    NCDAQ submitted SIP revisions through letters dated June 5, 2017 and August 22, 2017 to EPA for review and approval into the North Carolina SIP.1 North Carolina's SIP revisions include multiple changes to its air quality rules, under subchapter 15A NCAC 2D, specifically at Section .1404, “Recordkeeping: Reporting: Monitoring,” Section .0542, “Control of Particulate Emissions from Cotton Ginning Operations,” Section .0606, “Sources Covered by Appendix P of 40 CFR part 51,” and Section .0608, “Other Large Coal or Residue Oil Burners.” EPA is not taking action on Section .0535, “Excess Emissions Reporting and Malfunctions” which is included in the changes in the August 22, 2017 SIP revision. EPA will address revisions to Section .0535 in a separate action.

    1 The SIP revisions were received by EPA on June 5, 2017 and September 6, 2017, respectively.

    II. Analysis of the State's Submittals A. June 5, 2017 SIP Submittal

    The June 5, 2017 submission revises North Carolina's nitrogen oxides (NOX) Rule Section .1404, “Recordkeeping: Reporting: Monitoring” through several iterations.2 The State previously submitted the changes as four separate submissions.3 North Carolina took these rule changes to hearings on May 21, 2001, June 5, 2001, June 22, 2005, and November 11, 2007. NCDAQ subsequently withdrew and resubmitted these changes in a comprehensive submission. The revision that became state-effective on July 15, 2002, made minor and clarifying changes to subsections (a) “General requirements,” (b) “Submittal of information to show compliance status,” (c) “Excess emissions reporting,” (d) “Continuous emissions monitors,” (f) “Missing data,” (g) “Interim report for large sources,” (h) “Recordkeeping and reporting requirements for large sources,” and (i) “Averaging time for continuous emissions monitors.” Clarifying edits consisted of clarifying that records needed to be maintained for five years and changing “a” to “the” and “Rule” to “Rules.” Changes were also made to remove an exception for seasonal excess emission reporting because the referenced rules were previously repealed by the State and approved by EPA. The submission makes a change that prescribes a requirement for continuous emission monitoring for sources covered under Section .1418, “New Electric Generating Units, Large Boilers, and Large I/C Engines.” Lastly, the SIP revision makes minor typographical changes throughout. EPA is proposing to approve these revisions because the minor typographical and clarifying changes do not relax or alter the meaning of the rule and the other revision pertaining to a requirement for continuous emissions monitoring for sources covered under Section .1418 is SIP-strengthening and is consistent with the requirements of the CAA and federal regulations.4

    2 NOX Rule section .1404 was originally submitted to EPA as part of the State's NOX Budget and Allowance Trading Program in response to EPA's regulation entitled “Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone,” otherwise known as the NOX SIP Call.

    3 The June 5, 2017, cover letter requested withdrawal for submissions or portions of submissions dated August 14, 2002, October 14, 2004, March 24, 2006, and November 19, 2008, with state effective dates July 15, 2002, May 1, 2004, November 1, 2005, and January 1, 2009, respectively. Through a separate rulemaking on May 9, 2013, EPA took final action on portions of the October 14, 2004 submission approving some revisions, including those for section .1404, and conditionally approving other revisions. See 78 FR 27065. Additionally, the State previously submitted a revision to Section .1404 on December 14, 2004, and EPA finalized the rulemaking approving that revision on August 22, 2008 (73 FR 49613). Finally, the State previously submitted a revision to Section .1404 on December 27, 2002, and EPA finalized the rulemaking approving that revision on December 27, 2002. See 67 FR 78987.

    4 40 CFR 51.121-5.122 (NOX SIP Call regulations) and 40 CFR part 75 (Continuous Emissions Monitoring).

    The revision that became state-effective on November 1, 2005, removed the interim reporting requirements for large sources and retained the annual requirement where sources must report NOX emissions no later than October 30. The revision that became state-effective on January 1, 2009, also made minor changes that consisted of changing “a” to “the,” renumbering the subparagraphs and removing references to repealed rules, including sections .1416, “Emission Allocations for Utility Companies,” .1417, “Emission Allocations for Large Combustion Sources,” and .1419, “Nitrogen Oxide Budget Trading Program.” 5 EPA is proposing to approve these changes because the minor changes do not relax or alter the meaning of the rule and the other revision pertaining to the date for the end of season reporting requirement is consistent with the requirements of the CAA and federal regulations.

    5 EPA approved the repeal of these provisions on May 9, 2013. See 78 FR 27065.

    B. August 22, 2017, SIP Submittal

    The August 22, 2017 submission revises Sections .0542, “Control of Particulate Emissions from Cotton Ginning Operations,” .0606, “Sources Covered by Appendix P of 40 CFR part 51,” and .0608, “Other Large Coal or Residual Oil Burners.” The SIP revision makes minor and clarifying edits throughout the three rules. The changes in Section .0542 remove obsolete past due dates for Emission Control Requirements and provide clarification edits under paragraph (c)—Applicability, paragraph (d)—Emission Control Requirements and paragraph (e)—Raincaps. Clarifying edits consisted of renumbering and removing references to obsolete control dates and were also made under paragraph (g)—Fugitive Emissions and paragraph (l)—Reporting. The changes in Sections .0606 and .0608 are minor and revise references to another rule in the same subchapter for fuel analysis for sulfur dioxide emitting sources without continuous emissions monitoring. EPA is proposing to approve these changes because the minor and clarifying changes do not relax or alter the meaning of the rule.

    III. Incorporation by Reference

    In this rulemaking, 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 under subchapter 2D, Section .1404, “Recordkeeping: Reporting: Monitoring,” effective January 1, 2009,6 which clarifies the rule by updating quality assurance, recordkeeping and reporting requirements and provisions for heat input calculations and removes references to repealed rules. EPA is proposing to incorporate by reference under subchapter 2D Section .0542, “Control of Particulate Emissions from Cotton Ginning Operations,” Section .0606, “Sources Covered by Appendix P of 40 CFR part 51,” and Section .0608, “Other Large Coal or Residue Oil Burners,” effective June 1, 2008, which makes minor and clarifying changes, updates rule references, and removes obsolete controls and dates. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

    6 January 1, 2009 is the most recent state effective date of subchapter 2D, Section .1404, “Recordkeeping: Reporting: Monitoring,” and it reflects the exact version of the text of .1404 that EPA is proposing to approve into the SIP.

    IV. Proposed Action

    EPA is proposing to approve the aforementioned changes to the North Carolina SIP, submitted on June 5, 2017, and August 22, 2017 because they are consistent with the CAA and federal regulations.

    V. Statutory and Executive Order Reviews

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

    • Are 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);

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

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

    • Are 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.);

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

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

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

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

    • Are 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

    • Do 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, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: November 6, 2018. Onis “Trey” Glenn, III, Regional Administrator, Region 4.
    [FR Doc. 2018-24819 Filed 11-13-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2018-0369 FRL-9986-29-Region 5] Air Plan Approval; Ohio; Ohio Less Than 10 TPY BAT Exemption AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve, under the Clean Air Act (CAA), revisions to Ohio's State Implementation Plan (SIP) as requested by the Ohio Environmental Protection Agency (OEPA) on May 22, 2018. OEPA has submitted, for approval, revisions that exempt sources that emit less than 10 tons per year (tpy) from the need to employ Best Available Technology (BAT). EPA is proposing to approve these revisions because they are consistent with Federal regulations governing state permit programs.

    DATES:

    Comments must be received on or before December 14, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2018-0369 at http://www.regulations.gov, or via email to [email protected]. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the For Further Information Contact section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Richard Angelbeck, Environmental Scientist, Air Permits Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-9698, [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

    I. What revisions did OEPA submit? II. Do the revisions comply with section 110(l) of the Clean Air Act? III. What action is EPA taking? IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. What revisions did OEPA submit?

    On May 22, 2018, OEPA submitted a SIP revision to Ohio Administrative Code (OAC) rule 3745-31-05(A)(3)(a)(ii), which is its BAT rule. This revision exempts the smaller emitting sources, those that emit less than 10 tpy of each criteria pollutant, from the need to employ BAT. OEPA's less than 10 tpy BAT exemption is currently in OEPA's OAC 3745-31-05(A)(3)(a)(ii) and reads: “BAT is not required if the air contaminant source was installed or modified on or after August 3, 2006 and has the potential to emit (PTE), taking into account air pollution controls installed on the source, less than ten tons per year of emissions of an air contaminant or precursor of an air contaminant for which a national ambient air quality standard has been adopted under the Clean Air Act.”

    Ohio's Federally approved construction program, OAC 3745-31 (“Permits to Install New Sources of Pollution”) provides the authority for OEPA to issue Permits to Install (PTI) to new sources of air pollution or modifications to existing sources of air pollution. For attainment areas, the program was conditionally approved into Ohio's SIP on October 10, 2001 (66 FR 51570), and fully approved on January 22, 2003 (68 FR 2909). For nonattainment areas, the program was fully approved on January 10, 2002 (68 FR 1366). On February 20, 2013, OEPA's SIP was revised (78 FR 28547) to combine the PTI and Permit to Operate (PTO) programs into a single Permit to Install and Operate (PTIO) program so that a minor source not subject to title V of the Clean Air Act in Ohio would be issued a single PTIO instead of a PTI and a PTO permit.

    On August 3, 2006, the Ohio General Assembly passed Senate Bill 265 (SB 265) which required OEPA to modify several of its BAT rules. OEPA's BAT is an air permitting mechanism to help control emissions in minor air permits. BAT can be any combination of work practices, air pollution control devices, raw material specifications, throughput limitations, source design characteristics, and OEPA does an evaluation of the annualized cost per ton of air pollutant removed when determining BAT. One of the changes implemented was the less than 10 tpy BAT exemption. To implement the SB 265 changes, OEPA adopted revisions under OAC Chapter 3745-31-05(A)(3)(b) on November 20, 2006, which became effective on December 1, 2006. On January 18, 2008, OEPA requested that EPA approve this rule language as a revision to Ohio's SIP. EPA responded with a June 5, 2008 letter to OEPA indicating that the request was incomplete due to a lack of a CAA section 110(l) demonstration, thus returning the request back to OEPA. On June 2, 2008, OEPA moved the language in OAC rule 3745-31-05 from paragraph (A)(3)(b) to (A)(3)(a)(ii) which became effective at the state level on June 30, 2008. The rule language contained in OAC rule 3745-31-05(A)(3)(a)(ii) was carried over in OAC rule 3745-31-05, which was adopted on April 20, 2016, and became effective at the state level as of May 1, 2016, and is what OEPA is now requesting for EPA approval as a revision to its SIP. EPA considered this May 22, 2018 submittal to be complete.

    II. Do the revisions comply with section 110(l) of the Clean Air Act?

    OEPA's May 22, 2018 SIP revision submittal included a 110(l) demonstration. This demonstration included an extensive analysis to show the impact that the less than 10 tpy BAT exemption would have on emissions. This analysis evaluated over 400 permits, representing more than 80 source classification codes and 36 different types of categories of sources. Each criteria pollutant was evaluated and then a comparison was made between the emission limit that would occur if BAT applied and if BAT did not apply to the less than 10 tpy sources. The analysis concludes that there would be a negligible increase in emissions due to the less than 10 tpy BAT exemption.

    The 110(l) demonstration included a quantitative and qualitative analysis. The analysis estimated an emission increase of 36.89 tpy of volatile organic compounds (VOC) emissions in attainment areas and nonattainment areas, combined, when applying the less than 10 tpy BAT exemption compared to BAT-based emissions. That increase in VOC emissions represented a very small amount (0.12%) of the total actual point source VOC emissions reported for that year, 2010 in Ohio.

    The 110(l) analysis estimated the VOC emission increases in the Ohio nonattainment areas combined, as well as to each of the three Ohio ozone nonattainment areas (Cleveland, Cincinnati, Columbus). This analysis links the estimated VOC increases to each of the Ohio ozone nonattainment areas and demonstrates that each nonattainment area will not be negatively impacted by the estimated increase in emissions. The analysis showed an estimated increase of 25.53 tpy of VOC in Ohio nonattainment areas which represented 0.2% of the 2010 total VOC emissions in Ohio. OEPA's analysis also quantified the estimated VOC increases in the three Ohio nonattainment areas: 18.65 tpy in the Cincinnati area, 4.88 tpy in the Cleveland/Akron/Lorain area, and 0 tpy in the Columbus area. OEPA's analysis further broke out the 18.65 tpy Cincinnati nonattainment area VOC emission increase to the following two areas: 13 tpy increase in Hamilton County, and 5.6 tpy in Butler County.

    To address the VOC emission increases in the Cincinnati and Cleveland nonattainment areas, OEPA opted to use VOC emission offsets to mitigate any possibility of adverse air quality impact that may result from the small increase in VOC emissions. These relied-upon emission offsets are from permanently shut down emission units at one facility in Ashtabula (4.88 tpy offset VOCs) and one facility in Hamilton (18.65 tpy offset VOCs) counties located in the Cincinnati and Cleveland nonattainment areas, respectively. The 4.88 tpy offset VOCs in Ashtabula County are from the permanently shut down emission unit R010 at the RMC USA Inc. facility (Facility ID 0204000423), the emission unit was permanently shut down on 7/16/2014. The 18.65 tpy offset VOCs in Hamilton County are from the permanently shut down emission unit P001 at the Rock-Tenn Converting Co. facility (Facility ID 1431070952), the emission unit was permanently shut down on 11/21/2014. This 18.65 tpy offset VOCs is to offset the possible VOC increases in Hamilton and Butler Counties, combined. The VOC emission reductions have been verified and validated through OEPA's Stars II system and are considered creditable since they are surplus, quantifiable, permanent and federally enforceable. OEPA maintains a database of all emission reductions used for purpose of CAA 110(l) demonstrations and these VOC reductions will be tracked within this database to ensure they cannot be used again. OEPA has committed to permanently retire the 25.33 tpy of VOC emissions upon EPA's approval of this SIP revision and EPA's proposed approval of this SIP revision is based on that commitment. The VOC emission reductions from the permanent emission unit shut downs will offset the predicted VOC emissions increase in these VOC nonattainment areas resulting from the less than 10 tpy BAT exemption and ensure that plans to bring the VOC nonattainment with the NAAQS are not compromised and thus it is expected there will be no adverse impact on air quality.

    OEPA's 110(l) analysis demonstrated that the air quality will not be negatively impacted due to the small increase in emissions as result of the less than 10 tpy BAT exemption. OEPA's 110(l) analysis demonstrated that the VOC emission offsets from the shutdown emission units at the two facilities will counterbalance the estimated emission increase in VOC emissions due to the less than 10 tpy BAT exemption and will not have a negative impact on air quality nor cause backsliding from Ohio's reasonable further progress plans. OEPA will formally retire the VOC emission offsets in order to receive final approval of this SIP revision. OEPA's 110(l) analysis also demonstrated that the small increase in VOC emissions in Ohio's ozone attainment areas will not have a negative impact on air quality because the increase in VOC emissions is very small compared to the VOC emissions emitted state-wide.

    III. What action is EPA taking?

    EPA is proposing approval, into the SIP, of the rule revision to OAC 3745-31-05(A)(3)(a)(ii) that OEPA submitted on May 22, 2018. The SIP revision submitted, described in section I, above, is consistent with Federal regulations governing state permitting programs. See section II above. EPA is also soliciting comment on this proposed approval.

    IV. 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 revisions to Ohio Administrative Code 3745-31-05(A)(3)(a)(ii), effective on May 1, 2016. EPA has made, and will continue to make, these documents generally available through www.regulations.gov and at the EPA Region 5 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    List of Subjects in 40 CFR Part 52

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

    Dated: October 30, 2018. Cathy Stepp, Regional Administrator, Region 5.
    [FR Doc. 2018-24815 Filed 11-13-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2017-0191; FRL-9986-30-Region 5] Air Plan Approval; Michigan; Infrastructure SIP Requirements for the 2012 PM2.5 NAAQS; Multistate Transport AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve elements of the State Implementation Plan (SIP) submission from Michigan regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2012 annual fine particulate matter (PM2.5) National Ambient Air Quality Standard (NAAQS or standard). The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA. This action pertains specifically to infrastructure requirements concerning interstate transport provisions.

    DATES:

    Comments must be received on or before December 14, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2017-0191 at http://www.regulations.gov, or via email to [email protected]. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the For Further Information Contact section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Anthony Maietta, Environmental Protection Specialist, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-8777, [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

    I. What is the background of this SIP submission? II. What guidance and memoranda is EPA using to evaluate this SIP submission? III. EPA's Review IV. What action is EPA taking? V. Statutory and Executive Order Reviews I. What is the background of this SIP submission?

    This rulemaking addresses a submission from the Michigan Department of Environmental Quality dated March 23, 2017, which describes its infrastructure SIP for the 2012 annual PM2.5 NAAQS (78 FR 3086). Specifically, this rulemaking addresses the portion of the submission dealing with interstate pollution transport under CAA Section 110(a)(2)(D)(i), otherwise known as the “good neighbor” provision. The requirement for states to make a SIP submission of this type arises from Section 110(a)(1) of the CAA. Pursuant to Section 110(a)(1), states must submit “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” a plan that provides for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address. EPA commonly refers to such state plans as “infrastructure SIPs.”

    II. What guidance and memoranda is EPA using to evaluate this SIP submission?

    EPA highlighted the statutory requirement to submit infrastructure SIPs within three years of promulgation of a new NAAQS in an October 2, 2007, guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality Standards” (2007 guidance). EPA has issued additional guidance documents and memoranda, including a September 13, 2013, guidance document titled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)” (2013 guidance).

    The most recent relevant document is a memorandum published on March 17, 2016, titled “Information on the Interstate Transport “Good Neighbor” Provision for the 2012 Fine Particulate Matter National Ambient Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I)” (2016 memorandum). The 2016 memorandum describes EPA's consistent approach over the years to address interstate transport, and provides EPA's general review of relevant modeling data and air quality projections as they relate to the 2012 annual PM2.5 NAAQS. The 2016 memorandum provides information relevant to EPA Regional office review of the CAA section 110 (a)(2)(D)(i)(I) “good neighbor” provision in infrastructure SIPs with respect to the 2012 annual PM2.5 NAAQS. Michigan's submittal and this rulemaking consider information provided in that memorandum.

    The 2016 memorandum provides states and EPA Regional offices with future year annual PM2.5 design values for monitors in the United States based on quality assured and certified ambient monitoring data and air quality modeling. The 2016 memorandum further describes how these projected potential design values can be used to help determine which monitors should be further evaluated to potentially address whether emissions from other states significantly contribute to nonattainment or interfere with maintenance of the 2012 annual PM2.5 NAAQS at those sites. The 2016 memorandum explains that, for purposes of addressing interstate transport for the 2012 PM2.5 NAAQS, it may be appropriate to evaluate projected air quality in 2021, which is the attainment deadline for 2012 PM2.5 NAAQS nonattainment areas classified as Moderate. Accordingly, because the available data includes 2017 and 2025 projected average and maximum PM2.5 design values calculated through the CAMx photochemical model, the 2016 memorandum suggests approaches states might use to interpolate PM2.5 values at sites in 2021. The 2016 memorandum indicates that it may be reasonable to assume receptors projected to have average and/or maximum design values above the NAAQS in both 2017 and 2025 are also likely to be either nonattainment or maintenance receptors in 2021. Similarly, the 2016 memorandum indicates that it may be reasonable to assume that receptors that are projected to attain the NAAQS in both 2017 and 2025 are also likely to be attainment receptors in 2021. However, where a potential receptor is projected to be nonattainment or maintenance in 2017, but projected to be attainment in 2025, the 2016 memorandum suggests that further analysis of the emissions and modeling may be needed to make a further judgement regarding the receptor status in 2021.

    The 2016 memorandum indicates that for all but one monitor site in the eastern United States with at least one complete and valid PM2.5 design value for the annual average 2012 NAAQS in the 2009-2013 period, the modeling data shows that monitors were expected to both attain and maintain the 2012 annual PM2.5 NAAQS in both 2017 and 2025. The modeling results provided in the 2016 memorandum show that out of seven PM2.5 monitors located in Allegheny County, Pennsylvania, one monitor is expected to be above the 2012 annual PM2.5 NAAQS in 2017. Further, that monitor the Liberty monitor (ID number 420030064), is projected to be above the NAAQS only under the model's maximum projected conditions (used in EPA's interstate transport framework to identify maintenance receptors), and is projected to both attain and maintain the NAAQS (along with all Allegheny County monitors) in 2025. The 2016 memorandum therefore indicates that under such a condition (where EPA's photochemical modeling indicates an area will maintain the 2012 annual PM2.5 NAAQS in 2025 but not attain in 2017) further analysis of the site should be performed to determine if the site may be a nonattainment or maintenance receptor in 2021 (the attainment deadline for moderate PM2.5 areas).

    The 2016 memorandum also indicates that based on modeling projections, there are 17 potential nonattainment or maintenance receptors in California, located in the San Joaquin Valley and South Coast nonattainment areas, and one potential receptor in Shoshone County, Idaho.

    The 2016 memorandum also indicates that for certain states with incomplete ambient monitoring data, additional information including the latest available data, should be analyzed to determine whether there are potential downwind air quality problems that may be impacted by transported emissions. These states include all or portions of Florida, Illinois, Idaho (outside of Shoshone County), Tennessee, and Kentucky. With the exception of four counties in Florida, the data quality problems have subsequently been resolved for these areas, and these areas now have current design values below the 2012 annual PM2.5 NAAQS and are expected to maintain the NAAQS due to downward emission trends for NOX and SO2.

    Michigan's submittal indicates that the state used data from the 2016 memorandum in its analysis. EPA considered the analysis from Michigan, as well as additional analysis conducted by EPA, in its review of the Michigan submittal.

    III. EPA's Review

    This rulemaking proposes action on the portion of Michigan's March 23, 2017 SIP submission addressing the good neighbor provision requirements of CAA Section 110(a)(2)(D)(i). State plans must address four requirements of the good neighbor provisions (commonly referred to as “prongs”), including:

    —Prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong one); —Prohibiting any source or other type of emissions activity in one state from interfering with maintenance of the NAAQS in another state (prong two); —Prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration (PSD) of air quality in another state (prong three); and —Protecting visibility in another state (prong four).

    This rulemaking is evaluating Michigan's March 23, 2017 submission, to determine whether Michigan's interstate transport provisions in its PM2.5 infrastructure SIP meet prongs one and two of the good neighbor requirements of the CAA. Prongs three and four will be evaluated in a separate rulemaking.

    EPA has developed a consistent framework for addressing the prong one and two interstate transport requirements with respect to the PM2.5 NAAQS in several previous Federal rulemakings. The four basic steps of that framework include: (1) Identifying downwind receptors that are expected to have problems attaining or maintaining the NAAQS; (2) identifying which upwind states contribute to these identified problems in amounts sufficient to warrant further review and analysis; (3) for states identified as contributing to downwind air quality problems, identifying upwind emissions reductions necessary to prevent an upwind state from significantly contributing to nonattainment or interfering with maintenance of the NAAQS downwind; and (4) for states that are found to have emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS downwind, reducing the identified upwind emissions through adoption of permanent and enforceable measures. This framework was most recently applied with respect to PM2.5 in the August 8, 2011 Cross-State Air Pollution Rule (CSAPR) (76 FR 48208), designed to address both the 1997 and 2006 PM2.5 standards, as well as the 1997 and 2008 ozone standards.

    Michigan's March 23, 2017 submission indicates that the implementation of the Michigan SIP for SO2 will result in SO2 reductions of over 11,000 tons per year through permit changes and Rule 336.1430 in the Michigan Administrative Code (Michigan R 336.1430). The submission indicates that rules R 336.1301 through R 336.1374 in the Michigan SIP limit emissions of particulate matter throughout the state. The submission indicates that rules R 336.1401 through R 336.1420 and R 336.1407 reduce SO2 emissions throughout the state, and that rule R 336.1430 reduces SO2 emissions in the Detroit area. The submission indicates that rules R 336.1801 through 336.1834 limit emissions of NO2 throughout the state. In addition, Michigan's submission indicates that power plant retirements across the state have resulted in reductions of approximately 9,800 tons of NOX and 30,990 tons of SO2 per year.

    Michigan's submittal also contains a technical analysis of its interstate transport of pollution relative to the 2012 annual PM2.5 NAAQS. The technical analysis studies Michigan sources' contribution to monitored PM2.5 air quality values in other states and whether Michigan would need to take further steps to decrease its emissions to (and therefore impacts on) those areas. Michigan's technical analysis considers CSAPR rule implementation, EPA guidance and memoranda, and other factors such as meteorology and state-wide emissions inventories. Michigan did not focus on potential contribution to areas EPA identified as not attaining the 2012 annual PM2.5 NAAQS based on monitor data in Alaska, California, Idaho, Nevada, or Hawaii.

    The distance between Michigan these areas, coupled with the prevailing wind directions, leads EPA to propose to find that Michigan will not contribute significantly to any of the potential receptors in those states.

    With respect to Illinois, EPA's source apportionment modeling in our original CSAPR analysis predicts that Michigan's emissions impact Illinois monitors. Michigan found, and our review confirmed, that despite the fact that Michigan emissions potentially contribute to increases in PM2.5 levels monitored in Illinois, all areas in Illinois are attaining the 2012 annual PM2.5 NAAQS based on 2015-2017 data.

    EPA considered available data from monitors in Illinois for its analysis of Michigan's submittal. As shown in Table 1, Illinois is now meeting the standard throughout the state.

    Table 1—Illinois Annual PM2.5 Design Values for 2015-2017 Design Period Local site name Monitoring site 2015-2017
  • Design
  • value
  • g/m 3)
  • Alsip 17-031-0001 9.5 Washington High School 17-031-0022 9.3 Mayfair Pump Station 17-031-0052 9.1 Springfield Pump Station 17-031-0057 10.2 Com Ed 17-031-0076 9.5 Schiller Park 17-031-3103 10.5 Summit 17-031-3301 9.7 Des Plaines 17-031-4007 9.4 Northbrook 17-031-4201 8.4 Cicero 17-031-6005 10.0 Naperville 17-043-4002 8.3 Elgin 17-089-0003 8.3 Aurora 17-089-0007 8.3 Cary 17-111-0001 + 8.2 Joliet 17-197-1002 7.9 Braidwood 17-197-1011 7.9 Jerseyville 17-083-0117 + 8.8 Granite City 17-119-1007 9.7 Alton 17-119-2009 8.8 Wood River 17-119-3007 8.7 Houston 17-157-0001 8.5 East St. Louis 17-163-0010 9.8 Champaign 17-019-0006 7.9 Bondville 17-019-1001 7.8 Knight Prairie 17-065-0002 8.2 Normal 17-113-2003 8.0 Decatur 17-115-0013 8.4 Peoria 17-143-0037 8.2 Rock Island 17-161-3002 8.1 Springfield 17-167-0012 8.2 Rockford 17-201-0013 8.3 + Data incomplete.

    Illinois' air quality trends reflect what is shown across the nation: A general downward trend in ambient air concentrations, including sites that Michigan analyzed in its submittal. During the last valid design period, only three Illinois counties reported 2008-2010 annual PM2.5 design values above the NAAQS: Cook, Madison, and Saint Clair counties. In Cook County, the 2008-2010 annual design value was 13.0 micrograms per cubic meter (µg/m3), and the annual mean values have trended downward. As shown in the table above, these areas are now meeting the NAAQS for the 2015 to 2017 design period. Therefore, EPA expects that all counties in Illinois will attain and maintain the PM2.5 NAAQS without the need for additional PM2.5 reductions in Michigan, and for this reason, we propose to find that Michigan will not contribute significantly to nonattainment or maintenance problems in Illinois.

    Michigan found, and our review confirmed, that despite the fact that Michigan emissions potentially increase PM2.5 levels monitored in areas in other states, all of those areas are attaining the 2012 annual PM2.5 NAAQS based on 2014-2016 data. Michigan found, and our review confirmed, that despite the fact that Michigan emissions potentially increase PM2.5 levels monitored in Pennsylvania, all areas in Pennsylvania except for Allegheny County are attaining the 2012 annual PM2.5 NAAQS based on 2015-2017 data.

    The modeling information contained in EPA's 2016 memorandum shows that one monitor in Allegheny County, PA (the Liberty monitor, 420030064) may have a maintenance issue in 2017, but is projected to both attain and maintain the NAAQS by 2025. A linear interpolation of the modeled design values to 2021 shows that the monitor is likely to both attain and maintain the standard by 2021. Emissions and air quality data trends help to corroborate this interpolation.

    Over the last decade, local and regional emissions reductions of primary PM2.5, sulfur dioxide (SO2), and nitrogen oxide (NOX), have led to large reductions in annual PM2.5 design values in Allegheny County, Pennsylvania. In 2007, all of Allegheny County's PM2.5 monitors exceeded the level of the 2012 annual PM2.5 NAAQS (the 2005-2007 annual average design values ranged from 12.9-19.8 µg/m3, as shown in Table 3). The 2015-2017 annual average PM2.5 design values now show that only one monitor (Liberty, at 13.0 µg/m3) exceeds the health-based annual PM2.5 NAAQS of 12.0 µg/m3.

    Table 3—PM2.5 Annual Design Values in µg/m 3 Monitor 2005-2007 2006-2008 2007-2009 2008-2010 2009-2011 2010-2012 2011-2013 2012-2014 2013-2015 2014-2016 2015-2017 Avalon * 16.3 * 14.7 13.4 11.4 10.6 10.6 * 10.4 * 10.2 Lawrenceville 15.0 14.0 13.1 12.2 11.6 11.1 10.3 10.0 9.7 9.5 9.2 Liberty 19.8 18.3 17.0 16.0 15.0 14.8 13.4 13.0 12.6 12.8 13.0 South Fayette 12.9 * 11.8 11.7 11.1 11.0 10.5 9.6 9.0 8.8 * 8.5 * 8.4 North Park * 13.0 * 12.3 * 11.3 * 10.1 9.7 9.4 8.8 8.5 8.5 * 8.2 * 8.2 Harrison 15.0 14.2 13.7 13.0 12.4 * 11.7 10.6 10.0 9.8 9.8 9.8 North Braddock 16.2 15.2 14.3 13.3 12.7 12.5 * 11.7 11.4 11.2 11.0 10.8 Parkway East Near-Road * 10.6 * 10.6 Clairton 15.3 14.3 13.2 12.4 * 11.5 * 10.9 * 9.8 9.5 9.8 * 9.8 * 9.8 * Value does not contain a complete year's worth of data.

    The Liberty monitor is already close to attaining the NAAQS, and expected emissions reductions in the next three years will lead to additional reductions in measured PM2.5 concentrations. There are both local and regional components to the measured PM2.5 levels in Allegheny County and the greater Pittsburgh area. Previous CSAPR modeling showed that regional emissions from upwind states, particularly SO2 and NOX emissions, contribute to PM2.5 nonattainment at the Liberty monitor. In recent years, large SO2 and NOX reductions from power plants have occurred in Pennsylvania and states upwind from the Greater Pittsburgh region. Based on existing CSAPR budgets, Pennsylvania's energy sector emissions of SO2 will have decreased 166,000 tons between 2015-2017 as a result of CSAPR implementation. This is due to both the installation of emissions controls and retirements of electric generating units (EGUs).

    Between 2011 and 2016, 27.4 gigawatts of coal-fired EGUs have retired in Pennsylvania and the closest upwind states (West Virginia, Ohio, Kentucky, Indiana, Illinois, and Michigan) according to the Energy Information Administration's Preliminary Monthly Electric Generator Inventory, April 2017 (form EIA-860M, at https://www.eia.gov/electricity/data/eia860m/xls/april_generator2017.xlsx). In addition, between 2017 and 2021, an additional 8.8 gigawatts of coal-fired EGUs are expected to retire in the same upwind states. This includes large EGUs such as JM Stuart in Ohio (2,308 megawatts [MW]), Killen Station in Ohio (600 MW), WH Sammis in Ohio (720 MW), Michigan City in Indiana (469 MW), Will County in Illinois (510 MW), Baldwin Energy Complex in Illinois (576 MW), Paradise in Kentucky (1,230 MW), and Baily in Indiana (480 MW). These regional coal unit retirements will lead to further emissions reductions which will help ensure that Alleghany County monitors will not have nonattainment or maintenance issues by 2021.

    In addition to regional emissions reductions and plant closures noted above, additional local reductions in both direct PM2.5 and SO2 emissions are also expected to occur and should also contribute to further declines in Allegheny County's PM2.5 monitor concentrations. For example, significant SO2 reductions will occur at U.S. Steel's integrated steel mill facilities in southern Allegheny County due to reductions required via federally-enforceable permits issued by Allegheny County to support its attainment plan submitted to meet requirements in CAA section 172(c) for the 1-hr SO2 NAAQS. Reductions are expected by October 2018 largely due to declining sulfur content in the Clairton Coke Work's coke oven gas (COG) due to upgraded controls. Because this COG is burned at U.S. Steel's Clairton Coke Works, Irvin Mill, and Edgar Thompson Steel Mill, these reductions in sulfur content should contribute to much lower PM2.5 emissions from precursors in the immediate future after October 4, 2018 as SO2 is a precursor to PM2.5. Additionally, improvement in SO2 removal efficiency due to an upgrade in the Bruce Mansfield Power Plant's flue gas desulfurization (FGD) units expected by October 2018 should also help reduce precursor emissions from neighboring Beaver County, Pennsylvania. The Allegheny County and Beaver County SO2 SIP submissions, which EPA is reviewing pursuant to CAA requirements, also discuss expected lower SO2 emissions in the Allegheny County area resulting from reduced sulfur content requirements in vehicle fuels, reductions in general emissions due to declining population in the Greater Pittsburgh region, and several shutdowns of significant emitters of SO2 in Allegheny County.

    Projected power plant closures and additional emissions controls in Pennsylvania and upwind states will help further reduce both direct PM2.5 and PM2.5 precursors. Regional emission reductions will continue to occur from current on-the-books Federal and state regulations such as the Federal on-road and non-road vehicle programs, and various rules for major stationary emissions sources.

    In addition to regional emissions reductions and plant closures, additional local reductions to both direct PM2.5 and SO2 emissions are expected to occur and should also contribute to further declines in Allegheny County's PM2.5 monitor concentrations. For example, significant SO2 reductions have recently occurred at US Steel's integrated steel mill facilities in southern Allegheny County as part of a 1-hr SO2 NAAQS SIP.1 Reductions are largely due to declining sulfur content in the Clairton Coke Work's COG. Because this COG is burned at US Steel's Clairton Coke Works, Irvin Mill, and Edgar Thompson Steel Mill, these reductions in sulfur content should contribute to much lower PM2.5 precursor emissions in the immediate future. The Allegheny SO2 SIP also projects lower SO2 emissions resulting from vehicle fuel standards, reductions in general emissions due to declining population in the Greater Pittsburgh region and several shutdowns of significant sources of emissions in Allegheny County.

    1http://www.achd.net/air/publichearing2017/SO2_2010_NAAQS_SIP_5-1-2017.pdf.

    EPA modeling projections, the recent downward trend in local and upwind emissions reductions, the expected continued downward trend in emissions between 2018 and 2021, and the downward trend in monitored PM2.5 concentrations all indicate that the Liberty monitor will attain and be able to maintain the 2012 annual PM2.5 NAAQS by 2021.

    With respect to Florida, in the CSAPR modeling analysis for the 1997 PM2.5 NAAQS, Florida did not have any potential nonattainment or maintenance receptors identified for the 1997 or 2006 PM2.5 NAAQS. At this time, it is anticipated that this trend will continue, however, as there are ambient monitoring data gaps in the 2009-2013 data that could have been used to identify potential PM2.5 nonattainment and maintenance receptors for Miami/Dade, Gilchrist, Broward and Alachua counties in Florida, the modeling analysis of potential receptors was not complete for these counties. However, the most recent ambient data (2015-2017) for these counties indicates design values well below the level of the 2012 annual PM2.5 NAAQS. In addition, the highest value for these observed monitors is 8.0 μg/m3 at the Hillsborough County monitor (12-057-3002), which is well below the NAAQS. This is also consistent with historical data: Complete and valid design values in the 2006-2008, 2007-2009 and/or 2008-2010 periods for these counties were all well below the 2012 annual PM2.5 NAAQS. This is also consistent with historical data: Complete and valid design values in the 2006-2008 and/or 2007-2009 periods for these counties were well below the 2012 annual PM2.5 NAAQS. For these reasons, we find that none of the counties in Florida with monitoring gaps between 2009-2013 should be considered either nonattainment or maintenance receptors for the 2012 annual PM2.5 NAAQS. For these reasons, we propose to find that emissions from Michigan will not significantly contribute to nonattainment or interfere with maintenance of the 2012 annual PM2.5 NAAQS in Florida. We find further support in the fact that EPA's source apportionment modeling predicting state impacts on downwind monitors in 2012 under the base case scenario in our original CSAPR analysis, showing little impact from Michigan to any of Florida's counties.

    The conclusions of Michigan's analysis are consistent with EPA's expanded review of its March 23, 2017 submittal. All areas that Michigan sources potentially contribute to are expected to attain and maintain the 2012 annual PM2.5 NAAQS, and as demonstrated in its submittal, Michigan will not contribute to projected nonattainment or maintenance issues at any sites in 2021. Michigan's analysis shows that through permanent and enforceable measures currently contained in its SIP, and other emissions reductions occurring in Michigan and in other states, monitored PM2.5 air quality in all identified areas that Michigan sources may impact will continue to improve, and that no further measures are necessary to satisfy Michigan's responsibilities under CAA section 110(a)(2)(D)(i)(I). Therefore, EPA is proposing that prongs one and two of the interstate pollution transport element of Michigan's infrastructure SIP are approvable.

    IV. What action is EPA taking?

    EPA is proposing to approve a portion of Michigan's March 23, 2017, submittal certifying that the current Michigan SIP is sufficient to meet the required infrastructure requirements under CAA section 110(a)(2)(D)(i)(I), specifically prongs one and two, as set forth above. EPA is requesting comments on the proposed approval.

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.

    Dated: October 29, 2018. Cathy Stepp, Regional Administrator, Region 5.
    [FR Doc. 2018-24817 Filed 11-13-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-HQ-OAR-2018-0226; FRL-9986-44-OAR] RIN 2060-AT97 Determinations of Attainment by the Attainment Date, Extensions of the Attainment Date, and Reclassification of Several Areas Classified as Moderate for the 2008 Ozone National Ambient Air Quality Standards AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing three actions related to the attainment date for 11 areas classified as “Moderate” for the 2008 ozone National Ambient Air Quality Standards (NAAQS). First, the agency is proposing to determine that two areas—the Baltimore, Maryland, and Mariposa County, California, nonattainment areas—attained the standard by the July 20, 2018, attainment date. Second, the agency is proposing to grant requests for a 1-year attainment date extension to two other areas: Denver-Boulder-Greeley-Ft. Collins-Loveland, Colorado, and Sheboygan County, Wisconsin. Third, the agency is proposing to determine that seven areas failed to attain the standards by the attainment date: Chicago-Naperville, Illinois-Indiana-Wisconsin; Dallas-Fort Worth, Texas; Greater Connecticut, Connecticut; Houston-Galveston-Brazoria, Texas; Nevada County (Western part), California; New York-North New Jersey-Long Island, Connecticut-New York-New Jersey; and San Diego County, California. The effect of failing to attain by the attainment date is that such areas will be reclassified by operation of law to “Serious” upon the effective date of the final reclassification notice. Consequently, the responsible state air agencies must submit State Implementation Plan (SIP) revisions required to satisfy the statutory and regulatory requirements for Serious areas for the 2008 ozone NAAQS. The EPA is proposing deadlines for submittal of those SIP revisions and implementation of the related control requirements. This proposed action is necessary to fulfill the EPA's statutory obligation to determine whether ozone nonattainment areas attained the NAAQS by the attainment date, and, within 6 months of the attainment date, publish a notice in the Federal Register identifying each area that is determined as having failed to attain and identifying the reclassification.

    DATES:

    Comments. Written comments must be received on or before December 14, 2018.

    Public Hearings. If anyone contacts us requesting a public hearing on or before November 29, 2018, we will hold a public hearing. Additional information about the hearing, if requested, will be published in a subsequent Federal Register document. Please refer to SUPPLEMENTARY INFORMATION for additional information on the comment period and the public hearing.

    ADDRESSES:

    Comments: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2018-0226, at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, Cloud or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/comments.html.

    Public Hearing. If anyone contacts us requesting a public hearing on or before November 29, 2018, we will hold a public hearing. Please refer to SUPPLEMENTARY INFORMATION for additional information on the comment period and the public hearing.

    FOR FURTHER INFORMATION CONTACT:

    For further general information on this proposed rule, contact Ms. Virginia Raps, Office of Air Quality Planning and Standards (OAQPS), Air Quality Policy Division, U.S. Environmental Protection Agency, Mail Code: C539-01, Research Triangle Park, NC 27711, telephone (919) 541-4383; fax number: (919) 541-5315; email address: [email protected]. To request a public hearing or information pertaining to a public hearing on this notice, contact Ms. Pamela Long at (919) 541-0641 or [email protected].

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

    Entities potentially directly affected by this proposed action include state, local, and tribal air pollution control or management agencies. Individuals and entities potentially indirectly affected by this action include owners and operators of sources that emit volatile organic compounds (VOC) and nitrogen oxides (NOX) emissions, which contribute to ground-level ozone formation within the ozone nonattainment areas that are the subject of this proposed notice.

    B. What should I consider as I prepare my comments for the EPA?

    1. Submitting CBI. Do not submit this information to the EPA through https://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on any digital storage media that you mail to the EPA, mark the outside of the digital storage media as CBI and then identify electronically within the digital storage media the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed to be CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2 “Public Information.”

    2. Tips for Preparing Your Comments. When submitting comments, remember to:

    a. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

    b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a CFR part or section number.

    c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

    d. Describe any assumptions and provide any technical information and/or data that you used.

    e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow reproduction of your method and the results.

    f. Provide specific examples to illustrate your concerns and suggest alternatives.

    g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

    h. Make sure to submit your comments by the comment period deadline identified under DATES in this notice.

    C. Where can I get a copy of this document and other related information?

    In addition to being available in the docket, an electronic copy of this notice will be posted at https://www.epa.gov/ozone-pollution.

    D. What information should I know about a possible public hearing?

    To request a public hearing or information pertaining to a public hearing on this notice, contact Ms. Pamela Long at (919) 541-0641 or [email protected] before 5 p.m. on or before November 29, 2018. If requested, further details concerning a public hearing for this proposed rule will be published in a separate Federal Register document. For updates and additional information on a public hearing, please check the EPA's website for this rulemaking at https://www.epa.gov/ozone-pollution.

    E. How is this preamble organized?

    The information and proposals presented in this notice are organized as follows:

    I. General Information A. Does this action apply to me? B. What should I consider as I prepare my comments for the EPA? C. Where can I get a copy of this document and other related information? D. What information should I know about a possible public hearing? E. How is this preamble organized? II. Overview and Basis of Proposal A. Overview of Proposal B. What is the background for the proposed actions? C. What is the statutory authority for the proposed actions? D. How does the EPA determine whether an area has attained the 2008 ozone standards? III. What is the EPA proposing and what is the rationale? A. Determinations of Attainment by the Attainment Date B. Extensions of Moderate Area Attainment Date C. Determinations of Failure To Attain and Reclassification D. Serious Area SIP Revision Submission Deadlines and RACT Implementation Deadlines IV. Environmental Justice Considerations V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs C. Paperwork Reduction Act (PRA) D. Regulatory Flexibility Act (RFA) E. Unfunded Mandates Reform Act (UMRA) F. Executive Order 13132: Federalism G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use J. National Technology Transfer and Advancement Act (NTTAA) K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations II. Overview and Basis of Proposal A. Overview of Proposal

    The EPA Administrator is required to determine whether areas designated nonattainment for an ozone NAAQS attained the standard by the applicable attainment date, and to take certain steps for areas that failed to attain.1 For a concentration-based standard, such as the 2008 ozone NAAQS,2 a determination of attainment 3 is based on a nonattainment area's design value.4

    1See CAA section 181(b)(2).

    2 Because the 2008 primary and secondary NAAQS for ozone are identical, for convenience, the EPA refers to them together as “the 2008 ozone NAAQS.”

    3 The criteria for determining if an area is attaining the 2008 ozone NAAQS are set out in 40 CFR 50.15 and 40 CFR part 50, Appendix P.

    4 A design value is a statistic used to compare data collected at an ambient air quality monitoring site to the applicable NAAQS to determine compliance with the standard. The design value for the 2008 ozone NAAQS is the 3-year average of the annual fourth highest daily maximum 8-hour average ozone concentration. The design value is calculated for each air quality monitor in an area and the area's design value is the highest design value among the individual monitoring sites in the area.

    The 2008 ozone NAAQS are met at an ambient monitoring site when the design value does not exceed 0.075 parts per million (ppm). For areas classified as Moderate nonattainment for the 2008 ozone NAAQS, the attainment date is July 20, 2018. Because the design value is based on the three most recent, complete calendar years of data, attainment must occur no later than December 31 of the year prior to the attainment date (i.e., December 31, 2017, in the case of Moderate nonattainment areas for the 2008 ozone NAAQS). As such, the EPA's proposed determinations for each area are based upon the complete, quality-assured and certified ozone monitoring data from calendar years 2015, 2016, and 2017.

    All monitors in an area must be considered when determining if the area attains the NAAQS. To make the determination that an area attains the NAAQS, each monitor must have a valid 5 design value meeting the standard. If one or more monitors in an area have a design value that exceeds the standard, the area does not attain the NAAQS.

    5 Design values attaining the 2008 ozone NAAQS must also meet minimum data completeness requirements specified in 40 CFR part 50, Appendix P to be considered valid.

    This proposed action addresses 11 of the 14 nonattainment areas that were classified as Moderate for the 2008 ozone NAAQS as of the Moderate area attainment date of July 20, 2018, that have not already been reclassified to Serious.6 The remaining three areas will be addressed in separate actions:

    6 The Kern County (Eastern Kern), California, nonattainment area was reclassified from Moderate to Serious effective August 6, 2018, in response to a voluntary reclassification request submitted by the state of California (see 83 FR 31334, July 5, 2018). SIP revisions addressing Serious area requirements for Eastern Kern County will be due on August 6, 2019, and the area must attain the 2008 ozone standards by July 20, 2021.

    (1) On September 27, 2016, May 17, 2018, and July 17, 2018, the Arizona Department of Environmental Quality submitted to the EPA for review exceptional events demonstrations for the Phoenix-Mesa, Arizona, Moderate nonattainment area.7 Actions taken by the EPA on the demonstrations may affect a determination of attainment by the attainment date for the area. The proposed action to determine attainment for the Phoenix-Mesa, Arizona, area by the attainment date for the Moderate 2008 ozone NAAQS will, therefore, be addressed in a separate Federal Register notice.

    7 CAA section 319(b) defines an exceptional event as an event that (i) affects air quality; (ii) is not reasonably controllable or preventable; (iii) is an event caused by human activity that is unlikely to recur at a particular location or a natural event; and (iv) is determined by the Administrator through process established in regulation to be an exceptional event. ADEQ submitted its demonstration pursuant to 40 CFR 50.14, which establishes the process by which states may request that the Administrator determine that air quality monitoring data showing exceedances or violations of the NAAQS that are directly due to an exceptional event may be excluded from regulatory determinations, including whether a nonattainment area has met the NAAQS by its deadline.

    (2) The Imperial County, California, Moderate nonattainment area is not included in this proposed action. On July 9, 2018, the California Air Resources Board submitted the “Imperial County Clean Air Act Section 179B(b) Retrospective Analysis for the 75 ppb 8-Hour Ozone Standard,” which may affect a determination of attainment by the attainment date for this area.8 The proposed action to determine attainment for the Imperial County, California, area by the attainment date for the Moderate 2008 ozone NAAQS will be addressed in a separate Federal Register notice.

    8 CAA section 179B(b) provides that where a state demonstrates to the Administrator's satisfaction that an ozone nonattainment area would have attained the NAAQS by the applicable attainment date but for emissions emanating from outside the United States, that area shall not be subject to the mandatory reclassification provision, CAA section 181(b)(2). Note that the statute cites 42 U.S.C. 7511(a)(2), but that provision establishes ozone attainment deadlines for severe areas under the 1-hour standard. The EPA has long interpreted the citation in CAA section 179B(b) to be a scrivener's error that was supposed to refer to 42 U.S.C. 7511(b)(2), which refers to consequences for failure to attain by the attainment date.

    (3) The Moderate nonattainment area for the Pechanga Band of Luiseno Mission Indians of the Pechanga Reservation based in California is not included in this proposed action because the EPA has not yet finalized a 2015-2017 design value for the nonattainment area.

    Table 1 provides a summary of the design values and the EPA's proposed air quality-based determinations for the 11 Moderate areas addressed in this action.

    Table 1—2008 Ozone NAAQS Moderate Nonattainment Area Evaluation Summary 2008 NAAQS nonattainment area 2015-2017
  • Design
  • value
  • (ppm)
  • 2008 NAAQS
  • attained by the Moderate
  • attainment date
  • 2017 4th Highest daily
  • maximum 8-hr average
  • (ppm)
  • Area failed to attain 2008 NAAQS but eligible for 1-year attainment date extension
  • based on 2017 4th highest
  • daily maximum 8-hr average ≤0.075 ppm
  • Baltimore, MD 0.075 Attained Not applicable Not applicable. Chicago-Naperville, IL-IN-WI 0.078 Failed to Attain 0.079 No. Dallas-Fort Worth, TX 0.079 Failed to Attain 0.077 No. Denver-Boulder-Greeley-Ft. Collins-Loveland, CO 0.079 Failed to Attain 0.075 Yes. Greater Connecticut, CT 0.076 Failed to Attain 0.078 No. Houston-Galveston-Brazoria, TX 0.081 Failed to Attain 0.079 No. Mariposa County, CA 0.075 Attained Not applicable Not applicable. Nevada County (Western part), CA 0.087 Failed to Attain 0.090 No. New York-N. New Jersey-Long Island, CT-NJ-NY 0.083 Failed to Attain 0.086 No. San Diego County, CA 0.084 Failed to Attain 0.090 No. Sheboygan County, WI 0.080 Failed to Attain 0.075 Yes.

    The data used to calculate both the 2015-2017 design values and the 2017 fourth highest daily maximum 8-hour averages are provided in the technical support document (TSD) found in the docket for this proposed action.9

    9 “Technical Support Document Regarding Ozone Monitoring Data—Determinations of Attainment, 1-Year Attainment Date Extensions, and Reclassifications for Moderate Areas under the 2008 8-Hour Ozone National Ambient Air Quality Standards (NAAQS),” Docket ID No. EPA-OAR-2018-0226.

    The EPA proposes to find that the Baltimore, Maryland, and Mariposa County, California, Moderate nonattainment areas attained by the attainment date as evidenced by the 2015-2017 design values presented in Table 1, which do not exceed 0.075 ppm. The EPA proposes to grant a 1-year attainment date extension for the Denver-Boulder-Greeley-Ft. Collins-Loveland, Colorado, and Sheboygan County, Wisconsin, nonattainment areas. Colorado and Wisconsin have complied with all requirements and commitments pertaining to the area in the applicable implementation plan,10 and demonstrated that the 2017 fourth highest daily maximum 8-hour average ozone concentrations do not exceed 0.075 ppm. Accordingly, the EPA proposes to establish a new attainment date of July 20, 2019, for these areas.

    10See CAA section 181(a)(5).

    The EPA proposes to determine that seven Moderate areas with a 2015-2017 design value greater than 0.075 ppm did not attain by the attainment date and do not qualify for a 1-year attainment date extension under CAA section 181(a)(5), as interpreted by the EPA in 40 CFR 51.1107. If the EPA determines that a nonattainment area classified as Moderate failed to attain by the attainment date, the EPA shall publish the identity of each such area in the Federal Register no later than 6 months following the attainment date and identify the reclassification as required under CAA section 181(b)(2)(B).

    Furthermore, as required under CAA section 181(b)(2)(A), if the EPA finalizes the determinations that these seven areas failed to attain by the attainment date, they will be reclassified to Serious by operation of law.11 The reclassified areas will then be subject to the Serious area requirement to attain the 2008 ozone NAAQS as expeditiously as practicable, but not later than July 20, 2021.

    11 None of the 2015-2017 design values shown in Table 1 for any of the seven areas proposed to be reclassified as Serious equals or exceeds 0.113 ppm, which is the threshold for reclassifying an area to Severe under CAA section 181(b)(2)(A) and 40 CFR 51.1103. Therefore, none of these areas are required to be reclassified by operation of law to Severe or Extreme.

    Once reclassified as Serious, the relevant states must submit to the EPA the SIP revisions for these areas that satisfy the statutory and regulatory requirements applicable to Serious areas established in CAA section 182(c) and in the 2008 Ozone NAAQS SIP Requirements Rule (see 80 FR 12264, March 6, 2015).12 However, the deadlines specified in section 182(c) have passed for plan submissions applicable to areas originally classified as Serious on July 20, 2012. For instance, 40 CFR 51.1108 established the deadline for Serious-area attainment demonstrations to be 48 months after the effective date of nonattainment designation, or July 20, 2016, a date that has passed and cannot be met by areas reclassified in this notice. Under CAA section 182(i), reclassified areas are required to meet the requirements associated with their newly reclassified status according to the schedules prescribed in connection with such requirements, except that the Administrator may adjust applicable deadlines (other than attainment dates) to the extent such adjustment is “necessary or appropriate to assure consistency among the required submissions.” Because these dates have already passed, the EPA is using its discretion granted under CAA section 182(i) to propose adjusting the deadlines for submitting SIP revisions that would otherwise apply under CAA section 182(c).

    12 In South Coast Air Quality Mgmt. Dist. v. EPA, 882 F.3d 1138 (DC Cir. 2018), the D.C. Circuit granted in part and denied in part petitions for review challenging the 2008 ozone NAAQS SIP Requirements Rule. Among other things, the D.C. Circuit vacated the portion of the rule that allowed states to select an alternative baseline year (i.e., a year other than 2011) for purposes of calculating reasonable further progress. See id. at 882 F.3d at 1152-53. South Coast Air Quality Management District petitioned the Court for rehearing on this issue and the Court denied that petition. South Coast, No. 15-1123, Order No. 1750751 (DC Cir. September 14, 2018).

    As discussed in Section III.D of this notice, the EPA proposes that the SIP revisions, not including the Reasonably Available Control Technology (RACT) SIP revision required under CAA sections 182(b)(2) and 182(f), will be due 12 months after the effective date of the final reclassification notice. The EPA also discusses its proposed deadlines, and solicits comments on alternative due dates and deadlines, for RACT SIP revisions and RACT implementation for the newly reclassified Serious areas.

    B. What is the background for the proposed actions?

    On March 12, 2008, the EPA issued its final action to revise the NAAQS for ozone to establish new 8-hour standards (73 FR 16436, March 27, 2008). In that action, the EPA promulgated identical revised primary and secondary ozone standards designed to protect public health and welfare that specified an 8-hour ozone level of 0.075 ppm. Specifically, the standards require that the 3-year average of the annual fourth highest daily maximum 8-hour average ozone concentration may not exceed 0.075 ppm. The 2008 ozone NAAQS retain the same general form and averaging time as the 0.08 ppm ozone NAAQS set in 1997, so that the only difference is the more protective level of 0.075 ppm.

    Effective on July 20, 2012, the EPA designated 46 areas throughout the country as nonattainment for the 2008 ozone NAAQS (77 FR 30088, May 21, 2012, and 77 FR 34221, June 11, 2012). In a separate action, the EPA assigned classification thresholds and attainment dates based on the severity of each nonattainment area's ozone problem, determined by the area's design values (77 FR 30160, May 21, 2012).13 In that rule, the EPA established the attainment date for Moderate and Serious nonattainment areas as 6 years and 9 years, respectively, from the effective date of the final designation, July 20, 2012. Thus, the attainment date for Moderate nonattainment areas for the 2008 ozone NAAQS was July 20, 2018, and the attainment date for Serious areas is July 20, 2021. In a separate action effective on June 3, 2016, the EPA reclassified 11 of the 36 Marginal areas to Moderate for failing to attain the NAAQS by the July 20, 2015, Marginal attainment date (81 FR 26697, May 4, 2016). In that action, two Marginal areas received 1-year attainment date extensions. However, these two areas were later reclassified to Moderate for failing to attain the NAAQS by the July 20, 2016, extended Marginal area attainment date (Houston-Galveston-Brazoria, Texas—81 FR 90207, December 14, 2016; Sheboygan County, Wisconsin—81 FR 91841 December 19, 2016).

    13 Three areas were initially classified Moderate for the 2008 ozone NAAQS: Baltimore, Maryland, Dallas-Ft. Worth, Texas, and the Pechanga Reservation, located in southern California. Classifications for the remaining areas (of the 46 areas designated nonattainment for the 2008 ozone NAAQS) were 36 Marginal, two Serious, three Severe, and two Extreme areas.

    C. What is the statutory authority for the proposed actions?

    The statutory authority for the actions proposed in this notice is provided by the CAA, as amended (42 U.S.C. 7401 et seq.). Relevant portions of the CAA include, but are not necessarily limited to, sections 181(a)(5) and 181(b)(2).

    By way of background, CAA section 107(d) provides that when the EPA establishes or revises a NAAQS, the agency must designate areas of the country as nonattainment, attainment, or unclassifiable based on whether they are not meeting (or contributing to air quality in a nearby area that is not meeting) the NAAQS, meeting the NAAQS or cannot be classified as meeting or not meeting the NAAQS, respectively. Subpart 2 of part D of title I of the CAA governs the classification, state planning and emissions control requirements for any areas designated as nonattainment for a revised primary ozone NAAQS. In particular, CAA section 181(a)(1) requires each area designated as nonattainment for a revised ozone NAAQS to be “classified” at the same time as the area is designated based on the extent of the ozone problem in the area (as determined based on the area's “design value,” which represents air quality in the area for the most recent 3 years). Classifications for ozone nonattainment areas range from “Marginal” to “Extreme” based on the severity of the area's air quality problem. CAA section 182 provides the specific attainment planning and additional requirements that apply to each ozone nonattainment area based on its classification. CAA section 182, as interpreted by the EPA's implementing regulations at 40 CFR 51.1108—1117, also establishes the timeframes by which air agencies must submit and implement SIP revisions to satisfy the applicable attainment planning elements, and the timeframes by which nonattainment areas must attain the 2008 ozone NAAQS. However, the EPA is proposing in Section III.D of this notice to adjust the deadlines for SIP revisions for any newly classified Serious nonattainment areas, as provided for in CAA section 182(i), including deadlines for RACT SIP revisions and RACT implementation.

    Section 181(b)(2)(A) of the CAA requires that within 6 months following the applicable attainment date, the EPA shall determine whether an ozone nonattainment area attained the ozone standard based on the area's design value as of that date. Section 181(a)(5) of the CAA gives the EPA the discretion to grant a 1-year extension of the attainment date upon application by any state if: (1) The state has complied with all requirements and commitments pertaining to the area in the applicable implementation plan; and (2) no more than one measured exceedance of the NAAQS for ozone has occurred in the area preceding the extension year. The EPA may grant a second 1-year extension if these same criteria are met by the end of the first extension year.

    In 40 CFR 51.1107, the EPA interpreted CAA section 181(a)(5)(B)'s exceedance-based air quality requirement of the extension criteria for purposes of a concentration-based standard like the 2008 8-hour ozone NAAQS. For purposes of determining an area's eligibility for an attainment date extension for the 2008 ozone NAAQS, the EPA has interpreted the criteria of CAA section 181(a)(5)(B) to mean that an area is eligible for a 1-year extension of the attainment date if it fourth highest daily maximum 8-hour value for the attainment year does not exceed the level of the standard.14

    14See 40 CFR 51.1107 pertaining to determining eligibility under CAA section 181(a)(5)(B) for the first and the second 1-year attainment date extensions for the 2008 ozone NAAQS. For the second 1-year extension, the area's fourth highest daily maximum 8-hour average concentration of ozone cannot not exceed 0.075 ppm when averaged over both the original attainment year and the first extension year.

    In the event an area fails to attain the ozone NAAQS by the applicable attainment date, CAA section 181(b)(2)(A) requires the EPA to make the determination that an ozone nonattainment area failed to attain the ozone standard by the applicable attainment date, and requires the area to be reclassified by operation of law to the higher of: (1) the next higher classification for the area, or (2) the classification applicable to the area's design value as of the determination of failure to attain.15 Section 181(b)(2)(B) of the CAA requires the EPA to publish the determination of failure to attain and accompanying reclassification in the Federal Register no later than 6 months after the attainment date, which in the case of the Moderate nonattainment areas considered in this proposal would be no later than January 20, 2019.

    15 All nonattainment areas named in this notice that failed to attain by the attainment date would be classified to the next highest classification of Serious. None of the affected areas has a design value that would otherwise place an area in a higher classification (i.e., see CAA section 181(b)(2)(A) reference to Severe and Extreme areas).

    Once an area is reclassified as a result of this action, each state is required to submit certain SIP revisions. The SIP revisions are intended to, among other things, demonstrate how the area will attain the NAAQS as expeditiously as practicable, but no later than July 20, 2021, the attainment date for Serious nonattainment areas for the 2008 ozone NAAQS. According to CAA section 182(i), each state containing an ozone nonattainment area reclassified as Serious under CAA section 181(b)(2) shall submit SIP revisions consistent with the schedules contained in CAA section 182(b) for Moderate areas and 182(c) for Serious areas. However, CAA section 181(b)(2) provides that the EPA “may adjust applicable deadlines (other than attainment dates) to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions.” In Section III.D of this notice, the EPA explains its proposal to adjust such deadlines.

    D. How does the EPA determine whether an area has attained the 2008 ozone standards?

    Under EPA regulations at 40 CFR part 50, Appendix P, the 2008 ozone NAAQS is attained at a site when the 3-year average of the annual fourth highest daily maximum 8-hour average ambient air quality ozone concentration does not exceed 0.075 ppm. This 3-year average is referred to as the “design value.” When the design value does not exceed 0.075 ppm at each ambient air quality monitoring site within the area, the area is deemed to be attaining the ozone NAAQS. The rounding convention in Appendix P dictates that concentrations shall be reported in “ppm” to the third decimal place, with additional digits to the right being truncated. Thus, a computed 3-year average ozone concentration of 0.076 ppm is greater than 0.075 ppm and would exceed the standard, but a design value of 0.0759 is truncated to 0.075 and attains the 2008 ozone NAAQS.

    The EPA's determination of attainment is based upon data that have been collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA's Air Quality System (AQS) database.16 Ambient air quality monitoring data for the 3-year period preceding the attainment date (which for the 2008 ozone NAAQS Moderate areas is the period from 2015-2017) must meet the data completeness requirements in Appendix P.17 The completeness requirements are met for the 3-year period at a monitoring site if daily maximum 8-hour average concentrations of ozone are available for at least 90 percent of the days within the ozone monitoring season, on average, for the 3-year period, and no single year has less than 75 percent data completeness.

    16 The EPA maintains the AQS, a database that contains ambient air pollution data collected by the EPA, state, local, and tribal air pollution control agencies. The AQS also contains meteorological data, descriptive information about each monitoring station (including its geographic location and its operator) and data quality assurance/quality control information. The AQS data is used to (1) assess air quality, (2) assist in attainment/non-attainment designations, (3) evaluate SIPs for non-attainment areas, (4) perform modeling for permit review analysis, and (5) prepare reports for Congress as mandated by the CAA. Access is through the website at https://www.epa.gov/aqs.

    17See 40 CFR part 50, Appendix P, section 2.3(b).

    III. What is the EPA proposing and what is the rationale?

    The EPA is proposing this action to fulfill its statutory obligation under CAA section 181(b)(2) to determine whether 11 Moderate ozone nonattainment areas attained the 2008 ozone NAAQS as of the attainment date of July 20, 2018. The EPA evaluated air quality monitoring data submitted by the appropriate state and local air agencies to determine the attainment status of the 11 areas as of the applicable attainment date of July 20, 2018. This section describes the separate determinations and actions being taken in this proposed rule.

    A. Determinations of Attainment by the Attainment Date

    Two of the 11 nonattainment areas' monitoring sites had a design value that did not exceed 0.075 ppm based on the 2015-2017 data. Thus, the EPA proposes to determine, in accordance with CAA section 181(b)(2)(A) and the provisions of the SIP Requirements Rule (40 CFR 51.1103), that the two areas, Baltimore, Maryland, and Mariposa County, California, listed in Table 1, attained the standard by the applicable attainment date for Moderate nonattainment areas for the 2008 ozone NAAQS.

    The EPA's Clean Data Policy,18 as codified for the 2008 ozone NAAQS at 40 CFR 51.1118, suspends the requirements for states to submit certain attainment planning SIPs such as the attainment demonstration, including reasonably available control measures (RACM), reasonable further progress (RFP), and contingency measures for so long as an area continues to attain the standard. The EPA determined that Mariposa County, California, had attained the 2008 ozone standard and therefore suspended the requirements for the state to submit an attainment demonstration and associated RACM, RFP plans, contingency measures, and other attainment planning elements, in accordance with 40 CFR 51.1118.19 The EPA proposes that, following a final determination of attainment by the attainment date for Mariposa County, California, these requirements would remain suspended. Similarly, the EPA also proposes that a final determination of attainment by the attainment date for Baltimore, Maryland, would continue to suspend the state's attainment planning requirements for that area in accordance with 40 CFR 51.1118, as the EPA previously determined the area attained the 2008 ozone NAAQS and issued a Clean Data Determination.20

    18 More information about the Clean Data Policy and redesignation guidance is available at https://www.epa.gov/ozone-pollution/redesignation-and-clean-data-policy-cdp.

    19 For Mariposa, California, the final 2008 ozone NAAQS Clean Data Determination was initially effective on February 21, 2017 (81 FR 93624, December 21, 2016) and was delayed until March 21, 2017, due to a Presidential directive (82 FR 8499, January 26, 2017).

    20 For Baltimore, Maryland, the final 2008 ozone NAAQS Clean Data Determination was effective on July 1, 2015 (80 FR 30941, June 1, 2015).

    These proposed determinations of attainment by the attainment date do not constitute formal redesignations to attainment as provided for under CAA section 107(d)(3). Redesignations to attainment require the states responsible for ensuring attainment and maintenance of the NAAQS to meet the requirements under CAA section 110 and part D, including submitting for EPA approval a maintenance plan to ensure continued attainment of the standard for 10 years following redesignation, as provided under CAA section 175A.

    The EPA is soliciting comments on these proposed determinations of attainment by the applicable attainment date for the Baltimore, Maryland, and Mariposa County, California, areas. Further technical analysis supporting this proposed determination is located in the TSD for this rule, which is available in the docket for this action.

    B. Extensions of Moderate Area Attainment Date

    The EPA is proposing to grant a 1-year extension of the attainment date for two areas: Denver-Boulder-Greeley-Ft. Collins-Loveland, Colorado, and Sheboygan County, Wisconsin. Approval of the 1-year attainment date extensions is based on the states' compliance under CAA section 181(a)(5) as interpreted by the EPA in 40 CFR 51.1107. These areas meet the specific air quality criteria for the 1-year extension under 51.1107(a)(1), meaning the fourth highest daily maximum 8-hour average ozone concentration recorded during the attainment year (2017) did not exceed the 2008 ozone NAAQS of 0.075 ppm. In addition, state officials have certified that they have complied with all requirements and commitments pertaining to these areas in their respective implementation plan.

    By way of letter dated June 4, 2018,21 the Colorado Department of Public Health and Environment (CDPHE) requested an extension for the Denver-Boulder-Greeley-Ft. Collins-Loveland, Colorado, Moderate area attainment date. The state's request for an extension also includes a certification that the state of Colorado has complied with all requirements and commitments pertaining to the Denver-Boulder-Greeley-Ft. Collins-Loveland, Colorado, Moderate ozone area SIP, in accordance with CAA section 181(a)(5)(A). The EPA evaluated the information submitted by the state and is proposing to determine that the state has met the requirement of CAA section 181(a)(5)(A) for this area.

    21 Kaufman, Garrison, Director, Air Pollution Control Division, CDPHE. “Submittal of Exceptional Events Demonstration and Request to Extend 2008 Ozone National Ambient Air Quality Standard Attainment Deadline for the Denver Metropolitan/North Front Range Nonattainment Area.” June 4, 2018. Attachments included the “CDPHE Exceptional Event Demonstration for Ozone on September 2 and 4, 2017,” and the “Colorado 2017 Data Certification Request Letter.”

    The state also submitted an exceptional events demonstration claiming that the area's fourth highest daily maximum 8-hour average ozone concentration at one monitor, which exceeded the 0.075 ppm standard, was caused by wildfires in Montana and Pacific Northwest states in late summer 2017. On July 11, 2018, the EPA concurred with the state's demonstration that prevailing winds transported smoke from those wildfires to the Denver area on September 2 and 4, 2017, causing exceedances of the 2008 ozone NAAQS. Pursuant to 40 CFR 50.14, the EPA is proposing to exclude the air quality data submitted in the state's exceptional events demonstration for purposes of this determination of attainment by the attainment deadline. With the exceptional events data excluded, the fourth highest daily maximum 8-hour average for the area in 2017 does not exceed 0.075 ppm. Thus, the EPA is proposing to grant a 1-year attainment date extension for the Denver-Boulder-Greeley-Ft. Collins-Loveland, Colorado, Moderate nonattainment area in this proposed action.

    In a letter from the Wisconsin Department of Natural Resources (DNR), dated May 24, 2018,22 the state requested a 1-year attainment date extension for the Sheboygan County, Wisconsin, Moderate nonattainment area stating the requirements and commitments given under CAA section 181(a)(5)(A) had been met. In their request, the state officials also provided their certification of the 2017 ambient air monitoring data for the area. The EPA has evaluated this information from the state and is proposing to determine that the state has met the requirement of CAA section 181(a)(5)(A) for this area.23

    22 Good, Gail, Director, Air Management Program, Wisconsin Department of Natural Resources, “Request for a one-year extension of the 2008 ozone standard attainment date for the Sheboygan County, Wisconsin moderate nonattainment area,” letter dated May 24, 2018, which includes as an attachment the “2017 Wisconsin Ambient Air Monitoring Data Certification—Criteria Network Data,” dated April 30, 2018.

    23 Letter dated July 11, 2018, to Garry Kaufman, Director, Air Pollution Control Division, Colorado Department of Public Health and Environment, from Martin Hestmark, Assistant Regional Administrator, Office of Partnerships and Regulatory Assistance, U.S. EPA Region 8, which inclused as an enclosure a TSD. This document is available in the rulemaking docket for this action.

    In the letter, the state also explains that the fourth highest daily 8-hour ozone concentration from monitors in the area did not exceed 0.075 ppm during the 2017 calendar year and presented the state's “2017 Wisconsin Ambient Air Monitoring Data Certification” to support the analysis. Upon evaluation of the information submitted by the Wisconsin DNR, the EPA is proposing to grant a 1-year attainment date extension for the Sheboygan County, Wisconsin, Moderate nonattainment area in this proposed action.

    If we finalize our action as proposed, upon the effective date of the final action, the attainment date for these areas would be extended to July 20, 2019. The areas would remain classified as Moderate for the 2008 ozone NAAQS unless and until the EPA makes a determination that either or both areas failed to attain the NAAQS by the new attainment date.

    The EPA is soliciting comments on the proposed 1-year attainment date extensions for the Denver-Boulder-Greeley-Ft. Collins-Loveland, Colorado, and Sheboygan County, Wisconsin, Moderate nonattainment areas.

    C. Determinations of Failure To Attain and Reclassification

    The EPA is proposing to determine that seven Moderate nonattainment areas failed to attain the 2008 ozone NAAQS by the attainment date of July 20, 2018. These areas are not eligible for a 1-year attainment date extension because they do not meet the extension criteria under CAA section 181(a)(5) as interpreted by the EPA in 40 CFR 51.1107. The areas' ozone design values for 2015-2017 are shown in Table 1.

    If we finalize our action as proposed, each of these areas will be reclassified to Serious, the next higher classification, as provided under CAA section 181(b)(2)(A)(i) and codified at 40 CFR 51.1103. These areas are required to attain the standard “as expeditiously as practicable” but no later than 9 years after the initial designation as nonattainment, which in this case would be no later than July 20, 2021. After reclassification to Serious, if any of these areas attains the 2008 ozone NAAQS prior to the Serious-area attainment date, the relevant state may seek a Clean Data Determination, under which certain attainment planning SIPs would be suspended under 40 CFR 51.1118 or a redesignation to attainment.24

    24 For a fuller description of the effects of a Clean Data Determination, see Section III.A of this preamble.

    The EPA is soliciting comments on this proposal for determining that these areas did not attain the 2008 ozone NAAQS by the Moderate area attainment date.

    D. Serious Area SIP Revision Submission Deadlines and RACT Implementation Deadlines

    Moderate nonattainment areas that failed to attain the 2008 ozone NAAQS by the attainment date will be reclassified as Serious by operation of law upon the effective date of the final reclassification notice. Each responsible state air agency must submit SIP revisions that satisfy the air quality planning requirements for a Serious area under CAA section 182(c).

    On July 20, 2012, when final nonattainment designations became effective for the 2008 ozone NAAQS, states responsible for areas initially classified as Serious were required to prepare and submit SIP revisions by deadlines relative to that effective date. For those areas, the deadlines ranged from 2 to 4 years after July 20, 2012, depending on the SIP “element” required (e.g., 2 years for the RACT SIP and 4 years for the attainment demonstration). Since those deadlines were passed, the EPA is proposing to use its discretion under CAA section 182(i) to adjust the SIP deadlines that would otherwise apply. Thus, the EPA is proposing that each state within which all or part of an area reclassified to Serious is located shall submit SIP revisions according to the following adjusted schedules:

    1. Due date for non-RACT Serious area SIP revisions, SIP revisions, and implementation deadline for RACT tied to attainment. The EPA proposes that states submit all SIP revisions—with the exception of any RACT revisions not needed for attainment purposes—no later than 12 months after the effective date of the final reclassification notice.25 The state submittal requirements for attainment plans, in general, are provided under CAA section 172(c); the SIP requirements that apply to Serious areas for the 2008 ozone NAAQS are listed under CAA section 182(c) and include: (1) Enhanced monitoring; (2) attainment demonstration and reasonable further progress (RFP) plan; (3) an enhanced vehicle inspection and maintenance program, if applicable; (4) clean-fuel vehicle programs and transportation control; (5) nonattainment New Source Review program revisions; and (6) contingency measures. States must also provide an analysis of—and adopt all—RACM, including RACT needed for purposes of meeting RFP or timely attaining the NAAQS. Such an analysis should include: (1) An evaluation of controls for sources emitting 100 tons per year (tpy) or more that may have become reasonably available since the January 1, 2017, Moderate area deadline for adopting and implementing RACT, and (2) an evaluation of controls for sources emitting 50 tpy or more that are currently reasonably available, consistent with the Serious area classification.

    25 The EPA has long taken the position that the statutory requirement for states to assess and adopt RACT for sources in ozone nonattainment areas classified Moderate and higher generally exists independently from the attainment planning requirements for such areas. See Memo from John Seitz, “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard” (1995), at 5 (explaining that Subpart 2 requirements linked to the attainment demonstration are suspended by a finding that a nonattainment area is attaining but that requirements such as RACT must be met whether or not an area has attained the standard); see also 40 CFR 51.1118 (suspending attainment demonstrations, RACM, RFP, contingency measures, and other attainment planning SIPs with a finding of attainment). In addition to the independent RACT requirement, states have a statutory obligation to apply RACM (including such reductions in emissions from existing sources in the area as may be obtained through implementation of RACT) to meet RFP requirements and to demonstrate attainment as expeditiously as practicable. Therefore, to the extent that a state adopts new or additional RACT controls to meet RFP requirements or to demonstrate attainment as expeditiously as practicable, those states must include such RACT revisions with the other SIP elements due as part of the attainment plan required under CAA sections 172(c) and 182(c) and must implement them by the same date as explained further in Section III.D.3 of this notice.

    The “schedule prescribed in connection with” the attainment planning requirements for Serious areas is 4 years from designation. See CAA section 182(i). However, given the Serious area attainment date of July 20, 2021, and the fact that these areas are reclassified rather than newly designated Serious areas, the EPA proposes that a 12-month deadline for the attainment planning requirements for all areas newly reclassified as Serious “is necessary and appropriate” to assure consistency among these submissions. Although not directly applicable, the EPA notes that the analogous provision in the general nonattainment area requirements in Subpart 1 also provides 12 months for submission of a new attainment demonstration and associated controls after the EPA determines that an area has failed to attain by its attainment date. See CAA section 179(d). We also believe the proposed timeframe is consistent with how the EPA handled setting SIP submission deadlines for other nonattainment areas that were reclassified from Moderate to Serious for past ozone NAAQS. Examples include Dallas-Ft. Worth, Texas,26 an area reclassified in 2010 as Serious for the 1997 8-hour ozone NAAQS, and the Beaumont-Port Arthur, Texas,27 and St. Louis, Missouri,28 areas, reclassified in 2003 and 2004, respectively, from Moderate to Serious for the 1979 1-hour ozone NAAQS. Twelve months generally provides the time necessary for states and local air districts to finish reviews of available control measures, adopt revisions to necessary attainment strategies, address other SIP requirements and complete the public notice process necessary to adopt and submit timely SIP revisions.29

    26See 75 FR 79302, December 20, 2010, Dallas-Ft. Worth, Texas, reclassification to Serious for the 1997 8-hour ozone NAAQS.

    27See 69 FR 16483, March 30, 2004, Beaumont-Port Arthur, Texas, reclassification to Serious for the 1979 1-hour ozone NAAQS.

    28See 68 FR 4836, January 30, 2003, St. Louis, Missouri, reclassification to Serious for the 1979 1-hour ozone NAAQS.

    29Cf. CAA section 179(d)(1).

    The EPA also proposes that any RACT that states determine is needed for meeting RFP or timely attainment of the 2008 ozone NAAQS must be implemented by the date that the attainment plan is due, i.e., no later than 12 months after the effective date of the final reclassification notice. As a general matter, the Act requires implementation of those requirements needed for timely attainment “as expeditiously as practicable.” See CAA section 172(c)(1). The EPA believes that an implementation deadline of 12 months from the effective date of the reclassification is consistent with the requirement to act expeditiously and moreover is consistent with the start of the attainment year ozone season for all 2008 ozone NAAQS Serious areas, which is the start of the 2020 ozone season. All emissions control strategies designed to help areas attain the 2008 ozone NAAQS by the applicable Serious area attainment date of July 20, 2021, or to qualify for a 1-year extension of that attainment date, necessarily must be in place and in effect no later than the start of the final full ozone season preceding the attainment date, as that is the last ozone season of air quality monitoring data that could affect the area's design value as of the attainment date or would decide whether the area met the 1-year extension air quality eligibility criterion (see 40 CFR 51.1108(d)). The EPA discusses its proposed deadlines for RACT SIP revisions and implementation of RACT beyond what may be needed in a Serious area for attainment purposes in Sections III.D.2 and III.D.3 of this notice.

    The EPA seeks comment on its proposed date of 12 months from the effective date of the final reclassification notice both for Serious area SIP revisions to be due and the implementation deadline for any RACT measures states determine necessary for meeting RFP or demonstrating timely attainment in the area.

    2. Due date for additional Serious area RACT SIP revisions. For Serious areas reclassified from Moderate, the requirement for RACT expands to include all sources that emit, or have the potential to emit, 50 tons per year (tpy) of VOC or NOX.30 State air agencies responsible for Moderate areas are already required to implement RACT for major sources,31 defined as sources that emit or have the potential to emit 100 tpy.32 Thus, states must revise their RACT SIPs to include those other sources emitting or having the potential to emit 50 to 100 tpy. The EPA proposes that states submit their SIP revisions for any RACT not otherwise needed for attainment purposes by August 3, 2020. This deadline is anticipated to be approximately 18 months after the effective date of the final reclassification notice.

    30See CAA sections 182(c) and 182(f).

    31See CAA section 182(b)(2) and 182(f).

    32See CAA section 302(j).

    This proposed deadline would align the Serious area RACT SIP deadline for the 2008 ozone NAAQS with some of the nonattainment area SIP revision deadlines associated with the 2015 ozone NAAQS.33 CAA section 182(i) provides that the Administrator may adjust deadlines for reclassified areas “to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions.” The EPA interprets “consistency among the required submissions” to allow for consideration of “required submissions” for various ozone NAAQS that are being implemented simultaneously. Since all the areas that would be reclassified to Serious upon the effective date of the final reclassification notice are also designated nonattainment for the 2015 ozone NAAQS or are in the Ozone Transport Region (OTR), the responsible state air agencies are required under CAA section 182 to submit SIP revisions for certain SIP elements for the 2015 ozone NAAQS within 2 years of the effective date of the nonattainment area designations. The effective date of nonattainment area designations for the 2015 ozone NAAQS was August 3, 2018, and, therefore, the deadline for submitting nonattainment SIP revisions associated with that standard would be August 3, 2020. Consistent with CAA section 182(i), the EPA believes coordinating the SIP deadlines related to the 2008 and 2015 ozone NAAQS for these nonattainment areas is appropriate and could result in more effective implementation of the NAAQS.

    33 All the areas subject to reclassification in this notice are among those designated nonattainment for the 2015 ozone NAAQS, effective August 3, 2018 (see 83 FR 25776, June 4, 2018).

    Under CAA section 182(i), reclassified areas generally are required to submit SIP revisions associated with their new classification “according to the schedules prescribed in connection with such requirements.” CAA section 182(b)(2), which establishes the RACT requirement for ozone nonattainment areas classified as Moderate or above, and CAA section 184(b), which establishes RACT requirements for areas in the ozone transport region, provide a 24-month schedule for compliance with those requirements.34 Although the proposed deadline of August 3, 2020, provides less than 24 months, the EPA believes the anticipated timeframe is appropriate given coordination with the 2015 ozone NAAQS SIP deadlines and the nature of the submission, i.e., because states with newly reclassified Serious areas should already have addressed RACT requirements commensurate with the Moderate area classification.

    34See 40 CFR 51.1112(a)(2).

    The EPA is proposing (and soliciting comments) on an August 3, 2020, deadline for RACT SIP revisions. The EPA is also taking comment on whether allowing states a full 24 months from the effective date of the final reclassification notice to submit SIP revisions for RACT not otherwise needed for attainment purposes would yield a more desirable end result in terms of emissions reductions and air quality benefits, state processing and resource burden, and/or burden on emissions sources.

    3. Implementation deadline for additional Serious area RACT. CAA section 182(b)(2) establishes the RACT area requirements for ozone areas designated and classified Moderate and higher.35 That provision, which was written for the 1-hour ozone NAAQS, established a deadline of five years from November 15, 1990, i.e., the date of designation, for the implementation of RACT. In the 2008 ozone NAAQS SIP Requirements Rule, the EPA interpreted this statutory deadline for the 2008 standard by establishing a RACT implementation deadline of January 1 of the fifth year after the effective date of nonattainment designation, and explained that this was consistent with the maximum timeframe provided under the CAA for implementing RACT in nonattainment areas classified Moderate or higher.36 For nonattainment areas initially classified as Moderate or higher for the 2008 ozone NAAQS and for OTR states, RACT measures were required to be implemented by January 1, 2017. Because that date has passed and cannot be applied to the areas subject to reclassification by this action, the EPA is proposing to set a new deadline of August 3, 2020, for implementation of any new RACT requirements not otherwise needed for RFP or timely attainment purposes.

    35 CAA Section 182(b)(2) sets the RACT requirement for Moderate areas, and the Act requires other higher-classified areas to fulfill the CAA section 182(b) requirements. See CAA sections 182(c), (d), and (e) (requiring states with Serious, Severe, and Extreme nonattainment areas, respectively, to fullfil the obligations required of lower-classified areas).

    36See 40 CFR 51.1112(a)(3); 80 FR 12264, 12280 (March 6, 2015).

    This proposed deadline, approximately 18 months after the anticipated effective date of the final reclassification notice, is the same deadline proposed for the submission of the related RACT SIP revisions discussed in Section III.D.2 of this notice. Ideally, SIP submission deadlines would precede the implementation of control strategies contained in those SIP submissions. However, given the compressed timeframe available for states to meet the July 20, 2021, attainment date for Serious areas, the EPA believes that, at the very least, it is appropriate to align the deadline for RACT SIP submissions with the deadline for implementation of any new controls contained in that RACT SIP.

    The EPA acknowledges the fact that the majority of ozone nonattainment areas in the country were designated and classified as Marginal for the 2015 ozone NAAQS, and so will likely not be required to have any additional RACT in place for the 2015 standard until 2023, and only if such areas are eventually reclassified as Moderate.37 Providing a slightly longer timeframe (i.e., 18 months rather than 12 months) for implementation of any additional RACT for newly reclassified Serious areas for the 2008 standards could lead states to determine that additional controls are reasonable, thus helping areas attain both the 2008 and 2015 standards more expeditiously.

    37See CAA section 182(b) and (c), as applied only to Moderate areas and above. All areas in the OTR, regardless of classification for the 2015 ozone NAAQS, would be required to have any additional RACT in place for the 2015 ozone standard by RACT implementation deadlines interpreted from CAA section 182(b) in EPA's final “2015 Ozone NAAQS SIP Requirements Rule,” which is forthcoming.

    The Moderate areas subject to reclassification by this proposed action should have already implemented RACT for sources emitting 100 tpy or more of VOC or NOX. Therefore, at this stage, states should be primarily focused on adopting and implementing new RACT measures required to control sources emitting 50 to 100 tpy of VOC or NOX. The EPA believes 18 months will provide adequate time to implement any new controls determined to be RACT for this group of sources. However, as noted above, areas originally classified as Moderate and higher for the 2008 ozone NAAQS had just under five years to implement ozone RACT requirements (by January 1 of the fifth year after effective date of designation, i.e., January 1, 2017). By contrast, areas reclassified from Marginal to Moderate for the 2008 ozone NAAQS in 2016 became subject to the RACT requirement less than seven months (and in one case significantly less than seven months) before the RACT implementation deadline.3839 In some areas, states may have been able to adopt additional RACT controls had there been additional time to implement them. The EPA, therefore, seeks comment on whether an extended RACT implementation deadline—beyond August 3, 2020, but no later than January 1 of the fifth year after effective date of reclassification to Serious (i.e., January 1, 2024)—would yield additional and substantial emission reductions in newly-reclassified Serious areas (beyond what could be achieved by the due date of August 3, 2020, proposed in this notice) to justify an extended compliance due date for RACT not otherwise needed in an area for timely attainment by the July 20, 2021, attainment date for Serious areas.

    38See 81 FR 26697; May 4, 2016.

    39See 81 FR 90207, December 14, 2016, Houston-Galveston-Brazoria, Texas, reclassification to Moderate for the 2008 8-hour ozone NAAQS.

    In summary, the EPA is propsing (and soliciting comments) on an August 3, 2020, deadline for implementing RACT in newly reclassified Serious nonattainment areas for the 2008 ozone NAAQS. The EPA is also taking comment on an extended deadline up to January 1, 2024, for implementing RACT in newly reclassified Serious nontainment areas for the 2008 ozone NAAQS.

    IV. Environmental Justice Considerations

    The EPA believes that this proposed action will not have disproportionately high or adverse human health or environmental effects on minority, low-income, or indigenous populations.

    The purpose of this rule is to make the determination whether certain areas attained the 2008 ozone NAAQS by the attainment date, which is required by the CAA for purposes of implementing the 2008 ozone NAAQS. As such, this action does not directly affect the level of protection provided for human health or the environment. Moreover, it is intended that the actions and deadlines resulting from this notice will lead to greater protection for United States citizens, including minority, low-income, or indigenous populations, by ensuring that states meet their statutory obligation to develop and submit SIPs to ensure that areas make progress toward attaining the 2008 ozone NAAQS.

    V. 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.

    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 rule does not impose any new information collection burden under the PRA not already approved by the Office of Management and Budget. This action proposes to: (1) Find that certain Moderate ozone nonattainment areas listed in Table 1 failed to attain the 2008 NAAQS by the applicable attainment date; (2) identify those areas subject to reclassification as Serious ozone nonattainment areas by operation of law upon the effective date of the reclassification notice; and (3) adjust any applicable implementation deadlines. Thus, the proposed action does not establish any new information collection burden that has not already been identified and approved in the EPA's information collection request.40

    40 On April 30, 2018, the OMB approved EPA's request for renewal of the previously approved information collection request (ICR). The renewed request expires on April 30, 2021, 3 years after the approval date (see OMB Control Number 2060-0695 and ICR Reference Number 201801-2060-003 for EPA ICR No. 2347.03).

    D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The proposed determinations of attainment and failure to attain the 2008 ozone NAAQS (and resulting reclassifications), and the proposed determination to grant 1-year attainment date extensions do not in and of themselves create any new requirements beyond what is mandated by the CAA. Instead, this rulemaking only makes factual determinations, and does not directly regulate any entities.

    E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector.

    F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, tribes, or the relationship between the national government and the states and tribes, 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 has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. The EPA has identified a few tribal areas implicated in the 11 areas covered by the EPA's action proposing determinations of attainment for the 2008 ozone NAAQS. The EPA intends to communicate with potentially affected tribes located within the boundaries of the nonattainment areas for the 2008 ozone NAAQS as the agency moves forward in developing a final rule.

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

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

    I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    J. National Technology Transfer Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

    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. The results of this evaluation are contained in the section of the preamble titled “Environmental Justice Considerations.”

    List of Subjects 40 CFR Part 52

    Environmental protection, Administrative practice and procedure, Air pollution control, Designations and classifications, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements and Volatile organic compounds.

    40 CFR Part 81

    Environmental protection, Administrative practice and procedure, Air pollution control, Designations and classifications, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, and Volatile organic compounds.

    Dated: November 7, 2018. William L. Wehrum, Assistant Administrator.
    [FR Doc. 2018-24816 Filed 11-13-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 355 [EPA-HQ-OLEM-2018-0318; FRL-9986-40-OLEM] RIN 2050-AH00 Emergency Release Notification Regulations on Reporting Exemption for Air Emissions From Animal Waste at Farms; Emergency Planning and Community Right-to-Know Act AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA or the Agency) is proposing to amend the release notification regulations under the Emergency Planning and Community Right-to-Know Act (EPCRA) to add the reporting exemption for air emissions from animal waste at farms provided in section 103(e) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In addition, EPA is proposing to add definitions of “animal waste” and “farm” to the EPCRA regulations to delineate the scope of this reporting exemption. This proposed rulemaking maintains consistency between the emergency release notification requirements of EPCRA and CERCLA in accordance with the statutory text, framework and legislative history of EPCRA, and is consistent with the Agency's prior regulatory actions.

    DATES:

    Comments must be received on or before December 14, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2018-0318, at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Sicy Jacob, United States Environmental Protection Agency, Office of Land and Emergency Management, 1200 Pennsylvania Ave. NW (Mail Code 5104A), Washington, DC 20460; telephone number: (202) 564-8019; email address: [email protected].

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

    A list of entities that could be affected by this final rule include, but are not necessarily limited to:

    Type of entity Examples of affected entities Industry NAICS code 111—Crop production. NAICS code 112—Animal production. States and/or Local Governments NAICS code 999200—State Government, excluding schools and hospitals. NAICS code 999300—Local Government, excluding schools and hospitals. State Emergency Response Commissions, Tribal Emergency Response Commissions, Tribal Emergency Planning Committees and Local Emergency Planning Committees.

    This table is not intended to be exhaustive, but rather provide a guide for readers regarding the types of entities that EPA is aware could be involved in the activities affected by this action. However, other types of entities not listed in this table could be affected by this proposed rulemaking. To determine whether your entity is affected by this action, you should carefully examine the applicability criteria found in § 355.30 of title 40 of the Code of Federal Regulations (CFR). If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

    B. What action is the Agency taking?

    The EPA is proposing to amend the EPCRA emergency release notification regulations to include the reporting exemption for air emissions from animal waste at farms provided in CERCLA section 103(e). In addition, EPA is proposing to add definitions of “animal waste” and “farm” to the EPCRA regulations to delineate the scope of this reporting exemption.

    C. What is the Agency's authority for taking this action?

    This proposed rulemaking is being issued under EPCRA, which was enacted as Title III of the Superfund Amendments and Reauthorization Act (SARA) of 1986 (Pub. L. 99-499). EPA proposes this rulemaking under the authority of EPCRA section 304 (42 U.S.C. 11004) and the Agency's general rulemaking authority under EPCRA section 328 (42 U.S.C. 11048).

    II. Background of the Proposed Rule A. Overview

    Section 103 of CERCLA requires the person in charge of a vessel or facility to immediately notify the National Response Center (NRC) when there is a release of a hazardous substance, as defined under CERCLA section 101(14), in an amount equal to or greater than the reportable quantity for that substance within a 24-hour period. In addition to these CERCLA reporting requirements, EPCRA section 304 requires owners or operators of certain facilities to immediately notify state and local authorities when there is a release of an extremely hazardous substance (EHS), as defined under EPCRA section 302, or of a CERCLA hazardous substance in an amount equal to or greater than the reportable quantity for that substance within a 24-hour period.

    EPCRA and CERCLA are two separate but interrelated environmental laws that work together to provide emergency release notifications to Federal, state and local officials. Notice given to the NRC under CERCLA serves to inform the Federal government of a release so that Federal personnel can evaluate the need for a response in accordance with the National Oil and Hazardous Substances Contingency Plan (NCP),1 the Federal government's framework for responding to both oil discharges and hazardous substance releases. Relatedly, notice under EPCRA is given to the State Emergency Response Commission (SERC) for any state likely to be affected by the release and to the community emergency coordinator for the Local Emergency Planning Committee (LEPC) for any area likely to be affected by the release so that state and local authorities have information to help protect the community.

    1 40 CFR part 300.

    Release reporting under EPCRA depends, in part, on whether reporting is required under CERCLA.2 Specifically, EPCRA section 304(a) provides for reporting under the following three release scenarios:

    2 In this document, emergency release notification and release reporting are used interchangeably.

    • EPCRA section 304(a)(1) requires notification if a release of an EPCRA EHS occurs from a facility at which a hazardous chemical is produced, used or stored, and such release requires a notification under CERCLA section 103(a).

    • EPCRA section 304(a)(2) requires notification if a release of an EPCRA EHS occurs from a facility at which a hazardous chemical is produced, used or stored, and such release is not subject to the notification requirements under CERCLA section 103(a), but only if the release:

    ○ Is not a federally permitted release as defined in CERCLA section 101(10),

    ○ Is in an amount in excess of the reportable quantity as determined by EPA, and

    ○ Occurs in a manner that would require notification under CERCLA section 103(a).

    • EPCRA section 304(a)(3) requires notification if a release of a substance not designated as an EPCRA EHS occurs from a facility at which a hazardous chemical is produced, used or stored, and such release requires a notification under CERCLA section 103(a).

    B. Fair Agricultural Reporting Method Act and Legislative Amendments to CERCLA

    On March 23, 2018, the President signed into law the Consolidated Appropriations Act, 2018 (“Omnibus Bill”). Title XI of the Omnibus Bill is entitled the “Fair Agricultural Reporting Method Act” or the “FARM Act.” See Fair Agricultural Reporting Method Act, Public Law 115-141, sections 1101-1103 (2018). The FARM Act expressly exempts reporting of air emissions from animal waste (including decomposing animal waste) at a farm from CERCLA section 103. The FARM Act also provides definitions for the terms “animal waste” and “farm.” On August 1, 2018, the Agency published a final rule to amend the CERCLA regulations at 40 CFR part 302 by adding the reporting exemption for air emissions from animal waste at farms and adding definitions of “animal waste” and “farm” from the FARM Act.

    C. Proposed Revisions to EPCRA Section 304 Release Notification Regulations

    Based on the criteria for EPCRA section 304 release reporting, EPA is proposing to amend the EPCRA release notification regulations in 40 CFR 355.31 to include the reporting exemption for air emissions from animal waste at farms. EPA is also proposing to add definitions of “animal waste” and “farm” to the definition section of the EPCRA regulations in 40 CFR 355.61 to delineate the scope of this reporting exemption. EPA believes these proposed changes appropriately reflect the relationship between CERCLA and EPCRA release reporting requirements and are consistent with the statutory text, framework and legislative history of EPCRA, as well as the Agency's prior regulatory actions.

    III. Legal Rationale for the Proposed Rule

    This proposed rulemaking maintains consistency between the emergency release notification requirements of EPCRA and CERCLA in accordance with the statutory text, framework and legislative history of EPCRA, and is consistent with the Agency's prior regulatory actions. Specifically, this proposed rulemaking is based on the relationship of the EPCRA section 304 reporting requirements to the CERCLA section 103 reporting requirements, as recently amended. As previously noted, EPCRA section 304 reporting depends, in part, on whether reporting is required under CERCLA section 103. EPCRA's legislative history further indicates that the EPCRA section 304 reporting requirements are designed to be consistent with the reporting requirements of CERCLA section 103. EPA has thus revised the EPCRA emergency release notification regulations from time to time, as appropriate, to maintain consistency with the CERCLA reporting requirements.

    Consistent with the Agency's interpretation of EPCRA section 304 and the Agency's prior regulatory actions, EPA now proposes to amend the EPCRA release notification regulations to explicitly exempt air emissions from animal waste at farms from reporting under EPCRA section 304.

    A. Statutory Text and Framework

    EPCRA section 304 provides for release reporting under three scenarios, each of which depends in some way on whether the release requires notice under CERCLA. If a release requires notice under CERCLA section 103(a), the release may be subject to reporting under EPCRA if the release meets the requirements of EPCRA section 304(a)(1) or 304(a)(3). If a release is not subject to notification under CERCLA section 103(a), the release may nonetheless be subject to reporting under EPCRA if the release meets the requirements of EPCRA section 304(a)(2). Because the FARM Act exempted air emissions from animal waste at farms from CERCLA reporting, these types of releases no longer require notice under CERCLA section 103(a) and thus do not fall within the EPCRA section 304(a)(1) or (a)(3) reporting scenarios. Instead, these releases fall within the EPCRA section 304(a)(2) reporting scenario. Pursuant to EPCRA section 304(a)(2), a release of an EPCRA EHS that is not subject to notification under section 103(a) of CERCLA need only be reported under EPCRA if the release:

    • Is not a federally permitted release as defined in section 101(10) of CERCLA,

    • Is in an amount in excess of the reportable quantity as determined by EPA, and

    • Occurs in a manner that would require notification under section 103(a) of CERCLA.

    A release that is not subject to CERCLA section 103(a) reporting must meet all three criteria in EPCRA section 304(a)(2) to be subject to EPCRA reporting. Here, air emissions from animal waste at farms could meet the first two criteria because such releases are generally not federally permitted and may exceed the applicable reportable quantity. Yet these types of releases do not “occur[] in a manner” that would require notification under CERCLA section 103(a) and thus do not meet the third criterion of EPCRA section 304(a)(2). Because air emissions from animal waste at farms do not meet all three criteria under EPCRA section 304(a)(2), and do not fall within the EPCRA section 304(a)(1) or (a)(3) reporting scenarios, these types of releases are not subject to EPCRA reporting. As such, EPA is proposing to amend EPCRA's emergency release notification regulations to clarify reporting exemptions for certain types of releases under EPCRA section 304.

    Air emissions from animal waste at farms no longer “occur[] in a manner” that would require notification under CERCLA section 103(a) because the recent amendment exempted these types of releases from CERCLA reporting. Importantly, the CERCLA reporting exemption is specifically tied to the nature or manner of these releases rather than to a specific substance. For example, the recent amendment does not exempt specific substances typically associated with animal waste (such as ammonia and hydrogen sulfide) from reporting; rather, it exempts from reporting releases of any substance from animal waste at a farm into the air. Because air emissions from animal waste do not “occur[] in a manner” that would require notification under CERCLA section 103(a), these types of releases do not meet the third criterion of EPCRA section 304(a)(2) and are thus not subject to EPCRA reporting.

    EPCRA section 304(a)(2) promotes consistency between the reporting requirements of EPCRA and CERCLA by ensuring that only releases that “occur[ ] in a manner” that would require CERCLA notification be reported under EPCRA. Yet, the provision also contemplates scenarios where releases not subject to reporting under CERCLA may still need to be reported under EPCRA, such as releases of substances designated as EHSs under EPCRA but not as hazardous substances under CERCLA. For example, trimethylchlorosilane (Chemical Abstract Service No. 75-77-4) is designated as an EPCRA EHS but not as a CERCLA hazardous substance. Since trimethylchlorosilane is not a CERCLA hazardous substance, its releases are not subject to notification under CERCLA section 103(a) and need only be reported under EPCRA if such releases meet the criteria of EPCRA section 304(a)(2). A trimethylchlorosilane release that (1) is not a federally permitted release as defined in CERCLA section 101(10); (2) exceeds the applicable reportable quantity; and (3) “occurs in a manner” that would require notification under CERCLA section 103(a) would still be subject to EPCRA reporting. In this example, a release of trimethylchlorosilane “occurs in a manner” that would require notification under CERCLA section 103(a) where, for example, the release is “into the environment” as defined in CERCLA section 101(22), and is not one of the excluded or exempted types of releases described in CERCLA sections 101(22), 103(e), or 103(f). (See section C of this preamble, for further explanation of these exemptions.) Therefore, the release of trimethylchlorosilane would be similar to other releases that require notification under CERCLA section 103(a).3

    3See, e.g., 48 FR 23552, 23555 (May 25, 1983) (describing the nature of releases subject to CERCLA notification requirements); 52 FR 13378, 13383 (April 22, 1987) (explaining that the method used to determine whether a release meets or exceeds the applicable RQ under CERCLA “should be equally applicable to releases under [EPCRA] section 304 due to similarity to section 103 of CERCLA”).

    As another example, petroleum (including crude oil or any fraction thereof) is expressly excluded from the definition of “hazardous substance” in CERCLA section 101(14). Because of this “petroleum exclusion,” releases of petroleum are not subject to notification under CERCLA section 103(a) and so need to be reported under EPCRA only if such releases meet the criteria of EPCRA section 304(a)(2). Where a petroleum release meets the first two criteria of EPCRA section 304(a)(2), the question becomes whether the release “occurs in a manner” that would require notification under CERCLA section 103(a). Notably, unlike air emissions from animal waste at farms, Congress did not exempt petroleum releases from CERCLA reporting based on the manner or nature of these releases. Instead, Congress exempted these types of releases from CERCLA reporting by excluding petroleum (including crude oil or any fraction thereof) from the definition of “hazardous substance.” See 42 U.S.C. 9601(14). As such, these types of releases still “occur[ ] in a manner” that would require notification under CERCLA section 103(a) and could thus be subject to reporting under EPCRA section 304(a)(2) where the petroleum release contains an EHS. See 52 FR 13378, 13385 (April 22, 1987). In sum, where a CERCLA reporting exemption or the reason a release is not subject to CERCLA reporting is unrelated to the manner in which such releases occur, EPCRA section 304(a)(2) may compel reporting of such releases.

    In addition to the statutory text of EPCRA section 304(a)(2), the statutory framework of EPCRA's reporting requirements indicates a desire to maintain consistency between the EPCRA and CERCLA reporting requirements. Indeed, “[i]n drafting the EPCRA reporting requirements, Congress expressly tied them to CERCLA's” such that “all of EPCRA's reporting mandates are piggybacked on the CERCLA mandates in one form or another.” Waterkeeper Alliance v. EPA, 853 F.3d 527, 532 (D.C. Cir. 2017). Under EPCRA sections 304(a)(1) and (a)(3), EPCRA reporting depends on whether a release requires notification under CERCLA section 103(a), and under EPCRA section 304(a)(2), EPCRA reporting depends on whether a release “occurs in a manner” that would require notification under CERCLA section 103(a). Therefore, EPCRA requires reporting only for releases that require notification under CERCLA or occur in a manner that would require notification under CERCLA. Under CERCLA section 103 as amended, air emissions from animal waste at farms do not require notification under CERCLA section 103(a) and do not occur in a manner that would require such notification. As a result, these types of releases are not subject to reporting under EPCRA section 304(a)(1), (a)(2) or (a)(3). Thus, to clarify that these types of releases are not subject to reporting under EPCRA section 304, EPA is proposing to amend the EPCRA release notification regulations to exempt air emissions from animal waste at farms from reporting under section 304. In doing so, EPA seeks to avoid inconsistent regulation of these types of releases under EPCRA and CERCLA, in furtherance of the underlying purpose of this statutory framework.

    B. Legislative History

    EPA's understanding of EPCRA section 304(a)(2) is informed by the legislative history of EPCRA itself. In 1986, Congress passed EPCRA pursuant to Title III of the Superfund Amendments and Reauthorization Act (SARA). In the committee conference report addressing EPCRA, Congress discussed the three scenarios requiring release reporting under EPCRA section 304. With respect to EPCRA section 304(a)(2), the report states: “This requires notification where there is a release of an extremely hazardous substance that would require notice under section 103(a) of CERCLA but for the fact that the substance is not specifically listed under CERCLA as requiring such notice.” See 99 Cong. Conf. Report H. Rep. 962, October 3, 1986; SARA Leg. Hist. 38 (Section 304 Emergency Notification).

    Congress thus expressed its intent that state and local authorities be notified of a qualifying release under EPCRA, even if the substance released is not identified as a hazardous substance under CERCLA, when the release occurs in a manner as the types of releases that require notification under CERCLA section 103(a). Conversely, if the release occurs in a manner that Congress determines does not require notification under CERCLA section 103(a)—such as air emissions from animal waste at farms—then no reporting is required under EPCRA section 304(a)(2) (i.e., the third criterion of EPCRA section 304(a)(2) has not been met).

    The legislative history also reveals that Congress intended EPCRA section 304(a)(2) to operate to exclude continuous releases from EPCRA's immediate notification requirements because such releases do not occur in a manner that requires reporting under CERCLA section 103(a).4 The committee conference report explains: “[R]eleases which are continuous or frequently recurring and do not require reporting under CERCLA are not required to be reported under [EPCRA section 304].” Rather, continuous releases are subject to reduced reporting requirements pursuant to CERCLA section 103(f). As explained in section C.3. of this preamble, EPA incorporated an alternative for continuous releases into EPCRA and promulgated regulations that allow continuous releases to be reported in a manner consistent with CERCLA's continuous release reporting requirements.

    4 CERCLA section 103(a) requires the person in charge of a vessel or facility to “immediately notify” the NRC when there is a release of a hazardous substance in an amount equal to or greater than the reportable quantity for that substance within a 24-hour period. In contrast, releases that are continuous and stable in quantity and rate may qualify for reduced, “continuous release” reporting under CERCLA section 103(f)(2). Similarly, EPCRA section 304 requires owners or operators of certain facilities to “immediately” notify state and local authorities of qualifying releases, and EPA has promulgated regulations that allow continuous releases to be reported under EPCRA in a manner consistent with CERCLA's continuous release reporting requirements.

    Congress's intent in adopting the three scenarios in EPCRA section 304(a)(1)-(3) was to ensure that when Federal authorities receive notice of a release under CERCLA section 103(a), state and local authorities receive similar notice under EPCRA. Note that CERCLA notification applies to the list of hazardous substances (located in 40 CFR 302.4), while EPCRA notification applies to the lists of both CERCLA hazardous substances and EPCRA EHSs (located in 40 CFR part 355 Apps. A and B). When a substance is not a listed CERCLA hazardous substance, but is on the EPCRA EHSs list, EPCRA section 304(a)(2) provides for notification only if the release of such substance occurs in a manner as the types of releases that require notification under CERCLA section 103(a). On the other hand, if Congress determines that a release occurs in a manner that does not require notification under CERCLA section 103(a), EPCRA section 304(a)(2) works to logically exclude that release from EPCRA reporting.

    C. Prior Regulatory Actions

    As noted, CERCLA release notification was established to alert Federal authorities to a release so that the need for a response can be evaluated and any necessary response undertaken in a timely fashion. EPCRA release notification supplements CERCLA release notification by similarly preparing the community at the state and local level. Based on the criteria for EPCRA section 304 release reporting, and to promote consistency between CERCLA and EPCRA release notification requirements, the Agency has incorporated many of CERCLA's release notification exemptions into the EPCRA release notification regulations through prior rulemakings. Each of these prior regulatory actions are summarized below.

    1. Exemptions From the Definition of “Release” Under CERCLA and EPCRA

    Both CERCLA and EPCRA define the term “release.” Under CERCLA section 101(22), the term “release” generally means “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant),” but also includes specific exclusions for workplace releases, vehicle emissions, nuclear material releases and fertilizer application. Similar to the CERCLA workplace exposure exclusion, EPCRA section 304(a)(4) exempts from reporting any release which results in exposure to persons solely within the site or sites on which a facility is located. Though the definition of “release” under EPCRA section 329 mirrors the CERCLA definition, it does not contain three exclusions provided in the CERCLA section 101(22) definition of “release”: (1) Emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel or pipeline pumping station engine; (2) releases of source, byproduct or special nuclear material from a nuclear incident; and (3) the normal application of fertilizer. However, because the types of releases excluded from CERCLA's definition of “release” do not occur in a manner that would be reportable under CERCLA section 103(a), these types of releases do not meet the reporting requirements under EPCRA section 304. See 52 FR 13381, 13384-85 (April 22, 1987) and related Response to Comments document, April 1987, Docket Number 300PQ. Thus, EPA adopted these statutory CERCLA exclusions into the EPCRA regulations codified at 40 CFR 355.31.5

    5 The 1987 rule codified these exemptions at 40 CFR 355.40(a)(2), which was later reorganized into 40 CFR 355.31. See 73 FR 65451 (November 3, 2008).

    2. Exemptions From Immediate Notification Requirements

    There are four types of statutory exemptions from the immediate notification requirements for releases of hazardous substances provided in CERCLA sections 101(10) and 103(e) and (f). Specifically, these statutory exemptions include: (1) Federally permitted releases, as defined in section 101(10); (2) releases from the application of a pesticide product registered under the Federal Insecticide, Fungicide and Rodenticide Act or from the handling and storage of such a pesticide product by an agricultural producer (section 103(e)); (3) certain releases of hazardous wastes that are required to be reported under the provisions of the Resource Conservation and Recovery Act and that are reported to the NRC (section 103(f)(1)); and (4) certain releases that are determined to be continuous under the provisions of section 103(f)(2).

    In the final rulemaking on April 22, 1987 (52 FR 13378) for emergency planning and release notification requirements under EPCRA, the Agency adopted exemptions from CERCLA section 103(a) reporting “based on the language in EPCRA section 304(a) which requires that releases reportable under that Section occur in a manner which would require notification under section 103(a) of CERCLA.” 52 FR 13378, 13381 (April 22, 1987).

    Although EPA stated in the April 1987 rulemaking that it was incorporating CERCLA reporting exemptions into the EPCRA regulations based on the criteria for EPCRA section 304 release reporting, the Agency inadvertently omitted the exclusion for the “application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act or to the handling and storage of such a pesticide product by an agricultural producer” from the EPCRA section 304 regulations at that time. Thus, in a technical amendment published on May 24, 1989 (54 FR 22543), EPA added a provision to the EPCRA regulations in 40 CFR 355.40(a)(2)(iv) (currently codified at 40 CFR 355.31(c)) providing that releases exempted from CERCLA section 103(a) reporting by CERCLA section 103(e) are also exempt from reporting under EPCRA section 304. In addition, the May 1989 technical amendment clarified the language in paragraph (a)(2)(v) of 40 CFR 355.40 (currently codified at 40 CFR 355.31(d)), explaining that this section exempts from EPCRA section 304 reporting “any occurrence not meeting the definition of release under section 101(22) of CERCLA,” as “[s]uch occurrences are also exempt from reporting under CERCLA section 103(a).” See 54 FR 22543, 22543 (May 24, 1989).

    3. Continuous Release Reporting

    CERCLA section 103(f) provides relief from the immediate notification requirements of CERCLA section 103(a) for a release of a hazardous substance that is continuous and stable in quantity and rate. Instead, continuous releases are subject to a significantly reduced reporting requirement under regulations promulgated pursuant to CERCLA section 103(f). In adopting the implementing regulations for EPCRA in 40 CFR part 355, EPA relied on EPCRA section 304(a)(2) to likewise exclude continuous releases from the immediate notification requirement of EPCRA section 304, reasoning: “Because such releases do not `occur in a manner' which requires immediate release reporting under section 103(a) of CERCLA, they are also not reportable under section 304 of [EPCRA].” See 52 FR 13381, 13384 (April 22, 1987). EPA later promulgated continuous release reporting regulations for EPCRA that cross-reference and follow the CERCLA continuous release reporting regulations, finding that EPCRA release reporting is “closely tied” and “parallel” to CERCLA release reporting. See 55 FR 30169, 30179 (July 24, 1990). At that time, the Agency also reiterated that “[t]o the extent that releases are continuous and stable in quantity and rate as defined by CERCLA section 103(f)(2) . . . , they do not occur in a manner that requires notification under CERCLA section 103(a)” and are thus not subject to the EPCRA section 304 immediate notification requirements. Id. (emphasis added).

    IV. Scope of Proposed Rule

    The scope of this proposed rulemaking is limited to air emissions from animal waste (including decomposing animal waste) at a farm. The Agency proposes to add this reporting exemption to the EPCRA section 304 emergency release notification regulations as implemented in 40 CFR part 355, subpart C, entitled “Emergency Release Notification.” The scope of the proposed rulemaking stems from existing requirements under EPCRA section 304(a)(2) and under CERCLA section 103(e), as amended, and is tied to the nature or manner of these releases rather than to a specific substance. In other words, the Agency is not proposing to exempt substances typically associated with animal waste (such as ammonia or hydrogen sulfide) from reporting. Rather, this proposal codifies EPA's interpretation that air emissions from animal waste at farms are not subject to EPCRA section 304 release reporting by explicitly exempting releases from animal waste into the air at farms from reporting. Thus, the Agency is proposing to exclude all releases to the air from animal waste at a farm from reporting under EPCRA section 304.

    The proposed rulemaking does not apply to releases of substances from animal waste into non-air environmental media, nor to releases into the air from sources other than animal waste or decomposing animal waste at a farm. For example, a release from animal waste into water (e.g., a lagoon breach) or a release from an anhydrous ammonia storage tank into the air might trigger reporting requirements if the release exceeds the applicable reportable quantities.

    This proposed exemption would be added to those currently listed in the EPCRA regulations codified at 40 CFR 355.31, entitled “What types of releases are exempt from the emergency release notification requirements of this subpart?” To delineate the scope of this proposed exemption, EPA is also proposing to amend the definition section of the EPCRA regulations at 40 CFR 355.61 to add definitions of “animal waste” and “farm” that are consistent with CERCLA section 103(e). By proposing to add a reporting exemption for air releases from animal waste at farms to the EPCRA emergency release notification regulations, EPA is not reopening or proposing revisions to the existing reporting exemptions codified in 40 CFR 355.31, nor will EPA consider or respond to comments related to the existing reporting exemptions. Comments received on the existing reporting exemptions will be outside the scope of this proposed action.

    V. Relationship of Waterkeeper Alliance v. EPA to This Proposed Rule

    In 2008, EPA issued an administrative reporting exemption for air releases from animal waste at farms (73 FR 76948, December 18, 2008). Specifically, the rule exempted all farms from CERCLA's reporting requirements for air releases of any hazardous substance from animal waste. Under EPCRA, the 2008 rule exempted reporting of such releases if the farm had fewer animals than a large concentrated animal feeding operation, as defined by the Clean Water Act. The 2008 administrative reporting exemption was ultimately vacated by the U.S. Court of Appeals for the District of Columbia Circuit in Waterkeeper Alliance v. EPA, 853 F.3d 527 (D.C. Cir. 2017). In vacating the rule, the court found that the Agency could not rely on general rulemaking authority or a de minimis exception to issue an administrative reporting exemption for this category of releases, particularly where the Agency had failed to identify any statutory ambiguity as the basis for its interpretation of the reporting requirements.

    This proposal to amend the EPCRA section 304 release notification regulations to exempt air emissions from animal waste at farms is not constrained by the D.C. Circuit's decision in Waterkeeper. In contrast to the 2008 rule, this proposed rulemaking is not an administrative reporting exemption stemming from EPA's general rulemaking authority. This proposal is instead rooted in EPCRA section 304 and its relationship with CERCLA section 103 and as informed by EPCRA section 304's statutory text, framework and legislative history.

    VI. Proposed Revisions to 40 CFR Part 355 A. Exemption for Air Emissions From Animal Waste at Farms

    For the reasons stated throughout this preamble, EPA is proposing to amend the EPCRA section 304 release notification regulations to exempt air emissions from animal waste (including decomposing animal waste) at a farm from reporting. Currently, the regulations at 40 CFR 355.31 list the releases that are exempt from reporting under EPCRA section 304, including the exemptions adopted from CERCLA through prior rulemakings. The Agency is proposing to amend 40 CFR 355.31 by adding a reporting exemption for air emissions from animal waste at farms. EPA seeks comment on this proposed revision.

    B. Definitions

    EPA is proposing to add the definitions of “animal waste” and “farm” applicable to CERCLA section 103(e) to the definition section of the EPCRA regulations codified at 40 CFR 355.61. EPA requests comment on adding these definitions to 40 CFR 355.61.

    VII. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket.

    B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

    This action is not an Executive Order 13771 regulatory action because the proposed rule would not result in additional costs.

    C. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden under the PRA. The Agency is proposing to codify a provision exempting farms from reporting air releases from animal waste under EPCRA section 304 release notification regulations.

    D. Regulatory Flexibility Act (RFA)

    I certify that this action would not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. Consistent with the Agency's interpretation that air emissions from animal waste at farms are not subject to EPCRA section 304 release reporting, the proposed rule explicitly exempts these types of releases from EPCRA reporting and would not result in additional costs.

    E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. The Agency is proposing to amend the EPCRA section 304 release notification regulations to add the reporting exemption for air emissions from animal waste at farms provided in CERCLA section 103(e), as amended.

    F. Executive Order 13132: Federalism

    This action does not have federalism implications. 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.

    G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. The EPA is proposing to amend the EPCRA section 304 release notification regulations to add the reporting exemption for air emissions from animal waste at farms provided in CERCLA section 103(e), as amended. Thus, Executive Order 13175 does not apply to this action.

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

    The EPA interprets Executive Order 13045 as applying to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of covered regulatory action in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not pose an environmental health risk or safety risk. This proposed rule is intended to maintain consistency between EPCRA section 304 and CERCLA section 103(a) emergency release notification requirements by exempting reporting of air emissions from animal waste at farms.

    I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use

    This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. The EPA is proposing to amend the EPCRA section 304 release notification regulations to add the reporting exemption for air emissions from animal waste at farms provided in CERCLA section 103(e), as amended.

    J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

    K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This proposed rule is intended to maintain consistency between EPCRA section 304 and CERCLA section 103(a) emergency release notification requirements by exempting reporting of air emissions from animal waste at farms under EPCRA.

    List of Subjects in 40 CFR Part 355

    Environmental protection, Chemicals, Disaster assistance, Hazardous substances, Hazardous waste, Natural resources, Penalties, Reporting and recordkeeping requirements, Superfund.

    Dated: October 30, 2018. Andrew R. Wheeler, Acting Administrator

    For the reasons set forth in the preamble, EPA proposes to amend 40 CFR part 355 as follows:

    PART 355—EMERGENCY PLANNING AND NOTIFICATION 1. The authority citation for part 355 continues to read as follows: Authority:

    Sections 302, 303, 304, 325, 327, 328, and 329 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) (42 U.S.C. 11002, 11003, 11004, 11045, 11047, 11048, and 11049).

    2. Amend § 355.31 by adding paragraph (g) to read as follows:
    § 355.31 What types of releases are exempt from the emergency release notification requirements of this subpart?

    (g) Air emissions from animal waste (including decomposing animal waste) at a farm.

    3. Amend § 355.61 by adding in alphabetical order the definitions “Animal waste” and “Farm” to read as follows:
    § 355.61 How are key words in this part defined?

    Animal waste means feces, urine, or other excrement, digestive emission, urea, or similar substances emitted by animals (including any form of livestock, poultry, or fish). This term includes animal waste that is mixed or commingled with bedding, compost, feed, soil, or any other material typically found with such waste.

    Farm means a site or area (including associated structures) that—

    (1) Is used for—

    (i) The production of a crop; or

    (ii) The raising or selling of animals (including any form of livestock, poultry, or fish); and

    (2) Under normal conditions, produces during a farm year any agricultural products with a total value equal to not less than $1,000.

    [FR Doc. 2018-24821 Filed 11-13-18; 8:45 am] BILLING CODE 6560-50-P
    83 220 Wednesday, November 14, 2018 Notices DEPARTMENT OF AGRICULTURE National Agricultural Statistics Service Notice of Intent To Request To Conduct a New Information Collection AGENCY:

    National Agricultural Statistics Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 this notice announces the intention of the National Agricultural Statistics Service (NASS) to seek approval to conduct a new information collection to gather data related to rates paid for custom agricultural work done on farms. This clearance will allow NASS to conduct surveys in a timely manner for the cooperating institutions who provide funding for these surveys.

    DATES:

    Comments on this notice must be received by January 14, 2019 to be assured of consideration.

    ADDRESSES:

    You may submit comments, identified by docket number 0535-NEW, by any of the following methods:

    Email: [email protected] Include docket number above in the subject line of the message.

    E-fax: 855-838-6382.

    Mail: Mail any paper, disk, or CD-ROM submissions to: David Hancock, NASS Clearance Officer, U.S. Department of Agriculture, Room 5336 South Building, 1400 Independence Avenue SW, Washington, DC 20250-2024.

    Hand Delivery/Courier: Hand deliver to: David Hancock, NASS Clearance Officer, U.S. Department of Agriculture, Room 5336 South Building, 1400 Independence Avenue SW, Washington, DC 20250-2024.

    FOR FURTHER INFORMATION CONTACT:

    Kevin L. Barnes, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, 202-720-4333. Copies of this information collection and related instructions can be obtained without charge from David Hancock, NASS—OMB Clearance Officer, at 202-690-2388 or at [email protected]

    SUPPLEMENTARY INFORMATION:

    Title: Custom Rates Surveys.

    OMB Control Number: 0535-NEW.

    Type of Request: Intent to seek approval to conduct a group of new information collections for a period of three years.

    Abstract: The primary objective of the National Agricultural Statistics Service (NASS) is to collect, prepare, and issue state and national estimates of crop and livestock production, prices, and disposition; as well as economic statistics, environmental statistics related to agriculture; and also to conduct the Census of Agriculture. The Custom Rates program will collect information from farmers who have knowledge of rates for custom agricultural services (custom rates) during a specified reference period. These services include land tillage, application of fertilizers and chemicals, planting, harvesting, hauling, various livestock tasks, and many more tasks. The program will provide farm operators with rates for different custom services in their state and/or local area. All questionnaires included in this information collection will be voluntary. These surveys will be conducted through cooperative agreements with State Departments of Agriculture and/or universities; with the cooperators providing the funding. The time between funding being secured and the desired start of data collection is often too short to allow for a separate OMB approval for each survey. With this approval NASS will be able to provide services in a timelier manner.

    Authority: These data will be collected under authority of 7 U.S.C. 2204(a). Individually identifiable data collected under this authority are governed by Section 1770 of the Food Security Act of 1985 as amended, 7 U.S.C. 2276, which requires USDA to afford strict confidentiality to non-aggregated data provided by respondents.

    This Notice is submitted in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-113, 44 U.S.C. 3501, et seq.) and Office of Management and Budget regulations at 5 CFR part 1320.

    NASS also complies with OMB Implementation Guidance, “Implementation Guidance for Title V of the E-Government Act, Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA),” Federal Register, Vol. 72, No. 115, June 15, 2007, p. 33362.

    Estimate of Burden: Public reporting burden for this information collection is based on similar surveys with expected response time of 20 minutes. The estimated sample size will be approximately 40,000. The frequency of data collection for each survey is annual. The estimated number of responses per respondent is 1. Publicity materials and instruction sheets will account for approximately 5 minutes of additional burden per respondent. Respondents who refuse to complete a survey will be allotted 2 minutes of burden per attempt to collect the data. NASS will conduct the survey initially by mail with phone follow-up for non-response.

    Respondents: Farmers who have a knowledge of rates for custom services.

    Estimated Number of Respondents: Approximately 40,000 annually.

    Frequency of Responses: On occasion.

    Estimated Total Burden on Respondents: Approximately 14,500 hours annually. This will include burden for both the initial mailing and phone follow-up to non-respondents, as well as publicity and instruction materials mailed out with questionnaires.

    Comments: Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, through the use of appropriate automated, electronic, mechanical, technological, or other forms of information technology collection methods.

    All responses to this notice will become a matter of public record and be summarized in the request for OMB approval.

    Signed at Washington, DC, October 23, 2018. Kevin L. Barnes, Associate Administrator.
    [FR Doc. 2018-24775 Filed 11-13-18; 8:45 am] BILLING CODE 3410-20-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Virginia Advisory Committee AGENCY:

    Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA) that a meeting of the Virginia Advisory Committee to the Commission will convene by conference call at 12:00 p.m. (EST) on Wednesday, November 28, 2018. The purpose of the meeting is for Committee members to continue discussing plans for the in-person briefing titled: Hate Crimes in VA—Incidences and Responses.

    DATES:

    Wednesday, November 28, 2018, at 12:00 p.m. EST

    ADDRESSES:

    Public call-in information: Conference call-in number: 1-800-474-8920 and conference call ID number: 8310490.

    FOR FURTHER INFORMATION CONTACT:

    Ivy Davis at [email protected] or by phone at 202-376-7533.

    SUPPLEMENTARY INFORMATION:

    Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 1-800-474-8920 and conference call ID number: 8310490. Please be advised that before placing them into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free conference call-in number.

    Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-877-8339 and providing the operator with the toll-free conference call-in number: 1-800-474-8920 and conference call ID number: 8310490.

    Members of the public are invited to make statements during the open comment period of the meeting or submit written comments. The comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, faxed to (202) 376-7548, or emailed to Corrine Sanders at [email protected] Persons who desire additional information may contact the Eastern Regional Office at (202) 376-7533.

    Records and documents discussed during the meeting will be available for public viewing as they become available at https://database.faca.gov/committee/meetings.aspx?cid=279, click the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Eastern Regional Office, as they become available, both before and after the meetings. Persons interested in the work of this advisory committee are advised to go to the Commission's website, www.usccr.gov, or to contact the Eastern Regional Office at the above phone number, email or street address.

    Agenda: Wednesday, November 28, 2018 I. Rollcall II. Welcome III. Project Panning Discussion IV. Other Business V. Adjourn Dated: November 7, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-24754 Filed 11-13-18; 8:45 am] BILLING CODE P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Pennsylvania Advisory Committee AGENCY:

    Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA) that a meeting of the Pennsylvania Advisory Committee to the Commission will convene by conference call at 11:30 a.m. (EST) on Tuesday, November 20, 2018. The Committee is considering and will discuss possible topics for its civil rights project.

    DATES:

    Tuesday, November 20, 2018, at 11:30 a.m. (EDT).

    Public Call-In Information: Conference call-in number: 800-949-2175 and conference call ID: 8426059.

    FOR FURTHER INFORMATION CONTACT:

    Ivy Davis at [email protected] or by phone at 202-376-7533.

    SUPPLEMENTARY INFORMATION:

    Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 800-949-2175 and conference call ID: 8426059. Please be advised that before placing them into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free conference call-in number.

    Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-877-8339 and providing the operator with the toll-free conference call-in number: 800-949-2175 and conference call ID: 8426059.

    Members of the public are invited to submit written statements for the record. The statements must be received in the regional office approximately 30 days after the scheduled meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, or emailed to Corrine Sanders at [email protected] Persons who desire additional information may phone the Eastern Regional Office at (202) 376-7533.

    Records and documents discussed during the meeting will be available for public viewing as they become available at https://database.faca.gov/committee/meetings.aspx?cid=279, click the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Eastern Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this advisory committee are advised to go to the Commission's website, www.usccr.gov, or to contact the Eastern Regional Office at the above phone number, email or street address.

    Agenda: Tuesday, November 20, 2018 I. Rollcall II. Welcome and Introductions III. Project Planning —Discuss Possible Topics for Civil Rights Project IV. Other Business V. Adjourn Dated: November 7, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-24752 Filed 11-13-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-70-2018] Foreign-Trade Zone (FTZ) 52—Suffolk County, New York; Notification of Proposed Production Activity; LNK International, Inc. (Pharmaceutical Products), Hauppauge, New York

    Suffolk County, New York, grantee of FTZ 52, submitted a notification of proposed production activity to the FTZ Board on behalf of LNK International, Inc. (LNK), located at sites in Hauppauge, New York. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on November 5, 2018.

    The LNK facilities are located within Subzone 52B. The facilities are used for the production of over-the-counter (OTC) analgesic pharmaceutical products. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status materials and components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.

    Production under FTZ procedures could exempt LNK from customs duty payments on the foreign-status components used in export production. On its domestic sales, for the foreign-status materials/components noted below, LNK would be able to choose the duty rates during customs entry procedures that apply to dosage form ibuprofen, aspirin and acetaminophen pharmaceutical products (duty-free). LNK would be able to avoid duty on foreign-status components which become scrap/waste. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.

    The components and materials sourced from abroad include: Ibuprofen active pharmaceutical ingredient; o-acetylsalicylic acid (aspirin) active pharmaceutical ingredient; diphenhydramine citrate; acetaminophen active pharmaceutical ingredient; caffeine; and, bulk mixture of acetaminophen (duty rates range from duty-free to 6.5%).

    Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is December 24, 2018.

    A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230-0002, and in the “Reading Room” section of the Board's website, which is accessible via www.trade.gov/ftz.

    For further information, contact Diane Finver at [email protected] or (202) 482-1367.

    Dated: November 7, 2018. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2018-24797 Filed 11-13-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-201-830] Carbon and Certain Alloy Steel Wire Rod From Mexico: Preliminary Results of Antidumping Duty Administrative Review; 2016-2017 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that sales of carbon and certain alloy steel wire rod (wire rod) from Mexico were made at less than normal value during the period of review (POR), October 1, 2016, through September 30, 2017. We invite interested parties to comment on these preliminary results.

    DATES:

    Applicable November 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Jolanta Lawska, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone (202) 482-8362.

    Background

    On October 29, 2002 Commerce published the Wire Rod Order in the Federal Register.1 On December 7, 2017, pursuant to section 751(a)(1) of the Tariff Act of 1930, as amended (the Act), Commerce initiated an administrative review of the Wire Rod Order2 covering Deacero S.A.P.I. de C.V. (Deacero), ArcelorMittal Las Truchas, S.A. de C.V. (AMLT), ArcelorMittal Mexico S.A. de C.V. (AMM) (successor-in-interest to AMLT),3 and Ternium Mexico S.A. de C.V. (Ternium). On May 31, 2018, Commerce extended the deadline for the preliminary results to November 5, 2018.4 For a complete description of the events that followed the initiation of this review, see the Preliminary Decision Memorandum.5

    1See Notice of Antidumping Duty Orders: Carbon and Certain Alloy Steel Wire Rod from Brazil, Indonesia, Mexico, Moldova, Trinidad and Tobago, and Ukraine, 67 FR 65945 (October 29, 2002) (Wire Rod Order).

    2See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 82 FR 57705, 57707 (December 7, 2017).

    3See Final Results of Changed Circumstances Review: Antidumping Duty Order on Carbon and Certain Alloy Steel Wire Rod from Mexico, 82 FR 53456 (November 16, 2017) (Final Results of Changed Circumstances Review), in which Commerce determined that AMM is the successor-in-interest to AMLT.

    4See Memorandum, “Carbon and Certain Alloy Steel Wire Rod from Mexico: Extension of Deadline for Preliminary Results of Antidumping Duty Administrative Review,” dated May 31, 2018.

    5See “Decision Memorandum for the Preliminary Results of Antidumping Duty Administrative Review: Carbon and Certain Alloy Steel Wire Rod from Mexico; 2016-2017,” dated concurrently and hereby adopted by this notice (Preliminary Decision Memorandum).

    Scope of the Order

    The product covered by the Wire Rod Order is wire rod, in coils, of approximately round cross section, 5.00 mm or more, but less than 19.00 mm, in solid cross-sectional diameter. The subject merchandise is currently classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 7213.91.3000, 7213.91.3010, 7213.91.3011, 7213.91.3015, 7213.91.3020, 7213.91.3090, 7213.91.3091, 7213.91.3092, 7213.91.3093, 7213.91.4500, 7213.91.4510, 7213.91.4590, 7213.91.6000, 7213.91.6010, 7213.91.6090, 7213.99.0030, 7213.99.0031, 7213.99.0038, 7213.99.0090, 7227.20.0000, 7227.20.0010, 7227.20.0020, 7227.20.0030, 7227.20.0080, 7227.20.0090, 7227.20.0095, 7227.90.6010, 7227.90.6020, 7227.90.6030, 7227.90.6035, 7227.90.6050, 7227.90.6051, 7227.90.6053, 7227.90.6058, 7227.90.6059, 7227.90.6080, and 7227.90.6085. The HTSUS subheadings are provided for convenience and customs purposes only; the written product description remains dispositive. A full description of the scope of the Wire Rod Order is contained in the Preliminary Decision Memorandum.

    Preliminary Determination of No Shipments

    On December 12, 2017, we received a timely-filed submission on behalf of AMM and its predecessor-in-interest AMLT that AMM/AMLT made no exports, sales, or entries of subject merchandise to the United States during the POR. To confirm AMM's no shipment claim, Commerce issued a no-shipment inquiry to U.S. Customs and Border Protection (CBP) requesting that it confirm AMM/AMLT had no shipments during the POR. CBP did not report that it had any information to contradict the claim of no shipments during the POR.

    Given that AMM certified that AMM/AMLT made no shipments of subject merchandise to the United States during the POR, and there is no information calling its claims into question, we preliminarily determine that AMM/AMLT did not have any shipments during the POR. Consistent with Commerce's practice, we will not rescind the review with respect to AMM/AMLT but, rather, will complete the review and issue instructions to CBP based on the final results.6

    6See, e.g., Certain Frozen Warmwater Shrimp from Thailand; Preliminary Results of Antidumping Duty Administrative Review, Partial Rescission of Review, Preliminary Determination of No Shipments; 2012-2013, 79 FR 15951, 15952 (March 24, 2014), unchanged in Certain Frozen Warmwater Shrimp from Thailand: Final Results of Antidumping Duty Administrative Review, Final Determination of No Shipments, and Partial Rescission of Review; 2012-2013, 79 FR, at 51306-51307 (August 28, 2014).

    Application of Adverse Facts Available With Regard to Ternium

    Because Ternium failed to response to Commerce's questionnaire, we preliminarily find that necessary information is not on the record and that Ternium failed to cooperate to the best of its ability to comply with a request for information from Commerce in this review. As a result, we have preliminarily based Ternium's dumping margin on facts otherwise available with an adverse inference (AFA), in accordance with sections 776(a) and (b) of the Act and 19 CFR 351.308. As AFA, we have preliminarily assigned Ternium a dumping margin of 40.52 percent. For further discussion, see the Preliminary Decision Memorandum.

    Methodology

    Commerce is conducting this review in accordance with section 751(a)(1)(B) of the Act. Export and constructed export price were calculated in accordance with section 772 of the Act. Normal value was calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our conclusions, see the Preliminary Decision Memorandum. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov and is available to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the internet at http://enforcement.trade.gov/frn/index.html. The signed Preliminary Decision Memorandum and the electronic version of the Preliminary Decision Memorandum are identical in content. A list of topics discussed in the Preliminary Decision Memorandum is attached as an Appendix to this notice.

    Preliminary Results of the Review

    As a result of this review, we preliminarily determine the following weighted-average dumping margins exist for the POR:

    Exporter/producer Weighted-
  • average
  • dumping margins
  • (percent)
  • Deacero S.A.P.I de C.V 17.65 Ternium Mexico S.A. de C.V (Ternium) 40.52
    Assessment Rates

    Upon issuance of the final results, Commerce shall determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. If the weighted-average dumping margin for Deacero is not zero or de minimis (i.e., less than 0.5 percent), we will calculate importer-specific ad valorem antidumping duty assessment rates based on the ratio of the total amount of dumping calculated for the importer's examined sales to the total entered value of those same sales in accordance with 19 CFR 351.212(b)(1).7 We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review when the importer- specific assessment rate calculated in the final results of this review is above de minimis (i.e., 0.5 percent). Where either the respondent's weighted-average dumping margin is zero or de minimis, or an importer-specific assessment rate is zero or de minimis, we will instruct CBP to liquidate the appropriate entries without regard to antidumping duties. The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review where applicable.

    7 In the preliminary results, Commerce applied the assessment rate calculation method adopted in Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain Antidumping Proceedings; Final Modification, 77 FR 8101 (February 14, 2012).

    In accordance with Commerce's “automatic assessment” practice, for entries of subject merchandise during the POR produced by each respondent for which they did not know that their merchandise was destined for the United States, we will instruct CBP to liquidate entries not reviewed at the all-others rate of 20.11 percent 8 if there is no rate for the intermediate company(ies) involved in the transaction. We intend to issue instructions to CBP 15 days after publication of the final results of this review.

    8See Wire Rod Order, 67 FR at 65947.

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of wire rod from Mexico entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results, as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for the firms listed above will be equal to the dumping margins established in the final results of this review, except if the ultimate rates are de minimis within the meaning of 19 CFR 351.106(c)(1), in which case the cash deposit rates will be zero; (2) for merchandise exported by producers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding in which the producer or exporter participated; (3) if the exporter is not a firm covered in this review, a prior review, or the original less-than-fair-value investigation but the producer is, the cash deposit rate will be the rate established for the most recently completed segment of the proceeding for the producer of the merchandise; and (4) the cash deposit rate for all other producers or exporters will continue to be 20.11 percent, the all-others rate established in the antidumping duty investigation.9 These cash deposit requirements, when imposed, shall remain in effect until further notice.

    9Id.

    Disclosure

    We intend to disclose the calculations performed in these preliminary results to parties in this proceeding within five days of the date of publication of this notice.10

    10See 19 CFR 351.224(b).

    Public Comment

    Pursuant to 19 CFR 351.309(c)(1)(ii), interested parties may submit case briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed no later than five days after the date for filing case briefs.11 Parties who submit case briefs or rebuttal briefs in this proceeding are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.12 All briefs must be filed electronically using ACCESS. An electronically filed document must be received successfully in its entirety by the established deadline.

    11See 19 CFR 351.309(d).

    12See 19 CFR 351.309(c)(2) and (d)(2) and 19 CFR 351.303 (for general filing requirements).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, within 30 days after the date of publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    We intend to issue the final results of this administrative review, including the results of our analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act.

    Notification to Importers

    This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

    Notification to Interested Parties

    We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(h)(1).

    Dated: November 5, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Scope of the Order IV. Preliminary Determination of No Shipments V. Use of Adverse Facts Available A. Legal Standard for Facts Available and Adverse Inferences B. Application of Total AFA to Ternium C. Selection of the AFA Margin Assigned to Ternium VI. Discussion of the Methodology A. Comparisons to Normal Value B. Product Comparisons C. Date of Sale D. Constructed Export Price E. Normal Value F. Level of Trade G. Sales to Affiliated Parties H. Calculation of Normal Value Based on Comparison Market Prices I. Currency Conversion VII. Recommendation
    [FR Doc. 2018-24801 Filed 11-13-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-821-802] Agreement Suspending the Antidumping Duty Investigation on Uranium From the Russian Federation: Preliminary Results of 2016-2017 Administrative Review and Postponement of Final Results AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) is conducting an administrative review of the Agreement Suspending the Antidumping Duty Investigation on Uranium from the Russian Federation (the Agreement). We preliminarily find that the State Atomic Energy Corporation “ROSATOM” (ROSATOM), its affiliates Joint Stock Company “TENEX” (TENEX) and TENAM Corporation (TENAM), and TENEX's unaffiliated reseller, Centrus Energy Corp. and United States Enrichment Corporation (collectively, Centrus), are in compliance with the Agreement.

    DATES:

    Applicable November 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Sally C. Gannon or Jill Buckles, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0162 or (202) 482-6230, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    On October 16, 1992, Commerce signed an agreement with the Russian Federation's Ministry for Atomic Energy (MINATOM), the predecessor to ROSATOM, under section 734(l) of the Tariff Act of 1930, as amended (the Act), suspending the antidumping duty investigation on uranium from the Russian Federation.1 There have been five amendments to the Agreement, the most recent of which was signed on February 1, 2008.2 Section 8118 of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, codified at 42 U.S.C. 2297h et seq. (2008) (Domenici Amendment) established import limitations through 2020 that in large part mirror the export limits instituted in the 2008 amendment to the Agreement. On February 2, 2010, Commerce issued its Statement of Administrative Intent (SAI) which provided implementation guidance related to the 2008 amendment.

    1See Antidumping; Uranium from Kazakhstan, Kyrgyzstan, Russia, Tajikistan, Ukraine, and Uzbekistan; Suspension of Investigations and Amendment of Preliminary Determinations, 57 FR 49220, 49235 (October 30, 1992) (1992 Suspension Agreement).

    2See Amendment to Agreement Suspending the Antidumping Investigation on Uranium from the Russian Federation, 59 FR 15373 (April 1, 1994) (1994 Amendment); Amendments to the Agreement Suspending the Antidumping Investigation on Uranium from the Russian Federation, 61 FR 56665 (November 4, 1996) (1996 Amendments); Amendment to Agreement Suspending the Antidumping Investigation on Uranium from the Russian Federation, 62 FR 37879 (July 15, 1997) (1997 Amendment); and Amendment to the Agreement Suspending the Antidumping Investigation on Uranium from the Russian Federation, 73 FR 7705 (February 11, 2008) (2008 Amendment).

    On October 4, 2017, Commerce notified interested parties of the opportunity to request an administrative review of the Agreement.3 On October 30, 2017, domestic interested party Louisiana Energy Services LLC (LES) submitted a request for an administrative review of the Agreement. On December 7, 2017, Commerce published in the Federal Register a notice initiating an administrative review of the Agreement.4 The period of review (POR) is October 1, 2016, through September 30, 2017. On April 27, 2018, Commerce issued questionnaires to ROSATOM, TENEX, and any other affiliated or unaffiliated exporters and resellers, as applicable. For a complete description of the events that followed the initiation of this administrative review, see the Preliminary Decision Memorandum.5 The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov, and to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed Preliminary Decision Memorandum and the electronic version of the Preliminary Decision Memorandum are identical in content.

    3See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 82 FR 46217 (October 4, 2017).

    4See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 82 FR 57705 (December 7, 2017).

    5See Memorandum to Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance, re “Decision Memorandum for the Preliminary Results of the Administrative Review of the Agreement Suspending the Antidumping Investigation on Uranium from the Russian Federation,” dated concurrently with and adopted by this notice.

    Scope of Review

    The product covered by this Agreement is natural uranium in the form of uranium ores and concentrates; natural uranium metal and natural uranium compounds; alloys, dispersions (including cermets), ceramic products, and mixtures containing natural uranium or natural uranium compounds; uranium enriched in U235 and its compounds; alloys, dispersions (including cermets), ceramic products, and mixtures containing uranium enriched in U235 or compounds of uranium enriched in U235; and any other forms of uranium within the same class or kind.

    Imports of uranium ores and concentrates, natural uranium compounds, and all forms of enriched uranium are currently classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 2612.10.00, 2844.10.20, 2844.20.00, respectively. Imports of natural uranium metal and forms of natural uranium other than compounds are currently classifiable under HTSUS subheadings: 2844.10.10 and 2844.10.50. HTSUS subheadings are provided for convenience and Customs purposes. The written description of the scope of this proceeding is dispositive. A full description of the scope of the order is contained in the Preliminary Decision Memorandum.

    Methodology and Preliminary Results

    Commerce is conducting this review in accordance with section 751(a)(1)(C) of the Act, which specifies that Commerce shall “review the current status of, and compliance with, any agreement by reason of which an investigation was suspended.” In this case, Commerce and MINATOM (the predecessor to ROSATOM) signed the Agreement, under section 734(l) of the Act, suspending the underlying antidumping duty investigation on October 16, 1992, which was subsequently amended on March 11, 1994, October 3, 1996, May 7, 1997, and February 1, 2008. Section 734(l) provides that Commerce may suspend an investigation upon acceptance of an agreement with a non-market-economy country 6 to restrict the volume of imports into the United States, if Commerce determines that such an agreement is in the public interest, effective monitoring is possible, and the agreement “will prevent the suppression or undercutting of price levels of domestic products by imports of the merchandise under investigation.”

    6 Because Commerce determined that the Russian Federation was a non-market economy at the time the Agreement was signed, the Agreement was entered into under section 734(l) of the Act, which applies to non-market-economy countries.

    After reviewing the information submitted in initial questionnaire responses and related new factual information and comments from interested parties in this administrative review, we preliminarily find no evidence that the Agreement's export limits have not been complied with, or evidence of any violation of the Agreement, during the POR. For example, Commerce reviewed the contract, contract amendment, shipment approval request documentation, and Master Export Schedules submitted on the record of the administrative review by the respondents for completeness and compliance. We found no discrepancies in the respondents' utilization of the export limits during the POR, i.e., the overall export limits were not exceeded nor were approved contract quantities exceeded. However, in examining respondents' individual contracts, contract amendments, and shipment documentation filed on the record of the review, we found certain inconsistencies that required further examination and clarification. Consequently, Commerce issued supplemental questionnaires to TENEX, TENAM, and Centrus regarding, in part, certain contracts in force and shipments executed during the POR. We have not yet received all of the supplemental questionnaire responses and/or had the opportunity to undertake a fulsome review of the responses to these supplemental questionnaires. In addition, based on Commerce's review to date of the record information, we do not yet find a sufficient basis to make a complete determination as to whether the Agreement continues to meet the relevant statutory requirements set forth in Section 734(l) of the Act.

    In light of parties' comments and due to the complex nature of the issues of price suppression and undercutting and public interest, we find that we require additional time and information in order to complete our examination of whether the Agreement continues to meet the statutory requirements referenced above. Commerce also needs to obtain additional information and needs additional time to evaluate information received, and to be received, from respondents and interested parties in order to complete its examination of the current status of the Agreement. Therefore, we intend to continue our examination after the issuance of these preliminary results as to whether the Agreement has been complied with during the POR and whether the Agreement continues to meet the statutory requirements set forth in section 734(l) of the Act and intend to issue a post-preliminary analysis as soon as practicable. For a full description of the methodology underlying our conclusions, see the Preliminary Decision Memorandum.

    Disclosure and Public Comment

    As discussed above, Commerce needs additional information and additional time to review the information received before making a definitive preliminary finding. Therefore, we intend to issue a post-preliminary analysis on these issues as soon as practicable. The comment period on these preliminary results as well as the post-preliminary analysis will be stated with the release of the post-preliminary analysis. At that time, interested parties will have the opportunity to submit case and rebuttal briefs.

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. An electronically filed document must be received successfully in its entirety by Commerce's electronic records system ACCESS, by 5:00 p.m. Eastern Time within 30 days after the date of publication of this notice. Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to those raised in the respective case briefs. If a request for a hearing is made, parties will be notified of the time and date for the hearing to be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.7

    7See 19 CFR 351.310(c).

    Postponement of Final Results

    Section 751(a)(3)(A) of the Act, requires Commerce to complete the final results of an administrative review within 120 days after the date on which the preliminary results are published. If it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2) allow Commerce to extend the time limit for the final results to a maximum of 180 days after the date on which the preliminary results are published.

    We determine that it is not practicable to complete the final results of this administrative review within 120 days from the date of publication of these preliminary results. Commerce requires additional time to analyze supplemental questionnaire responses, complete our examination, issue our post-preliminary analysis, conduct verification of questionnaire responses, and allow for case briefs and rebuttal briefs on our preliminary and post-preliminary results. Accordingly, Commerce is extending the deadline for the final results of this administrative review by 60 days. The final results of the review will now be due no later than 180 days from the date of publication of these preliminary results.

    We are issuing and publishing these preliminary results of review in accordance with sections 751(a)(l) and 777(i)(l) of the Act and 19 CFR 351.213.

    Dated: November 5, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping Duty and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2018-24799 Filed 11-13-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-570-078] Countervailing Duty Investigation of Large Diameter Welded Pipe From the People's Republic of China: Final Affirmative Determination AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) determines that countervailable subsidies are being provided to producers/exporters of large diameter welded pipe from the People's Republic of China (China).

    DATES:

    Applicable November 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Justin Neuman at (202) 482-0486 or Benito Ballesteros at (202) 482-7425, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: Background

    On June 29, 2018, Commerce published in the Federal Register the Preliminary Determination of this countervailing duty (CVD) investigation and invited interested parties to comment.1 We received no comments from any interested parties.

    1See Large Diameter Welded Pipe from the People's Republic of China: Preliminary Affirmative Countervailing Duty Determination and Alignment of Final Determination with Final Antidumping Determination, 83 FR 30695 (June 29, 2018) (Preliminary Determination).

    Period of Investigation

    The period of investigation is January 1, 2017, through December 31, 2017.

    Scope of the Investigation

    The product covered by this investigation is large diameter welded pipe from China. For a full description of the scope of this investigation, see the “Scope of the Investigation,” at the Appendix to this notice.

    Scope Comments

    During the course of this investigation and the concurrent LTFV investigations of large diameter welded pipe from Canada, Greece, Korea, China and Turkey, and the concurrent countervailing duty investigations of large diameter welded pipe from India, Korea and Turkey, Commerce received numerous scope comments from interested parties. We issued a Preliminary Scope Decision Memorandum 2 to address these comments. Further, in the Preliminary Determination, we set aside a period of time for parties to address scope issues in scope case and rebuttal briefs. No interested parties submitted scope comments in case or rebuttal briefs. Therefore, for this final determination, the scope of this investigation remains unchanged from that published in the Preliminary Determination.

    2See Memorandum, “Scope Comments Decision Memorandum for the Preliminary Determinations,” dated June 19, 2018 (Preliminary Scope Decision Memorandum).

    Use of Adverse Facts Available

    As noted above, we received no comments pertaining to the Preliminary Determination. As stated in the Preliminary Determination, we found that the mandatory respondents in this investigation, Hefei Zijin Steel Tube Manufacturing Co., Hefei Ziking Steel Pipe, and Panyu Chu Kong Steel Pipe Co. Ltd., did not cooperate to the best of their abilities and, accordingly, we determined it appropriate to apply facts otherwise available with adverse inferences, in accordance with section 776(a)-(b) of the Tariff Act of 1930, as amended (the Act).3 For this final determination, Commerce has made no changes to the Preliminary Determination.

    3See Preliminary Determination.

    All-Others Rate

    As discussed in the Preliminary Determination, Commerce based the selection of the “All-Others” rate on the countervailable subsidy rate established for the mandatory respondents in accordance with section 705(c)(5)(A)(ii) of the Act.4 We made no changes to the selection of this rate for this final determination.

    4Id.

    Final Determination

    Commerce determines that the following estimated countervailable subsidy rates exist:

    Company Subsidy rate
  • (percent)
  • Hefei Zijin Steel Tube Manufacturing Co 198.49 Hefei Ziking Steel Pipe 198.49 Panyu Chu Kong Steel Pipe Co. Ltd 198.49 All-Others 198.49
    Continuation of Suspension of Liquidation

    As a result of our Preliminary Determination and pursuant to section 703(d)(1)(B) and (d)(2) of the Act, Commerce directed U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise as described in the Scope of the Investigation section, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register. In accordance with section 703(d) of the Act, we issued instructions to CBP to discontinue the suspension of liquidation for CVD purposes for subject merchandise entered, or withdrawn from warehouse, on or after October 27, 2018, but to continue the suspension of liquidation of all entries from June 29, 2018, through October 26, 2018.

    If the U.S. International Trade Commission (ITC) issues a final affirmative injury determination, we will issue a CVD order, reinstate the suspension of liquidation under section 706(a) of the Act, and will require a cash deposit of estimated countervailing duties for such entries of subject merchandise in the amounts indicated above. If the ITC determines that material injury, or threat of material injury, does not exist, this proceeding will be terminated, and all estimated duties deposited or securities posted as a result of the suspension of liquidation will be refunded or canceled.

    International Trade Commission Notification

    In accordance with section 705(d) of the Act, Commerce will notify the ITC of its determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information related to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order (APO), without the written consent of the Assistant Secretary for Enforcement and Compliance.

    Notification Regarding Administrative Protective Orders

    This notice will serve as a reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of propriety information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.

    Notification to Interested Parties

    This determination is issued and published pursuant to sections 705(d) and 777(i) of the Act and 19 CFR 351.210(c).

    Dated: November 5, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix Scope of the Investigation

    The merchandise covered by this investigation is welded carbon and alloy steel pipe (including stainless steel pipe), more than 406.4 mm (16 inches) in nominal outside diameter (large diameter welded pipe), regardless of wall thickness, length, surface finish, grade, end finish, or stenciling. Large diameter welded pipe may be used to transport oil, gas, slurry, steam, or other fluids, liquids, or gases. It may also be used for structural purposes, including, but not limited to, piling. Specifically, not included is large diameter welded pipe produced only to specifications of the American Water Works Association (AWWA) for water and sewage pipe.

    Large diameter welded pipe used to transport oil, gas, or natural gas liquids is normally produced to the American Petroleum Institute (API) specification 5L. Large diameter welded pipe may also be produced to American Society for Testing and Materials (ASTM) standards A500, A252, or A53, or other relevant domestic specifications, grades and/or standards. Large diameter welded pipe can be produced to comparable foreign specifications, grades and/or standards or to proprietary specifications, grades and/or standards, or can be non-graded material. All pipe meeting the physical description set forth above is covered by the scope of this investigation, whether or not produced according to a particular standard.

    Subject merchandise also includes large diameter welded pipe that has been further processed in a third country, including but not limited to coating, painting, notching, beveling, cutting, punching, welding, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope large diameter welded pipe.

    The large diameter welded pipe that is subject to this investigation is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 7305.11.1030, 7305.11.1060, 7305.11.5000, 7305.12.1030, 7305.12.1060, 7305.12.5000, 7305.19.1030, 7305.19.1060, 7305.19.5000, 7305.31.4000, 7305.31.6010, 7305.31.6090, 7305.39.1000 and 7305.39.5000. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.

    [FR Doc. 2018-24805 Filed 11-13-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-489-826] Certain Hot-Rolled Steel Flat Products From Republic of Turkey: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2016-2017 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that Colakoglu Metalurji A.S. and Colakoglu Dis Ticaret A.S. (collectively, Colakoglu) did not sell subject merchandise in the United States at prices below normal value during the period of review (POR). Additionally, Commerce preliminarily determines that three other companies for which we initiated reviews had no shipments during the POR. We invite interested parties to comment on these preliminary results.

    DATES:

    Applicable November 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Lingjun Wang, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2316.

    SUPPLEMENTARY INFORMATION:

    Background

    Commerce is conducting an administrative review of the antidumping duty order on certain hot-rolled steel flat products (hot-rolled steel) from the Republic of Turkey (Turkey). The notice of initiation of this administrative review was published on December 7, 2017.1 This review covers 11 producers or exporters of the subject merchandise. The POR is March 22, 2016, through September 30, 2017. Commerce selected Colakoglu as the mandatory respondent in this administrative review.2

    1See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 82 FR 57705 (December 7, 2017).

    2See Memorandum, “Respondent Selection for the Administrative Review of the Antidumping Duty Order of Certain Hot-Rolled Steel Flat Products from Turkey,” dated January 16, 2018.

    Scope of the Order

    The merchandise covered by the order is certain hot-rolled steel flat products. For a complete description of the scope of the order, see the Preliminary Decision Memorandum.3

    3See Memorandum, “Decision Memorandum for the Preliminary Results of Antidumping Duty Administrative Review: Certain Hot-Rolled Steel Flat Products from the Republic of Turkey; 2016-2017,” dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum).

    Methodology

    Commerce is conducting this review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (the Act). Export price and constructed export price are calculated in accordance with section 772 of the Act. NV is calculated in accordance with section 773 of the Act.

    For a full description of the methodology underlying our conclusions, see the Preliminary Decision Memorandum. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov, and it is available to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed and electronic versions of the Preliminary Decision Memorandum are identical in content. A list of the topics discussed in the Preliminary Decision Memorandum is attached as the Appendix to this notice.

    Preliminary Determination of No Shipments

    Among the companies under review, three companies, Gazi Metal Mamulleri Sanayi Ve Ticaret A.S. (Gazi), Toscelik Profile and Sheet Ind. Co. (a.k.a. Toscelik Profil ve Sac endustrisi A.S.) and Tosyali Holding A.S. (collectively, Toscelik), and Eregli Demir ve Celik Fabrikalari T.A.S. and Iskenderun Iron and Steel Works Ltd. (a.k.a. Iskenderun Demir ve Celik A.S.) (collectively, Erdemir), each properly filed statements reporting that they made no shipments of subject merchandise to the United States during the POR. Based on the certifications submitted and our analysis of Customs and Border Protection (CBP) information, we preliminarily determine that Gazi, Toscelik, and Erdemir had no shipments during the POR.4 Consistent with its practice, Commerce finds that it is not appropriate to preliminarily rescind the review with respect to these companies but, rather, to complete the review and issue appropriate instructions to CBP based on the final results of this review.

    4See Preliminary Decision Memorandum.

    Preliminary Results of the Review

    As a result of this review, we preliminarily determine the following weighted-average dumping margins for the period March 22, 2016, through September 30, 2017:

    Exporter or producer Weighted-average
  • dumping
  • margin
  • (percent)
  • Colakoglu Metalurji A.S. and Colakoglu Dis Ticaret A.S 0 Agir Haddecilik A.S 0 Habas Industrial and Medical Gases Production Industries Inc 0 Habas Sinai ve Tibbi Gazlar Istihsal Endustrisi 0 MMK Atakas Metalurji 0 Ozkan Iron and Steel Ind 0
    Assessment Rates

    Upon completion of the administrative review, Commerce shall determine, and CBP shall assess, antidumping duties on all appropriate entries.

    Pursuant to 19 CFR 351.212(b)(1), we calculated importer-specific ad valorem duty assessment rates based on the ratio of the total amount of dumping calculated for the examined sales to the total entered value of the sales. Where the mandatory respondents did not report entered value, we calculated the entered value in order to calculate the ad valorem assessment rate. Where either the respondent's weighted-average dumping margin is zero or de minimis within the meaning of 19 CFR 351.106(c)(1), or an importer-specific rate is zero or de minimis, we will instruct CBP to liquidate the appropriate entries without regard to antidumping duties.

    For the companies which were not selected for individual review, we will assign an assessment rate based on the weighted-average dumping margins calculated for the mandatory respondents. The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated antidumping duties, where applicable.5

    5See section 751(a)(2)(C) of the Act.

    We intend to issue liquidation instructions to CBP 15 days after publication of the final results of this review.

    Cash Deposit Requirements

    The following deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for each specific company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent and, therefore, de minimis within the meaning of 19 CFR 351.106(c)(1), in which case the cash deposit rate will be zero; (2) for previously investigated companies not participating in this review, the cash deposit will continue to be the company-specific rate published for the most recently completed segment of this proceeding in which the company participated; (3) if the exporter is not a firm covered in this review, or the underlying investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent segment for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 6.41 percent, the all-others rate established in the underlying investigation.6 These deposit requirements, when imposed, shall remain in effect until further notice.

    6See Certain Hot-Rolled Steel Flat Products from Australia, Brazil, Japan, the Republic of Korea, the Netherlands, the Republic of Turkey, and the United Kingdom: Amended Final Affirmative Antidumping Determinations for Australia, the Republic of Korea, and the Republic of Turkey and Antidumping Duty Orders, 81 FR 67962 (October 3, 2016).

    Disclosure and Public Comment

    Commerce intends to disclose the calculations performed in connection with these preliminary results to interested parties within five days after the date of publication of this notice.7 Interested parties may submit case briefs not later than 30 days after the date of publication of this notice.8 Rebuttal briefs, limited to issues raised in the case briefs, may be filed no later than five days after the time limit for filing case briefs.9 Parties who submit case briefs or rebuttal briefs in this proceeding are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.10 Case and rebuttal briefs should be filed using ACCESS.11

    7See 19 CFR 351.224(b).

    8See 19 CFR 351.309(c)(1)(ii).

    9See 19 CFR 351.309(d)(1).

    10See 19 CFR 351.309(c)(2) and (d)(2).

    11See 19 CFR 351.303.

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. An electronically-filed request for a hearing must be received successfully in its entirety by ACCESS by 5 p.m. Eastern Time within 30 days after the date of publication of this notice.12 Hearing requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to issues raised in the briefs. If a request for a hearing is made, parties will be notified of the time and date for the hearing to be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.13

    12See 19 CFR 351.310(c); 19 CFR 351.303(b)(1).

    13See 19 CFR 351.310(c).

    Commerce intends to issue the final results of this administrative review, including the results of its analysis of issues raised in any written briefs, not later than 120 days after the publication of these preliminary results in the Federal Register, unless otherwise extended.14

    14See Section 751(a)(3)(A) of the Act.

    Notification to Importers

    This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

    Notification to Interested Parties

    We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: November 1, 2018. James Maeder, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations performing the duties of Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations. Appendix List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Period of Review IV. Scope of the Order V. Preliminary Determination of No Shipments VI. Review-Specific Rate for Non-Examined Companies VII. Discussion of the Methodology A. Normal Value Comparisons 1. Determination of Comparison Method 2. Results of the Differential Pricing Analysis B. Date of Sale C. Product Comparisons D. Export Price and Constructed Export Price E. Normal Value 1. Home Market Viability 2. Currency of Home Market Unit Price 3. Level of Trade 4. Overrun Sales 5. Cost of Production Analysis 6. Calculation of Normal Value Based on Home Market Prices VIII. Currency Conversion IX. Recommendation
    [FR Doc. 2018-24795 Filed 11-13-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-560-829] Certain Uncoated Paper From Indonesia: Amended Final Results of Countervailing Duty Administrative Review; 2015-2016 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) is amending its final results of the administrative review of the countervailing duty (CVD) order on certain uncoated paper from Indonesia to correct ministerial errors in the calculation of the countervailable subsidy rates for PT Anugrah Kertas Utama, PT Riau Andalan Kertas, APRIL Fine Paper Macao Commercial Offshore Limited, and their cross-owned affiliates (collectively APRIL). As a result of the correction of these errors, we calculated a revised subsidy rate for APRIL for 2015; however we did not revise APRIL's subsidy rate for 2016. The amended final 2015 countervailable subsidy rate is listed below in the section entitled, “Amended Final Results.”

    DATES:

    Applicable November 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    David Goldberger or Darla Brown, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4136 or 202-482-1791, respectively.

    SUPPLEMENTARY INFORMATION: Background

    On October 17, 2018, Commerce published the Final Results of the 2015-2016 administrative review in the Federal Register.1 On October 16, 2018, domestic interested parties 2 timely filed ministerial error allegations with respect to the calculation of the countervailable subsidy rates in the Final Results for the respondent in the review, APRIL.3

    1See Certain Uncoated Paper From Indonesia: Final Results of Countervailing Duty Administrative Review; 2015-2016, 83 FR 52383 (October 17, 2018) (Final Results), and accompanying Issues and Decision Memorandum (IDM).

    2 These parties are the Packaging Corporation of America (PCA), and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC (USW).

    3See The Domestic Interested Parties' Letter, “First Administrative Review of the Countervailing Duty Order on Uncoated Paper from Indonesia—PCA and the USW's Ministerial Error Comments,” dated October 16, 2018 (Ministerial Error Allegation).

    Scope of the Order

    The merchandise covered by the order is certain uncoated paper from Indonesia.4 Imports of the subject merchandise are provided for under Harmonized Tariff Schedule of the United States (HTSUS) categories 4802.56.1000, 4802.56.2000, 4802.56.3000, 4802.56.4000, 4802.56.6000, 4802.56.7020, 4802.56.7040, 4802.57.1000, 4802.57.2000, 4802.57.3000, and 4802.57.4000. Some imports of subject merchandise may also be classified under 4802.62.1000, 4802.62.2000, 4802.62.3000, 4802.62.5000, 4802.62.6020, 4802.62.6040, 4802.69.1000, 4802.69.2000, 4802.69.3000, 4811.90.8050 and 4811.90.9080. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope is dispositive.

    4 For a complete description of the scope of the order, see IDM.

    Ministerial Error

    Section 751(h) of the Tariff Act of 1930, as amended (the Act), defines “ministerial errors” as including “errors in addition, subtraction, or other arithmetic function, clerical errors resulting from inaccurate copying, duplication, or the like, and any other type of unintentional error which the administering authority considers ministerial.” 5 The domestic interested parties allege that we made ministerial errors in our calculation of the 2015 and 2016 countervailable subsidy rates for APRIL by: (1) Correcting the freight adjustments for one of the benchmark prices used to calculate the 2015 Log Export Ban benefit; (2) correcting the inland freight adjustments for two benchmark prices used to calculate the 2015 and 2016 Provision of Standing Timber for Less Than Adequate Remuneration (Stumpage) benefit; and (3) incorporating all of the revised 2015 harvesting cost data provided at verification to calculate the benefit under the Stumpage program.6 After analyzing these comments, we find that we made the alleged ministerial errors in the Final Results, within the meaning of section 751(h) of the Act and 19 CFR 351.224(f).7 Correction of these errors in APRIL's benefit calculations results in a revised countervailable subsidy rate for 2015, but no change in the 2016 countervailable subsidy rate. For a detailed discussion of these ministerial errors, see the Ministerial Error Memorandum.

    5See also 19 CFR 351.224(f).

    6See Ministerial Error Allegation.

    7See Memorandum, “Ministerial Error Allegations,” dated concurrently with this notice (Ministerial Error Memorandum).

    Amended Final Results of the Review

    As a result of correcting the ministerial errors decribed above, we determine the following countervailable subsidy rates for 2015 and 2016:

    Company 2015
  • Ad valorem
  • rate
  • (%)
  • 2016
  • Ad valorem
  • rate 8
  • (%)
  • APRIL Fine Paper Macao Commercial Offshore Limited/PT Anugrah Kertas Utama/PT Riau Andalan Kertas/PT Intiguna Primatama/PT Riau Andalan Pulp & Paper/PT Esensindo Cipta Cemerlang/PT Sateri Viscose International/ PT ITCI Hutani Manunggal 11.73 5.13
    Assessment Rates

    In accordance with 19 CFR 351.212(b)(2), Commerce intends to issue appropriate instructions to U.S. Customs and Border Protection (CBP) in accordance with the amended final results of this review.

    8 The 2016 ad valorem rate for APRIL is unchanged from the Final Results.

    Cash Deposit Requirements

    Commerce instructed CBP to collect cash deposits of estimated countervailing duties at the 2016 ad valorem rate shown above for APRIL, on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. After correcting the ministerial errors noted above, the 2016 ad valorem rate calculated for APRIL did not change; therefore, we will not issue revised cash deposit intructions to CBP because the cash deposit rate for APRIL remains unchanged from the Final Results.

    For all non-reviewed firms, Commerce instructed CBP to continue to collect cash deposits at the most recent company-specific or all-others rate applicable to the company, as appropriate. Accordingly, the cash deposit requirements applied to companies covered by this order, but not examined in this administrative review, are those established in the most recently completed segment of the proceeding for each company. These cash deposit requirements shall remain in effect until further notice.

    Administrative Protective Orders

    This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.

    These amended final results are issued and published in accordance with sections 751(h) and 777(i) of the Act and 19 CFR 351.224(e).

    Dated: November 7, 2018. James Maeder, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations performing the duties of Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2018-24800 Filed 11-13-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-201-842; A-580-868; C-580-869] Preliminary Results of Changed Circumstances Reviews of the Antidumping Duty Orders on Large Residential Washers From the Republic of Korea and Mexico, and the Countervailing Duty Order on Large Residential Washers From the Republic of Korea AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines not to revoke the antidumping duty (AD) orders on large residential washers (LRWs) from the Republic of Korea (Korea) and Mexico and the countervailing duty (CVD) order on large residential washers from Korea, in part, with respect to LRWs that (1) have a horizontal rotational axis; (2) are front loading; and (3) have a drive train consisting, inter alia, of (a) a controlled induction motor and (b) a belt drive (hereinafter, FL CIM/Belt washers), because Whirlpool Corporation (Whirlpool), the requestor, does not account for substantially all of the production of domestic like product to which these orders pertain.

    DATES:

    Applicable November 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    William Miller or Ajay Menon, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone (202) 482-3906 or (202) 482-1993, respectively.

    SUPPLEMENTARY INFORMATION: Background

    On May 11, 2018, in response to a request by Whirlpool, a domestic producer of the subject merchandise, Commerce published a notice of initiation of changed circumstances reviews to consider the possible revocation, in part, of the AD orders on LRWs from Korea and Mexico and the CVD order on large residential washers from Korea (collectively, the Orders1 ) with respect to FL CIM/Belt washers.2 In the Initiation Notice, we invited comments from: (1) Members of the domestic industry, including their domestic production data of LRWs for 2017; and (2) other interested parties regarding industry support.3

    1See Large Residential Washers from Mexico and the Republic of Korea: Antidumping Duty Orders, 78 FR 11148 (February 15, 2013); and Large Residential Washers from the Republic of Korea: Countervailing Duty Order, 78 FR 11154 (February 15, 2013) (the Orders).

    2See Large Residential Washers from the Republic of Korea and Mexico: Initiation of Changed Circumstances Reviews, and Consideration of Revocation, in Part, of the Antidumping Duty Orders on Large Residential Washers from the Republic of Korea and Mexico and the Countervailing Duty Order on Large Residential Washers from the Republic of Korea, 83 FR 22006 (May 11, 2018) (Initiation Notice).

    3Id., 83 FR at 22007.

    On May 21, 2018, we received comments from Haier U.S. Appliance Solutions, Inc., d/b/a GE Appliances (GE); 4 LG Electronics USA, Inc., LG Electronics Alabama, Inc., and LG Electronics, Inc. (collectively, LGE); 5 Samsung Electronics Co., Ltd., Samsung Electronics America, and Samsung Electronics Home Appliances America (collectively, Samsung); 6 and Whirlpool.7 Samsung opposed Whirlpool's request, noting that the U.S. International Trade Commission defined FL CIM/Belt washers as part of the domestic like product.8 LGE also opposed Whirlpool's request, and argued that partially revoking the Orders would harm domestic producers.9 Additionally, Samsung and LGE each argued that their potential 2018 and 2019 production should be included in Commerce's analysis because they started producing LRWs in the United States in 2018.10 GE also opposed Whirlpool's request and provided its 2017 production data.11 Finally, Whirlpool submitted additional comments in support of its request and provided its 2017 production data.12

    4See GE's Letter, “Large Residential Washers from the Republic of Korea and Mexico—GE Appliances Entry of Appearance and Substantive Response,” (GE's Comments) dated May 21, 2018, at 2.

    5See LGE's Letter, “LGE's Comments on Initiation of Changed Circumstances Review (CCR) Large Residential Washers from Korea,” (LGE's Comments) dated May 21, 2018, at 2-11.

    6See Samsung's Letter, “Large Residential Washers from Korea and Mexico: Belt Drive CCR Response to Request for Information and Comments,” (Samsung's Comments) dated May 21, 2018, at 2-7.

    7See Whirlpool Corporation's (Whirlpool) Letter, “Large Residential Washers from Korea and Mexico: Response of Whirlpool Corporation to U.S. Department of Commerce Request for 2017 Production Data to Support Partial Revocation of AD/CVD Orders,” (Whirlpool's Comments) dated May 21, 2018, at 2.

    8See Samsung's Comments at 3.

    9See LGE's Comments at 6.

    10Id. at 3; see also Samsung's Comments at 6.

    11See GE's Comments at 2.

    12See Whirlpool's Comments at 2.

    On May 29, 2018, we received rebuttal comments from LGE,13 Samsung,14 and Whirlpool.15 In their rebuttal comments, LGE and Samsung reiterated that Whirlpool does not account for substantially all of the domestic industry.16 Conversely, in its rebuttal comments, Whirlpool argued that Commerce should use 2017 production data in determining industry support and not speculative future production.17 Whirlpool further asserted that Commerce should disregard GE's 2017 production data and exercise its discretion to find that Whirlpool constitutes “substantially all” of the domestic industry.18

    13See LGE's Letter, “LG Electronics' Rebuttal Comments (Changed Circumstances Review) Large Residential Washers from Korea and Mexico,” (LGE's Rebuttal Comments) dated May 29, 2018, at 2-5.

    14See Samsung's Letter, “Large Residential Washers from Korea and Mexico: Belt Drive CCR Response to Comments and Information,” (Samsung's Rebuttal Comments) dated May 29, 2018.

    15See Whirlpool's Letter, “Large Residential Washers (“LRWs”) from Korea and Mexico: Rebuttal Comments of Whirlpool Corporation,” (Whirlpool's Rebuttal Comments) dated May 29, 2018.

    16See LGE's Rebuttal Comments at 4; see also Samsung's Rebuttal Comments at 2.

    17See Whirlpool's Rebuttal Comments at 2.

    18Id. at 6.

    Scope of the Orders

    The products covered by the Orders are all large residential washers and certain subassemblies thereof from Mexico and Korea.

    For purposes of these Orders, the term “large residential washers” denotes all automatic clothes washing machines, regardless of the orientation of the rotational axis, except as noted below, with a cabinet width (measured from its widest point) of at least 24.5 inches (62.23 cm) and no more than 32.0 inches (81.28 cm).

    Also covered are certain subassemblies used in large residential washers, namely: (1) All assembled cabinets designed for use in large residential washers which incorporate, at a minimum: (a) At least three of the six cabinet surfaces; and (b) a bracket; (2) all assembled tubs 19 designed for use in large residential washers which incorporate, at a minimum: (a) a tub; and (b) a seal; (3) all assembled baskets 20 designed for use in large residential washers which incorporate, at a minimum: (a) A side wrapper; 21 (b) a base; and (c) a drive hub; 22 and (4) any combination of the foregoing subassemblies.

    19 A “tub” is the part of the washer designed to hold water.

    20 A “basket” (sometimes referred to as a “drum”) is the part of the washer designed to hold clothing or other fabrics.

    21 A “side wrapper” is the cylindrical part of the basket that actually holds the clothing or other fabrics.

    22 A “drive hub” is the hub at the center of the base that bears the load from the motor.

    Excluded from the scope are stacked washer-dryers and commercial washers. The term “stacked washer-dryers” denotes distinct washing and drying machines that are built on a unitary frame and share a common console that controls both the washer and the dryer. The term “commercial washer” denotes an automatic clothes washing machine designed for the “pay per use” market meeting either of the following two definitions:

    (1) (a) it contains payment system electronics; 23 (b) it is configured with an externally mounted steel frame at least six inches high that is designed to house a coin/token operated payment system (whether or not the actual coin/token operated payment system is installed at the time of importation); (c) it contains a push button user interface with a maximum of six manually selectable wash cycle settings, with no ability of the end user to otherwise modify water temperature, water level, or spin speed for a selected wash cycle setting; and (d) the console containing the user interface is made of steel and is assembled with security fasteners;  24 or

    23 “Payment system electronics” denotes a circuit board designed to receive signals from a payment acceptance device and to display payment amount, selected settings, and cycle status. Such electronics also capture cycles and payment history and provide for transmission to a reader.

    24 A “security fastener” is a screw with a non-standard head that requires a non-standard driver. Examples include those with a pin in the center of the head as a “center pin reject” feature to prevent standard Allen wrenches or Torx drivers from working.

    (2) (a) it contains payment system electronics; (b) the payment system electronics are enabled (whether or not the payment acceptance device has been installed at the time of importation) such that, in normal operation, 25 the unit cannot begin a wash cycle without first receiving a signal from a bona fide payment acceptance device such as an electronic credit card reader; (c) it contains a push button user interface with a maximum of six manually selectable wash cycle settings, with no ability of the end user to otherwise modify water temperature, water level, or spin speed for a selected wash cycle setting; and (d) the console containing the user interface is made of steel and is assembled with security fasteners.

    25 “Normal operation” refers to the operating mode(s) available to end users (i.e., not a mode designed for testing or repair by a technician).

    Also excluded from the scope are automatic clothes washing machines with a vertical rotational axis and a rated capacity of less than 3.7 cubic feet, as certified to the U.S. Department of Energy pursuant to 10 CFR 429.12 and 10 CFR 429.20, and in accordance with the test procedures established in 10 CFR Part 430.

    The products subject to these Orders are currently classifiable under subheadings 8450.20.0040 and 8450.20.0080 of the Harmonized Tariff System of the United States (HTSUS). Products subject to these Orders may also enter under HTSUS subheadings 8450.11.0040, 8450.11.0080, 8450.90.2000, and 8450.90.6000. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to this scope is dispositive.

    Scope of Changed Circumstances Reviews

    Whirlpool requests that Commerce revoke the Orders, in part, with respect to FL CIM/Belt washers.26 Should Commerce determine to revoke the Orders, in part, Whirlpool proposes that Commerce amend the scope language as follows: “{A}lso excluded from the scope are automatic clothes washing machines that meet all of the following conditions: (1) have a horizontal rotational axis; (2) are front loading; and (3) have a drive train consisting, inter alia, of (a) a controlled induction motor and (b) a belt drive.” 27

    26See Whirlpool's Comments at 2.

    27 Whirlpool proposes that the following words be defined as follows: (1) “front loading” means that “access to the basket is from the front of the washer;” and (3) a “controlled induction motor” is “an asynchronous, alternating current, polyphase induction motor.”

    Preliminary Results of Changed Circumstances Reviews

    Pursuant to sections 751(d)(1) and 782(h) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.222(g), Commerce may revoke an AD or CVD order, in whole or in part, based on a review under section 751(b) of the Act (i.e., a changed circumstances review). Section 751(b)(1) of the Act requires that a changed circumstances review be conducted upon receipt of a request which shows changed circumstances sufficient to warrant a review. Section 782(h)(2) of the Act gives Commerce the authority to revoke an order if producers accounting for substantially all of the production of the domestic like product have expressed a lack of interest in the order. Section 351.222(g) of Commerce's regulations provides that Commerce will conduct a changed circumstances review under 19 CFR 351.216, and may revoke an order (in whole or in part), if it concludes that: (i) Producers accounting for substantially all of the production of the domestic like product to which the order pertains have expressed a lack of interest in the relief provided by the order, in whole or in part, or (ii) if other changed circumstances sufficient to warrant revocation exist. Both the Act and Commerce's regulations require that “substantially all” domestic producers express a lack of interest in the order for Commerce to revoke the order, in whole or in part.28 Commerce has interpreted “substantially all” to represent producers accounting for at least 85 percent of U.S. production of the domestic like product.29

    28See Section 782(h) of the Act and 19 CFR 351.222(g).

    29See, e.g., Honey from Argentina; Antidumping and Countervailing Duty Changed Circumstances Reviews; Preliminary Intent to Revoke Antidumping and Countervailing Duty Orders, 77 FR 67790, 67791 (November 14, 2012), unchanged in Honey from Argentina; Final Results of Antidumping and Countervailing Duty Changed Circumstances Reviews; Revocation of Antidumping and Countervailing Duty Orders, 77 FR 77029 (December 31, 2012).

    Record evidence indicates that Whirlpool does not account for at least 85 percent of the production of the domestic like product, and therefore, does not account for “substantially all” of the production of the domestic like product.30 We based our analysis on actual 2017 production volumes, the most recent complete year for which we have actual production data.31 Information on the record of this proceeding shows that in 2017, only GE and Whirlpool had actual domestic production of LRWs.32 GE opposed Whirlpool's request. We find no basis to disregard GE's 2017 production volume for purposes of our preliminary analysis, as suggested by Whirlpool.

    30See Memorandum, “Analysis of U.S. Production Data for the Preliminary Results of the Changed Circumstances Reviews: Large Residential Washers from the Republic of Korea and Mexico” (Analysis Memorandum), dated concurrently with this notice, at 1.

    31 LGE and Samsung argue that we should base our determination on projected production data for 2018 and 2019. However, we need not reach this issue, given that even the 2017 data demonstrate that Whirlpool did not account for “substantially all” of the domestic production.

    32 The data on each company's 2017 production volumes and values are business proprietary information that cannot be discussed here. For more information, see Analysis Memorandum.

    Therefore, based on our analysis of the 2017 production volumes of the domestic industry, we preliminarily determine not to revoke the Orders, in part, with respect to FL/CIM Belt washers.

    Public Comment

    Interested parties may submit case briefs no later than 21 days after the date of publication of this notice.33 Rebuttals briefs, limited to arguments raised in the case briefs, may be submitted no later than seven days after the deadline for case briefs.34 Parties who submit case or rebuttal briefs are requested to submit, as part of that submission, (a) a statement of the issues, (b) a summary of the arguments, and (c) a table of authorities.35

    33See 19 CFR 351.309(c)(1)(ii).

    34See 19 CFR 351.309(d).

    35See 19 CFR 351.309(c)(2) and (d)(2).

    Any interested party may request a hearing within 30 days of publication of this notice.36 Hearing requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations at the hearing will be limited to issues raised in the case and rebuttal briefs. If a request for a hearing is made, parties will be notified of the time and date for the hearing to be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.37

    36See 19 CFR 351.310(c).

    37See 19 CFR 351.310(d).

    All submissions, with limited exceptions, must be filed electronically using Enforcement and Compliance's AD and CVD Centralized Electronic Service System (ACCESS).38 ACCESS is available to registered users at http://access.trade.gov and in the Central Records Unit, Room B8024 of the main Department of Commerce building. An electronically filed document must be received successfully in its entirety by ACCESS, by 5 p.m. Eastern Time (ET) on the due date. Documents excepted from the electronic submission requirements must be filed manually (i.e., in paper form) with the APO/Dockets Unit in Room 18022 and stamped with the date and time of receipt by 5 p.m. ET on the due date.39

    38See generally 19 CFR 351.303.

    39See Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011).

    Commerce will issue the final results of these changed circumstances reviews, which will include its analysis of any written comments, no later than 270 days after the date on which this review was initiated.

    The current requirement for cash deposits of estimated antidumping and countervailing duties on all entries of subject merchandise will continue unless until they are modified pursuant to the final results of these changed circumstances reviews.

    This notice is published in accordance with sections 751(b) and 777(i) of the Act.

    Dated: November 5, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance
    [FR Doc. 2018-24798 Filed 11-13-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-533-881] Large Diameter Welded Pipe From India: Final Determination of Sales at Less Than Fair Value; 2017 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) determines that imports of large diameter welded pipe from India are being, or are likely to be, sold in the United States at less than fair value (LTFV) for the period of investigation January 1, 2017, through December 31, 2017

    DATES:

    Applicable November 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Kate Johnson at (202) 482-4929 or Jaron Moore at (202) 482-3640, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: Background

    On August 27, 2018, Commerce published in the Federal Register the Preliminary Determination of sales at LTFV of large diameter welded pipe from India and invited interested parties to comment.1 We received comments from the petitioners,2 agreeing with our affirmative preliminary determination to apply total adverse facts available (AFA) to the non-responsive companies.3 No other interested party submitted comments. Accordingly, we made no changes to the Preliminary Determination.

    1See Large Diameter Welded Pipe from India: Preliminary Determination of Sales at Less Than Fair Value, 83 FR 43653 (August 27, 2018) (Preliminary Determination) and accompanying Preliminary Decision Memorandum.

    2 The petitioners are American Cast Iron Pipe Company, Berg Steel Pipe Corp., Berg Spiral Pipe Corp., Dura-Bond Industries, and Stupp Corporation, individually and as members of American Line Pipe Producers Association; Greens Bayou Pipe Mill, LP; JSW Steel (USA) Inc.; Skyline Steel; and Trinity Products LLC.

    3See Petitioners Letter, “Case Brief of Petitioners,” dated September 26, 2018.

    Period of Investigation

    The period of investigation is January 1, 2017, through December 31, 2017.

    Scope of the Investigation

    The product covered by this investigation is large diameter welded pipe from India. For a full description of the scope of this investigation, see the “Scope of the Investigation,” at the Appendix to this notice.

    Scope Comments

    During the course of this investigation and the concurrent LTFV investigations of large diameter welded pipe from Canada, Greece, Korea, the People's Republic of China (China) and Turkey, and the concurrent countervailing duty investigations of large diameter welded pipe from China, India, Korea and Turkey, Commerce received scope comments from interested parties. Commerce issued a Preliminary Scope Decision Memorandum 4 to address these comments. In the Preliminary Determination, Commerce set aside a period of time for parties to address scope issues in scope case and rebuttal briefs. No interested parties submitted scope comments in scope case or scope rebuttal briefs. Therefore, for this final determination, the scope of this investigation remains unchanged from that published in the Preliminary Determination.

    4See Memorandum, “Scope Comments Decision Memorandum for the Preliminary Determinations,” dated June 19, 2018 (Preliminary Scope Decision Memorandum).

    Use of Adverse Facts Available

    The mandatory respondents Bhushan Steel (Bhushan) and Welspun Trading Limited (Welspun) failed to participate in this investigation.5 Therefore, in the Preliminary Determination, pursuant to sections 776(a)(1), 776(a)(2)(A)-(C), and 776(b) of the Act, we determined for Bhushan and Welspun an estimated dumping rate based on AFA. No parties filed comments in opposition to our Preliminary Determination with respect to Bhushan and Welspun and there are no comments or information on the record that would cause us to revisit our preliminary AFA determinations. Accordingly, we continue to find that the application of AFA pursuant to sections 776(a) and (b) of the Act is warranted with respect to Bhushan and Welspun. In applying total AFA, we have determined for Bhushan's and Welspun's exports of the subject merchandise an estimated dumping margin of 50.55 percent, which is the only dumping margin alleged in the Petition 6 and which has been corroborated to the extent practicable within the meaning of section 776(c) of the Act.7

    5See Preliminary Determination Memorandum at 4-8.

    6See Petitions for the Imposition of Antidumping and Countervailing Duties: Large Diameter Welded Pipe from Canada, Greece, India, the People's Republic of China, the Republic of Korea, and the Republic of Turkey, dated January 17, 2018 (Petition).

    7See Preliminary Determination Memorandum at 7-8.

    All-Others Rate

    As discussed in the Preliminary Determination, Commerce based the “All-Others” rate on the only dumping margin alleged in the Petition,8 in accordance with section 735(c)(5)(B) of the Act. We made no changes to the selection of this rate for this final determination.

    8See Petition; see also Preliminary Determination Memorandum at 8-9.

    Final Determination

    The final estimated dumping margins are as follows:

    Exporter/producer Dumping
  • margin
  • (percent)
  • Cash deposit
  • rate
  • (adjusted
  • for export
  • subsidies
  • offset)
  • (percent)
  • Bhushan Steel 50.55 16.85 Welspun Trading Limited 50.55 16.85 All-Others 50.55 16.85
    Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, for this final determination, we will direct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all entries of large diameter welded pipe from India, as described in the Appendix to this notice, which are entered, or withdrawn from warehouse, for consumption on or after August 27, the date of publication in the Federal Register of the affirmative Preliminary Determination.

    Pursuant to section 735(c)(1)(B)(ii) of the Act and 19 CFR 351.210(d), Commerce will instruct CBP to require a cash deposit for such entries of merchandise equal to the estimated dumping margin, as follows: (1) The cash deposit rate for the respondents listed above will be equal to the respondent-specific estimated dumping margin determined in this final determination; (2) if the exporter is not a respondent identified above but the producer is, then the cash deposit rate will be equal to the respondent-specific estimated weighted-average dumping margin established for that producer of the subject merchandise; and (3) the cash deposit rate for all other producers or exporters will be equal to the estimated dumping margin for all other producers or exporters. These suspension-of-liquidation instructions will remain in effect until further notice.

    Commerce normally adjusts the estimated weighted-average dumping margin by the amount of export subsidies countervailed in a companion countervailing duty (CVD) proceeding, when CVD provisional measures are in effect. Accordingly, where Commerce has made a final affirmative determination for countervailable export subsidies,9 Commerce offsets the estimated weighted-average dumping margin by the appropriate CVD rate. Any such adjusted rates may be found in the “Final Determination” section, above. However, provisional measures expired in the companion countervailing duty investigation on October 26, 2018. Accordingly, we will direct CBP to collect the estimated antidumping cash deposits unadjusted for countervailed export subsidies. In the event of an affirmative determination by the International Trade Commission (ITC), Commerce will issue antidumping and countervailing duty orders and direct CBP to collect the cash deposit rate, as adjusted for export subsidies.

    9See the unpublished Federal Register notice, Large Diameter Welded Pipe from India: Final Affirmative Countervailing Duty Determination, dated concurrently with this notice.

    Disclosure

    The dumping margins assigned to the mandatory respondents in this investigation are based on AFA. As these margins are based on the dumping margin alleged in the Petition, and because we made no changes to the Preliminary Determination, there are no calculations to disclose for this final determination.

    International Trade Commission Notification

    In accordance with section 735(d) of the Act, we will notify ITC of the final affirmative determination of sales at LTFV. In addition, we are making available to the ITC all non-privileged and non-proprietary information related to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order (APO), without the written consent of the Assistant Secretary for Enforcement and Compliance. Because Commerce's final determination is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports or sales (or the likelihood of sales) for importation of large diameter welded pipe, no later than 45 days after this final determination. If the ITC determines that such injury does not exist, this proceeding will be terminated, and all cash deposits posted will be refunded. If the ITC determines that such injury does exist, Commerce will issue an antidumping duty order directing CBP to assess, upon further instruction by Commerce, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation, as discussed above in the “Continuation of Suspension of Liquidation” section.

    Notification Regarding Administrative Protective Orders

    In the event that the ITC issues a final negative injury determination, this notice will serve as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.

    Notification to Interested Parties

    This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act and 19 CFR 351.210(c).

    Dated: November 5, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix Scope of the Investigation

    The merchandise covered by this investigation is welded carbon and alloy steel pipe (including stainless steel pipe), more than 406.4 mm (16 inches) in nominal outside diameter (large diameter welded pipe), regardless of wall thickness, length, surface finish, grade, end finish, or stenciling. Large diameter welded pipe may be used to transport oil, gas, slurry, steam, or other fluids, liquids, or gases. It may also be used for structural purposes, including, but not limited to, piling. Specifically, not included is large diameter welded pipe produced only to specifications of the American Water Works Association (AWWA) for water and sewage pipe.

    Large diameter welded pipe used to transport oil, gas, or natural gas liquids is normally produced to the American Petroleum Institute (API) specification 5L. Large diameter welded pipe may also be produced to American Society for Testing and Materials (ASTM) standards A500, A252, or A53, or other relevant domestic specifications, grades and/or standards. Large diameter welded pipe can be produced to comparable foreign specifications, grades and/or standards or to proprietary specifications, grades and/or standards, or can be non-graded material. All pipe meeting the physical description set forth above is covered by the scope of this investigation, whether or not produced according to a particular standard.

    Subject merchandise also includes large diameter welded pipe that has been further processed in a third country, including but not limited to coating, painting, notching, beveling, cutting, punching, welding, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope large diameter welded pipe.

    The large diameter welded pipe that is subject to this investigation is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 7305.11.1030, 7305.11.1060, 7305.11.5000, 7305.12.1030, 7305.12.1060, 7305.12.5000, 7305.19.1030, 7305.19.1060, 7305.19.5000, 7305.31.4000, 7305.31.6010, 7305.31.6090, 7305.39.1000 and 7305.39.5000. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.

    [FR Doc. 2018-24806 Filed 11-13-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-588-874] Certain Hot-Rolled Steel Flat Products From Japan: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2016-2017 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that Nippon Steel & Sumitomo Metal Corporation (Nippon Steel) and Tokyo Steel Manufacturing Co., Ltd. (Tokyo Steel), the two companies selected for individual examination, sold subject merchandise in the United States at prices below normal value during the period of review (POR). Additionally, Commerce preliminarily determines that three other companies for which we initiated reviews had no shipments during the POR. We invite interested parties to comment on these preliminary results.

    DATES:

    Applicable November 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Myrna Lobo or Jack Zhao, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2371 or (202) 482-1396, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    Commerce is conducting an administrative review of the antidumping duty order on certain hot-rolled steel flat products (hot-rolled steel) from Japan. The notice of initiation of this administrative review was published on December 7, 2017.1 This review covers 20 producers and exporters of the subject merchandise. The POR is March 22, 2016, through September 30, 2017. Commerce selected two mandatory respondents for individual examination: Nippon Steel and Tokyo Steel.

    1See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 82 FR 57705 (December 7, 2017).

    Scope of the Order

    The merchandise covered by the order is certain hot-rolled steel flat products. For a complete description of the scope of the order, see the Preliminary Decision Memorandum.2

    2See Memorandum, “Decision Memorandum for the Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments: Certain Hot-Rolled Steel Flat Products from Japan; 2016-2017,” dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum).

    Methodology

    Commerce is conducting this review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act). Export price and constructed export price are calculated in accordance with section 772 of the Act. NV is calculated in accordance with section 773 of the Act.

    For a full description of the methodology underlying our conclusions, see the Preliminary Decision Memorandum. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov, and to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed and electronic versions of the Preliminary Decision Memorandum are identical in content. A list of the topics discussed in the Preliminary Decision Memorandum is attached as the Appendix to this notice.

    Preliminary Determination of No Shipments

    Among the companies under review, four companies, Hitachi Metals, Ltd. (Hitachi), Honda Trading Canada, Inc. (Honda), Mitsui & Co. Ltd. (Mitsui), and Panasonic Corporation (Panasonic) properly filed statements reporting that they made no shipments of subject merchandise to the United States during the POR. Based on the certifications submitted and our analysis of Customs and Border Protection (CBP) information, we preliminarily determine that Hitachi, Honda, and Panasonic had no shipments during the POR. 3 Consistent with its practice, Commerce finds that it is not appropriate to preliminarily rescind the review with respect to these companies but, rather, to complete the review and issue appropriate instructions to CBP based on the final results of this review. We intend to solicit more information and comments with respect to Mitsui's no shipment certification.4

    3See Hitachi Letter, “Antidumping Duty Administrative Review of Certain Hot-Rolled Steel Flat Products: Hitachi No Shipment Letter,” dated December 18, 2017; see also Honda Letter, “Administrative Review of Certain Hot-Rolled Steel Flat Products from Japan: Honda Trading Canada, Inc.'s No Shipment Certification,” dated December 22, 2017; see also Mitsui Letter, “Antidumping Administrative Review of Certain Hot-Rolled Steel Flat Products: Mitsui No Shipment Notification,” dated January 5, 2018; see also Panasonic Letter, “Administrative Review of Certain Hot-Rolled Steel Flat Products from Japan: Panasonic Corporation No Shipment Certification,” dated January 5, 2018. See also Public Memorandum, “Re: No shipment inquiry with respect to the companies below during the period 03/22/2016 through 09/30/2017,” dated October 23, 2018.

    4See Business Proprietary Memorandum, “Re: No shipment inquiry with respect to the companies below during the period 03/22/2016 through 09/30/2017,” dated October 23, 2018.

    Preliminary Results of the Review

    As a result of this review, we preliminarily determine the following weighted-average dumping margins for the period March 22, 2016, through September 30, 2017:

    Exporter/producer Weighted-average dumping margin (percent) Nippon Steel & Sumitomo Metal Corporation 5 0.54. Nisshin Steel Co., Ltd. 6 3/22/2016 to
  • 3/12/2017
  • 3/13/2017 to
  • 9/30/2017.
  • 1.46 7 0.54. 8 Tokyo Steel Manufacturing Co., Ltd 7.64

    Review-Specific Average Rate Applicable to the Following Companies: 9

    5 We collapsed Nippon Steel & Sumikin Bussan Corporation with Nippon Steel & Sumitomo Metal Corporation in the underlying investigation. See Certain Hot-Rolled Steel Flat Products from Japan: Preliminary Determination of Sales at Less than Fair Value and Postponement of Final Determination, 81 FR 15222 (March 22, 2016) and accompanying Preliminary Decision Memorandum at 6-7.

    6 We have collapsed Nisshin Steel Co., Ltd. and Nippon Steel & Sumitomo Metal Corporation as of March 13, 2017. See Preliminary Decision Memorandum at 9.

    7 Entries of subject merchandise produced/exported by Nisshin Steel Co., Ltd. made prior to March 13, 2017 are subject to the all others rate calculated in this administrative review. See Memorandum re: Calculation of the Review-Specific Average Rate for the Preliminary Results, dated concurrently with this notice.

    8 Entries of subject merchandise produced/exported by Nisshin Steel Co., Ltd. made on/or after March 13, 2017 are subject to the AD rate assigned to Nippon Steel in this administrative review.

    9 This rate is based on the weighted-average margin using the publicly-ranged sales value of mandatory respondents, and is the best proxy of the actual weighted-average margin determined for the mandatory respondents. Due to requests to protect business proprietary information, we cannot apply our normal methodology of calculating a weighted-average margin. See Ball Bearings and Parts Thereof from France, et al.: Final Results of Antidumping Duty Administrative Reviews, Final Results of Changed-Circumstances Review, and Revocation of an Order in Part, 75 FR 53661, 53663 (September 1, 2010); see also Memorandum re: Calculation of the Review-Specific Average Rate for the Preliminary Results, dated concurrently with this notice.

    Exporter/producer Weighted-
  • average dumping
  • margin
  • (percent)
  • Hanwa Co., Ltd 1.46 JFE Steel Corporation 10 1.46 JFE Shoji Trade America 1.46 Kanematsu Corporation 1.46 Kobe Steel, Ltd. 1.46 Mitsui & Co., Ltd. 1.46 Miyama Industry Co., Ltd. 1.46 Nippon Steel & Sumikin Logistics Co., Ltd. 1.46 Okaya & Co. Ltd. 1.46 Saint-Gobain KK 1.46 Shinsho Corporation 1.46 Sumitomo Corporation 1.46 Suzukaku Corporation 1.46 Toyota Tsusho Corporation Nagoya 1.46
    Assessment Rates

    10 We collapsed JFE Shoji Trade Corporation with JFE Steel Corporation in the underlying investigation. See Certain Hot-Rolled Steel Flat Products from Japan: Preliminary Determination of Sales at Less than Fair Value and Postponement of Final Determination, 81 FR 15222 (March 22, 2016) and accompanying Preliminary Decision Memorandum at 8-9.

    Upon completion of the administrative review, Commerce shall determine, and CBP shall assess, antidumping duties on all appropriate entries.

    Pursuant to 19 CFR 351.212(b)(1), where the mandatory respondents reported the entered value for their U.S. sales, we calculated importer-specific ad valorem duty assessment rates based on the ratio of the total amount of dumping calculated for the examined sales to the total entered value of the sales for which entered value was reported. Where the mandatory respondents did not report entered value, we calculated the entered value in order to calculate the assessment rate. Where either the respondent's weighted-average dumping margin is zero or de minimis within the meaning of 19 CFR 351.106(c)(1), or an importer-specific rate is zero or de minimis, we will instruct CBP to liquidate the appropriate entries without regard to antidumping duties.

    For the companies which were not selected for individual review, we will assign an assessment rate based on the average 11 of the cash deposit rates calculated for the two mandatory respondents. The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.12

    11 This rate was calculated as discussed in footnote 8, above.

    12See section 751(a)(2)(C) of the Act.

    We intend to issue liquidation instructions to CBP 15 days after publication of the final results of this review.

    Cash Deposit Requirements

    The following deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for each specific company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent and, therefore, de minimis within the meaning of 19 CFR 351.106(c)(1), in which case the cash deposit rate will be zero; (2) for previously investigated companies not participating in this review, the cash deposit will continue to be the company-specific rate published for the most recently completed segment of this proceeding in which the company participated; (3) if the exporter is not a firm covered in this review, or the underlying investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent segment for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 5.58 percent, the all-others rate established in the underlying investigation.13 These deposit requirements, when imposed, shall remain in effect until further notice.

    13See Certain Hot-Rolled Steel Flat Products from Australia, Brazil, Japan, the Republic of Korea, the Netherlands, the Republic of Turkey, and the United Kingdom: Amended Final Affirmative Antidumping Determinations for Australia, the Republic of Korea, and the Republic of Turkey and Antidumping Duty Orders, 81 FR 67962 (October 3, 2016).

    Disclosure and Public Comment

    Commerce intends to disclose the calculations performed in connection with these preliminary results to interested parties within five days after the date of publication of this notice.14 Interested parties may submit case briefs not later than 30 days after the date of publication of this notice.15 Rebuttal briefs, limited to issues raised in the case briefs, may be filed no later than five days after the time limit for filing case briefs.16 Parties who submit case briefs or rebuttal briefs in this proceeding are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.17 Case and rebuttal briefs should be filed using ACCESS.18

    14See 19 CFR 351.224(b).

    15See 19 CFR 351.309(c)(1)(ii).

    16See 19 CFR 351.309(d)(1).

    17See 19 CFR 351.309(c)(2) and (d)(2).

    18See 19 CFR 351.303.

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. An electronically-filed request for a hearing must be received successfully in its entirety by ACCESS by 5 p.m. Eastern Time within 30 days after the date of publication of this notice.19 Hearing requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to issues raised in the briefs. If a request for a hearing is made, parties will be notified of the time and date for the hearing to be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.20

    19See 19 CFR 351.310(c); 19 CFR 351.303(b)(1).

    20See 19 CFR 351.310(c).

    Commerce intends to issue the final results of this administrative review, including the results of its analysis of issues raised in any written briefs, not later than 120 days after the publication of these preliminary results in the Federal Register, unless otherwise extended.21

    21See Section 751(a)(3)(A) of the Act.

    Notification to Importers

    This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

    We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: November 1, 2018. James Maeder, Associate Deputy Assistant Secretary, for Antidumping and Countervailing Duty Operations, performing the duties of Deputy Assistant Secretary, for Antidumping and Countervailing Duty Operations. Appendix List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Period of Review IV. Scope of the Order V. Preliminary Determination of No Shipments VI. Single Entity Analysis VII. Use of Facts Available and Adverse Facts Available A. Legal Authority B. Application of Facts Available to Nippon Steel C. Application of Facts Available with an Adverse Inference VIII. Review-Specific Average Rate for Non-Examined Companies IX. Discussion of the Methodology A. Normal Value Comparisons 1. Determination of Comparison Method 2. Results of the Differential Pricing Analysis B. Date of Sale C. Product Comparisons D. Export Price and Constructed Export Price E. Normal Value 1. Home Market Viability 2. Affiliated Party Transactions and Arm's-Length Test 3. Level of Trade 4. Cost of Production Analysis 5. Calculation of Normal Value Based on Home Market Prices X. Currency Conversion XI. Recommendation
    [FR Doc. 2018-24794 Filed 11-13-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-077] Large Diameter Welded Pipe From the People's Republic of China: Final Determination of Sales at Less Than Fair Value AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) determines that imports of large diameter welded pipe from the People's Republic of China (China) are being, or are likely to be, sold in the United States at less than fair value (LTFV).

    DATES:

    Applicable November 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Rachel Greenberg at (202) 482-0652 or Ryan Mullen at (202) 482-5260, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: Background

    On August 27, 2018, Commerce published in the Federal Register the Preliminary Determination of sales at LTFV of large diameter welded pipe from China and invited interested parties to comment.1 We only received comments from the petitioners,2 who agreed with our preliminary determination to apply total adverse facts available (AFA) to the China-wide entity.3 Accordingly, we made no changes to the Preliminary Determination.

    1See Large Diameter Welded Pipe from the People's Republic of China: Preliminary Determination of Sales at Less Than Fair Value, 83 FR 43644 (August 27, 2018) (Preliminary Determination) and accompanying Preliminary Decision Memorandum.

    2 The petitioners are American Cast Iron Pipe Company, Berg Steel Pipe Corp.; Berg Spiral Pipe Corp.; Dura-Bond Industries; Skyline Steel; Stupp Corporation; Greens Bayou Pipe Mill, LP; JSW Steel (USA) Inc.; and Trinity Products LLC.

    3See Petitioners' Letter, “Case Brief,” dated September 26, 2018.

    Period of Investigation

    The period of investigation is July 1, 2017 through December 31, 2017.

    Scope of the Investigation

    The product covered by this investigation is large diameter welded pipe from China. For a full description of the scope of this investigation, see the “Scope of the Investigation,” at the Appendix to this notice.

    Scope Comments

    During the course of this investigation and the concurrent antidumping duty investigations of large diameter welded pipe from Canada, Greece, India, Korea and Turkey, and the concurrent countervailing duty investigations of large diameter welded pipe from China, India, Korea and Turkey, Commerce received scope comments from interested parties. We issued a Preliminary Scope Decision Memorandum 4 to address these comments. Further, in the Preliminary Determination, we set aside a period of time for parties to address scope issues in scope case and rebuttal briefs. No interested parties submitted scope comments in case or rebuttal briefs. Therefore, for this final determination, the scope of this investigation remains unchanged from that published in the Preliminary Determination.

    4See Memorandum, “Scope Comments Decision Memorandum for the Preliminary Determinations,” dated June 19, 2018 (Preliminary Scope Decision Memorandum).

    Use of Adverse Facts Available

    We continue to find the companies which did not respond to our requests for information to be part of the China-wide entity. Further, we found these companies, which comprise part of the China-wide entity, failed to provide necessary information, withheld requested information, significantly impeded this investigation, and did not cooperate in submitting the requested Q&V information, as detailed in the Preliminary Determination and accompanying Preliminary Decision Memorandum.5 Accordingly, we have applied facts otherwise available, with an adverse inference, in accordance with sections 776(a)-(b) of the Act.6

    5See Preliminary Determination, 83 FR at 43644; see also Preliminary Decision Memorandum at 4-5.

    6 Preliminary Decision Memorandum at 5-6.

    China-Wide Rate

    In selecting the AFA rate for the China-wide entity, Commerce's practice is to select a rate that is sufficiently adverse to ensure that the uncooperative party does not obtain a more favorable result by failing to cooperate than if it had fully cooperated. Specifically, it is Commerce's practice to select, as an AFA rate, the higher of: (a) The highest dumping margin alleged in the petition; or, (b) the highest calculated dumping margin of any respondent in the investigation. As AFA, Commerce has assigned to the China-wide entity the rate of 132.63 percent, which is the highest dumping margin alleged in the Petition.7

    7See Large Diameter Welded Pipe from Canada, Greece, India, the People's Republic of China, the Republic of Korea, and the Republic of Turkey: Initiation of Less-Than-Fair-Value Investigations, 83 FR 7154 (February 20, 2018); see also Petitioners' Letter, “Large Diameter Welded Pipe from Canada, Greece, India, the People's Republic of China, the Republic of Korea, and the Republic of Turkey: Petition for Imposition of Antidumping and Countervailing Duties,” dated January 17, 2018 (Petition); see also Petitioners' Letter, “Response to the Department's January 23, 2018, Supplemental Questions Regarding Volume VIII of the Petition for the Imposition of Antidumping and Countervailing Duties,” dated January 25, 2018, at Exhibit AD-CN-Supp-3.

    Combination Rates

    In the Initiation Notice, Commerce stated that it would calculate producer/exporter combination rates for the respondents that are eligible for a separate rate in this investigation.8 Because Commerce continues to use facts otherwise available with an adverse inference in determining the rate for the China-wide entity and there were no respondents that demonstrated eligibility for a separate rate in this investigation, Commerce did not calculate producer/exporter combination rates for specific companies.

    8See Large Diameter Welded Pipe from Canada, Greece, India, the People's Republic of China, the Republic of Korea, and the Republic of Turkey: Initiation of Less-Than-Fair-Value Investigations, 83 FR 7154 (February 20, 2018) (Initiation Notice).

    Final Determination

    The final estimated weighted-average dumping margins are as follows:

    Exporter or producer Estimated weighted-average dumping margin
  • (percent)
  • China-wide entity 132.63 percent
    Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, for this final determination, we will direct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all entries of large diameter welded pipe from China, as described in the Appendix to this notice, which are entered, or withdrawn from warehouse, for consumption on or after August 27, the date of publication in the Federal Register of the affirmative Preliminary Determination.

    Pursuant to section 735(c)(1)(B)(ii) of the Act and 19 CFR 351.210(d), Commerce will instruct CBP to require a cash deposit for such entries of merchandise equal to the estimated weighted-average dumping margin or the estimated all-others rate, as follows: (1) The rate for the exporters listed in the chart above will be the rate we have determined in this final determination; (2) for all Chinese exporters of subject merchandise which have not received their own rate, the cash-deposit rate will be the China-wide rate; and (3) for all non-Chinese exporters of subject merchandise which have not received their own rate, the cash-deposit rate will be the rate applicable to the Chinese exporter/producer combination that supplied that non-Chinese exporter. These suspension-of-liquidation instructions will remain in effect until further notice. Additionally, Commerce is making no adjustments for export subsidies to the antidumping cash deposit rate in this investigation because we have made no findings in the companion countervailing duty investigation that any of the programs are export subsidies.

    Disclosure

    The estimated weighted-average dumping margin assigned to the China-wide entity in this investigation is based on AFA. As the margin is based on the rate calculated in the Petition, and because we made no changes to this margin since the Preliminary Determination, there are no calculations to disclose for this final determination.

    International Trade Commission Notification

    In accordance with section 735(d) of the Act, we will notify the International Trade Commission (ITC) of the final affirmative determination of sales at LTFV. Because Commerce's final determination is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports or sales (or the likelihood of sales) for importation of large diameter welded pipe, no later than 45 days after this final determination. If the ITC determines that such injury does not exist, this proceeding will be terminated, and all cash deposits posted will be refunded. If the ITC determines that such injury does exist, Commerce will issue an antidumping duty order directing CBP to assess, upon further instruction by Commerce, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation, as discussed above in the “Continuation of Suspension of Liquidation” section.

    Notification Regarding Administrative Protective Orders

    This notice will serve as a reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of propriety information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.

    Notification to Interested Parties

    This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act and 19 CFR 351.210(c).

    Dated: November 5, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix Scope of the Investigation

    The merchandise covered by this investigation is welded carbon and alloy steel pipe (including stainless steel pipe), more than 406.4 mm (16 inches) in nominal outside diameter (large diameter welded pipe), regardless of wall thickness, length, surface finish, grade, end finish, or stenciling. Large diameter welded pipe may be used to transport oil, gas, slurry, steam, or other fluids, liquids, or gases. It may also be used for structural purposes, including, but not limited to, piling. Specifically, not included is large diameter welded pipe produced only to specifications of the American Water Works Association (AWWA) for water and sewage pipe.

    Large diameter welded pipe used to transport oil, gas, or natural gas liquids is normally produced to the American Petroleum Institute (API) specification 5L. Large diameter welded pipe may also be produced to American Society for Testing and Materials (ASTM) standards A500, A252, or A53, or other relevant domestic specifications, grades and/or standards. Large diameter welded pipe can be produced to comparable foreign specifications, grades and/or standards or to proprietary specifications, grades and/or standards, or can be non-graded material. All pipe meeting the physical description set forth above is covered by the scope of this investigation, whether or not produced according to a particular standard.

    Subject merchandise also includes large diameter welded pipe that has been further processed in a third country, including but not limited to coating, painting, notching, beveling, cutting, punching, welding, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope large diameter welded pipe.

    The large diameter welded pipe that is subject to this investigation is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 7305.11.1030, 7305.11.1060, 7305.11.5000, 7305.12.1030, 7305.12.1060, 7305.12.5000, 7305.19.1030, 7305.19.1060, 7305.19.5000, 7305.31.4000, 7305.31.6010, 7305.31.6090, 7305.39.1000 and 7305.39.5000. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.

    [FR Doc. 2018-24807 Filed 11-13-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-602-809] Certain Hot-Rolled Steel Flat Products From Australia: Preliminary Results of Antidumping Duty Administrative Review; 2016-2017 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that sales of certain hot-rolled steel flat products from Australia were made at less than normal value during the period of review (POR), March 22, 2016, through September 30, 2017. We invite interested parties to comment on these preliminary results.

    DATES:

    Applicable November 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Amanda Brings, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3927.

    SUPPLEMENTARY INFORMATION:

    Background

    On December 7, 2017, Commerce initiated the antidumping duty administrative review on certain hot-rolled steel flat products from Australia.1 This review covers one producer/exporter of the subject merchandise, the collapsed entity BlueScope Steel Ltd., BlueScope Steel (AIS) Pty Ltd., and BlueScope Steel Distribution Pty Ltd. (collectively, BlueScope).2 For a detailed description of the events that followed the initiation of this review, see the Preliminary Decision Memorandum, dated concurrently with these preliminary results and hereby adopted by this notice.3

    1See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 82 FR 57705 (December 7, 2017).

    2 In the investigation, Commerce found that BlueScope Steel Ltd., BlueScope Steel (AIS) Pty Ltd., and BlueScope Steel Distribution Pty Ltd. (collectively, BlueScope) are a single entity and, because there were no changes to the facts which supported that decision since that determination was made, we continue to find that these companies are a single entity for this administrative review. See Certain Hot-Rolled Steel Flat Products from Australia: Final Determination of Sales at Less Than Fair Value, 81 FR 53406, 53407 (August 12, 2016).

    3See Memorandum, “Decision Memorandum for the Preliminary Results of Antidumping Duty Administrative Review: Certain Hot-Rolled Steel Flat Products from Australia; 2016-2017,” dated concurrently with this notice (Preliminary Decision Memorandum).

    Scope of the Order

    The product covered by this review is certain hot-rolled steel flat products from Australia. For a full description of the scope, see the Preliminary Decision Memorandum.

    Methodology

    Commerce is conducting this review in accordance with section 751(a)(1)(B) and (a)(2) of the Tariff Act of 1930, as amended (the Act). For a full description of the methodology underlying our administrative review preliminary results, see the Preliminary Decision Memorandum. A list of the topics included in the Preliminary Decision Memorandum is included as an appendix to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov, and to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed at http://enforcement.trade.gov/frn/index.html. The signed Preliminary Decision Memorandum and the electronic version of the Preliminary Decision Memorandum are identical in content.

    Adverse Facts Available

    Because mandatory respondent BlueScope has failed to provide requested information and has failed to cooperate by not acting to the best of its ability to comply with the requests for information from Commerce in this review, we preliminarily determine to apply facts otherwise available with an adverse inference (AFA) to this respondent, in accordance with sections 776(a) and (b) of the Act and 19 CFR 351.308. For a complete explanation of the analysis underlying the preliminary application of AFA, see the Preliminary Decision Memorandum.

    Preliminary Results of Review

    We preliminarily determine that, for the period of March 22, 2016, through September 30, 2017, the following dumping margin exists:

    Exporter/producer Dumping margin
  • (percent)
  • BlueScope Steel Ltd., BlueScope Steel (AIS) Pty Ltd., and BlueScope Steel Distribution Pty Ltd 99.20
    Disclosure and Public Comment

    Normally, Commerce discloses to interested parties the calculations performed in connection with the preliminary results within five days of the date of publication of the notice of preliminary results in the Federal Register, in accordance with 19 CFR 351.224(b). However, because Commerce preliminarily applied AFA to BlueScope, the only individually examined company in this administrative review, in accordance with section 776 of the Act, there are no calculations to disclose.

    Interested parties may submit case briefs to Commerce no later than 30 days after the date of publication of this notice.4 Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs.5 Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs in this proceeding are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities. Case and rebuttal briefs should be filed using ACCESS.6

    4See 19 CFR 351.309(c)(1)(ii).

    5See 19 CFR 351.309(d).

    6See 19 CFR 351.303.

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. An electronically-filed document must be received successfully in its entirety by ACCESS by 5 p.m. Eastern Standard Time within 30 days after the date of publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; (3) whether any participant is a foreign national; and (4) a list of issues parties intend to discuss. Issues raised in the hearing will be limited to those raised in the respective case and rebuttal briefs. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined.7 Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    7See 19 CFR 351.310(c).

    All submissions, with limited exceptions, must be filed electronically using ACCESS.8 An electronically filed document must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time, on the due dates established above (or, where applicable, to be established by Commerce at a later date). Documents excepted from the electronic submission requirements must be filed manually, (i.e., in paper form) with the APO/Dockets Unit in Room 18022 and stamped with the date and time of receipt by on the due date.9

    8See 19 CFR 351.303.

    9Id.

    Commerce intends to issue the final results of this administrative review, including the results of its analysis of issues raised in any written briefs, not later than 120 days after the date of publication of this notice, unless the deadline is extended.10

    10See section 751(a)(3)(A) of the Act and 19 CFR 351.213(h).

    Assessment Rates

    Upon issuance of the final results, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.11 The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.12 We intend to issue instructions to CBP 15 days after the date of publication of the final results of this review.

    11See 19 CFR 351.212(b).

    12See section 751(a)(2)(C) of the Act.

    Cash Deposit Requirements

    The following deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for BlueScope will be the rate established in the final results of this review; (2) for previously reviewed or investigated companies not participating in this review, the cash deposit rate will continue to be the company-specific rate published for the most recently-completed segment of this proceeding in which the company was reviewed; (3) if the exporter is not a firm covered in this review, a prior review, or the less-than-fair value (LTFV) investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recently-completed segment of this proceeding for the manufacturer of subject merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 29.58 percent, the all-others rate established in the LTFV investigation.13 These cash deposit requirements, when imposed, shall remain in effect until further notice.

    13See Antidumping Duty Order.

    Notification to Importers

    This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

    The preliminary results of review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(4).

    Dated: November 1, 2018. James Maeder, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations performing the duties of Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations. Appendix List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Scope of the Order IV. Use of Facts Otherwise Available and Adverse Inferences V. Conclusion
    [FR Doc. 2018-24793 Filed 11-13-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration Correction To Notice of Opportunity To Request Administrative Review AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    FOR FURTHER INFORMATION CONTACT:

    Brenda E. Brown, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-4735.

    SUPPLEMENTARY INFORMATION:

    On November 1, 2018, the Department of Commerce (“Commerce”) published its opportunity to request administrative review of the antidumping duty orders for November 2018 anniversary cases. Commerce inadvertently stated parties may request an administrative review not later than the last day of October 2018. The last day to submit a request review request for November cases is the last day of November 2018. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 83 FR 54912 (November 1, 2018). This notice serves as a correction notice.

    Dated: November 7, 2018. James Maeder, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations performing the duties of Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2018-24792 Filed 11-13-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-533-882] Large Diameter Welded Pipe From India: Final Affirmative Countervailing Duty Determination AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) determines that countervailable subsidies are being provided to producers/exporters of large diameter welded pipe welded pipe from India.

    DATES:

    Applicable November 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Robert Palmer at (202) 482-9068 or Suzanne Lam at (202) 482-0783, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: Background

    On June 29, 2018, Commerce published in the Federal Register its affirmative Preliminary Determination of this countervailing duty (CVD) investigation and invited interested parties to comment.1 A summary of the events that occurred since Commerce published the Preliminary Determination, as well as a full discussion of the issues raised by parties for this final determination, may be found in the Issues and Decision Memorandum issued concurrently with this notice.2 The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov, and is available to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed and electronic versions of the Issues and Decision Memorandum are identical in content.

    1See Large Diameter Welded Pipe from India: Preliminary Affirmative Countervailing Duty Determination and Alignment of Final Determination with Final Antidumping Duty Determination, 83 FR 30690 (June 29, 2018) (Preliminary Determination) and accompanying Preliminary Decision Memorandum.

    2See Memorandum, “Issues and Decision Memorandum for the Final Affirmative Determination of the Countervailing Duty Investigation of Large Diameter Welded Pipe from India” (Issues and Decision Memorandum), dated concurrently with this determination and hereby adopted by this notice.

    Period of Investigation

    The period of investigation is January 1, 2017, through December 31, 2017.

    Scope of the Investigation

    The product covered by this investigation is large diameter welded pipe from India. For a full description of the scope of this investigation, see the “Scope of the Investigation” in Appendix I of this notice.

    Scope Comments

    During the course of this investigation and the concurrent LTFV investigations of large diameter welded pipe from Canada, Greece, Korea, the People's Republic of China (China) and Turkey, and the concurrent countervailing duty investigations of large diameter welded pipe from China, India, Korea and Turkey, Commerce received scope comments from interested parties. Commerce issued a Preliminary Scope Decision Memorandum 3 to address these comments. In the Preliminary Determination, Commerce set aside a period of time for parties to address scope issues in scope case and rebuttal briefs.4 No interested parties submitted scope comments in scope case or scope rebuttal briefs. Therefore, for this final determination, the scope of this investigation remains unchanged from that published in the Preliminary Determination.

    3See Memorandum, “Scope Comments Decision Memorandum for the Preliminary Determinations,” dated June 19, 2018 (Preliminary Scope Decision Memorandum).

    4See Large Diameter Welded Pipe from India: Preliminary Determination of Sales at Less Than Fair Value, 83 FR 43653 (August 27, 2018).

    Analysis of Subsidy Programs and Comments Received

    The subsidy programs under investigation and the issues raised in the case and rebuttal briefs by parties in this investigation are discussed in the Issues and Decision Memorandum. A list of the issues that parties raised, and to which we responded in the Issues and Decision Memorandum, is attached to this notice at Appendix II.

    Methodology

    Commerce conducted this investigation in accordance with section 701 of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, Commerce determines that there is a subsidy, i.e., a financial contribution by an “authority” that gives rise to a benefit to the recipient, and that the subsidy is specific.5 For a full description of the methodology underlying our final determination, see the Issues and Decision Memorandum.

    5See sections 771(5)(B) and (D) of the Act regarding financial contribution; section 771(5)(E) of the Act regarding benefit; and section 771(5A) of the Act regarding specificity.

    In making these findings, Commerce relied, in part, on facts otherwise available and, because it finds that both respondents and the Government of India did not act to the best of their ability to respond to Commerce's requests for information, it drew an adverse inference where appropriate in selecting from among the facts otherwise available.6 For further information, see “Use of Facts Otherwise Available and Adverse Inferences” in the Issues and Decision Memorandum.

    6See sections 776(a), (b), and 782(d) of the Act.

    Final Determination

    In accordance with section 705(c)(1)(B)(i) of the Act, we calculated an individual rate for each producer/exporter of the subject merchandise individually investigated. In accordance with section 705(c)(5)(A) of the Act, for companies not individually investigated, we apply an “all-others” rate, which is normally calculated by weighting the subsidy rates of the individual companies selected as mandatory respondents by those companies” exports of the subject merchandise to the United States. Under section 705(c)(5)(A)(i) of the Act, the all-others rate excludes zero and de minimis rates calculated for the exporters and producers individually investigated, as well as rates based entirely on facts otherwise available. Section 705(c)(5)(A)(ii) of the Act provides that if the countervailable subsidy rate established for all exporters and producers individually investigated are zero, de minimis, or determined entirely in accordance with section 776 of the Act, Commerce may use any reasonable method to establish an all-others rate for exporters and producers not individually investigated. In this case, the estimated countervailable subsidy rate calculated for the investigated companies is based entirely on facts available under section 776 of the Act. There is no other information on the record upon which to determine an all-others rate. As a result, we have used the rate assigned to Bhushan Steel and Welspun Trading Limited as the all-others rate. This method is consistent with the Department's past practice.7

    7See, e.g., Certain Carbon and Alloy Steel Cut-to-Length Plate from the People's Republic of China: Final Affirmative Countervailing Duty Determiniation, 82 FR 8507, 8508 (January 26, 2017).

    Commerce determines that the following estimated countervailable subsidy rates exist:

    Company Subsidy rate
  • (percent)
  • Bhushan Steel 541.15 Welspun Trading Limited 541.15 All-Others 541.15
    Continuation of Suspension of Liquidation

    As a result of our Preliminary Determination and pursuant to section 703(d)(1)(B) and (d)(2) of the Act, Commerce instructed U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise as described in the scope of the investigation section entered, or withdrawn from warehouse, for consumption on or after the date of publication in the Federal Register. In accordance with section 703(d) of the Act, we issued instructions to CBP to discontinue the suspension of liquidation for countervailing duty (CVD) purposes for subject merchandise entered, or withdrawn from warehouse, on or after October 27, 2018, but to continue the suspension of liquidation of all entries from June 29, 2018, through October 26, 2018.

    If the U.S. International Trade Commission (ITC) issues a final affirmative injury determination, we will issue a CVD order, will reinstate the suspension of liquidation under section 706(a) of the Act, and will require a cash deposit of estimated countervailing duties for such entries of subject merchandise in the amounts indicated above. If the ITC determines that material injury, or threat of material injury, does not exist, this proceeding will be terminated and all estimated duties deposited or securities posted as a result of the suspension of liquidation will be refunded or canceled.

    Disclosure

    Normally, Commerce discloses calculations performed for a final determination within five days of its public announcement, or if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). However, Commerce applied AFA in determining the estimated countervailable subsidy rate for the individually examined companies (Bhushan Steel and Welspun Trading Limited) in this investigation, in accordance with section 776 of the Act. Because our calculation of the AFA subsidy rate is outlined in Appendix I of the Preliminary Decision Memorandum, and because we made no changes to the Preliminary Determination, there are no further calculations to disclose.

    International Trade Commission Notification

    In accordance with section 705(d) of the Act, Commerce will notify the ITC of its determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information related to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order (APO), without the written consent of the Assistant Secretary for Enforcement and Compliance. Because Commerce's final determination is affirmative, in accordance with section 705(b) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of large diameter welded pipe from India no later than 45 days after this final determination.

    Notification Regarding Administrative Protective Orders

    In the event that the ITC issues a final negative injury determination, this notice will serve as the only reminder to parties subject to an APO of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

    Notification to Interested Parties

    This determination is issued and published pursuant to sections 705(d) and 777(i) of the Act and 19 CFR 351.210(c).

    Dated: November 1, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix I Scope of the Investigation

    The merchandise covered by this investigation is welded carbon and alloy steel pipe (including stainless steel pipe), more than 406.4 mm (16 inches) in nominal outside diameter (large diameter welded pipe), regardless of wall thickness, length, surface finish, grade, end finish, or stenciling. Large diameter welded pipe may be used to transport oil, gas, slurry, steam, or other fluids, liquids, or gases. It may also be used for structural purposes, including, but not limited to, piling. Specifically, not included is large diameter welded pipe produced only to specifications of the American Water Works Association (AWWA) for water and sewage pipe.

    Large diameter welded pipe used to transport oil, gas, or natural gas liquids is normally produced to the American Petroleum Institute (API) specification 5L. Large diameter welded pipe may also be produced to American Society for Testing and Materials (ASTM) standards A500, A252, or A53, or other relevant domestic specifications, grades and/or standards. Large diameter welded pipe can be produced to comparable foreign specifications, grades and/or standards or to proprietary specifications, grades and/or standards, or can be non-graded material. All pipe meeting the physical description set forth above is covered by the scope of this investigation, whether or not produced according to a particular standard.

    Subject merchandise also includes large diameter welded pipe that has been further processed in a third country, including but not limited to coating, painting, notching, beveling, cutting, punching, welding, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope large diameter welded pipe.

    The large diameter welded pipe that is subject to this investigation is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 7305.11.1030, 7305.11.1060, 7305.11.5000, 7305.12.1030, 7305.12.1060, 7305.12.5000, 7305.19.1030, 7305.19.1060, 7305.19.5000, 7305.31.4000, 7305.31.6010, 7305.31.6090, 7305.39.1000 and 7305.39.5000. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.

    Appendix II List of Topics Discussed in the Issues and Decision Memorandum I. Summary II. Background III. Use of Facts Otherwise Available and Adverse Inferences IV. Analysis of Programs V. Analysis of Comments Comment 1: Whether Commerce Properly Applied AFA in the Preliminary Determination Comment 2: Whether Commerce Should Continue to Find the AAP, DDB, EPCG, and MEIS Programs Countervailable VI. Conclusion
    [FR Doc. 2018-24804 Filed 11-13-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-580-883] Certain Hot-Rolled Steel Flat Products From the Republic of Korea: Preliminary Results of Antidumping Duty Administrative Review; 2016-2017 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that Hyundai Steel Company (Hyundai) and POSCO/POSCO Daewoo Co., Ltd. (collectively POSCO/PDW), the two companies selected for individual examination, sold subject merchandise in the United States at prices below normal value during the POR. We invite interested parties to comment on these preliminary results.

    DATES:

    Applicable November 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Benito Ballesteros or Justin Neuman, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) (202) 482-7425 or (202) 482-0486, respectively.

    SUPPLEMENTARY INFORMATION: Background

    On December 7, 2017, Commerce initiated the antidumping duty administrative review on certain hot-rolled steel flat products (hot-rolled steel) from the Republic of Korea (Korea).1 Commerce selected two respondents for individual examination, POSCO/PDW and Hyundai Steel Company. For a detailed description of the events that followed the initiation of this review, see the Preliminary Decision Memorandum, dated concurrently with these preliminary results and hereby adopted by this notice.2

    1See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 82 FR 21513 (May 9, 2017).

    2See Memorandum, “Decision Memorandum for the Preliminary Results of the Antidumping Duty Administrative Review: Certain Cold Rolled Steel Flat Products from the Republic of Korea; 2016-2017,” dated October 3, 2018 (Preliminary Decision Memorandum).

    The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). Access to ACCESS is available to registered users at http://access.trade.gov and is available to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the internet at http://enforcement.trade.gov/frn/index.html. A list of the topics discussed in the Preliminary Decision Memorandum is attached at the Appendix to this notice. The signed Preliminary Decision Memorandum and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    Scope of the Order

    The product covered by this review is hot-rolled steel from Korea. For a full description of the scope see the Preliminary Decision Memorandum.

    Methodology

    Commerce is conducting this administrative review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act). Export price and constructed export price are calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our conclusions, see the Preliminary Decision Memorandum.

    Rates for Non-Examined Companies

    The statute and Commerce's regulations do not address the establishment of a rate to be applied to companies not selected for individual examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in a market economy investigation, for guidance when calculating the rate for companies which were not selected for individual examination in an administrative review. Under section 735(c)(5)(A) of the Act, the all-others rate is normally “an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero or de minimis margins, and any margins determined entirely {on the basis of facts available}.”

    In this review, we have preliminarily calculated weighted-average dumping margins for Hyundai and POSCO/PDW that are not zero, de minimis, or determined entirely on the basis of facts available. Accordingly, we have preliminarily assigned to the companies not individually examined in this review 3 a margin of 5.95 percent, which is the weighted average of Hyundai and POSCO/PDW calculated weighted-average dumping margins.4

    3 The non-examined companies subject to this review are: Daewoo International Corp., Dongbu Steel Co., Ltd., Dongkuk Industries Co., Ltd., Marubeni-Itochu Steel Korea, Soon Hong Trading Co., and Sungjin Co.

    4 For more information regarding the calculation of this margin, see Memorandum, “Calculation of the Margin for Non-Examined Companies,” dated November 2, 2018. As the weighting factor, we relied on the publicly ranged sales data reported in Hyundai's and POSCO/PDW's quantity and value charts.

    Preliminary Results of Review

    We preliminarily determine that the following weighted-average dumping margins exist for the period March 22, 2016, through September 30, 2017.

    Exporter/producer Weighted-average margin (percent) POSCO/POSCO Daewoo Co., Ltd. 7.67 Hyundai Steel Company 3.95 Non-Examined Companies 5.95 Disclosure, Public Comment, and Opportunity To Request a Hearing

    We intend to disclose the calculations performed for these preliminary results of review to interested parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Pursuant to 19 CFR 351.309(c), interested parties may submit case briefs no later than 30 days after the date of publication of this notice. Rebuttal briefs, the content of which is limited to issues raised in the case briefs, may be filed no later than five days after the date for filing case briefs.5 Parties who submit case briefs or rebuttal briefs in this proceeding are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.6 Case and rebuttal briefs should be filed using ACCESS 7 and must be served on interested parties.8 Executive summaries should be limited to five pages total, including footnotes.

    5See 19 CFR 351.309(d).

    6See 19 CFR 351.309(c)(2) and (d)(2).

    7See generally 19 CFR 351.303.

    8See 19 CFR 351.303(f).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via Commerce's electronic records system, ACCESS. An electronically filed request must be received successfully in its entirety by 5:00 p.m. Eastern Time within 30 days of the date of publication of this notice.9 Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and (3) a list of issues parties intend to discuss. Issues raised in the hearing will be limited to those raised in the respective case and rebuttal briefs. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a date and time to be determined.10 Parties should confirm the date, time, and location of the hearing two days before the scheduled date.

    9See 19 CFR 351.310(c).

    10See 19 CFR 351.310(d).

    Commerce intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any case or rebuttal briefs, no later than 120 days after the date of publication of this notice, unless extended.11

    11See section 751(a)(3)(A) of the Act and 19 CFR 351.213(h).

    Assessment Rates

    Upon completion of this administrative review, Commerce shall determine, and Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries. We intend to issue liquidation instructions to CBP 15 days after publication of the final results of this review.

    For any individually examined respondent whose weighted-average dumping margin is not zero or de minimis (i.e., less than 0.5 percent) in the final results of this review and the respondent reported reliable entered values, we will calculate importer-specific ad valorem assessment rates for the merchandise based on the ratio of the total amount of dumping calculated for the examined sales made during the period of review to each importer and the total entered value of those same sales, in accordance with 19 CFR 351.212(b)(1). If the respondent has not reported reliable entered values, we will calculate a per-unit assessment rate for each importer by dividing the total amount of dumping calculated for the examined sales made to that importer by the total sales quantity associated with those transactions. Where an importer-specific ad valorem assessment rate is zero or de minimis in the final results of review, we will instruct CBP to liquidate the appropriate entries without regard to antidumping duties in accordance with 19 CFR 351.106(c)(2). If a respondent's weighted-average dumping margin is zero or de minimis in the final results of review, we will instruct CBP not to assess duties on any of its entries in accordance with the Final Modification for Reviews, i.e., “{w}here the weighted-average margin of dumping for the exporter is determined to be zero or de minimis, no antidumping duties will be assessed.” 12

    12See Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain Antidumping Proceedings; Final Modification, 77 FR 8101, 8102 (February 14, 2012) (Final Modification for Reviews).

    For entries of subject merchandise during the POR produced by Hyundai and POSCO/PDW for which the producer did not know its merchandise was destined for the United States, or for any respondent for which we have a final determination of no shipments, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company (or companies) involved in the transaction.13

    13See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003).

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the notice of final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Hyundai and POSCO/PDW in the final results of review will be equal to the weighted-average dumping margin established in the final results of this administrative review; (2) for merchandise exported by producers or exporters not covered in this review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding in which they were reviewed; (3) if the exporter is not a firm covered in this review or the original investigation but the producer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the producer of the merchandise; (4) the cash deposit rate for all other producers or exporters will continue to be 5.55 percent,14 the all-others rate established in the less-than-fair-value investigation. These cash deposit requirements, when imposed, shall remain in effect until further notice.

    14See Certain Hot-Rolled Steel Flat Products from Australia, Brazil, Japan, the Republic of Korea, the Netherlands, the Republic of Turkey, and the United Kingdom: Amended Final Affirmative Antidumping Determinations for Australia, the Republic of Korea, and the Republic of Turkey and Antidumping Duty Orders, 81 FR 67962 (October 3, 2016) (Order).

    Notification to Importers

    This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

    Notification to Interested Parties

    Commerce is issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: November 2, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix List of Topics Discussed in the Preliminary Decision Memorandum 1. Summary 2. Background 3. Scope of the Order 4. Discussion of the Methodology Comparison to Normal Value A. Determination of the Comparison Method B. Results of Differential Pricing Analysis Date of Sale Product Comparisons Export Price/Constructed Export Price Normal Value A. Home Market Viability B. Affiliated Party Transactions and Arm's-Length Test C. Level of Trade D. Cost of Production Analysis 1. Calculation of COP 2. Test of Comparison Market Sales Prices 3. Results of the COP Test E. Calculation of Normal Value Based on Comparison Market Prices 5. Currency Conversion 6. Recommendation
    [FR Doc. 2018-24796 Filed 11-13-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-560-829] Certain Uncoated Paper From Indonesia: Rescission of 2017 Countervailing Duty Administrative Review AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) is rescinding the administrative review of the countervailing duty (CVD) order on certain uncoated paper from Indonesia for the period of review (POR) January 1, 2017, through December 31, 2017.

    DATES:

    Applicable November 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    David Goldberger or Darla Brown, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4136 or (202) 482-1791, respectively.

    Background

    On March 5, 2018, Commerce published in the Federal Register a notice of opportunity to request an administrative review of the CVD order on certain uncoated paper from Indonesia for the POR.1 On April 2, 2018, Commerce received a timely request from PT Anugerah Kertas Utama, PT Riau Andalan Kertas, and APRIL Fine Paper Macao Offshore Limited (collectively, APRIL), in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.213(b), to conduct an administrative review of this CVD order.2

    1See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 83 FR 9284 (March 5, 2018).

    2See Letter from APRIL, “Uncoated Paper from Indonesia,” dated April 2, 2018.

    On May 2, 2018, Commerce published in the Federal Register a notice of initiation with respect to APRIL.3 On July 13, 2018, APRIL timely withdrew its request for an administrative review.4

    3See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 83 FR 19215 (May 2, 2018).

    4See Letter from APRIL, “Certain Uncoated Paper from Indonesia: APRIL—Withdraw of Request for Administrative Review,” dated July 13, 2018.

    Rescission of Review

    Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if a party who requested the review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. As noted above, APRIL withdrew its request for review by the 90-day deadline, and no other party requested an administrative review of this order. Therefore, we are rescinding the administrative review of the CVD order on certain uncoated paper from Indonesia covering the period January 1, 2017, through December 31, 2017.

    Assessment

    Commerce will instruct U.S. Customs and Border Protection (CBP) to assess countervailing duties on all appropriate entries. Countervailing duties shall be assessed at rates equal to the cash deposit of estimated countervailing duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions directly to CBP 15 days after the date of publication of this notice in the Federal Register.

    Notification Regarding Administrative Protective Orders

    This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.

    This notice is issued and published in accordance with section 777(i)(1) of the Act and 19 CFR 351.213(d)(4).

    Dated: November 7, 2018. James Maeder, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations performing the duties of Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2018-24791 Filed 11-13-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Institute of Standards and Technology [Docket Number 181101997-8997-01] Developing a Privacy Framework AGENCY:

    National Institute of Standards and Technology, U.S. Department of Commerce.

    ACTION:

    Notice; request for information (RFI).

    SUMMARY:

    The National Institute of Standards and Technology (NIST) is developing a framework that can be used to improve organizations' management of privacy risk for individuals arising from the collection, storage, use, and sharing of their information.1 The NIST Privacy Framework: An Enterprise Risk Management Tool (“Privacy Framework”), is intended for voluntary use and is envisioned to consist of outcomes and approaches that align policy, business, technological, and legal approaches to improve organizations' management of processes for incorporating privacy protections into products and services. This notice requests information to help identify, understand, refine, and guide development of the Privacy Framework. The Privacy Framework will be developed through a consensus-driven, open, and collaborative process that will include workshops and other opportunities to provide input.

    1 While NIST requests information about how organizations define privacy risk in topic #3 below, for the purposes of this RFI, NIST references the privacy risk model set forth in NISTIR 8062, An Introduction to Privacy Engineering and Risk Management in Federal Systems at https://csrc.nist.gov/publications/detail/nistir/8062/final, which analyzes the problems that individuals might experience as a result of the processing of their information, and the impact if they were to occur.

    DATES:

    Comments in response to this notice must be received by 5:00 p.m. Eastern time on December 31, 2018.

    ADDRESSES:

    Written comments may be submitted by mail to Katie MacFarland, National Institute of Standards and Technology, 100 Bureau Drive, Stop 2000, Gaithersburg, MD 20899. Electronic submissions may be sent to [email protected], and may be in any of the following formats: HTML, ASCII, Word, RTF, or PDF. Please cite “Developing a Privacy Framework” in all correspondence. Comments received by the deadline will be posted at http://www.nist.gov/privacyframework without change or redaction, so commenters should not include information they do not wish to be posted (e.g., personal or confidential business information). Comments that contain profanity, vulgarity, threats, or other inappropriate language or content will not be posted or considered.

    FOR FURTHER INFORMATION CONTACT:

    For questions about this RFI contact: Naomi Lefkovitz, U.S. Department of Commerce, NIST, MS 2000, 100 Bureau Drive, Gaithersburg, MD 20899, telephone (301) 975-2924, email [email protected] Please direct media inquiries to NIST's Public Affairs Office at (301) 975-NIST.

    SUPPLEMENTARY INFORMATION:

    Genesis for the Privacy Framework's Development

    It is a challenge to design, operate, or use technologies in ways that are mindful of diverse privacy needs in an increasingly connected and complex environment. Current and cutting-edge technologies such as mobile devices, social media, the Internet of Things and artificial intelligence are giving rise to increased concerns about their impacts on individuals' privacy. Inside and outside the U.S., there are multiple visions for how to address these concerns. Accordingly, the U.S. Department of Commerce (DOC) is developing a forward-thinking approach that supports both business innovation and strong privacy protections. As part of this effort, NIST is developing a voluntary Privacy Framework to help organizations: better identify, assess, manage, and communicate privacy risks; foster the development of innovative approaches to protecting individuals' privacy; and increase trust in products and services.2 The Privacy Framework is intended to be a tool that would assist with enterprise risk management.

    2 In parallel with this effort, the DOC's National Telecommunications and Information Administration is developing a set of privacy principles in support of a domestic policy approach that advances consumer privacy protections while protecting prosperity and innovation, in coordination with DOC's International Trade Administration to ensure consistency with international policy objectives: https://www.ntia.doc.gov/federal-register-notice/2018/request-comments-developing-administration-s-approach-consumer-privacy.

    Privacy Framework Development and Attributes

    While good cybersecurity practices help manage privacy risk through the protection of personally identifiable information (PII),3 privacy risks also can arise from how organizations collect, store, use, and share PII to meet their mission or business objective, as well as how individuals interact with products and services. NIST seeks to understand whether organizations that design, operate, or use these products and services would be better able to address the full scope of privacy risk with more tools to support better implementation of privacy protections.

    3 For the purposes of this RFI, NIST is using the definition from the Office of Management and Budget Circular A-130. PII is defined as “information that can be used to distinguish or trace an individual's identity, either alone or when combined with other information that is linked or linkable to a specific individual.”

    NIST will develop the Privacy Framework in a manner consistent with its mission to promote U.S. innovation and industrial competitiveness, and is seeking input from all interested stakeholders. NIST intends for the Framework to provide a prioritized, flexible, risk-based, outcome-based, and cost-effective approach that can be compatible with existing legal and regulatory regimes in order to be the most useful to organizations and enable widespread adoption. NIST expects that the Privacy Framework development process will involve several iterations to allow for continuing engagement with interested stakeholders. This will include interactive workshops, along with other forms of outreach.

    On October 16, 2018, NIST held its first workshop in Austin, Texas to launch the framework development process.4 NIST heard from panelists from industry, civil society and academia, as well as audience participants about the needs the Privacy Framework should address and some key desired characteristics. As a consequence, NIST believes that in order to be effective, the Privacy Framework should have the following minimum attributes:

    4https://www.nist.gov/news-events/events/2018/10/kicking-nist-privacy-framework-workshop-1.

    1. Consensus-driven and developed and updated through an open, transparent process. All stakeholders should have the opportunity to contribute to the Privacy Framework's development. NIST has a long track record of successfully and collaboratively working with stakeholders to develop guidelines and standards. NIST will model the approach for the Privacy Framework on the successful, open, transparent, and collaborative approach used to develop the Framework for Improving Critical Infrastructure Cybersecurity (“Cybersecurity Framework”).5

    5https://www.nist.gov/cyberframework/framework.

    2. Common and accessible language. The Privacy Framework should be understandable by a broad audience, including senior executives and those who are not privacy professionals. The Privacy Framework can then facilitate communications among various stakeholders by promoting use of this common language.

    3. Adaptable to many different organizations, technologies, lifecycle phases, sectors, and uses. The Privacy Framework should be scalable to organizations of all sizes, public or private, in any sector, and operating within or across domestic borders. It should be platform- and technology- agnostic and customizable.

    4. Risk-based, outcome-based, voluntary, and non-prescriptive. The Privacy Framework should provide a catalog of privacy outcomes and approaches to be used voluntarily, rather than a set of one-size-fits-all requirements, in order to: Foster innovation in products and services; inform education and workforce development; and promote research on and adoption of effective privacy solutions. The Privacy Framework should assist organizations to better manage privacy risks within their diverse environments without prescribing the methods for managing privacy risk.

    5. Readily usable as part of any enterprise's broader risk management strategy and processes. The Privacy Framework should be consistent with, or reinforce, other risk management efforts within the enterprise, recognizing that privacy is one of several major areas of risk that an organization needs to manage.

    6. Compatible with or may be paired with other privacy approaches. The Privacy Framework should take advantage of existing privacy standards, methodologies, and guidance. It should be compatible with and support organizations' ability to operate under applicable domestic and international legal or regulatory regimes.

    7. A living document. The Privacy Framework should be updated as technology and approaches to privacy protection change and as stakeholders learn from implementation.

    Although the goal of the Privacy Framework is to help organizations better identify, assess, manage, and communicate privacy risks, NIST expects there may be aspects of privacy practices that are not sufficiently developed for inclusion in the Privacy Framework. When developing the Cybersecurity Framework, NIST produced a related roadmap that identified focus areas that still needed more research and understanding before they were mature enough for widespread adoption, but that could potentially inform future revisions of the Cybersecurity Framework. With respect to the Privacy Framework, NIST anticipates that a roadmap may be needed for similar reasons.

    As noted below, NIST solicits comments on the desired attributes of a Privacy Framework, as well as high-priority gaps in organizations' ability to manage privacy risk, as part of this RFI.

    Goals of This Request for Information

    Based upon discussions that took place during the October 16, 2018 workshop, this RFI seeks further information about the topics discussed by stakeholders, as elaborated in the sections below. The RFI invites stakeholders to submit ideas, based on their experience as well as their mission and business needs, to assist in prioritizing elements and development of the Privacy Framework. NIST invites industry, civil society groups, academic institutions, Federal agencies, state, local, territorial, tribal, and foreign governments, standard-setting organizations, and other interested stakeholders to respond.

    The goals of the Privacy Framework development process, generally, and this RFI, specifically, are:

    (i) To better understand common privacy challenges in the design, operation, and use of products and services that might be addressed through a voluntary Privacy Framework,

    (ii) to gain a greater awareness about the extent to which organizations are identifying and communicating privacy risk or have incorporated privacy risk management standards, guidelines, and best practices, into their policies and practices; and

    (iii) to specify high-priority gaps for which privacy guidelines, best practices, and new or revised standards are needed and that could be addressed by the Privacy Framework or a related roadmap.

    Details About Responses to This Request for Information

    When addressing the topics below, commenters may address the practices of their organization or a group of organizations with which they are familiar. If desired, commenters may provide information about the type, size, and location of the organization(s). Provision of such information is optional and will not affect NIST's full consideration of the comment.

    Comments containing references, studies, research, and other empirical data that are not widely published (e.g., available on the internet) should include copies of or electronic links to the referenced materials. Beyond that, responses should not include additional information. Do not include in comments or otherwise submit information deemed to be proprietary, private, or in any way confidential, as all comments relevant to this RFI topic area that are received by the deadline will be made available publicly at http://www.nist.gov/privacyframework.

    Request for Information

    The following list of topics covers the major areas about which NIST seeks information. The listed areas are not intended to limit the topics that may be addressed by respondents so long as they address privacy and how a useful Privacy Framework might be developed. Responses may include any topic believed to have implications for the development of the Privacy Framework, regardless of whether the topic is included in this document.

    Risk Management

    NIST solicits information about how organizations assess risk; how privacy considerations factor into that risk assessment; the current usage of existing privacy standards, frameworks, models, methodologies, tools, guidelines, and principles; and other risk management practices related to privacy. In addition, NIST is interested in understanding whether particular frameworks, standards, guidelines, and/or best practices are mandated by legal or regulatory requirements and the challenges organizations perceive in meeting such requirements. This will assist in achieving NIST's goal of developing a framework that includes and identifies common practices across contexts and environments and is structured to help organizations achieve positive privacy outcomes. Accordingly, NIST is requesting information related to the following topics:

    Organizational Considerations

    1. The greatest challenges in improving organizations' privacy protections for individuals;

    2. The greatest challenges in developing a cross-sector standards-based framework for privacy;

    3. How organizations define and assess risk generally, and privacy risk specifically;

    4. The extent to which privacy risk is incorporated into different organizations' overarching enterprise risk management;

    5. Current policies and procedures for managing privacy risk;

    6. How senior management communicates and oversees policies and procedures for managing privacy risk;

    7. Formal processes within organizations to address privacy risks that suddenly increase in severity;

    8. The minimum set of attributes desired for the Privacy Framework, as described in the Privacy Framework Development and Attributes section of this RFI, and whether any attributes should be added, removed or clarified;

    9. What an outcome-based approach to privacy would look like;

    10. What standards, frameworks, models, methodologies, tools, guidelines and best practices, and principles organizations are aware of or using to identify, assess, manage, and communicate privacy risk at the management, operational, and technical levels, and whether any of them currently meet the minimum attributes described above;

    11. How current regulatory or regulatory reporting requirements (e.g., local, state, national, international) relate to the use of standards, frameworks, models, methodologies, tools, guidelines and best practices, and principles;

    12. Any mandates to use specific standards, frameworks, models, methodologies, tools, guidelines and best practices, and principles or conflicts between requirements and desired practices;

    13. The role(s) national/international standards and organizations that develop national/international standards play or should play in providing confidence mechanisms for privacy standards, frameworks, models, methodologies, tools, guidelines, and principles;

    14. The international implications of a Privacy Framework on global business or in policymaking in other countries; and

    15. How the Privacy Framework could be developed to advance the recruitment, hiring, development, and retention of a knowledgeable and skilled workforce necessary to perform privacy functions within organizations.

    Structuring the Privacy Framework

    NIST is interested in understanding how to structure the Privacy Framework to achieve the desired set of attributes and improve integration of privacy risk management processes with the organizational processes for developing products and services for better privacy outcomes. NIST is seeking any input from the public regarding options for structuring the Privacy Framework, and is particularly interested in receiving comment on the following issues, if applicable:

    16. Please describe how your organization currently manages privacy risk. For example, do you structure your program around the information life cycle (i.e., the different stages—from collection to disposal—through which PII is processed), around principles such as the fair information practice principles (FIPPs), or by some other construct?

    17. Whether any aspects of the Cybersecurity Framework could be a model for this Privacy Framework, and what is the relationship between the two frameworks.

    18. Please describe your preferred organizational construct for the Privacy Framework. For example, would you like to see a Privacy Framework that is structured around:

    a. The information life cycle;

    b. Principles such as FIPPs;

    c. The NIST privacy engineering objectives of predictability, manageability, and disassociability 6 or other objectives;

    6 NISTIR 8062, An Introduction to Privacy Engineering and Risk Management in Federal Systems at https://csrc.nist.gov/publications/detail/nistir/8062/final.

    d. Use cases or design patterns;

    e. A construct similar to the Cybersecurity Framework functions, categories, and subcategories; or

    f. Other organizing constructs?

    Please elaborate on the benefits or challenges of your preferred approach with respect to integration with organizational processes for managing enterprise risk and developing products or services. If you provided information about topic 10 above, please identify any supporting examples of standards, frameworks, models, methodologies, tools, guidelines and best practices, and principles.

    Specific Privacy Practices

    In addition to the approaches above, NIST is interested in identifying core privacy practices that are broadly applicable across sectors and organizations. NIST is interested in information on the degree of adoption of the following practices regarding products and services:

    • De-identification;

    • Enabling users to have a reliable understanding about how information is being collected, stored, used, and shared;

    • Enabling user preferences;

    • Setting default privacy configurations;

    • Use of cryptographic technology to achieve privacy outcomes—for example, the disassociability privacy engineering objective;

    • Data management, including:

    ○ Tracking permissions or other types of data tracking tools,

    ○ Metadata,

    ○ Machine readability,

    ○ Data correction and deletion; and

    • Usable design or requirements.

    19. Whether the practices listed above are widely used by organizations;

    20. Whether, in addition to the practices noted above, there are other practices that should be considered for inclusion in the Privacy Framework;

    21. How the practices listed above or other proposed practices relate to existing international standards and best practices;

    22. Which of these practices you see as being the most critical for protecting individuals' privacy;

    23. Whether some of these practices are inapplicable for particular sectors or environments;

    24. Which of these practices pose the most significant implementation challenge, and whether the challenges vary by technology or other factors such as size or workforce capability of the organization;

    25. Whether these practices are relevant for new technologies like the Internet of Things and artificial intelligence; and

    26. How standards or guidelines are utilized by organizations in implementing these practices.

    Authority:

    15 U.S.C. 272(b), (c), & (e); 15 U.S.C. 278g-3.

    Kevin A. Kimball, Chief of Staff.
    [FR Doc. 2018-24714 Filed 11-13-18; 8:45 am] BILLING CODE 3510-13-P
    DEPARTMENT OF COMMERCE National Institute of Standards and Technology Proposed Voluntary Product Standard 2-10, Performance Standard for Wood-Based Structural-Use Panels AGENCY:

    National Institute of Standards and Technology (NIST), Commerce.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    The National Institute of Standards and Technology (NIST) is soliciting public comment on a proposed revision to Voluntary Product Standard (PS) 2-10, Performance Standard for Wood-Based Structural-Use Panels. The standard, prepared by the Standing Committee for PS 2, establishes requirements for those who choose to adhere to the standard, for the structural criteria to assess the acceptability of wood-based structural-use panels for construction sheathing and single-floor applications. It also provides a basis for common understanding among the producers, distributors, and the users of these products. Interested parties are invited to review the proposed standard and submit comments to NIST.

    DATES:

    Written comments regarding the proposed revision to PS 2-10 should be submitted to the Standards Services Division, NIST, no later than December 14, 2018.

    ADDRESSES:

    An electronic copy (an Adobe Acrobat File) of the proposed revision to the standard, PS 2-10, can be obtained at the following website: https://www.nist.gov/standardsgov/voluntary-product-standards-program. This site also includes an electronic copy of PS 2-10 (the existing standard) and a summary of the significant changes. Written comments on the proposed revision should be submitted to David F. Alderman, Standards Coordination Office, NIST, 100 Bureau Drive, Stop 2100, Gaithersburg, MD 20899-2100. Electronic comments may be submitted to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    David F. Alderman, Standards Coordination Office, National Institute of Standards and Technology, telephone (301) 975-4019; fax: (301) 975-4715, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The proposed revision of the standard has been developed and is being processed in accordance with Department of Commerce provisions in 15 CFR part 10, Procedures for the Development of Voluntary Product Standards, as amended (published June 20, 1986). The Standing Committee for PS 2 is responsible for maintaining, revising, and interpreting the standard, and is comprised of producers, distributors, users, and others with an interest in the standard. Committee members voted on the revision, which was approved unanimously. The Committee then submitted a report to NIST along with the voting results and the draft revised standard. NIST has determined that the revised standard should be issued for public comment.

    Voluntary Product Standard PS 2-10 establishes structural criteria for assessing the acceptability of wood-based structural-use panels for construction sheathing and single-floor application and provides a basis for common understanding among the producers, distributors, and the users of these products. After conducting a review of the current standard, PS 2-10, the Standing Committee for PS 2 determined that updates were needed to reflect current industry practices and developed the proposed revision to the standard through meetings to review the standard and propose needed changes.

    The proposed revision includes the following changes: Change of title, editorial corrections, new and revised definitions, updated references, and changes to Section 5 Requirements. A complete list of proposed changes can be found at https://www.nist.gov/standardsgov/voluntary-product-standards-program. All public comments will be reviewed and considered.

    Attachments will be accepted in plain text, Microsoft Word, or Adobe PDF formats. Comments containing references, studies, research, and other empirical data that are not widely published should include copies or electronic links of the referenced materials.

    All submissions, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. NIST reserves the right to publish comments publicly, unedited and in their entirety. Sensitive personal information, such as account numbers or Social Security numbers, or names of other individuals, should not be included. Submissions will not be edited to remove any identifying or contact information. Do not submit confidential business information, or otherwise sensitive or protected information. Comments that contain profanity, vulgarity, threats, or other inappropriate language or content will not be considered.

    Written comments should be submitted in accordance with the DATES and ADDRESSES sections of this notice. The Standing Committee for PS 2 and NIST will consider all responsive comments received and may revise the standard accordingly.

    Authority:

    15 U.S.C. 272.

    Kevin A. Kimball, Chief of Staff.
    [FR Doc. 2018-24713 Filed 11-13-18; 8:45 am] BILLING CODE 3510-13-P
    COMMODITY FUTURES TRADING COMMISSION Agency Information Collection Activities: Notice of Intent To Renew Collection 3038-0043, Rules Relating To Review of National Futures Association Decisions in Disciplinary, Membership Denial, Registration, and Member Responsibility Actions AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Notice.

    SUMMARY:

    The Commodity Futures Trading Commission (“CFTC”) is announcing an opportunity for public comment on the renewal of a collection of certain information by the agency. Under the Paperwork Reduction Act (“PRA”), Federal agencies are required to publish notice in the Federal Register concerning each proposed collection of information, including each proposed extension of an existing collection of information, and to allow 60 days for public comment. This notice solicits comments on rules relating to review of National Futures Association decisions in disciplinary, membership denial, registration, and member responsibility actions.

    DATES:

    Comments must be submitted on or before January 14, 2019.

    ADDRESSES:

    You may submit comments, identified by “OMB Control No. 3038-0043” by any of the following methods:

    • The Agency's website, at http://comments.cftc.gov/. Follow the instructions for submitting comments through the website.

    Mail: Christopher J. Kirkpatrick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581.

    Hand Delivery/Courier: Same as Mail above.

    Please submit your comments using only one method. All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to http://www.cftc.gov.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Chiang, Assistant General Counsel, Office of General Counsel, Commodity Futures Trading Commission, (202) 418-5578; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Under the PRA, 44 U.S.C. 3501 et seq., Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of Information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3 and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), requires Federal agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information before submitting the collection to OMB for approval. To comply with this requirement, the CFTC is publishing notice of the proposed collection of information listed below.

    Title: Rules Relating to Review of National Futures Association Decisions in Disciplinary, Membership Denial, Registration, and Member Responsibility Actions (OMB Control No. 3038-0043). This is a request for extension of a currently approved information collection.

    Abstract: 17 CFR part 171 require a registered futures association to provide fair and orderly procedures for membership and disciplinary actions. The Commission's review of decisions of registered futures associations in disciplinary, membership denial, registration, and member responsibility actions is governed by Section 17(h)(2) of the Commodity Exchange Act, 7 U.S.C. 21(h)(2). The rules establish procedures and standards for Commission review of such actions, and the reporting requirements included in the procedural rules are either directly required by Section 17 of the Commodity Exchange Act or are necessary to the type of appellate review role Congress intended the Commission to undertake when it adopted that provision. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the CFTC's regulations were published on December 30, 1981. See 46 FR 63035 (Dec. 30, 1981).

    With respect to the collection of information, the CFTC invites comments on:

    • Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;

    • The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

    • Ways to enhance the quality, usefulness, and clarity of the information to be collected; and

    • Ways to minimize the burden of 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; e.g., permitting electronic submission of responses.

    All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to http://www.cftc.gov. You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the Commission's regulations.1

    1 17 CFR 145.9.

    The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from http://www.cftc.gov that it may deem to be inappropriate for publication, such as obscene language. All submissions that have been redacted or removed that contain comments on the merits of the ICR will be retained in the public comment file and will be considered as required under the Administrative Procedure Act and other applicable laws, and may be accessible under the Freedom of Information Act.

    Burden Statement: The respondent burden for this collection is estimated to average 1 hour per response. This estimate includes the time needed to transmit decisions of disciplinary, membership denial, registration, and member responsibility actions to the Commission for review. The total estimated burden of 3 hours is determined by the following:

    Respondents/Affected Entities: Individuals or entities filing appeals from disciplinary and membership decisions by National Futures Association.

    Estimated number of respondents per year: 1.

    Estimated number of responses: 3.

    Estimated total annual burden on respondents: 3 hours (1 hour/each response × 3).

    Frequency of collection: On occasion.

    There are no capital costs or operating and maintenance costs associated with this collection.

    (Authority: 44 U.S.C. 3501 et seq.) Dated: November 8, 2018. Robert Sidman, Deputy Secretary of the Commission.
    [FR Doc. 2018-24770 Filed 11-13-18; 8:45 am] BILLING CODE 6351-01-P
    COMMODITY FUTURES TRADING COMMISSION Agency Information Collection Activities: Notice of Intent To Extend Collection 3038-0094; Clearing Member Risk Management AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Notice.

    SUMMARY:

    The Commodity Futures Trading Commission (CFTC) is announcing an opportunity for public comment on the extension of a collection of certain information by the agency. Under the Paperwork Reduction Act (“PRA”), Federal agencies are required to publish notice in the Federal Register concerning each proposed collection of information and to allow 60 days for public comment. This notice solicits comments on the obligation to maintain records related to clearing documentation between the customer and the customer's clearing member.

    DATES:

    Comments must be submitted on or before January 14, 2019.

    ADDRESSES:

    You may submit comments, identified by OMB Control No. 3038-0094, by any of the following methods:

    • The Agency's website, at http://comments.cftc.gov/. Follow the instructions for submitting comments through the website.

    Mail: Christopher Kirkpatrick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581.

    Hand Delivery/Courier: Same as Mail above. Please submit your comments using only one method. All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to http://www.cftc.gov.

    FOR FURTHER INFORMATION CONTACT:

    Jocelyn Partridge, Special Counsel, Division of Clearing and Risk, Commodity Futures Trading Commission, (202) 418-5926; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Under the PRA, 44 U.S.C. 3501 et seq., Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of Information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3 and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), requires Federal agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information before submitting the collection to OMB for approval. To comply with this requirement, the CFTC is publishing notice for the extension of the collection of information listed below. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    Title: Clearing Member Risk Management (OMB Control No. 3038-0094). This is a request for extension of a currently approved information collection.

    Abstract: Section 3(b) of the Commodity Exchange Act (“Act” or “CEA”) provides that one of the purposes of the Act is to ensure the financial integrity of all transactions subject to the Act and to avoid systemic risk. Section 8a(5) authorizes the Commission to promulgate such regulations that it believes are reasonably necessary to effectuate any of the provisions or to accomplish any of the purposes of the Act. Risk management systems are critical to the avoidance of systemic risks.

    Section 4s(j)(2) requires each Swap Dealer (“SD”) and Major Swap Participant (“MSP”) to have risk management systems adequate for managing its business. Section 4s(j)(4) requires each SD and MSP to have internal systems and procedures to perform any of the functions set forth in Section 4s.

    Section 4d requires FCMs to register with the Commodity Futures Trading Commission (“Commission”). It further requires Futures Commission Merchants (“FCMs”) to segregate customer funds. Section 4f requires FCMs to maintain certain levels of capital. Section 4g establishes reporting and recordkeeping requirements for FCMs.

    Pursuant to these provisions, the Commission adopted § 1.73 which applies to clearing members that are FCMs and § 23.609 which applies to clearing members that are SDs or MSPs. These provisions require these clearing members to have procedures to limit the financial risks they incur as a result of clearing trades and liquid resources to meet the obligations that arise. The regulations require clearing members to: (1) Establish credit and market risk-based limits based on position size, order size, margin requirements, or similar factors; (2) use automated means to screen orders for compliance with the risk-based limits; (3) monitor for adherence to the risk-based limits intra-day and overnight; (4) conduct stress tests of all positions in the proprietary account and all positions in any customer account that could pose material risk to the futures commission merchant at least once per week; (5) evaluate its ability to meet initial margin requirements at least once per week; (6) evaluate its ability to meet variation margin requirements in cash at least once per week; (7) evaluate its ability to liquidate the positions it clears in an orderly manner, and estimate the cost of the liquidation at least once per month; and (8) test all lines of credit at least once per quarter.

    Each of these items has been observed by Commission staff as an element of an existing sound risk management program at an SD, MSP, or FCM. The Commission regulations require each clearing member to establish written procedures to comply with this regulation and to keep records documenting its compliance. The information collection obligations imposed by the regulations are necessary to implement certain provisions of the CEA, including ensuring that registrants exercise effective risk management and for the efficient operation of trading venues among SDs, MSPs, and FCMs. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.1

    1 The OMB control numbers for the CFTC's regulations were published on December 30, 1981. See 46 FR 63035 (Dec. 30, 1981).

    With respect to the collection of information, the CFTC invites comments on:

    • Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;

    • The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

    • Ways to enhance the quality, usefulness, and clarity of the information to be collected; and

    • Ways to minimize the burden of 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; e.g., permitting electronic submission of responses.

    You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the Commission's regulations.2

    2 17 CFR 145.9.

    The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from http://www.cftc.gov that it may deem to be inappropriate for publication, such as obscene language. All submissions that have been redacted or removed that contain comments on the merits of the ICR will be retained in the public comment file and will be considered as required under the Administrative Procedure Act and other applicable laws, and may be accessible under the Freedom of Information Act.

    Burden Statement: The respondent burden for this collection is estimated to average 2 hours per response for an estimated annual burden of 504 hours per respondent. This estimate includes the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a federal agency.

    Respondents/Affected Entities: Clearing member Swap Dealers, Major Swap Participants, and Futures Commission Merchants.

    Estimated Number of Respondents: 166 (101 Clearing Member Swap Dealers and 65 Clearing Member Futures Commission Merchants).

    Estimated Average Burden Hours per Respondent: 504.

    Estimated Total Annual Burden Hours: 83,664 hours.

    Frequency of Collection: As needed.

    There are no capital costs or operating and maintenance costs associated with this collection.

    Authority:

    44 U.S.C. 3501 et seq.

    Dated: November 8, 2018. Robert Sidman, Deputy Secretary of the Commission.
    [FR Doc. 2018-24761 Filed 11-13-18; 8:45 am] BILLING CODE 6351-01-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID: DOD-2018-OS-0090] Proposed Collection; Comment Request AGENCY:

    Office of the General Counsel/Defense Legal Services Agency, DoD.

    ACTION:

    Information collection notice.

    SUMMARY:

    In compliance with the Paperwork Reduction Act of 1995, the Department of Defense, Office of the General Counsel/Defense Legal Services Agency announces a proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the agency's estimate of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.

    DATES:

    Consideration will be given to all comments received by January 14, 2019.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

    Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Mail: Department of Defense, Office of the Chief Management Officer, Directorate for Oversight and Compliance, 4800 Mark Center Drive, Mailbox #24, Suite 08D09, Alexandria, VA 22350-1700.

    Instructions: All submissions received must include the agency name, docket number, and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    FOR FURTHER INFORMATION CONTACT:

    To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Department of Defense, Office of the General Counsel/Defense Legal Services Agency, 1600 Defense Pentagon, ATTN: Standard of Conduct Office, Washington, DC, or email: [email protected] Call +1 (703) 571-9446.

    SUPPLEMENTARY INFORMATION:

    Title; Associated Form; and OMB Number: Office of the Secretary of Defense Confidential Conflict-of-Interest Statement for Office of the Secretary of Defense Advisory Committee Members; SD Form 830; OMB Control Number 0704-0551.

    Needs and Uses: The information requested on this for