Federal Register Vol. 83, No.221,

Federal Register Volume 83, Issue 221 (November 15, 2018)

Page Range57307-57670
FR Document

83_FR_221
Current View
Page and SubjectPDF
83 FR 57669 - Veterans Day, 2018PDF
83 FR 57667 - National Apprenticeship Week, 2018PDF
83 FR 57665 - American Education Week, 2018PDF
83 FR 57661 - Addressing Mass Migration Through the Southern Border of the United StatesPDF
83 FR 57507 - Sunshine Act MeetingPDF
83 FR 57511 - Sunshine Act MeetingsPDF
83 FR 57456 - List of Borrowers Who Have Defaulted on Their Health Education Assistance LoansPDF
83 FR 57526 - Request for Comments on Negotiating Objectives for a U.S.-European Union Trade AgreementPDF
83 FR 57319 - Safety Zone; Delaware River; Camden, NJ; Fireworks DisplayPDF
83 FR 57432 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Boost-Back and Landing of Falcon 9 RocketsPDF
83 FR 57476 - Notice of Public Meeting of the Interagency Steering Committee on Radiation Standards (ISCORS)PDF
83 FR 57395 - Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Approval of New Gear Under Small-Mesh Fisheries Accountability MeasuresPDF
83 FR 57333 - Azoxystrobin; Pesticide TolerancesPDF
83 FR 57473 - Draft TSCA Risk Evaluation for Colour Index (C. I.) Pigment Violet 29 (PV29); Notice of AvailabilityPDF
83 FR 57475 - Pesticide Product Registration; Receipt of Applications for New UsesPDF
83 FR 57477 - Product Cancellation Order for Certain Pesticide Registrations and Amendments To Terminate UsesPDF
83 FR 57488 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
83 FR 57485 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
83 FR 57484 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
83 FR 57486 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
83 FR 57387 - Adopting Subpart Ba Requirements in Emission Guidelines for Municipal Solid Waste Landfills; Notice of Public HearingPDF
83 FR 57500 - Endangered and Threatened Species; Receipt of Recovery Permit ApplicationsPDF
83 FR 57490 - Evaluating the Pressor Effects of Drugs; Public WorkshopPDF
83 FR 57408 - Submission for OMB Review; Comment RequestPDF
83 FR 57525 - Notice of Meeting: U.S. Advisory Commission on Public DiplomacyPDF
83 FR 57523 - Notice of Determinations; Culturally Significant Objects Imported for Exhibition-Determinations: “Vija Celmins: To Fix the Image in Memory” ExhibitionPDF
83 FR 57431 - Northeast Regional Stock Assessment Workshop and Stock Assessment Review Committee Public MeetingPDF
83 FR 57506 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
83 FR 57340 - Atlantic Highly Migratory Species; Atlantic Bluefin Tuna FisheriesPDF
83 FR 57490 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
83 FR 57493 - Family Self-Sufficiency Performance Measurement System (“Composite Score”)PDF
83 FR 57424 - Export Trade Certificate of ReviewPDF
83 FR 57389 - Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; 2019 SpecificationsPDF
83 FR 57386 - Expanding Employment, Training, and Apprenticeship Opportunities for 16- and 17-Year-Olds in Health Care Occupations Under the Fair Labor Standards Act, Comment Extension PeriodPDF
83 FR 57411 - Initiation of Antidumping and Countervailing Duty Administrative ReviewsPDF
83 FR 57429 - Certain Steel Threaded Rod From the People's Republic of China: Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2016-2017PDF
83 FR 57419 - Certain Quartz Surface Products From the People's Republic of China: Preliminary Affirmative Determination of Critical Circumstances, in Part, in the Countervailing Duty InvestigationPDF
83 FR 57425 - Diamond Sawblades and Parts Thereof From the People's Republic of China: Preliminary Affirmative Determination of CircumventionPDF
83 FR 57401 - Notice of Solicitation of Applications for Inviting Applications for the Rural Economic Development Loan and Grant Programs for Fiscal Year 2019PDF
83 FR 57408 - Reorganization of Foreign-Trade Zone 283; (Expansion of Service Area) Under Alternative Site Framework; West Tennessee AreaPDF
83 FR 57409 - Reorganization of Foreign-Trade Zone 81 Under Alternative Site Framework; Portsmouth, New HampshirePDF
83 FR 57410 - Reorganization of Foreign-Trade Zone 9 Under Alternative Site Framework; Honolulu, HawaiiPDF
83 FR 57410 - Production Authority Not Approved; Gildan Yarns, LLC; Foreign-Trade Zone 57; (Cotton and Cotton/Polyester Yarns); Salisbury, North CarolinaPDF
83 FR 57409 - Foreign-Trade Zone (FTZ) 230-Greensboro, North Carolina; Notification of Proposed Production Activity; Patheon Softgels; (Pharmaceutical Products); High Point, North CarolinaPDF
83 FR 57410 - Foreign-Trade Zone (FTZ) 41-Milwaukee, Wisconsin; Authorization of Production Activity; CNH Industrial America LLC; (Tractors, Component Parts, and Axle Subassemblies); Sturtevant, WisconsinPDF
83 FR 57482 - Submission for OMB Review; Subcontracting PlansPDF
83 FR 57401 - Notice of Revision of a Currently Approved Information CollectionPDF
83 FR 57509 - Notice of Intent To Seek Approval To Extend an Information CollectionPDF
83 FR 57482 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
83 FR 57453 - Proposed Information Collection; Comment Request; International Billfish Angler SurveyPDF
83 FR 57454 - Proposed Information Collection; Comment Request; Designation of Fishery Management Council Members and Application for Reinstatement of State AuthorityPDF
83 FR 57527 - Results of the 2017/2018 Annual Generalized System of Preferences ReviewPDF
83 FR 57399 - Notice of Intent To Request To Conduct a New Information CollectionPDF
83 FR 57400 - Notice of Intent To Request Revision and Extension of a Currently Approved Information CollectionPDF
83 FR 57510 - New Postal ProductPDF
83 FR 57339 - Snapper-Grouper Fishery of the South Atlantic; 2018 Commercial Closure for Hogfish in the Florida Keys/East Florida Area of the South AtlanticPDF
83 FR 57341 - Fisheries of the Exclusive Economic Zone off Alaska; Shortraker Rockfish in the Central Regulatory Area of the Gulf of AlaskaPDF
83 FR 57508 - Petitions for Modification of Application of Existing Mandatory Safety StandardPDF
83 FR 57509 - Petition for ModificationPDF
83 FR 57511 - Product Change-Priority Mail Negotiated Service AgreementPDF
83 FR 57455 - Notice of Intent To Grant Co-Exclusive LicensePDF
83 FR 57455 - Notice of Public Meetings for the Draft Environmental Impact Statement for the Modernization of the Fallon Range Training Complex, NevadaPDF
83 FR 57517 - Privacy Act of 1974; System of RecordsPDF
83 FR 57491 - First Responders Community of Practice (FRCoP)PDF
83 FR 57492 - Science and Technology Collection of Qualitative FeedbackPDF
83 FR 57523 - Updating the State Department's List of Entities and Subentities Associated With Cuba (Cuba Restricted List)PDF
83 FR 57456 - Notice of Availability of Government-Owned Inventions; Available for LicensingPDF
83 FR 57408 - Agenda and Notice of Public Meeting of the North Dakota Advisory CommitteePDF
83 FR 57321 - Safety Zone; Santa Spectacular, Ohio River, Monongahela River, Allegheny River, Pittsburgh, PAPDF
83 FR 57322 - Safety Zone; The Gut, South Bristol, MEPDF
83 FR 57516 - Meeting of the Advisory Committee on Veterans Business AffairsPDF
83 FR 57517 - Meeting of the Interagency Task Force on Veterans Small Business DevelopmentPDF
83 FR 57517 - Presidential Declaration Amendment of a Major Disaster for the State of South CarolinaPDF
83 FR 57516 - Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of GeorgiaPDF
83 FR 57502 - Agency Information Collection Activities; Navajo Partitioned Lands Grazing PermitsPDF
83 FR 57532 - Notice of OFAC Sanctions ActionsPDF
83 FR 57470 - Notice of Request Under Blanket Authorization Florida Gas Transmission Company, LLCPDF
83 FR 57472 - Notice of Application Ready for Environmental Analysis and Soliciting Comments, Recommendations, Terms and Conditions, and Prescriptions; Goose River Hydro, Inc.PDF
83 FR 57469 - Notice of Availability of Draft Environmental Assessment: California Department of Water ResourcesPDF
83 FR 57471 - Notice of Petition for Declaratory Order; Blue Marmot V LLC, Blue Marmot VI LLC, Blue Marmot VII LLC, Blue Marmot VIII LLC, and Blue Marmot IX LLCPDF
83 FR 57472 - Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization; NTE Southeast Electric Company, LLCPDF
83 FR 57470 - Combined Notice of Filings #1PDF
83 FR 57468 - Combined Notice of FilingsPDF
83 FR 57481 - Radio Broadcasting Services; AM or FM Proposals To Change the Community of LicensePDF
83 FR 57534 - Open Meeting of the Taxpayer Advocacy Panel Notices and Correspondence Project CommitteePDF
83 FR 57502 - Notice of Request for Nominees for the Advisory Committee on Water InformationPDF
83 FR 57505 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Accounts Receivable Confirmations ReportingPDF
83 FR 57407 - Notice of Public Meeting of the Florida Advisory CommitteePDF
83 FR 57528 - Notice of Intent To Rule on Request To Release Airport PropertyPDF
83 FR 57467 - Sabine Pass LNG, L.P.; Notice of ApplicationPDF
83 FR 57513 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Amendments to the F&O Guaranty Fund Policy (the “Policy”), Clearing Rules (the “Rules”) and Finance Procedures (“Finance Procedures”)PDF
83 FR 57421 - Antidumping Duty Investigation of Common Alloy Aluminum Sheet From the People's Republic of China: Affirmative Final Determination of Sales at Less-Than-Fair ValuePDF
83 FR 57511 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the NYSE Arca Equities Fees and Charges To Remove Certain Obsolete Text That References Pillar Phase I ProtocolsPDF
83 FR 57427 - Countervailing Duty Investigation of Common Alloy Aluminum Sheet From the People's Republic of China: Final Affirmative DeterminationPDF
83 FR 57503 - Exxon Valdez Oil Spill Public Advisory Committee; Call for NominationsPDF
83 FR 57504 - Request for Nominations for the Acadia National Park Advisory CommissionPDF
83 FR 57503 - Notice of a Teleconference Meeting of the Made in America Outdoor Recreation Advisory Committee on Friday, November 30, 2018PDF
83 FR 57406 - Rural Broadband Access Loans and Loan Guarantees ProgramPDF
83 FR 57507 - Agency Information Collection Activities: Proposed Collection; Comments RequestedPDF
83 FR 57364 - Airworthiness Directives; Dassault Aviation AirplanesPDF
83 FR 57520 - Privacy Act of 1974; System of RecordsPDF
83 FR 57366 - Security and Suitability FilesPDF
83 FR 57386 - Noncommercial Use of Pre-1972 Sound Recordings That Are Not Being Commercially Exploited: Extension of Comment PeriodPDF
83 FR 57318 - Safety Zone; Columbia River, Cascade Locks, ORPDF
83 FR 57378 - Institutional Review Board Waiver or Alteration of Informed Consent for Minimal Risk Clinical InvestigationsPDF
83 FR 57324 - Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR): Aggregation; ReconsiderationPDF
83 FR 57388 - Pipeline Safety: Guidance on the Extension of the 7-year Integrity Management Reassessment Interval by 6 MonthsPDF
83 FR 57307 - Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Paying BenefitsPDF
83 FR 57368 - Setting the Manner for the Appearance of Parties and Witnesses at a HearingPDF
83 FR 57308 - Democratic Republic of the Congo Sanctions RegulationsPDF
83 FR 57351 - Potential Federal Reserve Actions To Support Interbank Settlement of Faster Payments, Request for CommentsPDF
83 FR 57343 - Rules Regarding Equal OpportunityPDF
83 FR 57592 - Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care ActPDF
83 FR 57536 - Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care ActPDF
83 FR 57634 - Significant New Use Rules on Certain Chemical SubstancesPDF
83 FR 57529 - Notice of OFAC Sanctions ActionsPDF
83 FR 57531 - Notice of OFAC Sanctions ActionPDF

Issue

83 221 Thursday, November 15, 2018 Contents Agency Toxic Agency for Toxic Substances and Disease Registry NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57484-57485 2018-24967 Agriculture Agriculture Department See

National Agricultural Statistics Service

See

Rural Business-Cooperative Service

See

Rural Utilities Service

Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57485-57490 2018-24966 2018-24968 2018-24969 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57490 2018-24951 Civil Rights Civil Rights Commission NOTICES Meetings: Florida Advisory Committee, 57407-57408 2018-24876 North Dakota Advisory Committee, 57408 2018-24901 Coast Guard Coast Guard RULES Safety Zones: Columbia River, Cascade Locks, OR, 57318-57319 2018-24846 Delaware River; Camden, NJ; Fireworks Display, 57319-57321 2018-24978 Santa Spectacular, Ohio River, Monongahela River, Allegheny River, Pittsburgh, PA, 57321-57322 2018-24900 The Gut, South Bristol, ME, 57322-57324 2018-24899 Commerce Commerce Department See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57408 2018-24959
Copyright Office Copyright Office, Library of Congress PROPOSED RULES Noncommercial Use of Pre-1972 Sound Recordings that are Not Being Commercially Exploited, 57386-57387 2018-24848 Defense Department Defense Department See

Navy Department

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Subcontracting Plans, 57482-57483 2018-24931
Education Department Education Department NOTICES List of Borrowers Who have Defaulted on Their Health Education Assistance Loans, 57456-57467 2018-25000 Employee Benefits Employee Benefits Security Administration RULES Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 57592-57631 2018-24514 Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 57536-57590 2018-24512 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Pesticide Tolerances: Azoxystrobin, 57333-57339 2018-24974 Prevention of Significant Deterioration and Nonattainment New Source Review: Aggregation; Reconsideration, 57324-57333 2018-24820 PROPOSED RULES Meetings: Subpart Ba Requirements in Emission Guidelines for Municipal Solid Waste Landfills; Public Hearing, 57387-57388 2018-24964 Significant New Use Rules: Certain Chemical Substances, 57634-57657 2018-24380 NOTICES Draft Toxic Substances Control Act Risk Evaluations: Colour Index Pigment Violet 29, 57473-57475 2018-24972 Meetings: Interagency Steering Committee on Radiation Standards, 57476-57477 2018-24976 Pesticide Product Registrations: New Uses, 57475-57476 2018-24971 Product Cancellation Order for Certain Pesticide Registrations and Amendments to Terminate Uses, 57477-57481 2018-24970 Federal Aviation Federal Aviation Administration PROPOSED RULES Airworthiness Directives: Dassault Aviation Airplanes, 57364-57366 2018-24854 NOTICES Request to Release Airport Property, 57528-57529 2018-24875 Federal Communications Federal Communications Commission NOTICES Radio Broadcasting Services: AM or FM Proposals to Change the Community of License, 57481-57482 2018-24880 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Sabine Pass LNG, L.P., 57467-57468 2018-24872 Combined Filings, 57468-57471 2018-24881 2018-24882 Environmental Assessments; Availability, etc.: California Department of Water Resources, 57469-57470 2018-24885 Hydroelectric Applications: Goose River Hydro, Inc., 57472-57473 2018-24886 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: NTE Southeast Electric Company, LLC, 57472 2018-24883 Petitions for Declaratory Orders: Blue Marmot V LLC, Blue Marmot VI LLC, Blue Marmot VII LLC, et al., 57471-57472 2018-24884 Requests under Blanket Authorizations: Florida Gas Transmission Co., LLC, 57470 2018-24887 Federal Reserve Federal Reserve System PROPOSED RULES Potential Federal Reserve Actions to Support Interbank Settlement of Faster Payments, 57351-57364 2018-24667 Rules Regarding Equal Opportunity, 57343-57351 2018-24613 NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 57482 2018-24926 Fish Fish and Wildlife Service NOTICES Permit Applications: Endangered Species Recovery, 57500-57502 2018-24963 Food and Drug Food and Drug Administration PROPOSED RULES Institutional Review Board Waiver or Alteration of Informed Consent for Minimal Risk Clinical Investigations, 57378-57386 2018-24822 NOTICES Meetings: Evaluating the Pressor Effects of Drugs; Public Workshop, 57490-57491 2018-24961 Foreign Assets Foreign Assets Control Office RULES Democratic Republic of the Congo Sanctions Regulations, 57308-57318 2018-24696 NOTICES Blocking or Unblocking of Persons and Properties, 57529-57534 2018-21979 2018-22881 2018-24889 Foreign Claims Foreign Claims Settlement Commission NOTICES Meetings; Sunshine Act, 57507 2018-25040 Foreign Trade Foreign-Trade Zones Board NOTICES Production Activities: CNH Industrial America LLC, Foreign-Trade Zone 41, Milwaukee, WI, 57410 2018-24932 Disapproval of Gildan Yarns, LLC Foreign-Trade Zone 57, Salisbury, NC, 57410-57411 2018-24934 Patheon Softgels, Foreign-Trade Zone 230, Greensboro, NC, 57409 2018-24933 Reorganization under Alternative Site Framework: Foreign-Trade Zone 283, West Tennessee Area, 57408-57409 2018-24937 Foreign-Trade Zone 81, Portsmouth, NH, 57409-57410 2018-24936 Foreign-Trade Zone 9, Honolulu, Hawaii, 57410 2018-24935 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Subcontracting Plans, 57482-57483 2018-24931 Geological Geological Survey NOTICES Requests for Nominations: Advisory Committee on Water Information, 57502 2018-24878 Health and Human Health and Human Services Department See

Agency for Toxic Substances and Disease Registry

See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

RULES Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 57592-57631 2018-24514 Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 57536-57590 2018-24512
Homeland Homeland Security Department See

Coast Guard

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: First Responders Community of Practice, 57491-57492 2018-24907 Science and Technology Collection of Qualitative Feedback, 57492-57493 2018-24906
Housing Housing and Urban Development Department NOTICES Family Self-Sufficiency Performance Measurement System, 57493-57500 2018-24949 Indian Affairs Indian Affairs Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Navajo Partitioned Lands Grazing Permits, 57502-57503 2018-24890 Interior Interior Department See

Fish and Wildlife Service

See

Geological Survey

See

Indian Affairs Bureau

See

National Park Service

See

Office of Natural Resources Revenue

NOTICES Requests for Nominations: Exxon Valdez Oil Spill Public Advisory Committee, 57503 2018-24866
Internal Revenue Internal Revenue Service RULES Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 57592-57631 2018-24514 Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 57536-57590 2018-24512 NOTICES Meetings: Taxpayer Advocacy Panel Notices and Correspondence Project Committee, 57534 2018-24879 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Quartz Surface Products from the People's Republic of China, 57419-57421 2018-24941 Certain Steel Threaded Rod from the People's Republic of China, 57429-57431 2018-24942 Common Alloy Aluminum Sheet from the People's Republic of China, 57421-57424, 57427-57429 2018-24867 2018-24869 Diamond Sawblades and Parts Thereof from the People's Republic of China, 57425-57427 2018-24939 Initiation of Administrative Reviews, 57411-57419 2018-24943 Export Trade Certificates of Review, 57424-57425 2018-24947 International Trade Com International Trade Commission NOTICES Complaints: Certain Multi-Stage Fuel Vapor Canister Systems and Activated Carbon Components Thereof, 57506-57507 2018-24955 Justice Department Justice Department See

Foreign Claims Settlement Commission

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57507-57508 2018-24857
Labor Department Labor Department See

Employee Benefits Security Administration

See

Mine Safety and Health Administration

See

Wage and Hour Division

Library Library of Congress See

Copyright Office, Library of Congress

Mine Mine Safety and Health Administration NOTICES Petitions for Modification Granted in Whole or in Part; Correction, 57509 2018-24912 Petitions for Modification: Application of Existing Mandatory Safety Standard, 57508-57509 2018-24913 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Subcontracting Plans, 57482-57483 2018-24931 National Agricultural National Agricultural Statistics Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57399-57401 2018-24917 2018-24918 National Oceanic National Oceanic and Atmospheric Administration RULES Atlantic Highly Migratory Species: Atlantic Bluefin Tuna Fisheries, 57340-57341 2018-24954 Fisheries of the Exclusive Economic Zone off Alaska: Shortraker Rockfish in the Central Regulatory Area of the Gulf of Alaska, 57341-57342 2018-24914 Snapper-Grouper Fishery of the South Atlantic: 2018 Commercial Closure for Hogfish in the Florida Keys/East Florida Area of the South Atlantic, 57339-57340 2018-24915 PROPOSED RULES Fisheries of the Northeastern United States: Northeast Multispecies Fishery; Approval of New Gear under Small-Mesh Fisheries Accountability Measures, 57395-57398 2018-24975 Summer Flounder, Scup, and Black Sea Bass Fisheries; 2019 Specifications, 57389-57395 2018-24946 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Designation of Fishery Management Council Members and Application for Reinstatement of State Authority, 57454-57455 2018-24921 International Billfish Angler Survey, 57453-57454 2018-24922 Meetings: Northeast Regional Stock Assessment Workshop and Stock Assessment Review Committee, 57431-57432 2018-24956 Takes of Marine Mammals Incidental to Specified Activities: Boost-Back and Landing of Falcon 9 Rockets, 57432-57453 2018-24977 National Park National Park Service NOTICES Meetings: Made in America Outdoor Recreation Advisory Committee, 57503-57504 2018-24863 Requests for Nominations: Acadia National Park Advisory Commission, 57504 2018-24865 National Science National Science Foundation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57509-57510 2018-24928 Navy Navy Department NOTICES Government-Owned Inventions; Available for Licensing, 57456 2018-24903 Intent to Grant Exclusive Patent License: Sirchie Acquisition Company, LLC, 57455 2018-24910 Meetings: Draft Environmental Impact Statement for the Modernization of the Fallon Range Training Complex, Nevada, 57455-57456 2018-24909 Natural Resources Office of Natural Resources Revenue NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Accounts Receivable Confirmations Reporting, 57505-57506 2018-24877 Pension Benefit Pension Benefit Guaranty Corporation RULES Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Paying Benefits, 57307-57308 2018-24746 Pipeline Pipeline and Hazardous Materials Safety Administration PROPOSED RULES Pipeline Safety: Guidance on the Extension of the 7-year Integrity Management Reassessment Interval by 6 Months, 57388-57389 2018-24774 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 57510-57511 2018-24916 Postal Service Postal Service NOTICES Product Changes: Priority Mail Negotiated Service Agreement, 57511 2018-24911 Presidential Documents Presidential Documents PROCLAMATIONS Southern U.S. Border, Mass Migration Through; Effort To Address (Proc. 9822), 57659-57664 2018-25117 Special Observances: American Education Week (Proc. 9823), 57665-57666 2018-25122 National Apprenticeship Week (Proc. 9824), 57667-57668 2018-25126 Veterans Day (Proc. 9825), 57669-57670 2018-25127 Rural Business Rural Business-Cooperative Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57401 2018-24929 Requests for Applications: Rural Economic Development Loan and Grant Programs for Fiscal Year 2019, 57401-57406 2018-24938 Rural Utilities Rural Utilities Service NOTICES Rural Broadband Access Loans and Loan Guarantees Program, 57406-57407 2018-24860 Securities Securities and Exchange Commission NOTICES Meetings; Sunshine Act, 57511 2018-25021 Self-Regulatory Organizations; Proposed Rule Changes: ICE Clear Europe Ltd., 57513-57516 2018-24870 NYSE Arca, Inc., 57511-57513 2018-24868 Small Business Small Business Administration NOTICES Major Disaster Declarations: Georgia; Public Assistance Only; Amendment 2, 57516 2018-24891 South Carolina; Amendment 5, 57517 2018-24892 Meetings: Advisory Committee on Veterans Business Affairs, 57516-57517 2018-24896 Interagency Task Force on Veterans Small Business Development, 57517 2018-24893 Social Social Security Administration PROPOSED RULES Security and Suitability Files, 57366-57368 2018-24851 Setting the Manner for the Appearance of Parties and Witnesses at a Hearing, 57368-57378 2018-24711 NOTICES Privacy Act; System of Records, 57517-57523 2018-24853 2018-24908 State Department State Department NOTICES Culturally Significant Objects Imported for Exhibition: Vija Celmins: To Fix the Image in Memory, 57523 2018-24957 Meetings: U.S. Advisory Commission on Public Diplomacy, 57525-57526 2018-24958 Updating the State Department's List of Entities and Subentities Associated with Cuba, 57523-57525 2018-24904 Trade Representative Trade Representative, Office of United States NOTICES Negotiating Objectives for a U.S.-European Union Trade Agreement, 57526-57527 2018-24979 Results of the 2017/2018 Annual Generalized System of Preferences Review, 57527-57528 2018-24919 Transportation Department Transportation Department See

Federal Aviation Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department See

Foreign Assets Control Office

See

Internal Revenue Service

Wage Wage and Hour Division PROPOSED RULES Expanding Employment, Training, and Apprenticeship Opportunities for 16- and 17-Year-Olds in Health Care Occupations Under the Fair Labor Standards Act, Comment Extension Period, 57386 2018-24945 Separate Parts In This Issue Part II Health and Human Services Department, 57536-57590 2018-24512 Labor Department, Employee Benefits Security Administration, 57536-57590 2018-24512 Treasury Department, Internal Revenue Service, 57536-57590 2018-24512 Part III Health and Human Services Department, 57592-57631 2018-24514 Labor Department, Employee Benefits Security Administration, 57592-57631 2018-24514 Treasury Department, Internal Revenue Service, 57592-57631 2018-24514 Part IV Environmental Protection Agency, 57634-57657 2018-24380 Part V Presidential Documents, 57659-57670 2018-25117 2018-25122 2018-25126 2018-25127 Reader Aids

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

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

83 221 Thursday, November 15, 2018 Rules and Regulations PENSION BENEFIT GUARANTY CORPORATION 29 CFR Part 4022 Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Paying Benefits AGENCY:

Pension Benefit Guaranty Corporation.

ACTION:

Final rule.

SUMMARY:

This final rule amends the Pension Benefit Guaranty Corporation's regulation on Benefits Payable in Terminated Single-Employer Plans to prescribe interest assumptions under the regulation for valuation dates in December 2018. The interest assumptions are used for paying benefits under terminating single-employer plans covered by the pension insurance system administered by PBGC.

DATES:

Effective December 1, 2018.

FOR FURTHER INFORMATION CONTACT:

Melissa Rifkin ([email protected]), Attorney, Regulatory Affairs Division, Pension Benefit Guaranty Corporation, 1200 K Street NW, Washington, DC 20005, 202-326-4400 ext. 6563. (TTY users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4400, ext. 6563.)

SUPPLEMENTARY INFORMATION:

PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribes actuarial assumptions—including interest assumptions—for paying plan benefits under terminated single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulation are also published on PBGC's website (http://www.pbgc.gov).

PBGC uses the interest assumptions in appendix B to part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in appendices B and C of the benefit payment regulation are the same.

The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for December 2018.1

1 Appendix B to PBGC's regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) prescribes interest assumptions for valuing benefits under terminating covered single-employer plans for purposes of allocation of assets under ERISA section 4044. Those assumptions are updated quarterly.

The December 2018 interest assumptions under the benefit payments regulation will be 1.50 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for November 2018, these assumptions represent an increase of 0.25% in the immediate rate and are otherwise unchanged.

PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.

Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during December 2018, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

List of Subjects in 29 CFR Part 4022

Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.

In consideration of the foregoing, 29 CFR part 4022 is amended as follows:

PART 4022—BENEFITS PAYABLE IN TERMINATED SINGLE-EMPLOYER PLANS 1. The authority citation for part 4022 continues to read as follows: Authority:

29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.

2. In appendix B to part 4022, Rate Set 302 is added at the end of the table to read as follows: Appendix B to Part 4022—Lump Sum Interest Rates for PBGC Payments Rate set For plans with a valuation
  • date
  • On or after Before Immediate annuity rate
  • (percent)
  • Deferred annuities
  • (percent)
  • i 1 i 2 i 3 n 1 n 2
    *         *         *         *         *         *         * 302 12-1-18 1-1-19 1.50 4.00 4.00 4.00 7 8
    3. In appendix C to part 4022, Rate Set 302 is added at the end of the table to read as follows: Appendix C to Part 4022—Lump Sum Interest Rates for Private-Sector Payments Rate set For plans with a valuation date On or after Before Immediate annuity rate (percent) Deferred annuities
  • (percent)
  • i 1 i 2 i 3 n 1 n 2
    *         *         *         *         *         *         * 302 12-1-18 1-1-19 1.50 4.00 4.00 4.00 7 8

    Issued in Washington, DC.

    Hilary Duke, Assistant General Counsel for Regulatory Affairs, Pension Benefit Guaranty Corporation.
    [FR Doc. 2018-24746 Filed 11-14-18; 8:45 am] BILLING CODE 7709-02-P
    DEPARTMENT OF THE TREASURY Office of Foreign Assets Control 31 CFR Part 547 Democratic Republic of the Congo Sanctions Regulations AGENCY:

    Office of Foreign Assets Control, Treasury.

    ACTION:

    Final rule.

    SUMMARY:

    The Department of the Treasury's Office of Foreign Assets Control (OFAC) is adopting a final rule amending the Democratic Republic of the Congo Sanctions Regulations to implement Executive Order 13671 of July 8, 2014 (“Taking Additional Steps to Address the National Emergency With Respect to the Conflict in the Democratic Republic of the Congo”). This rule also incorporates other technical and conforming changes.

    DATES:

    Effective: November 15, 2018.

    FOR FURTHER INFORMATION CONTACT:

    The Department of the Treasury's Office of Foreign Assets Control: Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel: 202-622-4855; Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; or the Department of the Treasury's Office of the Chief Counsel (Foreign Assets Control), Office of the General Counsel, tel.: 202-622-2410.

    SUPPLEMENTARY INFORMATION:

    Electronic Availability

    This document and additional information concerning OFAC are available from OFAC's website (www.treasury.gov/ofac).

    Background

    On May 28, 2009, OFAC issued the Democratic Republic of the Congo Sanctions Regulations, 31 CFR part 547 (the “Regulations”) (74 FR 25439, May 28, 2009) to implement Executive Order 13413 of October 27, 2006 (71 FR 64105, October 31, 2006) (E.O. 13413).

    Executive Order 13671

    On July 8, 2014, the President, invoking the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701-1706) (IEEPA) and section 5 of the United Nations Participation Act (22 U.S.C. 287c) (UNPA), issued Executive Order 13671 (79 FR 39949, July 10, 2014) (E.O. 13671). In E.O. 13671, the President amended E.O. 13413 to take additional steps to deal with the national emergency with respect to the situation in or in relation to the Democratic Republic of the Congo declared in E.O. 13413, in view of multiple United Nations Security Council Resolutions, including Resolution 2136 of January 30, 2014, and in light of the continuation of activities that threaten the peace, security, or stability of the Democratic Republic of the Congo and the surrounding region, including operations by armed groups, widespread violence and atrocities, human rights abuses, recruitment and use of child soldiers, attacks on peacekeepers, obstruction of humanitarian operations, and exploitation of natural resources to finance persons engaged in these activities.

    E.O. 13671 amends several sections of E.O. 13413 but does not amend the Annex to E.O. 13413 as originally issued. Section 1 of E.O. 13671 amends E.O. 13413 by replacing subsection 1(a) of E.O. 13413 in its entirety. New subsection 1(a) of E.O. 13413 as amended by E.O. 13671 (“amended E.O. 13413”) 1 blocks all property and interests in property that are in the United States, that come within the United States, or that are or come within the possession or control of any U.S. person, of: (i) The persons listed in the Annex to amended E.O. 13413; and (ii) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State:

    1 For the purposes of this subsection, the term “amended E.O. 13413” refers to E.O. 13413 as amended by E.O. 13671. Because E.O. 13671 did not amend the Annex, the term “Annex to amended E.O. 13413” refers to the Annex as originally issued to E.O. 13413.

    (A) To be a political or military leader of a foreign armed group operating in the Democratic Republic of the Congo that impedes the disarmament, demobilization, voluntary repatriation, resettlement, or reintegration of combatants;

    (B) to be a political or military leader of a Congolese armed group that impedes the disarmament, demobilization, voluntary repatriation, resettlement, or reintegration of combatants;

    (C) to be responsible for or complicit in, or to have engaged in, directly or indirectly, any of the following in or in relation to the Democratic Republic of the Congo: (1) Actions or policies that threaten the peace, security, or stability of the Democratic Republic of the Congo; (2) actions or policies that undermine democratic processes or institutions in the Democratic Republic of the Congo; (3) the targeting of women, children, or any civilians through the commission of acts of violence (including killing, maiming, torture, or rape or other sexual violence), abduction, forced displacement, or attacks on schools, hospitals, religious sites, or locations where civilians are seeking refuge, or through conduct that would constitute a serious abuse or violation of human rights or a violation of international humanitarian law; (4) the use or recruitment of children by armed groups or armed forces in the context of the conflict in the Democratic Republic of the Congo; (5) the obstruction of the delivery or distribution of, or access to, humanitarian assistance; (6) attacks against United Nations missions, international security presences, or other peacekeeping operations; or (7) support to persons, including armed groups, involved in activities that threaten the peace, security, or stability of the Democratic Republic of the Congo or that undermine democratic processes or institutions in the Democratic Republic of the Congo, through the illicit trade in natural resources of the Democratic Republic of the Congo;

    (D) except where intended for the authorized support of humanitarian activities or the authorized use by or support of peacekeeping, international, or government forces, to have directly or indirectly supplied, sold, or transferred to the Democratic Republic of the Congo, or been the recipient in the territory of the Democratic Republic of the Congo, of arms and related materiel, including military aircraft and equipment, or advice, training, or assistance, including financing and financial assistance, related to military activities;

    (E) to be a leader of (i) an entity, including any armed group, that has, or whose members have, engaged in any of the activities described in paragraphs (A) through (D) above or (ii) an entity whose property and interests in property are blocked pursuant to amended E.O. 13413;

    (F) to have materially assisted, sponsored, or provided financial, material, logistical, or technological support for, or goods or services in support of: (i) Any of the activities described in (A) through (D) above; or (ii) any person whose property and interests in property are blocked pursuant to amended E.O. 13413; or

    (G) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to amended E.O. 13413.

    The property and interests in property of the persons described above may not be transferred, paid, exported, withdrawn, or otherwise dealt in.

    Section 2 of E.O. 13671 adds new subsection (d) to section 1 of E.O. 13413. This new subsection provides that the prohibitions in subsection 1(a) of amended E.O. 13413 apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to amended E.O. 13413, and notwithstanding any contract entered into or any license or permit granted prior to the effective date of the order.

    Section 3 of E.O. 13671 amends section 2 of E.O. 13413 by adding a prohibition. Section 2 of E.O. 13413 prohibited any transaction by a U.S. person or within the United States that evades or avoids, has the purpose of evading or avoiding, or attempts to violate any of the prohibitions set forth in E.O. 13413, as well as any conspiracy formed to violate such prohibitions. Section 3 of E.O. 13671 adds a prohibition on causing a violation of any prohibitions set forth in amended E.O. 13413 to the existing prohibitions.

    Section 4 of E.O. 13671 authorizes the Secretary of the Treasury, in consultation with the Secretary of State, to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by IEEPA and the UNPA as may be necessary to carry out the purposes of E.O. 13671 and amended E.O. 13413. Section 4 of E.O. 13671 also provides that the Secretary of the Treasury may redelegate any of these functions to other officers and agencies of the U.S. government.

    Current Regulatory Action

    This rule amends the Regulations to implement the relevant provisions of E.O. 13671, as well as to update certain provisions and to make other technical and conforming changes. OFAC is revising and republishing in its entirety subpart B of the Regulations, which sets forth the prohibitions contained in sections 1 and 2 of amended E.O. 13413. See, e.g., §§ 547.201 and 547.205. In particular, OFAC is revising § 547.201 of subpart B to incorporate the new designation criteria provided for in E.O. 13671. OFAC is also adding § 547.206 to subpart B to clarify which transactions are exempt from the prohibitions in this part.

    This rule also amends several sections in subpart C, which defines key terms used throughout the Regulations. New § 547.300 is being added to clarify that the definitions contained in subpart C apply throughout the entire part, and §§ 547.314 and 547.315 are being added to define key terms used in the Regulations. Also, certain existing definitions in subpart C are being updated or revised to take account of new provisions and to provide greater clarity with respect to the terms being used.

    This rule also revises and republishes in its entirety subpart D, which contains interpretive sections regarding the Regulations. Section 547.411 of subpart D is being amended to clarify that the property and interests in property of an entity are blocked if the entity is directly or indirectly owned, whether individually or in the aggregate, 50 percent or more by one or more persons whose property and interests in property are blocked, whether or not the entity itself is listed in or designated pursuant to amended E.O. 13413 or incorporated into OFAC's Specially Designated Nationals and Blocked Persons List (SDN List). Other sections within subpart D are being amended to reflect current OFAC interpretations.

    Transactions otherwise prohibited by the Regulations but found to be consistent with U.S. policy may be authorized by one of the general licenses contained in subpart E of the Regulations or by a specific license issued pursuant to the procedures described in subpart E of 31 CFR part 501. This rule also amends subpart E of the Regulations. In particular, a general license is being added in § 547.508, authorizing payments from outside the United States for the provision of legal services authorized in § 547.507. The general license authorizing certain emergency medical services that was formerly at § 547.508 has been moved to § 547.509 and updated to reflect current licensing policies. Updates to reflect current licensing policies have also been made to several other general licenses. General licenses and statements of licensing policy relating to this part also may be available through the Democratic Republic of the Congo sanctions page on OFAC's website: www.treasury.gov/ofac.

    This rule revises subpart G of the Regulations and republishes it in its entirety. Subpart G of the Regulations describes the civil and criminal penalties applicable to violations of the Regulations, as well as the procedures governing the potential imposition of a civil monetary penalty or issuance of a Finding of Violation. Subpart G also refers to appendix A of part 501 for a more complete description of these procedures. Finally, this rule updates the delegation of authority by the Secretary of the Treasury in subpart H of the Regulations.

    Public Participation

    Because the Regulations involve a foreign affairs function, the provisions of Executive Order 12866 and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date, as well as the provisions of Executive Order 13771 are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

    Paperwork Reduction Act

    The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

    List of Subjects in 31 CFR Part 547

    Administrative practice and procedure, Banks, Banking, Blocking of assets, Credit, Democratic Republic of the Congo, Foreign trade, Penalties, Reporting and recordkeeping requirements, Securities, Services.

    For the reasons set forth in the preamble, the Department of the Treasury's Office of Foreign Assets Control amends 31 CFR part 547 as follows:

    PART 547—DEMOCRATIC REPUBLIC OF THE CONGO SANCTIONS REGULATIONS 1. Revise the authority citation for part 547 to read as follows: Authority:

    3 U.S.C. 301; 31 U.S.C. 321(b); 50 U.S.C. 1601-1651, 1701-1706; 22 U.S.C. 287c; Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 110-96, 121 Stat. 1011 (50 U.S.C. 1705 note); E.O. 13413, 71 FR 64105, 3 CFR, 2006 Comp., p. 247; E.O. 13671, 79 FR 39949, 3 CFR, 2015 Comp., p. 280.

    2. Revise subpart B to read as follows: Subpart B—Prohibitions Sec. 547.201 Prohibited transactions involving blocked property. 547.202 Effect of transfers violating the provisions of this part. 547.203 Holding of funds in interest-bearing accounts; investment and reinvestment. 547.204 Expenses of maintaining blocked tangible property; liquidation of blocked property. 547.205 Evasions; attempts; causing violations; conspiracies. 547.206 Exempt transactions.
    § 547.201 Prohibited transactions involving blocked property.

    (a) All property and interests in property that are in the United States, that come within the United States, or that are or come within the possession or control of any U.S. person of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in:

    (1) The persons listed in the Annex to Executive Order 13413 of October 27, 2006; and

    (2) Any person determined by the Secretary of the Treasury, in consultation with the Secretary of State:

    (i) To be a political or military leader of a foreign armed group operating in the Democratic Republic of the Congo that impedes the disarmament, demobilization, voluntary repatriation, resettlement, or reintegration of combatants;

    (ii) To be a political or military leader of a Congolese armed group that impedes the disarmament, demobilization, voluntary repatriation, resettlement, or reintegration of combatants;

    (iii) To be responsible for or complicit in, or to have engaged in, directly or indirectly, any of the following in or in relation to the Democratic Republic of the Congo:

    (A) Actions or policies that threaten the peace, security, or stability of the Democratic Republic of the Congo;

    (B) Actions or policies that undermine democratic processes or institutions in the Democratic Republic of the Congo;

    (C) The targeting of women, children, or any civilians through the commission of acts of violence (including killing, maiming, torture, or rape or other sexual violence), abduction, forced displacement, or attacks on schools, hospitals, religious sites, or locations where civilians are seeking refuge, or through conduct that would constitute a serious abuse or violation of human rights or a violation of international humanitarian law;

    (D) The use or recruitment of children by armed groups or armed forces in the context of the conflict in the Democratic Republic of the Congo;

    (E) The obstruction of the delivery or distribution of, or access to, humanitarian assistance;

    (F) Attacks against United Nations missions, international security presences, or other peacekeeping operations; or

    (G) Support to persons, including armed groups, involved in activities that threaten the peace, security, or stability of the Democratic Republic of the Congo or that undermine democratic processes or institutions in the Democratic Republic of the Congo, through the illicit trade in natural resources of the Democratic Republic of the Congo;

    (iv) Except where intended for the authorized support of humanitarian activities or the authorized use by or support of peacekeeping, international, or government forces, to have directly or indirectly supplied, sold, or transferred to the Democratic Republic of the Congo, or been the recipient in the territory of the Democratic Republic of the Congo of, arms and related materiel, including military aircraft and equipment, or advice, training, or assistance, including financing and financial assistance, related to military activities;

    (v) To be a leader of:

    (A) An entity, including any armed group, that has, or whose members have, engaged in any of the activities described in paragraphs (a)(2)(i) through (iv) of this section; or

    (B) An entity whose property and interests in property are blocked pursuant to paragraph (a) of this section;

    (vi) To have materially assisted, sponsored, or provided financial, material, logistical, or technological support for, or goods or services in support of any of the activities described in paragraphs (a)(2)(i) through (iv) of this section or any person whose property and interests in property are blocked pursuant to paragraph (a) of this section; or

    (vii) To be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to paragraph (a) of this section.

    Note 1 to paragraph (a):

    The names of persons listed in or designated pursuant to Executive Order 13413, both as originally issued and as amended by Executive Order 13671, whose property and interests in property therefore are blocked pursuant to paragraph (a) of this section, are published in the Federal Register and incorporated into OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) with the identifier “[DRCONGO].” The SDN List is accessible through the following page on OFAC's website: www.treasury.gov/sdn. Additional information pertaining to the SDN List can be found in appendix A to this chapter. See § 547.411 concerning entities that may not be listed on the SDN List but whose property and interests in property are nevertheless blocked pursuant to paragraph (a) of this section.

    Note 2 to paragraph (a):

    The International Emergency Economic Powers Act (50 U.S.C. 1701-1706), in Section 203 (50 U.S.C. 1702), authorizes the blocking of property and interests in property of a person during the pendency of an investigation. The names of persons whose property and interests in property are blocked pending investigation pursuant to paragraph (a) of this section also are published in the Federal Register and incorporated into the SDN List with the identifier “[BPI-DRCONGO].”

    Note 3 to paragraph (a):

    Sections 501.806 and 501.807 of this chapter describe the procedures to be followed by persons seeking, respectively, the unblocking of funds that they believe were blocked due to mistaken identity, and administrative reconsideration of their status as persons whose property and interests in property are blocked pursuant to paragraph (a) of this section.

    (b) The prohibitions in paragraph (a) of this section include prohibitions on the following transactions:

    (1) The making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to paragraph (a) of this section; and

    (2) The receipt of any contribution or provision of funds, goods, or services from any person whose property and interests in property are blocked pursuant to paragraph (a) of this section.

    (c) Unless authorized by this part or by a specific license expressly referring to this part, any dealing in securities (or evidence thereof) held within the possession or control of a U.S. person and either registered or inscribed in the name of, or known to be held for the benefit of, or issued by, any person whose property and interests in property are blocked pursuant to paragraph (a) of this section is prohibited. This prohibition includes the transfer (including the transfer on the books of any issuer or agent thereof), disposition, transportation, importation, exportation, or withdrawal of, or the endorsement or guaranty of signatures on, any securities on or after the effective date. This prohibition applies irrespective of the fact that at any time (whether prior to, on, or subsequent to the effective date) the registered or inscribed owner of any such securities may have or might appear to have assigned, transferred, or otherwise disposed of the securities.

    (d) The prohibitions in paragraph (a) of this section apply except to the extent provided by regulations, orders, directives, or licenses that may be issued pursuant to this part, and notwithstanding any contract entered into or any license or permit granted prior to the effective date.

    § 547.202 Effect of transfers violating the provisions of this part.

    (a) Any transfer after the effective date that is in violation of any provision of this part or of any regulation, order, directive, ruling, instruction, or license issued pursuant to this part, and that involves any property or interest in property blocked pursuant to § 547.201(a), is null and void and shall not be the basis for the assertion or recognition of any interest in or right, remedy, power, or privilege with respect to such property or interests in property.

    (b) No transfer before the effective date shall be the basis for the assertion or recognition of any right, remedy, power, or privilege with respect to, or any interest in, any property or interests in property blocked pursuant to § 547.201(a), unless the person who holds or maintains such property, prior to that date, had written notice of the transfer or by any written evidence had recognized such transfer.

    (c) Unless otherwise provided, a license or other authorization issued by OFAC before, during, or after a transfer shall validate such transfer or make it enforceable to the same extent that it would be valid or enforceable but for the provisions of this part and any regulation, order, directive, ruling, instruction, or license issued pursuant to this part.

    (d) Transfers of property that otherwise would be null and void or unenforceable by virtue of the provisions of this section shall not be deemed to be null and void or unenforceable as to any person with whom such property is or was held or maintained (and as to such person only) in cases in which such person is able to establish to the satisfaction of OFAC each of the following:

    (1) Such transfer did not represent a willful violation of the provisions of this part by the person with whom such property is or was held or maintained (and as to such person only);

    (2) The person with whom such property is or was held or maintained did not have reasonable cause to know or suspect, in view of all the facts and circumstances known or available to such person, that such transfer required a license or authorization issued pursuant to this part and was not so licensed or authorized, or, if a license or authorization did purport to cover the transfer, that such license or authorization had been obtained by misrepresentation of a third party or withholding of material facts or was otherwise fraudulently obtained; and

    (3) The person with whom such property is or was held or maintained filed with OFAC a report setting forth in full the circumstances relating to such transfer promptly upon discovery that:

    (i) Such transfer was in violation of the provisions of this part or any regulation, ruling, instruction, license, or other directive or authorization issued pursuant to this part;

    (ii) Such transfer was not licensed or authorized by OFAC; or

    (iii) If a license did purport to cover the transfer, such license had been obtained by misrepresentation of a third party or withholding of material facts or was otherwise fraudulently obtained.

    Note 1 to paragraph (d):

    The filing of a report in accordance with the provisions of paragraph (d)(3) of this section shall not be deemed evidence that the terms of paragraphs (d)(1) and (2) of this section have been satisfied.

    (e) Unless licensed pursuant to this part, any attachment, judgment, decree, lien, execution, garnishment, or other judicial process is null and void with respect to any property and interests in property blocked pursuant to § 547.201(a).

    § 547.203 Holding of funds in interest-bearing accounts; investment and reinvestment.

    (a) Except as provided in paragraph (e) or (f) of this section, or as otherwise directed or authorized by OFAC, any U.S. person holding funds, such as currency, bank deposits, or liquidated financial obligations, subject to § 547.201(a) shall hold or place such funds in a blocked interest-bearing account located in the United States.

    (b)(1) For purposes of this section, the term blocked interest-bearing account means a blocked account:

    (i) In a federally-insured U.S. bank, thrift institution, or credit union, provided the funds are earning interest at rates that are commercially reasonable; or

    (ii) With a broker or dealer registered with the Securities and Exchange Commission under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), provided the funds are invested in a money market fund or in U.S. Treasury bills.

    (2) Funds held or placed in a blocked account pursuant to paragraph (a) of this section may not be invested in instruments the maturity of which exceeds 180 days.

    (c) For purposes of this section, a rate is commercially reasonable if it is the rate currently offered to other depositors on deposits or instruments of comparable size and maturity.

    (d) For purposes of this section, if interest is credited to a separate blocked account or subaccount, the name of the account party on each account must be the same.

    (e) Blocked funds held in instruments the maturity of which exceeds 180 days at the time the funds become subject to § 547.201(a) may continue to be held until maturity in the original instrument, provided any interest, earnings, or other proceeds derived therefrom are paid into a blocked interest-bearing account in accordance with paragraph (a) or (f) of this section.

    (f) Blocked funds held in accounts or instruments outside the United States at the time the funds become subject to § 547.201(a) may continue to be held in the same type of accounts or instruments, provided the funds earn interest at rates that are commercially reasonable.

    (g) This section does not create an affirmative obligation for the holder of blocked tangible property, such as real or personal property, or of other blocked property, such as debt or equity securities, to sell or liquidate such property. However, OFAC may issue licenses permitting or directing such sales or liquidation in appropriate cases.

    (h) Funds subject to this section may not be held, invested, or reinvested in a manner that provides immediate financial or economic benefit or access to any person whose property and interests in property are blocked pursuant to § 547.201(a), nor may their holder cooperate in or facilitate the pledging or other attempted use as collateral of blocked funds or other assets.

    § 547.204 Expenses of maintaining blocked tangible property; liquidation of blocked property.

    (a) Except as otherwise authorized, and notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or contract entered into or any license or permit granted prior to the effective date, all expenses incident to the maintenance of tangible property blocked pursuant to § 547.201(a) shall be the responsibility of the owners or operators of such property, which expenses shall not be met from blocked funds.

    (b) Property blocked pursuant to § 547.201(a) may, in the discretion of OFAC, be sold or liquidated and the net proceeds placed in a blocked interest-bearing account in the name of the owner of the property.

    § 547.205 Evasions; attempts; causing violations; conspiracies.

    (a) Any transaction on or after the effective date that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in this part is prohibited.

    (b) Any conspiracy formed to violate the prohibitions set forth in this part is prohibited.

    § 547.206 Exempt transactions.

    (a) United Nations Participation Act. The exemptions described in this section do not apply to transactions involving property or interests in property of persons whose property and interests in property are blocked pursuant to the authority of the United Nations Participation Act, as amended (22 U.S.C. 287c(b)) (UNPA).

    Note 1 to paragraph (a):

    Persons whose property and interests in property are blocked pursuant to the authority of the UNPA include those listed on both OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) and the Consolidated United Nations Security Council Sanctions List (UN List) (see https://www.un.org) as well as persons listed on the SDN List for being owned or controlled by, or acting for or on behalf of, persons listed on both the SDN List and the UN List.

    (b) Personal communications. The prohibitions contained in this part do not apply to any postal, telegraphic, telephonic, or other personal communication that does not involve the transfer of anything of value.

    (c) Information or informational materials. (1) The prohibitions contained in this part do not apply to the importation from any country and the exportation to any country of any information or informational materials, as defined in § 547.314, whether commercial or otherwise, regardless of format or medium of transmission.

    (2) This section does not exempt from regulation transactions related to information or informational materials not fully created and in existence at the date of the transactions, or to the substantive or artistic alteration or enhancement of information or informational materials, or to the provision of marketing and business consulting services. Such prohibited transactions include payment of advances for information or informational materials not yet created and completed (with the exception of prepaid subscriptions for widely circulated magazines and other periodical publications); provision of services to market, produce or co-produce, create, or assist in the creation of information or informational materials; and payment of royalties with respect to income received for enhancements or alterations made by U.S. persons to such information or informational materials.

    (3) This section does not exempt transactions incident to the exportation of software subject to the Export Administration Regulations, 15 CFR parts 730 through 774, or to the exportation of goods (including software) or technology for use in the transmission of any data, or to the provision, sale, or leasing of capacity on telecommunications transmission facilities (such as satellite or terrestrial network connectivity) for use in the transmission of any data. The exportation of such items or services and the provision, sale, or leasing of such capacity or facilities to a person whose property and interests in property are blocked pursuant to § 547.201(a) are prohibited.

    (d) Travel. The prohibitions contained in this part do not apply to transactions ordinarily incident to travel to or from any country, including importation or exportation of accompanied baggage for personal use, maintenance within any country including payment of living expenses and acquisition of goods or services for personal use, and arrangement or facilitation of such travel including nonscheduled air, sea, or land voyages.

    Subpart C—General Definitions 3. Add § 547.300 to read as follows:
    § 547.300 Applicability of definitions.

    The definitions in this subpart apply throughout the entire part.

    § 547.301 [Amended]
    4. In the heading and introductory text of § 547.301, remove “or any” and add in its place “and”. 5. Revise § 547.302 to read as follows:
    § 547.302 Blocked account; blocked property.

    The terms blocked account and blocked property shall mean any account or property subject to the prohibitions in § 547.201 held in the name of a person whose property and interests in property are blocked pursuant to § 547.201(a), or in which such person has an interest, and with respect to which payments, transfers, exportations, withdrawals, or other dealings may not be made or effected except pursuant to a license or other authorization from OFAC expressly authorizing such action.

    Note 1 to § 547.302:

    See § 547.411 concerning the blocked status of property and interests in property of an entity that is directly or indirectly owned, whether individually or in the aggregate, 50 percent or more by one or more persons whose property and interests in property are blocked pursuant to § 547.201(a).

    6. Revise § 547.303 to read as follows:
    § 547.303 Effective date.

    (a) The term effective date refers to the effective date of the applicable prohibitions and directives contained in this part as follows:

    (1) With respect to a person whose property and interests in property are blocked pursuant to § 547.201(a)(1), 12:01 a.m. eastern standard time on October 30, 2006; and

    (2) With respect to a person whose property and interests in property are otherwise blocked pursuant to § 547.201(a), the earlier of the date of actual or constructive notice that such person's property and interests in property are blocked.

    (b) For the purposes of this section, constructive notice is the date that a notice of the blocking of the relevant person's property and interests in property is published in the Federal Register.

    7. Revise § 547.306 to read as follows:
    § 547.306 Licenses; general and specific.

    (a) Except as otherwise provided in this part, the term license means any license or authorization contained in or issued pursuant to this part.

    (b) The term general license means any license or authorization the terms of which are set forth in subpart E of this part or made available on OFAC's website: www.treasury.gov/ofac.

    (c) The term specific license means any license or authorization issued pursuant to this part, but not set forth in subpart E of this part or made available on OFAC's website: www.treasury.gov/ofac.

    Note 1 to § 547.306:

    See § 501.801 of this chapter on licensing procedures.

    8. Revise § 547.311 to read as follows:
    § 547.311 U.S. financial institution.

    The term U.S. financial institution means any U.S. entity (including its foreign branches) that is engaged in the business of accepting deposits, making, granting, transferring, holding, or brokering loans or other extensions of credit, or purchasing or selling foreign exchange, securities, commodity futures or options, or procuring purchasers and sellers thereof, as principal or agent. It includes depository institutions, banks, savings banks, trust companies, securities brokers and dealers, futures and options brokers and dealers, forward contract and foreign exchange merchants, securities and commodities exchanges, clearing corporations, investment companies, employee benefit plans, and U.S. holding companies, U.S. affiliates, or U.S. subsidiaries of any of the foregoing. This term includes those branches, offices, and agencies of foreign financial institutions that are located in the United States, but not such institutions' foreign branches, offices, or agencies.

    9. Revise § 547.313 to read as follows:
    § 547.313 Financial, material, logistical, or technological support.

    The term financial, material, logistical, or technological support, as used in § 547.201(a)(2)(vi), means any property, tangible or intangible, including currency, financial instruments, securities, or any other transmission of value; weapons or related materiel; chemical or biological agents; explosives; false documentation or identification; communications equipment; computers; electronic or other devices or equipment; technologies; lodging; safe houses; facilities; vehicles or other means of transportation; or goods. “Technologies” as used in this definition means specific information necessary for the development, production, or use of a product, including related technical data such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals, or other recorded instructions.

    10. Add § 547.314 to read as follows:
    § 547.314 Information or informational materials.

    (a)(1) The term information or informational materials includes publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds.

    (2) To be considered information or informational materials, artworks must be classified under heading 9701, 9702, or 9703 of the Harmonized Tariff Schedule of the United States.

    (b) The term information or informational materials, with respect to exports, does not include items:

    (1) That were, as of April 30, 1994, or that thereafter become, controlled for export pursuant to section 5 of the Export Administration Act of 1979, 50 U.S.C. App. 2401-2420 (1979) (EAA), or section 6 of the EAA to the extent that such controls promote the nonproliferation or antiterrorism policies of the United States; or

    (2) With respect to which acts are prohibited by 18 U.S.C. chapter 37.

    11. Add § 547.315 to read as follows:
    § 547.315 OFAC.

    The term OFAC means the Department of the Treasury's Office of Foreign Assets Control.

    12. Revise subpart D to read as follows: Subpart D—Interpretations Sec. 547.401 Reference to amended sections. 547.402 Effect of amendment. 547.403 Termination and acquisition of an interest in blocked property. 547.404 Transactions ordinarily incident to a licensed transaction. 547.405 Provision of services. 547.406 Offshore transactions involving blocked property. 547.407 Payments from blocked accounts to satisfy obligations prohibited. 547.408 Charitable contributions. 547.409 Credit extended and cards issued by financial institutions to a person whose property and interests in property are blocked. 547.410 Setoffs prohibited. 547.411 Entities owned by one or more persons whose property and interests in property are blocked.
    § 547.401 Reference to amended sections.

    (a) Reference to any section in this part is a reference to the same as currently amended, unless the reference includes a specific date. See 44 U.S.C. 1510.

    (b) Reference to any ruling, order, instruction, direction, or license issued pursuant to this part is a reference to the same as currently amended unless otherwise so specified.

    § 547.402 Effect of amendment.

    Unless otherwise specifically provided, any amendment, modification, or revocation of any provision in or appendix to this part or chapter or of any order, regulation, ruling, instruction, or license issued by OFAC does not affect any act done or omitted, or any civil or criminal proceeding commenced or pending, prior to such amendment, modification, or revocation. All penalties, forfeitures, and liabilities under any such order, regulation, ruling, instruction, or license continue and may be enforced as if such amendment, modification, or revocation had not been made.

    § 547.403 Termination and acquisition of an interest in blocked property.

    (a) Whenever a transaction licensed or authorized by or pursuant to this part results in the transfer of property (including any property interest) away from a person whose property and interests in property are blocked pursuant to § 547.201(a), such property shall no longer be deemed to be property blocked pursuant to § 547.201(a), unless there exists in the property another interest that is blocked pursuant to § 547.201(a), the transfer of which has not been effected pursuant to license or other authorization.

    (b) Unless otherwise specifically provided in a license or authorization issued pursuant to this part, if property (including any property interest) is transferred or attempted to be transferred to a person whose property and interests in property are blocked pursuant to § 547.201(a), such property shall be deemed to be property in which such person has an interest and therefore blocked.

    § 547.404 Transactions ordinarily incident to a licensed transaction.

    (a) Any transaction ordinarily incident to a licensed transaction and necessary to give effect thereto is also authorized, except:

    (1) An ordinarily incident transaction, not explicitly authorized within the terms of the license, by or with a person whose property and interests in property are blocked pursuant to § 547.201(a); or

    (2) An ordinarily incident transaction, not explicitly authorized within the terms of the license, involving a debit to a blocked account or a transfer of blocked property.

    (b) For example, a license authorizing a person to complete a securities sale involving Company A, whose property and interests in property are blocked pursuant to § 547.201(a), also authorizes other persons to engage in activities that are ordinarily incident and necessary to complete the sale, including transactions by the buyer, broker, transfer agents, and banks, provided that such other persons are not themselves persons whose property and interests in property are blocked pursuant to § 547.201(a).

    § 547.405 Provision of services.

    (a) The prohibitions on transactions contained in § 547.201 apply to services performed in the United States or by U.S. persons, wherever located, including by a foreign branch of an entity located in the United States:

    (1) On behalf of or for the benefit of a person whose property and interests in property are blocked pursuant to § 547.201(a); or

    (2) With respect to property interests of any person whose property and interests in property are blocked pursuant to § 547.201(a).

    (b) For example, U.S. persons may not, except as authorized by or pursuant to this part, provide legal, accounting, financial, brokering, freight forwarding, transportation, public relations, or other services to a person whose property and interests in property are blocked pursuant to § 547.201(a).

    Note 1 to § 547.405:

    See §§ 547.507 and 547.509 on licensing policy with regard to the provision of certain legal and emergency medical services.

    § 547.406 Offshore transactions involving blocked property.

    The prohibitions in § 547.201 on transactions or dealings involving blocked property, as defined in § 547.302, apply to transactions by any U.S. person in a location outside the United States.

    § 547.407 Payments from blocked accounts to satisfy obligations prohibited.

    Pursuant to § 547.201, no debits may be made to a blocked account to pay obligations to U.S. persons or other persons, except as authorized by or pursuant to this part.

    Note 1 to § 547.407:

    See also § 547.502(e), which provides that no license or other authorization contained in or issued pursuant to this part authorizes transfers of or payments from blocked property or debits to blocked accounts unless the license or other authorization explicitly authorizes the transfer of or payment from blocked property or the debit to a blocked account.

    § 547.408 Charitable contributions.

    Unless specifically authorized by OFAC pursuant to this part, no charitable contribution of funds, goods, services, or technology, including contributions to relieve human suffering, such as food, clothing, or medicine, may be made by, to, or for the benefit of, or received from, a person whose property and interests in property are blocked pursuant to § 547.201(a). For the purposes of this part, a contribution is made by, to, or for the benefit of, or received from, a person whose property and interests in property are blocked pursuant to § 547.201(a) if made by, to, or in the name of, or received from or in the name of, such a person; if made by, to, or in the name of, or received from or in the name of, an entity or individual acting for or on behalf of, or owned or controlled by, such a person; or if made in an attempt to violate, to evade, or to avoid the bar on the provision of contributions by, to, or for the benefit of such a person, or the receipt of contributions from such a person.

    § 547.409 Credit extended and cards issued by financial institutions to a person whose property and interests in property are blocked.

    The prohibition in § 547.201 on dealing in property subject to that section prohibits U.S. financial institutions from performing under any existing credit agreements, including charge cards, debit cards, or other credit facilities issued by a financial institution to a person whose property and interests in property are blocked pursuant to § 547.201(a).

    § 547.410 Setoffs prohibited.

    A setoff against blocked property (including a blocked account), whether by a U.S. bank or other U.S. person, is a prohibited transfer under § 547.201 if effected after the effective date.

    § 547.411 Entities owned by one or more persons whose property and interests in property are blocked.

    Persons whose property and interests in property are blocked pursuant to § 547.201(a) have an interest in all property and interests in property of an entity in which such persons directly or indirectly own, whether individually or in the aggregate, a 50 percent or greater interest. The property and interests in property of such an entity, therefore, are blocked, and such an entity is a person whose property and interests in property are blocked pursuant to § 547.201(a), regardless of whether the name of the entity is incorporated into OFAC's Specially Designated Nationals and Blocked Persons List (SDN List).

    Subpart E—Licenses, Authorizations, and Statements of Licensing Policy 13. Revise § 547.501 to read as follows:
    § 547.501 General and specific licensing procedures.

    For provisions relating to licensing procedures, see part 501, subpart E, of this chapter. Licensing actions taken pursuant to part 501 of this chapter with respect to the prohibitions contained in this part are considered actions taken pursuant to this part. General licenses and statements of licensing policy relating to this part also may be available through the Democratic Republic of the Congo sanctions page on OFAC's website: www.treasury.gov/ofac.

    14. Revise § 547.502 to read as follows:
    § 547.502 Effect of license or other authorization.

    (a) No license or other authorization contained in this part, or otherwise issued by OFAC, authorizes or validates any transaction effected prior to the issuance of such license or other authorization, unless specifically provided in such license or authorization.

    (b) No regulation, ruling, instruction, or license authorizes any transaction prohibited under this part unless the regulation, ruling, instruction, or license is issued by OFAC and specifically refers to this part. No regulation, ruling, instruction, or license referring to this part shall be deemed to authorize any transaction prohibited by any other part of this chapter unless the regulation, ruling, instruction, or license specifically refers to such part.

    (c) Any regulation, ruling, instruction, or license authorizing any transaction otherwise prohibited under this part has the effect of removing a prohibition contained in this part from the transaction, but only to the extent specifically stated by its terms. Unless the regulation, ruling, instruction, or license otherwise specifies, such an authorization does not create any right, duty, obligation, claim, or interest in, or with respect to, any property that would not otherwise exist under ordinary principles of law.

    (d) Nothing contained in this part shall be construed to supersede the requirements established under any other provision of law or to relieve a person from any requirement to obtain a license or other authorization from another department or agency of the U.S. Government in compliance with applicable laws and regulations subject to the jurisdiction of that department or agency. For example, exports of goods, services, or technical data that are not prohibited by this part or that do not require a license by OFAC nevertheless may require authorization by the U.S. Department of Commerce, the U.S. Department of State, or other agencies of the U.S. Government.

    (e) No license or other authorization contained in or issued pursuant to this part authorizes transfers of or payments from blocked property or debits to blocked accounts unless the license or other authorization explicitly authorizes the transfer of or payment from blocked property or the debit to a blocked account.

    (f) Any payment relating to a transaction authorized in or pursuant to this part that is routed through the U.S. financial system should reference the relevant OFAC general or specific license authorizing the payment to avoid the blocking or rejection of the transfer.

    15. Revise § 547.503 to read as follows:
    § 547.503 Exclusion from licenses.

    OFAC reserves the right to exclude any person, property, transaction, or class thereof from the operation of any license or from the privileges conferred by any license. OFAC also reserves the right to restrict the applicability of any license to particular persons, property, transactions, or classes thereof. Such actions are binding upon actual or constructive notice of the exclusions or restrictions.

    16. Revise § 547.507 to read as follows:
    § 547.507 Provision of certain legal services.

    (a) The provision of the following legal services to or on behalf of persons whose property and interests in property are blocked pursuant to § 547.201(a) or any further Executive orders relating to the national emergency declared in E.O. 13413 of October 27, 2006, is authorized, provided that receipt of payment of professional fees and reimbursement of incurred expenses must be authorized: Pursuant to § 547.508, which authorizes certain payments for legal services from funds originating outside the United States; via specific license; or otherwise pursuant to this part:

    (1) Provision of legal advice and counseling on the requirements of and compliance with the laws of the United States or any jurisdiction within the United States, provided that such advice and counseling are not provided to facilitate transactions in violation of this part;

    (2) Representation of persons named as defendants in or otherwise made parties to legal, arbitration, or administrative proceedings before any U.S. federal, state, or local court or agency;

    (3) Initiation and conduct of legal, arbitration, or administrative proceedings before any U.S. federal, state, or local court or agency;

    (4) Representation of persons before any U.S. federal, state, or local court or agency with respect to the imposition, administration, or enforcement of U.S. sanctions against such persons; and

    (5) Provision of legal services in any other context in which prevailing U.S. law requires access to legal counsel at public expense.

    (b) The provision of any other legal services to or on behalf of persons whose property and interests in property are blocked pursuant to § 547.201(a) or any further Executive orders relating to the national emergency declared in E.O. 13413 of October 27, 2006, not otherwise authorized in this part, requires the issuance of a specific license.

    (c) U.S. persons do not need to obtain specific authorization to provide related services, such as making filings and providing other administrative services, that are ordinarily incident to the provision of services authorized by paragraph (a) of this section. Additionally, U.S. persons who provide services authorized by paragraph (a) of this section do not need to obtain specific authorization to contract for related services that are ordinarily incident to the provision of those legal services, such as those provided by private investigators or expert witnesses, or to pay for such services. See § 510.404.

    (d) Entry into a settlement agreement or the enforcement of any lien, judgment, arbitral award, decree, or other order through execution, garnishment, or other judicial process purporting to transfer or otherwise alter or affect property or interests in property blocked pursuant to § 547.201(a) or any further Executive orders relating to the national emergency declared in E.O. 13413 of October 27, 2006, is prohibited unless licensed pursuant to this part.

    Note 1 to § 547.507:

    Pursuant to part 501, subpart E, of this chapter, U.S. persons seeking administrative reconsideration or judicial review of their designation or the blocking of their property and interests in property may apply for a specific license from OFAC to authorize the release of certain blocked funds for the payment of professional fees and reimbursement of incurred expenses for the provision of such legal services where alternative funding sources are not available. For more information, see OFAC's Guidance on the Release of Limited Amounts of Blocked Funds for Payment of Legal Fees and Costs Incurred in Challenging the Blocking of U.S. Persons in Administrative or Civil Proceedings, which is available on OFAC's website at: www.treasury.gov/ofac.

    § 547.508 [Redesignated as § 547.509]
    17. Redesignate § 547.508 as § 547.509. 18. Add new § 547.508 to read as follows:
    § 547.508 Payments for legal services from funds originating outside the United States.

    (a) Professional fees and incurred expenses. (1) Receipt of payment of professional fees and reimbursement of incurred expenses for the provision of legal services authorized pursuant to § 547.507(a) to or on behalf of any person whose property and interests in property are blocked pursuant to § 547.201 or any further Executive orders relating to the national emergency declared in E.O. 13413 of October 27, 2006, is authorized from funds originating outside the United States, provided that the funds do not originate from:

    (i) A source within the United States;

    (ii) Any source, wherever located, within the possession or control of a U.S. person; or

    (iii) Any individual or entity, other than the person on whose behalf the legal services authorized pursuant to § 547.507(a) are to be provided, whose property and interests in property are blocked pursuant to any part of this chapter or any Executive order or statute.

    (2) Nothing in this paragraph (a) authorizes payments for legal services using funds in which any other person whose property and interests in property are blocked pursuant to § 547.201(a), any other part of this chapter, or any Executive order has an interest.

    (b) Reports. (1) U.S. persons who receive payments pursuant to paragraph (a) of this section must submit annual reports no later than 30 days following the end of the calendar year during which the payments were received providing information on the funds received. Such reports shall specify:

    (i) The individual or entity from whom the funds originated and the amount of funds received; and

    (ii) If applicable:

    (A) The names of any individuals or entities providing related services to the U.S. person receiving payment in connection with authorized legal services, such as private investigators or expert witnesses;

    (B) A general description of the services provided; and

    (C) The amount of funds paid in connection with such services.

    (2) The reports, which must reference this section, are to be submitted to OFAC using one of the following methods:

    (i) Email: (preferred method) [email protected]; or

    (ii) U.S. mail: OFAC Regulations Reports, Office of Foreign Assets Control, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW, Freedman's Bank Building, Washington, DC 20220.

    19. Revise newly redesignated § 547.509 to read as follows:
    § 547.509 Emergency medical services.

    The provision and receipt of nonscheduled emergency medical services that are otherwise prohibited by this part or any further Executive orders relating to the national emergency declared in Executive Order 13413 of October 27, 2006 are authorized.

    20. Revise subpart G to read as follows: Subpart G—Penalties and Finding of Violation Sec. 547.701 Penalties. 547.702 Pre-Penalty Notice; settlement. 547.703 Penalty imposition. 547.704 Administrative collection; referral to United States Department of Justice. 547.705 Finding of Violation.
    § 547.701 Penalties.

    (a) Section 206 of the International Emergency Economic Powers Act (50 U.S.C. 1705) (IEEPA) is applicable to violations of the provisions of any license, ruling, regulation, order, directive, or instruction issued by or pursuant to the direction or authorization of the Secretary of the Treasury pursuant to this part or otherwise under IEEPA.

    (1) A civil penalty not to exceed the amount set forth in section 206 of IEEPA may be imposed on any person who violates, attempts to violate, conspires to violate, or causes a violation of any license, order, regulation, or prohibition issued under IEEPA.

    Note 1 to paragraph (a)(1):

    IEEPA provides for a maximum civil penalty not to exceed the greater of $295,141 or an amount that is twice the amount of the transaction that is the basis of the violation with respect to which the penalty is imposed.

    (2) A person who willfully commits, willfully attempts to commit, willfully conspires to commit, or aids or abets in the commission of a violation of any license, order, regulation, or prohibition may, upon conviction, be fined not more than $1,000,000, or if a natural person, be imprisoned for not more than 20 years, or both.

    (b)(1) The civil penalties provided in IEEPA are subject to adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410, as amended, 28 U.S.C. 2461 note).

    (2) The criminal penalties provided in IEEPA are subject to adjustment pursuant to 18 U.S.C. 3571.

    (c) Pursuant to 18 U.S.C. 1001, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; or makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry shall be fined under title 18, United States Code, imprisoned, or both.

    (d) Section 5 of the United Nations Participation Act, as amended (22 U.S.C. 287c(b)) (UNPA) provides that any person who willfully violates or evades or attempts to violate or evade any order, rule, or regulation issued by the President pursuant to the authority granted in that section, upon conviction, shall be fined not more than $10,000 and, if a natural person, may also be imprisoned for not more than 10 years; and the officer, director, or agent of any corporation who knowingly participates in such violation or evasion shall be punished by a like fine, imprisonment, or both and any property, funds, securities, papers, or other articles or documents, or any vessel, together with her tackle, apparel, furniture, and equipment, or vehicle, or aircraft, concerned in such violation shall be forfeited to the United States.

    (e) Violations involving transactions described at section 203(b)(1), (3), and (4) of IEEPA shall be subject only to the penalties set forth in paragraph (d) of this section.

    (f) Violations of this part may also be subject to other applicable laws.

    § 547.702 Pre-Penalty Notice; settlement.

    (a) When required. If OFAC has reason to believe that there has occurred a violation of any provision of this part or a violation of the provisions of any license, ruling, regulation, order, directive, or instruction issued by or pursuant to the direction or authorization of the Secretary of the Treasury pursuant to this part or otherwise under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706) and determines that a civil monetary penalty is warranted, OFAC will issue a Pre-Penalty Notice informing the alleged violator of the agency's intent to impose a monetary penalty. A Pre-Penalty Notice shall be in writing. The Pre-Penalty Notice may be issued whether or not another agency has taken any action with respect to the matter. For a description of the contents of a Pre-Penalty Notice, see appendix A to part 501 of this chapter.

    (b) Response—(1) Right to respond. An alleged violator has the right to respond to a Pre-Penalty Notice by making a written presentation to OFAC. For a description of the information that should be included in such a response, see appendix A to part 501 of this chapter.

    (2) Deadline for response. A response to a Pre-Penalty Notice must be made within 30 days as set forth in paragraphs (b)(2)(i) and (ii) of this section. The failure to submit a response within 30 days shall be deemed to be a waiver of the right to respond.

    (i) Computation of time for response. A response to a Pre-Penalty Notice must be postmarked or date-stamped by the U.S. Postal Service (or foreign postal service, if mailed abroad) or courier service provider (if transmitted to OFAC by courier) on or before the 30th day after the postmark date on the envelope in which the Pre-Penalty Notice was mailed. If the Pre-Penalty Notice was personally delivered by a non-U.S. Postal Service agent authorized by OFAC, a response must be postmarked or date-stamped on or before the 30th day after the date of delivery.

    (ii) Extensions of time for response. If a due date falls on a federal holiday or weekend, that due date is extended to include the following business day. Any other extensions of time will be granted, at the discretion of OFAC, only upon specific request to OFAC.

    (3) Form and method of response. A response to a Pre-Penalty Notice need not be in any particular form, but it must be typewritten and signed by the alleged violator or a representative thereof, contain information sufficient to indicate that it is in response to the Pre-Penalty Notice, and include the OFAC identification number listed on the Pre-Penalty Notice. A copy of the written response may be sent by facsimile, but the original also must be sent to OFAC's Office of Compliance and Enforcement by mail or courier and must be postmarked or date-stamped in accordance with paragraph (b)(2) of this section.

    (c) Settlement. Settlement discussion may be initiated by OFAC, the alleged violator, or the alleged violator's authorized representative. For a description of practices with respect to settlement, see appendix A to part 501 of this chapter.

    (d) Guidelines. Guidelines for the imposition or settlement of civil penalties by OFAC are contained in appendix A to part 501 of this chapter.

    (e) Representation. A representative of the alleged violator may act on behalf of the alleged violator, but any oral communication with OFAC prior to a written submission regarding the specific allegations contained in the Pre-Penalty Notice must be preceded by a written letter of representation, unless the Pre-Penalty Notice was served upon the alleged violator in care of the representative.

    § 547.703 Penalty imposition.

    If, after considering any written response to the Pre-Penalty Notice and any relevant facts, OFAC determines that there was a violation by the alleged violator named in the Pre-Penalty Notice and that a civil monetary penalty is appropriate, OFAC may issue a Penalty Notice to the violator containing a determination of the violation and the imposition of the monetary penalty. For additional details concerning issuance of a Penalty Notice, see appendix A to part 501 of this chapter. The issuance of the Penalty Notice shall constitute final agency action. The violator has the right to seek judicial review of that final agency action in federal district court.

    § 547.704 Administrative collection; referral to United States Department of Justice.

    In the event that the violator does not pay the penalty imposed pursuant to this part or make payment arrangements acceptable to OFAC, the matter may be referred for administrative collection measures by the Department of the Treasury or to the United States Department of Justice for appropriate action to recover the penalty in a civil suit in a federal district court.

    § 547.705 Finding of Violation

    (a) When issued. (1) OFAC may issue an initial Finding of Violation that identifies a violation if OFAC:

    (i) Determines that there has occurred a violation of any provision of this part, or a violation of the provisions of any license, ruling, regulation, order, directive, or instruction issued by or pursuant to the direction or authorization of the Secretary of the Treasury pursuant to this part or otherwise under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706);

    (ii) Considers it important to document the occurrence of a violation; and

    (iii) Based on the Guidelines contained in appendix A to part 501 of this chapter, concludes that an administrative response is warranted but that a civil monetary penalty is not the most appropriate response.

    (2) An initial Finding of Violation shall be in writing and may be issued whether or not another agency has taken any action with respect to the matter. For additional details concerning issuance of a Finding of Violation, see appendix A to part 501 of this chapter.

    (b) Response—(1) Right to respond. An alleged violator has the right to contest an initial Finding of Violation by providing a written response to OFAC.

    (2) Deadline for response; Default determination. A response to an initial Finding of Violation must be made within 30 days as set forth in paragraphs (b)(2)(i) and (ii) of this section. The failure to submit a response within 30 days shall be deemed to be a waiver of the right to respond, and the initial Finding of Violation will become final and will constitute final agency action. The violator has the right to seek judicial review of that final agency action in federal district court.

    (i) Computation of time for response. A response to an initial Finding of Violation must be postmarked or date-stamped by the U.S. Postal Service (or foreign postal service, if mailed abroad) or courier service provider (if transmitted to OFAC by courier) on or before the 30th day after the postmark date on the envelope in which the initial Finding of Violation was served. If the initial Finding of Violation was personally delivered by a non-U.S. Postal Service agent authorized by OFAC, a response must be postmarked or date-stamped on or before the 30th day after the date of delivery.

    (ii) Extensions of time for response. If a due date falls on a federal holiday or weekend, that due date is extended to include the following business day. Any other extensions of time will be granted, at the discretion of OFAC, only upon specific request to OFAC.

    (3) Form and method of response. A response to an initial Finding of Violation need not be in any particular form, but it must be typewritten and signed by the alleged violator or a representative thereof, contain information sufficient to indicate that it is in response to the initial Finding of Violation, and include the OFAC identification number listed on the initial Finding of Violation. A copy of the written response may be sent by facsimile, but the original also must be sent to OFAC by mail or courier and must be postmarked or date-stamped in accordance with paragraph (b)(2) of this section.

    (4) Information that should be included in response. Any response should set forth in detail why the alleged violator either believes that a violation of the regulations did not occur and/or why a Finding of Violation is otherwise unwarranted under the circumstances, with reference to the General Factors Affecting Administrative Action set forth in the Guidelines contained in appendix A to part 501 of this chapter. The response should include all documentary or other evidence available to the alleged violator that supports the arguments set forth in the response. OFAC will consider all relevant materials submitted in the response.

    (c) Determination—(1) Determination that a Finding of Violation is warranted. If, after considering the response, OFAC determines that a final Finding of Violation should be issued, OFAC will issue a final Finding of Violation that will inform the violator of its decision. A final Finding of Violation shall constitute final agency action. The violator has the right to seek judicial review of that final agency action in federal district court.

    (2) Determination that a Finding of Violation is not warranted. If, after considering the response, OFAC determines a Finding of Violation is not warranted, then OFAC will inform the alleged violator of its decision not to issue a final Finding of Violation.

    Note to paragraph (c)(2):

    A determination by OFAC that a final Finding of Violation is not warranted does not preclude OFAC from pursuing other enforcement actions consistent with the Guidelines contained in appendix A to part 501 of this chapter.

    (d) Representation. A representative of the alleged violator may act on behalf of the alleged violator, but any oral communication with OFAC prior to a written submission regarding the specific alleged violations contained in the initial Finding of Violation must be preceded by a written letter of representation, unless the initial Finding of Violation was served upon the alleged violator in care of the representative.

    Subpart H—Procedures 21. Revise § 547.802 to read as follows:
    § 547.802 Delegation of certain authorities by the Secretary of the Treasury.

    Any action that the Secretary of the Treasury is authorized to take pursuant to Executive Order 13413 of October 27, 2006 (E.O. 13413), Executive Order 13671 of July 8, 2014, and any further Executive orders relating to the national emergency declared in E.O. 13413, may be taken by the Director of OFAC or by any other person to whom the Secretary of the Treasury has delegated authority so to act.

    Dated: November 7, 2018. Andrea Gacki, Director, Office of Foreign Assets Control.
    [FR Doc. 2018-24696 Filed 11-14-18; 8:45 am] BILLING CODE 4810-AL-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0998] RIN 1625-AA00 Safety Zone; Columbia River, Cascade Locks, OR AGENCY:

    Coast Guard, DHS.

    ACTION:

    Final rule; termination of existing safety zone.

    SUMMARY:

    The Coast Guard is removing the temporary safety zone for navigable waters of the Columbia River between river mile 142 and 143 in vicinity of Cascade Locks, Oregon. The safety zone was necessary to protect personnel, vessels, and the marine environment from potential hazards created by salvage operations of the tug DIANE. The safety zone is no longer needed and the Coast Guard is removing the regulation.

    DATES:

    The rule is effective November 15, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov, type USCG-2018-0998 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email LCDR Dixon Whitley, Waterways Management Division, Marine Safety Unit Portland, U.S. Coast Guard; telephone 503-240-9319, email [email protected]

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

    The Coast Guard is issuing this rule to remove a regulation without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to removing the safety zone regulation around the salvage operations for the tug DIANE because to do so would be unnecessary since the salvage operations concluded and the safety zone that is no longer needed.

    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be unnecessary because this rule removes a safety zone that is no longer needed.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Columbia River (COTP) has determined that potential hazards associated with pile driving, cofferdam installation, diving, and vessel recovery operations are no longer present between Columbia River Mile 142 and 143 in vicinity of Cascade Locks, Oregon.

    IV. Discussion of the Rule

    On November 2, 2018, the Coast Guard published a temporary final rule “Safety Zone; Columbia River, Cascade Locks, OR” in the Federal Register (83 FR 55101). The safety zone was necessary to protect personnel, vessels, and the marine environment from potential hazards created by salvage operations of the tug DIANE. The zone covered all navigable waters of the Columbia River between river mile 142 and 143. The salvage operations for the tug DIANE are finished. The safety zone is no longer needed and the Coast Guard is removing the regulation.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the removal of an obsolete safety zone.

    B. Impact on Small Entities

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. It is categorically excluded from further review under paragraph L60(b) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration is not required for this rule because we are disestablishing a safety zone.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    § 165.T13-0998 [Removed]
    2. Remove § 165.T13-0998. Dated: November 8, 2018. J.C. Smith, Captain, U.S. Coast Guard, Captain of the Port Sector Columbia River.
    [FR Doc. 2018-24846 Filed 11-14-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0948] RIN 1625-AA00 Safety Zone; Delaware River; Camden, NJ; Fireworks Display AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone on a portion of the Delaware River in Camden, NJ. This action is necessary to protect the surrounding public and vessels on these navigable waters adjacent to the Battleship New Jersey Museum and Memorial, Camden, NJ, during a fireworks display on November 14, 2018. This regulation prohibits persons and vessels from entering, transiting, or remaining within the safety zone unless authorized by the Captain of the Port Delaware Bay or a designated representative.

    DATES:

    This rule is effective from 8:15 p.m. through 9:15 p.m. on November 14, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0948 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Petty Officer Thomas Welker, U.S. Coast Guard, Sector Delaware Bay, Waterways Management Division; telephone 215-271-4814, 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 September 14, 2018, Rexel, Inc. notified the Coast Guard that it will be conducting a fireworks display from 8:35 p.m. to 8:55 p.m. on November 14, 2018. The fireworks are to be launched from a barge on the Delaware River adjacent the Battleship New Jersey Museum and Memorial, Camden, NJ. In response, on October 22, 2018, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Delaware River; Camden, NJ; Fireworks Display; 83 FR 53199. There, we stated why we issued the NPRM and invited comments on our proposed regulatory action related to this fireworks display. During the comment period that ended November 6, 2018, we received one comment.

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

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Delaware Bay (COTP) has determined that potential hazards associated with the fireworks display on November 14, 2018, will be a safety concern for anyone within a 600-foot radius of the fireworks barge, which will be anchored in approximate position 39°56′20″ N Latitude, 075°08′08″ W Longitude. This rule is needed to protect persons, vessels and the public near the fireworks barge during the fireworks display.

    IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received one comment on our NPRM published October 22, 2018. The comment was generally supportive of the proposed rulemaking. The comment did express concern with public notification of the rule. The comment suggested the Coast Guard notify the public more than once. The Coast Guard agrees that notification to the public of the existence of this rule is a key component to ensuring safety. In addition to publication of the NPRM and final rule in the Federal Register, the Coast Guard will provide notification through Broadcast Notice to Mariners and on-scene notice. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

    This rule establishes a temporary safety zone from approximately 8:15 p.m. through 9:15 p.m. on November 14, 2018, for the navigable waters in the vicinity of the Battleship New Jersey Museum and Memorial, Camden, NJ, during a fireworks display from a barge. The event is scheduled to take place at approximately 8:35 p.m. on November 14, 2018. The safety zone will extend 600 feet around the barge, which will be anchored at approximate position 39°56′20″ N Latitude, 075°08′08″ W Longitude. Persons or vessels will not be permitted to enter, transit through, or remain within the safety zone without obtaining permission from the COTP or a designated representative.

    If authorization to enter, transit through, or remain within the safety zone is granted by the COTP or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP or a designated representative. The Coast Guard will provide public notice of the safety zone by Broadcast Notice to Mariners and by on-scene actual notice.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the Delaware River for 1 hour during the evening when vessel traffic is normally low. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule will allow vessels to seek permission to enter the zone.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this 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.

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have 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 rule involves a safety zone lasting 1 hour that will prohibit entry within 600 feet of a fireworks barge. 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.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. Add § 165.T05-0948 to read as follows:
    § 165.T05-0948 Safety Zone; Delaware River; Camden, NJ; Fireworks Display.

    (a) Location. The following area is a safety zone: All waters of the Delaware River within a 600-foot radius of the fireworks barge, which will be anchored in approximate position 39°56′20″ N Latitude 075°08′08″ W Longitude. All coordinates are based on Datum NAD 1983.

    (b) Definitions. As used in this section, designated representative means a Coast Guard Patrol Commander, including a Coast Guard petty officer, warrant or commissioned officer on board a Coast Guard vessel or on board a federal, state, or local law enforcement vessel assisting the Captain of the Port, Delaware Bay in the enforcement of the safety zone.

    (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; and all persons and vessels in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.

    (2) To request permission to enter the safety zone, contact the COTP or the COTP's representative on marine band radio VHF-FM channel 16 (156.8 MHz) or 215-271-4807.

    (3) No vessel may take on bunkers or conduct lightering operations within the safety zone during the enforcement period.

    (4) This section applies to all vessels except those engaged in law enforcement, aids to navigation servicing, and emergency response operations.

    (d) Enforcement. 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 period. This zone will be enforced from 8:15 p.m. through 9:15 p.m. on November 14, 2018.

    Dated: November 9, 2018. S.E. Anderson, Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
    [FR Doc. 2018-24978 Filed 11-14-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2018-0907] Safety Zone; Santa Spectacular, Ohio River, Monongahela River, Allegheny River, Pittsburgh, PA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce the safety zone for the Santa Spectacular Fireworks to provide for the safety of persons, vessels, and the marine environment on the navigable waters of the Ohio River, Monongahela River and Allegheny River during this event. Our regulation for marine events within the Eighth Coast Guard District identifies the regulated area for this event in Pittsburgh, PA. During the enforcement period, entry into this zone is prohibited unless authorized by the Captain of the Port Marine Safety Unit Pittsburgh or a designated representative.

    DATES:

    The regulations in 33 CFR 165.801, Table 1, Line 64 will be enforced from 8 p.m. through 9:30 p.m. on November 16, 2018.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this notice of enforcement, call or email Petty Officer Jennifer Haggins, Marine Safety Unit Pittsburgh, U.S. Coast Guard; telephone 412-221-0807, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce a temporary safety zone for the Santa Spectacular Fireworks Race in 33 CFR 165.801, Table 1, titled “Sector Ohio Valley Annual and Recurring Safety Zones,” line 64, from 8 p.m. through 9:30 p.m. on November 16, 2018. This action is being taken to provide for the safety of persons, vessels, and the marine environment on the navigable waters of the Ohio River, Monongahela River and Allegheny River during this event. Our regulation for marine events within the Eighth Coast Guard District, § 165.801 specifies the location of the regulated area for the Santa Spectacular Fireworks. Entry into the regulated area is prohibited unless authorized by the Captain of the Port Marine Safety Unit Pittsburgh (COTP) or a designated representative. Persons or vessels desiring to enter into or pass through the regulated area must request permission from the COTP or a designated representative. They can be reached on VHF FM channel 16. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative.

    In addition to this notice of enforcement in the Federal Register, the COTP or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), Marine Safety Information Bulletins (MSIBs), and/or through other means of public notice as appropriate at least 24 hours in advance of enforcement.

    A.W. Demo, Commander, U.S. Coast Guard, Captain of the Port Marine Safety Unit Pittsburgh.
    [FR Doc. 2018-24900 Filed 11-14-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0849] RIN 1625-AA00 Safety Zone; The Gut, South Bristol, ME AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for the navigable waters within a 50 yard radius from the center point of The Gut Bridge in South Bristol, ME between Rutherford Island and Bristol Neck. The safety zone is necessary to protect personnel, vessels, and the marine environment from potential hazards created during bedrock removal operations. When enforced, this regulation prohibits entry of vessels or persons into the safety zone unless authorized by the Captain of the Port Northern New England or a designated representative.

    DATES:

    This rule is effective without actual notice from November 15, 2018 through March 31, 2019. For the purposes of enforcement, actual notice will be used from November 8, 2018 through November 15, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov, type USCG-2018-0849 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email LT Matthew Odom, Waterways Management Division, U.S. Coast Guard Sector Northern New England, telephone 207-347-5015, 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 MEDOT Maine Department of Transportation NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

    On August 21, 2018, the Maine Department of Transportation (MEDOT) notified the Coast Guard that it will be removing bedrock in the areas between Rutherford Island and Bristol Neck underneath The Gut Bridge. The removal operations include removing bedrock from between the bridge abutments and areas near the navigation channel both upstream and downstream of The Gut Bridge. To remove the bedrock workers will need to utilize the waterway underneath the bridge span and prohibit people and vessels from entering the safety zone at various times. Removal operations are expected to take place between 8 November 2018 and 31 March 2019. However, we only anticipate a continuous 35 day full closure of the waterway. The COTP Northern New England has determined that the potential hazards associated with the removal operations will be a safety concern for anyone transiting within a 50-yard radius of the center point of The Gut Bridge.

    In response, on September 27, 2018, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zone; The Gut, South Bristol, ME” (83 FR 48748). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this safety zone. During the comment period that ended on October 29, 2018, we received no comments.

    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety hazards associated with bedrock removal operations near The Gut Bridge which are scheduled to commence on November 8, 2018.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP Northern New England has determined that potential hazards associated with the bedrock removal operations will be a safety concern for anyone transiting within a 50-yard radius of the center point of the bridge. The purpose of this rule is to ensure the safety of vessels and personnel within a 50-yard radius of the center point of The Gut Bridge before, during, and after the bedrock removal operations.

    IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received no comments on our NPRM published September 27, 2018. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

    This rule establishes a safety zone from 12:01 a.m. on November 8, 2018 to 11:59 on March 31, 2019. While the safety zone would be effective throughout this period, it would only be enforced during periods of active bedrock removal operations. The safety zone would include all navigable waters from surface to bottom within a 50 yard radius from the center point of The Gut Bridge between Rutherford Island and Bristol Neck in South Bristol, ME. During times of enforcement, no vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP Northern New England or a designated representative. The Coast Guard will notify the public and local mariners of this safety zone through appropriate means, which may include, but are not limited to, publication in the Federal Register, the Local Notice to Mariners, and Broadcast Notice to Mariners via marine Channel 16 (VHF-FM) in advance of any enforcement.

    IV. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, duration, and selective enforcement of the safety zone. The safety zone impacts only a small designated portion on The Gut waterway for 143 days. This waterway is typically transited by small recreational craft on an infrequent basis after Labor Day Weekend and prior to Memorial Day Weekend. Vessel traffic is able to safely transit around this safety zone with a slight delay (approximately 20-60 minutes) by transiting around Rutherford Island to reach any destination on the other side of The Gut. Additionally, the safety zone will only be enforced during active bedrock removal operations necessitating closure of the waterway or during an emergency. Moreover, the rule allows vessels to seek permission to enter the zone. The Coast Guard will notify the public of enforcement of this rule via appropriate means, such as via Local Notice to Mariners and Broadcast Notice to Mariners via marine Channel 16 (VHF-FM).

    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 received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this 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 rule would not have a significant economic impact on any vessel owner or operator.

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

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

    C. Collection of Information

    This rule 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 rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

    Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it 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 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 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 rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that would prohibit entry within a 50-yard radius of the center point of a bridge. It is categorically excluded from further review under paragraph L60 (a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

    For the reasons discussed in the preamble, the Coast Guard 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; Department of Homeland Security Delegation No. 0170.1.

    2. Add § 165.T01-0849 to read as follows:
    § 165.T01-0849 Safety Zone; The Gut, South Bristol, ME.

    (a) Location. The following area is a safety zone: All waters of The Gut, a waterway between Rutherford Island and Bristol Neck in South Bristol, ME, from surface to bottom, encompassed by a 50-yard radius from the center point of The Gut Bridge at position 43°51.720′ N, 069°33.480′ W (NAD 83).

    (b) Definitions. As used in this section:

    Designated representative means any Coast Guard commissioned, warrant, petty officer, or designated Patrol Commander of the U.S. Coast Guard who has been designated by the Captain of the Port, Sector Northern New England (COTP), to act on his or her behalf. The designated representative may be on an official patrol vessel or may be on shore and will communicate with vessels via VHF-FM radio or loudhailer. In addition, members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.

    Official patrol vessels means any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP to enforce this section.

    (c) Enforcement period. This rule is effective without actual notice from November 15, 2018 through 11:59 p.m. on March 31, 2019. For the purposes of enforcement, actual notice will be used from 12:01 a.m. on November 8, 2018 through November 15, 2018. The rule will only be enforced during active bedrock removal operations or other instances which may cause a hazard to navigation, or when deemed necessary by the Captain of the Port (COTP), Northern New England.

    (d) Regulations. When this safety zone is enforced, the following regulations, along with those contained in § 165.23 apply:

    (1) No person or vessel may enter or remain in the safety zone described in paragraph (a) of this section unless authorized by the COTP or the COTP's designated representative.

    (2) To obtain permission required by this regulation, individuals may reach the COTP or the COTP's designated representative via Channel 16 (VHF-FM) or (207) 767-0303 (Sector Northern New England Command Center).

    (3) During periods of enforcement, any person or vessel permitted to enter the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.

    (e) Penalties. Those who violate this section are subject to the penalties set forth in 33 U.S.C. 1232.

    (f) Notification. Coast Guard Sector Northern New England will give notice through the Local Notice to Mariners and Broadcast Notice to Mariners for the purpose of enforcement of temporary safety zone. Coast Guard Sector Northern New England will also notify the public to the greatest extent possible of any period in which the Coast Guard will suspend enforcement of this safety zone.

    Dated: November 8, 2018. B.J. LeFebvre, Captain, U.S. Coast Guard, Captain of the Port, Sector Northern New England.
    [FR Doc. 2018-24899 Filed 11-14-18; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 51 and 52 [EPA-HQ-OAR-2003-0064; FRL-9986-47-OAR] RIN 2060-AP80 Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR): Aggregation; Reconsideration AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final action; lifting of administrative stay and announcement of effective date.

    SUMMARY:

    In this action, the Environmental Protection Agency (EPA) is concluding the reconsideration of an earlier action that the EPA published on January 15, 2009, titled “Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Aggregation and Project Netting.” The 2009 action—hereafter referred to as “2009 NSR Aggregation Action”—clarified implementation of the New Source Review (NSR) permitting program under the Clean Air Act (CAA or Act) with respect to treating related physical or operational changes as a single “modification” for the purpose of determining NSR applicability at a stationary source. On April 15, 2010, the EPA proposed to revoke the 2009 NSR Aggregation Action. After a review of the public comments received on that proposal, the EPA has now decided to not revoke the 2009 NSR Aggregation Action. The EPA is, therefore, retaining the interpretation set forth in the 2009 NSR Aggregation Action, while not adopting any changes to the relevant rule text. At the same time, the EPA is using this present action to clarify the implications of the 2009 NSR Aggregation Action for EPA-approved permitting programs. This action also lifts the administrative stay and announces the effective date of the 2009 NSR Aggregation Action.

    DATES:

    This action is effective on November 15, 2018.

    ADDRESSES:

    The EPA has established a docket for this action, identified by Docket ID No. EPA-HQ-OAR-2003-0064. All documents in the docket are listed in the http://www.regulations.gov website. Although listed in the index, some information may not be 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 in http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    For further general information on this action, contact Mr. Dave Svendsgaard, Office of Air Quality Planning and Standards (OAQPS), Air Quality Policy Division, U.S. EPA, Mail Code 504-03, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711; by telephone at (919) 541-2380; or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Entities potentially affected directly by this action include sources in all industry categories. Entities potentially affected by this action also include state, local and tribal air pollution control agencies (air agencies) responsible for permitting sources pursuant to the NSR program.

    B. 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 Federal Register document will be posted at https://www.epa.gov/nsr.

    C. How is this document organized?

    The information presented in this document is organized as follows:

    I. General Information A. Does this action apply to me? B. Where can I get a copy of this document and other related information? C. How is this document organized? II. Background A. What is New Source Review? B. What is project aggregation? C. Regulatory History III. This Action A. Overview B. Retaining the 2009 NSR Aggregation Action C. Completing the Reconsideration Proceeding D. Lifting the Administrative Stay; Announcement of Effective Date IV. Environmental Justice Considerations V. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review VI. Judicial Review VII. Statutory Authority II. Background A. What is New Source Review?

    The NSR program is a preconstruction permitting program that requires certain stationary sources of air pollution to obtain permits prior to beginning construction. The NSR permitting program applies both to new construction and to modifications of existing sources, regardless of whether the source is in an area where the national ambient air quality standards (NAAQS) have been exceeded (nonattainment area) or if the source is in an area where the NAAQS have not been exceeded (attainment or unclassifiable area). New construction and modifications that emit “regulated NSR pollutants” 1 over certain thresholds are subject to major NSR requirements, while smaller emitting sources and modifications may be subject to minor NSR requirements or be excluded from NSR altogether.

    1 40 CFR 51.165(a)(1)(xxxvii), 40 CFR 51.166(b)(49), 40 CFR 52.21(b)(50).

    Major NSR permits for sources that are located in attainment or unclassifiable areas are referred to as Prevention of Significant Deterioration (PSD) permits. These permits can also cover pollutants for which there are no NAAQS. Major NSR permits for sources located in nonattainment areas and that emit pollutants above the specified thresholds for which the area is in nonattainment are referred to as nonattainment NSR (NNSR) permits. The pollutant(s) at issue and the air quality designation of the area where the facility is located or proposed to be built determine the specific permitting requirements. The CAA requires sources subject to PSD to meet emission limits based on Best Available Control Technology (BACT) as specified by CAA section 165(a)(4), and sources subject to NNSR to meet Lowest Achievable Emissions Rate (LAER) pursuant to CAA section 173(a)(2). Other requirements to obtain a major NSR permit vary depending on whether it is a PSD or NNSR permit.

    A new stationary source is subject to major NSR requirements if its potential to emit (PTE) a regulated NSR pollutant exceeds statutory emission thresholds.2 If it exceeds the applicable threshold, the NSR regulations define it as a “major stationary source.” 3 An existing major stationary source triggers major NSR permitting requirements when it undergoes a “major modification,” which occurs when a source undertakes a physical change or change in method of operation (i.e., a “project”) that would result in (1) a significant emissions increase from the project, and (2) a significant net emissions increase from the source (i.e., a source-wide “netting” analysis that considers creditable emission increases and decreases occurring at the source as a result of other projects over a 5-year contemporaneous period). See, e.g., 40 CFR 52.21(b)(2)(i) and 40 CFR 52.21(b)(52). For this two-step process, the NSR regulations define what emissions rate constitutes “significant” for each NSR pollutant. See 40 CFR 51.165(a)(1)(x), 40 CFR 51.166(b)(23), and 40 CFR 52.21(b)(23).

    2 For PSD, the statute uses the term “major emitting facility” which is defined as a stationary source that emits, or has a PTE, at least 100 tons per year (TPY) if the source is in one of 28 listed source categories—or at least 250 TPY if the source is not—of “any air pollutant.” CAA 169(1). For NNSR, the emissions threshold for a major stationary source is 100 TPY, although lower thresholds may apply depending on the degree of the nonattainment problem and the pollutant. 40 CFR 51.165(a)(1)(iv)(A).

    3 40 CFR 51.165(a)(1)(iv), 40 CFR 51.166(b)(1)(i), 40 CFR 52.21(b)(1)(i).

    In many cases, these requirements of the major NSR program (or equivalent requirements) are formally adopted by a state or local air agency, and the agency submits a revised state implementation plan (SIP) to the EPA for approval. The EPA's regulations provide for the minimum requirements of these programs. Upon EPA approving the SIP, the air agency becomes the “permitting authority” for major NSR permits for sources within its boundaries. When a state or local air agency is not the permitting authority, either the EPA issues the major NSR permits or a state or local air agency issues the major NSR permits on behalf of the EPA by way of a delegation agreement. For sources located in Indian country, the EPA is currently the only permitting authority for major NSR. Currently, state and local air agencies issue the vast majority of major NSR permits each year.

    New sources and modifications that do not require a major NSR permit may instead require a minor NSR permit prior to construction. Minor NSR permits are almost exclusively issued by state and local air agencies, although the EPA issues minor NSR permits in some areas of Indian country. Minor NSR requirements are approved into a SIP in order to achieve and maintain the NAAQS. See CAA section 110(a)(2)(C). The CAA and EPA's regulations are less prescriptive regarding minimum requirements for minor NSR, so air agencies generally have more flexibility in designing their minor NSR programs.

    B. What is project aggregation?

    As described in the preceding section, the EPA's implementing regulations for NSR establish a two-step process for determining major NSR applicability for projects at stationary sources. To be subject to major NSR requirements, the project must result in both (1) a significant emissions increase from the project (the determination of which is called “Step 1” of the NSR applicability analysis, or “project emissions accounting”); and (2) a significant net emissions increase at the stationary source, taking account of emission increases and emission decreases attributable to other projects undertaken at the stationary source within a specific time frame (called “Step 2” of the NSR applicability analysis, or “contemporaneous netting”). This approach to applicability makes it necessary to accurately define what constitutes the “project” under review to ensure that the proper emissions increase resulting from the project is used when comparing it with the applicable NSR significance threshold at Step 1 of the NSR applicability analysis.4 Otherwise, a source could conceivably carve up a higher-emitting project into two or more lower-emitting “projects” and avoid triggering major NSR requirements.5 “Project aggregation,” therefore, ensures that nominally-separate projects occurring at a source are treated as a single project for NSR applicability purposes where it is unreasonable not to consider them a single project.6

    4 In this notice, we use the terms “project,” “changes,” and “activities” interchangeably in referring to physical or operational changes that occur at a facility. In some cases, particularly in using the term “activities,” we are actually referring to “sub-projects” that are nominally separate in scope but are nevertheless related to other sub-projects such that they all are part of a larger single project when determining NSR applicability. It is important to note that our use of the term “activities” in this notice is not intended to imply that every “activity” at a plant is a physical or operational change. The EPA recognizes that there are numerous activities undertaken at a facility, of which only a subset will constitute “changes” under the NSR regulations.

    5 Emission changes from separate projects (not included under Step 1 as falling within the project under review) are considered at Step 2 if they are “contemporaneous” and “otherwise creditable” under the NSR regulations. See 40 CFR 52.21(b)(3).

    6 It is not permissible to seek to circumvent NSR by securing several minor NSR permits for individual projects with the effect of avoiding major NSR requirements for what is actually a single project.

    As with certain other aspects of the NSR program, determining what constitutes the “project” is a case-by-case decision that is both site-specific and fact-driven. There is no pre-determined list of activities that should be aggregated for a given industry or industries. It is, therefore, necessary to establish criteria for determining when nominally-separate activities are considered one project under NSR. The EPA has specifically sought to develop principles for aggregating changes such that a project is appropriately defined by the source, so that the emission increases attributable to the project are accurately quantified for purposes of analyzing NSR applicability. Over the years, the EPA articulated its policy on project aggregation through a series of statutory and regulatory interpretations contained in EPA letters and memoranda, the most commonly cited being a 1993 EPA memorandum regarding NSR applicability for activities that had occurred at a 3M facility in Minnesota.7

    7 Memorandum from John B. Rasnic, Director, Stationary Source Compliance Division, OAQPS, to George T. Czerniak, Chief, Air Enforcement Branch, EPA Region 5, titled, “Applicability of New Source Review Circumvention Guidance to 3M—Maplewood, Minnesota” (June 17, 1993) (hereinafter “3M Memorandum”).

    To date, the EPA's focus in formulating criteria for project aggregation has been to ensure that NSR is not circumvented through some artificial separation of activities at Step 1 of the NSR applicability analysis where it would be unreasonable for the source to consider them to be separate projects. However, in a March 13, 2018, memorandum 8 on the topic of “project emissions accounting,” the EPA broached the question of whether it might also somehow be possible for a source to circumvent NSR through some wholly artificial grouping of activities to include decreases in emissions as part of Step 1 of the NSR applicability analysis—i.e., assessing whether a project by itself results in a significant emissions increase before reaching Step 2, where one then determines whether there will be a significant net emissions increase by taking into account all contemporaneous increases and decreases across the source. While we 9 have been mindful of this question in deciding to employ the project aggregation criteria described in this action, we intend to address more fully this scenario in the context of a subsequent rulemaking action on the topic of project emissions accounting.

    8 Memorandum from E. Scott Pruitt, Administrator, to Regional Administrators, titled, “Project Emissions Accounting Under the New Source Review Preconstruction Permitting Program” (March 13, 2018) (hereinafter “Project Emissions Accounting Memorandum”).

    9 In this preamble, the terms “we”, “our” and “us” refer to the EPA.

    C. Regulatory History 1. The 2009 NSR Aggregation Action

    On January 15, 2009, the EPA published a final action—which we are calling the “2009 NSR Aggregation Action”—that described the principles of project aggregation that we would apply when determining whether a source had unreasonably segregated a single project into multiple projects, thereby circumventing the NSR permitting requirements.10 We had initially proposed in 2006 to establish principles for project aggregation through an amendment to the NSR regulations.11 However, because of the difficulty of creating a bright line to determine when activities should be aggregated, we ultimately decided not to adopt the proposed changes to the regulations and elected instead to pursue a less prescriptive approach by describing, in the 2009 action, the EPA's interpretation of the existing regulations and a policy for applying that interpretation going forward.

    10 Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Aggregation and Project Netting (74 FR 2376; January 15, 2009).

    11 Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Debottlenecking, Aggregation, and Project Netting (71 FR 54235; September 14, 2006).

    The 2009 NSR Aggregation Action called for sources and reviewing authorities to aggregate emissions from nominally-separate activities when they are “substantially related” for the purpose of determining whether they are a single modification resulting in a significant emissions increase under NSR at Step 1.12 This “substantially related” criterion is based on an interpretation of the term “project” contained in the major NSR regulations.13 The action also included a statement that the EPA would, as a matter of policy, establish a rebuttable presumption that activities that occurred more than three years apart are not “substantially related” and therefore, generally, should not be aggregated for purposes of determining whether they are a single modification at Step 1.

    12See 74 FR 2378 (“When there is no technical or economic relationship between activities or where the relationship is not substantial, their emissions need not be aggregated for NSR purposes.” (emphasis added)). That is, mere relatedness is not sufficient to upend the source's definition of its project, but sources cannot circumvent NSR by artificially separating a series of emissions-increasing projects into separate projects that fall below the significance thresholds.

    13See, e.g., 40 CFR 52.21(b)(52).

    The 2009 NSR Aggregation Action retained the existing rule text defining the term “project”—i.e., “a physical change in, or change in method of operation of, an existing major stationary source”—and interpreted this rule text to mean that sources and permitting authorities should combine emissions only when nominally-separate changes are “substantially related.” While acknowledging the case-specific nature of a project aggregation determination, the 2009 NSR Aggregation Action described the factors that should be considered when evaluating whether changes are substantially related, including technical or economic dependence. It also offered examples of what it means to be substantially related, and it referenced examples provided in EPA's 2006 proposed rule on project aggregation to further amplify EPA's meaning of the term. Thus, in many respects, the “substantially related” interpretation in the 2009 NSR Aggregation Action was intended to encompass principles for aggregating projects that were similar to those that the EPA had proposed in 2006, but ultimately concluded should not be prescriptively defined in a regulation because of the difficulty of developing a bright line for determining when activities should be aggregated.

    The 2009 NSR Aggregation Action specifically addressed the timing element of project aggregation decisions in multiple ways. It affirmed that timing alone should not be a basis for aggregating projects because the appropriate basis for aggregation is whether there is a substantial technical or economic relationship. It further explained that activities that occur simultaneously should not be presumed to be substantially related, although it is reasonable to presume that activities closer in time are more likely to be substantially related than activities separated by larger time frames. Thus, it affirmed that the timing between activities remains important from a standpoint of framing the analysis of whether a substantial technical or economic relationship exists.

    The 2009 NSR Aggregation Action also expressed that the farther apart projects are timed, the less likely they are to be substantially related, since the activities would likely be part of distinct planning and capital-funding cycles. It stated “the passage of time provides a fairly objective indicator of nonrelatedness between physical or operational changes. Specifically, the greater the time period between activities, the less likely that a deliberate decision was made by the source to split an otherwise `significant' activity into two or more smaller, non-major activities.” 74 FR 2380.

    To this end, the 2009 NSR Aggregation Action affirmed that timing could be a basis to not aggregate separate projects, and it established a policy of applying a rebuttable presumption against aggregating projects that occur 3 or more years apart. The EPA justified its selection of 3 years as the presumptive timeframe in part by reasoning that it “is long enough to ensure a reasonable likelihood that the presumption of independence will be valid, but is short enough to maintain a useful separation between relevant construction cycles, consistent with industry practice. For example, in the case of electric utilities, a commenter explained that companies plan and schedule major turbine outages every four to five years.” Id. However, the EPA did note that this presumptive timeframe may be rebutted in certain circumstances. For instance, the 2009 NSR Aggregation Action noted that where there is “evidence that a company intends to undertake a phased capital improvement project” where the activities “have a substantial economic relationship,” this would likely overcome the presumption that those activities should not be aggregated. Id.

    With regard to implementing the 3-year presumption, the EPA stated “the time period separating physical or operational changes should be calculated based on time of approval (i.e., minor NSR permit issuance). If a permit has not been, or will not be, issued for the physical or operational changes, the time period should be based on when construction commences on the changes.” 74 FR 2381.

    The EPA also explained that a statement within the 3M Memorandum was potentially vulnerable to misapplication and did not properly reflect the “substantially related” criterion. The 3M Memorandum stated the following:

    Some minimum level of research activity and commensurate emissions, source-wide, perhaps could be expected from year to year, as would be expected to keep the 3M plant productive or operable. These emissions and thereby modifications cannot be presumed to be independent given the plant's overall basic purpose to support a variety of research and development activities. Therefore, even though each research project may have been individually conceived and separately funded, it is appropriate to look at the overall expected research activity in assessing NSR applicability and enforcement. 3M Memorandum at 5 (emphasis added).

    In the 2009 NSR Aggregation Action, the EPA expressed concern with this statement from the 3M Memorandum, saying “it could be interpreted to imply that almost any activity is related to any other activity at that source simply because they are both capital investments and support the company's goal to make a profit.” 74 FR 2376, 2379. The suggestion that all changes consistent with the “overall basic purpose” of the plant can and should be aggregated is inconsistent with the interpretation of “project” to include only those changes that have a substantial relationship. While the EPA did not, in the 2009 NSR Aggregation Action, find such a broad approach to project aggregation was often applied after the 3M determination, we nevertheless had concerns that it did not represent an appropriate criterion for aggregating projects for NSR purposes and could be misapplied. Thus, in the 2009 NSR Aggregation Action, we maintained that two nominally separate projects are not substantially related if they are only related to the extent that they both support the source's “overall basic purpose.”

    In summarizing what it means for projects to be substantially related, the 2009 NSR Aggregation Action provided that “in most cases, activities occurring in unrelated portions of a major stationary source (e.g., a plant that makes two separate products and has no equipment shared among the two processing lines) will not be substantially related. The test of a substantial relationship centers around the interrelationship and interdependence of the activities, such that substantially related activities are likely to be jointly planned (i.e., part of the same capital improvement project or engineering study), and occur close in time and at components that are functionally interconnected.” 74 FR 2378. The 2009 NSR Aggregation Action added, “[t]o be `substantially related,' there should be an apparent interconnection—either technically or economically—between the physical and/or operational changes, or a complementary relationship whereby a change at a plant may exist and operate independently, however its benefit is significantly reduced without the other activity. We note that these factors are not necessarily determinative of a substantial relationship, but are merely indicators that may suggest that two or more activities are likely to be substantially related and, therefore, candidates for aggregation.” Id.

    2. Reconsideration and Administrative Stay

    On January 30, 2009, the Natural Resources Defense Council (NRDC) submitted a petition for reconsideration of the 2009 NSR Aggregation Action (the “NRDC Petition”). In response to the NRDC Petition, on February 13, 2009, the EPA convened a proceeding for reconsideration as provided for under the CAA section 307(d)(7)(B), finding that the petitioner had raised objections to the action that arose after the comment period and that were of central relevance to the action.

    To allow time to complete the reconsideration prior to the 2009 NSR Aggregation Action becoming effective, the EPA announced a 90-day administrative stay of the action. See 74 FR 7284 (February 13, 2009). The EPA subsequently completed an action to further delay the effective date until May 18, 2010. See 74 FR 22693 (May 14, 2009). On May 18, 2010, the EPA invoked APA section 705 to stay the action indefinitely pending the proceedings for judicial review or the completion of reconsideration. These stays were intended to allow the EPA the time to take comment on issues that were in question and complete any revisions of the action that became necessary as a result of the reconsideration process.

    As part of the reconsideration proceeding, on April 15, 2010, the EPA published a proposed reconsideration of the 2009 NSR Aggregation Action (the “2010 Reconsideration Proposal”).14 75 FR 19567. At the time, the EPA considered whether some of the points raised by the NRDC petition might demonstrate potential flaws in the process and with fundamental aspects of the 2009 NSR Aggregation Action, including the legal basis, state adoption and implementation, and the clarity of the “substantially related” criterion. In the 2010 Reconsideration Proposal, we expressed agreement with the petitioner on a number of fronts, invited comment on all issues raised in the NRDC petition, and proposed a preferred option to revoke the 2009 NSR Aggregation Action. The 2010 Reconsideration Proposal also referenced a number of the past determinations on project aggregation. See 75 FR 19570-1.

    14 In the 2010 Reconsideration Proposal, the EPA described the 2009 action as the “NSR Aggregation Amendments.” However, since this action did not “amend” the NSR regulations, but rather laid out an interpretation of our current regulations and described a policy on timing for aggregation, the 2009 action is more appropriately described, as it is described herein, as the 2009 NSR Aggregation Action.

    The EPA received a total of 27 comments on our 2010 Reconsideration Proposal. Of those commenters, 20 represented industry parties, three represented state and local air agencies, one represented a tribal government agency, one represented a federal agency, one represented an environmental advocacy group, and one was a private citizen.

    3. Characterizing the 2009 NSR Aggregation Action

    In the history of actions that the EPA has taken regarding its project aggregation policy since 2006, the EPA has variously described the 2009 NSR Aggregation Action as a “rule,” “interpretation,” and “policy.” However, we are now mindful that these terms may be used to refer to three distinct types of agency action that have varying degrees of legal effect and can be changed through different types of procedures. National Mining Association v. McCarthy, 758 F.3d 243, 251-52 (D.C. Cir. 2014). As is explained below, the distinction between the proper procedures for changing rules, interpretations, and policies were not as clear to the agency in 2009 and 2010 as they are today. Recent court decisions have provided more clarity regarding the distinction between these types of actions and the means through which an agency can change them. In order to clarify how state and local permitting authorities may apply the principles for project aggregation that the EPA articulated in 2009, in this final action we seek to address any confusion regarding the nature of that 2009 action.

    We begin by defining what we understand each of these terms to mean when they are used in the discussion that follows. We use the term “rule” to describe a “legislative rule,” which is “[a]n agency action that purports to impose legally binding obligations or prohibitions on regulated parties—and that would be the basis for an enforcement action for violations of those obligations or requirements.” National Mining, 758 F.3d at 251-52. We use the term “interpretation” to describe “an agency action that merely interprets a prior statute or regulation, and does not itself purport to impose new obligations or prohibitions or requirements on regulated parties.” Id. Following the language in the APA, courts have used the term “interpretive rule” to describe this type of action. Id. Here, however, we use the term “interpretation” to more clearly distinguish such an action from a legislative rule. Finally, a “policy” or “statement of policy” is “an agency action that merely explains how the agency will enforce a statute or regulation—in other words, how it will exercise its broad enforcement discretion or permitting discretion under some extant statute or rule.” Id.

    In 2006, we proposed a rule (meaning a legislative rule) that would have changed the text in the Code of Federal Regulations. We included in the preamble an explanation of what we intended that proposed regulatory text to mean. 71 FR 54235 (September 14, 2006). In that Federal Register document, we referred to the action as a “proposed rule.” Id.; see also 71 FR at 54245 (“We are proposing to add our aggregation policy to our NSR regulations . . .”).

    In 2009, we took “final action” in the matter. That is, we completed the action begun in 2006, while not changing the regulatory text itself. 74 FR 2376. In retaining the existing regulatory text defining the term “project,” we said that the action we were taking “interprets that rule text.” Id. The interpretation offered in the 2009 NSR Aggregation Action was that a “project,” which the regulatory text defines to mean “a physical change in, or change in the method of operation of, an existing major stationary source,” 40 CFR 52.21(b)(53) (emphasis added), includes those activities that are “substantially related.” 74 FR 2377. This portion of the 2009 NSR Aggregation Action was an interpretation.15 Although we had proposed to adopt a legislative rule in 2006 and to reflect that in amended regulatory text, we made a final decision in 2009 not to adopt any legislative rule or to amend the text of the NSR regulations. Instead, we chose to announce an interpretation of the existing regulations that drew from EPA's prior experience on the topic of project aggregation, but which to some degree altered the aggregation policy that the EPA had previously articulated in past guidance memoranda and letters.

    15 As explained above, courts follow the APA in referring to this type of action as an “interpretive rule,” but we refer to it herein simply as an “interpretation” to more clearly distinguish such an action from a legislative rule.

    In 2009, we also discussed our intention to apply a rebuttable presumption that activities separated by more than 3 years would not be considered substantially related. This section of the action is best understood as a statement of policy, as we were describing how we intended to exercise our discretion under the NSR regulations, as we interpreted them. We justified the 3-year presumption as a commonsense approach, in that we believed that in practice once 3 years had passed, “it is difficult to argue that th[e activities] are substantially related and constitute a single project.” 74 FR 2380. But recognizing that there may be situations that would warrant an exception to this approach, we indicated that the 3-year presumption would be rebuttable. We indicated our view that it would be allowable and appropriate for other permitting authorities to “also adopt this presumptive timeframe as guidance for their sources.” 74 FR 2381.

    The 2009 action, thus, contained both an interpretation of the existing regulations and a statement of policy on how we intended to implement that interpretation. It is for this reason that we refer to it as the 2009 NSR Aggregation Action. However, when reconsidering that 2009 action, we were not sufficiently clear in the 2010 Reconsideration Proposal regarding the nature of the action we were reconsidering. At times, we described the 2009 action as a “final rule,” and called it the “NSR Aggregation Amendments,” which could be read to suggest that we considered the 2009 NSR Aggregation Action, despite the lack of regulatory text changes, to somehow be a legislative rule, or something that “amended” the existing regulations.

    Much of the confusion stemmed from the fact that at the time we took these actions, judicial precedent in the United States Court of Appeals for District of Columbia Circuit (D.C. Circuit) provided that, where an agency had given a definitive interpretation to one of its own legislative rules, the agency could not thereafter change that interpretation without providing notice and an opportunity to comment. Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997). In part because of this precedent, we were persuaded in 2010 that we should provide an opportunity for the public to comment on the 2009 interpretation, which could have been viewed as a change from the interpretation that the EPA had articulated in 2006 and earlier. In addition, since we understood the Paralyzed Veterans opinion to require a notice-and-comment rulemaking process when an agency wished to change a regulatory interpretation (which, under the APA, would constitute the issuance of an “interpretive rule,” or, as we refer to it herein, an “interpretation”), and because the 2009 NSR Aggregation Action had completed a notice-and-comment rulemaking process that had originally proposed to amend rule text, we chose in the 2010 Reconsideration Proposal to apply the procedures for reconsidering a “legislative rule.”

    The United States Supreme Court has since abrogated the Paralyzed Veterans doctrine, ruling that it was inconsistent with the APA, which by its plain terms does not require agencies to go through a notice-and-comment process in issuing an interpretive rule. Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (2015). Because the 2009 NSR Aggregation Action did not impose legally binding obligations or prohibitions on regulated entities or state permitting authorities, it was not a legislative rule. Since the 2009 NSR Aggregation Action was a combination of interpretation and policy statement, it could have been issued by the EPA without following notice-and-comment rulemaking procedures. 5 U.S.C. 553(b); 42 U.S.C. 7607(d)(1). Further, to the extent the interpretation reflected therein is a change from a prior interpretation, after the Supreme Court decision in Mortgage Bankers, it is now clear that an agency may also change such an interpretation of its regulations without the need to publish notice in the Federal Register and solicit public comment. However, because the EPA has been using notice-and-comment rulemaking procedures up to this point, the EPA believes it is prudent, but not required, in order to retain the interpretation of the NSR regulations with regard to project aggregation that we published in 2009, that we publish this document in the Federal Register. This procedure also allows us to complete the reconsideration proceeding and lift the indefinite administrative stay of the 2009 NSR Aggregation Action. We also believe that it is prudent to respond to those comments we received during the reconsideration process.

    III. This Action A. Overview

    In this action, we are taking final action on reconsideration of the issues for which we asked for comment in the 2010 Reconsideration Proposal. The proposal invited comment on all issues alleged in the petition for reconsideration, including the following: Lack of adequate opportunity for notice and comment on the final action; legal inconsistency with a prior court decision; lack of demonstrated need for a policy change; and lack of clarity over state plan adoption of the action.

    This action addresses all of the petitioner's issues. Moreover, to the extent that commenters lacked an adequate notice-and-comment opportunity in the development of the 2009 NSR Aggregation Action, the reconsideration process has addressed this deficiency by inviting comment in 2010 on the issues raised by the petitioner. This action (1) takes final action on the 2010 Reconsideration Proposal and retains the 2009 NSR Aggregation Action without adopting any changes to the rule text or the interpretation and statement of policy contained therein; (2) completes the CAA section 307 reconsideration proceeding on the 2009 NSR Aggregation Action to address any potential notice-and-comment deficiency; and (3) lifts the APA section 705 stay of the 2009 NSR Aggregation Action. The conclusions reached and expressed in this final action are based on careful review of the public comments on the 2010 Reconsideration Proposal.16

    16 In the docket for this action, we are making available a document, “Response to Public Comments for Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Aggregation; Reconsideration”, in which the EPA responds to the public comments received on the 2010 Reconsideration Proposal.

    This final decision on reconsideration of the 2009 NSR Aggregation Action does not finalize the 2010 Reconsideration Proposal's preferred option to revoke the 2009 NSR Aggregation Action's interpretation and policy. Upon reviewing public comments, after further deliberation, and taking account of the Administration's priorities and policy goals, the EPA has concluded that the interpretation and policy in the 2009 NSR Aggregation Action should be retained.17 We believe the 2009 NSR Aggregation Action articulates a reasonable standard for aggregating related projects and is consistent with the CAA and our regulations.

    17See Presidential Memorandum on Streamlining Permitting and Reducing Regulatory burdens for Domestic Manufacturing (82 FR 8667; January 24, 2017); Executive Order 13777 on Enforcing the Regulatory Reform Agenda (82 FR 12285, March 1, 2017).

    With regard to the petitioner's concern about how the 2009 NSR Aggregation Action applies to EPA-approved permitting programs, we affirm our decision in 2009 not to revise the current rule text, and instead to conclude that the terms “project” and “a physical change in, or change in method of operation of” in the existing NSR regulations can be reasonably interpreted as already incorporating the “substantially related” test set forth in the 2009 preamble. Because the 2009 NSR Aggregation Action did not amend the rule text, state and local air agencies with approved state implementation plans (SIPs) are not required to amend those plans to adopt this interpretation that projects should be aggregated when “substantially related.” If state and local agencies want to adopt this interpretation, we believe that in most cases this interpretation can be applied without formal adoption into their rules. We encourage state and local air agencies to follow this interpretation to ensure greater national consistency in making NSR applicability determinations, though state and local air agencies with approved SIPs can continue to apply their own interpretation of the scope of a “project.”

    Consistent with comments received on the EPA's 2006 proposed rule, commenters on the 2010 Reconsideration Proposal raised concerns with the clarity of our prior policy on project aggregation, which was developed over time through a number of post hoc site-specific applicability determinations. We anticipate the 2009 NSR Aggregation Action will reduce any confusion over our past policy and provide sources and regulators with increased clarity when determining whether projects should be aggregated for NSR purposes. The EPA believes the principles outlined in the 2009 NSR Aggregation Action will not only help to achieve greater national consistency in project aggregation determinations but will also streamline NSR permitting by reducing the time needed to assess whether nominally-separate physical and operational changes should be aggregated for NSR applicability purposes.

    As this action officially completes our reconsideration proceeding, we are also lifting the APA section 705 stay and announcing the effective date of the 2009 NSR Aggregation.

    B. Retaining the 2009 NSR Aggregation Action 1. An Interpretation Is Needed

    As explained earlier in this document, the EPA's past position on project aggregation—prior to the 2009 NSR Aggregation Action—was not established through a rule or through a single, comprehensive policy statement. Rather, the policy had been articulated by the EPA through a number of site-specific determinations, many of which were issued after the activities subject to the determination had already occurred. Navigating this collection of EPA statements, capturing their salient points, and determining whether and how to apply their rationale to new determinations with different fact patterns was arguably a challenge for sources and permitting authorities over the years. Such an approach lacked clarity for sources and permitting authorities, making it sometimes difficult to understand the overall policy so they could effectively apply it prospectively.

    There is a substantive distinction between making case-by-case determinations after-the-fact and making case-by-case determinations prospectively—i.e., as part of a permitting applicability review—for NSR purposes. Many post hoc determinations are made with an eye to determining whether the requirements of NSR were circumvented, whereas prospective determinations are made with the purpose of giving sources an opportunity to evaluate modifications during the planning or preconstruction phase in order to determine whether a planned or proposed modification requires a PSD or NNSR permit, so as not to circumvent the NSR process. While the underlying criteria for assessing whether to group multiple activities as a single project should be the same regardless of whether the determination is prospective or post hoc, a post hoc determination is often very specific to the industry and the individual fact pattern under consideration, and therefore applying the determination's rationale prospectively, while potentially informative, could be misapplied to situations involving different industries or having different fact patterns. The 2009 NSR Aggregation Action also recognized the limitations of having a policy that is based on the specific fact patterns of past determinations: “the decision to aggregate or disaggregate activities is highly case-dependent, such that letters and memoranda that opine on whether to aggregate a particular set of activities at one facility are not necessarily transferable to a decision to aggregate a similar set of activities but with a slightly different set of circumstances at a different plant.” 74 FR 2377.

    Previous agency statements can be taken out of context or misunderstood when reviewing projects having a different set of facts. For example, while the 3M Memorandum was considered by some as the EPA's guiding policy on project aggregation, parties could certainly misconstrue portions of that statement to suggest that all projects occurring within the same timeframe should be aggregated, or that all projects occurring at a facility should be aggregated as long as they contribute to the source's “overall basic purpose.” Such an approach—i.e., to aggregate projects simply because they may occur close in time or may support the same overall purpose of the facility—fails to take proper account of the actual interrelationship of activities. Meanwhile, in other parts of the 3M Memorandum, the EPA's statements clearly indicate that, in order to justify aggregating activities for purposes of major NSR, the reasonable approach is to determine whether those activities are related in some meaningful way: e.g., “[a]uthorities should scrutinize [permit] applications that relate to the same process or units . . .”; “two or more related minor changes over a short time period should be studied for possible circumvention.” 3M Memorandum at 3 (emphasis added). We consequently do not believe that a broader approach to aggregating activities—i.e., based on their contribution to a plant's overall purpose—is an accurate characterization of the EPA's view at the time of the 3M determination. Furthermore, we do not believe it reflects EPA's view in any other statement made by the agency over the years.

    We noted in the 2010 Reconsideration Proposal that “in reviewing the record for the NSR Aggregation Amendments, we find that the only factual support for the contention that our historic approach caused confusion was anecdotal,” and that the “parties supporting a change in policy failed to provide us with any characterization of the overall level of uncertainty or other problems resulting from the existing policy on aggregation.” 75 FR 19572. However, after further consideration, the EPA finds this to be an insufficient basis for changing or revoking the 2009 NSR Aggregation Action. So-called “anecdotal” evidence is nevertheless still evidence of which the agency can properly take account if, in its judgment, it finds it to be meaningful. Indeed, the criticism of relying on “anecdotes” suggests that examples of problems offered in public comments should be ignored. The EPA is required to take into account the comments submitted. Furthermore, merely because the overall level of uncertainty demonstrated by public comments cannot be characterized—a given entity would not necessarily know whether others were as uncertain as they were—does not serve to demonstrate that the 2009 NSR Aggregation Action was unwarranted. We believe that the evidence before the EPA in 2009 and the agency's own extensive permitting experience, coupled with statements from public commenters in this reconsideration proceeding, clearly indicates that the EPA's prior policy on project aggregation lacked clarity and promoted confusion. The 2009 NSR Aggregation Action provides a more concise formulation for how to interpret the scope of a project and provides clarity for permitting authorities, regulated entities, and the public.

    Finally, the 2010 Reconsideration Proposal states that “[w]hile the [2009 NSR Aggregation Action] may, in some respects, appear clearer than our previous policy, we are not convinced that it achieved enough additional clarity to improve the process of making aggregation assessments by sources and reviewing authorities. . . .” 75 FR 19573. After further consideration, we now believe that providing clarity in a single document is a better approach than continuing the previous policy that was based on a host of EPA letters and memoranda, which collectively provided less clarity. We recognize there will continue to be “gray areas” that sources and permitting authorities will ultimately have to work through in deciding whether or not to aggregate a set of changes at a facility. But this is attributable to the inherent nature of such decisions, not to some deficiency in the 2009 NSR Aggregation Action. That does not mean that the EPA should abandon the clarity it attempted to provide in that action.

    2. “Substantially Related” Is an Appropriate Standard

    As noted above, the EPA continues to believe that there is a need for some criteria for determining when nominally-separate changes should be considered a single “project” for purposes of determining NSR applicability. It remains necessary to draw a line between those activities that are to be considered a single “physical or operational change” and those that are not. In this action, we are affirming that the 2009 NSR Aggregation Action's “substantially related” test is an appropriate standard for project aggregation.

    As explained elsewhere in this document, the nature of the project aggregation determination is case-specific, which means it is inherently difficult to establish a bright line standard: Such a standard may be reasonable when conducting an evaluation of project scope in one situation, but could prove to be unreasonable or unworkable when applied in other situations. This case-by-case aspect necessitates that the EPA establish a reasonable general principle to apply, and we believe the “substantially related” criterion is an appropriate principle for concluding that claimed separate projects are a single project for NSR applicability purposes. We believe the substantially related criterion is sound from a policy and implementation perspective.

    The 2009 NSR Aggregation Action effectively addresses certain past EPA statements in relation to implementing the “substantially related” test for future project aggregation determinations. The 2009 NSR Aggregation Action outlined the role of timing—specifically, that timing alone is not determinative of whether activities are substantially related and that, as a policy matter, activities separated in time by three or more years may be presumed to be not substantially related. The 2009 NSR Aggregation Action also rejected the use of an “overall basic purpose” criterion for aggregating physical or operational changes, since it could have been read to constitute an open-ended standard, resulting in the unreasonable or improper aggregation of unrelated activities.

    Importantly, we do not believe the 2009 NSR Aggregation Action reflects a major shift in policy from EPA's prior policy on project aggregation. To the contrary, we believe that in many ways the 2009 NSR Aggregation Action clarifies and supplements previous statements of policy. For example, in the case of timing, the 3M Memorandum suggested that when minor NSR permit applications occur “over a short time period (e.g., 1 year or 18 months), the modifications may require major new source review.” 3M Memorandum at 4 (emphasis added). Thus, the 3M Memorandum never said timing was the sole criterion or otherwise conclusive. Rather, timing was a reason to look more closely at the relevant activities' “intrinsic relationship with each other (physical proximity, stages of production process, etc.) and their impact on economic viability of the plant (scheduling down time in light of production targets, economies of scale, etc.).” Id. Similarly, the 2009 NSR Aggregation Action said that “whether a physical or operational change is dependent on another for its viability is still a relevant factor in assessing whether the changes should be aggregated,” and “substantially related activities are likely to be jointly planned (i.e., part of the same capital improvement project or engineering study), and occur close in time and at components that are functionally interconnected.” 74 FR 2378.

    In addition, the “substantially related” criterion is not materially different from the factors the agency has considered in previous project aggregation decisions. Over time, the EPA has used various terms and phrases—e.g., “intrinsic relationship” as was used in the 3M Memorandum—to describe the basis for why multiple nominally-separate changes at a source should be treated as a single project for NSR applicability purposes. The term “substantially related” is, therefore, little more than a functional synonym for other terms that the EPA has historically used to characterize its project aggregation policy. While sources and permitting authorities making project aggregation determinations may continue to use the EPA's previous terms, and may rely on other terms or phrases going forward, we believe that the terminology used should ultimately express a standard for determining whether the activities are or are not substantially related. Thus, we believe “substantially related” works effectively as an umbrella term to include these previous descriptors for analyzing the relationship between projects that warrant aggregation.

    Finally, the matter of defining the scope of a project was raised, in a different context, in the Project Emissions Accounting Memorandum issued on March 13, 2018. There, we observed that, as general matter, the source itself is responsible for defining the scope of its own project, subject to the limitation that the source cannot seek to circumvent NSR by characterizing the proposed project in a way that would separate a single project into multiple projects. We further pointed out that, “[s]ubject to the equivalent understanding that it might be possible [for a source] to circumvent NSR through some wholly artificial grouping of activities, the EPA does not interpret its NSR regulations as directing the agency to preclude a source from reasonably defining its proposed project broadly, to reflect multiple activities.” 18

    18 Project Emissions Accounting Memorandum at 9 (emphasis added).

    In the Project Emissions Accounting Memorandum, we noted that EPA was then evaluating whether to undertake a future notice-and-comment rulemaking to implement, through changes to the regulatory text itself, the interpretation of the NSR applicability provisions set forth in the memorandum. At such time as we proceed with that rulemaking, we will look to provide further guidance with respect to properly accounting for the scope of a project in which a source is seeking to take account of emission decreases at Step 1 of the NSR applicability analysis. Meanwhile, in advance of that rulemaking, we take the opportunity here to clarify that, as a general matter, it is neither necessary nor appropriate to take into consideration such matters as whether emission decreases attributable to a particular activity are “integral” to the overall project, as had once been proposed by a petroleum refinery to the EPA.19 Our current view is that the concerns regarding the real possibility that NSR might be circumvented through some artificial separation of activities where it would be unreasonable to consider them separate projects—i.e., the concerns which the 2009 NSR Aggregation Action is intended to address—are not so obviously presented by the situation where a source itself is choosing to group together, as a single project, activities to which a projected emissions decrease is attributable.20 In a future rulemaking to clarify, through regulatory text changes, the interpretation set forth in the Project Emissions Accounting Memorandum, the EPA will be taking comment on whether our current view of this issue is reasonable, whether the “substantially related” criterion described here may speak to this issue, and other related matters.

    19 Letter from Steven C. Riva, U.S. EPA Region 2, to Kathleen Antoine, HOVENSA, LLC, “Re: Emission Decreases Integral to Projects” (June 7, 2010) (“EPA, by this letter, is not opining on the merits of HOVENSA's analysis regarding the underlying basis for `integral to the project' approach.”).

    20 Indeed, the EPA views this latter situation as one where sources could potentially be incentivized to seek out emission reductions that might otherwise be foregone entirely—e.g., because of perceived complexity with contemporaneous netting under Step 2 of the NSR applicability analysis.

    3. Legal Basis Is Sound

    We believe the 2009 NSR Aggregation Action is legally supportable and makes sense for sometimes difficult case-by-case determinations required for assessing whether to aggregate nominally-separate projects. Contrary to the petitioner's argument, the use of the term “substantially related” would not create a carve-out from the scope of the statutory definition of “modification.”

    Drawing on arguments made by NRDC in its petition, in 2010 we had postulated, while “[m]uch of the emphasis” of New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006) (New York II) and other cases had been on whether the EPA “could exclude small changes from being considered potential modifications as defined in the Act,” the court's reasoning in New York II also applies to a rule that would split apart one change into separate changes in order to limit the applicability of NSR.” 75 FR 19571. The D.C. Circuit's New York II decision had focused on whether the EPA's amendment to the “routine maintenance, repair and replacement” provision of the NSR regulations which provided that a specifically defined category of “equipment replacement” projects did not constitute a “physical change or change in the method of operation,” was lawful. The court in New York II held that it was not lawful, opining that the EPA “must apply NSR whenever a source conducts an emissions-increasing activity that fits within one of the ordinary meanings of physical change.” 443 F.3d at 885.

    In the 2010 Reconsideration Proposal, we said we then read the D.C. Circuit's opinion as “requir[ing] EPA to aggregate any group of small changes” that were “sufficiently related to `fit[] within one of the ordinary meanings of `physical change.' ” 75 FR 19571. In this regard, we said that we “agree[d] with [NRDC's] contention that, to the extent that our `substantially related' interpretation,” as set forth in the 2009 NSR Aggregation Action, would “exclude meanings that fit within a reasonable understanding of the ordinary meaning of `any physical change,' ” that interpretation would “impermissibly narrow the scope of CAA section 111(a)(4).” Id. We sought comment on this analysis of the statute and New York II.

    Upon further consideration and after reviewing the public comments on this reconsideration proposal, the agency does not read New York II as supportive of the notion that the “substantially related” interpretation set forth in the 2009 NSR Aggregation Action is somehow contrary to the language of CAA section 111(a)(4). While we had previously suggested that there might be some weight to NRDC's argument that the “ `aggregation of nominally separate changes that are not substantially related' also may be within an ordinary meaning of physical change,” 75 FR 19571, citing NRDC Petition at 5-6 (emphasis in original), we do not now perceive any merit in NRDC's assertion.

    With NRDC's arguments in mind, the agency at one point read New York II as suggesting that the CAA “prohibits EPA from picking and choosing among meanings of the phrase `any physical change . . . or change in the method of operation' if it would result in omitting a common meaning that would subject an emission increase to review.” 75 FR 19571. Based on this, we were concerned that, “[i]f `substantially related' would omit an ordinary, common meaning of physical change that would bring an emissions-increasing project under review, then the definition would eliminate a type of physical change that Congress intended to cover (i.e., the change that consists of the group of nominally-separate changes that comprise a project but do not qualify as `substantially related').” Id. Thus, we reasoned at the time “that, to the extent that [the] `substantially related' interpretation would exclude meanings that fit within a reasonable understanding of the ordinary meaning of `any physical change,' ” then the 2009 NSR Aggregation Action “would impermissibly narrow the scope of CAA § 111(a)(4).” Id.

    We now believe that such concerns were unwarranted. Upon further consideration, we do not view New York II, properly understood, as providing support for the proposition that a “common meaning” of a single “change” would include multiple changes, much less multiple, separate changes that are not substantially related, such as changes which are undertaken at a source at different times, or undertaken for different purposes, or which are otherwise unrelated to each other. That is, the EPA's current view is that nothing in New York II supports, much less compels, a reading of the CAA under which all “nominally-separate changes” are deemed to “comprise” a single “project,” where those changes are not substantially related. Nevertheless, under the interpretation reflected in the 2009 NSR Aggregation Action, multiple changes that are “substantially related” are to be considered to be one project for purposes of determining NSR applicability.

    Finally, to the extent that NRDC argues that the aggregation of activities that are not substantially related into one activity that fits within the ordinary meaning of a physical change—and not aggregating those changes to compare to the significance level would violate New York II—it has provided no examples where that may be the case and have not followed the reasoning of their argument to its logical conclusion. This argument would require the EPA to prove a negative: That whatever interpretation or policy on aggregation we adopted would not exclude any level of aggregated activities that fit within the ordinary meaning of a physical change. This impossible task would mean that even the EPA aggregation policy prior to the 2009 NSR Aggregation Action was in violation of New York II because it allowed a facility to sometimes disaggregate activities when, if aggregated, they would fall within the ordinary meaning of physical change. A better approach to defining the scope of the ordinary meaning of physical change is to provide, as we did in the 2009 NSR Aggregation Action, a principle for source owners or operators to follow, here the “substantially related” principle, when defining the scope of “a physical change in, or change in method of operation of,” pursuant to 40 CFR 52.21(b)(52), in a particular case.

    4. Adoption Is Not Mandatory

    We acknowledge that, by not making any changes to the regulatory text, as had been proposed, it may have been somewhat unclear to some whether state and local air agencies have to adopt or implement the elements of the 2009 NSR Aggregation Action, and, if so, how they should do so. In the 2010 Reconsideration Proposal, we expressed our agreement with “NRDC's assertion that the state and local implementation requirements of the NSR Aggregation Amendments are unclear,” and that the “question of whether a SIP amendment is required when the CFR remains unchanged is likely to cause confusion for reviewing authorities and other stakeholders.” 75 FR 19572. Taking account of this confusion, the agency considered that it “added support for our preferred position in this notice, which is to revoke” the 2009 NSR Aggregation Action. Id.

    We now find such concerns over potential “confusion” to have been overstated. In the Response to Comments document for the 2009 NSR Aggregation Action (2009 RTC), the agency had specifically noted that “[s]ince we are not promulgating the proposed rule regulatory changes, we are not adding NSR minimum program elements that would require states to modify their SIP.” 2009 RTC at 56. The agency continued that it would “begin applying the interpretations laid out in the final action to activities that postdate actions after the effective date of the final rulemaking notice.” Id. “At that time,” the EPA explained, states “may also begin applying EPA's interpretations to the extent they do not conflict with their approved SIPs.” Id. We now believe it is likely that state and local permitting authorities would have understood this straightforward explanation.

    Further, as previously discussed, determining whether a source has sought to circumvent NSR by failing to treat nominally-separate activities as a single project is inherently case-specific and fact-dependent. Given this, it is not reasonable to imagine that perfect clarity could ever be achieved. To the extent, however, that the 2009 NSR Aggregation Action, in setting forth both the “substantially related” interpretation and the EPA's policy for applying that interpretation, provides some meaningful guidance to sources and to state and local permitting authorities, we fail to understand how revoking the 2009 NSR Aggregation Action would serve to promote clarity.

    Indeed, in this regard, we believe in most cases that sources and state and local air agencies already implement a standard that is similar to the substantially related standard. To the extent that a state or local air agency desires to formally adopt the 2009 NSR Aggregation Action, the EPA will provide support to those agencies to process SIP submittals and issue approvals, as warranted. In most cases, however, we do not think changes in state plans would be needed to implement this interpretation.

    C. Completing the Reconsideration Proceeding

    We believe that this final action addresses the concerns raised by the petitioner with respect to the 2009 NSR Aggregation Action—e.g., adequate notice and logical outgrowth, the legal underpinnings of the action, state adoption, and our need to change or clarify our aggregation policy. Accordingly, this action concludes the reconsideration proceeding of the 2009 NSR Aggregation Action.

    D. Lifting the Administrative Stay; Announcement of Effective Date

    On May 18, 2010, after a series of temporary administrative stays of the 2009 NSR Aggregation Action, the EPA exercised the provisions of the APA section 705 to postpone the effectiveness of the action “until judicial review is no longer pending or the EPA completes the reconsideration process.” 75 FR 27644. Since this action concludes the reconsideration proceeding, and we have affirmed the legal consistency and policy appropriateness of the 2009 NSR Aggregation Action, we are hereby lifting the indefinite administrative stay and announcing the effective date of the action. The effective date of the 2009 NSR Aggregation Action, published in the Federal Register on January 15, 2009 (74 FR 2376), and delayed on February 13, 2009 (74 FR 7284), May 14, 2009 (74 FR 22693), and May 18, 2010 (75 FR 27643), begins again on November 15, 2018.

    IV. Environmental Justice Considerations

    We believe that this action does not have any effect on environmental justice communities. Through this action, the EPA is affirming its interpretation that its current NSR regulations allow for the 2009 NSR Aggregation Action and, as such, no increased burden is expected for source owners, permitting authorities, or environmental justice communities.

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

    This action is a significant 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.

    VI. Judicial Review

    Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final agency actions by the EPA under the CAA. This section provides, in part, that petitions for review must be filed in the U.S. Court of Appeals for the District of Columbia Circuit (i) when the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator” or (ii) when such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”

    This action completes the reconsideration proceeding and makes effective the 2009 NSR Aggregation Action. The 2009 NSR Aggregation Action is an interpretation of NSR rule language that applies in every state and territory in the United States where EPA is the permitting authority. Therefore, to the extent that this action is a “final action,” it is “nationally applicable” within the meaning of CAA section 307(b)(1).

    Under section 307(b)(1) of the Act, to the extent that this action is judicially reviewable, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by January 14, 2019.

    VII. Statutory Authority

    The statutory authority for this action is provided by section 301(a) of the CAA as amended (42 U.S.C. 7601(a)). This document is also subject to section 307(d) of the CAA (42 U.S.C. 7407(d)).

    Dated: November 7, 2018. Andrew R. Wheeler, Acting Administrator.
    [FR Doc. 2018-24820 Filed 11-14-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2017-0744; FRL-9985-45] Azoxystrobin; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of azoxystrobin in or on beet, sugar, roots and vegetable, root, except sugar beet, subgroup 1B. Syngenta Crop Protection, LLC requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective November 15, 2018. Objections and requests for hearings must be received on or before January 14, 2019, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2017-0744, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

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

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

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

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0744 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before January 14, 2019. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0744, by one of the following methods:

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

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

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Summary of Petitioned-For Tolerance

    In the Federal Register of March 6, 2018 (83 FR 9471) (FRL-9973-27), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 7F8590) by Syngenta Crop Protection, LLC, 18300 Greensboro Road, NC. The petition requested that 40 CFR 180.507 be amended by establishing tolerances for residues of the fungicide azoxystrobin, in or on beet, sugar, roots at 5.0 parts per million (ppm) and vegetable, root, subgroup 1B at 0.5 ppm. The petition also requested that the tolerance for vegetable, root, subgroup 1A be removed once these new tolerances are established. That document referenced a summary of the petition prepared by Syngenta Crop Protection, the registrant, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

    Based upon review of the data supporting the petition, EPA is establishing the tolerance level for vegetable, root, subgroup 1B at 1.0 ppm instead of 0.5 ppm. Additionally, the Agency has revised the commodity name to vegetable, root, except sugar beet, subgroup 1B. The reason for these changes are explained in Unit IV.D.

    III. Aggregate Risk Assessment and Determination of Safety

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

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

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

    With repeated dosing by the oral route, the liver and bile ducts were consistently affected by azoxystrobin. Liver and biliary effects were seen in rats (increased liver weights, gross and histopathological lesions of the bile duct and liver), and in dogs (increased liver weights, clinical observations including fluid feces and salivation) and clinical chemistry alterations (including increased serum levels of alkaline phosphatase, and gamma-glutamyl transferase; and decreases in serum albumin). The effects seen are indicative of changes to liver/biliary function. Decreased body weight (rats and mice) and decreased body weight gain (rats and rabbits) were also consistent findings across studies and species. Other effects including decreased food intake/utilization, increased diarrhea and other clinical toxicity observations such as urinary incontinence, salivation, hunched postures and distended abdomens were also seen in various studies (developmental toxicity, reproduction, and 90-day oral toxicity) in rats. Inhalation exposure to a soluble-concentrate (SC) formulation of azoxystrobin resulted in adverse microscopic changes in the nasal cavity and larynx.

    No developmental effects were seen in the rabbit and rat developmental toxicity studies and no reproductive or offspring effects were seen in the 2-generation rat reproduction study. In the reproduction study, decreased body weights and increased adjusted liver weights were observed at the same dose in both offspring and parental animals. Therefore, the toxicity data showed no increased susceptibility in the young.

    In the acute and subchronic neurotoxicity studies, there were no consistent indications of treatment-related neurotoxicity. There was no evidence of neurotoxicity seen in the acute neurotoxicity study in rats from a single gavage dose up to 2,000 mg/kg. There was also no evidence of neurotoxicity seen in the subchronic neurotoxicity study in rats up to the highest dose tested (201 mg/kg/day). Based on the toxicity profile of azoxystrobin, a developmental neurotoxicity study in rats is not needed.

    Although azoxystrobin induced a weak mutagenic response in the mouse lymphoma assay (non-linear, slight but significant increases in the mutation frequency of mouse lymphoma cells), the activity expressed in vitro is not expected to be expressed in whole animals. There was no evidence of carcinogenicity in rats and mice at acceptable tested dose levels; therefore, azoxystrobin is classified as “not likely to be carcinogenic to humans”.

    Azoxystrobin has a low order of acute toxicity via oral, dermal and inhalation routes of exposure. Azoxystrobin is not an eye or skin irritant and is not a skin sensitizer.

    Specific information on the studies received and the nature of the adverse effects caused by azoxystrobin as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document Azoxystrobin: Human Health Risk Assessment for a New Post-Harvest Use on Sugar Beets and Amend the existing Vegetable, Root, Subgroup 1A to Vegetable, Root, Subgroup 1B (except Sugar Beets) at pages 11-18 in docket ID number EPA-HQ-OPP-2017-0744.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

    A summary of the toxicological endpoints for azoxystrobin used for human risk assessment is shown in Table 1 of this unit.

    Table 1—Summary of Toxicological Doses and Endpoints for Azoxystrobin for Use in Human Health Risk Assessment Exposure/scenario Point of departure and uncertainty/safety factors RfD, PAD, LOC for risk
  • assessment
  • Study and toxicological effects
    Acute dietary (All populations) LOAEL = 200 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • Acute RfD = 0.67 mg/kg/day
  • aPAD = 0.67 mg/kg/day
  • Acute Neurotoxicity—Rat.
  • LOAEL = 200 mg/kg/day based on diarrhea at two-hours post dose at all dose levels tested.
  • FQPA SF = 3x Chronic dietary (All populations) NOAEL = 18 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • Chronic RfD = 0.18 mg/kg/day
  • cPAD = 0.18 mg/kg/day
  • Combined Chronic Toxicity/Carcinogenicity Feeding Study—Rat.
  • LOAEL = 82.4/117 mg/kg/day (M/F) based on reduced body weights in both sexes and bile duct lesions in males.
  • FQPA SF = 1x Episodic granule ingestion (Children 1 to <2 years old) LOAEL = 200 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • Residential LOC for MOE = 300 Acute Neurotoxicity—Rat.
  • LOAEL = 200 mg/kg/day based on diarrhea at two-hours post dose at all dose levels tested.
  • FQPA SF = 3x Incidental oral short-term (1-30 days) (Intermediate-term (1-6 months)) NOAEL = 35 mg/kg/day
  • UFA= 10x
  • UFH = 10x
  • Residential LOC for MOE = 100 2-generation reproduction study—Rats.
  • LOAEL = 165 mg/kg/day based on decreased pup weights in both males and females (↓8-21%).
  • FQPA SF = 1x Inhalation (All durations) Inhalation study NOAEL = 3.8 µg/L (inhalation absorption rate = 100%)
  • UFA = 3x
  • LOC for MOE = 30 28-Day inhalation toxicity study in rats on SC formulation+.
  • LOAEL = 12.2 µg/L based on adverse histopathological changes in the larynx (squamous metaplasia) and nasal cavity (metaplasia of the respiratory epithelium). There was an increase in severity with increases in the test concentrations.
  • UFH = 10x
  • FQPA SF = 1x
  • Cancer (Oral, dermal, inhalation) Azoxystrobin is classified as “not likely to be carcinogenic to humans”. FQPA SF = Food Quality Protection Act Safety Factor. LOAEL = lowest-observed-adverse-effect-level. LOC = level of concern. mg/kg/day = milligram/kilogram/day. MOE = margin of exposure. NOAEL = no-observed-adverse-effect-level. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. UF = uncertainty factor. UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies).
    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to azoxystrobin, EPA considered exposure under the petitioned-for tolerances as well as all existing azoxystrobin tolerances in 40 CFR 180.507. EPA assessed dietary exposures from azoxystrobin in food as follows:

    i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for azoxystrobin. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) Nationwide Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA) conducted from 2003-2008. As to residue levels in food, the acute dietary analysis was obtained from the Dietary Exposure Evaluation Model using the Food Commodity Intake Database (DEEM-FCID; version 3.16). The assessment is based on 100% of the registered crops treated, and tolerance-level residues for all existing and proposed commodities, except citrus fruits where the highest field trial residue was used as a refinement.

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA Nationwide Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA) conducted from 2003-2008. As to residue levels in food, the chronic dietary analysis was obtained from the Dietary Exposure Evaluation Model using the Food Commodity Intake Database (DEEM-FCID; version 3.16). The assessment was partially refined, and used tolerance-level residues for all commodities and average percent crop treated (PCT) estimates when available.

    iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that azoxystrobin does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

    iv. Anticipated residue and percent crop treated (PCT) information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

    Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

    • Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

    • Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

    • Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area.

    In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

    The Agency estimated the PCT for existing uses for the chronic dietary exposure assessment as follows: Almonds, 20%; apricots, 10%; artichokes, 20%; asparagus, <2.5%; barley, <2.5%; green beans, 15%; blueberries, 15%; broccoli, 10%; cabbage, 10%; caneberries, 5%; cantaloupes, 20%; carrots, 10%; cauliflower, <2.5%; celery, 10%; corn, <2.5%; cotton, <2.5%; cotton (seed treatment), 25%; cucumbers, 20%; dry beans/peas, <2.5%; eggplant, 30%; garlic, 70%; grapefruit, 20%; grapes, 5%; hazelnuts, 5%; lemons, <2.5%; lettuce, <2.5%; nectarines, <2.5%; onions, 5%; oranges, 5%; peaches, 5%; peanuts, 20%; peanuts (seed treatment), 30%; green peas, <2.5%; pecans, 5%; peppers, 20%; pistachios, 5%; plums/prunes, <2.5%; potatoes, 40%; potatoes (seed treatment), <1%; pumpkins, 20%; rice, 40%; soybeans, 5%; soybeans (seed treatment), <1%; spinach, 10%; squash, 20%; strawberries, 25%; sugar beets, 10%; sugar beets (seed treatment), <2.5%; sweet corn, 15%; tangelos, 25%; tangerines, 10%; tobacco, 15%; tomatoes, 25%; walnuts, <2.5%; watermelons, 15%; wheat, 5%; wheat seed (seed treatment), <1%. For crops not specified, 100 PCT was used.

    In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and California Department of Pesticide Regulation (CalDPR) Pesticide Use Reporting (PUR) for the chemical/crop combination for the most recent 10 years. EPA uses an average PCT for chronic dietary risk analysis and a maximum PCT for acute dietary risk analysis. The average PCT figures for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding up to the nearest 5%, except for those situations in which the average PCT is less than 1% or less than 2.5%. In those cases, the Agency would use less than 1% or less than 2.5% as the average PCT value, respectively. The maximum PCT figure is the highest observed maximum value reported within the most recent 10 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%, except where the maximum PCT is less than 2.5%, in which case, the Agency uses less than 2.5% as the maximum PCT.

    The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which azoxystrobin may be applied in a particular area.

    2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for azoxystrobin in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of azoxystrobin. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

    Based on the Surface Water Concentration Calculator (SWCC) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of azoxystrobin for acute exposures are estimated to be 70.2 parts per billion (ppb) for surface water and 3.1 ppb for ground water. For chronic exposures for non-cancer assessments the EDWCs of azoxystrobin are estimated to be 48.5 ppb for surface water and 3.1 ppb for ground water.

    Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 70.2 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 48.5 ppb was used to assess the contribution to drinking water.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Azoxystrobin is currently registered for the following uses that could result in residential exposures: Conventional residential use on turf and ornamentals and antimicrobial uses as a materials preservative in paints and plastics. The proposed use will not result in additional residential exposures. Existing residential uses result in (1) short-term handler dermal and inhalation exposures for adults; (2) short-term post-application dermal exposures for adults, youth 11 to 16 years old, children 6 to 11 years old, and children 1 to <2 years old; and (3) short-term incidental oral exposures to children 1 to <2 years old. Since the effects from inhalation exposure differ from effects from oral exposure, the residential handler exposures are not aggregated with dietary exposures. No hazard was identified for dermal exposure. The Agency's assessment of risk aggregates residential exposure from hand-to-mouth incidental oral exposures to children 1 to <2 years old from preserved vinyl flooring.

    Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

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

    EPA has not found azoxystrobin to share a common mechanism of toxicity with any other substances, and azoxystrobin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that azoxystrobin does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

    D. Safety Factor for Infants and Children

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

    2. Prenatal and postnatal sensitivity. No developmental effects were seen in the rabbit and rat developmental toxicity studies, and no reproductive or offspring effects were seen in the 2-generation rat reproduction study. In the reproduction study, decreased body weights and increased adjusted liver weights were observed at the same dose in both offspring and parental animals. Therefore, the toxicity data showed no increased susceptibility in the young.

    3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X for all exposure scenarios except acute exposure and episodic granule ingestion. For assessing acute dietary risk and episodic oral ingestion of granules, EPA is retaining an FQPA factor of 3X to account for the use of a LOAEL from the acute neurotoxicity study to derive an acute reference dose. The Agency believes that a 3X FQPA SF (as opposed to a 10X) will be adequate to extrapolate a NOAEL in assessing acute risk based on the following considerations:

    • The LOAEL is based on a transient effect (diarrhea in rats) expected to be relatively insignificant in nature. This effect is also seen in other chemicals of the same class.

    • The diarrhea was only seen in studies using gavage dosing in the rat, but not in studies using repeat dosing through dietary administration in rats or mice, and not through gavage dosing in rabbits.

    • The very high dose level needed to reach the acute oral lethal dose (LD)50 (>5,000 mg/kg), and the overall low toxicity of azoxystrobin.

    The decision to reduce the FQPA safety factor to 1X for the assessment of the remaining exposure scenarios is based on the following findings:

    i. The toxicity database for azoxystrobin is considered sufficient for selecting toxicity endpoints and PODs for risk assessment.

    ii. There is no indication that azoxystrobin is a neurotoxic chemical. There was no evidence of neurotoxicity seen in the acute neurotoxicity study in rats from a single gavage dose up to 2,000 mg/kg. There was also no evidence of neurotoxicity seen in the subchronic neurotoxicity study in rats up to the highest dose tested (201 mg/kg/day). Therefore, there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

    iii. There is no evidence that azoxystrobin results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study. In the reproduction study, the offspring and the parental effects occurred at the same dose level.

    iv. There are no residual uncertainties identified in the exposure databases. The acute dietary (food) exposure assessments utilized conservative upper-bound inputs including assuming 100% CT and tolerance-level residues for all commodities except citrus fruits where the highest field trial residue was used as a refinement. The chronic dietary exposure assessment was partially refined, and used tolerance-level residues for all commodities and PCT information for selected crops. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to azoxystrobin in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by azoxystrobin.

    E. Aggregate Risks and Determination of Safety

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

    1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to azoxystrobin will occupy 82% of the aPAD for children 1-2 years old, the population group receiving the greatest exposure.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to azoxystrobin from food and water will utilize 18% of the cPAD for children 1-2 years old the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of azoxystrobin is not expected.

    3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Azoxystrobin is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to azoxystrobin.

    Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 390 for children 1 to <2 years old. Because EPA's level of concern for azoxystrobin is a MOE of 100 or below, these MOEs are not of concern.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because no intermediate-term adverse effect was identified, azoxystrobin is not expected to pose an intermediate-term risk. Therefore, the intermediate-term aggregate risk would be equivalent to the chronic dietary exposure estimate.

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

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

    IV. Other Considerations A. Analytical Enforcement Methodology

    Adequate enforcement methodology (gas chromatography with nitrogen-phosphorus detector (GC/NPD) method, RAM 243/04) is available to enforce the tolerance expression for residues of azoxystrobin and its Z-isomer in crop commodities. This method (designated RAM 243, dated 5/15/98) has been submitted to FDA for inclusion in the Pesticide Analytical Manual (PAM, Volume II).

    The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected]

    B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

    The Codex has established MRLs for azoxystrobin in or on root and tuber vegetables (except potato) at 1.0 ppm. This MRL is the same as the tolerance being established for azoxystrobin in the United States.

    C. Response to Comments

    EPA received ten comments to the docket EPA-HQ-OPP-2017-0744. However, only three comments were in response to the petition filed by Syngenta Crop Protection. One comment (ID: EPA-HQ-OPP-2017-0744-0007) among the three, is inclusive of the other two comments (ID: EPA-HQ-OPP-2017-0744-0008 and EPA-HQ-OPP-2017-0744-0009), and describes portions of the content of the Federal Register notice EPA published on March 6, 2018 (83 FR 9471), and expresses support for tolerances. The remaining seven comments were not germane to this action, therefore no further response from the Agency is required.

    D. Revisions to Petitioned-For Tolerances

    The Agency recommends increasing the tolerance for vegetable, root, except sugar beet, subgroup 1B from the proposed 0.5 ppm to 1.0 ppm to harmonize with the existing Codex MRL. Additionally, the Agency is revising the significant figure on root vegetables subgroup 1B based on current policy and revising the commodity definition to reflect the common commodity vocabulary currently used by the Agency. The commodity definition was revised from vegetable, root, subgroup 1B to vegetable, root, except sugar beet, subgroup 1B.

    V. Conclusion

    Therefore, tolerances are established for residues of azoxystrobin, in or on beet, sugar, roots at 5.0 ppm and vegetable, root, except sugar beet, subgroup 1B at 1.0 ppm.

    VI. Statutory and Executive Order Reviews

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

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

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

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

    VII. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 180

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

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

    Therefore, 40 CFR chapter I is amended as follows:

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

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

    2. In § 180.507: a. Remove the entry for “Vegetable, root, subgroup 1A” from the table in paragraph (a)(1). b. Add alphabetically “Beet, sugar, roots”; and “Vegetable, root, except sugar beet, subgroup 1B” to the table in paragraph (a)(1).

    The additions read as follows:

    § 180.507 Azoxystrobin; tolerances for residues.

    (a) * * *

    (1) * * *

    Commodity Parts per
  • million
  • *    *    *    *    * Beet, sugar, roots 5.0 *    *    *    *    * Vegetable, root, except sugar beet, subgroup 1B 1.0 *    *    *    *    *
    [FR Doc. 2018-24974 Filed 11-14-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 160906822-7547-02] RIN 0648-XG618 Snapper-Grouper Fishery of the South Atlantic; 2018 Commercial Closure for Hogfish in the Florida Keys/East Florida Area of the South Atlantic AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS implements accountability measures (AMs) for the hogfish commercial sector in the exclusive economic zone (EEZ) of the South Atlantic for the Florida Keys/East Florida (FLK/EFL) stock for the 2018 fishing year through this temporary rule. NMFS estimates commercial hogfish landings for the FLK/EFL hogfish stock for the 2018 fishing year will reach the annual catch limit (ACL) on November 16, 2018. Therefore, NMFS closes the commercial sector for the FLK/EFL hogfish stock in the South Atlantic EEZ on November 16, 2018, through the remainder of the 2018 fishing year. This closure is necessary to protect the hogfish resource in the FLK/EFL region of the South Atlantic.

    DATES:

    This rule is effective 12:01 a.m., local time, November 16, 2018, until 12:01 a.m., local time, January 1, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The snapper-grouper fishery of the South Atlantic includes hogfish and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

    The final rule for Amendment 37 to the FMP established two stocks of hogfish in Federal waters of the South Atlantic and new stock boundaries under the jurisdiction of the South Atlantic Fishery Management Council (82 FR 34584; July 25, 2017). One stock is the Georgia through North Carolina (GA/NC) hogfish stock, with a southern boundary extending east from the Florida/Georgia state border to the North Carolina and Virginia state border. The other stock is the FLK/EFL hogfish stock. The FLK/EFL hogfish stock boundary extends from the 25°09′ N latitude line off the west coast of Florida (near Cape Sable, Florida), east around South Florida, to the Florida/Georgia border. The final rule for Amendment 37 set the 2018 ACL for the commercial sector of the FLK/EFL hogfish stock at 4,524 lb (2,052 kg), round weight.

    In accordance with regulations at 50 CFR 622.193(u)(2)(i), the commercial AMs for the FLK/EFL hogfish stock include an in-season closure if the commercial ACL is met or is projected to be met. NMFS is required to close the commercial sector for hogfish when the ACL has been met, or is projected to be met, by filing a notification to that effect with the Office of the Federal Register.

    NMFS has determined that the 2018 commercial ACL for the EFL/FLK hogfish stock established by Amendment 37 will be met on November 16, 2018. Therefore, this temporary rule implements the AM to close the commercial sector for EFL/FLK hogfish stock in the South Atlantic for the remainder of the 2018 fishing year. Accordingly, the commercial sector for the EFL/FLK hogfish stock in the South Atlantic EEZ will be closed effective 12:01 a.m. local time, November 16, 2018, until January 1, 2019, the start of the next fishing year.

    During the commercial closure, all sale or purchase of hogfish in or from the EEZ off the Florida Keys and east coast of Florida, and south of 25°09′ N lat. off the west coast of Florida is prohibited, and harvest or possession of this species is limited to the bag and possession limits. These bag and possession limits apply for this hogfish stock on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters. The commercial sector for the EFL/FLK hogfish stock in the South Atlantic EEZ will reopen on January 1, 2019.

    Classification

    The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of hogfish in the South Atlantic snapper-grouper fishery and is consistent with the Magnuson-Stevens Act and other applicable laws.

    This action is taken under 50 CFR 622.193(u)(2)(i) and is exempt from review under Executive Order 12866.

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

    This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement this action to close the commercial sector for this stock constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule pursuant to 5 U.S.C. 553(b)(B), because such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the AMs established by Amendment 37 (82 FR 34584; July 25, 2017) and located at 50 CFR 622.193(u)(2)(i) have already been subject to notice and public comment. All that remains is to notify the public of the commercial closure for the EFL/FLK hogfish stock in the South Atlantic EEZ for the remainder of the 2018 fishing year. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect the EFL/FLK hogfish stock, since time for notice and public comment will allow for continued commercial harvest and further exceedance of the commercial ACLs.

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

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 9, 2018. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-24915 Filed 11-9-18; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 180117042-8884-02] RIN 0648-XG624 Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries AGENCY:

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

    ACTION:

    Temporary rule; General category October-November fishery for 2018; fishery reopening.

    SUMMARY:

    NMFS has determined that a reopening of the Atlantic bluefin tuna (BFT) General category fishery is warranted. This action is intended to provide a reasonable opportunity to harvest the full annual U.S. BFT quota without exceeding it, while maintaining an equitable distribution of fishing opportunities across time periods; help achieve optimum yield in the BFT fishery; and optimize the ability of all permit categories to harvest their full BFT quota allocations. This action applies to Atlantic tunas General category (commercial) permitted vessels and Atlantic Highly Migratory Species (HMS) Charter/Headboat category permitted vessels with a commercial sale endorsement when fishing commercially for BFT.

    DATES:

    Effective 12:30 a.m., local time, November 12, 2018, through 11:30 p.m., local time, November 16, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Uriah Forest-Bulley, 978-675-2154, or Larry Redd, 301-427-8503.

    SUPPLEMENTARY INFORMATION:

    Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and as implemented by the United States among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006), as amended by Amendment 7 to the 2006 Consolidated HMS FMP (Amendment 7) (79 FR 71510, December 2, 2014). NMFS is required under ATCA and the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest the ICCAT-recommended quota.

    NMFS recently published a final rule (i.e., the “quota rule” (83 FR 51391, October 11, 2018)) that increased the baseline U.S. BFT quota from 1,058.79 mt to 1,247.86 mt and accordingly increased the subquotas for 2018, including an increase in the General category October through November period subquota from 60.7 mt to 70.2 mt, consistent with the annual BFT quota calculation process. On October 4, 2018, NMFS transferred 55 mt to the General category and closed the General category fishery effective October 5, 2018, based on projections that landings would meet or exceed the adjusted October through November subquota of 127.2 mt by that date (83 FR 50857, October 10, 2018). Since October 5, 2018, NMFS has reopened the October through November subquota period two separate times for multiple days in an attempt to allow the available quota to be harvested (83 FR 52169, October 16, 2018, and 83 FR 55108, November 2, 2018).

    General Category Reopening

    As of November 6, 2018, reports show that the October through November landings are still less than the available subquota of 127.2 mt. Based on landings rates, NMFS has determined that reopening the General category fishery for five days is appropriate.

    Therefore, the General category fishery will reopen at 12:30 a.m., November 12, 2018, and close at 11:30 p.m., November 16, 2018. The General category daily retention limit during this reopening is one large medium or giant BFT per vessel per day/trip. This action applies to those vessels permitted in the General category, as well as to those HMS Charter/Headboat permitted vessels with a commercial sale endorsement when fishing commercially for BFT. Retaining, possessing, or landing large medium or giant BFT by persons aboard vessels permitted in the General and HMS Charter/Headboat categories must cease at 11:30 p.m. local time on November 16, 2018.

    The General category will reopen automatically on December 1, 2018, for the December 2018 subquota period at the default retention limit of one fish. In December 2017, NMFS adjusted the General category base subquota for the December 2018 period to 10 mt (82 FR 60680, December 22, 2017), although this amount increased to 14.6 mt with finalization of the quota rule. Based on quota availability in the Reserve, NMFS may consider transferring additional quota to the December subquota period, as appropriate.

    Fishermen may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. All BFT that are released must be handled in a manner that will maximize their survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at www.nmfs.noaa.gov/sfa/hms/.

    Monitoring and Reporting

    NMFS will continue to monitor the BFT fishery closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustment, as well as closures, and may result in enforcement actions. Additionally, and separate from the dealer reporting requirement, General and HMS Charter/Headboat category vessel owners are required to report the catch of all BFT retained or discarded dead within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov, using the HMS Catch Reporting app, or calling (888) 872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.).

    Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional adjustments are necessary to ensure available subquotas are not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the Federal Register. In addition, fishermen may call the Atlantic Tunas Information Line at (978) 281-9260, or access hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

    Classification

    The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

    The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason actions to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Affording prior notice and opportunity for public comment to implement the fishery reopening is impracticable and contrary to the public interest. The General category recently closed, but based on available BFT quotas, recent fishery performance, and the availability of BFT on the fishing grounds, responsive reopening of the fishery is warranted to allow fishermen to take advantage of availability of fish and of quota. NMFS could not have proposed this action earlier, as it needed to consider and respond to updated data and information about fishery conditions and this year's landings. If NMFS was to offer a public comment period now, after having appropriately considered that data, it would preclude fishermen from harvesting BFT that are legally available. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there also is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

    This action is being taken under § 635.27(a)(1), and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 971 et seq. and 1801 et seq.

    Dated: November 9, 2018. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-24954 Filed 11-9-18; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 170816769-8162-02] RIN 0648-XG625 Fisheries of the Exclusive Economic Zone off Alaska; Shortraker Rockfish in the Central Regulatory Area of the Gulf of Alaska AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is prohibiting retention of shortraker rockfish in the Central Regulatory Area of the Gulf of Alaska (GOA). This action is necessary because the 2018 total allowable catch of shortraker rockfish in the Central Regulatory Area of the GOA will be reached.

    DATES:

    Effective 1200 hours, Alaska local time (A.l.t.), November 9, 2018, through 2400 hours, A.l.t., December 31, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Obren Davis, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

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

    The 2018 total allowable catch (TAC) of shortraker rockfish in the Central Regulatory Area of the GOA is 305 metric tons (mt) as established by the final 2018 and 2019 harvest specifications for groundfish of the GOA (83 FR 8768, March 1, 2018).

    In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2018 TAC of shortraker rockfish in the Central Regulatory Area of the GOA will be reached. Therefore, NMFS is requiring that shortraker rockfish in the Central Regulatory Area of the GOA be treated as prohibited species in accordance with § 679.21(b). This action does not apply to fishing by trawl catcher/processors in the cooperative fishery in the Rockfish Program for the Central GOA.

    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 prohibiting the retention of shortraker rockfish in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of November 8, 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 § 679.21 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 9, 2018. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-24914 Filed 11-9-18; 4:15 pm] BILLING CODE 3510-22-P
    83 221 Thursday, November 15, 2018 Proposed Rules FEDERAL RESERVE SYSTEM 12 CFR Part 268 [Docket No. R-1630] RIN 7100-AF 23 Rules Regarding Equal Opportunity AGENCY:

    Board of Governors of the Federal Reserve System.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Board of Governors of the Federal Reserve System (the Board) is proposing to revise and expand its equal employment opportunity regulation to adopt recent changes the Equal Employment Opportunity Commission (EEOC) had made to its rules. The Board's proposed rule is intended to provide Board employees, applicants for employment, and others with the same substantive and procedural rights generally guaranteed to others under Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act, and the Rehabilitation Act and thus to comply with the spirit of those laws. The Board's proposed rule also clarifies provisions related to Board employees' right to bring a claim before the Merit System Protection Board and the Federal Labor Relations Board.

    DATES:

    Comments on the notice of proposed rulemaking must be received on or before December 17, 2018.

    ADDRESSES:

    You may submit comments, identified by Docket No. R-[1630 and RIN 7100-AF 23], by any of the following methods:

    Agency Website: www.federalreserve.gov. Follow the instructions for submitting comments at www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.

    Email: [email protected] Include the docket number in the subject line of the message.

    Fax: (202) 452-3819 or (202) 452-3102.

    Mail: Ann E. Misback, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW, Washington, DC 20551.

    All public comments will be made available on the Board's website at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as submitted, unless modified for technical reasons or to remove personally identifiable information at the commenter's request. Accordingly, comments will not be edited to remove any identifying or contact information. Public comments may also be viewed electronically or in paper in Room 3515, 1801 K Street NW (between 18th and 19th Streets NW), between 9:00 a.m. and 5:00 p.m. on weekdays.

    FOR FURTHER INFORMATION CONTACT:

    Sheila Clark, Program Director, Office of Diversity and Inclusion, Board of Governors of the Federal Reserve System, (202) 452-2883. For the hearing impaired only, Telecommunications Device for the Deaf (TDD) users may contact 202-263-4869.

    SUPPLEMENTARY INFORMATION:

    The terms of Board employment are established by the Federal Reserve Act and rules established by the Board. 12 U.S.C. 244 (Section 244 provides that the “employment, compensation, leave, and expenses” of Board employees “shall be governed solely by the provisions of this chapter and rules and regulations of the Board not inconsistent therewith.”) Although the Board has broad discretion to establish the terms of Board employment and can establish terms that deviate from the rights afforded to other government employees, the Board, as a matter of policy, has long aligned its employment practices with federal laws that provide for equal employment opportunity. Pursuant to this policy, Part 268 was issued by the Board to provide equal opportunity in employment in compliance with the spirit of Title VII of the Civil Rights Act of 1964 (Title VII), the Equal Pay Act, the Age Discrimination in Employment Act, and the Rehabilitation Act. Part 268 has not been updated in several years, and the Board is now proposing to amend it in order to better align its practices with those of the Equal Employment Opportunity Commission's (EEOC's) rules. The proposed revisions to Part 268 would:

    1. Amend section 268.101 to prohibit discrimination on the basis of genetic information to ensure compliance with the Genetic Information Nondiscrimination Act of 2008 (GINA) and to make conforming changes throughout to reflect this proposed change.

    2. Amend section 268.102(b)(3) to clarify that the Board follows Commission guidance and management directives relating to advice for ensuring compliance with Title VII, the Equal Pay Act, the Age Discrimination in Employment Act, GINA, and the Rehabilitation Act.

    3. Amend section 268.1 to remove references to hiring and granting information access since those rules will be incorporated into internal Board policies;

    4. Amend section 268.106(a)(5) to adopt the EEOC's rule requiring dismissal of complaints that allege discrimination on the basis of proposed personnel actions or other preliminary steps unless the complainant has alleged that the proposal or preliminary step is retaliatory;

    5. Amend section 268.107(e) to require Board staff, EEO investigators, and complainants to comply with the Board's program for the security of Federal Open Market Committee (FOMC) information when investigating and processing complaints that require access to FOMC information;

    6. Amend section 268.107(g) to adopt the EEOC's rule on investigating complaints which requires agencies that have not completed an investigation within EEOC's time limits to send a notice to the complainant indicating the investigation is not complete, providing the date by which it will be completed, and explaining that the complainant has the right to request a hearing or file a lawsuit;

    7. Amend section 268.201 to reflect updated address information for the EEOC;

    8. Amend section 268.203 to more closely reflect the EEOC's approach to designing an affirmative action plan for individuals with disabilities;

    9. Amend section 268.204 and section 268.401 to reflect the EEOC's rules for processing class complaints;

    10. Remove section 268.205 since its subject is not related to equal employment opportunity rules and since rules for hiring and granting access to information will be incorporated into the Board's internal policies;

    11. Remove section 268.302 to eliminate procedures for handling mixed case complaints since mixed case complaints cannot be brought against the Board;

    12. Amend section 268.403 to update address information and to incorporate the EEOC's rule that agencies submit appellate records and complaint files to the EEOC in a digital format that is acceptable to the EEOC;

    13. Add a new section 268.405(b) to adopt the EEOC's procedures for class complaints which provide that an administrative judge's decision on the merits of a class complaint is a final decision which the Board can fully implement or appeal in its final action and to provide for expedited processing of appeals of decisions to accept or dismiss class complaints;

    14. Amend section 268.502(c) to adopt the EEOC's rule which permits agencies up to 120 days to provide the particular relief the EEOC ordered; and

    15. Amend section 268.710 to make changes to headings and titles to conform to the EEOC's rules and to the Board's functional titles.

    Changes To Align With EEOC Rules

    Except as described below, the above changes are necessary to align the Board's employment practices and complaint processing with the EEOC's rules. The proposed revisions to Part 268 are designed to align the Board's practices with changes the EEOC has made to its rules on Federal Sector Equal Employment Opportunity found at 29 CFR part 1614. In addition, the amendment to section 268.102(b)(3) is proposed in order to clarify that the Board follows Commission guidance and management directives relating to advice for ensuring compliance with Title VII, the Equal Pay Act, the Age Discrimination in Employment Act, GINA, and the Rehabilitation Act.

    Complying With FOMC Security Requirements

    Currently part 268 requires Board staff, EEO investigators, and complainants to protect confidential information of the Board but does not expressly address confidential FOMC information. Because it is conceivable that a complaint could require access to FOMC information, and because FOMC information is not solely Board information, the Board proposes amending section 268.107(e)(2) to expressly require those seeking access to FOMC information to agree to abide by the Program for Security of FOMC Information before being granted access to such information. This will ensure that FOMC information is protected in the same manner as other confidential Board information.

    Remove Rules Related to Hiring and Granting Information Access

    The revisions also eliminate section 268.205, which discusses the Board's rules for hiring non-citizens and for allowing access to confidential supervisory information (CSI) and FOMC information. The subject matter of this section is not relevant to the Board's equal employment opportunity rules. Thus, the proposed revisions would remove this section from the Board's equal employment opportunity regulation. Going forward, rules relating to the hiring of non-citizens and governing access to CSI and FOMC information will be incorporated in the Board's internal management policies.

    Eliminate References to Mixed Case Complaints

    The revisions would eliminate section 268.302, which addresses procedures that apply to “mixed case complaints.” A mixed case complaint is an employment complaint which raises violations of both EEO laws (over which the EEOC retains jurisdiction) and merit system principles, created by certain civil service laws over which the Merit Systems Protection Board (MSPB) retains jurisdiction. The Board is not subject to the MSPB's jurisdiction in light of its employment authorities under the Federal Reserve Act. Thus, the revisions would remove this provision of the regulation.

    Update Titles To Reflect the Board's Organizational Structure

    The revisions proposed to Subpart H reflect changes to the Board's organizational structure since the last time the Board updated its EEO Regulation. Subpart H prohibits discrimination on the basis of disability in programs or activities conducted by the Board and describes how to file complaints alleging such discrimination. The complaint process described in Subpart H incorporates references to position titles that are no longer in use at the Board. For example, Subpart H refers to the Equal Employment Opportunity Office, which has since been replaced by the Office of Diversity and Inclusion; to an EEO Program Director, which has since been replaced by the Office of Diversity and Inclusion Program Director; and to a Staff Director for Management, which has been replaced by the Chief Operating Officer. The amendments to Subpart H replace the out-of-date titles with up-to-date information each place the rule refers to such titles.

    Regulatory Analysis A. Paperwork Reduction Act

    Certain provisions of the proposed rule contain “collection of information” requirements within the meaning of the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521). In accordance with the requirements of the PRA, the Board may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB control number for the Board is 7100-0313. The Board will address the information collection requirements associated with this proposed rule under a separate Federal Register notice.

    B. Regulatory Flexibility Act: Initial Regulatory Flexibility Analysis

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires a regulatory flexibility analysis only for rules that will have a significant impact on a substantial number of small entities. Because this rulemaking applies exclusively to Board employees and applicants for employment, the Regulatory Flexibility Act does not apply.

    C. Plain Language

    Section 722 of the Gramm-Leach-Bliley Act requires each federal banking agency to use plain language in all rules published after January 1, 2000. In light of this requirement, the Board believes this rule is presented in a simple and straightforward manner and is consistent with this “plain language” directive.

    List of Subjects 12 CFR Part 268

    Administrative practice and procedure, Aged, Civil rights, Equal employment opportunity, Federal buildings and facilities, Genetic information, Government employees, Individuals with disabilities, Religious discrimination, Sex discrimination, Wages.

    Authority and Issuance

    For the reasons set forth in the preamble, the Board proposes to amend 12 CFR part 268 as set forth below:

    PART 268—RULES REGARDING EQUAL OPPORTUNITY Subpart A—General Provisions and Administration 1. The authority citation for part 268 continues to read as follows: Authority:

    12 U.S.C. 244 and 248(i), (k) and (l).

    2. In § 268.1 revise paragraph (b) to read as follows:
    § 268.1 Authority, purpose and scope.

    (b) Purpose and scope. This part sets forth the Board's policy, program and procedures for providing equal opportunity to Board employees and applicants for employment without regard to race, color, religion, sex, national origin, age, disability, or genetic information. It also sets forth the Board's policy, program and procedures for prohibiting discrimination on the basis of disability in programs and activities conducted by the Board.

    3. Revise § 268.101 to read as follows:
    § 268.101 General policy for equal opportunity.

    (a) It is the policy of the Board to provide equal opportunity in employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, age, disability, or genetic information and to promote the full realization of equal opportunity in employment through a continuing affirmative program.

    (b) No person shall be subject to retaliation for opposing any practice made unlawful by Title VII of the Civil Rights Act (title VII) (42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act (ADEA) (29 U.S.C. 621 et seq.), the Equal Pay Act (29 U.S.C. 206(d)), the Rehabilitation Act (29 U.S.C. 791 et seq.), or the Genetic Information Nondiscrimination Act (GINA) (42 U.S.C. 2000ff et seq.) or for participating in any stage of administrative or judicial proceedings under those statutes.

    4. In § 268.102 revise paragraphs (a)(4), (b)(3) and (4) to read as follows:
    § 268.102 Board program for equal employment opportunity.

    (a) * * *

    (4) Communicate the Board's equal employment opportunity policy and program and its employment needs to all sources of job candidates without regard to race, color, religion, sex, national origin, age disability, or genetic information, and solicit their recruitment assistance on a continuing basis;

    (b) * * *

    (3) Appraise its personnel operations at regular intervals to assure their conformity with the Board's program, this part 268 and the instructions contained in the Commission's management directives relating to advice for ensuring compliance with the provisions of title VII, the Equal Pay Act, the Age Discrimination in Employment Act, GINA, and the Rehabilitation Act.

    (4) Designate a Director for Equal Employment Opportunity (EEO Programs Director), EEO Officer(s), and such Special Emphasis Program Managers/Coordinators (e.g., People with Disabilities Program, Federal Women's Program and Hispanic Employment Program), clerical and administrative support as may be necessary to carry out the functions described in this part in all organizational units of the Board and at all Board installations. The EEO Programs Director shall be under the immediate supervision of the Chair. The EEO Programs Director may also serve as the Director of the Office of Diversity and Inclusion.

    5. In § 268.103 revise paragraph (a) to read as follows:
    § 268.103 Complaints of discrimination covered by this part.

    (a) Individual and class complaints of employment discrimination and retaliation prohibited by title VII (discrimination on the basis of race, color, religion, sex and national origin), the ADEA (discrimination on the basis of age when the aggrieved person is at least 40 years of age), the Rehabilitation Act (discrimination on the basis of disability), the Equal Pay Act (sex-based wage discrimination), or GINA (discrimination on the basis of genetic information) shall be processed in accordance with this part. Complaints alleging retaliation prohibited by these statutes are considered to be complaints of discrimination for purposes of this part.

    6. In § 268.104 revise intro paragraph (a) and paragraph (d) to read as follows:
    § 268.104 Pre-complaint processing.

    (a) Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age disability, or genetic information must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.

    * * *

    (d) Unless the aggrieved person agrees to a longer counseling period under paragraph (e) of this section, or the aggrieved person chooses an alternative dispute resolution procedure in accordance with paragraph (b)(2) of this section, the Counselor shall conduct the final interview with the aggrieved person within 30 days of the date the aggrieved person contacted the Board's Office of Diversity and Inclusion to request counseling. If the matter has not been resolved, the aggrieved person shall be informed in writing by the Counselor, not later than the thirtieth day after contacting the Counselor, of the right to file a discrimination complaint with the Board. This notice shall inform the complainant of the right to file a discrimination complaint within 15 days of receipt of the notice, of the appropriate official with whom to file a complaint and of the complainant's duty to assure that the Programs Director is informed immediately if the complainant retains counsel or a representative.

    7. In § 268.106 revise paragraphs (a)(4) and (5) to read as follows:
    § 268.106 Dismissals of complaints.

    (a) * * *

    (4) Reserved.

    (5) That is moot or alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory, unless the complaint alleges that the proposal or preliminary step is retaliatory;

    8. Amend § 268.107 by: a. Adding a sentence at the end of paragraph (e)(2); b. Redesignating paragraph (g) as paragraph (h) and adding new paragraph (g).

    The additions and redesignation read as follows.

    § 268.107 Investigation of complaints.

    (e) (1) * * *

    (2) * * * Confidential supervisory information, as defined in 12 CFR 261.2(c), and other confidential information of the Board may be included in the investigative file by the investigator, the EEO Programs Director, or another appropriate officer of the Board, where such information is relevant to the complaint. Neither the complainant nor the complainant's personal representative may make further disclosure of such information, however, except in compliance with the Board's Rules Regarding Availability of Information, 12 CFR part 261, and where applicable, the Board's Rules Regarding Access to Personal Information under the Privacy Act of 1974, 12 CFR part 261a. Any party or individual, including an investigator, who requires access to FOMC information must agree to abide by the Program for Security of FOMC Information before being granted access to such information.

    (g) If the Board does not send the notice required in paragraph (f) of this section within the applicable time limits, it shall, within those same time limits, issue a written notice to the complainant informing the complainant that it has been unable to complete its investigation within the time limits required by § 268.107(f) and estimating a date by which the investigation will be completed. Further, the notice must explain that if the complainant does not want to wait until the agency completes the investigation, he or she may request a hearing in accordance with paragraph (h) of this section, or file a civil action in an appropriate United States District Court in accordance with § 268.406(b). Such notice shall contain information about the hearing procedures.

    8. In § 268.108 revise the subject heading of paragraph (g) to read as follows:
    § 268.108 Hearings.

    (g) Summary Judgement. * * *

    9. Amend § 268.201 by revising paragraph (a) and introductory text paragraph (c) to read as follows:
    § 268.201 Age Discrimination in Employment Act.

    (a) As an alternative to filing a complaint under this part, an aggrieved individual may file a civil action in a United States district court under the ADEA against the agency after giving the Commission not less than 30 days' notice of the intent to file such an action. Such notice must be filed in writing with EEOC, at P.O. Box 77960, Washington, DC 20013, or by personal delivery or facsimile within 180 days of the occurrence of the alleged unlawful practice.

    * * *

    (c) When an individual has filed an administrative complaint alleging age discrimination, administrative remedies will be considered to be exhausted for purposes of filing a civil action:

    * * *

    10. Revise § 268.203 to read as follows:
    § 268.203 Rehabilitation Act.

    (a) Definitions. The following definitions apply for purposes of this section:

    (1) The term ADA means title I of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. 12101 through 12117), title V of the Americans with Disabilities Act, as amended (42 U.S.C. 12201 through 12213), as it applies to employment, and the regulations of the Equal Employment Opportunity Commission implementing titles I and V of the ADA at 29 CFR part 1630.

    (2) The term disability means disability as defined under 29 CFR 1630.2(g) through (l).

    (3) The term hiring authority that takes disability into account means a hiring authority established under written Board policy that permits the Board to consider disability status during the hiring process.

    (4) The term personal assistance service provider means an employee or independent contractor whose primary job functions include provision of personal assistance services.

    (5) The term personal assistance services means assistance with performing activities of daily living that an individual would typically perform if he or she did not have a disability, and that is not otherwise required as a reasonable accommodation, including, for example, assistance with removing and putting on clothing, eating, and using the restroom.

    (6) The term Plan means an affirmative action plan for the hiring, placement, and advancement of individuals with disabilities.

    (7) Reserved.

    (8) The term Section 501 means section 501 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 791).

    (9) The term targeted disability means a disability that is designated as a “targeted disability or health condition” on the Office of Personnel Management's Standard Form 256 or that falls under one of the first 12 categories of disability listed in Part A of question 5 of the Equal Employment Opportunity Commission's Demographic Information on Applicants form.

    (10) The term undue hardship has the meaning set forth in 29 CFR part 1630.

    (b) Nondiscrimination. The Board shall not discriminate on the basis of disability in regard to the hiring, advancement or discharge of employees, employee compensation, job training, or other terms, conditions, and privileges of employment. The standards used to determine whether Section 501 has been violated in a complaint alleging employment discrimination under this part shall be the standards applied under the ADA.

    (c) Model employer. The Board shall be a model employer of individuals with disabilities. The Board shall give full consideration to the hiring, advancement, and retention of qualified individuals with disabilities in its workforce. The Board shall also take affirmative action to promote the recruitment, hiring, and advancement of qualified individuals with disabilities, with the goal of eliminating under-representation of individuals with disabilities in the Board's workforce.

    (d) Affirmative action plan. The Board shall adopt and implement a Plan that provides sufficient assurances, procedures, and commitments to provide adequate hiring, placement, and advancement opportunities for individuals with disabilities at all levels of Board employment. The Board's Plan must meet the following criteria:

    (1) Disability hiring and advancement program

    (i) Recruitment. The Plan shall require the Board to take specific steps to ensure that a broad range of individuals with disabilities, including individuals with targeted disabilities, will be aware of and be encouraged to apply for job vacancies when eligible. Such steps shall include, at a minimum—

    (A) Use of programs and resources that identify job applicants with disabilities, including individuals with targeted disabilities, who are eligible to be appointed under a hiring authority that takes disability into account, examples of which could include programs that provide the qualifications necessary for particular positions within the Board to individuals with disabilities, databases of individuals with disabilities who previously applied to the Board but were not hired for the positions they applied for, and training and internship programs that lead directly to employment for individuals with disabilities; and

    (B) Establishment and maintenance of contacts (which may include formal agreements) with organizations that specialize in providing assistance to individuals with disabilities, including individuals with targeted disabilities, in securing and maintaining employment, such as American Job Centers, State Vocational Rehabilitation Agencies, the Veterans' Vocational Rehabilitation and Employment Program, Centers for Independent Living, and Employment Network service providers.

    (ii) Application process. The Plan shall ensure that the Board has designated sufficient staff to handle any disability-related issues that arise during the application and selection processes, and shall require the Board to provide such individuals with sufficient training, support, and other resources to carry out their responsibilities under this section. Such responsibilities shall include, at a minimum—

    (A) Ensuring that disability-related questions from members of the public regarding the agency's application and selection processes are answered promptly and correctly, including questions about reasonable accommodations needed by job applicants during the application and selection processes and questions about how individuals may apply for appointment under hiring authorities that take disability into account;

    (B) Processing requests for reasonable accommodations needed by job applicants during the application and placement processes, and ensuring that the Board provides such accommodations when required to do so under the standards set forth in 29 CFR part 1630;

    (C) Accepting applications for appointment under hiring authorities that take disability into account, if permitted under written Board policy;

    (D) If an individual has applied for appointment to a particular position under a hiring authority that takes disability into account, determining whether the individual is eligible for appointment under such authority, and, if so, forwarding the individual's application to the relevant hiring officials with an explanation of how and when the individual may be appointed, consistent with all applicable laws;

    (E) Overseeing any other Board programs designed to increase hiring of individuals with disabilities.

    (iii) Advancement program. The Plan shall require the Board to take specific steps to ensure that current employees with disabilities have sufficient opportunities for advancement. Such steps may include, for example—

    (A) Efforts to ensure that employees with disabilities are informed of and have opportunities to enroll in relevant training, including management training when eligible;

    (B) Development or maintenance of a mentoring program for employees with disabilities; and

    (C) Administration of exit interviews that include questions on how the Board could improve the recruitment, hiring, inclusion, and advancement of individuals with disabilities.

    (2) Disability anti-harassment policy. The Plan shall require the Board to state specifically in its anti-harassment policy that harassment based on disability is prohibited, and to include in its training materials examples of the types of conduct that would constitute disability-based harassment.

    (3) Reasonable accommodation

    (i) Procedures. The Plan shall require the Board to adopt, post on its public website, and make available to all job applicants and employees in written and accessible formats, reasonable accommodation procedures that are easy to understand and that, at a minimum—

    (A) Explain relevant terms such as “reasonable accommodation,” “disability,” “interactive process,” “qualified,” and “undue hardship,” consistent with applicable statutory and regulatory definitions, using examples where appropriate;

    (B) Explain that reassignment to a vacant position for which an employee is qualified, and not just permission to compete for such position, is a reasonable accommodation, and that the Board must consider providing reassignment to a vacant position as a reasonable accommodation when it determines that no other reasonable accommodation will permit an employee with a disability to perform the essential functions of his or her current position;

    (C) Notify supervisors and other relevant Board employees how and where they are to conduct searches for available vacancies when considering reassignment as a reasonable accommodation;

    (D) Explain that an individual may request a reasonable accommodation orally or in writing at any time, need not fill out any specific form in order for the interactive process to begin, and need not have a particular accommodation in mind before making a request, and that the request may be made to a supervisor or manager in the individual's chain of command, the office designated by the Board to oversee the reasonable accommodation process, any Board employee connected with the application process, or any other individual designated by the Board to accept such requests;

    (E) Include any forms the Board uses in connection with a reasonable accommodation request as attachments, and indicate that such forms are available in alternative formats that are accessible to people with disabilities;

    (F) Describe the Board's process for determining whether to provide a reasonable accommodation, including the interactive process, and provide contact information for the individual or program office from whom requesters will receive a final decision;

    (G) Provide guidance to supervisors on how to recognize requests for reasonable accommodation;

    (H) Require that decision makers communicate, early in the interactive process and periodically throughout the process, with individuals who have requested a reasonable accommodation;

    (I) Explain when the Board may require an individual who requests a reasonable accommodation to provide medical information that is sufficient to explain the nature of the individual's disability, his or her need for reasonable accommodation, and how the requested accommodation, if any, will assist the individual to apply for a job, perform the essential functions of a job, or enjoy the benefits and privileges of the workplace;

    (J) Explain the Board's right to request relevant supplemental medical information if the information submitted by the requester is insufficient for the purposes specified in paragraph (d)(3)(i)(I) of this section;

    (K) Explain the Board's right to have medical information reviewed by a medical expert of the Board's choosing at the Board's expense;

    (L) Explain the Board's obligation to keep medical information confidential, in accordance with applicable laws and regulations, and the limited circumstances under which such information may be disclosed;

    (M) Designate the maximum amount of time the Board has, absent extenuating circumstances, to either provide a requested accommodation or deny the request, and explain that the time limit begins to run when the accommodation is first requested;

    (N) Explain that the Board will not be expected to adhere to its usual timelines if an individual's health professional fails to provide needed documentation in a timely manner;

    (O) Explain that, where a particular reasonable accommodation can be provided in less than the maximum amount of time permitted under paragraph (d)(3)(i)(M) of this section, failure to provide the accommodation in a prompt manner may result in a violation of the Rehabilitation Act;

    (P) Provide for expedited processing of requests for reasonable accommodations that are needed sooner than the maximum allowable time frame permitted under paragraph (d)(3)(i)(M) of this section;

    (Q) Explain that, when all the facts and circumstances known to the Board make it reasonably likely that an individual will be entitled to a reasonable accommodation, but the accommodation cannot be provided immediately, the Board shall provide an interim accommodation that allows the individual to perform some or all of the essential functions of his or her job, if it is possible to do so without imposing undue hardship on the Board;

    (R) Inform applicants and employees how they may track the processing of requests for reasonable accommodation;

    (S) Explain that, where there is a delay in either processing a request for or providing a reasonable accommodation, the Board must notify the individual of the reason for the delay, including any extenuating circumstances that justify the delay;

    (T) Explain that individuals who have been denied reasonable accommodations have the right to file complaints pursuant to 12 CFR 268.105;

    (U) Encourage the use of voluntary informal dispute resolution processes that individuals may use to obtain prompt reconsideration of denied requests for reasonable accommodation;

    (V) Provide that the Board shall give the requester a notice consistent with the requirements of paragraph (d)(3)(iii) of this section at the time a request for reasonable accommodation is denied; and

    (W) Provide information on how to access additional information regarding reasonable accommodation, including, at a minimum, Commission guidance and technical assistance documents.

    (ii) Cost of accommodations. The Plan shall require the Board to take specific steps to ensure that requests for reasonable accommodation are not denied for reasons of cost, and that individuals with disabilities are not excluded from employment due to the anticipated cost of a reasonable accommodation, if the resources available to the Board as a whole, excluding those designated by statute for a specific purpose that does not include reasonable accommodation, would enable it to provide an effective reasonable accommodation without undue hardship. Such steps shall be reasonably designed to, at a minimum—

    (A) Ensure that anyone who is authorized to grant or deny requests for reasonable accommodation or to make hiring decisions is aware that, pursuant to the regulations implementing the undue hardship defense at 29 CFR part 1630, all resources available to the agency as a whole, excluding those designated by statute for a specific purpose that does not include reasonable accommodation, are considered when determining whether a denial of reasonable accommodation based on cost is lawful; and

    (B) Ensure that anyone authorized to grant or deny requests for reasonable accommodation or to make hiring decisions is aware of, and knows how to arrange for the use of, Board resources available to provide the accommodation, including any centralized fund the Board may have for that purpose.

    (iii) Notification of basis for denial. The Plan shall require the Board to provide a job applicant or employee who is denied a reasonable accommodation with a written notice at the time of the denial, in an accessible format when requested, that—

    (A) Explains the reasons for the denial and notifies the job applicant or employee of any available internal appeal or informal dispute resolution processes;

    (B) Informs the job applicant or employee of the right to challenge the denial by filing a complaint of discrimination under this part;

    (C) Provides instructions on how to file such a complaint; and

    (D) Explains that, pursuant to 12 CFR 268.105, the right to file a complaint will be lost unless the job applicant or employee initiates contact with an EEO Counselor within 45 days of the denial, regardless of whether the applicant or employee participates in an informal dispute resolution process.

    (4) Accessibility of facilities and technology

    (i) Notice of rights. The Plan shall require the Board to adopt, post on its public website, and make available to all employees in written and accessible formats, a notice that—

    (A) Explains their rights under Section 508 of the Rehabilitation Act of 1973, 29 U.S.C. 794d, concerning the accessibility of agency technology, and the Architectural Barriers Act, 42 U.S.C. 4151 through 4157, concerning the accessibility of agency building and facilities;

    (B) Provides contact information for a Board employee who is responsible for ensuring the physical accessibility of the Board's facilities under the Architectural Barriers Act of 1968, and a Board employee who is responsible for ensuring that the electronic and information technology purchased, maintained, or used by the agency is readily accessible to, and usable by, individuals with disabilities, as required by Section 508 of the Rehabilitation Act of 1973; and

    (C) Provides instructions on how to file complaints alleging violations of the accessibility requirements of the Architectural Barriers Act of 1968 and Section 508 of the Rehabilitation Act of 1973.

    (ii) Assistance with filing complaints at other agencies. If the Board's investigation of a complaint filed under Section 508 of the Rehabilitation Act of 1973 or the Architectural Barriers Act of 1968 shows that a different entity is responsible for the alleged violation, the Plan shall require the Board to inform the individual who filed the complaint where he or she may file a complaint against the other entity, if possible.

    (5) Personal assistance services allowing employees to participate in the workplace

    (i) Obligation to provide personal assistance services. The Plan shall require the Board to provide an employee with, in addition to professional services required as a reasonable accommodation under the standards set forth in 29 CFR part 1630, personal assistance services during work hours and job-related travel if

    (A) The employee requires such services because of a targeted disability;

    (B) Provision of such services would, together with any reasonable accommodations required under the standards set forth in 29 CFR part 1630, enable the employee to perform the essential functions of his or her position; and

    (C) Provision of such services would not impose undue hardship on the Board.

    (ii) Service providers. The Plan shall state that personal assistance services required under paragraph (d)(5)(i) of this section must be performed by a personal assistance service provider. The Plan may permit the Board to require personal assistance service providers to provide personal assistance services to more than one individual. The Plan may also permit the Board to require personal assistance service providers to perform tasks unrelated to personal assistance services, but only to the extent that doing so does not result in failure to provide personal assistance services required under paragraph (d)(5)(i) of this section in a timely manner.

    (iii) No adverse action. The Plan shall prohibit the Board from taking adverse actions against job applicants or employees based on their need for, or perceived need for, personal assistance services.

    (iv) Selection of personal assistance service providers. The Plan shall require the Board, when selecting someone who will provide personal assistance services to a single individual, to give primary consideration to the individual's preferences to the extent permitted by law.

    (v) Written procedures. The Plan shall require the Board to adopt, post on its public website, and make available to all job applicants and employees in written and accessible formats, procedures for processing requests for personal assistance services. The Board may satisfy this requirement by stating, in the procedures required under paragraph (d)(3)(i) of this section, that the process for requesting personal assistance services, the process for determining whether such services are required, and the Board's right to deny such requests when provision of the services would pose an undue hardship, are the same as for reasonable accommodations.

    (6) Utilization analysis

    (i) Current utilization. The Plan shall require the Board to perform a workforce analysis annually to determine the percentage of its employees at each grade and salary level who have disabilities, and the percentage of its employees at each grade and salary level who have targeted disabilities.

    (ii) Source of data. For purposes of the analysis required under paragraph (d)(6)(i) of this section an employee may be classified as an individual with a disability or an individual with a targeted disability on the basis of—

    (A) The individual's self-identification as an individual with a disability or an individual with a targeted disability on a form, including but not limited to the Office of Personnel Management's Standard Form 256, which states that the information collected will be kept confidential and used only for statistical purposes, and that completion of the form is voluntary;

    (B) Records relating to the individual's appointment under a hiring authority that takes disability into account, if applicable; and

    (C) Records relating to the individual's requests for reasonable accommodation, if any.

    (iii) Data accuracy. The Plan shall require the Board to take steps to ensure that data collected pursuant to paragraph (d)(6)(i) of this section are accurate.

    (7) Goals

    (i) Adoption. The Plan shall commit the Board to the goal of ensuring that—

    (A) No less than 12% of employees who have salaries equal to or greater than employees at the GS-11, step 1 level in the Washington, DC locality, are individuals with disabilities;

    (B) No less than 12% of employees who have salaries less than employees at the GS-11, step 1 level in the Washington, DC locality, are individuals with disabilities;

    (C) No less than 2% of employees who have salaries equal to or greater than employees at the GS-11, step 1 level in the Washington, DC locality, are individuals with targeted disabilities; and

    (D) No less than 2% of employees who have salaries less than employees at the GS-11, step 1 level in the Washington, DC locality, are individuals with targeted disabilities.

    (ii) Progression toward goals. The Plan shall require the Board to take specific steps that are reasonably designed to gradually increase the number of persons with disabilities or targeted disabilities employed at the Board until it meets the goals established pursuant to paragraph (d)(7)(i) of this section. Examples of such steps include, but are not limited to—

    (A) Increased use of hiring authorities that take disability into account to hire or promote individuals with disabilities or targeted disabilities, as applicable;

    (B) To the extent permitted by applicable laws, consideration of disability or targeted disability status as a positive factor in hiring, promotion, or assignment decisions;

    (C) Disability-related training and education campaigns for all employees in the Board;

    (D) Additional outreach or recruitment efforts;

    (E) Increased efforts to hire and retain individuals who require supported employment because of a disability, who have retained the services of a job coach at their own expense or at the expense of a third party, and who may be given permission to use the job coach during work hours as a reasonable accommodation without imposing undue hardship on the Board; and

    (F) Adoption of training, mentoring, or internship programs for individuals with disabilities.

    (8) Recordkeeping. The Plan shall require the Board to keep records that it may use to determine whether it is complying with the nondiscrimination and affirmative action requirements imposed under Section 501, and to make such records available to the Commission upon the Commission's request, including, at a minimum, records of—

    (i) The number of job applications received from individuals with disabilities, and the number of individuals with disabilities who were hired by the Board;

    (ii) The number of job applications received from individuals with targeted disabilities, and the number of individuals with targeted disabilities who were hired by the Board;

    (iii) All rescissions of conditional job offers, demotions, and terminations taken against applicants or employees as a result of medical examinations or inquiries;

    (iv) All Board employees hired under special hiring authority for person with certain disabilities, and each such employee's date of hire, entering grade level, probationary status, and current grade level;

    (v) The number of employees appointed under special hiring authority for persons with certain disabilities who successfully completed the Board's Provisional Employment period and the number of such employees who were terminate prior to the end of their Provisional Employment period; and

    (vi) Details about each request for reasonable accommodation including, at a minimum—

    (A) The specific reasonable accommodation requested, if any;

    (B) The job sought by the requesting applicant or held by the requesting employee;

    (C) Whether the accommodation was needed to apply for a job, perform the essential functions of a job, or enjoy the benefits and privileges of employment;

    (D) Whether the request was granted (which may include an accommodation different from the one requested) or denied;

    (E) The identity of the deciding official;

    (F) If denied, the basis for such denial; and

    (G) The number of days taken to process the request.

    (e) Reporting

    (1) Submission to the Commission. On an annual basis the Board shall submit to the Commission at such time and in such manner as the Commission deems appropriate—

    (i) A copy of its current Plan;

    (ii) The results of the two most recent workforce analyses performed pursuant to paragraph (d)(6) of this section showing the percentage of employees with disabilities and employees with targeted disabilities in each of the designated pay groups;

    (iii) The number of individuals appointed to positions within the Board under special hiring authority for persons with certain disabilities during the previous year, and the total number of employees whose employment at the Board began by appointment under special hiring authority for persons with certain disabilities; and

    (iv) A list of changes made to the Plan since the prior submission, if any, and an explanation of why those changes were made.

    (2) Availability to the public. The Board shall make the information submitted to the Commission pursuant to paragraph (e)(1) of this section available to the public by, at a minimum, posting a copy of the submission on its public website and providing a means by which members of the public may request copies of the submission in accessible formats.

    11. Amend § 268.204 by revising paragraphs (i) through (k); and the third sentence of paragraph (l)(3) to read as follows:
    § 268.204 Class complaints.

    (i) Decisions. The administrative judge shall transmit to the agency and class agent a decision on the complaint, including findings, systemic relief for the class and any individual relief, where appropriate, with regard to the personnel action or matter that gave rise to the complaint. If the administrative judge finds no class relief appropriate, he or she shall determine if a finding of individual discrimination is warranted and if so, shall order appropriate relief.

    (j) Board final action. (1) Within 60 days of receipt of the administrative judge's decision on the complaint, the Board shall take final action by issuing a final order. The final order shall notify the class agent whether or not the Board will fully implement the decision of the administrative judge and shall contain notice of the class agent's right to appeal to the Commission, the right to file a civil action in federal district court, the name of the proper defendant in any such lawsuit, and the applicable time limits for appeals and lawsuits. If the final order does not fully implement the decision of the administrative judge, then the Board shall simultaneously file an appeal in accordance with § 268.403 and append a copy of the appeal to the final order. A copy of EEOC Form 573 shall be attached to the final order.

    (2) If the Board does not issue a final order within 60 days of receipt of the administrative judge's decision, then the decision of the administrative judge shall become the final action of the Board.

    (3) A final order on a class complaint shall, subject to subpart E of this part, be binding on all members of the class and the Board.

    (k) Notification of final action: The Board shall notify class members of the final action and the relief awarded, if any, through the same media employed to give notice of the existence of the class complaint. The notice, where appropriate, shall include information concerning the rights of class members to seek individual relief, and of the procedures to be followed. Notice shall be given by the Board within 10 days of the transmittal of the final action to the agent.

    (l) * * *

    (3) * * * The claim must include a specific detailed showing that the claimant is a class member who was affected by the discriminatory policy or practice, and that this discriminatory action took place within the period of time for which class-wide discrimination was found in the final order. * * *

    § 268.205 [Removed and Reserved]
    12. Remove and Reserve § 268.205.
    § 268.302 [Removed and Reserved]
    13. Remove and Reserve § 268.302. 14. Amend § 268.401 by revising paragraph (c) to read as follows:
    § 268.401 Appeals to the Equal Employment Opportunity Commission.

    (c) A class agent or the Board may appeal an administrative judge's decision accepting or dismissing all or part of a class complaint; a class agent may appeal the Board's final action or the Board may appeal an administrative judge's decision on a class complaint; a class member may appeal a final decision on a claim for individual relief under a class complaint; and a class member, a class agent or the Board may appeal a final decision on a petition pursuant to § 268.204(g)(4).

    15. In § 268.403, revise paragraph (a) and add new paragraph (g) to read as follows:
    § 268.403 How to appeal.

    (a) The complainant, the Board, agent or individual class claimant (hereinafter appellant) must file an appeal with the Director, Office of Federal Operations, Equal Employment Opportunity Commission, at P.O. Box 77960, Washington, DC 20013, or electronically, or by personal delivery or facsimile. The appellant should use EEOC Form 573, Notice of Appeal/Petition, and should indicate what is being appealed.

    (g) The Board will submit appeals, complaint files, and other filings to the Commission's Office of Federal Operations in a digital format acceptable to the Commission, absent a showing of good cause why the Board cannot submit digital records. Appellants are encouraged, but not required, to submit digital appeals and supporting documentation to the Commission's Office of Federal Operations in a format acceptable to the Commission.

    16. Amend § 268.405 by revising the third sentence to paragraph (a), revising paragraphs (b) and (c), and adding (d).

    The addition and revisions read as follows:

    § 268.405 Decisions on appeals.

    (a) * * * The Office of Federal Operations, on behalf of the Commission, shall issue a written decision setting forth its reasons for the decision. The Commission shall dismiss appeals in accordance with §§ 268.106, 268.403(c) and 268.408. The decision shall be based on the preponderance of the evidence. The decision on an appeal from the Board's final action shall be based on a de novo review, except that the review of the factual findings in a decision by an administrative judge issued pursuant to § 268.108(i) shall be based on a substantial evidence standard of review. If the decision contains a finding of discrimination, appropriate remedy(ies) shall be included and, where appropriate, the entitlement to interest, attorney's fees or costs shall be indicated. The decision shall reflect the date of its issuance, inform the complainant of his or her civil action rights, and be transmitted to the complainant and the Board by first class mail. * * *

    (b) The Office of Federal Operations, on behalf of the Commission, shall issue decisions on appeals of decisions to accept or dismiss a class complaint issued pursuant to § 268.204(d)(7) within 90 days of receipt of the appeal.

    (c) A decision issued under paragraph (a) of this section is final within the meaning of § 268.406 unless the Board issues a final decision under paragraph (d) of this section or unless a timely request for reconsideration is filed by a party to the case. A party may request reconsideration within 30 days of receipt of a decision of the Commission, which the Commission in its discretion may grant, if the party demonstrates that:

    (1) The appellate decision involved a clearly erroneous interpretation of material fact or law; or

    (2) The decision will have a substantial impact on the policies, practices, or operations of the Board.

    (d) The Board, within 30 days of receiving a decision of the Commission, may issue a final decision based upon that decision, which shall be final within the meaning of § 268.406.

    17. In § 268.502, revise paragraphs (b)(2) and (c) to read as follows:
    § 268.502 Compliance with final Commission decisions.

    (b) * * *

    (2) When the Board requests reconsideration, it may delay the payment of any amounts ordered to be paid to the complainant until after the request for reconsideration is resolved. If the Board delays payment of any amount pending the outcome of the request to reconsider and the resolution of the request (including under § 268.405(d)) requires the Board to make the payment, then the Board shall pay interest from the date of the original appellate decision until payment is made.

    (c) When no request for reconsideration or final decision under § 268.405(d) is filed or when a request for reconsideration is denied, the Board shall provide the relief ordered and there is no further right to delay implementation of the ordered relief. The relief shall be provided in full not later than 120 days after receipt of the final decision unless otherwise ordered in the decision.

    18. In § 268.504 revise paragraph (c) to read as follows:
    § 268.504 Compliance with settlement agreements and final actions.

    (c) Prior to rendering its determination, the Commission may request that the parties submit whatever additional information or documentation it deems necessary or may direct that an investigation or hearing on the matter be conducted. If the Commission determines that the Board is not in compliance with a decision or a settlement agreement, and the noncompliance is not attributable to acts or conduct of the complainant, it may order such compliance with the decision or settlement agreement, or, alternatively, for a settlement agreement, it may order that the complaint be reinstated for further processing from the point processing ceased. Allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints under §§ 268.105 or 268.204, as appropriate, rather than under this section.

    19. Amend § 268.710 by: a. Removing the words “EEO” each place it appears; b. Removing the words “Staff Director for Management” each place they appear and replace them with the words “Chief Operating Officer”; c. Revising paragraph (c) to remove the words “EEO Programs Director” and replace them with the words “Office of Diversity and Inclusion Programs Director” (`Programs Director')”; d. Revising the second sentence of paragraph (d)(4) to insert the words “Office of Diversity and Inclusion” after the words “Programs Director” and before the words “Board of Governors.”

    The revisions read as follows:

    § 268.710 Compliance procedures.

    (c) Responsible official. The Office of Diversity and Inclusion Programs Director” (`Programs Director') shall be responsible for coordinating implementation of this section.

    (d) * * *

    (4) * * * How to file. Complaints may be delivered or mailed to the Administrative Governor, the Chief Operating Officer, the EEO Programs Director, the Federal Women's Program Manager, the Hispanic Employment Program Coordinator, or the People with Disabilities Program Coordinator. Complaints should be sent to the Programs Director, Office of Diversity and Inclusion, Board of Governors of the Federal Reserve System, 20th and C Street NW, Washington, DC 20551. If any Board official other than the Programs Director receives a complaint, he or she shall forward the complaint to the Programs Director.* * *

    By order of the Board of Governors of the Federal Reserve System, November 1, 2018. Ann Misback, Secretary of the Board.
    [FR Doc. 2018-24613 Filed 11-14-18; 8:45 am] BILLING CODE 6210-01-P
    FEDERAL RESERVE SYSTEM 12 CFR Chapter II [Docket No. OP-1625] Potential Federal Reserve Actions To Support Interbank Settlement of Faster Payments, Request for Comments SUMMARY:

    As part of its overall mission, the Federal Reserve has a fundamental interest in ensuring there is a safe and robust U.S. payment system, including a settlement infrastructure on which the private sector can provide innovative faster payment services that serve the broad public interest. Accordingly, the Board of Governors of the Federal Reserve System (Board) is seeking input on potential actions that the Federal Reserve could take to promote ubiquitous, safe, and efficient faster payments in the United States by facilitating real-time interbank settlement of faster payments. While the Board is not committing to any specific actions, potential actions include the Federal Reserve Banks developing a service for 24x7x365 real-time interbank settlement of faster payments; and a liquidity management tool that would enable transfers between Federal Reserve accounts on a 24x7x365 basis to support services for real-time interbank settlement of faster payments, whether those services are provided by the private sector or the Federal Reserve Banks. The Board is seeking input on whether these actions, separately or in combination, or alternative approaches, would help achieve ubiquitous, nationwide access to safe and efficient faster payments.

    DATES:

    Comments on the potential actions must be received on or before December 14, 2018.

    ADDRESSES:

    You may submit comments, identified by Docket No. OP-1625, by any of the following methods:

    Agency Website: http://www.federalreserve.gov. Follow the instructions for submitting comments at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.

    Email: [email protected] Include docket number in the subject line of the message.

    FAX: (202) 452-3819 or (202) 452-3102.

    Mail: Ann Misback, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW, Washington, DC 20551.

    All public comments will be made available on the Board's website at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as submitted, unless modified for technical reasons or to remove personally identifiable information at the commenter's request. Accordingly, comments will not be edited to remove any identifying or contact information. Public comments may also be viewed electronically or in paper in Room 3515, 1801 K Street NW (between 18th and 19th Streets NW), between 9:00 a.m. and 5:00 p.m. on weekdays.

    FOR FURTHER INFORMATION CONTACT:

    Kirstin Wells, Principal Economist (202-452-2962), Mark Manuszak, Manager (202-721-4509), Susan V. Foley, Senior Associate Director (202-452-3596), Division of Reserve Bank Operations and Payment Systems, or Gavin Smith, Senior Counsel, Legal Division (202-452-3474), Board of Governors of the Federal Reserve System; for the hearing impaired and users of Telecommunications Device for the Deaf (TDD) only, contact 202-263-4869.

    SUPPLEMENTARY INFORMATION:

    I. Context for Public Comment A. The Reasons for Faster Payments

    Broad trends in society based on technological advancements have changed the ways that people interact with others, conduct commerce, and access information. While many industries have adapted, the same is not equally true for the nation's payment and settlement system that foundationally supports commerce and the economy. For example, a business in Florida can immediately deliver an invoice by email to a customer in Oregon. The receipt of the corresponding payment from its customer, however, may take days to receive, even if initiated quickly. This lack of speed has economic implications and societal costs borne by individuals, households, and businesses.

    Traditional payment methods, such as checks, automated clearinghouse (ACH) payments, and debit and credit cards, form a retail payment infrastructure that is safe, reliable, and ubiquitous, albeit not necessarily quick.1 These traditional payment methods have served our economy well over decades (and for checks, over most of the country's history).2 The ubiquitous nature of these payment methods generally allows any two individuals or businesses (that is, end users) with accounts at banks to exchange value supporting an underlying economic transaction.3 As a result, regardless of where they hold their accounts, individuals can receive payroll deposits from their employers, households can pay their utilities, mortgage, rent, and other bills, and businesses can exchange commercial payments. For payments to most merchants for goods and services, individuals can similarly use debit cards to make payments from their bank accounts.4

    1 Retail payment systems are those that handle large volumes of lower-value payments, such as those among individuals or between an individual and a business. For more information, see Committee on Payments and Market Infrastructures, “A glossary of terms used in payments and settlement systems,” the Bank for International Settlements, updated October 17, 2016. Available at: https://www.bis.org/cpmi/publ/d00b.htm.

    2 According to the Federal Reserve Payments Study, in 2015, checks, the ACH system, and payment cards, including debit and credit cards, accounted for over 144 billion payments and nearly $178 trillion in value. Federal Reserve Board, “The Federal Reserve Payments Study 2016.” Available at https://www.federalreserve.gov/paymentsystems/files/2016-payments-study-20161222.pdf.

    3 Throughout this notice, the term “bank” will be used to refer to any type of depository institution. Depository institutions include commercial banks, savings banks, savings and loan associations, and credit unions.

    4 Although credit cards form part of the retail payments infrastructure, they do not operate using deposit balances and deposit accounts, but instead operate on the basis of credit and credit card accounts.

    Over the past two decades, however, a gap has emerged between the capabilities of traditional payment methods and end-user expectations for enhanced payment speed, convenience, and accessibility. A new method of faster payment has emerged to address this gap, with several nonbank payment service providers entering the payment market alongside—and sometimes in lieu of—banks. Faster payments allow end users to initiate and receive payments at any time of the day, any day of the year, and to complete those payments in near-real time (from the end users' perspective), such that, within seconds, the recipient has access to final funds that can be used to make other payments.

    The term “faster payments” is broadly used in the payment industry to indicate simply that increased speed, convenience, and accessibility are essential features for the future of the payment and settlement system. However, faster payments provide more to individuals and businesses than just the ability to make payments quickly from a mobile device. For example, when funds move in and out of end-user bank accounts in real time, end users have more flexibility in managing their money. Faster payments eliminate the need to schedule bill or vendor payments well in advance and, more broadly, allow end users to make time-sensitive payments whenever needed. By increasing flexibility and accessibility, end users may also have greater scope to avoid penalties such as late fees.

    The development of payment and settlement services that are essentially real time and always available is a worldwide phenomenon. Both advanced and emerging economies have undertaken efforts to develop faster payment services, and those services are now broadly accessible to the general public in an increasing number of countries.5

    5 For a discussion of global developments related to faster payments, see Committee on Payments and Market Infrastructures, “Fast payments—Enhancing the speed and availability of retail payments,” Bank for International Settlements, November 2016. Available at https://www.bis.org/cpmi/publ/d154.pdf.

    Efforts to implement faster payments in other countries often reflect a collaborative, strategic endeavor that involves the payment industry, central banks, and other authorities. The deployment of accessible faster payment services generally requires extensive upgrades to a country's or region's payment and settlement infrastructure, involving significant coordination among all stakeholders. As part of these upgrades, central banks in various jurisdictions have implemented or planned changes to their settlement services in support of faster payments, reflecting the foundational role that central banks play worldwide in the settlement of obligations between financial institutions. The ability to reliably settle interbank obligations using balances at the central bank (also referred to as central bank money) is vital not only to the smooth functioning of the payment system but also to financial stability more broadly.

    As the U.S. central bank, the Federal Reserve initiated a broadly collaborative effort with the payment industry and other stakeholders in 2013, to support development of ubiquitous, nationwide access to safe and efficient faster payments in the United States. While the private sector has to date implemented certain faster payment services for the public, there are still challenges related to achieving these broader goals. As part of its central mission, the Federal Reserve has a fundamental responsibility to ensure that there is a flexible and robust infrastructure supporting the U.S. payment system on which the private sector can develop innovative payment services that serve the broadest public interests.6 The settlement infrastructure concepts outlined in this notice are intended to advance the development of faster payments and to help support the modernization of the financial services sector's provision of payment services.7

    6 For example, in 2017, the Board approved final guidelines for evaluating requests for joint accounts at the Federal Reserve Banks intended to facilitate settlement between and among depository institutions participating in private-sector payment systems. Available at https://www.federalreserve.gov/newsevents/pressreleases/files/other20170809a1.pdf. The original impetus for adopting these guidelines was to broaden access to joint accounts in support of private-sector developments in faster payments.

    7 In a recent report, the U.S. Treasury recommended that the Federal Reserve move quickly to facilitate a faster retail payments system, such as through the development of a real-time settlement service, that would also allow for more efficient and ubiquitous access to innovative payment capabilities. In particular, smaller financial institutions, like community banks and credit unions, should also have the ability to access the most-innovative technologies and payment services. See U.S. Treasury, “A Financial System That Creates Economic Opportunity: Nonbank Financials, Fintech, and Innovation,” July 2018. Available at https://home.treasury.gov/sites/default/files/2018-07/A-Financial-System-that-Creates-Economic-Opportunities---Nonbank-Financi....pdf.

    B. The Federal Reserve's Role in the Payment System

    A safe and efficient payment and settlement system that works in the interest of the public is vital to the U.S. economy, and the Federal Reserve plays important roles in helping maintain the integrity of that system. 8 Fundamentally, the payment and settlement system facilitates financial transactions, purchases of goods and services, and the associated movement of funds on behalf of individuals, households, businesses, and other parties (such as government entities and nonprofit organizations). The importance of the payment and settlement system in daily lives and, more broadly, for all financial transactions underscores the significance of its safe and proper functioning for the U.S. economy.

    8 The Federal Reserve has long provided payment services under authority of the Federal Reserve Act (See e.g., Federal Reserve Act section 13(1) (12 U.S.C. 342), section 19(f) (12 U.S.C. 464), and section 16(14) (12 U.S.C. 248(o))).

    One of the Federal Reserve's most significant roles in that system involves providing mechanisms for the settlement of payment obligations between and among banks. Banks process payments on their own behalf as well as on behalf of their end-user customers, including individuals, households, businesses, and other parties. Banks—small, medium, and large—settle payments at the Federal Reserve through their accounts and balances at the Federal Reserve Banks (Reserve Banks).9 This core central banking function stems from the Federal Reserve's unique ability to transfer balances that are free of counterparty credit risk and provide certainty that payments between banks are complete.10 In addition to providing settlement, the Reserve Banks provide payment services to clear and settle check, ACH, and wire transfer payments between banks. The Reserve Banks also process these payments on behalf of the U.S. Treasury in their capacity as fiscal agents.11

    9 Section 13(1) of the Federal Reserve Act (FRA) permits Reserve Banks to receive deposits from member banks or other depository institutions. 12 U.S.C. 342. Section 19(b)(1)(A) of the FRA includes as depository institutions any federally insured bank, mutual savings bank, savings bank, savings association, or credit union, as well as any of those entities that are eligible to make application to become a federally insured institution. 12 U.S.C. 461(b). In addition, there are certain statutory provisions allowing Reserve Banks to act as a depository or fiscal agent for the U.S. Treasury and certain government-sponsored entities (See e.g., 12 U.S.C. 391, 393-95, 1823, 1435) as well as for certain international organizations (See e.g., 22 U.S.C. 285d, 286d, 290o-3, 290i-5, 290l-3). In addition, Reserve Banks are authorized to offer deposit accounts to designated financial market utilities (12 U.S.C. 5465), Edge and Agreement corporations (12 U.S.C. 601-604a, 611-631), branches or agencies of foreign banks (12 U.S.C. 347d), and foreign banks and foreign states (12 U.S.C. 358).

    10 As mentioned earlier, these balances are referred to as central bank money. The Committee on Payment and Market Infrastructures defines central bank money in its glossary of terms as “a liability of a central bank, in this case in the form of deposits held at the central bank, which can be used for settlement purposes.” Available at https://www.bis.org/cpmi/publ/d00b.htm.

    11 Additional information about the Federal Reserve's role in the payment system is available in “The Federal Reserve System Purposes & Functions,” October 2016. Available at https://www.federalreserve.gov/aboutthefed/pf.htm.

    Through the services that it provides to the banking industry and the U.S. government, the Federal Reserve seeks to foster the safety and efficiency of the payment and settlement system. In doing so, the Federal Reserve provides payment and settlement services on an equitable basis and maintains a fundamental commitment to competitive fairness, which is essential to fostering end-user choice and innovation across the financial services sector as a whole.

    When evaluating the potential introduction of a new payment service or major enhancements to an existing service, the Federal Reserve looks to its statutory obligations as well as long-standing principles and criteria.12 These include expectations that (i) the Federal Reserve will achieve full cost recovery over the long run, (ii) the service will yield a clear public benefit, and (iii) the service is one that other providers alone cannot be expected to provide with reasonable effectiveness, scope, and equity.13 The Board also conducts a competitive-impact analysis for any new service or major enhancement that would have a direct and material adverse effect on the ability of other service providers to compete effectively with the Federal Reserve in providing similar services.14 Recently, at the request of Congress, the Government Accountability Office (GAO) conducted a review of the Federal Reserve's role in providing payment services and the effect of the Federal Reserve on competition in the market for payments. The GAO found that the activities of the Federal Reserve in the payment system generally have been beneficial, with benefits that include lowered cost of processing payments for end users.15

    12See Monetary Control Act of 1980, Public Law 96-221, 94 Stat. 132 (1980). The Federal Reserve also considers, as appropriate, the effect of a potential new service or major enhancement on other critical missions, including conducting monetary policy and promoting financial stability.

    13See Board of Governors of the Federal Reserve System, “The Federal Reserve in the Payments System,” Issued 1984; revised 1990. Available at https://www.federalreserve.gov/paymentsystems/pfs_frpaysys.htm.

    14See id. at Competitive-Impact Analysis for more information on what the Board considers in a competitive-impact analysis.

    15See U.S. Gov't Accountability Off., GAO-16-614, “Federal Reserve's Competition with Other Providers Benefits Customers, but Additional Reviews Could Increase Assurance of Cost Accuracy” (2016.) Available at https://www.gao.gov/products/GAO-16-614.

    In addition to providing payment and settlement services, the Federal Reserve plays other roles, including serving as a convener of industry stakeholders, in support of its mission to foster safety and efficiency of the payment and settlement system. The next section discusses the broad initiative that the Federal Reserve launched five years ago to collaborate with the payment industry to foster payment system improvements.

    C. Background on the Strategies for Improving the U.S. Payment System Initiative

    Beginning in 2013, the Federal Reserve established a new initiative—Strategies for Improving the U.S. Payment System (SIPS)—with the objective of engaging with the payment industry and other stakeholders to upgrade and enhance the nation's payment system. The collaborative work began with a consultation paper that requested public views on gaps, opportunities, and desired outcomes related to the goal of improving the speed and efficiency of the U.S. payment and settlement system from end-to-end while maintaining a high level of safety and efficiency.16 The consultation paper prompted responses from a wide variety of payment industry stakeholders, including banks, processors and other nonbank providers of payment services, technology firms, and business end users.17

    16 The Federal Reserve Banks, “Payment System Improvement—Public Consultation Paper,” September 10, 2013. Available at https://fedpaymentsimprovement.org/wp-content/uploads/2013/09/Payment_System_Improvement-Public_Consultation_Paper.pdf.

    17 The responses are available at https://fedpaymentsimprovement.org/about/consultation-paper/.

    Based on responses to the initial consultation paper, the Federal Reserve published in 2015 a set of strategies that it would pursue in collaborative engagement with payment industry stakeholders to improve the safety and efficiency of the U.S. payment and settlement system.18 For faster payments, the specific strategy was to “identify effective approach(es) for implementing a safe, ubiquitous, faster payments capability in the United States.” This 2015 paper identified a number of tactics for each strategy, including the establishment of an industry task force to pursue the strategy related to faster payments.19

    18 Federal Reserve System, “Strategies for Improving the U.S. Payment System,” January 26, 2015. Available at https://fedpaymentsimprovement.org/wp-content/uploads/strategies-improving-us-payment-system.pdf.

    19 In addition to the task force on faster payments, other efforts under the SIPS initiative have included a Secure Payments Task Force and a Business Payments Coalition. More information on these efforts and the broader SIPS initiative is available at https://fedpaymentsimprovement.org/.

    In 2015, the Federal Reserve also convened the Faster Payments Task Force (FPTF), a 320-member group comprised of banks of varying sizes, nonbank providers of payment services, business and government end users, consumer interest organizations, governmental organizations, and other industry participants.20 In order to evaluate possible faster payment services, the task force developed a set of effectiveness criteria.21 These criteria addressed various features of a faster payment service, including ubiquity, efficiency, safety and security, and speed.22

    20 Information about the FPTF and its participants is available at https://fasterpaymentstaskforce.org/.

    21 Faster Payments Task Force, “Faster Payments Effectiveness Criteria,” January 26, 2016. Available at https://fedpaymentsimprovement.org/wp-content/uploads/fptf-payment-criteria.pdf.

    22 The FPTF developed the criteria to evaluate “faster payment solutions,” where the FPTF defined a “faster payment solution” as “the collection of components and supporting parties that enable the end-to-end payment process.” This definition is analogous to the concept of a “faster payment service” that is used in this notice.

    The FPTF's effectiveness criteria provide important benchmarks for both end-user capabilities of faster payments and interbank settlement arrangements. With respect to service availability and payment speed for end users, the FPTF viewed service availability on any day, at any time of the day (that is, 24x7x365 service availability), and final funds provided to the recipient within one minute as characteristics of a “very effective” faster payment service.23 With respect to interbank settlement, the FPTF considered a faster payment service to be “very effective” if, among other things, (i) interbank settlement occurs within 30 minutes of the completion of a faster payment for end users, (ii) the service manages credit and liquidity risks arising from any time lag between payment completion for end users and interbank settlement, particularly if the service is available to end users on a 24x7x365 basis but interbank settlement is not, and (iii) interbank credit exposures related to settlement can be fully covered.24 As subsequent sections of this notice will explain, these criteria reflect the importance of the speed of interbank settlement given the speed of faster payments for end users and the risk, specifically credit risk, that results when interbank settlement is slower. The Board recognizes that interbank settlement for faster payments using existing settlement services offered by the Reserve Banks would be unable to meet fully the FPTF's criteria.

    23See “Faster Payments Effectiveness Criteria,” supra note 21 at criteria U.2 (Usability) and F.3 (Fast Availability of Good Funds to the Payee). In this notice, references to “real time,” “instant,” and “immediate” are intended to denote availability of final funds within one minute, consistent with the task force's criteria for a service to be very effective, and ideally within just a few seconds.

    24See “Faster Payments Effectiveness Criteria,” supra note 21 at criteria F.4 (Fast Settlement among Depository Institutions and Regulated Non-bank Account Providers) and S.4 (Settlement Approach).

    In its final report, released in 2017, the FPTF published a set of consensus recommendations for achieving its vision of ubiquitous, safe, and efficient faster payment capabilities for the United States.25 As part of its recommendations, the task force asked the Federal Reserve (i) to develop a 24x7x365 settlement service to support faster payments and (ii) to explore and assess the need for other Federal Reserve operational role(s) in faster payments. Following that report, the Federal Reserve stated its intention to pursue these recommendations.26

    25 In its recent report on the financial system, the U.S. Treasury recommended that the Federal Reserve set public goals consistent with the FPTF's final report. See “A Financial System That Creates Economic Opportunity: Nonbank Financials, Fintech, and Innovation,” supra note 7.

    26 The Federal Reserve System, “Federal Reserve Next Steps in the Payments Improvement Journey,” September 6, 2017. Available at https://fedpaymentsimprovement.org/wp-content/uploads/next-step-payments-journey.pdf.

    D. Summary of Potential Actions by the Federal Reserve

    The Board has worked with the Reserve Banks to identify the potential actions described in this notice. The Board believes it is important to present these conceptual approaches for supporting interbank settlement of faster payments to the public and to gather initial public comments while faster payment services are still in the early stages of their development. The Board is not committing to any further actions at this time or in the future, but is committed to transparent communication with the public after analyzing the responses to this notice and determining further steps, should any be taken. As outlined earlier, any new services or service enhancements proposed by the Board would be expected to meet longstanding principles and criteria established under Federal Reserve policy as part of meeting its statutory requirements and would also be subject to request for public comment.27

    27See “The Federal Reserve in the Payments System,” supra note 13.

    First, the Board is seeking comment on whether the Reserve Banks should consider developing a service for real-time gross settlement (RTGS) of faster payments that is available to conduct settlement on a 24x7x365 basis (24x7x365 RTGS settlement service). Such a service would involve interbank settlement of faster payments using banks' balances in accounts at the Reserve Banks. Reflecting the characteristics of faster payments, the service would provide payment-by-payment interbank settlement in real time and at any time, on any day, including weekends and holidays. A 24x7x365 RTGS settlement service could be similar, in certain respects, to the Fedwire® Funds Service, the RTGS service that the Reserve Banks currently provide for banks to clear and settle payments on behalf of their customers and for their own purposes.28

    28 In contrast to a potential 24x7x365 RTGS settlement service, the Reserve Banks' Fedwire Funds Service does not operate 24x7x365. Much of the value transferred through the Fedwire Funds Service reflects large-value, time-critical payments between banks.

    Second, the Board is seeking comment on whether the Reserve Banks should consider developing a liquidity management tool that would operate on a 24x7x365 basis in support of services for real-time interbank settlement of faster payments, whether those services are provided by the private sector or the Reserve Banks (liquidity management tool). Such a tool would enable movement of funds during hours when traditional settlement systems are not open (nonstandard business hours) between banks' master accounts at the Reserve Banks and an account (or accounts) at the Reserve Banks used to conduct or support 24x7x365 real-time settlement of faster payments.29 A liquidity management tool could involve simultaneous liquidity transfers among multiple accounts that are coordinated by an authorized agent in the settlement process and could be based on the existing National Settlement Service (NSS) or a similar service.30 Alternatively, the tool could involve individual bank-initiated transfers between specific sets of accounts and could function similarly to the existing Fedwire Funds Service or a similar service. Regardless of its structure, such a tool would enable transfers to support liquidity (or funding) needs associated with real-time settlement of faster payments during nonstandard business hours, such as weekends and holidays.

    29 A master account is the record of financial rights and obligations between account-holding banks and a Reserve Bank. The account is where opening, intraday, and closing balances are determined.

    30 NSS is a multilateral settlement service offered to banks that settles for participants in private-sector clearing and settlement arrangements. The service requires a designated agent to submit a settlement file to a Reserve Bank, which initiates debits and credits to participant accounts at the Reserve Banks.

    Later sections of this notice expand on these possible actions to support interbank settlement of faster payments, as well as the general concepts that underlie them. The Board is seeking input on the proposition that RTGS is the appropriate strategic foundation for interbank settlement of faster payments. The Board is also seeking input on whether the provision of a 24x7x365 RTGS settlement service and a liquidity management tool, separately or in combination, would help achieve the goals of ubiquitous, nationwide access to safe and efficient faster payments in the long run. The Board is further interested in receiving comment about whether other approaches, not explicitly considered in this notice, might help achieve those goals.

    II. Discussion of Faster Payments A. General Elements of a Payment

    Payments are essential to the conduct of economic activity. When a good is purchased, a service is rendered, or a debt is repaid, a payment is typically involved. For example, an individual's purchase of a product from a business involves the business providing something of value, namely the product itself, to the buyer. As compensation for the product, the business needs to receive something of financial value from the buyer in return. This act of transferring financial value from the buyer to the seller, or, more generally, from one party in a transaction to another, constitutes a payment.

    In the United States, as in other modern economies, the value transferred in a payment typically involves monetary assets. Individuals, households, businesses, and other parties in the economy (for example, governments and nonprofit organizations) hold these monetary assets in various forms. For example, some monetary assets may be held as currency and coin. Other monetary assets may involve funds held with specialized financial institutions. In the United States, deposits in accounts with banks comprise the monetary asset that is most widely held by the general public to conduct payments.31

    31 As of July 2018, the value of transferable deposits held by the public, including demand deposits and other checkable deposits, was $2.09 trillion, while the value of currency in circulation outside banks was $1.59 trillion. See Federal Reserve Board, “Money Stock and Debt Measures—H.6 Release, Table 5” available at https://www.federalreserve.gov/releases/h6/current/default.htm.

    In broad terms, the function of the payment and settlement system is to enable the transfer of these monetary assets between their holders for the purposes of exchanging value to pay for goods and services, remitting funds to pay bills and meet other obligations, managing business balance sheets, and conducting other activities. This transfer can occur in various ways. For example, in a face-to-face payment, the handover of currency serves to transfer a monetary asset from the individual to the business and, hence, to complete a payment between them. When the monetary asset used for payment is deposits held in accounts with banks or other institutions, transfers require adjustments to the amount of funds in the respective accounts of each party in a payment. Thus, the balance in the individual's account with their bank must be decreased by the amount of the purchase, and the balance in the business's account with its bank must be increased by the same amount.

    To make these adjustments, the banks involved in a payment must have a way to receive and exchange payment messages. A payment message typically contains information related to the payment, such as the identities of the parties involved, relevant account information, and the payment amount. Without a payment message and a method to exchange it, the banks involved in a payment would not know the details of a payment or even be aware of an end user's need to conduct it.

    The payment between end users and associated payment message generates an obligation between the respective banks. The banks must have a mechanism to conduct a transfer of assets between one another to settle the payment. Without a mechanism to settle the interbank obligation, the banks would not have transferred the underlying funds to complete the payment.

    These activities, which are known as clearing and interbank settlement, involve processes, infrastructure, rules, agreements, and law that ultimately allow end users, such as an individual and a business, to conduct payments using accounts held with banks or other institutions.

    B. Levels of the Payment Process

    To complete a payment between two bank accounts, three key levels of the payment process are necessary: End-user services, clearing services, and interbank settlement services.32 Together, these three levels comprise a “payment service” or, as will subsequently be discussed, a “faster payment service” in the case of a payment service focused on faster payments.33 In other words, a payment service encompasses everything that goes into providing an individual, a business, or another end user with the ability to conduct a payment. Figure 1 depicts the levels of the payment process when the sender initiates a payment through their bank.

    32 This discussion focuses on a situation in which the parties to a payment hold accounts with different banks or, more broadly, different financial institutions. If these parties hold accounts with the same institution, that institution may be able to conduct payment activities internally through, for example, adjustments to an internal ledger of account balances. This scenario can apply to payments within a single bank, yielding what is termed an “on-us” transaction. It also applies to many payment services provided by nonbanks.

    33 A legal framework that governs the conduct of payments is also necessary and may apply across levels of the payment process. This framework may be in the form of laws, regulations, rules, or contractual agreements, which collectively determine the rights and obligations of the participants, such as end users, in the payment process. The legal framework may provide, among other things, for error resolution and fraud protection for end users. Legal requirements related to anti-money-laundering and economic sanctions may also affect the design and operation of a payment system.

    An end-user service includes the tools that an individual or business uses to conduct a payment. For example, an individual wishing to pay a bill to a utility company or send money to a friend may be able to do so through a mobile phone application. Similarly, a business may be able to initiate a payment to a vendor through a bank's website. Such services allow an end user to communicate with their bank about the need to make a payment and the details of that payment. In other words, end-user services support the exchange of payment messages and other information between a bank and its end-user customers. End-user services also include other critical aspects of the overall payment experience for an individual or business, such as error resolution procedures and security measures to mitigate fraud.

    Clearing services and interbank settlement services constitute the infrastructure underlying payment services involving bank accounts. These services and the activities they perform may not be apparent to end users, but they are crucial to the transfer of information and value between banks, so that the sender of a payment can satisfy their obligation to the recipient of a payment.

    In clearing services, the sending and receiving banks interact, possibly through an intermediary such as a clearing house, based on the payment information received from end users and the protocols associated with a payment service. A key element of this interaction is the exchange of the payment message between the sending and receiving banks.34 The payment messages that are exchanged contain the necessary information for banks to make appropriate debits and credits to the accounts of their end-user customers and to notify their customers of those adjustments to account balances.

    34 Other clearing activities include sorting and routing of payment instructions, ensuring that payment instructions comply with service-specific rules and limits, and calculating and communicating interbank obligations that arise from payment instructions. Clearing activities may also include screening for fraudulent payments and other risk-management measures.

    Finally, in interbank settlement services, the sending and receiving banks transfer assets to each other to satisfy the interbank obligations that arise from end-user payments. Settlement takes place by adjusting the balances in banks' settlement accounts on the books of a settlement institution. For example, interbank settlement can be performed by directly adjusting balances in accounts that banks hold with the central bank or a commercial bank.

    EP15NO18.000 C. An Overview of Faster Payments

    In a faster payment, the three levels of the payment process are structured so that senders can immediately initiate, and recipients can immediately receive, payments at any time.35 At the end-user service level, the sender of a payment must have an interface that allows real-time communication at any time to initiate a payment. This need for instant and always-available communication capabilities for end users explains why faster payments are often associated with payments initiated through computers or mobile devices.

    35 Rules or agreements that govern the conduct of faster payments are also necessary. Among other things, these rules or agreements will specify end-user rights and obligations associated with a faster payment.

    At the clearing level, certain activities must similarly happen in real time and at any time. In particular, the messaging between banks must occur in real time on a 24x7x365 basis, so that, at any time of the day, the banks involved in a payment are able to send and receive payment messages immediately, such that they can debit and credit their customers' accounts. By contrast, in certain traditional payments, the payment message exchange can occur sometime after an end user initiates a payment. As will be discussed in more detail in the next section, however, the interbank settlement level of a faster payment service may or may not exhibit the same speed and availability as end-user and clearing services.

    Although the previous discussion focused on activities related to faster payment services involving banks, several established services in the United States that allow end users to conduct faster payments are provided by nonbank entities. These nonbank payment services usually combine all three levels of the payment process. These services often focus on enabling impromptu payments between individuals, such as friends or family members, although some also handle a wider array of payment situations, such as payments between individuals and businesses. Such a service typically provides an online portal or mobile application that allows parties who have signed up with the service to send payments to each other. The service executes payments through adjustments to balances of the sender's and recipient's service-specific accounts, which are located on the service's internal books.36 Because end users can quickly communicate with the service, which can then rapidly make internal adjustments to end-user balances, such a service allows registered end users to conduct immediate payments at any time. However, such capabilities are only possible when both the sender and receiver of a payment have signed up with a specific service. In addition, the balances are only immediately usable within that specific service. Transfers of funds out of a nonbank service into bank accounts that are held for general use typically involve transactions through traditional payment systems that can take more than a day to complete.37

    36 As noted in footnote 32, nonbank entities can often conduct key activities related to payments on an internal ledger of account balances.

    37 A nonbank service's internal ledger of end-user account balances is generally backed by a deposit account or accounts that the nonbank service holds with one or more banks. Transfers by a service's customers to fund or defund their service-specific accounts involve payments between the customers' bank accounts and the service's bank account(s). These funding and defunding transfers typically occur via payment card networks or the ACH system.

    Recently, other faster payment services have emerged in the United States that are based on transfers between bank accounts. These include services that allow end users to send or receive faster payments using the debit card infrastructure of certain payment card networks and services that allow faster payments over newer proprietary payment networks owned by groups of banks. The end-user service can involve a service-specific website or mobile application or may be integrated into a participating bank's website or mobile application, similar to many existing online bill payment services. For business customers, the end-user service may be integrated into a bank's back-end payment processing infrastructure. To use these services, end users must typically sign up with a specific service through their banks or, in some cases, may sign up directly with the service itself. Because the sending and receiving end users may hold their accounts at different banks, their banks must exchange payment messages as part of clearing. These interbank clearing activities can occur through existing payment card networks or proprietary communication networks of the bank-owned services. To enable their customers to make payments through a specific faster payment service, banks must participate in the service or otherwise be capable of receiving payment messages initiated through the service. Interbank settlement must also occur, allowing the banks to transfer assets reflecting their customers' faster payments. At present, interbank settlement for these services is largely conducted through existing services provided by the Reserve Banks and, in one case, is performed using a private sector-owned settlement ledger that is backed by funds in a “joint account.” A joint account is a recently announced type of account held at a Reserve Bank that holds balances for the joint benefit of settling banks in a private-sector settlement service.

    The interbank settlement models discussed in this notice specifically focus on faster payment services that involve transfers between bank accounts and do not directly address services provided by nonbank entities. At the same time, many nonbank faster payment services ultimately use deposit accounts at banks to hold funds associated with their customers' balances and further rely on established interbank payment systems for the movement of money between their customers' bank accounts and service-specific accounts. Nonbank faster payment services may also have access to Reserve Bank services when acting as agents on behalf of banks that participate in their services. As a result, interbank clearing and settlement capabilities may have implications for both bank and nonbank faster payment services.

    III. Faster Payment Interbank Settlement Models

    As defined above, faster payment services involving transfers between bank accounts must conduct certain activities in real time on a 24x7x365 basis. In particular, such services must accept payment messages from end users, exchange payment messages between banks, and make final funds available to recipients in real time and at any time. However, interbank settlement can be performed in two ways: On a deferred basis or in real time. These two models have important distinguishing features with risk, liquidity management, and other implications.

    A. Deferred Net Settlement of Interbank Obligations

    In a deferred settlement arrangement for faster payments, final funds are made available to the end-user recipient before interbank settlement occurs. In such an arrangement, individual payment messages are exchanged in real time between the sender's bank and the recipient's bank. The banks adjust their customer balances to reflect the outflow of funds for the sender and the inflow of funds for the receiver, and the recipient's bank immediately makes final funds available to its customer. The interbank settlement information resulting from the individual payments is collected and stored by a centralized entity (for example, a clearinghouse) for a period, such as a certain number of hours or until the next business day, before interbank settlement occurs. In some cases, settlement may be deferred for several days over weekends or holidays, depending on whether the system used for settlement is available then. Around the world, most existing implementations of deferred settlement for faster payments involve netting of interbank obligations prior to settlement, yielding what is termed deferred net settlement (DNS).38 In a DNS arrangement, the centralized entity that collects and stores interbank settlement information offsets payment obligations owed by a bank with payment obligations due to that bank. After collecting and netting settlement information related to groups of payments, the centralized entity submits information on net obligations to an interbank settlement system, which then adjusts the account balances of all participating banks on the settlement institution's books. Alternatively, rather than relying on a centralized entity, participating banks may initiate a series of funds movements to settle the net obligations. The process of collecting, netting, and then settling a group of payments is known as a settlement cycle.

    38See “Fast payments—Enhancing the speed and availability of retail payments,” supra note 5.

    The Board understands that, at present, most faster payment services in the United States that involve transfers between bank accounts are based on a DNS model for interbank settlement. In these services, interbank settlement of net obligations is conducted using traditional payment and settlement systems, namely the Fedwire Funds Service or the ACH system, with the timing and frequency of settlement depending on, among other things, the operating hours of those systems.39

    39 The Reserve Banks' National Settlement Service is used by some DNS-based systems that do not involve faster payments.

    A number of factors may contribute to the current prevalence of DNS-based arrangements for faster payment services in the United States. First, traditional payment and settlement systems, which can be leveraged for settlement of faster payments, already have widespread participation by banks. In addition, by using the Fedwire Funds Service or the ACH system, banks can treat settlement payments for faster payment services much like other interbank payments, without the need to implement new faster payment settlement capabilities and operational procedures. As a result, it may be easier for banks to become participants in these faster payment services. Finally, DNS-based faster payment services can be attractive from a liquidity management perspective because netting reduces balances that banks need to set aside to settle obligations related to faster payments.

    At the same time, DNS arrangements for faster payments involve inherent risks that need to be managed. Because the recipient's bank makes final funds available to the recipient before interbank settlement occurs, DNS arrangements for faster payments inherently generate interbank credit risk for the recipient's bank. If a sending bank in the arrangement fails to pay a net obligation, receiving banks are at risk of losing the full value of funds that they have already made available to recipients.40 In addition, this scenario could generate liquidity risks for receiving banks if, subsequent to a sending bank's failure to pay, settlement amounts are recalculated and banks may receive less or have to pay more than expected. Such credit and liquidity risks may become particularly pronounced if, as the 24x7x365 nature of faster payments would allow, rapid withdrawals from a troubled bank were to occur outside standard business hours, increasing credit exposures and liquidity needs for receiving banks. During a period of financial stress, these risks could also further aggravate financial stability concerns.

    40 The risk can be particularly acute with the use of the ACH system given the time delay between file submission of the ACH payment to settle the net obligation and the actual settlement of those ACH payments at specified times during the day or next day. Debit ACH payments, if used in the settlement process, also are not final upon settlement. The extra time lapse in ACH processing and settlement and the lack of final settlement for debit ACH payments, if used, can add to interbank credit risk.

    The interbank settlement risks created in a DNS-based faster payment service may be mitigated with appropriate risk management tools. Potential tools include (i) transaction limits on individual payments or frequent settlement cycles to help prevent the emergence of large net interbank exposures, (ii) loss-sharing agreements among participants in a system to help spread the risk of a settlement failure, (iii) limits on the net negative position of each participating bank to prevent interbank exposures from becoming too large, and (iv) collateralization to back settlement activity if one or more participants were not able to meet their obligations. Credit and liquidity risk exposures can be fully mitigated by requiring participants in a DNS-based faster payment service to prefund potential exposures fully with cash held at a custodial institution, with an enforceable limit on payment transactions to prevent interbank settlement exposures from exceeding the covering funds or, potentially, a mechanism to augment prefunded cash collateral when needed. Under this risk-management structure, if a participant in a DNS system is unable to fund its settlement obligations, the obligations could be covered with prefunded cash, allowing the settlement payments to be completed and avoiding the need to recalculate settlement obligations.

    In other countries, every faster payment service based on a DNS model employs measures to mitigate the resulting interbank settlement risk.41 Most recent international examples of DNS-based faster payments typically use full cash prefunding, a risk-management approach that is reflected in the FPTF's effectiveness criterion related to full coverage of interbank credit exposures. A prominent example of full risk mitigation occurs in the United Kingdom, where faster payment participants settle their positions three times per business day using accounts at the Bank of England. Each participant in the system sets its own “net sender cap” that limits the participant's negative position between settlement cycles. Since 2015, these caps have been fully backed by cash collateral held in segregated accounts at the Bank of England to mitigate the overnight interbank credit risk generated by the system. In the event that a participant were unable to meet its obligation in a settlement cycle, the participant's cash collateral at the Bank of England would be immediately accessed to conduct settlement.

    41See “Fast payments—Enhancing the speed and availability of retail payments,” supra note 5.

    In addition to risk management, DNS-based faster payment services may have liquidity management implications. On the one hand, liquidity management may be simplified for banks in a DNS arrangement because netting reduces the funds that banks need to have available for settlement obligations related to faster payments. In addition, because settlement is conducted periodically, often at pre-defined times, banks in a DNS arrangement do not need to provide sufficient funds on a real-time basis to settle faster payments that are otherwise taking place in real time. On the other hand, if a DNS-based service were to use frequent settlement cycles to manage credit risk exposures, banks would need to ensure that they have adequate liquidity whenever a settlement cycle occurs. For example, if it were possible to conduct the 30-minute settlement cycles that would be applied in a DNS arrangement satisfying the FPTF's effectiveness criterion related to settlement speed, that settlement frequency would require banks to monitor and manage their liquidity over the weekend and on holidays.

    Furthermore, collateral management may have implications for banks participating in a DNS-based faster payment service that employs collateral to mitigate interbank credit risk. The availability of adequate collateral to cover a bank's net obligation would need to be verified in real time for each individual faster payment, with payments being rejected when collateral is inadequate. As a result, cash or collateral to back settlement activity in a DNS arrangement would need to be monitored, maintained, and potentially adjusted on a real-time basis, including during nonstandard business hours, to avoid rejected payments.42 Alternatively, banks could elect to maintain higher cash or collateral balances to hedge against unexpected payment volumes; however, this choice would have other implications for banks and their ability to use cash or collateral for other purposes.

    42 The need for collateral management during nonstandard business hours in a DNS arrangement for faster payments is similar to the need for liquidity management during nonstandard hours in an RTGS arrangement. As a result, to avoid rejected payments resulting from insufficient collateral, a collateral management tool, which could be similar to the liquidity management tool discussed in the context of RTGS arrangements, may be needed in a DNS arrangement.

    Another consideration for DNS-based faster payment services is that interoperability between services that use different risk and liquidity management arrangements may be challenging, which can be a barrier to faster payment ubiquity if end users are not able to send payments across services. For faster payment services to be interoperable, each service should have the ability to receive transactions originated from the other service and to manage the associated cross-service settlement risks.43 Interoperability would likely be harder to achieve if two services and their chosen settlement features generate different levels of interbank settlement risk or if they use different tools to mitigate such risk.

    43 Currently, interoperability agreements do not exist among payment card networks or wire operators. The only interoperability agreement is in the ACH system between FedACH, provided by the Reserve Banks, and the private-sector Electronic Payments Network.

    B. Real-Time Gross Settlement of Interbank Obligations

    In an RTGS arrangement for faster payments, final funds are made available to the recipient only after interbank settlement has occurred between the banks that are party to the transaction. To ensure this outcome, RTGS-based faster payments involve both completion of end-user payments and settlement of interbank obligations on a payment-by-payment basis in real time and at any time. RTGS for faster payments thus aligns the speed and 24x7x365 availability of interbank settlement with the speed and 24x7x365 availability of faster payments for end users. In such an arrangement, because the speed and timing of interbank messaging activities needed to support faster payments for end users coincide with the speed and timing of interbank settlement activities, it can be possible to avoid duplicative activities by combining interbank messaging and settlement.44 As a result, a single payment message may be sent from the sender's bank to the recipient's bank through the settlement service with that message containing both the information needed by the banks to adjust their customers' balances and the bank information necessary to conduct interbank settlement.

    44 For purposes of this notice, in an RTGS model, messaging and clearing can be considered synonymous since, beyond real-time message transmission, the other components of clearing that are necessary in a DNS model, such as netting of payments for settlement, are not relevant. Messaging activities may still include other risk-management measures, such as screening for fraudulent payments and ensuring that payment instructions comply with service-specific rules and limits.

    RTGS arrangements inherently avoid interbank settlement risk because funds are made available to the recipient only after interbank settlement has occurred. This key feature enhances the safety of faster payment services based on the RTGS model, both for individual banks and in the aggregate, particularly during times of financial stress. The lack of inherent interbank settlement risk eliminates the need for measures to mitigate such risk, as would be needed in a DNS arrangement. In addition, by aligning interbank settlement with interbank messaging, the RTGS model can avoid activities, such as storing, netting, and submitting groups of payments for settlement, that are not generally relevant for the provision of faster payments to end users, but would be necessary in DNS-based faster payment services because of the timing mismatch between settlement and the underlying payments. In the process, the RTGS model also avoids the unanticipated liquidity effects that can occur in the event of a settlement failure when interbank settlement positions have been netted by a centralized entity. Finally, when considering interoperability between RTGS-based faster payment services, the lack of interbank settlement risk in such services may facilitate interoperability by avoiding the need to reconcile measures to mitigate cross-system settlement risk, in particular, as may be necessary with DNS-based faster payment services.

    At the same time, real-time settlement for faster payments may have liquidity management implications. Because RTGS-based faster payment services process and settle each payment separately, with continuous updates to settlement accounts on a 24x7x365 basis, participants in an RTGS-based service may need to monitor and manage their settlement accounts outside standard business hours to ensure that balances are available to settle each payment. Further, even for retail payment systems, gross settlement may be more liquidity intensive than net settlement.

    Based on the design, liquidity management may require tools to reallocate liquidity to support settlement of faster payments. For example, if settlement for an RTGS-based service is conducted in an account that is separate from a bank's primary settlement account (that is, a Federal Reserve master account), a liquidity management tool could allow for banks or an agent acting on their behalf, such as the provider of an RTGS service, to move liquidity to the faster payment settlement account when needed. Alternatively, liquidity management could involve automatic replenishment of the faster payment settlement account from the primary account, based on certain parameters or at certain times of the day. Liquidity management tools are discussed later in the notice.

    Another consideration for RTGS-based faster payments is that faster payment services to end users are dependent on uninterrupted availability of the RTGS service to conduct faster payments. Although faster payments based on deferred settlement would require certain clearing activities to occur in real time and at any time, necessitating a high level of resiliency for those activities, end-user payments could still be completed even if the interbank settlement service is temporarily unavailable. In contrast, an RTGS service supporting faster payments would require advanced throughput capabilities and high resiliency of both the settlement service and messaging activities. In addition, to avoid failed end-user payments, enhanced contingency arrangements may be necessary to deal with situations when a primary RTGS processing service is temporarily unavailable to process transactions.

    One example of an RTGS service for faster payments is the system being developed by the European Central Bank (ECB) to support “instant payments” in the European Union. Like faster payments in the United States, instant payments in the European Union are expected to involve services for real-time payments between end users that can be conducted on a 24x7x365 basis. To facilitate ubiquity of instant payment services across national jurisdictions, the ECB system will offer final settlement for instant payments using balances held at the ECB (that is, central bank money) to banks and other eligible institutions across Europe. In line with 24x7x365 instant payment services for end users, the ECB's system will enable settlement on a 24x7x365 basis. The ECB has announced that it will implement its instant payments RTGS system using separate, dedicated cash settlement accounts for each participating institution. The ECB plans to launch its instant payments RTGS system in November 2018.45

    45 More information about the ECB's RTGS system for instant payments is available at https://www.ecb.europa.eu/paym/initiatives/html/index.en.html.

    Another example, albeit with a different approach, of an RTGS service for faster payments involves a system launched domestically in the United States in late 2017. This system, operated by a private-sector entity, performs immediate, round-the-clock settlement of payments on its private ledger, rather than using central bank money. Each participant in this arrangement relies on the presence of balances stored in a single joint account at a Reserve Bank that is held for the benefit of the joint account-holding banks as a method of backing the private-sector service.46

    46 A joint account enables settlement for participants in a private-sector arrangement to be backed by funds held for a special purpose at a Reserve Bank. Although the joint account is not formally a collateral account, the funds in the joint account are held for the joint benefit of the settling participants. Accordingly, the operator of a settlement arrangement that relies on a joint account can perform real-time, payment-by-payment settlement on its own ledger, which in turn reflects how the operator, as agent for the settling participants, will attribute the balances in the joint account on its own records to each settling participant. Settlement backed by a joint account can occur at any time or on any day because the settlement takes place on the ledger of the settlement-arrangement operator.

    IV. Potential Federal Reserve Actions To Support 24x7x365 Real-Time Settlement of Faster Payments

    Although both DNS and RTGS arrangements have benefits and drawbacks for settling faster payments, on balance, the Board views RTGS as offering clear benefits from a risk and efficiency perspective, making it the preferable basis for interbank settlement of faster payments over the long term in the United States. Given the round-the-clock availability of end-user faster payment services, real-time interbank settlement should likewise be possible at any time and on any day. While DNS-based faster payment services with measures to mitigate risk may be appropriate for a nascent faster payment market in the short term, the Board believes that, as the volume and value of faster payments grow in the future, an RTGS infrastructure would provide the safest and most efficient foundation for interbank settlement for the next generation of payment services. Through this notice, the Board is seeking views regarding this perspective on interbank settlement.

    In addition, the Board is requesting comment about potential actions that the Federal Reserve could take to support a ubiquitous, nationwide infrastructure for 24x7x365 real-time settlement of faster payments. These actions, which could be taken separately or in combination, include the Reserve Banks' developing (i) a 24x7x365 RTGS settlement service and (ii) a liquidity management tool. In addition to seeking comment on whether the Reserve Banks should consider developing either or both of these services, the Board is interested in receiving comment about whether other approaches would help achieve the long run goals of ubiquitous, nationwide access to safe and efficient settlement services for faster payments.

    A. A 24x7x365 RTGS Settlement Service Provided by the Reserve Banks 1. Characteristics of a 24x7x365 RTGS Settlement Service

    As one potential action, the Reserve Banks could provide a 24x7x365 RTGS settlement service for banks that would carry out the interbank settlement of individual payments immediately, on any day, and at any time of the day. Such a service would reflect the real-time speed and 24x7x365 nature of faster payments. The service would settle interbank obligations through debits and credits to balances in banks' accounts at the Reserve Banks, constituting settlement in central bank money.47 As it does with some of its existing services, the Federal Reserve could allow agents to submit settlement instructions to a 24x7x365 RTGS settlement service on behalf of participating banks that hold accounts at the Reserve Banks.

    47 The Board expects that such a service would be used for credit transfer payments in which the party that intends to make a payment initiates the payment to the recipient.

    A 24x7x365 RTGS settlement service could involve messaging functionality, which traditionally is considered part of the clearing level, and may function much like the Fedwire Funds Service. As with the Fedwire Funds Service, a 24x7x365 RTGS settlement service could receive and deliver the entire payment message, including bank routing information needed for interbank settlement and customer information needed by receiving banks to update their customers' accounts.48 Under this design, the service would receive settlement instructions from and deliver settlement notifications to the banks (or their agents) pursuant to the information in the payment message. As a result, the RTGS functionality could provide a straight-through processing method to conduct interbank clearing and settlement of faster payments.

    48 An RTGS settlement service could be designed to optionally process either the full message with bank routing and customer information or only the bank routing information needed for interbank settlement. The latter use would require third parties to separately transmit the payment message between sending and receiving banks. These design choices may raise policy, legal, and operational complexities, such as achieving payment transparency for screening and other compliance-related requirements.

    The proposed 24x7x365 RTGS settlement service could make use of the existing electronic access connections and payment services network that the Reserve Banks provide to banks to enable secure payment processing for transactions involving Reserve Bank payment services. In addition, interbank settlement of faster payments could occur in Federal Reserve master accounts, similar to the way that settlement for other types of Reserve Bank payment services occurs, and could use the same account-monitoring regime that is in place for other payment services provided by the Reserve Banks. Alternatively, interbank settlement of faster payments could occur in separate, dedicated faster payment settlement accounts for each participating bank with balances that could be treated as reserves, earning interest and satisfying reserve balance requirements. With separate accounts, an approach would be needed for moving funds between a bank's master account and its faster payment settlement account during standard business hours and potentially outside those hours. In either account structure, the service would record end-of-day balances in the account and provide balance reports for each calendar day of the week (that is, a seven-day accounting regime). The Board is requesting comment on the advantages and disadvantages of these design options and features.

    Additionally, a 24x7x365 RTGS settlement service might need to incorporate some auxiliary services or other service options in order to support an effective nationwide system. One example of an auxiliary service is a proxy database or directory that allows banks to route end-user payments using the recipient's alias, such as an email address or phone number, rather than their bank routing and account information. Another example of auxiliary services is enhanced fraud-monitoring capabilities, which may involve a shared database of known fraudulent accounts or automated fraud detection tools. Other service options to consider include transaction limits to manage risk or payment-by-payment offsetting functionality to economize on the use of liquidity. The Board is requesting comment on whether such auxiliary services or other service options are necessary for broad adoption of faster payments and what entity(s) should provide them.

    A 24x7x365 RTGS settlement service provided by the Reserve Banks would rely on banks and other parties, such as processors and other providers of payment services, to develop end-user services and, ideally, the full suite of auxiliary services, such as a proxy database or directory, that build upon the basic functionality of the settlement service.

    2. Public Benefits of a 24x7x365 RTGS Settlement Service

    The Federal Reserve's longstanding public policy objectives for the payment system are that payment systems are safe, efficient, and accessible to all eligible banks on an equitable basis and, through them, to the public nationwide.49 Based on its analysis, the Board believes the Reserve Banks' development of a 24x7x365 RTGS settlement service could yield societal benefit by advancing these objectives and serve as an important part of the foundation for the nation's future payment system. The Board is requesting comment on whether the Federal Reserve's provision of a 24x7x365 RTGS settlement service will indeed offer these potential benefits.

    49See “The Federal Reserve in the Payments System,” supra note 13.

    Accessibility

    A 24x7x365 RTGS settlement service provided by the Reserve Banks could significantly improve the long-term prospect of all banks having access to a real-time interbank settlement infrastructure for faster payments. Today, the Reserve Banks provide payment services to more than 11,000 banks—the vast majority of banks in the United States. By capitalizing on its electronic access network and customer relationships, the Reserve Banks are in a position to offer equitable access to real-time interbank settlement to all eligible banks in the country, regardless of type or size.

    It may be difficult for the private sector to create an infrastructure that, on its own, could provide equitable access to enough banks to achieve ubiquity. Practically, a private-sector RTGS service that does not have existing relationships with a large number of banks may have difficulties establishing those relationships for a new service. Likewise, banks without an existing relationship to the provider of a private-sector RTGS service may find it cumbersome and time-consuming to establish connections with a new provider of settlement services. However, accessibility could be greatly enhanced if existing and potential future private-sector RTGS services were able to interoperate with a Reserve Bank service, such that end-user customers of any bank could send faster payments to end-user customers of any other bank, regardless of the faster payment RTGS service used by the banks. In such a scenario, private-sector and Reserve Bank RTGS services would work in tandem to provide ubiquitous, nationwide access to real-time interbank settlement for faster payments.

    Safety

    As noted above, real-time settlement for faster payments avoids interbank settlement risk by aligning the speed of interbank settlement with the speed of the underlying payments. If a 24x7x365 RTGS settlement service developed by the Reserve Banks were to significantly improve the prospect that banks nationwide would use real-time settlement for faster payments, the overall safety of the faster payment market in the United States could be enhanced. In addition, a service provided by the Federal Reserve, with its focus on the stability of the overall payment system, could also contribute to the real and perceived resiliency of faster payment settlement. This would be especially true if a 24x7x365 RTGS settlement service provided by the Reserve Banks were available alongside private-sector RTGS services, giving banks an option to connect to multiple operators for resiliency, as they often do with traditional payment systems. Finally, a 24x7x365 RTGS settlement service could further support the Federal Reserve's ability to provide payment system stability in moments of financial crisis or natural disaster, as it has done in the past with its cash, check, ACH, and wire transfer services.

    Efficiency

    Payment system efficiency has multiple facets, including resource costs, the value of broad networks, and competition between and innovation by faster payment services. While a 24x7x365 RTGS settlement service provided by the Reserve Banks would consume societal resources and could duplicate certain costs that may already have been incurred to set up other settlement arrangements for faster payments, its net effect on the efficiency of the faster payment environment would depend on the extent to which it generates societal benefits by improving bank participation in a real-time interbank settlement infrastructure and, ultimately, public access to safe and secure faster payment services. Specifically, the value of a payment system increases as more banks join the system because all participants and end users can send payments to more recipients. As a result, incremental societal benefits realized through nationwide bank participation in a real-time interbank settlement infrastructure could outweigh the societal costs of the Reserve Banks developing a 24x7x365 RTGS settlement service.

    Additional efficiency benefits could be realized through enhanced competition between and innovation by faster payment services. The development of a nationwide real-time interbank settlement infrastructure could play a strategic role in persuading more banks to develop faster payment services, creating more competition among bank-provided services and with existing nonbank services. Bank and nonbank providers of faster payment services may also be able to develop new or enhance existing services by capitalizing on the underlying interbank infrastructure. The resulting competition and innovation could ultimately benefit end users because competition typically generates lower costs and innovation advances feature-rich services.

    The Board recognizes the possibility that introduction of a Reserve Bank-provided 24x7x365 RTGS settlement service could have the opposite effect and disrupt the existing faster payment market. Industry stakeholders have already made certain initial investments in faster payment services and would need to assess how, or if, to connect to a new settlement service.50 Therefore, it is possible that Reserve Bank entry could add to market fragmentation and lower the prospects for ubiquitous faster payments in the United States, especially in the short run.

    50 If banks were to establish connections to multiple settlement services, doing so may generate a duplication of participant connection costs.

    The Board also recognizes that the cost of investing in new technology for the banking industry, its customers, and service providers could be significant, and it could take many years to achieve full participation across the banking system. Operational and technical challenges are inherent in the creation of any new service, and the fact that the envisioned RTGS settlement service would operate 24x7x365 may compound these challenges. The Board expects that moving to a 24x7x365 settlement environment may take a number of years of technical and operational adjustment for all stakeholders. In addition, issues with technical and operational adjustments may be exacerbated if there is more than one provider of real-time settlement. At the same time, some disruption and a period of adjustment could be acceptable, and often accompany foundational changes in infrastructure. The Board is seeking comment on whether the industry believes the costs of adjustment and potential disruption are outweighed by the benefits of the proposed interbank settlement infrastructure.

    B. A Liquidity Management Tool 1. Liquidity Management Needs in RTGS-Based Faster Payment Services

    RTGS for faster payments can raise liquidity management issues for banks, particularly given the 24x7x365 nature of faster payments. RTGS-based faster payments require banks to have sufficient liquidity to perform interbank settlement of individual payments. Absent sufficient liquidity, banks, and by extension their customers, would experience failed faster payments because interbank settlement, which must occur prior to the provision of final funds to the recipient in an RTGS arrangement, could not take place. Moreover, because faster payments can occur on a 24x7x365 basis, RTGS for faster payments requires banks to have sufficient liquidity to settle individual payments at any time of the day, any day of the year.

    The risk of failed payments caused by insufficient liquidity in an RTGS-based faster payment service implies a general need for banks to manage their liquidity related to settlement. The nature of this liquidity management will depend on the design of a particular RTGS arrangement for faster payments. For example, a private-sector RTGS arrangement for faster payments may rely on a joint account at a Reserve Bank that backs settlement conducted on a private ledger maintained by the arrangement's operator. In such an arrangement, banks would need to ensure sufficient liquidity by making contributions to the joint account that are adequate to cover obligations recorded in the operator's ledger. In another example, depending on the design of a 24x7x365 RTGS settlement service provided by the Reserve Banks, participating banks may have individual accounts at the Reserve Banks, separate from their master accounts, that are dedicated to the interbank settlement of faster payments.51 In this case, banks would need to manage their liquidity on a 24x7x365 basis across their master accounts and their dedicated faster payment settlement accounts at the Reserve Banks.52

    51 Globally, a number of central banks that provide or are planning to provide RTGS services for faster payments, including the ECB and the Reserve Bank of Australia, require banks to have separate, dedicated accounts for the settlement of faster payments through those services.

    52 If faster payments settle through banks' master accounts at the Reserve Banks, then liquidity management would involve a bank's overall liquidity available for settlement, as opposed to its allocation of liquidity specifically available for settlement of faster payments.

    In either of these examples, liquidity management by banks requires methods to transfer liquidity between accounts at the Reserve Banks. Because RTGS arrangements for faster payments require liquidity management outside standard business hours, these methods for liquidity transfers may need to be available during nonstandard business hours.

    At present, the Reserve Banks do not offer a service that would allow banks to move liquidity as needed to support 24x7x365 real-time settlement of faster payments. Various Reserve Bank services enable transfer of funds between accounts at the Reserve Banks, including the Fedwire Funds Service and the National Settlement Service; however, none of them fulfill the around-the-clock requirement. Over time, the Reserve Banks have extended operating hours for these services.53 However, current operating hours limit liquidity management based on these services, particularly during weekends and holidays.

    53 The Fedwire Funds Service operating hours for each business day begin at 9:00 p.m. eastern time (ET) on the preceding calendar day and end at 6:30 p.m. ET, Monday through Friday, excluding designated holidays. For example, processing on a Monday begins at 9:00 p.m. ET on Sunday night and ends at 6:30 p.m. ET Monday night. The Reserve Banks last expanded the Fedwire Funds Service operating hours in 2004, moving from an eighteen-hour business day to the current twenty-one and one-half hour business day. Current operating hours for NSS are 7:30 a.m. to 5:30 p.m. ET, Monday through Friday, excluding designated holidays. The Reserve Banks announced in 2015, that they are prepared to accept requests from current settlement agents to open the NSS settlement window as early as 9:00 p.m. ET the previous calendar day for the next business day. To date, no settlement agent has requested an earlier opening.

    2. Characteristics of a Liquidity Management Tool

    As a result of the potential need for liquidity management outside standard business hours in certain RTGS-based systems for faster payments, and the limitations of existing Federal Reserve services to support such liquidity management, the Board is requesting comment on whether the Reserve Banks should consider providing a liquidity management tool that would enable movement of funds during nonstandard business hours between banks' master accounts at the Reserve Banks and an account (or accounts) at the Reserve Banks used to conduct or support 24x7x365 real-time settlement of faster payments.54 To provide such a tool for liquidity transfers during nonstandard business hours, the Federal Reserve could enhance an existing service by extending that service's operating hours, potentially up to 24x7x365, or providing special operating windows outside current operating hours. Alternatively, the Reserve Banks could develop a new service. Regardless of whether the Reserve Banks enhance an existing service or develop a new service, the Board envisions such a service being used, at least initially, only for the purpose of liquidity management related to RTGS-based faster payment services. The Board recognizes, however, that depending on its design, a liquidity management tool could have functionality that would be useful for other purposes. In particular, the ability to move funds outside standard business hours could be used to manage cash collateral in a DNS arrangement for faster payments that uses full cash collateral at the Reserve Banks to mitigate credit risk associated with deferred settlement.

    54 As a baseline, it is assumed that liquidity transfers to or from settlement accounts are routinely available during existing operating hours for the Fedwire Funds Service.

    To determine how the Reserve Banks could best provide a liquidity management tool that meets industry needs, the Board is further seeking input on the characteristics and capabilities that such a tool might have. A key area of interest to the Board is the level of involvement that individual banks would wish to have in establishing the timing of liquidity transfers and in initiating specific transfers. For example, a tool could allow a designated agent to coordinate liquidity transfers simultaneously across a large number of participants in a settlement arrangement, thereby removing the need for those participants to continuously monitor liquidity and initiate corresponding liquidity transfers. Such a tool could also support automated liquidity transfers, particularly during nonstandard business hours, based on thresholds established by a bank working with a designated agent. Such capabilities could be possible through NSS (or a similarly designed service) for the multilateral movement of funds between accounts at the Reserve Banks. Alternatively, if banks prefer to have more direct involvement in the timing and tailoring of their liquidity transfers, a tool could involve individual liquidity transfers initiated by individual banks. Such a structure for liquidity management could be provided through the Fedwire Funds Service (or a similarly designed service). In either case, expanded operating hours for such a service would support liquidity management outside standard business hours, possibly up to 24x7x365.

    3. Public Benefits of a Liquidity Management Tool

    The Board believes a liquidity management tool could improve the level of participation by banks in real-time settlement infrastructure for faster payments. Such a tool could be an efficient and economical way to close potential gaps in account funding times for existing and potential future private-sector 24x7x365 real-time interbank settlement systems. Thus, the tool might make private-sector systems more attractive to a broader range of banks and boost the prospect of more banks joining private-sector systems. It could similarly increase participation in a 24x7x365 RTGS settlement service provided by the Reserve Banks. The end result might be a combination of RTGS arrangements for faster payments, enabling broader access to real-time interbank settlement infrastructure in the long term with similar safety, resiliency, and efficiency benefits discussed in relation to a Reserve Bank-provided RTGS settlement service. In addition, the liquidity management functionality itself would mitigate liquidity risk that can arise for banks in 24x7x365 real-time settlement of faster payments and the concomitant possibility that end users will experience individually rejected payments and broader scale payment interruptions.

    V. Request for Comment

    The Board is seeking feedback on all aspects of the discussion presented in this notice and the specific questions posed below. The Board will use this feedback to assess what steps, if any, it should take related to the actions discussed or alternative approaches offered by the payment industry or other stakeholders. As previously mentioned, these actions are subject to the longstanding principles and criteria on new services or major service enhancements as part of the Federal Reserve's statutory requirements. As part of assessing these actions, the Board would continue its due diligence related to those requirements.

    The Board intends to publish the results of this request for comment and, as appropriate, to seek further comment on any specific actions that the Board determines that the Federal Reserve might pursue. The Board recognizes that a decision to undertake these actions, in particular the development of a 24x7x365 RTGS settlement service, will require close partnership and collaboration with industry stakeholders. The Federal Reserve would work with stakeholders to implement new infrastructure within a sensible timeline that provides stakeholders enough advance information to calibrate resource planning and operational readiness. The Board also seeks feedback on specific areas, such as liquidity management, interoperability, accounting processes, or payment routing, that stakeholders believe may require joint Federal Reserve and industry teams to identify approaches for implementation in a 24x7x365 RTGS settlement service.

    Questions

    1. Is RTGS the appropriate strategic foundation for interbank settlement of faster payments? Why or why not?

    2. Should the Reserve Banks develop a 24x7x365 RTGS settlement service? Why or why not?

    3. If the Reserve Banks develop a 24x7x365 RTGS settlement service,

    a. Will there be sufficient demand for faster payments in the United States in the next ten years to support the development of a 24x7x365 RTGS settlement service? What will be the sources of demand? What types of transactions are most likely to generate demand for faster payments?

    b. What adjustments would the financial services industry and its customers be required to make to operate in a 24x7x365 settlement environment? Are these adjustments incremental or substantial? What would be the time frame required to make these adjustments? Are the costs of adjustment and potential disruption outweighed by the benefits of creating a 24x7x365 RTGS settlement service? Why or why not?

    c. What is the ideal timeline for implementing a 24x7x365 RTGS settlement service? Would any potential timeline be too late from an industry adoption perspective? Would Federal Reserve action in faster payment settlement hasten or inhibit financial services industry adoption of faster payment services? Please explain.

    d. What adjustments (for example, accounting, operations, and agreements) would banks and bank customers be required to make under a seven-day accounting regime where Reserve Banks record and report end-of-day balances for each calendar day during which payment activity occurs, including weekends and holidays? What time frame would be required to these changes? Would banks want the option to defer receipt of such information for nonbusiness days to the next business day? If necessary changes by banks represent a significant constraint to timely adoption of seven-day accounting for a 24x7x365 RTGS settlement service, are there alternative accounting or operational solutions that banks could implement?

    e. What incremental operational burden would banks face if a 24x7x365 RTGS settlement service were designed using accounts separate from banks' master accounts? How would the treatment of balances in separate accounts (for example, ability to earn interest and satisfy reserve balance requirements) affect demand for faster payment settlement?

    f. Regarding auxiliary services or other service options,

    i. Is a proxy database or directory that allows faster payment services to route end-user payments using the recipient's alias, such as email address or phone number, rather than their bank routing and account information, needed for a 24x7x365 RTGS settlement service? How should such a database be provided to best facilitate nationwide adoption? Who should provide this service?

    ii. Are fraud prevention services that provide tools to detect fraudulent transfers needed for a 24x7x365 RTGS settlement service? How should such tools be provided? Who should provide them?

    iii. How important are these auxiliary services for adoption of faster payment settlement services by the financial services industry? How important are other service options such as transaction limits for risk management and offsetting mechanisms to conserve liquidity? Are there other auxiliary services or service options that are needed for the settlement service to be adopted?

    g. How critical is interoperability between RTGS services for faster payments to achieving ubiquity?

    h. Could a 24x7x365 RTGS settlement service be used for purposes other than interbank settlement of retail faster payments? If so, for what other purposes could the service be used? Should its use be restricted and, if so, how?

    i. Are there specific areas, such as liquidity management, interoperability, accounting processes, or payment routing, for which stakeholders believe the Board should establish joint Federal Reserve and industry teams to identify approaches for implementation of a 24x7x365 RTGS settlement service?

    4. Should the Federal Reserve develop a liquidity management tool that would enable transfers between Federal Reserve accounts on a 24x7x365 basis to support services for real-time interbank settlement of faster payments, whether those services are provided by the private sector or the Reserve Banks? Why or why not?

    5. If the Reserve Banks develop a liquidity management tool,

    a. What type of tool would be preferable and why?

    i. A tool that requires a bank to originate a transfer from one account to another

    ii. A tool that allows an agent to originate a transfer on behalf of one or more banks

    iii. A tool that allows an automatic transfer of balances (or “sweep”) based on pre-established thresholds and limits

    iv. A combination of the above

    v. An alternative approach

    b. Would a liquidity management tool need to be available 24x7x365, or alternatively, during certain defined hours on weekends and holidays? During what hours should a liquidity management tool be available?

    c. Could a liquidity management tool be used for purposes other than to support real-time settlement of retail faster payments? If so, for what other purposes could the tool be used? Should its use be restricted and, if so, how?

    6. Should a 24x7x365 RTGS settlement service and liquidity management tool be developed in tandem or should the Federal Reserve pursue only one, or neither, of these initiatives? Why?

    7. If the Federal Reserve pursues one or both of these actions, do they help achieve ubiquitous, nationwide access to safe and efficient faster payments in the long run? If so, which of the potential actions, or both, and in what ways?

    8. What other approaches, not explicitly considered in this notice, might help achieve the broader goals of ubiquitous, nationwide access to faster payments in the United States?

    9. Beyond the provision of payment and settlement services, are there other actions, under its existing authority, the Federal Reserve should consider that might help its broader goals with respect to the U.S. payment system?

    By order of the Board of Governors of the Federal Reserve System, September 28, 2018. Ann Misback, Secretary of the Board.
    [FR Doc. 2018-24667 Filed 11-14-18; 8:45 am] BILLING CODE 6210-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0643; Product Identifier 2018-NM-084-AD] RIN 2120-AA64 Airworthiness Directives; Dassault Aviation Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Supplemental notice of proposed rulemaking (SNPRM); reopening of comment period.

    SUMMARY:

    We are revising an earlier proposal for certain Dassault Aviation Model FALCON 7X airplanes. This action revises the notice of proposed rulemaking (NPRM) by proposing to require the incorporation of revised and more restrictive airworthiness limitations. We are proposing this airworthiness directive (AD) to address the unsafe condition on these products. Since these actions would impose an additional burden over those in the NPRM, we are reopening the comment period to allow the public the chance to comment on these changes.

    DATES:

    The comment period for the NPRM published in the Federal Register on August 10, 2018 (83 FR 39630), is reopened.

    We must receive comments on this SNPRM by December 31, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this NPRM, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet http://www.dassaultfalcon.com. You may view this referenced 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.

    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-2018-0643; 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 SNPRM, the regulatory evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0643; Product Identifier 2018-NM-084-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this SNPRM. We will consider all comments received by the closing date and may amend this SNPRM based on those comments.

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

    Discussion

    We issued an NPRM to amend 14 CFR part 39 by adding an AD that would apply to certain Dassault Aviation Model FALCON 7X airplanes. The NPRM published in the Federal Register on August 10, 2018 (83 FR 39630). The NPRM was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. The NPRM proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new and more restrictive maintenance requirements and airworthiness limitations for airplane structures and systems.

    Actions Since the NPRM Was Issued

    Since we issued the NPRM, additional airworthiness limitations have been issued, and we have determined that it is necessary to revise the existing maintenance or inspection program to incorporate the new and more restrictive requirements in the revised service information. We have changed paragraph (g) of this proposed AD to require revising the existing maintenance or inspection program to incorporate the information specified in Chapter 5-40-00, Airworthiness Limitations, DGT 107838, Revision 7, dated August 24, 2018, of the Dassault Falcon 7X Maintenance Manual (MM).

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0101, dated May 3, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model FALCON 7X airplanes. The MCAI states:

    The airworthiness limitations and certification maintenance instructions for Dassault Falcon 7X aeroplanes, which are approved by EASA, are currently defined and published in Dassault Falcon 7X AMM [airplane maintenance manual], Chapter 5-40. These instructions have been identified as mandatory for continued airworthiness.

    Failure to accomplish these instructions could result in an unsafe condition [i.e., reduced structural integrity and reduced control of these airplanes due to the failure of system components].

    Previously, EASA issued AD 2015-0095 [which corresponds to FAA AD 2016-16-09, Amendment 39-18607 (81 FR 52752, August 10, 2016) (“AD 2016-16-09”)] to require accomplishment of the maintenance tasks, and implementation of the airworthiness limitations, as specified in Dassault Falcon 7X AMM, Chapter 5-40, at Revision 4.

    Since that [EASA] AD was issued, Dassault issued the ALS [airworthiness limitations section], which introduces new and more restrictive maintenance requirements and/or airworthiness limitations.

    For the reason described above, this [EASA] AD retains the requirements of EASA AD 2015-0095, which is superseded, and requires accomplishment of the actions specified in the ALS.

    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-2018-0643.

    Related Service Information Under 1 CFR Part 51

    Dassault Aviation has issued Chapter 5-40-00, Airworthiness Limitations, DGT 107838, Revision 7, dated August 24, 2018, of the Dassault Falcon 7X MM. This service information introduces new and more restrictive maintenance requirements and airworthiness limitations for airplane structures and systems. 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.

    Comments

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

    FAA's Determination and Requirements of This SNPRM

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

    Certain changes described above expand the scope of the NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this SNPRM.

    Costs of Compliance

    We estimate that this proposed AD affects 67 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

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

    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 proposed 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 determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 this proposed regulation:

    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.

    The Proposed Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 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): Dassault Aviation: Docket No. FAA-2018-0643; Product Identifier 2018-NM-084-AD. (a) Comments Due Date

    We must receive comments by December 31, 2018.

    (b) Affected ADs

    This AD affects AD 2014-16-23, Amendment 39-17947 (79 FR 52545, September 4, 2014) (“AD 2014-16-23”) and AD 2016-16-09, Amendment 39-18607 (81 FR 52752, August 10, 2016) (“AD 2016-16-09”).

    (c) Applicability

    This AD applies to Dassault Aviation Model FALCON 7X airplanes, certificated in any category, with an original certificate of airworthiness or original export certificate of airworthiness issued on or before August 24, 2018.

    Note 1 to paragraph (c) of this AD:

    Dassault Aviation Model FALCON 7X airplanes with modifications M1000 and M1254 incorporated are commonly referred to as “Model FALCON 8X” airplanes as a marketing designation.

    (d) Subject

    Air Transport Association (ATA) of America Code 05, Time limits/maintenance checks.

    (e) Reason

    This AD was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. We are issuing this AD to address reduced structural integrity and reduced control of airplanes due to the failure of system components.

    (f) Compliance

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

    (g) Maintenance or Inspection Program Revision

    Within 90 days after the effective date of this AD, revise the existing maintenance or inspection program, as applicable, by incorporating the information specified in Chapter 5-40-00, Airworthiness Limitations, DGT 107838, Revision 7, dated August 24, 2018, of the Dassault Falcon 7X Maintenance Manual (MM). The initial compliance times for the tasks specified in Chapter 5-40-00, Airworthiness Limitations, DGT 107838, Revision 7, dated August 24, 2018, of the Dassault Falcon 7X MM are at the applicable compliance times specified in Chapter 5-40-00, Airworthiness Limitations, DGT 107838, Revision 7, dated August 24, 2018, of the Dassault Falcon 7X MM, or within 90 days after the effective date of this AD, whichever occurs later.

    (h) Terminating Action for Other ADs

    (1) Accomplishing the actions required by paragraph (g) of this AD terminates the requirements of paragraph (q) of AD 2014-16-23.

    (2) Accomplishing the actions required by paragraph (g) of this AD terminates all requirements of AD 2016-16-09.

    (i) No Alternative Actions, Intervals, and Critical Design Configuration Control Limitations (CDCCLs)

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

    (j) 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 (k)(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 Dassault Aviation's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (k) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018-0101, dated May 3, 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-2018-0643.

    (2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3226.

    (3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; phone: 201-440-6700; internet: http://www.dassaultfalcon.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.

    Issued in Des Moines, Washington, on November 6, 2018. Chris Spangenberg, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-24854 Filed 11-14-18; 8:45 am] BILLING CODE 4910-13-P
    SOCIAL SECURITY ADMINISTRATION 20 CFR Part 401 [Docket No. SSA-2018-0004] 34RIN 0960-AH97 Security and Suitability Files AGENCY:

    Social Security Administration.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Social Security Administration (SSA) separately published, in today's Federal Register, notice of a new system of records, entitled Security and Suitability Files. This rulemaking proposed to remove two systems of records listed in our exemptions, but which do not exist, and will replace them with a new exemption for this specified system of records from specific provisions of the Privacy Act, under 5 U.S.C. 552a(k)(5).

    DATES:

    To ensure that your comments are considered, we must receive them no later than December 17, 2018.

    ADDRESSES:

    You may submit comments by any one of three methods—internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2018-0004, so that we may associate your comments with the correct regulation.

    Caution: You should be careful to include in your comments only information that you wish to make publicly available. We strongly urge you not to include in your comments any personal information, such as Social Security numbers or medical information.

    1. Internet: We strongly recommend that you submit your comments via the internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Search function to find docket number SSA-2018-0004. The system will issue a tracking number to confirm your submission. You will not be able to view your comment immediately because we must post each comment manually. It may take up to a week for your comment to be viewable.

    2. Fax: Fax comments to (410) 966-2830.

    3. Mail: Address your comments to the Office of Regulations and Reports Clearance, Social Security Administration, 3100 West High Rise, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.

    Comments are available for public viewing on the Federal eRulemaking portal at http://www.regulations.gov or in person, during regular business hours, by arranging with the contact person identified below.

    FOR FURTHER INFORMATION CONTACT:

    Jasson Seiden, Government Information Specialist, Privacy Implementation Division, Office of Privacy and Disclosure, Office of the General Counsel, SSA, Room G-401 West High Rise, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, telephone: (410) 597-4307, email: [email protected] For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our internet site, Social Security Online, at http://www.socialsecurity.gov.

    SUPPLEMENTARY INFORMATION: Background

    In accordance with the Privacy Act (5 U.S.C. 552a) we are issuing public notice of our intent to establish a new system of records entitled, Security and Suitability Files (60-0377).

    We are establishing the Security and Suitability Files to govern the information we generate in conducting personnel security and suitability background investigations. With limited exceptions, persons appointed to, and under consideration for, Federal service or contract employment are required to submit to a suitability background investigation. The Deputy Commissioner for Human Resources, Office of Personnel, Center for Suitability and Personnel Security (CSPS) oversees and is responsible for adjudicating these investigations. Information collected as part of the agency's suitability and background investigations process that is sent to the Office of Personnel Management (OPM) is covered by OPM/Central-9, Personnel Investigations Records. The Security and Suitability Files we are creating covers any additional security and suitability related information generated by SSA that is not sent to OPM. We will use the information we collect to conduct background investigations to establish that individuals employed by SSA, working for SSA under contract, or otherwise granted access to agency facilities and records are suitable for such employment or access.

    Due to the investigatory nature of information that will be maintained in this system of records, this rule would add the Security and Suitability Files to the list of SSA systems that are exempt from specific provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k)(5).

    Rulemaking Analyses and Notices

    All comments received on or before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable. A final rule may be published at any time after close of the comment period.

    Clarity of This Rule

    Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your substantive comments on this interim final rule, we invite your comments on how to make the rule easier to understand.

    For example:

    • Would more, but shorter, sections be better?

    • Are the requirements in the rule clearly stated?

    • Have we organized the material to suit your needs?

    • Could we improve clarity by adding tables, lists, or diagrams?

    • What else could we do to make the rule easier to understand?

    • Does the rule contain technical language or jargon that is not clear?

    • Would a different format make the rule easier to understand, e.g. grouping and order of sections, use of headings, paragraphing?

    Regulatory Procedures

    SSA will publish a final rule responding to any comments received and, if appropriate, will amend provisions of the rule.

    Executive Order 12866, as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and determined that this proposed rule does not meet the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563.

    We also determined that this proposed rule meets the plain language requirement of Executive Order 12866.

    Executive Order 13132 (Federalism)

    This proposed rule was analyzed in accordance with the principles and criteria established by Executive Order 13132, and SSA determined that the proposed rule will not have sufficient Federalism implications to warrant the preparation of a Federalism assessment. SSA also determined that this proposed rule will not preempt any State law or State regulation or affect the States' abilities to discharge traditional State governmental functions.

    Executive Order 12372 (Intergovernmental Review)

    The regulations effectuating Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this proposed rule.

    Regulatory Flexibility Act

    We certify that this proposed rule will not have a significant economic impact on a substantial number of small entities because it affects individuals only. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

    Paperwork Reduction Act

    These rules do not create any new or affect any existing collections and, therefore, do not require Office of Management and Budget approval under the Paperwork Reduction Act.

    List of Subjects in 20 CFR Part 401

    Privacy and disclosure of official records and information.

    Nancy A. Berryhill, Acting Commissioner of Social Security.

    For the reasons stated in the preamble, we propose to amend part 401 of title 20 of the Code of Federal Regulations as set forth below:

    PART 401—PRIVACY AND DISCLOSURE OF OFFICIAL RECORDS AND INFORMATION 1. The authority citation for part 401 continues to read as follows: Authority:

    Secs. 205, 702(a)(5), 1106, and 1141 of the Social Security Act (42 U.S.C. 405, 902(a)(5), 1306, and 1320b-11); 5 U.S.C. 552 and 552a; 8 U.S.C. 1360; 26 U.S.C. 6103; 30 U.S.C. 923.

    2. Amend § 401.85 by revising paragraph (b)(2)(iii)(A) and removing and reserving paragraph (b)(2)(iii) (B):

    (b) * * *

    (2) * * *

    (iii) * * *

    (A) Security and Suitability Files.

    [FR Doc. 2018-24851 Filed 11-14-18; 8:45 am] BILLING CODE 4191-02-P
    SOCIAL SECURITY ADMINISTRATION 20 CFR Parts 404 and 416 [Docket No. 2017-0015] RIN 0960-AI09 Setting the Manner for the Appearance of Parties and Witnesses at a Hearing AGENCY:

    Social Security Administration.

    ACTION:

    Notice of proposed rule making.

    SUMMARY:

    We propose to revise our rules to explain that the agency retains the right to determine how parties and witnesses will appear at a hearing before an administrative law judge (ALJ) at the hearing level of our administrative review process, and we will set the time and place for the hearing accordingly. We also propose to revise our rules to explain the State agency or the Associate Commissioner for Disability Determinations, or his or her delegate, will determine how parties and witnesses will appear, and will set the time and place for a hearing, before a disability hearing officer (DHO) at the reconsideration level in continuing disability review (CDR) cases. At both levels, we propose to schedule the parties to a hearing to appear by video teleconference (VTC), in person, or, in limited circumstances, by telephone. We propose that parties to a hearing will not have the option to opt out of appearing by the manner of hearing we choose. We also propose rules that explain how we will determine the manner of a party's or a witness's appearance. We expect these proposed changes would improve our service to the public by increasing the efficiency of our hearings processes and reducing the amount of time it takes us to schedule and hold hearings.

    DATES:

    To ensure that your comments are considered, we must receive them no later than January 14, 2019.

    ADDRESSES:

    You may submit comments by any one of three methods—internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2017-0015 so that we may associate your comments with the correct rule.

    CAUTION: You should be careful to include in your comments only information that you wish to make publicly available. We strongly urge you not to include in your comments any personal information, such as Social Security numbers or medical information.

    1. Internet: We strongly recommend that you submit your comments via the internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Search function to find docket number SSA-2017-0015. The system will issue a tracking number to confirm your submission. You will not be able to view your comment immediately because we must post each comment manually. It may take up to a week for your comment to be viewable.

    2. Fax: Fax comments to (410) 966-2830.

    3. Mail: Mail your comments to the Office of Regulations and Reports Clearance, Social Security Administration, 3100 West High Rise Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.

    Comments are available for public viewing on the Federal eRulemaking portal at http://www.regulations.gov or in person, during regular business hours, by arranging with the contact person identified below.

    FOR FURTHER INFORMATION CONTACT:

    Susan Swansiger, Office of Hearings Operations, Social Security Administration, 5107 Leesburg Pike, Falls Church, VA 22041, (703) 605-8500. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our internet site, Social Security Online, at http://www.socialsecurity.gov.

    SUPPLEMENTARY INFORMATION: Background

    When we determine whether you are disabled under the old-age, survivors, and disability insurance program under title II of the Social Security Act (Act) or the Supplemental Security Income (SSI) program under title XVI of the Act, we follow an administrative review process that usually consists of the following steps: 1 An initial determination, a reconsideration,2 a hearing before an ALJ, and Appeals Council review. If you are dissatisfied with the initial determination of your disability claim(s), you may request reconsideration. In most cases, the reconsideration step of the administrative review process, which is technically the first level of appeal in the administrative review process for Social Security disability claims in most States,3 consists of a case review by Disability Determination Services (DDS) personnel who were not involved in the initial determination. If you are dissatisfied with your reconsidered determination, you may request a hearing, which is held by an ALJ.4 If you are dissatisfied with an ALJ's decision, you may ask the Appeals Council to review that decision. After you have completed these steps of the administrative review process, you may request judicial review of our final decision by filing a civil action in a Federal district court.

    1 20 CFR 404.902, 416.1402; 20 CFR 404.909, 416.1409; 20 CFR 404.933, 416.1433; 20 CFR 404.968, 416.1468.

    2 In certain States, which we refer to as “prototype States,” we modified the disability determination process by eliminating the reconsideration step of the administrative review process. If an individual in a prototype State is dissatisfied with the initial determination on his or her disability claim(s), he or she may request a hearing before an ALJ. 20 CFR 404.906(b)(4), 416.1406(b)(4). Beginning January of 2019, this prototype process is being phased out, and the reconsideration step reinstated in ten states. Reconsideration reinstatement will be complete by mid Fiscal Year 2020.

    3 The exception would be the prototype States.

    4 20 CFR 404.930, 416.1430.

    Once you are receiving benefits under title II or XVI of the Act, we are required to conduct CDRs periodically to determine whether your disability continues.5 When we make a medical cessation determination that you are no longer disabled because your medical impairment(s) has ceased, did not exist, or is no longer disabling, you may appeal that determination. The steps in the CDR administrative review process parallel those in the initial disability determination administrative appeals cycle in that both contain some type of: An initial determination, a reconsideration, a hearing before an ALJ, and Appeals Council review. In the CDR administrative review process, however, an evidentiary hearing before a DHO is held at the reconsideration step for a CDR. Specifically, when we make an initial CDR determination and you want to contest our determination that you are no longer disabled, you may request an evidentiary hearing before a DHO 6 on reconsideration; if you are dissatisfied with your reconsidered determination, you may request a hearing before an ALJ; and if you are dissatisfied with the ALJ's decision, you may ask the Appeals Council to review that decision. When you have completed the administrative review process, you may request judicial review of our final decision by filing a civil action in a Federal district court.

    5 Section 221(i) of the Act, 42 U.S.C. 421(i) and 1614(a)(4) of the Act, 42 U.S.C. 1382c.

    6 20 CFR 404.913(b), 404.914 and 416.1413(d), 416.1414.

    Since Congress established Social Security in 1935, the size and scope of the programs we administer have grown tremendously. During the 1940s and 1950s, Congress extended coverage under title II to nearly the entire American workforce. In the 1950s, Congress revised the Act and created the disability insurance program, and in the 1970s, Congress created the Supplemental Security Income (SSI) program, both of which greatly expanded the size and scope of our programs. The aging of the baby boomers and the changing demographics of our nation have also significantly affected the size and scope of our workloads. The Supreme Court has aptly observed that we are “probably the largest adjudicative agency in the western world,” where “[t]he need for efficiency is self-evident.” 7

    7Barnhart v. Thomas, 540 U.S. 20, 28-29 (2003) (internal quotation marks omitted).

    When we began our hearings process in 1940, we handled a comparatively small number of claims involving retirement and survivors insurance, and received only about 16,000 hearing requests in our first decade.8 At present, we continue to face an unprecedented service challenge with nearly 860,000 individuals waiting an average of 19 months for a hearing before an ALJ.9 We currently process several hundred thousand hearing requests before an ALJ each year through an extensive network of 164 hearing offices, 5 National Hearing Centers (NHCs) and several hundred remote sites. Due to factors inherent to managing a nationwide program, including differences in the number of hearing requests received and the availability of administrative resources in a hearing office service area, we have a significant disparity in wait times for a hearing across the nation. For example, in fiscal year (FY) 2018, the average wait time for a hearing before an ALJ was 595 days. However, 76% of our hearing offices had average wait times between 500 and 700 days, 10% of our offices had average wait times over 700 days, and 14% of our offices had wait times below 500 days.10

    8 “Appeals Under Old-Age and Survivors Insurance,” Social Security Bulletin, vol. 15, no. 1, p. 15 (January 1952) (https://www.ssa.gov/policy/docs/ssb/v15n1/v15n1p15.pdf).

    9 Hearings and Appeals Homepage, Public Data files, http://www.ssa.gov/appeals/; See: Age distribution of pending hearings FY 2014-FYTD 2018 Quarter 2.

    10 Hearing Office Average Processing Time Ranking Report FY 2017 (For reporting purposes: 10/01/2016 through 09/29/2017), available at: https://www.ssa.gov/appeals/DataSets/archive/05_FY2018/05_September_Average_Processing_Time_Report.html.

    We face the same workload challenges with regard to the reconsideration disability hearings before a DHO for CDRs. According to our internal data sources, from 2007 to 2018 the number of requests for a disability hearing at the reconsideration level increased from 19,898 to 82,604.11 With this tremendous increase in the number of pending disability hearing requests, the length of time it takes us to conduct a disability hearing has increased as well. Our internal data shows that, nationally, the average processing time from the date we receive a request for disability hearing before a DHO to the date the DHO issues a reconsidered determination was 194 days.12 Additionally, nearly 10.5% of disability hearings at the reconsideration level have been pending for 240 to 359 days, and 14.9% have been pending for 360 or more days.13 Increased processing times for disability hearings at the reconsideration level correlate to increased overpayments due to the individual's right to continue to receive disability benefits under title II, or disability or blindness payments under title XVI, while their claims are pending at the reconsideration or ALJ hearing level.14

    11Source: Disability Operational Data Store (DIODS), an SSA internal data storage system. The supporting documentation describing DIODS is available at www.regulations.gov, under “supporting and related material” for this docket, SSA-2017-0015.

    12Source: Executive Management Information System (EMIS) MI Central, an SSA internal data storage system. The supporting documentation describing EMIS is available at www.regulations.gov, under “supporting and related material” for this docket, SSA-2017-0015.

    13Source: Disability Operational Data Store (DIODS), an SSA internal data storage system. The supporting documentation describing DIODS is available at www.regulations.gov, under “supporting and related material” for this docket, SSA-2017-0015.

    14 20 CFR 404.1597a, 416.996.

    Our Office of the Inspector General (OIG) evaluated the financial impact of individuals continuing to receive benefit payments during CDR appeals. In 2006, OIG found that individuals waited an average of 648 days (in title II cases) and 694 days (in title XVI cases) from the time they requested reconsideration of an initial medical cessation determination and the time they received an ALJ decision.15 By May 2017, the average processing time for medical cessation appeals had increased to 766 days (title II) and 831 days (title XVI) for sampled recipients.16 To reduce or avoid overpayments resulting from continued benefit payments, OIG recommended that we enhance our business process to allow more timely determinations and decisions on medical cessation appeals.17

    15 SSA, OIG, Statutory Benefit Continuation During the Appeals Process for Medical Cessations, A-07-17-50127 (May 2017), at 6, available https://oig.ssa.gov/sites/default/files/audit/full/pdf/A-07-17-50127.pdf.

    16Id. at 3.

    17Id.

    Efficiently managing these workloads while preserving the accuracy and fundamental fairness of our hearings has required, and continues to require, creative thinking and strategic planning. Since the mid-1990s, we have recognized that electronic service delivery, based on proven secure technology, can provide our customers with new ways to conduct business with us. These new ways of conducting business with us are both convenient for claimants and efficient for claimants and us. We have continuously explored expanding the service options available to our customers in new and innovative ways as technological advances allow.18

    18 See Social Security Ruling 96-10p.

    For about 20 years we have explored the use of VTC to conduct fair and accurate hearings more efficiently. In the late 1990s, we tested our capacity to conduct ALJ hearings by VTC in Iowa. We received positive feedback from participants, and test data showed that processing times for VTC hearings were substantially lower than the processing time for in-person hearings held by ALJs at remote locations during the same period.19 In 2003, we published rules that directed ALJs to schedule hearings by VTC in any case where VTC technology was available, it was more efficient to do so, and no circumstance in the case prevented the use of VTC technology.20 Under these rules, the claimant could opt out of a VTC hearing at any time, including the day of the hearing.21

    19 68 FR 5210, 5211 (2003). At approximately the same time, we also tested our capacity to conduct ALJ hearings by VTC between the Huntington, West Virginia hearing office and its Prestonburg, Kentucky remote location and between the Albuquerque, New Mexico hearing office and its El Paso, Texas remote location. 66 FR 1059, 1060 (2001). However, participation rates at these other test sites were too low for us to draw inferences about customer service or satisfaction. Id.

    20 68 FR 5210 (2003), 68 FR 69003 (2003).

    21 If a party objected to appearing by VTC, he or she was required only to notify the ALJ at the earliest possible opportunity before the time set for the hearing. 68 FR 69003, 69006 (2003).

    As we gained experience with VTC for hearings before an ALJ, we and others have studied the efficacy of these hearings; those studies have found that the use of VTC provides us a number of benefits, including additional flexibility, especially with respect to aged and backlogged hearing requests, improved case processing times, and reduced ALJ travel.22 For example, in 2011, our OIG found that the most important capability provided by the use of VTC hearings is the ease with which pending cases can be reassigned from heavily backlogged offices to virtually any video-equipped ALJ anywhere in the country who has excess hearing capacity.23 OIG identified several concrete instances in which VTC improved the functioning of our hearings process. We have also observed that VTC technologies offer expanded service options for parties, especially for geographically and otherwise isolated claimants.

    22 OIG, Congressional Response Report: Current and Expanded Use of Video Hearings, A-05-12-21287, at 3 (June 18, 2012), available at: https://oig.ssa.gov/sites/default/files/audit/full/pdf/A-05-12-21287.pdf; OIG, Use of Video Hearings to Reduce the Hearing Case Backlog, A-05-08018079, at 3 (April 22, 2011), available at: https://oig.ssa.gov/sites/default/files/audit/full/pdf/A-05-08-18070.pdf.

    23 SSA, OIG, Use of Video Hearings to Reduce the Hearing Case Backlog, A-05-08-18070, at 12-13 (April 2011), available at: https://oig.ssa.gov/sites/default/files/audit/full/pdf/A-05-08-18070.pdf.

    The Administrative Conference of the United States (ACUS), an independent, nonpartisan Federal agency that studies and recommends improvements to administrative process and procedures, also has noted a number of advantages to the use of VTC hearings before an ALJ.24 In 2011, ACUS adopted its Recommendation 2011-4,25 which noted that agencies with high volume caseloads were likely to receive the most benefit or cost savings (or both) from the use of VTC. ACUS therefore encouraged all agencies (including those with lower volume caseloads) to consider whether the use of VTC would be beneficial as a way to improve efficiency and reduce costs, while also preserving the fairness and participant satisfaction. In 2015, ACUS also published a Handbook on Best Practices for Using Video Teleconferencing in Adjudicatory Hearings. This handbook provides many recommendations regarding physical space, lighting, and technology. We will consult ACUS's recommendations as we continue to modernize our infrastructure, and ensure we are up to date on the latest technology available.26

    24 ACUS, Memorandum on the History of Agency Video Teleconferencing Adjudications, at 20-21 (November 26, 2014), available at: https://www.acus.gov/sites/default/files/documents/VTC%20Hearing%20History_FINAL.pdf (noting that agencies use VTC hearings for a number of reasons, including lowering direct and indirect costs, improving efficiency, decreasing processing time, and providing greater flexibility in scheduling hearings).

    25 ACUS Recommendation 2011-4, Agency Use of Video Hearings: Best Practices and Possibilities for Expansion, 76 FR 48789, 48795 (2011), available at: https://www.acus.gov/recommendation/agency-use-video-hearings-best-practices-and-possibilities-expansion.

    26 ACUS, Handbook on Best Practices for Using Video Teleconferencing in Adjudicatory Hearings (Dec. 22, 2015), available at https://www.acus.gov/sites/default/files/documents/handbook-on-best-practices-for-using-VTC-in-adjudicatory-hearings.pdf.

    As we continue to seek ways to improve the efficiency of our hearings process, we also are mindful of recommendations from our Inspector General. For example, in 2012, our OIG studied the operation of our National Hearing Centers (NHC), which primarily use VTC to conduct hearings, and raised concerns that claimants were opting out of VTC hearings after they had already been scheduled, sometimes even on the day of the hearing, and that representatives were opting out to avoid appearing before certain ALJs.27 In response, we revised our regulations in 2014 to provide that claimants, or their representatives, must object to appearing by VTC within 30 days after receiving a notice acknowledging receipt of their hearing request, unless they had good cause for failing to meet that deadline.28 While this regulatory change allowed us to forestall last-minute cancellation of VTC hearings, the percentage of claimants who choose an in person hearing over the VTC option remains high. In FY 2015, approximately 30% of claimants who requested an ALJ hearing that year objected to appearing by VTC 29 . In FY 2017, approximately 32% of claimants who requested an ALJ hearing that year objected to appearing by VTC.30

    27 OIG, The Role of National Hearing Centers in Reducing the Hearings Backlog, A-12-11-111147, at 11 (Apr. 3, 2012), available at: http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-12-11-11147_0.pdf.

    28 79 FR 35926 (June 25, 2014).

    29 Video Hearing (VH) Opt-Out Numbers and Rates for Hearing Requests Received FY 2015, available at: http://www.ssa.gov/appeals/DataSets/archive/00_FY2015/00_September_A01_VH_Opt-Out.html.

    30 Video Hearing (VH) Opt-Out Numbers and Rates for Hearing Requests Received FY 2017, available at: http://www.ssa.gov/appeals/DataSets/A01_VH_Opt-Out.html.

    At the reconsideration level at CDR, our rules state we will set the time and place of a disability hearing,31 but do not specifically set out the manner in which parties and witnesses will appear. We currently conduct disability hearings at the reconsideration level before a DHO in person, by VTC, and, in limited circumstances, by telephone.32 Similar to the ALJ hearing level, we have used VTC to conduct disability hearings at the reconsideration level for approximately 20 years. However, before a DHO may conduct a disability hearing by VTC, we currently require a beneficiary or recipient sign and return a statement to the DHO stating that he or she voluntarily elects to appear by VTC.33 This policy causes delays in scheduling disability hearings and results in increased case processing times.

    31 See 20 CFR 404.914, 416.1414.

    32 Program Operations Manual System (POMS) DI 33025.080 available at: https://secure.ssa.gov/poms.nsf/lnx/0433025080; DI 33025.085 available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0433025085.

    33 POMS DI 33025.080 available at: https://secure.ssa.gov/poms.nsf/lnx/0433025080.

    When an individual objects to appearing by VTC at an ALJ hearing or does not elect to appear by VTC at a reconsideration hearing before a DHO at CDR, the efficiency of our hearings process is set back without any corresponding increase in the fairness of the process, and the individual may wait longer for an in person hearing. At the ALJ hearing level, the number of ALJs available to conduct an in person hearing is generally limited to those ALJs stationed at, or geographically close to, the assigned hearing office or within travel distance to one of our permanent remote sites. Requiring an ALJ to travel to a remote hearing site for an in person hearing reduces the amount of time the ALJ can devote to holding other hearings and issuing decisions from his or her assigned hearing office. We expect the ten-year savings due to decreased reimbursements for all ALJ hearings participants, including ALJs, representatives, claimants, and contractors, to be $67.2M. At the reconsideration level for CDRs, scheduling an in person hearing may require significant travel by the DHO and the beneficiary or recipient, along with the time and costs associated with such travel. An in person reconsideration hearing requires additional time for the DHO and reduces the time available for the DHO to hold other hearings and issue determinations.

    We expect that expanding our use of VTC technology will help us in two ways. First, increased use of VTC technology will reduce these discrepancies in the wait time among the hearing offices. Second, increased use of VTC will allow us to decrease the total number of cases pending at the ALJ hearing level by allowing us to shift cases from overburdened hearing offices to hearing offices with fewer requests for hearing pending per ALJ. Balancing our workloads by using VTC has been key to addressing our oldest pending cases, and it has allowed us to act quickly as service needs arise from unanticipated emergencies, e.g., by transferring cases to another part of the country.

    As documented in ACUS's studies and in feedback from multiple other sources, our use of VTC has been widely accepted as an important tool that increases our ability to hold hearings and improve public service. For example, in 2006, the Social Security Advisory Board (SSAB), a bipartisan, independent body that advises the President, Congress, and the Commissioner of Social Security on matters of policy and administration of the disability insurance and Supplemental Security Income programs,34 reported receiving overwhelmingly positive comments on the use of VTC hearings.35 In 2011, OIG received mostly positive comments about the role of VTC in the hearings process from representatives from the National Organization of Social Security Claimants' Representatives and the National Association of Disability Representatives.36 In 2012, in a report estimating the cost savings of VTC hearings in the Social Security context, OIG estimated annual cost savings of $5.2 to 10.9 million.37

    34 Section 703 of the Act, 42 U.S.C. 903.

    35 SSAB, Improving the Social Security Administration's Hearing Process, at 21 (2006), available at: http://www.ssab.gov/Portals/0/OUR_WORK/REPORTS/HearingProcess_2006.pdf.

    36 SSA, OIG, Use of Video Hearings to Reduce the Hearing Case Backlog, A-05-08-18070, at 10 (April 2011), available at: https://oig.ssa.gov/sites/default/files/audit/full/pdf/A-05-08-18070.pdf.

    37 SSA, OIG, Current and Expanded Use of Video Hearings, A-05-12-21287, at 3 (June 2012), available at: http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-05-12-21287.pdf.

    Moreover, there is no evidence that the use of VTC technology adversely affects the outcome of the decision making process. An internal report prepared in FY 2017 by our Office of Quality Review (OQR) showed there was not a significant difference in outcome or policy compliance for VTC and in person hearings. OQR found a high degree of policy compliance and quality for both types of hearings. We included this report as part of the rulemaking docket, which is publicly available at www.regulations.gov, and we invite comments on it.

    We also have made great strides in increasing our video capabilities in order to improve our business processes. Since 2016, we have refreshed all VTC equipment and infrastructure, which has resulted in better technological quality of video hearings. Additionally, the dramatic reduction in the number of cases that involve paper claims folders over the past ten years has allowed for smoother workload balancing, ensuring consistent service on a national level. With the infrastructure and equipment we have in place, the use of VTC technology ensures that we can deliver service in a modern, seamless, and flexible manner. All video hearings rooms are section 504 compliant based on the capacity for individuals attending a hearing, providing equal access to hearings for claimants with disabilities.

    We expect that this proposed rule will ensure that as we expand our ability to conduct appearances by VTC, we are able to schedule hearings more fairly and efficiently. The preferred methods for conducting hearings are by VTC and in person. However, an ALJ or DHO may conduct a hearing by telephone under two circumstances: (1) When it is physically impossible to conduct the hearing by VTC or in person, such as incarceration in a facility without VTC ability; and (2) extraordinary circumstances, such as when a natural disaster occurs and our VTC facilities are unavailable.38 When using a telephone to conduct a hearing, the telephone technology used must allow for the beneficiary or recipient and his or her representative to hear and respond to all testimony presented at the hearing.39

    38 20 CFR 404.936(c)(1).

    39 20 CFR 404.936(c)(1), 416.1436(c)(1); POMS DI 33025.085 available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0433025085.

    Changes

    To increase our ability to schedule hearings more fairly, flexibly, and efficiently and address the unprecedented service challenges we face at the reconsideration and ALJ hearing levels of our administrative review process, we propose the following changes to our rules:

    • We propose to revise and unify some of the rules that govern how, where, and when individuals appear for hearings before an ALJ at the hearings level and before a DHO at the reconsideration level of our administrative review process.

    • At the hearings level, we will determine the time and place of a hearing before an ALJ and determine how parties and witnesses will appear at the hearing.

    • At the reconsideration level for CDRs, the State agency or the Associate Commissioner for Disability Determinations, or his or her delegate, will determine the time and place of a hearing before a DHO and determine how parties and witnesses will appear at the hearing. Under the proposed rules, while we will evaluate the specific circumstances of each claimant's or beneficiary's case to determine what is the most efficient and appropriate manner of hearing, we would not permit individuals to object to appearing by the manner of hearing we choose.

    • At both the CDR reconsideration and ALJ levels of our administrative review process, when we schedule a hearing, we propose that we will determine the manner in which the parties to the hearing will appear: By VTC, in person, or, under the limited circumstances specified here, by telephone. In determining whether a party will appear by VTC or in person, we would consider whether VTC technology is available; whether it would be more efficient for an individual to appear by VTC or in person; and whether there are circumstances in the case that provide a good reason to schedule an individual to appear by VTC or in person. Under the proposed rules, we would not permit individuals to opt out of or objecting to appearing by the manner of hearing we chose.

    • We also propose that we would determine the manner in which witnesses to a hearing will appear. In general, we would schedule witnesses to appear at hearings by VTC or telephone, unless VTC or telephone equipment are not available; we determine that it would be more efficient for a witness to appear in person; or there are circumstances in the case that provide a good reason to schedule a witness to appear in person.

    • We also propose that an ALJ may continue to identify case-specific facts that affect which manner of appearance is most efficient. However, the agency will have the final responsibility to determine in which manner the individual must appear.

    • At the Appeals Council level, if the Appeals Council grants an individual's request to appear to present oral argument, the individual will appear before the Appeals Council by VTC or in person, or, when the circumstances described in § 404.936(c)(2) exist, by telephone.

    We believe that we can best serve individuals involved in our disability program by maximizing the case processing efficiencies and flexibility allowed by VTC hearings. Supporting this, OIG and ACUS have repeatedly recommended that we increase use of VTC hearings for greater efficiency. The SSAB has also recommended we eliminate the ability to object to appearing by VTC.40 The SSAB has stated that allowing a claimant to opt out of a VTC hearing reduces the hearing process's productivity and delays processing of not only that individual's case, but also others who are waiting for their opportunity for a hearing.41

    40 SSAB, Improving the Social Security Administration's Hearing Process, at 21 (Sep. 2006), available at: http://www.ssab.gov/Portals/0/OUR_WORK/REPORTS/HearingProcess_2006.pdf.

    41Id.

    The changes we propose will provide us with the flexibility we need to address the ongoing service challenges we face by balancing our hearing workloads in a way that we expect will reduce overall wait and processing times across the country and reduce the processing time disparities that exist from region to region.

    In addition to the changes we propose for setting the manner for appearing at a hearing, we also propose to make one clarification to our rules regarding the notice of hearing at the ALJ hearings level. Under our current rules, we send a notice of hearing at least 75 days prior to the date of the scheduled hearing to all parties and their representatives, if any.42 In addition to setting the time and place of a hearing, the notice has additional information, including the issues to be decided, the right to representation, how to request a change in the time of the hearing, and who will be present at the hearing, such as any expert witnesses we call. We propose to clarify that when we send an amended notice of hearing updating any information, we will send the amended notice at least 20 days prior to the hearing.

    42 20 CFR 404.938(a), 416.1438(a).

    If we need to change the date of a hearing, the date we choose will always be at least 75 days from the date we first sent the claimant a notice of hearing, unless the claimant has waived his or her right to advance notice. We believe sending an amended notice of hearing at least 20 days prior to the hearing would give the individual ample time to fully prepare for the hearing because the individual would have already received the initial notice of hearing, sent at least 75 days before the hearing. In many cases, sending an amended notice of hearing at least 75 days before the date of the hearing would require us to reschedule and unnecessarily delay the hearing, which would inhibit us from providing better public service by having a hearing as soon as we can do so. Therefore, we propose to send an amended notice of hearing at least 20 days prior to the hearing, which is the same amount of advance notice we used to provide most claimants before we implemented the 75-day notice period. Similarly, if we schedule a supplemental hearing, after the initial hearing was continued by the assigned ALJ, we will send a notice of hearing at least 20 days before the date of the hearing.

    Regulatory Procedures Clarity of These Rules

    Executive Order 12866 as supplemented by Executive Order 13563 requires each agency to write all rules in plain language. In addition to your substantive comments on this NPRM, we invite your comments on how to make rules easier to understand.

    For example:

    • Would more, but shorter, sections be better?

    • Are the requirements in the rule clearly stated?

    • Have we organized the material to suit your needs?

    • Could we improve clarity by adding tables, lists, or diagrams?

    • What else could we do to make the rule easier to understand?

    • Does the rule contain technical language or jargon that is not clear?

    • Would a different format make the rule easier to understand, e.g., grouping and order of sections, use of headings, paragraphing?

    Executive Order 12866 as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and determined that these proposed rules meet the requirements for a significant regulatory action under Executive Order 12866 as supplemented by Executive Order 13563. Thus, OMB reviewed these proposed rules.

    Executive Order 13771 and Cost Information

    This proposed rule is not subject to the requirements of Executive Order 13771 because it is administrative in nature.

    SSA's Office of the Chief Actuary estimates that the actuarial impact of the rule will be de minimis.

    SSA's Office of Budget estimates that the proposal, if implemented, will result in administrative savings of $118 million over a 10-year period. These savings stem from reduced costs of claimant and representative travel, a reduced number of workyears needed, and fewer forms processed.

    Regulatory Flexibility Act

    We certify that these proposed rules will not have a significant economic impact on a substantial number of small entities because they only affect individuals. Accordingly, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.

    Paperwork Reduction Act

    These proposed rules do not create any new or affect any existing collections and, therefore, do not require Office of Management and Budget approval under the Paperwork Reduction Act.

    (Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security—Disability Insurance; 96.002, Social Security—Retirement Insurance; 96.004, Social Security—Survivors Insurance; and 96.006, Supplemental Security Income) List of Subjects 20 CFR Part 404

    Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors, and Disability Insurance, Reporting and recordkeeping requirements, Social Security.

    20 CFR Part 416

    Administrative practice and procedure, Aged, Blind, Disability benefits, Public Assistance programs, Reporting and recordkeeping requirements, Supplemental Security Income (SSI).

    Nancy A. Berryhill, Acting Commissioner of Social Security.

    For the reasons set out in the preamble, we propose to amend 20 CFR chapter III, parts 404 and 416, as set forth below:

    PART 404—FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950-) Subpart J—Determinations, Administrative Review Process, and Reopening of Determinations and Decisions 1. The authority citation for subpart J of part 404 continues to read as follows: Authority:

    Secs. 201(j), 204(f), 205(a)-(b), (d)-(h), and (j), 221, 223(i), 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j), 404(f), 405(a)-(b), (d)-(h), and (j), 421, 423(i), 425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

    2. Amend § 404.914 by revising paragraphs (c), (d), and (e) and adding paragraphs (f), (g), and (h) to read as follows:
    § 404.914 Disability hearing-general.

    (c) Combined issues. If a disability hearing is available to you under paragraph (a), and you file a new application for benefits while your request for reconsideration is still pending, we may combine the issues on both claims for the purpose of the disability hearing and issue a combined initial and reconsideration determination which is binding with respect to the common issues on both claims.

    (d) Definition. For purposes of the provisions regarding disability hearings (§§ 404.914 through 404.918) we, us or our means the Social Security Administration or the State agency.

    (e) Notice of disability hearing. We will send you a notice of the time and place of your disability hearing at least 20 days before the date of the hearing. The notice of hearing will tell you the scheduled time and place of the hearing and will notify you whether your appearance will be by video teleconference, in person, or by telephone. You may be expected to travel to your disability hearing. (See §§ 404.999a through 404.999d regarding reimbursement for travel expenses.)

    (f) Time and place for a disability hearing. (1) General. Either the State agency or the Associate Commissioner for Disability Determinations or his or her delegate, as appropriate, will set the time and place of your disability hearing. We may change the time and place of the hearing, if it is necessary and there is good cause for doing so.

    (2) Where we hold hearings. The “place” of the hearing is the office or other site(s) at which you and any other parties to the hearing are located when you make your appearance(s) before the disability hearing officer by video teleconferencing, in person, or, when the circumstances described in paragraph (f)(4) of this section exist, by telephone.

    (3) When we will schedule your hearing by video teleconferencing or in person. We will generally schedule you or any other party to the hearing to appear either by video teleconferencing or in person. When we determine whether you will appear by video teleconferencing or in person, we consider the following factors:

    (i) The availability of video teleconferencing equipment to conduct the appearance;

    (ii) Whether use of video teleconferencing to conduct the appearance would be less efficient than conducting the appearance in person; and

    (iii) Any facts in your particular case that provide a good reason to schedule your appearance by video teleconferencing or in person.

    (4) When we will schedule your appearance by telephone. Subject to paragraph (f)(5), we will schedule you or any other party to the hearing to appear by telephone when we find an appearance by video teleconferencing or in person is not possible or other extraordinary circumstances prevent you from appearing by video teleconferencing or in person.

    (5) Scheduling a hearing when you or any other party to the hearing is incarcerated or otherwise confined. If you are incarcerated or otherwise confined and video teleconferencing is not available, we will schedule your appearance by telephone, unless we find that there are facts in your particular case that provide a good reason to schedule your appearance in person, if allowed by the place of confinement, or by video teleconferencing or in person upon your release.

    (6) How witnesses will appear. Witnesses may appear at a hearing with you in the same manner in which you are scheduled to appear. If they are unable to appear with you in the same manner as you, we will generally direct them to appear by video teleconferencing or by telephone. We will consider directing them to appear in person only when:

    (i) Telephone or video teleconferencing equipment is not available to conduct the appearance;

    (ii) We determine that use of telephone or video teleconferencing equipment would be less efficient than conducting the appearance in person; or

    (iii) We find that there are facts in your particular case that provide a good reason to schedule this individual's appearance in person.

    (g) Objecting to the time of the hearing.

    (1) General. If you wish to object to the time of the hearing, you must:

    (i) Notify us in writing at the earliest possible opportunity, but not later than 5 days before the date set for the hearing; and

    (ii) State the reason(s) for your objection to the time of the hearing and state the time you want the hearing to be held.

    (2) If you notify us that you object to the time of the hearing less than 5 days before the date set for the hearing, we will consider this objection only if you show you had good cause for missing the deadline. To determine whether good cause exists for missing the deadline, we use the standards explained in § 404.911.

    (h) Whether good cause exists for changing the time of the hearing. We will determine whether good cause exists for changing the time of your scheduled hearing. If we find good cause, we will set the time of the new hearing. A finding that good cause exists to reschedule the time of your hearing will generally not change the assignment of the designated adjudicator or how you or any party to the hearing will appear at the hearing, unless we determine a change will promote more efficient administration of the hearing process.

    (1) Determining good cause for changing the time of the hearing. We will find good cause to change the time of your hearing if we determine that, based on the evidence:

    (i) A serious physical or mental condition or incapacitating injury makes it impossible for you or your representative to travel to the hearing, or a death in the family occurs; or

    (ii) Severe weather conditions make it impossible for you or your representative to travel to the hearing.

    (2) Determining good cause in other circumstances. When we determine whether good cause exists to change the time of your hearing, in circumstances other than those set out in paragraph (h)(1) of this section, we will consider your reason(s) for requesting the change, the facts supporting it, and the impact of the proposed change on the efficient administration of the hearing process. Factors affecting the impact of the change include, but are not limited to, the effect on processing other scheduled hearings, delays that may occur in rescheduling your hearing, and whether we previously granted any changes to the time of the hearing.

    (3) Examples of such other circumstances that you might give for requesting a change in the time of the hearing include, but are not limited to the following:

    (i) You unsuccessfully attempted to obtain a representative and need additional time to secure representation;

    (ii) Your representative was appointed within 20 days of the scheduled hearing and needs additional time to prepare for the hearing;

    (iii) Your representative has a prior commitment to be in court or at another administrative hearing on the date scheduled for the hearing;

    (iv) A witness who will testify to facts material to your case would be unavailable to attend the scheduled hearing and the evidence cannot be otherwise obtained;

    (v) Transportation is not readily available for you to travel to the hearing; or

    (vi) You are unrepresented, and you are unable to respond to the notice of hearing because of any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which you may have.

    3. Revise § 404.929 to read as follows:
    § 404.929 Hearing before an administrative law judge-general.

    If you are dissatisfied with one of the determinations or decisions listed in § 404.930, you may request a hearing. The Deputy Commissioner for Hearings Operations, or his or her delegate, will appoint an administrative law judge to conduct the hearing. If circumstances warrant, the Deputy Commissioner for Hearings Operations, or his or her delegate, may assign your case to another administrative law judge. In general, we will schedule you to appear by video teleconferencing or in person. When we determine whether you will appear by video teleconferencing or in person, we consider the factors described in § 404.936(c)(1)(i) through (iii), and in the limited circumstances described in § 404.936(c)(2), we will schedule you to appear by telephone. You may submit new evidence (subject to the provisions of § 404.935), examine the evidence used in making the determination or decision under review, and present and question witnesses. The administrative law judge who conducts the hearing may ask you questions. He or she will issue a decision based on the preponderance of the evidence in the hearing record. If you waive your right to appear at the hearing, the administrative law judge will make a decision based on the preponderance of the evidence that is in the file and, subject to the provisions of § 404.935, any new evidence that may have been submitted for consideration.

    4. Revise § 404.936 to read as follows:
    § 404.936 Time and place for a hearing before an administrative law judge.

    (a) General. We set the time and place for any hearing. We may change the time and place, if it is necessary. After sending you reasonable notice of the proposed action, the administrative law judge may adjourn or postpone the hearing or reopen it to receive additional evidence any time before he or she notifies you of a hearing decision.

    (b) Where we hold hearings. We hold hearings in the 50 States, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, the Commonwealth of Puerto Rico, and the United States Virgin Islands. The “place” of the hearing is the hearing office or other site(s) at which you and any other parties to the hearing are located when you make your appearance(s) before the administrative law judge by video teleconferencing, in person or, when the circumstances described in paragraph (c)(2) of this section exist, by telephone.

    (c) We will generally schedule you or any other party to the hearing to appear either by video teleconferencing or in person.

    (1) When we determine whether you will appear by video teleconferencing or in person, we consider the following factors:

    (i) The availability of video teleconferencing equipment to conduct the appearance;

    (ii) Whether use of video teleconferencing to conduct the appearance would be less efficient than conducting the appearance in person; and

    (iii) Any facts in your particular case that provide a good reason to schedule your appearance by video teleconferencing or in person.

    (2) Subject to paragraph (c)(3) of this section, we will schedule you or any other party to the hearing to appear by telephone when we find an appearance by video teleconferencing or in person is not possible or other extraordinary circumstances prevent you from appearing by video teleconferencing or in person.

    (3) If you are incarcerated and video teleconferencing is not available, we will schedule your appearance by telephone, unless we find that there are facts in your particular case that provide a good reason to schedule your appearance in person, if allowed by the place of confinement, or by video teleconferencing or in person upon your release.

    (4) We will generally direct any person we call as a witness, other than you or any other party to the hearing, including a medical expert or a vocational expert, to appear by telephone or by video teleconferencing. Witnesses you call will appear at the hearing pursuant to § 404.950(e). If they are unable to appear with you in the same manner as you, we will generally direct them to appear by video teleconferencing or by telephone. We will consider directing them to appear in person only when:

    (i) Telephone or video teleconferencing equipment is not available to conduct the appearance;

    (ii) We determine that use of telephone or video teleconferencing equipment would be less efficient than conducting the appearance in person; or

    (iii) We find that there are facts in your particular case that provide a good reason to schedule this individual's appearance in person.

    (d) Objecting to the time of the hearing. (1) If you wish to object to the time of the hearing, you must:

    (i) Notify us in writing at the earliest possible opportunity, but not later than 5 days before the date set for the hearing or 30 days after receiving notice of the hearing, whichever is earlier; and

    (ii) State the reason(s) for your objection and state the time you want the hearing to be held. If the administrative law judge finds you have good cause, as determined under paragraph (e) of this section, we will change the time of the hearing.

    (2) If you notify us that you object to the time of hearing less than 5 days before the date set for the hearing or, if earlier, more than 30 days after receiving notice of the hearing, we will consider this objection only if you show you had good cause for missing the deadline. To determine whether good cause exists for missing this deadline, we use the standards explained in § 404.911.

    (e) Good cause for changing the time. The administrative law judge will determine whether good cause exists for changing the time of your scheduled hearing. If the administrative law judge finds that good cause exists, we will set the time of the new hearing. A finding that good cause exists to reschedule the time of your hearing will generally not change the assignment of the administrative law judge or how you or another party will appear at the hearing, unless we determine a change will promote efficiency in our hearing process.

    (1) The administrative law judge will find good cause to change the time of your hearing if he or she determines that, based on the evidence:

    (i) A serious physical or mental condition or incapacitating injury makes it impossible for you or your representative to travel to the hearing, or a death in the family occurs; or

    (ii) Severe weather conditions make it impossible for you or your representative to travel to the hearing.

    (2) In determining whether good cause exists in circumstances other than those set out in paragraph (e)(1) of this section, the administrative law judge will consider your reason(s) for requesting the change, the facts supporting it, and the impact of the proposed change on the efficient administration of the hearing process. Factors affecting the impact of the change include, but are not limited to, the effect on the processing of other scheduled hearings, delays that might occur in rescheduling your hearing, and whether we previously granted you any changes in the time of your hearing. Examples of such other circumstances that you might give for requesting a change in the time of the hearing include, but are not limited to, the following:

    (i) You unsuccessfully attempted to obtain a representative and need additional time to secure representation;

    (ii) Your representative was appointed within 30 days of the scheduled hearing and needs additional time to prepare for the hearing;

    (iii) Your representative has a prior commitment to be in court or at another administrative hearing on the date scheduled for the hearing;

    (iv) A witness who will testify to facts material to your case would be unavailable to attend the scheduled hearing and the evidence cannot be otherwise obtained;

    (v) Transportation is not readily available for you to travel to the hearing; or

    (vi) You are unrepresented, and you are unable to respond to the notice of hearing because of any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which you may have.

    5. Amend § 404.938 by revising paragraphs (b)(3), (b)(5), and (c) and adding paragraph (d) to read as follows:
    § 404.938 Notice of a hearing before an administrative law judge.

    (b) * * *

    (3) How to request that we change the time of your hearing;

    * * *

    (5) Whether your appearance or that of any other party or witness is scheduled to be made by video teleconferencing, in person, or, when the circumstances described in § 404.936(c)(2) exist, by telephone. If we have scheduled you to appear by video teleconferencing, the notice of hearing will tell you that the scheduled place for the hearing is a video teleconferencing site and explain what it means to appear at your hearing by video teleconferencing;

    (c) Acknowledging the notice of hearing. The notice of hearing will ask you to return a form to let us know that you received the notice. If you or your representative do not acknowledge receipt of the notice of hearing, we will attempt to contact you for an explanation. If you tell us that you did not receive the notice of hearing, an amended notice will be sent to you by certified mail.

    (d) Amended notice of hearing. If we need to send you an amended notice of hearing, we will mail or serve the notice at least 20 days before the date of the hearing. Similarly, if we schedule a supplemental hearing, after the initial hearing was continued by the assigned administrative law judge, we will mail or serve a notice of hearing at least 20 days before the date of the hearing.

    6. Amend § 404.950 by revising paragraphs (a) and (e) to read as follows:
    § 404.950 Presenting evidence at a hearing before an administrative law judge.

    (a) The right to appear and present evidence. Any party to a hearing has a right to appear before the administrative law judge, either by video teleconferencing, in person, or, when the conditions in § 404.936(c)(2) exist, by telephone, to present evidence and to state his or her position. A party may also make his or her appearance by means of a designated representative, who may make the appearance by video teleconferencing, in person, or, when the conditions in § 404.936(c)(2) exist, by telephone.

    (e) Witnesses at a hearing. Witnesses you call may appear at a hearing with you in the same manner in which you are scheduled to appear. If they are unable to appear with you in the same manner as you, they may appear as prescribed in § 404.936(c)(4). Witnesses called by the administrative law judge will appear in the manner prescribed in § 404.936(c)(4). They will testify under oath or affirmation unless the administrative law judge finds an important reason to excuse them from taking an oath or affirmation. The administrative law judge may ask the witness any questions material to the issues and will allow the parties or their designated representatives to do so.

    7. Amend § 404.976 by revising paragraph (b) to read as follows:
    § 404.976 Procedures before the Appeals Council on review.

    (b) Oral argument. You may request to appear before the Appeals Council to present oral argument. The Appeals Council will grant your request if it decides that your case raises an important question of law or policy or that oral argument would help to reach a proper decision. If your request to appear is granted, the Appeals Council will tell you the time and place of the oral argument at least 10 business days before the scheduled date. You will appear before the Appeals Council by video teleconferencing or in person, or, when the circumstances described in § 404.936(c)(2) exist, we may schedule you to appear by telephone. The Appeals Council will determine whether any other person relevant to the proceeding will appear by video teleconferencing, telephone, or in person as based on the circumstances described in § 404.936(c)(4).

    PART 416—SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED Subpart N—Determinations, Administrative Review Process, and Reopening of Determinations and Decisions 8. The authority citation for subpart N of part 416 continues to read as follows: Authority:

    Secs. 702(a)(5), 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

    9. Amend § 416.1414 by revising paragraphs (c), (d), and (e) and adding paragraphs (f), (g), and (h) to read as follows:
    § 416.1414 Disability hearing-general.

    (c) Combined issues. If a disability hearing is available to you under paragraph (a), and you file a new application for benefits while your request for reconsideration is still pending, we may combine the issues on both claims for the purpose of the disability hearing and issue a combined initial and reconsideration determination which is binding with respect to the common issues on both claims.

    (d) Definition. For purposes of the provisions regarding disability hearings (§§ 416.1414 through 416.1418) we, us or our means the Social Security Administration or the State agency.

    (e) Notice of disability hearing. We will send you a notice of the time and place of your disability hearing at least 20 days before the date of the hearing. The notice of hearing will tell you the scheduled time and place of the hearing and will notify you whether your appearance will be by video teleconference, in person, or by telephone. You may be expected to travel to your disability hearing. (See §§  416.1499a through 416.1499d regarding reimbursement for travel expenses.)

    (f) Time and place for a disability hearing. (1) General. Either the State agency or the Associate Commissioner for Disability Determinations or his or her delegate, as appropriate, will set the time and place of your disability hearing. We may change the time and place of the hearing, if it is necessary and there is good cause for doing so.

    (2) Where we hold hearings. The “place” of the hearing is the office or other site(s) at which you and any other parties to the hearing are located when you make your appearance(s) before the disability hearing officer by video teleconferencing, in person, or, when the circumstances described in paragraph (f)(4) of this section exist, by telephone.

    (3) When we will schedule your hearing by video teleconferencing or in person. We will generally schedule you or any other party to the hearing to appear either by video teleconferencing or in person. When we determine whether you will appear by video teleconferencing or in person, we consider the following factors:

    (i) The availability of video teleconferencing equipment to conduct the appearance;

    (ii) Whether use of video teleconferencing to conduct the appearance would be less efficient than conducting the appearance in person; and

    (iii) Any facts in your particular case that provide a good reason to schedule your appearance by video teleconferencing or in person.

    (4) When we will schedule your appearance by telephone. Subject to paragraph (f)(5), we will schedule you or any other party to the hearing to appear by telephone when we find an appearance by video teleconferencing or in person is not possible or other extraordinary circumstances prevent you from appearing by video teleconferencing or in person.

    (5) Scheduling a hearing when you or any other party to the hearing is incarcerated or otherwise confined. If you are incarcerated or otherwise confined and video teleconferencing is not available, we will schedule your appearance by telephone, unless we find that there are facts in your particular case that provide a good reason to schedule your appearance in person, if allowed by the place of confinement, or by video teleconferencing or in person upon your release.

    (6) How witnesses will appear. Witnesses may appear at a hearing with you in the same manner in which you are scheduled to appear. If they are unable to appear with you in the same manner as you, we will generally direct them to appear by video teleconferencing or by telephone. We will consider directing them to appear in person only when:

    (i) Telephone or video teleconferencing equipment is not available to conduct the appearance;

    (ii) We determine that use of telephone or video teleconferencing equipment would be less efficient than conducting the appearance in person; or

    (iii) We find that there are facts in your particular case that provide a good reason to schedule this individual's appearance in person.

    (g) Objecting to the time of the hearing. (1) General. If you wish to object to the time of the hearing, you must:

    (i) Notify us in writing at the earliest possible opportunity, but not later than 5 days before the date set for the hearing; and

    (ii) State the reason(s) for your objection to the time of the hearing and state the time you want the hearing to be held.

    (2) If you notify us that you object to the time of the hearing less than 5 days before the date set for the hearing, we will consider this objection only if you show you had good cause for missing the deadline. To determine whether good cause exists for missing the deadline, we use the standards explained in § 416.1411.

    (h) Whether good cause exists for changing the time of the hearing. We will determine whether good cause exists for changing the time of your scheduled hearing. If we find good cause, we will set the time of the new hearing. A finding that good cause exists to reschedule the time of your hearing will generally not change the assignment of the designated adjudicator or how you or any other party to the hearing will appear at the hearing, unless we determine a change will promote more efficient administration of the hearing process.

    (1) Determining good cause for changing the time of the hearing. We will find good cause to change the time of your hearing if we determine that, based on the evidence:

    (i) A serious physical or mental condition or incapacitating injury makes it impossible for you or your representative to travel to the hearing, or a death in the family occurs; or

    (ii) Severe weather conditions make it impossible for you or your representative to travel to the hearing.

    (2) Determining good cause in other circumstances. When we determine whether good cause exists to change the time of your hearing, in circumstances other than those set out in paragraph (h)(1) of this section, we will consider your reason(s) for requesting the change, the facts supporting it, and the impact of the proposed change on the efficient administration of the hearing process. Factors affecting the impact of the change include, but are not limited to, the effect on processing other scheduled hearings, delays that may occur in rescheduling your hearing, and whether we previously granted any changes to the time of the hearing. Examples of such other circumstances that you might give for requesting a change in the time of the hearing include, but are not limited to the following:

    (i) You unsuccessfully attempted to obtain a representative and need additional time to secure representation;

    (ii) Your representative was appointed within 20 days of the scheduled hearing and needs additional time to prepare for the hearing;

    (iii) Your representative has a prior commitment to be in court or at another administrative hearing on the date scheduled for the hearing;

    (iv) A witness who will testify to facts material to your case would be unavailable to attend the scheduled hearing and the evidence cannot be otherwise obtained;

    (v) Transportation is not readily available for you to travel to the hearing; or

    (vi) You are unrepresented, and you are unable to respond to the notice of hearing because of any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which you may have.

    10. Revise § 416.1429 to read as follows:
    § 416.1429 Hearing before an administrative law judge.

    If you are dissatisfied with one of the determinations or decisions listed in § 416.1430, you may request a hearing. The Deputy Commissioner for Hearings Operations, or his or her delegate, will appoint an administrative law judge to conduct the hearing. If circumstances warrant, the Deputy Commissioner for Hearings Operations, or his or her delegate, may assign your case to another administrative law judge. In general, we will schedule you to appear by video teleconferencing or in person. When we determine whether you will appear by video teleconferencing or in person, we consider the factors described in § 416.1436(c)(1)(i) through (iii), and in the limited circumstances described in § 416.1436(c)(2), we will schedule you to appear by telephone. You may submit new evidence (subject to the provisions of § 416.1435), examine the evidence used in making the determination or decision under review, and present and question witnesses. The administrative law judge who conducts the hearing may ask you questions. He or she will issue a decision based on the preponderance of the evidence in the hearing record. If you waive your right to appear at the hearing, the administrative law judge will make a decision based on the preponderance of the evidence that is in the file and, subject to the provisions of § 416.1435, any new evidence that may have been submitted for consideration.

    11. Revise § 416.1436 to read as follows:
    § 416.1436 Time and place for a hearing before an administrative law judge.

    (a) General. We set the time and place for any hearing. We may change the time and place, if it is necessary. After sending you reasonable notice of the proposed action, the administrative law judge may adjourn or postpone the hearing or reopen it to receive additional evidence any time before he or she notifies you of a hearing decision.

    (b) Where we hold hearings. We hold hearings in the 50 States, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, the Commonwealth of Puerto Rico, and the United States Virgin Islands. The “place” of the hearing is the hearing office or other site(s) at which you and any other parties to the hearing are located when you make your appearance(s) before the administrative law judge by video teleconferencing, in person or, when the circumstances described in § 416.1436(c)(2) exist, by telephone.

    (c) We will generally schedule you or any other party to the hearing to appear either by video teleconferencing or in person.

    (1) When we determine whether you will appear by video teleconferencing or in person, we consider the following factors:

    (i) The availability of video teleconferencing equipment to conduct the appearance;

    (ii) Whether use of video teleconferencing to conduct the appearance would be less efficient than conducting the appearance in person; and

    (iii) Any facts in your particular case that provide a good reason to schedule your appearance by video teleconferencing or in person.

    (2) Subject to paragraph (c)(3) of this section, we will schedule you or any other party to the hearing to appear by telephone when we find an appearance by video teleconferencing or in person is not possible or other extraordinary circumstances prevent you from appearing by video teleconferencing or in person.

    (3) If you are incarcerated and video teleconferencing is not available, we will schedule your appearance by telephone, unless we find that there are facts in your particular case that provide a good reason to schedule your appearance in person, if allowed by the place of confinement, or by video teleconferencing or in person upon your release.

    (4) We will generally direct any person we call as a witness, other than you or any other party to the hearing, including a medical expert or a vocational expert, to appear by telephone or by video teleconferencing. Witnesses you call will appear at the hearing pursuant to § 416.1450(e). If they are unable to appear with you in the same manner as you, we will generally direct them to appear by video teleconferencing or by telephone. We will consider directing them to appear in person only when:

    (i) Telephone or video teleconferencing equipment is not available to conduct the appearance;

    (ii) We determine that use of telephone or video teleconferencing equipment would be less efficient than conducting the appearance in person; or

    (iii) We find that there are facts in your particular case that provide a good reason to schedule this individual's appearance in person.

    (d) Objecting to the time of the hearing. (1) If you wish to object to the time of the hearing, you must:

    (i) Notify us in writing at the earliest possible opportunity, but not later than 5 days before the date set for the hearing or 30 days after receiving notice of the hearing, whichever is earlier; and

    (ii) State the reason(s) for your objection and state the time you want the hearing to be held. If the administrative law judge finds you have good cause, as determined under paragraph (e) of this section, we will change the time of the hearing.

    (2) If you notify us that you object to the time of hearing less than 5 days before the date set for the hearing or, if earlier, more than 30 days after receiving notice of the hearing, we will consider this objection only if you show you had good cause for missing the deadline. To determine whether good cause exists for missing this deadline, we use the standards explained in § 416.1411.

    (e) Good cause for changing the time. The administrative law judge will determine whether good cause exists for changing the time of your scheduled hearing. If the administrative law judge finds that good cause exists, we will set the time of the new hearing. A finding that good cause exists to reschedule the time of your hearing will generally not change the assignment of the administrative law judge or how you or another party will appear at the hearing, unless we determine a change will promote efficiency in our hearing process.

    (1) The administrative law judge will find good cause to change the time of your hearing if he or she determines that, based on the evidence:

    (i) A serious physical or mental condition or incapacitating injury makes it impossible for you or your representative to travel to the hearing, or a death in the family occurs; or

    (ii) Severe weather conditions make it impossible for you or your representative to travel to the hearing.

    (2) In determining whether good cause exists in circumstances other than those set out in paragraph (e)(1) of this section, the administrative law judge will consider your reason(s) for requesting the change, the facts supporting it, and the impact of the proposed change on the efficient administration of the hearing process. Factors affecting the impact of the change include, but are not limited to, the effect on the processing of other scheduled hearings, delays that might occur in rescheduling your hearing, and whether we previously granted you any changes in the time of your hearing. Examples of such other circumstances that you might give for requesting a change in the time of the hearing include, but are not limited to, the following:

    (i) You unsuccessfully attempted to obtain a representative and need additional time to secure representation;

    (ii) Your representative was appointed within 30 days of the scheduled hearing and needs additional time to prepare for the hearing;

    (iii) Your representative has a prior commitment to be in court or at another administrative hearing on the date scheduled for the hearing;

    (iv) A witness who will testify to facts material to your case would be unavailable to attend the scheduled hearing and the evidence cannot be otherwise obtained;

    (v) Transportation is not readily available for you to travel to the hearing; or

    (vi) You are unrepresented, and you are unable to respond to the notice of hearing because of any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which you may have.

    12. Amend § 416.1438 by revising paragraphs (b)(3), (b)(5), and (c) and adding paragraph (d) to read as follows:
    § 416.1438 Notice of a hearing before an administrative law judge.

    (b) * * *

    (3) How to request that we change the time of your hearing;

    (5) Whether your appearance or that of any other party or witness is scheduled to be made by video teleconferencing, in person, or, when the circumstances described in § 416.1436(c)(2) exist, by telephone. If we have scheduled you to appear by video teleconferencing, the notice of hearing will tell you that the scheduled place for the hearing is a video teleconferencing site and explain what it means to appear at your hearing by video teleconferencing;

    (c) Acknowledging the notice of hearing. The notice of hearing will ask you to return a form to let us know that you received the notice. If you or your representative do not acknowledge receipt of the notice of hearing, we will attempt to contact you for an explanation. If you tell us that you did not receive the notice of hearing, an amended notice will be sent to you by certified mail.

    (d) Amended notice of hearing. If we need to send you an amended notice of hearing, we will mail or serve the notice at least 20 days before the date of the hearing. Similarly, if we schedule a supplemental hearing, after the initial hearing was continued by the assigned administrative law judge, we will mail or serve a notice of hearing at least 20 days before the date of the hearing.

    13. Amend § 416.1450, by revising paragraphs (a) and (e) to read as follows:
    § 416.1450 Presenting evidence at a hearing before an administrative law judge.

    (a) The right to appear and present evidence. Any party to a hearing has a right to appear before the administrative law judge, either by video teleconferencing, in person, or, when the conditions in § 416.1436(c)(2) exist, by telephone, to present evidence and to state his or her position. A party may also make his or her appearance by means of a designated representative, who may make the appearance by video teleconferencing, in person, or, when the conditions in § 416.1436(c)(2) exist, by telephone.

    (e) Witnesses at a hearing. Witnesses you call may appear at a hearing with you in the same manner in which you are scheduled to appear. If they are unable to appear with you in the same manner as you, they may appear as prescribed in § 416.1436(c)(4). Witnesses called by the administrative law judge will appear in the manner prescribed in § 416.1436(c)(4). They will testify under oath or affirmation unless the administrative law judge finds an important reason to excuse them from taking an oath or affirmation. The administrative law judge may ask the witness any questions material to the issues and will allow the parties or their designated representatives to do so.

    15. Amend § 416.1476, by revising paragraph (b) to read as follows:
    § 416.1476 Procedures before the Appeals Council on review.

    (b) Oral argument. You may request to appear before the Appeals Council to present oral argument. The Appeals Council will grant your request if it decides that your case raises an important question of law or policy or that oral argument would help to reach a proper decision. If your request to appear is granted, the Appeals Council will tell you the time and place of the oral argument at least 10 business days before the scheduled date. You will appear before the Appeals Council by video teleconferencing or in person, or, when the circumstances described in § 416.1436(c)(2) exist, we may schedule you to appear by telephone. The Appeals Council will determine whether any other person relevant to the proceeding will appear by video teleconferencing, telephone, or in person as based on the circumstances described in § 416.1436(c)(4).

    [FR Doc. 2018-24711 Filed 11-14-18; 8:45 am] BILLING CODE 4191-02-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 50, 312, and 812 [Docket No. FDA-2018-N-2727] RIN 0910-AH52 Institutional Review Board Waiver or Alteration of Informed Consent for Minimal Risk Clinical Investigations AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Food and Drug Administration (FDA or Agency) is proposing to amend its regulations to implement a provision of the 21st Century Cures Act (Cures Act). This proposed rule, if finalized, would allow an exception from the requirement to obtain informed consent when a clinical investigation poses no more than minimal risk to the human subject and includes appropriate safeguards to protect the rights, safety, and welfare of human subjects. The proposed rule, if finalized, would permit an Institutional Review Board (IRB) to waive or alter certain informed consent elements or to waive the requirement to obtain informed consent, under limited conditions, for certain FDA-regulated minimal risk clinical investigations.

    DATES:

    Submit either electronic or written comments on this proposed rule 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 in the following ways:

    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-N-2727 for “Institutional Review Board Waiver or Alteration of Informed Consent for Minimal Risk Clinical Investigations.” Received comments, those filed in a timely manner (see ADDRESSES), 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.” The Agency will review this copy, including the claimed confidential information, in its 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 the electronic and written/paper 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:

    With regard to the proposed rule: Janet Norden, Office of Good Clinical Practice, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-1127, or Carol Drew, Office of Good Clinical Practice, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-3505.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Executive Summary A. Purpose of the Proposed Rule B. Summary of the Major Provisions of the Proposed Rule C. Legal Authority D. Costs and Benefits II. Background and Description of the Proposed Regulation A. Background B. Description of the Proposed Regulation III. Proposed Effective Date IV. Legal Authority V. Economic Analysis of Impacts A. Benefits of the Proposed Rule B. Cost Savings of the Proposed Rule C. Costs of the Proposed Rule D. Executive Order 13771 VI. Analysis of Environmental Impact VII. Paperwork Reduction Act of 1995 VIII. Consultation and Coordination With Indian Tribal Governments IX. Federalism X. References I. Executive Summary A. Purpose of the Proposed Rule

    The purpose of this proposed rule is to implement the statutory changes made to the Federal Food, Drug, and Cosmetic Act (FD&C Act) by section 3024 of the Cures Act (Pub. L. 114-255) to allow for a waiver or alteration of informed consent when a clinical investigation poses no more than minimal risk to the human subject and includes appropriate safeguards to protect the rights, safety, and welfare of human subjects. The proposed rule, if finalized, would permit an IRB to waive or alter certain informed consent elements or to waive the requirement to obtain informed consent, under limited conditions, for certain minimal risk clinical investigations.

    B. Summary of the Major Provisions of the Proposed Rule

    The major provisions of the proposed rule would add § 50.22 to part 50 (21 CFR part 50) to allow IRBs responsible for the review, approval, and continuing review of clinical investigations to approve an informed consent procedure that waives or alters certain informed consent elements or that waives the requirement to obtain informed consent for certain minimal risk clinical investigations. In order for an IRB to approve a waiver or alteration of informed consent requirements for minimal risk clinical investigations, the proposed rule would require an IRB to find and document four criteria that are consistent with the “Federal Policy for the Protection of Human Subjects” (the Common Rule) (56 FR 28001, June 18, 1991). FDA believes proposed § 50.22 would provide appropriate safeguards to protect the rights, safety, and welfare of the human subjects participating in such clinical investigations. We are also proposing conforming amendments to FDA's regulations, including § 50.20, 21 CFR 312.60, and 21 CFR 812.2.

    C. Legal Authority

    Sections 505(i)(4) and 520(g)(3) of the FD&C Act (21 U.S.C. 355(i)(4) and 360j(g)(3)), as amended by section 3024 of the Cures Act, in conjunction with FDA's general rulemaking authority in section 701(a) of the FD&C Act (21 U.S.C. 371(a)), serve as FDA's principal legal authority for this proposed rule.

    D. Costs and Benefits

    We do not anticipate additional costs associated with this rulemaking. This proposed rule would help enable the conduct of certain minimal risk clinical investigations for which the requirement to obtain informed consent is waived or for which certain elements of informed consent are waived or altered. We expect benefits in the form of healthcare advances from such minimal risk clinical investigations and from harmonization of FDA's informed consent regulations with the Common Rule's provision for waiver of informed consent for certain minimal risk research. We cannot quantify all of these benefits because of the lack of relevant data available to FDA. The benefits that we are able to quantify are the cost savings to IRBs because the time burdens of reviewing certain minimal risk clinical investigations under differing requirements would be reduced. The estimated cost savings of the proposed rule are approximately $237.6 thousand, with a lower bound of $59.4 thousand and an upper bound of $950.5 thousand. The estimated annualized costs savings of the proposed rule are approximately $27 thousand, with a lower bound of approximately $6,762 and an upper bound of approximately $108.2 thousand, discounted at 3 percent over 10 years. The estimated annualized costs savings of the proposed rule are approximately $26 thousand, with a lower bound of approximately $6,509 and an upper bound of $104.1 thousand, discounted at 7 percent over 10 years.

    II. Background and Description of the Proposed Regulation A. Background

    On December 13, 2016, the Cures Act was signed into law, amending certain provisions of the FD&C Act. FDA is proposing to update its regulations to reflect some of those changes that are now in effect. Specifically, section 3024 of the Cures Act amended sections 520(g)(3) and 505(i)(4) of the FD&C Act to provide FDA with the authority to permit an exception from informed consent requirements when the proposed clinical testing poses no more than minimal risk to the human subject and includes appropriate safeguards to protect the rights, safety, and welfare of the human subject. This proposed rule, if finalized, would implement this statutory change.

    Sections 505(i) and 520(g) of the FD&C Act require FDA to publish regulations governing the use in human subjects of drugs and devices in clinical investigations. In 1962, amendments to section 505(i) of the FD&C Act provided that FDA regulations must ensure that informed consent for investigational use of drugs (including biological products) in human beings is obtained except where it is not feasible or it is contrary to the best interests of such human beings. The Medical Device Amendments of 1976 subsequently added section 520(g) to the FD&C Act. Among other requirements, section 520(g)(3)(D) of the FD&C Act directed that FDA regulations governing investigational use of devices require that informed consent be obtained except where the investigator determines in writing that there exists a life-threatening situation involving the human subject of such testing that necessitates the use of such device and it is not feasible to get the consent of the subject and there is not sufficient time to obtain such consent from the subject's representative. Section 520(g)(3)(D) of the FD&C Act further provided that a licensed physician not involved in the research must also concur in this determination, unless immediate use is necessary to save the subject's life and there is not time to get concurrence.

    In 1979, FDA proposed revisions to its regulations governing informed consent (44 FR 47713, August 14, 1979). The Agency recognized in the preamble to its proposed rule that the statutory language regarding exceptions from informed consent for investigational drugs differed from that regarding investigational devices. However, the Agency explained that its prior regulations implementing the statutory exception from informed consent for investigational drugs “carefully limited” the exception to certain situations that assume “the patient subject is seriously ill” and did not differ greatly from the new statutory exceptions from informed consent for devices (see 44 FR 47713 at 47718). When FDA issued final revisions to its informed consent regulations in 1981, it adopted a single set of requirements for informed consent for all FDA-regulated clinical investigations, which reflected the device standard in section 520(g)(3)(D) of the FD&C Act (see 46 FR 8942, January 27, 1981). FDA explained its intent to adopt a single standard that reflected the most current congressional thinking on informed consent (see 44 FR 47713 at 44718; 46 FR 8942 to 8944).

    Currently, FDA's regulations governing the protection of human subjects (21 CFR parts 50 and 56) allow exception from the general requirements of informed consent only in life-threatening situations when certain conditions are met (§ 50.23) or when the requirements for emergency research are met (§ 50.24). In all other cases, FDA regulations require that a human subject provide informed consent before participating in a clinical investigation. At this time, FDA's regulations do not allow an exception from the general requirements of informed consent for minimal risk clinical investigations.

    In contrast, the Common Rule has included waiver of informed consent provisions for minimal risk research since it was originally issued in 1991 (56 FR 28001). The Common Rule sets forth requirements for the protection of human subjects involved in research that is conducted or supported by the Department of Health and Human Services (HHS) (see 45 CFR 46, Subpart A) and 15 other Federal departments and agencies. The purpose of the Common Rule is to promote uniformity, understanding, and compliance with human subject protections as well as to create a uniform body of regulations across the Federal departments and agencies.1 The Common Rule standard has permitted an IRB to waive the requirements to obtain informed consent, or to allow changes to, or omission of, some or all elements of informed consent if the IRB finds and documents that: (1) The research involves no more than minimal risk to the subjects; (2) the waiver or alteration will not adversely affect the rights and welfare of the subjects; (3) the research could not practicably be carried out without the waiver or alteration; and (4) whenever appropriate, the subjects will be provided with additional pertinent information after participation (45 CFR 46.116(d); 56 FR 28001 at 28017).2

    1 80 FR 53931 at 53935, September 8, 2015.

    2 References to the Common Rule in this document are to the 1991 version of the Common Rule, unless otherwise noted. A final rule that revised the 1991 version of the Common Rule adopted an effective and general compliance date of January 19, 2018 (82 FR 7149, January 19, 2017). On January 22, 2018, an interim final rule was published that delayed the effective and general compliance date of the revisions until July 19, 2018 (83 FR 2885). On June 19, 2018, a final rule was published that further delays the general compliance date until January 21, 2019, while allowing the use of three burden-reducing provisions for certain research during the delay period (83 FR 28497). The revised version of the Common Rule, including amendments made by the January 22, 2018 interim final rule and the June 19, 2018 final rule, is referred to in this document as the “revised Common Rule.”

    FDA amended its regulations in parts 50 and 56 to conform them to the Common Rule in 1991 (56 FR 28001 at 28025) but diverged from the Common Rule's provision for waiver or alteration of informed consent for minimal risk research at 45 CFR 46.116(d). In explaining the reason for this departure, FDA cited sections 505(i) and 520(g)(3)(D) of the FD&C Act 3 and stated that the FD&C Act “requires informed consent to be obtained from all subjects except in very limited circumstances” and that the Agency did “not have the authority under the act to waive this requirement” (53 FR 45671 at 45679, November 10, 1988).

    3 FDA's proposed rule also cited section 507 of the FD&C Act, which established requirements for the conduct of clinical investigations of antibiotic drugs and provided the same exceptions from the informed consent requirements as those provided under section 505(i). Section 125 of the Food and Drug Administration Modernization Act of 1997 repealed section 507 of the FD&C Act.

    The Common Rule provision recognizes that there may be proposed research that cannot practicably be conducted without a waiver or alteration of informed consent, but the research would contribute valuable medical or scientific knowledge and would present no more than minimal risk to subjects. FDA believes this is also true for some minimal risk FDA-regulated clinical investigations. On March 13, 2014, the Secretary's Advisory Committee on Human Research Protections (SACHRP) considered whether the Common Rule standard for waiver of informed consent for minimal risk research would be appropriate and helpful for FDA-regulated clinical investigations. SACHRP recommended to the Secretary of HHS that FDA adopt the provisions for waiver of informed consent that existed under the Common Rule at that time at 45 CFR 46.116(d). On October 26, 2016, SACHRP reiterated that recommendation to the Secretary.4

    4 SACHRP's recommendations are available at https://www.hhs.gov/ohrp/sachrp-committee/recommendations/2014-july-3-letter-attachment-c/index.html and https://www.hhs.gov/ohrp/sachrp-committee/recommendations/attachment-b-november-2-2016-letter/index.html.

    FDA believes that the Common Rule provision has provided appropriate safeguards to protect the rights, safety, and welfare of human subjects participating in certain minimal risk research for over 25 years. Consistent with SACHRP's recommendations, FDA also believes that this standard is appropriate for FDA-regulated clinical investigations posing no more than minimal risk to human subjects. The Cures Act statutory revision authorizes FDA to permit an exception from informed consent requirements when the proposed clinical testing poses no more than minimal risk to the human subject and includes appropriate safeguards to protect the rights, safety, and welfare of the human subject. This enables FDA to harmonize with the Common Rule's well-established waiver provision for certain minimal risk research, thereby facilitating investigators' ability to conduct minimal risk clinical investigations that could contribute substantially to the development of products to diagnose or treat diseases or other conditions, without compromising subjects' rights, safety, or welfare. Because some clinical research is subject to both FDA and HHS requirements, harmonization of this waiver provision should also reduce burden on the research community.

    The Common Rule was recently revised (82 FR 7149, January 19, 2017), introducing new terminology and regulatory provisions. Although it retains the same criteria for IRB waiver or alteration of informed consent as were included in the 1991 version of the Common Rule, it adds a fifth criterion, i.e., “if the research involves using identifiable private information or identifiable biospecimens, the research could not practicably be carried out without using such information or biospecimens in an identifiable format” (new requirement at 45 CFR 46.116(f)(3)(iii)). We are proposing to adopt the four criteria from the 1991 version of the Common Rule. At this time, we are not proposing to adopt the new fifth criterion in the revised Common Rule, which has a general compliance date of January 21, 2019; however, we invite comments on this issue. Section 3023 of the Cures Act requires the Secretary of HHS, to the extent practicable and consistent with other statutory provisions, to harmonize the differences between the HHS human subject regulations and FDA's human subject regulations. FDA will be working with others in HHS to carry out this statutory directive with respect to new terminology and regulatory provisions in the revised Common Rule, such as this new fifth criterion.

    Subsequent to the Cures Act amendment to the FD&C Act, FDA issued a guidance document for immediate implementation, entitled “Institutional Review Board Waiver or Alteration of Informed Consent for Clinical Investigations Involving No More Than Minimal Risk to Human Subjects” (82 FR 34535, July 25, 2017). This guidance informed sponsors, investigators, and IRBs that FDA does not intend to object to an IRB waiving or altering informed consent requirements, as described in the guidance, for certain minimal risk clinical investigations. In addition, the guidance informed sponsors, investigators, and IRBs that FDA does not intend to object to a sponsor initiating, or an investigator conducting, a minimal risk clinical investigation for which an IRB waives or alters the informed consent requirements as described in the guidance. FDA intends to withdraw the guidance after regulations to implement section 3024 of the Cures Act become effective.

    Obtaining informed consent from those who volunteer to participate in research is a fundamentally important principle of human subject protection. FDA is issuing this proposed rule to permit IRB waiver or alteration of informed consent in limited circumstances, consistent with the Cures Act. Given the variety and complexity of clinical investigations being conducted in today's research environment, FDA is soliciting additional stakeholder input on the types of FDA-regulated minimal risk clinical investigations for which sponsors would anticipate requesting a waiver or alteration of informed consent from the IRB.

    B. Description of the Proposed Regulation

    FDA proposes to add § 50.22, “Exception from informed consent requirements for minimal risk clinical investigations” to part 50. The proposed exception would allow the IRB responsible for the review, approval, and continuing review of the clinical investigation to approve an informed consent procedure that does not include or that alters some or all of the elements of informed consent in § 50.25(a) and (b) of FDA's current regulations, or that waives the requirement to obtain informed consent, provided that the IRB finds and documents that:

    • The clinical investigation involves no more than minimal risk to the subjects;

    • the waiver or alteration of informed consent will not adversely affect the rights and welfare of the subjects;

    • the clinical investigation could not practicably be carried out without the waiver or alteration of informed consent; and

    • whenever appropriate, the subjects will be provided with additional pertinent information after participation.

    Consistent with the amendments made by section 3024 of the Cures Act, § 50.22(a) would limit the application of a waiver or alteration of informed consent under proposed § 50.22 to clinical investigations that involve no more than minimal risk. FDA regulations and the Common Rule have shared the same definition of “minimal risk” since 1991 (see 56 FR 28025, June 18, 1991; § 50.3(k); 45 CFR 46.102(i)).5

    5 In the revised Common Rule, the definition of “minimal risk” is found at 45 CFR 46.102(j).

    Proposed § 50.22 also provides for appropriate safeguards to protect the rights, safety, and welfare of human subjects. Proposed § 50.22(b) requires the reviewing IRB to find that the waiver or alteration will not adversely affect the rights and welfare of the subjects. To make this finding, IRBs may consider, for example, whether the waiver or alteration has the potential to negatively affect the subjects' well-being or whether the subject population in general would likely object to a waiver or alteration being granted for the research in question. It would not be necessary for an IRB to find that obtaining informed consent would be harmful or contrary to the best interests of subjects in order to satisfy this criterion.

    Proposed § 50.22(c) requires the reviewing IRB to find that the clinical investigation could not practicably be carried out without the waiver or alteration. If scientifically sound research can be practicably carried out using only consenting subjects, FDA believes it should be carried out without involving nonconsenting subjects. By practicable, FDA means, for example: (1) That recruitment of consenting subjects does not bias the science and the science is no less rigorous as a result of restricting it to consenting subjects or (2) that the research is not unduly delayed by restricting it to consenting subjects. The emphasis is on situations where it is impracticable to carry out the clinical investigation, as designed, without the waiver or alteration, rather than on situations where it is not feasible to obtain informed consent from human subjects.

    Finally, proposed § 50.22(d) requires the reviewing IRB to find that, whenever appropriate, the subjects will be provided with additional pertinent information after participation. For example, an IRB may determine that information that had been previously withheld about the clinical investigation to prevent bias must be provided to subjects following their participation.

    If an IRB finds and documents the criteria set forth in proposed § 50.22(a) to (d), the proposed rule would provide for the IRB to approve an informed consent procedure that does not include or that alters some or all of the elements of informed consent in § 50.25(a) and (b), or that waives the requirement to obtain informed consent. This means that an IRB may waive entirely, under proposed § 50.22, the requirement to obtain informed consent, which would constitute a waiver of all elements under § 50.25(a), (b), and (c). However, regarding an alteration to the informed consent document, the proposed rule would not permit an IRB to approve an informed consent document with an omission or alteration of the specific informed consent element set forth in § 50.25(c), which requires that a statement regarding the inclusion of clinical trial information at https://www.ClinicalTrials.gov be provided in informed consent documents and processes for applicable clinical trials, as defined in section 402(j)(1)(A) of the Public Health Service Act, 42 U.S.C. 282(j)(1)(A).

    FDA revised its informed consent regulations to add § 50.25(c) in response to section 801 of the Food and Drug Administration Amendments Act of 2007 (FDAAA) (Pub. L. 110-85, September 27, 2007). Section 801 of FDAAA amended section 505(i)(4) of the FD&C Act to direct the Secretary of HHS “to require inclusion in the informed consent documents and process a statement that clinical trial information for such clinical investigation has been or will be submitted for inclusion in the registry data bank pursuant to subsection (j) of section 402 of the Public Health Service Act.” Under proposed new § 50.22, if an IRB approved the use of a consent procedure that omitted or altered certain elements in § 50.25(a) and (b), the informed consent document and/or oral presentation provided to subjects would still need to include the statement at § 50.25(c) without alteration. As FDA has previously explained, requiring a uniform statement that cannot be altered helps to ensure that potential clinical trial participants receive a consistent and accurate message that is consistent with the intent of the statutory requirement and are directed to the specific website that contains the clinical trial databank (see 76 FR 256 at 261, January 4, 2011).

    Proposed § 50.22 should not be confused with the provision of the current regulations that allows for a waiver of documentation of informed consent by an IRB in certain situations; the waiver for documentation of informed consent referenced in § 50.27 and found in § 56.109(c), remains unchanged.

    We are also proposing three conforming amendments to §§ 50.20, 312.60, and 812.2 of our current regulations to reflect the proposed exception from informed consent for minimal risk clinical investigations. FDA is proposing to revise the introductory clause of § 50.20, General requirements of informed consent, to include reference to proposed § 50.22 as one of the limited exceptions to the general requirements for informed consent. Thus, the introductory clause to § 50.20 is proposed to read, “Except as provided in §§ 50.22, 50.23, and 50.24. . . .”

    In addition, we are proposing a conforming amendment to the second sentence in § 312.60, General responsibilities of investigators, of our current regulations on investigational new drug applications to reference part 50 generally rather than list each specific exception to the informed consent requirements in part 50. This would simplify the regulatory text and make it clear that the investigator is responsible for obtaining the informed consent of each human subject to whom the drug is administered in accordance with part 50, which includes proposed § 50.22.

    The remaining conforming amendment we are proposing in part 812, Investigational Device Exemptions (IDEs), § 812.2(b)(1)(iii), would make it clear that the investigator must obtain informed consent in accordance with part 50, which includes proposed § 50.22. To simplify the current regulatory text, we are proposing to remove the reference to documentation being waived under § 56.109(c), as the relevant section of the regulations in part 50 (i.e., § 50.27) refers investigators to § 56.109(c) and need not be repeated. Thus, the provision of the abbreviated requirements for IDEs in § 812.2(b)(1)(iii) would be simplified to read, “(iii) Ensures that each investigator participating in an investigation of the device obtains from each subject under the investigator's care, informed consent in accordance with part 50 of this chapter.”

    III. Proposed Effective Date

    FDA proposes that any final rule that may issue based on this proposal become effective 30 days after its date of publication in the Federal Register.

    IV. Legal Authority

    Title III, section 3024 of the Cures Act amended sections 520(g)(3) and 505(i)(4) of the FD&C Act to provide FDA with the authority to permit an exception from informed consent requirements when the proposed clinical testing poses no more than minimal risk to the human subject and includes appropriate safeguards to protect the rights, safety, and welfare of the human subject. This statutory amendment was signed into law and became effective on December 13, 2016. We are proposing these regulations to reflect these statutory changes to the FD&C Act, including appropriate human subject protection safeguards. Thus, sections 520(g)(3) and 505(i)(4) of the FD&C Act, as amended by section 3024 of the Cures Act, in conjunction with FDA's general rulemaking authority in section 701(a) of the FD&C Act, serve as our principal legal authority for this proposed rule.

    V. Economic Analysis of Impacts

    We have examined the impacts of the proposed rule under Executive Order 12866, Executive Order 13563, Executive Order 13771, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). We believe that this proposed rule is not a significant regulatory action as defined by Executive Order 12866. Executive Order 13771 requires that the costs associated with significant new regulations “shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.” We believe that the proposed rule, if finalized, is an Executive Order 13771 deregulatory action and does not require us to identify cost offsets.

    The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this proposed rule would not impose new requirements on any entity and therefore has no associated compliance costs, we propose to certify that the proposed rule will not have a significant economic impact on a substantial number of small entities.

    The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $150 million, using the most current (2017) Implicit Price Deflator for the Gross Domestic Product. This proposed rule would not result in an expenditure in any year that meets or exceeds this amount.

    A. Benefits of the Proposed Rule

    The proposed rule would amend FDA's current informed consent regulations to harmonize with the 1991 version of the Common Rule's provision for waiver of the requirement to obtain informed consent for certain minimal risk research. We expect benefits in the form of healthcare advances stemming from additional minimal risk clinical investigations that would proceed using a waiver or alteration of informed consent, and from harmonization with the Common Rule's provision for waiver of the requirement to obtain informed consent for certain minimal risk research. The Common Rule provision is currently used by numerous other Federal departments and agencies. Some clinical research is subject to both FDA's regulations and the Common Rule, so harmonization of this specific waiver provision would benefit those entities that conduct, sponsor, or review certain minimal risk clinical investigations by reducing confusion and burden created by the need to comply with differing requirements.

    B. Cost Savings of the Proposed Rule

    The proposed rule would harmonize FDA's informed consent regulations with the 1991 version of the Common Rule's provision for waiver of the requirement to obtain informed consent for certain minimal risk clinical investigations. As in a previous economic analysis of the 2017 revisions to the Common Rule (Ref. 1), we attempt to quantify the effects of the proposed rule where possible. We conducted a search for active IRBs regulated by both FDA and the Office for Human Research Protections (OHRP) in HHS in the “Office for Human Research Protections (OHRP) Database for Registered IORGs & IRBs, Approved FWAs, and Documents Received in the Last 60 Days” (Ref. 2). Using this data, we are able to determine whether an IRB is active or inactive, and whether it is regulated by FDA, OHRP, or both. We multiply the number of active IRBs by the percentage of IRBs regulated by both FDA and OHRP to yield an estimate of 2,442 active IRBs that are regulated by both FDA and OHRP (= 3,507 × 0.696). We expect that some of these IRBs would be affected by the proposed rule, and would experience a reduction in the time burden of determining whether to approve a waiver of the requirement to obtain informed consent for a minimal risk clinical investigation by reviewing it under a harmonized standard.6 We estimate that 50 percent of affected IRBs would incur time savings from the proposed rule, with a lower bound of 25 percent of affected IRBs and an upper bound of 100 percent of affected IRBs. We estimate that for affected IRBs, cost savings would be incurred in the form of time savings to IRB administrators, IRB chairs, IRB voting members, and IRB administrative staff from evaluating a minimal risk clinical investigation under FDA's and the Common Rule's harmonized regulations for waiving the requirement to obtain informed consent. Based on discussion with FDA subject matter experts (Ref. 3), we estimate that the reduced time burden of the proposed rule is 30 minutes (0.5 hours), with a lower bound of 15 minutes (0.25 hours) and an upper bound of 60 minutes (1 hour).

    6 As previously discussed, the revised Common Rule adds a fifth criterion to the waiver or alteration of informed consent requirements (see section II.A). Although FDA is not proposing to adopt the fifth criterion in this rulemaking, for clinical investigations subject to both the Common Rule and FDA regulations, if an IRB finds and documents that research satisfies the criteria for waiver of the requirement to obtain informed consent for minimal risk research under the revised Common Rule, then that research would also meet the standards for waiver of the requirement to obtain informed consent in FDA-regulated clinical investigations described in this proposed rule.

    We draw from Bureau of Labor Statistics data to estimate hourly wage rates for IRB chairs, IRB voting members, and IRB administrative staff in 2016 dollars. Based on an economic analysis of impacts of revisions to the Common Rule (Ref. 1), we use wages for postsecondary education administrators to proxy for IRB administrator wages (Ref. 4), wages for office and administrative support workers to proxy for IRB administrative staff wages (Ref. 5), and wages for postsecondary health teachers to proxy for the wages of IRB chairs and IRB voting members (Ref. 6). We double each hourly wage to account for benefits and overhead, yielding wage rates of $134.50 for IRB administrators (= $67.25 × 2), $35.94 for IRB administrative staff (= $17.97 × 2), $109.40 for IRB chairs (= $54.70 × 2), and $109.40 for IRB voting members (= $54.70 × 2). We estimate that each of these forms of labor would experience time savings as a result of the proposed rule ranging from 15 to 60 minutes, with a central estimate of 30 minutes. We also estimate that time savings would be incurred by one IRB administrator, one IRB administrative staff, one IRB chair, and one IRB voting member. We multiply the number of active IRBs regulated by the percentage of IRBs affected by the proposed rule, the estimated reduced time burden of the proposed rule, and the sum of each IRB wage rate to yield a total estimated cost savings of approximately $237,631 (= 2,442 × 0.50 × 0.50 × [$134.50 + $109.40 + $109.40 + $35.94]), with lower bound estimated cost savings of approximately $59,408 (= 2,442 × 0.25 × 0.25 × [$134.50 + $109.40 + $109.40 + $35.94]) and upper bound estimated cost savings of approximately $950,524 (= 2,442 × 1 × 1 × [$134.50 + $109.40 + $109.40 + $35.94]). The net present value of the cost savings of the proposed rule is approximately $230.7 thousand, discounted at 3 percent, with a lower bound of approximately $57.7 thousand and an upper bound of approximately $922.8 thousand. The net present value of the cost savings of the proposed rule are approximately $222.1 thousand, discounted at 7 percent, with a lower bound of approximately $55.5 thousand and an upper bound of approximately $888.3 thousand. The annualized cost savings of the proposed rule are approximately $27 thousand, discounted at 3 percent over 10 years, with a lower bound of approximately $6,762 and an upper bound of approximately $108.2 thousand. The annualized cost savings of the proposed rule are approximately $26 thousand discounted at 7 percent over 10 years, with a lower bound of approximately $6,509 and an upper bound of approximately $104.1 thousand. The estimated cost savings of the proposed rule to IRBs are summarized in table 1.

    Table 1—Cost Savings of the Proposed Rule to IRBs Low Middle High No. of active IRBs 3,507 3,507 3,507 Percentage of IRBs regulated by FDA and OHRP 69.6% 69.6% 69.6% No. of active IRBs regulated by FDA and OHRP 2,442 2,442 2,442 Percentage of FDA/OHRP regulated IRBs affected by the proposed rule 25% 50% 100% Reduced time burden of the proposed rule (hours) 0.25 0.5 1 Hourly wage, IRB administrator $134.50 $134.50 $134.50 Hourly wage, IRB chair $109.40 $109.40 $109.40 Hourly wage, IRB voting member $109.40 $109.40 $109.40 Hourly wage, IRB administrative staff $35.94 $35.94 $35.94 Total cost savings of the proposed rule $59,408 $237,631 $950,524 Net present value of the proposed rule (3%) $57,677 $230,710 $922,839 Net present value of the proposed rule (7%) $55,521 $222,085 $888,340 Annualized cost savings of the proposed rule (3%, 10 years) $6,762 $27,046 $108,185 Annualized cost savings of the proposed rule (7%, 10 years) $6,509 $26,035 $104,141 C. Costs of the Proposed Rule

    We do not anticipate additional costs associated with this rulemaking. This proposed rule would help enable the conduct of certain minimal risk clinical investigations for which the requirement to obtain informed consent is waived or for which certain elements of informed consent are waived or altered.

    D. Executive Order 13771

    Executive Order 13771 requires that the costs associated with significant new regulations “shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.” We believe that the proposed rule, if finalized, is deregulatory under Executive Order 13771 and does not require us to identify cost offsets.

    The net present value of the cost savings of the proposed rule are approximately $222.1 thousand, discounted at 7 percent, with a lower bound of approximately $55.5 thousand and an upper bound of approximately $888.3 thousand. The annualized cost savings of the proposed rule are approximately $15,546, discounted at 7 percent on an infinite time horizon, with a lower bound of approximately $3,886 and an upper bound of approximately $62,184. Discounted at 3 percent, the net present value of the cost savings of the proposed rule are approximately $230.7 thousand, with a lower bound of approximately $57.7 thousand and an upper bound of approximately $922.8 thousand. The annualized cost savings of the proposed rule are approximately $6,921, discounted at 3 percent on an infinite time horizon, with a lower bound of approximately $1,730 and an upper bound of approximately $27,685. The estimated net cost savings under Executive Order 13771 are summarized in table 2.

    Table 2—Summary of Executive Order 13771 Net Cost Savings Primary
  • (7%)
  • Lower bound
  • (7%)
  • Upper bound
  • (7%)
  • Primary
  • (3%)
  • Lower bound
  • (3%)
  • Upper bound
  • (3%)
  • Present Value of Costs Present Value of Cost Savings $222,085 $55,521 $888,340 $230,710 $57,677 $922,839 Present Value of Net Cost Savings 222,085 55,521 888,340 230,710 57,677 922,839 Annualized Costs Annualized Cost Savings 15,546 3,886 62,184 6,921 1,730 27,685 Annualized Net Cost Savings 15,546 3,886 62,184 6,921 1,730 27,685
    VI. Analysis of Environmental Impact

    We have determined under 21 CFR 25.30(h) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    VII. Paperwork Reduction Act of 1995

    This proposed rule refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). IRB actions related to the waiver or alteration of informed consent requirements are currently approved under OMB control numbers 0910-0014, 0910-0078, 0910-0130, and 0910-0755. Therefore, FDA tentatively concludes the requirements in this document are not subject to additional review by OMB.

    VIII. Consultation and Coordination With Indian Tribal Governments

    We have analyzed this proposed rule in accordance with the principles set forth in Executive Order 13175. We have tentatively determined that the rule does not contain policies that would have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The Agency solicits comments from tribal officials on any potential impact on Indian Tribes from this proposed action.

    IX. Federalism

    We have analyzed this proposed rule in accordance with the principles set forth in Executive Order 13132. We have determined that this proposed rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, we conclude that the rule does not contain policies that have federalism implications as defined in the Executive Order and, consequently, a federalism summary impact statement is not required.

    X. References

    The following references are on display in the Dockets Management Staff (see ADDRESSES) and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are also available electronically at https://www.regulations.gov. FDA has verified the website addresses, as of the date this document publishes in the Federal Register, but websites are subject to change over time.

    1. Government Publishing Office, “Federal Policy for the Protection of Human Subjects”, 82 FR 7149 (January 19, 2017), available at: https://www.thefederalregister.org/fdsys/pkg/FR-2017-01-19/pdf/2017-01058.pdf, accessed on September 20, 2017. 2. Memorandum to File, FDA summary of data analysis; HHS, “Office for Human Research Protections (OHRP) Database for Registered IORGs & IRBs, Approved FWAs, and Documents Received in Last 60 Days”, prepared by Christian Brown, FDA, September 20, 2017. 3. Memorandum to File, FDA staff meeting on the Institutional Review Board Waiver or Alteration of Informed Consent for Minimal Risk Clinical Investigations rulemaking, prepared by Christian Brown, FDA, September 20, 2017, addendum August 20, 2018. 4. Bureau of Labor and Statistics, “Occupational Employment and Wages, May 2016, 11-9033 Education Administrators, Postsecondary”, available at: https://www.bls.gov/oes/2016/may/oes119033.htm, accessed on September 20, 2017. 5. Bureau of Labor and Statistics, “Occupational Employment and Wages, May 2016, 43-0000 Office and Administrative Support Occupations (Major Group)”, available at: https://www.bls.gov/oes/2016/may/oes430000.htm, accessed on September 20, 2017. 6. Bureau of Labor and Statistics, “May 2016 National Occupational Employment and Wage Estimates, United States”, available at: https://www.bls.gov/oes/2016/may/oes_nat.htm, accessed on September 20, 2017. List of Subjects 21 CFR Part 50

    Human research subjects, Prisoners, Reporting and recordkeeping requirements, Safety.

    21 CFR Part 312

    Drugs, Exports, Imports, Investigations, Labeling, Medical research, Reporting and recordkeeping requirements, Safety.

    21 CFR Part 812

    Health records, Medical devices, Medical research, Reporting and recordkeeping requirements.

    Therefore under the Federal Food, Drug, and Cosmetic Act, the Public Health Service Act, and under authority delegated to the Commissioner of Food and Drugs, it is proposed that 21 CFR parts 50, 312, and 812 be amended as follows:

    PART 50—PROTECTION OF HUMAN SUBJECTS 1. The authority citation for part 50 continues to read as follows: Authority:

    21 U.S.C. 321, 343, 346, 346a, 348, 350a, 350b, 352, 353, 355, 360, 360c-360f, 360h-360j, 371, 379e, 381; 42 U.S.C. 216, 241, 262, 263b-263n.

    2. In § 50.20 revise the first sentence to read as follows:
    § 50.20 General requirements for informed consent.

    Except as provided in §§ 50.22, 50.23, and 50.24, no investigator may involve a human being as a subject in research covered by these regulations unless the investigator has obtained the legally effective informed consent of the subject or the subject's legally authorized representative. * * *

    3. Add § 50.22 to subpart B to read as follows:
    § 50.22 Exception from informed consent requirements for minimal risk clinical investigations.

    The IRB responsible for the review, approval, and continuing review of the clinical investigation described in this section may approve an informed consent procedure that does not include or that alters some or all of the elements of informed consent set forth in § 50.25(a) and (b), or that waives the requirement to obtain informed consent, provided the IRB finds and documents the following:

    (a) The clinical investigation involves no more than minimal risk to the subjects;

    (b) The waiver or alteration will not adversely affect the rights and welfare of the subjects;

    (c) The clinical investigation could not practicably be carried out without the waiver or alteration; and

    (d) Whenever appropriate, the subjects will be provided with additional pertinent information after participation.

    PART 312—INVESTIGATIONAL NEW DRUG APPLICATION 4. The authority citation for part 312 continues to read as follows: Authority:

    21 U.S.C. 321, 331, 351, 352, 353, 355, 360bbb, 371; 42 U.S.C. 262.

    5. Revise § 312.60 to read as follows:
    § 312.60 General responsibilities of investigators.

    An investigator is responsible for ensuring that an investigation is conducted according to the signed investigator statement, the investigational plan, and applicable regulations; for protecting the rights, safety, and welfare of subjects under the investigator's care; and for the control of drugs under investigation. An investigator shall obtain the informed consent of each human subject to whom the drug is administered, in accordance with part 50 of this chapter. Additional specific responsibilities of clinical investigators are set forth in this part and in parts 50 and 56 of this chapter.

    PART 812—INVESTIGATIONAL DEVICE EXEMPTIONS 6. The authority citation for part 812 continues to read as follows: Authority:

    21 U.S.C. 331, 351, 352, 353, 355, 360, 360c-360f, 360h-360j, 360bbb-8b, 371, 372, 374, 379e, 381, 382, 383; 42 U.S.C. 216, 241, 262, 263b-263n.

    7. Revise § 812.2 (b)(1)(iii) to read as follows:
    § 812.2 Applicability.

    (b) * * *

    (1) * * *

    (iii) Ensures that each investigator participating in an investigation of the device obtains from each subject under the investigator's care, informed consent in accordance with part 50 of this chapter.

    Dated: November 7, 2018. Scott Gottlieb, Commissioner of Food and Drugs.
    [FR Doc. 2018-24822 Filed 11-13-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF LABOR Wage and Hour Division 29 CFR Part 570 RIN 1235-AA22 Expanding Employment, Training, and Apprenticeship Opportunities for 16- and 17-Year-Olds in Health Care Occupations Under the Fair Labor Standards Act, Comment Extension Period AGENCY:

    Wage and Hour Division, Department of Labor.

    ACTION:

    Proposed rule; extension of comment period.

    SUMMARY:

    This document extends the period for submitting written comments on the Notice of Proposed Rulemaking (NPRM) entitled “Expanding Employment, Training, and Apprenticeship Opportunities for 16- and 17-Year-Olds in Health Care Occupations Under the Fair Labor Standards Act.” The comment period now ends on December 11, 2018. The Department of Labor (Department) is taking this action to provide interested parties additional time to submit comments in response to a request for extension, as some supporting documents for the proposal may not have been originally fully visible in the docket.

    DATES:

    The comment period for the proposed rule published September 27, 2018, at 83 FR 48737, is extended. Comments should be received on or before December 11, 2018.

    ADDRESSES:

    To facilitate the receipt and processing of written comments on this NPRM, the Department encourages interested persons to submit their comments electronically. You may submit comments, identified by Regulatory Information Number (RIN) 1235-AA22, by either of the following methods:

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

    Mail: Address written submissions to Melissa Smith, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210.

    Instructions: This NPRM is available through the Federal Register and the http://www.regulations.gov website. You may also access this document via the Wage and Hour Division's (WHD) website at http://www.dol.gov/whd/. All comment submissions must include the agency name and Regulatory Information Number (RIN 1235-AA22) for this NPRM. Response to this NPRM is voluntary. The Department requests that no business proprietary information, copyrighted information, or personally identifiable information be submitted in response to this NPRM. Submit only one copy of your comment by only one method (e.g., persons submitting comments electronically are encouraged not to submit paper copies). Please be advised that comments received will become a matter of public record and will be posted without change to http://www.regulations.gov, including any personal information provided. All comments must be received by 11:59 p.m. on the date indicated for consideration in this NPRM; comments received after the comment period closes will not be considered. Commenters should transmit comments early to ensure timely receipt prior to the close of the comment period. Electronic submission via http://www.regulations.gov enables prompt receipt of comments submitted as DOL continues to experience delays in the receipt of mail in our area. For access to the docket to read background documents or comments, go to the Federal eRulemaking Portal at http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Smith, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210, telephone: (202) 693-0406 (this is not a toll-free number). Copies of this NPRM may be obtained in alternative formats (Large Print, Braille, Audio Tape or Disc), upon request, by calling (202) 693-0675 (this is not a toll-free number). TTY/TDD callers may dial toll-free 1 (877) 889-5627 to obtain information or request materials in alternative formats.

    Questions of interpretation and/or enforcement of the agency's regulations may be directed to the nearest WHD district office. Locate the nearest office by calling the WHD's toll-free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto WHD's website at http://www.dol.gov/whd/america2.htm for a nationwide listing of WHD district and area offices.

    SUPPLEMENTARY INFORMATION:

    On September 27, 2018, the Department published an NPRM and request for comments in the Federal Register (83 FR 48737), proposing to revise Hazardous Order Number 7 under the FLSA to allow for 16- or 17-year-olds to operate power-driven patient lifts. The NPRM also requested public comments on the NPRM on or before November 26, 2018. Not all supporting documents in the public docket may have been originally fully visible. That issue has now been addressed, however, and the documents are fully publicly viewable. In light of the above, and out of an abundance of caution, the Department has extended the period for submitting public comment to December 11, 2018.

    Bryan L. Jarrett, Acting Administrator, Wage and Hour Division.
    [FR Doc. 2018-24945 Filed 11-14-18; 8:45 am] BILLING CODE 4510-27-P
    LIBRARY OF CONGRESS Copyright Office 37 CFR Part 201 [Docket No. 2018-8] Noncommercial Use of Pre-1972 Sound Recordings That Are Not Being Commercially Exploited: Extension of Comment Period AGENCY:

    U.S. Copyright Office, Library of Congress.

    ACTION:

    Notice of inquiry; extension of comment period.

    SUMMARY:

    The Copyright Office is extending the deadline for the submission of written comments in response to its October 16, 2018 notice of inquiry regarding the Classics Protection and Access Act, title II of the recently enacted Orrin G. Hatch-Bob Goodlatte Music Modernization Act.

    DATES:

    The initial comment period for the notice of inquiry, published on October 16, 2018, is extended by an additional ten days. Initial comments must be made in writing and must be received in the U.S. Copyright Office no later than 11:59 p.m. Eastern Time on November 26, 2018. Written reply comments must be received no later than 11:59 p.m. Eastern Time on December 11, 2018.

    ADDRESSES:

    For reasons of government efficiency, the Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office's website at https://www.copyright.gov/rulemaking/pre1972-soundrecordings-noncommercial/. If electronic submission of comments is not feasible due to lack of access to a computer and/or the internet, please contact the Office using the contact information below for special instructions.

    FOR FURTHER INFORMATION CONTACT:

    Regan A. Smith, General Counsel and Associate Register of Copyrights, by email at [email protected], Anna Chauvet, Assistant General Counsel, by email at [email protected], or Jason E. Sloan, Assistant General Counsel, by email at [email protected] Each can be contacted by telephone by calling (202) 707-8350.

    SUPPLEMENTARY INFORMATION:

    On October 16, 2018, the U.S. Copyright Office issued a notice of inquiry (“NOI”) regarding the Classics Protection and Access Act, title II of the recently enacted Orrin G. Hatch-Bob Goodlatte Music Modernization Act.1 In connection with the establishment of federal remedies for unauthorized uses of sound recordings fixed before February 15, 1972 (“Pre-1972 Sound Recordings”), Congress established an exception for certain noncommercial uses of Pre-1972 Sound Recordings that are not being commercially exploited. To qualify for this exemption, a user must file a notice of noncommercial use after conducting a good faith, reasonable search to determine whether the Pre-1972 Sound Recording is being commercially exploited, and the rights owner of the sound recording must not object to the use within 90 days. To promulgate the regulations required by the new statute, the Office solicited comments regarding specific steps that a user should take to demonstrate she has made a good faith, reasonable search, as well as the filing requirements for the user to submit a notice of noncommercial use and for a rights owner to submit a notice objecting to such use.2

    1 83 FR 52176 (Oct. 16, 2018).

    2Id. at 52177-78.

    To ensure that members of the public have sufficient time to respond, and to ensure that the Office has the benefit of a complete record, the Office is extending the deadline for the submission of initial written comments to 11:59 p.m. Eastern Time on November 26, 2018. Written reply comments must be received no later than 11:59 p.m. Eastern Time on December 11, 2018. So that the Office is able to meet the statutory deadlines described in the NOI, no further extensions of time will be granted in this rulemaking.

    Dated: November 8, 2018. Catherine Rowland, Associate Register of Copyrights and Director of Public Information and Education.
    [FR Doc. 2018-24848 Filed 11-14-18; 8:45 am] BILLING CODE 1410-30-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2018-0696; FRL-9986-55-OAR] RIN 2060-AU33 Adopting Subpart Ba Requirements in Emission Guidelines for Municipal Solid Waste Landfills; Notice of Public Hearing AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of public hearing.

    SUMMARY:

    On October 30, 2018, the Environmental Protection Agency (EPA) published in the Federal Register a proposed rule titled “Adopting Subpart Ba Requirements in Emission Guidelines for Municipal Solid Waste Landfills.” The EPA is announcing that it will hold a public hearing on the proposed action and extend the comment period. The hearing will provide interested parties the opportunity to present data, views, or arguments concerning the proposed action. The comment period on the proposed action will be extended to January 3, 2019.

    DATES:

    The EPA will hold a public hearing on November 27, 2018, in Washington, DC. Please refer to the SUPPLEMENTARY INFORMATION section for additional information on the public hearing.

    Comments: The EPA must receive comments on this proposed action no later than January 3, 2019.

    ADDRESSES:

    The hearing will be held at the EPA WJC East Building, 1201 Constitution Avenue NW, Room #1117A & B, Washington, DC 20004. The hearing will convene at 9:00 a.m. local time and will conclude at 5:00 p.m. local time. There will be a lunch break from 12:00 p.m. to 1:00 p.m. The EPA will end the hearing 2 hours after the last registered speaker has concluded their comments.

    Because this hearing is being held at a U.S. government facility, individuals planning to attend the hearing should be prepared to show valid picture identification to the security staff in order to gain access to the meeting room. Please note that the REAL ID Act, passed by Congress in 2005, established new requirements for entering federal facilities. For purposes of the REAL ID Act, the EPA will accept government-issued IDs, including driver's licenses from the District of Columbia and all states and territories. Acceptable alternative forms of identification include: Federal employee badges, passports, enhanced driver's licenses, and military identification cards. For additional information for the status of your state regarding REAL ID, go to: https://www.dhs.gov/real-id-frequently-asked-questions. Any objects brought into the building need to fit through the security screening system, such as a purse, laptop bag, or small backpack. Demonstrations will not be allowed on federal property for security reasons.

    FOR FURTHER INFORMATION CONTACT:

    The EPA will begin pre-registering speakers for the hearing upon publication of this document in the Federal Register. To register to speak at the hearing, please use the online registration form available at https://www.epa.gov/stationary-sources-air-pollution/forms/public-hearing-proposal-adopt-subpart-ba-requirements or contact Virginia Hunt at (919) 541-0832 to register to speak at the hearing. The last day to pre-register to speak at the hearing will be November 21, 2018. By November 26, 2018, the EPA will post at https://www.epa.gov/stationary-sources-air-pollution/forms/public-hearing-proposal-adopt-subpart-ba-requirements a general agenda for the hearing that will list pre-registered speakers in approximate order. The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearing to run either ahead of schedule or behind schedule. Additionally, requests to speak will be taken the day of the hearing at the hearing registration desk. The EPA will make every effort to accommodate all speakers who arrive and register, although preferences on speaking times may not be able to be fulfilled.

    SUPPLEMENTARY INFORMATION:

    Each commenter will have 5 minutes to provide oral testimony. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically (via email) or in hard copy form.

    The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing. Commenters should notify Virginia Hunt if there are special needs related to providing comments at the hearing. Verbatim transcripts of the hearing and written statements will be included in the docket for the rulemaking.

    Please note that any updates made to any aspect of the hearing will be posted online at https://www.epa.gov/stationary-sources-air-pollution/forms/public-hearing-proposal-adopt-subpart-ba-requirements. While the EPA expects the hearing to go forward as set forth above, please monitor our website or contact Virginia Hunt at (919) 541-0832 or [email protected] to determine if there are any updates. The EPA does not intend to publish a document in the Federal Register announcing updates.

    The EPA will not provide audiovisual equipment for presentations unless we receive special requests in advance. Commenters should notify Virginia Hunt when they pre-register to speak that they will need specific equipment. If you require the service of a translator or special accommodations such as audio description, please pre-register for the hearing and describe your needs by November 21, 2018. We may not be able to arrange accommodations without advanced notice.

    Dated: November 9, 2018. Panagiotis Tsirigotis, Director, Office of Air Quality Planning and Standards.
    [FR Doc. 2018-24964 Filed 11-14-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Part 192 [Docket No. PHMSA-2018-0073] Pipeline Safety: Guidance on the Extension of the 7-year Integrity Management Reassessment Interval by 6 Months AGENCY:

    Pipeline and Hazardous Materials Safety Administration (PHMSA); DOT.

    ACTION:

    Request for comments.

    SUMMARY:

    PHMSA is publishing this document to seek public comments on frequently asked questions (FAQs) developed to provide guidance on what constitutes sufficient justification for an operator to request a 6-month extension to a gas pipeline's 7-year integrity management reassessment interval. This guidance, which consists of one revised and two new FAQs, will implement authority granted by Congress in Section 5(e) of the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (2011 Act).

    DATES:

    Interested persons are invited to submit comments on or before December 17, 2018.

    ADDRESSES:

    Comments should reference Docket No. PHMSA-2018-0073 and may be submitted in the following ways:

    E-gov website: http://www.regulations.gov. This site allows the public to enter comments on any Federal Register document issued by any agency.

    Fax: (202) 493-2251.

    Mail: Docket Management Facility; U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE, West Building, Room W12-140, Washington, DC 20590-0001.

    Hand Delivery: Room W12-140 on the ground level of the DOT's West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, Monday through Friday between 9 a.m. and 5 p.m. Eastern Standard Time (EST), except Federal holidays.

    Instructions: Identify the docket number, PHMSA-2018-0073, at the beginning of your comments. Please note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided. Anyone may search the electronic form of comments received for PHMSA dockets. You may review the DOT's complete Privacy Act Statement, 65 FR 19476, which was published in the Federal Register on April 11, 2000.

    Docket: For access to the docket or to read background documents or comments, go to http://www.regulations.gov at any time. You may also visit Room W12-140 on the ground level of the DOT's West Building, located at 1200 New Jersey Avenue SE, Washington, DC 20590-0001, Monday through Friday between 9 a.m. and 5 p.m. EST, except Federal holidays. If you wish to receive confirmation of receipt of your written comments, please include a stamped, self-addressed postcard with the following statement: “Comments on PHMSA-2018-0073.” The docket clerk will date stamp the postcard prior to returning it to you via the mail. Please note that, due to delays in the delivery of U.S. mail to Federal offices in Washington, DC, we recommend that you consider an alternative method (internet, fax, or professional delivery service) for submitting comments to the docket and ensuring their timely delivery to the DOT.

    Note: Privacy Act Statement: the DOT may solicit comments from the public regarding certain general notices. The DOT posts these comments without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS). This document can be reviewed at www.dot.gov/privacy.

    FOR FURTHER INFORMATION CONTACT:

    General: Ms. Nancy White by telephone at 202-366-1419, or email at [email protected]

    Technical: Mr. Kenneth Lee by telephone at 202-366-2694, or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Congress made several amendments to the pipeline safety statutes in the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (the 2011 Act). The Secretary of Transportation (the Secretary) has delegated to PHMSA the responsibility for implementing the changes resulting from the 2011 Act. Section 5, “Integrity Management,” paragraph (e), of the 2011 Act made a technical correction to the Federal pipeline safety statutes regarding the performance of integrity management assessments. As part of an operator's integrity management program, operators must assess pipelines in high-consequence areas for defects and anomalies at a minimum of once every 7 years. The technical correction clarified that the Secretary may extend such deadlines by an additional 6 months if the operator submits written notice to the Secretary with sufficient justification of the need for the extension.

    To implement this authority, PHMSA is issuing guidance on what constitutes sufficient justification to extend a gas pipeline operator's 7-year integrity management reassessment interval by up to 6 months if the operator submits written notice. PHMSA invites interested individuals to participate by reviewing the FAQs provided below and submitting written comments, data, or other information. Please include any comments on potential safety and environmental impacts that may result from issuance of the FAQs. Before finalizing the FAQs, PHMSA will evaluate all comments received on or before the comment closing date. PHMSA will consider all relevant comments we receive prior to the deadline when making changes to the final FAQs. Comments received after the closing date will be evaluated to the extent practicable.

    Once finalized, PHMSA's FAQs will be posted on PHMSA's public website at https://primis.phmsa.dot.gov/gasimp/faqs.htm:

    Guidance on the Extension of the 7-year Integrity Management Reassessment Interval by 6 Months (FAQs):

    NEW FAQ-281. How do I extend the assessment schedule beyond 7 years?

    Notify PHMSA, in accordance with 49 CFR 192.949, of the need for an extension, which may not exceed 6 months. The notification must be made 180 days prior to end of the 7-year assessment date and include sufficient information to justify the extension.

    NEW FAQ-282. What constitutes sufficient information to justify extension of the assessment interval?

    Documentation is required to comply with 49 CFR 192.943 and include:

    —An explanation as to why the deadline could not be met and how it will not compromise safety, and —Identification of any additional actions necessary to ensure public safety during the extension time period.

    REVISED FAQ-207. Table 3 of ASME/ANSI B31.8S indicates that reassessment intervals must be 5 years for some instances in which test pressure was higher than would be required by subpart J. If I conduct my assessments in accordance with Subpart J, must I reassess more frequently than once every 7 years?

    Section 192.939(a)(1) specifies requirements for establishing reassessment intervals. Two options are allowed: (i) Basing the interval on identified threats, assessment results, data integration, and risk analysis, or (ii) using the intervals specified in Table 3 of ASME/ANSI B31.8S. An operator using the former option (§ 192.939(a)(1)(i)) could establish intervals longer than those in Table 3. The intervals that can be established by either method are limited to the maximum intervals in the table in § 192.939.

    Pressure tests used as integrity management assessments must meet the requirements of Subpart J, including required test pressures. Higher test pressures must be used to justify extended reassessment intervals (§ 192.937(c)(2)). As used here “extended reassessment intervals” refers to any interval longer than 7 years as required by §§ 192.937(a) and 192.939(a) and (b).

    Operators conducting assessments by pressure testing and who use test pressures meeting Subpart J requirements may establish a reassessment interval of 7 years, unless their analysis under § 192.939(a)(i) indicates a need for a shorter interval. This is true even if Table 3 would lead to a shorter interval.

    Operators who use Table 3 test pressures may establish reassessment intervals in accordance with Table 3 up to the maximums listed in the table in § 192.939, again unless their analysis under § 192.939(a)(i) indicates a need for a shorter interval. Operators who establish intervals longer than 7 years must conduct a confirmatory direct assessment within the 7-year period. (For segments operating at less than 30% specified maximum yield strength, a low-stress reassessment per § 192.941 may be conducted in lieu of confirmatory direct assessment—see § 192.939(b)(1)).

    PHMSA may extend the 7-year interval for an additional 6 months if the operator submits written notice that includes sufficient justification regarding the need for an extension (Reference FAQ-281 and 282).

    Issued in Washington, DC, on November 7, 2018, under authority delegated in 49 CFR 1.97. Alan K. Mayberry, Associate Administrator for Pipeline Safety.
    [FR Doc. 2018-24774 Filed 11-14-18; 8:45 am] BILLING CODE 4910-60-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 180906820-8820-01] RIN 0648-BI48 Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; 2019 Specifications AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    NMFS proposes 2019 specifications for the summer flounder and black sea bass fisheries and maintains previously established 2019 specifications for the scup fishery. Additionally, this action proposes to reopen the February 2018 black sea bass recreational fishery and to adjust to the current commercial incidental possession limit for scup. The implementing regulations for the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan require us to publish specifications for the upcoming fishing year for each of these species and to provide an opportunity for public comment. This action is intended to inform the public of the proposed specifications and management measures for the start of the 2019 fishing year for these three species.

    DATES:

    Comments must be received on or before November 30, 2018.

    ADDRESSES:

    An environmental assessment (EA) was prepared for this action that describes the proposed measures and other considered alternatives, and provides an analysis of the impacts of the proposed measures and alternatives. Copies of the Summer Flounder, Scup, and Black Sea Bass 2019 Specifications, including the EA, are available on request from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 North State Street, Dover, DE 19901. These documents are also accessible via the internet at http://www.mafmc.org/s/SFSBSB_2019_specs_EA.pdf.

    You may submit comments on this document, identified by NOAA-NMFS-2018-0110, by either of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal.

    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0110,

    2. Click the “Comment Now!” icon, complete the required fields, and

    3. Enter or attach your comments.

    —OR—

    Mail: Submit written comments to Michael Pentony, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA, 01930. Mark the outside of the envelope, “Comments on the Proposed Rule for the Summer Flounder, Scup, and Black Sea Bass 2019 Specifications.”

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    FOR FURTHER INFORMATION CONTACT:

    Emily Gilbert, Fishery Policy Analyst, (978) 281-9244.

    SUPPLEMENTARY INFORMATION:

    General Background

    The Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission) cooperatively manage the summer flounder, scup, and black sea bass fisheries. The Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) and its implementing regulations outline the Council's process for establishing specifications. Specifications in these fisheries include various catch and landing subdivisions, such as the commercial and recreational sector annual catch limits (ACL), annual catch targets (ACT), and sector-specific landing limits (i.e., the commercial fishery quota and recreational harvest limit), as well as management measures, as needed, that are designed to ensure these catch limits will not be exceeded. Annual specifications may be established for three year periods, and, in interim years, specifications are reviewed by the Council to ensure previously established multi-year specifications remain appropriate. The FMP also contains formulas to divide the specification catch limits into commercial and recreational fishery allocations, state-by-state quotas, and quota periods, depending on the species in question. Rulemaking for measures used to manage the recreational fisheries (minimum fish sizes, open seasons, and bag limits) for these three species occurs separately, and typically takes place in the spring of each year.

    This action proposes 2019 specifications for summer flounder and black sea bass. The previously approved 2019 scup specifications (82 FR 60682; December 22, 2017) remain unchanged from the current two year specifications and are maintained through this action. The Council's Science and Statistical Committee (SSC) and Summer Flounder, Scup, and Black Sea Bass Monitoring Committee met in July 2018 to develop specification recommendations, including new acceptable biological catch limits (ABC) for summer flounder and black sea bass. The Council and the Commission's Summer Flounder, Scup, and Black Sea Bass Management Board (Board) met jointly August 14-15, 2018, to consider the SSC and Monitoring Committee's recommendations, receive public comments on those recommendations, and to formalize recommendations to the NMFS for catch limit specifications and commercial management measures. Recreational fishery management measures will be developed in early 2019. A summer flounder benchmark assessment, which will incorporate updated Marine Recreational Information Program (MRIP) data, is expected to be completed by early 2019. Operational assessments for black sea bass and scup that will also incorporate updated MRIP information will be completed in spring 2019. Because of this, the Council and Board have only recommended specifications for 2019. As explained below, the Council and Board are considering the specifications here as interim measures and will likely develop mid-year changes to the summer flounder specifications, if not also black sea bass, to address the updated assessment information, if necessary.

    Proposed 2019 Summer Flounder Specifications

    In June, the Northeast Fisheries Science Center (Center) provided the Council with a summer flounder data update. The data update provided a projection for stock biomass for 2019. Most state and Federal survey indices of abundance, with the exception of Massachusetts and Delaware, remain below their most recent peaks (generally 2009-2012) in the update. Recruitment indices in 2017 were highly variable. Based on the best available scientific information, the summer flounder stock is subject to overfishing but is not overfished. After reviewing the update, the SSC and Monitoring Committee recommended an interim ABC of 15.41 million lb (6,990 mt).

    At the joint August meeting, the Council and Board made recommendations for interim summer flounder specifications for the start of the 2019 fishing year (Table 1). Compared to 2018, the proposed interim 2019 ABC is a 16-percent increase. The results from the benchmark stock assessment are expected to be available in early 2019 following peer review in November 2018. The Council and Board intend to consider revising the 2019 summer flounder specifications at a joint meeting in February 2019 taking into account the benchmark stock assessment. If revisions are recommended at this meeting, we anticipate updated catch limits could be in place by early May 2019.

    Table 1—Current 2018 and Proposed 2019 Summer Flounder Specifications 2018 (current) million lb mt 2019 million lb mt Difference
  • (%)
  • Overfishing Limits (OFL) 18.69 8,476 20.60 9,344 10 ABC 13.23 5,999 15.41 6,990 16 Commercial ACL 7.70 3,491 9.18 4,164 19 Commercial ACT 7.70 3,491 9.18 4,164 19 Projected Commercial Discards 1.07 485 1.47 667 2 Commercial Quota 6.63 3,006 7.72 3,502 16 Recreational ACL 5.53 2,508 6.22 2,821 12 Recreational ACT 5.53 2,508 6.22 2,821 12 Projected Recreational Discards 1.11 504 1.08 490 −3 Recreational Harvest Limit 4.42 2,004 5.15 2,336 16
    2019 Summer Flounder Commercial Non-Landing Accountability Measure

    Our final 2017 catch accounting shows that the 2017 commercial fishery exceeded its ACL by 21 percent and the 2017 ABC was exceeded by 7 percent, due to higher than expected discards in the commercial fishery. Currently, the regulations require a pound-for-pound accountability measure (AM) that is applied to the commercial ACT when the ACL has been exceeded and the overage is caused by higher discards than those estimated prior to the fishing year. A final rule for a framework adjustment (Framework 13) that would modify this AM published on October 25, 2018 (83 FR 53825), and will be effective on November 26, 2018. That action adjusts this non-landings based AM to help account for the variability in commercial discard estimates and provide additional flexibility based on stock status and the biological consequences, if any, of estimated discard overages. In terms of impacts of the 2017 discard overage for 2019, the AM as modified by the pending framework would result in a scaled payback against the commercial fishery's ACT, based on the amount of the overage and the status of the summer flounder stock, using the most recent biological reference points.

    Based on the 2016 assessment update, this scaled payback would be 1.04 million lb (472 mt). This overage, when applied to the proposed 2019 commercial ACT of 9.18 million lb (3,502 mt), would result in a commercial quota of 6.67 million lb (3,030 mt), after subtracting the 2019 projected estimated discards. The resulting quota is less than one percent higher than the 2018 quota.

    Proposed 2019 Commercial State Quota Shares

    Table 2 presents the proposed state summer flounder allocations for 2019 using the commercial state quota allocations described in the FMP. Any commercial quota adjustments to account for commercial landings overages will be published in the final specification rule prior to the start of the respective fishing year.

    Table 2—2019 Proposed Initial Summer Flounder State Commercial Quotas State FMP Percent share 2019 Initial quota lb kg 2019 Initial quota, including AM accounting for 2017 non-landings overages
  • (using AM as modified by Framework 13)
  • lb kg
    ME 0.04756 3,672 1,665 3,172 1,439 NH 0.00046 36 16 31 14 MA 6.82046 526,540 238,834 454,925 206,350 RI 15.68298 1,210,726 549,176 1,046,055 474,482 CT 2.25708 174,247 79,037 150,547 68,287 NY 7.64699 590,348 267,777 510,054 231,357 NJ 16.72499 1,291,169 585,665 1,115,557 506,008 DE 0.01779 1,373 623 1,187 538 MD 2.0391 157,419 71,404 136,008 61,692 VA 21.31676 1,645,654 746,456 1,421,828 644,930 NC 27.44584 2,118,819 961,080 1,830,638 830,363 Total 100 7,720,000 3,501,733 6,670,000 3,025,461 Note: Kilograms are as converted from lb and do not sum to the converted total due to rounding. Rounding of quotas results in totals slightly exceeding 100 percent.

    The Council and Board recommended no adjustment to the commercial minimum fish size (14-inch (35.6 cm) total length), gear requirements, and possession limits. The Council and Board will develop recreational management measures (i.e., minimum fish sizes, open seasons, and bag limits) for summer flounder this fall and NMFS rulemaking will occur in early spring of 2019.

    Proposed 2019 Black Sea Bass Specifications

    At the August meeting, the Council and Board made recommendations for the 2019 black sea bass specifications, but for reasons outlined below, we propose maintaining status quo measures currently in place for 2018.

    In June 2018, the Center provided the Council with a black sea bass data update, including updated catch, landings, and survey indices through 2017. Black sea bass biomass continues to be high and the 2015 year class appears to be above average in both the northern and southern surveys. Updated stock status information and biomass projections incorporating data on the 2015 year class are not available, but will be once the operational assessment is completed in April 2019.

    The SSC recommended a 2019 ABC of 7.97 million lb (3,615 mt), which was based on biomass projections from the 2016 benchmark stock assessment. This ABC would be an 11-percent reduction compared to the 2018 ABC. This declining pattern of ABCs reflects the population responding to fishing at maximum sustainable yield and the decrease of the large 2011 year class, but does not incorporate the information on the 2015 year class. Based on this ABC recommendation, the Council and Board recommended the 2019 specifications outlined in Table 3.

    Following the Council and Board meeting, the Center performed a sensitivity analysis of the 2019 projection derived from the 2016 benchmark stock assessment. As previously described, that projection did not include the 2015 year class because those fish were too small to be widely captured in the surveys at the time of the 2016 assessment. This sensitivity analysis used various recruitment scenarios applied to the original projection and compared them to the most recent survey indices. The objective of this analysis was to see if that projection would have supported different specifications for 2019 had we been able to incorporate what we know now about the strength of the 2015 year class. The results suggest that the 2015 year class would only have to be about 50 percent above average to allow for 2019 catch limits to be the same as what they were in 2018. Based on a comparison between the Center's 2018 spring survey results and average recruitment from 2003-2018, the 2015 year class appears to be well more than 50 percent above average. Based on this information, we propose maintaining status quo black sea bass specifications for 2019 (Table 3).

    Table 3—Proposed 2019 Black Sea Bass Specifications [In millions of lb] Proposed NMFS Recommendation (Status Quo 2018) million lb mt Council and Board
  • Recommendation
  • million lb mt
    OFL 10.29 4,667 9.18 4,164 ABC 8.94 4,055 7.97 3,615 Commercial ACL 4.35 1,974 3.88 1,760 Commercial ACT 4.35 1,974 3.88 1,760 Projected Commercial Discards 0.83 377 0.74 336 Commercial Quota 3.52 1,596 3.14 1,424 Recreational ACL 4.59 2,083 4.10 1,860 Recreational ACT 4.59 2,083 4.10 1,860 Projected Recreational Discards 0.93 422 0.83 376 Recreational Harvest Limit 3.66 1,661 3.27 1,483

    Maintaining status quo would allow for stability in the black sea bass commercial and recreational fisheries while we wait for the results of the MRIP operational assessment to be completed in April 2019. Once that information is available, the Council and Board may recommend adjusting black sea bass measures mid-year.

    The Council and Board recommended no adjustment to the commercial minimum fish size (11-inch (27.9 cm) total length), gear requirements, and possession limits.

    Recreational Black Sea Bass Wave 1 Fishery

    This action also proposes reopening the black sea bass recreational fishery for the month of February (during MRIP Wave 1). The current Federal black sea bass recreational management measures (i.e., a 12.5-inch (31.8-cm) minimum size and a possession limit of 15 fish) would apply to the fishery for this limited winter season. The intent of this action is to allow for some recreational fishing access during a portion of Wave 1 in 2019.

    There are currently no MRIP survey estimates collected for Wave 1, but catch from this time period must be accounted for, and count against the recreational harvest limit. Similar to last year, to account for the harvest during this 28-day season, the Council and Board recommended a catch estimate of 100,000 lb (45.3 mt). States that decide to participate in the Wave 1 fishery must account for this catch when developing their management measures for the remainder of the fishing year. Only two states participated in the 2018 February recreational fishery. The estimated catch was nominal. Measures for the rest of the 2019 recreational fishery will be developed through the winter for implementation in spring 2019.

    2019 Scup Specifications

    The scup fishery is currently operating under multi-year specifications projected through 2019. The Council received a data update indicating that biomass continues to be high, and the 2015 year class appears to be above average. In response, the Council and Board made no adjustments to the previously implemented multi-year specifications set in August 2017. This action reaffirms the Council's and Board's previous recommendation for scup 2019 specifications. Those specifications result in the same commercial quota and recreational harvest limit as implemented in 2018 (Table 4).

    Table 4—Scup Specifications for 2019 million lb mt OFL 41.03 18,612 ABC 36.43 16,525 Commercial ACL 28.42 12,890 Commercial ACT 28.42 12,890 Commercial Discards 4.43 2,011 Commercial Quota 23.98 10,879 Recreational ACL 8.01 3,636 Recreational ACT 8.01 3,636 Recreational Discards 0.65 293 Recreational Harvest Limit 7.37 3,342

    The 2019 scup commercial quota is divided into three commercial fishery quota periods, as outlined in Table 5.

    Table 5—Commercial Scup Quota Allocations for 2019 by Quota Period Quota period Percent
  • share
  • 2019 Initial quota lb mt
    Winter I 45.11 10,820,000 4,908 Summer 38.95 9,340,986 4,237 Winter II 15.94 3,822,816 1,734 Total 100.0 23,983,802 10,879 Note: Metric tons are as converted from lb and may not necessarily total due to rounding.

    The current quota period possession limits are not changed by this action, and are outlined in Table 6. The Winter I possession limit will drop to 1,000 lb (454 kg) upon attainment of 80 percent of that period's allocation. If the Winter I quota is not fully harvested, the remaining quota is transferred to Winter II. The Winter II possession limit may be adjusted (in association with a transfer of unused Winter I quota to the Winter II period) via notice in the Federal Register. The regulations specify that the Winter II possession limit increases consistent with the increase in the quota, as described in Table 7.

    Table 6—Commercial Scup Possession Limits by Quota Period Quota period Percent share Federal possession limits (per trip) lb kg Winter I 45.11 50,000 22,680 Summer 38.95 N/A N/A Winter II 15.94 12,000 5,443 Total 100.0 N/A N/A Table 7—Potential Increase in Winter II Possession Limits Based on the Amount of Unused Scup Rolled Over From Winter I to Winter II Initial Winter II possession limit lb kg Rollover from Winter I to Winter II lb kg Increase in Initial Winter II
  • possession limit
  • lb kg Final Winter II
  • possession limit
  • after rollover from
  • Winter I to Winter II
  • lb kg
    12,000 5,443 0-499,999 0-226,796 0 0 12,000 5,443 12,000 5,443 500,000-999,999 226,796-453,592 1,500 680 13,500 6,123 12,000 5,443 1,000,000-1,499,999 453,592-680,388 3,000 1,361 15,000 6,804 12,000 5,443 1,500,000-1,999,999 680,389-907,184 4,500 2,041 16,500 7,484 12,000 5,443 * 2,000,000-2,500,000 907,185-1,133,981 6,000 2,722 18,000 8,165 * This process of increasing the possession limit in 1,500 lb (680 kg) increments would continue past 2,500,000 lb (1,122,981 kg), but we end here for the purpose of this example.
    Adjustment to the Commercial Scup Gear-Based Possession Limit Thresholds

    This action proposes adjustments to the gear-based incidental possession limit for the commercial fishery. The incidental possession limit applies to vessels with commercial moratorium scup permits fishing with nets with diamond mesh smaller than 5 inches (12.7 cm) in diameter. The incidental possession limit is currently 1,000 lb (454 kg) during October 1-April 30 and 200 lb (91 kg) during May 1-September 30. The action would add another threshold period from April 15-June 15 to allow for higher retention in the small-mesh squid fishery that operates during that time and occasionally catches larger amounts of scup than the current limits allow to be landed (Table 8). During that time, vessels with scup moratorium permits using small mesh could land up to 2,000 lb (907 kg) of scup.

    EP15NO18.002

    The Council and Board made no adjustments to the current commercial minimum fish size (9-inch (22.9-cm) total length) and winter quota period directed-fishery possession limits.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

    This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The Mid-Atlantic Fishery Management Council conducted an evaluation of the potential socioeconomic impacts of the proposed measures in conjunction with an environmental assessment. According to the commercial ownership database, 771 affiliate firms landed summer flounder and/or black sea bass during the 2015-2017 period, with 762 of those business affiliates categorized as small businesses and nine categorized as large businesses. Summer flounder and black sea bass represented approximately 4 percent of the average receipts of the small entities and 1 percent for large entities considered over this time period.

    The ownership data for the for-hire fleet indicate that there were 869 for-hire affiliate firms with summer flounder and/or black sea bass permits generating revenues from recreationally fishing, all of which are categorized as small businesses. Although it is not possible to derive what proportion of the overall revenues came from specific fishing activities, given the popularity of these three species as recreational targets it is likely that revenues generated from these species are important for some, if not all, of these firms.

    For the summer flounder fishery, the proposed measures would increase both the 2019 commercial quota and the 2019 recreational harvest limit. Even though there will be an AM applied to the commercial summer flounder fishery, the resulting commercial quota will still be a slight increase from 2018. For the black sea bass fishery, the proposed measures would result in a 2019 commercial quota and a 2019 recreational harvest limit that are identical to what was in place for 2018. As a result, this action is not expected to adversely impact revenues for vessels that fish for summer flounder and black sea bass commercially. The increase in the summer flounder recreational harvest limit does not directly impact the party/charter fishery. Future regulatory action may be needed to adjust current summer flounder, black sea bass, and scup recreational management measures (i.e., bag limits, seasons, and minimum sizes), and consideration of the impact of those potential future measures on small entities engaged in the for-hire fishery will be evaluated at that time, should such a regulatory action become necessary.

    Because this rule will not have a significant economic impact on a substantial number of small entities, an initial regulatory flexibility analysis is not required and none has been prepared. There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action.

    List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: November 9, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:

    PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 648.125, paragraphs (a)(1) and (a)(5) are revised to read as follows:
    § 648.125 Scup gear restrictions.

    (a) * * * (1) Minimum mesh size. No owner or operator of an otter trawl vessel that is issued a scup moratorium permit may possess more than 1,000 lb (454 kg) of scup from October 1 through April 14, more than 2,000 lb (907 kg) from April 15 through June 15, or more than 200 lb (91 kg) of scup from June 16 through September 30, unless fishing with nets that have a minimum mesh size of 5.0-inch (12.7-cm) diamond mesh, applied throughout the codend for at least 75 continuous meshes forward of the terminus of the net, and all other nets are stowed and not available for immediate use as defined in § 648.2.

    (5) Stowage of nets. The owner or operator of an otter trawl vessel retaining 1,000 lb (454 kg) or more of scup from October 1 through April 14, 2,000 lb (907 kg) or more of scup from April 15 through June 15, or 200 lb (90.7 kg) or more of scup from June 16 through September 30, and subject to the minimum mesh requirements in paragraph (a)(1) of this section, and the owner or operator of a midwater trawl or other trawl vessel subject to the minimum size requirement in § 648.126, may not have available for immediate use any net, or any piece of net, not meeting the minimum mesh size requirement, or mesh that is rigged in a manner that is inconsistent with the minimum mesh size. A net that is stowed and not available for immediate use as defined in § 648.2, and that can be shown not to have been in recent use, is considered to be not available for immediate use.

    3. Section 648.146 is revised to read as follows:
    § 648.146 Black sea bass recreational fishing season.

    Vessels that are not eligible for a moratorium permit under § 648.4(a)(7), and fishermen subject to the possession limit specified in § 648.145(a), may only possess black sea bass from February 1 through February 28, May 15 through December 31, unless this time period is adjusted pursuant to the procedures in § 648.142.

    [FR Doc. 2018-24946 Filed 11-14-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 151124999-8985-01] RIN 0648-BF57 Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Approval of New Gear Under Small-Mesh Fisheries Accountability Measures AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    We propose to approve new selective trawl gear for use in several non-groundfish fisheries when subject to the Georges Bank yellowtail flounder accountability measure. The proposed selective gear would reduce bycatch of groundfish species, while allowing the target fisheries to continue operating when selective trawl gear is required. Approving this selective trawl gear would provide the fishing industry with more flexibility because there are limited selective trawl gears currently approved for use. We also propose to disapprove the use of this gear in the southern windowpane accountability measure areas.

    DATES:

    Written comments must be received on or before December 17, 2018.

    ADDRESSES:

    You may submit comments, identified by NOAA-NMFS-2018-0119, by either of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal eRulemaking Portal.

    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0119;

    2. Click the “Comment Now!” icon and complete the required fields; and

    3. Enter or attach your comments.

    Mail: Submit written comments to Michael Pentony, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on the Proposed Rule for Selective Gear.”

    Instructions: All comments received that were timely and properly submitted are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. We will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by us.

    FOR FURTHER INFORMATION CONTACT:

    Emily Keiley, Fishery Management Specialist, phone: (978) 281-9116; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    The Northeast Multispecies Fishery Management Plan (FMP) requires the use of selective trawl gear in certain times and areas. The FMP specifies the list of selective trawl gear that meet the required selectivity standards. The FMP also authorizes NMFS to approve additional selective gear, at the request of the New England Fishery Management Council, if the gear meets the regulatory requirements for new selective gear. The regulations (§ 648.85(b)(6)(iv)(J)(2)(i)) require that new selective gear must either: Demonstrate a statistically significant reduction in catch of at least 50 percent, by weight, on a trip-by-trip basis, of each regulated species stock of concern, or, catch of stocks of concern must be less than 5 percent of the total catch of regulated groundfish (by weight, on a trip-by-trip basis). The Council submitted two requests to add the large-mesh belly panel to the list of approved selective gears: (1) For the Georges Bank yellowtail accountability measure (AM); and (2) for the southern windowpane AM.

    The small-mesh trawl fishery (e.g., whiting and squid) has a sub-annual catch limit (sub-ACL) and AM for Georges Bank yellowtail flounder. If catch exceeds the sub-ACL, the AM requires small-mesh trawl vessels to use selective trawl gear that reduces flatfish catch in certain areas for the subsequent fishing year.

    Southern windowpane flounder is allocated to three fishery components: Groundfish; scallops; and, other non-groundfish fisheries. The other (non-groundfish) component is primarily the scup, fluke, squid, and whiting fisheries. If the AM for the other (non-groundfish) component is triggered, vessels fishing with any trawl gear with a codend mesh size greater than, or equal to 5 in (12.7 cm), are required to use one of the approved selective trawl gears to reduce flatfish bycatch in certain areas in Southern New England in a subsequent year.

    The selective trawl gears approved for use under these AMs are: Haddock separator trawl; Ruhle trawl; and rope separator trawl. When we adopted the AMs for the non-groundfish fisheries, many industry members expressed concern that the selective trawl gears currently approved for use were not suitable for their fisheries. To address this concern, Cornell University conducted a series of studies to test the effectiveness of a new selective gear, the large-mesh belly panel, in several non-groundfish fisheries. The experimental gear included a large-mesh panel to replace the first bottom belly of the trawl net that allows flatfish such as windowpane and yellowtail flounder to escape.

    Cornell University conducted two studies in 2014 to investigate using a large-mesh belly panel in a small-mesh trawl net typical of those used in the squid and whiting fisheries on Georges Bank. Both experiments demonstrated a statistically significant reduction in catch of more than 50 percent of Georges Bank yellowtail flounder on a trip-by-trip basis, as required by regulations, without a significant reduction in squid and whiting catch. These studies also demonstrated that the large-mesh belly panel reduced catch, by more than 50 percent per trip, of stocks that are overfished or subject to overfishing.

    Cornell University conducted an additional study in 2015 to investigate using a large-mesh belly panel in a trawl net typical of those used in the scup fishery in southern New England waters. The experiment demonstrated a statistically significant reduction in southern windowpane flounder catch of more than 50 percent, without a significant reduction in catch of legal-sized scup. Catch in the large-mesh belly panel gear was compared to catch in the standard net, and three regulated stocks of concern were caught in significant numbers in the standard net. The percent reduction by trip, and the mean percent reduction, for each species is presented in Table 1; trips that do not meet the 50 percent reduction standard are highlighted in gray. Catches, on average, of yellowtail and winter flounder were only reduced by 48 percent when the large-mesh belly panel was used.

    EP15NO18.001 Proposed Action

    Based on the results of the studies described above (copies available from NMFS at the mailing address listed under ADDRESSES), we have preliminarily determined that the large-mesh belly panel meets the necessary gear performance standards for use in the Georges Bank yellowtail AM area, and we are proposing to approve the use of this gear in that area. The large-mesh belly panel would be added to the list of three existing selective gears currently authorized for use in the Georges Bank yellowtail AM area. We have also preliminarily determined that the large-mesh belly panel does not meet the gear standard in the southern windowpane AM area, and we are proposing to disapprove its use in that area.

    This action would define the large-mesh belly panel in the regulations in § 648.80. The proposed gear specifications included in this rule are based on the experimental gear used in the Cornell studies. The experimental selective gear was a 4-seam 3-bridal otter trawl, modified to include a large-mesh panel to replace the first bottom belly that allows escapement of flatfish. The large-mesh panel was made from 5 mm (3/16 in) poly webbing and the mesh size was approximately 32 in (81.3 cm) knot-center to knot-center diamond mesh. The panel was two meshes deep and was sewn into the standard mesh of the first bottom belly using a “saw-toothing” technique. This resulted in an effective area for fish escapement of three full 32-in (81.3-cm) meshes, or an opening in the belly of the net that is approximately 8 ft (2.4 m) deep from front to back. The large-mesh belly panel was attached approximately 1 ft (30.5 cm) behind the footrope and extended widthwise across the entire belly of the net (from gore to gore). Because it is important that the large-mesh belly panel gear definition balance the conservation requirements and adaptability of the gear modifications across multiple fisheries, we are requesting specific comments on this gear configuration.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the National Marine Fisheries Service (NMFS) Assistant Administrator has made a preliminary determination that this proposed rule is consistent with Framework 51, other provisions of the Magnuson-Stevens Act, and other applicable law. In making the final determination, we will consider the data, views, and comments received during the public comment period.

    This proposed rule has been determined to be not significant for purposes of Executive Order (E.O.) 12866.

    This proposed rule does not contain policies with Federalism or takings implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual determination for this determination is as follows.

    The Council requested that we approve a new selective trawl gear (the large-mesh belly panel) for use in several non-groundfish fisheries to reduce groundfish bycatch. For some stocks, non-groundfish fisheries have an AM that requires the use of selective trawl gear when the ACL has been exceeded. Most of the approved selective trawls are not designed for use in these fisheries, and the large-mesh belly panel would provide these fisheries a better alternative than what is currently available. The requirement to use selective trawl gear was adopted in 2013. This rule would provide vessels an alternative selective gear for meeting that requirement, which would provide additional fishing opportunities, increase operational flexibility, and improve economic efficiency. This action is necessary to allow the fisheries to more effectively harvest its optimum yield, while continuing to reduce bycatch of windowpane and yellowtail flounder. This action seeks to fulfill the purpose and need while meeting the overarching goals and objectives of the Northeast Multispecies FMP.

    For purposes of the Regulatory Flexibility Act, NMFS established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. The determination of whether the entity is large or small is based on the average annual revenue for the most recent 3 years for which data are available (in this case, from 2014 through 2016).

    The small-mesh exempted fishery allows vessels to harvest species in designated areas using mesh sizes smaller than the minimum mesh size required by Regulated Mesh Area regulations. To participate in the small-mesh multispecies exempted fishery, vessels must possess either a limited access multispecies permit (categories A, C, D, E, or F) or an open access multispecies permit (category K). Limited access multispecies permit holders can target small-mesh multispecies with different possession limit requirements depending on fishing region and mesh size used. Open access, Category K permit holders may fish for small-mesh multispecies when participating in an exempted fishing program. Therefore, entities holding one or more multispecies permits (permit type A, C-F, K) are the entities that have the potential to be directly impacted by this action. According to the commercial database, there were 853 distinct ownership entities, based on entities' participation during the 2014-2016 time-period, that could potentially target small-mesh multispecies. This includes entities that could not be classified into a business type because they did not earn revenue from landing and selling fish in 2014-2016 and thus are considered to be small. Of the 853 total firms, 844 are categorized as small business entities and 9 are categorized as large businesses. While 853 commercial entities have the potential to be impacted by the proposed action, not all of these entities actively land small-mesh multispecies for commercial sale. There are 406 distinct entities that commercially sold small-mesh multispecies from 2014-2016 and may be directly affected by the proposed action. Of those, 404 are categorized as small businesses.

    The measures proposed are expected to have a positive economic effect on small entities. It could increase catch of target stocks, in a scenario when fishing would otherwise be prohibited. Providing increased fishing opportunities should increase landings and profits. This action is not expected to have a significant or substantial effect on small entities. The effects on the regulated small entities identified in this analysis are expected to be positive relative to the no action alternative, in which this new selective trawl gear would not be added to the list of approved selective gears. Under the proposed action, small entities would not be placed at a competitive disadvantage relative to large entities, and the regulations would not reduce the profit for any small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

    This proposed rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement will be submitted to OMB for approval. Public reporting burden for the selection of the gear code is estimated to average one minute per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

    Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS at the ADDRESSES above, and by email to [email protected] or fax to (202) 395-7285.

    Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

    List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: November 9, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons stated in the preamble, 50 CFR part 648 is proposed to be amended as follows:

    PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 648.84, add paragraph (f) to read as follows:
    § 648.84 Gear-marking requirements and gear restrictions.

    (f) Large-mesh belly panel trawl. A large-mesh belly panel trawl is defined as a four-seam bottom trawl net (i.e., a net with a top and bottom panel and two side panels) modified to include a large-mesh panel to replace the first bottom belly, as further specified in paragraphs (f)(1) and (2) of this section.

    (1) Mesh size. The minimum mesh size applied throughout the body of the trawl, as well as the codend mesh size, must be consistent with mesh size requirements specified in § 648.80. If a vessel is fishing in an exemption area or an exempted fishery, it must comply with all of the requirements and conditions of the exemption.

    (2) Large-mesh belly panel. The large-mesh belly panel must have a minimum mesh size of 30 in (76.2 cm) measured using the standard defined in § 648.80(f)(2). The width of the panel must extend the full width of the bottom panel (i.e., from one bottom gore to the other bottom gore). The depth must be at least 90 in (228.6 cm) and at least 3 meshes deep (2 meshes deep with a 15-in (38.1-cm) sewing seam on top and bottom). No more than six meshes of the small-mesh net may be left behind the sweep, before the large-mesh panel is sewn in.

    3. In § 648.90, revise paragraph (a)(5)(v), to read as follows:
    § 648.90 NE multispecies assessment, framework procedures, and specifications, and flexible area action system.

    (a) * * *

    (5) * * *

    (v) AM if the small-mesh fisheries GB yellowtail flounder sub-ACL is exceeded. If NMFS determines that the sub-ACL of GB yellowtail flounder allocated to the small-mesh fisheries, pursuant to paragraph (a)(4)(iii)(G) of this section, is exceeded, NMFS shall implement the AM specified in this paragraph consistent with the Administrative Procedures Act. The AM requires that small-mesh fisheries vessels, as defined in paragraph (a)(4)(iii)(G)(1) of this section, use one of the following approved selective trawl gear in the GB yellowtail flounder stock area, as defined at § 648.85(b)(6)(v)(H): A haddock separator trawl, as specified in § 648.85(a)(3)(iii)(A); a Ruhle trawl, as specified in § 648.85(b)(6)(iv)(J)(3); a rope separator trawl, as specified in § 648.84(e); a large-mesh belly panel trawl, as specified in § 648.84(f); or any other gear approved consistent with the process defined in § 648.85(b)(6). If reliable information is available, the AM shall be implemented in the fishing year immediately following the year in which the overage occurred only if there is sufficient time to do so in a manner consistent with the Administrative Procedures Act. Otherwise, the AM shall be implemented in the second fishing year after the fishing year in which the overage occurred. For example, if NMFS determined after the start of Year 2 that the small-mesh fisheries sub-ACL for GB yellowtail flounder was exceeded in Year 1, the applicable AM would be implemented at the start of Year 3. If updated catch information becomes available subsequent to the implementation of an AM that indicates that an overage of the small-mesh fisheries sub-ACL did not occur, NMFS shall rescind the AM, consistent with the Administrative Procedure Act.

    [FR Doc. 2018-24975 Filed 11-14-18; 8:45 am] BILLING CODE 3510-22-P
    83 221 Thursday, November 15, 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 what types of technologies are used on farms during a specified reference period. This clearance will allow NASS to conduct surveys in a timely manner for the cooperating institutions providing funding for the 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: Farm Technology Survey.

    OMB Control Number: 0535-NEW.

    Type of Request: Intent to seek approval to conduct a new information collection 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 Farm Technology Survey will collect information from farmers regarding what types of technologies are used during a specified reference period. These technologies will include both physical and non-physical types such as tablets, applications, automatic sensors, etc. The collected data will be used by State Departments of Agriculture and Land Grant Universities to determine the need for providing assistance to farmers and ranchers to fulfill their technology needs, indicated by the data. These surveys will be conducted through cooperative agreements with State Departments of Agriculture and/or universities; with the cooperators providing the funding.

    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 15 minutes. The estimated sample size will be approximately 2,000. 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 and ranchers.

    Estimated Number of Respondents: Approximately 2,000 annually.

    Frequency of Responses: On occasion.

    Estimated Total Burden on Respondents: Approximately 600 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 31, 2018. Kevin L. Barnes, Associate Administrator.
    [FR Doc. 2018-24918 Filed 11-14-18; 8:45 am] BILLING CODE 3410-20-P
    DEPARTMENT OF AGRICULTURE National Agricultural Statistics Service Notice of Intent To Request Revision and Extension of a Currently Approved 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 request revision and extension of a currently approved information collection, the Generic Clearance for Survey Research Studies. Burden hours and number of contacts will be increased to accommodate the proposed testing for the upcoming three year period.

    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 0535-0248, 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) 720-2707. 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 omboffic[email protected]

    SUPPLEMENTARY INFORMATION:

    Title: Generic Clearance to Conduct Survey Research Studies.

    OMB Control Number: 0535-0248.

    Type of Request: To revise and extend a currently approved information collection for a period of three years.

    Abstract: The National Agricultural Statistics Service (NASS) of the United States Department of Agriculture (USDA) will request approval from the Office of Management and Budget (OMB) for a generic clearance that will allow NASS to rigorously develop, test, and evaluate its survey instruments and methodologies. The primary objectives of the National Agricultural Statistics Service are to prepare and issue State and national estimates of crop production, livestock production, economic statistics, and environmental statistics related to agriculture and to conduct the Census of Agriculture. This request is part of an on-going initiative to improve NASS surveys, as recommended by both its own guidelines and those of OMB.

    In the last decade, state-of-the art techniques have been increasingly instituted by NASS and other Federal agencies and are now routinely used to improve the quality and timeliness of survey data and analyses, while simultaneously reducing respondents' cognitive workload and burden. The purpose of this generic clearance is to allow NASS to continue to adopt and use these state-of-the-art techniques to improve its current data collections efforts. These tests will also be used to aid in the development of new surveys.

    NASS envisions using a variety of survey improvement techniques, as appropriate to the individual project under investigation. These include focus groups, cognitive and usability laboratory and field techniques, exploratory interviews, behavior coding, respondent debriefing, pilot surveys, and split-panel tests. After obtaining participants' permission, NASS plans to audio-record some cognitive interviews and usability interviews, in order to allow for more complete and accurate summaries of these qualitative interviews. This is a standard procedure for cognitive interviews and usability interviews at many other survey organizations, including Federal agencies. The consent form would be used for audio recording some cognitive interviews and usability interviews for research purposes. For these types of interviews, there will be no collection of Personally Identifiable Information (PII) or any identifying information about the operator or operation.

    In addition to the testing techniques listed above NASS will be including parallel testing with this renewal request. NASS is investigating methodologies using additional sources of farm operators (including web scraping). These methodologies will be tested against the NASS's current multi-frame methodology.

    Following standard OMB requirements NASS will submit a change request to OMB individually for each survey improvement project it undertakes under this generic clearance and provide OMB with a copy of the questionnaire (if one is used), and all other materials describing the project.

    Authority: These data will be collected under the 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, 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. 104-13) and Office of Management and Budget regulations at 5 CFR part 1320. Participation in all surveys and studies conducted under this approval will be voluntary.

    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 these collections of information is estimated to average from 15 minutes to 1.5 hours per respondent, dependant upon the survey and the technique used to test for that particular survey. The overall average is estimated to be 0.45 hours per response.

    Respondents: Farmers, ranchers, farm managers, farm contractors, agri-businesses, and households.

    Estimated Number of Respondents: 50,000.

    Frequency of Responses: On occasion.

    Estimated Total Annual Burden: 22,000 hours.

    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, November 1, 2018. Kevin L. Barnes, Associate Administrator.
    [FR Doc. 2018-24917 Filed 11-14-18; 8:45 am] BILLING CODE 3410-20-P
    DEPARTMENT OF AGRICULTURE Rural Business-Cooperative Service Notice of Revision of a Currently Approved Information Collection AGENCY:

    Rural Business-Cooperative Service, USDA.

    ACTION:

    Proposed collection; comments requested.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Business-Cooperative Service's intention to request an extension for a currently approved information collection.

    DATES:

    Comments on this notice must be received by January 14, 2019 to be assured of consideration.

    FOR FURTHER INFORMATION CONTACT:

    Thomas Dickson, Rural Development Innovation Center—Regulatory Team, U.S. Department of Agriculture, 1400 Independence Avenue SW, STOP 1522, Washington, DC 20250, Telephone: 202-690-4492, email: Thomas [email protected]

    SUPPLEMENTARY INFORMATION:

    Title: Biorefinery, Renewable Chemical, and Biobased Product Manufacturing Assistance Program (Section 9003)

    OMB Number: 0570-0065.

    Expiration Date of Approval: March 31, 2019.

    Type of Request: Revision of a currently approved information collection.

    Abstract: The purpose of this information collection is to obtain information necessary to evaluate loan applications to determine the eligibility of the applicant and the project for the program and to qualitatively assess the project's technical and financial merit to determine which projects should be funded.

    Estimate of Burden: The following annual estimates are based on an average volume of activity which includes; 10 Phase 1 applications, 8 Phase 2 applications, and 1 new loan guarantees. Phase 1 applications are evaluated by the Agency to determine whether the Borrower is eligible, the proposed loan is for an eligible purpose, there is reasonable assurance of repayment ability, there is sufficient Collateral and equity, and the proposed loan complies with all applicable statutes and regulations. Phase 2 applications are required for Phase I applicants who score favorable and are invited to submit a Phase 2 application. The Agency anticipates the number of respondents to fluctuate based on funding levels.

    Respondents: Respondents for this data are lending institutions and for-profit businesses but also include individuals and corporations. The annual estimates below are for both subparts associated with this rule.

    Estimated Number of Respondents: 11.

    Estimated Number of Responses per Respondent: 17.7.

    Estimated Number of Responses: 195.

    Estimated Total Annual Burden on Respondents: 3,631 hours.

    Comments: Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Rural Business-Cooperative Service, including whether the information will have practical utility; (b) the accuracy of the Rural Business-Cooperative Service's estimate of the burden of the proposed collection of information including 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, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments may be sent to Thomas Dickson, Rural Development Innovation Center—Regulatory Team, U.S. Department of Agriculture, Rural Development, STOP 1522, 1400 Independence Avenue SW, Washington, DC 20250-1522.

    Copies of this information collection can be obtained from Kimble Brown, Rural Development Innovation Center, Regulations Team, at (202) 692-0043 or email: [email protected]

    All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

    Dated: November 1, 2018. Bette B. Brand, Administrator, Rural Business-Cooperative Service.
    [FR Doc. 2018-24929 Filed 11-14-18; 8:45 am] BILLING CODE 3410-XY-P
    DEPARTMENT OF AGRICULTURE Rural Business-Cooperative Service Notice of Solicitation of Applications for Inviting Applications for the Rural Economic Development Loan and Grant Programs for Fiscal Year 2019 AGENCY:

    Rural Business-Cooperative Service, USDA.

    ACTION:

    Notice.

    SUMMARY:

    This notice is to invite applications for loans and grants under the Rural Economic Development Loan and Grant (REDLG) Programs for fiscal year (FY) 2019, subject to the availability of funding. This notice is being issued in order to allow applicants sufficient time to leverage financing, prepare and submit their applications, and give the Agency time to process applications within FY 2019. Successful applications will be selected by the Agency for funding and subsequently awarded to the extent that funding may ultimately be made available through appropriations. An announcement on the website at http://www.rd.usda.gov/newsroom/notices-solicitation-applications-nosas will identify the amount received in the appropriations.

    All applicants are responsible for any expenses incurred in developing their applications.

    DATES:

    See under SUPPLEMENTARY INFORMATION section.

    ADDRESSES:

    Submit applications in paper format to the USDA Rural Development State Office for the State where the Project is located. A list of the USDA Rural Development State Office contacts can be found at: http://www.rd.usda.gov/contact-us/state-offices.

    FOR FURTHER INFORMATION CONTACT:

    Cindy Mason at (202) 690-1433, [email protected], and Sami Zarour at (202) 720-9549, [email protected], Specialty Programs Division, Business Programs, Rural Business-Cooperative Service, U.S. Department of Agriculture, 1400 Independence Avenue SW, MS 3226, Room 4204-South, Washington, DC 20250-3226, or call 202-720-1400. For further information on this notice, please contact the USDA Rural Development State Office in the State in which the applicant's headquarters is located.

    SUPPLEMENTARY INFORMATION:

    The Agency encourages applications that will support recommendations made in the Rural Prosperity Task Force report to help improve life in rural America, www.usda.gov/ruralprosperity. Applicants are encouraged to consider projects that provide measurable results in helping rural communities build robust and sustainable economies through strategic investments in infrastructure, partnerships, and innovation.

    Key strategies include:

    • Achieving e-Connectivity for Rural America • Developing the Rural Economy • Harnessing Technological Innovation • Supporting a Rural Workforce • Improving Quality of Life Overview

    Solicitation Opportunity Type: Rural Economic Development Loans and Grants.

    Announcement Type: Initial Solicitation Announcement.

    Catalog of Federal Domestic Assistance Number: 10.854.

    Dates: The deadline for completed applications to be received in the USDA Rural Development State Office no later than 4:30 p.m. (local time) are: Second Quarter, December 31, 2018; Third Quarter, March 31, 2019 and Fourth Quarter, June 30, 2019.

    A. Program Description

    1. Purpose of the Program. The purpose of the program is to promote rural economic development and job creation projects.

    2. Statutory Authority. These Programs are authorized under 7 U.S.C. 940c and 7 CFR part 4280, subpart A. Assistance provided to Rural areas, as defined, under this program may include business startup costs, business expansion, business incubators, Technical assistance feasibility studies, Advanced telecommunications services and computer networks for medical, educational, and job training services, and Community Facilities Projects for economic development.

    Awards under the REDLG Programs will be made on a competitive basis using specific selection criteria contained in 7 CFR part 4280, subpart A. Information required to be in the application package includes Standard Form (SF) 424, “Application for Federal Assistance;” a Resolution of the Board of Directors; AD-1047, “Debarment/Suspension Certification;” AD-1049 “Certification Regarding Drug-Free Workplace Requirements;” SF LLL, Restrictions on Lobbying; RD 400-1, “Equal Opportunity Agreement;” RD 400-4, “Assurance Agreement;” Assurance Statement for the Uniform Act; Seismic Certification (if construction); and paperwork required in accordance with 7 CFR part 1970, “Environmental Policies and Procedures.” If the proposal involves new construction; large increases in employment; hazardous waste; a change in use, size, capacity, purpose, or location from an original facility; or is publicly controversial, the following is required: Environmental documentation in accordance with 7 CFR part 1970;” RUS Form 7, “Financial and Statistical Report;” RUS Form 7a, “Investments, Loan Guarantees, and Loans,” or similar information; and written narrative of Project description. Applications will be tentatively scored by the State Offices and submitted to the National Office for review.

    3. Definition of Terms. The definitions applicable to this notice are published at 7 CFR 4280.3.

    4. Application Awards. The Agency will review, evaluate, and score applications received in response to this notice based on the provisions found in 7 CFR part 4280, subpart A, and as indicated in this notice. However, the Agency advises all interested parties that the applicant bears the burden in preparing and submitting an application in response to this notice whether or not funding is appropriated for these Programs in FY 2019.

    B. Federal Award Information

    Type of Awards: Loans and Grants.

    Fiscal Year Funds: FY 2019.

    Available Funds: Anyone interested in submitting an application for funding under these Programs are encouraged to consult the Rural Development Notices of Solicitation of Applications website at http://www.rd.usda.gov/newsroom/notices-solicitation-applications-nosas for funding information.

    Maximum Award: The Agency anticipates the following maximum amounts per award: Loans—$2,000,000; Grants—$300,000.

    Award Dates: Second Quarter, February 28, 2019; Third Quarter, May 31, 2019; and Fourth Quarter, August 31, 2019.

    Performance Period: October 1, 2019, through September 30, 2020.

    Renewal or Supplemental Awards: None.

    C. Eligibility Information 1. Eligible Applicants

    Loans and grants may be made to any entity that is identified by USDA Rural Development as an eligible borrower under the Rural Electrification Act of 1936, as amended (Act). In accordance with 7 CFR 4280.13, applicants that are not delinquent on any Federal debt or otherwise disqualified from participation in these Programs are eligible to apply. An applicant must be eligible under 7 U.S.C. 940c. Notwithstanding any other provision of law, any former Rural Utilities Service borrower that has repaid or prepaid an insured, direct, or guaranteed loan under the Act, or any not-for-profit utility that is eligible to receive an insured or direct loan under such Act shall be eligible for assistance under section 313(b)(2)(B) of such Act in the same manner as a borrower under such Act. All other restrictions in this notice will apply.

    The Agency requires the following information to make an eligibility determination. These applications must include, but are not limited to, the following:

    (a) An original and one copy of SF 424, “Application for Federal Assistance (for non-construction);”

    (b) Copies of applicant's organizational documents showing the applicant's legal existence and authority to perform the activities under the Grant;

    (c) A proposed scope of work, including a description of the proposed Project, details of the proposed activities to be accomplished and timeframes for completion of each task, the number of months duration of the Project, and the estimated time it will take from grant approval to beginning of Project implementation;

    (d) A written narrative that includes, at a minimum, the following items:

    (i) An explanation of why the Project is needed, the benefits of the proposed Project, and how the Project meets the Grant eligible purposes;

    (ii) Area to be served, identifying each governmental unit, i.e., tribe, town, county, etc., to be affected by the Project;

    (iii) Description of how the Project will coordinate economic development activities with other economic development activities within the Project area;

    (iv) Businesses to be assisted, if appropriate, and economic development to be accomplished;

    (v) An explanation of how the proposed Project will result in newly created, increased, or supported jobs in the area and the number of projected new and supported jobs within the next 3 years;

    (vi) A description of the applicant's demonstrated capability and experience in providing the proposed Project assistance, including experience of key staff members and persons who will be providing the proposed Project activities and managing the Project;

    (vii) The method and rationale used to select the areas and businesses that will receive the service;

    (viii) A brief description of how the work will be performed, including whether organizational staff or consultants or contractors will be used; and

    (ix) Other information the Agency may request to assist it in making a grant award determination.

    (e) The last 3 years of financial information to show the applicant's financial capacity to carry out the proposed work. If the applicant is less than 3 years old, at a minimum, the information should include all balance sheet(s), income statement(s), and cash flow statement(s). A current audited report is required if available;

    (f) Documentation regarding the availability and amount of other funds to be used in conjunction with the funds from REDLG; and

    (g) A budget which includes salaries, fringe benefits, consultant costs, indirect costs, and other appropriate direct costs for the Project.

    2. Cost Sharing or Matching

    For loans, either the Ultimate Recipient or the Intermediary must provide supplemental funds for the Project equal to at least 20 percent of the loan to the Intermediary. For grants, the Intermediary must establish a Revolving Loan Fund (or Fund) and contribute an amount equal to at least 20 percent of the Grant. The supplemental contribution must come from Intermediary's funds which may not be from other Federal Grants, unless permitted by law.

    3. Other

    Applications will only be accepted for projects that promote rural economic development and job creation.

    There are no “responsiveness” or “threshold” eligibility criteria for these loans and grants. There is no limit on the number of applications an applicant may submit under this announcement. In addition to the forms listed under the program description, Form AD 3030 “Representations Regulation Felony Conviction and Tax Delinquent Status for Corporate Applicants,” must be completed in the affirmative.

    None of the funds made available by this or any other Act may be used to enter into a contract, memorandum of understanding, or cooperative agreement with, make a grant to, or provide a loan or loan guarantee to, any corporation that has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, where the awarding agency is aware of the unpaid tax liability, unless a Federal agency has considered suspension or debarment of the corporation and has made a determination that this further action is not necessary to protect the interests of the Government.

    None of the funds made available by this or any other Act may be used to enter into a contract, memorandum of understanding, or cooperative agreement with, make a grant to, or provide a loan or loan guarantee to, any corporation that was convicted of a felony criminal violation under any Federal law within the preceding 24 months, where the awarding agency is aware of the conviction, unless a Federal agency has considered suspension or debarment of the corporation and has made a determination that this further action is not necessary to protect the interests of the Government.

    4. Completeness Eligibility

    Applications will not be considered for funding if they do not provide sufficient information to determine eligibility or are missing required elements.

    D. Application and Submission Information 1. Address To Request Application Package

    For further information, entities wishing to apply for assistance should contact the USDA Rural Development State Office provided in the ADDRESSES section of this notice to obtain copies of the application package.

    Prior to official submission of grant applications, applicants may request technical assistance or other application guidance from the Agency, as long as such requests are made by June 15, 2019. Technical assistance is not meant to be an analysis or assessment of the quality of the materials submitted, a substitute for agency review of completed applications, nor a determination of eligibility, if such determination requires in-depth analysis. The Agency will not solicit or consider scoring or eligibility information that is submitted after the application deadline. The Agency reserves the right to contact applicants to seek clarification information on materials contained in the submitted application.

    Applications must be submitted in paper format. Applications submitted to a Rural Development State Office must be received by the closing date and local time deadline.

    All applicants must have a Dun and Bradstreet Data Universal Numbering System (DUNS) number which can be obtained at no cost via a toll-free request line at (866) 705-5711 or at http://fedgov.dnb.com/webform. Each applicant (unless the applicant is an individual or Federal awarding agency that is excepted from the requirements under 2 CFR 25.110(b) or (c) or has an exception approved by the Federal awarding agency under 2 CFR 25.110(d)) is required to: (i) Be registered in the System for Award Management (SAM) before submitting its application; (ii) provide a valid unique entity identifier in its application; and (iii) continue to maintain an active SAM registration with current information at all times during which it has an active Federal award or an application or plan under consideration by a Federal awarding agency. The Federal awarding agency may not make a Federal award to an applicant until the applicant has complied with all applicable unique entity identifier and SAM requirements and, if an applicant has not fully complied with the requirements by the time the Federal awarding agency is ready to make a Federal award, the Federal awarding agency may determine that the applicant is not qualified to receive a Federal award and use that determination as a basis for making a Federal award to another applicant.

    Please note that applicants must locate the downloadable application package for this program by the Catalog of Federal Domestic Assistance Number or FedGrants Funding Opportunity Number, which can be found at http://www.grants.gov.

    2. Content and Form of Application Submission

    An application must contain all of the required elements. Each selection priority criterion outlined in 7 CFR 4280.42(b) must be addressed in the application. Failure to address any of the criterion will result in a zero-point score for that criterion and will impact the overall evaluation of the application. Copies of 7 CFR part 4280, subpart A, will be provided to any interested applicant making a request to a Rural Development State Office. An original copy of the application must be filed with the Rural Development State Office for the State where the Intermediary is located.

    The applicant documentation and forms needed for a complete application are located in the Program Description section of this notice, and 7 CFR part 4280, subpart A. There are no specific formats required per this notice, and applicants may request forms and addresses from the ADDRESSES section of this notice.

    (a) There are no specific limitations on the number of pages or other formatting requirements other than those described in the Program Description section.

    (b) There are no specific limitations on the number of pages, font size and type face, margins, paper size, number of copies, and the sequence or assembly requirements.

    (c) The component pieces of this application should contain original signatures on the original application.

    3. Submission Dates and Times

    (a) Application Deadline Dates: No later than 4:30 p.m. (local time) on:

    Second Quarter, December 31, 2018; Third Quarter, March 31, 2019; and Fourth Quarter, June 30, 2019.

    Explanation of Dates: Applications must be in the USDA Rural Development State Office by the dates and times as indicated above. If the due date falls on a Saturday, Sunday, or Federal holiday, the application is due the next business day.

    (b) The deadline date means that the completed application package must be received in the USDA Rural Development State Office by the deadline date and time established above. All application documents identified in this notice are required.

    (c) If completed applications are not received by the deadline established above, the application will neither be reviewed nor considered under any circumstances.

    (d) The Agency will determine the application receipt date based on the actual date postmarked.

    (e) If the grantee has a previously approved indirect cost rate, it is permissible, otherwise, the applicant may elect to charge the 10 percent indirect cost permitted under 2 CFR 200.414(f). Due to the time required to evaluate Indirect Cost Rates, it is likely that all funds will be awarded by the time the Indirect Cost Rate is determined. No foreign travel is permitted. Pre-Federal award costs will only be permitted with prior written approval by the Agency.

    (f) Applicants must submit applications in hard copy format as previously indicated in the Application and Submission Information section of this notice. If the applicant wishes to hand deliver its application, the addresses for these deliveries can be located in the ADDRESSES section of this notice.

    (g) If you require alternative means of communication for program information (e.g., Braille, large print, audiotape, etc.) please contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

    E. Application Review Information 1. Criteria

    All eligible and complete applications will be evaluated and scored based on the selection criteria and weights contained in 7 CFR part 4280, subpart A. Failure to address any one of the criteria by the application deadline will result in the application being determined ineligible, and the application will not be considered for funding.

    2. Review and Selection Process

    The State Offices will review applications to determine if they are eligible for assistance based on requirements contained in 7 CFR part 4280, subpart A. If determined eligible, your application will be submitted to the National Office. Funding of projects is subject to the Intermediary's satisfactory submission of the additional items required by that subpart and the USDA Rural Development Letter of Conditions. The Agency reserves the right to award additional discretionary points under 7 CFR 4280.43.

    In order to distribute funds among the greatest number of projects possible, applications will be reviewed, prioritized, and funded by ranking each State's highest scoring Project in highest to lowest score order. The highest scoring Project from each State will be considered that State's Priority One Project. Priority One projects will be ranked according to score from highest to lowest. The second highest scoring Project from each State will be considered the State's Priority Two Project. Priority Two projects will be ranked according to score from highest to lowest and so forth until all projects have been scored and ranked in priority order. All Priority One projects will be funded before any Priority Two projects and so forth until funds are depleted, so as to ensure broad geographic distribution of funding.

    F. Federal Award Administration Information

    1. Federal Award Notices. Successful applicants will receive notification for funding from the Rural Development State Office. Applicants must comply with all applicable statutes and regulations before the loan/grant award can be approved. Provided the application and eligibility requirements have not changed, an application not selected will be reconsidered in three subsequent quarterly funding competitions for a total of four competitions. If an application is withdrawn, it can be resubmitted and will be evaluated as a new application.

    2. Administrative and National Policy Requirements. Additional requirements that apply to intermediaries or grantees selected for these Programs can be found in 7 CFR part 4280, subpart A. Awards are subject to USDA grant regulations at 2 CFR Chapter IV which incorporated the Office of Management and Budget (OMB) regulations 2 CFR 200.

    All successful applicants will be notified by letter which will include a Letter of Conditions, and a Letter of Intent to Meet Conditions. This letter is not an authorization to begin performance. If the applicant wishes to consider beginning performance prior to the loan or grant being officially closed, all pre-award costs must be approved in writing and in advance by the Agency. The loan or grant will be considered officially awarded when all conditions in the Letter of Conditions have been met and the Agency obligates the funding for the Project.

    Additional requirements that apply to intermediaries or grantees selected for these Programs can be found in 7 CFR 4280, subpart A; the Grants and Agreements regulations of the U.S. Department of Agriculture codified in 2 CFR 400.1 to 400.2 and 2 CFR part 415 to 422, and successor regulations to these parts.

    In addition, all recipients of Federal financial assistance are required to report information about first-tier sub-awards and executive compensation (see 2 CFR part 170). You will be required to have the necessary processes and systems in place to comply with the Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109-282) reporting requirements (see 2 CFR 170.200(b), unless you are exempt under 2 CFR 170.110(b)).

    The following additional requirements apply to intermediaries or grantees selected for these Programs:

    (a) Form RD 4280-2 “Rural Business-Cooperative Service Financial Assistance Agreement.”

    (b) Letter of Conditions.

    (c) Form RD 1940-1, “Request for Obligation of Funds.”

    (d) Form RD 1942-46, “Letter of Intent to Meet Conditions.”

    (e) Form AD-1047, “Certification Regarding Debarment, Suspension, and Other Responsibility Matters-Primary Covered Transactions.”

    (f) Form AD-1048 “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transactions.”

    (g) Form AD-1049, “Certification Regarding a Drug-Free Workplace Requirement (Grants).”

    (h) Form AD-3031, “Assurance Regarding Felony Conviction or Tax Delinquent Status for Corporate Applicants.” Must be signed by corporate applicants who receive an award under this notice.

    (i) Form RD 400-4, “Assurance Agreement.” Each prospective recipient must sign Form RD 400-4, “Assurance Agreement,” which assures USDA that the recipient is in compliance with Title VI of the Civil Rights Act of 1964, 7 CFR part 15, and other Agency regulations. That no person will be discriminated against based on race, color, or national origin, in regard to any program or activity for which the recipient receives Federal financial assistance. That nondiscrimination statements are in advertisements and brochures.

    Collect and maintain data provided by Ultimate Recipients on race, sex, and national origin and ensure Ultimate Recipients collect and maintain this data. Race and ethnicity data will be collected in accordance with OMB Federal Register notice, “Revisions to the Standards for the Classification of Federal Data on Race and Ethnicity” (62 FR 58782), October 30, 1997. Sex data will be collected in accordance with Title IX of the Education Amendments of 1972. These items should not be submitted with the application but should be available upon request by the Agency.

    The applicant and the Ultimate Recipient must comply with Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, Age Discrimination Act of 1975, Executive Order 12250, Executive Order 13166 Limited English Proficiency (LEP), and 7 CFR part 1901, subpart E.

    (j) SF LLL, “Disclosure of Lobbying Activities,” if applicable.

    (k) Use Form SF 270, “Request for Advance or Reimbursement.”

    3. Reporting

    (a) A Financial Status Report and a Project performance activity report will be required of all grantees on a quarterly basis until initial funds are expended and yearly thereafter, if applicable, based on the Federal fiscal year. The grantee will complete the Project within the total time available to it in accordance with the Scope of Work and any necessary modifications thereof prepared by the grantee and approved by the Agency. A final Project performance report will be required with the final Financial Status Report. The final report may serve as the last quarterly report. The final report must provide complete information regarding the jobs created and supported as a result of the Grant if applicable. Grantees must continuously monitor performance to ensure that time schedules are being met, projected work by time periods is being accomplished, and other performance objectives are being achieved. Grantees must submit an original of each report to the Agency no later than 30 days after the end of the quarter. The Project performance reports must include, but not be limited to, the following:

    (1) A comparison of actual accomplishments to the objectives established for that period;

    (2) Problems, delays, or adverse conditions, if any, which have affected or will affect attainment of overall Project objectives, prevent meeting time schedules or objectives, or preclude the attainment of particular Project work elements doing established time periods. This disclosure shall be accompanied by a statement of the action taken or planned to resolve the situation; and

    (3) Objectives and timetable established for the next reporting period.

    (4) Any special reporting requirements, such as jobs supported and created, businesses assisted, or economic development which results in improvements in median household incomes, and any other specific requirements, should be placed in the reporting section of the Letter of Conditions.

    (5) Within 90 days after the conclusion of the Project, the Intermediary will provide a final Project evaluation report. The last quarterly payment will be withheld until the final report is received and approved by the Agency. Even though the Intermediary may request reimbursement on a monthly basis, the last 3 months of reimbursements will be withheld until a final report, Project performance, and financial status report are received and approved by the Agency.

    (b) In addition to any reports required by 2 CFR part 200 and 2 CFR 400.1 to 400.2 and 2 CFR part 415 to 422, the Intermediary or grantee must provide reports as required by 7 CFR part 4280, subpart A.

    G. Federal Awarding Agency Contact(s)

    For general questions about this announcement, please contact your USDA Rural Development State Office provided in the ADDRESSES section of this notice.

    H. Civil Rights Requirements

    All grants made under this notice are subject to Title VI of the Civil Rights Act of 1964 as required by the USDA (7 CFR part 15, subpart A) and Section 504 of the Rehabilitation Act of 1973, Title VIII of the Civil Rights Act of 1968, Title IX, Executive Order 13166 (Limited English Proficiency), Executive Order 11246, and the Equal Credit Opportunity Act of 1974.

    I. Other Information Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, the information collection requirement contained in this notice is approved by OMB under OMB Control Number 0570-0070.

    Federal Funding Accountability and Transparency Act

    All applicants, in accordance with 2 CFR part 25, must have a DUNS number, which can be obtained at no cost via a toll-free request line at (866) 705-5711 or online at http://fedgov.dnb.com/webform. Similarly, all applicants must be registered in SAM prior to submitting an application. Applicants may register for the SAM at http://www.sam.gov. All recipients of Federal financial grant assistance are required to report information about first-tier sub-awards and executive total compensation in accordance with 2 CFR part 170.

    Nondiscrimination Statement

    In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its agencies, offices, and employees, and institutions participating in or administering USDA Programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

    Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

    To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at http://www.ascr.usda.gov/complaint_filing_cust.html and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by:

    (1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410;

    (2) Fax: (202) 690-7442; or

    (3) Email: [email protected]

    USDA is an equal opportunity provider, employer, and lender.

    Dated: November 7, 2018. Bette B. Brand, Administrator, Rural Business-Cooperative Service.
    [FR Doc. 2018-24938 Filed 11-14-18; 8:45 am] BILLING CODE 3410-XY-P
    DEPARTMENT OF AGRICULTURE Rural Utilities Service Rural Broadband Access Loans and Loan Guarantees Program AGENCY:

    Rural Utilities Service, USDA.

    ACTION:

    Notice of Solicitation of Applications (NOSA).

    SUMMARY:

    The Rural Utilities Service (RUS), an Agency of the United States Department of Agriculture (USDA), announces that it is accepting applications for fiscal year (FY) 2019 for the Rural Broadband Access Loans and Loan Guarantees Program (the Broadband Program). RUS will publish the amount of funding received through the final appropriations act on its website at https://www.rd.usda.gov/newsroom/notices-solicitation-applications-nosas.

    RUS is accepting applications on a rolling basis throughout FY 2019. This will give RUS the ability to request additional information and modifications to a submitted application whenever necessary.

    Applications will be processed on a first come, first served basis. Every 90 days, RUS will conduct an evaluation of the submitted applications. During the evaluation period, applications will be ranked based on the percentage of unserved households that the applicant proposes to serve. RUS will conduct at least two evaluation periods for FY 2019. Because the Agency will receive applications throughout the fiscal year, subsequent evaluation periods can alter the ranking of applications.

    In addition to announcing its acceptance of FY 2019 applications, RUS revises the minimum and maximum amounts for broadband loans for the fiscal year.

    DATES:

    Applications under this NOSA will be accepted immediately through September 30, 2019. RUS will process loan applications as they are received.

    Applications can only be submitted online through the RD Apply website at https://www.rd.usda.gov/programs-services/rd-apply through September 30, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Shawn Arner, Deputy Assistant Administrator, Loan Origination and Approval Division, Rural Utilities Service, Room 2844, STOP 1597, 1400 Independence Avenue SW, Washington, DC 20250-1597; telephone: (202) 720-0800, or email: [email protected]

    SUPPLEMENTARY INFORMATION: General Information

    The Rural Broadband Access Loan and Loan Guarantee Program (the Broadband Program) is authorized by the Rural Electrification Act (7 U.S.C. 901 et seq.), as amended by the Agricultural Act of 2014 (Pub. L. 113-79), also referred to as the 2014 Farm Bill.

    During FY 2019, loans will be made available for the construction, improvement, and acquisition of facilities and equipment that will provide service at the Broadband Lending Speed in eligible rural areas. Applications are subject to the requirements of 7 CFR part 1738. No funding for Guaranteed Loans is available in FY 2019 and the agency will not be considering applications for this type of funding.

    The Agency encourages applications that will support recommendations made in the Rural Prosperity Task Force report to help improve life in rural America which can be found at www.usda.gov/ruralprosperity. Applicants are encouraged to consider projects that provide measurable results in helping rural communities build robust and sustainable economies through strategic investments in infrastructure, partnerships and innovation. Key strategies include:

    • Achieving e-Connectivity for Rural America • Developing the Rural Economy • Harnessing Technological Innovation • Supporting a Rural Workforce • Improving Quality of Life Application Assistance

    RUS offers pre-application assistance, in which National Office staff and the assigned General Field Representative review the draft application, provide detailed comments, and identify areas where an application is not meeting eligibility requirements for funding. The online application system allows RUS staff to assist an applicant with every part of an application as it is being developed. Once the application is formally submitted, the online system will timestamp the submitted version and establish the application's place in the processing queue.

    Based on the order in which the applications are received, RUS will review the application for completeness. The applicant may be asked for additional information to clarify aspects of an otherwise complete application or to assist the Agency in the underwriting process. If the application is determined to be complete, RUS will review the package for eligibility and technical and financial feasibility, in accordance with 7 CFR part 1738. If an application is ultimately found to be incomplete or inadequate, a detailed explanation will be provided to the applicant.

    To further assist in the preparation of applications, an application guide is available online at: https://www.rd.usda.gov/programs-services/farm-bill-broadband-loans-loan-guarantees. An application guide may also be requested from the RUS contact listed in the FOR FURTHER INFORMATION CONTACT section of this notice.

    Application Requirements: All requirements for submission of an application under the Broadband Program are subject to 7 CFR part 1738.

    Application Materials/Submission: Applications must be submitted through the Agency's online application system located at https://www.rd.usda.gov/programs-services/rd-apply. All materials required for completing an application are included in the online system.

    Minimum and Maximum Loan Amounts

    Loans under this authority will not be made for less than $100,000. The maximum loan amount that will be considered for FY 2019 is $25,000,000.

    Required Definitions for Broadband Program Regulation

    The regulation for the Broadband Program requires that certain definitions affecting eligibility be revised and published from time to time by the Agency in the Federal Register. For the purposes of this NOSA, the Agency is revising the definitions of Broadband Service and Broadband Lending Speed.

    Broadband Service is determined to exist if customers can access a minimum rate-of-data transmission of 25 megabits downstream and 3 megabits upstream for both mobile and fixed service. This rate is used to determine whether an area is eligible for funding.

    Broadband Lending Speed is the minimum rate-of-data transmission that applicants must propose to offer the customer. The Broadband Lending Speed is 25 megabits downstream and 3 megabits upstream for both mobile and fixed service.

    Priority for Approving Loan Applications

    Applications for FY 2019 will be accepted from the publication date of this NOSA through September 30, 2019. Although review of applications will begin as they are submitted, all applications will be evaluated and ranked every 90 days based on the percentage of unserved households in the proposed funded service area. Subject to available funding, eligible applications that propose to serve a higher percentage of unserved households will receive funding offers before other eligible applications that propose to serve a lower percentage of unserved households. The amount available will be published on the Agency web page once all budgetary allocations have been completed.

    Loan offers are limited to the funds available at the time of the Agency's decision to approve an application.

    Applications will not be accepted after September 30, 2019, until a new application opportunity has been opened with the publication of an additional NOSA in the Federal Register.

    Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, the information collection requirements associated with Broadband loans, as covered in this NOSA, have been approved by the Office of Management and Budget (OMB) under OMB Control Number 0572-0130.

    USDA Non-Discrimination Statement

    In accordance with Federal civil rights law and USDA civil rights regulations and policies, the USDA, its agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

    Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339 (English) or (800) 845-6136 (Spanish).

    Individuals who wish to file a Program Discrimination Complaint must complete the USDA Program Discrimination Complaint Form (PDF). To file a program discrimination complaint, you may obtain a complaint form by sending an email to [email protected] or calling (866) 632-9992 to request the form. A letter may also be written containing all of the information requested in the form.

    Send the completed complaint form or letter by mail to the U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW, Washington, DC 20250-9410, or email at [email protected] Additional information can be found online at https://www.ascr.usda.gov/filing-program-discrimination-complaint-usda-customer.

    USDA is an equal opportunity provider, employer, and lender.

    Dated: October 24, 2018. Christopher A. McLean, Acting Administrator, Rural Utilities Service.
    [FR Doc. 2018-24860 Filed 11-14-18; 8:45 am] BILLING CODE P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Florida Advisory Committee AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Florida Advisory Committee (Committee) will hold a meeting on Monday, December 3, 2018, at 1:00 p.m. (EST) for the purpose discussing civil rights concerns in the state.

    DATES:

    The meeting will be held on Monday, December 3, 2018, at 1:00 p.m. (EST).

    Public Call Information: Dial: 877-260-1479, Conference ID: 5812789.

    FOR FURTHER INFORMATION CONTACT:

    Jeff Hinton, DFO, at [email protected]

    SUPPLEMENTARY INFORMATION:

    Members of the public can listen to the discussion. This meeting is available to the public through the toll-free call-in number dial: 877-260-1479, Conference ID: 5812789. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.

    Written comments may be mailed to the Regional Program Unit Office, U.S. Commission on Civil Rights, 230 S Dearborn St., Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353-8324 or may be emailed to the Regional Director, Jeff Hinton at [email protected] Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Florida Advisory Committee link. Persons interested in the work of this Committee are directed to the Commission's website, http://www.usccr.gov, or may contact the Regional Program Unit at the above email or street address.

    Agenda Welcome and Introductions Discussion: Civil Rights Issues in Florida Public Comment Adjournment Dated: November 8, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-24876 Filed 11-14-18; 8:45 am] BILLING CODE P
    COMMISSION ON CIVIL RIGHTS Agenda and Notice of Public Meeting of the North Dakota Advisory Committee AGENCY:

    Commission on Civil Rights.

    ACTION:

    Announcement of meetings.

    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 planning meeting of the North Dakota Advisory Committee to the Commission will by teleconference at 12:00 p.m. (CST) on Wednesday, December 5, 2018. The purpose of the meeting is for project and briefing planning.

    DATES:

    Wednesday, December 5, 2018, at 12:00 p.m. MDT.

    Public Call-In Information: Conference call-in number: 1-877-260-1479 and conference call 9602962.

    FOR FURTHER INFORMATION CONTACT:

    Evelyn Bohor, at [email protected] or by phone at 303-866-1040.

    SUPPLEMENTARY INFORMATION:

    Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 1-877-260-1479 and conference call 9602962. 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: 1-877-260-1479 and conference call 9602962.

    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 Rocky Mountain Regional Office, U.S. Commission on Civil Rights, 1961 Stout Street, Suite 13-201, Denver, CO 80294, faxed to (303) 866-1040, or emailed to Evelyn Bohor at [email protected] Persons who desire additional information may contact the Rocky Mountain Regional Office at (303) 866-1040.

    Records and documents discussed during the meeting will be available for public viewing as they become available at https://gsageo.force.com/FACA/apex/FACAPublicCommittee?id=a10t0000001gzl9AAA; click the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Rocky Mountain 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 Rocky Mountain Regional Office at the above phone numbers, email or street address.

    Agenda: Wednesday, December 5, 2018, 12:00 p.m. (CST).

    • Rollcall and Welcome • Project Planning • Briefing Planning • Open Comment • Adjourn Dated: November 9, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-24901 Filed 11-14-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: National Institute of Standards and Technology (NIST).

    Title: National Voluntary Laboratory Accreditation Program (NVLAP) Information Collection System.

    OMB Control Number: 0693-0003.

    Form Number(s): None.

    Type of Request: Regular submission (revision and extension of a currently approved information collection).

    Number of Respondents: 750.

    Average Hours per Response: 3 hours.

    Burden Hours: 2,250.

    Needs and Uses: This information is collected from all testing and calibration laboratories that apply for National Voluntary Laboratory Accreditation Program (NVLAP) accreditation. It is used by NVLAP to assess laboratory conformance with applicable criteria as defined in 15 CFR part 285, Section 285.14. The information provides a service to customers in business and industry, including regulatory agencies and purchasing authorities that are seeking competent laboratories to perform testing and calibration services. An accredited laboratory's contact information and scope of accreditation are provided on NVLAP's website (http://www.nist.gov/nvlap).

    Affected Public: Business or other for-profit organizations, not-for-profit institutions, and Federal, State or Local government.

    Frequency: Annually.

    Respondent's Obligation: Required to obtain or retain benefits.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-24959 Filed 11-14-18; 8:45 am] BILLING CODE 3510-13-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Order No. 2075] Reorganization of Foreign-Trade Zone 283; (Expansion of Service Area) Under Alternative Site Framework; West Tennessee Area Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:

    Whereas, the Foreign-Trade Zones (FTZ) Act provides for “. . . the establishment . . . of foreign-trade zones in ports of entry of the United States, to expedite and encourage foreign commerce, and for other purposes,” and authorizes the Foreign-Trade Zones Board to grant to qualified corporations the privilege of establishing foreign-trade zones in or adjacent to U.S. Customs and Border Protection ports of entry;

    Whereas, the Board adopted the alternative site framework (ASF) (15 CFR Sec. 400.2(c)) as an option for the establishment or reorganization of zones;

    Whereas, the Northwest Tennessee Regional Port Authority, grantee of Foreign-Trade Zone 283, submitted an application to the Board (FTZ Docket B-19-2018, docketed March 19, 2018) for authority to expand the service area of the zone to include Crockett County as well as portions of Weakley, Henry, Carroll and Henderson Counties, Tennessee, as described in the application, adjacent to the Memphis Customs and Border Protection port of entry;

    Whereas, notice inviting public comment was given in the Federal Register (83 FR 12563, March 22, 2018) and the application has been processed pursuant to the FTZ Act and the Board's regulations; and,

    Whereas, the Board adopts the findings and recommendations of the examiner's report, and finds that the requirements of the FTZ Act and the Board's regulations are satisfied;

    Now, therefore, the Board hereby orders:

    The application to reorganize FTZ 283 to expand the service area under the ASF is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, and to the Board's standard 2,000-acre activation limit for the zone.

    Dated: November 8, 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, Alternate Chairman, Foreign-Trade Zones Board.
    [FR Doc. 2018-24937 Filed 11-14-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-71-2018] Foreign-Trade Zone (FTZ) 230—Greensboro, North Carolina; Notification of Proposed Production Activity; Patheon Softgels; (Pharmaceutical Products); High Point, North Carolina

    The Piedmont Triad Partnership, grantee of FTZ 230, submitted a notification of proposed production activity to the FTZ Board on behalf of Patheon Softgels (Patheon), located in High Point, North Carolina. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on November 7, 2018.

    Patheon already has authority to produce certain prescription pharmaceutical products and soft gelatin capsules within Subzone 230C. The current request would add a finished product and a foreign status material/component to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status material/component and specific finished product described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.

    Production under FTZ procedures could exempt Patheon from customs duty payments on the foreign-status material/component used in export production. On its domestic sales, for the foreign-status material/component noted below and in the existing scope of authority, Patheon would be able to choose the duty rate during customs entry procedures that applies to gelatin encapsulated mono methyl fumarate capsule (duty-free). Patheon 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 material/component sourced from abroad is Mono Methyl Fumarate (duty rate 6.5%). The request indicates the material/component is subject to special duties under Section 301 of the Trade Act of 1974 (Section 301), depending on the country of origin. The applicable Section 301 decisions require subject merchandise to be admitted to FTZs in privileged foreign status (19 CFR 146.41).

    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 26, 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 Christopher Wedderburn at [email protected] or (202) 482-1963.

    Dated: November 9, 2018. Elizabeth Whiteman, Acting Executive Secretary.
    [FR Doc. 2018-24933 Filed 11-14-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Order No. 2073] Reorganization of Foreign-Trade Zone 81 Under Alternative Site Framework; Portsmouth, New Hampshire Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:

    Whereas, the Foreign-Trade Zones (FTZ) Act provides for “. . . the establishment . . . of foreign-trade zones in ports of entry of the United States, to expedite and encourage foreign commerce, and for other purposes,” and authorizes the Foreign-Trade Zones Board to grant to qualified corporations the privilege of establishing foreign-trade zones in or adjacent to U.S. Customs and Border Protection ports of entry;

    Whereas, the Board adopted the alternative site framework (ASF) (15 CFR Sec. 400.2(c)) as an option for the establishment or reorganization of zones;

    Whereas, the Pease Development Authority, grantee of Foreign-Trade Zone 81, submitted an application to the Board (FTZ Docket B-6-2018, docketed on January 30, 2018 and amended on August 1, 2018) for authority to reorganize under the ASF with a service area of the Counties of Rockingham, Strafford, Carroll (partial), Belknap (partial), Cheshire, Hillsborough, Merrimack (partial), Sullivan and Grafton (partial), New Hampshire, in and adjacent to the Portsmouth Customs and Border Protection port of entry, FTZ 81's existing Sites 1, 2, 4 and 5 would be categorized as magnet sites and existing Site 6 would be categorized as a usage-driven site;

    Whereas, notice inviting public comment was given in the Federal Register (83 FR 4896-4897, February 2, 2018) and the application has been processed pursuant to the FTZ Act and the Board's regulations; and,

    Whereas, the Board adopts the findings and recommendations of the examiner's report, and finds that the requirements of the FTZ Act and the Board's regulations are satisfied;

    Now, therefore, the Board hereby orders:

    The amended application to reorganize FTZ 81 under the ASF is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, to the Board's standard 2,000-acre activation limit for the zone, to an ASF sunset provision for magnet sites that would terminate authority for Sites 1, 2, 4 and 5 if not activated within five years from the month of approval, and to an ASF sunset provision for usage-driven sites that would terminate authority for Site 6 if no foreign-status merchandise is admitted for a bona fide customs purpose within three years from the month of approval.

    Dated: November 8, 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, Alternate Chairman, Foreign-Trade Zones Board.
    [FR Doc. 2018-24936 Filed 11-14-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Order No. 2072] Reorganization of Foreign-Trade Zone 9 Under Alternative Site Framework; Honolulu, Hawaii Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:

    Whereas, the Foreign-Trade Zones (FTZ) Act provides for “. . . the establishment . . . of foreign-trade zones in ports of entry of the United States, to expedite and encourage foreign commerce, and for other purposes,” and authorizes the Foreign-Trade Zones Board to grant to qualified corporations the privilege of establishing foreign-trade zones in or adjacent to U.S. Customs and Border Protection ports of entry;

    Whereas, the Board adopted the alternative site framework (ASF) (15 CFR Sec. 400.2(c)) as an option for the establishment or reorganization of zones;

    Whereas, the State of Hawaii, grantee of Foreign-Trade Zone 9, submitted an application to the Board (FTZ Docket B-40-2018, docketed June 18, 2018) for authority to reorganize under the ASF with a service area of the City and County of Honolulu, County of Hawaii, County of Kauai, and County of Maui, Hawaii, in and adjacent to the Hilo and Kona (Hawaii), Kahului and Kihei (Maui), Honolulu (Oahu) and Nawiliwili-Port Allen (Kauai) U.S. Customs and Border Protection ports of entry, FTZ 9's existing Sites 2, 3, 4, 5 and 9 would be categorized as magnet sites and existing Sites 1, 6, 7 and 8 would be categorized as usage-driven sites;

    Whereas, notice inviting public comment was given in the Federal Register (83 FR 29541-29542, June 25, 2018) and the application has been processed pursuant to the FTZ Act and the Board's regulations; and,

    Whereas, the Board adopts the findings and recommendations of the examiner's report, and finds that the requirements of the FTZ Act and the Board's regulations are satisfied;

    Now, therefore, the Board hereby orders:

    The application to reorganize FTZ 9 under the ASF is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, to the Board's standard 2,000-acre activation limit for the zone, to an ASF sunset provision for magnet sites that would terminate authority for Sites 2, 3, 4 and 9 if not activated within five years from the month of approval and to an ASF sunset provision for usage-driven sites that would terminate authority for Sites 1, 6, 7 and 8 if no foreign-status merchandise is admitted to the sites for a bona fide customs purpose within three years from the month of approval.

    Dated: November 8, 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, Alternate Chairman, Foreign-Trade Zones Board.
    [FR Doc. 2018-24935 Filed 11-14-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-46-2018) Foreign-Trade Zone (FTZ) 41—Milwaukee, Wisconsin; Authorization of Production Activity; CNH Industrial America LLC; (Tractors, Component Parts, and Axle Subassemblies); Sturtevant, Wisconsin

    On July 11, 2018, CNH Industrial America LLC submitted a notification of proposed production activity to the FTZ Board for its facility within Subzone 41I, in Sturtevant, Wisconsin.

    The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the Federal Register inviting public comment (83 FR 33918, July 18, 2018). On November 8, 2018, the applicant was notified of the FTZ Board's decision that no further review of the activity is warranted at this time. The production activity described in the notification was authorized, subject to the FTZ Act and the FTZ Board's regulations, including Section 400.14.

    Dated: November 8, 2018. Elizabeth Whiteman, Acting Executive Secretary.
    [FR Doc. 2018-24932 Filed 11-14-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Order No. 2074] Production Authority Not Approved; Gildan Yarns, LLC; Foreign-Trade Zone 57; (Cotton and Cotton/Polyester Yarns); Salisbury, North Carolina Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:

    Whereas, the Foreign-Trade Zones (FTZ) Act provides for “. . . the establishment . . . of foreign-trade zones in ports of entry of the United States, to expedite and encourage foreign commerce, and for other purposes,” and authorizes the Foreign-Trade Zones Board to grant to qualified corporations the privilege of establishing foreign-trade zones in or adjacent to U.S. Customs and Border Protection ports of entry;

    Whereas, the Charlotte Regional Partnership, Inc., grantee of FTZ 57, has requested production authority on behalf of Gildan Yarns, LLC, for its facility located in Salisbury, North Carolina (B-43-2017, docketed June 16, 2017);

    Whereas, notice inviting public comment has been given in the Federal Register (82 FR 28628-28629, June 23, 2017) and the application has been processed pursuant to the FTZ Act and the Board's regulations; and,

    Whereas, the Board adopts the findings and recommendations of the examiner's report, and finds that the requirements of the FTZ Act and the Board's regulations have not been satisfied;

    Now, therefore, the Board hereby does not approve the application requesting production authority under zone procedures within FTZ 57 at the facility of Gildan Yarns, LLC, located in Salisbury, North Carolina, as described in the application and Federal Register notice.

    Dated: November 8, 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, Alternate Chairman, Foreign-Trade Zones Board.
    [FR Doc. 2018-24934 Filed 11-14-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration Initiation of Antidumping and Countervailing Duty Administrative Reviews AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) has received requests to conduct administrative reviews of various antidumping and countervailing duty orders and findings with September anniversary dates. In accordance with Commerce's regulations, we are initiating those administrative reviews.

    DATES:

    Applicable November 15, 2018.

    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: Background

    Commerce has received timely requests, in accordance with 19 CFR 351.213(b), for administrative reviews of various antidumping and countervailing duty orders and findings with September anniversary dates.

    All deadlines for the submission of various types of information, certifications, or comments or actions by Commerce discussed below refer to the number of calendar days from the applicable starting time.

    Notice of No Sales

    If a producer or exporter named in this notice of initiation had no exports, sales, or entries during the period of review (POR), it must notify Commerce within 30 days of publication of this notice in the Federal Register. All submissions must be filed electronically at http://access.trade.gov in accordance with 19 CFR 351.303.1 Such submissions are subject to verification in accordance with section 782(i) of the Tariff Act of 1930, as amended (the Act). Further, in accordance with 19 CFR 351.303(f)(1)(i), a copy must be served on every party on Commerce's service list.

    1See Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011).

    Respondent Selection

    In the event Commerce limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, Commerce intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports during the period of review. We intend to place the CBP data on the record within five days of publication of the initiation notice and to make our decision regarding respondent selection within 30 days of publication of the initiation Federal Register notice. Comments regarding the CBP data and respondent selection should be submitted seven days after the placement of the CBP data on the record of this review. Parties wishing to submit rebuttal comments should submit those comments five days after the deadline for the initial comments.

    In the event Commerce decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:

    In general, Commerce has found that determinations concerning whether particular companies should be “collapsed” (e.g., treated as a single entity for purposes of calculating antidumping duty rates) require a substantial amount of detailed information and analysis, which often require follow-up questions and analysis. Accordingly, Commerce will not conduct collapsing analyses at the respondent selection phase of this review and will not collapse companies at the respondent selection phase unless there has been a determination to collapse certain companies in a previous segment of this antidumping proceeding (e.g., investigation, administrative review, new shipper review or changed circumstances review). For any company subject to this review, if Commerce determined, or continued to treat, that company as collapsed with others, Commerce will assume that such companies continue to operate in the same manner and will collapse them for respondent selection purposes. Otherwise, Commerce will not collapse companies for purposes of respondent selection. Parties are requested to (a) identify which companies subject to review previously were collapsed, and (b) provide a citation to the proceeding in which they were collapsed. Further, if companies are requested to complete the Quantity and Value (Q&V) Questionnaire for purposes of respondent selection, in general each company must report volume and value data separately for itself. Parties should not include data for any other party, even if they believe they should be treated as a single entity with that other party. If a company was collapsed with another company or companies in the most recently completed segment of this proceeding where Commerce considered collapsing that entity, complete Q&V data for that collapsed entity must be submitted.

    Deadline for Withdrawal of Request for Administrative Review

    Pursuant to 19 CFR 351.213(d)(1), a party that has requested a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that Commerce may extend this time if it is reasonable to do so. Determinations by Commerce to extend the 90-day deadline will be made on a case-by-case basis.

    Deadline for Particular Market Situation Allegation

    Section 504 of the Trade Preferences Extension Act of 2015 amended the Act by adding the concept of particular market situation (PMS) for purposes of constructed value under section 773(e) of the Act.2 Section 773(e) of the Act states that “if a particular market situation exists such that the cost of materials and fabrication or other processing of any kind does not accurately reflect the cost of production in the ordinary course of trade, the administering authority may use another calculation methodology under this subtitle or any other calculation methodology.” When an interested party submits a PMS allegation pursuant to section 773(e) of the Act, Commerce will respond to such a submission consistent with 19 CFR 351.301(c)(v). If Commerce finds that a PMS exists under section 773(e) of the Act, then it will modify its dumping calculations appropriately.

    2See Trade Preferences Extension Act of 2015, Public Law 114-27, 129 Stat. 362 (2015).

    Neither section 773(e) of the Act nor 19 CFR 351.301(c)(v) set a deadline for the submission of PMS allegations and supporting factual information. However, in order to administer section 773(e) of the Act, Commerce must receive PMS allegations and supporting factual information with enough time to consider the submission. Thus, should an interested party wish to submit a PMS allegation and supporting new factual information pursuant to section 773(e) of the Act, it must do so no later than 20 days after submission of initial responses to section D of the questionnaire.

    Separate Rates

    In proceedings involving non-market economy (NME) countries, Commerce begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is Commerce's policy to assign all exporters of merchandise subject to an administrative review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.

    To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, Commerce analyzes each entity exporting the subject merchandise. In accordance with the separate rates criteria, Commerce assigns separate rates to companies in NME cases only if respondents can demonstrate the absence of both de jure and de facto government control over export activities.

    All firms listed below that wish to qualify for separate rate status in the administrative reviews involving NME countries must complete, as appropriate, either a separate rate application or certification, as described below. For these administrative reviews, in order to demonstrate separate rate eligibility, Commerce requires entities for whom a review was requested, that were assigned a separate rate in the most recent segment of this proceeding in which they participated, to certify that they continue to meet the criteria for obtaining a separate rate. The Separate Rate Certification form will be available on Commerce's website at http://enforcement.trade.gov/nme/nme-sep-rate.html on the date of publication of this Federal Register notice. In responding to the certification, please follow the “Instructions for Filing the Certification” in the Separate Rate Certification. Separate Rate Certifications are due to Commerce no later than 30 calendar days after publication of this Federal Register notice. The deadline and requirement for submitting a Certification applies equally to NME-owned firms, wholly foreign-owned firms, and foreign sellers who purchase and export subject merchandise to the United States.

    Entities that currently do not have a separate rate from a completed segment of the proceeding 3 should timely file a Separate Rate Application to demonstrate eligibility for a separate rate in this proceeding. In addition, companies that received a separate rate in a completed segment of the proceeding that have subsequently made changes, including, but not limited to, changes to corporate structure, acquisitions of new companies or facilities, or changes to their official company name,4 should timely file a Separate Rate Application to demonstrate eligibility for a separate rate in this proceeding. The Separate Rate Status Application will be available on Commerce's website at http://enforcement.trade.gov/nme/nme-sep-rate.html on the date of publication of this Federal Register notice. In responding to the Separate Rate Status Application, refer to the instructions contained in the application. Separate Rate Status Applications are due to Commerce no later than 30 calendar days of publication of this Federal Register notice. The deadline and requirement for submitting a Separate Rate Status Application applies equally to NME-owned firms, wholly foreign-owned firms, and foreign sellers that purchase and export subject merchandise to the United States.

    3 Such entities include entities that have not participated in the proceeding, entities that were preliminarily granted a separate rate in any currently incomplete segment of the proceeding (e.g., an ongoing administrative review, new shipper review, etc.) and entities that lost their separate rate in the most recently completed segment of the proceeding in which they participated.

    4 Only changes to the official company name, rather than trade names, need to be addressed via a Separate Rate Application. Information regarding new trade names may be submitted via a Separate Rate Certification.

    For exporters and producers who submit a separate-rate status application or certification and subsequently are selected as mandatory respondents, these exporters and producers will no longer be eligible for separate rate status unless they respond to all parts of the questionnaire as mandatory respondents.

    Initiation of Reviews:

    In accordance with 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend to issue the final results of these reviews not later than September 30, 2019.

    Antidumping duty proceedings Period to be reviewed Brazil: Emulsion Styrene Butadiene Rubber A-351-849 2/24/17-8/31/18 Arlanxeo Brasil S.A India: Certain Lined Paper Products A-533-843 9/1/17-8/31/18 Cellpage Ventures Private Limited Goldenpalm Manufacturers PVT Limited Kokuyo Riddhi Paper Products Private Limited Lodha Offset Limited Lotus Global Private Limited Magic International Pvt. Ltd Marisa International Navneet Education Ltd PB Bafna Ventures Private Limited Pioneer Stationery Private Limited SAB International SGM Paper Products Super Impex India: Oil Country Tubular Goods A-533-857 9/1/17-8/31/18 GVN Fuels, Ltd Mexico: Emulsion Styrene-Butadiene Rubber A-201-848 2/24/17-8/31/18 Negromex, S.A. de C.V Mexico: Heavy Walled Rectangular Weld Carbon Steel Pipes and Tubes A-201-847 9/1/17-8/31/18 Arco Metal, S.A. de C.V Forza Steel, S.A. de C.V Industrias Monterrey, S.A. de C.V Maquilacero, S.A. de C.V Perfiles y Herrajes LM, S.A. de C.V Productos Laminados de Monterrey, S.A. de C.V PYTCO, S.A. de C.V Regiomontana de Perfiles y Tubos, S.A. de C.V Ternium S.A. de C.V Tuberia Nacional, S.A. de C.V Tuberias Procarsa S.A. de C.V Poland: Emulsion Styrene Butadiene Rubber A-455-805 2/24/17-8/31/18 Synthos Dwory 7 Spolka Z Orgraniczona Odpowiedzialnoscia Spolka Jawna (SP.ZO.O.S.J.) Republic of Korea: Cold-Rolled Steel Flat Products A-580-881 9/1/17-8/31/18 Hyundai Steel Company POSCO Dongbu Steel Co., Ltd Dongbu Steel Incheon Steel Co., Ltd Republic of Korea: Emulsion Styrene Butadience Rubber A-580-890 2/24/17-8/31/18 LG Chem, Ltd Daewoo International Corporatin Kumho Petrochemical Co. Ltd Sungsan International Co., Ltd WE International Co., Ltd Kukje Trading Corp Hyundai Glovis Co., Ltd Republic of Korea: Heavy Walled Rectangular Welded Carbon Steel Pipes and Tubes A-580-880 9/1/17-8/31/18 Ahshin Pipe & Tube Company Bookook Steel Co., Ltd Dong-A Steel Company Dongbu Steel Co., Ltd Ganungol Industries Co. Ltd Hanjin Steel Pipe HiSteel Co., Ltd Husteel Co., Ltd Hyosung Corporation Hyundai Steel Co Hyundai Steel Pipe Company K Steel Co. Ltd Kukje Steel Co., Ltd Miju Steel Manufacturing Co., Ltd NEXTEEL Co., Ltd POSCO DAEWOO Sam Kang Industrial Co., Ltd Sam Kang Industries Co., Ltd Samson Controls Ltd., Co SeAH Steel Corporation Yujin Steel Industry Co. Ltd Republic of Korea: Oil Country Tubular Goods A-580-870 9/1/17-8/31/18 AJU Besteel Co., Ltd BDP International Daewoo America Daewoo International Corporation Dong Yang Steel Pipe Dong-A Steel Co. Ltd Dongbu Incheon Steel DSEC Emdtebruecker Eisenwerk and Company Hansol Metal Husteel Co., Ltd Hyundai Steel Company Hyundai RB ILJIN Steel Corporation Jim And Freight Co., Ltd Kia Steel Co. Ltd KSP Steel Company Kukje Steel Kumkang Kind Co., Ltd Kurvers NEXTEEL Co., Ltd POSCO Daewoo America POSCO Daewoo Corporation Samsung Samsung C and T Corporation SeAH Besteel Corporation SeAH Steel Corporation Steel Canada Sumintomo Corporation TGS Pipe Yonghyun Base Materials ZEECO Asia Socialist Republic of Vietnam: Oil Country Tubular Goods A-552-817 9/1/17-8/31/18 SeAH Steel Vina Corporation Pusan Pipe America Romania: Carbon and Alloy Seamless Standard Line and Pressure Pipe (Under 41/2 Inches) 5 A-485-805 8/1/17-7/31/18 SC TMK-Artrom S.A Taiwan: Narrow Woven Ribbons With Woven Selvedge A-583-844 9/1/17-8/31/18 Banduoo Ltd Fujian Rongshu Industry Co., Ltd Maple Ribbon Co., Ltd Roung Shu Industry Corporation Xiamen Yi-He Textile Co., Ltd The People's Republic of China: Certain Magnesia Carbon Bricks A-570-954 9/1/17-8/31/18 Fedmet Resources Corporation Fengchi Imp. and Exp. Co., Ltd Fengchi Imp. and Exp. Co., Ltd. of Haicheng City Fengchi Mining Co., Ltd. of Haicheng City Fengchi Refractories Co., of Haicheng City Liaoning Zhongmei High Temperature Material Co., Ltd Liaoning Zhongmei Holding Co., Ltd RHI Refractories Liaoning Co., Ltd Shenglong Refractories Co., Ltd Yingkou Heping Samwha Minerals, Co., Ltd Yingkou Heping Sanhua Materials Co., Ltd The People's Republic of China: Certain New Pneumatic Off-the-Road Tires A-570-912 9/1/17-8/31/18 Laizhou Xiongying Rubber Industry Co., Ltd Qingdao Honghua Tyre Factory Qingdao Jinhaoyang International Co., Ltd Triangle Tyre Co., Ltd Weihai Zhongwei Rubber Co., Ltd The People's Republic of China: Certain Steel Nails 6 A-570-909 8/1/17-7/31/18 Air It on Inc A-Jax Enterprises Ltd A-Jax International Co. Ltd Anhui Amigo Imp.& Exp. Co. Ltd Anhui Tea Imp. & Exp. Co. Ltd Anjing Caiquing Hardware Co., Ltd Asiahan Industrial Trading Ltd.* Astrotech Steels Pvt. Ltd Baoding Jieboshun Trading Co., Ltd.* Beijing Catic Industry Ltd Beijing Jinheung Co., Ltd.* Beijing Qin-Li Jeff Trading Co., Ltd Beijing Qin-Li Metal Industries Co., Ltd.* Bodi Corporation Cana (Rizhou) Hardward Co. Ltd Cangzhou Nandagang Guotai Hardware Products Co., Ltd.* Cangzhou Xinqiao Int'l Trade Co. Ltd Certified Products Taiwan Inc Changzhou Kya Trading Co. Ltd Chanse Mechatronics Scientech Development (Jiangsu) Inc.* Chia Pao Metal Co. Ltd China Dinghao Co. Ltd China Staple Enterprise Co. Ltd Chinapack Ningbo Imp. & Exp. Co. Ltd Chite Enterprise Co. Ltd Chonyi International Co. Ltd.* Crelux Int'l Co. Ltd Daejin Steel Co. Ltd Dezhou Hualude Hardware Products Co. Ltd Dingzhou Baota Metal Products Co. Ltd Dong E Fuqiang Metal Products Co. Ltd Dream Rising Co., Ltd Eco-Friendly Floor Ltd Ejen Brother Limited Everglow Inc Everleading International Inc Faithful Engineering Products Co. Ltd Fastening Care Fastgrow International Co. Inc Foshan Hosontool Development Hardware Co. Ltd GD CP International Ltd GDCP International Co., Ltd Geeky Wires Limited Glori-Industry Hong Kong Inc Guangdong Meite Mechanical Co. Ltd Guangdong TC Meite Intelligent Tools Co., Ltd Hangzhou Orient Industry Co., Ltd Hebei Canzhou New Century Foreign Trade Co. Ltd Hebei Jindun Trade Co., Ltd Hebei Minghao Imp. & Exp. Co. Ltd.* Hebei Minmetals Co., Ltd Hengtuo Metal Products Co. Ltd Home Value Co., Ltd.* Hongkong Shengshi Metal Products Co., Ltd.* Hongyi (HK) Hardware Products Co. Ltd Huaiyang County Yinfeng Plastic Factory Hualude International Development Co. Ltd Huanghua Haixin Hardware Products Co., Ltd.* Huanghua Yingjin Hardware Products Inmax Industries Sdn. Bhd ITW Construction Products Jade Shuttle Enterprise Co. Ltd Jiang Men City Yu Xing Furniture Limited Company Jiangsu General Science Technology Co. Ltd Jiangsu Holly Corporation Jiangsu Huaiyin Guex Tools Jiangsu Inter-China Group Corp Jiangu Soho Honry Imp. and Exp. Co. Ltd Jiaxing TSR Hardware Inc Jinhai Hardware Co. Ltd Jinsco International Corp Jinsheung Steel Corporation Koram Inc Korea Wire Co. Ltd Liang's Ind. Corp Liaocheng Minghui Hardware Products Linyi FlyingArrow Imp. & Exp. Co Ltd M&M Industries Co., Ltd Maanshan Lilai International Trade Co. Ltd.* Max Co., Ltd Milkway Chemical Supply Chain Service Co., Ltd Mingguang Abundant Hardware Products Co. Ltd Mingguang Ruifeng Hardware Products Co. Ltd Modern Factory For Metal Products Nailtech Co. Ltd Nanjing Caiquing Hardware Co. Ltd Nanjing Nuochun Hardware Co. Ltd Nanjing Tianxingtong Electronic Technology Co. Ltd.* Nanjing Tianyu International Co. Ltd.* Nanjing Toua Hardware & Tools Co. Ltd.* Nanjing Yuechang Hardware Co., Ltd Nanjing Zeejoe International Trade Nantong Intlevel Trade Co., Ltd Natuzzi China Limited Nielsen Bainbridge LLC Ningbo Adv. Tools Co. Ltd Ningbo Angelar Trading Co., Ltd Ningbo Fine Hardware Production Co. Ltd Ningbo Freewill Imp. & Exp Co., Ltd Ningbo Langyi Metal Products Co., Ltd.* Ningbo Sunrise International Ltd Ningbo WePartner Imp. & Exp. Co., Ltd Overseas Distribution Services Inc Overseas International Steel Industry Paslode Fasteners Co. Ltd Patek Tool Co. Ltd President Industrial Inc Promising Way (Hong Kong) Ltd Qingda Jisco Co. Ltd Qingdao Ant Hardware Manufacturing Co. Ltd Qingdao D&L Hardware Co. Ltd Qingdao Gold Dragon Co. Ltd Qingdao Hongyuan Nail Industry Co. Ltd Qingdao JCD Machinery Co., Ltd Qingdao Meijialucky Industry and Co Qingdao MST Industry and Commerce Co. Ltd Qingdao Powerful Machinery Co., Ltd.* Qingdao Top Metal Industrial Co., Ltd.* Qingdao Top Steel Industrial Co. Ltd Qingdao Uni-Trend International Quzhou Monsoon Hardware Co. Ltd Region Industries Co. Ltd Region System Sdn. Bhd Rise Time Industrial Ltd Romp Coil Nail Industries Inc R-Time Group Inc Ruifeng Hardware Products Co., Ltd SDC International Australia Pty. Ltd Senco Asia Manufacturing Ltd Shandong Dinglong Imp. & Exp. Co., Ltd Shandong Liaocheng Minghua Metal Pvt. Ltd Shandong Liaocheng Minghua Metal Pvt. Ltd Shandong Oriental Cherry Hardware Group Co. Ltd Shandong Oriental Cherry Hardware Import & Export Co. Ltd Shandong Qingyun Hongyi Hardware Co. Ltd Shanghai Cedargreen Imp. & Exp. Co., Ltd Shanghai Curvet Hardware Products Co. Ltd Shanghai Curvet Hardware, Co., Ltd.* Shanghai Haoray International Trade Co. Ltd Shanghai Jade Shuttle Hardware Tools Co. Ltd Shanghai Seti Enterprise Int'l Co. Ltd Shanghai Sutek Industries Co., Ltd Shanghai Yiren Machinery Co., Ltd Shanghai Yueda Fasteners Co., Ltd Shanghai Yueda Nails Co. Ltd Shanghai Yueda Nails Co. Ltd Shanghai Zoonlion Industrial Co., Ltd Shanxi Easyfix Trade Co. Ltd Shanxi Hairui Trade Co. Ltd Shanxi Pioneer Hardware Industrial Co. Ltd Shanxi Tianli Industries Co. Ltd Shanxi Xinjintai Hardware Co., Ltd Shaoxing Chengye Metal Producing Co. Ltd Shenzhen Xinjintai Hardware Co. Ltd S-Mart (Tianjin) Technology Development Co. Ltd.* Stanley Black & Decker, Inc Sueyi International Ltd Sumec Machinery and Electric Co., Ltd.* Suntec Industries Co. Ltd Suzhou Xingya Nail Co. Ltd Taizhou Dajiang Ind. Co. Ltd Test-Rite International Co., Ltd.* The Stanley Works (Langfang) Fastening Systems Co., Ltd Theps International Tianji Hweschun Fasteners Manufacturing Co. Ltd Tianjin Baisheng Metal Products Co. Ltd Tianjin Bluekin Indusries Ltd Tianjin Coways Metal Products Co. Ltd Tianjin Dagang Jingang Nail Factory Tianjin Evangel Imp. & Exp. Co. Ltd Tianjin Fulida Supply Co. Ltd Tianjin Huixingshangmao Co. Ltd Tianjin Jin Xin Sheng Long Metal Products Co. Ltd Tianjin Jinchi Metal Products Co. Ltd Tianjin Jinghai County Hongli Industry and Business Co. Ltd Tianjin Jinghai Yicheng Metal Pvt Tianjin Jinlin Pharmaceutical Factory Tianjin Jinmao Imp. & Exp. Corp. Ltd Tianjin Lianda Group Co. Ltd Tianjin Liweitian Metal Technology* Tianjin Tianhua Environmental Plastics Co. Ltd Tianjin Universal Machinery Imp. & Exp Tianjin Yong Sheng Towel Mill Tianjin Yongye Furniture Co. Ltd Tianjin Zhonglian Metals Ware Co. Ltd Tianjin Zhonglian Times Technology Tianjin Zhongsheng Garment Co. Ltd Tinjin Liweitian Metal Technology Tinjin Tiaolai Import & Export Company Ltd Tsugaru Enterprise Co., Ltd Unicorn Fasteners Co. Ltd Verko Incorporated Win Fasteners Manufactory (Thailand) Co. Ltd Wire Products Manufacturing Co., Ltd Wulian Zhanpeng Metals Co. Ltd Xi'An Metals and Minerals Imp. & Exp. Co. Ltd Xiamen Zhaotai Industrial Corp Yongchang Metal Product Co Youngwoo Fasteners Co., Ltd Yuyao Dingfeng Engineering Co. Ltd Zhanghaiding Hardware Co., Ltd Zhangjiagang Lianfeng Metals Products Co. Ltd Zhangjiagang Longxiang Industries Co. Ltd Zhaoqing Harvest Nails Co. Ltd Zhejiang Best Nail Industry Co. Ltd Zhejiang Jihengkang (JHK) Door Ind. Co. Ltd Zhejiang Saiteng New Building Materials Co., Ltd.* Zhejiang Yiwu Yongzhou Imp. & Exp. Co. Ltd Zhong Shan Daheng Metal Products Co. Ltd Zhong Shan Shen Neng Metals Products Co. Ltd Zhucheng Jinming Metal Products Co. Ltd Zhucheng Runfang Paper Co. Ltd The People's Republic of China: Freshwater Crawfish Tailmeat A-570-848 9/1/17-8/31/18 Anhui Luan Hongyuan Foodstuffs Co., Ltd China Kingdom (Beijing) Import & Export Co., Ltd Deyan Aquatic Products and Food Co., Ltd Hubei Nature Agriculture Industry Co., Ltd Hubei Qianjiang Huashan Aquatic Food and Product Co., Ltd Hubei Yuesheng Aquatic Products Co., Ltd Jingzhou Tianhe Aquatic Products Co., Ltd Kunshan Xinrui Trading Co., Ltd Nanjing Gemsen International Co., Ltd Nanjing Yinxiangchen International Trade Co., Ltd Shanghai Ocean Flavor International Trading Co., Ltd Weishan Hongda Aquatic Food Co., Ltd Xiping Opeck Food Co., Ltd Xuzhou Jinjiang Foodstuffs Co., Ltd Yangcheng Hi-King Agriculture Developing Co., Ltd The People's Republic of China: Hydrofluorocarbon Blends 7 A-570-028 8/1/17-7/31/18 Daikin Fluorochemicals (China) Co., Ltd Zhejiang Sanmei Chemical Industry Co., Ltd Weitron International Refrigeration Equipment (Kunshan) Co., Ltd Turkey: Heavy Walled Rectangular Welded Carbon Steel Pipes and Tubes A-489-824 9/1/17-8/31/18 Agir Haddecilik A.S Cinar Boru Profil San Ve Tic Stl MTS Lojistik ve Tasimacilik Hizmetleri TIC A.S. Istanbul Noksel Celik Boru Sanayi A Ozedemir Boru Profil San. ve Tic. Ltd. Sti Turkey: Oil Country Tubular Goods A-489-816 9/1/17-8/31/18 Cayirova Boru San A.S Çayirova Boru Sanayi ve Ticaret A.Ş. and Yücel Boru Ithalat-Ihracat ve Pazarlama A.Ş. (collectively Yücel) HG Tubulars Canada Ltd Toscelik Single Entity (The Toscelik Single Entity comprises the following companies: Toscelik Profil ve Sac Endustrici A.S and its affiliates Tosyali Dis Ticaret A.S., Tosyali Demir Celik A.S., Tosyali Holding A.S., Toscelik Granul San A.S., Tosyali Elektrik Enerjsi Toptan Satis, Tosyali Elek Enerjsi Uretim A.S., and Toscelik Spiral Boru Uretim San A.S.) Yucelboru Ihracat, Ithalat United Kingdom: Cold-Rolled Steel Flat Products A-412-824 9/1/17-8/31/18 Caparo Precision Strip, Ltd./Liberty Performance Steels, Ltd.8 Countervailing Duty Proceedings India: Lined Paper Products C-533-844 1/1/17-12/31/17 Goldenpalm Manufacturers PVT Limited Republic of Korea: Certain Cold-Rolled Steel Flat Products C-580-882 1/1/17-12/31/17 Dongbu Steel Co., Ltd Hyundai Steel Company POSCO Dongbu Incheon Steel Co., Ltd Dongbu Steel Incheon Steel Co., Ltd Dongkuk Steel Mill Co., Ltd Dongkuk Industries Co., Ltd Euro Line Global Co., Ltd Hanawell Co., Ltd Hankum Co., Ltd Hyuk San Profile Co., Ltd Hyundai Steel Co., Ltd Nauri Logistics Co., Ltd Taihan Electric Wire Co., Ltd Union Steel Co., Ltd The People's Republic of China: Certain Magnesia Carbon Bricks C-570-955 1/1/17-12/31/17 Fedmet Resources Corporation Fengchi Imp. and Exp. Co., Ltd Fengchi Imp. and Exp. Co., Ltd. of Haicheng City Fengchi Mining Co., Ltd. of Haicheng City Fengchi Refractories Co., of Haicheng City Liaoning Zhongmei High Temperature Material Co., Ltd Liaoning Zhongmei Holding Co., Ltd RHI Refractories Liaoning Co., Ltd Shenglong Refractories Co., Ltd Yingkou Heping Samwha Minerals, Co., Ltd Yingkou Heping Sanhua Materials Co., Ltd The People's Republic of China: Certain New Pneumatic Off-the-Road Tires C-570-913 1/1/17-12/31/17 Laizhou Xiongying Rubber Industry Co., Ltd Qingdao Jinhaoyang International Co., Ltd Triangle Tyre Co., Ltd Weihai Zhongwei Rubber Co., Ltd The People's Republic of China: Certain Passenger Vehicle and Light Truck Tires 9 C-570-017 1/1/17-12/31/17 Qingzhou Detai International Trading Co., Ltd The People's Republic of China: Narrow Woven Ribbons with Woven Selvedge C-570-953 1/1/17-12/31/17 Yama Ribbons and Bows Co., Ltd Turkey: Heavy-Walled Rectangular Welded Carbon Steel Pipes and Tubes C-489-825 1/1/17-12/31/17 Agir Haddecilik A.S Cinar Boru Profil San Ve Tic Stl MTS Lojistik ve Tasimacilik Hizmetleri TIC A.S. Istanbul Noksel Celik Boru Sanayi A Ozdemir Boru Profil San. Ve Tic. Ltd. Sti Turkey: Oil Country Tubular Goods C-489-817 1/1/17-12/31/17 Borusan Mannesamann Boru Sanayi ve Ticaret A.S Borusan Istikbal Ticaret T.A.S 5 The name of the company listed above was misspelled in the initiation notice that published on October 4, 2018 (83 FR 50077). The correct spelling of the company name is listed in this notice. 6 In the initiation notice that published on October 4, 2018 (83 FR 50077), Commerce inadvertently made several errors with respect to the initiation of this review. This notice serves as a correction to the October initiation notice. Specifically, the companies with an “*” after their names were left off the list in the October notice. Moreover, the following companies that were listed in the October 4, 2018 notice are not under review: Hangzhou Spring Washer Co. Ltd., Home International Development Co. Ltd., and Tianjin Huixishangmao Co. Ltd. In addition, we hereby correct the names of the following companies: Shanxi Hairui Trade Co. Ltd., Shenzhen Xinjintai Hardware Co. Ltd., and Unicorn Fasteners Co. Ltd. 7 In the initiation notice that published on October 4, 2018 (83 FR 50077), Commerce inadvertently misspelled the company names listed above. The correct spelling of the company names is listed in this notice. In addition, we inadvertently initiated an administrative review for Weitron, Inc., the affiliated U.S. reseller of Weitron International Refrigeration Equipment (Kunshan) Co., Ltd. See Weitron International Refrigeration Equipment (Kunshan) Co., Ltd.'s Letter, “Request for Administrative Review of the Antidumping Duty Order on Hydrofluorocarbon Blends and Components Thereof from the People's Republic of China (A-570-028),” dated August 31, 2017, showing that Weitron, Inc. is the U.S. affiliated reseller of this Chinese exporter. 8 We have previously determined that Liberty Performance Steels Ltd. is the successor-in-interest to Caparo Precision Strip, Ltd. 9 The name of the company listed above was misspelled in the initiation notice that published on October 4, 2018 (83 FR 50077). The correct spelling of this company name is listed in this notice. Suspension Agreements

    None

    Duty Absorption Reviews

    During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping duty order under 19 CFR 351.211 or a determination under 19 CFR 351.218(f)(4) to continue an order or suspended investigation (after sunset review), the Secretary, if requested by a domestic interested party within 30 days of the date of publication of the notice of initiation of the review, will determine whether antidumping duties have been absorbed by an exporter or producer subject to the review if the subject merchandise is sold in the United States through an importer that is affiliated with such exporter or producer. The request must include the name(s) of the exporter or producer for which the inquiry is requested.

    Gap Period Liquidation

    For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period, of the order, if such a gap period is applicable to the POR.

    Administrative Protective Orders and Letters of Appearance

    Interested parties must submit applications for disclosure under administrative protective orders in accordance with the procedures outlined in Commerce's regulations at 19 CFR 351.305. Those procedures apply to administrative reviews included in this notice of initiation. Parties wishing to participate in any of these administrative reviews should ensure that they meet the requirements of these procedures (e.g., the filing of separate letters of appearance as discussed at 19 CFR 351.103(d)).

    Factual Information Requirements

    Commerce's regulations identify five categories of factual information in 19 CFR 351.102(b)(21), which are summarized as follows: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by Commerce; and (v) evidence other than factual information described in (i)-(iv). These regulations require any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. The regulations, at 19 CFR 351.301, also provide specific time limits for such factual submissions based on the type of factual information being submitted. Please review the final rule, available at http://enforcement.trade.gov/frn/2013/1304frn/2013-08227.txt, prior to submitting factual information in this segment.

    Any party submitting factual information in an antidumping duty or countervailing duty proceeding must certify to the accuracy and completeness of that information.10 Parties are hereby reminded that revised certification requirements are in effect for company/government officials as well as their representatives. All segments of any antidumping duty or countervailing duty proceedings initiated on or after August 16, 2013, should use the formats for the revised certifications provided at the end of the Final Rule. 11 Commerce intends to reject factual submissions in any proceeding segments if the submitting party does not comply with applicable revised certification requirements.

    10See section 782(b) of the Act.

    11See Certification of Factual Information To Import Administration During Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 17, 2013) (Final Rule); see also the frequently asked questions regarding the Final Rule, available at http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.

    Extension of Time Limits Regulation

    Parties may request an extension of time limits before a time limit established under part 351 expires, or as otherwise specified by the Secretary. See 19 CFR 351.302. In general, an extension request will be considered untimely if it is filed after the time limit established under part 351 expires. For submissions which are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. on the due date. Examples include, but are not limited to: (1) Case and rebuttal briefs, filed pursuant to 19 CFR 351.309; (2) factual information to value factors under 19 CFR 351.408(c), or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2), filed pursuant to 19 CFR 351.301(c)(3) and rebuttal, clarification and correction filed pursuant to 19 CFR 351.301(c)(3)(iv); (3) comments concerning the selection of a surrogate country and surrogate values and rebuttal; (4) comments concerning U.S. Customs and Border Protection data; and (5) quantity and value questionnaires. Under certain circumstances, Commerce may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, Commerce will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. This modification also requires that an extension request must be made in a separate, stand-alone submission, and clarifies the circumstances under which Commerce will grant untimely-filed requests for the extension of time limits. These modifications are effective for all segments initiated on or after October 21, 2013. Please review the final rule, available at http://www.thefederalregister.org/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to submitting factual information in these segments.

    These initiations and this notice are in accordance with section 751(a) of the Act (19 U.S.C. 1675(a)) and 19 CFR 351.221(c)(1)(i).

    Dated: November 8, 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. 2018-24943 Filed 11-14-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-570-085] Certain Quartz Surface Products From the People's Republic of China: Preliminary Affirmative Determination of Critical Circumstances, in Part, in the Countervailing Duty Investigation AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that critical circumstances exist with respect to imports of certain quartz surface products (quartz surface products) from certain producers and exporters from the People's Republic of China (China).

    DATES:

    Applicable November 15, 2018.

    FOR FURTHER INFORMATION CONTACT:

    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) 482-1791.

    SUPPLEMENTARY INFORMATION:

    Background

    On April 17, 2018, Commerce received a countervailing duty (CVD) petition concerning imports of quartz surface products from China filed in proper form on behalf of the petitioner, Cambria Company LLC.1 On May 16, 2018, we initiated this investigation,2 and on September 21, 2018, we published an affirmative Preliminary Determination. 3

    1See “Petitions for the Imposition of Antidumping and Countervailing Duties: Certain Quartz Surface Products from the People's Republic of China,” dated April 17, 2018 (Petition).

    2See Certain Quartz Surface Products from the People's Republic of China: Initiation of Countervailing Duty Investigation, 83 FR 22618 (May 16, 2018) (Initiation Notice), and accompanying Initiation Checklist.

    3See Certain Quartz Surface Products from the People's Republic of China: Preliminary Affirmative Countervailing Duty Determination, and Alignment of Final Determination with Final Antidumping Determination, 83 FR 47881 (September 21, 2018) (Preliminary Determination), and accompanying Preliminary Decision Memorandum (PDM).

    Commerce selected Fasa Industrial Corporation, Limited (Fasa Industrial), Foshan Yixin Stone Co., Ltd. (Foshan Yixin), and Foshan Hero Stone Co., Ltd. (Hero Stone) as the individually-examined respondents in this investigation. With respect to Hero Stone and Fasa Industrial, in the Preliminary Determination we based the subsidy rates for these respondents on adverse facts available (AFA), in accordance with section 776(a) and (b) of the Tariff Act of 1930, as amended (the Act).4

    4See Preliminary Determination PDM at Use of Facts Otherwise Available and Adverse Inferences.

    On October 9, 2018, the petitioner alleged that critical circumstances exist with respect to imports of quartz surface products from China, pursuant to section 703(e)(1) of the Act and 19 CFR 351.206.5

    5See Letter from the petitioner, “Certain Quartz Surface Products from the People's Republic of China: Amendment to Petition for the Imposition of Antidumping and Countervailing Duties to Allege Existence of Critical Circumstances,” dated October 9, 2018 (Critical Circumstances Allegation).

    In accordance with 19 CFR 351.206(c)(1), if the petitioner submits an allegation of critical circumstances 30 days or more before the scheduled date of the final determination,6 Commerce will make a preliminary finding whether there is a reasonable basis to believe or suspect that critical circumstances exist. Commerce will issue its preliminary finding of critical circumstances within 30 days after the petitioner submits the allegation.7

    6 The final determination for this CVD investigation is currently due no later than January 28, 2019.

    7See 19 CFR 351.206(c)(2)(ii).

    Period of Investigation (POI)

    The POI is January 1, 2017, through December 31, 2017.

    Critical Circumstances Allegation

    The petitioner alleged a massive increase of imports of certain quartz surface products from China and provided monthly import data for the period January 2017 through August 2018.8 The petitioner states that a comparison of total imports, by quantity, for the period February 2018 through April 2018, to the period May 2018 through July 2018, shows that imports of quartz surface products from China increased by 81 percent,9 which is considered “massive” under 19 CFR 351.206(h)(2). The petitioner also alleges that there is a reasonable basis to believe that there are subsidies in this investigation which are inconsistent with the Subsidies and Countervailing Measures Agreement (SCM Agreement).10

    8See Amended Critical Circumstances Allegation at Exhibit 1.

    9See Critical Circumstances Allegation at 2.

    10Id. at 5-6.

    Critical Circumstances Analysis

    Section 703(e)(1) of the Act provides that Commerce will preliminarily determine that critical circumstances exist if there is a reasonable basis to believe or suspect that: (A) The alleged countervailable subsidy is inconsistent with the SCM Agreement; 11 and (B) there have been massive imports of the subject merchandise over a relatively short period.

    11 Commerce limits its critical circumstances findings to those subsidies contingent upon export performance or use of domestic over imported goods (i.e., those prohibited under Article 3 of the SCM Agreement). See e.g., Final Affirmative Countervailing Duty Determination and Final Negative Critical Circumstances Determination: Carbon and Certain Alloy Steel Wire from Germany, 67 FR 55808, 55809-10 (August 30, 2002) (Steel Wire from Germany).

    In determining whether there are “massive imports” over a “relatively short period,” pursuant to section 703(e)(1)(B) of the Act and 19 CFR 351.206(h) and (i), Commerce normally compares the import volumes of the subject merchandise for at least three months immediately preceding the filing of the petition (i.e., the base period) to a comparable period of at least three months following the filing of the petition (i.e., the comparison period). However, the regulations also provide that if Commerce finds that importers, or exporters or producers, had reason to believe, at some time prior to the beginning of the proceeding, that a proceeding was likely, Commerce may consider a period of not less than three months from the earlier time.12 Imports must increase by at least 15 percent during the comparison period to be considered massive.13

    12See 19 CFR 351.206(i).

    13See 19 CFR 351.206(h)(2).

    Foshan Yixin

    In the Preliminary Determination, we found that Foshan Yixin did not receive any countervailable subsidies during the POI that are inconsistent with the SCM Agreement.14 Accordingly, because the requirement under section 703(e)(1)(A) of the Act has not been met, we preliminarily determine that critical circumstances do not exist with respect to Foshan Yixin.

    14See Preliminary Determination PDM at Analysis of Programs.

    Fasa Industrial and Hero Stone

    As explained in our Preliminary Determination, we applied total adverse facts available (AFA) to Fasa Industrial and Hero Stone, pursuant to section 776(b) of the Act. In applying total AFA to these two companies, we preliminarily determined that both Fasa Industrial and Hero Stone benefited from countervailable subsidies under the “Export Assistance Grants” program.15 Although we did not make a preliminary finding as to whether the “Export Assistance Grants” program was inconsistent with the SCM Agreement in the Preliminary Determination, we now preliminarily find, pursuant to section 776(b) of the Act, that there is a reasonable basis to believe or suspect that the program, as alleged in the Petition and supported by information reasonably available to the petitioner, is export contingent within the meaning of section 771(5A)(B) of the Act and, thus, inconsistent with the SCM Agreement.16 We preliminarily found this program to have a program-specific rate of 0.58 percent.17 We are making the inconsistency determination with regard to this program, which had the lowest rate in the Preliminary Determination among the programs alleged to be inconsistent with the SCM Agreement. In so doing, we intend to limit the corresponding offset to the dumping margin (if one is found) in the companion antidumping duty investigation, which best fulfills our statutory mandate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully,” 18 and induce future cooperation by companies in investigations where the petitioners allege the existence of programs potentially inconsistent with the SCM Agreement.

    15Id. at 11.

    16See Countervailing Duty Investigation Initiation Checklist: Certain Quartz Surface Products from the People's Republic of China, dated May 7, 2018.

    17See Preliminary Determination PDM at Appendix.

    18 Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Doc. 103-316, Vol. 1 (1994) at 870, reprinted in 1994 U.S.C.C.A.N. 4040, 4199.

    Because we preliminarily find that the “Export Assistance Grants” program is export contingent, we preliminarily find that the criterion under section 703(e)(1)(A) of the Act has been met. In addition, for the purposes of the “massive imports” analysis, we preliminarily determine, pursuant to section 776(b) of the Act, that Fasa Industrial and Hero Stone shipped quartz surface products in “massive” quantities during the comparison period, thereby fulfilling the criteria under section 703(e)(1)(B) of the Act.19 As a result, we preliminarily determine that critical circumstances exist with regard to Fasa Industrial and Hero Stone.

    19See Critical Circumstances Allegation at Exhibit 1.

    All Other Companies

    We based the all-others rate applied in the Preliminary Determination on the rate preliminarily calculated for Foshan Yixin. As noted above, we preliminarily found that Foshan Yixin did not use any countervailable subsidies inconsistent with the SCM Agreement. As a result, we also preliminarily determine that all other exporters of subject merchandise from China not selected as mandatory respondents did not use countervailable subsidies inconsistent with the SCM Agreement, and thus preliminarily find that critical circumstances do not exist with respect to the companies covered by the all-others rate.

    Final Determination

    We will make a final determination concerning critical circumstances in the final determination of this investigation, which is currently scheduled for January 28, 2019.

    Public Comment

    Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.20 Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs in this investigation are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.21

    20See 19 CFR 351.309(d)(1).

    21See 19 CFR 351.309(c)(2) and (d)(2).

    Electronically filed documents must be received successfully in their entirety by 5:00 p.m. Eastern Time on the due dates established above.22

    22See 19 CFR 351.303(b)(1).

    Suspension of Liquidation

    In accordance with section 703(e)(2)(A) of the Act, for Fasa Industrial and Hero Stone, we will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of any unliquidated entries of subject merchandise from the China entered, or withdrawn from warehouse for consumption, on or after June 23, 2018, which is 90 days prior to the date of publication of the Preliminary Determination in the Federal Register. For such entries, CBP shall require a cash deposit equal to the estimated preliminary subsidy rates established for Fasa Industrial and Hero Stone in the Preliminary Determination. This suspension of liquidation will remain in effect until further notice.

    ITC Notification

    In accordance with section 703(f) of the Act, we will notify the ITC of this preliminary determination of critical circumstances.

    This determination is issued and published pursuant to sections 703(f) and 777(i)(1) of the Act.

    Dated: November 8, 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. 2018-24941 Filed 11-14-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-073] Antidumping Duty Investigation of Common Alloy Aluminum Sheet From the People's Republic of China: Affirmative 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 common alloy aluminum sheet (common alloy sheet) from the People's Republic of China (China) is being, or is likely to be, sold in the United States at less-than-fair value (LTFV) for the period of investigation (POI) April 1, 2017, through September 30, 2017.

    DATES:

    Applicable November 15, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Scott Hoefke or Julie Geiger, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone (202) 482-4947 and (202) 482-2057, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    On June 6, 2018, Commerce published in the Federal Register the Preliminary Determination and invited interested parties to comment.1 On August 8, 2018, Commerce published in the Federal Register the Amended Preliminary Determination. 2 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 that is dated concurrently with this determination and hereby adopted by this notice.3

    1See Antidumping Duty Investigation of Common Alloy Aluminum Sheet from the People's Republic of China: Affirmative Preliminary Determination of Sales at Less-Than-Fair Value, Preliminary Affirmative Determination of Critical Circumstance, and Postponement of Final Determination, 83 FR 29088 (June 22, 2018) (Preliminary Determination) and accompanying Preliminary Decision Memorandum.

    2See Common Alloy Aluminum Sheet from the People's Republic of China: Amended Preliminary Affirmative Determination of Sales at Less Than Fair Value, 83 FR 39056 (August 8, 2018) (Amended Preliminary Determination).

    3See Memorandum, “Issues and Decision Memorandum for the Final Results of the Antidumping Duty Investigation of Common Alloy Aluminum Sheet from the People's Republic of China,” dated concurrently with, and hereby adopted by, this notice (Issues and Decision Memorandum).

    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 Issues and Decision Memorandum and the electronic version are identical in content.

    Scope Comments

    We invited parties to comment on Commerce's Scope Comments Preliminary Decision Memorandum.4 Commerce has reviewed the briefs submitted by interested parties, considered the arguments therein, and has made no changes to the scope of the investigation. For further discussion, see Commerce's Scope Comments Final Decision Memorandum.5

    4See Memorandum, “Common Alloy Aluminum Sheet from the People's Republic of China: Scope Comments Preliminary Decision Memorandum,” dated June 15, 2018.

    5See Memorandum, “Common Alloy Aluminum Sheet from the People's Republic of China: Scope Comments Final Decision Memorandum,” dated concurrently with this memorandum.

    Methodology

    Commerce conducted this investigation in accordance with section 731 of the Tariff Act of 1930, as amended (the Act). For a full description of the methodology underlying our final determination, see the Issues and Decision Memorandum.

    Scope of the Investigation

    The merchandise covered by this investigation is common alloy sheet from China. For a complete description of the scope of this investigation, see Appendix I.

    Verification

    As provided in section 782(i) of the Act, in July, we conducted verification of the questionnaire responses submitted by Henan Mingtai Industrial Co., Ltd. and Zhengzhou Mingtai (collectively, Mingtai). We issued verification reports on August 28, 2018.6 We used standard verification procedures, including an examination of relevant accounting and financial records, and original source documents provided by Mingtai.

    6See Commerce Memoranda, “Verification of the Questionnaire Responses of Henan Mingtai Al Industrial Co., ltd. and Zhengzhou Mingtai Industry Co., Ltd. in the Less-Than-Fair-Value Investigation of Common Alloy Aluminum Sheet from the People's Republic of China,” dated August 28, 2018.

    Period of Investigation

    The POI is April 1, 2017, through September 30, 2017.

    Analysis of Comments Received

    The issues raised in the case and rebuttal briefs that were submitted by parties 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.

    Final Affirmative Determination, in Part, of Critical Circumstances

    In the Preliminary Determination, we found that critical circumstances exist for to Nanjie Resources Co., Limited (Nanjie), Yong Jie New Material Co., Ltd. (Yong Jie New Material), and Zhejiang Yongjie Aluminum Co., Ltd. (Yongjie Aluminum) (collectively, Yongjie Companies); Zhejiang GKO Aluminium Stock Co., Ltd. (GKO Aluminium); the companies eligible for a separate rate; and the China-wide entity.7 After analyzing comments received from interested parties regarding our preliminary critical circumstances determinations, we continue to find that, in accordance with section 735(a)(3) of the Act and 19 CFR 351.206, critical circumstances exist with respect to Nanjie, the Yongjie Companies, GKO Aluminium, the companies eligible for a separate rate, and the China-wide entity.8

    7See Preliminary Determination, 83 FR at 29089.

    8See Issues and Decision Memorandum, at Comment 2.

    Use of Adverse Facts Available (AFA)

    For the final determination we continue to rely upon facts otherwise available, with adverse inferences (AFA), for the China-wide entity, the Yongjie Companies, and GKO Aluminium, pursuant to sections 776(a) and (b) of the Act.

    Changes Since the Preliminary Determination

    Based on our review and analysis of the comments received from parties, and minor corrections presented at verification, we made certain changes to Mingtai's margin calculation since the Preliminary Determination. For Mingtai, we calculated U.S. price and normal value using the same methodology stated in the Preliminary Determination, except as follows:

    • We revised the surrogate value for Mingtai's argon factor of production using data from Bulgaria instead of South Africa.

    • We revised the surrogate value for Mingtai's prompt aluminum scrap factor of production.

    • We revised Mingtai's normal value calculation by: (1) Disallowing a claimed by-product offset; and (2) treating run-around aluminum scrap as a direct material input, not as a by-product.

    China-Wide Entity

    For the final determination, we continue to find that the China-wide entity, which includes certain Chinese exporters and/or producers that did not respond to Commerce's requests for information, including mandatory respondents GKO Aluminium and the Yongjie Companies, failed to provide necessary information, failed to provide information in a timely manner, and significantly impeded this proceeding by not submitting the requested information. We also continue to find that the China-wide entity failed to cooperate to the best of its ability. As a result, we continue to rely on AFA in determining the rate for the China-wide entity and, as AFA, we select the highest rate listed in the initiation of the investigation (i.e., 59.72 percent), which is greater than the revised weighted-average dumping margin of Mingtai (i.e., 49.85 percent).9

    9See Issues and Decision Memorandum, at 5-7.

    Combination Rates

    Consistent with Preliminary Determination10 and Policy Bulletin 05.1,11 Commerce calculated combination rates for the respondents that are eligible for a separate rate in this investigation.

    10See Preliminary Determination, 83 FR at 29089-29090.

    11See Enforcement and Compliance's Policy Bulletin No. 05.1, regarding, “Separate-Rates Practice and Application of Combination Rates in Antidumping Investigations involving Non-Market Economy Countries,” (April 5, 2005) (Policy Bulletin 05.1), available on Commerce's website at http://enforcement.trade.gov/policy/bull05-1.pdf.

    Final Determination

    The final weighted-average antidumping margins are as follows:

    Exporter Producer Weighted-
  • average
  • margin
  • (percent)
  • Cash deposit
  • adjusted for
  • subsidy
  • offset
  • (percent)
  • Henan Mingtai Al Industrial Co., Ltd./Zhengzhou Mingtai Industry Co., Ltd Henan Mingtai Al Industrial Co., Ltd./Zhengzhou Mingtai Industry Co., Ltd 49.85 49.85 Alcha International Holdings Limited Jiangsu Alcha Aluminium Co., Ltd 49.85 49.85 Alumax Composite Material (Jiangyin) Co., Ltd Chalco Ruimin Co., Ltd 49.85 49.85 Granges Aluminum (Shanghai) Co., Ltd Granges Aluminum (Shanghai) Co., Ltd 49.85 49.85 Henan Founder Beyond Industry Co., Ltd Henan Xintai Aluminum Industry Co., Ltd 49.85 49.85 Huafon Nikkei Aluminium Corporation Huafon Nikkei Aluminium Corporation 49.85 49.85 Jiangsu Lidao New Material Co., Ltd Henan Jinyang Luyue Co., Ltd 49.85 49.85 Jiangsu Lidao New Material Co., Ltd Jiangsu Zhong He Aluminum Co., Ltd 49.85 49.85 Jiangyin Litai Ornamental Materials Co., Ltd Jiangyin Litai Ornamental Materials Co., Ltd 49.85 49.85 Jiangyin New Alumax Composite Material Co. Ltd Chalco Ruimin Co., Ltd 49.85 49.85 Shandong Fuhai Industrial Co., Ltd Shandong Fuhai Industrial Co., Ltd 49.85 49.85 Tianjin Zhongwang Aluminium Co., Ltd Tianjin Zhongwang Aluminium Co., Ltd 49.85 49.85 Xiamen Xiashun Aluminum Foil Co., Ltd Xiamen Xiashun Aluminum Foil Co., Ltd 49.85 49.85 Yantai Jintai International Trade Co., Ltd Shandong Nanshan Aluminium Co., Ltd 49.85 49.85 Yinbang Clad Material Co., Ltd Yinbang Clad Material Co., Ltd 49.85 49.85 Zhengzhou Silverstone Limited Henan Zhongyuan Aluminum Co., Ltd 49.85 49.85 Zhengzhou Silverstone Limited Luoyang Xinlong Aluminum Co., Ltd 49.85 49.85 Zhengzhou Silverstone Limited Shanghai Dongshuo Metal Trade Co., Ltd 49.85 49.85 Zhengzhou Silverstone Limited Zhengzhou Mingtai Industry Co., Ltd 49.85 49.85 China-Wide Entity 12 59.72 59.72
    Disclosure

    We intend to disclose to parties in this proceeding the calculations performed for this final determination within five days of the date of public announcement of our final determination, in accordance with 19 CFR 351.224(b).

    12 The China-wide entity also includes the following companies that filed separate rate applications: Nanjie Resources Co., Limited, Yong Jie New Material Co., Ltd., and Zhejiang Yongjie Aluminum Co., Ltd., Zhejiang GKO Aluminium Stock Co., Ltd.; Alnan Aluminium Inc.; Chalco Ruimin Co., Ltd.; CHALCO-SWA Cold Rolling Co., Ltd.; Luoyang Wanji Aluminium Processing Co., Ltd.; and Wanji Global (Singapore) PTE. LTD.

    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 common alloy sheet from China, as described in Appendix I of this notice, which are entered, or withdrawn from warehouse, for consumption on or after June 6, 2018, the date of publication in the Federal Register of the affirmative Preliminary Determination. Further, pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the weighted average amount by which normal value exceeds U.S. price, as indicated in the chart above as follows: (1) For the producer/exporter combinations listed in the table above, the cash deposit rate is equal to the estimated weighted-average dumping margin listed for that combination in the table; (2) for all combinations of Chinese producers/exporters of merchandise under consideration that have not established eligibility for their own separate rates, the cash deposit rate will be equal to the estimated weighted-average dumping margin established for the China-wide entity; and (3) for all third-county exporters of merchandise under consideration not listed in the table above, the cash deposit rate is the cash deposit rate applicable to the Chinese producer/exporter combination (or the China-wide entity) that supplied that third country exporter. These suspension of liquidation instructions will remain in effect until further notice.

    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 common alloy sheet, 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 “Suspension of Liquidation” section.

    Notification Regarding Administrative Protective Orders

    This notice will serve as a reminder to the parties subject to 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.

    Return or Destruction of Proprietary Information

    In the event the ITC issues a final negative injury determination, this notice serves 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 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 violation subject to sanction.

    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 I—Scope of the Investigation

    The merchandise covered by this investigation is aluminum common alloy sheet (common alloy sheet), which is a flat-rolled aluminum product having a thickness of 6.3 mm or less, but greater than 0.2 mm, in coils or cut-to-length, regardless of width. Common alloy sheet within the scope of this investigation includes both not clad aluminum sheet, as well as multi-alloy, clad aluminum sheet. With respect to not clad aluminum sheet, common alloy sheet is manufactured from a 1XXX-, 3XXX-, or 5XXX-series alloy as designated by the Aluminum Association. With respect to multi-alloy, clad aluminum sheet, common alloy sheet is produced from a 3XXX-series core, to which cladding layers are applied to either one or both sides of the core.

    Common alloy sheet may be made to ASTM specification B209-14, but can also be made to other specifications. Regardless of specification, however, all common alloy sheet meeting the scope description is included in the scope. Subject merchandise includes common alloy sheet that has been further processed in a third country, including but not limited to annealing, tempering, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigations if performed in the country of manufacture of the common alloy sheet.

    Excluded from the scope of this investigation is aluminum can stock, which is suitable for use in the manufacture of aluminum beverage cans, lids of such cans, or tabs used to open such cans. Aluminum can stock is produced to gauges that range from 0.200 mm to 0.292 mm, and has an H-19, H-41, H-48, or H-391 temper. In addition, aluminum can stock has a lubricant applied to the flat surfaces of the can stock to facilitate its movement through machines used in the manufacture of beverage cans. Aluminum can stock is properly classified under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 7606.12.3045 and 7606.12.3055.

    Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set for the above.

    Common alloy sheet is currently classifiable under HTSUS subheadings 7606.11.3060, 7606.11.6000, 7606.12.3090, 7606.12.6000, 7606.91.3090, 7606.91.6080, 7606.92.3090, and 7606.92.6080. Further, merchandise that falls within the scope of this investigation may also be entered into the United States under HTSUS subheadings 7606.11.3030, 7606.12.3030, 7606.91.3060, 7606.91.6040, 7606.92.3060, 7606.92.6040, 7607.11.9090. Although 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. List of Issues III. Background IV. Period of Investigation V. Scope of Investigation VI. Scope Comments VII. Changes from the Preliminary Determination VIII. Adjustment Under Section 777A(F) of the Act IX. Selection and Corroboration of the Adverse Facts Available Rate X. Discussion of the Issues Comment 1: Application of Adverse Facts Available (AFA) Comment 2: Critical Circumstances Determination Comment 3: Surrogate Country Comment 4: Surrogate Value for Aluminum Scrap Comment 5: Surrogate Value for Argon Comment 6: Mingtai's Aluminum Scrap Comment 7: Separate Rate Status for Wanji Global and Luoyang Wanji Comment 8: Separate Rate Status for Tianjin Zhongwang V. Recommendation
    [FR Doc. 2018-24869 Filed 11-14-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [Application No. 10-4A001] Export Trade Certificate of Review ACTION:

    Notice of issuance of an amended Export Trade Certificate of Review to Alaska Longline Cod Commission (“ALCC”), Application No. 10-4A001.

    SUMMARY:

    The Secretary of Commerce, through the Office of Trade and Economic Analysis (“OTEA”), issued an amended Export Trade Certificate of Review to ALCC on November 7, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Joseph Flynn, Director, OTEA, International Trade Administration, by telephone at (202) 482-5131 (this is not a toll-free number) or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) (“the Act”) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from State and Federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. The regulations implementing Title III are found at 15 CFR part 325 (2018). OTEA is issuing this notice pursuant to 15 CFR 325.6(b), which requires the Secretary of Commerce to publish a summary of the certification in the Federal Register. Under Section 305(a) of the Act and 15 CFR 325.11(a), any person aggrieved by the Secretary's determination may, within 30 days of the date of this notice, bring an action in any appropriate district court of the United States to set aside the determination on the ground that the determination is erroneous.

    Description of Certified Conduct

    ALCC's Export Trade Certificate of Review has been amended to:

    1. Add the following companies as new Members of the Certificate within the meaning of section 325.2(l) of the Regulations (15 CFR 325.2(l)):

    a. Alaskan Leader Vessel LLC, Lynden, WA b. Bristol Leader Fisheries LLC, Lynden, WA c. Bering Leader Fisheries LLC, Lynden, WA d. Northern Leader Fisheries LLC, Lynden, WA e. Prowler Fisheries, LLC, Seattle, WA

    2. Delete the following companies as Members of the Certificate:

    a. Pathfinder Fisheries LLC, Seattle, WA b. Bering Select Seafoods Company, Seattle, WA c. Glacier Bay Fisheries LLC

    3. Change/correct the name or location of the following Members of the Certificate:

    a. Alaskan Leader Fisheries, Inc., Lynden, WA changes to Alaskan Leader Fisheries LLC, Lynden, WA b. Coastal Villages Longline, LLC changes to Coastal Villages Longline LLC, Anchorage, AK c. Romanzoff Fishing Company, Seattle, WA changes to Romanzof Fishing Company, L.L.C., Seattle, WA d. Tatoosh Seafoods LLC, Seattle, WA changes to Tatoosh Seafoods, LLC, Edmonds, WA e. Beauty Bay Washington, LLC, Seattle, WA changes to Beauty Bay Washington, LLC, Edmonds, WA f. Blue North Fisheries, Inc, Seattle, WA changes to Blue North Fisheries, Inc., Seattle, WA g. Clipper Group, Ltd, Seattle, WA changes to Clipper Group, Ltd., Seattle, WA h. Liberator Fisheries, LLC, Seattle, WA changes to Liberator Fisheries LLC, Seattle, WA i. Siberian Sea Fisheries, LLC, Seattle, WA changes to Siberian Sea Fisheries LLC, Seattle, WA

    ALCC's Membership, as amended, is below: Alaskan Leader Fisheries LLC, Lynden, Washington; Alaskan Leader Seafoods LLC, Lynden, Washington; Alaskan Leader Vessel LLC, Lynden, Washington; Bristol Leader Fisheries LLC, Lynden, Washington; Bering Leader Fisheries LLC, Lynden, Washington; Northern Leader Fisheries LLC, Lynden, Washington; Gulf Mist, Inc., Everett, Washington; Deep Sea Fisheries, Inc., Everett, Washington; Aleutian Spray Fisheries, Inc., Seattle, Washington; Liberator Fisheries LLC, Seattle, Washington; Siberian Sea Fisheries LLC, Seattle, Washington; Akulurak LLC, Seattle, Washington; Romanzof Fishing Company, L.L.C., Seattle, Washington; Beauty Bay Washington, LLC, Edmonds, Washington; Tatoosh Seafoods, LLC, Edmonds, Washington; Blue North Fisheries, Inc., Seattle, Washington; Blue North Trading Company, LLC, Seattle, Washington; Clipper Group, Ltd., Seattle, Washington; Clipper Seafoods, Ltd., Seattle, Washington (a wholly-owned subsidiary of Clipper Group, Ltd.); Shelford's Boat, Ltd., Mill Creek, Washington; Siu Alaska Corporation, Anchorage, Alaska; Coastal Villages Longline LLC, Anchorage, Alaska; and Prowler Fisheries, LLC, Seattle, Washington.

    The effective date of the amended Certificate is August 9, 2018, the date on which ALCC's application to amend was deemed submitted.

    Dated: November 8, 2018. Joseph Flynn, Director, Office of Trade and Economic Analysis, International Trade Administration, U.S. Department of Commerce.
    [FR Doc. 2018-24947 Filed 11-14-18; 8:45 am] BILLING CODE 3510-DR-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-900] Diamond Sawblades and Parts Thereof From the People's Republic of China: Preliminary Affirmative Determination of Circumvention AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that Diamond Tools Technology (Thailand) Co., Ltd. (Diamond Tools) is circumventing the antidumping duty order on diamond sawblades and parts thereof (diamond sawblades) from the People's Republic of China (China).

    DATES:

    Applicable November 15, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Yang Jin Chun, AD/CVD Operations Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5760.

    SUPPLEMENTARY INFORMATION:

    Background

    On December 7, 2017, in response to a request from Diamond Sawblades Manufacturers' Coalition (the petitioner), Commerce published the initiation of the anti-circumvention inquiry to determine whether certain imports of diamond sawblades comprised of cores and segments produced in China and joined into diamond sawblades in, and exported from, Thailand by Diamond Tools are circumventing the antidumping duty order on diamond sawblades from China.1

    1See Diamond Sawblades and Parts Thereof from the People's Republic of China: Initiation of Anti-Circumvention Inquiry, 82 FR 57709 (December 7, 2017) (Initiation Notice).

    Scope of the Order

    The merchandise subject to the order is diamond sawblades. The diamond sawblades subject to the order are currently classifiable under subheadings 8202 to 8206 of the Harmonized Tariff Schedule of the United States (HTSUS), and may also enter under subheading 6804.21.00. The HTSUS subheadings are provided for convenience and customs purposes. A full description of the scope of the order is contained in the Preliminary Decision Memorandum.2 The written description is dispositive.

    2See the Memorandum, “Diamond Sawblades and Parts Thereof from the People's Republic of China: Decision Memorandum for Preliminary Affirmative Determination of Circumvention,” dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum) at 2-3.

    Scope of the Anti-Circumvention Inquiry

    We initiated this anti-circumvention inquiry to cover diamond sawblades produced in Thailand by Diamond Tools with cores and segments produced in China and subsequently exported from Thailand to the United States.3 During the conduct of this anti-circumvention inquiry, Diamond Tools reported that, in addition to diamond sawblades produced in Thailand with cores and segments produced in China, it also produced diamond sawblades with either Chinese cores and Thai segments or Thai cores and Chinese segments.4 Based on the additional information we received from Diamond Tools, and as further discussed in the Preliminary Analysis Memorandum,5 we are also examining whether diamond sawblades produced in Thailand by Diamond Tools with either cores or segments produced in China are circumventing the order.

    3See Initiation Notice, 82 FR at 57710 (“This anti-circumvention inquiry covers diamond sawblades exported from Thailand to the United States that are produced by Diamond Tools from cores and segments of {China} origin.”).

    4See, e.g., Diamond Tools' original response dated January 18, 2018, at 4.

    5See the Memorandum, “Diamond Sawblades and Parts Thereof from the People's Republic of China: Preliminary Analysis Memorandum for Diamond Tools Technology (Thailand) Co., Ltd.” dated concurrently with this memorandum (Preliminary Analysis Memorandum) for more information containing Diamond Tools' business proprietary information.

    Methodology

    Commerce is conducting this anti-circumvention inquiry in accordance with section 781(b) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.225(h). Because China is a non-market economy country within the meaning of section 771(18) of the Act, Commerce relied on surrogate values to value the purchases of Chinese cores and Chinese segments, as discussed in section 773(c) of the Act. For a full description of the methodology underlying our conclusions, see the Preliminary Decision Memorandum. The Preliminary Decision Memorandum is 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/.

    Preliminary Determination

    As detailed in the Preliminary Decision Memorandum, Commerce preliminarily determines that diamond sawblades produced by Diamond Tools in Thailand using cores and/or segments from China and exported from Thailand to the United States are circumventing the antidumping duty order on diamond sawblades from China. We therefore preliminarily determine that it is appropriate to include this merchandise within the antidumping duty order on diamond sawblades from China and to instruct U.S. Customs and Border Protection (CBP) to suspend entries of merchandise produced using Chinese cores and/or Chinese segments by Diamond Tools in Thailand and exported to the United States.

    Suspension of Liquidation

    As stated above, Commerce has made a preliminary affirmative finding of circumvention of the antidumping duty order on diamond sawblades from China for diamond sawblades assembled or completed using Chinese cores and/or Chinese segments as inputs by Diamond Tools in Thailand and exported to the United States. This preliminary circumvention finding applies to diamond sawblades assembled or completed using Chinese cores and/or Chinese segments as inputs by Diamond Tools in Thailand. In accordance with section 19 CFR 351.225(l)(2), Commerce will direct CBP to suspend liquidation and to require a cash deposit of estimated duties on unliquidated entries of diamond sawblades produced (i.e., assembled or completed) using Chinese cores and/or Chinese segments by Diamond Tools in Thailand that were entered, or withdrawn from warehouse, for consumption on or after December 1, 2017, the date of initiation of this anti-circumvention inquiry. The suspension of liquidation instructions will remain in effect until further notice. For the reasons stated in the Preliminary Analysis Memorandum, which contains Diamond Tools' business proprietary information,6 Commerce will instruct CBP to require antidumping duty cash deposits equal to the rate established for the China-wide entity, i.e., 82.05 percent,7 for entries of such merchandise produced by Diamond Tools.

    6See Preliminary Analysis Memorandum at 4 for Diamond Tools' accounting and production system in its normal course of business.

    7See, e.g., Diamond Sawblades and Parts Thereof from the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2015-2016, 83 FR 17527, 17528 (April 20, 2018).

    Diamond sawblades assembled or completed in Thailand using both non-Chinese origin cores and non-Chinese origin segments are not subject to this anti-circumvention inquiry. However, for the reasons stated in the Preliminary Analysis Memorandum, Commerce finds that Diamond Tools is not currently able to identify diamond sawblades produced with non-Chinese origin cores and non-Chinese origin segments.8 Therefore, Commerce will not implement a certification process at this preliminary stage, and we will require cash deposits on all entries of diamond sawblades produced by Diamond Tools in Thailand. We invite parties to comment on this issue in their case briefs.

    8See Preliminary Analysis Memorandum at 4 for Diamond Tools' accounting and production system in its normal course of business. Some, but not all, of the reasons stated contain business proprietary information.

    Public Comment

    Commerce intends to disclose the analysis used in these preliminary findings within five days of publication of this notice. Interested parties are invited to comment on the preliminary determination of this anti-circumvention inquiry. Pursuant to 19 CFR 351.309(b)(2), 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 not be filed later than five days after the time limit for filing case briefs.9 Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case or rebuttal briefs in this anti-circumvention inquiry 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.

    9See 19 CFR 351.309(d)(1)-(2).

    Any interested party who wishes to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance within 30 days after the day of publication of this notice pursuant to 19 CFR 351.310(c). A request 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 to be discussed. If a request for a hearing is made, then 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. Issues raised in the hearing will be limited to those raised in case and rebuttal briefs.

    International Trade Commission Notification

    Consistent with section 781(e) of the Act, Commerce will notify the International Trade Commission (ITC) of this preliminary determination to include the merchandise subject to this anti-circumvention inquiry within the antidumping duty order on diamond sawblades from China. Pursuant to section 781(e) of the Act, the ITC may request consultations concerning Commerce's proposed inclusion of the subject merchandise. If, after consultations, the ITC believes that a significant injury issue is presented by the proposed inclusion, it will have 60 days from the date of notification by Commerce to provide written advice.

    Final Determination

    According to section 781(f) of the Act, Commerce shall, to the maximum extent practicable, make its anti-circumvention determination within 300 days from the date of the initiation of the inquiry.10 Due to the complicated nature of this anti-circumvention inquiry, we previously extended the deadline for the final determination of this anti-circumvention inquiry by 150 days. Therefore, Commerce intends to issue the final determination in this anti-circumvention inquiry by February 27, 2019.11

    10See also 19 CFR 351.225(f)(iii)(5) (explaining that Commerce will issue a final anticircumvention ruling “normally within 300 days from the date of the initiation of the . . . inquiry”).

    11See the Memorandum, “Diamond Sawblades and Parts Thereof from the People's Republic of China: Extension of Deadline for Final Determination of Anti-Circumvention Inquiry,” dated September 27, 2018.

    This preliminary affirmative circumvention determination is published in accordance with section 781(b) of the Act and 19 CFR 351.225(f).

    Dated: November 8, 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. Scope of the Anti-Circumvention Inquiry V. The Period of Inquiry VI. Surrogate Country and Valuation Methodology for Inputs from China VII. Statutory Framework VIII. Statutory Analysis IX. Other Statutory Criteria X. Summary of Statutory Analysis XI. Recommendation
    [FR Doc. 2018-24939 Filed 11-14-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-570-074] Countervailing Duty Investigation of Common Alloy Aluminum Sheet 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 and exporters of common alloy aluminum sheet (common alloy sheet) from the People's Republic of China (China) for the period of investigation (POI) January 1, 2016, through December 31, 2016.

    DATES:

    Applicable November 15, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Yasmin Bordas, Lana Nigro, or John Anwesen, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3813, (202) 482-1779, or (202) 482-0131, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    On April 23, 2018, Commerce published in the Federal Register the Preliminary Determination and invited interested parties to comment.1 A summary of the events that occurred since Commerce published 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 that is dated concurrently with this determination and hereby adopted by this notice.2

    1See Common Alloy Aluminum Sheet from the People's Republic of China: Preliminary Affirmative Countervailing Duty (CVD) Determination, Alignment of Final CVD Determination with Final Antidumping Duty Determination, and Preliminary CVD Determination of Critical Circumstances, 83 FR 17651 (April 23, 2018) (Preliminary Determination), and accompanying Preliminary Decision Memorandum (PDM).

    2See Memorandum, “Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Common Alloy Aluminum Sheet from the People's Republic of China,” dated concurrently with this determination and hereby adopted by this notice (Issues and Decision Memorandum).

    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 Issues and Decision Memorandum and the electronic version are identical in content.

    Scope Comments

    We invited parties to comment on Commerce's Scope Comments Preliminary Decision Memorandum.3 Commerce has reviewed the briefs submitted by interested parties, considered the arguments therein, and has made no changes to the scope of the investigation. For further discussion, see Commerce's Scope Comments Final Decision Memorandum.4

    3See Memorandum, “Common Alloy Aluminum Sheet from the People's Republic of China: Scope Comments Preliminary Decision Memorandum,” dated June 15, 2018.

    4See Memorandum, “Common Alloy Aluminum Sheet from the People's Republic of China: Scope Comments Final Decision Memorandum,” dated concurrently with this memorandum.

    Methodology

    Commerce conducted this countervailing duty (CVD) investigation in accordance with section 701 of the Tariff Act of 1930, as amended (Act). For each of the subsidy programs found to be countervailable, we determine 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. For a full description of the methodology underlying our final determination, see the Issues and Decisions Memorandum.

    Scope of the Investigation

    The merchandise covered by this investigation is common alloy sheet from China. For a complete description of the scope of this investigation, see Appendix I.

    Verification

    As provided in section 782(i) of the Act, in June 2018, we conducted verification of the questionnaire responses submitted by Henan Mingtai Industrial Co., Ltd. and Zhengzhou Mingtai (collectively, Mingtai); and Yong Jie New Material Co., Ltd. (Yong Jie New Material). We issued verification reports on July 3, 2018.5 We used standard verification procedures, including an examination of relevant accounting and financial records, and original source documents provided by Mingtai and Yong Jie New Material.

    5See Commerce Memoranda, “Verification of the Questionnaire Responses of Henan Mingtai Al Industrial Co., ltd. and Zhengzhou Mingtai Industry Co., Ltd.: Countervailing Duty Investigation of Common Alloy Sheet from the People's Republic of China,” (Mingtai Verification Report) and “Verification of the Questionnaire Responses of Yong Jie New Material: Countervailing Duty Investigation of Common Alloy Sheet from the People's Republic of China,” (Yong Jie New Material Verification Report), both dated July 3, 2018.

    Period of Investigation

    The POI is January 1, 2016, through December 31, 2016.

    Analysis of Subsidy Programs and Comments Received

    The subsidy programs under investigation, and the issues raised in the case and rebuttal briefs submitted by the parties, 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.

    Final Affirmative Determination of Critical Circumstances

    In the Preliminary Determination, we found that critical circumstances exist for the Chalco companies and “all-others.” For this final determination, pursuant to section 705(a)(2) of the Act, we continue to find that critical circumstances exist for the Chalco companies and “all-others.” For a full description of the methodology and results of Commerce's critical circumstances analysis, see Final Determination Critical Circumstances Analysis Memo 6 and Issues and Decision Memorandum at “Final Determination of Critical Circumstances, In Part” and Comments 2 and 3.

    6See Memorandum, “Calculations for Final Determination of Critical Circumstances in the Countervailing Duty Investigation of Common Alloy Aluminum Sheet from the People's Republic of China,” dated concurrently with final determination; see also Memorandum, “Calculations for Preliminary Determination of Critical Circumstances in the Countervailing Duty Investigation of Common Alloy Aluminum Sheet from the People's Republic of China,” dated April 16, 2018.

    Use of Adverse Facts Available (AFA)

    For purposes of this final determination, we relied on facts available, and because certain respondents did not act to the best of their ability in responding to Commerce's requests for information, we drew an adverse inference, where appropriate, in selecting from among the facts otherwise available.7 The subsidy rates for Chalco Ruimin Co., Ltd. and Chalco-SWA Cold Rolling Co., Ltd. (collectively, the Chalco companies) are based entirely on AFA. A full discussion of our decision to rely on AFA is presented in the “Use of Facts Otherwise Available and Adverse Inferences” section of the Issues and Decision Memorandum.

    7See sections 776(a) and (b) of the Act.

    Changes Since the Preliminary Determination

    Based on our review and analysis of the comments received from parties, and minor corrections presented at verification, we made certain changes to the respondents' subsidy rate calculations since the Preliminary Determination. For a discussion of these changes, see the Issues and Decision Memorandum and the Final Calculation Memoranda.8

    8See Memoranda, “Countervailing Duty Investigation of Common Alloy Aluminum Sheet from the People's Republic of China: Final Determination Calculation Memorandum for Henan Mingtai Industrial Co., Ltd. and Zhengzhou Mingtai,” dated November 5, 2018 (Mingtai Final Calculation Memorandum) and “Countervailing Duty Investigation of Common Alloy Aluminum Sheet from the People's Republic of China: Final Determination Calculation Memorandum for Yong Jie New Material Co., Ltd.,” dated November 5, 2018 (Yong Jie New Material Final Calculation Memorandum).

    All-Others Rate

    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. Where the rates for the individually investigated companies are all zero or de minimis, or determined entirely using facts otherwise available, section 705(c)(5)(A)(ii) of the Act instructs Commerce to establish an “all-others” rate using “any reasonable method.”

    Pursuant to section 705(c)(5)(A)(i) of the Act, we calculated the “all-others” rate using the subsidy rates of Mingtai and Yong Jie New Material, the only two mandatory respondents not receiving a subsidy rate based totally on section 776 of the Act. However, we have not calculated the “all-others” rate by weight-averaging these two rates because doing so risks disclosure of proprietary information.9 Therefore, and consistent with Commerce's practice, for the “all-others” rate, we calculated a simple average of these two mandatory respondents' subsidy rates.

    9 We could not use the submitted publicly ranged data to calculate the all-others rate because, Yong Jie New Material did not establish its publicly ranged data in the manner required by 19 CFR 351.304(c).

    10 As discussed in the Preliminary Decision Memorandum, Commerce has found Henan Gongdian Thermal Co., Ltd. to be cross-owned with Henan Mingtai Industrial Co., Ltd. and Zhengzhou Mingtai Industry Co., Ltd.

    11 As discussed in the Preliminary Decision Memorandum, Commerce has found the following companies to be cross-owned with Yong Jie New Material: Zhejiang Yongjie Aluminum Co., Ltd.; Zhejiang Nanjie Industry Co., Ltd; Zhejiang Yongjie Holding Co., Ltd; and Nanjie Resources Co., Ltd.

    Company Subsidy rate
  • (percent)
  • Chalco Ruimin Co., Ltd 116.49 Chalco-SWA Cold Rolling Co., Ltd 116.49 Henan Mingtai Industrial Co., Ltd./Zhengzhou Mingtai Industry Co., Ltd 10 46.48 Yong Jie New Material Co., Ltd 11 55.02 All-Others 50.75
    Final Determination Disclosure

    We intend to disclose to parties in this proceeding the calculations performed for this final determination within five days of the date of public announcement of our final determination, in accordance with 19 CFR 351.224(b).

    Suspension of Liquidation

    As a result of our Preliminary Determination, and pursuant to sections 703(d)(1)(B) and (2) of the Act, we instructed U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of merchandise under consideration from China that were entered or withdrawn from warehouse, for consumption, on or after April 23, 2018, the date of publication of the Preliminary Determination in the Federal Register. Also, as a result of our Preliminary Determination, we instructed CBP to suspend liquidation on entries of merchandise under consideration from China for the Chalco companies and “all-others” effective January 23, 2018. In accordance with section 703(d) of the Act, on August 20, 2018, we instructed CBP to discontinue the suspension of liquidation of all entries at that time.

    If the U.S. International Trade Commission (the 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 CVDs 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, we will notify the ITC of our 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 also serves as a reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    Return or Destruction of Proprietary Information

    In the event the ITC issues a final negative injury determination, this notice serves 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 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 violation subject to sanction.

    Notification to Interested Parties

    This determination is issued and published pursuant to sections 705(d) 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. Appendix I—Scope of the Investigation

    The merchandise covered by the investigation is aluminum common alloy sheet (common alloy sheet), which is a flat-rolled aluminum product having a thickness of 6.3 mm or less, but greater than 0.2 mm, in coils or cut-to-length, regardless of width. Common alloy sheet within the scope of the investigation includes both not clad aluminum sheet, as well as multi-alloy, clad aluminum sheet. With respect to not clad aluminum sheet, common alloy sheet is manufactured from a 1XXX-, 3XXX-, or 5XXX-series alloy as designated by the Aluminum Association. With respect to multi-alloy, clad aluminum sheet, common alloy sheet is produced from a 3XXX-series core, to which cladding layers are applied to either one or both sides of the core.

    Common alloy sheet may be made to ASTM specification B209-14, but can also be made to other specifications. Regardless of specification, however, all common alloy sheet meeting the scope description is included in the scope. Subject merchandise includes common alloy sheet that has been further processed in a third country, including but not limited to annealing, tempering, painting, varnishing, trimming, cutting, punching, and/or slitting, 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 common alloy sheet.

    Excluded from the scope of the investigation is aluminum can stock, which is suitable for use in the manufacture of aluminum beverage cans, lids of such cans, or tabs used to open such cans. Aluminum can stock is produced to gauges that range from 0.200 mm to 0.292 mm, and has anH-19, H-41, H-48, or H-391 temper. In addition, aluminum can stock has a lubricant applied to the flat surfaces of the can stock to facilitate its movement through machines used in the manufacture of beverage cans. Aluminum can stock is properly classified under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 7606.12.3045 and 7606.12.3055.

    Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set for the above.

    Common alloy sheet is currently classifiable under HTSUS subheadings 7606.11.3060, 7606.11.6000, 7606.12.3090, 7606.12.6000, 7606.91.3090, 7606.91.6080, 7606.92.3090, and 7606.92.6080. Further, merchandise that falls within the scope of these investigation may also be entered into the United States under HTSUS subheadings 7606.11.3030, 7606.12.3030, 7606.91.3060, 7606.91.6040, 7606.92.3060, 7606.92.6040, 7607.11.9090. Although 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. Final Determination of Critical Circumstances, in Part IV. Scope of the Investigation V. Scope Comments VI. Subsidies Valuation Information VII. Benchmarks and Discount Rates VIII. Use of Facts Otherwise Available and Adverse Inferences IX. Analysis of Programs X. Analysis of Comments Comment 1: Whether Commerce's Self-Initiation of This Investigation Was Lawful Comment 2: Whether Commerce's Investigation of Critical Circumstances Was Lawful Comment 3: Whether To Make a Separate Critical Circumstances Determination for TCI Comment 4: Whether Commerce Should Continue To Apply AFA to the Export Buyer's Credit Program Comment 5: Whether Commerce's Finding That the Aluminum and Steal Coal Markets Are Distorted Is Supported by Substantial Evidence Comment 6: Whether Commerce Should Apply AFA to Yong Jie New Material's Financing Comment 7: Whether Commerce Should Adjust Its Benefit Calculation for the Provision of Land for Less Than Adequate Remuneration Comment 8: Whether Commerce Should Apply AFA to Mingtai's Financing Comment 9: Whether Commerce Should Amend Its Preliminary Calculation for Subsidies Received by Mingtai XI. Recommendation
    [FR Doc. 2018-24867 Filed 11-14-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-932] Certain Steel Threaded Rod From the People's Republic of China: Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2016-2017 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) finds that Jiaxing Brother Fastener Co., Ltd. (Jiaxing Brother), RMB Fasteners Ltd. (RMB), and IFI & Morgan Ltd. (IFI), collectively RMB/IFI, had no shipments during the period of review (POR), April 1, 2016, through March 31, 2017. We also continue to find that Fastenal Canada Ltd. (Fastenal Canada) did not cooperate to the best of its ability and have based its margin on adverse facts available (AFA) for these final results.

    DATES:

    Applicable November 15, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Paul Walker, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: 202.482.0413.

    SUPPLEMENTARY INFORMATION:

    Background

    On May 17, 2018, Commerce published the Preliminary Results of the antidumping duty order on certain steel threaded rod (STR) from the People's Republic of China (China).1 In accordance with 19 CFR 351.309, we invited parties to comment on our Preliminary Results. On June 18, 2018, RMB/IFI submitted its case brief.2 On June 19, 2018, RMB/IFI re-submitted its case brief because the original brief inadvertently included certain proprietary information in one of the exhibits.3 On June 26, 2018, the petitioner, Vulcan Threaded Products Inc., submitted its rebuttal brief.4 On September 12, 2018, Commerce extended the deadline for the final results to November 8, 2018.5 On September 19, 2018, Commerce rejected RMB/IFI's case brief because it contained new factual information.6 In addition, on September 19, 2018, Commerce rejected the petitioner's rebuttal brief because it contained new argument which did not rebut any arguments made by RMB/IFI in its case brief.7 On September 21, 2018, RMB/IFI refiled its case brief.8 The petitioner did not refile its rebuttal brief. To complete the administrative record, Commerce requested that Jiaxing Brother submit a no shipments certification, if it had no shipments during the POR.9 On October 31, 2018, Jiaxing Brother submitted a no shipments certification.10

    1See Certain Steel Threaded Rod from the People's Republic of China: Preliminary Results of the Antidumping Duty Administrative Review, and Rescission of Antidumping Duty Administrative Review; 2016-2017, 83 FR 22945 (May 17, 2018) (Preliminary Results) and accompanying Preliminary Decision Memorandum (PDM).

    2See RMB/IFI's June 18, 2018 submission.

    3See RMB/IFI's June 19, 2018 submission.

    4 The petitioner is Vulcan Threaded Products Inc. See the petitioner's June 26, 2018 submission.

    5See Memorandum to James Maeder, Associate Deputy Assistant Secretary, from James C. Doyle, Director, “Certain Steel Threaded Rod from the People's Republic of China: Extension of Deadline for Final Results of 2016-2017 Antidumping Duty Administrative Review,” dated September 12, 2018.

    6See Commerce's letter to RMB/IFI dated September 19, 2018.

    7See Commerce's letter to the petitioner dated September 19, 2018.

    8See RMB/IFI's September 21, 2018 submission (RMB/IFI's Case Brief).

    9See Commerce's memo to the File, October 29, 2018.

    10See RMB/IFI's October 31, 2018 submission.

    Commerce conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).

    Scope of the Order

    The merchandise covered by the order includes steel threaded rod. The subject merchandise is currently classifiable under subheading 7318.15.5051, 7318.15.5056, 7318.15.5090, and 7318.15.2095 of the United States Harmonized Tariff Schedule (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of the order, which is contained in the accompanying Issues and Decision Memorandum (I&D Memo), is dispositive.11

    11 For a full description of the scope of the order, see Memorandum from James Maeder, Associate Deputy Assistant Secretary, 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, “Certain Steel Threaded Rod from the People's Republic of China: Issues and Decision Memorandum for the Final Results of the Eighth Administrative Review” (I&D Memo), dated concurrently with, and hereby adopted by, this notice.

    Analysis of Comments Received

    We addressed the issue raised in RMB/IFI's case brief in the I&D Memo dated concurrently with, and hereby adopted by, this notice. The issue it raised is attached in the Appendix to this notice. The I&D Memo is a public document and is on file in the Central Records Unit (CRU), Room B8024 of the main Commerce building, as well as electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov and in the CRU. In addition, a complete version of the I&D Memo can be accessed directly on the internet at http://enforcement.trade.gov/frn/index.html. The signed I&D Memo and the electronic versions of the I&D Memo are identical in content.

    Final Determination of No Shipments

    In the Preliminary Results, Commerce determined that RMB/IFI did not have any reviewable transactions during the POR. For these final results, we continue to find that Jiaxing Brother is a part of RMB/IFI,12 and that Jiaxing Brother Standard Part Co., Ltd. is a “doing-business-as” name for Jiaxing Brother.13 Moreover, consistent with Commerce's assessment practice in non-market economy (NME) cases, we completed the review with respect to RMB/IFI. Based on our analysis of the record information, including CBP information, we continue to determine that RMB/IFI (a single entity that includes Jiaxing Brother Standard Part Co., Ltd./Jiaxing Brother Fastener Co., Ltd.) did not have any shipments during the POR. As noted in the “Assessment Rates” section below, Commerce intends to issue appropriate instructions to CBP for the above-named companies based on the final results of this review.

    12 Commerce determined that Jiaxing Brother, RMB and IFI constituted a single entity in the investigation on steel threaded rod from China. See Certain Steel Threaded Rod from the People's Republic of China: Preliminary Determination of Sales at Less Than Fair Value, 73 FR 58931, 58932 (October 8, 2008), unchanged in Certain Steel Threaded Rod from the People's Republic of China: Final Determination of Sales at Less Than Fair Value, 74 FR 8907 (February 27, 2009). We have received no information in this review to call into question that finding and therefore continue to treat them as a single entity for purposes of this review.

    13See, e.g., Certain Steel Threaded Rod From the People's Republic of China: Preliminary Results and Partial Rescission of the Antidumping Duty Administrative Review; 2014-2015, 81 FR 29843 (May 13, 2016) and accompanying PDM at 1, 2, unchanged in Certain Steel Threaded Rod from the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2014-2015, 81 FR 83800 (November 22, 2016) and accompanying IDM at 2; see also RMB/IFI's October 31, 2018 submission.

    Final Results

    No interested party submitted comments on Commerce's preliminary determination to apply AFA to Fastenal Canada. Therefore, we have continued to apply AFA with respect to Fastenal Canada, and have continued to assign it an AFA rate of 206.00 percent. Moreover, we continue to find that Brother Holding Group Co. Ltd, and Zhejiang Morgan Brother Technology Co. Ltd. are a part of the China-wide entity and subject to its rate of 206.00 percent.14 Although in the Preliminary Results we found Jiaxing Brother Standard Part Co., Ltd. to be a part of the China-wide entity, for these final results, and as noted above, we find this company to be a part of RMB/IFI (which had no shipments during the POR), and that it is not a part of the China-wide entity.

    14 The rate for the China-wide entity was set in the investigation, see Certain Steel Threaded Rod from the People's Republic of China: Final Determination of Sales at Less than Fair Value, 74 FR 8907 (February 27, 2009). This rate has been applied in each subsequent administrative review in which there was a party considered as part of the China-wide entity. Commerce's policy regarding conditional review of the China-wide entity applies to this administrative review. See Antidumping Proceedings: Announcement of Change in Department Practice for Respondent Selection in Antidumping Duty Proceedings and Conditional Review of the Nonmarket Economy Entity in NME Antidumping Duty Proceedings, 78 FR 65963 (November 4, 2013). Under this policy, the China-wide entity will not be under review unless a party specifically requests, or Commerce self-initiates, a review of the entity. Because no party requested a review of the China-wide entity, the entity is not under review and the entity's rate is not subject to change.

    Assessment Rates

    Pursuant to section 751(a)(2)(A) of the Act, and 19 CFR 351.212(b), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. Commerce intends to issue appropriate assessment instructions directly to CBP 15 days after publication of the final results of this administrative review. Commerce will assess duties only on entries of subject merchandise (i.e., Chinese-origin STR).

    Pursuant to Commerce's assessment practice, because we found it had no shipments, for all entries claiming RMB/IFI as the exporter or producer, Commerce will direct CBP to liquidate such entries and to assess antidumping duties pursuant to the Reseller Policy, i.e., at the rate for the China-wide entity.15

    15See Non-Market Economy Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 65694 (October 24, 2011) (Reseller Policy).

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For Fastenal Canada's Chinese-origin merchandise, the cash deposit rate will be 206.00 percent; (2) for previously investigated or reviewed Chinese and non-Chinese exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all Chinese exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the China-wide rate of 206.00 percent; and (4) 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 exporters that supplied that non-Chinese exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

    Disclosure

    Normally, Commerce discloses to interested parties the calculations performed in connection with the final results 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, because Commerce has not calculated a weighted-average dumping margin for any respondent, there are no calculations to disclose.

    Notification to Importers

    This notice also serves as a final 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 double antidumping duties.

    Administrative Protective Order

    This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under the APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a violation subject to sanction.

    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) and 351.221(b)(5).

    Dated: November 7, 2018. Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance. Appendix Issues and Decision Memorandum I. Summary II. Scope III. Background IV. Discussion of the Issue Comment: Alternative Name for Jiaxing Brother V. Conclusion
    [FR Doc. 2018-24942 Filed 11-14-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG233 Northeast Regional Stock Assessment Workshop and Stock Assessment Review Committee Public Meeting AGENCY:

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

    ACTION:

    Notice of public meeting.

    SUMMARY:

    NMFS and the Northeast Regional Stock Assessment Workshop (SAW) will convene the 66th SAW Stock Assessment Review Committee for the purpose of reviewing stock assessments of Summer Flounder and Striped Bass. The Northeast Regional SAW is a formal scientific peer-review process for evaluating and presenting stock assessment results to managers for fish stocks in the offshore U.S. waters of the northwest Atlantic. Assessments are prepared by SAW working groups and reviewed by an independent panel of stock assessment experts called the Stock Assessment Review Committee, or SARC. The public is invited to attend the presentations and discussions between the review panel and the scientists who have participated in the stock assessment process.

    DATES:

    The public portion of the Stock Assessment Review Committee Meeting will be held from November 27, 2018-November 30, 2018. The meeting will commence on November 27, 2018 at 10 a.m. Eastern Standard Time. Please see SUPPLEMENTARY INFORMATION for the daily meeting agenda.

    ADDRESSES:

    The meeting will be held in the S.H. Clark Conference Room in the Aquarium Building of the National Marine Fisheries Service, Northeast Fisheries Science Center (NEFSC), 166 Water Street, Woods Hole, MA 02543.

    FOR FURTHER INFORMATION CONTACT:

    James Weinberg, 508-495-2352; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    For further information, please visit the NEFSC website at http://www.nefsc.noaa.gov. For additional information about the SARC meeting and the stock assessment review, please visit the NMFS/NEFSC SAW web page at http://www.nefsc.noaa.gov/saw/.

    Daily Meeting Agenda—SAW/SARC 66 Benchmark Stock Assessment for Summer Flounder and Striped Bass (Subject to Change; All Times Are Approximate and May Be Changed at the Discretion of the SARC Chair) Tuesday, November 27, 2018 10 a.m.-10:45 a.m. Welcome Introductions, James Weinberg, SAW Chair; and Robert Latour, SARC Chair 10:45 a.m.-12:45 p.m. Summer Flounder Assessment Presentation, Mark Terceiro 12:45 p.m.-1:45 p.m. Lunch 1:45 p.m.-3:45 p.m. Summer Flounder Presentation (cont.), Mark Terceiro 3:45 p.m.-4 p.m. Break 4 p.m.-5:45 p.m. Summer Flounder SARC Discussion, Robert Latour, SARC Chair 5:45 p.m.-6 p.m. Public Comment Period Wednesday, November 28, 2018 8:30 a.m.-10:30 a.m. Striped Bass Assessment Presentation, Katie Drew 10:30 a.m.-10:45 a.m. Break 10:45 a.m.-12:30 a.m. Striped Bass presentation (cont.), Katie Drew 12:30-1:30 p.m.—Lunch 1:30 p.m.-3:30 p.m. Striped Bass SARC Discussion, Robert Latour, SARC Chair 3:30 p.m.-3:45 p.m. Public comments 3:45 p.m.-4 p.m. Break 4 p.m.-6 p.m. Revisit with Presenters (Summer Flounder), Robert Latour, SARC Chair Thursday, November 29, 2018 8:30 a.m.-10:30 a.m. Revisit with Presenters (Striped Bass), Robert Latour, SARC Chair 10:30 a.m.-10:45 a.m. Break 10:45 a.m.-12:15p.m. Review/Edit Assessment Summary Report (Summer Flounder), Robert Latour, SARC Chair 12:15-1:15 p.m. Lunch 1:15 p.m.-2:45 p.m. Review/Edit Assessment Summary Report (Summer Flounder), Robert Latour, SARC Chair 2:45 p.m.-3 p.m. Break 3 p.m.-6 p.m. Review/Edit Assessment Summary Report (Striped Bass), Robert Latour, SARC Chair Friday, November 30, 2018 9 a.m.-5 p.m. SARC Report Writing

    The meeting is open to the public; however, during the `SARC Report Writing' session on Friday November 30th the public should not engage in discussion with the SARC.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Special requests should be directed to James Weinberg at the NEFSC, 508-495-2352, at least 5 days prior to the meeting date.

    Dated: November 2, 2018. Karen H. Abrams, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-24956 Filed 11-14-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG559 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Boost-Back and Landing of Falcon 9 Rockets AGENCY:

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

    ACTION:

    Notice; proposed incidental harassment authorization; request for comments on proposed authorization and possible renewal.

    SUMMARY:

    NMFS has received a request from Space Exploration Technology Corporation (SpaceX) for authorization to take marine mammals incidental to boost-back and landing of Falcon 9 rockets at Vandenberg Air Force Base (VAFB) in California, and at contingency landing locations in the Pacific Ocean. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. NMFS is also requesting comments on a possible one-year renewal that could be issued under certain circumstances and if all requirements are met, as described in Request for Public Comments at the end of this notice. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorizations and agency responses will be summarized in the final notice of our decision.

    DATES:

    Comments and information must be received no later than December 17, 2018.

    ADDRESSES:

    Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to [email protected]

    Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments received electronically, including all attachments, must not exceed a 25-megabyte file size. Attachments to electronic comments will be accepted in Microsoft Word or Excel or Adobe PDF file formats only. All comments received are a part of the public record and will generally be posted online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

    FOR FURTHER INFORMATION CONTACT:

    Amy Fowler, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities. In case of problems accessing these documents, please call the contact listed above.

    SUPPLEMENTARY INFORMATION:

    Background

    The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed incidental take authorization may be provided to the public for review.

    Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.

    National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action (i.e., the issuance of an incidental harassment authorization) with respect to potential impacts on the human environment.

    This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental harassment authorizations with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review.

    We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.

    Summary of Request

    On August 30, 2018, NMFS received a request from SpaceX for an IHA to take marine mammals incidental to Falcon 9 First Stage recovery activities, including in-air boost-back maneuvers and landings of the First Stage of the Falcon 9 rocket at VAFB in California, and at contingency landing locations offshore. A revised application was received October 23, 2018. NMFS deemed that request to be adequate and complete. SpaceX's request is for take of a small number of six species by Level B harassment only. Neither SpaceX nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.

    NMFS has previously issued regulations and Letters of Authorization (LOA) that authorize the take of marine mammals, by Level B harassment, incidental to launches of up to 50 rockets per year (including the Falcon 9) from VAFB (79 FR 18528; April 2, 2014). The regulations, titled Taking of Marine Mammals Incidental to U.S. Air Force Launches, Aircraft and Helicopter Operations, and Harbor Activities Related to Vehicles from Vandenberg Air Force Base, California, published February 24, 2014, are effective from March 2014 to March 2019. The activities proposed by SpaceX are limited to Falcon 9 First Stage recovery events (Falcon 9 boost-back maneuvers and landings); launches of the Falcon 9 rocket are not part of the proposed activities, and incidental take (Level B harassment) resulting from Falcon 9 rocket launches from VAFB is already authorized in the above referenced LOA. As such, NMFS does not propose to authorize take of marine mammals incidental to launches of the Falcon 9 rocket in this IHA; incidental take resulting from Falcon 9 rocket launches is therefore not analyzed further in this document. The LOA application (USAF 2013a), and links to the Federal Register notice of the final rule (79 FR 10016; February 24, 2014) and the Federal Register notice of issuance of the LOA (79 FR 18528; April 2, 2014), can be found online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities. After the expiration of the existing LOA for VAFB, NMFS anticipates that the entire suite of SpaceX's Falcon 9 activities at VAFB (Falcon 9 rocket launches and First Stage boost-backs and landings) will be incorporated into future authorizations for VAFB.

    Additionally, NMFS has previously issued two IHAs to SpaceX for similar activities (81 FR 34984, June 1, 2016; 82 FR 60954, December 26, 2017). SpaceX complied with all the requirements (e.g., mitigation, monitoring, and reporting) of the previous IHAs and information regarding their monitoring results may be found in the Estimated Take section.

    Description of Proposed Activity Overview

    The Falcon 9 is a two-stage rocket designed and manufactured by SpaceX for transport of satellites and SpaceX's Dragon spacecraft into orbit. SpaceX currently operates the Falcon Launch Vehicle Program at Space Launch Complex 4 East (SLC-4E) at VAFB. SpaceX proposes regular employment of First Stage recovery by returning the Falcon 9 First Stage to SLC-4 West (SLC-4W) at VAFB for potential reuse, up to twelve times per year. This includes performing boost-back maneuvers (in-air) and landings of the Falcon 9 First Stage on the pad at SLC-4W. The reuse of the Falcon 9 First Stage enables SpaceX to efficiently conduct lower cost launch missions from VAFB in support of commercial and government clients.

    During descent, a sonic boom (overpressure of high-energy impulsive sound) would be generated when the First Stage reaches a rate of travel that exceeds the speed of sound. Sonic booms would occur in proximity to the landing areas and may be heard during or after the boost-back and landing, depending on the location of the observer. Sound from the sonic boom would have the potential to result in harassment of marine mammals, either on the mainland at or near VAFB or at the Northern Channel Islands (NCI), as described in more detail later in this document.

    Dates and Duration

    SpaceX's activities are conducted throughout the year. Up to twelve Falcon 9 First Stage recovery activities would occur per year. Precise dates of Falcon 9 First Stage recovery activities are not known. Falcon 9 First Stage recovery activities may take place at any time of year and at any time of day. The IHA, if issued, would be valid for one year from the date of issuance.

    Specific Geographic Region

    Falcon 9 First Stage recovery activities will originate at VAFB. Areas potentially affected include VAFB, areas on the coastline surrounding VAFB, and the NCI. VAFB operates as a missile test base and aerospace center, supporting west coast space launch activities for the U.S. Air Force (USAF), Department of Defense, National Aeronautics and Space Administration, and commercial contractors. VAFB is the main west coast launch facility for placing commercial government, and military satellites into polar orbit on expendable (unmanned) launch vehicles, and for testing and evaluating intercontinental ballistic missiles and sub-orbital target and interceptor missiles.

    VAFB occupies approximately 99,100 acres of central Santa Barbara County, California. VAFB is divided by the Santa Ynez River and State Highway 246 into two distinct parts: North Base and South Base. SLC-4W, the preferred landing location for the Falcon 9 First Stage, is located on South Base, approximately 0.5 miles (mi) (0.8 kilometers (km)) inland from the Pacific Ocean (see Figure 1-2 in the IHA application). SLC-4E, the launch facility for SpaceX's Falcon 9 program, is located approximately 715 feet (ft) (218 meters (m)) to the east of SLC-4W.

    Although SLC-4W is the preferred landing location for the Falcon 9 First Stage, SpaceX has identified two contingency landing locations should it not be feasible to land the First Stage at SLC-4W. The first contingency landing location is on a barge located at least 27 nautical miles (nmi) (50 km) offshore of VAFB. The second contingency landing location is on a barge within the Iridium Landing Area, an approximately 12,800 square mile (mi2) (33,153 square kilometers (km2)) area located approximately 122 nmi (225 km) southwest of San Nicolas Island and 133 nmi (245 km) southwest of San Clemente Island (see Figure 1-3 in the IHA application). The NCI are also considered part of the project area for the purposes of this proposed authorization, as landings at VAFB could result in sonic booms that impact the NCI. The NCI are four islands (San Miguel, Santa Rosa, Santa Cruz, and Anacapa) located approximately 31 mi (50 km) south of Point Conception, which is located on the mainland approximately 4 mi (6.5 km) south of the southern border of VAFB. The closest part of the NCI to VAFB (Harris Point on San Miguel Island) is located more than 34 mi (55 km) south-southeast of SLC-4E, the launch facility for the Falcon 9 rocket.

    Detailed Description of Specific Activity

    The Falcon 9 is a two-stage rocket designed and manufactured by SpaceX for transport of satellites into orbit. The First Stage of the Falcon 9 is designed to be reusable, while the second stage is not reusable. The Falcon 9 First Stage is 12 ft (3.7 m) in diameter and 160 ft (48.8 m) in height, including the interstage that would remain attached during landing. The proposed action includes up to twelve Falcon 9 First Stage recoveries, including in-air boost-back maneuvers and landings of the First Stage, at VAFB or at a contingency landing location as described above.

    After launch of the Falcon 9, the boost-back and landing sequence begins when the rocket's First Stage separates from the second stage and the Merlin engines of the First Stage cut off. After First Stage engine cutoff, rather than dropping the First Stage in the Pacific Ocean, exoatmospheric cold gas thrusters would be triggered to flip the First Stage into position for retrograde burn. Three of the nine First Stage Merlin engines would be restarted to conduct the retrograde burn in order to reduce the velocity of the First Stage and to place the First Stage in the correct angle to land. Once the First Stage is in position and approaching its landing target, the three engines would cut off to end the boost-back burn. The First Stage would then perform a controlled descent using atmospheric resistance to slow the stage down and guide it to the landing pad target. The First Stage is outfitted with grid fins that allow cross range corrections as needed. The landing legs on the First Stage would then deploy in preparation for a final single engine burn that would slow the First Stage to a velocity of zero before landing on the landing pad at SLC-4W.

    Sonic Boom

    During descent, a sonic boom (overpressure of high-energy impulsive sound) would be generated when the First Stage reaches a rate of travel that exceeds the speed of sound. Sonic booms would occur in proximity to the landing area with the highest sound levels generated from sonic booms generally focused in the direction of the landing area, and may be heard during or briefly after the boost-back and landing, depending on the location of the receiver. Sound from the sonic booms would have the potential to result in harassment of marine mammals, as described in greater detail later in this document. Based on model results, a boost-back and landing of the Falcon 9 First Stage at SLC-4W would produce sonic booms with overpressures that would potentially be as high as 8.5 pounds per square foot (psf) at VAFB and potentially as high as 3.1 psf at the NCI (see Figures 2-2 and 2-5 in the IHA application). Sonic boom modeling indicates that landings that occur at either of the proposed contingency landing locations offshore would result in sonic booms with received overpressures below 1.0 psf at VAFB and the NCI. Take of pinnipeds that are hauled out of the water are expected to occur only when those hauled out pinnipeds experience sonic booms greater than 1.0 psf (discussed in greater detail below in the Estimated Take section). Therefore, take of marine mammals may occur as a result of landings that occur at VAFB; however, take of marine mammals is not expected to occur as a result of landings that occur at either of the proposed contingency landing locations offshore. Please see Figure 1-4 in the IHA application for a graphical depiction of the boost-back and landing sequence, and see Figure 1-5 in the IHA application for an example of the boost-back trajectory of the First Stage and the second stage trajectory.

    As a contingency action to landing the Falcon 9 First Stage on the SLC-4W pad at VAFB, SpaceX proposes to return the Falcon 9 First Stage booster to a barge in the Pacific Ocean (Figure 1-6 in the IHA application). The maneuvering and landing process described above for a pad landing would be the same for a barge landing. Three vessels would be required to support a barge landing, if it were required: A barge/landing platform (300 ft (91 m) long and 150 ft (46 m) wide); a support vessel (165 ft (50 m) long research vessel); and an ocean tug (120 ft (37 m) long open water commercial tug).

    Landing Noise

    Landing noise would be generated during each boost-back event. SpaceX proposes to use a three-engine burn during landing. This engine burn, lasting approximately 17 seconds, would generate noise between 70 and 110 decibels (dB) re 20 micro Pascals (µPa) (non-pulse, in-air noise) centered on SLC-4W, but affecting an area up to 15 nmi (27.8 km) offshore of VAFB (Figure 2-10 in the IHA application). This landing noise event would be of short duration (approximately 17 seconds). Although, during a landing event at SLC-4W, landing noise between 70 and 90 dB would be expected to overlap pinniped haulout areas at and near Point Arguello and Purisima Point, no pinniped haulouts would experience landing noises of 90 dB or greater (see Figure 2-10 in the IHA application).

    NMFS's recommended acoustic thresholds for in-air acoustic impacts assume that Level B harassment of harbor seals may occur at 90 dB root mean square (rms) re 20 µPa and Level B harassment of all other pinnipeds may occur at 100 dB rms re 20 µPa. Therefore, harassment of marine mammals hauled out at VAFB from engine noise generated during landings is not expected to occur. Engine noise would also be produced during a contingency barge landing of the Falcon 9 First Stage. Engine noise during a barge landing is expected to be between 70 and 110 dB re 20 µPa affecting a radial area up to 15 nmi (27.8 km) around the contingency landing location (Figure 2-11 in the IHA application) and the Iridium 38 Landing Area (Figure 2-12 in the IHA application). No pinniped haulouts are located within the areas predicted to experience engine noise of 90 dB and above during Falcon 9 First Stage landings at contingency landing locations and the Iridium Landing Area (Figures 2-11 and 2-12 in the IHA application). Therefore, the likelihood of engine noise associated with the landing of the Falcon 9 First Stage resulting in take of marine mammals is considered so low as to be discountable, and landing noise is therefore not discussed further in this document.

    Unsuccessful Barge Landing

    In the event of an unsuccessful barge landing, the First Stage would explode upon impact with the barge. The direct sound from an explosion would last less than a second. Furthermore, the proposed activities would be dispersed in time, with maximum of twelve barge landing attempts occurring within a twelve month time period. If an explosion occurred on the barge, as in the case of an unsuccessful barge landing attempt, some amount of the explosive energy would be transferred through the ship's structure and would enter the water and propagate away from the ship.

    There is very little published literature on the ratio of explosive energy that is absorbed by a ship's hull versus the amount of energy that is transferred through the ship into the water. However, based on the best available information, we have determined that exceptionally little of the acoustic energy from the explosion would transmit into the water (Yagla and Stiegler, 2003). An explosion on the barge would create an in-air blast that propagates away in all directions, including toward the water's surface; however the barge's deck would act as a barrier that would attenuate the energy directed downward toward the water (Yagla and Stiegler, 2003). Most sound enters the water in a narrow cone beneath the sound source (within 13 degrees of vertical) (National Research Council 2003). Since the explosion would occur on the barge, most of this sound would be reflected by the barge's surface, and sound waves would approach the water's surface at angles higher than 13 degrees, minimizing transmission into the ocean. An explosion on the barge would also send energy through the barge's structure, into the water, and away from the barge. This effect was investigated in conjunction with the measurements described in Yagla and Steigler (2003). Yagla and Steigler (2003) reported that the energy transmitted through a ship to the water for the firing of a typical 5-inch round was approximately six percent of that from the in-air blast impinging on the water (Yagla and Stiegler, 2003). Therefore, sound transmitted from the blast through the hull into the water was a minimal component of overall firing noise, and would likewise be expected to be a minimal component of an explosion occurring on the surface of the barge.

    Depending on the amount of fuel remaining in the booster at the time of the explosion, the intensity of the explosion would likely vary. Based on previous Falcon 9 boost-back and landing activities, the explosive equivalence of the First Stage with maximum fuel and oxidizer would be expected to be approximately 500 lb. of trinitrotoluene (TNT). Explosion shock theory has proposed specific relationships for the peak pressure and time constant in terms of the charge weight and range from the detonation position (Pater 1981; Plotkin et al. 2012). For an in-air explosion equivalent to 500 lb. of TNT, at 0.5 ft the explosion would be approximately 250 dB re 20 µPa. Based on the assumption that the structure of the barge would absorb and reflect approximately 94 percent of this energy, with approximately 6 percent of the energy from the explosion transmitted into the water (Yagla and Stiegler 2003), the amount of energy that would be transmitted into the water would be far less than the threshold for Level B harassment for marine mammals based on NMFS's current acoustic criterion for in-water explosive noise (160 dB re 1 µPa). As a result, the likelihood of in-water sound generated by an explosion of the Falcon 9 First Stage during an unsuccessful barge landing attempt resulting in take of marine mammals is considered so low as to be discountable and is therefore not discussed further in this document.

    As discussed above, in the event of an unsuccessful contingency landing attempt, the First Stage would be expected to explode upon impact with the barge. SpaceX has experience performing recovery operations after water and unsuccessful barge landings for previous Falcon 9 First Stage landing attempts. This experience, in addition to the debris catalog that identifies all floating debris, has revealed that approximately 25 pieces of debris remain floating after an unsuccessful barge landing. The approximately 25 pieces of debris would primarily be made of Carbon Over Pressure Vessels (COPVs), the liquid oxygen fill line, and carbon fiber constructed legs. The vast majority of debris would be recovered. All other debris is expected to sink to the bottom of the ocean. Denser debris that would not float on the surface would sink relatively quickly and is composed of inert materials which would not affect water quality or bottom substrate potentially used by marine mammals. The rate of deposition would vary with the type of debris; however, none of the debris is so dense or large that benthic habitat would be meaningfully degraded.

    The surface area potentially impacted with debris would be expected to be less than 0.46 km2. Since the area impacted by debris is very small, the likelihood of adverse effects to marine mammals is very low. During previous landing attempts in other locations, SpaceX has performed successful debris recovery. All of the recovered debris would be transported back to Long Beach Harbor for proper disposal. Most of the fuel remaining in the First Stage would be released onto the barge deck at the location of impact. Therefore, the likelihood of take of marine mammals as a result of contact with exploded First Stage materials is considered so low as to be discountable, and explosion of the Falcon 9 First Stage is therefore not discussed further in this document.

    In the event that a contingency landing action is required, there is the potential that the Falcon 9 First Stage would miss the barge entirely and land instead in the ocean. However, the likelihood of the First Stage missing the barge entirely and landing in the Pacific Ocean is considered so unlikely as to be discountable. This is supported by several previous attempts by SpaceX at Falcon 9 First Stage barge landings, none of which have missed the barge. Therefore, the likelihood of take of marine mammals associated with a Falcon 9 First Stage landing in the ocean is considered so low as to be discountable, and landing of the Falcon 9 First Stage in the ocean is not considered further in this document.

    Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see Proposed Mitigation and Proposed Monitoring and Reporting).

    Description of Marine Mammals in the Area of Specified Activities

    There are six marine mammal species with expected occurrence in the project area (including at VAFB, on the NCI, and in the waters surrounding VAFB, the NCI and the contingency landing location) that are expected to be affected by the specified activities. These include the Steller sea lion (Eumetopias jubatus), northern fur seal (Callorhinus ursinus), northern elephant seal (Mirounga angustirostris), Guadalupe fur seal (Arctocephalus philippii townsendi), California sea lion (Zalophus californianus), and Pacific harbor seal (Phoca vitulina richardii). This section provides summary information regarding local occurrence of these species. We have reviewed SpaceX's detailed species descriptions, including life history information, for accuracy and completeness and refer the reader to Section 3 of SpaceX's IHA application, as well as to NMFS's Stock Assessment Reports (SAR; https://www.fisheries.noaa.gov/topic/population-assessments#marine-mammals), rather than reprinting all of the information here. Additional general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS's website (https://www.fisheries.noaa.gov/find-species).

    There are an additional 28 species of cetaceans with expected or possible occurrence in the project area. However, we have determined that the only potential stressor associated with the activity that could result in take of marine mammals (sonic booms) only has the potential to result in harassment of marine mammals that are hauled out of the water (i.e., pinnipeds). Therefore, we have concluded that the likelihood of the proposed activities resulting in the harassment of any cetacean to be so low as to be discountable. As we have concluded that the likelihood of any cetacean being taken incidentally as a result of SpaceX's proposed activities to be so low as to be discountable, cetaceans are not considered further in this proposed authorization. Please see Table 3-1 in SpaceX's IHA application for a complete list of species with expected or potential occurrence in the project area.

    Table 1 lists all species with expected potential for occurrence in the vicinity of the project during the project timeframe that are likely to be affected by the specified activities, and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2017). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.

    Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. Pacific and Alaska SARs (e.g., Carretta et al., 2018; Muto et al., 2018). All values presented in Table 1 are the most recent available at the time of publication and are available in the 2017 SARs (Carretta et al., 2018; Muto et al., 2018) and draft 2018 SARs (available online at: https://www.fisheries.noaa.gov/topic/population-assessments#marine-mammals).

    Table 1—Marine Mammal Species Potentially Present in the Project Area Common name Scientific name Stock ESA/MMPA
  • status;
  • strategic
  • (Y/N) 1
  • Stock abundance
  • (CV, Nmin, most recent
  • abundance
  • survey) 2
  • PBR Annual
  • M/SI 3
  • Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions): California sea lion Zalophus californianus U.S. -; N 257,606 (n/a, 233,515, 2014) 14,011 ≥197 Northern fur seal Callorhinus ursinus California -; N 14,050 (n/a, 7,524, 2013) 451 ≥0.8 Steller sea lion Eumetopias jubatus Eastern U.S. -; N 41,638 (n/a, 41,638, 2015) 2,498 108 Guadalupe fur seal Arctocephalus philippii Mexico T/D; Y 20,000 (n/a, 15,830, 2010) 542 ≥3.2 Family Phocidae (earless seals): Pacific harbor seal Phoca vitulina richardii California -; N 30,968 (n/a, 27,348, 2012) 1,641 30 Northern elephant seal Mirounga angustirostris California breeding -; N 179,000 (n/a, 81,368, 2010) 4,882 4 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/topic/population-assessments#marine-mammals. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3 These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.

    All species that could potentially occur in the proposed survey areas are included in Table 1. As described below, all six species (with six managed stocks) temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur, and we have proposed authorizing it.

    Pacific Harbor Seal

    Harbor seals inhabit coastal and estuarine waters and shoreline areas of the northern hemisphere from temperate to polar regions. The eastern North Pacific subspecies is found from Baja California north to the Aleutian Islands and into the Bering Sea. Multiple lines of evidence support the existence of geographic structure among harbor seal populations from California to Alaska (Carretta et al., 2016). However, because stock boundaries are difficult to meaningfully draw from a biological perspective, three separate harbor seal stocks are recognized for management purposes along the west coast of the continental United States: (1) Washington inland waters (2) Oregon and Washington coast, and (3) California (Carretta et al., 2016). In addition, harbor seals may occur in Mexican waters, but these animals are not considered part of the California stock. Only the California stock is considered in t