Federal Register Vol. 83, No.231,

Federal Register Volume 83, Issue 231 (November 30, 2018)

Page Range61509-62240
FR Document

83_FR_231
Current View
Page and SubjectPDF
83 FR 61563 - 340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties RegulationPDF
83 FR 61601 - Sunshine Act Meeting NoticePDF
83 FR 61602 - Xanthan Gum From the People's Republic of China: Continuation of Antidumping Duty OrderPDF
83 FR 61610 - National Advisory Council on Indian Education; MeetingPDF
83 FR 61593 - Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Fisheries of the Northeastern United States; Atlantic Herring Fishery; Adjustment to Atlantic Herring Specifications and Sub-Annual Catch Limits for 2019PDF
83 FR 61681 - Meeting of the Coordinating Council on Juvenile Justice and Delinquency PreventionPDF
83 FR 61532 - Final Priorities, Requirements, Definitions, and Selection Criteria-Expanding Opportunity Through Quality Charter Schools Program; Grants to Charter Management Organizations for the Replication and Expansion of High-Quality Charter SchoolsPDF
83 FR 61610 - Application for New Awards; Expanding Opportunity Through Quality Charter Schools Program (CSP)--Grants to Charter Management Organizations for the Replication and Expansion of High-Quality Charter SchoolsPDF
83 FR 61670 - Notice of Availability of the Draft Environmental Impact Statement for the Proposed Caldwell Canyon Mine Project, Caribou County, IdahoPDF
83 FR 61683 - Distribution of Cable Royalty Funds; Distribution of Satellite Royalty FundsPDF
83 FR 61546 - Group Registration of Newsletters and SerialsPDF
83 FR 61639 - Medicare Program; Request for Nominations for Members for the Medicare Evidence Development & Coverage Advisory CommitteePDF
83 FR 61635 - Proposed Agency Information Collection Activities; Comment RequestPDF
83 FR 61637 - Proposed Agency Information Collection Activities; Comment RequestPDF
83 FR 61636 - Proposed Agency Information Collection Activities; Comment RequestPDF
83 FR 61632 - Registration Review; Draft Human Health and/or Ecological Risk Assessments for Several Pesticides; Notice of AvailabilityPDF
83 FR 61619 - Notice of Orders Issued Under Section 3 of the Natural Gas Act During October 2018PDF
83 FR 61629 - TSCA Science Advisory Committee on Chemicals (SACC); Notice of Public MeetingsPDF
83 FR 61574 - Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air FurnacesPDF
83 FR 61585 - Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air FurnacesPDF
83 FR 61631 - Information Collection Request Submitted To OMB for Review and Approval; Comment Request; NESHAP for Industrial, Commercial, and Institutional Boilers and Process Heaters (Renewal)PDF
83 FR 61657 - Meeting of the Advisory Commission on Childhood VaccinesPDF
83 FR 61567 - Medicare Program: Changes to Hospital Outpatient Prospective Payment and Ambulatory Surgical Center Payment Systems and Quality Reporting Programs; CorrectionPDF
83 FR 61682 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Form ETA-9142-B-CAA-2, Attestation for Employers Seeking To Employ H-2B Nonimmigrant Workers Under Section 205 of Division M of the Consolidated Appropriations Act, 2018 Public Law 115-141PDF
83 FR 61721 - Notice of OFAC Sanctions ActionsPDF
83 FR 61668 - Notice of Availability of the Draft Environmental Impact Statement for the Sevier Playa Potash Project, UtahPDF
83 FR 61709 - Office of Commercial Space Transportation: Notice of Availability and Request for Comment on the Draft Environmental Assessment for Issuing SpaceX a Launch License for an In-Flight Dragon Abort Test, Kennedy Space Center, Brevard County, FloridaPDF
83 FR 61632 - Environmental Impact Statements; Notice of AvailabilityPDF
83 FR 62204 - Approval and Promulgation of Implementation Plans; Arkansas; Approval of Regional Haze State Implementation Plan Revision and Partial Withdrawal of Federal Implementation PlanPDF
83 FR 61568 - Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Georges Bank Cod Trip Limit Adjustment for the Common Pool FisheryPDF
83 FR 61525 - Airworthiness Directives; Leonardo S.p.A. (Type Certificate Previously Held by Finmeccanica S.p.A. and AgustaWestland S.p.A.) HelicoptersPDF
83 FR 61707 - Meeting of the Regional Energy Resource CouncilPDF
83 FR 61600 - Environmental Impact Statement; Cattle Fever Tick Control Barrier in South Texas: Record of DecisionPDF
83 FR 61607 - Procurement List; Additions and DeletionsPDF
83 FR 61608 - Procurement List; Proposed DeletionsPDF
83 FR 61726 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Multiple Bureau of the Fiscal Service Information Collection RequestsPDF
83 FR 61713 - Notice of Receipt of Petition for Decision That Nonconforming Model Year 2016 Chevrolet Equinox Multipurpose Passenger Vehicles Are Eligible for ImportationPDF
83 FR 61717 - Notice of Receipt of Petition for Decision That Nonconforming Model Year 2015 Ferrari 458 Speciale Aperta Passenger Cars Are Eligible for ImportationPDF
83 FR 61719 - Notice of Receipt of Petition for Decision That Nonconforming Model Year 2016 Mercedes-Benz GL500 Multipurpose Passenger Vehicles Are Eligible for ImportationPDF
83 FR 61711 - Notice of Receipt of Petition for Decision That Nonconforming Model Year 2005 Chevrolet Corvette Passenger Cars Are Eligible for ImportationPDF
83 FR 61718 - Notice of Receipt of Petition for Decision That Certain Nonconforming Model Year 2011 Mercedes-Benz GL550 Multipurpose Passenger Vehicles Originally Certified to the Canadian Motor Vehicle Safety Standards Are Eligible for ImportationPDF
83 FR 61714 - Notice of Receipt of Petition for Decision That Nonconforming Model Year 2015 Chevrolet Silverado Trucks Are Eligible for ImportationPDF
83 FR 61715 - Notice of Receipt of Petition for Decision That Nonconforming Model Year 2008 Jeep Grand Cherokee Multipurpose Passenger Vehicles Are Eligible for ImportationPDF
83 FR 61622 - Combined Notice of FilingsPDF
83 FR 61622 - Combined Notice of Filings #1PDF
83 FR 61710 - Notice of Receipt of Petition for Decision that Nonconforming Model Year 2015 Bentley Continental Passenger Cars Are Eligible for ImportationPDF
83 FR 61668 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Industrial Minerals SurveysPDF
83 FR 61638 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
83 FR 61531 - Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, Albemarle and Chesapeake Canal, Chesapeake, VAPDF
83 FR 61532 - Recurring Safety Zone; Steelers Fireworks, Pittsburgh, PAPDF
83 FR 61603 - Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Pacific Coast Groundfish Fishery; Application for an Exempted Fishing PermitPDF
83 FR 61678 - Narciso A. Reyes, M.D.; Decision and OrderPDF
83 FR 61675 - Steve Fanto, M.D.; Decision and OrderPDF
83 FR 61684 - NASA International Space Station Advisory Committee; MeetingPDF
83 FR 61569 - Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2018 Tribal Fishery Allocations for Pacific Whiting; Reapportionment Between Tribal and Non-tribal SectorsPDF
83 FR 61671 - Notice of Availability of the Western Energy Company's Rosebud Mine Area F Final Environmental Impact Statement; S1D1S SS08011000 SX064A000 190S180110; S2D2S SS08011000 SX064A000 19XS501520PDF
83 FR 61609 - Withdrawal of the Notice of Intent To Prepare a Draft Environmental Impact Statement (DEIS) in Cooperation With the North Carolina Department of Transportation and South Carolina Department of Transportation for Extending SC 31 (Carolina Bays Parkway), in Horry County, South Carolina, To Connect to US 17, in Brunswick County, North CarolinaPDF
83 FR 61609 - Notice of Availability of the Record of Decision for the Final Missouri River Recovery Management Plan and Environmental Impact StatementPDF
83 FR 61722 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Multiple IRS Information Collection RequestsPDF
83 FR 61527 - Airworthiness Directives; General Electric Company Turbofan EnginesPDF
83 FR 61599 - Submission for OMB Review; Comment RequestPDF
83 FR 61645 - Determination of Regulatory Review Period for Purposes of Patent Extension; PROVAYBLUEPDF
83 FR 61648 - Blood Glucose Monitoring Test Systems for Prescription Point-of-Care Use; Draft Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
83 FR 61643 - Determination of Regulatory Review Period for Purposes of Patent Extension; KEVZARAPDF
83 FR 61646 - Agency Information Collection Activities; Proposed Collection; Comment Request; Oversight of Clinical Investigations: A Risk-Based Approach to MonitoringPDF
83 FR 61653 - Agency Information Collection Activities; Proposed Collection; Comment Request; Food and Drug Administration Adverse Event Reports; Electronic SubmissionsPDF
83 FR 61684 - Alan T. Waterman Award Committee; Notice of MeetingPDF
83 FR 61650 - Bone, Reproductive and Urologic Drugs Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for CommentsPDF
83 FR 61640 - Self-Monitoring Blood Glucose Test Systems for Over-the-Counter Use; Draft Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
83 FR 61529 - Airworthiness Directives; CFM International S.A. Turbofan EnginesPDF
83 FR 61601 - Notice of Public Meeting of the Wyoming Advisory CommitteePDF
83 FR 61573 - Loan Guaranty: Revisions to VA-Guaranteed or Insured Cash-Out Home LoansPDF
83 FR 61674 - Truck and Bus Tires From ChinaPDF
83 FR 61667 - Aquatic Nuisance Species Task Force MeetingPDF
83 FR 61685 - Performance Review Boards for Senior Executive Service; RevisionPDF
83 FR 61658 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed MeetingPDF
83 FR 61659 - Prospective Grant of an Exclusive Patent License: Agonist/Antagonist Compositions and Methods of UsePDF
83 FR 61658 - National Cancer Institute; Notice of Closed MeetingPDF
83 FR 61658 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
83 FR 61601 - Notice of Public Meeting of the Michigan Advisory CommitteePDF
83 FR 61672 - Steel Wheels From China; Scheduling of the Final Phase of Countervailing Duty and Antidumping Duty InvestigationsPDF
83 FR 61664 - Virginia; Amendment No. 3 to Notice of a Major Disaster DeclarationPDF
83 FR 61664 - Virginia; Amendment No. 2 to Notice of a Major Disaster DeclarationPDF
83 FR 61623 - Combined Notice of Filings #1PDF
83 FR 61621 - Chattanooga Gas Company; Notice of ApplicationPDF
83 FR 61620 - Arena Energy, LP, Castex Offshore, Inc., EnVen Energy Ventures, LLC, Fieldwood Energy LLC, Walter Oil & Gas Corporation, W&T Offshore, Inc. v. High Point Gas Transmission, LLC; Notice of ComplaintPDF
83 FR 61626 - Midship Pipeline Company, LLC; Notice of Intent To Prepare an Environmental Assessment for a Proposed Amendment of the Midcontinent Supply Header Interstate Pipeline Project and Request for Comments on Environmental IssuesPDF
83 FR 61659 - Changes in Flood Hazard DeterminationsPDF
83 FR 61663 - Final Flood Hazard DeterminationsPDF
83 FR 61699 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating To the Modification of Certain Routing FeesPDF
83 FR 61705 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Withdrawal of a Proposed Rule Change To Amend the Fee Schedule Regarding Connectivity Fees for Members and Non-MembersPDF
83 FR 61689 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of a Proposed Rule Change Relating to FINRA Rule 4570 (Custodian of Books and Records)PDF
83 FR 61686 - Self-Regulatory Organizations; Cboe BYX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Modification of Certain Routing FeesPDF
83 FR 61692 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Its Certificate of Incorporation, Bylaws and Rule 3.3PDF
83 FR 61700 - Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Exchange's Provisions for Excluding Days for Purposes of Pricing TiersPDF
83 FR 61705 - Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 903, Series of Options Open for TradingPDF
83 FR 61687 - Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Withdrawal of a Proposed Rule Change To Amend the Fee Schedule Regarding Connectivity Fees for Members and Non-MembersPDF
83 FR 61687 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Amend Rule 6.4-O, Series of Options Open for TradingPDF
83 FR 61709 - Notice Rescinding Eight Notices of Intent To Prepare Environmental Impact StatementsPDF
83 FR 61657 - Meetings Announcement for the Physician-Focused Payment Model Technical Advisory Committee Required by the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA); CorrectionPDF
83 FR 61651 - Joint Meeting of the Arthritis Advisory Committee and the Drug Safety and Risk Management Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for CommentsPDF
83 FR 61642 - Endocrinologic and Metabolic Drugs Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for CommentsPDF
83 FR 61605 - Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Management Area; Cost Recovery ProgramsPDF
83 FR 61675 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Forensic Firearm Training Request for Non-ATF Employees-ATF Form 7110.15PDF
83 FR 61685 - Proposal Review; Notice of MeetingsPDF
83 FR 61624 - KEI (Maine) Power Management (II) LLC; Notice of Intent To File License Application, Filing of Pre-Application Document, and Approving Use of the Traditional Licensing ProcessPDF
83 FR 61625 - Notice of Amendment: Midship Pipeline Company, LLCPDF
83 FR 61624 - Atlanta Gas Light Company; Notice of ApplicationPDF
83 FR 61664 - Draft Environmental Impact Statement and Draft Habitat Conservation Plan; Receipt of an Application for an Incidental Take Permit for Marbled Murrelets, Bald Eagles, and Golden Eagles; Skookumchuck Wind Energy Project, Lewis and Thurston Counties, WashingtonPDF
83 FR 62152 - Modernizing Part D and Medicare Advantage To Lower Drug Prices and Reduce Out-of-Pocket ExpensesPDF
83 FR 61708 - Environmental Impact Statement for Allen Fossil Plant Ash Impoundment ClosuresPDF
83 FR 61551 - Revisions to California State Implementation Plan; South Coast Air Quality Management District; Stationary Source PermitsPDF
83 FR 61552 - Safe Management of Recalled AirbagsPDF
83 FR 61628 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Plating and Polishing Area Sources (Renewal)PDF
83 FR 61634 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Friction Materials Manufacturing (Renewal)PDF
83 FR 61523 - Airworthiness Directives; Dassault Aviation AirplanesPDF
83 FR 61707 - Notice of Availability of the Draft Environmental Assessment (Draft EA) for Palmetto Railways Camp Hall Rail LinePDF
83 FR 61509 - Collection of Checks and Other Items by Federal Reserve Banks and Funds Transfers Through FedwirePDF
83 FR 61571 - Post-Trade Name Give-Up on Swap Execution FacilitiesPDF
83 FR 61946 - Swap Execution Facilities and Trade Execution RequirementPDF
83 FR 61730 - Updated Disclosure Requirements and Summary Prospectus for Variable Annuity and Variable Life Insurance ContractsPDF

Issue

83 231 Friday, November 30, 2018 Contents Editorial Notes:

(1) An erroneous editorial note was included in the printed version of the Federal Register Table of Contents for Thursday, November 29, 2018. The editorial note does not apply to that table of contents.

(2) In the printed version of the Federal Register Table of Contents for Tuesday, November 27, 2018, FR Doc. 2018-25846 was incorrectly indexed as “Qualification of Drivers; Exemption Applications: Epilepsy and Seizure Disorders.” This document should have been indexed as “Agency Information Collection Activities; Proposals, Submissions, and Approvals: Pilot Program to Allow 18- to 21-Year-Old Persons with Military Driving Experience to Operate Commercial Motor Vehicles in Interstate Commerce.”

Agriculture Agriculture Department See

Animal and Plant Health Inspection Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 61599-61600 2018-26027 2018-26036
Alcohol Tobacco Firearms Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Forensic Firearm Training Request for Non-ATF Employees, 61675 2018-25988 Animal Animal and Plant Health Inspection Service NOTICES Environmental Impact Statements; Availability, etc.: Cattle Fever Tick Control Barrier in South Texas, 61600 2018-26068 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare Program: Changes to Hospital Outpatient Prospective Payment and Ambulatory Surgical Center Payment Systems and Quality Reporting Programs; Correction, 61567-61568 2018-26079 PROPOSED RULES Modernizing Part D and Medicare Advantage to Lower Drug Prices and Reduce Out of Pocket Expenses, 62152-62201 2018-25945 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 61638-61639 2018-26052 Requests for Nominations: Members for the Medicare Evidence Development and Coverage Advisory Committee, 61639-61640 2018-26090 Civil Rights Civil Rights Commission NOTICES Meetings: Michigan Advisory Committee, 61601 2018-26012 Wyoming Advisory Committee, 61601-61602 2018-26022 Meetings; Sunshine Act, 61601 2018-26202 Coast Guard Coast Guard RULES Drawbridge Operations: Atlantic Intracoastal Waterway, Albemarle and Chesapeake Canal, Chesapeake, VA, 61531-61532 2018-26051 Safety Zones: Steelers Fireworks, Pittsburgh, PA, 61532 2018-26050 Commerce Commerce Department See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 61607-61609 2018-26065 2018-26066 Commodity Futures Commodity Futures Trading Commission PROPOSED RULES Post-Trade Name Give-Up on Swap Execution Facilities, 61571-61573 2018-24643 Swap Execution Facilities and Trade Execution Requirement, 61946-62149 2018-24642 Copyright Office Copyright Office, Library of Congress RULES Group Registration of Newsletters and Serials, 61546-61551 2018-26091 Copyright Royalty Board Copyright Royalty Board NOTICES Distribution of Cable Royalty Funds; Distribution of Satellite Royalty Funds, 61683-61684 2018-26092 Defense Department Defense Department See

Engineers Corps

Drug Drug Enforcement Administration NOTICES Decisions and Orders: Narciso A. Reyes, M.D., 61678-61681 2018-26047 Steve Fanto, M.D., 61675-61678 2018-26046 Education Department Education Department RULES Final Priorities, Requirements, Definitions, and Selection Criteria: Expanding Opportunity Through Quality Charter Schools Program; Grants to Charter Management Organizations for the Replication and Expansion of High-Quality Charter Schools, 61532-61546 2018-26095 NOTICES Application for New Awards: Expanding Opportunity Through Quality Charter Schools Program—Grants to Charter Management Organizations for the Replication and Expansion of High-Quality Charter Schools, 61610-61619 2018-26094 Meetings: National Advisory Council on Indian Education; Teleconference, 61610 2018-26130 Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Orders under the Natural Gas Act: Mpower Energy, LLC, Stand Energy Corp., Mexicana de Cobre, S.A. de C.V., et al., 61619-61620 2018-26085
Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: Final Missouri River Recovery Management Plan, 61609 2018-26040 SC 31 (Carolina Bays Parkway), in Horry County, SC, to connect to US 17, in Brunswick County, NC; Withdrawal, 61609 2018-26041 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Revisions to California State Implementation Plan; South Coast Air Quality Management District; Stationary Source Permits, 61551-61552 2018-25900 Safe Management of Recalled Airbags, 61552-61563 2018-25892 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Arkansas; Approval of Regional Haze State Implementation Plan Revision and Partial Withdrawal of Federal Implementation Plan, 62204-62240 2018-26073 Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air Furnaces, 61574-61593 2018-26082 2018-26083 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Emission Standards for Hazardous Air Pollutants for Friction Materials Manufacturing, 61634 2018-25768 National Emission Standards for Hazardous Air Pollutants for Plating and Polishing Area Sources, 61628 2018-25771 NESHAP for Industrial, Commercial, and Institutional Boilers and Process Heaters (Renewal), 61631-61632 2018-26081 Environmental Impact Statements; Availability, etc.: Weekly Receipts, 61632 2018-26074 Meetings: Toxic Substances Control Act Science Advisory Committee on Chemicals, 61629-61631 2018-26084 Registration Review: Draft Human Health and/or Ecological Risk Assessments for Several Pesticides; Availability, 61632-61634 2018-26086 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: CFM International S.A. Turbofan Engines, 61529-61531 2018-26026 Dassault Aviation Airplanes, 61523-61525 2018-25658 General Electric Company Turbofan Engines, 61527-61529 2018-26038 Leonardo S.p.A. (Type Certificate previously held by Finmeccanica S.p.A. and AgustaWestland S.p.A.) Helicopters, 61525-61527 2018-26071 NOTICES Environmental Assessments; Availability, etc.: Office of Commercial Space Transportation; Issuing SpaceX a Launch License for an In-flight Dragon Abort Test, Kennedy Space Center, Brevard County, FL, 61709 2018-26075 Federal Emergency Federal Emergency Management Agency NOTICES Flood Hazard Determinations, 61663 2018-26003 Flood Hazard Determinations; Changes, 61659-61662 2018-26004 Major Disaster Declarations: Virginia; Amendment No. 2, 61664 2018-26009 Virginia; Amendment No. 3, 61664 2018-26010 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Atlanta Gas Light Co., 61624-61625 2018-25984 Chattanooga Gas Co., 61621-61622 2018-26007 Midship Pipeline Co., LLC, 61625-61626 2018-25985 Combined Filings, 61622-61623 2018-26008 2018-26055 2018-26056 Complaints: Arena Energy, LP, Castex Offshore, Inc., EnVen Energy Ventures, LLC, Fieldwood Energy, LLC, Walter Oil and Gas Corp., W and T Offshore, Inc. v. High Point Gas Transmission, LLC, 61620-61621 2018-26006 Environmental Assessments; Availability, etc.: Midship Pipeline Co., LLC; Midcontinent Supply Header Interstate Pipeline Project, 61626-61628 2018-26005 License Applications: KEI (Maine) Power Management (II), LLC, 61624 2018-25986 Federal Railroad Federal Railroad Administration NOTICES Rescinding Eight Notices of Intent to Prepare Environmental Impact Statements, 61709-61710 2018-25993 Federal Reserve Federal Reserve System RULES Collection of Checks and Other Items by Federal Reserve Banks and Funds Transfers Through Fedwire, 61509-61523 2018-25267 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 61635-61638 2018-26087 2018-26088 2018-26089 Fish Fish and Wildlife Service NOTICES Environmental Assessments; Availability, etc.: Receipt of an Application for an Incidental Take Permit for Marbled Murrelets, Bald Eagles, and Golden Eagles; Skookumchuck Wind Energy Project, Lewis and Thurston Counties, Washington, 61664-61667 2018-25969 Meetings: Aquatic Nuisance Species Task Force, 61667-61668 2018-26019 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Food and Drug Administration Adverse Event Reports; Electronic Submissions, 61653-61657 2018-26031 Oversight of Clinical Investigations: A Risk-Based Approach to Monitoring, 61646-61648 2018-26032 Determination of Regulatory Review Period for Purposes of Patent Extension: KEVZARA, 61643-61645 2018-26033 PROVAYBLUE, 61645-61646 2018-26035 Guidance: Blood Glucose Monitoring Test Systems for Prescription Point-of-Care Use, 61648-61650 2018-26034 Self-Monitoring Blood Glucose Test Systems for Over-the-Counter Use, 61640-61642 2018-26028 Meetings: Bone, Reproductive and Urologic Drugs Advisory Committee, 61650-61651 2018-26029 Endocrinologic and Metabolic Drugs Advisory Committee, 61642-61643 2018-25990 Joint Meeting of the Arthritis Advisory and Drug Safety and Risk Management Advisory Committees, 61651-61653 2018-25991 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 61721-61722 2018-26077 Geological Geological Survey NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Industrial Minerals Surveys, 61668 2018-26053 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

RULES 340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties Regulation, 61563-61567 2018-26223 NOTICES Meetings: Physician-Focused Payment Model Technical Advisory Committee Required by the Medicare Access and CHIP Reauthorization Act; Correction, 61657-61658 2018-25992
Health Resources Health Resources and Services Administration NOTICES Meetings: Advisory Commission on Childhood Vaccines, 61657 2018-26080 Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

Interior Interior Department See

Fish and Wildlife Service

See

Geological Survey

See

Land Management Bureau

See

Surface Mining Reclamation and Enforcement Office

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Xanthan Gum from the People's Republic of China, 61602-61603 2018-26170 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Steel Wheels from China, 61672-61674 2018-26011 Truck and Bus Tires from China, 61674-61675 2018-26020 Justice Department Justice Department See

Alcohol, Tobacco, Firearms, and Explosives Bureau

See

Drug Enforcement Administration

See

Justice Programs Office

Justice Programs Justice Programs Office NOTICES Meetings: Coordinating Council on Juvenile Justice and Delinquency Prevention, 61681-61682 2018-26096 Labor Department Labor Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers under the Consolidated Appropriations Act, 61682-61683 2018-26078 Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Proposed Caldwell Canyon Mine Project, Caribou County, ID, 61670-61671 2018-26093 Sevier Playa Potash Project, Utah, 61668-61670 2018-26076 Library Library of Congress See

Copyright Office, Library of Congress

See

Copyright Royalty Board

NASA National Aeronautics and Space Administration NOTICES Meetings: International Space Station Advisory Committee, 61684 2018-26044 National Highway National Highway Traffic Safety Administration NOTICES Petition for Importation Eligibility: Nonconforming Model Year 2005 Chevrolet Corvette Passenger Cars, 61711-61713 2018-26060 Nonconforming Model Year 2008 Jeep Grand Cherokee Multipurpose Passenger Vehicles, 61715-61717 2018-26057 Nonconforming Model Year 2011 Mercedes-Benz GL550 Multipurpose Passenger Vehicles Originally Certified to the Canadian Motor Vehicle Safety Standards, 61718-61719 2018-26059 Nonconforming Model Year 2015 Ferrari 458 Speciale Aperta Passenger Cars, 61717-61718 2018-26062 Nonconforming Model Year 2016 Chevrolet Equinox Multipurpose Passenger Vehicles, 61713-61714 2018-26063 Petition for Decisions: Nonconforming Model Year 2016 Mercedes-Benz GL500 Multipurpose Passenger Vehicles are Eligible for Importation, 61719-61721 2018-26061 Nonconforming Model Year 2015 Bentley Continental Passenger Cars Are Eligible for Importation, 61710-61711 2018-26054 Nonconforming Model Year 2015 Chevrolet Silverado Trucks Are Eligible for Importation, 61714-61715 2018-26058 National Institute National Institutes of Health NOTICES Meetings: National Cancer Institute, 61658 2018-26015 National Institute of Allergy and Infectious Diseases, 61658-61659 2018-26014 National Institute of Diabetes and Digestive and Kidney Diseases, 61658 2018-26017 Prospective Grant of an Exclusive Patent License, 61659 2018-26016 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Northeastern United States: Northeast Multispecies Fishery; Georges Bank Cod Trip Limit Adjustment for the Common Pool Fishery, 61568-61569 2018-26072 Fisheries off West Coast States: Magnuson-Stevens Act Provisions; Pacific Coast Groundfish Fishery; 2018 Tribal Fishery Allocations for Pacific Whiting; Reapportionment Between Tribal and Non-tribal Sectors, 61569-61570 2018-26043 PROPOSED RULES Fisheries of the Northeastern United States: Atlantic Herring Fishery; Adjustment to Atlantic Herring Specifications and Sub-Annual Catch Limits for 2019, 61593-61598 2018-26097 NOTICES Application for an Exempted Fishing Permit: Pacific Coast Groundfish Fishery, 61603-61605 2018-26049 Fisheries of the Exclusive Economic Zone off Alaska: Bering Sea and Aleutian Islands Management Area; Cost Recovery Programs, 61605-61607 2018-25989 National Science National Science Foundation NOTICES Meetings: Alan T. Waterman Award Committee, 61684-61685 2018-26030 Proposal Review, 61685 2018-25987 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Performance Review Boards for Senior Executive Service; Revision, 61685 2018-26018 Securities Securities and Exchange Commission PROPOSED RULES Disclosure Requirements and Summary Prospectus for Variable Annuity and Variable Life Insurance Contracts, 61730-61943 2018-24376 NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Cboe BYX Exchange, Inc., 61686-61687 2018-25999 Cboe BZX Exchange, Inc., 61699-61700 2018-26002 Financial Industry Regulatory Authority, Inc., 61689-61692 2018-26000 Miami International Securities Exchange, LLC, 61705 2018-26001 MIAX PEARL, LLC, 61687 2018-25995 Nasdaq PHLX, LLC, 61700-61705 2018-25997 NYSE American, LLC, 61705-61707 2018-25996 NYSE Arca, Inc., 61687-61689, 61692-61699 2018-25994 2018-25998 Surface Mining Surface Mining Reclamation and Enforcement Office NOTICES Environmental Impact Statements; Availability, etc.: Western Energy Company's Rosebud Mine Area F, 61671-61672 2018-26042 Surface Transportation Surface Transportation Board NOTICES Environmental Assessments; Availability, etc.: Palmetto Railways Camp Hall Rail Line, 61707 2018-25446 Tennessee Tennessee Valley Authority NOTICES Environmental Impact Statements; Availability, etc.: Allen Fossil Plant Ash Impoundment Closures, 61708-61709 2018-25914 Meetings: Regional Energy Resource Council, 61707-61708 2018-26070 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Railroad Administration

See

National Highway Traffic Safety Administration

Treasury Treasury Department See

Foreign Assets Control Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 61722-61727 2018-26039 2018-26064
Veteran Affairs Veterans Affairs Department PROPOSED RULES Loan Guaranty: VA-Guaranteed or Insured Cash-out Home Loans, 61573-61574 2018-26021 Separate Parts In This Issue Part II Securities and Exchange Commission, 61730-61943 2018-24376 Part III Commodity Futures Trading Commission, 61946-62149 2018-24642 Part IV Health and Human Services Department, Centers for Medicare & Medicaid Services, 62152-62201 2018-25945 Part V Environmental Protection Agency, 62204-62240 2018-26073 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.

83 231 Friday, November 30, 2018 Rules and Regulations FEDERAL RESERVE SYSTEM 12 CFR Part 210 [Regulation J; Docket No. R-1599] RIN 7100-AE98 Collection of Checks and Other Items by Federal Reserve Banks and Funds Transfers Through Fedwire AGENCY:

Board of Governors of the Federal Reserve System.

ACTION:

Final rule.

SUMMARY:

The Board of Governors of the Federal Reserve System (Board) is publishing final amendments to Regulation J. The amendments clarify and simplify certain provisions Regulation J, remove obsolete provisions, and align the rights and obligations of sending banks, paying banks, and Federal Reserve Banks (Reserve Banks) with the Board's recent amendments to Regulation CC to reflect the virtually all-electronic check collection and return environment. The final rule also amends Regulation J to clarify that terms used in financial messaging standards, such as ISO 20022, do not confer legal status or responsibilities.

DATES:

Effective January 1, 2019.

FOR FURTHER INFORMATION CONTACT:

Clinton N. Chen, Senior Attorney (202) 452-3952, Legal Division; or Ian C.B. Spear, Manager (202) 452-3959; Division of Reserve Bank Operations and Payment Systems; for users of Telecommunication Devices for the Deaf (TDD) only, contact 202-263-4869; Board of Governors of the Federal Reserve System, 20th and C Streets NW, Washington, DC 20551.

SUPPLEMENTARY INFORMATION:

I. Background

Subpart A of Regulation J governs the collection of checks and other items by the Reserve Banks. This subpart includes the warranties and indemnities that are given to the Reserve Banks by parties that send items to the Reserve Banks for collection and return, as well as the warranties and indemnities for which the Reserve Banks are responsible in connection with the items they handle. Subpart A also describes the methods by which the Reserve Banks may recover for losses associated with their collection of items. Subpart A authorizes the Reserve Banks to issue operating circulars governing the details of the collection of checks and other items and provides that such operating circulars have binding effect on all parties interested in an item handled by a Reserve Bank. The Reserve Banks' Operating Circular No. 3, “Collection of Cash Items and Returned Checks” (OC 3),1 is the operating circular that is most relevant to the Reserve Banks' check collection activities. Subpart B of Regulation J provides rules to govern funds transfers through the Reserve Banks' Fedwire Funds Service. This service is also governed by the Reserve Banks' Operating Circular No. 6, “Funds Transfers through the Fedwire Funds Service” (OC 6).2

1See, https://www.frbservices.org/assets/resources/rules-regulations/072315-operating-circular-3.pdf.

2See, https://www.frbservices.org/assets/resources/rules-regulations/operating-circular-6-102917.pdf.

II. Overview of Proposal and Comments

In March 2018, the Board published a notice of proposed rulemaking (“proposal”) intended to align subpart A of Regulation J with the Board's 2017 amendments to Regulation CC and cross reference certain provisions (83 FR 11431). The proposal also included amendments to subpart B of Regulation J to clarify that terms used in financial messaging standards, such as ISO 20022, do not confer legal status or responsibilities. The Board received 25 comments in response to its proposal during the comment period from a variety of commenters, including financial institutions, trade associations, clearinghouses, and private individuals. The Board has considered all comments received and has adopted amendments to Regulation J as described below.

A. Alignment With Regulation CC Amendments Addressing Electronic Checks

Under subpart A of Regulation J, Reserve Banks handle “items,” which are defined to include “electronic items.” Regulation J currently defines an “electronic item” as an electronic image of, and information describing, an item that a Reserve Bank agrees to handle pursuant to an operating circular. Regulation J also sets forth certain warranties provided to the Reserve Banks by the sender of an electronic item and certain warranties provided by the Reserve Banks when sending or presenting an electronic item. Specifically, Regulation J provides that for electronic items, the sender and the Reserve Banks make warranties (1) as set forth in the Uniform Commercial Code (U.C.C.) and Regulation CC as if the electronic item were subject to their terms; and (2) similar to those made for substitute checks under the Check 21 Act (“Check-21-like warranties”). Regulation J also currently provides similar provisions related to checks that are returned as electronic items.

In 2017, the Board published a final rule amending Regulation CC to reflect the virtually all-electronic check collection and return environment (82 FR 27552). Among other things, the amendments created a regulatory framework for the collection and return of electronic items (i.e., electronic images and electronic information derived from a paper item) by defining the terms “electronic check” and “electronic returned check,” creating Check-21-like warranties for electronic checks and electronic returned checks, and applying existing paper-check warranties to electronic checks and electronic returned checks.

In its proposal, the Board proposed to remove the term “electronic item” from Regulation J and define “check” and “returned check” to include an electronic check and electronic returned check as defined in § 229.2 of Regulation CC. The proposal defined the term “item” to include an electronic check as defined in Regulation CC. The Board also proposed to eliminate duplicative provisions by removing the Check-21-like warranties currently provided under Regulation J by the sender and the Reserve Banks. Instead, the proposal provided that the sender of an item (including an electronic check) and the Reserve Banks would (as applicable and unless otherwise provided) make all the warranties and indemnities set forth in and subject to the terms of subparts C and D in Regulation CC. The Board proposed similar amendments to the provisions of Regulation J that currently address returning checks as electronic items.

Commenters generally supported aligning Regulation J with Regulation CC's amendments regarding electronic checks. The Board received specific comments on cross referencing Regulation CC electronic check warranties and indemnities, which is discussed in detail in the relevant section-by-section analysis. The Board has revised proposed §§ 210.6(b)(3) and 210.12(e) to extend the warranties with respect to electronic checks and electronic returned checks provided by Reserve Banks to the same scope of recipients as in Regulation CC, as discussed in detail in the relevant section-by-section analyses.

B. Electronically Created Items

In the 2017 amendments to Regulation CC, the Board included certain indemnities with respect to electronically-created items (ECIs), which are check-like items created in electronic form that never existed in paper form. ECIs can be difficult to distinguish from electronic images of paper checks. As a practical matter, a bank receiving an ECI often handles it as if it were derived from a paper check. However, because there was no original paper check corresponding to the ECI, the warranties, indemnities, and other provisions of Regulation CC would not apply to those items. As the Board explained in the 2017 Regulation CC amendments, the payee and the depositary bank are in the best position to know whether an item is electronically created and to prevent the item from entering the check-collection system. Therefore, to protect banks that receive ECIs during the check collection process, the Board's Regulation CC amendments provided indemnities that ultimately shift liability for losses to the depositary bank. These losses could arise because the ECI (1) is not derived from a paper check, (2) was unauthorized, or (3) was transferred or presented for payment more than once.3 As described above, the final rule cross references Regulation CC's warranties and indemnities in Regulation J, including Regulation CC's ECI indemnities.

3 12 CFR 229.34(g) provides that each bank that transfers or presents an electronically-created item and receives a settlement or other consideration for it shall indemnify, as set forth in § 229.34(i), each transferee bank, any subsequent collecting bank, the paying bank, and any subsequent returning bank against losses that result from the fact that (1) the electronic image or electronic information is not derived from a paper check; (2) the person on whose account the electronically-created item is drawn did not authorize the issuance of the item in the amount stated on the item or to the payee stated on the item (for purposes of paragraph (g)(2), “account” includes an account as defined in § 229.2(a) as well as a credit or other arrangement that allows a person to draw checks that are payable by, through, or at a bank); or (3) a person receives a transfer, presentment, or return of, or otherwise is charged for an electronically-created item such that the person is asked to make payment based on an item or check it has already paid.

In its proposal, the Board explained that although Regulation J does not explicitly address ECIs, the definition of item in Regulation J does not encompass ECIs and therefore Regulation J does not allow for the handling of ECIs by the Reserve Banks. Specifically, Regulation J defines an item, in part, as “an instrument or a promise or order to pay money, whether negotiable or not” that meets several other requirements.4 The terms “instrument,” “promise,” and “order” are defined under the U.C.C. as requiring a writing.5 Because they never existed in tangible form and therefore do not qualify as writings, ECIs are not “items” as defined in Regulation J.

4 12 CFR 210.2(i).

5 Terms not otherwise defined in Regulation J or Regulation CC have the meanings set forth in the U.C.C. Under the U.C.C., “instrument” means a “negotiable instrument” which is defined in part as “unconditional promise or order to pay a fixed amount of money.” U.C.C. 3-104. “Promise” is defined as “a written undertaking to pay money signed by the person undertaking to pay.” U.C.C. 3-103. “Order” is defined as “a written instruction to pay money signed by the person giving the instruction.” U.C.C. 3-103. “Writing” and “written” are defined as including “printing, typewriting, or any other intentional reduction to tangible form.” U.C.C. 1-201.

To provide greater clarity that Regulation J does not allow for the handling of ECIs by the Reserve Banks, the Board proposed to amend the definition of “item” in subpart A of Regulation J to state explicitly that the term does not include an ECI as defined in Regulation CC. Furthermore, because Regulation J is intended to provide rules for the collection and return of items by the Reserve Banks, the Board proposed to allow the Reserve Banks to require senders to provide warranties and indemnities that only “items” and any “noncash items” the Reserve Banks have agreed to handle will be provided to the Reserve Banks. The Board's proposal also permitted the Reserve Banks to provide a subsequent collecting bank and a paying bank the warranties and indemnities provided by the sender. The Board requested comment on possible implications that this clarification and change related to ECIs in Regulation J may have on financial institutions or the industry more broadly. The Board also requested comment on whether, and to what extent, the Board should consider amending Regulation J as part of a future rulemaking to permit the Reserve Banks to accept ECIs.

Three commenters, including a Federal Reserve Bank and a comment letter submitted by a group of trade associations (“group letter”), supported the Board's proposal on ECIs. The Reserve Bank commenter noted that it is aware that some advocates support allowing ECIs to be handled in the same manner as checks and has worked with these advocates to explore the possibility of making legal and operational changes to support ECIs. However, the Reserve Bank commenter stated that there is currently no consensus among industry participants to change laws or adopt standards necessary to support ECIs. In the absence of such laws and standards supporting ECIs, the Reserve Bank commenter believes that ECIs represent an unacceptable level of risk to financial institutions. Similarly, the group letter stated that ECIs lack legal status under existing laws and expose financial institutions to risks that cannot be effectively mitigated. The group letter stated that due to ECIs uncertain legal status, it is important to protect financial institutions that receive ECIs during the check collection process from damage or loss arising from the fact that ECIs are not derived from paper checks. Therefore, the group supported the Board's proposal to allow Reserve Banks to require senders to provide warranties and indemnities with respect to ECIs and did not support additional rulemaking to allow the handling of ECIs by the Reserve Banks.

Fourteen commenters, including a joint commenter letter submitted by businesses, financial institutions, and industry associations (“joint letter”), generally did not support the Board's proposed amendments on ECIs. The joint letter stated that the Board's proposal concerning ECIs is not in line with the Board's recent payment system improvement efforts.6 Another commenter stated that the Board's proposal limited consumer choice because ECIs may be initiated by consumers that do not have access to a debit or credit card. Commenters stated that the Board's proposal discouraged the evolution of the check system to an all-electronic payment system that would result in lower barriers to entry, lower cost, increased speed, and increased parity among financial institutions. Two commenters requested the Board to conduct further studies on ECIs. One commenter expressed concern that institutions would be unable to identify ECIs and requested that the Board provide guidance on how banks can recognize ECIs. Another commenter requested that the Board expressly set out rules for alternative methods of direct exchange of ECIs in its final rule and guidance.

6 The joint letter specifically cited the Federal Reserve's 2013 consultation paper. The Federal Reserve Banks, Payment System Improvement—Public Consultation Paper (2013).

The Board has considered the comments received and has adopted the amendments concerning ECIs as proposed in its final rule. The Board notes that numerous comments erroneously viewed the Board's proposed amendments as substantive modifications that created a new prohibition on ECIs. However, as discussed above, ECIs are not “items” under the Board's current Regulation J and therefore cannot be handled by the Reserve Banks. This exclusion of ECIs under current Regulation J is already reflected in current OC 3, which requires that an “electronic item” contain an image and data captured from a paper check. The Board's amendments to the definition of “item” are intended only to provide additional clarity regarding these existing exclusions and do not create any new prohibitions. The Board believes this existing exclusion shifts liability to parties better positioned to know whether a purported item is electronically created and that can either prevent the ECI from entering the check-collection system or assume the risk of sending it forward. Moreover, the Board's amendments would not prevent entities that desire to exchange ECIs from doing so by agreement using direct exchange relationships or other methods not involving the Reserve Banks.

The Board appreciates comments regarding the Federal Reserve's payment system improvement efforts and continues to support technological innovation in the payments system. However, as set forth in the Federal Reserve's Strategies for Improving the U.S. Payment System paper,7 the Federal Reserve is committed to improving the speed and efficiency of the U.S. payment system from end-to-end while maintaining a high level of safety and accessibility. As explained in that paper, “credit-push payments,” which allow the paying bank to authenticate the customer and confirm “good funds” are available to support the transaction, have become the expectation when making electronic person-to-person, business-to-business and certain bill payments. Unlike “credit-push payments,” “debit-pull payments” such as ECIs have a higher risk profile because they generally do not have the same authentication processes and may allow unauthorized parties who have access to a payer's account information to fraudulently pull funds out of the payer's account. To date, there has not been the industry support or necessary investment to address the heightened risk profiles created by processing electronically-created debit instruments through the check collection system. Moreover, there is legal uncertainty as to the status of ECIs that are processed as if they were checks under the U.C.C. and the Electronic Funds Transfer Act. The Board believes that the heightened risk profile and legal uncertainty surrounding ECIs currently outweigh the potential benefits of ECIs mentioned by the commenters and, accordingly, will not conduct further studies on ECIs at this time.

7 Federal Reserve System, Strategies for Improving the U.S. Payment System (2016).

The Board does not believe it is appropriate to adopt guidance to clarify how banks can distinguish ECIs from electronic checks. As it stated in its proposal, the Board recognizes that a bank receiving an electronic image generally cannot distinguish an image that is derived from a paper check from an ECI. This inability to distinguish ECIs from electronic images of paper checks is the reason the Board adopted indemnities with respect to ECIs in Regulation CC. The parties in the best position to know whether a purported item is electronically created are also in the best position to assess and take on any associated risks that may arise from ECIs entering the check collection system and can also address such risk in agreements with their customers that deposit ECIs.

C. Settlement and Payment

Regulation J currently provides that settlement with a Reserve Bank for cash items “shall be made by debit to an account on the Reserve Bank's books, cash, or other form of settlement” to which the Reserve Bank has agreed.8 With respect to noncash items, Regulation J provides that a Reserve Bank may require settlement by cash, by a debit to an account on a Reserve Bank's books or “by any of the following that is in a form acceptable to the collecting Reserve Bank: Bank draft, transfer of funds or bank credit, or any other form of payment authorized by State law.” 9 Regulation J also currently provides that a Reserve Bank may require a nonbank payor to settle for items by cash, or by “any of the following that is in a form acceptable to the Reserve Bank: Cashier's check, certified check, or other bank draft or obligation.” 10 In order to facilitate the efficient collection of items, the Reserve Banks' current practice is generally to settle for items by debit to an account on the Reserve Bank's books. The use of cash is rare, typically only done in emergency situations, and could be covered by a provision allowing “other form of settlement to which the Reserve Bank agrees.”

8 12 CFR 210.9(b)(5).

9 12 CFR 210.9(c).

10 12 CFR 210.9(d).

The Board proposed to revise certain settlement provisions of Regulation J to remove references to cash and other specified forms of settlement (e.g., cashier's checks or certified checks) and instead state that the Reserve Banks may settle by a debit to an account on the Reserve Bank's books, or another form of settlement acceptable to the Reserve Banks. The Board requested comment on possible implications that the proposed changes may have on financial institutions with which the Reserve Banks settle for the presentment of items.

The Board received one comment supporting the proposal and no opposing comments. The Board has adopted these amendments as proposed in the final rule.

D. Legal Status of Terms Used in Financial Messaging Standards

Financial messaging standards provide a common format that allows different financial institutions to communicate. The Board has separately requested comment on the Federal Reserve Banks' plan to migrate to the ISO 20022 financial messaging standard for the Fedwire Funds Service.11 ISO 20022 is an international standard that employs terminology that differs in key respects from that used in U.S. funds-transfer law, including Regulation J. The Board proposed an amendment to subpart B of Regulation J that would clarify that terms used in financial messaging standards, such as ISO 20022, do not confer or connote legal status or responsibilities.

11 83 FR 31391 (July 5, 2018).

The Board received four comments supporting these proposed changes and no opposing comments. The Board has adopted these amendments as proposed.

III. Section-by-Section Analysis Subpart A—Collection of Checks and Other Items by Federal Reserve Banks Section 210.2 Definitions 1. Section 210.2(h)—Check

Regulation J defines the term “check” as a draft as defined in the U.C.C. drawn on a bank and payable on demand. The Board proposed to revise the definition of “check” to mean a “check” and an “electronic check” as those terms are defined in Regulation CC. This amendment aligns the terminology in the two regulations.

Regulation J also includes the term “check as defined in 12 CFR 229.2(k)” (the Regulation CC definition of “check”). This term is used in Regulation J in those provisions that require specific references to the Regulation CC definition of “check.” (See §§ 210.2(m), 210.7(b)(2), and 210.12(a)(2).) The Board proposed to delete the definition of “check as defined in 12 CFR 229.2(k)” because it was no longer needed in light of the proposed revision of the Regulation J definition of “check” to cross-reference the Regulation CC definition. The Board also proposed to revise the three provisions where it is used by deleting the reference to “check as defined in 12 CFR 229.2(k).”

Six commenters, including the group letter, were generally supportive of the Board's proposed changes to align Regulation J with Regulation CC. The Board did not receive specific comments on proposed § 210.2(h) or any opposing comments. The Board has adopted these changes as proposed.

2. Section 210.2(i)—Item

Regulation J uses the term “item” to refer to the instruments and electronic images that the Reserve Banks handle. Regulation J uses the term “electronic item” to refer to an electronic image of an item, and information describing that item, that a Reserve Bank agrees to handle as an item pursuant to an operating circular. To align the terminology of Regulation J with Regulation CC, the Board proposed to delete the definition of “electronic item” and revise the definition of “item” in § 210.2(i) to include a check, which, under the proposed amendment discussed above would include both a check and an electronic check as defined in Regulation CC. The Board also proposed to add a clarifying statement that the term “item” does not include an ECI as defined in § 229.2 of Regulation CC.

Six commenters, including the group letter, were generally supportive of alignment between Regulation J and Regulation CC. With respect to ECIs in particular, three commenters supported the Board's proposed amendments, while fourteen commenters generally opposed amendments that restricted the Reserve Banks' handling of ECIs. For reasons described in the overview section, the Board has adopted § 210.2(i) as proposed.

3. Section 210.2(m)—Returned Check

Current § 210.2(m) defines a “returned check” as “a cash item or a check as defined in 12 CFR 229.2(k) returned by a paying bank.” To align the definition of “returned check” with “check,” the Board proposed to delete the reference to “check as defined in 12 CFR 229.2(k)” and instead refer to the definition of “electronic returned check” in Regulation CC. The Board did not receive any comments on proposed § 210.2(m). The Board has adopted these changes as proposed.

4. Section 210.2(n)—Sender

A “sender” under § 210.2(n) is any of several listed entities that sends an item to a Reserve Bank for forward collection. The Board proposed to add “member bank, as defined in section 1 of the Federal Reserve Act” in § 210.2(n)(2) to include a bank or trust company that is a member of one of the Federal Reserve Banks to ensure inclusion of any member bank that does not fall under the existing definition. The Board proposed to redesignate current § 210.2(n)(2)-(6) to § 210.2(n)(3)-(7) to accommodate the insertion.

One commenter requested that the Board clarify whether its proposed changes to § 210.2(n) would expand the types of institutions that may directly participate as a sender in the Fedwire services subject to subpart B of Regulation J, such as nondepository trust companies. The commenter noted that revising the definition of sender to capture member nondepository trust companies would prompt concerns regarding payment system risk with respect to access to Federal Reserve financial services. The Board's proposed changes to the definition of “sender” does not affect the rights of any particular type of entity to obtain access to Federal Reserve services. (In any case, the definition of “sender” in § 210.2(n) applies only to the collection of checks and other items by the Reserve Banks and not to the Fedwire Funds Service.) As stated in the Board's proposal, proposed § 210.2(n) is intended to ensure inclusion of any member bank that does not fall under the existing list of entities that send items to a Reserve Bank for forward collection. Whether any particular member bank, including a nondepository trust company, obtains an account and access to Reserve Bank check services continues to be governed by existing laws, rules, and policies, including the Federal Reserve Act, the Board's Policy on Payment System Risk and the Reserve Banks' internal risk analysis. The Board intends no expansion of rights by this technical change. The Board has adopted the amendments as proposed.

5. Section 210.2(q)—Fedwire

Current § 210.2(q) defines “Fedwire” as having the same meaning set forth in § 210.26(e). The Board proposed to amend this definition to refer to both “Fedwire Funds Service and Fedwire” to conform to the proposed amendment to § 210.26(e). The Board did not receive any comments on proposed § 210.2(q) and has adopted the revisions as proposed.

Section 210.3 General Provisions

Section 210.3(a) provides general provisions concerning the obligations of Reserve Banks and the role of operating circulars. As discussed in the overview section on ECIs, the Board proposed to add a sentence to § 210.3(a) to permit Reserve Banks to require a sender to provide warranties and indemnities that only items and any noncash items the Reserve Banks have agreed to handle will be sent to the Reserve Banks. Additionally, in order to allow the Reserve Banks to pass any such warranties and indemnities forward, the Board proposed to authorize the Reserve Banks to provide to a subsequent collecting bank and to the paying bank any warranties and indemnities provided by the sender pursuant to this paragraph.

The Board received one comment, the group letter, supporting the proposal. The Board did not receive any comments opposing these particular amendments, although as discussed in the overview section, fourteen commenters generally opposed amendments that restricted the Reserve Banks' handling of ECIs. For the reasons described in the overview section, the Board has adopted these revisions as proposed.

Section 210.4 Sending Items to Reserve Banks

Section 210.4(a) sets forth the rule for determining the Reserve Bank to which an item should be sent. The Board proposed to clarify this paragraph to provide that a sender's Administrate Reserve Bank may direct a sender (other than a Reserve Bank) to send any item to a specified Reserve Bank, whether or not the item is payable in the Reserve Bank's district. This amendment reflects current practice in the Reserve Banks' check service and is not expected or intended to have a substantive affect. The Board also proposed to capitalize the term “Administrative Reserve Bank” wherever it appears to conform to the defined term in § 210.2(c).

The Board did not receive any comments on proposed § 210.4 and has adopted the revisions as proposed.

Section 210.5 Sender's Agreement; Recovery by Reserve Bank 1. Section 210.5(a)—Sender's Agreement

Current § 210.5(a) lists the warranties, authorizations, and agreements made by a sender. The first two paragraphs (current § 210.5(a)(1) and (2)) apply to all items and require the sender to authorize the Reserve Banks to handle the item sent and warrant that the sender is entitled to enforce the item, that the item has not been altered, and that the item bears the indorsements applied by all prior parties. The Board did not propose to revise these paragraphs. Current § 210.5(a)(3) and (4) set out warranties for electronic items and electronic items that are not representations of substitute checks, respectively. These warranties are now specified in Regulation CC, and the Board proposed to revise Regulation J accordingly. Specifically, the Board proposed to amend § 210.5(a)(3) to require the sender to make all applicable warranties and indemnities set forth in Regulation CC and the U.C.C. The proposal retained the existing requirement that the sender make all warranties set forth in and subject to the terms of U.C.C. 4-207 for an electronic check as if it were an item subject to the U.C.C. The proposed changes were intended to streamline Regulation J, align § 210.5(a) with the Regulation CC provisions that set out warranties and indemnities for electronic checks, and ensure a seamless chain of warranties for the items handled by the Reserve Banks.

The Board also proposed to require a sender to make any warranties or indemnities regarding the sending of items that the Reserve Banks include in an operating circular issued in accordance with § 210.3(a) to ensure that only items and any noncash items the Reserve Banks have agreed to handle will be sent to the Reserve Banks (proposed § 210.5(a)(4)). Finally, the Board proposed to add a reference to “indemnities” to the introductory text of § 210.5(a) to reflect the coverage of sender indemnities in proposed § 210.5(a)(3) and (4).

One commenter, the group letter, requested that the Board add commentary concerning the cross referencing of Regulation CC's image quality warranty. Under Regulation CC, each bank that transfers an electronic check warrants that “the electronic image accurately represents all of the information on the front and back of the original check as of the time the original check was truncated and the electronic information includes an accurate record of all MICR line information required for a substitute check under § 229.2(aa) and the amount of the check.” 12 The group letter requests that the Board add commentary in Regulation J to clarify that the warranty does not require that the electronic check capture those characteristics of the paper check, such as watermarks, microprinting, or other physical security features, that cannot survive the imaging process.

12 12 CFR 229.34(a)(1)(i).

The Board acknowledges that the warranty in § 229.34(a)(1)(i) does not require that the electronic check capture those characteristics of the paper check that cannot survive the imaging process. The commentary to § 229.34(a)(1)(i) states that the electronic check warranties correspond to the warranties made by a bank that transfers, presents, or returns a substitute check.13 The commentary to the corresponding substitute check warranty states “a substitute check need not capture other characteristics of the check, such as watermarks, microprinting, or other physical security features that cannot survive the imaging process or decorative images, in order to meet the accuracy requirement.” 14 The Board's amendments to Regulation J requiring the sender to make all applicable warranties and indemnities set forth in Regulation CC also cross reference the relevant commentary in Regulation CC. Accordingly, the Board does not believe it is necessary to add additional commentary in Regulation J and adopts the revisions as proposed.

13See Regulation CC, Official Staff Commentary Section 229.34(a)-2.

14See Regulation CC, Official Staff Commentary Section 229.51(a)-3; see also First Am. Bank v. Fed. Reserve Bank of Atlanta, 842 F.3d 487 (7th Cir. 2016).

2. Section 210.5(a)(5)—Sender's Liability to Reserve Bank

Current § 210.5(a)(5) sets out the sender's liability to Reserve Banks. The Board proposed to amend this paragraph to align this paragraph to changes elsewhere in the proposed rule.

Current § 210.5(a)(5)(i)(C) states that the sender agrees to indemnify the Reserve Bank for any loss or expense resulting from “[a]ny warranty or indemnity made by the Reserve Bank under § 210.6(b), part 229 of this chapter, or the U.C.C.” The Board proposed to amend this provision to provide that the sender will also indemnify a Reserve Bank for any loss or expense sustained resulting from any warranties and indemnities regarding the sending of “items” required by the Reserve Bank in an operating circular issued pursuant to proposed § 210.3(a).

Current § 210.5(a)(5)(ii) specifies conditions and limitations to a sender's liability for warranties and indemnities that a Reserve Bank makes for a substitute check, a paper or electronic representation thereof, or any other electronic item. The Board proposed to delete the term “electronic item” in current § 210.5(a)(5)(ii) and replace it with “electronic check.”

Current § 210.5(a)(5)(ii)(A) provides that a sender of an original check is not liable for any amount that the Reserve Bank pays under subpart D of Regulation CC for a subsequently created substitute check or under § 210.6(b)(3) for an electronic item, absent the sender's agreement to the contrary. The Board proposed to delete the reference to current § 210.6(b)(3), which lists warranties and an indemnity for an electronic item that is not a representation of a substitute check, and replace it with a reference to § 229.34 of Regulation CC with respect to an electronic check, consistent with other proposed amendments to § 210.6(b) described below.

Current § 210.5(a)(5)(ii)(B) provides that nothing in Regulation J alters the liability structure that applies to substitute checks and paper or electronic representations of substitute checks under subpart D of Regulation CC. The Board proposed to add that this subpart also does not alter the liability of a sender of an electronic check under § 229.34 of Regulation CC, consistent with the other proposed revisions to Regulation J.

Current § 210.5(a)(5)(ii)(C) provides that a sender of an electronic item that is not a representation of a substitute check is not liable for any related warranties or indemnities that a Reserve Bank pays that are attributable to the Reserve Bank's own lack of good faith or failure to exercise ordinary care. The Board proposed to broaden this provision by applying the limitation on liability to all senders for any amount that the Reserve Bank pays that is attributable to the Reserve Bank's own lack of good faith or failure to exercise ordinary care under Regulation J or Regulation CC. The Board proposed to redesignate this paragraph as § 210.5(a)(5)(iii) and make conforming changes to cross-references.

The Board did not receive any comments on proposed § 210.5(a). As discussed in the overview section, the Board received numerous comments generally supporting aligning Regulation J with Regulation CC. The Board has adopted these revisions as proposed.

3. Section 210.5(c) & (d)—Recovery by Reserve Bank and Methods of Recovery

Section 210.5(c) sets out the procedures by which a Reserve Bank may recover against a sender if certain actions or proceedings related to the sender's actions are brought against (or defense is tendered to) a Reserve Bank. A portion of this paragraph was inadvertently dropped from the Code of Federal Regulations. The Board proposed to reinstate the dropped language, which provides that, upon entry of a final judgment or decree, a Reserve Bank may recover from the sender the amount of attorneys' fees and other expenses of litigation incurred, as well as any amount the Reserve Bank is required to pay because of the judgment or decree or the tender of defense, with interest. In addition, the Board proposed to correct cross-references to this provision in § 210.5(d).

The Board did not receive any comments on proposed § 210.5(c) & (d). The Board has adopted these revisions as proposed.

4. Section 210.5(e)—Security Interest

Current § 210.5(e) provides that when a sender sends an item to a Reserve Bank, the sender and any prior collecting bank grant to the sender's Administrative Reserve Bank a security interest in all of their respective assets in the possession of, or held for the account of, any Reserve Bank to secure their respective obligations due or to become due to the Administrative Reserve Bank under this subpart or subpart C of part 229 (Regulation CC). The Board proposed to amend this paragraph to refer to subpart D of Regulation CC in addition to subpart C, as senders may have obligations to Reserve Banks under that subpart as well.

The Board did not receive any comments on proposed § 210.5(e). The Board has adopted these revisions as proposed.

Section 210.6 Status, Warranties, and Liability of Reserve Bank 1. Section 210.6(a)(2)—Limitations on Reserve Bank Liability

Section 210.6(a)(2) limits a Reserve Bank's liability with respect to an item to three instances: (1) The Reserve Bank's own lack of good faith or failure to exercise ordinary care, (2) as provided in this section of Regulation J, and (3) as provided in subparts C and D of Regulation CC. The Board proposed to expand this list to provide that a Reserve Bank may be liable under any warranties and indemnities provided in an operating circular issued in accordance with § 210.3(a) regarding the sending of items.

The Board received one comment, the group letter, supporting its proposal to allow the Reserve Banks to address warranties and indemnities for eligible items and non-cash items in the operating circular. The Board did not receive any opposing comments. The Board has adopted these revisions as proposed.

2. Section 210.6(b)—Warranties and Liability

Section 210.6(b) sets forth the warranties and indemnities made by a Reserve Bank when it presents or sends an item. In alignment with the Board's proposed amendments to the sender's warranties in § 210.5(a), the Board proposed to replace current § 210.6(b)(2) and (3), which provide warranties and indemnities for electronic items and electronic items that are not representations of substitute checks, respectively. Those warranties are now covered by Regulation CC. The Board also proposed to make a conforming amendment to § 210.6(b)(1)(iii) to eliminate the unnecessary reference to “paper or electronic form.”

The Board proposed a new § 210.6(b)(2) to provide that a Reserve Bank would make any warranties or indemnities regarding the sending of items as set forth in an operating circular issued pursuant to proposed § 210.3(a). This language corresponds to the similar proposed provision for sender liability in § 210.5(a)(4).

The Board proposed a new § 210.6(b)(3) to provide that the Reserve Bank makes to a subsequent collecting bank and to the paying bank all the warranties and indemnities set forth in subparts C and D for Regulation CC. Proposed § 210.6(b)(3) would retain the existing application of U.C.C. 4-207 warranties to electronic items (now called electronic checks).

In § 210.6(b)(4), the Board proposed to retain the existing Reserve Bank indemnity for substitute checks created from electronic checks, which is in current § 210.6(b)(3)(ii). This provision provides an indemnity chain for substitute check indemnity claims under Regulation CC, enabling receiving banks (and, in turn, Reserve Banks) to pass the loss on such claims to the bank whose choice to handle an item electronically necessitated the later creation of a substitute check.

The Board received one comment, the group letter, on proposed § 210.6(b)(3). The group letter noted that the persons that receive the electronic check warranties from the Reserve Banks appeared to be more limited than the persons that receive the electronic check warranties under Regulation CC. Specifically, proposed § 210.6(b)(3) does not extend the electronic check warranties to the drawer of the check on the forward side, unlike the warranties in Regulation CC. The group letter noted, however, that proposed § 210.6(a)(2)(iv) provides that a Reserve Bank does not assume any liability with respect to an item or its proceeds “except as provided under subparts C and D of Regulation CC.” The group letter requested that the Board clearly require that the Reserve Banks provide the same scope and recipients of the new electronic check warranties in Regulation J as provided under Regulation CC.

The Board agrees with the group letter that Reserve Banks should provide the electronic check and electronic returned check warranties to the same scope of recipients in Regulation J as in Regulation CC, including to drawers and owners of checks. The Board believes that extending the warranties to the drawers and owners is consistent with the warranty flow set forth in section 5 of the Check 21 Act for substitute checks and will protect parties outside the banking system from any undesirable consequences resulting from check truncation. The Board has revised proposed § 210.6(b)(3) accordingly in the final rule. Otherwise, the Board has adopted § 210.6(b) as proposed, with minor revisions to correct typographical errors in § 210.6(b)(2) & (3).

3. Section 210.6(c)—Limitation on Liability

The limitations on Reserve Bank liability are set forth in proposed (and current) § 210.6(a)(2). The Board proposed to delete paragraph (c) as it is redundant and to redesignate current paragraph (d) as paragraph (c). The Board did not receive any comments on proposed § 210.6(c). The Board has adopted these revisions as proposed.

Section 210.7 Presenting Items for Payment

Section 210.7(b) provides the places of presentment for a Reserve Bank or subsequent collecting bank. Current § 210.7(b)(2) states “In the case of a check as defined in 12 CFR 229.2(k), in accordance with 12 CFR 229.36.” In alignment with the Board's proposed deletion of the defined term “check as defined in 12 CFR 229.2(k),” the Board proposed to delete the use of that term in § 210.7(b)(2), as it is no longer needed, and make other minor edits.

The Board did not receive any comments on proposed § 210.7. The Board has adopted these revisions as proposed.

Section 210.9 Settlement and Payment 1. Section 210.9(b)(5), (c), and (d)—Manner of Settlement, Noncash Items, and Nonbank Payor

Current § 210.9(b)(5) requires that settlement for cash items with a Reserve Bank be made by debit to an account on the Reserve Bank's books, cash, or other form of settlement to which the Reserve Bank agrees. The Board proposed to amend this provision by removing the reference to cash as a means of settlement. The Board also proposed to make conforming amendments to § 210.9(c) and (d), as well as to remove the references to other rarely-used forms of settlement (cashier's checks, certified checks, or other bank drafts or obligations). The Board proposed to correct cross-references and to capitalize the term “Administrative Reserve Bank” wherever it appears to conform to the defined term in § 210.2(c).

As discussed in the overview section, the Board received one comment, the group letter, supporting the proposal. The Board did not receive any opposing comments. The Board has adopted the revisions as proposed.

2. Section 210.9(e)—Handling of Payment

Current § 210.9(e) states that a Reserve Bank may handle a bank draft or other form of payment it receives in payment of a cash item as a cash item and that a Reserve Bank may handle a bank draft or other form of payment it receives in payment of a noncash item as either a cash item or a noncash item. The Board proposed to delete this paragraph as it is now obsolete.

The Board did not receive any comments on proposed § 210.9(e) and has deleted this paragraph as proposed.

3. Section 210.9(f)—Liability of Reserve Bank

Current § 210.9(f) states that a Reserve Bank that acts in good faith and exercises ordinary care shall not be liable for the nonpayment of, or failure to realize upon, any bank draft or other form of payment that it accepts pursuant to § 210.9(b)-(d). The Board proposed to renumber this paragraph as § 210.9(e) and to replace the reference to “bank draft or other form of payment” with “any non-cash form of payment” to conform to the proposed changes to the other provisions of this section.

The Board did not receive any comments on proposed § 210.9(f). The Board has adopted these revisions as proposed.

Section 210.10 Time Schedule and Availability of Credits for Cash Items and Returned Checks

Section 210.10(a) states that each Reserve Bank shall “include in its operating circulars” its time schedules for availability of cash items and returned checks and, correspondingly, when credits can be counted toward reserve balance requirements for purposes of Regulation D (12 CFR part 204). The Reserve Banks' practice is to publish the time schedules on the Federal Reserve website for financial services. Accordingly, the Board proposed to amend this paragraph to delete the requirement that time schedules be included in the operating circulars and, instead, require only that the time schedules be published.

The Board did not receive any comments on proposed § 210.10. The Board has adopted these revisions as proposed.

Section 210.11 Availability of Proceeds of Noncash Items; Time Schedule 1. Section 210.11(b)—Time Schedule

Section 210.11(b) states that a Reserve Bank may give credit for the proceeds of a noncash item subject to payment in actually and finally collected funds in accordance with a time schedule included in its operating circulars. To conform to amendments made in proposed § 210.10, the Board proposed to delete the reference to operating circulars and require only that the time schedule be published.

The Board did not receive any comments on proposed § 210.11(b). The Board has adopted these revisions as proposed.

2. Section 210.11(c)—Handling of Payment

Current § 210.11(c) prohibits a Reserve Bank from providing credit for a bank draft or other form of payment for a noncash item until it receives payment in actually and finally collected funds. The Board proposed to delete this paragraph, as actually and finally collected funds are already required by § 210.11(a).

The Board did not receive any comments on proposed § 210.11(c) and has adopted these revisions as proposed.

Section 210.12 Return of Cash Items and Handling of Returned Checks

Section 210.12 sets out provisions governing the handling of returned checks. It is the counterpart to §§ 210.5 and 210.6, which govern the handling of items for forward collection.

1. Section 210.12(a)—Return of Items

Current § 210.12(a)(2) sets out the procedures by which a paying bank may return checks not handled by Reserve Banks and refers to “check as defined in § 229.2(k) of this chapter (Regulation CC).” In alignment with the Board's proposal to delete the defined term “check as defined in § 229.2(k)” in § 210.2(h), the Board proposed to delete the use of this term in this paragraph, as it is no longer needed, and to use the term “check” instead.

The Board did not receive any comments on proposed § 210.12(a) and has adopted these revisions as proposed.

2. Section 210.12(c)—Paying Bank's and Returning Bank's Agreement

Current § 210.12(c) provides the warranties, authorizations, and agreements related to returned checks made by paying banks and returning banks. The Board proposed amendments to this paragraph that are parallel to the proposed amendments for forward-collection items with respect to the liability of the sender (§ 210.5(a)(3)) and the Reserve Banks (§ 210.6(b)(2)). Specifically, the Board proposed to replace current § 210.12(c)(3) and (4), which provide warranties for all returned checks that are electronic items and warranties for returned checks that are electronic items that are not representations of substitute checks, respectively, with a provision that requires the paying bank or returning bank to make all the warranties and indemnities as set forth in Regulation CC, as applicable (proposed § 210.12(c)(3)).

Current § 210.12(c)(5) sets out the conditions under which a paying bank or returning bank is liable to a Reserve Bank. The Board proposed to redesignate this paragraph as § 210.12(c)(4) and amend the paragraph to correspond with the proposed amendments to the section on sender's liability to a Reserve Bank (§ 210.5(a)(4)). The proposed amendments were intended to create consistent liability provisions for senders, paying banks, and returning banks.

The Board did not receive any comments on proposed § 210.12(c) and has adopted these revisions as proposed, with a minor revision to correct a typographical error in § 210.12(c)(1).

3. Section 210.12(d)—Liability Under Other Law

Current § 210.12(d) is titled “Preservation of other warranties and indemnities.” The Board proposed to change the title of this paragraph to “Returning bank's or paying bank's liability under other law” to mirror the heading for the corresponding paragraph for senders (§ 210.5(b)).

The Board did not receive any comments on proposed § 210.12(d). The Board has adopted these revisions as proposed.

4. Section 210.12(e)—Warranties by and Liability of Reserve Bank

Current § 210.12(e) sets forth a Reserve Bank's liability when it handles a returned check, including warranties and liabilities. The Board proposed to amend this paragraph to correspond to the amendments proposed in § 210.6(b) related to the warranties and liabilities that are made by Reserve Banks when presenting or sending an item.

The Board receive one comment, the group letter, on proposed § 210.12(e). Corresponding to the comment discussed in the section-by-section analysis for § 210.6(b)(3), the group letter stated that the proposed Regulation J does not extend the electronic check warranties for returns to the owner of the check, unlike the warranties in Regulation CC. The group letter requested that the Board require the Reserve Banks provide in Regulation J the same scope and recipients of the new electronic check warranties as provided under Regulation CC.

For the reasons described in the section-by-section analysis for § 210.6(b), the Board has revised proposed § 210.12(e)(ii) to extend the warranties for electronic returned checks provided by Reserve Banks to the same scope of recipients as provided in Regulation CC. The Board has also revised proposed § 210.12(e)(2)(i) to correct a typographical error.

5. Section 210.12(f) & (g)—Recovery by Reserve Bank & Methods of Recovery

Section 210.12(f) parallels § 210.5(c) and sets out the procedures by which a Reserve Bank may recover against a paying bank or returning bank if certain actions or proceedings related to the paying bank's or returning bank's actions are brought against (or defense is tendered to) a Reserve Bank. A portion of this paragraph was inadvertently dropped from the Code of Federal Regulations. The Board proposed to reinstate the dropped language, which provides that, upon entry of a final judgment or decree, a Reserve Bank may recover from the paying bank or returning bank the amount of attorneys' fees and other expenses of litigation incurred, as well as any amount the Reserve Bank is required to pay because of the judgment or decree or the tender of defense, with interest. In addition, the Board proposed to correct cross-references and make organizational changes in § 210.12(g).

The Board did not receive any comments on proposed § 210.12(f) & (g) and has adopted these revisions as proposed.

Subpart B—Funds Transfers Through Fedwire Section 210.25 Authority, Purpose, and Scope

Section 210.25 sets out the authority, purpose, and scope for subpart B of Regulation J, which governs Fedwire funds transfers. The Board proposed to add a new § 210.25(e) to clarify that financial messaging standards (e.g., ISO 20022), including the financial messaging components, elements, technical documentation, tags, and terminology used to implement those standards, do not confer or connote legal status or responsibilities. The proposed amendment would specify that Regulation J, Article 4A of the U.C.C., and the operating circulars of the Reserve Banks govern the rights and obligations of parties to the Fedwire Funds Service and supersede any inconsistency between a financial messaging standard adopted by the Fedwire Funds Service. The proposal would also make a conforming change to § 210.25(b)(2). Additionally, the Board proposed to add in the commentary examples of inconsistent terminology between the ISO 20022 financial messaging standard and U.S. funds transfer law.

The Board received four comments supporting these proposed changes and no opposing comments. The Board has adopted these amendments as proposed.

Section 210.26 Definitions

Section 210.2(e) defines the term “Fedwire” to mean the funds-transfer system owned and operated by the Federal Reserve Banks that is used primarily for the transmission and settlement of payment orders governed by subpart B. The Board proposed to amend this definition so that it applies to the official title of the service, “Fedwire Funds Service,” as well as the shorthand term “Fedwire.” The Board also proposed to change references to “Fedwire” to “Fedwire Funds Service” in §§ 210.9(b)(4)(i), 210.25(a) and (b)(3), and 210.29(b).

The Board did not receive any comments on proposed § 210.26 and has adopted these revisions as proposed.

Section 210.32 Federal Reserve Bank Liability; Payment of Interest

Current § 210.32 sets out provisions that govern Federal Reserve Bank liability and payment of interest. Section 210.32(b) provides that compensation that is paid by Federal Reserve Banks in the form of interest shall be calculated in accordance with section 4A-506 of Article 4A. Under section 4A-506(a), the amount of interest may be determined by agreement between the sender and receiving bank or by funds-transfer system rule. If there is no such agreement, under section 4A-506(b), the amount of interest is based on the federal funds rate. The current commentary to § 210.32(b) states that “Interest would be calculated in accordance with the procedures specified in section 4A-506(b).” The Board proposed to delete this statement and rearrange the commentary to clarify that interest can be calculated in accordance with both section 4A-506(a) and (b).

The Board did not receive any comments on the proposed commentary to § 210.32. The Board has adopted these revisions as proposed.

IV. Competitive Impact Analysis

The Board conducts a competitive impact analysis when it considers an operational or legal change, if that change would have a direct and material adverse effect on the ability of other service providers to compete with the Federal Reserve in providing similar services due to legal differences or due to the Federal Reserve's dominant market position deriving from such legal differences. All operational or legal changes having a substantial effect on payments-system participants will be subject to a competitive-impact analysis, even if competitive effects are not apparent on the face of the proposal. If such legal differences exist, the Board will assess whether the same objectives could be achieved by a modified proposal with lesser competitive impact or, if not, whether the benefits of the proposal (such as contributing to payments-system efficiency or integrity or other Board objectives) outweigh the materially adverse effect on competition.15

15 Federal Reserve Regulatory Service, 7-145.2.

The Board does not believe that the amendments to Regulation J will have a direct and material adverse effect on the ability of other service providers to compete effectively with the Reserve Banks in providing similar services due to legal differences. The final rule would align the provisions in Regulation J governing Reserve Bank services to the generally applicable provisions in Regulation CC. The final rule would not affect the competitive position of private-sector presenting banks vis-à-vis the Reserve Banks.

V. The Riegle Community Development and Regulatory Improvement Act of 1994

The Riegle Community Development Regulatory Improvement Act of 1994 requires that agency regulations that impose additional reporting, disclosure, and other requirements on insured depository institutions take effect on the first calendar quarter following publication in final form, unless the agency determines for good cause that the regulation should become effective before such time. 12 U.S.C. 4802(b). Consistent with the Riegle Community Development Act, this final rule is effective on January 1, 2019.

VI. Paperwork Reduction Act

In accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3506; 5 CFR part 1320, appendix A.1), the Board may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a valid Office of Management and Budget (OMB) control number. The Board reviewed the final rule under the authority delegated to the Board by the OMB and determined that it contains no collections of information under the PRA.16 Accordingly, there is no paperwork burden associated with the rule.

16See 44 U.S.C. 3502(3).

VII. Regulatory Flexibility Act

An initial regulatory flexibility analysis (IRFA) was included in the proposal in accordance with section 3(a) of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq. (RFA). In the IRFA, the Board requested comment on the effect of the proposed rule on small entities and on any significant alternatives that would reduce the regulatory burden on small entities. The Board did not receive any comments. The RFA requires an agency to prepare a final regulatory flexibility analysis (FRFA) unless the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. In accordance with section 3(a) of the RFA, the Board has reviewed the final regulation. Based on its analysis, and for the reasons stated below, the Board certifies that the rule will not have a significant economic impact on a substantial number of small entities.

The final rule will apply to all depository institutions regardless of their size.17 Pursuant to regulations issued by the Small Business Administration (13 CFR 121.201), a “small banking organization” includes a depository institution with $550 million or less in total assets. Based on call report data, there are approximately 9,631 depository institutions that have total domestic assets of $550 million or less and thus are considered small entities for purposes of the RFA. The Board's final rule generally does not have any projected reporting, recordkeeping or other compliance requirements, as the revisions to Regulation J align the rights and obligations of sending banks, paying banks, and Federal Reserve Banks (Reserve Banks) with the Board's recent amendments to Regulation CC. The final rule's warranties and indemnities are similar to the warranties and indemnities that apply to paper and electronic checks under existing Regulation J and other law. The final rule does not require any bank to change the form in which it submits checks, nor do they require any bank to submit reports, maintain records, or provide notices or disclosures.

17 The final rule would not impose costs on any small entities other than depository institutions.

With respect to ECIs, provisions in the final rule would allow the Reserve Banks to require that senders provide certain warranties and indemnities. The Board recognizes these provisions may affect the creation and acceptance of ECIs by small entities. Neither Regulation J nor Regulation CC would prevent private-sector collecting banks from doing the same. In addition, the Board's final rule would not prevent small entities that desire to exchange ECIs from doing so by agreement using direct exchange relationships or other methods not involving the Reserve Banks. The Board believes the final rule will help to shift liability to parties better positioned to know whether an item is electronically created and that can either prevent the item from entering the check-collection system or assume the risk of sending it forward.

Furthermore, the Board does not expect the amendments that remove references to cash and other specified forms of settlement to burden small entities, as the use of cash as settlement is rare and typically only done in emergency situations. The Board's final rule will allow use of cash as settlement in emergency situations by continuing to permit other forms of settlement to which the Reserve Banks agree. The Board does not expect the rule to have a significant economic impact on a substantial number of small entities.

List of Subjects in 12 CFR Part 210

Banks, Banking, Federal Reserve System.

Authority and Issuance

For the reasons set forth in the preamble, the Board amends 12 CFR part 210 as follows:

PART 210—COLLECTION OF CHECKS AND OTHER ITEMS BY FEDERAL RESERVE BANKS AND FUNDS TRANSFERS THROUGH FEDWIRE (REGULATION J) 1. The authority citation for part 210 continues to read as follows: Authority:

12 U.S.C. 248 (i), (j), and (o); 12 U.S.C. 342; 12 U.S.C. 360; 12 U.S.C. 464; 12 U.S.C. 4001-4010; 12 U.S.C. 5001-5018.

2. In part 210, revise all references to “article 4A” to read “Article 4A.” Subpart A—Collection of Checks and Other Items by Federal Reserve Banks 3. In § 210.2, revise paragraphs (h), (i), (m), (n), (q), and (s)(1) to read as follows:
§ 210.2 Definitions.

(h) Check means a check or an electronic check, as those terms are defined in § 229.2 of this chapter (Regulation CC).

(i) Item. (1) Means—

(i) An instrument or a promise or order to pay money, whether negotiable or not, that is—

(A) Payable in a Federal Reserve District 1 (District);

1 For purposes of this subpart, the Virgin Islands and Puerto Rico are deemed to be in the Second District, and Guam, American Samoa, and the Northern Mariana Islands in the Twelfth District.

(B) Sent by a sender to a Reserve Bank for handling under this subpart; and

(C) Collectible in funds acceptable to the Reserve Bank of the District in which the instrument is payable; or

(ii) A check.

(2) Unless otherwise indicated, item includes both a cash and a noncash item, and includes a returned check sent by a paying or returning bank. Item does not include a check that cannot be collected at par, or a payment order as defined in § 210.26(i) and handled under subpart B of this part. The term also does not include an electronically-created item as defined in § 229.2 of this chapter (Regulation CC).

(m) Returned check means a cash item returned by a paying bank, including an electronic returned check as defined in § 229.2 of this chapter (Regulation CC) and a notice of nonpayment in lieu of a returned check, whether or not a Reserve Bank handled the check for collection.

(n) Sender means any of the following entities that sends an item to a Reserve Bank for forward collection—

(1) A depository institution, as defined in section 19(b) of the Federal Reserve Act (12 U.S.C. 461(b));

(2) A member bank, as defined in section 1 of the Federal Reserve Act (12 U.S.C. 221);

(3) A clearing institution, defined as—

(i) An institution that is not a depository institution but that maintains with a Reserve Bank the balance referred to in the first paragraph of section 13 of the Federal Reserve Act (12 U.S.C. 342); or

(ii) A corporation that maintains an account with a Reserve Bank in conformity with § 211.4 of this chapter (Regulation K);

(4) Another Reserve Bank;

(5) An international organization for which a Reserve Bank is empowered to act as depositary or fiscal agent and maintains an account;

(6) A foreign correspondent, defined as any of the following entities for which a Reserve Bank maintains an account: A foreign bank or banker, a foreign state as defined in section 25(b) of the Federal Reserve Act (12 U.S.C. 632), or a foreign correspondent or agency referred to in section 14(e) of that act (12 U.S.C. 358); or

(7) A branch or agency of a foreign bank maintaining reserves under section 7 of the International Banking Act of 1978 (12 U.S.C. 347d, 3105).

(q) Fedwire Funds Service and Fedwire have the same meaning as that set forth in § 210.26(e).

(s) * * *

(1) The terms not defined herein have the meanings set forth in § 229.2 of this chapter applicable to subpart C or D of part 229 of this chapter (Regulation CC), as appropriate; and

4. In § 210.3, revise paragraph (a) to read as follows:
§ 210.3 General provisions.

(a) General. Each Reserve Bank shall receive and handle items in accordance with this subpart, and shall issue operating circulars governing the details of its handling of items and other matters deemed appropriate by the Reserve Bank. The circulars may, among other things, classify cash items and noncash items, require separate sorts and letters, provide different closing times for the receipt of different classes or types of items, provide for instructions by an Administrative Reserve Bank to other Reserve Banks, set forth terms of services, and establish procedures for adjustments on a Reserve Bank's books, including amounts, waiver of expenses, and payment of compensation. As deemed appropriate by the Reserve Bank, the circulars may also require the sender to provide warranties and indemnities that only items and any noncash items the Reserve Banks have agreed to handle will be sent to the Reserve Banks. The Reserve Banks may provide to a subsequent collecting bank and to the paying bank any warranties and indemnities provided by the sender pursuant to this paragraph (a).

5. In § 210.4, revise paragraphs (a), (b)(1)(ii) and (iii), and (b)(3) to read as follows:
§ 210.4 Sending items to Reserve Banks.

(a) Sending of items. A sender's Administrative Reserve Bank may direct a sender other than a Reserve Bank to send any item to a specified Reserve Bank, whether or not the item is payable in the Reserve Bank's district.

(b) * * *

(1) * * *

(ii) The initial sender's Administrative Reserve Bank (which is deemed to have accepted deposit of the item from the initial sender);

(iii) The Reserve Bank that receives the item from the initial sender (if different from the initial sender's Administrative Reserve Bank); and

(3) The identity and order of the parties under paragraph (b)(1) of this section determine the relationships and the rights and liabilities of the parties under this subpart, part 229 of this chapter (Regulation CC), section 13(1) and section 16(13) of the Federal Reserve Act, and the Uniform Commercial Code. An initial sender's Administrative Reserve Bank that is deemed to accept an item for deposit or handle an item is also deemed to be a sender with respect to that item. The Reserve Banks that are deemed to handle an item are deemed to be agents or subagents of the owner of the item, as provided in § 210.6(a).

6. In § 210.5, revise paragraphs (a), (c), (d), and (e) to read as follows:
§ 210.5 Sender's agreement; recovery by Reserve Bank.

(a) Sender's agreement. The warranties, indemnities, authorizations, and agreements made pursuant to this paragraph (a) may not be disclaimed and are made whether or not the item bears an indorsement of the sender. By sending an item to a Reserve Bank, the sender does all of the following.

(1) Authorization to handle item. The sender authorizes the sender's Administrative Reserve Bank and any other Reserve Bank or collecting bank to which the item is sent to handle the item (and authorizes any Reserve Bank that handles settlement for the item to make accounting entries), subject to this subpart and to the Reserve Banks' operating circulars, and warrants its authority to give this authorization.

(2) Warranties for all items. The sender warrants to each Reserve Bank handling the item that—

(i) The sender is a person entitled to enforce the item or authorized to obtain payment of the item on behalf of a person entitled to enforce the item;

(ii) The item has not been altered; and

(iii) The item bears all indorsements applied by parties that previously handled the item for forward collection or return.

(3) Warranties and indemnities as set forth in Regulation CC and U.C.C. As applicable and unless otherwise provided, the sender of an item makes to each Reserve Bank that handles the item all the warranties and indemnities set forth in and subject to the terms of subparts C and D of part 229 of this chapter (Regulation CC) and Article 4 of the U.C.C. The sender makes all the warranties set forth in and subject to the terms of 4-207 of the U.C.C. for an electronic check as if it were an item subject to the U.C.C.

(4) Warranties and indemnities as set forth in Reserve Bank operating circulars. The sender makes any warranties and indemnities regarding the sending of items as set forth in an operating circular issued in accordance with § 210.3(a).

(5) Sender's liability to Reserve Bank. (i) Except as provided in paragraphs (a)(5)(ii) and (iii) of this section, the sender agrees to indemnify each Reserve Bank for any loss or expense sustained (including attorneys' fees and expenses of litigation) resulting from—

(A) The sender's lack of authority to make the warranty in paragraph (a)(1) of this section;

(B) Any action taken by the Reserve Bank within the scope of its authority in handling the item; or

(C) Any warranty or indemnity made by the Reserve Bank under § 210.6(b), part 229 of this chapter, the U.C.C., or, regarding the sending of items, an operating circular issued in accordance with § 210.3(a).

(ii) A sender's liability for warranties and indemnities that the Reserve Bank makes for a substitute check, a paper or electronic representation thereof, or for an electronic check is subject to the following conditions and limitations—

(A) A sender of an original check shall not be liable under paragraph (a)(5)(i) of this section for any amount that the Reserve Bank pays under subpart D of part 229 of this chapter, or under § 229.34 of this chapter with respect to an electronic check, absent the sender's agreement to the contrary; and

(B) Nothing in this subpart alters the liability of a sender of a substitute check or paper or electronic representation of a substitute check under subpart D of part 229 of this chapter, or a sender of an electronic check under § 229.34 of this chapter.

(iii) A sender shall not be liable for any amount that the Reserve Bank pays under this subpart or part 229 of this chapter that is attributable to the Reserve Bank's own lack of good faith or failure to exercise ordinary care.

(c) Recovery by Reserve Bank. (1) A Reserve Bank that has handled an item may recover as provided in paragraph (c)(2) of this section if an action or proceeding is brought against (or if defense is tendered to) the Reserve Bank based on—

(i) The alleged failure of the sender to have the authority to make the warranty and agreement in paragraph (a)(1) of this section;

(ii) Any action by the Reserve Bank within the scope of its authority in handling the item; or

(iii) Any warranty or indemnity made by the Reserve Bank under § 210.6(b), part 229 of this chapter, or the U.C.C.

(2) Upon entry of a final judgment or decree in an action or proceeding described in paragraph (c)(1) of this section, a Reserve Bank may recover from the sender the amount of attorneys' fees and other expenses of litigation incurred, as well as any amount the Reserve Bank is required to pay because of the judgment or decree or the tender of defense, together with interest thereon.

(d) Methods of recovery. (1) The Reserve Bank may recover the amount stated in paragraph (c) of this section by charging any account on its books that is maintained or used by the sender (or by charging a Reserve Bank sender), if—

(i) The Reserve Bank made seasonable written demand on the sender to assume defense of the action or proceeding; and

(ii) The sender has not made any other arrangement for payment that is acceptable to the Reserve Bank.

(2) The Reserve Bank is not responsible for defending the action or proceeding before using this method of recovery. A Reserve Bank that has been charged under this paragraph (d) may recover from its sender in the manner and under the circumstances set forth in this paragraph (d).

(3) A Reserve Bank's failure to avail itself of the remedy provided in this paragraph (d) does not prejudice its enforcement in any other manner of the indemnity agreement referred to in paragraph (a)(5) of this section.

(e) Security interest. When a sender sends an item to a Reserve Bank, the sender and any prior collecting bank grant to the sender's Administrative Reserve Bank a security interest in all of their respective assets in the possession of, or held for the account of, any Reserve Bank to secure their respective obligations due or to become due to the Administrative Reserve Bank under this subpart or subpart C or D of part 229 of this chapter (Regulation CC). The security interest attaches when a warranty is breached or any other obligation to the Reserve Bank is incurred. If the Reserve Bank, in its sole discretion, deems itself insecure and gives notice thereof to the sender or prior collecting bank, or if the sender or prior collecting bank suspends payments or is closed, the Reserve Bank may take any action authorized by law to recover the amount of an obligation, including, but not limited to, the exercise of rights of set off, the realization on any available collateral, and any other rights it may have as a creditor under applicable law.

7. In § 210.6: a. Remove the word “and” at the end of paragraph (a)(2)(ii). b. Revise paragraph (a)(2)(iii). c. Add paragraph (a)(2)(iv). d. Revise paragraphs (b) and (c). e. Remove paragraph (d).

The revisions and addition read as follows:

§ 210.6 Status, warranties, and liability of Reserve Bank.

(a) * * *

(2) * * *

(iii) As provided in an operating circular issued in accordance with § 210.3(a) regarding the sending of items; and

(iv) As provided in subparts C and D of part 229 of this chapter (Regulation CC).

(b) Warranties and liability. The following provisions apply when a Reserve Bank presents or sends an item.

(1) Warranties for all items. The Reserve Bank warrants to a subsequent collecting bank and to the paying bank and any other payor that—

(i) The Reserve Bank is a person entitled to enforce the item (or is authorized to obtain payment of the item on behalf of a person that is either entitled to enforce the item or authorized to obtain payment on behalf of a person entitled to enforce the item);

(ii) The item has not been altered; and

(iii) The item bears all indorsements applied by parties that previously handled the item for forward collection or return.

(2) Warranties and indemnities as set forth in Reserve Bank operating circulars. The Reserve Bank makes any warranties and indemnities regarding the sending of items as set forth in an operating circular issued in accordance with § 210.3(a).

(3) Warranties and indemnities as set forth in Regulation CC and U.C.C. As applicable and unless otherwise provided, the Reserve Bank makes all the warranties and indemnities set forth in and subject to the terms of subparts C and D of part 229 of this chapter (Regulation CC) and Article 4 of the U.C.C. The Reserve Bank makes all the warranties set forth in and subject to the terms of 4-207 of the U.C.C. for an electronic check as if it were an item subject to the U.C.C.

(4) Indemnity for substitute check created from an electronic check. (i) Except as provided in paragraph (b)(4)(ii) of this section, the Reserve Bank shall indemnify the bank to which it transfers or presents an electronic check (the recipient bank) for the amount of any losses that the recipient bank incurs under subpart D of part 229 of this chapter (Regulation CC) for an indemnity that the recipient bank was required to make under subpart D of part 229 of this chapter in connection with a substitute check later created from the electronic check.

(ii) The Reserve Bank shall not be liable under paragraph (b)(4)(i) of this section for any amount that the recipient bank pays under subpart D of part 229 of this chapter that is attributable to the lack of good faith or failure to exercise ordinary care of the recipient bank or a person that handled the item, in any form, after the recipient bank.

(c) Time for commencing action against Reserve Bank. (1) A claim against a Reserve Bank for lack of good faith or failure to exercise ordinary care shall be barred unless the action on the claim is commenced within two years after the claim accrues. Such a claim accrues on the date when a Reserve Bank's alleged failure to exercise ordinary care or to act in good faith first results in damages to the claimant.

(2) A claim that arises under paragraph (b)(3) of this section shall be barred unless the action on the claim is commenced within one year after the claim accrues. Such a claim accrues as of the date on which the claimant first learns, or by which the claimant reasonably should have learned, of the facts and circumstances giving rise to the claim.

(3) This paragraph (c) does not alter the time limit for claims under § 229.38(g) of this chapter (which include claims for breach of warranty under § 229.34 of this chapter) or subpart D of part 229 of this chapter.

8. In § 210.7, revise paragraphs (a)(1) and (b)(2) to read as follows:
§ 210.7 Presenting items for payment.

(a) * * *

(1) A Reserve Bank or a subsequent collecting bank may present an item for payment or send the item for presentment and payment; and

(b) * * *

(2) In accordance with § 229.36 of this chapter (Regulation CC);

9. In § 210.9, revise paragraphs (b)(2)(i), (b)(3)(i)(A) and (B), (b)(4) through (6), and (c) through (e) and remove paragraph (f) to read as follows:
§ 210.9 Settlement and payment.

(b) * * *

(2) * * *

(i) On the day a paying bank receives a cash item from a Reserve Bank, it shall settle for the item so that the proceeds of the settlement are available to its Administrative Reserve Bank, or return the item, by the latest of—

(A) The next clock hour or clock half-hour that is at least one half-hour after the paying bank receives the item;

(B) 8:30 a.m. eastern time; or

(C) Such later time as provided in the Reserve Banks' operating circulars.

(3) * * *

(i) * * *

(A) On that day, settle for the item so that the proceeds of the settlement are available to its Administrative Reserve Bank, or return the item, by the latest of the next clock hour or clock half-hour that is at least one half-hour after it ordinarily would have received the item, 8:30 a.m. eastern time, or such later time as provided in the Reserve Banks' operating circulars; or

(B) On the next day that is a banking day for both the paying bank and the Reserve Bank, settle for the item so that the proceeds of the settlement are available to its Administrative Reserve Bank by 8:30 a.m. eastern time on that day or such later time as provided in the Reserve Banks' operating circulars; and compensate the Reserve Bank for the value of the float associated with the item in accordance with procedures provided in the Reserve Bank's operating circular.

(4) Reserve Bank closed. If a paying bank receives a cash item from a Reserve Bank on a banking day that is not a banking day for the Reserve Bank, the paying bank shall—

(i) Settle for the item so that the proceeds of the settlement are available to its Administrative Reserve Bank by the close of the Fedwire Funds Service on the Reserve Bank's next banking day, or return the item by midnight of the day it receives the item (if the paying bank fails to settle for or return a cash item in accordance with this paragraph (b)(4)(i), it shall become accountable for the amount of the item as of the close of its banking day on the day it receives the item); and

(ii) Settle for the item so that the proceeds of the settlement are available to its Administrative Reserve Bank by 8:30 a.m. eastern time on the Reserve Bank's next banking day or such later time as provided in the Reserve Bank's operating circular, or return the item by midnight of the day it receives the item. If the paying bank fails to settle for or return a cash item in accordance with this paragraph (b)(4)(ii), it shall be subject to any applicable overdraft charges. Settlement under this paragraph (b)(4)(ii) satisfies the settlement requirements of paragraph (b)(4)(i) of this section.

(5) Manner of settlement. Settlement with a Reserve Bank under paragraphs (b)(1) through (4) of this section shall be made by debit to an account on the Reserve Bank's books or other form of settlement to which the Reserve Bank agrees, except that the Reserve Bank may, in its discretion, obtain settlement by charging the paying bank's account. A paying bank may not set off against the amount of a settlement under this section the amount of a claim with respect to another cash item, cash letter, or other claim under § 229.34 of this chapter (Regulation CC) or other law.

(6) Notice in lieu of return. If a cash item is unavailable for return, the paying bank may send a notice in lieu of return as provided in § 229.31(f) of this chapter (Regulation CC).

(c) Noncash items. A Reserve Bank may require the paying or collecting bank to which it has presented or sent a noncash item to pay for the item by a debit to an account maintained or used by the paying or collecting bank on the Reserve Bank's books or by any other form of settlement acceptable to the Reserve Bank.

(d) Nonbank payor. A Reserve Bank may require a nonbank payor to which it has presented an item to pay for it by debit to an account on the Reserve Bank's books or other form of settlement acceptable to the Reserve Bank.

(e) Liability of Reserve Bank. Except as set forth in § 229.35(b) of this chapter (Regulation CC), a Reserve Bank shall not be liable for the failure of a collecting bank, paying bank, or nonbank payor to pay for an item, or for any loss resulting from the Reserve Bank's acceptance of any form of payment other than cash authorized in paragraphs (b), (c), and (d) of this section. A Reserve Bank that acts in good faith and exercises ordinary care shall not be liable for the nonpayment of, or failure to realize upon, any non-cash form of payment that it accepts under paragraphs (b), (c), and (d) of this section.

10. In § 210.10, revise paragraph (a) to read as follows:
§ 210.10 Time schedule and availability of credits for cash items and returned checks.

(a) Each Reserve Bank shall publish a time schedule indicating when the amount of any cash item or returned check received by it is counted toward the balance maintained to satisfy a reserve balance requirement for purposes of part 204 of this chapter (Regulation D) and becomes available for use by the sender or paying or returning bank. The Reserve Bank that holds the settlement account shall give either immediate or deferred credit to a sender, a paying bank, or a returning bank (other than a foreign correspondent) in accordance with the time schedule of the receiving Reserve Bank. A Reserve Bank ordinarily gives credit to a foreign correspondent only when the Reserve Bank receives payment of the item in actually and finally collected funds, but, in its discretion, a Reserve Bank may give immediate or deferred credit in accordance with its time schedule.

11. In § 210.11, revise paragraph (b) and remove paragraph (c) to read as follows:
§ 210.11 Availability of proceeds of noncash items; time schedule.

(b) Time schedule. A Reserve Bank may give credit for the proceeds of a noncash item subject to payment in actually and finally collected funds in accordance with a published time schedule. The time schedule shall indicate when the proceeds of the noncash item will be counted toward the balance maintained to satisfy a reserve balance requirement for purposes of part 204 of this chapter (Regulation D) and become available for use by the sender. A Reserve Bank may, however, refuse at any time to permit the use of credit given by it for a noncash item for which the Reserve Bank has not yet received payment in actually and finally collected funds.

12. In § 210.12, revise paragraphs (a) and (c) through (g) to read as follows:
§ 210.12 Return of cash items and handling of returned checks.

(a) Return of items—(1) Return of cash items handled by Reserve Banks. A paying bank that receives a cash item from a Reserve Bank, other than for immediate payment over the counter, and that settles for the item as provided in § 210.9(b), may, before it has finally paid the item, return the item to any Reserve Bank (unless its Administrative Reserve Bank directs it to return the item to a specific Reserve Bank) in accordance with subpart C of part 229 of this chapter (Regulation CC), the Uniform Commercial Code, and the Reserve Banks' operating circulars. A paying bank that receives a cash item from a Reserve Bank also may return the item prior to settlement, in accordance with § 210.9(b) and the Reserve Banks' operating circulars. The rules or practices of a clearinghouse through which the item was presented, or a special collection agreement under which the item was presented, may not extend these return times, but may provide for a shorter return time.

(2) Return of checks not handled by Reserve Banks. A paying bank that receives a check, other than from a Reserve Bank, and that determines not to pay the check, may send the returned check to any Reserve Bank (unless its Administrative Reserve Bank directs it to send the returned check to a specific Reserve Bank) in accordance with subpart C of part 229 of this chapter (Regulation CC), the Uniform Commercial Code, and the Reserve Banks' operating circulars. A returning bank may send a returned check to any Reserve Bank (unless its Administrative Reserve Bank directs it to send the returned check to a specific Reserve Bank) in accordance with subpart C of part 229 of this chapter (Regulation CC), the Uniform Commercial Code, and the Reserve Banks' operating circulars.

(c) Paying bank's and returning bank's agreement. The warranties, indemnities, authorizations, and agreements made pursuant to this paragraph (c) may not be disclaimed and are made whether or not the returned check bears an indorsement of the paying bank or returning bank. By sending a returned check to a Reserve Bank, the paying bank or returning bank does all of the following.

(1) Authorization to handle returned check. The paying bank or returning bank authorizes the paying bank's or returning bank's Administrative Reserve Bank, and any other Reserve Bank or returning bank to which the returned check is sent, to handle the returned check (and authorizes any Reserve Bank that handles settlement for the returned check to make accounting entries) subject to this subpart and to the Reserve Banks' operating circulars.

(2) Warranties for all returned checks. The paying bank or returning bank warrants to each Reserve Bank handling a returned check that the returned check bears all indorsements applied by parties that previously handled the returned check for forward collection or return.

(3) Warranties and indemnities as set forth in Regulation CC. As applicable and unless otherwise provided, a paying bank or returning bank makes to each Reserve Bank that handles the returned check all the warranties and indemnities set forth in and subject to the terms of subparts C and D of part 229 of this chapter (Regulation CC).

(4) Paying bank or returning bank's liability to Reserve Bank. (i) Except as provided in paragraph (c)(4)(ii) and (iii) of this section, a paying bank or returning bank agrees to indemnify each Reserve Bank for any loss or expense (including attorneys' fees and expenses of litigation) resulting from—

(A) The paying or returning bank's lack of authority to give the authorization in paragraph (c)(1) of this section;

(B) Any action taken by a Reserve Bank within the scope of its authority in handling the returned check; or

(C) Any warranty or indemnity made by the Reserve Bank under paragraph (e) of this section or part 229 of this chapter.

(ii) A paying bank's or returning bank's liability for warranties and indemnities that a Reserve Bank makes for a returned check that is a substitute check, a paper or electronic representation thereof, or an electronic returned check is subject to the following conditions and limitations—

(A) A paying bank or returning bank that sent an original returned check shall not be liable for any amount that a Reserve Bank pays under subpart D of part 229 of this chapter, or under § 229.34 of this chapter with respect to an electronic returned check, absent the paying bank's or returning bank's agreement to the contrary; and

(B) Nothing in this subpart alters the liability under subpart D of part 229 of this chapter of a paying bank or returning bank that sent a substitute check or a paper or electronic representation of a substitute check or under § 229.34 of this chapter of a paying bank or returning bank that sent an electronic returned check; and

(iii) A paying bank or returning bank shall not be liable for any amount that the Reserve Bank pays under this subpart or part 229 of this chapter that is attributable to the Reserve Bank's own lack of good faith or failure to exercise ordinary care.

(d) Paying bank or returning bank's liability under other law. Nothing in paragraph (c) of this section limits any warranty or indemnity by a returning bank or paying bank (or a person that handled an item prior to that bank) arising under state law or regulation (such as the U.C.C.), other federal law or regulation (such as part 229 of this chapter), or an agreement with a Reserve Bank.

(e) Warranties by and liability of Reserve Bank—(1) Warranties and indemnities. The following provisions apply when a Reserve Bank handles a returned check under this subpart.

(i) Warranties for all items. The Reserve Bank warrants to the bank to which it sends the returned check that the returned check bears all indorsements applied by parties that previously handled the returned check for forward collection or return.

(ii) Warranties and indemnities as set forth in Regulation CC. As applicable and unless otherwise provided, the Reserve Bank makes all the warranties and indemnities set forth in and subject to the terms of subparts C and D of part 229 of this chapter (Regulation CC).

(2) Indemnity for substitute check created from electronic returned check. (i) Except as provided in paragraph (e)(2)(ii) of this section, the Reserve Bank shall indemnify the bank to which it transfers or presents an electronic returned check (the recipient bank) for the amount of any losses that the recipient bank incurs under subpart D of part 229 of this chapter (Regulation CC) for an indemnity that the recipient bank was required to make under subpart D of part 229 of this chapter in connection with a substitute check later created from the electronic returned check.

(ii) The Reserve Bank shall not be liable under paragraph (e)(2)(i) of this section for any amount that the recipient bank pays under subpart D of part 229 of this chapter that is attributable to the lack of good faith or failure to exercise ordinary care of the recipient bank or a person that handled the item, in any form, after the recipient bank.

(3) Liability of Reserve Bank. A Reserve Bank shall not have or assume any other liability to any person except—

(i) For the Reserve Bank's own lack of good faith or failure to exercise ordinary care;

(ii) As provided in this paragraph (e); and

(iii) As provided in subparts C and D of part 229 of this chapter (Regulation CC).

(f) Recovery by Reserve Bank. (1) A Reserve Bank that has handled a returned check may recover as provided in paragraph (f)(2) of this section if an action or proceeding is brought against (or if defense is tendered to) the Reserve Bank based on—

(i) The alleged failure of the paying bank or returning bank to have the authority to give the authorization in paragraph (c)(1) of this section;

(ii) Any action by the Reserve Bank within the scope of its authority in handling the returned check; or

(iii) Any warranty or indemnity made by the Reserve Bank under paragraph (e) of this section or part 229 of this chapter; and

(2) Upon entry of a final judgment or decree in an action or proceeding described in paragraph (f)(1) of this section, a Reserve Bank may recover from the paying bank or returning bank the amount of attorneys' fees and other expenses of litigation incurred, as well as any amount the Reserve Bank is required to pay because of the judgment or decree or the tender of defense, together with interest thereon.

(g) Methods of recovery. (1) The Reserve Bank may recover the amount stated in paragraph (f) of this section by charging any account on its books that is maintained or used by the paying bank or returning bank (or by charging another returning Reserve Bank), if—

(i) The Reserve Bank made seasonable written demand on the paying bank or returning bank to assume defense of the action or proceeding; and

(ii) The paying bank or returning bank has not made any other arrangement for payment that is acceptable to the Reserve Bank.

(2) The Reserve Bank is not responsible for defending the action or proceeding before using this method of recovery. A Reserve Bank that has been charged under this paragraph (g) may recover from the paying or returning bank in the manner and under the circumstances set forth in this paragraph (g).

(3) A Reserve Bank's failure to avail itself of the remedy provided in this paragraph (g) does not prejudice its enforcement in any other manner of the indemnity agreement referred to in paragraph (c)(4) of this section.

Subpart B—Funds Transfers Through Fedwire 13. In § 210.25: a. In paragraphs (a) and (b)(3), remove the word “Fedwire” and add in its place the words “the Fedwire Funds Service”. b. Revise the introductory text of paragraph (b)(2). c. Add paragraph (e).

The revision and addition read as follows:

§ 210.25 Authority, purpose, and scope.

(b) * * *

(2) Except as otherwise provided in paragraphs (b)(3) and (4) of this section, including Article 4A as set forth in appendix B to this subpart, and operating circulars of the Reserve Banks issued in accordance with paragraph (c) of this section, this subpart governs the rights and obligations of:

(e) Financial messaging standards. Financial messaging standards (e.g., ISO 20022), including the financial messaging components, elements, technical documentation, tags, and terminology used to implement those standards, do not confer or connote legal status or responsibilities. This subpart, including Article 4A as set forth in appendix B to this subpart, and the operating circulars of the Reserve Banks issued in accordance with paragraph (c) of this section govern the rights and obligations of parties to funds transfers sent through the Fedwire Funds Service as provided in paragraph (b) of this section. To the extent there is any inconsistency between a financial messaging standard adopted by the Fedwire Funds Service and this subpart, this subpart shall prevail.

14. In § 210.26, revise paragraph (e) to read as follows:
§ 210.26 Definitions.

(e) Fedwire Funds Service and Fedwire means the funds-transfer system owned and operated by the Federal Reserve Banks that is used primarily for the transmission and settlement of payment orders governed by this subpart. Fedwire does not include the system for making automated clearing house transfers.

§ 210.29 [Amended]
15. In § 210.29(b), remove the word “Fedwire” and add in its place the words “the Fedwire Funds Service”. 16. In appendix A to subpart B: a. Under “Section 210.25—Authority, Purpose, and Scope”, add paragraph (e). b. Under “Section 210.32—Federal Reserve Bank Liability; Payment of Interest”, revise paragraph (b).

The addition and revision read as follows:

Appendix A to Subpart B of Part 210—Commentary Section 210.25—Authority, Purpose, and Scope

(e) Financial messaging standards. This paragraph makes clear that financial messaging standards, including the financial messaging components, elements, technical documentation, tags, and terminology used to implement those standards, do not confer or connote legal status or responsibilities. Instead, subpart B of this part and Federal Reserve Bank operating circulars govern the rights and obligations of parties to funds transfers sent through the Fedwire Funds Service as provided in § 210.25(b). Thus, to the extent there is any inconsistency between a financial messaging standard adopted by the Fedwire Funds Service and subpart B of this part, subpart B of this part, including Article 4A as adopted in appendix B to subpart B of this part, will prevail. In the ISO 20022 financial messaging standard, for example, the term agent is used to refer to a variety of bank parties to a funds transfer (e.g., debtor agent, creditor agent, intermediary agent). Notwithstanding use of that term in the standard and in message tags, such banks are not the agents of any party to a funds transfer and owe no duty to any other party to such a funds transfer except as provided in subpart B of this part (including Article 4A) or by express agreement. The ISO 20022 financial messaging standard also permits information to be carried in a funds-transfer message regarding persons that are not parties to that funds transfer (e.g., ultimate debtor, ultimate creditor, initiating party) for regulatory, compliance, remittance, or other purposes. An “ultimate debtor” is not an “originator” as defined in Article 4A. The relationship between the ultimate debtor and the originator (what the ISO 20022 standard calls the “debtor”) is determined by law other than Article 4A.

Section 210.32—Federal Reserve Bank Liability; Payment of Interest

(b) Payment of interest. (1) Under article 4A, a Federal Reserve Bank may be required to pay compensation in the form of interest to another party in connection with its handling of a funds transfer. For example, payment of compensation in the form of interest is required in certain situations pursuant to sections 4A-204 (relating to refund of payment and duty of customer to report with respect to unauthorized payment order), 4A-209 (relating to acceptance of payment order), 4A-210 (relating to rejection of payment order), 4A-304 (relating to duty of sender to report erroneously executed payment order), 4A-305 (relating to liability for late or improper execution or failure to execute a payment order), 4A-402 (relating to obligation of sender to pay receiving bank), and 4A-404 (relating to obligation of beneficiary's bank to pay and give notice to beneficiary).

(2) Section 210.32(b) requires Federal Reserve Banks to provide compensation through an explicit interest payment. Under section 4A-506(a), the amount of such interest may be determined by agreement between the sender and receiving bank or by funds-transfer system rule. If there is no such agreement, under section 4A-506(b), the amount of interest is based on the federal funds rate. Similarly, compensation in the form of explicit interest will be paid to government senders, receiving banks, or beneficiaries described in § 210.25(d) if they are entitled to interest under this subpart. A Federal Reserve Bank may also, in its discretion, pay explicit interest directly to a remote party to a Fedwire funds transfer that is entitled to interest, rather than providing compensation to its direct sender or receiving bank.

(3) If a bank that received an explicit interest payment is not the party entitled to interest compensation under article 4A, the bank must pass the benefit of the explicit interest payment made to it to the party that is entitled to compensation in the form of interest from a Federal Reserve Bank. The benefit may be passed on either in the form of a direct payment of interest or in the form of a compensating balance, if the party entitled to interest agrees to accept the other form of compensation, and the value of the compensating balance is at least equivalent to the value of the explicit interest that otherwise would have been provided.

By order of the Board of Governors of the Federal Reserve System, November 14, 2018.

Ann Misback, Secretary of the Board.
[FR Doc. 2018-25267 Filed 11-29-18; 8:45 am] BILLING CODE 6210-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0642; Product Identifier 2018-NM-087-AD; Amendment 39-19507; AD 2018-24-03] RIN 2120-AA64 Airworthiness Directives; Dassault Aviation Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for all Dassault Aviation Model Falcon 10 airplanes. This AD was prompted by a determination that new and more restrictive maintenance requirements and airworthiness limitations are necessary. This AD requires revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and airworthiness limitations. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective January 4, 2019.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of January 4, 2019.

ADDRESSES:

For service information identified in this final rule, 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 service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0642.

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-2018-0642; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

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:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Dassault Aviation Model Falcon 10 airplanes. The NPRM published in the Federal Register on August 10, 2018 (83 FR 39626). 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 or more restrictive maintenance requirements and airworthiness limitations.

We are issuing this AD to address, among other things, fatigue cracking and damage in principal structural elements; such fatigue cracking and damage could result in reduced structural integrity of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2018-0078, dated April 9, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model Falcon 10 airplanes. The MCAI states:

The airworthiness limitations and certification maintenance instructions for the Dassault Falcon 10 aeroplanes, which are approved by EASA, are currently defined and published in the Dassault Falcon 10 [Airplane Maintenance Manual] AMM, Chapter 5-40. These instructions have been identified as mandatory for continued airworthiness.

Failure to accomplish these instructions could result in an unsafe condition [fatigue cracking and damage in principal structural elements, which could result in reduced structural integrity of the airplane.]

Previously, EASA issued AD 2008-0221 to require accomplishment of the maintenance tasks, and implementation of the airworthiness limitations, as specified in the Dassault Falcon 10 AMM, Chapter 5-40, at Revision 8.

Since that [EASA] AD was issued, Dassault issued the [Airworthiness Limitations Section] ALS, which introduces new and more restrictive maintenance requirements and/or airworthiness limitations.

For the reason described above, this [EASA] AD takes over the requirements for Falcon 10 aeroplanes from EASA AD 2008-0221, 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-2018-0642.

Comments

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

Conclusion

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

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

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

Related Service Information Under 1 CFR Part 51

Dassault has issued Section 5-40-00, Airworthiness Limitations, Revision 13, dated July 2017, of the Dassault Falcon 10 Maintenance Manual. This service information describes repetitive mandatory maintenance tasks. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 60 airplanes of U.S. registry. We estimate the following costs to comply with this 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 AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.

Regulatory Findings

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

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

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

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

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

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-24-03 Dassault Aviation: Amendment 39-19507; Docket No. FAA-2018-0642; Product Identifier 2018-NM-087-AD. (a) Effective Date

This AD is effective January 4, 2019.

(b) Affected ADs

None.

(c) Applicability

This AD applies to all Dassault Aviation Model Falcon 10 airplanes, certificated in any category.

(d) Subject

Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.

(e) Reason

This AD was prompted by a determination that new and more restrictive maintenance requirements and airworthiness limitations are necessary. We are issuing this AD to address, among other things, fatigue cracking and damage in principal structural elements; such fatigue cracking and damage could result in reduced structural integrity of the airplane.

(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, to incorporate Section 5-40-00, Airworthiness Limitations, Revision 13, dated July 2017, of the Dassault Falcon 10 Maintenance Manual (“Section 5-40-00”). The initial compliance time for accomplishing the actions is at the applicable time specified in Section 5-40-00; or within 90 days after the effective date of this AD; whichever occurs later.

(h) No Alternative Actions or Intervals

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

(i) 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 (j)(2) of this AD. Information may be emailed to: [email protected]gov. 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.

(j) Related Information

(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2018-0078, dated April 9, 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-2018-0642.

(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; telephone and fax 206-231-3226.

(k) Material Incorporated by Reference

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

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

(i) Section 5-40-00, Airworthiness Limitations, Revision 13, dated July 2017, of the Dassault Falcon 10 Maintenance Manual.

(ii) [Reserved]

(3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet http://www.dassaultfalcon.com.

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

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

Issued in Des Moines, Washington, on November 8, 2018. Chris Spangenberg, Acting Director, System Oversight Division, Aircraft Certification Service.
[FR Doc. 2018-25658 Filed 11-29-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-1081; Product Identifier 2017-SW-090-AD; Amendment 39-19510; AD 2018-24-06] RIN 2120-AA64 Airworthiness Directives; Leonardo S.p.A. (Type Certificate Previously Held by Finmeccanica S.p.A. and AgustaWestland S.p.A.) Helicopters AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for Leonardo S.p.A. (Leonardo) Model AW189 helicopters. This AD requires replacing the tail plane lower fitting with an improved tail plane lower fitting. This AD was prompted by reports of cracks on the tail plane fittings of Model AW189 helicopters. The actions of this AD are intended to correct an unsafe condition on these products.

DATES:

This AD is effective January 4, 2019.

ADDRESSES:

For service information identified in this final rule, contact Leonardo S.p.A. Helicopters, Matteo Ragazzi, Head of Airworthiness, Viale G.Agusta 520, 21017 C.Costa di Samarate (Va) Italy; telephone +39-0331-711756; fax +39-0331-229046; or at http://www.leonardocompany.com/-/bulletins. You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177.

Examining the AD Docket

You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1081; 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 AD, the European Aviation Safety Agency (EASA) AD, any incorporated-by-reference service information, the economic evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Kristi Bradley, Aerospace Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone 817-222-5110; email [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

On May 23, 2018, at 83 FR 23827, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to AgustaWestland S.p.A. (now Leonardo) Model AW189 helicopters with a tail plane lower fitting part number (P/N) 8G5350A07051 installed. The NPRM proposed to require replacing the tail plane lower fitting with an improved tail plane lower fitting. The proposed requirements were intended to prevent a crack on a tail plane fitting, which could result in failure of the tail plane fitting and loss of helicopter control.

The NPRM was prompted by AD No. 2016-0161, dated August 8, 2016 (EASA AD 2016-0161), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Leonardo Model AW189 helicopters. EASA advises that some cracks have been reported in-service on the tail plane fitting of AW189 helicopters following an onset of abnormal play. According to EASA, this condition, if not detected and corrected, could jeopardize structural integrity of the helicopter. EASA further advises that Leonardo developed a tail plane lower fitting with an improved design (P/N 8G0000P00511). Accordingly, EASA AD 2016-0161 requires repetitive inspections of the tail plane lower fitting assembly until the improved tail plane lower fitting is installed.

When the NPRM was issued, the FAA was in the process of updating AgustaWestland's name changes to Finmeccanica S.p.A. and then to Leonardo Helicopters on its FAA type certificate; therefore the NPRM specified AgustaWestland as the type certificate holder. Because this name change is now effective, this AD applies to Leonardo helicopters.

Comments

We gave the public the opportunity to participate in developing this AD, but we received no comments on the NPRM.

FAA's Determination

These helicopters have been approved by the aviation authority of Italy and are approved for operation in the United States. Pursuant to our bilateral agreement with Italy, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by Italy and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed except for the name change from AgustaWestland to Leonardo. We have also updated the estimated costs to reflect that this AD affects 4 helicopters of U.S. Registry rather than 2 helicopters. These changes are consistent with the intent of the proposals in the NPRM (83 FR 23827, May 23, 2018) and will not increase the economic burden on any operator nor increase the scope of this AD.

Differences Between This AD and the EASA AD

The EASA AD requires inspecting the tail plane lower fitting for play within 50 flight hours and thereafter at intervals not to exceed 25 flight hours. If a crack or other damage exists, the EASA AD requires the improved tail plane lower fitting be installed within 10 flight hours. If no crack exists, the EASA AD requires that the improved tail plane lower fitting be installed within 200 flight hours or 2 months, whichever occurs first. This AD does not require inspections and requires installing the improved tail plane lower fitting within 50 hours time-in-service.

Related Service Information

We reviewed Leonardo Helicopters Bollettino Tecnico (BT) No. 189-038, Revision B, dated October 13, 2016, which specifies repetitively inspecting the tail plane assembly for a crack.

We also reviewed BT No. 189-070, Revision A, dated October 13, 2016, which provides instructions for replacing the tail plane lower fitting with the improved tail plane lower fitting retromodification P/N 8G0000P00511.

Costs of Compliance

We estimate that this AD affects 4 helicopters of U.S. Registry and that labor costs average $85 a work-hour. Based on these estimates, we expect that replacing the tail plane lower fitting with an improved tail plane lower fitting requires 64 work-hours and parts cost $15,424 for a total cost of $20,864 per helicopter and $83,456 for the U.S. fleet.

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 helicopters identified in this rulemaking action.

Regulatory Findings

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; 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.

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-24-06 Leonardo S.p.A. (Type Certificate previously held by Finmeccanica S.p.A. and AgustaWestland S.p.A.): Amendment 39-19510; Docket No. FAA-2017-1081; Product Identifier 2017-SW-090-AD. (a) Applicability

This AD applies to Leonardo S.p.A. (Type Certificate previously held by Finmeccanica S.p.A. and AgustaWestland S.p.A.) Model AW189 helicopters, certificated in any category, with a tail plane lower fitting part number (P/N) 8G5350A07051 installed.

(b) Unsafe Condition

This AD defines the unsafe condition as a crack on a tail plane fitting, which could result in failure of the tail plane fitting and loss of helicopter control.

(c) Effective Date

This AD becomes effective January 4, 2019.

(d) Compliance

You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

(e) Required Actions

Within 50 hours time-in-service, install tail plane retromodification kit P/N 8G0000P00511.

(f) Alternative Methods of Compliance (AMOCs)

(1) The Manager, Safety Management Section, Rotorcraft Standards Branch, FAA, may approve AMOCs for this AD. Send your proposal to: Kristi Bradley, Aerospace Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone 817-222-5110; email [email protected]

(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.

(g) Additional Information

(1) Leonardo Helicopters Bollettino Tecnico (BT) No. 189-038, Revision B, and BT No. 189-070, Revision A, both dated October 13, 2016, which are not incorporated by reference, contain additional information about the subject of this AD. For service information identified in this AD, contact Leonardo S.p.A. Helicopters, Matteo Ragazzi, Head of Airworthiness, Viale G.Agusta 520, 21017 C.Costa di Samarate (Va) Italy; telephone +39-0331-711756; fax +39-0331-229046; or at http://www.leonardocompany.com/-/bulletins. You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177.

(2) The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2016-0161, dated August 8, 2016. You may view the EASA AD on the internet at http://www.regulations.gov in Docket No. FAA-2017-1081.

(h) Subject

Joint Aircraft Service Component (JASC) Code: 5510, Horizontal Stabilizer Structure.

Issued in Fort Worth, Texas, on November 21, 2018. Lance T. Gant, Director, Compliance & Airworthiness Division, Aircraft Certification Service.
[FR Doc. 2018-26071 Filed 11-29-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0633; Product Identifier 2018-NE-22-AD; Amendment 39-19470; AD 2018-21-12] RIN 2120-AA64 Airworthiness Directives; General Electric Company Turbofan Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain General Electric Company (GE) GEnx-2B67, -2B67B, and -2B67/P turbofan engines. This AD was prompted by low-cycle fatigue (LCF) cracking of the fuel manifold leading to an engine fire. This AD requires removal from service of certain fuel manifolds at the next engine shop visit and their replacement with parts eligible for installation. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective January 4, 2019.

ADDRESSES:

For service information identified in this final rule, contact General Electric Company, GE Aviation, Room 285, 1 Neumann Way, Cincinnati, OH 45215; phone: 513-552-3272; email: [email protected] You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7759. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0633.

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-2018-0633; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Herman Mak, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7147; fax: 781-238-7199; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain GE GEnx-2B67, -2B67B, and -2B67/P turbofan engines. The NPRM published in the Federal Register on August 3, 2018 (83 FR 38086). The NPRM was prompted by LCF cracking of the fuel manifold leading to an engine fire. The NPRM proposed to require removal from service of certain fuel manifolds at the next engine shop visit and their replacement with parts eligible for installation. We are issuing this AD to address the unsafe condition on these products.

Revision to Related Service Information

GE published GEnx-2B Service Bulletin (SB) 73-0038 R03, dated August 17, 2018, to provide operators with instructions for replacing the lower fuel manifold system when in the intermixed configuration. This SB eliminates the need to replace the top main and lower fuel manifolds in the shop.

Comments

We gave the public the opportunity to participate in developing this final rule. We have considered the comment received. The Boeing Company supported the NPRM.

Conclusion

We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this final rule as proposed.

Related Service Information

We reviewed GE GEnx-2B SB 73-0038 R02, dated November 19, 2015, and GEnx-2B SB 73-0038 R03, dated August 17, 2018. GE GEnx-2B SB 73-0038 R02, dated November 19, 2015 describes procedures for removing and replacing the fuel manifold system with parts eligible for installation. GE GEnx-2B SB 73-0038 R03, dated August 17, 2018 describes procedures for replacing the fuel manifold system when in the intermixed configuration.

Costs of Compliance

We estimate that this AD affects two engines installed on airplanes of U.S. registry. We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Replace fuel manifolds 220 work-hours × $85 per hour = $18,700 $119,485 $138,185 $276,370
    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-21-12 General Electric Company: Amendment 39-19470; Docket No. FAA-2018-0633; Product Identifier 2018-NE-22-AD. (a) Effective Date

    This AD is effective January 4, 2019.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to General Electric Company (GE) GEnx-2B67, -2B67B, and -2B67/P turbofan engines with top main fuel manifolds, part numbers (P/Ns) 2419M11G01, 2561M11G01, or 2546M11G01, or lower fuel manifolds, P/Ns 2419M12G01, 2561M12G01, or 2546M12G01, installed.

    (d) Subject

    Joint Aircraft System Component (JASC) Code 7310, Engine Fuel Distribution.

    (e) Unsafe Condition

    This AD was prompted by low-cycle fatigue cracking of the fuel manifold leading to an engine fire. We are issuing this AD to prevent the failure of the fuel manifold. The unsafe condition, if not addressed, could result in failure of the fuel manifold, engine fire, and damage to the airplane.

    (f) Compliance

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

    (g) Required Actions

    At the next engine shop visit, remove the applicable fuel manifolds from service and replace with parts eligible for installation.

    (h) Installation Prohibition

    After the effective date of this AD, do not install top main fuel manifolds, P/Ns 2419M11G01, 2561M11G01, or 2546M11G01, or lower fuel manifolds, P/Ns 2419M12G01, 2561M12G01, or 2546M12G01.

    (i) Definition

    For the purpose of this AD, an “engine shop visit” is the induction of an engine into the shop for maintenance involving the separation of pairs of major mating engine case flanges, except for the following situations, which do not constitute an engine shop visit:

    (1) Separation of engine flanges solely for the purposes of transportation of the engine without subsequent maintenance.

    (2) Separation of engine flanges solely for the purposes of replacing the fan or propulsor without subsequent maintenance.

    (j) Alternative Methods of Compliance (AMOCs)

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

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

    (k) Related Information

    For more information about this AD, contact Herman Mak, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7147; fax: 781-238-7199; email: [email protected]

    (l) Material Incorporated by Reference

    None.

    Issued in Burlington, Massachusetts, on November 27, 2018. Robert J. Ganley, Manager, Engine and Propeller Standards Branch, Aircraft Certification Service.
    [FR Doc. 2018-26038 Filed 11-29-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0869; Product Identifier 2018-NE-32-AD; Amendment 39-19435; AD 2018-20-01] RIN 2120-AA64 Airworthiness Directives; CFM International S.A. Turbofan Engines AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule; request for comments.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all CFM International S.A. (CFM) LEAP-1B21, LEAP-1B23, LEAP-1B25, LEAP-1B27, LEAP-1B28, LEAP-1B28B1, LEAP-1B28B2, LEAP-1B28B2C, LEAP-1B28B3, LEAP-1B28BBJ1, and LEAP-1B28BBJ2 turbofan engines with a certain high-pressure turbine (HPT) stator case (HPT cases) installed. This AD requires removal of affected HPT cases from service and their replacement with a part eligible for installation. This AD was prompted by the discovery of a quality escape at a manufacturing facility involving unapproved welds on HPT cases. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective December 17, 2018.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 17, 2018.

    We must receive comments on this AD by January 14, 2019.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

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

    For service information identified in this final rule, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; phone: 877-432-3272; fax: 877-432-3329; email: [email protected]. You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7759. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0869.

    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-2018-0869; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations (phone: 800-647-5527) is listed above. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Christopher McGuire, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7120; fax: 781-238-7199; email: [email protected].

    SUPPLEMENTARY INFORMATION: Discussion

    We learned from CFM of a quality escape at one of their suppliers, AECC Aero Science and Technology Co., Ltd., which was performing welds on newly-manufactured components to correct errors introduced in their manufacturing process. These welds were not reviewed or approved by either CFM or the FAA. CFM's review of manufacturing records determined that these parts include HPT cases installed on CFM LEAP-1B turbofan engines. These HPT cases are life limited. The unapproved repairs reduced the material capability of these cases which requires their removal prior to reaching their published Airworthiness Limitation Section life limit. This condition, if not addressed, could result in failure of the HPT case, engine fire, and damage to the airplane. We are issuing this AD to address the unsafe condition on these products.

    Related Service Information Under 1 CFR Part 51

    We reviewed CFM Service Bulletin (SB) LEAP-1B-72-00-0193-01A-930A-D, Issue 003, dated November 5, 2018. The SB describes procedures for removing the affected HPT cases from the engine. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    AD Requirements

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

    FAA's Justification and Determination of the Effective Date

    An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to the adoption of this rule because the compliance time for the required action is shorter than the time necessary for the public to comment and for us to publish the final rule. Certain HPTs cases must be removed within 200 cycles after the effective date of this AD to ensure they do not fail. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reason stated above, we find that good cause exists for making this amendment effective in less than 30 days.

    Comments Invited

    This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2018-0869 and Product Identifier 2018-NE-32-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. We will consider all comments received by the closing date and may amend this final rule because of those comments.

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

    Costs of Compliance

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

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on
  • U.S. operators
  • Remove HPT case and FPI of forward flange 1000 work-hour × $85 per hour = $85,000 $179,400 $264,400 $528,800

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

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Replace combustion case assembly 10 work-hours × $85 per hour = $850 $558,800 $559,650
    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-20-01 CFM International S.A.: Amendment 39-19435; Docket No. FAA-2018-0869; Product Identifier 2018-NE-32-AD. (a) Effective Date

    This AD is effective December 17, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to CFM International S.A. (CFM) LEAP-1B21, LEAP-1B23, LEAP-1B25, LEAP-1B27, LEAP-1B28, LEAP-1B28B1, LEAP-1B28B2, LEAP-1B28B2C, LEAP-1B28B3, LEAP-1B28BBJ1, and LEAP-1B28BBJ2 turbofan engines with a high-pressure turbine (HPT) stator case (HPT case), part number (P/N) 2541M81G01 installed, and with any HPT case serial number (S/N) listed in Table 1 or Table 2 of Planning Information, paragraph 3.A., of CFM Service Bulletin (SB) LEAP-1B-72-00-0193-01A-930A-D, Issue 003, dated November 5, 2018.

    (d) Subject

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

    (e) Unsafe Condition

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

    (f) Compliance

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

    (g) Required Actions

    (1) After the effective date of this AD, remove the affected HPT case from service no later than the number of cycles in service specified in Table 1 or Table 2 of Planning Information, paragraph 3.A., of CFM SB LEAP-1B-72-00-0193-01A-930A-D, Issue 003, dated November 5, 2018.

    (2) After removing the HPT case as required in paragraph (g)(1) of this AD, and before further flight, determine if the combustor diffuser nozzle (CDN) case, P/N 2548M30G01 to 2548M30G07, inclusive, and with any CDN case S/N listed in Table 1 or Table 2 of Planning Information, paragraph 3.A., of CFM SB LEAP-1B-72-00-0193-01A-930A-D, Issue 003, dated November 5, 2018, needs to be replaced as follows:

    (i) Inspect the HPT case forward flange outer diameter using the Accomplishment Instructions, paragraphs 5.B.(1), 5.B.(2), and 5.B.(4) of CFM SB LEAP-1B-72-00-0193-01A-930A-D, Issue 003, dated November 5, 2018.

    (ii) If, during the inspection required by paragraph (g)(2)(i) of this AD, you find an HPT case forward flange cracked across the full axial length of the outer diameter, remove the CDN case, P/N 2548M30G01 to 2548M30G07, inclusive, from service and, before further flight, replace with a part eligible for installation.

    (h) Alternative Methods of Compliance (AMOCs)

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

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

    (i) Related Information

    For more information about this AD, contact Christopher McGuire, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7120; fax: 781-238-7199; email: [email protected].

    (j) Material Incorporated by Reference

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

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

    (i) CFM Service Bulletin LEAP-1B-72-00-0193-01A-930A-D, Issue 003, dated November 5, 2018.

    (ii) [Reserved]

    (3) For CFM service information identified in this AD, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; phone: 877-432-3272; fax: 877-432-3329; email: [email protected].

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

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

    Issued in Burlington, Massachusetts, on November 26, 2018. Robert J. Ganley, Manager, Engine and Propeller Standards Branch, Aircraft Certification Service.
    [FR Doc. 2018-26026 Filed 11-29-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2018-1035] Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, Albemarle and Chesapeake Canal, Chesapeake, VA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the S168/Great Bridge bridge. This bridge carries SR168 (Battlefield Boulevard South) over the Atlantic Intracoastal Waterway (AICW), Albemarle and Chesapeake Canal, mile 12.0, at Chesapeake, VA. The deviation is necessary to facilitate the Annual Chesapeake Rotary Christmas Parade. This deviation allows the bridge to remain in the closed-to-navigation position.

    DATES:

    The deviation is effective from 4 p.m. to 10 p.m., on Saturday, December 1, 2018.

    ADDRESSES:

    The docket for this deviation, USCG-2018-1035 is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

    The City of Chesapeake owner and operator of the S168/Great Bridge bridge has requested a temporary deviation from the current operating regulations to ensure the safety of the increased volumes of spectators that will be participating in the Annual Chesapeake Rotary Christmas Parade on Saturday, December 1, 2018. The S168/Great Bridge Bridge carries SR 168/Battlefield Boulevard South over the Atlantic Intracoastal Waterway (AICW), Albemarle and Chesapeake Canal, mile 12.0, at Chesapeake, VA. This bridge is a double bascule drawbridge and has a vertical clearance of 8 feet above mean high water in the closed position. The bridge has an unlimited vertical clearance in the open position.

    The current operating regulation is set out in 33 CFR 117.997(g). Under this temporary deviation, the bridge will be maintained in the closed-to-navigation position from 4 p.m. to 6 p.m. and from 8 p.m. to 10 p.m. on Saturday, December 1, 2018.

    The AICW, Albemarle and Chesapeake Canal, is used by a variety of vessels including U.S. government vessels, small commercial vessels, recreational vessels and tug and barge traffic. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.

    Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will be able to open for emergencies and there is no immediate alternative route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

    Dated: November 27, 2018. Hal R. Pitts, Bridge Program Manager, Fifth Coast Guard District.
    [FR Doc. 2018-26051 Filed 11-29-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2018-1041] Recurring Safety Zone; Steelers Fireworks, Pittsburgh, PA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce the safety zone for the Pittsburgh Steelers Fireworks to provide for the safety of persons, vessels, and the marine environment on the navigable waters of the Allegheny, Ohio, and Monongahela Rivers 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 periods, 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 57 will be enforced from 7 p.m. through 11 p.m. on December 2, 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 safety zone for the Steelers fireworks listed in 33 CFR 165.801, Table 1, Line 57 from 7 p.m. through 11 p.m. on December 2, 2018. This action is being taken to provide for the safety of persons, vessels, and the marine environment on the navigable waters of the Allegheny, Ohio, and Monongahela Rivers during this event. Our regulation for marine events within the Eighth Coast Guard District, § 165.801, specifies the location of the safety zone for the Steelers fireworks, which covers a less than one-mile stretch of the Ohio, Allegheny, and Monongahela Rivers. Entry into the safety zone 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 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 vessel 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 each enforcement.

    Dated: November 26, 2018. F.M. Smith, Commander, U.S. Coast Guard, Acting Captain of the Port Marine Safety Unit Pittsburgh.
    [FR Doc. 2018-26050 Filed 11-29-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF EDUCATION 34 CFR Chapter II [Docket ID ED-2018-OII-0062] RIN 1855-AA14 Final Priorities, Requirements, Definitions, and Selection Criteria—Expanding Opportunity Through Quality Charter Schools Program; Grants to Charter Management Organizations for the Replication and Expansion of High-Quality Charter Schools AGENCY:

    Office of Innovation and Improvement, Department of Education.

    ACTION:

    Final priorities, requirements, definitions, and selection criteria.

    SUMMARY:

    The Acting Assistant Deputy Secretary for Innovation and Improvement announces priorities, requirements, definitions, and selection criteria for Grants to Charter Management Organizations for the Replication and Expansion of High-Quality Charter Schools (CMO grants or CMO grant program) under the Expanding Opportunity Through Quality Charter Schools Program (CSP), Catalog of Federal Domestic Assistance (CFDA) number 84.282M. We may use one or more of these priorities, requirements, definitions, and selection criteria for competitions in fiscal year (FY) 2019 and later years. We take this action to support the replication and expansion of high-quality charter schools by charter management organizations (CMOs) throughout the Nation, particularly those that serve educationally disadvantaged students, such as students who are individuals from low-income families, students with disabilities, and English learners; and students who traditionally have been underserved by charter schools, such as Native American students and students in rural communities.

    DATES:

    These priorities, requirements, definitions, and selection criteria are effective November 30, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Allison Holte, U.S. Department of Education, 400 Maryland Avenue SW, Room 4W243, Washington, DC 20202. Telephone: (202) 205-7726.

    If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Summary of the Major Provisions of This Regulatory Action: We announce these final priorities, requirements, definitions, and selection criteria to achieve two main goals.

    First, we seek to continue to use funds under this program to support high-quality applications from highly qualified applicants. To that end, we announce priorities, requirements, definitions, and selection criteria that encourage or require applicants to describe, for example: Past successes working with academically poor-performing public schools; 1 experience operating or managing multiple charter schools; plans to expand their reach into new and diverse communities; logical connections between their proposed projects and intended outcomes for the students they propose to serve; and plans to evaluate the extent to which their proposed projects, if funded, yield intended outcomes.

    1 Italicized terms are defined in the Final Definitions section of this document.

    Second, these final priorities, requirements, definitions, and selection criteria are designed to increase the likelihood that CMO grants support expanded high-quality educational opportunities for educationally disadvantaged students, as well as students who traditionally have been underserved by charter schools, such as Native American students and students in rural communities. Specifically, among other things, the final priorities, requirements, definitions, and selection criteria enable the Department to give priority to applications that propose to: Replicate or expand high-quality charter schools with an intentional focus on recruiting students from racially and socioeconomically diverse backgrounds, and maintaining racially and socioeconomically diverse student bodies, consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws; serve a meaningful proportion of students who are individuals from low-income families; and replicate or expand high-quality charter schools that serve high school students, students in rural communities, and Native American students. Further, in order to meet the final requirements announced in this document, CMO applicants must describe how the schools they intend to replicate or expand would recruit and enroll educationally disadvantaged students and support such students in mastering State academic standards.

    Costs and Benefits: The Department of Education (Department) believes that the benefits of this regulatory action outweigh any associated costs, which we believe would be minimal. While this action imposes cost-bearing requirements on participating CMOs, we expect that applicants will include requests for funds to cover such costs in their proposed project budgets. We believe this regulatory action strengthens accountability for the use of Federal funds by helping to ensure that the Department awards CSP grants to CMOs that are most capable of expanding the number of high-quality charter schools available to our Nation's students. Please refer to the Regulatory Impact Analysis in this document for a more detailed discussion of costs and benefits.

    Purpose of Program: The major purposes of the CSP are to: Expand opportunities for all students, particularly students facing educational disadvantages and students who traditionally have been underserved by charter schools, to attend high-quality charter schools and meet challenging State academic standards; provide financial assistance for the planning, program design, and initial implementation of public charter schools; increase the number of high-quality charter schools available to students across the United States; evaluate the impact of charter schools on student achievement, families, and communities; share best practices between charter schools and other public schools; encourage States to provide facilities support to charter schools; and support efforts to strengthen the charter school authorizing process. Through the CMO grant program, the Department provides funds to CMOs on a competitive basis to enable them to replicate or expand one or more high-quality charter schools. More specifically, grant funds may be used to expand the enrollment of one or more existing high-quality charter schools, or to open one or more high-quality charter schools by replicating an existing high-quality charter school model.

    Program Authority: Title IV, Part C of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act (ESEA).

    We published a notice of proposed priorities, requirements, definitions, and selection criteria for this program in the Federal Register on July 27, 2018 (83 FR 35571) (NPP). The NPP contained background information and our reasons for proposing the particular priorities, requirements, definitions, and selection criteria.

    There are several significant differences between the NPP and this notice of final priorities, requirements, definitions, and selection criteria (NFP). First, we have revised the title and focus of Priority 2 (which was proposed as “School Improvement through Restart Efforts”) to clarify that applicants addressing the priority should be focused on reopening, and not restarting, academically low-performing public schools as charter schools. In addition, we have revised Priority 2 to require applicants to address each subpart in order to meet the priority. Second, we have revised Priority 3—High School Students to clarify that there is a broad range of postsecondary education options for which high-quality charter schools that serve high school students may prepare their students, including certain one-year training programs as well as two- and four-year colleges and universities. We have also revised Priority 3 to specify that high school students include educationally disadvantaged students. In addition, we have revised Priority 4—Low-Income Demographic to require applicants receiving priority points to demonstrate that they will maintain a poverty threshold that is the same as, or substantially similar to, the level specified in the grant application for the entire grant period. Further, we have revised Priority 7 and related definitions to include students who are Native Hawaiian or Native American Pacific Islander, as well as students who are Indians (including Alaska Natives), and to clarify that applicants must meaningfully collaborate with community leaders. Finally, we have revised Selection Criterion (b)—Significance of Contribution in Assisting Educationally Disadvantaged Students to emphasize students with disabilities 2 and English learners. We discuss these changes in detail in the Analysis of Comments and Changes section of this document.

    2 For purposes of these final priorities, requirements, definitions, and selection criteria, “students with disabilities” or “student with a disability” has the same meaning as “children with disabilities” or “child with a disability,” respectively, as defined in section 8101(4) of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act (ESEA). Under section 8101(4), “child with a disability” has the same meaning given that term in section 602 of the Individuals with Disabilities Education Act.

    Public Comment: In response to our invitation in the NPP, 36 parties submitted comments on the proposed priorities, requirements, definitions, and selection criteria.

    We group major issues according to subject. Generally, we do not address technical and other minor changes. In addition, we do not address comments that raised concerns not directly related to the proposed priorities, requirements, definitions, or selection criteria.

    Analysis of Comments and Changes: An analysis of the comments and changes in the priorities, requirements, definitions, and selection criteria since publication of the NPP follows.

    General

    Comments: One commenter suggested that we include a focus on students from military families, noting that military families may not be able to afford charter school tuition.

    Discussion: First, we note that charter schools are public schools and, by definition, may not charge tuition (ESEA section 4310(2)). Nonetheless, we agree that military- and veteran-connected students often face unique challenges. On March 2, 2018, the Department published in the Federal Register (83 FR 9096) the Secretary's Final Supplemental Priorities and Definitions for Discretionary Grant Programs (Supplemental Priorities), which are available for use in all of the Department's discretionary grant programs, including the CMO grant program. In recognition of the unique challenges faced by military families, Priority 11 in the Supplemental Priorities focuses on ensuring that service members, veterans, and their families have access to high-quality educational options. In any fiscal year in which the Department awards new grants under the CMO grant program, we may use this supplemental priority in conjunction with the priorities, requirements, definitions, and selection criteria in the ESEA and established in this document. Therefore, we decline to revise the final priorities, requirements, definitions, and selection criteria to add a focus on military families.

    Changes: None.

    Comments: Seven commenters urged the Department to clarify through these final priorities, requirements, definitions, and selection criteria that virtual charter schools must ensure that all students, particularly students with disabilities, can access virtual and online content. Several commenters requested that we require all virtual public schools, including virtual charter schools, to demonstrate compliance with the Web Content Accessibility Guidelines (WCAG). Other commenters suggested that applicants proposing to replicate or expand virtual charter schools be required to focus on enrollment and retention of, and academic outcomes for, educationally disadvantaged students, and make performance and compliance data available publicly and in a timely manner. One commenter suggested that we refrain from awarding grants to virtual charter schools altogether.

    Discussion: Section 4310(2)(G) of the ESEA requires charter schools receiving CSP funds to comply with various laws, including section 504 of the Rehabilitation Act of 1973 (Section 504), the Americans with Disabilities Act of 1990 (ADA), and Part B of the Individuals with Disabilities Education Act (IDEA). Thus, consistent with the requirements in Section 504 and Title II of the ADA, virtual charter schools must ensure that all content is accessible to students with disabilities enrolled in the school as well as prospective students with disabilities and parents or guardians. Similarly, like other local educational agencies (LEAs), public charter schools that operate as LEAs under State law, including virtual charter school LEAs and LEAs that include virtual charter schools among their public schools, must ensure that eligible students with disabilities enrolled in these schools receive a free appropriate public education (FAPE) in accordance with the requirements of Part B of the IDEA.3 To meet this obligation, these schools must provide instructional materials to students with disabilities in accessible formats, consistent with the requirements in Section 504 and Title II of the ADA. If web-based instruction or online instructional platforms are used, these schools must ensure that the information provided through those sources is accessible to students with disabilities, consistent with the requirements in Section 504 and Title II of the ADA. Because these requirements are already established by Federal law, we decline to revise these final priorities, requirements, definitions, or selection criteria.

    3 Students with disabilities attending public charter schools and their parents retain all rights under Part B of the IDEA. Further, charter schools that operate as LEAs under State law, as well as LEAs that include charter schools among their public schools, are responsible for ensuring that the requirements of Part B of the IDEA are met, unless State law assigns that responsibility to some other entity. See 34 CFR 300.209.

    Further, while we understand that WCAG is designed to make web content accessible to a wide range of individuals with disabilities and that demonstrating compliance with WCAG is a widely accepted method for public schools, including virtual public charter schools, to meet the obligations discussed above, the Department does not require grantees to adopt a particular standard to ensure accessibility of web content or online platforms to meet their obligations under Section 504 or Title II of the ADA. Moreover, the WCAG standards are updated periodically.

    With respect to requiring virtual charter schools to focus on the enrollment and retention of, and academic outcomes for, educationally disadvantaged students, to receive a grant under the CMO grant program, an applicant must provide, among other things, student assessment results and attendance and retention rates for all students served by its schools, including educationally disadvantaged students (ESEA section 4305(b)(3)(A)). Further, CMO grantees must assure that each charter school receiving CSP funds makes annual performance and enrollment data publicly available (ESEA section 4303(f)(2)(G)(v)). CMO applicants must also provide the Department with information on existing significant compliance and management issues (ESEA section 4305(b)(3)(A)(iii)). These requirements apply to all CMO grantees, regardless of whether they intend to replicate or expand virtual or brick-and-mortar charter schools.

    Finally, while we recognize that virtual charter schools can present unique challenges with respect to the enforcement of CSP requirements, the ESEA does not preclude virtual charter schools from receiving CSP funds. For this reason, we decline to adopt the commenter's suggestion that we preclude applicants that propose to replicate or expand virtual charter schools from applying for funds under this program.

    Changes: None.

    Comments: Several commenters requested that we clarify that charter schools are obligated to serve students with disabilities. One commenter stated that charter schools must adhere to the IDEA, hold regular individualized education plan meetings, and offer face-inclusive policies as codified by State law. Another commenter urged the Department to focus specifically on the needs of students with Tourette's syndrome and obsessive compulsive disorder. Several commenters suggested that we include a priority for applicants that propose to replicate or expand high-quality charter schools that serve students with disabilities.

    Discussion: It is unclear what the commenter meant by “face-inclusive policies,” but we agree that students with disabilities face unique educational challenges. As stated above, all eligible students with disabilities attending public charter schools and their parents retain all rights under Part B of the IDEA, including the right to receive FAPE. In addition, these final priorities, requirements, definitions, and selection criteria include a requirement that applicants for CMO grants describe how they intend to comply with Part B of the IDEA.

    Further, a number of priorities, requirements, definitions, and selection criteria under this program focus on educationally disadvantaged students, which include students who are children with disabilities, as defined in section 8101(4) of the ESEA. The Supplemental Priorities also include two priorities that focus on the needs of students with disabilities and could be used in future CMO grant competitions. These priorities are: Priority 1—Empowering Families and Individuals to Choose a High-quality Education that Meets their Unique Needs (which includes a specific option for focusing on students with disabilities) and Priority 5—Meeting the Unique Needs of Students and Children with Disabilities and/or Those with Unique Gifts and Talents. For these reasons, we decline to include a specific priority for students with disabilities or to focus this priority on students with a particular disability or impairment, such as Tourette's Syndrome or obsessive compulsive disorder.

    Changes: None.

    Comments: Several commenters urged the Department to clarify whether applicants could still apply for CMO grants as groups or consortia and, if so, what the Department's expectations are for how a group or consortium application should be organized.

    Discussion: Federal regulations at 34 CFR 75.127-75.129 specifically authorize applicants to apply as a group or consortium, and prescribe the requirements governing such applications. These final priorities, requirements, definitions, and selection criteria do not alter the requirements for group applications in 34 CFR 75.127-75.129. Therefore, we decline to make any changes in this area.

    Changes: None.

    Comments: One commenter suggested that the Department allow high-performing applicants to submit streamlined applications for CMO grants. The commenter also suggested that we increase per-seat funding caps for CMOs that are expanding grades in schools because grade expansion can often be as costly as opening new schools. In addition, the commenter asked that we allow CMOs to apply for CMO grants and subgrants under section 4303 of the ESEA. Finally, the commenter asked that we issue nonregulatory guidance that would broadly interpret the term “minor facilities repairs” to ensure that charter schools can use CSP funds to ensure that students attend safe, clean, and well-maintained schools.

    Discussion: Although the Department may have information regarding the past performance of some applicants—in particular, CMOs that have received CSP grants previously—we rely on the expertise of independent peer reviewers to evaluate the quality of applications submitted under a grant competition in order to ensure the fairness and integrity of the competition. Further, each application proposes to carry out different activities, and an applicant's successful implementation of one project does not guarantee the successful implementation of subsequent projects. To ensure an equal playing field, we believe it is critical that all applicants be required to submit the same general information for review. Therefore, we decline to enable high-performing applicants to submit streamlined applications, as suggested by the commenter.

    With respect to the commenter's suggestion to raise per-seat funding caps, no revisions to these final priorities, requirements, definitions, or selection criteria are necessary for the Department to change per-seat funding caps for CMO grants in a given year. Under 34 CFR 75.101 and 75.104(b), the Secretary may establish maximum funding amounts for grants by publishing a notice in the Federal Register. When establishing funding limits under a CMO grant competition for a given fiscal year, the Department considers a number of factors, including the availability of funds.

    We also note that section 4303 of the ESEA authorizes the CSP Grants to State Entities (State Entities) program, under which the Department awards grants to State entities, and State entities, in turn, award subgrants to eligible applicants (i.e., charter school developers and charter schools) to enable such eligible applicants to open and prepare for the operation of new charter schools and replicated high-quality charter schools, and to expand high-quality charter schools. The ESEA does not explicitly prohibit an entity that qualifies as a CMO and an eligible applicant from applying for both a CMO grant under section 4305(b) and a subgrant under section 4303(b). In order to receive funds under both programs, however, the CMO must propose to carry out different activities under each application and demonstrate that it has the resources and capability to administer multiple projects effectively and efficiently.

    Finally, we agree that students learn best in safe, clean, and well-maintained environments. Section 4303(h)(3) of the ESEA authorizes the use of CSP funds to “[carry] out necessary renovations to ensure that a new school building complies with applicable statutes and regulations, and minor facilities repairs (excluding construction)” (20 U.S.C. 7221b(h)(3)).4 We believe this provision affords CMO grantees the flexibility they need to ensure that the charter schools they manage occupy buildings and facilities that are safe, clean, and well-maintained. For examples of the types of repairs that could qualify as “minor facilities repairs” under section 4305(c), please see the Department's nonregulatory guidance entitled, “Charter Schools Program New Flexibilities under the Every Student Succeeds Act (ESSA): Frequently Asked Questions.” 5

    4 Under section 4305(c) of the ESEA, “the same terms and conditions” that apply to State Entity grants under section 4303 apply to CMO grants.

    5 See https://innovation.ed.gov/files/2017/12/CSP-ESSA-Flexibilities-FAQ-2017.pdf.

    Changes: None.

    Comments: One commenter suggested that we add a priority for CMOs that propose to replicate or expand high-quality charter schools that focus on dropout recovery and academic re-entry in order to maintain consistency with the authorizing statute.

    Discussion: We agree that these final priorities, requirements, definitions, and selection criteria should align with the ESEA and believe that they do. Section 4305(b)(5)(D) of the ESEA authorizes the Secretary to give priority to applicants that “propose to operate or manage high-quality charter schools that focus on dropout recovery and academic re-entry.” We believe this statutory language is clear. Like the other statutory priorities as well as the priorities established under this NFP, the Secretary may choose to apply the statutory priority for dropout recovery and academic re-entry charter schools under a CMO grant competition in FY 2019 and future years. Accordingly, we decline to add a priority for CMOs that propose to replicate or expand high-quality charter schools that focus on dropout recovery and academic re-entry.

    Changes: None.

    Comments: Several commenters suggested that we designate specific priorities as absolute priorities or competitive preference priorities for competitions in FY 2019 and later years.

    Discussion: Federal regulations at 34 CFR 75.105 authorize the Department to establish annual priorities and to designate the priorities as invitational, competitive preference, or absolute. Therefore, we do not need to revise the final priorities in order to designate them as absolute or competitive preference priorities for competitions in FY 2019 and in later years. In accordance with 34 CFR 75.105(c), we will designate specific priorities as invitational, absolute or competitive preference priorities for the FY 2019 competition, and competitions in later years, through a notice inviting applications (NIA) in the Federal Register.

    Changes: None.

    Priority 1—Promoting Diversity

    Comments: Several commenters expressed support for a priority that encourages diverse student populations. One commenter recommended that we follow a specific methodology for assessing whether applicants meet the priority. Several commenters questioned whether an applicant could meet this priority and Priority 4—Low-Income Demographic, stating that it may be difficult for a school focused on socioeconomic diversity to maintain a high percentage of students who are individuals from low-income families. Some commenters recommended that the Department expand the scope of the priority to include students with disabilities, in addition to students from racially and socioeconomically diverse backgrounds. Finally, two commenters expressed concern about the priority's effect on communities and school districts more broadly. Specifically, one commenter argued that providing incentives for CMOs that propose to replicate or expand charter schools with diverse student bodies is unlikely to be successful because students typically attend schools in or near their neighborhoods, and neighborhoods, particularly in cities, tend to be segregated due to decades of deeply rooted societal forces, including racially motivated housing practices and school assignments. Another commenter suggested that we revise the priority to require that any efforts to replicate or expand high-quality charter schools with an intentional focus on diversity yield “zero net effect” on the demographics of the schools from which the students are recruited.

    Discussion: We believe that students can benefit from attending high-quality charter schools with racially and socioeconomically diverse student bodies. We agree that following a rubric, or methodology, for determining whether an applicant meets the priority can be useful. We will determine an appropriate method for reviewing applications addressing this priority in the NIA for a given competition.

    We agree with the commenters that some aspects of Priority 1—Promoting Diversity could potentially conflict with certain subparts of Priority 4—Low-Income Demographic and, as such, it may be challenging for a CMO grant application to meet both priorities. The Department has flexibility in choosing priorities, requirements, and selection criteria for its grant competitions. In FY 2019 and in future years, we will select a combination of priorities, requirements, and selection criteria that is appropriate for the CMO program and aligned with the Secretary's policy objectives.

    In addition, we share the commenters' concerns about ensuring that students with disabilities receive FAPE. However, this priority focuses specifically on diversity with respect to race and socioeconomic status. Race and socioeconomic status are commonly cited in research on diversity and its relationship with student academic achievement as two demographic factors that have a major impact.6 Further, we believe it is important that the final priority aligns with the statutory priority for this program in ESEA section 4305(b)(5)(A), which focuses on replicating or expanding high-quality charter schools with racially and socioeconomically diverse student bodies.

    6See, e.g.: The Century Foundation (2018). Diverse by Design Charter Schools. https://tcf.org/content/report/diverse-design-charter-schools/.

    We agree with the commenter that cultivating and maintaining a diverse student body can be difficult and is unlikely to happen overnight. We also agree that high-quality charter schools can be a powerful option for educationally disadvantaged students but that many factors, such as safe and reliable transportation to and from school, can impact a family's realistic educational choices. This priority focuses on applicants that propose to replicate or expand high-quality charter schools with an intentional focus on racial and socioeconomic diversity, but it does not dictate how a CMO should approach this work. Promising practices for promoting diversity continue to emerge, and charter schools have great flexibility to choose an educational program that attracts students from diverse backgrounds and geographic areas outside of the immediate area surrounding the school. The intent of this priority is to encourage CMOs to replicate or expand high-quality charter schools with purposefully diverse student bodies through strategies that comply with non-discrimination requirements in the U.S. Constitution and in Federal civil rights laws, make sense for their local contexts, and are aligned with reliable research on the relationship between academic achievement and racial and socioeconomic diversity in schools.

    Finally, we agree with the commenter that CMOs should consider the community context when replicating or expanding high-quality charter schools, particularly charter schools with an intentional focus on racial and socioeconomically diverse student bodies. However, we do not think it is appropriate or practical to require that CMOs demonstrate to the Department a net zero effect on surrounding schools. For these reasons, we decline to revise the priority.

    Changes: None.

    Comment: None.

    Discussion: Upon further review, we determined that it is critical to remind applicants addressing Priority 1 of their nondiscrimination obligations under Federal law. As such, we are revising the priority to clarify that proposed projects must be consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws.

    Changes: We have added the phrase “consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws” to the priority.

    Priority 2—Reopening Academically Poor-Performing Public Schools as Charter Schools

    Comments: Several commenters expressed support for this priority. One commenter asked that we revise the priority to encourage applications from CMOs that can share best practices for turning around low-performing traditional public schools. Two commenters requested that we clarify whether an applicant could address the priority by proposing to open a new charter school, rather than to reopen an academically poor-performing public school as a charter school. One commenter suggested that we focus the priority on reopening academically poor-performing middle and high schools as charter schools.

    Discussion: We agree with the commenters that the purpose of this priority—to “reopen” academically poor-performing charter schools—could be clearer. An applicant proposing only to open new charter schools, and not “reopen” an academically poor-performing public school as a charter school, would not meet this specific priority (but could meet other priorities established in this NFP). Therefore, in order to clarify the purpose of this priority, we are replacing the term “restart” with “reopen.” In addition, we agree that starting a new school is an important endeavor, and note that opening new high-quality charter schools is a key element of the CSP. We also believe that charter schools can play an important role in helping to improve academic outcomes for students in low-performing public schools. Therefore, this priority is specifically focused on CMOs that propose to reopen academically poor-performing public schools as charter schools.

    We also agree that applicants should be required to demonstrate past success working with low-achieving public schools in order to meet the priority. Accordingly, we are revising the stem of the priority to require applicants to address each subpart of the priority, including the subpart focused on demonstrating past success working with at least one academically poor-performing public school or schools that were designated as persistently lowest-achieving schools or priority schools under the School Improvement Grant program or ESEA flexibility. Under this standard, an applicant can share best practices working with traditional public schools as well as nontraditional public schools, such as public charter schools.

    Finally, we agree that a focus on middle schools and high schools may be appropriate in specific contexts, and have included a priority for applications that propose to replicate or expand high-quality charter schools that serve high school students. Under this priority, an applicant can propose to reopen an academically poor-performing middle school or high school as a charter school as it sees fit. Therefore, we decline to revise the priority to focus on reopening academically poor-performing middle schools and high schools.

    Changes: We have revised the priority to replace the term “restart” with “reopen.” In addition, we have revised the stem of the priority so that all subparts must be addressed in order for an applicant to meet the priority.

    Comments: Several commenters opined that there is a disproportionately high percentage of students with disabilities in turnaround schools and suggested that we require CMOs proposing to reopen academically poor-performing public schools as charter schools to address the issue.

    Discussion: A major goal of these priorities, requirements, definitions, and selection criteria is to expand high-quality educational opportunities for educationally disadvantaged students, including students with disabilities. CMO grantees, and the charter schools they manage, must comply with applicable laws, including Part B of the IDEA, Section 504, and Title II of the ADA. Further, to meet the priority, an applicant must propose a strategy that targets a student population that is demographically similar to that of the academically poor-performing public school. Therefore, we decline to revise this priority in the manner suggested by the commenter.

    Changes: None.

    Comments: Several commenters requested that the Department clarify its policy regarding admissions lotteries, including how a CMO might use a weighted lottery to address this priority. One commenter urged the Department to ensure that any grantee using a weighted lottery meet all relevant statutory requirements, and another commenter suggested that we ensure that any weighted lotteries are designed to enroll students with disabilities in proportion to the enrollment of such students in neighboring schools. Several commenters suggested that the Department update its nonregulatory guidance to clarify that CMOs that are reopening academically poor-performing public schools as charter schools could exempt from admissions lotteries students who are enrolled in the academically poor-performing public school at the time it is reopened.

    Discussion: Under section 4303(c)(3) of the ESEA, charter schools receiving funds under a CMO grant generally may use “a weighted lottery to give slightly better chances for admission to all, or a subset of, educationally disadvantaged students,” so long as weighted lotteries in favor of such students are not prohibited under State law and are not used to create schools that would serve a particular group of students exclusively.7 Therefore, a charter school could use a weighted lottery for the purpose of enrolling a proportionate number of students with disabilities in the charter school as compared to the number of such students enrolled in neighboring schools. As such, the Department declines to expand the statutory requirements for weighted lotteries as they apply to CMO grants.

    7 As stated above, under section 4305(c) of the ESEA, CMO grantees generally are subject to the same terms and conditions as State entity grantees funded under section 4303.

    Further, the Department's most recent update to the CSP nonregulatory guidance was issued in January 2014.8 Although that guidance was issued prior to enactment of the ESSA, much of it is applicable to the CSP lottery requirement in section 4310(2)(H) of the ESEA. Specifically, the January 2014 CSP Nonregulatory Guidance identifies several categories of students who may be exempted from a charter school's lottery, including students who are enrolled in a public school at the time it is converted into a charter school. The Department may update this guidance to address changes to the CSP made by the ESSA. In the meantime, CMO grantees may continue to follow the guidelines in the January 2014 CSP Nonregulatory Guidance regarding the categories of students who may be exempted from the lottery requirement.

    8 See http://www2.ed.gov/programs/charter/fy14cspnonregguidance.doc.

    Changes: None.

    Comments: One commenter recommended that we use Priority 2 cautiously because available research on charter school performance is mixed.

    Discussion: We agree that, where possible, Federal funding should be used primarily to support strategies that are based on research. To meet this priority, applicants would need to demonstrate past success working with academically poor-performing public schools. In addition, all applicants, regardless of whether they address this priority, must disclose compliance issues, provide a logic model for how they will replicate or expand high-quality charter schools, and describe how they currently operate or manage high-quality charter schools. This program specifically supports the replication and expansion of high-quality charter schools, and the final priorities, requirements, definitions, and selection criteria are designed to differentiate between high-quality applications that are likely to be successful and low-quality applications that have little chance of succeeding.

    Changes: None.

    Comment: None.

    Discussion: Upon further review, we determined that it is critical to remind applicants addressing Priority 2 of their nondiscrimination obligations under Federal law. As such, we are revising the priority to clarify that proposed projects must be consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws.

    Changes: We have added the phrase “consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws” to the priority.

    Priority 3—High School Students

    Comments: Several commenters expressed support for the priority but asked that we revise it to require applicants to demonstrate that their proposed strategy for replicating or expanding high-quality charter high schools is evidence-based. One commenter also suggested that applicants be required to provide data on former students' postsecondary degree attainment and employment. Conversely, another commenter suggested we use this priority cautiously due to a lack of research on charter high schools.

    Discussion: We agree that using research to inform CMO grant proposals is useful in certain contexts, but we also understand that research in this area is limited. The Department's regulations at 34 CFR 75.226 specifically authorize the Secretary to give priority to applications that are supported by “evidence.” The Department may choose to implement such a priority under the CMO grant competition in a given year.

    Likewise, we agree that obtaining data on students' postsecondary degree attainment and employment may be relevant and encourage applicants to submit such information, as appropriate. On the other hand, the Department must balance its interest in obtaining sufficient information to assist peer reviewers in evaluating the quality of applications with its interest in minimizing the burden on applicants. In order to meet the priority, an applicant must describe how it will prepare students for postsecondary education and provide support for its graduates who enroll in institutions of higher education (IHEs) and certain one-year training programs that prepare students for gainful employment in a recognized occupation. In addition, applicants must establish one or more project-specific performance measures that will provide reliable information about the grantee's progress in meeting the objectives of the project. We believe these requirements will generate the necessary information to enable peer reviewers to evaluate the quality of applications without placing an undue burden on applicants. For these reasons, we decline to revise the priority in the manner suggested by the commenters.

    Changes: None.

    Comments: Several commenters suggested that we broaden the priority to focus on high schools that prepare students for paths to career and technical training and military service, as well as enrollment in two- and four-year colleges and universities. Several other commenters suggested that we revise the priority to encompass high schools that focus on transitional programming for students with disabilities.

    Discussion: We agree that sending students to two- or four-year colleges and universities is not the only measure of a charter high school's success and that, for some students, getting a job or attending technical school may be the best option immediately after high school. Accordingly, we are revising subparts (ii) and (iii) of the priority to encompass a broader range of postsecondary education, training, and career options. Specifically, for this priority, postsecondary education institutions include both IHEs and educational institutions that offer one-year training programs that prepare students for gainful employment in a recognized occupation (as described in section 101(b)(1) of the Higher Education Act of 1965, as amended (HEA)). For clarity, we are also defining “IHE” in this NFP. The definition we are adding to the NFP is the same as the definition of “IHE” in section 8101(29) of the ESEA.

    Further, while a career in the military can be very rewarding, the Department's mission is to promote student academic achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access. Therefore, we believe the primary goal of elementary and secondary education should be preparing students for success at the postsecondary education level. Nevertheless, charter schools have great flexibility to establish a unique mission and educational focus. Thus, an applicant may propose to replicate or expand charter schools with a wide range of educational programs, including a military (i.e., Reserve Officers' Training Corps (ROTC)) focus, so long as the charter school meets the definition of “high-quality charter school” in section 4310(8) of the ESEA and the terms of its charter. Our ultimate focus remains on ensuring that students graduate from high school prepared to succeed in a wide variety of postsecondary education options.

    We also agree with the commenters that ensuring that students with disabilities (as well as other educationally disadvantaged students) graduate from high school with adequate preparation for postsecondary education options is paramount. Therefore, we are revising the priority to include specific references to educationally disadvantaged students where appropriate. Also, as stated above, eligible students with disabilities attending public charter schools and their parents retain their right to receive FAPE, and the IDEA requirements for transition services apply beginning with the first individualized education plan (IEP) to be in effect when the student turns 16, or younger if determined appropriate by the IEP team.9 Further, in order to be considered a high-quality charter school (a key aspect of this program), a charter school that serves high school students must have demonstrated success in increasing student academic achievement and graduation rates, and must provide that information disaggregated by subgroups of students defined in section 1111(c)(2) of the ESEA, which includes children with disabilities, as defined in the IDEA. Therefore, while we are revising the priority to include specific references to educationally disadvantaged students, we decline to revise the priority to include a specific focus on high schools that provide transitional programming (i.e., preparation for specific postsecondary education options) for students with disabilities.

    9See 20 U.S.C. 1414(d)(1)(A)(i)(VIII) and 34 CFR 300.320(b); see also 20 U.S.C. 1401(34) and 34 CFR 300.43.

    Changes: We have revised Priority 3—High School Students to include specific references to educationally disadvantaged students and to clarify that the priority applies to high-quality charter schools that prepare high school students to attend IHEs, which generally consist of two- and four-year colleges and universities, as well as certain postsecondary education institutions that offer one-year training programs. We have also added a definition for “IHE;” this change is discussed later in this notice.

    Priority 4—Low-Income Demographic

    Comments: Several commenters expressed support for the priority but requested that we revise it to support only CMOs that can demonstrate that at least 60 percent of the students across all of the charter schools they operate or manage are individuals from low-income families. One commenter stated that the vast majority of CMOs operate schools with at least 60 percent students who are individuals from low-income families, so this priority would not meaningfully differentiate applicants. Another commenter suggested that we keep the priority's original structure but revise it to support CMOs that can demonstrate that 60 to 90 percent, instead of 40 to 60 percent, of the students across all of the charter schools that they operate or manage are individuals from low-income families.

    Discussion: We believe that this priority is essential to provide incentives for CMOs to support charter schools that serve student populations with the most need. As written, the priority affords the Secretary discretion to establish a poverty threshold of 40 percent, 50 percent, or 60 percent individuals from low-income families under the CMO grant competition in a given fiscal year. We believe that 40 percent is an appropriate lower bound for this priority because it is aligned with the poverty threshold a Title I school generally must meet in order to operate a schoolwide program under section 1114 of the ESEA. For this reason, we decline to revise the priority to establish only one poverty threshold of 60 percent individuals from low-income families.

    We also decline to revise the priority to require that CMOs operate or manage charter schools with 60 to 90 percent students who are individuals from low-income families since, as stated above, the priority could potentially conflict with Priority 1—Promoting Diversity in a single competition. We recognize that many CMOs focus their efforts in high-need communities, but we believe it is also important to support high-quality charter schools that are designed with an intentional focus on racial and socioeconomic diversity. In any given year, we may include in an NIA one or more of these final priorities, requirements, definitions, and selection criteria individually or in combination with each other; therefore, we decline to revise the priority as suggested by the commenters.

    Changes: None.

    Comments: One commenter stated that applicants addressing this priority must demonstrate past success. The commenter also suggested that we revise the priority to encourage applicants to provide transportation and meal services to students.

    Discussion: While applicants' past performance is not an explicit focus of this priority, it is embedded in the program through the various application priorities, requirements, definitions, and selection criteria, including the Quality of the Eligible Applicant selection criterion. We also recognize that transportation and meals are important issues for charter schools that serve large numbers of low-income students. While CSP funds may be used to provide transportation and “healthy snacks” for students in limited circumstances, a number of other Federal, State, and local programs (such as the United States Department of Agriculture's National School Lunch Program) provide resources specifically for those purposes. For this reason, we decline to revise the priority to encourage applicants to provide transportation and meal services to students.

    Changes: None.

    Comments: One commenter asked that we expand the priority to focus on other high-need populations, such as students with disabilities and English learners.

    Discussion: Many aspects of the CMO grant program and these priorities, requirements, definitions, and selection criteria focus on educationally disadvantaged students, which include students with disabilities and English learners. In addition, we are revising some selection factors under the Contribution in Assisting Educationally Disadvantaged Students criterion to include specific references to students with disabilities and English learners. Further, the Supplemental Priorities, which may be used under the CMO grant program, include several priorities (e.g., Priority 1(b)(ii) and (iii) and Priority 5) that focus on students with disabilities and English learners. Therefore, we decline to revise this priority to focus on other high-need groups, such as students with disabilities or English learners.

    Changes: None.

    Comments: One commenter requested that we clarify how the priority would work as a competitive preference priority in a competition. Specifically, the commenter asked us to clarify whether points would be awarded on a sliding scale (e.g., one point for an applicant that can demonstrate its schools have at least 40 percent students who are individuals from low-income families, two points for an applicant that can demonstrate its schools have at least 50 percent students who are individuals from low-income families, and three points for an applicant that can demonstrate its schools have at least 60 percent students who are individuals from low-income families). The commenter expressed concern that an applicant could receive the maximum number of priority points for a higher poverty threshold, but only be required to maintain the minimum threshold throughout its grant project. The commenter also expressed concern that the focus of the priority is on all schools operated or managed by the CMO, and not only on the charter schools to be replicated or expanded as part of the grant project.

    Discussion: While the priority is written in a manner that gives the Department flexibility to apply one, two, or all three poverty standards in a single competition, we do not anticipate applying more than one poverty standard in a single competition or assigning points on a sliding scale.

    We agree with the commenter that an applicant receiving points for this priority should be required to maintain the same, or a substantially similar, poverty threshold throughout the life of the grant. As such, we are revising the priority to clarify that an applicant must demonstrate not only that its current portfolio of schools meets the specified poverty threshold, but also that it will maintain the same, or a substantially similar, poverty level in the charter schools that it replicates or expands, as well as its other schools, for the entire grant period. We recognize that the percentage of students who are individuals from low-income families may fluctuate on an annual basis and, for this reason, believe the priority should focus on all schools operated by a CMO and not just the charter schools to be replicated or expanded as part of the grant project.

    Changes: We have added a requirement that applicants demonstrate that they will maintain for the entire grant period a poverty threshold across the schools they operate or manage that is the same as, or substantially similar to, the poverty level proposed in the grant application.

    Priority 5—Number of Charter Schools Operated or Managed by the Eligible Applicant

    Comments: Several commenters suggested that we use the priority sparingly or remove it altogether. One commenter noted that the size of a CMO does not directly correlate to the quality of its schools, and another cited recent research suggesting that CMO size should not be used as a proxy for other characteristics. Other commenters expressed concern that the priority would dilute the quality of funded applications because it would create several smaller competitions for CMO grants. One commenter questioned the purpose of the priority, noting that if the intent is to support smaller, less-established CMOs, we may get better results using the priority for novice applicants in 34 CFR 75.225.

    Discussion: We agree that size is not necessarily positively correlated with quality. We note, however, that the Department can employ several mechanisms, established in the ESEA and these final priorities, requirements, definitions, and selection criteria, to assess the quality of an applicant and its proposal. This priority, by itself, is not intended to assess quality with respect to the size of the applicant. Rather, this priority is designed primarily to enable the Secretary to give a competitive advantage to small, medium, or large CMOs in a given year based on the Department's policy objectives for that year. We understand the concern that this priority could be used to create smaller sub-competitions that would decrease the amount of available funds for other CMOs. In any year in which we announce a competition, we will select a combination of priorities, requirements, and selection criteria that meet the requirements of the CMO grant program and is aligned with the Secretary's policy objectives.

    Finally, we agree that 34 CFR 75.225 provides a useful tool for encouraging applications from novice applicants. The Department will continue to follow the requirements in 34 CFR 75.225 to give priority to novice applicants in future CMO grant competitions, as we deem appropriate.

    Changes: None.

    Priority 6—Rural Community

    Comments: Several commenters expressed support for the priority but questioned whether an applicant could meet the priority by proposing to replicate or expand schools in a combination of rural communities and other communities.

    Discussion: As written, this priority gives the Department flexibility to establish an absolute or competitive preference priority for applications that propose to replicate or expand one or more high-quality charter schools in a rural community or one or more high-quality charter schools in a non-rural community. To meet the priority, an applicant would need to propose to replicate or expand at least one high-quality charter school in a rural community or at least one high-quality charter school in a non-rural community, depending on the Department's policy objectives in a given year and which prong of the priority the applicant is addressing. The priority language does not preclude an applicant from also proposing to replicate or expand high-quality charter schools in other communities. We believe the priority is clear and, therefore, decline to revise it.

    Changes: None.

    Comments: One commenter asked that we revise the priority to focus on opening new charter schools in rural areas. Conversely, another commenter raised concerns that new charter schools in rural areas would drain resources from traditional public schools.

    Discussion: The purpose of the CMO grant program is to replicate or expand high-quality charter schools. Although replicated charter schools are based on educational models at existing high-quality charter schools, for all practical purposes, they are new charter schools. Further, in light of the unique challenges faced by rural communities, we believe prospective applicants for CMO grants should have the flexibility to design their projects in a way that meets the specific needs of the communities they plan to serve, including determining whether a particular rural community would be best served by creating a new, or replicated, charter school or by expanding an existing charter school.

    In addition, we recognize that replicating or expanding high-quality charter schools will impact the surrounding community and is likely to have a greater impact in a rural community. The Department's broad focus is on expanding high-quality educational options for all students, including students in rural communities. Ideally, increasing access to high-quality educational options in rural communities will help improve student academic achievement not only in charter schools, but also in traditional public schools in the community. For these reasons, we decline to revise the priority.

    Changes: None.

    Priority 7—Replicating or Expanding High-Quality Charter Schools To Serve Native American Students

    Comments: Several commenters urged the Department to add a priority that would support Indian students by encouraging CMOs to replicate or expand dual language immersion schools that focus primarily on Indian languages. Another commenter suggested that the Department consider a CMO's ability to meaningfully engage with Tribal communities when making CMO grant decisions.

    Discussion: As discussed in the “Definitions” section below, we have replaced the term “students who are Indians” with the term “Native American students” in this priority. These changes allow applicants to receive priority points for proposing to replicate or expand high-quality charter schools that serve Native Hawaiian and Native American Pacific Islander students, as well as students who are Indians (including Alaska Natives). We agree with the commenters that cultivating strong relationships with the communities to be served is crucial, and that focusing on Native American language immersion is a promising strategy for building and maintaining those relationships and improving academic outcomes for Native American students. To meet this priority, an applicant must propose to replicate or expand a high-quality charter school that will meet the unique needs of Native American students. The applicant may employ various strategies that reflect and preserve Native American language, culture, and history, including a “dual language immersion” program that focuses on Native American languages. Thus, an applicant proposing to replicate or expand a high-quality charter school with a dual language immersion program that focuses on Native American languages could meet this priority.

    In addition, while we believe that a requirement for applicants to demonstrate a commitment to meaningfully collaborate with Tribal communities would result in actual collaborations, we agree that the language in the priority could be clearer with respect to requiring applicants to meaningfully engage with Tribal communities. Therefore, we are revising the priority to clarify that applicants must do more than demonstrate a commitment to collaborate.

    Changes: We have revised the priority to replace the phrase “demonstrate a commitment to meaningfully collaborate” with “meaningfully collaborate.”

    Comments: One commenter expressed support for the priority but suggested that we revise it to require applicants to submit a resolution or official document, rather than a letter, from surrounding Indian Tribes or Indian organizations that demonstrates their support for the proposed project. The commenter also suggested that we clarify our expectations for the composition of the board for a charter school to be replicated or expanded under the grant, and suggested that we require the board to have a percentage of Indian Tribe or Indian organization members that is comparable to the percentage of Native American students enrolled in the school. Finally, the commenter suggested that we revise the priority to require that applicants demonstrate a record of success in Tribal communities, particularly for applicants proposing to replicate or expand virtual charter schools.

    Discussion: We agree that a CMO with strong support from surrounding Indian Tribes or Indian organizations is more likely to succeed in replicating or expanding high-quality charter schools that serve a high proportion of Native American students. Accordingly, in order to meet this priority, the applicant must submit a letter of support from an Indian Tribe or Indian organization located in the area to be served by the charter school. While a resolution is not required, an applicant is not precluded from submitting a resolution, or other official document, to demonstrate support.

    Likewise, we believe that charter school developers and charter schools in the communities where the charter school will be located are best suited to assemble a school board that understands the unique educational needs of the students to be served. We believe that requiring a specific percentage or number of board members from Indian Tribes or Indian organizations could limit the ability of applicants to fully respond to the needs of the communities they propose to serve. In order to meet the priority, however, CMOs will need to collaborate with an Indian Tribe or Indian organization in the communities in which they propose to replicate or expand high-quality charter schools to ensure that school boards represent their students appropriately. While a school board with a percentage of members of Indian Tribes or Indian organizations that is comparable to the percentage of Native American students to be served could satisfy the substantial percentage requirement in this priority, there may be circumstances where a smaller or larger percentage of members from an Indian Tribe or Indian organization is appropriate. For these reasons, we decline to revise the priority as suggested by the commenter.

    Finally, while an applicant is not precluded from demonstrating past success working with Tribal communities, we decline to revise the priority to impose such a requirement. In order to receive CMO funds, all applicants must describe how they operate or manage the charter schools (including virtual charter schools) for which they have presented evidence of success (see Requirement (e)). We believe that Indian Tribes and Indian organizations located in the community to be served by the replicated or expanded charter school are in the best position to determine whether a particular CMO applicant has the requisite knowledge and experience to serve Native American students effectively. Therefore, the requirements that an applicant obtain a letter of support from, and meaningfully collaborate with, a local Indian Tribe or Indian organization should prevent CMOs that lack the knowledge and experience necessary to serve Tribal communities successfully from meeting the priority. For these reasons, we decline to revise the priority in the manner suggested by the commenter.

    Changes: None.

    Comment: None.

    Discussion: Upon further review, we determined that it is critical to remind applicants addressing Priority 7 of their nondiscrimination obligations under Federal law. As such, we are revising the priority to clarify that proposed projects must be consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws.

    Changes: We have added the phrase “consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws” to the priority.

    Requirements

    Comments: A few commenters requested that we clarify which requirements we would include in future CMO grant competitions. One commenter also requested that we clarify which requirements represent existing obligations under Federal law.

    Discussion: As a general matter, the CSP statute prescribes the priorities, requirements, definitions, and selection criteria that apply to all CMO grants, regardless of the fiscal year in which the grant is awarded. In addition, the Department's regulations at 34 CFR part 75 prescribe the procedures the Department must follow when awarding and administering discretionary grants. The main purposes of these final priorities, requirements, definitions, and selection criteria are to clarify the Department's interpretation of certain statutory requirements and to establish other priorities, requirements, definitions, and selection criteria consistent with congressional intent. The Department generally has discretion to choose specific priorities, requirements, definitions, and selection criteria to apply to CMO grants in a given year based on the Department's policy objectives for that year. All of the requirements in this NFP are aligned with existing requirements for CMO grants under the ESEA and the Department's regulations.

    Changes: None.

    Comments: One commenter suggested that we require applicants to disclose whether any charter schools in their network meet the definition of “academically poor-performing public school.” The commenter also suggested that we differentiate between “schools” and “campuses” because States vary in how they define the two terms.

    Discussion: We agree that knowing whether an applicant has “academically poor-performing public schools” in its network could give the Department an indication of the overall quality of the CMO's charter schools. On the other hand, there are many reasons why a charter school may qualify as an academically poor-performing public school and, ultimately, the existence of one or more academically poor-performing public schools in a CMO's network is not necessarily dispositive proof that the CMO is unable to administer a CMO grant effectively and efficiently. For example, it would not be unusual for an applicant that has reopened one or more low-achieving public schools to have an academically poor-performing public school in its network. Under Requirement (e), any CMO that receives a grant must provide evidence of success, regardless of whether the CMO has operated or managed academically poor-performing public schools.

    In addition, Requirement (a) provides that applicants must demonstrate that they operate more than one charter school. Requirement (a) clearly states that, for purposes of the CMO grant program, multiple charter schools are considered to be separate schools if each school meets the definition of “charter school” in section 4310(2) of the ESEA and is treated as a separate school by its authorized public chartering agency and the State in which the charter school is located, including for purposes of accountability and reporting under Title I, Part A of the ESEA. For these reasons, we decline to revise the priority as suggested by the commenter.

    Changes: None.

    Definitions

    Comments: Several commenters requested that we clarify the definition of “high proportion,” as that term is used in Priority 7. One commenter provided data suggesting that the definition of “high proportion” may not be ambitious enough. Conversely, one commenter suggested that we define “high proportion” as 25 percent students who are Indians, consistent with one of the requirements in section 6112 of the ESEA.

    Discussion: As discussed above, we are revising Priority 7—Replicating or Expanding High-Quality Charter Schools to Serve Native American Students to replace “students who are Indians” with “Native American students.” As written, the priority gives applicants an opportunity to explain why the number of Native American students it proposes to serve constitutes a “high proportion,” based on the specific circumstances and context of the community in which the charter school is or will be located. For this reason, we decline to require charter schools to serve a specific percentage of Native American students, such as 25 percent, in order to meet the priority.

    We appreciate that some data may suggest that many charter schools have student bodies comprised of 75 percent or more Native American students. Such schools would generally meet the definition of high proportion established in this document. On the other hand, if an applicant proposes to replicate or expand a charter school that has less than a majority of Native American students but provides a compelling rationale for why the school should be considered to have a high proportion of Native American students, we may consider the applicant to have met the standard. Applicants addressing Priority 7 must, among other things, meaningfully collaborate with Indian Tribes or Indian organizations and must replicate or expand high-quality charter schools that have an academic program purposely designed to meet the unique needs of Native American students. We believe that all of the components of Priority 7, including the definition of “high proportion,” set an appropriately rigorous bar for CMO applicants while also affording some flexibility. Therefore, we decline to revise the definition of high proportion as suggested by the commenters.

    Changes: None.

    Comments: A few commenters suggested that we revise the definition of “Indian” to include Native Hawaiians.

    Discussion: We agree that Native Hawaiian students have many of the same unique educational needs as students who are Indians. We also believe that students who are Native American Pacific Islanders have similar educational needs. Therefore, as stated above, we are replacing the terms “Indian” and “Indian language,” respectively, with “Native American” and “Native American language” throughout the final priorities, requirements, definitions, and selection criteria. Likewise, we are removing the definition of the term “Indian” and adding definitions for “Native American” and “Native American language,” based on the definitions for those terms in section 8101(34) of the ESEA.10 The ESEA definition of “Native American” explicitly includes Indians (including Alaska Natives), Native Hawaiians, and Native American Pacific Islanders.

    10 Section 8101(34) defines “Native American” and “Native American language” as having the same meaning given those terms in section 103 of the Native American Languages Act of 1990 (NALA). Under section 103, “Native American” includes Indians (including Alaska Natives), Native Hawaiians, and Native American Pacific Islanders.

    Changes: We have removed the definition of “Indian” and added definitions for “Native American” and “Native American language.”

    Comments: One commenter suggested that we use the term “Tribal organization” instead of “Indian organization” because “Tribal organization” is the term used in the ESEA.

    Discussion: While the term “Tribal organization” is used under several ESEA programs, the term is not defined in section 8101 of the ESEA, which provides general definitions that apply to programs authorized under the ESEA. The term “Indian organization” is used in the authorizing statute for the Department's Indian Education program (20 U.S.C. 7401-7492) and defined in the Department's regulations implementing the Indian Education program at 34 CFR 263.20. We think it is important to maintain consistency with the Indian Education program.

    Changes: None.

    Selection Criteria

    Comments: One commenter suggested that we revise Selection Criterion (b)—Contribution in assisting educationally disadvantaged students to enable the Department to assess better the extent to which an applicant would effectively support students with disabilities. Specifically, the commenter suggested that we add a selection factor focused on attendance rates and outcomes for educationally disadvantaged students, including students with disabilities and English learners, and revise the existing selection factors to focus on effective instructional strategies for educationally disadvantaged students.

    Discussion: Two major purposes of the CSP are to expand educational opportunities for educationally disadvantaged students and to assist such students in meeting State academic content and performance standards. As written in the NPP, this selection criterion would enable the Department to evaluate the quality of an application with respect to achieving these two objectives. While educationally disadvantaged students include students with disabilities, we agree with the commenter that an emphasis should be placed on students with disabilities and English learners because enrollment of such students in charter schools tends to be lower than enrollment of such students in neighboring traditional public schools. Therefore, we are revising the selection criterion to emphasize students with disabilities and English learners.

    Changes: We have revised two selection factors in Selection Criterion (b) to sharpen the criterion's focus on serving educationally disadvantaged students. We also have revised the title of the criterion to clarify the focus on the significance of the contribution in assisting educationally disadvantaged students.

    Final Priorities Priority 1—Promoting Diversity

    Under this priority, applicants must propose to replicate or expand high-quality charter schools that have an intentional focus on recruiting students from racially and socioeconomically diverse backgrounds and maintaining racially and socioeconomically diverse student bodies in those charter schools, consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws.

    Priority 2—Reopening Academically Poor-Performing Public Schools as Charter Schools

    Under this priority, applicants must—

    (i) Demonstrate past success working with one or more academically poor-performing public schools or schools that previously were designated as persistently lowest-achieving schools or priority schools under the former School Improvement Grant program or in States that exercised ESEA flexibility, respectively, under the ESEA, as amended by the No Child Left Behind Act of 2001; and

    (ii) Propose to use grant funds under this program to reopen one or more academically poor-performing public schools as charter schools during the project period by—

    (A) Replicating one or more high-quality charter schools based on a successful charter school model for which the applicant has provided evidence of success; and

    (B) Targeting a demographically similar student population in the replicated charter schools as was served by the academically poor-performing public schools, consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws.

    Priority 3—High School Students

    Under this priority, applicants must propose to—

    (i) Replicate or expand high-quality charter schools to serve high school students, including educationally disadvantaged students;

    (ii) Prepare students, including educationally disadvantaged students, in those schools for enrollment in postsecondary education institutions through activities such as, but not limited to, accelerated learning programs (including Advanced Placement and International Baccalaureate courses and programs, dual or concurrent enrollment programs, and early college high schools), college counseling, career and technical education programs, career counseling, internships, work-based learning programs (such as apprenticeships), assisting students in the college admissions and financial aid application processes, and preparing students to take standardized college admissions tests;

    (iii) Provide support for students, including educationally disadvantaged students, who graduate from those schools and enroll in postsecondary education institutions in persisting in, and attaining a degree or certificate from, such institutions, through activities such as, but not limited to, mentorships, ongoing assistance with the financial aid application process, and establishing or strengthening peer support systems for such students attending the same institution; and

    (iv) Propose one or more project-specific performance measures, including aligned leading indicators or other interim milestones, that will provide valid and reliable information about the applicant's progress in preparing students, including educationally disadvantaged students, for enrollment in postsecondary education institutions and in supporting those students in persisting in and attaining a degree or certificate from such institutions. An applicant addressing this priority and receiving a CMO grant must provide data that are responsive to the measure(s), including performance targets, in its annual performance reports to the Department.

    (v) For purposes of this priority, postsecondary education institutions include institutions of higher education, as defined in section 8101(29) of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act, and one-year training programs that meet the requirements of section 101(b)(1) of the HEA.

    Priority 4—Low-Income Demographic

    Under this priority, applicants must demonstrate one of the following—

    (i) That at least 40 percent of the students across all of the charter schools the applicant operates or manages are individuals from low-income families, and that the applicant will maintain the same, or a substantially similar, percentage of such students across all of its charter schools during the grant period;

    (ii) That at least 50 percent of the students across all of the charter schools the applicant operates or manages are individuals from low-income families, and that the applicant will maintain the same, or a substantially similar, percentage of such students across all of its charter schools during the grant period; or

    (iii) That at least 60 percent of the students across all of the charter schools the applicant operates or manages are individuals from low-income families, and that the applicant will maintain the same, or a substantially similar, percentage of such students across all of its charter schools during the grant period.

    Priority 5—Number of Charter Schools Operated or Managed by the Eligible Applicant

    Under this priority, applicants must demonstrate one of the following—

    (i) That they currently operate or manage two to five charter schools;

    (ii) That they currently operate or manage six to 20 charter schools; or

    (iii) That they currently operate or manage 21 or more charter schools.

    Priority 6—Rural Community

    Under this priority, applicants must propose to replicate or expand one or more high-quality charter schools in—

    (i) A rural community; or

    (ii) A community that is not a rural community.

    Priority 7—Replicating or Expanding High-Quality Charter Schools To Serve Native American Students

    Under this priority, applicants must—

    (i) Propose to replicate or expand one or more high-quality charter schools that—

    (A) Utilize targeted outreach and recruitment in order to serve a high proportion of Native American students, consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws;

    (B) Have a mission and focus that will address the unique educational needs of Native American students, such as through the use of instructional programs and teaching methods that reflect and preserve Native American language, culture, and history; and

    (C) Have a governing board with a substantial percentage of members who are members of Indian Tribes or Indian organizations located within the area to be served by the replicated or expanded charter school;

    (ii) Submit a letter of support from at least one Indian Tribe or Indian organization located within the area to be served by the replicated or expanded charter school; and

    (iii) Meaningfully collaborate with the Indian Tribe(s) or Indian organization(s) from which the applicant has received a letter of support in a timely, active, and ongoing manner with respect to the development and implementation of the educational program at the charter school.

    Types of Priorities

    When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register. The effect of each type of priority follows:

    Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

    Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

    Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

    Final Requirements

    Applicants for funds under this program must meet one or more of the following requirements—

    (a) Demonstrate that the applicant currently operates or manages more than one charter school. For purposes of this program, multiple charter schools are considered to be separate schools if each school—

    (i) Meets each element of the definition of “charter school” under section 4310(2) of the ESEA; and

    (ii) Is treated as a separate school by its authorized public chartering agency and the State in which the charter school is located, including for purposes of accountability and reporting under title I, part A of the ESEA.

    (b) Provide information regarding any compliance issues, and how they were resolved, for any charter schools operated or managed by the applicant that have—

    (i) Closed;

    (ii) Had their charter(s) revoked due to problems with statutory or regulatory compliance, including compliance with sections 4310(2)(G) and (J) of the ESEA; or

    (iii) Had their affiliation with the applicant revoked or terminated, including through voluntary disaffiliation.

    (c) Provide a complete logic model (as defined in 34 CFR 77.1) for the grant project. The logic model must include the applicant's objectives for replicating or expanding one or more high-quality charter schools with funding under this program, including the number of high-quality charter schools the applicant proposes to replicate or expand.

    (d) If the applicant currently operates, or is proposing to replicate or expand, a single-sex charter school or coeducational charter school that provides a single-sex class or extracurricular activity (collectively referred to as a “single-sex educational program”), demonstrate that the existing or proposed single-sex educational program is in compliance with title IX of the Education Amendments of 1972 (20 U.S.C. 1681, et seq.) and its implementing regulations, including 34 CFR 106.34.

    (e) Describe how the applicant currently operates or manages the high-quality charter schools for which it has presented evidence of success and how the proposed replicated or expanded charter schools will be operated or managed, including the legal relationship between the applicant and its schools. If a legal entity other than the applicant has entered or will enter into a performance contract with an authorized public chartering agency to operate or manage one or more of the applicant's schools, the applicant must also describe its relationship with that entity.

    (f) Describe how the applicant will solicit and consider input from parents and other members of the community on the implementation and operation of each replicated or expanded charter school, including in the area of school governance.

    (g) Describe the lottery and enrollment procedures that will be used for each replicated or expanded charter school if more students apply for admission than can be accommodated, including how any proposed weighted lottery complies with section 4303(c)(3)(A) of the ESEA.

    (h) Describe how the applicant will ensure that all eligible children with disabilities receive a free appropriate public education in accordance with part B of the IDEA.

    (i) Describe how the proposed project will assist educationally disadvantaged students in mastering challenging State academic standards.

    (j) Provide a budget narrative, aligned with the activities, target grant project outputs, and outcomes described in the logic model, that outlines how grant funds will be expended to carry out planned activities.

    (k) Provide the applicant's most recent independently audited financial statements prepared in accordance with generally accepted accounting principles.

    (l) Describe the applicant's policies and procedures to assist students enrolled in a charter school that closes or loses its charter to attend other high-quality schools.

    (m) Provide—

    (i) A request and justification for waivers of any Federal statutory or regulatory provisions that the applicant believes are necessary for the successful operation of the charter schools to be replicated or expanded; and

    (ii) A description of any State or local rules, generally applicable to public schools, that will be waived, or otherwise not apply, to such schools.

    Final Definitions

    Academically poor-performing public school means:

    (a) A school identified by the State for comprehensive support and improvement under section 1111(c)(4)(D)(i) of the ESEA; or

    (b) A public school otherwise identified by the State or, in the case of a charter school, its authorized public chartering agency, as similarly academically poor-performing.

    Educationally disadvantaged student means a student in one or more of the categories described in section 1115(c)(2) of the ESEA, which include children who are economically disadvantaged, students who are children with disabilities, migrant students, English learners, neglected or delinquent students, homeless students, and students who are in foster care.

    High proportion, when used to refer to Native American students, means a fact-specific, case-by-case determination based upon the unique circumstances of a particular charter school or proposed charter school. The Secretary considers “high proportion” to include a majority of Native American students. In addition, the Secretary may determine that less than a majority of Native American students constitutes a “high proportion” based on the unique circumstances of a particular charter school or proposed charter school, as described in the application for funds.

    Indian organization means an organization that—

    (1) Is legally established—

    (i) By Tribal or inter-Tribal charter or in accordance with State or Tribal law; and

    (ii) With appropriate constitution, by-laws, or articles of incorporation;

    (2) Includes in its purposes the promotion of the education of Indians;

    (3) Is controlled by a governing board, the majority of which is Indian;

    (4) If located on an Indian reservation, operates with the sanction or by charter of the governing body of that reservation;

    (5) Is neither an organization or subdivision of, nor under the direct control of, any institution of higher education; and

    (6) Is not an agency of State or local government.

    Indian Tribe means a federally-recognized or a State-recognized Tribe.

    Individual from a low-income family means an individual who is determined by a State educational agency or local educational agency to be a child from a low-income family on the basis of (a) data used by the Secretary to determine allocations under section 1124 of the ESEA, (b) data on children eligible for free or reduced-price lunches under the Richard B. Russell National School Lunch Act, (c) data on children in families receiving assistance under part A of title IV of the Social Security Act, (d) data on children eligible to receive medical assistance under the Medicaid program under title XIX of the Social Security Act, or (e) an alternate method that combines or extrapolates from the data in items (a) through (d) of this definition.

    Institution of higher education means an educational institution in any State that—

    (i) Admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate, or persons who meet the requirements of section 484(d)of the HEA;

    (ii) Is legally authorized within such State to provide a program of education beyond secondary education;

    (iii) Provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree, or awards a degree that is acceptable for admission to a graduate or professional degree program, subject to review and approval by the Secretary;

    (iv) Is a public or other nonprofit institution; and

    (v) Is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

    Native American means an Indian (including an Alaska Native), Native Hawaiian, or Native American Pacific Islander.

    Native American language means the historical, traditional languages spoken by Native Americans.

    Rural community means a community that is served by a local educational agency that is eligible to apply for funds under the Small Rural School Achievement (SRSA) program or the Rural and Low-Income School (RLIS) program authorized under title V, part B of the ESEA. Applicants may determine whether a particular local educational agency is eligible for these programs by referring to information on the following Department websites. For the SRSA program: www2.ed.gov/programs/reapsrsa/eligible16/index.html. For the RLIS program: www2.ed.gov/programs/reaprlisp/eligibility.html.

    Final Selection Criteria

    (a) Quality of the eligible applicant. In determining the quality of the eligible applicant, the Secretary considers one or more of the following factors:

    (i) The extent to which the academic achievement results (including annual student performance on statewide assessments, annual student attendance and retention rates, and, where applicable and available, student academic growth, high school graduation rates, college attendance rates, and college persistence rates) for educationally disadvantaged students served by the charter schools operated or managed by the applicant have exceeded the average academic achievement results for such students served by other public schools in the State.

    (ii) The extent to which one or more charter schools operated or managed by the applicant have closed; have had a charter revoked due to noncompliance with statutory or regulatory requirements; or have had their affiliation with the applicant revoked or terminated, including through voluntary disaffiliation.

    (iii) The extent to which one or more charter schools operated or managed by the applicant have had any significant issues in the area of financial or operational management or student safety, or have otherwise experienced significant problems with statutory or regulatory compliance that could lead to revocation of the school's charter.

    (b) Significance of contribution in assisting educationally disadvantaged students.

    In determining the significance of the contribution the proposed project will make in expanding educational opportunities for educationally disadvantaged students and enabling those students to meet challenging State academic standards, the Secretary considers one or more of the following factors:

    (i) The extent to which charter schools currently operated or managed by the applicant serve educationally disadvantaged students, particularly students with disabilities and English learners, at rates comparable to surrounding public schools or, in the case of virtual charter schools, at rates comparable to public schools in the State.

    (ii) The quality of the plan to ensure that the charter schools the applicant proposes to replicate or expand will recruit, enroll, and effectively serve educationally disadvantaged students, particularly students with disabilities and English learners.

    (c) Quality of the evaluation plan for the proposed project.

    In determining the quality of the evaluation plan for the proposed project, the Secretary considers the extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the proposed project, as described in the applicant's logic model (as defined in 34 CFR 77.1), and that will produce quantitative and qualitative data by the end of the grant period.

    (d) Quality of the management plan.

    In determining the quality of the applicant's management plan, the Secretary considers the ability of the applicant to sustain the operation of the replicated or expanded charter schools after the grant has ended, as demonstrated by the multi-year financial and operating model required under section 4305(b)(3)(B)(iii) of the ESEA.

    This document does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

    Note: This document does not solicit applications. In any year in which we choose to use one or more of these priorities, requirements, definitions, and selection criteria, we invite applications through a notice in the Federal Register.

    Executive Orders 12866, 13563, and 13771 Regulatory Impact Analysis

    Under Executive Order 12866, it must be determined whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

    (1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);

    (2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

    (3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

    (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

    This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

    Under Executive Order 13771, for each new rule that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866, and that imposes total costs greater than zero, it must identify two deregulatory actions. For Fiscal Year 2019, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. Because the proposed regulatory action is not significant, the requirements of Executive Order 13771 do not apply.

    We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

    (1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

    (2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

    (3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

    (4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

    (5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

    Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

    We are issuing these final priorities, requirements, definitions, and selection criteria only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

    We also have determined that this regulatory action does not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.

    In accordance with these Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

    Discussion of Potential Costs and Benefits

    The Department believes that this regulatory action does not impose significant costs on eligible entities, whose participation in this program is voluntary. While this action does impose some requirements on participating CMOs that are cost-bearing, the Department expects that applicants for this program will include in their proposed budgets a request for funds to support compliance with such cost-bearing requirements. Therefore, costs associated with meeting these requirements are, in the Department's estimation, minimal.

    This regulatory action strengthens accountability for the use of Federal funds by helping to ensure that the Department selects for CSP grants the CMOs that are most capable of expanding the number of high-quality charter schools available to our Nation's students, consistent with a major purpose of the CSP as described in section 4301(3) of the ESEA. The Department believes that these benefits to the Federal government and to State educational agencies outweigh the costs associated with this action.

    Regulatory Alternatives Considered

    The Department believes that the priorities, requirements, definitions, and selection criteria are needed to administer the program effectively. As an alternative to the selection criteria announced in this document, the Department could choose from among the selection criteria authorized for CSP grants to CMOs in section 4305(b) of the ESEA (20 U.S.C. 7221c) and the general selection criteria in 34 CFR 75.210. We do not believe that these criteria provide a sufficient basis on which to evaluate the quality of applications. In particular, the criteria do not sufficiently enable the Department to assess an applicant's past performance with respect to the operation of high-quality charter schools or with respect to compliance issues that the applicant has encountered.

    We note that several of the final priorities, requirements, definitions, and selection criteria are based on priorities, requirements, definitions, selection criteria, and other provisions in the authorizing statute for this program.

    Paperwork Reduction Act of 1995

    The final priorities, requirements, and selection criteria contain information collection requirements that are approved by OMB under OMB control number 1894-0006; the final priorities, requirements, and selection criteria do not affect the currently approved data collection.

    Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

    This document provides early notification of our specific plans and actions for this program.

    Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT.

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. You may access the official edition of the Federal Register and the Code of Federal Regulations via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of the Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

    You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Dated: November 27, 2018. James C. Blew, Acting Assistant Deputy Secretary for Innovation and Improvement.
    [FR Doc. 2018-26095 Filed 11-29-18; 8:45 am] BILLING CODE 4000-01-P
    LIBRARY OF CONGRESS Copyright Office 37 CFR Parts 201 and 202 [Docket Nos. 2018-2, 2018-3] Group Registration of Newsletters and Serials AGENCY:

    U.S. Copyright Office, Library of Congress.

    ACTION:

    Final rule.

    SUMMARY:

    The U.S. Copyright Office is amending its regulations governing the group registration options for newsletters and serials. With respect to group newsletters, the final rule amends the definition of “newsletter,” eliminating the requirement that each issue must be a work made for hire, and the provision stating that group newsletter claims must be received within three months after publication. Under the final rule, newsletter publishers now should register their issues with the online application and upload a digital copy of each issue through the electronic registration system instead of submitting them in a physical form. With respect to group serials, the final rule clarifies that serials governed by the rule generally must be published at intervals of a week or longer, and that the publication dates provided in the application need not match the dates appearing on the issues themselves. In addition, the rule phases out the paper application for group serials and the submission of physical copies. Beginning one year after the rule goes into effect, serial publishers will be required to use the online application for group serials and to upload a digital copy of each issue, rather than submitting them in a physical form. The final rule updates the regulations for both newsletters and serials by confirming that publishers do not need to provide the Library of Congress with complimentary subscriptions to or microfilm of each issue as a condition for registering their works with the Office, but newsletter and serial issues that are submitted for purposes of registration will no longer satisfy the mandatory deposit requirement. Publishers will be expected to separately provide the Library with two complimentary subscriptions if the newsletter or serial is published in the United States in a physical format (unless the publisher is informed that the publication is not needed for the Library's collections). If the newsletter or serial is published solely in electronic form, the publisher will remain exempt from mandatory deposit unless the Office issues a formal demand for copies of that publication.

    DATES:

    Effective date: December 31, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice, by telephone at 202-707-8040, or by email at [email protected] or [email protected]; or Cindy Paige Abramson, Assistant General Counsel, by telephone at 202-707-0676, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    On May 17, 2018, the Copyright Office (the “Office”) published two notices of proposed rulemaking (“NPRMs”) setting forth proposed amendments to the regulations governing the group registration options for newsletters and serials. 83 FR 22902 (May 17, 2018); 83 FR 22896 (May 17, 2018). The Office did not receive any comments in response to the NPRM on group newsletters. In response to the NPRM on group serials, the Office received comments from the Copyright Alliance and one individual.1 Having reviewed and carefully considered these comments, the Office is issuing a final rule that is nearly identical to the rule proposed in the NPRM on group newsletters, and substantially similar to the rule proposed in the NPRM on group serials; in both cases, the Office has made a few modifications reflecting the concerns raised by the comments regarding online registration and electronic submission of deposits regarding group registration of serials, which are discussed in more detail below.2

    1 The comments can be found on the Copyright Office's website at https://www.copyright.gov/rulemaking/group-serials/.

    2 The final rule also includes a few technical amendments. The rule has been revised to account for a recent amendment that was made by the final rule on group registration of newspapers. See 83 FR 25375 (June 1, 2018). The rule removes cross-references to the prior regulations on newsletters and serials. See 37 CFR 202.4(l), 202.6(e)(1). It also corrects an error made by the Federal Register in publishing the regulation on supplementary registration. See 82 FR 27424 (June 15, 2017). Specifically, the rule removes the term “SE.” (which is an abbreviation for “southeast”) and replaces it with the term “SE” (which is the correct abbreviation for the term “serials”). See 37 CFR 202.6(e)(1).

    Topics Involving Solely the Group Registration Option for Newsletters

    The final rule revises current practices for the group registration option for newsletters. It clarifies and expands the category of works eligible for this option by amending the definition of what constitutes a “newsletter” and by making clear that newsletters need not be collective works. It also eliminates the work-made-for-hire requirement and the requirement that the issues must be submitted within three months after publication.

    The final rule also phases out the paper application (known as Form G/DN) and generally requires applicants to register their newsletters using the designated online application. In addition, it requires applicants to upload their newsletters in a digital format through the electronic registration system. If an applicant submits Form G/DN after the effective date of the final rule, the Office will refuse to register the claim. Likewise, the Office will refuse registration if an applicant submits physical copies of a newsletter, such as printed copies or photocopies, or digital copies that have been saved onto a flash drive, disc, or other physical storage medium.

    Topics Involving Solely the Group Registration Options for Serials

    The final rule codifies, clarifies, and revises current practices for the group registration option for serials.

    First, the final rule requires that each claim must include at least two issues, that each issue must be a work made for hire, and that the author and copyright claimant for each issue must be the same person or organization.

    Second, the final rule eliminates the current requirement that each issue must have been created no more than one year prior to publication.

    Third, the final rule requires that applicants may only register serials that are “generally . . . published at intervals of a week or longer” (e.g., weekly, every two weeks, monthly), and requires that the issues be “published in a given three month period” within “the same calendar year.” The proposed rule reflected the current practice that issues must be published at intervals of one week or more, however, the Copyright Alliance noted that publishers sometimes distribute two issues during the same week, such as when a “special” issue is published in addition to a regularly scheduled issue.3 To accommodate these practices, the final rule clarifies that a serial must “generally” be published at intervals of one week or more. The Copyright Alliance also explained that issues may be published in one month but contain an issue date for the following month and, in the case of issues published in December, may contain the issue date for January of the following year.4 Based on this information, the final rule eliminates the requirements that the issues themselves must bear issue dates reflecting the same three-month period and the same calendar year. Instead, applicants will be required to provide a publication date for each issue in the group.

    3 Copyright Alliance Comment at 2-3.

    4 Copyright Alliance Comment at 2.

    Fourth, the final rule requires that each issue must be an “all-new” collective work that has not been previously published, and each issue must be fixed and distributed as a discrete, self-contained collective work. The Copyright Alliance expressed concern that this requirement may prevent publishers from registering “enhanced, digital issues which may contain content hosted on and linked to another platform such as videos and blogs that allow the reader to manipulate or interact with the issue.” 5 The Office does not believe a change to the language of the rule is necessary. If a particular issue contains enhanced content, such as an embedded video, the registration will cover that material if it is included within the deposit and if the examiner can access and view that material in the context where it appears within the actual serial.6 Any additional content that appears on the publisher's website—but does not appear within the issues themselves—must be registered separately.

    5 Copyright Alliance Comment at 2.

    6See U.S. Copyright Office, Compendium of U.S. Copyright Office Practices, sec. 1508.1 (3d ed. 2017) (noting that the Office “must be able to perceive the entire content of the work, including the context where each element appears within the work as a whole”).

    Fifth, the final rule generally requires applicants to register their issues using the online application designated for group serial claims, and eliminates the paper application known as Form SE/Group.7

    7 An individual filed a public comment supporting the requirement for applicants to file electronically and stated that he believed this would promote efficiency, reduce the burden on applicants, and encourage broader participation in the registration system. Kotelnikov Comment at 1. The Copyright Alliance also agreed that eliminating the paper form and requiring publishers to use the online application will “facilitate economy and efficiency.” Copyright Alliance Comment at 3.

    Finally, the final rule amends the deposit requirements by requiring applicants to upload their issues in digital form through the electronic registration system, instead of submitting them in a physical form, absent exceptional cases. While the Copyright Alliance agreed that requiring publishers to upload a digital copy of each issue “will generally `increase the efficiency of the group registration process,' ” it questioned whether the electronic registration system is capable of handling large digital files, whether the process of uploading these files may be burdensome for some publishers, and whether the Office has implemented and deployed robust security measures to protect its digital deposits.8 The Copyright Alliance suggested that the Office should gradually phase out the paper application and continue to accept physical deposits “[u]ntil the registration system is able to fully accommodate the digital deposit process.” 9 After carefully reviewing these comments, the Office has decided to adopt the online digital deposit requirement proposed in the NPRM, but to give publishers time to adjust to this change, the Office will continue to accept physical deposits and paper applications for another twelve months. Generally, if a publisher submits a Form SE/Group or submits a physical deposit after the phase-out period has expired, the Office will refuse to register the claim.

    8 Copyright Alliance Comment at 3.

    9 Copyright Alliance Comment at 3.

    The Office has concluded that the other concerns raised by the Copyright Alliance about digital deposits were already adequately addressed by the proposed rule. The Office has accepted digital deposits from serial publishers since September 14, 2012, and is not aware of any technical issues that have prevented them from using the upload feature. The current registration system will accept any digital deposit, as long as it is submitted in an acceptable file format and does not exceed 500MB. And as noted in the proposed rule, the files may be compressed to comply with this limit, if necessary.

    The Office first introduced its electronic registration system more than a decade ago, and as the Copyright Alliance acknowledged, the Office has not experienced any issues concerning the security of its digital deposits.10 The Office utilizes a multi-level security design to ensure the confidentiality and integrity of the files that are stored within this system. The system is certified to operate at the moderate security level, as defined by the FIPS 200 and SP 800-53 standards published by the National Institute of Standards and Technology.11 The entire system operates on hardware and software that is dedicated to this system and it does not share storage resources with other systems. Strict access controls have been placed throughout the system that enforce the principle of “least privilege,” meaning that each type of user may access only what is needed for that particular role. The system is also protected by multiple levels of network firewalls and other network-based security, such as anti-malware protection, and it is continuously monitored to ensure that these security controls remain effective.

    10 Copyright Alliance Comment at 3.

    11See NIST, Federal Information Processing Standards Publication 200, Minimum Security Requirements for Federal Information and Information Systems, and NIST, Special Publication 800-53, Recommended Security Controls for Federal Information Systems, available at https://csrc.nist.gov/publications/.

    In addition to these technical measures, the Office's regulations restrict the parties who may obtain access to its digital registration deposits. Briefly stated, the Office will provide a copy of a registration deposit only if it receives (i) written authorization from the copyright claimant or the owner of the exclusive rights in the work, (ii) a written request from an attorney representing a plaintiff or defendant in litigation involving that work, or (iii) a court order directing the Office to produce a copy of that work for use in a legal proceeding.12

    12See 37 CFR 201.2(d)(2).

    Similarly, regulations restrict how parties may access digital registration deposits that have been transferred to the Library of Congress. Specifically, the Library currently provides access to the digital registration deposits that it receives through the group registration option for newspaper issues, subject to certain conditions specified in the regulations.13 But the Library currently does not provide public access to digital registration deposits for any other type of work, including deposits submitted under the group registration option for serial issues. As noted in the NPRM on group newspapers, the Library would like to expand the regulation to include other types of digital registration deposits, but before doing so, the Office will conduct separate rulemakings to provide notice and seek comment from the public.14

    13See 37 CFR 202.18 (limiting access to electronic works to “two Library of Congress authorized users via a secure server over a secure network that serves Library of Congress premises”).

    14See 82 FR at 51377.

    Topics Involving Both the Group Registration Option for Newsletters and the Group Registration Option for Serials

    The final rule makes four changes that modify the regulations governing both newsletters and serials.

    First, the rule memorializes the Office's longstanding position regarding the scope of a group registration. It confirms that a registration for a group of newsletter or serial issues covers each issue in the group. It also confirms that if each issue is a collective work, the registration will cover the articles, photographs, illustrations, or other contributions appearing within those issues if they are fully owned by the copyright claimant and if they were first published in those issues.

    Second, the rule confirms that newsletter and serial publishers will no longer be required to provide the Library of Congress with complimentary subscriptions to or microfilm copies of their issues as a condition for seeking a group registration under section 408(c)(1) of the Copyright Act. The Copyright Alliance applauded the elimination of this requirement.15 But newsletter and serial issues that are submitted to the Office for purposes of registration will no longer satisfy the mandatory deposit requirement set forth in section 407 of the Copyright Act.16

    15 Copyright Alliance Comment at 1.

    16 The final rule does not apply to newspapers; deposits submitted in compliance with group registration of newspapers also satisfy the mandatory deposit requirement. 37 CFR 202.19(d)(2)(x).

    Third, the rule provides guidance on how newsletter and serial publishers may comply with the mandatory deposit requirement. If a newsletter or serial is published in the United States in a physical format, the publisher will be expected to provide the Library with two complimentary subscriptions to physical copies of that publication, unless the publisher is notified that the newsletter or serial is not needed for the Library's collections. The rule does not change for newsletters or serials published solely in electronic format; in that case, the publisher will not be expected to provide copies of that publication unless the Office issues a formal demand for that newsletter or serial under section 202.24 of the regulations.

    Fourth, the final rule includes provisions to address the Copyright Alliance's concerns about the potential burdens of electronic filing and digital deposit on applicants transitioning from traditional print to digital media.17 These provisions permit the Office to waive the online filing requirement in “an exceptional case” and “subject to such conditions as the Associate Register and Director of the Office of Registration Policy and Practice may impose on the applicant.” Registrants who do not have internet access or are unable to use the online applications may contact the Office, and the Office will review the specific details of their cases and determine their eligibility. The rule also provides that applicants may request special relief under § 202.20(d) if they are unable to comply with the deposit requirements for these group options. These provisions are consistent with recently amended rules for group registration of contributions to periodicals and of photographs (published and unpublished) and for supplemental registration.18

    17 Copyright Alliance Comment at 3.

    18 37 CFR 202.4(g)(9), (h)(11), (i)(11), 202.6(e)(7); see also 82 FR 47415, 47419 (Oct. 12, 2017) (proposing same for group registration of unpublished works).

    The Office plans to offer several resources for newsletter and serial publishers that should ease the transition to these new requirements, including an updated version of the Compendium of U.S. Copyright Office Practices, Third Edition and updated Circulars that discuss these group registration options and the mandatory deposit requirements for these types of works. The Office will also update the onscreen instructions and help text that accompanies the online applications for each type of claim, and add warnings to the corresponding paper applications to notify applicants that Forms G/DN and SE/Group will soon be phased out.

    List of Subjects 37 CFR Part 201

    Copyright.

    37 CFR Part 202

    Copyright.

    Final Regulations

    For the reasons set forth in the preamble, the Copyright Office amends 37 CFR parts 201 and 202 as follows:

    PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 continues to read as follows: Authority:

    17 U.S.C. 702.

    2. Amend § 201.1 by revising paragraph (c)(6) to read as follows:
    § 201.1 Communication with the Copyright Office.

    (c) * * *

    (6) Mandatory Deposit Copies. Mandatory deposit copies of published works submitted for the Library of Congress under 17 U.S.C. 407 and § 202.19 of this chapter (including complimentary subscriptions to serial publications), and newspaper microfilm copies submitted under § 202.4(e) of this chapter, should be addressed to: Library of Congress, U.S. Copyright Office, Attn: 407 Deposits, 101 Independence Avenue SE, Washington, DC 20559-6600.

    3. Amend § 201.3 by revising paragraph (c)(6) to read as follows:
    § 201.3 Fees for registration, recordation, and related services, special services, and services performed by the Licensing Division.

    (c) * * *

    Registration, recordation and related services Fees
  • ($)
  • *         *         *         *         *         *         * (6) Registration of a claim in a group of serials (per issue, minimum two issues) 25 *         *         *         *         *         *         *
    PART 202—PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT 4. The authority citation for part 202 continues to read as follows: Authority:

    17 U.S.C. 408(f), 702.

    § 202.3 [Amended]
    5. Amend § 202.3 by removing and reserving paragraphs (b)(6) and (9). 6. Amend § 202.4 as follows: a. Add paragraphs (d) and (f). b. In paragraph (l) remove “through (7), or (9)”. c. Revise the first sentence of paragraph (n).

    The additions and revision read as follows:

    § 202.4 Group registration.

    (d) Group registration of serials. Pursuant to the authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights has determined that a group of serial issues may be registered with one application, the required deposit, and the filing fee required by § 201.3(c) of this chapter, if the following conditions are met:

    (1) Eligible works. (i) All the issues in the group must be serials.

    (ii) The group must include at least two issues.

    (iii) Each issue in the group must be an all-new collective work that has not been previously published, each issue must be fixed and distributed as a discrete, self-contained collective work, and the claim in each issue must be limited to the collective work.

    (iv) Each issue in the group must be a work made for hire, and the author and claimant for each issue must be the same person or organization.

    (v) The serial generally must be published at intervals of a week or longer. All of the issues must be published within three months, under the same continuing title, within the same calendar year, and the applicant must specify the date of publication for each issue in the group.

    (2) Application. The applicant may complete and submit the online application designated for a group of serial issues. Alternatively, the applicant may complete and submit a paper application using Form SE/Group, provided that the application is received on or before December 30, 2019. The application may be submitted by any of the parties listed in § 202.3(c)(1).

    (3) Deposit. The applicant must submit one complete copy of each issue that is included in the group. Copies submitted under this paragraph will be considered solely for the purpose of registration under 17 U.S.C. 408, and will not satisfy the mandatory deposit requirement under 17 U.S.C. 407.

    (i) The issues may be submitted in digital form if the following requirements have been met. Each issue must be contained in a separate electronic file. The applicant must use the file-naming convention and submit digital files in accordance with instructions specified on the Copyright Office's website. The files must be submitted in Portable Document Format (PDF), they must be assembled in an orderly form, and they must be uploaded to the electronic registration system as individual electronic files (i.e., not .zip files). The files must be viewable and searchable, contain embedded fonts, and be free from any access restrictions (such as those implemented through digital rights management) that prevent the viewing and examination of the work. The file size for each uploaded file must not exceed 500 megabytes, but files may be compressed to comply with this requirement.

    (ii) Alternatively, the applicant may submit a physical copy of each issue, provided that the deposit is received on or before December 30, 2019. If the claim is submitted with an online application, the copies must be accompanied by the required shipping slip generated by the electronic registration system, the shipping slip must be attached to one of the copies, the copies and the shipping slip must be included in the same package, and the package must be sent to the address specified on the shipping slip.

    (4) Exceptional cases. In an exceptional case, the Copyright Office may waive the online filing requirement set forth in paragraph (d)(2) of this section or may grant special relief from the deposit requirement under § 202.20(d), subject to such conditions as the Associate Register of Copyrights and Director of the Office of Registration Policy and Practice may impose on the applicant.

    (f) Group registration of newsletters. Pursuant to the authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights has determined that a group of newsletter issues may be registered with one application, the required deposit, and the filing fee required by § 201.3(c) of this chapter, if the following conditions are met:

    (1) Eligible works. (i) All the issues in the group must be newsletters. For purposes of this section, a newsletter is a serial that is published and distributed by mail, electronic media, or other medium, including paper, email, or download. Publication must usually occur at least two days each week and the newsletter must contain news or information that is chiefly of interest to a special group, such as trade and professional associations, colleges, schools, or churches. Newsletters are typically distributed through subscriptions, but are not distributed through newsstands or other retail outlets.

    (ii) The group must include at least two issues.

    (iii) Each issue in the group must be an all-new issue or an all-new collective work that has not been previously published, and each issue must be fixed and distributed as a discrete, self-contained work.

    (iv) The author and claimant for each issue must be the same person or organization.

    (v) All the issues in the group must be published under the same continuing title, they must be published within the same calendar month and bear issue dates within that month, and the applicant must identify the earliest and latest date that the issues were published during that month.

    (2) Application. The applicant must complete and submit the online application designated for a group of newsletter issues. The application may be submitted by any of the parties listed in § 202.3(c)(1).

    (3) Deposit. The applicant must submit one complete copy of each issue that is included in the group. The issues must be submitted in digital form, and each issue must be contained in a separate electronic file. The applicant must use the file-naming convention and submit digital files in accordance with instructions specified on the Copyright Office's website. The files must be submitted in Portable Document Format (PDF), they must be assembled in an orderly form, and they must be uploaded to the electronic registration system as individual electronic files (i.e., not .zip files). The files must be viewable and searchable, contain embedded fonts, and be free from any access restrictions (such as those implemented through digital rights management) that prevent the viewing and examination of the work. The file size for each uploaded file must not exceed 500 megabytes, but files may be compressed to comply with this requirement. Copies submitted under this paragraph will be considered solely for the purpose of registration under 17 U.S.C. 408, and will not satisfy the mandatory deposit requirement under 17 U.S.C. 407.

    (4) Exceptional cases. In an exceptional case, the Copyright Office may waive the online filing requirement set forth in paragraph (f)(2) of this section or may grant special relief from the deposit requirement under § 202.20(d), subject to such conditions as the Associate Register of Copyrights and Director of the Office of Registration Policy and Practice may impose on the applicant.

    (n) The scope of a group registration. When the Office issues a group registration under paragraphs (d), (e), or (f) of this section, the registration covers each issue in the group and each issue is registered as a separate work or a separate collective work (as the case may be). * * *

    § 202.6 [Amended]
    7. In § 202.6(e)(1) remove “§ 202.3(b)(6) through (10) or”; and remove “SE.” and add “SE” in its place. 8. Amend § 202.19 by adding paragraph (d)(2)(xi) to read as follows:
    § 202.19 Deposit of published copies or phonorecords for the Library of Congress.

    (d) * * *

    (2) * * *

    (xi) In the case of serials (as defined in § 202.3(b)(1)(v), but excluding newspapers) published in the United States in a physical format, or in both a physical and an electronic format, the copyright owner or the owner of the exclusive right of publication must provide the Library of Congress with two complimentary subscriptions to the serial, unless the Copyright Acquisitions Division informs the owner that the serial is not needed for the Library's collections. Subscription copies must be physically mailed to the Copyright Office, at the address for mandatory deposit copies specified in § 201.1(c) of this chapter, promptly after the publication of each issue, and the subscription(s) must be maintained on an ongoing basis. The owner may cancel the subscription(s) if the serial is no longer published by the owner, if the serial is no longer published in the United States in a physical format, or if the Copyright Acquisitions Division informs the owner that the serial is no longer needed for the Library's collections. In addition, prior to commencing the subscriptions, the owner must send a letter to the Copyright Acquisitions Division at the address specified in § 201.1(b) of this chapter confirming that the owner will provide the requested number of subscriptions for the Library of Congress. The letter must include the name of the publisher, the title of the serial, the International Standard Serial Number (“ISSN”) that has been assigned to the serial (if any), and the issue date and the numerical or chronological designations that appear on the first issue that will be provided under the subscriptions.

    § 202.20 [Amended]
    9. Amend § 202.20 by removing and reserving paragraph (c)(2)(xvii). 10. In Appendix B to Part 202, revise the last sentence of paragraph a. to read as follows: Appendix B to Part 202—“Best Edition” of Published Copyrighted Works for the Collections of the Library of Congress

    a. * * * (For works first published only in a country other than the United States, the law requires the deposit of the work as first published.)

    Dated: November 5, 2018. Karyn A. Temple, Acting Register of Copyrights.

    Approved by:

    Carla D. Hayden, Librarian of Congress.
    [FR Doc. 2018-26091 Filed 11-29-18; 8:45 am] BILLING CODE 1410-30-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2018-0413; FRL-9985-75-Region 9] Revisions to California State Implementation Plan; South Coast Air Quality Management District; Stationary Source Permits AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is finalizing action on a revision to the South Coast Air Quality Management District (SCAQMD or District) portion of the California State Implementation Plan (SIP). We are finalizing a conditional approval of one rule governing issuance of permits for stationary sources, including review and permitting of major sources and major modifications under part D of title I of the Clean Air Act (CAA). Specifically, the revision pertains to SCAQMD Rule 1325—Federal PM 2.5 New Source Review Program.

    DATES:

    This rule will be effective on December 31, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket No. EPA-R09-OAR-2018-0413. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Laura Yannayon, EPA Region 9, (415) 972-3534, [email protected]

    SUPPLEMENTARY INFORMATION:

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

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

    On August 8, 2018 (83 FR 39012), the EPA proposed to conditionally approve the following rule that was submitted for incorporation into the SCAQMD portion of the California SIP.

    Table 1—Submitted Rule Rule No. Rule title Amended Submitted 1325 Federal PM2.5 New Source Review Program 11/4/16 5/8/17

    We proposed a conditional approval of this rule because we determined that, separate from the deficiencies listed in Section II.B of our proposed rulemaking action, the rule met the statutory requirements for SIP revisions as specified in section 110(l) of the CAA, as well as the substantive statutory and regulatory requirements for a nonattainment New Source Review (NSR) permit program as contained in CAA sections 110(a)(2)(C) and 173(a) through (c), and 40 CFR 51.165 that pertain to a PM2.5 nonattainment area classified as Serious. Moreover, we concluded that if the State submits the changes it committed to submit in its July 16, 2018 commitment letter, the identified deficiencies will be cured.

    II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. During this period, we received two comments on the proposed rule. These comments raised issues that are outside the scope of our proposed approval of Rule 1325, including air pollution monitoring in China and India, climate change, and wind and solar power costs and regulations. None of those comments are germane to our evaluation of Rule 1325.

    III. EPA Action

    No comments were submitted that change our assessment that submitted Rule 1325 satisfies the applicable CAA requirements. Therefore, under CAA sections 110(k)(4) and 301(a), and for the reasons set forth in our August 8, 2018 proposed rule, we are finalizing the conditional approval of Rule 1325. This action incorporates Rule 1325 into the federally enforceable SIP and will be codified through revisions to 40 CFR 52.220 (Identification of plan) and 40 CFR 52.248 (Identification of plan—conditional approval).

    If the State meets its commitment to submit the required changes, the revisions to Rule 1325 will remain a part of the SIP until EPA takes final action approving or disapproving the new SIP revisions. However, if the State fails to submit these revisions within the required timeframe, the conditional approval will automatically become a disapproval, and EPA will issue a finding of disapproval. EPA is not required to propose the finding of disapproval.

    In addition, because we are finalizing our proposed action, we are removing the existing Rule 1325 from the SCAQMD portion of the California SIP.

    IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the SCAQMD rule listed in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available electronically through www.regulations.gov and in hard copy at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, New Source Review, Particulate matter, Reporting and recordkeeping requirements.

    Dated: October 11, 2018. Deborah Jordan, Acting Regional Administrator, Region IX.

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

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

    42 U.S.C. 7401 et seq.

    Subpart F—California 2. Section 52.220 is amended by adding paragraphs (c)(458)(i)(A)(2) and (c)(509) to read as follows:
    § 52.220 Identification of plan—in part.

    (c) * * *

    (458) * * *

    (i) * * *

    (A) * * *

    (2) Previously approved on May 1, 2015 in paragraph (c)(458)(i)(A)(1) of this section and now deleted with replacement in paragraph (c)(509)(i)(A)(1), Rule 1325.

    (509) New and amended regulations for the following APCDs were submitted on May 8, 2017 by the Governor's designee.

    (i) Incorporation by reference. (A) South Coast Air Quality Management District.

    (1) Rule 1325, “Federal PM2.5 New Source Review Program” amended on November 4, 2016.

    (2) [Reserved]

    (B) [Reserved]

    (ii) [Reserved]

    3. Section 52.248 is amended by adding paragraph (f) to read as follows:
    § 52.248 Identification of plan—conditional approval.

    (f) The EPA is conditionally approving a California State Implementation Plan (SIP) revision submitted on May 8, 2017, updating Rule 1325—Federal PM2.5 New Source Review Program, for the South Coast Air Quality Management District. The conditional approval is based on a commitment from the State to submit a SIP revision that will correct the identified deficiencies. If the State fails to meet its commitment by December 30, 2019, the conditional approval is treated as a disapproval.

    [FR Doc. 2018-25900 Filed 11-29-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 260, 261, and 262 [EPA-HQ-OLEM-2018-0646; FRL9986-91-OLEM] Safe Management of Recalled Airbags AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Interim final rule with request for comments.

    SUMMARY:

    The Environmental Protection Agency (EPA) is issuing this interim final rule in response to the urgent public health issue posed by recalled Takata airbag inflators still installed in vehicles. With this rule, EPA is facilitating a more expedited removal of defective Takata airbag inflators from vehicles by dealerships, salvage yards and other locations for safe and environmentally sound disposal by exempting the collection of airbag waste from hazardous waste requirements so long as certain conditions are met. The Agency is also seeking comment on this interim final rule.

    DATES:

    This interim final rule is effective on November 30, 2018. Comments must be received on or before January 29, 2019. Under the Paperwork Reduction Act (PRA), comments on the information collection provisions must be received on or before January 29, 2019.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2018-0646, at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Office of Resource Conservation and Recovery, Materials Recovery and Waste Management Division, MC 5304P, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460, Tracy Atagi, at (703) 308-8672, ([email protected]).

    SUPPLEMENTARY INFORMATION:

    Preamble Outline I. General Information II. Statutory Authority III. When will this interim final rule be effective? IV. Background Information A. Regulation of Airbag Modules and Airbag Inflators Under RCRA B. Background on the Takata Inflator Recalls C. Damage Incidents Related to Airbag Inflator Recycling D. Impact of Takata Bankruptcy and the Amended Preservation Order on Management of Takata Inflators V. Rationale for Conditional Exemption for Collection of Airbag Waste VI. Summary of Requirements of the Conditional Exemption for Collection of Airbag Waste A. Applicability of Conditional Exemption B. Limits on Accumulation Times and Quantities at Airbag Waste Handlers C. Packaging, Labeling and Transportation Requirements for Airbag Waste Handlers D. Tracking and Recordkeeping Requirements for Airbag Waste Handlers E. Prohibition on Reuse of Defective Airbag Modules and Airbag Inflators VII. State Authorization VIII. Statutory and Executive Order (E.O.) Reviews I. General Information A. Does this action apply to me?

    This action applies to entities that manage airbag waste (i.e., discarded airbag modules and airbag inflators) that are subject to hazardous waste regulations. The dealerships performing the Takata recall work constitute the majority of the facilities that will be impacted by this rule. These dealerships fall under NAICS code 441: Motor Vehicle and Parts Dealers. EPA estimates that about 15,256 dealerships may be affected by this rule. Other potentially affected entities include those in NAICS code 336: Transportation Equipment Manufacturing, and in NAICS code 562: Waste Management and Remediation Services.

    B. Why is EPA issuing an interim final rule?

    Section 553(b)(B) of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedures are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for issuing this interim final rule without prior proposal and opportunity for comment because such notice and opportunity for comment would be impracticable and contrary to the public interest. Specifically, prompt promulgation of this rule without delay is necessary to protect human health and the environment by facilitating the urgent removal of dangerously defective Takata airbag inflators from vehicles, and by preventing defective Takata airbag inflators from scrap vehicles from being reused, while maintaining protection of human health and the environment during airbag waste collection, storage and disposal.

    In its November 3, 2015 Coordinated Remedy Order, the U.S. Department of Transportation (DOT) National Highway Traffic Safety Administration (NHTSA) found that it was imperative to accelerate the rate of the recalls because “[e]ach airbag inflator with the capacity to rupture, as the recalled Takata inflators do, presents an unreasonable risk of serious injury or death . . . Since the propensity for rupture increases with the age of the inflator, and increases even more when the vehicle has been exposed to consistent long-term HAH [high absolute humidity] conditions, the risk for injurious or lethal rupture increases with each passing day.” 1 This report emphasizes that as the inflators get older, each day that passes brings forth an increased danger. In addition, as noted in a November 15, 2017 report prepared by the Independent Monitor for the Takata Restructuring on The State of the Takata Recalls, “[t]he words `grenade' and `ticking time bomb' accurately convey the lethal potential of these defective inflators.” 2

    1 National Highway Traffic Safety Administration (NHTSA), Coordinated Remedy Order, November 3, 2015, Docket No. NHTSA-2015-0055, paragraph 32. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/nhtsa-coordinatedremedyorder-takata.pdf.

    2 The Independent Monitor of Takata and the Coordinated Remedy Program, The State of the Takata Airbag Recalls, November 15, 2017, page 1, paragraph 1. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/the_state_of_the_takata_airbag_recalls-report_of_the_independent_monitor_112217_v3_tag.pdf.

    Delaying promulgation of this rule through notice and comment procedures would be impracticable and contrary to the public interest because such a delay would further increase the risk of death or serious injury by slowing down the removal of defective Takata airbag inflators from vehicles and impeding the collection of defective airbag inflators from salvage yards and other locations (and increasing the potential for defective airbag inflators in scrap vehicles to be reused). This existing risk has now increased significantly since the date of the 2015 NHTSA report because of recent events that further heighten the urgency to accelerate the recall.

    First, more time has passed since the date of the 2015 NHTSA study, and as noted in that study and reiterated in the 2017 study by the Independent Monitor, each passing day brings forth more danger. The danger is greater today than in 2015 because of the increased age of the inflators.

    Second, with the recent amendment to DOT's Preservation Order on April 12, 2018, and with Takata's restructuring due to bankruptcy finalized on February 21, 2018, vehicle manufacturers no longer have to send recalled inflators to Takata warehouses for long-term storage but may now send them directly for disposal. EPA is encouraging this through today's conditional exemption, since long-term storage of recalled inflators can make the defect more dangerous. These recalled inflators that are sent directly to disposal are not covered by the amended Preservation Order and thus are regulated as hazardous waste, whereas in the past they were not regulated as waste under the original Preservation Order. As a result, many automobile dealers and other entities who continue to replace recalled airbag inflators at the current rate of repair could become subject to additional hazardous waste generator requirements in 40 CFR part 262, which would impose additional regulatory obligations on the dealers' and salvage vendors' management of the inflators. Through our conversations with DOT, the automobile manufacturers, automotive salvage vendors, and other affected stakeholders, EPA has learned that imposing full generator requirements on automobile dealers and salvage vendors who lack the expertise and experience in managing hazardous waste would result in the slowdown, rather than the necessary acceleration, of the recall effort, resulting in even greater harm to human health and the environment.3

    3 EPA 2018. Compilation of Stakeholder Meeting Summaries Regarding RCRA Regulation of Airbag Waste.

    This rule is intended to assist the automobile dealers and other entities in their handling of the airbags, and ensure delivery of the airbags to facilities that can more expertly manage these airbags in order to accelerate the recall. Thus, it is essential that there be no delay in promulgating this rule.

    Third, there have continued to be deaths as recently as 2018 as a result of Takata airbag explosions. On January 1, 2018, there was a death in Malaysia 4 , and before that, on July 13, 2017, a death in Australia 5 as well as another on July 19, 2017 in Florida 6 as a result of defective Takata airbags.

    4Confirmed Rupture of Takata Driver's Airbag Inflator in Malaysia on January 1, 2018 (Jan. 30, 2018), https://www.honda.com.my/corporate/press_release_details/660/Confirmed-Rupture-of-Takata-Driver%E2%80%99s-Airbag-Inflator-in-Malaysia-on-January-1,-2018.

    5Takata Recall: Sydney man was due to replace airbag two days before fatal accident (last updated Sept. 6, 2018), https://www.theguardian.com/world/2018/sep/07/takata-recall-sydney-man-was-due-to-replace-airbag-two-days-before-fatal-accident.

    620th death from faulty Takata airbags reported by Honda (Dec. 20, 2017), https://www.cbsnews.com/news/20th-death-from-faulty-takata-air-bags-reported-by-honda/.

    Finally, with respect to the effective date, EPA finds that it has good cause to make the revisions immediately effective under section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. 553(d), and section 3010(b) of RCRA, 42 U.S.C. 6930(b). Section 553(d) provides in pertinent part that final rules shall not become effective until 30 days after publication in the Federal Register, “except . . . a substantive rule which grants or recognizes an exemption or relieves a restriction . . . or as otherwise provided by the agency for good cause”. RCRA section 3010(b) has similar provisions for an immediate effective date. It provides for an immediate effective date, rather than the usual six month period, for “(1) a regulation with which the Administrator finds the regulated community does not need six months to come into compliance . . . . or (3) other good cause found and published with the regulation,” among other exceptions.

    The purpose of section 553(d) of the APA is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). Similarly, as noted above, whether the regulated community needs a period of time to come into compliance is relevant to the application of RCRA section 3010(b). Because this rule grants a conditional exemption from certain RCRA hazardous waste requirements, it qualifies for the APA exemption for any rule that “recognizes or grants an exemption or relieves a restriction” as well as the RCRA exemption for any rule for which “the regulated community does not need six months to come into compliance.”

    Moreover, EPA has determined that for purposes of both the APA and RCRA effective date provisions, there is good cause for making this final rule effective immediately. In determining whether good cause exists to waive the 30-day effective date under the APA, an agency should “balance the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable amount of time to prepare for the effective date of its ruling.” Gavrilovic, 551 F.2d at 1105. EPA has also applied this balancing test to the RCRA effective date provision for purposes of this rule. This rule facilitates a more expedited removal of defective Takata airbag inflators from vehicles by dealerships, salvage yards and other locations for safe and environmentally sound disposal by exempting the collection of airbag waste from hazardous waste requirements so long as certain conditions are met. Because this action provides an exemption to certain requirements that automobile dealers and other parties would otherwise need to follow under RCRA, and because this exemption is optional, the regulated community does not need time to prepare for this rule. Specifically, as further discussed in this preamble, the conditions for the exemption mirror how recalled airbag modules and airbag inflators have been managed under the DOT Preservation Order during the past three years, and therefore no additional time is needed to start operating under the exemption. In contrast, the necessity of immediate implementation is great, as previously discussed.

    As a result, EPA is making this interim final rule effective upon publication.

    II. Statutory Authority

    These regulations are promulgated under the authority of sections 2002, 3001, 3002, 3003, 3004, 3006, 3010, and 3017 of the Solid Waste Disposal Act of 1965, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA). This statute is commonly referred to as “RCRA.”

    III. When will this interim final rule be effective?

    The revisions to 40 CFR 260.10, CFR 261.4 and CFR 262.14 become effective on November 30, 2018.

    IV. Background Information A. Regulation of Airbag Modules and Airbag Inflators Under RCRA

    An airbag module is a fully assembled unit including both the airbag inflator and the fabric cushion. An airbag inflator is the small metal canister within the airbag module that generally houses explosive propellant and an initiator. The airbag module is deployed when the airbag inflator receives an electronic pulse from a vehicle's crash sensor. In properly functioning airbag modules that use a gas generating system, chemical propellant contained in an airbag inflator unit burns in a fast and controlled manner, quickly emitting an inert gas through vents in the canister out into the airbag module, which inflates the cushion. Airbag modules across the automobile safety industry utilize explosive propellants for rapid response to an automobile accident.

    Most airbag inflators use oxidizers as part of the gas generating composition of the propellant and, therefore, when discarded, would meet the definition of ignitable hazardous waste under the RCRA hazardous waste regulations at 40 CFR 261.21(a)(4), which states that a solid waste exhibits the characteristic of ignitability if, “[i]t is an oxidizer.” 7 In addition, due to the explosive propellant component, discarded airbag modules and airbag inflators meet the definition of reactive hazardous waste at 40 CFR 261.23(a)(6), which states that a solid waste exhibits the characteristic of reactivity if, “[i]t is readily capable of detonation or explosive reaction if it is subjected to a strong initiating source or if heated under confinement.” 8 The deployment of airbag inflators generally results in the depletion of the ignitable and/or reactive components to cause the release of inert gas, after which the inflators would no longer exhibit the ignitable or reactive characteristics under the RCRA regulations.

    7 Ignitable hazardous waste carries the waste code D001.

    8 Reactive hazardous waste carries the waste code D003.

    Airbag modules and airbag inflators that exhibit hazardous waste characteristics under 40 CFR part 261 subpart C may be exempt from hazardous waste regulations under certain scenarios, as summarized in an EPA memorandum signed on July 19, 2018.9 As the memo explains, the applicable RCRA hazardous waste regulations for airbag modules and airbag inflators depend on the type of device, and how it is managed. However, it is important to note that, as the memo explains, recalled Takata airbag modules and airbag inflators removed from vehicles do not qualify for the exemptions and exclusions available to non-recalled airbag modules and airbag inflators because, as described in this preamble, the Takata recalled airbag inflators cannot be safely reused or deployed.

    9 U.S. EPA, Regulatory Status of Automotive Airbag Inflators and Fully Assembled Airbag Modules, July 19, 2018.

    B. Background on the Takata Inflator Recalls

    In May 2015, the U.S. Department of Transportation (DOT) announced a national recall of airbag inflators manufactured by Takata due to a defect in their phase-stabilized ammonium nitrate (PSAN) propellant, which has resulted in fifteen deaths and at least 250 injuries in the U.S. as of August 2018.10 These airbag inflator recalls constitute the largest automotive recall in U.S. history, with 19 vehicle manufacturers affected and approximately 65-70 million airbag inflators scheduled to be recalled by December 2019. Of these affected airbag inflators, 50 million inflators in an estimated 37 million vehicles were recalled as of August 2018 and the remaining inflators will be recalled by December 2019.11 Included in this number are tens of thousands of “Alpha” airbag inflators, which have a significantly higher risk of rupture due to a manufacturing defect resulting in low-density propellant in addition to the propellant defect described below. Nine of the 15 fatalities in the U.S. were caused by Alpha airbag inflators.12

    10 National Highway Traffic Safety Administration (NHTSA), Takata Recall Spotlight. https://www.nhtsa.gov/equipment/takata-recall-spotlight.

    11 Id.; National Highway Traffic Safety Administration (NHTSA), The State of Takata Recalls, https://www.nhtsa.gov/recall-spotlight/state-takata-recalls.

    12 National Highway Traffic Safety Administration (NHTSA), Takata “Alpha” Airbags Pose Increased Risk, https://www.nhtsa.gov/recalls/takata-alpha-air-bags-pose-increased-risk.

    On November 3, 2015, the National Highway Traffic Safety Administration (NHTSA) issued a Coordinated Remedy Order that set forth the requirements and obligations of certain motor vehicle manufacturers and the airbag manufacturer, Takata, in connection with the recall and remedy of certain types of Takata airbag inflators.13 In its Coordinated Remedy Order, NHTSA found that it was imperative to accelerate the rate of the recalls because “[e]ach airbag inflator with the capacity to rupture, as the recalled Takata inflators do, presents an unreasonable risk of serious injury or death. . . . Since the propensity for rupture increases with the age of the inflator, and increases even more when the vehicle has been exposed to consistent long-term HAH [high absolute humidity] conditions, the risk for injurious or lethal rupture increases with each passing day.” 14

    13 National Highway Traffic Safety Administration (NHTSA), Coordinated Remedy Order, November 3, 2015, Docket No. NHTSA-2015-0055. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/nhtsa-coordinatedremedyorder-takata.pdf.

    14 Ibid, paragraph 32.

    The PSAN propellant used in the recalled Takata airbag inflators degrades over time when moist propellant is exposed to long-term daily temperature cycling. Moisture from the air adsorbs to PSAN particles, changing the structure of the propellant and causing the inflator to over-pressurize during deployment.15 In some cases, this over-pressurization causes the metal canister to rupture, producing shrapnel-like metal shards during airbag inflation. To mitigate these effects, Takata began manufacturing PSAN airbag inflators containing desiccant to prevent the adsorption of moisture to the PSAN particles. While some inflators with desiccant have been recalled, others are still under evaluation and may or may not be recalled in the future.16

    15 National Highway Traffic Safety Administration (NHTSA), Expert Report of Harold R. Blomquist, Ph.D., May 4, 2016. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/expert_report-hrblomquist.pdf.

    16 National Highway Traffic Safety Administration (NHTSA), New Takata recall involves Nissan, Ford, and Mazda vehicles, https://www.nhtsa.gov/recall-spotlight/new-takata-recall-involves-nissan-ford-and-mazda-vehicles.

    A 2015 Safety Data Sheet (SDS) for Takata pyrotechnic automotive safety devices, including airbag modules and airbag inflators, describes the hazards of the devices, including an “[i]nitiation hazard of an uncontrolled activation of the safety device due to: Fire; heat; electrostatic discharge; inductions through electromagnetic radiation; or, excessive mechanical load” and a “[b]urn hazard when there is direct contact with pyrotechnic safety device during activations.” 17 The firefighting measures described in the SDS include evacuating personnel and emergency responders for 1500 feet (1/3 mile). In the event of spilled material from damaged devices, the SDS recommends that an explosive expert conduct the cleanup using anti-static equipment.

    17 Takata Safety Data Sheet (SDS)—Pyrotechnic Automotive Safety Devices, January 2015.

    Propagation and bonfire testing results submitted to EPA by Takata provides further information regarding the hazards posed by recalled Takata inflators.18 In September 2016, a third-party company performed sympathetic propagation testing on two types of recalled Takata airbag inflators for Takata. The testing generally consisted of bundling several inflators together and deploying the center inflator in order to observe the effects of deployment on the surrounding inflators. The results of the testing showed that deployment of one inflator does not cause deployment of surrounding inflators. In some tests, the center inflator fragmented, but it still did not cause surrounding inflators to deploy or fragment, although some superficial damage to the surrounding inflators did occur. In April 2017, a third-party company performed the UN 6(c) external fire (bonfire) test on recalled Takata airbag inflators in individual fiberboard boxes. The inflators did not mass detonate when exposed to fire, but they did initiate, as would be expected when inflators are exposed to temperatures generated by this type of fire. In some cases, they were propelled from their initial locations of rupture, throwing fragments beyond the initial location of the inflator.

    18 Testing information was submitted as confidential business information (CBI). The summary of results in this preamble does not contain CBI.

    C. Damage Incidents Related to Airbag Inflator Recycling

    While non-Takata airbag inflators do not present the same shrapnel-producing defect as recalled Takata airbag inflators, these airbag inflators can still present an explosive risk when processed or recycled, as demonstrated by recent incidents at two facilities. In February 2015, an explosion and fire occurred at one airbag manufacturing and recycling facility as two workers handled airbag inflators that had been processed in an incinerator prior to recycling the metal.19 In that incident, one worker was hospitalized with head injuries and burns. In March 2018, a large explosion at a different airbag recycling facility in the dedicated airbag recycling area killed one worker and seriously injured another.20 This explosion is suspected to have been caused by the ignition of aluminum dust, which was created in the process of shredding airbag inflators. These incidents demonstrate the characteristically hazardous nature of waste airbag inflators and their component materials and the potential risk they pose to human health during processing.

    19 U.S. EPA, Autoliv Promontory Facility (20 June 2017), July 24, 2018.

    20 Tennessee Occupational Safety and Health Administration, Redacted Report: Lighting Resources LLC Explosion on March 14, 2018, August 16, 2018.

    D. Impact of Takata Bankruptcy and the Amended Preservation Order on Management of Takata Inflators 2015 Preservation Order

    A Preservation Order issued by DOT and signed by Takata in February 2015 required all recalled airbag inflators be preserved intact, except for those utilized for testing purposes. Takata was required to take all reasonable and appropriate steps designed to prevent the partial or full destruction, alteration, deletion, shredding, incineration or loss of recalled or returned inflators, ruptured inflators and any other inflators under the recalls. The recalled Takata inflators were organized into categories of inflators that must be preserved. Ruptured inflators from field events were required to be preserved in a locked, secured, climate-controlled area, except for testing, inspection or analysis purposes. Recalled or returned inflators were also to be kept in a locked, secured and climate-controlled area.

    EPA June Memorandum

    In the June 23, 2017 memorandum, EPA clarified that the recalled Takata airbag inflators are not subject to RCRA Subtitle C regulatory requirements while they are being held under the 2015 DOT Preservation Order because EPA does not consider materials being stored pending judicial proceedings or investigations to be “discarded.” This interpretation is consistent with previous interpretations EPA has taken on similar materials, such as seized fireworks held as evidence and materials from aircraft accidents subject to investigation, where such items would otherwise be considered hazardous waste.21 22 Additionally, EPA clarified that Takata recalled airbag inflators would be considered “used” (i.e., spent materials), and therefore a solid waste, once the preservation requirements are lifted. When the recalled Takata airbag inflators are discarded as a solid waste, EPA believes that they meet both the ignitability and reactivity hazardous waste characteristics.23

    21 U.S. EPA, Explosives Presenting an Immediate Safety Threat and Explosives Stored During Analysis, August 11, 1988. RCRA Online 11363.

    22 U.S. EPA, Management of Aircraft Remains from Catastrophic Loss Events, January 6, 2014. RCRA Online 14881.

    23 Ignitable waste code D001 (40 CFR 261.21(a)(4)). Reactive waste code D003 (40 CFR 261.23(a)(6)).

    Impact of Takata Bankruptcy on Recall Procedures

    Takata's U.S. subsidiary, TK Holdings Inc., filed for Chapter 11 bankruptcy on June 25, 2017, and received U.S. court approval for its plan on February 21, 2018.24 Takata's manufacturing assets were sold to Key Safety Systems, another automobile safety system manufacturer, and the money from the sale was used to settle debts and legal claims. A small portion of the company emerged from bankruptcy and has a section dedicated to facilitating the replacement of recalled airbag inflators.25 Takata's plan sets aside funds designated for the removal, handling and eventual disposal of recalled airbag inflators received before the effective date of the bankruptcy, April 10, 2018, and states that Takata will continue to provide replacement airbag inflators until the recall process is finished, expected in 2020.26 Takata will also continue to receive recalled airbag inflators for storage prior to testing or eventual disposal after April 10, 2018, although it is not required to do so. EPA's understanding is that Takata will charge the automobile manufacturers to cover the costs associated with storage and eventual disposal of these inflators received after April 10, 2018. These costs include the overhead expenses associated with Takata managing the collection, storage, and disposal of airbag inflators, including wages and benefits for their workers that are involved in handling and coordinating the movement of the inflators. Prior to the bankruptcy effective date, Takata accepted and managed these inflators from the affected vehicle manufacturers free of charge.

    24 Prime Clerk, Takata TK Holdings Inc Bankruptcy Case Information, https://restructuring.primeclerk.com/takata/Home-Index.

    25 To avoid confusion, the entities responsible for managing the Takata airbag inflator recalls, including Takata's post-bankruptcy successor company TK Global, will collectively be referred to as “Takata” in this preamble.

    26 U.S. Bankruptcy Court—District of Delaware, Fifth Amended Joint Chapter 11 Plan of Reorganization of TK Holdings Inc. and its Affiliated Debtors, filed February 20, 2018.

    2018 Amended Preservation Order

    The April 12, 2018 Amendment to the February 25, 2015 Preservation Order and Testing Control Plan, issued by the U.S. DOT's NHTSA, requires Takata to preserve certain airbag inflators that are the subject of an ongoing defect investigation by NHTSA and the subject of private litigation.27 The Amendment also requires Takata to implement a control plan for the inspection, testing, or analysis of those inflators.

    27 National Highway Traffic Safety Administration (NHTSA), Amendment to the February 25, 2015 Preservation Order and Testing Order Control Plan, April 12, 2018, EA15-001 (formerly PE14-016). https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/preservation_order_amendment_public_-_april_12_2018-tag.pdf.

    The original 2015 Preservation Order required Takata to preserve indefinitely all affected airbag inflators, while the 2018 Amendment enables Takata to reduce the number of preserved airbag inflators by requesting the release of certain inflators from the Preservation Order allowing them to be disposed in compliance with all applicable regulations, including RCRA. The Amended Order also requires Takata to account for returned foreign and other ammonium-nitrate containing inflators. The Amendment applies to Takata airbag inflators removed from vehicles as a result of recalls affecting the 19 vehicle manufacturers.

    The terms of the Amendment require Takata to track all airbag inflators in its possession by unique serial number and set aside at least 5% of inflators, proportionate to the overall number of inflators received from each State and of each type of inflator, for future analysis. The Amendment allows Takata to submit Disposal Designations to NHTSA, identifying a specific quantity of inflators to be released from preservation and disposed. The designated inflators are considered released from the Preservation Order fifteen business days after NHTSA's confirmation of receipt of the Disposal Designation.

    Although the affected vehicle manufacturers may choose to contract with Takata's post-bankruptcy reorganized entity to transport and store recalled airbag inflators, they are not required to do so by the Preservation Order or Amendment. If a vehicle manufacturer chooses to contract with the Takata entity, the Takata entity must preserve those airbag inflators under the terms of the Preservation Order, and therefore those airbag inflators are not solid wastes per EPA's June 23, 2017 memorandum as described above. However, a vehicle manufacturer may choose not to contract with the Takata entity for a variety of reasons, including increased cost, increased liability, and slower disposal, in which case those airbag inflators would not be covered by the Preservation Order or Amendment, and would be considered discarded when removed from the vehicle.

    V. Rationale for Conditional Exemption for Collection of Airbag Waste

    In its 2015 Coordinated Remedy Order pertaining to the Takata airbag recalls, DOT found that it was imperative to accelerate the rate of the recalls because “[e]ach airbag inflator with the capacity to rupture, as the recalled Takata inflators do, presents an unreasonable risk of serious injury or death. . .Since the propensity for rupture increases with the age of the inflator, and increases even more when the vehicle has been exposed to consistent long-term HAH [high absolute humidity] conditions, the risk for injurious or lethal rupture increases with each passing day.” 28

    28 National Highway Traffic Safety Administration (NHTSA), Coordinated Remedy Order, November 3, 2015, Docket No. NHTSA-2015-0055. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/nhtsa-coordinatedremedyorder-takata.pdf.

    Since the original order was issued by DOT, the affected vehicle manufacturers have been working steadily to remove the recalled Takata airbag inflators from vehicles. As discussed earlier, because of DOT's Preservation Order, the recalled airbag inflators have not been regulated as hazardous waste and have instead been safely collected, transported as hazardous materials and stored under the Preservation Order.

    With the amendment to DOT's Preservation Order and with Takata's restructuring due to bankruptcy, vehicle manufacturers may now dispose of recalled inflators that are not covered by the amended Preservation Order directly, rather than sending them to the Takata warehouses for long-term storage. This approach is preferable from a public health and environmental protection perspective both because it reduces the volume of inflators in long-term storage and because it is more efficient in freeing up resources spent on handling and storage that can be spent directly on the recalls themselves.

    However, because this subset of recalled inflators is not subject to the DOT Preservation Order, they would be regulated as hazardous waste. As a result, many automobile dealers and other entities who continue to replace recalled airbag inflators at the current rate of repair would become subject to additional hazardous waste generator requirements in 40 CFR part 262, which would impose additional regulatory obligations on the dealers' and salvage vendors' management of the inflators.

    Most automobile dealers and salvage vendors are currently in the category of “Very Small Quantity Generators” of hazardous waste. By managing hazardous airbag waste, the dealers and salvage vendors would likely generate sufficient amounts of hazardous waste (on a monthly basis) to become subject to increased regulations associated with higher generator categories for which dealers and salvage vendors typically have not had experience, familiarity, or expertise. Imposing these increased generator obligations on dealers and salvage vendors would result in a much less efficient, effective and environmentally protective approach to the urgent, time-critical recall effort. Through our conversations with DOT, the automobile manufacturers, automotive salvage vendors, and other affected stakeholders, EPA has learned that imposing full generator requirements on automobile dealers and salvage vendors who lack the expertise and experience in managing hazardous waste might result in the slowdown, rather than the necessary acceleration, of the recall effort, resulting in greater harm to human health and the environment.29 The automobile manufacturers are worried that, because of their lack of familiarity and expertise with full RCRA hazardous waste generator regulations and the additional costs related to the management of hazardous waste in these higher generator categories, if the dealers were to become fully regulated small or large quantity generators due to handling recalled airbag waste, they may slow down or stop removing recalled airbag inflators altogether. In addition, some stakeholders have expressed their concern of a lack of hazardous waste transportation capacity, especially in more sparsely populated rural areas of the country. As hazardous waste generators, dealers would be required to use certified hazardous waste transporters, which are less numerous and more expensive than standard hazardous material transporters used to transport recalled inflators under the DOT preservation order. Thus, placing full hazardous waste generator requirements on dealers or salvage yards would not be the most efficient or environmentally protective approach for the above reasons. In contrast, as explained in the following section, an airbag waste collection facility under the control of a vehicle manufacturer or their authorized representative or under the control of an authorized party administering a remedy program in response to the recalls or a designated facility as defined in 40 CFR 260.10, has greater expertise and familiarity in properly managing hazardous waste.

    29 EPA 2018. Compilation of Stakeholder Meeting Summaries Regarding RCRA Regulation of Airbag Waste.

    A related but separate issue involves airbag modules and airbag inflators scavenged from scrapped automobiles. One vendor company has been involved in the collection of Takata airbag modules from the approximately 6,000 salvage yards in the United States. The company was approached by one automobile manufacturer after they discovered a number of injuries were caused by recalled Takata airbag inflators recovered from salvage yards and installed in other vehicles. The salvage vendor worked with the automobile manufacturer, DOT, and the independent monitor to put together a program to retrieve airbag modules containing recalled airbag inflators before the inflators can be removed and placed in another vehicle because at that point, they are virtually untraceable. The vendor collects the airbag and brings them to a central location where they undergo a validation step to determine whether they are definitively recalled airbag inflators. This validation includes using visual aids and scanning all VIN and serial numbers. The vendor also supplies specifically designed packaging and handles the transportation for the airbag modules. Once a pallet of validated airbag modules is collected (approximately 100-110 pieces), the pallet is sent for disposal and a certificate of destruction is provided. The airbag modules are transported in compliance with DOT hazardous materials regulations. According to this vendor, if the airbag modules must be handled as RCRA hazardous waste when removed from a vehicle in the salvage yard, the salvage yards would likely stop removing them.

    Due to the potential for the replacement of defective Takata airbag inflators to slow down with the application of full RCRA generator requirements, EPA has determined that modified RCRA requirements are appropriate for automobile dealers, salvage yards, and other entities that are removing the recalled airbag inflators and facilitating the recalls.

    As discussed earlier, any potential delay to the recalls presents an immediate public health threat, increasing the chances of death or serious injury due to a defective airbag deploying in a vehicle. Moreover, the system for managing the recalled airbag modules and inflators under the DOT Preservation Order over the last three years has provided for protection of human health and the environment during collection and transport of the airbag modules and inflators. Under the recalls, each individual recalled inflator is tracked by vehicle identification number, and subject to DOT packaging and transportation regulations. Vehicle manufacturers work with their dealers to make sure that the recalled inflators are quickly moved offsite and not over-accumulated, and have a strong incentive from a liability perspective to continue to do so in the future.

    The conditions for the exemption promulgated by this rule mirror how recalled airbag modules and airbag inflators have been managed under the DOT Preservation Order during the past three years, except that instead of going to long-term storage under the Preservation Order, the collected airbag waste will be sent for safe disposal at a RCRA facility designated to receive hazardous waste per 40 CFR 260.10. Thus, exempting the collection of airbag waste from RCRA requirements, provided certain conditions are met, will result in an increase in protection of public health by facilitating the recalls, allowing the current airbag waste collection system to continue to safely collect the recalled inflators, and sending them directly to appropriate disposal facilities rather than to long-term storage facilities under the Preservation Order.

    As previously explained in other rulemakings, EPA has authority under RCRA to issue conditional exclusions from the hazardous waste regulations. EPA has previously interpreted RCRA section 3001(a) to authorize the issuance of “conditional exemptions” from the requirements of RCRA Subtitle C, where it determines that “a waste might pose a hazard only under limited management scenarios, and other regulatory programs already address such scenarios.” 62 FR at 6636 (February 12, 1997); 66 FR at 27222-27223 (May 16, 2001). The final rule takes a similar approach to those earlier rules.

    Section 3001(a) requires that EPA decide whether a waste “should be subject to” the requirements of RCRA Subtitle C. Hence, RCRA section 3001 authorizes EPA to determine when subtitle C regulation is appropriate. EPA has consistently interpreted section 3001 of RCRA to give it broad flexibility in developing criteria for hazardous wastes to enter or exit the Subtitle C regulatory system.

    RCRA section 1004(5) further supports EPA's interpretation. This interpretation has also been upheld upon judicial review. See, e.g., Military Toxics Project v. EPA, 146 F. 3d 948 (DC Cir. 1998) (upholding conditional exemption for storage of military munitions, based on EPA determination that such wastes are subject to binding standards that meet or exceed RCRA standards, in addition to an institutional oversight process.) EPA has interpreted the statutory definition of hazardous waste in RCRA section 1004(5)(B) as incorporating the idea that a waste that is otherwise hazardous does not require regulation under RCRA so long as it is properly managed.

    EPA has most recently provided a full discussion of EPA's authority for conditional exclusion from RCRA Subtitle C requirements in the preamble in its final rule entitled Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (CO2) Streams in Geologic Sequestration Activities, 79 FR 350, 353-354 (January 3, 2014). Consistent with that rule, and other rules involving conditional exemptions, EPA has determined in this rule, as discussed above, that exempting the collection of airbag waste from RCRA requirements, provided certain conditions are met, will result in an increase in protection of public health by facilitating the recalls and allowing the current airbag waste collection system to continue to safely collect the recalled inflators. It is important to note, however, that this conditional exemption only applies to the storage and transport of airbag waste during collection. The final disposition of the hazardous airbag waste continues to be regulated under applicable RCRA Subtitle C hazardous waste regulations.

    EPA has received requests from stakeholders to unconditionally exempt airbag modules and inflators from RCRA hazardous waste regulations.30 However, EPA has determined, based on the nature of the waste and the damage cases that have occurred at airbag recycling facilities, an exemption for the final disposition of airbag waste would not be protective of human health and the environment. While the collection of intact airbag modules and inflators by vehicle manufacturers or their authorized representatives according to DOT requirements can be done safely without imposing RCRA requirements beyond the conditions of the exemption discussed in this preamble, processing the airbag inflator, which requires treatment of the ignitable and reactive propellant inside the inflator, is another matter. As discussed earlier, there have been at least two explosions at airbag recycling facilities, including one that resulted in a fatality, and in the case of the recalled Takata airbag inflators, the degraded nature of the propellant makes the potential for explosive reactions even worse. The protections provided by a RCRA Subtitle C hazardous waste permitted facility, including personnel training, inspections, contingency planning and emergency response, and an informed community through public participation address the risk of explosion from the end-of-life management of the collected airbag waste.

    30 EPA 2018. Compilation of Stakeholder Meeting Summaries Regarding RCRA Regulation of Airbag Waste.

    EPA solicits comment on the conditional exemption for airbag waste, including the applicability of the exemption and the specific requirements of this conditional exemption as explained in this preamble. EPA will consider these comments in determining whether any additional revisions to the regulation of airbag waste are necessary in the future.

    VI. Summary of Requirements of the Conditional Exemption for the Collection of Airbag Waste A. Applicability of Conditional Exemption

    The new airbag waste conditional exemption found at 40 CFR 261.4(j) applies to all airbag waste (i.e., airbag modules and airbag inflators) collected from auto dealers or other airbag waste handlers for the purpose of safe disposal. Entities that generate airbag waste under the conditional exemption are referred to as “airbag waste handlers” and can include automobile dealers, independent repair facilities, collision centers, and salvage and scrap yards.

    The vast majority of items affected by the conditional exemption will be Takata airbag waste. As of August 2018, an estimated 50 million defective airbag inflators were under recall in approximately 37 million U.S. vehicles, with the potential for more recalls to be issued in the future.

    However, EPA has determined that the conditional exemption should also apply to the collection of non-Takata airbag waste for the purpose of disposal, provided that the conditions of the exemption are met. Managing all airbag waste under the same protective requirements will avoid confusion, increase efficiency and will help prevent non-Takata airbag waste from being diverted into the municipal waste stream. Because non-Takata airbag waste is expected to be a much smaller volume waste than the recalled Takata airbag waste, in many cases automobile dealers that generate hazardous waste would be below the Very Small Quantity Generator threshold of 100 kilograms/month, which under the federal RCRA requirements in 40 CFR 262.14 would allow the non-Takata airbag waste to be disposed of in the municipal wastestream. Including these materials under the airbag waste conditional exemption is more protective of human health and the environment because it would encourage their disposal at hazardous waste management facilities. To make it clear that VSQGs have the option of managing their airbag waste under the airbag waste conditional exemption and sending their airbag waste to an airbag waste collection facility or a designated facility subject to the requirements of 40 CFR part 261.4(j), EPA is including a conforming change to the VSQG regulations at 40 CFR 262.14(a)(xi). (Note that the airbag waste conditional exemption does not prevent the airbag modules or airbag inflators from being managed under other applicable exemptions as explained in the July 2018 memo referenced in section IV.A. in this preamble) In addition, EPA also requests comment on expanding the applicability of the airbag waste exemption to include other similar propellent-actuated devices and their components. It would be helpful if commenters include detailed information on these additional wastestreams, including descriptions of the wastestreams, volumes generated, risks posed and current management practices.

    B. Limits on Accumulation Times and Quantities at Airbag Waste Handlers

    Based on information provided by automobile manufacturers, automobile dealers limit the quantity of recalled airbag modules and inflators stored onsite. According to one automobile manufacturer, guidance provided by Takata requires that dealers ship out the recalled airbag inflators that have been removed from vehicles every two weeks, or when the quantity reaches 200 inflators (i.e., a small truckload).31

    31 EPA 2018. Compilation of Stakeholder Meeting Summaries Regarding RCRA Regulation of Airbag Waste, Appendix 1.

    Limiting the quantity and accumulation times at airbag waste handlers for airbag waste prevents over-accumulation and limits the potential hazards posed by the inflators in case of a fire. Under the airbag waste exemption finalized in this action, airbag waste handlers are allowed to accumulate up to 250 airbag modules or airbag inflators for up to 180 days, whichever comes first. Limiting the quantity of airbag modules and airbag inflators accumulated onsite to 250 (i.e., a little over one small truckload) allows the dealer and other airbag waste handlers to prepare one truckload for shipping while continuing to accumulate airbag waste for future shipments. The 180-day timeframe is based on the small quantity generator limits in 40 CFR 262.16, and addresses the future situation when the Takata recalls near completion, resulting in a slower turn-around in recalled inflators accumulated at the dealer. At that point it may take much longer to reach the 250-item limit, and the 180-day time limit ensures storage does not extend indefinitely, and that the airbag waste is safely disposed and not abandoned.

    C. Packaging, Labeling and Transportation Requirements for Airbag Waste Handlers

    During accumulation under the airbag waste exemption, airbag waste must be packaged in a container designed to address the risk posed by the airbag waste. Such a container would help reduce the potential for the airbag waste to react in case of a fire, and also reduce the projectile hazard if the defective Takata airbag inflators were to deploy. In most cases, this container would be the same container that the replacement airbag part was shipped in to the airbag handler, or, in the case of salvage yards, the container provided by the salvage recovery vendor. However, any container that meets DOT requirements for transporting the airbag items would meet the terms of the conditional exemption. Each container must be labeled “Airbag Waste—Do Not Reuse.”

    Airbag waste must be shipped directly to either (1) a designated facility as defined in 40 CFR 260.10, or (2) an airbag waste collection facility in the United States under the control of a vehicle manufacturer or their authorized representative, or under the control of an authorized party administering a remedy program in response to a recall under the National Highway Traffic Safety Administration. Airbag waste collection facilities may include part supply centers/parts distribution centers or any other facility authorized by vehicle manufacturers to collect their airbag waste and hold it for more than 10 days. (Airbag waste held at a transfer facility for less than 10 days is considered to be in transport and only subject to the DOT transportation regulations). Because the airbag waste is not subject to hazardous waste generator requirements under 40 CFR part 262 while at the airbag waste handler, the designated facility or the airbag waste collection facility that accepts the airbag waste from the airbag waste handler is considered the hazardous waste generator for the purposes of 40 CFR part 262 as the person whose act first causes a hazardous waste to become subject to the generator regulations.

    D. Tracking and Recordkeeping Requirements for Airbag Waste Handlers

    As a condition for exemption from RCRA hazardous waste requirements, airbag waste handlers must maintain at the facility and make available upon inspection certain records that document off-site shipments of airbag waste for a period of three years to help verify the airbag waste went to an appropriate destination. Specifically, for each shipment of airbag waste, the handler must maintain documentation of the date of each shipment, the name of each transporter, the type and quantity of airbag waste (i.e., airbag modules or airbag inflators) shipped, and the name and address of the destination facility or airbag waste collection facility. This recordkeeping requirement may be fulfilled by ordinary business records, such as bills of lading, including electronic records. In addition, airbag waste handlers are required to maintain confirmations of receipt from the designated facility or airbag waste collection facility in order to verify that the airbag waste reached its intended destination and was not diverted. These receipts must be maintained at the airbag waste handler for a period of three years. Specifically, the airbag waste handlers must maintain documentation of receipt that includes the name and address of the designated facility or airbag waste collection facility, the type and quantity of airbag waste (i.e., airbag modules or airbag inflators) received, and the date which it was received. The Agency is not requiring a specific template or format for confirmations of receipt and anticipates that routine business records (e.g., financial records, bills of lading, copies of DOT shipping papers, electronic confirmations of receipt, etc.) could contain the appropriate information sufficient for meeting this requirement. Note that these recordkeeping requirements will be implemented under an emergency Information Collection Request (ICR). Based on the public comments received on this rule, EPA will publish a separate revised ICR. See Section VIII.C in this preamble.

    E. Prohibition on Reuse of Defective Airbag Modules and Airbag Inflators

    While used airbag modules and used airbag inflators are not solid waste when reused for their intended purpose, in the case of airbag modules and airbag inflators that are subject to a recall under the National Highway Traffic Safety Administration, such reuse is not allowed under RCRA. Reuse of recalled Takata inflators is particularly dangerous due to the shrapnel producing defect that can cause death or serious injury when the airbag is deployed, even when the vehicle accident would otherwise be considered minor. As noted in a report by the Takata Independent Monitor, salvaged Takata inflators may pose an even greater risk than other defective Takata inflators due to possible exposure to high heat and humidity for an extended time in the scrap vehicles. In one case, a vehicle that was repaired with a salvaged Takata airbag inflator was involved in a minor accident. The resulting shrapnel from deployment of the defective resulted in serious injury to the driver. The family owning the car had no reasonable way of knowing that it contained a defective inflator.32 Any person who reuses a defective inflator or causes it to be reused may therefore be placing another person in imminent danger of death or serious injury. Such a reuse would not meet the definition of legitimate recycling in 40 CFR 260.43 and would be considered sham recycling under 40 CFR 261.2(g). Specifically, because the defective airbag modules and airbag inflators cannot serve as an effective substitute for a commercial product, and do not otherwise provide a useful contribution per 40 CFR 260.43(a)(1), their reuse is considered to be sham recycling and prohibited under the hazardous waste regulations.

    32 National Highway Traffic Safety Administration (NHTSA), The State of Takata Airbag Recalls—Report of the Independent Monitor, November 15, 2017. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/the_state_of_the_takata_airbag_recalls-report_of_the_independent_monitor_112217_v3_tag.pdf.

    VII. State Authorization A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize a qualified state to administer and enforce a hazardous waste program within the state in lieu of the federal program, and to issue and enforce permits in the state. A state may receive authorization by following the approval process described in 40 CFR 271.21 (see 40 CFR part 271 for the overall standards and requirements for authorization). EPA continues to have independent authority to bring enforcement actions under RCRA sections 3007, 3008, 3013, and 7003. An authorized state also continues to have independent authority to bring enforcement actions under state law.

    After a state receives initial authorization, new federal requirements and prohibitions promulgated under RCRA authority existing prior to the 1984 Hazardous and Solid Waste Amendments (HSWA) do not apply in that state until the state adopts and receives authorization for equivalent state requirements. In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), new federal requirements and prohibitions promulgated under HSWA provisions take effect in authorized states at the same time that they take effect in unauthorized states. As such, EPA carries out the HSWA requirements and prohibitions in authorized states, including the issuance of new permits implementing those requirements, until EPA authorizes the state to do so.

    Authorized states are required to modify their programs only when EPA enacts federal requirements that are more stringent or broader in scope than existing federal requirements. Under RCRA section 3009, states may impose standards that are more stringent or broader in scope than those in the federal program (see also 40 CFR 271.1(i)). Therefore, authorized states are not required to adopt new federal regulations that are considered less stringent than previous federal regulations or that narrow the scope of the RCRA program. Previously authorized hazardous waste regulations would continue to apply in those states that do not adopt “deregulatory” rules.

    B. Effect on State Authorization of Interim Final Rule

    The regulations finalized in this interim final rule are not promulgated under the authority of HSWA. Thus, the standards will be applicable on the effective date only in those states that do not have final authorization of their base RCRA programs. Moreover, authorized states are required to modify their programs only when EPA promulgates federal regulations that are more stringent or broader in scope than the authorized state regulations. For those changes that are less stringent, states are not required to modify their program. Pursuant to section 3009 of RCRA, states may impose more stringent regulations than the federal program. This rule eliminates specific hazardous waste requirements that would otherwise apply to airbag waste (airbag modules and airbag inflators) managed under the conditional exemption, and therefore, these changes are less stringent than the federal program and authorized states are not required to adopt them. However, if a state were, through implementation of state waiver authorities or other state laws, to allow compliance with the provisions of the conditional exemption in advance of adoption or authorization, EPA would not generally consider such implementation a concern for purposes of enforcement or state authorization. Of course, the state could not implement the requirements in a way that was less stringent than the federal requirements in this rule.

    VIII. Statutory and Executive Order (E.O.) Reviews A. Executive Order 12866: Regulatory Planning and Review & Executive Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. This rule has been determined significant because it raises novel legal or policy issues arising out of a legal mandate, the President's priorities or the principles set forth in the Executive Order. Any changes made in response to OMB recommendations have been documented in the docket. The EPA prepared an economic analysis of the potential costs and benefits associated with this action. This analysis, “Economic Assessment of the Safe Management of Recalled Airbags Rule”, is available in the docket. This analysis estimates the impacts of the rule relative to two separate baseline scenarios. The first baseline scenario assumes that all aspects of the Preservation Order established between Takata and the Department of Transportation in February 2015 and amended in April 2018 will remain in effect until the completion of the recall process. The alternative baseline scenario assumes the removal of the Preservation Order provisions that allow dealerships to disregard the volume of recalled airbag inflators when determining their hazardous waste generator status (e.g., LQG) under RCRA. For each baseline and for the rule, EPA created a monthly schedule in order to estimate the number of airbag inflators shipped, accumulated, and disposed of by affected entities. EPA then assigned unit costs for storage, transport, management, and disposal of airbag inflators for each scenario to estimate the cost savings associated with this regulation. The cost impacts of the rule were then calculated as the difference between post-rule costs and costs under each baseline scenario. In summary, this regulatory action is expected to result in a total cost savings between $7.6 million and $56.9. million for the duration of the Takata recalls, resulting in an estimated annual cost savings of $1.7 million to $13.0 million per year (discounted at 7%).

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

    This action is considered an Executive Order 13771 deregulatory action. Details on the estimated cost savings of this final rule can be found in EPA's analysis of the potential costs and benefits associated with this action.

    C. Paperwork Reduction Act (PRA)

    The information collection activities in this rule have been granted emergency approval by the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) that has been approved by OMB was assigned EPA ICR number 2589.02 and OMB Control Number 2050-0221. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.

    The collection of information is necessary in order to ensure that the hazardous waste airbag modules and airbag inflators exempted under this rule are safely disposed of and that defective airbag modules and airbag inflators are not reinserted into vehicles where they would pose an unreasonable risk of death or serious injury. Information collection activities include requiring affected entities maintain copies of shipping records and confirmations of receipt for three years.

    In addition to the emergency ICR which will implement the requirements for up to six months, EPA is also developing an ICR based on comments received on this rulemaking. Towards this goal, pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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, e.g., permitting electronic submission of responses. EPA will consider the comments received and amend the ICR as appropriate.

    Respondents/affected entities: The respondents will primarily be composed of automobile dealerships. These dealerships fall under NAICS code 441: Motor Vehicle and Parts Dealers.

    Respondent's obligation to respond: The recordkeeping requirements for the interim final rule consist of maintaining at the airbag handler for no less than three years records of (1) all off-site shipments and (2) confirmations of receipt of airbag waste. The recordkeeping requirements may be fulfilled by ordinary business records, such as bills of lading, and are intended to allow the Agency to verify that the airbag waste reaches its intended destination and is not diverted back into vehicles. The statutory authority to require the recordkeeping activities derives from sections 2002, 3001, 3002, 3003, 3004, 3006, 3010, and 3017 of the Solid Waste Disposal Act of 1965, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA).

    Estimated number of respondents: EPA estimates that there will be 15,256 respondents per year.

    Frequency of response: EPA estimates that average facility will make 3 relevant shipments per year over a 5-year period. The facilities must retain documentation for each shipment.

    Total estimated burden: 4,200 hours (per year). Burden is defined at 5 CFR 1320.3(b).

    Total estimated cost: $130,791 (per year), includes $0 annualized capital or operation & maintenance costs.

    An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce that approval in the Federal Register and publish a technical amendment to 40 CFR part 9 to display the OMB control number for the approved information collection activities contained in this final rule.

    D. Regulatory Flexibility Act

    This action is not subject to the RFA. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. The APA exempts from notice and comment requirements rules for which an Agency finds “for good cause” that notice and an opportunity to comment are “impracticable, unnecessary, or contrary to the public interest.” The Agency is invoking this exemption to address exigent public health issues associated with the Takata airbag recalls.

    E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

    F. Executive Order 13132: Federalism

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

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

    This action does not have tribal implications as specified in Executive Order 13175. This action does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

    Section 5-502 of Executive Order 13045 provides that in emergency situations, or where the Agency is required by law to act more quickly than normal review procedures allow, the Agency shall comply with the Executive Order to the extent practicable. This action is being issued under a good cause exemption of notice and comment rulemaking under the APA to address an emergency situation associated with defective airbag inflators and risks to public health. The rule will remove potential regulatory impediments associated with the Takata airbag recalls. The recalls address explosion risks associated with faulty airbag deployment which could cause (and have caused) serious harm to passengers in vehicles, including children.

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

    This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This rulemaking simply removes potential regulatory impediments associated with the Takata airbag recalls; therefore, by itself, this rulemaking will not have any effect on the supply, distribution or use of energy.

    J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because the rule increases protection of human health and the environment by removing potential regulatory impediments associated with the Takata airbag recalls while ensuring safe management and disposal of airbag waste. The recalls address explosion risks associated with faulty airbag deployment which could cause (and have caused) serious harm to passengers, including passengers from minority and low-income communities.

    M. Congressional Review Act

    This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this rule as discussed in Section I.B. of this preamble, including the basis for that finding.

    List of Subjects 40 CFR Part 260

    Environmental protection, Administrative practice and procedure, Definitions, Hazardous waste.

    40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Solid waste.

    40 CFR Part 262

    Environmental protection, Hazardous waste, Generator Standards.

    Dated: November 13, 2018. Andrew Wheeler, Acting Administrator.

    For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:

    PART 260—HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL 1. The authority citation for part 260 continues to read as follows: Authority:

    42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6935, 6937, 6938, 6939 and 6974.

    Subpart B—Definitions 2. Section 260.10 is amended by adding in alphabetical order definitions for “Airbag waste”, “Airbag waste collection facility”, and “Airbag waste handler” to read as follows:
    § 260.10 Definitions

    Airbag waste means any hazardous waste airbag modules or hazardous waste airbag inflators.

    Airbag waste collection facility means any facility that receives airbag waste from airbag handlers subject to regulation under § 261.4(j) of this chapter, and accumulates the waste for more than ten days.

    Airbag waste handler means any person, by site, who generates airbag waste that is subject to regulation under this chapter.

    PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE 3. The authority citation for Part 261 continues to read as follows: Authority:

    42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and 6938.

    Subpart A—General 4. Section 261.4 is amended by adding reserved paragraph (i) and adding paragraph (j) to read as follows:
    § 261.4 Exclusions.

    (j) Airbag waste. (1) Airbag waste at the airbag waste handler or during transport to an airbag waste collection facility or designated facility is not subject to regulation under parts 262 through 268, part 270, or part 124 of this chapter, and is not subject to the notification requirements of section 3010 of RCRA provided that:

    (i) The airbag waste is accumulated in a quantity of no more than 250 airbag modules or airbag inflators, for no longer than 180 days;

    (ii) The airbag waste is packaged in a container designed to address the risk posed by the airbag waste and labeled “Airbag Waste-Do Not Reuse”;

    (iii) The airbag waste is sent directly to either:

    (A) An airbag waste collection facility in the United States under the control of a vehicle manufacturer or their authorized representative, or under the control of an authorized party administering a remedy program in response to a recall under the National Highway Traffic Safety Administration, or

    (B) A designated facility as defined in 40 CFR 260.10;

    (iv) The transport of the airbag waste complies with all applicable U.S. Department of Transportation regulations in 49 CFR part 171 through 180 during transit;

    (v) The airbag waste handler maintains at the handler facility for no less than three (3) years records of all off-site shipments of airbag waste and all confirmations of receipt from the receiving facility. For each shipment, these records must, at a minimum, contain the name of the transporter and date of the shipment; name and address of receiving facility; and the type and quantity of airbag waste (i.e., airbag modules or airbag inflators) in the shipment. Confirmations of receipt must include the name and address of the receiving facility; the type and quantity of the airbag waste (i.e., airbag modules and airbag inflators) received; and the date which it was received. Shipping records and confirmations of receipt must be made available for inspection and may be satisfied by routine business records (e.g., electronic or paper financial records, bills of lading, copies of DOT shipping papers, or electronic confirmations of receipt).

    (2) Once the airbag waste arrives at an airbag waste collection facility or designated facility, it becomes subject to all applicable hazardous waste regulations, and the facility receiving airbag waste is considered the hazardous waste generator for the purposes of the hazardous waste regulations and must comply with the requirements of 40 CFR part 262.

    (3) Reuse in vehicles of defective airbag modules or defective airbag inflators subject to a recall under the National Highway Traffic Safety Administration is considered sham recycling and prohibited under 40 CFR 261.2(g).

    PART 262—STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE 5. The authority citation for part 262 continues to read as follows: Authority:

    42 U.S.C. 6906, 6912, 6922-6925, 6937, 6938 and 6939g.

    Subpart A—General 6. Section 262.14 is amended by revising paragraphs (a) introductory text and (a)(5) to read as follows:
    § 262.14 Conditions for exemption for a very small quantity generator.

    (a) Provided that the very small quantity generator meets all the conditions for exemption listed in this section, hazardous waste generated by the very small quantity generator is not subject to the requirements of parts 124, 262 (except §§ 262.10 through 262.14) through 268, and 270 of this chapter, and the notification requirements of section 3010 of RCRA and the very small quantity generator may accumulate hazardous waste on site without complying with such requirements. The conditions for exemption are as follows:

    (5) A very small quantity generator that accumulates hazardous waste in amounts less than or equal to the limits in paragraphs (a)(3) and (4) of this section must either treat or dispose of its hazardous waste in an on-site facility or ensure delivery to an off-site treatment, storage, or disposal facility, either of which, if located in the U.S., is:

    (i) Permitted under part 270 of this chapter;

    (ii) In interim status under parts 265 and 270 of this chapter;

    (iii) Authorized to manage hazardous waste by a state with a hazardous waste management program approved under part 271 of this chapter;

    (iv) Permitted, licensed, or registered by a state to manage municipal solid waste and, if managed in a municipal solid waste landfill is subject to part 258 of this chapter;

    (v) Permitted, licensed, or registered by a state to manage non-municipal non-hazardous waste and, if managed in a non-municipal non-hazardous waste disposal unit, is subject to the requirements in §§ 257.5 through 257.30 of this chapter;

    (vi) A facility which:

    (A) Beneficially uses or reuses, or legitimately recycles or reclaims its waste; or

    (B) Treats its waste prior to beneficial use or reuse, or legitimate recycling or reclamation;

    (vii) For universal waste managed under part 273 of this chapter, a universal waste handler or destination facility subject to the requirements of part 273 of this chapter;

    (viii) A large quantity generator under the control of the same person as the very small quantity generator, provided the following conditions are met:

    (A) The very small quantity generator and the large quantity generator are under the control of the same person as defined in § 260.10 of this chapter. “Control,” for the purposes of this section, means the power to direct the policies of the generator, whether by the ownership of stock, voting rights, or otherwise, except that contractors who operate generator facilities on behalf of a different person as defined in § 260.10 of this chapter shall not be deemed to “control” such generators.

    (B) The very small quantity generator marks its container(s) of hazardous waste with:

    (1) The words “Hazardous Waste”; and

    (2) An indication of the hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the Department of Transportation requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the Occupational Safety and Health Administration Hazard Communication Standard at 29 CFR 1910.1200; or a chemical hazard label consistent with the National Fire Protection Association code 704);

    (ix)-(x) [Reserved]

    (xi) For airbag waste, an airbag waste collection facility or a designated facility subject to the requirements of § 261.4(j) of this chapter.

    [FR Doc. 2018-25892 Filed 11-29-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES 42 CFR Part 10 RIN 0906-AB19 340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties Regulation AGENCY:

    Health Resources and Services Administration, HHS.

    ACTION:

    Final rule; effective date change.

    SUMMARY:

    The Health Resources and Services Administration (HRSA) administers section 340B of the Public Health Service Act (PHSA), which is referred to as the “340B Drug Pricing Program” or the “340B Program.” HHS published a final rule on January 5, 2017, that set forth the calculation of the 340B ceiling price and application of civil monetary penalties. On June 5, 2018, HHS published a final rule that delayed the effective date of the 340B ceiling price and civil monetary rule until July 1, 2019, to consider alternative and supplemental regulatory provisions and to allow for sufficient time for additional rulemaking. On November 2, 2018, HHS issued a proposed rule to solicit comments to change the effective date from July 1, 2019, to January 1, 2019, and to cease any further delay of the rule. HHS proposed this action because it determined that the January 5, 2017, final rule has been subject to extensive public comment, and had been delayed several times. HHS has considered the full range of comments on the substantive issues in the January 5, 2017, final rule. After consideration of the comments received on the effective date of the proposed rule, HHS is changing the effective date of the January 5, 2017, final rule, to January 1, 2019.

    DATES:

    The effective date of the final rule published in the Federal Register on January 5, 2017, at 82 FR 1210, and delayed March 6, 2017 at 82 FR 12508, March 20, 2017 at 82 FR 14332, May 19, 2017 at 82 FR 22893, September 29, 2017 at 82 FR 45511, and June 5, 2018 at 83 FR 25944, is changed to January 1, 2019.

    FOR FURTHER INFORMATION CONTACT:

    CAPT Krista Pedley, Director, Office of Pharmacy Affairs, Healthcare Systems Bureau, HRSA, 5600 Fishers Lane, Mail Stop 08W05A, Rockville, MD 20857, or by telephone at 301-594-4353.

    SUPPLEMENTARY INFORMATION:

    I. Background

    HHS published a notice of proposed rulemaking (NPRM) in June 2015 to implement civil monetary penalties (CMPs) for manufacturers who knowingly and intentionally charge a covered entity more than the ceiling price for a covered outpatient drug; to provide clarity regarding the requirement that manufacturers calculate the 340B ceiling price on a quarterly basis and how the ceiling price is to be calculated; and to establish the requirement that a manufacturer charge a $.01 (penny pricing policy) for drugs when the ceiling price calculation equals zero (80 FR 34583, June 17, 2015). The public comment period closed on August 17, 2015, and HRSA received 35 comments.

    After review of the initial comments, HHS reopened the comment period (81 FR 22960, April 19, 2016) to invite additional comments on the following areas of the NPRM: 340B ceiling price calculations that result in a ceiling price that equals zero (penny pricing); the methodology that manufacturers use when estimating the ceiling price for a new covered outpatient drug; and the definition of the “knowing and intentional” standard to be applied when assessing a CMP for manufacturers that overcharge a covered entity. The comment period closed May 19, 2016, and HHS received 72 comments.

    On January 5, 2017, HHS published a final rule in the Federal Register (82 FR 1210, January 5, 2017). Comments from both the NPRM and the reopening notification were considered in the development of the final rule. The provisions of that rule were to be effective March 6, 2017; however, through a series of rules, HHS delayed the effective date of the January 5, 2017, final rule until July 1, 2019 (83 FR 25943, June 5, 2018). On November 2, 2018, HHS issued a proposed rule (83 FR 55135) to cease any further delay of the January 5, 2017, final rule and to change the effective date from July 1, 2019, to January 1, 2019. HHS received a number of comments both supporting and opposing the delay. After consideration of the comments received, HHS has decided to change the effective date of the January 5, 2017, final rule to January 1, 2019. The substantive provisions included in the January 5, 2017, final rule were subject to extensive public comment, and have been delayed several times. HHS has considered the full range of comments on the substantive issues in the January 5, 2017, final rule.

    In previous rulemaking, delaying the effective date of the January 5, 2017, final rule, HHS stated that it “is developing new comprehensive policies to address the rising costs of prescription drugs. These policies will address drug pricing in government programs, such as Medicare Parts B & D, Medicaid, and the 340B Program. Due to the development of these comprehensive policies, we are delaying the effective date for the January 5, 2017, final rule to July 1, 2019.” (83 FR 25944)

    However, as explained in the proposed rule, HHS has determined that the finalization of the 340B ceiling price and civil monetary penalty rule will not interfere with HHS's development of these comprehensive policies. Accordingly, HHS no longer believes a delay in the effective date is necessary and is changing the effective date of the rule from July 1, 2019, to January 1, 2019. The implementation date and the effective date will be the same.

    II. Analysis and Responses to Public Comments

    In the NPRM, HHS solicited comments to change the effective date from July 1, 2019, to January 1, 2019, and cease any further delay of the rule. HHS received approximately 160 comments, which contained a number of issues from covered entities, manufacturers, and groups representing these stakeholders. In this final rule, HHS will only respond to comments related to whether HHS should change the effective date of the January 5, 2017, final rule to January 1, 2019. HHS did not consider and does not address comments that raised issues beyond the narrow scope of the NPRM, including comments related to broader policy matters. HHS has summarized the relevant comments received and provided its responses below.

    Comment: Some commenters urge HHS not to change the effective date to January 1, 2019, and to further delay the rule to refocus the 340B Program on its mission, and issue new reforms. Commenters also express concern that the new ceiling price system has not yet been released, substantive guidance on the system has not been issued, and stakeholders will not have had an opportunity to gain experience in the system before the enforcement mechanism for the system becomes effective. These commenters recommend that HHS delay implementation until it rolls out the new ceiling price system in a thoughtful manner. Finally, the commenters state that first issuing substantive guidance on the new pricing system would be more consistent with fundamental fairness in a civil penalty enforcement context, inasmuch as program stakeholders should understand their substantive obligations and the timeframes for compliance prior to any enforcement activity.

    Response: HHS does not believe that the issuance of additional guidance is needed in order to implement this final rule. Current policies under the 340B Program already provide stakeholders with sufficient guidance regarding programmatic compliance. More specifically, the January 5, 2017, final rule contains information related to the calculation of the 340B ceiling price and the imposition of CMPs against manufacturers who knowingly and intentionally overcharge a covered entity. In addition, the development of the 340B ceiling price reporting system has proceeded under a separate information collection request (ICR) process that is operational in nature and has not been contingent upon the specific provisions contained in the January 5, 2017, final rule. The ICR was submitted and approved by OMB on September 28, 2015, after a formal notice and comment process (80 FR 22207, April 21, 2015, OMB No. 0915-0327). HHS plans to release the 340B ceiling pricing reporting system shortly and HHS will communicate further information through its website. HRSA will also ensure all impacted stakeholders receive education and training to prepare to utilize the 340B ceiling price reporting system.

    Comment: Commenters disagree with HHS that changing the effective date of the rule is necessary. Commenters also disagree that HHS has meaningfully responded to comments or considered the full range of comments on the substantive issues in the January 5, 2017, final rule, despite the rule being delayed several times. Commenters urge HHS to fully reconsider substantive comments on the January 5, 2017, final rule as the rule contains several policies that are inconsistent with the 340B statute and imposes unnecessary costs and needless administrative burdens on manufacturers.

    Response: HHS has decided to change the effective date of the final rule to January 1, 2019, as the rule has been subject to extensive public comment. HHS believes that it has had adequate time to consider comments on the substantive issues in the January 5, 2017, final rule. The rule is consistent with the 340B statute. HHS has the statutory authority under section 340B(d)(1)(B)(i)(I) of the PHSA to develop and publish through appropriate policy or regulatory issuance, the precisely defined standards and methodology for the calculation of 340B ceiling prices. HHS has undertaken the effort to issue the January 5, 2017, final rule to comply with this statutory provision. Section 340(d)(1)(B)(vi) of the PHSA also provides for the imposition of sanctions in the form of civil monetary penalties against manufacturers that knowingly and intentionally charge a covered entity a price for a 340B drug that exceeds the 340B ceiling price. HHS believes that CMPs provide a critical enforcement mechanism for HHS if manufacturers do not comply with statutory pricing obligations under the 340B Program.

    Comment: Some commenters express concern that HHS has not provided an adequate rationale for its change of view on the need for additional rulemaking and HHS has not released information related to the “comprehensive policies” that it has suggested it intends to promulgate. The commenters explain that HHS made a decision to change course and put the Final Rule into effect before it has fully analyzed and explained to the public its conclusions on key issues it identified as requiring further consideration. The commenters contend that this contradicts the deliberative rulemaking principles at the heart of the Administrative Procedures Act.

    Response: The effective date of the final rule, for which comments were collected multiple times, has now been delayed for almost two years. It has now been more than eight years since Congress instructed HHS to issue regulations concerning CMPs. The issues that HHS was examining are well documented in the January 5, 2017, final rule. Furthermore, HHS does not believe that a January 1, 2019, effective date will undermine the comprehensive policies under consideration within the Department to address rising drug prices. Given the significant delays, HHS feels that it would be more efficient for the rule to go into effect and assess the need for further rulemaking and guidance after the rule is in effect.

    Comment: Some commenters express concern that HHS has not fully considered any new comprehensive policies that will curb the rising cost of drug prices and the 340B Program's impact on those rising prices. The commenters state that in previous rulemaking, HHS has stated that it would be counterproductive to effectuate the final rule prior to a more deliberative process of considering additional or alternative drug reform measures as HHS is in the process of developing new comprehensive policies to address the rising cost of prescription drugs, not limited to the 340B Program. These comments also explain that there is no basis for HHS to suddenly move up the effective date by six months and there is no material development that rationally justifies HHS's change of view on the need for additional rulemaking. They urge HHS to further delay until additional rulemaking is completed, as opposed to specifying a date certain.

    Response: HHS disagrees with the commenters. HHS has issued several policies related to lowering prescription drug prices, particularly in the Medicare Program. HHS also notes that as previously discussed in other rulemaking related to this issue, HHS continues to explore other policy documents related to drug pricing in government programs, including the 340B Program.

    In addition, commenters have not demonstrated that the finalization of the January 5, 2017, final rule would interfere with HHS's development of these comprehensive policies. As such, HHS does not believe that any further delay is necessary and is changing the effective date of the final rule from July 1, 2019, to January 1, 2019.

    The effective date of the final rule has been delayed for nearly two years, which has provided affected entities more than enough time to prepare for its requirements.

    Comment: Several commenters urge HHS to specify that the January 5, 2017, final rule's effective date is at least two quarters after the final rule's publication in the Federal Register. These commenters raise that in the January 5, 2017, final rule, HHS explicitly noted that the implementation date would be April 1, 2017, the beginning of the next quarter thereby providing a full quarter for implementation. They believe that HHS should follow the same logic here and anticipate publication of a final rule around January 1, 2019, with implementation coinciding with the beginning of the second quarter of 2019, April 1, 2019. They contend that many companies have not completed operational and other process changes because manufacturers fully expected that HHS would revisit the rule and address the rule's significant infirmities. These commenters raise that HHS previously indicated that it would delay the January 5, 2017, final rule to July 1, 2019, and an abrupt change such as this, with fewer than 60 days to implement, makes it difficult for companies—particularly smaller manufacturers—to upgrade their operational systems in time to ensure compliance with the rule. These commenters explain that there is no precedent where the established effective date of a rule imposing substantial compliance burdens on regulated parties was accelerated. Finally, these commenters state that reducing the effective date by six months will negatively affect their ability to come into compliance, which could be compounded by the implementation of the CMP provisions.

    Response: Based on the review of the comments received, HHS has determined that the January 5, 2017, final rule will be effective January 1, 2019. The implementation date and the effective date will be the same. Unlike the previous rule, which was effective in the middle of a quarter, this rule is effective at the beginning of a quarter. HHS does not agree that a further delay is necessary for implementation. Manufacturers that offer 340B ceiling prices as of the quarter beginning January 1, 2019, must comply with the requirements of the January 5, 2017, final rule. HHS believes that since the January 5, 2017, final rule was issued, stakeholders have had sufficient time to adjust systems and update their policies and procedures.

    Comment: Some commenters urge HHS to publish the ceiling price data on a secure website shortly after January 1, 2019, because the website is essential for effective enforcement of the 340B Program. These commenters explain that entities have no way of detecting overcharges and are at the mercy of manufacturers.

    Response: While the ceiling price reporting system is not directly governed by this rule, HHS agrees that covered entities will be able to utilize the system to detect overcharges. As previously stated, the 340B ceiling pricing reporting system is forthcoming, and HHS will convey further updates through its website. HRSA will ensure all impacted stakeholders receive education and training on how to utilize the system.

    Comment: Many commenters supported changing the effective date to January 1, 2019, and stated that any other delay would be unreasonable and would continue to reward manufacturers that are flouting ceiling price requirements. The commenters urge HHS to promptly enforce the final rule in order to bring drug companies into compliance and to ensure that 340B providers are able to “stretch scarce federal resources as far as possible, reaching more eligible patients and providing more comprehensive services” as Congress intended. The commenters state that the rule is entirely consistent with HHS's stated goal of addressing the issue of the rising costs of prescription drugs. These commenters also explain that CMPs are an important deterrent to manufacturers who knowingly overcharge entities and initiatives to strengthen manufacturer transparency should be supported.

    Response: For reasons stated above, HHS agrees with the commenters that any other delay is unreasonable and will change the effective date of the January 5, 2017, final rule, to January 1, 2019.

    III. Regulatory Impact Analysis

    HHS has examined the effects of this final rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 8, 2011), the Regulatory Flexibility Act (September 19, 1980, Pub. L. 96-354), the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132 on Federalism (August 4, 1999).

    Executive Orders 12866, 13563, and 13771

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866, emphasizing the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

    Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year), and a “significant” regulatory action is subject to review by the Office of Management and Budget (OMB).

    HHS does not believe that this final rule to change the effective date of the January 5, 2017, final rule from July 1, 2019, to January 1, 2019, will have an economic impact of $100 million or more in any 1 year, and is therefore not designated as an “economically significant” final rule under section 3(f)(1) of Executive Order 12866. The 340B Program as a whole creates significant savings for entities purchasing drugs through the program, with total purchases estimated to be $19 billion in CY 2017. This final rule to implement the January 5, 2017, final rule would codify current policies regarding calculation of the 340B ceiling price and manufacturer civil monetary penalties. HHS does not anticipate that the imposition of civil monetary penalties would result in significant economic impact.

    When the 2017 Rule was finalized, it was described as not economically significant. Therefore, changing the effective date of the 2017 Rule is also not likely to have an economically significant impact.

    Specifically, the RIA for the 2017 Rule stated that, “[. . .]manufacturers are required to ensure they do not overcharge covered entities, and a civil monetary penalty could result from overcharging if it met the standards in this final rule. HHS envisions using these penalties in rare situations. Since the Program's inception, issues related to overcharges have been resolved between a manufacturer and a covered entity and any issues have generally been due to technical errors in the calculation. For the penalties to be used as defined in the statute and in this [2017] rule, the manufacturer overcharge would have to be the result of a knowing and intentional act. Based on anecdotal information received from covered entities, HHS anticipates that this would occur very rarely if at all.” Since the civil penalties envisioned in the 2017 Rule were expected to be rare, changing the effective date of these civil penalties is unlikely to have an economically significant impact.

    Executive Order 13771 (January 30, 2017) requires that the costs associated with significant new regulations “to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.” This rule is not subject to the requirements of Executive Order 13771 because this rule results in no more than de minimis costs.

    The Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) and the Small Business Regulatory Enforcement and Fairness Act of 1996, which amended the RFA, require HHS to analyze options for regulatory relief of small businesses. If a rule has a significant economic effect on a substantial number of small entities, the Secretary must specifically consider the economic effect of the rule on small entities and analyze regulatory options that could lessen the impact of the rule. HHS will use an RFA threshold of at least a three percent impact on at least five percent of small entities.

    The final rule would affect drug manufacturers (North American Industry Classification System code 325412: Pharmaceutical Preparation Manufacturing). The small business size standard for drug manufacturers is 750 employees. Approximately 600 drug manufacturers participate in the Program. While it is possible to estimate the impact of the final rule on the industry as a whole, the data necessary to project changes for specific manufacturers or groups of manufacturers were not available, as HRSA does not collect the information necessary to assess the size of an individual manufacturer that participates in the 340B Program. For purposes of the RFA, HHS considers all health care providers to be small entities either by virtue of meeting the Small Business Administration (SBA) size standard for a small business, or for being a nonprofit organization that is not dominant in its market. The current SBA size standard for health care providers ranges from annual receipts of $7 million to $35.5 million. As of January 1, 2017, over 12,000 covered entities participate in the 340B Program, which represent safety-net healthcare providers across the country. HHS has determined, and the Secretary certifies that this final rule will not have a significant impact on the operations of a substantial number of small manufacturers; therefore, we are not preparing an analysis of impact for the purposes of this RFA. HHS estimates that the economic impact on small entities and small manufacturers will be minimal and less than 3 percent.

    Unfunded Mandates Reform Act

    Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies 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 million or more (adjusted annually for inflation) in any one year.” In 2018, that threshold is approximately $150 million. HHS does not expect this rule to exceed the threshold.

    Executive Order 13132—Federalism

    HHS has reviewed this final rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” This rule would not “have substantial direct effects on the States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” The proposal to rescind the June 5, 2018, final rule and make the January 5, 2017, final rule effective as of January 1, 2019, would not adversely affect the following family elements: Family safety, family stability, marital commitment; parental rights in the education, nurture, and supervision of their children; family functioning, disposable income or poverty; or the behavior and personal responsibility of youth, as determined under Section 654(c) of the Treasury and General Government Appropriations Act of 1999.

    Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that OMB approve all collections of information by a Federal agency from the public before they can be implemented. This final rule is projected to have no impact on current reporting and recordkeeping burden for manufacturers under the 340B Program. Changes finalized in this rule would result in no new reporting burdens.

    Dated: November 27, 2018. George Sigounas, Administrator, Health Resources and Services Administration. Approved: November 28, 2018. Alex M. Azar II, Secretary, Department of Health and Human Services.
    [FR Doc. 2018-26223 Filed 11-29-18; 8:45 am] BILLING CODE 4165-15-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 416 and 419 [CMS-1695-CN] RIN 0938-AT30 Medicare Program: Changes to Hospital Outpatient Prospective Payment and Ambulatory Surgical Center Payment Systems and Quality Reporting Programs; Correction AGENCY:

    Centers for Medicare & Medicaid Services (CMS), HHS.

    ACTION:

    Final rule; correction.

    SUMMARY:

    This document corrects an error that appeared in the final rule with comment period published in the Federal Register on November 21, 2018, entitled “Medicare Program: Changes to Hospital Outpatient Prospective Payment and Ambulatory Surgical Center Payment Systems and Quality Reporting Programs.” Specifically, this document corrects the public comment period end date. The corrected date is January 2, 2019.

    DATES:

    Effective date: This correction is effective November 29, 2018.

    Comment period: To be assured consideration, comments on the payment classifications assigned to the interim APC assignments and/or status indicators of new or replacement Level II HCPCS codes in FR Doc. 2018-24243 of November 21, 2018 (83 FR 58818), must be received at one of the addresses provided in the ADDRESSES section no later than 5 p.m. EST on January 2, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Marjorie Baldo, (410) 786-4617.

    SUPPLEMENTARY INFORMATION:

    I. Background

    In FR Doc. 2018-24243 of November 21, 2018 (83 FR 58818), entitled “Medicare Program: Changes to Hospital Outpatient Prospective Payment and Ambulatory Surgical Center Payment Systems and Quality Reporting Programs” (hereinafter referred to as the CY 2019 OPPS/ASC final rule with comment period), there was an error that is identified and corrected in the Correction of Errors section below.

    II. Summary of Errors

    On page 58818, we made an error in the DATES section under the heading “Comment period.” We inadvertently stated that comments on the payment classifications assigned to the interim Medicare Ambulatory Payment Classification (APC) assignments and/or status indicators of new or replacement Level II Healthcare Common Procedure Coding System (HCPCS) codes in the final rule with comment period must be received no later than 5 p.m. EST on December 3, 2018. The corrected date is January 2, 2019, 60 days from the date of filing for public inspection.

    III. Waiver of Proposed Rulemaking

    Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), the agency is required to publish a notice of the proposed rule in the Federal Register before the provisions of a rule take effect. Similarly, section 1871(b)(1) of the Act requires the Secretary to provide for notice of the proposed rule in the Federal Register and provide a period of not less than 60 days for public comment. In addition, section 553(d) of the APA and section 1871(e)(1)(B)(i) mandate a 30-day delay in effective date after issuance or publication of a rule. Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions from the notice and comment and delay in effective date of the APA requirements; in cases in which these exceptions apply, sections 1871(b)(2)(C) and 1871(e)(1)(B)(ii) of the Act provide exceptions from the notice and 60-day comment period and delay in effective date requirements of the Act as well. Section 553(b)(B) of the APA and section 1871(b)(2)(C) of the Act authorize an agency to dispense with normal rulemaking requirements for good cause if the agency makes a finding that the notice and comment process is impracticable, unnecessary, or contrary to the public interest. In addition, both section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) of the Act allow the agency to avoid the 30-day delay in effective date where such delay is contrary to the public interest and an agency includes a statement of support.

    We believe that this correcting document does not constitute a rulemaking that would be subject to these requirements. This correcting document corrects a technical error in the preamble to the CY 2019 OPPS/ASC final rule with comment period but does not make substantive changes to the policies or payment methodologies that were adopted in the final rule. Rather, it is intended to ensure that the public has 60 days to comment on the payment classifications assigned to the interim APC assignments and/or status indicators of new or replacement Level II HCPCS codes in the CY 2019 OPPS/ASC final rule with comment period, which is the duration of the typical comment period on these topics.

    In addition, even if this were a rulemaking to which the notice and comment procedures and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the correction in this document into the final rule or delaying the effective date would be contrary to the public interest because it is in the public's interest to have adequate time to comment on the payment classifications assigned to the interim APC assignments and/or status indicators of new or replacement Level II HCPCS codes included in the CY 2019 OPPS/ASC final rule with comment period.

    Furthermore, such procedures would be unnecessary, as we are not altering our payment methodologies or policies, but rather, we are simply correcting the incorrect comment period end date. This correcting document is intended solely to ensure that the comment period end date included in the CY 2019 OPPS/ASC final rule with comment period is correct for those items on which the public can submit public comments. For these reasons, we believe we have good cause to waive the notice and comment and effective date requirements.

    IV. Correction of Errors

    In FR Doc. 2018-24243 of November 21, 2018 (83 FR 58818), make the following corrections:

    1. On page 58818, in the second column, in the DATES section, under the heading “Comment Period,” correct “December 3, 2018” to read “January 2, 2019”.

    Dated: November 26, 2018. Ann C. Agnew, Executive Secretary to the Department, Department of Health and Human Services.
    [FR Doc. 2018-26079 Filed 11-29-18; 8:45 am] BILLING CODE 4120-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 151211999-6343-02] RIN 0648-XG607 Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Georges Bank Cod Trip Limit Adjustment for the Common Pool Fishery AGENCY:

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

    ACTION:

    Temporary rule; inseason adjustment.

    SUMMARY:

    This action adjusts the possession and trip limits of Georges Bank cod for Northeast multispecies common pool vessels for the remainder of the 2018 fishing year, in order to ensure that the common pool fishery is able to harvest, but not exceed, its annual quota for the stock. These changes are intended to provide the common pool fishery with additional fishing opportunities.

    DATES:

    These possession and trip limit adjustment are effective November 29, 2018, through April 30, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Spencer Talmage, Fishery Management Specialist, 978-281-9232.

    SUPPLEMENTARY INFORMATION:

    Possession and Trip Limit Increase for Georges Bank Cod

    The regulations at § 648.86(o) authorize the Regional Administrator to adjust the possession and trip limits for common pool vessels in order to help avoid the overharvest or underharvest of the common pool quotas.

    Based on information reported through October 13, 2018, the common pool fishery has caught 5,797 lb (2.6 mt) of Georges Bank (GB) cod, or approximately 11 percent of its 53,374 lb (24.2 mt) annual quota. At the current rate of fishing, the common pool fishery is not projected to fully harvest its annual quota for the stock by the end of the 2018 fishing year. A moderate increase in the possession and trip limits for the stock will provide additional opportunities with little risk of exceeding the common pool quota of the stock.

    Effective November 29, 2018, the possession and trip limit of GB cod is increased, as summarized in Table 1. Common pool groundfish vessels that have declared their trip through the vessel monitoring system (VMS) or interactive voice response system, and crossed the VMS demarcation line prior to November 29, 2018, may land at the new possession and trip limits for that trip.

    Table 1—Current and New Possession and Trip Limits for GB Cod Permit type Current possession/trip limits New possession/trip limits Day-At-Sea (DAS) 100 lb (45.4 kg) per DAS, up to 200 lb (90.7 kg) per trip (Outside of the Eastern U.S./Canada Area)
  • 100 lb (45.4 kg) per DAS, up to 500 lb (226.8 kg) per trip (Inside the Eastern U.S./Canada Area)
  • 250 lb (113.4 kg) per DAS, up to 500 lb (226.8 kg) per trip.
    Handgear A 100 lb (45.4 kg) per trip 250 lb (113.4 kg) per trip. Handgear B 25 lb (11.3 kg) per trip unchanged. Small Vessel Category * 100 lb (45.4 kg) per trip 250 lb (113.4 kg) per trip. * The Small Vessel Category trip limit of 300 lb of cod, yellowtail flounder, and haddock combined remains in place.
    Reduction of the GB Cod Trip Limit in the Closed Area II Haddock Special Access Program

    The projection supporting the increase of the common pool possession and trip limits for GB cod is based on the assumption that the common pool fleet fishes primarily within the Western U.S./Canada area, outside of any Special Access Programs (SAPs), as it has done for several years. As described in 50 CFR 648.85(b), SAPs are established to authorize specific fisheries to allow increased yield of certain target stocks without undermining the achievement of the goals of the Northeast Multispecies Fishery Management Plan. The Closed Area II Haddock SAP (CA2 SAP) has a limit of 1,000 lb (453.6 kg) per trip of GB cod, which is double the GB cod trip limit for common pool vessels not participating in the SAPs.

    Under a worst-case scenario projection, the common pool fleet could take up to 12 trips within the CA2 SAP at 1,000 lb (453.6 kg) per trip. In this scenario, the common pool could potentially land the entire common pool Eastern GB cod sub-ACL of 11,500 lb (5.2 mt), and could substantially contribute to exceeding the entire common pool GB cod sub-ACL.

    In order to avoid this worst case scenario that would contribute to the common pool exceeding its quotas, effective November 29, 2018, the trip limit of GB cod for common pool vessels participating in the CA2 SAP is set to 500 lb (226.8 kg) per trip. In addition, this change may help avoid confusion and facilitate enforcement by making the CA2 SAP GB cod trip limit consistent with other common pool limits for the stock.

    Common pool groundfish vessels participating in the affected SAPs that have declared their trip through the vessel monitoring system (VMS) or interactive voice response system, and crossed the VMS demarcation line prior to November 29, 2018, are not subject new possession and trip limits for that trip.

    Weekly quota monitoring reports for the common pool fishery can be found on our website at: http://www.greateratlantic.fisheries.noaa.gov/ro/fso/MultiMonReports.htm. We will continue to monitor common pool catch through vessel trip reports, dealer-reported landings, VMS catch reports, and other available information and, if necessary, we will make additional adjustments to common pool management measures.

    Classification

    This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

    The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3) to waive prior notice and the opportunity for public comment and the 30-day delayed effectiveness period because it would be impracticable and contrary to the public interest.

    The catch data used as the basis for this action only recently became available. The available analysis indicates that the increased possession and trip limit adjustments for GB cod will help the fishery achieve the optimum yield (OY) for this stock. Any delay in this action would limit the benefits to common pool vessels that this action is intended to provide.

    The decrease in the CA2 SAP trip limit reduces the low likelihood of overages should vessels participate in the CA2 SAP. An overage of the common pool quota for this stock would undermine conservation objectives and trigger the implementation of accountability measures that could reduce available catch in the next fishing year, which would have negative economic impacts on the common pool fishery.

    The time necessary to provide for prior notice and comment, and a 30-day delay in effectiveness, would keep NMFS from implementing the necessary possession and trip limit changes in a timely manner, which could prevent the fishery from achieving the OY and cause negative economic impacts to the common pool fishery.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 26, 2018. Karen H. Abrams, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-26072 Filed 11-29-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 171023999-8440-02] RIN 0648-XG581 Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2018 Tribal Fishery Allocations for Pacific Whiting; Reapportionment Between Tribal and Non-tribal Sectors AGENCY:

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

    ACTION:

    Temporary rule; reapportionment of tribal Pacific whiting allocation.

    SUMMARY:

    This document announces the reapportionment of 40,000 metric tons of Pacific whiting from the tribal allocation to the non-tribal commercial fishery sectors via automatic action on September 24, 2018. This reapportionment is to allow full utilization of the Pacific whiting resource.

    DATES:

    The reapportionment of Pacific whiting was applicable from 12 noon local time, September 24, 2018 through December 31, 2018. Comments will be accepted through December 17, 2018.

    ADDRESSES:

    You may submit comments, identified by NOAA-NMFS-2017-0160 by any of the following methods:

    Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal at www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0160. Click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Barry A. Thom, Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Miako Ushio.

    Instructions: Comments sent by any other method to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record. 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). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

    FOR FURTHER INFORMATION CONTACT:

    Miako Ushio (West Coast Region, NMFS), phone: 206-526-4644 or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Electronic Access

    This document is accessible online at the Office of the Federal Register's website at http://www.thefederalregister.org/fdsys/search/home.action. Background information and documents are available at NMFS' West Coast Region website at www.westcoast.fisheries.noaa.gov/fisheries/management/whiting/pacific_whiting.html

    Background Pacific Whiting

    Pacific whiting (Merluccius productus) is a very productive species with highly variable recruitment (the biomass of fish that mature and enter the fishery each year) and a relatively short life span when compared to other groundfish species. Pacific whiting has the largest annual allowable harvest levels (by volume) of the more than 90 groundfish species managed under the Pacific Coast Groundfish Fishery Management Plan (FMP), which governs the groundfish fishery off Washington, Oregon, and California. The coastwide Pacific whiting stock is managed jointly by the United States and Canada, and mature Pacific whiting are commonly available to vessels operating in U.S. waters from April through December. Background on the stock assessment, and the establishment of the 2018 Total Allowable Catch (TAC), for Pacific whiting was provided in the final rule for the 2018 Pacific whiting harvest specifications, published May 15, 2018 (83 FR 22401). Pacific whiting is allocated to the Pacific Coast treaty tribes (tribal fishery) and to three non-tribal commercial sectors: The catcher/processor cooperative (C/P Coop), the mothership cooperative (MS Coop), and the Shorebased Individual Fishery Quota (IFQ) Program.

    This document announces the reapportionment of 40,000 metric tons (mt) of Pacific whiting from the tribal allocation to the non-tribal commercial sectors on September 24, 2018. Regulations at 50 CFR 660.131(h) contain provisions that allow the Regional Administrator to reapportion Pacific whiting from the tribal allocation, specified at 50 CFR 660.50, that will not be harvested by the end of the fishing year to other sectors.

    Pacific Whiting Reapportionment

    For 2018, the Pacific Coast treaty tribes were allocated 77,251 mt of Pacific whiting. The best available information on September 24, 2018, indicated that less than 5,000 mt of the 2018 allocation had been harvested, and at least 40,000 mt of the tribal allocation would not be harvested by December 31, 2018. To allow for increased utilization of the resource, on September 24, 2018, NMFS reapportioned 40,000 mt from the Tribal sector to the Shorebased IFQ Program, C/P Coop, and MS Coop in proportion to each sector's original allocation. Reapportioning this amount is expected to allow for greater attainment of the TAC while not limiting tribal harvest opportunities for the remainder of the year. NMFS provided notice of the reapportionment on September 24, 2018, via emails sent directly to fishing businesses and individuals, and postings on the NMFS West Coast Region website. Reapportionment was effective the same day as the notice.

    The amounts of Pacific whiting available for 2018 before and after the reapportionment are described in the table below.

    Sector Initial 2018
  • allocation
  • (mt)
  • Final 2018
  • allocation
  • (mt)
  • Tribal 77,251 37,251 C/P Coop 123,312 136,912 MS Coop 87,044 96,644 Shorebased IFQ Program 152,326.5 169,127
    Classification

    NOAA's Assistant Administrator for Fisheries (AA) finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment pursuant to 5 U.S.C. 553(b)(B), because such notification would be impracticable and contrary to the public interest. As previously noted, NMFS provided actual notice of the reapportionment to fishery participants at the time of the action. Prior notice and opportunity for public comment on this reapportionment was impracticable because NMFS had insufficient time to provide prior notice between the time the information about the progress of the fishery needed to make this determination became available and the time at which fishery modifications had to be implemented in order to allow fishers access to the available fish during the remainder of the fishing season. For the same reasons, the AA also finds good cause to waive the 30-day delay in effectiveness for these actions, required under 5 U.S.C. 553(d)(3).

    These actions are authorized by §§ 660.55 (i), 660.60(d) and 660.131(h) and are exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq. and 16 U.S.C. 7001 et seq.

    Dated: November 27, 2018. Karen H. Abrams, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-26043 Filed 11-29-18; 8:45 am] BILLING CODE 3510-22-P
    83 231 Friday, November 30, 2018 Proposed Rules COMMODITY FUTURES TRADING COMMISSION 17 CFR Chapter I RIN Number 3038-AE79 Post-Trade Name Give-Up on Swap Execution Facilities AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Request for comment.

    SUMMARY:

    The Commodity Futures Trading Commission (Commission or CFTC) is requesting public comment regarding the practice of “post-trade name give-up” on swap execution facilities.

    DATES:

    Comments must be received on or before January 29, 2019.

    ADDRESSES:

    You may submit comments, identified by “Post-Trade Name Give-Up on Swap Execution Facilities” and RIN number 3038-AE79, by any of the following methods:

    The agency's website: http://comments.cftc.gov. Follow the instructions for submitting comments.

    Mail: Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Center, 1155 21st Street NW, Washington, DC 20581.

    Hand Delivery/Courier: Same as Mail, above.

    All comments must be submitted in English or, if not, accompanied by an English translation. Comments will be posted as received to http://www.cftc.gov. You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act,1 a petition for confidential treatment of the exempt information may be submitted according to the procedures established in Commission Regulation 145.9.2

    1 5 U.S.C. 552.

    2 17 CFR 145.9. Commission regulations referred to herein are found at 17 CFR chapter I.

    The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from http://www.cftc.gov that it may deem to be inappropriate for publication, such as obscene language. All submissions that have been redacted or removed that contain comments on the merits of this request for comment will be retained in the public comment file and will be considered as required under the Administrative Procedure Act and other applicable laws, and may be accessible under the Freedom of Information Act.

    FOR FURTHER INFORMATION CONTACT:

    Aleko Stamoulis, Special Counsel, (202) 418-5714, [email protected]v; or Nhan Nguyen, Special Counsel, (202) 418-5932, [email protected], Division of Market Oversight, Commodity Futures Trading Commission, 1155 21st Street NW, Washington, DC 20581.

    SUPPLEMENTARY INFORMATION:

    I. Background

    Historically, swaps traded in over-the-counter (“OTC”) markets rather than on regulated exchanges. Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) 3 amended the Commodity Exchange Act (“CEA” or “Act”) 4 to establish a new regulatory framework for swaps. This new framework included, among other reforms, the registration and regulation of swap execution facilities (“SEFs”) 5 and the mandatory clearing of certain swaps by derivatives clearing organizations (“DCOs”).6 SEFs and DCOs have since become a significant part of swaps trading infrastructure and have helped to transition a large portion of swaps trading from unregulated, uncleared OTC markets to regulated trading venues and central clearing.

    3 Public Law 111-203, 124 Stat. 1376 (2010).

    4 7 U.S.C. 1 et seq.

    5See CEA section 5h, as enacted by section 733 of the Dodd-Frank Act; 7 U.S.C. 7b-3. See also Core Principles and Other Requirements for SEFs, 78 FR 33476 (June 4, 2013).

    6See Section 2(h)(1)(A) of the CEA, as enacted by section 723 of the Dodd-Frank Act; 7 U.S.C. 2(h)(1)(A). In 2012, the Commission issued final rules to implement the clearing requirement determination under section 723 of the Dodd-Frank Act. The final rules required certain classes of credit default swaps and interest rate swaps to be cleared by DCOs registered with the Commission. Clearing Requirement Determination Under Section 2(h) of the CEA, 77 FR 74284 (Dec. 13, 2012).

    Many swaps are traded on SEFs through trading methods and protocols that are electronic, voice-based, or a hybrid of both; and that provide for anonymous trade execution, trade execution on a name-disclosed basis, or a combination thereof. This variety of trading methods and protocols has developed because of the broad and diverse range of products traded in the swaps market that trade mostly episodically rather than on a continuous basis. The decision by a market participant to use one execution method or another depends on considerations such as the type of swap, transaction size, complexity, the swap's liquidity at a given time, the number of potential liquidity providers, and the associated desire to minimize potential information leakage and front-running risks.

    “Post-trade name give-up” is a long-standing market practice in many swaps markets and originated as a necessary practice in OTC markets for uncleared swaps. Post-trade name give-up refers to the practice of disclosing the identity of each swap counterparty to the other after a trade has been matched anonymously. In the case of uncleared swaps, post-trade name give-up enables a market participant to perform a credit-check on its counterparty prior to finalizing a trade. Due to the bilateral counterparty relationship that exists in an uncleared swap agreement, post-trade name give-up is also necessary in order to keep track of credit exposure and payment obligations with respect to individual counterparties.

    For trades that are cleared, however, the rationale for post-trade name give-up is less clear cut. That is because a DCO enables each party to substitute the credit of the DCO for the credit of the parties, thereby eliminating individual credit risk and counterparty exposure. Swaps that are intended to be cleared are subject to pre-execution credit checks and straight-through processing requirements, effectively eliminating counterparty risk and, presumably, the need for market participants to know the identities of counterparties to anonymously matched trades.

    Post-trade name give-up continues today in some swaps markets, including with respect to swaps that are anonymously executed and cleared. Such disclosure may be made by a SEF as part of its trading protocols, or through middleware used for trade processing and routing trades to DCOs. For example, when a swap is matched using a voice-based execution method, a SEF employee may verbally disclose to a party the name of the other party to the trade. For swaps executed electronically on an anonymous order book, disclosure of counterparty names can occur through an electronic notification provided by the SEF after the trade is matched. Post-trade name give-up can also occur through third-party middleware and associated trade processing and affirmation services that provide counterparties with various trade details captured from SEF trading systems, including the identity of the party on the other side of a trade.7

    7 Trade affirmation refers to a process that occurs after a trade is executed whereby counterparties verify and affirm the details of the trade before submitting it for settlement. Third-party trade processing and affirmation services commonly used for SEF trades include MarkitWire and ICE Link. The Commission has provided that SEFs may use such services to route trades to DCOs if the routing complies with § 37.702(b). See Core Principles and Other Requirements for SEFs, 78 FR 33476, 33535 (June 4, 2013).

    As the swaps market increasingly becomes a cleared market, the Commission believes that it is reasonable to ask whether the post-trade name give-up practice continues to serve a valid industry purpose in facilitating swaps trading. A variety of views exist on both sides of this issue, depending on one's position in the market. Some industry participants have criticized the continued practice of post-trade name give-up in cleared swaps markets. During a meeting of the Commission's Market Risk Advisory Committee held in April 2015, several participants in a panel on SEFs identified post-trade name give-up as a concern with respect to SEF trading.8 Post-trade name give-up is said to deter buy-side participation on some SEFs due to the prospect of information leakage, whereby disclosing the identity of a market participant could potentially expose the participant's trading intentions, strategies, positions, or other sensitive information to competitors or dealers.9 Some industry participants have also alleged that post-trade name give-up serves as a policing mechanism used by swaps dealers to retaliate against non-dealer firms that attempt to trade on interdealer markets.10 Such interdealer markets provide for competitive execution of large-sized trades at wholesale prices. Buy-side participants that have interest in trading on interdealer markets and otherwise meet participation criteria to join these platforms are said to be deterred because of post-trade name give-up.11 Based on these concerns, critics of post-trade name give-up have argued that the practice is anticompetitive, hinders liquidity, and lacks credible justification in cleared swaps markets where participants are not exposed to counterparty credit risk.12

    8See Transcript of CFTC Market Risk Advisory Committee Meeting (April 2, 2015) (“MRAC Transcript”) at 133 et seq., available at https://www.cftc.gov/About/CFTCCommittees/MarketRiskAdvisoryCommittee/mrac_meetings.html.

    9See MRAC Transcript at 142-144, 164. See also Managed Funds Association Position Paper: Why Eliminating Post-Trade Name Disclosure Will Improve the Swaps Market (Mar. 31, 2015) (“MFA Position Paper”), p. 4-5. The Commission notes that other factors, such as the current lack of certain trading features, e.g., the ability to calculate volume-weighted average pricing on an order book may have also deterred buy-side participation on certain SEFs.

    10See In re: Interest Rate Swaps Antitrust Litigation, 261 F.Supp.3d 430, 458-59 (S.D.N.Y. 2017) (“The compulsory disclosure of swap counterparties, plaintiffs claim, serves as a policing mechanism, allowing the Dealers to retaliate against entities that attempt to trade on all-to-all platforms.”).

    11 The argument is that swap dealers threaten to shun platforms in the interdealer markets that attempt to execute trades between dealers and non-dealers.

    12See MRAC Transcript at 169-71; MFA Position Paper at 4-5, 8.

    Other industry participants have claimed that post-trade name give-up is an important tool used to mitigate liquidity risk or the risk that traders will game the market.13 Some participants argue that as bank market-making capital becomes further constrained by regulations,14 liquidity providers need to more precisely allocate their bank capital among their customer base in coordination with their overall bank cross-marketing strategies. Without the information provided by post-trade name give-up, the ability to make such allocations would become more difficult. As a result, liquidity providers would be less willing to provide liquidity to the market, especially in times of crisis, and charge higher prices to customers.15 This outcome arguably would hurt all market participants.

    13See, e.g., Tom Osborn, How to game a Sef: Banks fear arrival of arbitrageurs, Risk.net (Mar. 19, 2014).

    14 Such post-financial crisis regulatory reforms include the Volcker Rule, Basel III Accords, capital charges and other bank capital-based restrictions. See Anthony J. Perrotta, Jr., An E-Trading UST Market `Flash Crash'? Not So Fast, TABB Group, Nov. 24, 2014, http://tabbforum.com/opinions/an-e-trading-treasury-market-‘flash-crash'-not-so-fast (discussing regulatory capital constraints and declining market liquidity).

    15 Peter Madigan, CFTC to Test Role of Anonymity in Sef Order Book Flop, Risk.net, Nov. 21, 2014, available at http://www.risk.net/risk-magazine/feature/2382497/cftc-to-test-role-of-anonymity-in-sef-order-book-flop. Short of exiting the market entirely, some swaps dealers might become more selective in providing liquidity (holding back in times of market stress and volatility, for example) out of concern that they may not be able to adequately hedge their risk in interdealer markets.

    Another reported concern is that buy-side clients may undercut prices from dealers, for example, by posting aggressive bids or offers on an interdealer order book and then soliciting dealers through a request-for-quote (“RFQ”) on a dealer-to-client platform, hoping to motivate dealers to provide more favorable quotes based on prices posted in the order book.16 Post-trade name give-up is said to mitigate these concerns because it can help to identify a client that is attempting to game the market.

    16See id.

    II. Request for Comment

    The Commission requests comment from the public relating to the practice of post-trade name give-up on SEF markets where trades are anonymously executed and intended to be cleared. The Commission encourages all comments, including relevant background information, actual market examples, best practice principles, expectations for possible impacts on market structure and market liquidity, and estimates of any asserted costs and expenses. The Commission also encourages substantiating data, statistics, and any other information that supports any such comments. In particular, the Commission requests comment on the following questions:

    Question 1: What utility or benefits (e.g., commercial, operational, legal, or other) does post-trade name give-up provide in SEF markets where trades are anonymously executed and cleared? Is post-trade name give-up a necessary or appropriate means to achieve such benefits?

    Question 2: Does post-trade name give-up result in any restraint of trade, or impose any anticompetitive burden on swaps trading or clearing?

    Question 3: Should the Commission intervene to prohibit or otherwise set limitations with respect to post-trade name give-up? If so, what regulatory limitations should be set and how should they be set in a manner that is consistent with the CEA? What would be the potential costs and/or benefits of doing so? What might be the potential impacts on liquidity, pricing, and trading behavior? Would a prohibition cause dealers to remove liquidity from the market or charge higher prices? Would new liquidity makers fully and consistently act in the market to make up any shortfall in liquidity?

    Question 4: Should post-trade name give-up be subject to customer choice or SEF choice given the flexible execution methods in the Commission's recent SEF notice of proposed rulemaking?

    Issued in Washington, DC, on November 6, 2018, by the Commission. Christopher Kirkpatrick, Secretary of the Commission. Note:

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

    Appendix to Post-Trade Name Give-Up on Swap Execution Facilities—Commission Voting Summary

    On this matter, Chairman Giancarlo and Commissioners Quintenz, Behnam, Stump, and Berkovitz voted in the affirmative. No Commissioner voted in the negative.

    [FR Doc. 2018-24643 Filed 11-29-18; 8:45 am] BILLING CODE 6351-01-P
    DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 36 Loan Guaranty: Revisions to VA-Guaranteed or Insured Cash-Out Home Loans AGENCY:

    Department of Veterans Affairs.

    ACTION:

    Advanced notice of rulemaking.

    SUMMARY:

    The Department of Veterans Affairs (VA) is issuing this document in compliance with the Economic Growth, Regulatory Relief, and Consumer Protection Act (the Act). The Act requires VA to amend its regulation on VA-guaranteed or insured cash-out refinance loans and to publish the amended regulation within a shortened time frame. If VA determines that urgent or compelling circumstances make compliance with the advance public notice and comment requirements of the Administrative Procedure Act impracticable or contrary to public interest and publishes notice of that determination in the Federal Register, the Act permits VA to amend the regulation through an interim final rule or final rule. VA has determined that urgent and compelling circumstances do exist and is, therefore, issuing this Federal Register document announcing VA's intent to promulgate an interim final rule implementing the Act.

    DATES:

    November 30, 2018.

    ADDRESSES:

    Loan Policy & Valuation, Loan Guaranty Service (26), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420.

    FOR FURTHER INFORMATION CONTACT:

    Greg Nelms, Assistant Director for Loan Policy & Valuation, Loan Guaranty Service (26), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 632-8862. (This is not a toll-free number.)

    SUPPLEMENTARY INFORMATION:

    On May 24, 2018, the President signed into law the Economic Growth, Regulatory Relief, and Consumer Protection Act (the Act), Public Law 115-174, 132 Stat. 1296. Section 309 of the Act, codified at 38 U.S.C. 3709, provides new statutory criteria for determining when, in general, VA may guarantee a refinance loan. The Act also requires, among other things, VA to promulgate regulations, within 180 days after the date of the enactment of the Act, for cash-out refinance loans, specifically those where the principal of the new loan to be VA-guaranteed or insured is larger than the payoff amount of the loan being refinanced. Public Law 115-174, 132 Stat. 1296.

    Section 309(a)(2) of the Act permits VA to waive the requirements of the Administrative Procedure Act (APA), 5 U.S.C. 551 through 559, if the Secretary determines that urgent or compelling circumstances make compliance with such requirements impracticable or contrary to public interest. Public Law 115-174, 132 Stat. 1348-1349.

    VA believes there are several urgent and compelling circumstances that make advance notice and comment on this rule contrary to the public interest. First, VA is concerned about lenders who seem to continue to exploit legislative and regulatory gaps related to seasoning, recoupment, and net tangible benefit standards, despite anti-predatory lending actions that VA and Congress have already taken. VA's regulatory impact analysis for this rule indicates that perhaps more than 50 percent of cash-out refinances remain vulnerable to predatory terms and conditions until this rule goes into effect. VA believes that VA must immediately seal these gaps to fulfill its obligation to veterans, prudent lenders, and those who invest in securities that include VA-guaranteed loans.

    VA is also gravely concerned about constraints in the availability of program liquidity if VA does not act quickly to address early pre-payment speeds for VA-guaranteed cash-out refinance loans. In large part, cashflows derived from investors in mortgage-backed securities (MBS) furnished by the Government National Mortgage Association (Ginnie Mae) provide liquidity for lenders that originate VA-guaranteed refinance loans. When pricing MBS, investors rely on pre-payment models to estimate the level of pre-payments and any resultant potential losses of revenue expected to occur in a set period, given possible changes in interest rates. These pre-payment models tend to drive, at least in significant part, the valuation of Ginnie Mae MBS. Ginnie Mae, buyers of VA-guaranteed loans, and other industry stakeholders have expressed serious concerns that early pre-payments of VA-guaranteed loans are devaluing these investments. See “Slowing Down VA Refi Churn Proving More Difficult Than Expected”, National Mortgage News (November 12, 2018), https://www.nationalmortgagenews.com/news/slowing-down-va-refi-churn-proving-more-difficult-than-expected. If such stakeholders view MBS investments that include VA-guaranteed refinance loans as less desirable, even prudent lenders could be deprived of the cashflows, i.e. liquidity, necessary to make new VA-guaranteed loans to veterans.

    In a hearing before the House Veterans' Affairs Committee's Subcommittee on Economic Opportunity, the Government National Mortgage Association (Ginnie Mae) issued warnings to Congress regarding the ripple effects that risky refinancing practices had on the valuing of VA-guaranteed loans, as well as Ginnie Mae pools at-large. See Hearing on Home Loan Churning Practices and How Veteran Homebuyers are Being Affected Before the Subcomm. on Econ. Opportunity of the House Comm. on Veterans' Affairs, 115 Cong. (2018). Thus, VA believes that, unless VA promulgates rules quickly, a loss of investor optimism in the VA product could further restrict veterans from being able to utilize their earned VA benefits.

    Exacerbating the issue is the lending industry's varied interpretation of the Act, which has led to lender uncertainty in how to implement a responsible cash-out refinance program. VA believes this uncertainty has caused prudent lenders to employ a high degree of caution, (e.g. refraining from providing veterans with crucial refinance loans that are not predatory or risky). Absent swift implementation of clear regulatory standards, cautious lenders are less likely to make cash-out refinance loans, which means that veterans do not enjoy the widest range of competitive, responsible credit options that can, when used properly, result in placing the veteran in a better financial position than the veteran's current circumstances afford. Unfortunately, such caution has the potential to compound the risk of predatory lending, as irresponsible lenders have more opportunity to prey upon veterans by stepping into areas where prudent lenders may have stopped competing.

    At the same time, VA is concerned that certain lenders are exploiting cash-out refinancing as a loophole to the responsible refinancing Congress envisioned when enacting section 309 of the Act. VA recognizes there are certain advantages to a veteran who wants to obtain a cash-out refinance, and VA has no intention of unduly curtailing veterans' access to the equity they have earned in their homes. Nevertheless, some lenders are pressuring veterans to increase artificially their home loan amounts when refinancing, without regard to the long-term costs to the veteran and without adequately advising the veteran of the veteran's loss of home equity. In doing so, veterans are placed at a higher financial risk, and the lender avoids compliance with the more stringent requirements Congress mandated for less risky refinance loans. Essentially, the lender revives the period of subprime lending under a new name.

    VA does not plan to dispense with the notice and comment requirements altogether. Section 309(a)(2)(A)(ii) and (iii) of the Act requires VA, 10 days before publication of the final rule, to submit a notice of the waiver to the House and Senate Committees on Veterans' Affairs and publish the notice in the Federal Register. Public Law 115-174, 132 Stat. 1296. VA is complying with these requirements. Section 309(a)(2)(B) further requires VA to seek public notice and comment on this regulation if the regulation will be in effect for a period exceeding one year. Public Law 115-174, 132 Stat. 1296. VA anticipates the regulation will be in effect past the one-year mark. Therefore, VA is seeking public comment on the interim final rule once it is published in the Federal Register.

    Signing Authority

    The Secretary of Veterans Affairs approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Wilkie, Secretary, Department of Veterans Affairs, approved this document on November 19, 2018, for publication.

    Dated: November 19, 2018. Jeffrey M. Martin, Assistant Director, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs.
    [FR Doc. 2018-26021 Filed 11-29-18; 8:45 am] BILLING CODE 8320-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2018-0195; FRL-9987-37-OAR] RIN 2060-AU00 Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air Furnaces AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    In this action, the EPA proposes to amend the 2015 New Source Performance Standards (NSPS) for new residential hydronic heaters and new forced-air furnaces by adding a two-year “sell-through” period for all affected new hydronic heaters and forced-air furnaces that are manufactured or imported before the May 2020 compliance date to be sold at retail through May 2022. This will allow retailers additional time, after the May 2020 effective date of the “Step 2” standards, for the sale of “Step 1” compliant hydronic heaters and forced-air furnaces remaining in inventory. The EPA is also taking comment on whether a sell-through period for all affected new residential wood heaters is appropriate following the May 2020 compliance date and, if so, how long a sell-through period is needed and why. In addition, this action is taking comment on whether the current minimum pellet fuel requirements should be retained and, if so, whether they should be revised.

    DATES:

    Comments. Comments must be received on or before January 14, 2019. Under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of your comments on or before December 31, 2018.

    Public Hearing. The EPA will hold a public hearing on December 17, 2018, in Washington, DC. Please refer to the FOR FURTHER INFORMATION CONTACT section for information on registering for the hearing and the SUPPLEMENTARY INFORMATION section for additional information on the public hearing.

    ADDRESSES:

    Comments. Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2018-0195, at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. See SUPPLEMENTARY INFORMATION for details about how the EPA treats submitted comments. Regulations.gov is our preferred method of receiving comments. However, the following other submission methods are also accepted:

    Email: [email protected] Include Docket ID No. EPA-HQ-OAR-2018-0195 in the subject line of the message.

    Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-2018-0195.

    Mail: To ship or send mail via the United States Postal Service, use the following address: U.S. Environmental Protection Agency, EPA Docket Center, Docket ID No. EPA-HQ-OAR-2018-0195, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.

    Hand/Courier Delivery: Use the following Docket Center address if you are using express mail, commercial delivery, hand delivery, or courier: EPA Docket Center, EPA WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. Delivery verification signatures will be available only during regular business hours.

    Public Hearing. The hearing will be held at EPA Headquarters, EPA WJC East Building, Room 1117A&B, 1201 Constitution Avenue NW, Washington, DC 20004. The hearing will convene at 8:00 a.m. local time and conclude at 6:00 p.m. local time. The EPA will end the hearing two hours after the last registered speaker has concluded their comments but no later than 6:00 p.m. local time. Two 15-minute breaks and a lunch break will be scheduled as time will allow depending on the number of registered speakers.

    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 except from American Samoa. If your identification is issued by American Samoa, you must present an additional form of identification to enter the federal building where the public hearing will be held. 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:

    For questions about this proposed action, contact Ms. Amanda Aldridge, Outreach and Information Division, Mail Code: C304-05, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-5268; fax number: (919) 541-0072; and email address: [email protected] For information about the applicability of the NSPS to a particular entity, contact Dr. Rafael Sanchez, Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, EPA WJC South Building (Mail Code 2227A), 1200 Pennsylvania Avenue NW, Washington DC 20460; telephone number: (202) 564-7028; and email address: [email protected]

    Public Hearing. 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/residential-wood-heaters, or contact Regina Chappell at (919) 541-3650 to register to speak at the hearing. The last day to pre-register to speak at the hearing will be December 13, 2018. On December 13, 2018, the EPA will post at https://www.epa.gov/residential-wood-heaters 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:

    Public Hearing. 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 Regina Chappell if there are special needs related to providing comments at the hearings. Verbatim transcripts of the hearings and written statements will be included in the docket for this rulemaking.

    Please note that any updates made to any aspect of the hearing will be posted online at https://www.epa.gov/residential-wood-heaters. While the EPA expects the hearing to go forward as set forth above, please monitor our website or contact Regina Chappell at (919) 541-3650 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. Any media presentations should be submitted to the public docket at https://www.regulations.gov/, identified by Docket ID No. EPA-HQ-OAR-2018-0195. The EPA must receive comments on the proposed action no later than January 14, 2019.

    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 December 13, 2018. We may not be able to arrange accommodations without advanced notice.

    Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2018-0195. All documents in the docket are listed in the Regulations.gov index. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy. Publicly available docket materials are available either electronically in Regulations.gov or in hard copy at the EPA Docket Center, Room 3334, EPA WJC West Building, 1301 Constitution Avenue NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1742.

    Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2018-0195. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at https://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through https://www.regulations.gov or email. This type of information should be submitted by mail as discussed below.

    The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

    The https://www.regulations.gov website is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any digital storage media you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/dockets.

    Submitting CBI. Do not submit information containing CBI to the EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a digital storage media that you mail to the EPA, mark the outside of the digital storage media as CBI and then identify electronically within the digital storage media the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, you must submit a copy of the comments that does not contain the information claimed as CBI for inclusion in the public docket. If you submit any digital storage media that does not contain CBI, mark the outside of the digital storage media clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and the EPA's electronic public docket without prior notice. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2. Send or deliver information identified as CBI only to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2018-0195.

    Preamble Acronyms and Abbreviations. The Agency uses multiple acronyms and terms in this preamble. While this may not be an exhaustive list, to ease the reading of this preamble and for reference purposes, the following terms and acronyms are defined here:

    BSER Best System of Emissions Reduction CAA Clean Air Act CBI Confidential Business Information CFR Code of Federal Regulations CO Carbon Monoxide EAV Equivalent Annual Value EPA U.S. Environmental Protection Agency EJ Environmental Justice FR Federal Register HAP Hazardous Air Pollutant(s) HPBA Hearth, Patio and Barbecue Association NAICS North American Industry Classification System NOX Nitrogen Oxides NSPS New Source Performance Standards NTTAA National Technology Transfer and Advancement Act of 1995 OAQPS Office of Air Quality Planning and Standards (U.S. EPA) OECA Office of Enforcement and Compliance Assurance (U.S. EPA) OMB Office of Management and Budget PM Particulate Matter PM2.5 Particulate Matter with an aerodynamic diameter of 2.5 micrometers or less (“fine particles”) PV Present Value R&D Research and Development RIA Regulatory Impact Analysis RTC Response to Comments tpy tons per year U.S. United States U.S.C. United States Code UMRA Unfunded Mandates Reform Act VOC Volatile Organic Compound Wood heaters Refers to all appliances covered in 40 CFR part 60, subpart AAA—woodstoves & pellet stoves

    Organization of this Document. The information presented in this preamble is organized as follows:

    I. General Information A. Executive Summary B. Does this action apply to me? C. How do I obtain a copy of this document and other related information? II. Background A. Statutory Background B. Regulatory Background III. Proposed Action IV. Request for Comments on Wood Heaters (40 CFR Part 60, Subpart AAA) V. Request for Comments on Pellet Fuel Requirements VI. Impacts of This Proposed Rule A. What are the air impacts? B. What are the energy impacts? C. What are the cost savings? D. What are the economic and employment impacts? E. What are the forgone benefits of the proposed rule? VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs C. Paperwork Reduction Act (PRA) D. Regulatory Flexibility Act (RFA) E. Unfunded Mandates Reform Act (UMRA) F. Executive Order 13132: Federalism G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use J. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR part 51 K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations I. General Information A. Executive Summary

    On March 16, 2015 (80 FR 13672), the Environmental Protection Agency (EPA) finalized the NSPS for new residential wood heaters, new residential hydronic heaters, and new forced-air furnaces. For this action, the term wood heaters refers to all appliances covered in 40 CFR part 60, subpart AAA, and the terms hydronic heaters and forced-air furnaces refer to appliances covered in 40 CFR part 60, subpart QQQQ. Also, for this action, the term wood heating devices refers to all units regulated by the 2015 NSPS (40 CFR part 60, subparts AAA and QQQQ).

    In this action, the EPA proposes to amend 40 CFR part 60, subpart QQQQ of the 2015 NSPS by adding a two year “sell-through” period for retailers to sell new hydronic heaters and forced-air furnaces that are manufactured or imported before the May 2020 compliance date and are compliant with the “Step 1” standards. This will allow retailers additional time after the May 2020 effective date of the “Step 2” standard, to sell “Step 1” compliant hydronic heaters and forced-air furnaces remaining in inventory. The EPA is also taking comment on whether a sell-through period for retailers to sell new residential wood heaters (40 CFR part 60, subpart AAA) is appropriate following the May 2020 compliance date and, if so, how long a sell-through period is needed and why. In addition, this action is taking comment on whether the current minimum pellet fuel requirements should be retained or revised. In the 2015 Final Rule Preamble (at 80 FR at 13682/2), the EPA stated: “For pellet-fueled appliances, operation according to the owner's manual includes operation only with pellet fuels that are specified in the owner's manual.”

    The Agency estimated the cost and benefits of the proposed rule by developing a memorandum (supplemental RIA) 1 to supplement the Regulatory Impact Analysis prepared for the 2015 Final Rule. This memorandum acknowledges uncertainty driven by consumer, manufacturer, and retailer response to this proposed “sell-through” period and evaluates three scenarios. Section VII.A of this preamble summarizes the information in that supplemental RIA. Given the nature of this rule, costs are presented here as the forgone benefits of forgone emission reductions. We estimate the average annual cost savings to be $0.01 billion. We estimate the average annual forgone benefits to be $0.10 billion to $0.23 billion at a 3 percent discount rate and $0.09 billion to $0.21 billion at a 7 percent discount rate. The Agency represents the benefits as cost savings, which the Agency estimates as the increase in revenues to manufacturers and retailers of affected hydronic heaters and forced air furnaces. Estimated costs and benefits reflect the average annual impacts for the 2019 to 2022 timeframe, which are the implementation years analyzed in the supplemental RIA. All estimates in the supplemental RIA reflect the primary scenario analyzed for this proposal (which estimates the number of affected wood heaters available during the sell-through period with no change in wood heater production as estimated in the 2015 NSPS). Results are also provided in the supplemental RIA for wood heaters covered by 40 CFR part 60, subpart AAA, which are wood heating devices not included in the proposed 2-year sell-through extension but for which comments are requested to determine if they should be.

    1 U.S. EPA. Memorandum: Supplemental Regulatory Impact Analysis (RIA)—Estimated Cost Savings and Forgone Benefits Associated with the Proposed Rule, “Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air Furnaces.”

    B. Does this action apply to me?

    Table 1 of this preamble lists categories and entities that are the subject of this proposal. Table 1 is not intended to be exhaustive, but rather provides a guide for readers regarding the entities likely to be affected by this proposed action. These standards, and any changes considered in this rulemaking, are directly applicable to sources as a federal program. Other federal, state, local and tribal government entities are not directly affected by this action.

    Table 1—Source Categories Affected by This Action Category NAICS Code 1 Examples of regulated entities Residential Wood Heating 333414 Manufacturers, owners, and operators of wood heaters, pellet heaters/stoves, and hydronic heaters. 333415 Manufacturers, owners, and operators of forced-air furnaces. Testing Laboratories 541380 Testers of wood heaters, pellet heaters/stoves, and hydronic heaters. Retailers 423730 Warm air heating and air-conditioning equipment and supplies merchant wholesalers. 1 North American Industry Classification System. C. How do I obtain a copy of this document and other related information?

    In addition to being available in the docket, an electronic copy of this action is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this proposed action at https://www.epa.gov/residential-wood-heaters/final-new-source-performance-standards-residential-wood-heaters. Following publication in the Federal Register, the EPA will post the Federal Register version of the proposal at this same website.

    II. Background A. Statutory Background

    Section 111 of the Clean Air Act (CAA) requires the EPA Administrator to list categories of stationary sources that, in his or her judgment, cause or contribute significantly to air pollution which may reasonably be anticipated to endanger public health or welfare. The EPA must then issue “standards of performance” for new sources in such source categories. The EPA has the authority to define the source categories, determine the pollutants for which standards should be developed, and identify within each source category the facilities for which standards of performance would be established.

    CAA section 111(a)(1) defines “a standard of performance” as “a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any non-air quality health and environmental impact and energy requirement) the Administrator determines has been adequately demonstrated.” This definition makes clear that the standard of performance must be based on controls that constitute “the best system of emission reduction (BSER).” The standard that the EPA develops, based on the BSER, is commonly a numerical emission limit, expressed as a performance level. As provided in CAA 111(b)(5), the EPA does not prescribe a specific technology that must be used to comply with a standard of performance. Rather, sources generally can select any measure or combination of measures that will achieve the emission level of the standard.

    The Residential Wood Heaters source category is different from most NSPS source categories in that it is for mass-produced residential consumer products. Thus, important elements in determining BSER include the costs and environmental impacts on consumers of delaying production while wood heating devices with those systems are designed, tested, field evaluated and certified.

    Section 111(b)(1)(B) of the CAA requires that the standards be effective upon promulgation of the NSPS. Given this statutory requirement, as discussed more fully in the Federal Register notice for the 2015 NSPS rulemaking (80 FR 13672), the EPA adopted the stepped (phased) approach for residential wood heaters, hydronic heaters and forced-air furnaces to provide sufficient implementation time for manufacturers and retailers to comply with Step 2 limits.

    B. Regulatory Background

    Residential wood heaters were originally listed under CAA section 111(b) in February 18, 1987 (see 52 FR 5065). The NSPS for wood heaters (40 CFR part 60, subpart AAA) was proposed on February 18, 1987 (see 52 FR 4994) and promulgated on February 26, 1988 (see 53 FR 5859) (1988 Wood Heater NSPS). The NSPS was amended in 1998 to address an issue related to certification testing (see 63 FR 64869).

    On February 3, 2014, the EPA proposed revisions to the NSPS (See 79 FR 6330) and promulgated revisions on March 16, 2015 (See 80 FR 13672). The final 2015 NSPS updated the 1988 Wood Heater NSPS emission limits, eliminated exemptions over a broad suite of residential wood combustion devices, and updated test methods and the certification process. The 2015 NSPS also added a new subpart (40 CFR part 60, subpart QQQQ) that covers new wood burning residential hydronic heaters and new forced-air furnaces. It also directs owners of pellet or wood chip heaters to burn only the fuel specified in the owner's manual and that meet certain minimum requirements.

    As a part of the 2015 rulemaking, the EPA identified the percentage of wood heaters estimated to be meeting the Step 2 standards prior to promulgation of the 2015 NSPS as 70 percent of pellet stoves and 26 percent of wood stoves. Similarly, 18 percent of hydronic heaters were meeting the Step 2 standards prior to promulgation of the 2015 NSPS, while the limited dataset for forced-air furnaces showed no models meeting the Step 2 standards prior to promulgation of the 2015 NSPS. As of March 20, 2018, there were a total of 78 models (44 pellet models and 34 crib/cord wood) that met the Step 2 standard for wood heaters (as required under 40 CFR 60.532(b) or 60.532(c)), nine models that met the Step 2 standard for hydronic heaters (as required under 40 CFR 60.5474(a)(2) or (b)(3)) and one model that met the Step 2 standard for forced-air furnaces (as required under 40 CFR 60.5474(a)(6)). The inventory of certified models as of March 2018 is provided in the document titled: “List of EPA certified Wood Heating Devices March 2018,” which is available in the docket and at the website https://www.epa.gov/compliance/wood-heater-compliance-monitoring-program.

    In promulgating the 2015 NSPS, the EPA took a “stepped compliance approach” in which certain “Step 1” standards became effective in May 2015 and more stringent “Step 2” standards would become effective five years later, in May 2020.

    A major component of demonstrating compliance with either Step 1 or Step 2 is a certification test, using an EPA approved test method, for a given wood heating device. Among other requirements, the emissions from the certification test cannot exceed the emission limit for the standard for which it is certifying (either Step 1 or Step 2). It is worth noting that, because these certification test methods were developed outside of the 2015 NSPS, certification test methods have their own requirements independent of the 2015 NSPS, such as fuel requirements.

    The 2015 NSPS included a sell-through provision which allowed seven and a half months for retailers to sell current wood heater and hydronic heater non-compliant inventory (Step 1 sell-through). No sell-through provision was provided for forced-air furnaces because small forced-air furnaces did not have to comply with a numerical emission standard until May 2016, and large forced-air furnaces did not have to comply with a numerical emission standard until May 2017 (see 80 FR 13682 and 13685). While manufacturers could no longer make units that were not certified for the Step 1 standard (after the May 2015 Step 1 effective date), the Step 1 sell-through allowed retailers several months to sell their existing inventory that was not Step 1 compliant. The 2015 NSPS provided no such sell-through provision for the more stringent Step 2 standards that are currently scheduled to become effective in May 2020. The Step 1 and Step 2 standards are discussed further below.

    III. Proposed Action

    In promulgating the 2015 NSPS, the EPA took a stepped compliance approach to implementing the emission limits for the rule. The Step 1 standard was intended to codify emission limits that were already being met. For wood heaters, (40 CFR part 60, subpart AAA), the Step 1 limit was based on the Washington State standard that had been in effect since 1995 and had been met by most wood heater manufacturers. For hydronic heaters, the Step 1 emission limit was based on the 2010 Phase 2 Voluntary Hydronic Heater Program. Step 1 for forced-air furnaces was what the EPA concluded would be immediately achievable based on a limited dataset.

    The Step 1 standard went into effect in May 2015, and Step 2 becomes effective in May 2020 (see discussion at 80 FR 13676-13677). For the Step 1 standards, the EPA provided a “sell-through” period of seven and a half months, until December 2015, to allow retailers additional time after the effective date of the rule to sell the non-compliant wood heaters and hydronic heaters remaining in inventory (see 80 FR 13685). Specifically, the 2015 NSPS allowed non-compliant wood heaters and hydronic heaters manufactured before May 15, 2015, to be imported and/or sold at retail through December 31, 2015 (see 40 CFR 60.532(a) and 60.5474(a)(1)).2 For the Step 2 standards, the EPA did not provide a sell-through period following the May 2020 compliance date. The EPA concluded at the time that the 5-year period leading up to the May 2020 Step 2 compliance date would provide manufacturers with sufficient lead time to develop, test, and certify Step 2-compliant wood heating devices. Meanwhile, in the time before the Step 2-certified models were available for sale, both manufacturers and retailers would be able to continue making and selling Step 1-certified wood heating devices (see 80 FR 13676). The EPA provided further explanation in the 2015 Response to Comments (RTC) document (Docket ID EPA-HQ-OAR-2009-0734). On page 99 of the RTC, the EPA noted that the 5-year period from 2015 to 2020 “matches the window of time many manufacturers noted they would need to conduct research and development (R&D) and bring a new model to market,” and on page 231 of the RTC, the EPA concluded that Step 2 standards provide “appropriate lead times for manufacturers to redesign their model lines to accommodate the improved technology across multiple model lines and test, field evaluate, and certify new model lines.”

    2 The EPA did not provide any sell-through period for forced-air furnaces, because the EPA determined that the requirements that became effective for these heaters in May 2015 (to revise the owner manuals, and training and marketing materials) could be accomplished without disrupting sales and creating undue burden on manufacturers or retailers. See 80 FR 13682 and 13685.

    Recently, the EPA has learned from manufacturers and retailers that a substantial number of retailers are already reducing or even ending their purchases of Step 1-certified wood heating devices from the manufacturers because they are concerned that they will not be able to sell these devices before the May 2020 Step 2 compliance date and will be left with unsaleable inventory.3 Additionally, some manufacturers have indicated that they will need until May 2020 to develop, test, and certify wood heating devices to meet the 2020 Step 2 standards. As a result, manufacturers may face revenue losses as retailers are not willing to buy the Step 1-certified models and the Step 2-certified models have not yet been developed, tested, and certified. Further, as May 2020 approaches, the EPA expects that retailers will become increasingly reluctant to purchase non-Step 2-compliant wood heating devices which they will not be able to sell after May 2020, resulting in stranded capital. The EPA also acknowledges that the price differential between the Step 2 models and Step 1 models may dampen demand for these heaters and could result in consumers declining to purchase new heaters altogether (although the supplemental RIA does not examine this consumer response in detail).

    3 The following statements from various groups or individuals demonstrate these concerns:

    Hearth, Patio & Barbecue Association (HPBA): As time goes on and we get closer to the May 2020 effective date, retailers will reduce their purchase orders of Step 1 products. We are already seeing this happen today—a full two years before the effective date of Step 2. If orders are decreased or cut off, this implies that manufacturing is also being cut off or decreased. (May 31, 2018, response to request for information from the EPA.)

    Frank Moore (President & Owner, Hardy Manufacturing): Like manufacturers, retailers are making business decisions right now based on the Step 2 2020 requirements. It can sometimes take up to five years for a retailer to sell a hearth product from the time they purchase it from a manufacturer. With that in mind, many retailers aren't purchasing products from manufacturers that don't already meet the 2020 requirements. Even though it is still 2017, in practice the effective date is already having an impact. (September 13, 2017, testimony before the House Committee on Energy & Commerce Subcommittee on the Environment in support of H.R. 453 (the Relief from New Source Performance Standards Act)).

    Mark Freeman (Owner, Kuma Stoves): SELL THROUGH—This is the most immediate need. I can't tell you how important this is to provide sell-through relief for manufacturers of AAA appliances as well as for the QQQQ manufacturers. Already we are seeing Early-buy orders for the 2018 season being affected from our dealers who are worried about having stock that they won't be able to sell by May 2020. We need this as it is hurting my business and our industry. (May 1, 2018, email to the EPA.)

    Chris Neufeld (Vice President, Blaze King): The 2015 New Source Performance Standards failed to provide a sell through date. The magnitude of this omission in the 2015 NSPS is growing and growing quickly. Here is what we have learned from my visits to nearly 60 retail locations in the past 3 months:

    1. Retailers are hesitant to order products that are set to expire on May 15th, 2020.

    2. Compounding their concerns, by some estimates, there are 100,000 or more wood and pellet heaters in showrooms across the country that must be sold by May 15th, 2020. Based on these estimates, this could represent an entire year of industry sales. This does not include inventory held by distributors.

    3. Dealers expressed real concern that excessive discounting will result and in turn cause their small businesses to become vastly less profitable resulting in layoffs or closure.

    4. Retailers are hesitant to schedule summer and fall participation is fairs, home shows and other costly public events, which will reduce profitability.

    As a manufacturer, one that has acted in good faith, this could hurt our company to an insurmountable degree. Even though our company and others may demonstrate compliance in advance of May 15, 2020, the very real threat is retailers stop ordering our products in an effort to sell off all the products with the expiration date of May 15, 2020. This matter is very time sensitive. A decision to provide an extension needs to be communicated soon and effectively so as to avoid a serious disruption to our business and that of retailers. (June 1, 2018, email to the EPA.)

    To address this situation, the EPA is proposing to amend the 2015 NSPS, 40 CFR part 60, subpart QQQQ requirements to create a two-year sell-through period for retailers after the Step 2 compliance date that is similar to the Step 1 sell-through period. The EPA is proposing an amendment that will allow Step 1-compliant hydronic heaters and forced-air furnaces manufactured or imported before May 15, 2020, to be sold at retail through May 15, 2022. The EPA is not proposing any changes to its BSER determination and is not proposing any changes to the 5-year compliance period for Step 2 or the associated May 2020 compliance date. As stated in the March 16, 2015, notice of final rulemaking, the EPA concluded that:

    • A final hydronic heater Step 2 emission level of 0.10 lb/mmBtu within 5 years as BSER is a reasonable balance of environmental impacts and costs; and

    • a final forced-air furnace Step 2 emission level of 0.15 lb/mmBtu within 5 years as BSER is a reasonable balance of environmental impacts and costs.

    While the EPA is soliciting comment on the compliance date for the Step 2 emission limits in a separate Federal Register notice, this notice of proposed rulemaking maintains the Agency's 2015 BSER determination, while at the same time seeking to ensure that the full 5-year compliance period is available so that consumers, manufacturers, and retailers are not adversely affected.

    In this action, the EPA is seeking comment on this two-year sell-through period for retailers after the Step 2 compliance date, including the reasonableness of the Agency's determination that there is a need for a Step 2 sell-through period and, if providing a sell-through period is reasonable, what length of sell-through period is appropriate and why. The EPA is particularly interested in soliciting comments for the following topics regarding compliant hydronic heaters and forced-air furnaces and the sell-through period:

    (1) The Agency solicits comment on whether retailers are currently declining to purchase Step 1-compliant hydronic heaters and forced-air furnaces and how widespread is this reduction in purchases. The EPA also solicits comment as to whether this will become a more significant issue as the May 2020 compliance date approaches and, if so, when is it likely that retailers will no longer be willing to buy Step 1-compliant hydronic heaters and forced-air furnaces at all. The EPA solicits comment on the cost or other impacts that retailers could have on manufacturers who are small businesses if they decline to purchase Step 1-compliant hydronic heaters and forced-air furnaces.

    (2) The Agency is soliciting comment as to what is the typical period of time between (a) when a retailer purchases a hydronic heater or forced-air furnace, and (b) when the device is sold to a consumer. In particular, the Agency is soliciting comment on these periods of time for small businesses.

    (3) The Agency is soliciting comment on the EPA's proposal that a sell-through period for retailers to sell Step 1-compliant hydronic heaters and forced-air furnaces is a reasonable way to address concerns about retailers' reluctance to purchase Step 1-compliant hydronic heaters and forced-air furnaces and/or manufacturers' inability to sell such heaters and furnaces before Step 2-certified models are available. In particular, the EPA is soliciting comment on the sell-through as a reasonable way to address concerns about retailers of devices and products from small businesses.

    (4) The Agency is soliciting comments regarding, if a sell-through period for the May 2020 compliance date were to be promulgated, what period of time after May 2020 would be sufficient for retailers to sell their inventory of Step 1-compliant hydronic heaters and forced-air furnaces. The EPA is proposing a two-year period but is also taking comment on whether either a shorter or a longer sell-through period may be more reasonable and, if so, why a sell-through period other than two years is appropriate. For small businesses in particular, the Agency is soliciting comment on a two-year period and whether that amount of time is reasonable.

    (5) The EPA is also soliciting comment on whether the Agency's proposal to provide the same two-year Step 2 sell-through period for both hydronic heaters and forced-air furnaces is reasonable, or whether a sell-through period of some different length may be more appropriate for each of these types of wood heating devices. The EPA is also soliciting comment on whether it may be more appropriate not to provide a sell-through period at all for either hydronic heaters or forced-air furnaces.

    (6) The Agency is soliciting information on the number of Step 1 forced-air furnaces and hydronic heaters that are currently in production and the number that are being designed for Step 2 compliance that have not yet received their EPA certification for Step 2 compliance. The EPA requests information on the number of Step 2 pellet and cord/crib wood forced-air furnaces and hydronic heaters that are currently certified to meet Step 2. The EPA is soliciting comment on how far in advance of the current May 2020 Step 2 compliance date manufacturers will need to submit their EPA certification applications to not only meet the standards, but also to manufacture, market, and distribute their products without disruption to their business.

    (7) The Agency seeks comment on whether and what type of small business relief may be appropriate in place of the extended sell-through period that would accomplish the same goal.

    (8) The Agency seeks comment on the effects on the consumer as a result of a sell-through period.

    Providing specific information and data to explain the basis of your comments on these topics discussed above (and on all matters that you address in your comments) will be helpful in the Agency's consideration of the issues presented by this proposed rule.4

    4 In an Advanced Notice of Proposed Rulemaking in another Federal Register document that the EPA plans to publish soon, the EPA intends to seek comment on several additional matters, including whether the May 2020 Step 2 compliance date should be extended. The EPA does not view this proposed action for a retailer sell-through period as a measure that would preclude an extension of the Step 2 compliance date. The EPA might both (1) finalize the proposed sell-through period, and (2) subsequently extend the 2020 compliance date. In short, the EPA views the proposed sell-through period and a possible extension of the 2020 compliance date as related, but not mutually exclusive. Whether the EPA does one or both (or neither) will be decided after the EPA considers comments and the other pertinent information.

    IV. Request for Comments on Wood Heaters (40 CFR Part 60, Subpart AAA)

    The EPA is also taking comment on whether the 2015 NSPS, 40 CFR part 60, subpart AAA, should also be revised to create a two-year sell-through period for retailers after the Step 2 compliance date for wood heaters similar to what is being proposed for 40 CFR part 60, subpart QQQQ appliances in section III of this preamble. The EPA is seeking comment on whether to allow Step 1-compliant 40 CFR part 60, subpart AAA wood heaters manufactured or imported before May 15, 2020, to be sold at retail through May 15, 2022. In this action, the EPA is seeking comment on a two-year sell-through period for retailers after the Step 2 compliance date, including comment on whether a Step 2 sell-through period for wood heaters is needed, and, if a sell-through period is added, what length of sell-through period is reasonable, and why.

    The EPA is particularly interested in soliciting comments for the following topics regarding compliant wood heaters and the sell-through period:

    (1) The Agency solicits comment on whether retailers are currently declining to purchase Step 1-compliant wood heaters and whether this reduction in purchases is widespread. In particular, the EPA solicits comment on whether there is a disproportionate change in purchases of crib/cord wood heaters (certification tests with either crib wood or cord wood) compared to pellet wood heaters due to the approaching May 2020 compliance date. The EPA also solicits comment as to whether this will become a more significant issue as the May 2020 compliance date approaches and, if so, when it is likely that retailers will no longer be willing to buy Step 1-compliant wood heaters. The EPA solicits comment on the cost or other impacts that retailers could have on manufacturers who are small businesses if they decline to purchase Step 1-compliant wood heaters.

    (2) The Agency is soliciting comment as to what is the typical period of time between (a) when a retailer purchases a wood heater, and (b) when the device is sold to a consumer. In particular, the Agency is soliciting comment on these periods of time for small businesses.

    (3) The Agency is soliciting comment as to whether a sell-through period for retailers to sell Step 1-compliant wood heaters is a reasonable way to address these concerns about retailers' reluctance to purchase Step 1-compliant wood heaters and/or manufacturers' inability to sell wood heaters before Step 2-certified models are available. In particular, the Agency is soliciting comment on the sell-through as a reasonable way to address concerns about retailers of devices and products from small businesses.

    (4) The Agency is soliciting comments regarding if a sell-through period for the May 2020 compliance date were to be promulgated, what period of time after May 2020 would be sufficient for retailers to sell their inventory of Step 1-compliant wood heaters. The EPA is also taking comment on whether the sell-through period should be as short as one year or as long as three years (or more), and, if so, why such a sell-through period would be more appropriate than two years. For small businesses in particular, the Agency is soliciting comment on a two-year period and whether that amount of time is reasonable.

    (5) The Agency is soliciting information on the number of Step 1 wood heater models that are currently in production and the number that are being designed for Step 2 compliance that have not yet received their EPA certification for Step 2 compliance. The EPA requests information on the number of Step 2 pellet and crib/cord wood heaters that are currently certified to meet Step 2. The EPA is soliciting comment on how far in advance of the current May 2020 Step 2 compliance date manufacturers will need to submit their EPA certification applications to not only meet the standards, but also to manufacture, market, and distribute their products without disruption to their business. The EPA solicits comment on any potential impact on consumers if the production of Step 2-compliant wood heaters is limited.

    (6) The Agency seeks comment on whether and what type of small business relief may be appropriate in place of the extended sell-through period that would accomplish the same goal.

    (7) The Agency seeks comment on the effects on the consumer as a result of a sell-through period.

    Providing specific information and data to explain the basis of your comments on these topics discussed above (and on all matters that you address in your comments) will be helpful in the Agency's consideration of the issues presented by this proposed rule.

    V. Request for Comments on Pellet Fuel Requirements

    Certification tests for residential wood pellet heaters require pellet fuels be made of wood with certain minimum quality requirements to ensure consistent operation for every certification test. These requirements have the added benefit to manufacturers of minimizing emissions during certification testing.

    The 2015 NSPS requires that pellets burned in a residential wood pellet heater meet the same minimum quality requirements to ensure consistent operations and comparable emissions. See Pellet Fuel Requirements stated in 40 CFR 60.532(e) and 60.5474(e). These requirements were intended to maintain a level of quality consistent with the requirements of a pellet heater certification test to ensure these pellets are similar to pellets used in certification testing. The EPA concluded at the time that this requirement provided some assurance that the wood pellet heater's performance in the home would be consistent with the laboratory certification test. A pellet manufacturer is not obligated to produce pellets that meet the pellet fuel requirements, but operators and manufacturers of residential pellet heaters in the United States are prohibited from using pellets that do not meet the pellet fuel requirements. However, the Agency has learned of issues regarding these requirements since publication of the 2015 rule. Therefore, the EPA is taking comment on whether the minimum quality pellet fuel requirements in the 2015 NSPS (40 CFR part 60, subparts AAA and QQQQ) should be retained and, if they are retained, whether they should be revised.

    (1) The EPA is taking comment on whether 40 CFR part 60, subparts AAA and QQQQ should retain the minimum pellet fuel requirements, which are currently found at 40 CFR 60.532(e) and 60.5474(e). In support of the 2015 NSPS and in response to a remand of the record requested by the EPA, the EPA prepared a memorandum that set forth the Agency's rationale for including pellet fuel requirements. See November 21, 2016, Memorandum from Stephen D. Page, Director, Office of Air Quality Planning and Standards, titled “EPA's Response to Remand of the Record for Residential Wood Heaters New Source Performance Standards.” 5 The EPA is requesting comment on the rationale presented in the above-mentioned memorandum and if the current minimum requirements should be retained in its current form at 40 CFR 60.532(e) and 60.5474(e).

    5 This memorandum was placed in the 2015 docket as Docket ID No. EPA-HQ-OAR-2009-0734-1805 and is in the docket for this proposed rule at EPA-HQ-OAR-2018-0195.

    (2) The EPA is taking comment on whether the minimum pellet fuel requirements in 40 CFR 60.532(e) and 60.5474(e) should be eliminated entirely.

    (3) The EPA is taking comment on whether the pellet fuel requirements, if retained, should be revised. Such revisions could include adding new requirements or removing one or more of the current requirements or revising the requirements that are currently stated. For example, with respect to the maximum dimensions stated in 40 CFR 60.532(e)(2) and 60.5474(e)(2), the Agency is seeking comment on whether this criterion should be removed or replaced with larger or smaller dimensions. The EPA has reviewed the pellet requirements and solicits comment on whether the Agency should revise the current minimum pellet fuel requirements:

    1. Density: Minimum of 38 lbs/ft3.

    2. Dimensions: Maximum length of 1.5″.

    3. Fines: <1% (EPA referred to “inorganic fines” in the 2015 NSPS. Should this be modified to “fines”?).

    4. Chlorides: ≤300 ppm.

    5. Ash content: ≤2%.

    6. Contains no demolition or construction waste.

    7. Total of each trace metal: 100 mg/kg. Clarify if this should be reported “as received” or “dry basis”. The trace metals include mercury, cadmium, lead, arsenic, chromium, copper, nickel, and zinc.

    8. None of the prohibited fuels in paragraph (f) of this section. The prohibited list does not prevent the use of unseasoned wood as an input material for manufacturing pellets.

    The EPA is interested in receiving comments that both support the current requirements (and explain why they are necessary) and comments that advocate that the requirements be removed or revised.

    VI. Impacts of This Proposed Rule A. What are the air impacts?

    The air impacts associated with the requirements of this proposed rule are the forgone emission reductions of PM2.5, HAPs, as well as other criteria pollutants and their precursors, including CO and VOC. VOCs are precursors to PM2.5 and ozone. These forgone emission reductions are estimated using the baseline emissions reflected in the final 2015 NSPS as presented in the emissions estimation memorandum and the 2015 NSPS RIA.6 The average annual forgone emission reductions for the primary scenario (Scenario 2), calculated over the timeframe of 2019-2022, is 257 tons of PM2.5, 271 tons of VOC, and 1,444 tons of CO. More information on how these impacts are estimated can be found in the supplemental RIA.

    6 Memo to Gil Wood, USEPA, from EC/R, Inc. Estimated Emissions from Wood Heaters. January 30, 2015. Available in Docket ID: Docket ID No. EPA-HQ-OAR-2009-0734. Regulatory Impact Analysis for Residential Wood Heaters NSPS, Final Report. EPA-452/R-15-001. February 2015. Available at Docket ID: EPA-HQ-OAR-2009-0734-177407344.

    B. What are the energy impacts?

    These proposed actions are anticipated to have negligible impacts on energy costs or usage. To the extent that Step 1-compliant hydronic heaters and forced-air furnaces continue to be sold for an additional two years, it is difficult to determine the precise energy impacts that might result from this proposed action. Wood-fueled appliances compete with other biomass forms for residential heating as well as more traditional energy sources such as oil, electricity, and natural gas. There is also a lack of sufficient data to determine the potential for affected consumers to choose other types of fuels and their associated appliances, nor the potential impacts to affected manufacturers.

    C. What are the cost savings?

    The cost savings of the proposed action are the increase in revenues for manufacturers and retailers of hydronic heaters and forced-air furnaces affected by this rulemaking. The overall distribution of the avoided compliance costs as well as the distribution of forgone benefits is uncertain. The increase in revenues is calculated by estimating the reduction in unit costs from producing Step 1-compliant hydronic heaters and forced-air furnaces as compared to Step 2-compliant devices with estimates of sales taken from the 2015 NSPS RIA, using the estimates calculated for the final 2015 NSPS requirements as the baseline. The revenue estimate calculated is the average of the annual estimates calculated for the 2019-2022 timeframe and the primary scenario (Scenario 2). The estimate of additional average annual revenues to manufacturers is $0.01 billion (2016 dollars). Calculated as an EAV, the estimate is $0.01 billion (2016 dollars). More information on how these impacts are estimated can be found in the supplemental RIA of this proposed rule.

    D. What are the economic and employment impacts?

    The economic impacts of this proposal are the cost savings that are shown in section VI.C of this preamble. Impacts on employment are qualitatively examined in the supplemental RIA.

    E. What are the forgone benefits of the proposed rule?

    The overall distribution of the avoided compliance costs as well as the distribution of forgone benefits is uncertain. Although this proposed action may result in the delay of the emission reductions from the 2015 NSPS by up to two years, this proposed action to establish a sell-through period does not change the standards upon implementation. The proposed revisions in this action would defer emission reductions into the future, thus delaying the health benefits estimated in the Residential Wood Heaters 2015 NSPS RIA. Due to analytical limitations, it was not possible to conduct air quality modeling for this proposed rule. Instead, the Agency used a “benefit-per-ton” approach to estimate the forgone benefits. In brief, the EPA calculated benefit per-ton (BPT) values for this sector by: (1) Characterizing the photochemical modeled PM2.5 air quality levels associated with this sector; (2) quantifying the number and economic value of adverse health impacts attributable to these PM2.5 concentrations; (3) dividing these values by the sum of the emissions for the sector. The BPT reflects the average national benefits of reducing PM2.5 and PM2.5 precursors from the residential wood sector and cannot characterize the benefits occurring in discrete geographic locations such as non-attainment areas. For more detailed discussion of the benefit-per-ton approach, please refer to the benefits section in the supplemental RIA accompanying this proposed rulemaking.

    As compared to the 2015 NSPS RIA, for the years 2019 to 2022, this proposed rule, if finalized, would result in less emission reduction of PM2.5, HAPs, as well as other criteria pollutants and their precursors, including CO and VOC, compared to the 2015 NSPS final rule. VOC are precursors to PM2.5 and ozone. For this proposed rule, the Agency was only able to quantify the monetized forgone health benefits associated with forgone decreased exposure to directly emitted PM2.5. The forgone benefits reflect the average of annual PM2.5 forgone emission reductions occurring between 2019 and 2022 (inclusive). The Agency estimates the annual average monetized PM2.5-related forgone health benefits of the residential wood heaters NSPS in the 2019-2022 timeframe to be $0.10 billion to $0.23 billion (2016 dollars) at a 3-percent discount rate and $0.09 billion to $0.21 billion (2016 dollars) at a 7-percent discount rate. The ends of the range are quantified using Hazard Ratios reported in the Krewski, et al. (2009) and Lepeule, et al. (2012) long-term epidemiological studies. Using alternate relationships between PM2.5 and premature mortality supplied by experts, higher and lower estimates of forgone benefits are plausible; but, most of the expert-based estimates fall between these two estimates.7 A summary of the forgone emissions and monetized forgone benefits estimates for this proposed rule at discount rates of 3 percent and 7 percent is provided in Table 2 of this preamble. All estimates reflect the primary scenario analyzed for this proposal (Scenario 2). Another metric that can be used to calculate such estimates, EAV, yields monetized forgone benefits estimates of $0.09 billion to $0.21 billion at a 3 percent discount rate and $0.07 billion to $0.16 billion at a 7 percent discount rate. More information on all of these calculations can be found in the supplemental RIA.

    7 Roman, et al., 2008. “Expert Judgment Assessment of the Mortality Impact of Changes in Ambient Fine Particulate Matter in the U.S.,” Environ. Sci. Technol., 42, 7, 2268-2274.

    Table 2—Summary of Annual Average Monetized PM2.5-Related Health Forgone Benefits for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air Furnaces NSPS Proposal in 2019-2022 Timeframe [Billions of 2016 dollars] a b c d Pollutant Estimated
  • emission
  • increases
  • (tpy)
  • Total monetized forgone benefits
  • (3% discount rate)
  • Total monetized forgone benefits
  • (7% discount rate)
  • Directly emitted PM2.5 257 $0.10 to $0.23 $0.09 to $0.21. PM2.5 Precursors: VOC 271 CO 1,444 a All estimates are for the 2019-2022 timeframe (inclusive) and are rounded to two significant figures. The total monetized forgone benefits reflect the human health benefits associated with reducing exposure to PM2.5 through reductions of PM2.5 precursors, such as NOX, and directly emitted PM2.5. It is important to note that the monetized benefits do not include reduced health effects from exposure to HAP, direct exposure to nitrogen dioxide (NO2), exposure to ozone, VOC, ecosystem effects, effects from black carbon or visibility impairment. b Forgone PM benefits are shown as a range from Krewski, et al. (2009) to Lepeule, et al. (2012). c These models assume that all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality because the scientific evidence is not yet sufficient to allow differentiation of effects estimates by particle type. d All estimates reflect the primary scenario (or Scenario 2) for the proposal.

    These forgone benefit estimates represent the annual average economic value of the health benefits that would have occurred in the years 2019, 2020, 2021 and 2022, were the proposed sell-through date not deferred from 2020 to 2022.

    The Agency assumes that all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality because the scientific evidence is not yet sufficient to allow differentiation of effects estimates by particle type. Even though the Agency assumes that all fine particles have equivalent health effects, the benefit-per-ton estimates vary between precursors depending on the location and magnitude of their impact on PM2.5 levels, which drive population exposure.

    For this analysis, policy-specific air quality data are not available. Thus, the Agency is unable to estimate the percentage of forgone premature mortality associated with this specific proposed rule's forgone emission reductions at each PM2.5 level. As a surrogate measure of mortality impacts, the Agency provides the percentage of the population exposed at each PM2.5 level using the source apportionment modeling used to calculate the benefit-per-ton estimates for this sector. Using the Krewski, et al., (2009) study, 93 percent of the population is exposed to annual mean PM2.5 levels at or above the lowest measured level (LML) of 5.8 micrograms per cubic meter (µg/m3). Using the Lepeule, et al, (2012) study, 67 percent of the population is exposed above the LML of 8 µg/m3. Therefore, caution is warranted when interpreting the LML assessment for this proposed rule. The Agency refers the reader to the supplemental RIA prepared for this proposed rule for detailed discussion.

    Every benefit analysis examining the potential effects of a change in environmental protection requirements is limited, to some extent, by data gaps, model capabilities (such as geographic coverage) and uncertainties in the underlying scientific and economic studies used to configure the benefit and cost models. A detailed discussion of these uncertainties is provided in the supplemental RIA. Despite these uncertainties, the benefit analysis for this action provides a reasonable indication of the expected forgone health benefits of the proposed rulemaking under a set of reasonable estimations.

    The monetized forgone benefits estimates provided above do not include forgone benefits from a variety of additional benefit categories. Although the Agency does not have sufficient information or modeling available to provide monetized estimates for these forgone benefits, the Agency includes a qualitative assessment of these unquantified forgone benefits in the supplemental RIA for this proposed rule. For more information on the benefits analysis, refer to the supplemental RIA for this proposed rule, which is available in the docket at Docket ID No. EPA-HQ-OAR-2018-0195.

    VII. Statutory and Executive Order Reviews

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

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

    This action is an economically significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket. The EPA prepared an analysis of the potential costs and benefits associated with this action. This analysis, Supplemental Regulatory Impact Analysis (RIA)—Estimated Cost Savings and Forgone Benefits Associated with the Proposed Rule, “Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air Furnaces” is a memorandum that is available in the docket. It is also summarized in section I of this preamble.

    Consistent with Executive Orders 12866 and 13563, “Improving Regulation and Regulatory Review,” the Agency has estimated the cost and benefits of the proposed rule. Given the nature of this rule, the Agency modified the discussion of net benefits (benefits−costs) to be more consistent with the relevant terminology of traditional net benefit analysis. The costs are presented here as the forgone benefits presented in section 5 of the supplemental RIA and section VI.E of this preamble. The Agency represents the benefits as the cost savings presented in section 2 of the supplemental RIA and section VI.C of this preamble, which the Agency estimates as the increase in revenues to manufacturers of affected wood heaters. The net benefits are the benefits (cost savings) minus the costs (forgone benefits). In this proposed rule, the estimated costs are greater than the benefits, leading to a negative net benefit (or net cost). The estimated annual average net benefit at a 3-percent discount rate is $0.09 billion to $0.22 billion, and $0.08 billion to $0.20 billion at a 7-percent discount rate in 2016 dollars, over the 2019 to 2022 timeframe. The net benefit estimate reflects an annual average of 257 tons of forgone PM2.5 emission reductions per year, and a total annual average cost savings of $0.01 billion (2016 dollars). The forgone benefits also include forgone emission reductions of 271 tons of VOC reductions per year and 1,444 tons of CO reductions per year; forgone reduced exposure to HAP, including formaldehyde, benzene, and POM; forgone reduced climate effects due to forgone reduced black carbon emissions and GHG emissions; forgone reduced ecosystem effects; and forgone reduced visibility impairments. Table 3 summarizes the estimated costs and forgone benefits for the affected forced-air furnaces and hydronic heaters. The estimated costs and benefits reflect the average annual impacts for the 2019 to 2022 timeframe, which are the implementation years analyzed in the supplemental RIA for this proposed rule. All estimates reflect the primary scenario analyzed for this proposal (Scenario 2). Results for wood stoves, a category not included in the 2-year sell through proposed extension but for which comments are requested to determine if they should be, are also provided in the supplemental RIA.

    Table 3—Summary of Annual Average Cost Savings, Monetized Forgone Benefits, and Monetized Net Forgone Benefits (Billions of 2016 Dollars) in the 2019-2022 Timeframe for the Proposed Rule a b 3% Discount rate 7% Discount rate Costs: Forgone Benefits c ($0.10) to ($0.23) ($0.09) to ($0.21). Benefits: Cost Savings from Increased Manufacturers' and Retailers' Revenues $0.01 Net Benefits ($0.09) to ($0.22) ($0.08) to ($0.20). a All estimates in this table are rounded to one decimal point, so numbers may not sum due to independent rounding. All estimates reflect the primary scenario (Scenario 2) as described in the supplemental RIA. b All estimates are for the timeframe from 2019 to 2022 inclusive. All estimates reflect the primary scenario (Scenario 2) for this proposal. These results include units anticipated to come online and the lowest cost disposal assumption. These cost savings are presented in the supplemental RIA. The monetized forgone net benefits at a 3% interest rate are minimally different than those calculated at a 7% interest rate. c The total monetized forgone benefits reflect the forgone human health benefits associated with reducing exposure to PM2.5 through reductions of directly emitted PM2.5. Monetized forgone benefits include many, but not all, health effects associated with PM2.5 exposure. Forgone benefits are shown as a range from Krewski et al. (2009) to Lepeule et al. (2012). We do not report the total monetized forgone benefits by PM2.5 species.

    In addition, Table 4 reports the present values and equivalent annualized values of the net benefits discounted at 7 and 3 percent. EAV are the annualized present values, or the levelized flow of the present values (PV), over the three years affected by the proposal. The PV of the net benefits are negative $0.07 billion to negative $0.19 billion when using a 7 percent discount rate and negative $0.07 billion to negative $0.20 billion when using a 3 percent discount rate. The equivalent annualized values of the net benefits are negative $0.06 billion to negative $0.15 billion per year when using a 7 percent discount rate and negative $0.08 billion to negative $0.20 billion per year when using a 3 percent discount rate. The negative values indicate that EAV of the estimated benefits (cost savings) of the proposal are smaller than the EAV of estimated costs (forgone benefits). All these estimates are in 2016 dollars and are discounted to 2016.

    Table 4—Estimated Present Values and Equivalent Annualized Values of the Benefits, Costs, and the Net Benefits of the New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air Furnaces NSPS Proposal [Billions of 2016] 7% Discount rate PV EAV 3% Discount rate PV EAV Benefits 1 $0.025 $0.01 $0.029 $0.01. Costs 2 ($0.09) to ($0.21) ($0.07) to ($0.16) ($0.10) to ($0.23) ($0.09) to ($0.21). Net Benefits ($0.07) to ($0.19) ($0.06) to ($0.15) ($0.07) to ($0.20) ($0.08) to ($0.20). 1 The EAV of benefits are the EAV of the cost savings. 2 The EAV of costs are calculated from the PV of the forgone monetized benefits. Results are rounded to two significant figures. Totals may not sum due to rounding. Values in parentheses are negative.

    For more information on the forgone benefits analysis, the cost analysis and the calculation of net benefits, please refer to the supplemental RIA prepared for this proposed rulemaking under Docket ID No. EPA-HQ-OAR-2018-0195.

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

    This action is expected to be an Executive Order 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in the rule's economic analysis. See section VI of this preamble.

    C. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and assigned OMB Control number 2060-01 for 40 CFR part 60, subpart AAA and OMB Control number 2060-0693 for 40 CFR part 60, subpart QQQQ. This action is believed to result in no changes to the information collection requirements of the 2015 Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-air Furnaces rule, so that the information collection estimate of project cost and hour burden from the 2015 final rule have not been revised.

    D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden, or otherwise has a positive economic effect on the small entities subject to the rule. This proposed rule will not impose any new requirements on any entities because it does not impose any additional regulatory requirements relative to those specified in the 2015 NSPS. The Agency has, therefore, concluded that this action will have no net regulatory burden for all directly regulated small entities.

    E. Unfunded Mandates Reform Act of 1995 (UMRA)

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

    F. Executive Order 13132: Federalism

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

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

    This action does not have tribal implications as specified in Executive Order 13175. This rule will not impose any requirements on tribal governments. Thus, Executive Order 13175 does not apply to this action. Consistent with the EPA Policy on Consultation and Coordination with Indian Tribes, the EPA will provide outreach through the National Tribal Air Association and will offer consultation to tribal officials.

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

    This proposed action is subject to Executive Order 13045 because it is an economically significant regulatory action as defined by Executive Order 12866. As noted in the preamble to the 2015 NSPS, the EPA does not believe that the environmental health risks or safety risks addressed by the NSPS presents a disproportionate risk to children based on distributional assessments of effects from residential wood smoke emissions (see 80 FR 13700). Although this proposed action may result in the delay of the emission reductions of some hydronic heater and forced air furnace appliances in the 2015 NSPS by up to two years, this will not alter the EPA's prior findings that on a nationwide basis, cancer risks due to residential wood smoke emissions among disadvantaged population groups generally are lower than the risks for the general population due to residential wood smoke emissions. (One of the demographic variables examined by the EPA was that of people 18 years and younger.) Furthermore, the proposed action does not affect the level of public health and environmental protection already being provided by existing NAAQS and other mechanisms in the CAA. This proposed action does not affect applicable local, state, or federal permitting or air quality management programs that will continue to address areas with degraded air quality and maintain the air quality in areas meeting current standards. Areas that need to reduce criteria air pollution to meet the NAAQS will still need to rely on control strategies to reduce emissions. To the extent that states use other mechanisms in order to comply with the NAAQS, this action will not have a disproportionate adverse effect on children's health.

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

    This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. This action allows affected wood heating devices to sustain their current levels of operation. It does not promote the reduction in energy use nor does it increase the cost of energy production. Further information on the energy impacts can be found in section VI.B of this preamble.

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

    This rulemaking does not involve technical standards.

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

    The EPA believes that this proposed action will not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations or indigenous peoples as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). As noted in the preamble to the 2015 NSPS, the EPA believes that the human health or environmental risk addressed by the NSPS will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations from residential wood smoke emissions (see 80 FR 13701). Although this proposed action may result in the delay of the emission reductions of some hydronic heater and forced air furnace appliances in the 2015 NSPS by up to two years, this will not alter the EPA's prior findings that on a nationwide basis, cancer risks due to residential wood smoke emissions among disadvantaged population groups generally are lower than the risks for the general population due to residential wood smoke emissions.

    Furthermore, the overall distribution of the avoided compliance costs as well as the distribution of forgone benefits is uncertain. Although this proposed action may result in the delay of the emission reductions of some hydronic heater and forced air furnace appliances in the 2015 NSPS by up to two years, this proposed action to establish a sell-through period does not change the standards upon implementation.

    List of Subjects in 40 CFR Part 60

    Environmental protection, Administrative practice and procedure.

    Dated: November 21, 2018. Andrew R. Wheeler, Acting Administrator.

    For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:

    PART 60—STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES 1. The authority citation for part 60 continues to read as follows: Authority:

    42 U.S.C. 7401, et seq.

    Subpart QQQQ—[Amended] 2. Section 60.5474 is amended by revising paragraphs (a)(2) and (a)(6) to read as follows.
    § 60.5474 What standards and requirements must I meet and by when?

    (a) * * *

    (2) On or after May 15, 2020, manufacture or sell at retail a residential hydronic heater unless it has been certified to meet the 2020 particulate matter emission limit in paragraph (b)(2) or (b)(3) of this section except that a residential hydronic heater certified to meet the 2015 particulate matter emission limit in paragraph (b)(1) of this section manufactured or imported on or before May 15, 2020, may be sold at retail on or before May 15, 2022.

    (6) On or after May 15, 2020, manufacture or sell at retail a small or large residential forced-air furnace unless it has been certified to meet the 2020 particulate matter emission limit in paragraph (b)(6) of this section except that a small or large residential forced-air furnace certified to meet the applicable 2015 particulate matter emission limit in paragraph (b)(4) or (b)(5) of this section, respectively, manufactured or imported on or before May 15, 2020 may be sold at retail on or before May 15, 2022.

    [FR Doc. 2018-26083 Filed 11-29-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2018-0196; FRL-9987-39-OAR] RIN 2060-AU07 Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air Furnaces AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Advance notice of proposed rulemaking.

    SUMMARY:

    In this action, the Environmental Protection Agency (EPA) is soliciting comment on several aspects of the 2015 Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air Furnaces (2015 NSPS) in order to inform future rulemaking to improve these standards and related test methods. This action does not propose any changes to the 2015 NSPS, but does take comment on a number of aspects of the rule, including the compliance date for the Step 2 emission limits, Step 2 emission limits for forced-air furnaces, hydronic heaters and wood heaters, Step 2 emission limits based on weighted averages versus individual burn rates, transitioning to cord wood certification test methods, compliance audit testing, third-party review, electronic reporting tool, and warranty requirements.

    DATES:

    Comments. Comments must be received on or before February 13, 2019. Under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of your comments on or before January 29, 2019.

    ADDRESSES:

    Comments. Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2018-0196, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. See SUPPLEMENTARY INFORMATION for details about how the EPA treats submitted comments. Regulations.gov is our preferred method of receiving comments. However, the following other submission methods are also accepted:

    Email: [email protected] Include Docket ID No. EPA-HQ-OAR-2018-0196 in the subject line of the message.

    Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-2018-0196.

    Mail: To ship or send mail via the United States Postal Service, use the following address: U.S. Environmental Protection Agency, EPA Docket Center, Docket ID No. EPA-HQ-OAR-2018-0196, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.

    Hand/Courier Delivery: Use the following Docket Center address if you are using express mail, commercial delivery, hand delivery, or courier: EPA Docket Center, EPA WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. Delivery verification signatures will be available only during regular business hours.

    FOR FURTHER INFORMATION CONTACT:

    For questions about this action, contact Ms. Amanda Aldridge, Outreach and Information Division, Mail Code: C304-05, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-5268; fax number: (919) 541-0072; and email address: [email protected] For information about the applicability of the new source performance standard (NSPS) to a particular entity, contact Dr. Rafael Sanchez, Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, EPA WJC South Building (Mail Code 2227A), 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 564-7028; and email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Docket. The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2018-0196. All documents in the docket are listed in the Regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy. Publicly available docket materials are available either electronically in Regulations.gov or in hard copy at the EPA Docket Center, Room 3334, EPA WJC West Building, 1301 Constitution Avenue NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1742.

    Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2018-0196. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. This type of information should be submitted by mail as discussed below.

    The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

    The http://www.regulations.gov website allows you to submit your comment anonymously, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any digital storage media you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/dockets.

    Submitting CBI. Do not submit information containing CBI to the EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on any digital storage media that you mail to the EPA, mark the outside of the digital storage media as CBI and then identify electronically within the digital storage media the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, you must submit a copy of the comments that does not contain the information claimed as CBI for inclusion in the public docket. If you submit any digital storage media that does not contain CBI, mark the outside of the digital storage media clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and the EPA's electronic public docket without prior notice. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2. Send or deliver information identified as CBI only to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2018-0196.

    Preamble Acronyms and Abbreviations. The Agency uses multiple acronyms and terms in this preamble. While this may not be an exhaustive list, to ease the reading of this preamble and for reference purposes, the following terms and acronyms are defined here:

    BSER Best System of Emission Reduction CAA Clean Air Act CBI Confidential Business Information CFR Code of Federal Regulations CO Carbon Monoxide CSA Canadian Standards Association EPA U.S. Environmental Protection Agency ERT Electronic Reporting Tool FR Federal Register g/hr grams per hour HPBA Hearth, Patio and Barbecue Association ISO International Organization for Standardization lb/mmBtu pound(s) per million british thermal units NAICS North American Industry Classification System NSPS New Source Performance Standards OAQPS Office of Air Quality Planning and Standards (U.S. EPA) OMB Office of Management and Budget PFI Pellet Fuels Institute PM Particulate Matter PM2.5 Particulate Matter with an aerodynamic diameter of 2.5 micrometers or less (“fine particles”) R&D Research and Development RTC Response to Comments U.S. United States U.S.C. United States Code

    Organization of this Document. The information presented in this preamble is organized as follows:

    I. General Information

    A. Does this action apply to me?

    B. How do I obtain a copy of this document and other related information?

    II. Background A. Statutory Background B. Regulatory Background III. Request for Comment A. Test Methods—Transition to Cord Wood B. Feasibility of Step 2 Compliance Date of May 15, 2020 C. Step 2 Emission Limit for Forced-Air Furnaces D. Step 2 Emission Limit for Hydronic Heaters E. Step 2 Emission Limit Based on Weighted Averages Versus Individual Burn Rates for Hydronic Heaters and Forced-Air Furnaces F. Step 2 Emission Limit for Wood Heaters G. The EPA Compliance Audit Testing H. ISO-Accredited Third-Party Review I. Electronic Reporting Tool (ERT) J. Warranty Requirements for Certified Appliances IV. Statutory and Executive Order Reviews
    I. General Information A. Does this action apply to me?

    Table 1 of this preamble lists categories and entities that are the subject of this notice. Table 1 is not intended to be exhaustive, but rather provides a guide for readers regarding the entities likely to be affected by this proposed action. The issues described in this notice, and any changes considered in future rulemakings, would be directly applicable to sources as a federal program. Other federal, state, local and tribal government entities are not directly affected by this action.

    Table 1—Source Categories Affected by This Action Category NAICS code 1 Examples of regulated entities Residential Wood Heating 333414 Manufacturers, owners, and operators of wood heaters, pellet heaters/stoves, and hydronic heaters. 333415 Manufacturers, owners, and operators of forced-air furnaces. Testing Laboratories 541380 Testers of wood heaters, pellet heaters/stoves, and hydronic heaters. Retailers 423730 Warm air heating and air-conditioning equipment and supplies merchant wholesalers. B. How do I obtain a copy of this document and other related information?

    In addition to being available in the docket, an electronic copy of this action is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this action at https://www.epa.gov/residential-wood-heaters/final-new-source-performance-standards-residential-wood-heaters.

    1 North American Industry Classification System.

    Following publication in the Federal Register, the EPA will post the Federal Register version of this notice at this same website.

    II. Background A. Statutory Background

    Section 111 of the CAA requires the EPA Administrator to list categories of stationary sources that, in his or her judgment, cause or contribute significantly to air pollution which may reasonably be anticipated to endanger public health or welfare. The EPA must then issue “standards of performance” for new sources in such source categories. The EPA has the authority to define the source categories, determine the pollutants for which standards should be developed, and identify within each source category the facilities for which standards of performance would be established.

    Section 111(a)(1) of the CAA defines “a standard of performance” as “a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction (BSER) which (taking into account the cost of achieving such reduction and any non-air quality health and environmental impact and energy requirement) the Administrator determines has been adequately demonstrated.” This definition makes clear that the standard of performance must be based on measures that constitute BSER, while taking into account multiple statutory factors. The standard that the EPA develops, based on the BSER, is commonly a numerical emission limit, expressed as a performance level. As provided in CAA 111(b)(5), the EPA does not prescribe a specific technology that must be used to comply with a standard of performance. Rather, sources generally can select any measure or combination of measures that will achieve the emission level of the standard. Where certain statutory criteria are met, the EPA may promulgate design, equipment, work practice or operational standards instead of a numerical standard of performance. See CAA 111(h)(1) and (2).

    The Residential Wood Heaters source category is different from most NSPS source categories in that it applies to mass-produced residential consumer products. Thus, an important consideration in determining the emission limit that is achievable through the application of the BSER here is the cost to both manufacturers and consumers as well as any potential environmental impact of delaying production while wood heating devices with those systems are designed, tested, field evaluated and certified.

    Section 111(b)(1)(B) of the CAA requires that the standards be effective upon promulgation of the NSPS. Given this statutory requirement, as discussed more fully in the Federal Register notice for the 2015 NSPS rulemaking (80 FR 13672), the EPA adopted the stepped (phased) approach for residential wood heaters, hydronic heaters and forced-air furnaces to provide sufficient implementation time for manufacturers and retailers to comply with the Step 2 limits. That is, for the 2015 NSPS rulemaking, the EPA determined that certain emission limits phased in over time reflect the degree of emission limitation achievable through the application of BSER.

    B. Regulatory Background

    Residential wood heaters were originally listed under CAA section 111(b) in February 18, 1987 (see 52 FR 5065). The NSPS for wood heaters (40 CFR part 60, subpart AAA) was proposed on February 18, 1987 (see 52 FR 4994) and promulgated on February 26, 1988 (see 53 FR 5859) (1988 Wood Heater NSPS). The NSPS was amended in 1998 to address an issue related to certification testing (see 63 FR 64869).

    On February 3, 2014, the EPA proposed revisions to the NSPS (see 79 FR 6330) and published notice of its final rule making revisions on March 16, 2015 (see 80 FR 13672). The final 2015 NSPS updated the 1988 Wood Heater NSPS emission limits, eliminated exemptions over a broad suite of residential wood combustion devices, and updated test methods and the certification process. The 2015 NSPS also added a new subpart (40 CFR part 60, subpart QQQQ) that covers new wood burning residential hydronic heaters and new forced-air furnaces.

    For this action, the term “wood heaters” refers to all appliances covered in 40 CFR part 60, subpart AAA, and the terms “hydronic heaters” and “forced-air furnaces” refer to appliances covered in 40 CFR part 60, subpart QQQQ. Also, for this action, the term “wood heating devices” refers to all units, collectively, regulated by the 2015 NSPS (40 CFR part 60, subparts AAA and QQQQ).

    In promulgating the 2015 NSPS, the EPA took a “stepped compliance approach” in which certain “Step 1” standards would become effective in May 2015, and more stringent “Step 2” standards would become effective five years later, in May 2020. Considering that over 90 percent of wood heating device manufacturers and retailers are small businesses, the Agency adopted this two-phased implementation approach to try to provide manufacturers adequate lead time to develop, test, field evaluate and certify technologies across their product lines to meet the Step 2 emission limits.

    The Step 1 standard reflected demonstrated wood heater technologies at the time. For wood heaters, the Step 1 limit was based on the Washington State standard that had been in effect since 1995 and had been met by most wood heater manufacturers. For hydronic heaters, the Step 1 emission limit was based on the 2010 Phase 2 Voluntary Hydronic Heater Program. The Step 1 standard for forced-air furnaces was what the EPA concluded would be immediately achievable based on a limited dataset (see 80 FR 13693).

    For the Step 1 standards, the EPA provided a “sell-through” period of seven and a half months, until December 2015, to allow retailers additional time after the effective date of the rule to sell the non-compliant wood heaters and hydronic heaters remaining in inventory (see 80 FR 13685). Specifically, the 2015 NSPS allowed non-compliant wood heaters and hydronic heaters manufactured before May 15, 2015, to be imported and/or sold at retail through December 31, 2015 (see 40 CFR 60.532(a) and 60.5474(a)(1)).2 For the Step 2 standards, the EPA did not provide a sell-through period following the May 2020 compliance date. The EPA concluded at the time that the 5-year period leading up to the May 2020 Step 2 compliance date would provide manufacturers with sufficient lead time to develop, test and certify Step 2-compliant wood heating devices (see 80 FR 13676). However, in light of concerns raised by manufacturers, in a separate rulemaking action, the Agency is proposing a 2-year sell-through period for certain types of wood heating devices that are manufactured before the May 2020 compliance date to be imported and/or sold at retail.

    2 The EPA did not provide any sell-through period for forced-air furnaces because the EPA determined that the requirements that became effective for these heaters in May 2015 (to revise the owner manuals, and training and marketing materials) could be accomplished without disrupting sales and creating undue burden on manufacturers or retailers (see 80 FR 13682 and 13685).

    A major component of demonstrating compliance with both the Step 1 and Step 2 standards is a certification test, using an EPA-specified test method, for a given wood heating device. Among other requirements, the emissions from the certification test cannot exceed the emission limit for the standard for which it is certifying (either Step 1 or Step 2). It is worth noting that, because these certification test methods were developed outside of the 2015 NSPS, they have their own requirements independent of the 2015 NSPS, such as fuel requirements.

    Another important point is that the EPA-specified test methods may not reflect how a typical consumer uses the device. Some test methods require the use of crib wood,3 which is air-dried dimensional lumber, rather than typical cord wood,4 or firewood. Additionally, the EPA-specified test methods direct the certification laboratory to target specific burn rate categories for performance assessment purposes.

    3 Crib wood fuel is air dried, dimensional cut Douglas fir lumber, arranged in the firebox per the EPA Method 28R.

    4 Cord wood fuel is traditional firewood cut to nominal commercial sale length and air dried.

    III. Request for Comment

    The EPA has worked with a wide array of stakeholders, including but not limited to industry, states, and non-governmental organizations, in implementing the 2015 NSPS and received feedback from these stakeholders on how to improve the 2015 NSPS. Based on this feedback, the EPA is soliciting comments on the following 10 topics:

    A. Test Methods—Transition to Cord Wood

    As discussed at 80 FR 13678, 13684 and 13690 in the 2015 NSPS, the EPA contemplated requiring “real world” cord wood test methods for the Step 2 standards in the final rule. However, the Agency determined that it was premature to require a cord wood based-Step 2 emission limit (except for forced-air furnaces for which CSA B415.1-10 already specified cord wood as the test fuel) because no cord wood test method for wood heaters was available at that time. Rather, the EPA based the Step 2 emission limit on crib wood test data but included a voluntary alternative cord wood compliance option and emission limit to encourage manufacturers to certify with cord wood as soon as possible to provide consumers with better information for actual in-home-use performance. Recently, the EPA approved the use of ASTM 3053-17, finalized in November 2017, through the EPA's Broadly Applicable Test Methods approval process. Broadly applicable test methods Alt-125 and Alt-127 (https://www.epa.gov/emc/broadly-applicable-approved-alternative-test-methods) are now available for manufacturers wishing to use this voluntary cord wood compliance option.

    As the 2015 NSPS did not include a new test method intended to provide “real world” data through cord wood compliance testing, the EPA has received many informal comments and taken part in several discussions concerning the differences between the existing compliance test methods and “real world” cord wood compliance testing. These discussions have led the EPA to review existing wood appliance test methods and conduct research into the data sets provided by those test methods. In doing so, the Agency recognizes a need to better understand what compliance test procedures are necessary in order to provide a cord wood emissions test data set that serves both the compliance test benchmark (pass/fail) and “real world” data collection to support other regulatory needs. Our review of existing test methods has focused on two distinct facets of the testing procedures: (1) Particulate collection and measurement during the testing; and (2) operation and fueling of an appliance during the testing. Each of these two pathways is currently represented in our compliance testing paradigms by a separate test methodology. For example, ASTM E2515-11 serves as the particulate collection and measurement test method for all existing NSPS compliance test requirements, but this test method is always used in conjunction with any one of several different operation and fueling protocols, such as the EPA Method 28R for crib wood fuel testing of a wood heater or the EPA Method 28WHH for crib wood fuel testing of a hydronic heater. There is inherent variability in each facet of the testing, and the overall variability of the testing result combines the variability inherent to each facet. The EPA recognizes that moving away from a crib wood fuel compliance testing paradigm to a cord wood fuel compliance paradigm involves the introduction of the additional variability inherent to cord wood fuel including the use of various species of cord wood fuel across different regions of the U.S. and in different countries where compliance testing may occur. In that light, a review of test method processes and procedures is appropriate with respect to handling this additional and unknown variability, and the Agency is seeking public comment regarding the direction and extent to which the EPA should undertake such evaluations of existing test methods, including the scope of test method, appropriateness of testing procedures, validation of test methodology, and revision and/or developing new compliance test methods not currently associated with the existing NSPS standards. To inform comments, the Agency would point out that the EPA has an existing guideline covering Validation and Peer Review of test methods: (https://www.epa.gov/sites/production/files/2016-02/documents/chemical_method_guide_revised_020316.pdf). While the EPA Methods 5H and 5G (both particulate test methods) underwent a similar review prior to their publication in the 1988 NSPS (see: R. Gay and J. Shah, Technical Support Document For Residential Wood Combustion, EPA-450/4-85-012, U.S. Environmental Protection Agency, Research Triangle Park, NC, February 1986), those are the only wood burning appliance test methods upon which the EPA has collected such data and done such analysis. The EPA Method 5G is closely related to the current ASTM E2515-11, which is required for measuring particulate throughout the 40 CFR part 60, subparts AAA and QQQQ, and so some understanding of this method variability of ASTM E2515-11 exists through our understanding of the EPA Method 5G. Beyond particulate measurement, the EPA's Method 28, Method 28R, Method 28WHH, Method 28WHH-PTS and all other operation and fueling protocols required by 40 CFR part 60, subparts AAA and QQQQ have not been individually validated or assessed through such a process.

    In addition to the lack of information surrounding the validation of these operating and fueling protocols, the Agency recognizes the need to understand the variability introduced to a compliance test protocol through the combustion of various fuel species. Beyond this, the Agency seeks comment on the need to develop a thorough understanding of appliance use and emissions from typical appliance operations such as startup, refueling (adding logs) and other common modes of operation more representative of actual in-home use than the “high burn, mid burn, and low burn” modes currently required by Method 28R and/or similar operating conditions required by the various operating and fueling protocols throughout 40 CFR part 60, subparts AAA and QQQQ. The Agency realizes that “real-world” data collection stems from an understanding of the actual in-home use of the appliance, and any compliance test paradigm relies on consistent application of appliance fueling and operation during performance tests and, while our existing compliance paradigms provide some testing consistency, the Agency would like information supporting their use or specific information as to more appropriate compliance operation and fueling protocol direction for this program.

    The EPA seeks comment on whether existing operation and fueling protocols are suited to deliver an appropriate compliance test result and if existing operation and fueling protocols are suited to deliver “real world” emissions data where such data are a necessary output of this program. The EPA also seeks comment on the need to validate existing operation and fueling protocols and/or expend time and resources to develop new validated operation and fueling protocol methods in support of cord wood fuel compliance testing and providing such “real world” emissions data from those tests. Relatedly, the EPA also seeks comment with respect to developing new emission standards to correspond with new test methods, if new test method development is found to be necessary. Commenters should provide relevant information and data to support their comments.

    B. Feasibility of the Step 2 Compliance Date of May 15, 2020

    While some manufacturers have begun manufacturing Step 2-compliant units, the EPA has learned of issues with compliance with these emission limits by the May 15, 2020, deadline. In the 2015 NSPS, the EPA concluded that the 5-year period leading up to the May 2020 Step 2 compliance date would provide manufacturers with sufficient lead time to develop, test and certify Step 2-compliant wood heating devices (see 80 FR 13676).5

    5 The EPA provided further explanation in the 2015 Response to Comments (RTC) document (Docket ID EPA-HQ-OAR-2009-0734-1775). On page 99 of the RTC, the EPA noted that the 5-year period from 2015 to 2020 “matches the window of time many manufacturers noted they would require to conduct research and development (R&D) and bring a new model to market,” and on page 231 of the RTC, the EPA concluded that the Step 2 standards provide “appropriate lead times for manufacturers to redesign their model lines to accommodate the improved technology across multiple model lines and test, field evaluate, and certify new model lines.”

    The Step 1 emission standards reflected demonstrated wood heater technologies at that time. Step 2 standards were deemed to be reasonable levels of emission control five years after promulgation. As a part of the 2015 rulemaking, the EPA identified the percentage of wood heaters estimated to be meeting the Step 2 standards prior to promulgation of the 2015 NSPS as 70 percent of pellet stoves and 26 percent of wood stoves. Similarly, 18 percent of hydronic heaters were meeting the Step 2 standards prior to promulgation of the 2015 NSPS, while the limited dataset for forced-air furnaces showed no models meeting the Step 2 standards prior to promulgation of the 2015 NSPS. As of March 20, 2018, there were a total of 78 (44 pellet and 34 crib/cord wood) models that when certified for the Step 1 and Step 2 standards reported emission levels that met the Step 2 standard for wood heaters (as required under 40 CFR 60.532(b) or 60.532(c)). In addition, there are nine models that met the Step 2 standard for hydronic heaters (as required under 40 CFR 60.5474(a)(2) or (b)(3)) and one model that met the Step 2 standard for forced-air furnaces (as required under 40 CFR 60.5474(a)(6)) based on the Step 2 certification process. The inventory of certified models as of March 2018 is provided in the document titled: “List of EPA certified Wood Heating Devices March 2018,” which is available in the docket and at the website https://www.epa.gov/compliance/wood-heater-compliance-monitoring-program. The EPA requests comment and information regarding the percentage of models referenced above that the agency projects are meeting standards for each type of equipment.

    Recently, some manufacturers have indicated that they need more time to develop, test, and certify wood heating devices that meet the Step 2 standard and that the costs of Step 2 compliance are beyond what the industry can bear. As a result of this input, the EPA is soliciting comment on whether it is feasible/practicable for manufacturers to meet the Step 2 emission limits by May 15, 2020. Commenters should discuss whether the Step 2 compliance date is achievable or not and should provide relevant information and data to support their position. For example, commenters may wish to address the following questions:

    1. Are there other factors that have changed or that the Agency did not consider when issuing the 2015 NSPS that have influenced whether some manufacturers are able to comply, and others are not? Why are some manufacturers able to comply with the Step 2 emission limits by May 2020 and others cannot comply by then?

    2. For manufacturers expecting to achieve Step 2 emission limits by May 2020, what is the time and cost to bring the model to market and how does this compare to the EPA's 2015 NSPS estimates? Were there other timing considerations associated with new state level requirements that were issued in the intervening time between 2015 NSPS promulgation and the May 2020 deadline that may have changed the design timeline? Do manufacturers, considering the size of their businesses, typically sell different models to meet differing state standards or do manufacturers typically have just one model for the nation? Does the manufacturer's business model and distribution chain affect their ability to comply by the compliance deadline? If so, please provide specific information on how this occurs. What is the typical engineering design cycle for small businesses and did five years provide enough time?

    3. For manufacturers that do not expect to achieve the Step 2 emission limits by May 2020, what factors are preventing your model(s) from meeting the emission limits? Are there other factors that have changed or that the Agency did not consider when issuing the 2015 NSPS that have had an effect on meeting the May 2020 emission limits? Are there features of wood heating devices that make meeting Step 2 standards more challenging or more expensive? Does a lack of desirable consumer features lead to delays in replacing older dirty stoves or promote switching to other fuels?

    The EPA is also soliciting comment on how much the compliance date should be extended, if at all. Commenters should provide relevant information and data to support any request for an extension of the compliance date. For example, commenters may wish to address the following questions:

    1. What new factors resulted in the need for time beyond the five years of the 2015 NSPS? The Agency seeks comment and information explaining how cost affects meeting the Step 2 emission limits by May 2020, including why cost projections have changed since the 2015 NSPS, along with relevant data on the cost of research and development, certification testing, and bringing a model to market. Are there other cost considerations such as material costs, warranty costs, installation costs, or maintenance costs that were unexpected or different from what the Agency estimated in the 2015 NSPS? Have there been any other unforeseen impacts on costs for manufacturers due to changes in consumer preferences or attitudes towards the devices and products that would be needed to comply with Step 2? For example, would any of the new designs needed to meet the May 2020 standards impact the size of the unit, how much it would cost consumers to operate it, or change the maintenance frequency or cost?

    2. If more time is needed to meet the Step 2 emission limits, the EPA seeks comment on the time and resources devoted to research and development of a Step 2 model since 2014. Commenters should include information regarding time spent on emissions testing, and the number of runs/tests passed versus the number failed. Both manufacturer-produced test data and certified laboratory test data are of interest to the EPA. The Agency is also interested in receiving information regarding emission reduction efforts and any other information outlining attempts to develop a Step 2-compliant model.

    3. If more time is needed to meet the Step 2 emission limits, then how much additional time is needed? For example, the Agency solicits comments and detailed information regarding the timetable for conducting research and development, additional testing, developing saleable products, marketing, and any other relevant information and data that supports a request for a delayed compliance date.

    The EPA also solicits comment on the environmental consequences and public health effects, if any, of delaying compliance.

    C. Step 2 Emission Limit for Forced-Air Furnaces

    At the time of the 2015 NSPS, the EPA expected most forced-air furnace manufacturers to transfer technology and knowledge from wood heaters and hydronic heaters to design Step 2-compliant forced-air furnaces by the 2020 compliance date; however, the EPA is only aware of one manufacturer that has received EPA certification as being Step 2 compliant, see website: https://www.epa.gov/compliance/wood-heater-compliance-monitoring-program. Prior to the 2015 NSPS, some small forced-air furnace manufacturers had already transferred technology from wood heaters to forced-air furnaces to achieve good performance as discussed at 80 FR 13687. Several manufacturers, however, question whether it is feasible to transfer technology from hydronic heaters. These manufacturers point to the fact that space limitations may affect their ability to adequately insulate models that may be installed in close proximity to combustibles. The Agency requests comment on the installation of cord wood-fired indoor hydronic heaters without large volumes of thermal insulation around the firebox, and whether this approach is feasible and cost effective for forced-air furnaces. The EPA also seeks comment on whether technology transfer is necessary for forced-air furnaces to meet the Step 2 emission limit, and on the technological feasibility and costs of alternatives to thermal insulation around the firebox. The EPA solicits comment on the feasibility of the Step 2 limit for forced-air furnaces and what factors the Agency should consider concerning the feasibility and costs of transferring technologies from other wood heater devices to forced-air furnaces. Comments should include information and data supporting their perspective.

    Also, since promulgating the 2015 NSPS, the EPA has received feedback from some manufacturers that complying with the Step 2 emission limit is cost prohibitive. Therefore, the EPA is soliciting comment on whether, regardless of technical feasibility concerns, it is economically feasible to comply with the Step 2 emission limit for forced-air furnaces. Commenters should explain the issues regarding costs and the feasibility/practicability for achieving the Step 2 emission limit and whether changing the Step 2 emission limit would alleviate these issues, along with data supporting the position. The EPA is also soliciting comment on the environmental and public health effects, if any, of modifying the Step 2 emission limit for forced-air furnaces.

    As noted earlier, the EPA is also soliciting comment on the feasibility of the Step 2 compliance date of May 15, 2020. The EPA is soliciting comment on whether to extend the Step 2 compliance date for forced-air furnaces. Commenters should provide relevant information and data to support any request for a delayed compliance date. The EPA is also soliciting comment on the environmental and public health effects, if any, of potential extensions of the Step 2 compliance date for forced-air furnaces.

    D. Step 2 Emission Limit for Hydronic Heaters

    For the 2015 NSPS, the EPA set the Step 2 emission limits based on its determination of the BSER, which takes into account the cost of achieving such reduction and any non-air quality health and environmental impact and energy requirements (See 80 FR 13687). Since promulgation, however, the EPA has received comments from industry representatives that the cost of compliance with Step 2 emission limits for hydronic heaters is exceeding the EPA's original estimation. The EPA estimated a yearly cost of $46 million (2013$), that would be incurred from 2015 to 2020, for implementation of the 2015 NSPS. Details of how costs of the 2015 NSPS were estimated can be found in Chapter 5 of the Regulatory Impact Analysis for that standard.6 Furthermore, these comments have indicated that the excess costs have made complying with the Step 2 emission limit cost prohibitive. Are there other cost considerations such as material costs, warranty costs, installation costs, maintenance costs, or other costs that were unexpected or different from what the Agency estimated in the 2015 NSPS? Have there been any other unforeseen impacts on costs for manufacturers due to changes in consumer preferences or attitudes towards the devices and products that would be needed to comply with Step 2? Therefore, the EPA is soliciting comment on the feasibility of complying with the Step 2 emission limit for hydronic heaters. Commenters should explain the issues regarding the practicability of achieving the Step 2 emission limits, whether the EPA's estimated costs are being exceeded 7 or if there are other aspects of the costs that the Agency had not previously considered, and whether changing the Step 2 emission limit will alleviate these issues. Commenters should provide relevant information and data to support their positions. The EPA is also soliciting comment regarding the potential environmental and public health effects, if any, of modifying the Step 2 emission limits for hydronic heaters.

    6 U.S. Environmental Protection Agency. Regulatory Impact Analysis (RIA) for the Residential Wood Heaters NSPS Revision. Final Report. EPA-452/R-15-001. Available on the internet at https://www3.epa.gov/ttn/ecas/docs/ria/wood-heaters_ria_final-nsps-revision_2015-02.pdf.

    7 Memo to Gil Wood, USEPA, from EC/R Inc. Estimated Residential Wood Heater Manufacturer Cost Impacts. January 30, 2015. Available in Docket ID No. EPA-HQ-OAR-2009-0734.

    As of March 20, 2018, there are nine models that meet the Step 2 standard for hydronic heaters (as required under 40 CFR 60.5474(a)(2) and 60.5474(b)(2) or (b)(3)), and one model that meets the Step 2 standard for forced-air furnaces (as required under 40 CFR 60.5474(a)(6) and 60.5474(b)(6)) based on the Step 2 certification process. These models are listed in the document titled “List of EPA certified Wood Heating Devices March 2018,” which is in the docket at EPA-HQ-OAR-2018-0196. Also see link https://www.epa.gov/compliance/wood-heater-compliance-monitoring-program.

    The EPA is requesting comment regarding these models and models that have not met the Step 2 standard for hydronic heaters and what they demonstrate about achieving the standard at a reasonable cost. Specifically, for manufacturers expecting to be unable to design a hydronic heater to meet the Step 2 standard, the EPA is interested in whether the Step 2 standard applicable to your device is achievable at a reasonable cost by the May 2020 Step 2 compliance date. The Agency is also interested in receiving information regarding efforts undertaken to design hydronic heaters to meet the applicable Step 2 standard, including cost, and if one or more models are expected to be ready for certification by the May 2020 Step 2 compliance date, when you expect to submit your application(s) for certification to the EPA.

    As noted earlier, the EPA is also soliciting comment on the feasibility of the Step 2 compliance date of May 15, 2020. The EPA is soliciting comment on whether to extend the Step 2 compliance date for hydronic heaters. Commenters should provide relevant information and data to support any request for a delayed compliance date. The EPA is also soliciting comment on the environmental and public health effects, if any, of potential extensions of the Step 2 compliance date for hydronic heaters.

    E. Step 2 Emission Limit Based on Weighted Averages Versus Individual Burn Rates for Hydronic Heaters and Forced-Air Furnaces

    For hydronic heaters, the 2015 NSPS retained the proposed Step 1 emission cap of 18 grams per hour (g/hr) for all burn rates. For forced-air furnaces, the 2015 NSPS does not require an emission cap for any burn rates for Step 1. The Step 2 requirements for hydronic heaters did not retain the g/hr cap. Instead, to balance industry's concern with the g/hr cap with concerns about very large emissions at individual burn rates, the Step 2 emission standards for hydronic heaters and forced-air furnaces require the devices to meet the emission limits for crib wood and cord wood, at each individual burn rate (see 80 CFR 13684 and 13690).

    The emission limits for hydronic heaters reflect the data available for the 2015 NSPS rulemaking, when 18 percent of hydronic heaters in the EPA's Voluntary Hydronic Heater Program already met the Step 2 standard. For forced-air furnaces, the EPA determined that research and development would be needed in order to meet the Step 2 limits.8

    8 Memo to Gil Wood, USEPA, from EC/R Inc. Estimated Residential Wood Heater Manufacturer Cost Impacts. January 30, 2015. Available in Docket ID No. EPA-HQ-OAR-2009-0734.

    In the 2014 NSPS proposal, the EPA proposed a weighted average approach for compliance. But, because of the large emissions that could potentially result from individual burn rates, along with the proposed weighted average approach, the EPA also proposed a g/hr cap for the certification test. Comments received from industry representatives in 2014 suggested that the g/hr emission cap would be too difficult to meet. To accommodate these concerns, and after considering other public comments, the EPA finalized the emission standards without a g/hr cap but required the devices to meet the emission limit at each individual burn rate to prevent large emission discharges.

    Based on concerns raised since promulgating the 2015 NSPS, the EPA is soliciting comment on determining compliance with weighted averages instead of individual burn rates. Commenters should describe the relevant issues pertaining to compliance with the Step 2 emission limit with individual burn rates versus a weighted average and also include data to support their position. Commenters should also discuss and support with data how a weighted average would impact emissions and compliance costs.

    F. Step 2 Emission Limit for Wood Heaters

    As of March 20, 2018, there were a total of 78 models that when certified for the Step 1 and Step 2 standards reported emission levels that meet the Step 2 standard for wood heaters (as required under 40 CFR 60.532(b) or 60.532(c)). These models are listed in the document titled “List of EPA certified Wood Heating Devices March 2018,” which is in the docket at EPA-HQ-OAR-2018-0196. Also see link https://www.epa.gov/compliance/wood-heater-compliance-monitoring-program.

    The EPA is requesting comment on all aspects of the costs associated with the Step 2 standards for wood heaters compared to the costs estimated by the EPA in the 2015 NSPS and whether Step 2 is achievable at a reasonable cost. The EPA requests comment on the potential cost difference for consumers to operate different types of wood heaters and, in particular, the cost of operating a pellet wood heater compared to the cost of operating a cord/crib wood heater.

    If you are a manufacturer that has been unable to design a wood heater to meet the Step 2 standard, the EPA is interested in whether you think the Step 2 standard applicable to your device is achievable at a mean capital cost per model of $162,300 (for wood stoves and pellet stoves, in 2016 dollars) by the May 2020 Step 2 compliance date and whether this cost is reasonable.9 The EPA is requesting comment on the technical feasibility of achieving the Step 2 standards for 40 CFR part 60, subpart AAA wood heaters including both pellet and cord/crib wood heaters and whether the Agency should consider creating separate source categories for these different wood heaters types.10 Since more pellet stoves meet Step 2 than crib/cord wood stoves, the EPA is interested in hearing from manufacturers and the public on the concept of different emission standards for pellet-fired and crib/cord wood-fired heating devices. The Agency is also interested in receiving information regarding the efforts you have undertaken to design a wood heater, both for pellet and crib/cord wood heaters, to meet the applicable Step 2 standard, including the cost of your efforts to do so. In addition, the EPA requests information on how many models of pellet and crib/cord wood heaters you expect will be and will not be ready for certification by the May 2020 Step 2 compliance date, and when you expect to submit your application(s) for certification to the EPA.

    9 Estimate is based on the mean capital cost per model in Table 5-1, p. 5-5 of that RIA, escalated to 2016 dollars from the original 2013 dollar estimate of $156,000. Escalation uses the annual value of GDP implicit price deflator, which is 1.04127 higher in 2016 than 2013.

    10 In the 2015 final rule, the EPA noted that it was “making a single determination of BSER for catalytic, noncatalytic, hybrid, cord wood and pellet heaters and furnaces in order to not restrict open market competition.” Furthermore, as noted in the Response to Comment document: “It is up to manufacturers to decide what combustion technology/wood fuel to use to meet the emission limits and up to consumers to decide what types of heaters they wish to purchase that are certified to meet those limits.” Performance standards may drive competition in the marketplace; however, maintaining just one source category for these wood heaters may distort the marketplace and raise costs for both manufacturers and consumers if only a limited number of wood heaters or predominantly one type of wood heater can meet the Step 2 standards. Pellet wood heaters may be more readily able to meet more stringent standards due to the consistent fuel type and continual operating mode compared to crib/cord wood heaters that may require more costly redesigns to meet the Step 2 standards. In addition, the agency did not consider the lifetime operating costs in the 2015 NSPS as the difference in fuel costs between operating a crib/cord wood and pellet wood heater could be considerable over the lifetime of the wood heater if consumer choice is limited to just pellet stoves due to the Step 2 standards.

    Additionally, the EPA has received informal comments from several parties regarding emissions testing variability and, along with those discussions, issues have been raised regarding the units or format of the Step 2 emission limit in 40 CFR 60, subpart AAA. One issue raised is that the existing emission limit in units of grams per hour (g/hr) increases variability in that the duration of the performance test directly impacts the g/hr result, thus incentivizing longer test periods. The EPA is soliciting comments on this form of the standard (g/hr) and whether it is appropriate for the purpose of defining the compliance limit and, if not, what form of a standard would be more appropriate and reasons supporting those positions. Other possible unit options for the emission limit could be g/kg or lb/mmBtu. Commenters are asked to provide relevant information and data (where available) to support their comments.

    G. The EPA Compliance Audit Testing

    The EPA seeks comment with respect to the EPA compliance audit test provisions in the current rules (2015 NSPS), found at 40 CFR 60.533(n) (80 FR 13708) for wood heaters and at 40 CFR 60.5475(n) (80 FR 13721) for hydronic heaters and forced-air furnaces. Specifically, the Agency is seeking comment on whether revisions to the current compliance audit test provisions are necessary to ensure compliance. First, the Agency is seeking comment on 40 CFR 60.533 (n)(2)(i) and 40 CFR 60.5475(n)(2)(i) regarding if it is appropriate for the EPA to select a lab to perform the audit test from any approved test laboratory, and whether the EPA should also consider using a federal laboratory. Alternatively, the EPA seeks comment on whether audit tests should be performed by the same lab that did the certification test for a given wood heater appliance. If the audit test should be done by the certifying lab, the EPA seeks comment on how to handle situations where the original certifying lab is out of business or unable to accommodate the audit test. Commenters should include any relevant information and data that support their views and comments.

    Second, as some variability is inherent in emissions testing, the Agency is seeking comment (and information) on whether and, if so, to what degree, the EPA should consider this variability when assessing the result of an audit test to determine if a wood burning appliance successfully passed the test, or not. Please provide relevant information and data to support your comments.

    Third, the Agency is seeking comment on establishing (as well as how best to manage the regulatory cost of), through NSPS regulation, a program using ASTM E691-99 “Standard Practice for Conducting an Interlaboratory Study to Determine the Precision of a Test Method.” The intent of such a program would be to develop and establish wood heating device audit test acceptability criteria, and to provide data useful to the EPA in both refining wood heating device test methodology development and in aiding the regulatory data collection with respect to wood heater, forced-air furnace, and hydronic heater emissions and standards setting processes. The EPA is also requesting comment on the cost or any concerns with specifying a specific certification lab and any discussion of the use of a federal versus a private lab. For the 2015 NSPS, the EPA estimated a cost of $63,564 for each compliance audit conducted for each hydronic heater and forced-air furnace over the period of 2015 to 2017, an estimate documented in the Supporting Statement for the standard.11

    11 U.S. Environmental Protection Agency. NSPS for New Residential Hydronic Heaters and Forced-Air Furnaces (40 CFR part 60, subpart QQQQ) (Final Rule). January 2015. Pp. 11-12.

    H. ISO-Accredited Third-Party Review

    In the 2015 NSPS, the EPA included a new feature to improve the process by which manufacturers of wood heating devices apply for certification (see 80 FR 13684, and the ISO-accredited third-party review at 80 FR 13706 and 80 FR 13719). The ISO-accredited third-party review was included in the 2015 NSPS to streamline and speed up the review process.

    The EPA is seeking comment on whether third-party review has streamlined the process for manufacturers to submit their certification applications and/or what issues and problems stakeholders have experienced with third-party review process. The EPA also solicits suggestions for improving the third-party review and reducing regulatory burden, including what specific rule changes would be appropriate, and why. Commenters should provide relevant information and data to support their comments and suggestions.

    The current process allows the EPA-approved certifying lab to also act as the third-party reviewer for a given appliance. Some external stakeholders have raised concerns about allowing a lab to act as both the certifying test lab and third-party reviewer for a given certification test. The EPA solicits comments as to whether an EPA-approved lab should be allowed to act as both the certifying lab and third-party reviewer. Commenters should address whether this is a problem and provide available data to support their position.

    I. Electronic Reporting Tool (ERT)

    The EPA seeks comment on establishing electronic reporting for submitting the non-confidential business information (CBI) certification application, including the compliance test data, rather than via hard copy, to relieve manufacturer burden and enhance efficiencies. One possibility is the EPA's Electronic Reporting Tool (ERT). The ERT is a Microsoft Access® application that generates electronic versions of source test reports. Information on the ERT can be found at https://www.epa.gov/electronic-reporting-air-emissions/electronic-reporting-tool-ert. The EPA believes that using the ERT will relieve the burden on manufacturers in the certification application process by standardizing the reporting format by having specific data elements reported, thereby helping to ensure completeness and accuracy of the data submitted. As a result, the electronically submitted application with complete and accurate data will enable an efficient and timely review. In addition, because the ERT performs the required method calculations, certification test report errors will be reduced and the burden of performing these calculations manually will be eliminated for the manufacturers as well as for the third-party certifiers and the EPA reviewers. If the ERT were used, it would generate a non-CBI test report (in pdf format) along with the ERT-generated Access database (accdb) file that could be submitted to the EPA for certification and once certified, posted to the manufacturer's website. This ERT-generated test report would include a list of attachments in the ERT file but not the attachments themselves. The attachments would be contained in the ERT accdb file and if posted to the manufacturer's website would be available to the public. Posting the pdf will also address the version control concerns of the ERT-generated database file. These two components could satisfy the reporting requirements in 80 FR 13713 and 13725. The EPA seeks comment on whether to include the option of using the ERT to create a non-CBI and a CBI test report and certification package (pdf and .accdb file) that satisfies the reporting requirements in 40 CFR 60.537(f) and 60.5479(f), which requires the manufacturer to submit the results of a certification test within 60 days of completing each performance test. If the EPA changes the current provisions, the Agency expects that the manufacturers would still be required to post the full non-CBI test report (pdf with all attachments or ERT generated pdf with the Access database (accdb) file) on the manufacturer's website and submit the CBI test report separately to the EPA. Manufacturers, who claim that some of the information being submitted is CBI (e.g., design drawings), could also utilize the same non-CBI test report generated by the ERT and add the design drawings as an attachment to be submitted to the EPA as CBI in order to satisfy the requirements under 40 CFR 60.537(f) and 60.5479(f). Similarly, the non-CBI report with no CBI information attached could be posted to the manufacturer's website within 30 days of receiving a certification of compliance to satisfy 40 CFR 60.537(g) and 60.5479(g). Please provide as much detailed information as possible to support your comments regarding this approach.

    J. Warranty Requirements for Certified Appliances

    The 2015 NSPS requires owners or operators to operate wood heating devices consistent with the owner's manual (see 40 CFR 60.532(f)(13) and (g) and 60.5474(f)(13) and (g)). The 2015 NSPS also requires manufacturers to provide an owner's manual that clearly states that operation in a manner inconsistent with the manual, such as burning prohibited material or pellets that do not meet the minimum requirements of the 2015 Rule, would void the warranty (see 80 FR 13751, appendix I to Part 60). The cost of this requirement to provide an owner's manual is an average of $3,750 per hydronic heater or forced-air furnace model over the time period of 2015 to 2017, according to the Supporting Statement for the 2015 NSPS.12 Although numerous states expressed their support for these requirements as a mechanism to help enforce the 2015 NSPS, some stakeholders have questioned whether the EPA has the statutory authority to impose these requirements. Stakeholders have also raised other issues regarding the warranty requirements. The EPA is, therefore, soliciting comments regarding retention, revision, or elimination of the warranty requirements. For example, the EPA would be interested in hearing whether such requirements are necessary for the safe and efficient operation of the wood heater devices. Commenters supporting retention of the requirements should address whether any changes are recommended to the warranty requirements along with data, as appropriate, and an explanation to support their position. Commenters supporting elimination of the requirements should provide an explanation to support their position.

    12 U.S. Environmental Protection Agency. NSPS for New Residential Hydronic Heaters and Forced-Air Furnaces (40 CFR part 60, subpart QQQQ). January 2015. pp. 11.

    VII. Statutory and Executive Order Reviews

    Under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), this is a “significant regulatory action.” Accordingly, the EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Order 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. Because this action does not propose or impose any requirements, and instead seeks comments and suggestions for the Agency to consider in possibly developing a subsequent proposed rule, the various statutes and Executive Orders that normally apply to rulemaking do not apply in this case. Should the EPA subsequently determine to pursue a rulemaking, the EPA will address the statutes and Executive Orders as applicable to that rulemaking.

    List of Subjects in 40 CFR Part 60

    Environmental protection, Administrative practice and procedure.

    Dated: November 21, 2018. Andrew R. Wheeler, Acting Administrator.
    [FR Doc. 2018-26082 Filed 11-29-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 181031994-8999-01] RIN 0648-XG608 Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Fisheries of the Northeastern United States; Atlantic Herring Fishery; Adjustment to Atlantic Herring Specifications and Sub-Annual Catch Limits for 2019 AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    This action proposes an in-season adjustment to the Atlantic herring specifications and sub-annual catch limits for 2019. These adjustments are necessary to reduce 2018 herring catch limits that would otherwise remain in effect for 2019. This action is intended to prevent overfishing of the herring resource while minimizing negative social and economic impacts of reduced catch limits.

    DATES:

    Public comments must be received by December 31, 2018.

    ADDRESSES:

    You may submit comments on this document, identified by NOAA-NMFS-2018-0131, by either of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0131, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Michael Pentony, Regional Administrator, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on Adjustments to Atlantic Herring Specifications for 2019.”

    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 us. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. We will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    Copies of this action, including the Supplemental Environmental Assessment and the Regulatory Impact Review/Initial Regulatory Flexibility Analysis (SEA/RIR/IRFA) prepared in support of this action, are available from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The supporting documents are also accessible via the internet at: https://www.regulations.gov/.

    FOR FURTHER INFORMATION CONTACT:

    Carrie Nordeen, Fishery Policy Analyst, 978-281-9272.

    SUPPLEMENTARY INFORMATION: Background

    We implemented 2016-2018 Atlantic herring specifications on November 1, 2016 (81 FR 75731), as recommended by the New England Fishery Management Council. The specifications included an overfishing limit (OFL) of 111,000 mt for 2018. The acceptable biological catch (ABC) for 2018 was also set at 111,000 mt. The ABC was based on the Council's interim control rule, set equal to the OFL with at least a 50-percent probability of preventing overfishing, and consistent with the Council's Scientific and Statistical Committee's (SSC) advice. The annual catch limit (ACL) for 2018 was 104,800 mt.

    In June 2018, a new Northeast Regional Stock Assessment Workshop (SAW) for herring, reviewed by the Stock Assessment Review Committee (SARC), was completed. The assessment concluded that although herring was not overfished and overfishing was not occurring in 2017, poor recruitment would likely result in a substantial decline in herring biomass. The stock assessment estimated that recruitment had been at historic lows during the most recent 5 years (2013-2017). The assessment projected that biomass could increase, after reaching a low in 2019, if recruitment returns to average levels, but that herring catch would need to be reduced, starting in 2018, to prevent overfishing and lower the risk of the stock becoming overfished. The final assessment summary report is available on the Northeast Fisheries Science Center (NEFSC) website (www.nefsc.noaa.gov/publications/).

    The Atlantic Herring Fishery Management Plan (FMP) allows us to make in-season adjustments to the herring specifications and sub-ACLs, after consultation with the Council, consistent with the Herring FMP's objectives and other FMP provisions. In August 2018, at the request of the Council, we used an in-season adjustment to reduce the 2018 ACL from 104,800 mt to 49,900 mt to reduce the risk of overfishing (83 FR 42450, August 22, 2018). This ensured at least a 50-percent probability of preventing overfishing in 2018. However, assessment projections indicated that catch would need to be further reduced in 2019 to prevent overfishing and lower the risk of the stock becoming overfished.

    By regulation, herring catch limits for 2018, as modified by the 2018 in-season adjustment, will remain in effect until replaced. At its September 2018 meeting, the Council adopted a new ABC control rule for the herring fishery developed in Amendment 8 to the Herring FMP and recommended we use an in-season adjustment to reduce 2018 herring catch limits for 2019 while it develops new specifications starting in 2020. The Council was scheduled to begin developing the 2019-2021 herring specifications at its September meeting and take final action on the new specifications at its December 2018 meeting. The Council planned for us to implement the new specifications during 2019, based on the new ABC control rule it adopted in Amendment 8. However, because of the time required for the Council to prepare the necessary documentation and for us to review and approve the control rule in Amendment 8 and implement final approved measures, the new specifications would not have been effective early enough to prevent catch from exceeding the lower catch limits required to prevent overfishing in 2019.

    Proposed Adjustments to Herring Specifications

    We are proposing to adjust the current herring specifications and sub-ACLs for 2019, consistent with the Herring FMP's objectives of preventing overfishing while maximizing social and economic benefits. We will strive to publish the final rule as close as possible to the start of the new fishing year in January 2019. The 2019 specifications and sub-ACLs proposed in this action, as well as the Council's recommendations for 2019, are shown in Table 1.

    Table 1—2019 Atlantic Herring Specification and Sub-ACL Alternatives (mt) Alternative 1—no action Alternative 2—council-
  • recommended
  • Alternative 3—proposed action
    Overfishing Limit 111,000 30,688 30,688 Acceptable Biological Catch 111,000 21,266 30,688 Management Uncertainty 6,200 6,200 6,200 Optimum Yield/ACL 49,900 * 15,065 * 24,488 * Domestic Annual Harvest 104,800 15,065 24,488 Border Transfer 4,000 0 0 Domestic Annual Processing 100,800 15,065 24,488 U.S. At-Sea Processing 0 0 0 Area 1A Sub-ACL 27,743 * (55.6%) 4,354 * (28.9%) 7,077 * (28.9%) Area 1B Sub-ACL 2,639 (5.3%) 647 (4.3%) 1,053 (4.3%) Area 2 Sub-ACL 8,200 (16.4%) 4,188 (27.8%) 6,808 (27.8%) Area 3 Sub-ACL 11,318 (22.7%) 5,876 (39%) 9,550 (39%) Fixed Gear Set-Aside 295 39 64 Research Set-Aside 3% of sub-ACLs 3% of sub-ACLs 3% of sub-ACLs * If New Brunswick weir fishery catch through October 1 is less than 4,000 mt, then 1,000 mt will be subtracted from the management uncertainty buffer and added to the ACL and Area 1A Sub-ACL.

    We consulted with the Council on potential 2019 specifications during the Council's September 2018 meeting. At that meeting, the Council recommended that we:

    • Use the most recent assessment and projections to develop the 2019 specifications.

    • Use the ABC control rule approved by the Council in Amendment 8.

    • Maintain the sub-annual catch limits for herring management areas based on the proportions allocated in the 2016-2018 specifications package.

    ○ Area 1A: 28.9 percent.

    ○ Area 1B: 4.3 percent.

    ○ Area 2: 27.8 percent.

    ○ Area 3: 39 percent.

    • Proportionally reduce the fixed gear set-aside allocation which is based on a small weir fishery west of Cutler, ME.

    • Set the border transfer (which allows U.S. vessels to transfer herring to Canadian vessels to be processed as food) at 0 mt.

    Based on the best available science, we are proposing to reduce the OFL for 2019 to 30,688 mt. The Herring FMP specifies that the OFL must be equal to catch resulting from applying the maximum fishing mortality threshold to a current or projected estimate of stock size. When the stock is not overfished and overfishing is not occurring, this is usually the fishing rate supporting maximum sustainable yield. Catch that exceeds this amount would result in overfishing. An OFL of 30,388 mt would ensure at least a 50-percent probability of preventing overfishing in 2019. This OFL is based on projections by the SAW/SARC, as updated by NOAA's NEFSC staff using 2018 catch, and was recommended by both the SSC and the Council.

    The Herring FMP specifies that the ABC may be equal to or less than the OFL depending on scientific uncertainty concerning stock size estimates, variability around recruitment estimates, and consideration of ecosystem issues. For the 2019 ABC reduction, we are proposing to continue applying the interim control rule that was used to set ABC in recent specifications (2016-2018). Our proposed ABC would have a 50-percent probability of preventing overfishing in 2019 and would be set equal to the OFL. In contrast, the SSC and Council recommended reducing the ABC for 2019 based on the new control rule the Council adopted in Amendment 8 that accounts for herring's role in the ecosystem. Our proposed ABC is 30,688 mt and the SSC/Council recommended ABC is 21,266 mt.

    Our proposed ABC prevents overfishing and accounts for scientific uncertainty in the short-term until we are able to consider the Council's recommendation for addressing scientific uncertainty in a long-term control rule in Amendment 8. The approach to continue using the interim control rule for 2019 is independent of and involves different considerations than our consideration of the Council's recommended control rule in Amendment 8. We expect the Council to submit Amendment 8 to us for review and approval in late 2018. Additionally, while the 2018 assessment showed that the probability of the stock becoming overfished has increased since the last stock assessment, our proposed ABC is intended to reduce the risk of the stock becoming overfished.

    We are proposing to maintain the current management uncertainty buffer (6,200 mt), as recommended by the Council, so the resulting ACL would be 24,488 mt. This ACL is almost 10,000 mt higher than the ACL that would result from the Council-recommended ABC (15,065 mt). Allowing this additional harvest helps to achieve optimum yield (OY) by accounting for social, economic, and ecological factors, specifically the need to conserve herring biomass while mitigating severe economic hardship on the herring industry. Because the majority of herring catch is bait for the lobster fishery, we expect this additional harvest to help minimize the negative economic impacts associated with bait shortages and higher bait prices on the lobster fishery. The management uncertainty buffer, in conjunction with low fishery closure thresholds (95 percent of the ACL and 92 percent of a sub-ACL), has prevented herring catch from ever exceeding the ABC, which further minimizes the probability of overfishing.

    We are proposing to maintain the sub-ACL allocations used in the recent specifications (2016-2018) for 2019. This means that 28.9 percent of the ACL would be allocated to Area 1A, 4.3 percent allocated to Area 1B, 27.8 percent allocated to Area 2, and 39 percent allocated to Area 3. These sub-ACL allocations were recommended by the Council for past specifications, as well as for 2019, because they do not substantially impact one stock component (inshore versus offshore) more than the other while maximizing opportunities for the fishery to achieve OY. Adjusting the sub-ACL allocations for the herring management area may have impacts beyond those we considered in this action. For that reason, we are seeking public comment on the proposed sub-ACL allocation versus other possible sub-ACL allocations that would be consistent with the Herring FMP's objectives.

    Based on the Council's recommendations, we are also proposing to reduce border transfer to 0 mt and reduce the fixed gear set-aside to 64 mt for 2019. Border transfer is a processing quota and is the maximum amount of herring that can be transshipped to Canada via Canadian carrier vessels for human consumption. Border transfer has been under-utilized in recent years, and there has been no border transfer since 2015. Reducing the border transfer to 0 mt for 2019 would ensure all herring caught in U.S. waters are available to U.S. Federal dealers for lobster bait or human consumption. Additionally, we are proposing that the fixed gear set-aside be reduced proportionally to the Area 1A sub-ACL to 64 mt. The Herring FMP allows up to 500 mt of the Area 1A sub-ACL to be allocated for the fixed gear fisheries in Area 1A (weirs and stop seines) that occur west of 67°16.8′ W long (Cutler, Maine). This set-aside is available for harvest by fixed gear within the specified area until November 1 of each fishing year. Any portion of this allocation that has not been harvested by November 1 is transferred back to the sub-ACL allocation for Area 1A. The proposed reduction of the fixed gear set aside is intended to allow additional herring harvest to be available to both fixed and mobile gears in Area 1A to help ensure OY is achieved. Like border transfer, the fixed gear set-aside has been under-utilized in recent years. Fixed gear landings tracked against the set-aside have averaged less than 12 mt in the past 5 years.

    The Herring FMP requires we adjust for catch overages and underages in a subsequent year. Total catch in 2017 did not reach or exceed any of the management area sub-ACLs, so typically we would carryover those underages, or a portion of the underages, to increase sub-ACLs in 2019. However, to help ensure catch does not exceed the ABC/OFL in 2019 and to help prevent overfishing, we are proposing to not increase any sub-ACLs in 2019 based on carryover from underages in 2017.

    All other herring specifications for 2019, including the river herring and shad catch caps, would remain unchanged from 2018. While our proposed adjustments to the herring specifications in 2019 are generally consistent with the Council's recommendations, our proposed ABC and the resulting ACL and sub-ACLs are not as conservative as those recommended by the Council. However, the specifications proposed in this action are expected to prevent overfishing and reduce the risk of the stock becoming overfished. We expect that implementing an ABC lower than the 30,688 mt ABC proposed in this action would not increase the probability of preventing overfishing or the stock from becoming overfished enough to outweigh the increased financial hardship on the herring and lobster fisheries. If herring specifications are too low, they may preclude a viable fishery in 2019 and some businesses may not be sustainable and may fail. Our proposed specifications for 2019 are intended to balance preventing overfishing and maintaining a viable herring fishery to achieve OY, while we consider approval and implementation of a long-term ABC control rule in Amendment 8 to the Herring FMP.

    Herring Research Set-Aside Announcement

    We are soliciting public comment on the Herring Research Set-Aside (RSA) program awards for 2019-2021. The Herring RSA Program allocates up to 3 percent of each management area sub-ACL annually, as established by the Council in Amendment 1 to the Herring FMP (72 FR 11251, March 12, 2007). Exempted Fishing Permits (EFPs) exempting vessels from certain herring management regulations have been routinely approved since 2007 to support compensation fishing that funds herring-related research consistent with RSA priorities identified by the Council. By continuing to issue these EFPs we would facilitate compensation fishing in support of the projects funded under the 2019 Herring RSA Program. Herring RSA proposals for 2019 are currently under review with the NEFSC, with selections expected in late November or early December of this year. RSA compensation fishing may be allowed as early as January 2019.

    Consistent with previous herring RSA compensation fishing EFPs, vessels would be authorized to harvest herring RSA after a herring management area sub-ACL had been caught and the directed herring fishery is limited to a 2,000 lb (907.2 kg) limit of herring per day/trip. It would also allow vessels to harvest RSA during times when the sub-ACLs were not seasonally available for harvest, specifically during January through May in Area 1A and January through April in Area 1B. RSA grant recipients would be required to meet all EFP application requirements prior to the issuance of the EFPs.

    If approved, the EFP applicants may request minor modifications and extensions to the EFP throughout the year. EFP modifications and extensions may be issued without further notice if they are deemed essential to facilitate completion of the proposed research and have minimal impacts that do not change the scope of the initially approved EFP request. Any fishing activity conducted outside the scope of the exempted fishing activity would be prohibited.

    Classification

    The NMFS Assistant Administrator has determined that this proposed rule is consistent with the Herring FMP, national standards and other provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and other applicable law.

    This proposed rule is exempt from review under Executive Order (E.O.) 12866 because this action contains no implementing regulations.

    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) for this proposed rule, as required by section 603 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 603. The IRFA describes the economic impact that this proposed rule would have on small entities, including small businesses, and also determines ways to minimize these impacts. The IRFA includes this section of the preamble to this rule and analyses contained in the SEA/RIR/IRFA for this action. A copy of the full analysis is available from the Council (see ADDRESSES). A summary of the IRFA follows.

    Description of the Reasons Why Action by the Agency Is Being Considered and Statement of the Objectives of, and Legal Basis for, the Proposed Rule

    This action proposes in-season adjustments to the herring specifications and sub-ACLs for 2019. A complete description of the reasons why this action is being considered, and the objectives of and legal basis for this action, are contained in the preamble to this proposed rule and are not repeated here.

    Description and Estimate of Number of Small Entities to Which This Proposed Rule Would Apply

    The RFA recognizes three kinds of small entities: Small businesses, small organizations, and small governmental jurisdictions. For purposes of the RFA only, the small business criteria in the finfish fishing industry (NAICS 114111) is a firm that is independently owned and operated and not dominant in its field of operation, with gross annual receipts of $11 million or less. Small organizations and small governmental jurisdictions are not directly regulated by this action.

    There are five permit categories in the herring fishery: (1) Limited access permit for all management areas (Category A); (2) limited access permit for access to Areas 2 and 3 only (Category B); (3) limited access incidental catch permit for 25 mt per trip (Category C); (4) an open access incidental catch permit for 3 mt per trip (Category D); and (5) an open access permit for limited access mackerel permit holders authorizing up to 9 mt per trip (Category E) in Areas 2 and 3.

    In 2017 there were a total of 1,566 permitted herring vessels. Of those, 1,434 were exclusively Category D vessels. Of the remaining 132 permitted herring vessels, 22 belonged to large businesses. Every Category B permit was also authorized for Category C, and all but one Category E permitted vessel also carried a Category D authorization. We included Category E vessels that also have Category D authorization in the analysis. Table 2 presents the counts of permitted vessels by category along with their affiliated entity's small or large business status (the status of the company that holds the herring permit).

    Table 2—Number of Herring Permits by Category, 2015-2017 Herring permit categories Number of herring permits 2015 Large Small 2016 Large Small 2017 Large Small A 5 32 5 30 6 30 B/C 4 4 4 4 4 4 C (exclusive) 3 37 3 37 3 37 D (exclusive) 112 1222 115 1306 114 1320 E 9 39 9 40 9 39 Total 133 1334 136 1417 136 1430 Source: NMFS.

    Table 3 refines the counts from Table 2 to include only those vessels that had revenue from herring at least once in the 3-year period of analysis. In 2017, there were 4 large businesses and 69 small that had revenue from herring.

    Table 3—Number of Herring Permits With Herring Revenue, 2015-2017 Herring permit categories Number of herring permits 2015 Large Small 2016 Large Small 2017 Large Small A 4 20 4 19 4 19 B/C 0 2 0 2 0 3 C (exclusive) 0 11 0 9 0 12 D (exclusive) 0 27 0 29 0 31 E 0 4 0 1 0 4 Total 4 64 4 60 4 69 Source: NMFS

    Finally, Table 4 defines the small entities affected by this proposed action—small businesses with a Herring Category A, B, C, or E permit and revenue from herring during the 2015-2017 period of analysis. There were 37, 31, and 38 such vessels in 2015, 2016, and 2017 respectively.

    Table 4—Affected Small Entities, Permitted Herring Vessels With Herring Revenue, 2015-2017 Herring permit categories Number of herring permits 2015 Large Small 2016 Large Small 2017 Large Small A 4 20 4 19 4 19 B/C 0 2 0 2 0 3 C (exclusive) 0 11 0 9 0 12 E 0 4 0 1 0 4 Total 4 37 4 31 4 38 Source: NMFS.

    To better understand the impact of this action on the affected small businesses, we compared the revenue from herring fishing to total revenue brought in by the entity (business) that holds the herring permit. The 17 to 18 small entities with Category A permits show the most dependence on the herring fishery, with 49.75 percent to 62.03 percent of their revenue coming from herring landings. The 4 small Category E permitted entities have the least dependence on the herring fishery with less than one percent of total entity revenue coming from the herring fishery.

    Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

    This proposed rule does not introduce any new reporting, recordkeeping, or other compliance requirements.

    Federal Rules Which May Duplicate, Overlap, or Conflict With the Proposed Rule

    This action does not duplicate, overlap, or conflict with any other Federal rules.

    Description of Significant Alternatives to the Proposed Action Which Accomplish the Stated Objectives of Applicable Statues and Which Minimize Any Significant Economic Impact on Small Entities

    We are proposing to adjust the current herring specifications and sub-ACLs for 2019, consistent with the Herring FMP's objectives of preventing overfishing while maximizing social and economic benefits. Non-preferred alternatives would likely not accomplish these objectives for this action as well as the proposed action.

    Alternative 1 would not achieve the stated objectives of the action because it has a less than 50-percent probability of preventing overfishing in 2019 and, thus, is inconsistent the Magnuson-Stevens Act. Additionally, Alternative 1 would negatively impact the herring stock by increasing the probability that it would become overfished. The primary difference between Alternative 2 (Council-recommended) and Alternative 3 (proposed action) are the proposed specifications for ABC and the resulting ACL for 2019. The ABC associated with the proposed action (30,688 mt) is higher than the ABC associated with Alternative 2 (21,266 mt). After applying the management uncertainty buffer (6,200 mt) to the ABC, the resulting ACL associated with the proposed action (24,488 mt) is almost 10,000 mt higher than the ACL associated with the Alternative 2 (15,065 mt).

    We expect that implementing an ABC lower than 30,688 mt in 2019 would not increase the probability of preventing overfishing or the stock from becoming overfished enough to outweigh the increased financial hardship on the herring and lobster fisheries. If the ACL is too low, it may preclude a viable fishery in 2019 and some businesses may not be sustainable and may fail. The proposed ABC for 2019 is intended to balance preventing overfishing and maintaining a viable herring fishery to achieve OY, while we consider approval and implementation of a long-term ABC control rule in Amendment 8 the Herring FMP.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 27, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2018-26097 Filed 11-29-18; 8:45 am] BILLING CODE 3510-22-P
    83 231 Friday, November 30, 2018 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request November 27, 2018.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments regarding this information collection received by December 31, 2018 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW, Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Food Safety and Inspection Service

    Title: Certificate of Medical Examination.

    OMB Control Number: 0583-0167.

    Summary of Collection: The Food Safety and Inspection Service (FSIS) has been delegated the authority to exercise the functions of the Secretary as provided in the Federal Meat Inspection Act (FMIA) (21 U.S.C. 601 et seq.), the Poultry Products Inspection Act (PPIA) (21 U.S.C. 451 et seq.), and the Egg products Inspection Act (EPIA) (21 U.S.C. 1031 et seq.). These statutes mandate that FSIS protect the public by ensuring that meat and poultry products are safe, wholesome, unadulterated, and properly labeled and packaged. FSIS will use a form FSIS 4339-1, Certificate of Medical Examination (with report of medical History) to collect information from applicant.

    Need and Use of the Information: FSIS will use the information from FSIS 4339-1 form to determine whether an applicant for an FSIS Food Inspector, Consumer Safety Inspector, or Veterinary Medical Officer in-plant position meets the Office of Personnel Management-approved medical qualification standards for the position. The form will ensure accurate collection of the required data.

    Description of Respondents: Individuals or households.

    Number of Respondents: 500.

    Frequency of Responses: Recordkeeping; Reporting: On occasion.

    Total Burden Hours: 750.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2018-26036 Filed 11-29-18; 8:45 am] BILLING CODE 3410-DM-P
    DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request November 27, 2018.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments regarding this information collection received by December 31, 2018 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725—17th Street NW, Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Animal and Plant Health Inspection Service

    Title: Specimen Submission.

    OMB Control Number: 0579-0090.

    Summary of Collection: The Animal Health Protection Act of 2002 (AHPA) is the primary Federal law governing the protection of animal health. The law gives the Secretary of Agriculture broad authority to detect, control, or eradicate pests or diseases of livestock or poultry. Disease prevention is the most effective method for maintaining a healthy animal population and for enhancing the United States' ability to globally compete in the trade of animals and animal products. VS Forms 10-4 and 10-4A, Specimen Submission are critical components of APHIS' disease surveillance mission. They are used routinely when specimens (such as blood, milk, tissue, or urine) from any animal (including cattle, swine, sheep, goats, horses, and poultry) are submitted to APHIS' National Veterinary Services Laboratories (NVSL) for disease testing. VS Form 5-38, Parasite Submission form, is completed by State veterinarians or other State representatives, accredited veterinarians, private laboratories, research institutions, and owners or producer.

    Need and Use of the Information: Using the Specimen Submission Form and Continuation Sheet (APHIS VS 10-4 & 10-4A), State or Federal veterinarians, accredited veterinarians, or other State and Federal representatives will document the collection and submission of specimens for laboratory analysis. The form identifies the individual animal from which the specimen is taken as well as the animal's herd or flock; the type of specimen submitted, and the purpose of submitting the specimen. Occasionally the time pressures exerted by or field conditions existing during a disease outbreak leave submitters no time to find or fill out the 10-4; thus, a Nonconforming Submission using whatever scrap of paper is handy. The National Tick Surveillance Program is based on the information submitted on the Parasite Submission Form (VS 5-38), in addition to critical surveillance information needed for the Cattle Fever Tick Eradication Program. This information identifies the individual submitting the tick samples. Without the information APHIS would not have the critical information necessary to effectively operate a disease surveillance program.

    Description of Respondents: State, Local or Tribal Government; Business or other for-profit.

    Number of Respondents: 1,773.

    Frequency of Responses: Reporting: On occasion.

    Total Burden Hours: 8,605.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2018-26027 Filed 11-29-18; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2010-0100] Environmental Impact Statement; Cattle Fever Tick Control Barrier in South Texas: Record of Decision AGENCY:

    Animal and Plant Health Inspection Service, USDA.

    ACTION:

    Notice.

    SUMMARY:

    This notice advises the public of the Animal and Plant Health Inspection Service's record of decision for the final environmental impact statement titled “Cattle Fever Tick Eradication Program—Tick Control Barrier: Maverick, Starr, Webb, and Zapata Counties, Texas.”

    DATES:

    An official of the Animal and Plant Health Inspection Service-Veterinary Services signed the record of decision on July 12, 2018.

    ADDRESSES:

    You may read the final environmental impact statement and record of decision in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW, Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming. The record of decision, final environmental impact statement, and supporting information may also be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2010-0100. To obtain copies of the documents, contact the person listed under FOR FURTHER INFORMATION CONTACT.

    FOR FURTHER INFORMATION CONTACT:

    For questions related to the Cattle Fever Tick Eradication Program, contact Dr. Denise Bonilla, Entomologist, Cattle Fever Tick Eradication Program Manager, Surveillance, Preparedness and Response Services, VS, APHIS, Natural Resources Research Center, Building B, 2150 Centre Avenue, Fort Collins, CO 80526; (970) 494-7317. For questions related to the environmental impact statement, contact Ms. Michelle Gray, Environmental Protection Specialist, Environmental and Risk Analysis Services, PPD, APHIS, 4700 River Road Unit 149, Riverdale, MD 20737; (301) 851-3146.

    SUPPLEMENTARY INFORMATION:

    On February 15, 2011, we published in the Federal Register (76 FR 8709-8710) a notice 1 of intent to prepare an environmental impact statement (EIS) for a proposed cattle fever tick control barrier in South Texas. This notice solicited comments from the public for additional alternatives and environmental impacts that should be examined further in the EIS and identified public meetings that the Animal and Plant Health Inspection Service (APHIS) would host concerning the scope of the EIS and other pertinent issues.

    1 The notices, comments, EIS, record of decision, and supporting documents for this docket can be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2010-0100.

    On July 24, 2013, we published a notice of availability in the Federal Register (78 FR 44521-44522) for the draft EIS and invited public comment through August 30, 2013. Responses to those comments are in the final EIS. On June 1, 2018, the U.S. Environmental Protection Agency published a notice of the availability of the final EIS in the Federal Register (83 FR 25451-25452, Docket No. ER-FRL-9039-6) and invited public comment through July 2, 2018.

    The National Environmental Policy Act (NEPA) implementing regulations in 40 CFR 1506.10 require a minimum 30-day waiting period between the time a final EIS is published and the time an agency makes a decision on an action covered by the EIS. APHIS has reviewed the final EIS and comments received during the 30-day waiting period and has concluded that the final EIS fully analyzes the issues covered by the draft EIS and addresses the comments and suggestions submitted by commenters. This notice advises the public that the waiting period has elapsed, and APHIS has issued a record of decision (ROD) to implement the preferred alternative described in the final EIS.

    The ROD has been prepared in accordance with: (1) NEPA, as amended (42 U.S.C. 4321 et seq.); (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508); (3) USDA regulations implementing NEPA (7 CFR part 1b); and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

    Done in Washington, DC, this 26th day of November 2018. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2018-26068 Filed 11-29-18; 8:45 am] BILLING CODE 3410-34-P
    CIVIL RIGHTS COMMISSION Sunshine Act Meeting Notice AGENCY:

    United States Commission on Civil Rights.

    ACTION:

    Notice of Commission business meeting.

    DATES:

    Friday, December 7, 2018, at 10 a.m. EST.

    ADDRESSES:

    Place: National Place Building, 1331 Pennsylvania Ave. NW, 11th Floor, Suite 1150, Washington, DC 20245 (entrance on F Street NW).

    FOR FURTHER INFORMATION CONTACT:

    Brian Walch; phone (202) 376-8371; TTY: (202) 376-8116; [email protected]

    SUPPLEMENTARY INFORMATION:

    This business meeting is open to the public. Public call-in (listen-only) information: Toll-free: 1-800-682-9934, Conference ID 7671081. Stay abreast of updates at www.usccr.gov, https://twitter.com/USCCRgov, and https://www.facebook.com/USCCRgov/. The event will also live-stream at https://www.youtube.com/user/USCCR/videos. (Streaming information is subject to change.) Persons with disabilities who need accommodation should contact Pamela Dunston at (202) 376-8105 or at [email protected] at least seven (7) business days before the scheduled date of the meeting.

    Meeting Agenda I. Approval of Agenda II. Business Meeting A. Presentation by Rhode Island Advisory Committee Chair on the Committee's recently released report, Payday Lending in Rhode Island B. Presentation by Connecticut Advisory Committee Chair on the Committee's recently released advisory memorandum, Solitary Confinement in Connecticut C. Presentation by Vermont Advisory Committee Chair on the Committee's recently released advisory memorandum, Housing Discrimination in Vermont: A Handshake and a Smile D. Discussion and vote on discovery plan, outline, and timeline for Commission project on Women in Prison E. Discussion and vote on briefing date for Commission project on Sexual Harassment in Federal Workplaces F. Management and Operations • Staff Director's Report III. Adjourn Meeting Dated: November 28, 2018. Brian Walch, Director, Communications and Public Engagement.
    [FR Doc. 2018-26202 Filed 11-28-18; 4:15 pm] BILLING CODE 6335-01-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Michigan 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 Michigan Advisory Committee (Committee) will hold a meeting on Friday, December 14, 2018, at 12:00 p.m. EST the purpose of the meeting is to continue discussing details for a 2019 briefing on voting rights.

    DATES:

    The meeting will be held on Friday, December 14, 2018, at 12:00 p.m. EST.

    Public Call Information: Dial: 877-260-1479; Conference ID: 3377560.

    FOR FURTHER INFORMATION CONTACT:

    Ana Victoria Fortes, DFO, at [email protected] or 213-894-3437.

    SUPPLEMENTARY INFORMATION:

    Members of the public can listen to the discussion. This meeting is available to the public through the above toll-free call-in number. Any interested member of the public may call this number and listen to the meeting. 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.

    Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs 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 emailed to Carolyn Allen at [email protected] Persons who desire additional information may contact the Regional Programs Office at (312) 353-8311.

    Records generated from this meeting may be inspected and reproduced at the Regional Programs Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Michigan 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 Programs Office at the above email or street address.

    Agenda I. Welcome and Roll Call II. Approval of Minutes for November 14, 2018 Meeting III. Planning Discussion IV. Next Steps V. Public Comment VI. Adjournment Dated: November 26, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-26012 Filed 11-29-18; 8:45 am] BILLING CODE P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Wyoming Advisory Committee AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that the meeting of the Wyoming Advisory Committee (Committee) to the Commission will be held at 1:00 p.m. (Mountain Time) Wednesday, December 12, 2018. The purpose of this meeting is for the Committee to discuss project topics and receive information on USCCR project process.

    DATES:

    The meeting will be held on Wednesday, December 12, 2018 at 1:00 p.m. MT.

    FOR FURTHER INFORMATION CONTACT:

    Ana Victoria Fortes (DFO) at [email protected] or (213) 894-3437.

    SUPPLEMENTARY INFORMATION:

    Public Call Information: Dial: 877-260-1479; Conference ID: 2208701.

    This meeting is available to the public through the following toll-free call-in number: 877-260-1479, conference ID number: 2208701. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012. They may be faxed to the Commission at (213) 894-0508, or emailed Ana Victoria Fortes at [email protected] Persons who desire additional information may contact the Regional Programs Unit at (213) 894-3437.

    Records and documents discussed during the meeting will be available for public viewing prior to and after the meetings at https://facadatabase.gov/committee/meetings.aspx?cid=283.

    Please click on the “Meeting Details” and “Documents” links. Records generated from these meetings may also be inspected and reproduced at the Regional Programs Unit, as they become available, both before and after the meetings. Persons interested in the work of this Committee are directed to the Commission's website, https://www.usccr.gov, or may contact the Regional Programs Unit at the above email or street address.

    AGENDA I. Welcome and Roll Call II. USCCR Project Stages III. Discuss Project Topics IV. Vote on Project Topic V. Next Steps a. Schedule next meeting b. Project proposal (tentative) VI. Public Comment VII. Adjournment Dated: November 26, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-26022 Filed 11-29-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-985] Xanthan Gum From the People's Republic of China: Continuation of Antidumping Duty Order AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    As a result of the determinations by the Department of Commerce (Commerce) and the International Trade Commission (ITC) that revocation of the antidumping duty (AD) order on xanthan gum from the People's Republic of China (China) would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, Commerce is publishing a notice of continuation of the AD duty order.

    DATES:

    Applicable November 30, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Magd Zalok or Howard Smith, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4162 or (202) 482-5193, respectively.

    SUPPLEMENTARY INFORMATION: Background

    On July 19, 2013, Commerce published in the Federal Register the AD order on xanthan gum from China.1 On June 1, 2018, Commerce published the notice of initiation of this sunset review of the Order, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).2 Commerce conducted this sunset review on an expedited basis, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2) because it received a complete timely, and adequate response from a domestic interested party 3 but no substantive responses from respondent interested parties. As a result of its review, Commerce determined pursuant to sections 751(c)(1) and 752(c) of the Act, that revocation of the Order would likely lead to a continuation or recurrence of dumping. Commerce also notified the ITC of the magnitude of the dumping margins likely to prevail should the Order be revoked.4 On November 20, 2018, the ITC published its determination, pursuant to section 751(c) of the Act, that revocation of the AD duty order on xanthan gum from China would be likely to lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.5

    1See Xanthan Gum from the People's Republic of China: Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order, 78 FR 43143 (July 19, 2013) (Order).

    2See Initiation of Five-Year (Sunset) Reviews, 83 FR 25436 (June 1, 2018).

    3See Letter from ADM to Commerce re, “Five-Year (“Sunset”) Review Of Antidumping Duty Order On Xanthan Gum From The People's Republic Of China/Domestic Industry Notice Of Intent To Participate In Sunset Review,” dated June 15, 2018, and Letter from CP Kelco to Commerce re, “Xanthan Gum from the People's Republic of China: CP Kelco U.S., Inc.'s Notice Of Intent To Participate,” dated June 18, 2018.

    4See Xanthan Gum from the People's Republic of China: Final Results of the Expedited First Sunset Review of the Antidumping Duty Order, 83 FR 48589 (September 26, 2018) (Final Results).

    5See xanthan gum from China: First Review, Inv. No. 731-TA-1203, 83 FR 58592 (November 20, 2018).

    Scope of the Order

    The merchandise covered by the scope of the Order includes dry xanthan gum, whether or not coated or blended with other products. Xanthan gum is included in this order regardless of physical form, including, but not limited to, solutions, slurries, dry powders of any particle size, or unground fiber.

    Merchandise covered by the scope of the Order is classified in the Harmonized Tariff Schedule of the United States at subheading 3913.90.20.15. This tariff classification is provided for convenience and customs purposes; however, the written description of the scope is dispositive.6

    6 For complete description of the scope of the Order, see “Issues and Decision Memorandum for the Expedited First Sunset Review of the Antidumping Duty Order on Xanthan Gum from the People's Republic of China,” dated September 19, 2018.

    Continuation of the Order

    As a result of the determinations by Commerce and the ITC that revocation of the Order would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act and 19 CFR 351.218(a), Commerce hereby orders the continuation of the AD order on xanthan gum from China. U.S. Customs and Border Protection will continue to collect AD cash deposits at the rates in effect at the time of entry for all imports of subject merchandise. The effective date of the continuation of the Order will be the date of publication in the Federal Register of this notice of continuation. Pursuant to section 751(c)(2) of the Act and 19 CFR 351.218(c)(2), Commerce intends to initiate the next sunset review of the Order not later than 30 days prior to the fifth anniversary of the effective date of continuation.

    This five-year sunset review and this notice are in accordance with section 751(c) and 751(d)(2) of the Act and published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).

    Dated: November 27, 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. 2018-26170 Filed 11-29-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG513 Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Pacific Coast Groundfish Fishery; Application for an Exempted Fishing Permit AGENCY:

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

    ACTION:

    Notice; request for comments.

    SUMMARY:

    NMFS announces the receipt of an exempted fishing permit application titled, “Year-round Coastwide Midwater Rockfish EFP: Monitoring and Minimizing Salmon Bycatch When Targeting Rockfish in the Shorebased IFQ Fishery.” The application, submitted by the West Coast Seafood Processors Association, Environmental Defense Fund, Oregon Trawl Commission, and Midwater Trawlers Cooperative, requests a permit to test whether removing certain gear, time, and area restrictions for vessels fishing under the Trawl Rationalization Program's Shorebased Individual Fishing Quota Program may impact the nature and extent of bycatch of prohibited species (e.g., Chinook salmon). This exempted fishing permit would allow participating groundfish bottom and midwater trawl vessels more flexibility than allowed in current regulations to target pelagic rockfish species, such as widow, chilipepper, and yellowtail rockfish. Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on applications for proposed exempted fishing permits.

    DATES:

    Comments must be received no later than 5 p.m., local time on December 17, 2018.

    ADDRESSES:

    You may submit comments on this document, identified by NOAA-NMFS-2018-0112, by any of the following methods:

    Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0112, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments. The EFP application will be available under “Supporting Documents” through the same link.

    Mail: Submit written comments to Lynn Massey, West Coast Region, NMFS, 501 W Ocean Blvd., Ste. 4200, Long Beach, CA 90802-4250.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and would 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 would be publicly accessible. NMFS would accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments would be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

    FOR FURTHER INFORMATION CONTACT:

    Lynn Massey, West Coast Region, NMFS, at (562) 436-2462, [email protected]

    SUPPLEMENTARY INFORMATION:

    This action is authorized by the Pacific Coast Groundfish Fishery Management Plan (FMP) and implementing regulations at 50 CFR 600.745, which allow NMFS Regional Administrators to authorize exempted fishing permits (EFPs) to test fishing activities that would otherwise be prohibited.

    In 2017, NMFS permitted 32 vessels to fish under the 2017 Trawl Gear EFP. The EFP exempted limited entry bottom and midwater trawl vessels from the minimum mesh size requirement, and exempted limited entry bottom trawl vessels from the requirement to use selective flatfish trawl gear shoreward of the Trawl Rockfish Conservation Area (RCA) north of 42° North latitude (N lat). The purpose of this EFP was to collect information on potential impacts to prohibited and protected species from modifying or eliminating certain gear and area regulations by allowing participants to configure their gear to re-establish a targeted rockfish fishery for widow, yellowtail, and chilipepper rockfish. From March 2017 to December 2017, a total of 11 limited entry groundfish bottom trawl vessels went on 63 EFP trips and landed 1,355 metric tons (mt) of groundfish, totaling $1,613,178 in revenue. Prohibited species bycatch included five Chinook salmon and no sturgeon.

    To continue collecting information on the impacts of modifying or eliminating gear and area regulations, the Pacific Fishery Management Council (Council) recommended and NMFS issued, a 2018 Trawl Gear EFP that expanded on the 2017 Trawl Gear EFP. As with the 2017 EFP, the 2018 EFP was intended to collect data on if and how the removal of certain gear, time, and area restrictions for the Shorebased Individual Fishing Quota (IFQ) Program may impact the nature and extent of prohibited species bycatch. In addition to the exemptions provided by the 2017 Trawl Gear EFP (i.e., required minimum mesh size and requirement to use a selective flatfish trawl shoreward of the Trawl RCA and north of 42° N lat.), the 2018 Trawl Gear EFP provided participating vessels exemptions from the following limited entry prohibitions:

    • Fishing with midwater groundfish trawl gear north of 40°10′ N lat. in all areas (i.e., seaward, within, and shoreward of the RCA) prior to May 15th each year;

    • Fishing with midwater groundfish trawl gear south of 40°10′ N lat. within the boundaries of the Trawl RCA;

    • Bringing a new haul onboard before a previous haul is stowed; and

    • Carrying and fishing more than one type of groundfish trawl gear (midwater and bottom trawl gear) on the same trip.

    The 2018 Trawl Gear EFP began on January 1, 2018. As of October 23, 2018, a total of 15 vessels (7 midwater-only trawlers, 4 bottom-only trawlers, and 4 that used both gears) have completed 289 EFP trips and landed approximately 9,000 mt of groundfish, totaling approximately $7 million in revenue. Those vessels harvested 213 Chinook salmon and no sturgeon or coho salmon.

    At the June 2018 Council meeting, the 2017 and 2018 Trawl Gear EFP applicants submitted a modified EFP application titled, “Year-round Coastwide Midwater Rockfish EFP: Monitoring and Minimizing Salmon Bycatch When Targeting Rockfish in the Shorebased IFQ Fishery” (herein referred to as the “2019 Trawl Gear EFP”). At the September 2018 meeting, the Council recommended that NMFS implement this EFP for 2019, and made a preliminary determination to recommend the EFP to NMFS for 2020. Separately, NMFS has issued a proposed trawl gear rule that would incorporate some of the exemptions included in the 2017 and 2018 EFPs into the groundfish regulations (Proposed rule: 83 FR 45396, September 7, 2018; final rule expected to publish in late November/early December 2018). The exemptions authorized under this 2019 Trawl Gear EFP will be finalized following the publication of the trawl gear rule so that the EFP does not include exemptions from requirements which may be removed from regulations by the rule. The 2019 Trawl Gear EFP is anticipated to include, at a minimum, exemptions from the following limited entry restrictions:

    • The requirement to use selective flatfish trawl gear, and the prohibition on using small footrope trawl gear, other than selective flatfish trawl gear, shoreward of the Trawl RCA between 42° N lat. and 40°10′ N lat.;

    • The prohibition on fishing with midwater groundfish trawl gear north of 40°10′ N lat. in all areas (i.e., seaward, within, and shoreward of the RCA) prior to May 15th each year;

    • The prohibition on fishing with midwater groundfish trawl gear south of 40°10′ N lat. within the boundaries of the Trawl RCA; and

    • The prohibition on retaining certain prohibited species.

    If NMFS approves this EFP, vessels fishing on an EFP trip with limited entry bottom trawl gear would be permitted to use any small footrope gear that meets the definition in regulations at § 660.11 shoreward of the Trawl RCA and between 42° N lat. and 40°10′ N lat. Vessels fishing on an EFP trip with limited entry midwater trawl gear would be permitted to fish within all areas north of 40°10′ N lat. and within the boundaries and seaward of the Trawl RCA south of 40°10′ N lat. Midwater trawling will still be prohibited shoreward of the Trawl RCA south of 40°10′ N lat. Participating vessels would not be constrained to the Pacific whiting primary season dates in existing groundfish regulations (see CFR 660.131). Participating vessels would be required to carry observers or use a NMFS-approved electronic monitoring system on 100 percent of trips, as is currently required in the IFQ program. Participating vessels would also be required to retain all salmon (excluding salmon already sampled by the West Coast Groundfish Observer (WCGOP) program) until offloading.

    A goal of this EFP is to collect information on the effects of lifting the restrictions described above on bycatch, including bycatch of Endangered Species Act (ESA)-listed species. Previous analyses suggest that bycatch rates of ESA-listed salmon and green sturgeon could increase as a result of the increased and changes in gear configurations resulting from this EFP. However, because a targeted fishery for chilipepper, widow, and yellowtail rockfish has not existed in more than a decade, and because the current groundfish trawl fishery has changed considerably in recent years, available data may have limited utility for predicting current impacts to protected and prohibited species in fisheries conducted with the exemptions that would be allowed under the EFP. NMFS staff worked with the applicants to develop an EFP that would increase the ability of fishery participants to target pelagic rockfish species while also minimizing bycatch to the extent practicable and collecting information about bycatch. To address potential increased protected and prohibited species encounters, the EFP applicants proposed gear-based Chinook salmon bycatch limits for midwater trawl and bottom trawl EFP vessels in 2019 (based on the Council Groundfish Management Team's recommendations at the September 2018 meeting; Agenda Item I.8.a). Under this proposal, if Chinook salmon catch on EFP trips for either gear type reaches the applicable bycatch limit, NMFS would revoke the EFP for that gear type for the remainder of the year.

    During discussion at the September 2018 meeting, the Council recommended simplifying the EFP terms by proposing that the Chinook bycatch limits be based only on the 42° N lat. management line, rather than by gear type north and south of the 42° N lat. line. This recommendation would reduce unnecessary complexity while still providing adequate safeguards for limiting salmon bycatch under the EFP. If this EFP is approved, NMFS would set a bycatch limit of 1,000 Chinook salmon north of 42° N lat. and 100 Chinook salmon south of 42° N lat. for vessels declared into the EFP, regardless of gear type. If either of these bycatch limits are reached, NMFS would revoke the EFP for both gear types in the respective management area (i.e., north or south of 42° N lat.).

    The application includes a requirement to retain and land salmon bycatch on all EFP trips, consistent with current requirements for vessels participating in the shoreside Pacific whiting fishery. The intent of this provision is to provide a complete census of salmon bycatch for each EFP trip and maximize the amount of biological and genetic salmon samples. At the September 2018 meeting, the Council expressed a desire to provide state fish and wildlife agencies the opportunity to sample salmon bycatch. This sampling effort would be in addition to the salmon sampling already conducted by WCGOP. To address the request for additional sampling, the Council requested that NMFS work with NOAA's Office of Law Enforcement and state fish and wildlife agencies to establish proper chain-of-custody and sampling protocols in the event that salmon are landed. NMFS is supportive of making salmon bycatch available to state fish and wildlife agencies for additional sampling, however NMFS is confident that WCGOP's sampling approach is sufficient to collect the necessary scientific information for assessing salmon bycatch.

    The EFP applicants have not proposed a specific list of participating vessels, but rather are proposing that NMFS publish a public notice to gauge interest from limited entry groundfish midwater and bottom trawl vessels. Depending on the amount of interest and where vessels may be fishing, NMFS may need to limit participation by time and area to mitigate potential impacts.

    Information collected under the EFP would be used to support analysis for potential new gear regulations and modifications to existing gear regulations. Because many of the current gear regulations have been in place for more than ten years, it is difficult for NMFS, the Council, and industry to predict the impacts of removing these regulations. In the past ten years, the industry has changed significantly. Reduction in capacity, innovations in gear technologies, and changes in management have all contributed to these changes. This EFP would help demonstrate what potential impacts, if any, today's fleet may have if some of the current gear, area, and time regulations are modified from what is currently in regulation.

    NMFS is proposing to approve the 2019 Trawl Gear EFP, covering all the exemptions stated above, following the conclusion of the public comment period and review of public comment. Pending approval, NMFS would issue the permits for the EFP to the vessel owner or designated representative as the “EFP holder.” NMFS intends to use an adaptive management approach in which NMFS may revise requirements and protocols to improve the program without issuing another Federal Register Notice, provided that the modifications fall within the scope of the original EFP. In addition, the applicants may request minor modifications and extensions to the EFP throughout the course of research. NMFS may grant EFP modifications and extensions without further public notice if the changes are essential to facilitate completing the proposed research and result in only a minimal change in the scope or impacts of the initially approved EFP request.

    NMFS analyzed the potential effects of implementing the 2018 Trawl Gear EFP in an environmental assessment (EA), dated December 2017 (Available at: http://www.westcoast.fisheries.noaa.gov). In that EA, NMFS stated that it anticipated issuing additional, similar, one-year EFPs that would cover a portion or all of the components discussed in the EA. Those EFPs would be supported by the analyses in the EA, as long as there were not substantial changes to the affected environment (e.g., status of the stock), components of the EFP (i.e., gear, area, and time restrictions), or unanticipated effects on the environment from permitting fishing activities that were not discussed in the EA's analysis. Since the 2019 Trawl Gear EFP meets those criteria, NMFS does not anticipate any adverse environmental impacts from the 2019 Trawl Gear EFP beyond those analyzed in the EA for the 2018 Trawl Gear and future similar EFPs. NMFS welcomes public comment on the NEPA coverage for this EFP.

    After publication of this document in the Federal Register, NMFS may approve and issue the EFP after the close of the public comment period. NMFS will consider comments submitted, as well as the Council's discussion at their September 2018 meeting, in deciding whether to approve the application as requested. NMFS may approve the application in its entirety or may make any alterations needed to achieve the goals of the EFP.

    Authority:

    16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

    Dated: November 27, 2018. Karen H. Abrams, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-26049 Filed 11-29-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG589 Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Management Area; Cost Recovery Programs AGENCY:

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

    ACTION:

    Notice of standard prices and fee percentages.

    SUMMARY:

    NMFS publishes standard prices and fee percentages for cost recovery for the Amendment 80 Program, the American Fisheries Act (AFA) Program, the Aleutian Islands Pollock (AIP) Program, and the Western Alaska Community Development Quota (CDQ) groundfish and halibut Programs. The fee percentage for 2018 is 0.75 percent for the Amendment 80 Program, 0.24 percent for the AFA inshore cooperatives, 0.34 percent for the AFA mothership cooperative, 3.0 percent for the AIP program, and 0.66 percent for the CDQ groundfish and halibut Programs. This action is intended to provide the 2018 standard prices and fee percentages to calculate the required payment for cost recovery fees due by December 31, 2018.

    DATES:

    The standard prices and fee percentages are valid on November 30, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Carl Greene, Fee Coordinator, 907-586-7105.

    SUPPLEMENTARY INFORMATION:

    Background

    Section 304(d) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) authorizes and requires the collection of cost recovery fees for limited access privilege programs and the CDQ Program. Cost recovery fees recover the actual costs directly related to the management, data collection, and enforcement of the programs. Section 304(d) of the Magnuson-Stevens Act mandates that cost recovery fees not exceed three percent of the annual ex-vessel value of fish harvested by a program subject to a cost recovery fee, and that the fee be collected either at the time of landing, filing of a landing report, or sale of such fish during a fishing season or in the last quarter of the calendar year in which the fish is harvested.

    NMFS manages the Amendment 80 Program, AFA Program, and AIP Program as limited access privilege programs. On January 5, 2016, NMFS published a final rule to implement cost recovery for these three limited access privilege programs and the CDQ groundfish and halibut programs (81 FR 150). The designated representative (for the purposes of cost recovery) for each program is responsible for submitting the fee payment to NMFS on or before the due date of December 31 of the year in which the landings were made. The total dollar amount of the fee due is determined by multiplying the NMFS published fee percentage by the ex-vessel value of all landings under the program made during the fishing year. NMFS publishes this notice of the fee percentages for the Amendment 80, AFA, AIP, and CDQ groundfish and halibut fisheries in the Federal Register by December 1 each year.

    Standard Prices

    The fee liability is based on the ex-vessel value of fish harvested in each program. For purposes of calculating cost recovery fees, NMFS calculates a standard ex-vessel price (standard price) for each species. A standard price is determined using information on landings purchased (volume) and ex-vessel value paid (value). For most groundfish species, NMFS annually summarizes volume and value information for landings of all fishery species subject to cost recovery in order to estimate a standard price for each species. The standard prices are described in U.S. dollars per pound for landings made during the year. The standard prices for all species in the Amendment 80, AFA, AIP, and CDQ groundfish and halibut programs are listed in Table 1. Each landing made under each program is multiplied by the appropriate standard price to arrive at an ex-vessel value for each landing. These values are summed together to arrive at the ex-vessel value of each program (fishery value).

    Fee Percentage

    NMFS calculates the fee percentage each year according to the factors and methods described in Federal regulations at 50 CFR 679.33(c)(2), 679.66(c)(2), 679.67(c)(2), and 679.95(c)(2). NMFS determines the fee percentage that applies to landings made during the year by dividing the total costs directly related to the management, data collection, and enforcement of each program (direct program costs) during the year by the fishery value. NMFS captures direct program costs through an established accounting system that allows staff to track labor, travel, contracts, rent, and procurement. For 2018, the direct program costs were tracked from October 1, 2017, to September 30, 2018 (the end of the fiscal year). The individual 2018 fee percentages for the Amendment 80 Program, the American Fisheries Act (AFA) Program, the Aleutian Islands Pollock Program, and the Western Alaska Community Development Quota (CDQ) groundfish and halibut Programs are higher relative to percentages calculated for the programs in 2017. Although fishery values in each program rose in 2018 relative to 2017, direct program costs in 2018 also rose, and contributed to the higher percentages.

    NMFS will provide an annual report that summarizes direct program costs for each of the programs in early 2019. NMFS calculates the fishery value as described under the section “Standard Prices.”

    Amendment 80 Program Standard Prices and Fee Percentage

    The Amendment 80 Program allocates total allowable catches (TACs) of groundfish species, other than Bering Sea pollock, to identified trawl catcher/processors in the Bering Sea and Aleutian Islands (BSAI). The Amendment 80 Program allocates a portion of the BSAI TACs of six species: Atka mackerel, Pacific cod, flathead sole, rock sole, yellowfin sole, and Aleutian Islands Pacific ocean perch. Participants in the Amendment 80 sector have established cooperatives to harvest these allocations. Each Amendment 80 cooperative is responsible for payment of the cost recovery fee for fish landed under the Amendment 80 Program. Cost recovery requirements for the Amendment 80 Program are at 50 CFR 679.95.

    For most Amendment 80 species, NMFS annually summarizes volume and value information for landings of all fishery species subject to cost recovery in order to estimate a standard price for each fishery species. Regulations specify that for rock sole, NMFS shall calculate a separate standard price for two periods—January 1 through March 31, and April 1 through October 31, which accounts for a substantial difference in estimated rock sole prices during the first quarter of the year relative to the remainder of the year. The volume and value information is obtained from the First Wholesale Volume and Value Report, and the Pacific Cod Ex-Vessel Volume and Value Report.

    Using the fee percentage formula described above, the estimated percentage of direct program costs to fishery value for the 2018 calendar year is 0.75 percent for the Amendment 80 Program. For 2018, NMFS applied the fee percentage to each Amendment 80 species landing that was debited from an Amendment 80 cooperative quota allocation between January 1 and December 31 to calculate the Amendment 80 fee liability for each Amendment 80 cooperative. The 2018 fee payments must be submitted to NMFS on or before December 31, 2018. Payment must be made in accordance with the payment methods set forth in 50 CFR 679.95(a)(3)(iv).

    AFA Standard Price and Fee Percentages

    The AFA allocates the Bering Sea directed pollock fishery TAC to three sectors—catcher/processor, mothership, and inshore. Each sector has established cooperatives to harvest the sector's exclusive allocation. In 2018, the cooperatives for the mothership sector and the inshore sector are responsible for paying the fee for Bering Sea pollock landed under the AFA. Cost recovery requirements for the AFA sectors are at 50 CFR 679.66.

    NMFS calculates the standard price for pollock using the most recent annual value information reported to the Alaska Department of Fish & Game for the Commercial Operator's Annual Report and compiled in the Alaska Commercial Fisheries Entry Commission Gross Earnings data for Bering Sea pollock. Due to the time required to compile the data, there is a one-year delay between the gross earnings data year and the fishing year to which it is applied. For example, NMFS used 2017 gross earnings data to calculate the standard price for 2018 pollock landings.

    Under the fee percentage formula described above, the estimated percentage of direct program costs to fishery value for the 2018 calendar year is 0.24 percent for the AFA inshore sector, and 0.34 percent for the AFA mothership sector. To calculate the 2018 fee liabilities, NMFS applied the respective fee percentages to the landings of Bering Sea pollock debited from each cooperative's fishery allocation that occurred between January 1 and December 31. The 2018 fee payments must be submitted to NMFS on or before December 31, 2018. Payment must be made in accordance with the payment methods set forth in 50 CFR 679.66(a)(4)(iv).

    AIP Program Standard Price and Fee Percentage

    The AIP Program allocates the Aleutian Islands directed pollock fishery TAC to the Aleut Corporation, consistent with the Consolidated Appropriations Act of 2004 (Pub. L. 108-109), and its implementing regulations. Annually, prior to the start of the pollock season, the Aleut Corporation provides NMFS with the identity of its designated representative for harvesting the Aleutian Islands directed pollock fishery TAC. The same individual is responsible for the submission of all cost recovery fees for pollock landed under the AIP Program. Cost recovery requirements for the AIP Program are at 50 CFR 679.67.

    NMFS calculates the standard price for pollock using the most recent annual value information reported to the Alaska Department of Fish & Game for the Commercial Operator's Annual Report and compiled in the Alaska Commercial Fisheries Entry Commission Gross Earnings data for Aleutian Islands pollock. Due to the time required to compile the data, there is a one-year delay between the gross earnings data year and the fishing year to which it is applied. For example, NMFS used 2017 gross earnings data to calculate the standard price for 2018 pollock landings.

    For the 2018 fishing year, the Aleut Corporation selected participants to harvest or process the Aleutian Islands directed pollock fishery TAC. Some harvest occurred; however, the majority of that TAC was eventually reallocated to the Bering Sea directed pollock fishery TAC. Due to the small harvest, the estimated percentage of direct program costs to fishery value for the 2018 calendar year were disproportionately high and well above 3.0 percent. Pursuant to section 304(d)(2)(B) of the Magnuson-Stevens Act, the fee percentage amount must not exceed 3.0 percent. Therefore, the 2018 fee percentage is set at 3.0 percent. To calculate the 2018 fee liability, NMFS applied the respective fee percentage to the pollock landings attributed to the AIP Program that occurred between January 1 and December 31. The 2018 fee payments must be submitted to NMFS on or before December 31, 2018. Payment must be made in accordance with the payment methods set forth in 50 CFR 679.67(a)(3)(iv).

    CDQ Standard Price and Fee Percentage

    The CDQ Program was implemented in 1992 to provide access to BSAI fishery resources to villages located in Western Alaska. Section 305(i) of the Magnuson-Stevens Act identifies sixty-five villages eligible to participate in the CDQ Program and the six CDQ groups to represent these villages. CDQ groups receive exclusive harvesting privileges of the TACs for a broad range of crab species, groundfish species, and halibut. NMFS implemented a CDQ cost recovery program for the BSAI crab fisheries in 2005 (70 FR 10174, March 2, 2005) and published the cost recovery fee percentage for the 2018/2019 crab fishing year on July 19, 2018 (83 FR 34119). This notice provides the cost recovery fee percentage for the CDQ groundfish and halibut programs. Each CDQ group is subject to cost recovery fee requirements for landed groundfish and halibut, and the designated representative of each CDQ group is responsible for submitting payment for their CDQ group. Cost recovery requirements for the CDQ Program are at 50 CFR 679.33.

    For most CDQ groundfish species, NMFS annually summarizes volume and value information for landings of all fishery species subject to cost recovery in order to estimate a standard price for each fishery species. The volume and value information is obtained from the First Wholesale Volume and Value Report and the Pacific Cod Ex-Vessel Volume and Value Report. For CDQ halibut and fixed-gear sablefish, NMFS calculates the standard prices using information from the Individual Fishing Quota (IFQ) Ex-Vessel Volume and Value Report, which collects information on both IFQ and CDQ volume and value.

    Using the fee percentage formula described above, the estimated percentage of direct program costs to fishery value for the 2018 calendar year is 0.66 percent for the CDQ groundfish and halibut programs. For 2018, NMFS applied the calculated CDQ fee percentage to all CDQ groundfish and halibut landings made between January 1 and December 31 to calculate the CDQ fee liability for each CDQ group. The 2018 fee payments must be submitted to NMFS on or before December 31, 2018. Payment must be made in accordance with the payment methods set forth in 50 CFR 679.33(a)(3)(iv).

    Table 1—Standard Ex-Vessel Prices by Species for the 2018 Fishing Year Species Gear type Reporting period Standard
  • ex-vessel price
  • per pound ($)
  • Arrowtooth flounder All January 1, 2018-October 31, 2018 $0.22 Atka mackerel All January 1, 2018-October 31, 2018 0.32 Flathead sole All January 1, 2018-October 31, 2018 0.26 Greenland turbot All January 1, 2018-October 31, 2018 0.60 CDQ halibut Fixed gear October 1, 2017-September 30, 2018 4.95 Pacific cod Fixed gear
  • Trawl gear
  • January 1, 2018-October 31, 2018
  • January 1, 2018-October 31, 2018
  • 0.41
  • 0.38
  • Pacific ocean perch All January 1, 2018-October 31, 2018 0.22 Pollock All January 1, 2017-December 31, 2017 0.14 Rock sole All
  • All
  • January 1, 2018-March 31, 2018
  • April 1, 2018-October 31, 2018
  • 0.28
  • 0.20
  • Sablefish Fixed gear
  • Trawl gear
  • October 1, 2017-September 30, 2018
  • January 1, 2018-October 31, 2018
  • 2.89
  • 0.77
  • Yellowfin sole All January 1, 2018-October 31, 2018 0.20
    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 26, 2018. Karen H. Abrams, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-25989 Filed 11-29-18; 8:45 am] BILLING CODE 3510-22-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Additions and Deletions AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Additions to and deletions from the Procurement List.

    SUMMARY:

    This action adds services to the Procurement List that will be provided by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products and services from the Procurement List previously furnished by such agencies.

    DATES:

    Date added to and deleted from the Procurement List: December 30, 2018.

    ADDRESSES:

    Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.

    FOR FURTHER INFORMATION CONTACT:

    Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email [email protected].

    SUPPLEMENTARY INFORMATION: Additions

    On 4/20/2018 (83 FR 77) and 10/19/2018 (83 FR 203), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.

    After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the services and impact of the additions on the current or most recent contractors, the Committee has determined that the services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

    Regulatory Flexibility Act Certification

    I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

    1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will provide the services to the Government.

    2. The action will result in authorizing small entities to provide the services to the Government.

    3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the services proposed for addition to the Procurement List.

    End of Certification

    Accordingly, the following services are added to the Procurement List:

    Services Service Type: Custodial Service. Mandatory for: U.S. Army, ACC Aberdeen, PEO Facilities, Fort Belvoir, VA. Mandatory Source of Supply: Melwood Horticultural Training Center, Inc., Upper Marlboro, MD. Contracting Activity: Dept of the Army, W6Qk ACC-APG. Service Type: Sourcing, Warehousing, Assembly, and Kitting Service. Mandatory for: USPFO Connecticut, National Guard Bureau, National Guard Armory, 360 Broad Street, Hartford, CT. Mandatory Source of Supply: Industries for the Blind and Visually Impaired, Inc., West Allis, WI. Contracting Activity: Dept of the Army, W7MZ USPFO Activity CT ARNG. Deletions

    On 10/19/2018 (83 FR 203) and 10/26/2018 (83 FR 208), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed deletions from the Procurement List.

    After consideration of the relevant matter presented, the Committee has determined that the products and services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

    Regulatory Flexibility Act Certification

    I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

    1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.

    2. The action may result in authorizing small entities to furnish the products and services to the Government.

    3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and services deleted from the Procurement List.

    End of Certification

    Accordingly, the following products and services are deleted from the Procurement List:

    Products NSN(s)—Product Name(s): 7930-01-517-4178—Cleaner, Industrial, Multi-Purpose, SKILCRAFT Savvy Green, 32 oz. 7930-01-517-4171—Cleaner, Industrial, Multi-Purpose, SKILCRAFT Savvy Green, 1 GL 7930-01-517-4172—Cleaner, Industrial, Multi-Purpose, SKILCRAFT Savvy Green, 5 GL 7930-01-517-4177—Cleaner, Industrial, Multi-Purpose, SKILCRAFT Savvy Green, 55 GL 7930-01-517-2726—Cleaner, Heavy Duty, Industrial, Multi-Purpose, SKILCRAFT Savvy Green Plus, 32 oz. 7930-01-517-4186—Cleaner, Heavy Duty, Industrial, Multi-Purpose, SKILCRAFT Savvy Green Plus, 5 GL 7930-01-517-4185—Cleaner, Industrial, Multi-Purpose, SKILCRAFT Savvy Green, 1 gal 7930-01-517-4187—Cleaner, Heavy Duty, Industrial, Multi-Purpose, SKILCRAFT Savvy Green Plus, 55 GL Mandatory Source of Supply: VisionCorps, Lancaster, PA Contracting Activities: General Services Administration, Fort Worth, TX, Department of Veterans Affairs, Strategic Acquisition Center NSN(s)—Product Name(s): 5330-00-884-4807—Gasket and Preformed Packing Set Mandatory Source of Supply: Walterboro Vocational Rehabilitation Center, Walterboro, SC Contracting Activity: Defense Logistics Agency Troop Support NSN(s)—Product Name(s): 7240-00-889-3785—Pail, Utility, Plastic, 5-Pint Mandatory Source of Supply: Community Enterprises of St Clair County, Port Huron, MI Contracting Activity: GSA/FSS Greater Southwest Acquisition, Fort Worth, TX Services Service Type: Janitorial/Custodial Service Mandatory for: U.S. Army Reserve Center: 2838-98 Woodhaven Road Philadelphia Memorial, Philadelphia, PA Mandatory Source of Supply: The Chimes, Inc., Baltimore, MD Contracting Activity: Dept of the Army, W40M NORTHEREGION Contract OFC Service Type: Switchboard Operation Service Mandatory for: Shaw Air Force Base, SC Mandatory Source of Supply: Palmetto Goodwill Services, North Charleston, SC Contracting Activity: DEPT OF THE AIR FORCE, FA4803 20 CONS LGCA Service Type: Grounds Maintenance Service Mandatory for: U.S. Army Reserve Center: 2838-98 Woodhaven Road Philadelphia Memorial, Philadelphia, PA; U.S. Army Reserve Center: 2501 Ford Road, Bristol Veterans, Bristol, PA Mandatory Source of Supply: The Chimes, Inc., Baltimore, MD Contracting Activity: DEPT OF THE ARMY, W6QM MICC CTR-FT DIX (RC) Service Type: Laundry Service Mandatory for: Department of Homeland Security: Alien Detention & Removal (ADR) Immigration & Customs Enforcement (IEC) and Custom, San Diego, CA Mandatory Source of Supply: Job Options, Inc., San Diego, CA Contracting Activity: U.S. Customs and Border Protection, Border Enforcement Contracting Division Service Type: Janitorial/Custodial Service Mandatory for: Veterans Affairs Medical Center: OI Services Center, Edward Hines Jr., 1st Avenue, Bldg. 20, Hines, IL Mandatory Source of Supply: Jewish Vocational Service and Employment Center, Chicago, IL Contracting Activity: Veterans Affairs, Department of, Acquisition Service—FREDERICK Michael R. Jurkowski, Business Management Specialist, Business Operations.
    [FR Doc. 2018-26066 Filed 11-29-18; 8:45 am] BILLING CODE 6353-01-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Proposed Deletions AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Proposed Deletions from the Procurement List.

    SUMMARY:

    The Committee is proposing to delete a product and services from the Procurement List that was previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.

    DATES:

    Comments must be received on or before: December 30, 2018.

    ADDRESSES:

    Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202-4149.

    FOR FURTHER INFORMATION CONTACT:

    For further information or to submit comments contact: Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email [email protected]

    SUPPLEMENTARY INFORMATION:

    This notice is published pursuant to 41 U.S.C. 8503 (a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.

    Deletions

    The following product and services are proposed for deletion from the Procurement List:

    Product NSN(s)—Product Name(s): 7520-00-286-1724—File, Sorter, Letter, 1-31, Blue Mandatory Source of Supply: Exceptional Children's Foundation, Culver City, CA Contracting Activity: GSA/FAS ADMIN SVCS ACQUISITION BR(2, New York, NY Services Service Type: Supply Room/Motor Vehicle Service Mandatory for: Federal Aviation Administration: Great Lakes Region, Des Plaines, IL Mandatory Source of Supply: Jewish Vocational Service and Employment Center, Chicago, IL Contracting Activity: DEPARTMENT OF TRANSPORTATION Service Type: Janitorial Service Mandatory for: USDA Natural Resources Conservation Service Shiprock Field Office, Old Post Office Route 491 Shiprock, NM Mandatory Source of Supply: Presbyterian Medical Services, Santa Fe, NM Contracting Activity: NATURAL RESOURCES CONSERVATION SERVICE, AZ STATE OFFICE (NRCS) Service Types: Trash Pick-up Service Cleaning Service Mandatory for: Crane Division, Naval Surface Warfare Center, Crane, IN Mandatory Source of Supply: Orange County Rehabilitative and Developmental Services, Inc., Paoli, IN Contracting Activity: DEPT OF THE NAVY, U S FLEET FORCES COMMAND Michael R. Jurkowski, Business Management Specialist, Business Operations.
    [FR Doc. 2018-26065 Filed 11-29-18; 8:45 am] BILLING CODE 6353-01-P
    DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers Withdrawal of the Notice of Intent To Prepare a Draft Environmental Impact Statement (DEIS) in Cooperation With the North Carolina Department of Transportation and South Carolina Department of Transportation for Extending SC 31 (Carolina Bays Parkway), in Horry County, South Carolina, To Connect to US 17, in Brunswick County, North Carolina AGENCY:

    Department of the Army, U.S. Army Corps of Engineers, DoD.

    ACTION:

    Notice.

    SUMMARY:

    The U.S. Army Corps of Engineers, Wilmington District, Wilmington Regulatory Division and the U.S. Army Corps of Engineers, Charleston District, Charleston Regulatory Division (collectively COE) are issuing this notice to advise the public that a State (North Carolina Department of Transportation [NCDOT] and South Carolina Department of Transportation [SCDOT]) funded Draft Environmental Impact Statement (DEIS) will no longer be prepared by the COE, while acting as lead federal agency, for improvements to SC 31 starting near Little River, Horry County, South Carolina and running northeast to US 17, in an area between Calabash and Shallotte, Brunswick County, North Carolina. On July 6, 2017 the COE issued a Notice of Intent to prepare a DEIS for the “Carolina Bays Parkway Extension”, NCDOT Project 44604 and SCDOT Project P029554. Recent commitment of federal funds has altered various aspects of this project, including the designation of the lead federal agency. Due to these developments, the COE will no longer act in this capacity, but rather as a cooperating agency throughout the evaluation of the project. At the appropriate time, a separate notice will be issued within the Federal Register identifying the lead agency, describing the project, and detailing the evaluation process.

    FOR FURTHER INFORMATION CONTACT:

    Questions about the COE's current role in this project can be directed to Mr. Brad Shaver, Regulatory Project Manager (Wilmington District), Wilmington Regulatory Field Office, 69 Darlington Avenue, Wilmington, NC 28403, by telephone: (910) 251-4611, or by email at [email protected] or Ms. Amanda Heath, Regulatory Project Manager (Charleston District), Charleston Regulatory Office, 69A Hagood Avenue, Charleston, SC 29403, by telephone: (843) 329-8025, or by email at [email protected]

    Scott McLendon, Chief, Regulatory Division, Wilmington District.
    [FR Doc. 2018-26041 Filed 11-29-18; 8:45 am] BILLING CODE 3720-58-P
    DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers Notice of Availability of the Record of Decision for the Final Missouri River Recovery Management Plan and Environmental Impact Statement AGENCY:

    Department of the Army, U.S. Army Corps of Engineers, DoD.

    ACTION:

    Notice; availability of the Record of Decision.

    SUMMARY:

    The U.S. Army Corps of Engineers (USACE) announces the availability of the Record of Decision (ROD) for the Final Missouri River Recovery Management Plan and Environmental Impact Statement (MRRMP-FEIS) published in the Federal Register on Friday, August 31, 2018. The USACE Northwestern Division Commander signed the ROD on November 20, 2018. Copies of the ROD along with the MRRMP-FEIS and other supporting documents are available for viewing on the Missouri River Recovery Program website at: http://www.nwo.usace.army.mil/mrrp/mgmt-plan/.

    FOR FURTHER INFORMATION CONTACT:

    Tiffany Vanosdall, U.S. Army Corps of Engineers at (402) 995-2695 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    The USACE has developed the MRRMP-FEIS in cooperation with the U.S. Fish and Wildlife Service (USFWS). This document is the USACE Record of Decision for the MRRMP-FEIS dated August, 2018. The MRRMP-FEIS is a programmatic assessment of major federal actions necessary to avoid a finding of jeopardy for the pallid sturgeon (Scaphirhynchus albus), interior least tern (Sterna antillarum), and the Northern Great Plains piping plover (Charadrius melodus) caused by operation of the Missouri and Kansas River reservoir systems and operation and maintenance of the Missouri River Bank Stabilization and Navigation Project. After consultation with the USFWS, and extensive collaboration, analysis, and independent scientific review, USACE has identified Alternative 3 (Mechanical Construction Only) as the selected alternative. Alternative 3 will meet the species objectives and fulfill the purpose and need of the plan while avoiding and minimizing adverse impacts to stakeholders. Importantly, Alternative 3 would be implemented within an adaptive management framework detailed in the Science and Adaptive Management Plan (SAMP). The ROD documents why the USACE has chosen to implement Alternative 3 as described in the MRRMP-FEIS.

    Brenda S. Bowen, Army Federal Register Liaison Officer.
    [FR Doc. 2018-26040 Filed 11-29-18; 8:45 am] BILLING CODE 3720-58-P
    DEPARTMENT OF EDUCATION National Advisory Council on Indian Education; Meeting AGENCY:

    National Advisory Council on Indian Education (NACIE), U.S. Department of Education.

    ACTION:

    Announcement of a closed and open teleconference meeting.

    SUMMARY:

    This notice sets forth the announcement of an upcoming meeting to be conducted by the National Advisory Council on Indian Education (NACIE). Notice of the meeting is required by section 10(a)(2) of the Federal Advisory Committee Act.

    DATES:

    The NACIE teleconference meeting will be held on December 17, 2018 from 3:00 p.m.-5:00 p.m. (EST). The closed portion of the meeting will take place first from 3:00 p.m. to 3:45 p.m. The open portion of the meeting will take place from 4:00 p.m. to 5:00 p.m.

    FOR FURTHER INFORMATION CONTACT:

    Tina Hunter, Designated Federal Official, Office of Elementary and Secondary Education, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202. Telephone: 202-205-8527. Fax: 202-205-0310. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    NACIE's Statutory Authority and Function: The National Advisory Council on Indian Education is authorized by section 7141 of the Elementary and Secondary Education Act of 1965 (ESEA) as amended by the Every Student Succeeds Act (ESSA), 20 U.S.C. 7471. The Council is established within the Department of Education to advise the Secretary of Education on the funding and administration (including the development of regulations, and administrative policies and practices) of any program over which the Secretary has jurisdiction and includes Indian children or adults as participants or programs that may benefit Indian children or adults, including any program established under Title VII, Part A of the Elementary and Secondary Education Act. The Council submits to the Congress a report on its activities, including any recommendations the Council considers appropriate for the improvement of Federal education programs that include Indian children or adults as participants or that may benefit Indian children or adults and recommendations concerning the funding of any such program.

    Meeting Agenda: The purpose of the closed portion of the meeting is to convene the Council to discuss the outcome of the subcommittee interviews of eligible applicants to fill the vacant Director position in the Office of Indian Education. In accordance with 41 CFR 102-3.155, this portion of the meeting will be closed due to the confidential nature of the information that will be discussed in evaluating each candidate's qualifications for the position of Director in the Office of the Indian Education. The open portion of the meeting will be a discussion of, and Council vote on, NACIE's Annual Report Subcommittee recommendations. There will be a conference line limit of 50 people on a first-come basis for the open portion of the meeting. The dial in information for the first 50 is as follows:

    Dial-in Number: 202-991-0393 Conference ID: 61695881

    Access to Records of the Meeting: The Department will post the official report of the open meeting on the OESE website at: http://www2.ed.gov/about/offices/list/oese/index.html?src=oc 21 days after the meeting. Pursuant to the FACA, the public may also inspect the materials at the Office of Indian Education, United States Department of Education, 400 Maryland Avenue SW, Washington, DC 20202, Monday-Friday, 8:30 a.m. to 5:00 p.m. Eastern Daylight Saving Time or by emailing [email protected] or by calling Terrie Nelson on (202) 401-0424 to schedule an appointment.

    Electronic Access to this Document: The official version of this document is the document published in the Federal Register. Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF, you must have Adobe Acrobat Reader, which is available free at the Adobe website. You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Authority:

    Section 7141 of the Elementary and Secondary Education Act of 1965 (ESEA) as amended by the Every Student Succeeds Act (ESSA), 20 U.S.C. 7471.

    Frank Brogan, Assistant Secretary for Elementary and Secondary Education.
    [FR Doc. 2018-26130 Filed 11-29-18; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION Application for New Awards; Expanding Opportunity Through Quality Charter Schools Program (CSP)--Grants to Charter Management Organizations for the Replication and Expansion of High-Quality Charter Schools AGENCY:

    Office of Innovation and Improvement, Department of Education.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Education (Department) is issuing a notice inviting applications for fiscal year (FY) 2019 for CSP—Grants to Charter Management Organizations for the Replication and Expansion of High-Quality Charter Schools, Catalog of Federal Domestic Assistance (CFDA) number 84.282M.

    DATES:

    Applications Available: November 30, 2018.

    Date of Pre-Application Webinar: Thursday, December 6, 2018, 12:00 p.m., Washington, DC time.

    Deadline for Transmittal of Applications: January 10, 2019.

    Deadline for Intergovernmental Review: February 28, 2019.

    Pre-Application Webinar Information: The Department will hold a pre-application meeting via webinar for prospective applicants on Thursday, December 6, 12:00 p.m., Washington, DC time. Individuals interested in attending this meeting are encouraged to pre-register by emailing their name, organization, and contact information with the subject heading “CMO GRANTS PRE-APPLICATION MEETING” to [email protected] There is no registration fee for attending this meeting.

    ADDRESSES:

    For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the Federal Register on February 12, 2018 (83 FR 6003) and available at www.thefederalregister.org/fdsys/pkg/FR-2018-02-12/pdf/2018-02558.pdf.

    FOR FURTHER INFORMATION CONTACT:

    Eddie Moat, U.S. Department of Education, 400 Maryland Avenue SW, Room 4W259, Washington, DC 20202-5970. Telephone: (202) 401-2266. Email: [email protected]

    If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

    SUPPLEMENTARY INFORMATION: Full Text of Announcement I. Funding Opportunity Description

    Purpose of Program: The major purposes of the CSP are to expand opportunities for all students, particularly traditionally underserved students, to attend charter schools and meet challenging State academic standards; provide financial assistance for the planning, program design, and initial implementation of public charter schools; increase the number of high-quality charter schools1 available to students across the United States; evaluate the impact of charter schools on student achievement, families, and communities; share best practices between charter schools and other public schools; encourage States to provide facilities support to charter schools; and support efforts to strengthen the charter school authorizing process. Through CSP Grants to Charter Management Organizations for the Replication and Expansion of High-Quality Charter Schools (CFDA number 84.282M) (also referred to as CMO [i.e., Charter Management Organization] grants or the CMO grant program), the Department provides funds to charter management organizations (CMOs) on a competitive basis to enable them to replicate or expand one or more high-quality charter schools. Grant funds may be used to expand the enrollment of one or more existing high-quality charter schools, or to replicate one or more new charter schools that are based on an existing, high-quality charter school model.

    1 Italicized terms are defined in the Definitions section of this notice.

    Background: The CMO grant program is intended to support high-quality charter schools that are operated by high-performing CMOs seeking to broaden and increase their impact on student achievement. Since FY 2010, the Department has awarded almost 80 new CMO grants, resulting in a portfolio of high-quality CMOs using Federal funds to replicate and expand their successful charter school models to serve greater numbers of students, particularly educationally disadvantaged students.

    We have published elsewhere in this issue of the Federal Register a notice of final priorities, requirements, definitions, and selection criteria (NFP) for use in this and future CMO competitions. The NFP aligns with the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act (ESEA), and clarifies key statutory provisions. In the FY 2019 CMO competition, we are using several priorities from the NFP and one priority from the Education Department General Administrative Regulations.

    First, applicants must choose to submit their applications under one of two absolute priorities—Absolute Priority 1—Rural Community or Absolute Priority 2—Low-Income Demographic. A major purpose of this program is to replicate and expand high-quality charter schools that serve educationally disadvantaged students. Students living in rural communities often have few high-quality educational options and face unique challenges. Similarly, we believe it is critical to ensure that students who are individuals from low-income families, particularly such students who attend schools with high percentages of students who are individuals from low-income families, have access to multiple high-quality educational options. Accordingly, in order to receive a grant under this competition, applicants must demonstrate that they will replicate or expand one or more high-quality charter schools in a rural community, or operate or manage charter schools with student bodies that are comprised of at least 40 percent of students who are individuals from low-income families.

    This competition also includes five competitive preference priorities. First, we encourage applicants to propose projects that focus on replicating or expanding high-quality charter schools with an intentional focus on racially and socioeconomically diverse student bodies, consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws.

    Second, we encourage applicants to propose to reopen one or more academically poor-performing public schools as charter schools, based on a successful charter school model. In order to receive points, an applicant must ensure that the replicated high-quality charter school maintains a student body population that is demographically similar to that of the academically poor-performing public school, consistent with nondiscrimination requirements in the U.S. Constitution and Federal civil rights laws. In accordance with the most recent version of the Department's Charter Schools Program Nonregulatory Guidance (issued in January 2014),2 grantees may exempt from any admissions lotteries students who are enrolled in a public school, including an academically poor-performing public school, at the time it is reopened as a public charter school, as permissible under State law.

    2 See: http://www2.ed.gov/programs/charter/fy14cspnonregguidance.doc.

    Third, we encourage applicants to propose to replicate or expand high-quality charter schools that serve high school students. To meet this priority, applicants must demonstrate that they will prepare students for postsecondary education and provide support for their graduates to enroll and persist in, and obtain a degree or certificate from, postsecondary education institutions. In addition, to meet this priority, applicants must propose one or more specific performance measures that will provide valid and reliable information on their students' progress to and through postsecondary education institutions.

    Fourth, we encourage applications from eligible entities that would replicate or expand high-quality charter schools that are designed to meet the unique educational needs of Native American students, consistent with nondiscrimination requirements in the U.S. Constitution and Federal civil rights laws. In order to meet this priority, an applicant must submit a letter of support from an Indian Tribe or Indian organization in the community where the charter school will be located, meaningfully collaborate with such Indian Tribe or Indian organization, and propose to replicate or expand one or more high-quality charter schools with a mission and project focus that addresses the unique educational needs of Native American students, such as through the use of instruction that reflects and preserves Native American language, culture, and history.

    Finally, we encourage novice applicants to apply.

    Priorities: This notice includes two absolute priorities and five competitive preference priorities. The absolute priorities and Competitive Preference Priorities 1-4 are from the NFP for this program published elsewhere in this issue of the Federal Register. Competitive Preference Priority 5 is from 34 CFR 75.225.

    Absolute Priorities: For FY 2019 and any subsequent year in which we make awards from the list of unfunded applications from this competition, these priorities are absolute priorities. Under 34 CFR 75.105(c)(3), we consider only applications that meet one of these priorities.

    Each of these absolute priorities constitutes its own funding category. Applicants may propose projects that address both absolute priorities, but must clearly indicate under which absolute priority they are officially applying. The Secretary intends to award grants under each absolute priority for which applications of sufficient quality are submitted.

    The priorities are:

    Absolute Priority 1—Rural Community.

    Under this priority, applicants must propose to replicate or expand one or more high-quality charter schools in a rural community.

    Absolute Priority 2—Low-Income Demographic.

    Under this priority, applicants must demonstrate that at least 40 percent of the students across all of the charter schools the applicant operates or manages are individuals from low-income families, and that the applicant will maintain the same, or a substantially similar, percentage of such students across all of its charter schools during the grant period.

    Competitive Preference Priorities: These priorities are competitive preference priorities. Under 34 CFR 75.105(c)(2)(i), we will award up to an additional three points to an application that addresses Competitive Preference Priority 1, up to an additional three points to an application that addresses Competitive Preference Priority 2, up to an additional three points to an application that addresses Competitive Preference Priority 3, up to an additional three points to an application that addresses Competitive Preference Priority 4, and an additional three points to an application that meets Competitive Preference Priority 5. The maximum number of competitive preference priority points an application can receive for this competition is 15.

    These priorities are:

    Competitive Preference Priority 1—Promoting Diversity. (up to 3 points)

    Under this priority, applicants must propose to replicate or expand high-quality charter schools that have an intentional focus on recruiting students from racially and socioeconomically diverse backgrounds and maintaining racially and socioeconomically diverse student bodies in those charter schools, consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws.

    Competitive Preference Priority 2—Reopening Academically Poor-performing Public Schools as Charter Schools. (up to 3 points)

    Under this priority, applicants must—

    (i) Demonstrate past success working with one or more academically poor-performing public schools or schools that previously were designated as persistently lowest-achieving schools or priority schools under the former School Improvement Grant program or in States that exercised ESEA flexibility, respectively, under the ESEA, as amended by the No Child Left Behind Act of 2001 (NCLB); and

    (ii) Propose to use grant funds under this program to reopen one or more academically poor-performing public schools as charter schools during the project period by—

    (A) Replicating one or more high-quality charter schools based on a successful charter school model for which the applicant has provided evidence of success; and

    (B) Targeting a demographically similar student population in the replicated charter schools as was served by the academically poor-performing public schools, consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws.

    Competitive Preference Priority 3—High School Students. (up to 3 points)

    Under this priority, applicants must propose to—

    (i) Replicate or expand high-quality charter schools to serve high school students, including educationally disadvantaged students;

    (ii) Prepare students, including educationally disadvantaged students, in those schools for enrollment in postsecondary education institutions through activities such as, but not limited to, accelerated learning programs (including Advanced Placement and International Baccalaureate courses and programs, dual or concurrent enrollment programs, and early college high schools), college counseling, career and technical education programs, career counseling, internships, work-based learning programs (such as apprenticeships), assisting students in the college admissions and financial aid application processes, and preparing students to take standardized college admissions tests;

    (iii) Provide support for students, including educationally disadvantaged students, who graduate from those schools and enroll in postsecondary education institutions in persisting in, and attaining a degree or certificate from, such institutions, through activities such as, but not limited to, mentorships, ongoing assistance with the financial aid application process, and establishing or strengthening peer support systems for such students attending the same institution; and

    (iv) Propose one or more project-specific performance measures, including aligned leading indicators or other interim milestones, that will provide valid and reliable information about the applicant's progress in preparing students, including educationally disadvantaged students, for enrollment in postsecondary education institutions and in supporting those students in persisting in and attaining a degree or certificate from such institutions. An applicant addressing this priority and receiving a CMO grant must provide data that are responsive to the measure(s), including performance targets, in its annual performance reports to the Department.

    (v) For purposes of this priority, postsecondary education institutions include institutions of higher education, as defined in section 8101(29) of the ESEA, and one-year training programs that meet the requirements of section 101(b)(1) of the Higher Education Act of 1965, as amended (HEA).

    Competitive Preference Priority 4—Replicating or Expanding High-quality Charter Schools to Serve Native American Students. (up to 3 points)

    Under this priority, applicants must—

    (i) Propose to replicate or expand one or more high-quality charter schools that—

    (A) Utilize targeted outreach and recruitment in order to serve a high proportion of Native American students, consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws;

    (B) Have a mission and focus that will address the unique educational needs of Native American students, such as through the use of instructional programs and teaching methods that reflect and preserve Native American language, culture, and history; and

    (C) Have a governing board with a substantial percentage of members who are members of Indian Tribes or Indian organizations located within the area to be served by the replicated or expanded charter school;

    (ii) Submit a letter of support from at least one Indian Tribe or Indian organization located within the area to be served by the replicated or expanded charter school; and

    (iii) Meaningfully collaborate with the Indian Tribe(s) or Indian organization(s) from which the applicant has received a letter of support in a timely, active, and ongoing manner with respect to the development and implementation of the educational program at the charter school.

    Competitive Preference Priority 5—Novice Applicants. (0 or 3 points)

    This priority is for applications submitted by novice applicants.

    Definitions:

    The following definitions are from sections 4310 and 8101 of the ESEA, 34 CFR 75.225 and 77.1, and the NFP.

    Academically poor-performing public school means:

    (a) A school identified by the State for comprehensive support and improvement under section 1111(c)(4)(D)(i) of the ESEA; or

    (b) A public school otherwise identified by the State or, in the case of a charter school, its authorized public chartering agency, as similarly academically poor-performing. (NFP)

    Ambitious means promoting continued, meaningful improvement for program participants or for other individuals or entities affected by the grant, or representing a significant advancement in the field of education research, practices, or methodologies. When used to describe a performance target, whether a performance target is ambitious depends upon the context of the relevant performance measure and the baseline for that measure. (34 CFR 77.1)

    Authorized public chartering agency means a State educational agency, local educational agency, or other public entity that has the authority pursuant to State law and approved by the Secretary to authorize or approve a charter school. (Section 4310(1) of the ESEA)

    Baseline means the starting point from which performance is measured and targets are set. (34 CFR 77.1)

    Charter management organization means a nonprofit organization that operates or manages a network of charter schools linked by centralized support, operations, and oversight. (Section 4310(3) of the ESEA)

    Charter school means a public school that—

    (i) In accordance with a specific State statute authorizing the granting of charters to schools, is exempt from significant State or local rules that inhibit the flexible operation and management of public schools, but not from any rules relating to the other requirements of this paragraph;

    (ii) Is created by a developer as a public school, or is adapted by a developer from an existing public school, and is operated under public supervision and direction;

    (iii) Operates in pursuit of a specific set of educational objectives determined by the school's developer and agreed to by the authorized public chartering agency;

    (iv) Provides a program of elementary or secondary education, or both;

    (v) Is nonsectarian in its programs, admissions policies, employment practices, and all other operations, and is not affiliated with a sectarian school or religious institution;

    (vi) Does not charge tuition;

    (vii) Complies with the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), section 444 of the General Education Provisions Act (20 U.S.C. 1232g) (commonly referred to as the “Family Educational Rights and Privacy Act of 1974”), and part B of the Individuals with Disabilities Education Act;

    (viii) Is a school to which parents choose to send their children, and that—

    (A) Admits students on the basis of a lottery, consistent with section 4303(c)(3)(A), if more students apply for admission than can be accommodated; or

    (B) In the case of a school that has an affiliated charter school (such as a school that is part of the same network of schools), automatically enrolls students who are enrolled in the immediate prior grade level of the affiliated charter school and, for any additional student openings or student openings created through regular attrition in student enrollment in the affiliated charter school and the enrolling school, admits students on the basis of a lottery as described in clause (A);

    (ix) Agrees to comply with the same Federal and State audit requirements as do other elementary schools and secondary schools in the State, unless such State audit requirements are waived by the State;

    (x) Meets all applicable Federal, State, and local health and safety requirements;

    (xi) Operates in accordance with State law;

    (xii) Has a written performance contract with the authorized public chartering agency in the State that includes a description of how student performance will be measured in charter schools pursuant to State assessments that are required of other schools and pursuant to any other assessments mutually agreeable to the authorized public chartering agency and the charter school; and

    (xiii) May serve students in early childhood education programs or postsecondary students. (Section 4310(2) of the ESEA)

    Child with a disability means—

    (i) In general—

    The term “child with a disability” means a child—

    (A) With intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as “emotional disturbance”), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and

    (B) Who, by reason thereof, needs special education and related services.

    (ii) Child aged 3 through 9.

    The term “child with a disability” for a child aged 3 through 9 (or any subset of that age range, including ages 3 through 5), may, at the discretion of the State and the local educational agency, include a child—

    (A) Experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in 1 or more of the following areas: Physical development; cognitive development; communication development; social or emotional development; or adaptive development; and

    (B) Who, by reason thereof, needs special education and related services. (Section 8101(4) of the ESEA)

    Educationally disadvantaged student means a student in one or more of the categories described in section 1115(c)(2) of the ESEA, which include children who are economically disadvantaged, students who are children with disabilities, migrant students, English learners, neglected or delinquent students, homeless students, and students who are in foster care. (NFP)

    Expand, when used with respect to a high-quality charter school, means to significantly increase enrollment or add one or more grades to the high-quality charter school. (Section 4310(7) of the ESEA)

    High proportion, when used to refer to Native American students, means a fact-specific, case-by-case determination based upon the unique circumstances of a particular charter school or proposed charter school. The Secretary considers “high proportion” to include a majority of Native American students. In addition, the Secretary may determine that less than a majority of Native American students constitutes a “high proportion” based on the unique circumstances of a particular charter school or proposed charter school, as described in the application for funds. (NFP)

    High-quality charter school means a charter school that—

    (a) Shows evidence of strong academic results, which may include strong student academic growth, as determined by a State;

    (b) Has no significant issues in the areas of student safety, financial and operational management, or statutory or regulatory compliance;

    (c) Has demonstrated success in significantly increasing student academic achievement, including graduation rates where applicable, for all students served by the charter school; and

    (d) Has demonstrated success in increasing student academic achievement, including graduation rates where applicable, for each of the subgroups of students, as defined in section 1111(c)(2), except that such demonstration is not required in a case in which the number of students in a group is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student. (Section 4310(8) of the ESEA)

    Indian organization means an organization that—

    (a) Is legally established—

    (i) By Tribal or inter-Tribal charter or in accordance with State or Tribal law; and

    (ii) With appropriate constitution, by-laws, or articles of incorporation;

    (b) Includes in its purposes the promotion of the education of Indians;

    (c) Is controlled by a governing board, the majority of which is Indian;

    (d) If located on an Indian reservation, operates with the sanction or by charter of the governing body of that reservation;

    (e) Is neither an organization or subdivision of, nor under the direct control of, any institution of higher education; and

    (f) Is not an agency of State or local government. (NFP)

    Indian Tribe means a federally-recognized or a State-recognized Tribe. (NFP)

    Individual from a low-income family means an individual who is determined by a State educational agency or local educational agency to be a child from a low-income family on the basis of (a) data used by the Secretary to determine allocations under section 1124 of the ESEA, (b) data on children eligible for free or reduced-price lunches under the Richard B. Russell National School Lunch Act, (c) data on children in families receiving assistance under part A of title IV of the Social Security Act, (d) data on children eligible to receive medical assistance under the Medicaid program under title XIX of the Social Security Act, or (e) an alternate method that combines or extrapolates from the data in items (a) through (d) of this definition. (NFP)

    Institution of higher education means an educational institution in any State that—

    (i) Admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate, or persons who meet the requirements of section 484(d) of the HEA;

    (ii) Is legally authorized within such State to provide a program of education beyond secondary education;

    (iii) Provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree, or awards a degree that is acceptable for admission to a graduate or professional degree program, subject to review and approval by the Secretary;

    (iv) Is a public or other nonprofit institution; and

    (v) Is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time. (NFP)

    Logic model (also referred to as theory of action) means a framework that identifies key project components of the proposed project (i.e., the active “ingredients” that are hypothesized to be critical to achieving the relevant outcomes) and describes the theoretical and operational relationships among the key project components and relevant outcomes. (34 CFR 77.1)

    Native American means an Indian (including an Alaska Native), Native Hawaiian, or Native American Pacific Islander. (NFP)

    Native American language means the historical, traditional languages spoken by Native Americans. (NFP)

    Novice applicant means—

    (a) Any applicant for a grant from the Department that—

    (i) Has never received a grant or subgrant under the program from which it seeks funding;

    (ii) Has never been a member of a group application, submitted in accordance with 34 CFR 75.127-75.129, that received a grant under the program from which it seeks funding; and

    (iii) Has not had an active discretionary grant from the Federal Government in the five years before the deadline date for applications for new awards under the program.

    (b) In the case of a group application submitted in accordance with §§ 75.127-75.129, a group that includes only parties that meet the requirements of paragraph (a)(i) of this section. (34 CFR 75.225)

    Performance measure means any quantitative indicator, statistic, or metric used to gauge program or project performance. (34 CFR 77.1)

    Performance target means a level of performance that an applicant would seek to meet during the course of a project or as a result of a project. (34 CFR 77.1)

    Replicate, when used with respect to a high-quality charter school, means to open a new charter school, or a new campus of a high-quality charter school, based on the educational model of an existing high-quality charter school, under an existing charter or an additional charter, if permitted or required by State law. (Section 4310(9) of the ESEA)

    Rural community means a community that is served by a local educational agency that is eligible to apply for funds under the Small Rural School Achievement (SRSA) program or the Rural and Low-Income School (RLIS) program authorized under title V, part B of the ESEA. Applicants may determine whether a particular local educational agency is eligible for these programs by referring to information on the following Department websites. For the SRSA program: www2.ed.gov/programs/reapsrsa/eligible16/index.html. For the RLIS program: www2.ed.gov/programs/reaprlisp/eligibility.html. (NFP)

    Application Requirements:

    Applications for CSP CMO grant funds must address the following application requirements. These requirements are from the NFP and sections 4303 3 and 4305 of the ESEA. The source of each requirement is provided in parentheses following each requirement. An applicant must respond to requirement (a) in a stand-alone section of the application or in an appendix. For all other application requirements, an applicant may choose to respond to each requirement separately or in the context of the applicant's responses to the selection criteria in section V.2 of this notice.

    3 Per section 4305(c) of the ESEA, CMO grants shall have the same terms and conditions as grants awarded to State entities under section 4303. For clarity, the Department has replaced the term “State entity” with “applicant” in the requirements that derive from section 4303.

    Applicants for funds under this program must—

    (a) Describe the applicant's objectives in running a quality charter school program and how the program will be carried out, including—

    (i) A description of how the applicant will ensure that charter schools receiving funds under this program meet the educational needs of their students, including children with disabilities and English learners. (Section 4303(f)(1)(A)(x) of the ESEA)

    (ii) A description of how the applicant will ensure that each charter school receiving funds under this program has considered and planned for the transportation needs of the school's students. (Section 4303(f)(1)(E) of the ESEA)

    (b) For each charter school currently operated or managed by the applicant, provide—

    (i) Student assessment results for all students and for each subgroup of students described in section 1111(c)(2);

    (ii) Attendance and student retention rates for the most recently completed school year and, if applicable, the most recent available four-year adjusted cohort graduation rates and extended-year adjusted cohort graduation rates; and

    (iii) Information on any significant compliance and management issues encountered within the last three school years by any school operated or managed by the eligible entity, including in the areas of student safety and finance. (Section 4305(b)(3)(A) of the ESEA)

    (c) Describe the educational program that the applicant will implement in each charter school receiving funding under this program, including—

    (i) Information on how the program will enable all students to meet the challenging State academic standards;

    (ii) The grade levels or ages of students who will be served; and

    (iii) The instructional practices that will be used. (Section 4305(b)(3)(B)(ii) of the ESEA)

    (d) Demonstrate that the applicant currently operates or manages more than one charter school. For purposes of this program, multiple charter schools are considered to be separate schools if each school—

    (i) Meets each element of the definition of “charter school” under section 4310(2) of the ESEA; and

    (ii) Is treated as a separate school by its authorized public chartering agency and the State in which the charter school is located, including for purposes of accountability and reporting under title I, part A of the ESEA. (NFP)

    (e) Provide information regarding any compliance issues, and how they were resolved, for any charter schools operated or managed by the applicant that have—

    (i) Closed;

    (ii) Had their charter(s) revoked due to problems with statutory or regulatory compliance, including compliance with sections 4310(2)(G) and (J) of the ESEA; or

    (iii) Had their affiliation with the applicant revoked or terminated, including through voluntary disaffiliation. (NFP)

    (f) Provide a complete logic model for the grant project. The logic model must include the applicant's objectives for replicating or expanding one or more high-quality charter schools with funding under this program, including the number of high-quality charter schools the applicant proposes to replicate or expand. (NFP)

    (g) If the applicant currently operates, or is proposing to replicate or expand a single-sex charter school or coeducational charter school that provides a single-sex class or extracurricular activity (collectively referred to as a “single-sex educational program”), demonstrate that the existing or proposed single-sex educational program is in compliance with title IX of the Education Amendments of 1972 (20 U.S.C. 1681, et seq.) and its implementing regulations, including 34 CFR 106.34. (NFP)

    (h) Describe how the applicant currently operates or manages the high-quality charter schools for which it has presented evidence of success and how the proposed replicated or expanded charter schools will be operated or managed, including the legal relationship between the applicant and its schools. If a legal entity other than the applicant has entered or will enter into a performance contract with an authorized public chartering agency to operate or manage one or more of the applicant's schools, the applicant must also describe its relationship with that entity. (NFP)

    (i) Describe how the applicant will solicit and consider input from parents and other members of the community on the implementation and operation of each replicated or expanded charter school, including in the area of school governance. (NFP)

    (j) Describe the lottery and enrollment procedures that will be used for each replicated or expanded charter school if more students apply for admission than can be accommodated, including how any proposed weighted lotteries comply with section 4303(c)(3)(A) of the ESEA. (NFP)

    (k) Describe how the applicant will ensure that all eligible children with disabilities receive a free appropriate public education in accordance with Part B of the Individuals with Disabilities Education Act (IDEA). (NFP)

    (l) Describe how the proposed project will assist educationally disadvantaged students in mastering challenging State academic standards. (NFP)

    (m) Provide a budget narrative, aligned with the activities, target grant project outputs, and outcomes described in the logic model, that outlines how grant funds will be expended to carry out planned activities. (NFP)

    (n) Provide the applicant's most recent independently audited financial statements prepared in accordance with generally accepted accounting principles. (NFP)

    (o) Describe the applicant's policies and procedures to assist students enrolled in a charter school that closes or loses its charter to attend other high-quality schools. (NFP)

    (p) Provide—

    (i) A request and justification for waivers of any Federal statutory or regulatory provisions that the applicant believes are necessary for the successful operation of the charter schools to be replicated or expanded; and

    (ii) A description of any State or local rules, generally applicable to public schools, that will be waived, or otherwise not apply, to such schools. (NFP)

    Assurances.

    Applications for CSP CMO grant funds must provide the following assurances. These assurances are from sections 4303 and 4305 of the ESEA. The source of each assurance is provided in parentheses following each assurance.

    Applicants for funds under this program must provide assurances that—

    (a) The grantee will support charter schools in meeting the educational needs of their students, as described in section 4303(f)(1)(A)(x) of the ESEA. (Section 4303(f)(2)(B) of the ESEA)

    (b) The grantee will ensure that each charter school receiving funds under this program makes publicly available, consistent with the dissemination requirements of the annual State report card under section 1111(h) of the ESEA, including on the website of the school, information to help parents make informed decisions about the education options available to their children, including—

    (i) Information on the educational program;

    (ii) Student support services;

    (iii) Parent contract requirements (as applicable), including any financial obligations or fees;

    (iv) Enrollment criteria (as applicable); and

    (v) Annual performance and enrollment data for each of the subgroups of students, as defined in section 1111(c)(2) of the ESEA, except that such disaggregation of performance and enrollment data shall not be required in a case in which the number of students in a group is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student. (Section 4303(f)(2)(G) of the ESEA)

    (c) The eligible entity has sufficient procedures in effect to ensure timely closure of low-performing or financially mismanaged charter schools and clear plans and procedures in effect for the students in such schools to attend other high-quality schools. (Section 4305(b)(3)(C) of the ESEA)

    Program Authority: Title IV, Part C of the ESEA, as amended.

    Applicable Regulations: (a) The Education Department General Administrative Regulations in 34 CFR parts 75, 76, 77, 79, 81, 82, 84, 86, 97, 98, and 99. (b) The Office of Management and Budget Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted and amended as regulations of the Department in 2 CFR part 3485. (c) The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200, as adopted and amended in 2 CFR part 3474. (d) The NFP.

    II. Award Information

    Type of Award: Discretionary grants.

    Estimated Available Funds: $90,000,000.

    Estimated Range of Awards: $250,000-$15,000,000 per year.

    Estimated Average Size of Awards: $2,000,000 per year.

    Maximum Award: See Reasonable and Necessary Costs in section III.4.(a) for information regarding the maximum amount of funds that may be awarded per new school seat and per new school.

    Estimated Number of Awards: 20-30.

    Note:

    The Department is not bound by any estimates in this notice. The estimated range and average size of awards are based on a single 12-month budget period. We may use available funds to support multiple 12-month budget periods for one or more grantees.

    Project Period: Up to 60 months.

    III. Eligibility Information

    1. Eligible Applicants: CMOs. Eligible applicants may apply individually or as part of a group or consortium.

    2. Cost Sharing or Matching: This competition does not require cost sharing or matching.

    3. Subgrantees: A grantee under this program may not award subgrants.

    4. Other: (a) Reasonable and Necessary Costs: The Secretary may elect to impose maximum limits on the amount of grant funds that may be awarded per charter school replicated, per charter school expanded, or per new school seat created.

    For this competition, the maximum limit of grant funds that may be awarded per new or expanded charter school is $1,500,000.

    Note:

    Applicants must ensure that all costs included in the proposed budget are authorized under the CSP and are reasonable and necessary in light of the goals and objectives of the proposed project. Any costs determined by the Secretary to be unauthorized, or otherwise unreasonable or unnecessary, will be removed from the final approved budget.

    (b) Other CSP Grants: A charter school that previously has received CSP funds for replication or expansion under this program, or for opening or preparing to operate a new charter school, replication, or expansion under the CSP Grants to State Entities (State Entities) program (CFDA number 84.282A) or CSP Grants to Developers for the Opening of New Charter Schools and for the Replication and Expansion of High-quality Charter Schools (Developers) program (CFDA numbers 84.282B and 84.282E), may not use funds under this grant to carry out the same activities. However, such charter school may be eligible to receive funds under this competition to expand the charter school beyond the existing grade levels or student count.

    Likewise, a charter school that receives funds under this competition is ineligible to receive funds to carry out the same activities under the State Entities program (CFDA number 84.282A) or Developers program (CFDA numbers 84.282B and 84.282E), including for opening or preparing to operate a new charter school, replication, or expansion.

    (c) Costs for Evaluation: Consistent with 34 CFR 75.590, CMO grant funds may be used to cover post-award costs associated with an evaluation described in response to Selection Criterion (c) in this notice, provided that such costs are reasonable and necessary to meet the objectives of the approved project.

    IV. Application and Submission Information

    1. Application Submission Instructions: For information on how to submit an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the Federal Register on February 12, 2018 (83 FR 6003) and available at www.thefederalregister.org/fdsys/pkg/FR-2018-02-12/pdf/2018-02558.pdf.

    2. Submission of Proprietary Information: Given the types of projects that may be proposed in applications for the CMO grant competition, your application may include business information that you consider proprietary. In 34 CFR 5.11, we define “business information” and describe the process we use in determining whether any of that information is proprietary and, thus, protected from disclosure under Exemption 4 of the Freedom of Information Act (5 U.S.C. 552, as amended).

    Because we plan to make successful applications available to the public, you may wish to request confidentiality of business information.

    Consistent with Executive Order 12600, please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).

    3. Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. Information about Intergovernmental Review of Federal Programs under Executive Order 12372 is in the application package for this competition.

    4. Funding Restrictions: Grantees under this program must use the grant funds to replicate or expand the charter school model or models for which the applicant has presented evidence of success. Specifically, grant funds must be used to carry out allowable activities, as described in section 4305(b)(1) of the ESEA. In addition, grant funds must be used to carry out one or more of the activities described in section 4303(h), which include—

    (a) Preparing teachers, school leaders, and specialized instructional support personnel, including through paying costs associated with—

    (i) Providing professional development; and

    (ii) Hiring and compensating, during the applicant's planning period specified in the application for funds, one or more of the following:

    (A) Teachers,

    (B) School leaders, and

    (C) Specialized instructional support personnel.

    (b) Acquiring supplies, training, equipment (including technology), and educational materials (including developing and acquiring instructional materials).

    (c) Carrying out necessary renovations to ensure that a new school building complies with applicable statutes and regulations, and minor facilities repairs (excluding construction).

    (d) Providing one-time, startup costs associated with providing transportation to students to and from the charter school.

    (e) Carrying out community engagement activities, which may include paying the cost of student and staff recruitment.

    (f) Providing for other appropriate, non-sustained costs related to the replication or expansion of high-quality charter schools when such costs cannot be met from other sources.

    Further, under section 4305(b)(1) of the ESEA, CMO grant funds must be used to open and prepare for the operation of one or more replicated high-quality charter schools or to expand one or more high-quality charter schools. Within the context of opening and preparing for the operation of one or more replicated high-quality charter schools or expanding one or more high-quality charter schools, a portion of grant funds can be used for appropriate, non-sustained costs associated with the expansion or improvement of the grantee's oversight or management of its charter schools, provided that (i) the specific charter schools being replicated or expanded under the grant are the intended beneficiaries of such expansion or improvement; (ii) such expansion or improvement is intended to improve the grantee's ability to manage or oversee the charter schools being replicated or expanded under the grant; and (iii) the costs cannot be met from other sources. In order to use grant funds for this purpose, an applicant should describe how the proposed costs are necessary to meet the objectives of the project and reasonable in light of the overall cost of the project.

    We reference additional regulations outlining funding restrictions in the Applicable Regulations section of this notice.

    5. Recommended Page Limit: The application narrative is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. We recommend that you (1) limit the application narrative to no more than 60 pages and (2) use the following standards:

    • A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.

    • Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.

    • Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).

    • Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.

    The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the recommended page limit does apply to all of the application narrative.

    V. Application Review Information

    1. Selection Criteria. The selection criteria are from the NFP and 34 CFR 75.210. The source of each selection factor is included in parentheses following each factor. The maximum possible score for addressing all of the criteria in this section is 100 points. The maximum possible score for addressing each criterion is indicated in parentheses following the criterion.

    In evaluating an application, the Secretary considers the following criteria:

    (a) Quality of the eligible applicant (45 points).

    In determining the quality of the eligible applicant, the Secretary considers the following factors:

    (i) The extent to which the academic achievement results (including annual student performance on statewide assessments and annual student attendance and retention rates and, where applicable and available, student academic growth, high school graduation rates, college attendance rates, and college persistence rates) for educationally disadvantaged students served by the charter schools operated or managed by the applicant have exceeded the average academic achievement results for such students served by other public schools in the State (15 points). (NFP)

    (ii) The extent to which one or more charter schools operated or managed by the applicant have closed; have had a charter revoked due to noncompliance with statutory or regulatory requirements; or have had their affiliation with the applicant revoked or terminated, including through voluntary disaffiliation (15 points). (NFP)

    (iii) The extent to which one or more charter schools operated or managed by the applicant have had any significant issues in the area of financial or operational management or student safety, or have otherwise experienced significant problems with statutory or regulatory compliance that could lead to revocation of the school's charter (15 points). (NFP)

    (b) Significance of contribution in assisting educationally disadvantaged students (30 points).

    In determining the significance of the contribution the proposed project will make in expanding educational opportunities for educationally disadvantaged students and enabling those students to meet challenging State academic standards, the Secretary considers the following factors:

    (i) The extent to which charter schools currently operated or managed by the applicant serve educationally disadvantaged students, particularly students with disabilities 4 and English learners, at rates comparable to surrounding public schools or, in the case of virtual charter schools, at rates comparable to public schools in the State (15 points). (NFP)

    4 For purposes of this competition, “students with disabilities” or “student with a disability” has the same meaning as “children with disabilities” or “child with a disability,” respectively, as defined in section 8101(4) of the ESEA (and this NIA). Under section 8101(4), “child with a disability,” has the same meaning given that term in section 602 of the IDEA.

    (ii) The quality of the plan to ensure that the charter schools the applicant proposes to replicate or expand will recruit, enroll, and effectively serve educationally disadvantaged students, particularly students with disabilities and English learners (15 points). (NFP)

    (c) Quality of the evaluation plan for the proposed project (10 points)

    In determining the quality of the evaluation plan for the proposed project, the Secretary considers the extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the proposed project, as described in the applicant's logic model, and that will produce quantitative and qualitative data by the end of the grant period. (NFP)

    (d) Quality of the management plan and personnel (15 points).

    In determining the quality of the applicant's management plan, the Secretary considers the following factors:

    (i) The ability of the applicant to sustain the operation of the replicated or expanded charter schools after the grant has ended, as demonstrated by the multi-year financial and operating model required under section 4305(b)(3)(B)(iii) of the ESEA (5 points). (NFP)

    (ii) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks (5 points). (34 CFR 75.210(g)(2)(i))

    (iii) The qualifications, including relevant training and experience, of key project personnel (5 points). (34 CFR 75.210(e)(3)(ii))

    2. Review and Selection Process: We remind potential applicants that in reviewing applications under any discretionary grant competition, the Secretary may consider, under 34 CFR 75.217(d)(3), the past performance of the applicant in carrying out a previous award, such as the applicant's use of funds, achievement of project objectives, and compliance with grant conditions. The Secretary may also consider whether the applicant failed to submit a timely performance report or submitted a report of unacceptable quality.

    In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).

    3. Risk Assessment and Specific Conditions: Consistent with 2 CFR 200.205, before awarding grants under this competition the Department conducts a review of the risks posed by applicants. Under 2 CFR 3474.10, the Secretary may impose specific conditions and, in appropriate circumstances, high-risk conditions on a grant if the applicant or grantee is not financially stable; has a history of unsatisfactory performance; has a financial or other management system that does not meet the standards in 2 CFR part 200, subpart D; has not fulfilled the conditions of a prior grant; or is otherwise not responsible.

    4. Integrity and Performance System: If you are selected under this competition to receive an award that over the course of the project period may exceed the simplified acquisition threshold (currently $150,000), under 2 CFR 200.205(a)(2) we must make a judgment about your integrity, business ethics, and record of performance under Federal awards—that is, the risk posed by you as an applicant—before we make an award. In doing so, we must consider any information about you that is in the integrity and performance system (referred to as the Federal Awardee Performance and Integrity Information System (FAPIIS)), accessible through the System for Award Management, or SAM. You may review and comment on any information about yourself that a Federal agency previously entered and that is currently in FAPIIS.

    Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all other Federal funds you receive exceed $10,000,000.

    VI. Award Administration Information

    1. Award Notices: If your application is successful, we notify your U.S. Representative and U.S. Senators and send you a Grant Award Notification (GAN); or we may send you an email containing a link to access an electronic version of your GAN. We may notify you informally, also.

    If your application is not evaluated or not selected for funding, we notify you.

    2. Administrative and National Policy Requirements: We identify administrative and national policy requirements in the application package and reference these and other requirements in the Applicable Regulations section of this notice.

    We reference the regulations outlining the terms and conditions of an award in the Applicable Regulations section of this notice and include these and other specific conditions in the GAN. The GAN also incorporates your approved application as part of your binding commitments under the grant.

    3. Open Licensing Requirements: Unless an exception applies, if you are awarded a grant under this competition, you will be required to openly license to the public grant deliverables created in whole, or in part, with Department grant funds. When the deliverable consists of modifications to pre-existing works, the license extends only to those modifications that can be separately identified and only to the extent that open licensing is permitted under the terms of any licenses or other legal restrictions on the use of pre-existing works. Additionally, a grantee or subgrantee that is awarded competitive grant funds must have a plan to disseminate these public grant deliverables. This dissemination plan can be developed and submitted after your application has been reviewed and selected for funding. For additional information on the open licensing requirements please refer to 2 CFR 3474.20.

    4. Reporting: (a) If you apply for a grant under this competition, you must ensure that you have in place the necessary processes and systems to comply with the reporting requirements in 2 CFR part 170 should you receive funding under the competition. This does not apply if you have an exception under 2 CFR 170.110(b).

    (b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to www.ed.gov/fund/grant/apply/appforms/appforms.html.

    (c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.

    5. Performance Measures: (a) The Secretary has two performance indicators to measure progress towards achieving the purposes of the program, which are discussed elsewhere in this notice. The performance indicators are: (1) The number of charter schools in operation around the Nation and (2) the percentage of fourth- and eighth-grade charter school students who are achieving at or above the proficient level on State assessments in mathematics and reading/language arts. Additionally, the Secretary has established the following measure to examine the efficiency of the CSP: The Federal cost per student in implementing a successful school (defined as a school in operation for three or more consecutive years).

    (b) Project-Specific Performance Measures. Applicants must propose project-specific performance measures and performance targets consistent with the objectives of the proposed project. Applications must provide the following information as directed under 34 CFR 75.110(b) and (c):

    (1) Performance measures. How each proposed performance measure would accurately measure the performance of the project and how the proposed performance measure would be consistent with the performance measures established for the program funding the competition.

    (2) Baseline data. (i) Why each proposed baseline is valid; or (ii) if the applicant has determined that there are no established baseline data for a particular performance measure, an explanation of why there is no established baseline and of how and when, during the project period, the applicant would establish a valid baseline for the performance measure.

    (3) Performance targets. Why each proposed performance target is ambitious yet achievable compared to the baseline for the performance measure and when, during the project period, the applicant would meet the performance target(s).

    (4) Data collection and reporting. (i) The data collection and reporting methods the applicant would use and why those methods are likely to yield reliable, valid, and meaningful performance data; and (ii) the applicant's capacity to collect and report reliable, valid, and meaningful performance data, as evidenced by high-quality data collection, analysis, and reporting in other projects or research.

    All grantees must submit an annual performance report with information that is responsive to these performance measures.

    6. Continuation Awards: In making a continuation award under 34 CFR 75.253, the Secretary considers, among other things, whether a grantee has made substantial progress in achieving the goals and objectives of the project; whether the grantee has expended funds in a manner that is consistent with its approved application and budget; and, if the Secretary has established performance measurement requirements, the performance targets in the grantee's approved application.

    In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).

    7. Project Director's Meeting: Applicants approved for funding under this competition must attend a two-day meeting for project directors at a location to be determined in the continental United States during each year of the project. Applicants may include the cost of attending this meeting as an administrative cost in their proposed budgets.

    VII. Other Information

    Accessible Format: Individuals with disabilities can obtain this document and a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT.

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. You may access the official edition of the Federal Register and the Code of Federal Regulations via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of the Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

    You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Dated: November 27, 2018. James C. Blew, Acting Assistant Deputy Secretary for Innovation and Improvement.
    [FR Doc. 2018-26094 Filed 11-29-18; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY Notice of Orders Issued Under Section 3 of the Natural Gas Act During October 2018 FE docket Nos. MPOWER ENERGY LLC 18-149-NG STAND ENERGY CORPORATION 18-150-NG MEXICANA DE COBRE, S.A. DE C.V 18-151-NG CALPINE ENERGY SERVICES, L.P 18-152-NG NORTHWESTERN CORPORATION d/b/a NORTHWESTERN ENERGY 18-153-NG UGI ENERGY SERVICES, LLC 18-129-NG PETRO HARVESTER OPERATING COMPANY, LLC 18-143-NG CITY OF GLENDALE WATER AND POWER 18-139-NG IMPERIAL IRRIGATION DISTRICT 18-141-NG SPRAGUE OPERATING RESOURCES LLC 18-140-NG MAY DAY MOVERS, LLC 18-142-NG DIRECT ENERGY MARKETING, LLC 18-146-NG SPECTRUM LNG, L.L.C 18-147-LNG PUGET SOUND ENERGY, INC 18-148-LNG BP ENERGY COMPANY 18-154-NG EXELON GENERATION COMPANY, LLC 18-155-NG ENERGIA DE BAJA CALIFORNIA, S. DE R.L. DE C.V 18-156-NG ENERGIA CHIHUAHUA, S.A. DE C.V 18-157-NG MC GLOBAL GAS CORPORATION 18-158-LNG TEXAS EASTERN TRANSMISSION, LP 18-159-NG CASTLETON COMMODITIES MERCHANT TRADING L.P 18-161-NG AGENCY:

    Office of Fossil Energy, Department of Energy.

    ACTION:

    Notice of orders.

    SUMMARY:

    The Office of Fossil Energy (FE) of the Department of Energy gives notice that during October 2018, it issued orders granting authority to import and export natural gas, to import and export liquefied natural gas (LNG), and vacating prior authorization. These orders are summarized in the attached appendix and may be found on the FE website at https://www.energy.gov/fe/listing-doefe-authorizationsorders-issued-2018-0.

    They are also available for inspection and copying in the U.S. Department of Energy (FE-34), Division of Natural Gas Regulation, Office of Regulation, Analysis, and Engagement, Office of Fossil Energy, Docket Room 3E-033, Forrestal Building, 1000 Independence Avenue SW, Washington, DC 20585, (202) 586-9478. The Docket Room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.

    Issued in Washington, DC, on November 27, 2018. Amy Sweeney, Director, Division of Natural Gas Regulation. Appendix—DOE/FE Orders Granting Import/Export Authorizations 4278 10/16/18 18-149-NG MPower Energy LLC Order 4278 granting blanket authority to import/export natural gas from/to Canada. 4279 10/16/18 18-150-NG Stand Energy Corporation Order 4279 granting blanket authority to export natural gas to Canada/Mexico. 4280 10/16/18 18-151-NG Mexicana de Cobre, S.A. de C.V Order 4280 granting blanket authority to export natural gas to Mexico. 4281 10/16/18 18-152-NG Calpine Energy Services, L.P Order 4281 granting blanket authority to import natural gas from Canada. 4282 10/16/18 18-153-NG Northwestern Corporation d/b/a Northwestern Energy Order 4282 granting blanket authority to import/export natural gas from/to Canada. Errata 10/25/18 18-129-NG UGI Energy Services, LLC Errata Order 4257. 4283 10/25/18 18-143-NG Petro Harvester Operating Company, LLC Order 4283 granting long-term authority to export natural gas to Canada. 4284 10/25/18 18-139-NG City of Glendale Water and Power Order 4284 granting blanket authority to import natural gas from Canada. 4285 10/25/18 18-141-NG Imperial Irrigation District Order 4285 granting blanket authority to import/export natural gas from/to Mexico. 4286 10/25/18 18-140-NG Sprague Operating Resources LLC Order 4286 granting blanket authority to import natural gas from Canada. 4287 10/25/18 18-142-NG May Day Movers, LLC Order 4287 granting blanket authority to export natural gas to Canada/Mexico. 4288 10/25/18 18-146-NG Direct Energy Business Marketing, LLC Order 4288 granting blanket authority to import/export natural gas from/to Canada. 4289 10/25/18 18-147-LNG Spectrum LNG, L.L.C Order 4249 granting blanket authority to export LNG to Mexico by truck. 4290 10/25/18 18-148-LNG Puget Sound Energy, Inc Order 4290 granting blanket authority to import LNG from Canada by truck. 4291 10/25/18 18-154-NG BP Energy Company Order 4291 granting blanket authority to import/export natural gas from/to Canada/Mexico. 4292 10/25/18 18-155-NG Exelon Generation Company, LLC Order 4292 granting blanket authority to import/export natural gas from/to Canada. 4293 10/25/18 18-156-NG Energia de Baja California, S. de R.L. de C.V Order 4293 granting blanket authority to export natural gas to Mexico. 4294 10/25/18 18-157-NG Energia Chihuahua, S.A. de C.V Order 4294 granting blanket authority to export natural gas to Mexico. 4295 10/25/18 18-158-LNG MC Global Gas Corporation Order 4295 granting blanket authority to import LNG from various international sources by vessel. 4296 10/25/18 18-159-NG Texas Eastern Transmission, LP Order 4296 granting blanket authority to import/export natural gas from/to Mexico. 4297 10/25/18 18-161-NG Castleton Commodities Merchant Trading L.P Order 4297 granting blanket authority to import/export natural gas from/to Canada/Mexico.
    [FR Doc. 2018-26085 Filed 11-29-18; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. RP19-310-000] Arena Energy, LP, Castex Offshore, Inc., EnVen Energy Ventures, LLC, Fieldwood Energy LLC, Walter Oil & Gas Corporation, W&T Offshore, Inc. v. High Point Gas Transmission, LLC; Notice of Complaint

    Take notice that on November 21, 2018, 2018, pursuant to Rule 206 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206 (2018), Arena Energy LP, Castex Offshore, Inc., EnVen Energy Ventures, LLC, Fieldwood Energy LLC, W&T Offshore, Inc., and Walter Oil & Gas Corporation (Complainants) filed a complaint against High Point Gas Transmission, LLC (Respondent), alleging that Respondent failed to adequately respond to a request for transportation service, is in violation of the Commission's open-access transportation policies, the Commission's policies with respect to an interstate pipeline acquiring off-system capacity, and Respondent's FERC Gas Tariff., all as more fully explained in the complaint.

    The Complainants certify that a copy of the complaint was served on Respondent's corporate representatives designated on the Commission's Corporate Officials List.

    Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.

    The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.

    This filing is accessible on-line at http://www.ferc.gov, using the “eLibrary” link and is available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected], or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Comment Date: 5:00 p.m. Eastern Time on December 11, 2018.

    Dated: November 23, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-26006 Filed 11-29-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP19-16-000] Chattanooga Gas Company; Notice of Application

    Take notice that on November 9, 2018, Chattanooga Gas Company (CGC), 2207 Olan Mills Drive, Chattanooga, TN 37421, filed in Docket No. CP19-16-000, an application pursuant to section 7(f) of the Natural Gas Act (NGA) and the Commission's regulations requesting a service area determination allowing CGC to expand or enlarge its facilities, without further authorization from the Commission. CGC requests a service area determination with respect to its entire Tennessee local distribution company (LDC) service area as well as a few small geographic areas in Georgia into which CGC's mainline and service lines extend. CGC also requests: (i) A finding that CGC qualifies as an LDC for the purposes of section 311 of the Natural Gas Policy Act of 1978 (NGPA); (ii) a waiver of the Commission's accounting and reporting requirements and other regulatory requirements ordinarily applicable to natural gas companies under the NGA and the NGPA; and (iii) such further relief as the Commission may deem appropriate, all as more fully described in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC at [email protected] or call toll-free, (866) 208-3676 or TTY, (202) 502-8659.

    Any questions regarding this application should be directed to Elizabeth Wade, Senior Counsel, AGL Resources Inc., Ten Peachtree Place NE, Atlanta, GA 30309, by telephone at (404) 584-3160 or by email at [email protected] or Daniel P. Archuleta, Troutman Sanders LLP, 401 Ninth Street NW, Suite 1000, Washington, DC 20004, by telephone at (202) 274-2926 or by email at [email protected]

    Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's EA.

    There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 3 copies of filings made in the proceeding with the Commission and must provide a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.

    However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.

    Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list and will be notified of any meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission and will not have the right to seek court review of the Commission's final order.

    As of the February 27, 2018 date of the Commission's order in Docket No. CP16-4-001, the Commission will apply its revised practice concerning out-of-time motions to intervene in any new Natural Gas Act section 3 or section 7 proceeding.1 Persons desiring to become a party to a certificate proceeding are to intervene in a timely manner. If seeking to intervene out-of-time, the movant is required to “show good cause why the time limitation should be waived,” and should provide justification by reference to factors set forth in Rule 214(d)(1) (18 CFR 385.214(d)(1)) of the Commission's Rules and Regulations.

    1Tennessee Gas Pipeline Company, L.L.C., 162 FERC ¶ 61,167 at P 50 (2018).

    The Commission strongly encourages electronic filings of comments, protests, and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 3 copies of the protest or intervention to the Federal Energy regulatory Commission, 888 First Street NE, Washington, DC 20426.

    Comment Date: 5:00 p.m. Eastern time on December 14, 2018.

    Dated: November 23, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-26007 Filed 11-29-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings

    Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:

    Filings Instituting Proceedings

    Docket Number: PR18-87-001.

    Applicants: ONEOK Field Services Company, L.L.C.

    Description: Tariff filing per 284.123(b), (e)+(g): Revised Statement of Operating Conditions to be effective 11/1/2018;

    Filed Date: 11/20/18.

    Accession Number: 201811205196.

    Comments Due: 5 p.m. ET 12/11/18.

    284.123(g) Protests Due: 5 p.m. ET 12/11/18.

    Docket Numbers: RP19-307-000.

    Applicants: Black Hills Utility Holdings, Inc., Black Hills Energy Services Company.

    Description: Joint Application for Temporary Waivers of Capacity Release, Regulations and Policies, et al. of Black Hills Utility, Holdings, Inc., et al. under RP19-307.

    Filed Date: 11/20/18.

    Accession Number: 20181120-5220.

    Comments Due: 5 p.m. ET 11/29/18.

    Docket Numbers: RP19-308-000.

    Applicants: Alliance Pipeline L.P.

    Description: § 4(d) Rate Filing: APL Nov2018 Delivery Point Cleanup, Filing to be effective 12/21/2018.

    Filed Date: 11/21/18.

    Accession Number: 20181121-5018.

    Comments Due: 5 p.m. ET 12/3/18.

    Docket Numbers: RP19-309-000.

    Applicants: Columbia Gulf Transmission, LLC.

    Description: § 4(d) Rate Filing: CGT Total Amendment Filing to be effective 11/25/2018.

    Filed Date: 11/21/18.

    Accession Number: 20181121-5095.

    Comments Due: 5 p.m. ET 12/3/18.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified date(s). Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: November 26, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-26056 Filed 11-29-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric corporate filings:

    Docket Numbers: EC19-28-000.

    Applicants: Homer City Generation, L.P.

    Description: Application for Authorization Under Section 203 of the Federal Power Act, et al. of Homer City Generation, L.P.

    Filed Date: 11/21/18.

    Accession Number: 20181121-5157.

    Comments Due: 5 p.m. ET 12/12/18.

    Docket Numbers: EC19-29-000.

    Applicants: SRIV Partnership LLC, NJR Clean Energy Ventures II Corporation, Alexander Wind Farm, LLC, Ringer Hill Wind, LLC, Carroll Area Wind Farm, LLC, Medicine Bow Wind, LLC.

    Description: Application for Authorization Under Section 203 of the Federal Power Act, et al. of SRIV Partnership LLC.

    Filed Date: 11/21/18.

    Accession Number: 20181121-5162.

    Comments Due: 5 p.m. ET 12/12/18.

    Take notice that the Commission received the following exempt wholesale generator filings:

    Docket Numbers: EG19-25-000.

    Applicants: Calpine Gilroy Cogen, L.P.

    Description: Notice of Self-Certification of Exempt Wholesale Generator Status.

    Filed Date: 11/26/18.

    Accession Number: 20181126-5068.

    Comments Due: 5 p.m. ET 12/17/18.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-2718-032; ER10-2719-032.

    Applicants: Cogen Technologies Linden Venture, L.P., East Coast Power Linden Holding, L.L.C.

    Description: Notice of Non-Material Change in Status of Cogen Technologies Linden Venture, L.P., et al.

    Filed Date: 11/26/18.

    Accession Number: 20181126-5041.

    Comments Due: 5 p.m. ET 12/17/18.

    Docket Numbers: ER11-3859-017; ER14-1699-007; ER17-436-005; ER17-437-008.

    Applicants: Dighton Power, LLC, Milford Power, LLC, Marcus Hook Energy, L.P., Marcus Hook 50, L.P.

    Description: Notice of change in status of the SEG MBR Entities, et al.

    Filed Date: 11/21/18.

    Accession Number: 20181121-5160.

    Comments Due: 5 p.m. ET 12/12/18.

    Docket Numbers: ER19-294-000.

    Applicants: GE Oleander LLC.

    Description: Amendment to November 6, 2018 GE Oleander LLC tariff filing.

    Filed Date: 11/21/18.

    Accession Number: 20181121-5156.

    Comments Due: 5 p.m. ET 12/5/18.

    Docket Numbers: ER19-392-000.

    Applicants: Southwest Power Pool, Inc.

    Description: § 205(d) Rate Filing: 1887R8 Westar Energy, Inc. NITSA NOA to be effective 11/1/2018.

    Filed Date: 11/26/18.

    Accession Number: 20181126-5026.

    Comments Due: 5 p.m. ET 12/17/18.

    Docket Numbers: ER19-393-000.

    Applicants: Southwest Power Pool, Inc.

    Description: § 205(d) Rate Filing: 1888R8 Westar Energy, Inc. NITSA NOA to be effective 11/1/2018.

    Filed Date: 11/26/18.

    Accession Number: 20181126-5032.

    Comments Due: 5 p.m. ET 12/17/18.

    Docket Numbers: ER19-394-000.

    Applicants: Southwest Power Pool, Inc.

    Applicants: § 205(d) Rate Filing: 1890R8 Westar Energy, Inc. NITSA NOA to be effective 11/1/2018.

    Filed Date: 11/26/18.

    Accession Number: 20181126-5033.

    Comments Due: 5 p.m. ET 12/17/18.

    Docket Numbers: ER19-395-000.

    Applicants: AEP Texas Inc.

    Description: § 205(d) Rate Filing: AEPTX-Rayos Del Sol Solar Project Interconnection Agreement to be effective 11/6/2018.

    Filed Date: 11/26/18.

    Accession Number: 20181126-5054.

    Comments Due: 5 p.m. ET 12/17/18.

    Docket Numbers: ER19-396-000.

    Applicants: AES Shady Point, LLC.

    Description: Baseline eTariff Filing: AES Shady Point MBR Application to be effective 11/27/2018.

    Filed Date: 11/26/18.

    Accession Number: 20181126-5055.

    Comments Due: 5 p.m. ET 12/17/18.

    Take notice that the Commission received the following qualifying facility filings:

    Docket Numbers: QF18-452-000.

    Applicants: North American Natural Resources, Inc.

    Description: Supplement to November 20, 2018 Refund Report of North American Natural Resources, Inc.

    Filed Date: 11/26/18.

    Accession Number: 20181126-5063.

    Comments Due: 5 p.m. ET 11/26/18.

    Take notice that the Commission received the following PURPA 210(m)(3) filings:

    Docket Numbers: QM19-1-000.

    Applicants: Missouri Basin Municipal Power Agency.

    Description: Application of Missouri Basin Municipal Power Agency to Terminate Mandatory PURPA Purchase Obligation.

    Filed Date: 11/21/18.

    Accession Number: 20181121-5155.

    Comments Due: 5 p.m. ET 12/19/18.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: November 26, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-26055 Filed 11-29-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER18-2486-001.

    Applicants: San Diego Gas & Electric Company.

    Description: Tariff Amendment: SDGE IV SOLAR AGMT 57 V 11 LGIA AMENDMENT to be effective 9/27/2018.

    Filed Date: 11/21/18.

    Accession Number: 20181121-5099.

    Comments Due: 5 p.m. ET 12/12/18.

    Docket Numbers: ER19-91-001.

    Applicants: GRP Franklin, LLC.

    Description: Tariff Amendment: Amendment to MBR Application to be effective 12/8/2018.

    Filed Date: 11/21/18.

    Accession Number: 20181121-5100.

    Comments Due: 5 p.m. ET 12/12/18.

    Docket Numbers: ER19-92-001.

    Applicants: GRP Madison, LLC.

    Description: Tariff Amendment: Amendment to MBR Application to be effective 12/8/2018.

    Filed Date: 11/21/18.

    Accession Number: 20181121-5102.

    Comments Due: 5 p.m. ET 12/12/18.

    Docket Numbers: ER19-388-000.

    Applicants: Entergy Arkansas, Inc.

    Description: § 205(d) Rate Filing: Updated LBA Agreements to be effective 1/1/2019.

    Filed Date: 11/21/18.

    Accession Number: 20181121-5093.

    Comments Due: 5 p.m. ET 12/12/18.

    Docket Numbers: ER19-389-000.

    Applicants: Marco DM Holdings, L.L.C.

    Description: § 205(d) Rate Filing: Notice of change in status to be effective 1/21/2019.

    Filed Date: 11/21/18.

    Accession Number: 20181121-5107.

    Comments Due: 5 p.m. ET 12/12/18.

    Docket Numbers: ER19-390-000.

    Applicants: Southwestern Public Service Company.

    Description: § 205(d) Rate Filing: SPS-GSEC-RBEC-IA-Kemp substation 0.0.0 to be effective 11/22/2018.

    Filed Date: 11/21/18.

    Accession Number: 20181121-5120.

    Comments Due: 5 p.m. ET 12/12/18.

    Docket Numbers: ER19-391-000.

    Applicants: Panda Hummel Station LLC.

    Description: Baseline eTariff Filing: Application for Reactive Service Tariff to be effective 11/24/2018.

    Filed Date: 11/23/18.

    Accession Number: 20181123-5045.

    Comments Due: 5 p.m. ET 12/14/18.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: November 23, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-26008 Filed 11-29-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 4202-024] KEI (Maine) Power Management (II) LLC; Notice of Intent To File License Application, Filing of Pre-Application Document, and Approving Use of the Traditional Licensing Process

    a. Type of Filing: Notice of Intent to File License Application and Request to Use the Traditional Licensing Process.

    b. Project No.: 4202-024.

    c. Date Filed: September 26, 2018.

    d. Submitted By: KEI (Maine) Power Management (II) LLC (KEI Power).

    e. Name of Project: Lowell Tannery Hydroelectric Project.

    f. Location: On the Passadumkeag River, in Penobscot County, Maine. No federal lands are occupied by the project works or located within the project boundary.

    g. Filed Pursuant to: 18 CFR 5.3 and 5.5 of the Commission's regulations.

    h. Potential Applicant Contact: Lewis C. Loon, KEI (USA) Power Management Inc., 423 Brunswick Avenue, Gardiner, Maine 04345; (207) 203-3027; email—[email protected]

    i. FERC Contact: Dr. Nicholas Palso at (202) 502-8854; or email at [email protected]

    j. KEI Power filed its request to use the Traditional Licensing Process on September 26, 2018. KEI Power provided public notice of its request on September 24, 2018. In a letter dated November 23, 2018, the Director of the Division of Hydropower Licensing approved KEI Power's request to use the Traditional Licensing Process.

    k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service and/or NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR part 402; and NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920. We are also initiating consultation with the Maine State Historic Preservation Officer, as required by section 106 of the National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.

    l. With this notice, we are designating KEI Power as the Commission's non-federal representative for carrying out informal consultation pursuant to section 7 of the Endangered Species Act and section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act; and consultation pursuant to section 106 of the National Historic Preservation Act.

    m. KEI Power filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.

    n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website (http://www.ferc.gov), using the “eLibrary” link. Enter the docket number, excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). A copy is also available for inspection and reproduction at the address in paragraph h.

    o. The licensee states its unequivocal intent to submit an application for a subsequent license for Project No. 4202. Pursuant to 18 CFR 16.20, each application for a subsequent license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by September 30, 2021.

    p. Register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances related to this or other pending projects. For assistance, contact FERC Online Support.

    Dated: November 23, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-25986 Filed 11-29-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP19-15-000] Atlanta Gas Light Company; Notice of Application

    Take notice that on November 9, 2018, Atlanta Gas Light Company (AGL), Ten Peachtree Place NE, Atlanta, GA 30309, filed in Docket No. CP19-15-000, an application pursuant to section 7(f) of the Natural Gas Act (NGA) and the Commission's regulations requesting a service area determination allowing AGL to expand or enlarge its facilities, without further authorization from the Commission. AGL requests a service area determination with respect to its entire Georgia local distribution company (LDC) service area as well as a few small geographic areas in Tennessee into which AGL's mainline and service lines extend. AGL also requests: (i) A finding that AGL qualifies as an LDC for the purposes of section 311 of the Natural Gas Policy Act of 1978 (NGPA); (ii) a waiver of the Commission's accounting and reporting requirements and other regulatory requirements ordinarily applicable to natural gas companies under the NGA and the NGPA; and (iii) such further relief as the Commission may deem appropriate, all as more fully described in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC at [email protected] or call toll-free, (866) 208-3676 or TTY, (202) 502-8659.

    Any questions regarding this application should be directed to Elizabeth Wade, Senior Counsel, AGL Resources Inc., Ten Peachtree Place NE, Atlanta, GA 30309, by telephone at (404) 584-3160 or by email at [email protected] or Daniel P. Archuleta, Troutman Sanders LLP, 401 Ninth Street NW, Suite 1000, Washington, DC 20004, by telephone at (202) 274-2926 or by email at [email protected]

    Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's EA.

    There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 3 copies of filings made in the proceeding with the Commission and must provide a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.

    However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.

    Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list and will be notified of any meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission and will not have the right to seek court review of the Commission's final order.

    As of the February 27, 2018 date of the Commission's order in Docket No. CP16-4-001, the Commission will apply its revised practice concerning out-of-time motions to intervene in any new Natural Gas Act section 3 or section 7 proceeding.1 Persons desiring to become a party to a certificate proceeding are to intervene in a timely manner. If seeking to intervene out-of-time, the movant is required to “show good cause why the time limitation should be waived,” and should provide justification by reference to factors set forth in Rule 214(d)(1) (18 CFR 385.214(d)(1)) of the Commission's Rules and Regulations.

    1Tennessee Gas Pipeline Company, L.L.C., 162 FERC ¶ 61,167 at P 50 (2018).

    The Commission strongly encourages electronic filings of comments, protests, and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 3 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.

    Comment Date: 5:00 p.m. Eastern Time on December 14, 2018.

    Dated: November 23, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-25984 Filed 11-29-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP19-17-000] Notice of Amendment: Midship Pipeline Company, LLC

    Take notice that on November 14, 2018, Midship Pipeline Company, LLC (Midship), 700 Milam Street, Suite 1900, Houston, Texas 77002, filed an application pursuant to section 7(c) of the Natural Gas Act and Parts 157 and 284 of the Commission's regulations requesting authorization to amend its Certificate of Public Convenience and Necessity issued on August 13, 2018, in Docket No. CP17-458-000 1 in order to allow for a minor re-route on its Midcontinent Supply Header Interstate Pipeline Project (MIDSHIP Project). Specifically, Midship requests an estimated 0.8-mile pipeline reroute in Bryan County, Oklahoma, located approximately 400-feet southwest of the certificated pipeline route to avoid a sensitive feature and mitigate stakeholder concerns. Midship states that the proposed route modification would not result in any changes to the estimated project costs of the MIDSHIP Project and that no shippers would be adversely affected, all as more fully set forth in the application, which is on file with the Commission and open to public inspection.

    1Midship Pipeline Company, LLC, 164 FERC ¶ 61,103 (2018).

    The filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website web at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC at [email protected] or call toll-free, (886) 208-3676 or TYY, (202) 502-8659.

    Any questions regarding the proposed amendment should be directed to Karri Mahmoud, Director, Regulatory Project Development, 700 Milam Street, Suite 1900, Houston, Texas 77002, by telephone at (713) 375-5000, or by email at [email protected]

    Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice, the Commission staff will either: Complete its environmental analysis (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's EA.

    There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 3 copies of filings made with the Commission and must provide a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.

    However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.

    Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list and will be notified of any meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission and will not have the right to seek court review of the Commission's final order.

    As of the February 27, 2018 date of the Commission's order in Docket No. CP16-4-001, the Commission will apply its revised practice concerning out-of-time motions to intervene in any new Natural Gas Act section 3 or section 7 proceeding.2 Persons desiring to become a party to a certificate proceeding are to intervene in a timely manner. If seeking to intervene out-of-time, the movant is required to “show good cause why the time limitation should be waived,” and should provide justification by reference to factors set forth in Rule 214(d)(1) of the Commission's Rules and Regulations.3

    2Tennessee Gas Pipeline Company, L.L.C., 162 FERC ¶ 61,167 at ¶ 50 (2018).

    3 18 CFR 385.214(d)(1).

    The Commission strongly encourages electronic filings of comments, protests, and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 3 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.

    Comment Date: 5:00 p.m. Eastern Time on December 14, 2018.

    Dated: November 23, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-25985 Filed 11-29-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP19-17-000] Midship Pipeline Company, LLC; Notice of Intent To Prepare an Environmental Assessment for a Proposed Amendment of the Midcontinent Supply Header Interstate Pipeline Project and Request for Comments on Environmental Issues

    The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of a proposed amendment (0.8-mile reroute) of Midship Pipeline Company, LLC's (Midship Pipeline) Midcontinent Supply Header Interstate Pipeline Project (MIDSHIP Project) in Bryan County, Oklahoma.1 The Commission will use this EA in its decision-making process to determine whether the amendment is in the public convenience and necessity.

    1 On August 13, 2018, the Commission issued a Certificate of Public Convenience and Necessity for the 234.1-mile-long MIDSHIP Project under Docket No. CP17-458-000.

    This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies about issues regarding the amendment/reroute. The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from its action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires the Commission to discover concerns the public may have about proposals. This process is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this notice, the Commission requests public comments on the scope of the issues to address in the EA. To ensure that your comments are timely and properly recorded, please submit your comments so that the Commission receives them in Washington, DC on or before 5:00 p.m. Eastern Time on December 24, 2018.

    You can make a difference by submitting your specific comments or concerns about the reroute. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EA. Commission staff will consider all filed comments during the preparation of the EA.

    If you sent comments on this project to the Commission before the opening of this docket on November 14, 2018, you will need to file those comments in Docket No. CP19-17-000 to ensure they are considered as part of this proceeding.

    This notice is being sent to the Commission's current environmental mailing list for this amendment. State and local government representatives should notify their constituents of this proposed amendment and encourage them to comment on their areas of concern.

    If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable easement agreement. You are not required to enter into an agreement. However, if the Commission approves the amendment, that approval conveys with it the right of eminent domain. Therefore, if you and the company do not reach an easement agreement, the pipeline company could initiate condemnation proceedings in court. In such instances, compensation would be determined by a judge in accordance with state law.

    Midship Pipeline provided landowners with a fact sheet prepared by FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC website (www.ferc.gov) at https://www.ferc.gov/resources/guides/gas/gas.pdf.

    Public Participation

    The Commission offers a free service called eSubscription which makes it easy to stay informed of all issuances and submittals regarding the dockets/projects to which you subscribe. These instant email notifications are the fastest way to receive notification and provide a link to the document files which can reduce the amount of time you spend researching proceedings. To sign up go to www.ferc.gov/docs-filing/esubscription.asp.

    For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or [email protected] Please carefully follow these instructions so that your comments are properly recorded.

    (1) You can file your comments electronically using the eComment feature, which is located on the Commission's website (www.ferc.gov) under the link to Documents and Filings. Using eComment is an easy method for submitting brief, text-only comments on a project;

    (2) You can file your comments electronically by using the eFiling feature, which is located on the Commission's website (www.ferc.gov) under the link to Documents and Filings. With eFiling, you can provide comments in a variety of formats by attaching them as a file with your submission. New eFiling users must first create an account by clicking on “eRegister.” You will be asked to select the type of filing you are making; a comment on a particular project is considered a “Comment on a Filing”; or

    (3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (CP19-17-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426.

    Summary of the Proposed Project

    Midship Pipeline proposes a 0.8-mile reroute between mileposts 195.2 to 195.9 of the MIDSHIP Project in Bryan County, Oklahoma. This reroute would shift the pipeline about 400 feet west and south of the certificated pipeline route. The general location of the reroute is shown in appendix 1.2

    2 The appendices referenced in this notice will not appear in the Federal Register. Copies of appendices were sent to all those receiving this notice in the mail and are available at www.ferc.gov using the link called “eLibrary” or from the Commission's Public Reference Room, 888 First Street NE, Washington, DC 20426, or call (202) 502-8371. For instructions on connecting to eLibrary, refer to the last page of this notice.

    Land Requirements for Construction

    Construction of the proposed reroute would disturb about 12.5 acres of land. Following construction, Midship Pipeline would maintain about 5.3 acres for permanent operation of the project; the remaining acreage would be restored and revert to former uses. This represents an increase from the certificated route of about 1.2 acres during construction and 0.5 acre during operation.

    The EA Process

    The EA will discuss impacts that could occur as a result of the proposed amendment under these general headings:

    • Geology and soils;

    • water resources and wetlands;

    • vegetation and wildlife;

    • threatened and endangered species;

    • cultural resources;

    • land use;

    • air quality and noise;

    • public safety; and

    • cumulative impacts.

    Commission staff will also evaluate reasonable alternatives to the proposed amendment, and make recommendations on how to lessen or avoid impacts on the various resource areas as applicable.

    The EA will present Commission staffs' independent analysis of the issues. The EA will be available in electronic format in the public record through eLibrary 3 and the Commission's website (https://www.ferc.gov/industries/gas/enviro/eis.asp). If eSubscribed, you will receive instant email notification when the EA is issued. The EA may be issued for an allotted public comment period. Commission staff will consider all comments on the EA before making recommendations to the Commission. To ensure Commission staff have the opportunity to address your comments, please carefully follow the instructions in the Public Participation section, beginning on page 2.

    3 For instructions on connecting to eLibrary, refer to page 5 of this notice.

    With this notice, the Commission is asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate in the preparation of the EA.4 Agencies that would like to request cooperating agency status should follow the instructions for filing comments provided under the Public Participation section of this notice.

    4 The Council on Environmental Quality regulations addressing cooperating agency responsibilities are at Title 40, Code of Federal Regulations, Part 1501.6.

    Consultation Under Section 106 of the National Historic Preservation Act

    In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission is using this notice to initiate consultation with the applicable State Historic Preservation Office (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.5 Commission staff will define the project-specific Area of Potential Effects (APE) in consultation with the SHPO as the project develops. On natural gas facility projects, the APE at a minimum encompasses all areas subject to ground disturbance (examples include construction right-of-way, contractor/pipe storage yards, compressor stations, and access roads). The EA for this project will document findings on the impacts on historic properties and summarize the status of consultations under section 106.

    5 The Advisory Council on Historic Preservation's regulations are at Title 36, Code of Federal Regulations, Part 800. Those regulations define historic properties as any prehistoric or historic district, site, building, structure, or object included in or eligible for inclusion in the National Register of Historic Places.

    Environmental Mailing List

    The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, and anyone who submits comments on the project. Commission staff will update the environmental mailing list as the analysis proceeds to ensure that Commission notices related to this environmental review are sent to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed amendment.

    If the Commission issues the EA for an allotted public comment period, a Notice of Availability of the EA will be sent to the environmental mailing list and will provide instructions to access the electronic document on the FERC's website (www.ferc.gov). If you need to make changes to your name/address, or if you would like to remove your name from the mailing list, please return the attached “Mailing List Update Form” (appendix 2).

    Additional Information

    Additional information about the amendment/reroute is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at www.ferc.gov using the eLibrary link. Click on the eLibrary link, click on “General Search” and enter the docket number in the “Docket Number” field, excluding the last three digits (i.e., CP19-17). Be sure you have selected an appropriate date range. For assistance, please contact FERC Online Support at [email protected] or (866) 208-3676, or for TTY, contact (202) 502-8659. The eLibrary link also provides access to the texts of all formal documents issued by the Commission, such as orders, notices, and rulemakings.

    Dated: November 23, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-26005 Filed 11-29-18; 8:45 am] BILLING CODE 6717-01-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OECA-2014-0097 FRL-9986-26-OEI] Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Plating and Polishing Area Sources (Renewal) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), NESHAP for Plating and Polishing Area Sources (EPA ICR Number 2294.05, OMB Control Number 2060-0623), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through November 30, 2018. Public comments were previously requested, via the Federal Register, on June 29, 2017 during a 60-day comment period. This notice allows for an additional 30 days for public comments. A fuller description of the ICR is given below, including its estimated burden and cost to the public. An agency may neither conduct nor sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    DATES:

    Additional comments may be submitted on or before December 31, 2018.

    ADDRESSES:

    Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2014-0097 to: (1) EPA online using www.regulations.gov (our preferred method), or by email to [email protected], or by mail to: EPA Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460; and (2) OMB via email to [email protected] Address comments to OMB Desk Officer for EPA.

    EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI), or other information whose disclosure is restricted by statute.

    FOR FURTHER INFORMATION CONTACT:

    Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at www.regulations.gov, or in person at the EPA Docket Center, WJC West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The telephone number for the Docket Center is 202-566-1744. For additional information about EPA's public docket, visit: http://www.epa.gov/dockets.

    Abstract: The National Emission Standards for Hazardous Air Pollutants (NESHAP) for Plating and Polishing Area Sources (40 CFR part 63, subpart WWWWWW) apply to both existing and new plating and polishing facilities that are an area source of hazardous air pollutant (HAP) emissions and that use one or more of the following metal HAP: Cadmium, chromium, lead manganese, or nickel (hereafter referred to as the plating and polishing metal HAP). A plating and polishing facility is a plant site that is engaged in any of the following processes: Non-chromium electroplating; electroless or non-electrolytic plating; other non-electrolytic metal coating processes such as chromate conversion coating, nickel acetate sealing, sodium dichromate sealing, and manganese phosphate coating, and thermal spraying; dry mechanical polishing of finished metals and formed products after plating or thermal spraying; electroforming; and electro-polishing. New facilities include those that commenced construction, modification, or reconstruction after the date of proposal. In general, all NESHAP standards require initial notifications, performance tests, and periodic reports by the owners/operators of the affected facilities. They are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notifications, reports, and records are essential in determining compliance with 40 CFR part 63, subpart WWWWWW.

    Form Numbers: None.

    Respondents/affected entities: Plating and polishing area source facilities.

    Respondent's obligation to respond: Mandatory (40 CFR part 63, subpart WWWWWW).

    Estimated number of respondents: 2,900 (total).

    Frequency of response: Initially and annually.

    Total estimated burden: 67,700 hours (per year). Burden is defined at 5 CFR 1320.3(b).

    Total estimated cost: $7,410,000 (per year), which includes no annualized capital/startup or operation & maintenance costs.

    Changes in the estimates: There is an increase in the total estimated burden and number of responses from the most-recently approved ICR due to several adjustments. First, burden hours were added to allow each facility to refamiliarize themselves with the regulatory requirements each year. Second, the number of sources that complete but do not submit annual compliance certifications was left out of the response count in the previous renewal and this has been corrected.

    There is a decrease in the annualized capital or operation & maintenance costs since the previous renewal due to an adjustment. There are no ongoing monitoring requirements in the rule and no new sources are expected to incur capital/startup costs. Therefore, the capital/startup costs were reduced to zero since those costs have already been incurred when the existing sources became subject to the rule.

    Courtney Kerwin, Director, Regulatory Support Division.
    [FR Doc. 2018-25771 Filed 11-29-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPPT-2018-0604; FRL-9983-08] TSCA Science Advisory Committee on Chemicals (SACC); Notice of Public Meetings AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    This notice announces the peer review of the draft Risk Evaluation for Colour Index (C.I.) Pigment Violet 29 (PV29) and associated documents developed under EPA's existing chemical substance process under the Toxic Substances Control Act (TSCA). The peer review panel deliberations will be conducted during a 4-day, in-person, public meeting of the TSCA Science Advisory Committee on Chemicals (SACC). This in-person meeting will also include a general TSCA orientation for the TSCA SACC. A portion of the in-person meeting will be closed to the public for the committee's discussion of information claimed as confidential business information (CBI). Prior to the in-person meeting, there will be a public, 2-hour preparatory virtual meeting to consider the scope and clarity of the draft charge questions for this peer review. During these upcoming meetings, the public is invited to provide oral comments for the peer review on the draft risk evaluation for PV29 and related documents. Comments on the draft charge questions will be accepted prior to and during the 2-hour preparatory virtual meeting. The TSCA SACC peer review panel will consider these comments during their discussions.

    DATES:

    Meetings: The preparatory virtual meeting will be held on January 8, 2019, from 2 p.m. to approximately 4 p.m. (EST). The 4-day in-person meeting will be held from 1 p.m. (EST) to approximately 5:30 p.m. on January 29, 2019 and from 9 a.m. to approximately 5:30 p.m. on January 30, 31, and February 1, 2019.

    Oral comments: Requests to make oral comments during the preparatory virtual meeting should be submitted on or before 12:00 p.m. (EST) on January 4, 2019. In order to be included on the meeting agenda, requests to make oral comments during the in-person 4-day peer review meeting should be submitted on or before January 14, 2019. Otherwise, requests to present oral comments during the in-person 4-day peer review meeting will be accepted until and possibly during the in-person meeting. Direct your requests to make oral comments to the Designated Federal Officer (DFO) listed under FOR FURTHER INFORMATION CONTACT.

    For additional instructions, see Unit I.C. and Unit I.D. of the SUPPLEMENTARY INFORMATION.

    Written comments: Written comments on the scope and clarity of the draft charge questions for the preparatory virtual meeting should be submitted on or before January 7, 2019. Written comments on the draft risk evaluation that are submitted on or before January 14, 2019 (see 83 FR 57473, November 15, 2018) (FRL-9986-45) will be provided to the peer review panel members before the meeting. You may also submit written comments on the first date of the in-person 4-day peer review meeting by providing 30 copies of your written comments to the DFO at the start of the meeting for the DFO to distribute to the panel members. The TSCA SACC will consider written comments during their discussions.

    Special accommodations: For information on access or services for individuals with disabilities, and to request accommodation of a disability, please contact the DFO listed under FOR FURTHER INFORMATION CONTACT at least 10 days prior to the meeting to give EPA as much time as possible to process your request.

    ADDRESSES:

    Preparatory Virtual Meeting: The January 8, 2019 preparatory virtual meeting is open to the public and will be conducted via webcast using Adobe Connect and telephone. Registration is required to participate by listening or presenting oral comments during the preparatory virtual meeting. Please visit https://www.epa.gov/tsca-peer-review website for additional information including how to register.

    In-Person Meeting: The location of the January 29 to February 1, 2019 in-person meeting will be announced on the TSCA SACC website (https://www.epa.gov/tsca-peer-review) by mid-December 2018. The January 29 to February 1, 2019 in-person meeting may also be webcast. Please refer to the TSCA SACC website at https://www.epa.gov/tsca-peer-review for information on how to access the webcast. Please note that for the in-person meeting, the webcast is a supplementary public process provided only for convenience. If difficulties arise resulting in webcasting outages, the in-person meeting will continue as planned.

    Comments for the peer review: Submit your written comments for the peer review, identified by docket identification (ID) number EPA-HQ-OPPT-2018-0604, 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 Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

    Mail: OPPT 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.

    Requests to present oral comments, and requests for special accommodations. Submit requests to present oral comments or for special accommodations, to the DFO listed under FOR FURTHER INFORMATION CONTACT.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Todd Peterson, DFO, Office of Science Coordination and Policy (7201M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 564-6428; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

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

    This action is directed to the public in general. This action may be of interest to persons who are interested in risk evaluations of chemical substances under the Toxic Substances Control Act (TSCA). Since other entities may also be interested in this risk evaluation, the Agency has not attempted to describe all the specific entities that may be affected by this action.

    B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit CBI information to EPA through regulations.gov or via email. If your comments contain any information that you consider to be CBI or otherwise protected, please contact the DFO listed under FOR FURTHER INFORMATION CONTACT to obtain special instructions before submitting your comments.

    2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

    C. How may I participate in the preparatory virtual meeting?

    1. Register. Registration for the January 8, 2019, preparatory virtual meeting is required. To participate by listening or making oral comments during this meeting please visit https://www.epa.gov/tsca-peer-review to register. Registration online will be confirmed by email that will include the webcast meeting Adobe Connect link and audio teleconference information.

    2. Submit written comments. Written comments for the preparatory virtual meeting should be submitted, using the instructions in ADDRESSES and Unit I.B., on or before January 7, 2019. Written comments should focus on the scope and clarity of the draft charge questions and the TSCA SACC will consider those comments during their discussions.

    3. Provide oral comments. To provide oral comments at the virtual meeting, please follow the applicable instructions to register on or before 12:00 p.m. (EST) on January 4, 2019. Oral comments to the TSCA SACC panel during the preparatory virtual meeting are limited to approximately 5 minutes due to the time limit of this meeting. Oral comments should focus on the scope and clarity of the draft charge questions and the panel will consider those comments during their discussions.

    4. Participate in the virtual meeting. Follow the instructions in Unit I.C.1. to register for the January 8, 2019 preparatory meeting. Your confirmation will include the webcast meeting Adobe Connect link and audio teleconference information.

    D. How may I participate in the in-person meeting?

    You may participate in the in-person peer review meeting by following the instructions in this unit. To ensure proper receipt by EPA, it is imperative that you identify docket ID number EPA-HQ-OPPT-2018-0604 in the subject line on the first page of your request.

    1. Provide oral comments for the peer review. The Agency encourages each individual or group wishing to make brief oral comments to the TSCA SACC during the in-person meeting to submit their request to the DFO listed under FOR FURTHER INFORMATION CONTACT on or before January 14, 2019, in order to be included on the meeting agenda. Requests to present oral comments for the peer review will be accepted until the date of the in-person meeting and, to the extent that time permits, the Chair of the TSCA SACC may permit the presentation of oral comments at the in-person meeting by interested persons who have not previously requested time.

    Requests to make oral comments at the in-person meeting should identify the name of the individual making the presentation, the organization (if any) the individual will represent, and any requirements for audiovisual equipment. Oral comments before the TSCA SACC during the in-person meeting are limited to approximately 5 minutes unless prior arrangements have been made. In addition, each speaker should bring 30 copies of the comments and presentation for the DFO to distribute to the TSCA SACC at the meeting. The TSCA SACC will consider oral comments during their discussions.

    2. Provide written comments. Follow the instructions in ADDRESSES and Unit I.B., to provide written comments on the draft risk evaluation.

    3. Attend the meeting. Seating at the meeting will be open and on a first-come basis.

    II. Background A. Purpose of the TSCA SACC

    The Science Advisory Committee on Chemicals (SACC) was established by EPA in 2016 under the authority of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, Public Law 114-182, 140 Stat. 448 (2016), and operates in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2. The SACC supports activities under the Toxic Substances Control Act (TSCA), 15 U.S.C. 2601 et seq., the Pollution Prevention Act (PPA), 42 U.S.C. 13101 et seq., and other applicable statutes. The SACC provides expert independent scientific advice and recommendations to the EPA on the scientific and technical aspects of risk assessments, methodologies, and pollution prevention measures and approaches for chemicals regulated under TSCA.

    The SACC is comprised of experts in: Toxicology; human health and environmental risk assessment; exposure assessment; and related sciences (e.g., synthetic biology, pharmacology, biotechnology, nanotechnology, biochemistry, biostatistics, PBPK modeling, computational toxicology, epidemiology, environmental fate, and environmental engineering and sustainability). The SACC currently consists of 26 members. When needed, the committee will be assisted in their reviews by ad hoc participants with specific expertise in the topics under consideration.

    B. In-Person Meeting

    The focus of the TSCA SACC in-person meeting is to peer review the Agency's draft risk evaluation of C.I. Pigment Violet 29, which was developed under EPA's existing chemical substance process. C.I. Pigment Violet 29 is an organic pigment that has a low solubility, low volatility, is expected to be highly persistent, and has low bioaccumulation potential in fish and other animals. The pigment is utilized as an intermediate to create or adjust the color of other pigments, as well as in commercial paints, coatings, plastics, and rubber products.

    Under TSCA, the purpose of the risk evaluation is to determine whether a chemical substance presents an unreasonable risk to health or the environment under the conditions of use, including an unreasonable risk to a relevant potentially exposed or susceptible subpopulation. EPA released the draft risk evaluation for C.I. Pigment Violet 29 for public review and comment on November 15, 2018 (83 FR 57473; FRL-9986-45), and is submitting the same materials to the TSCA SACC for peer review.

    After the peer review process, EPA will consider reviewer comments and recommendations, and public comments, to finalize the risk evaluation.

    Approximately one hour of the TSCA SACC's in-person meeting will be closed to the public for the TSCA SACC to consider and discuss material that has been claimed as CBI and provided to the Committee as background for the draft risk evaluation for PV29. In accordance with FACA section 10(d), and section (c)(4) of the Government in the Sunshine Act, 5 U.S.C. 552b, this approximately one-hour session of the TSCA SACC will be closed to the public to avoid the potential disclosure of CBI, which is protected from disclosure by statute. See the Administrator's determination for a closed meeting available in the docket identified by Docket ID No. EPA-HQ-OPPT-2018-0604 at http://www.regulations.gov.

    C. TSCA SACC Documents and Meeting Minutes

    EPA's background paper, related supporting materials, and draft charge/questions to the TSCA SACC are available on the TSCA SACC website and in docket. In addition, the Agency will provide additional background documents (e.g., a list of the SACC Members participating in this meeting and the meeting agenda) as those materials become available. You may obtain electronic copies of these documents, and certain other related documents that might be available at http://www.regulations.gov and the TSCA SACC website at https://www.epa.gov/tsca-peer-review.

    TSCA SACC will prepare meeting minutes and final report summarizing its recommendations to the Agency no later than 90 days after the meeting. The meeting minutes and final report will be posted on the TSCA SACC website and in the docket.

    Authority:

    15 U.S.C. 2625(o) et seq.; 5 U.S.C. Appendix 2 et seq.

    Dated: November 21, 2018. Stanley Barone, Jr., Acting Director, Office of Science Coordination and Policy.
    [FR Doc. 2018-26084 Filed 11-29-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OECA-2013-0352; FRL-9984-08-OEI] Information Collection Request Submitted To OMB for Review and Approval; Comment Request; NESHAP for Industrial, Commercial, and Institutional Boilers and Process Heaters (Renewal) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), NESHAP for Industrial, Commercial, and Institutional Boilers and Process Heaters (EPA ICR No. 2028.09, OMB Control No. 2060-0551), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through November 30, 2018. Public comments were previously requested, via the Federal Register, on June 29, 2017, during a 60-day comment period. This notice allows for an additional 30 days for public comments. A fuller description of the ICR is given below, including its estimated burden and cost to the public. An agency may neither conduct nor sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    DATES:

    Additional comments may be submitted on or before December 31, 2018.

    ADDRESSES:

    Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2014-0078, to: (1) EPA online using www.regulations.gov (our preferred method), or by email to [email protected], or by mail to: EPA Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460; and (2) OMB via email to [email protected] Address comments to OMB Desk Officer for EPA.

    EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI), or other information whose disclosure is restricted by statute.

    FOR FURTHER INFORMATION CONTACT:

    Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed either online at www.regulations.gov or in person at the EPA Docket Center, WJC West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The telephone number for the Docket Center is 202-566-1744. For additional information about EPA's public docket, visit: http://www.epa.gov/dockets.

    Abstract: The National Emission Standards for Hazardous Air Pollutants (NESHAP) for Industrial, Commercial, and Institutional Boilers and Process Heaters apply to existing and new industrial, commercial, and institutional boilers and process heaters located at major sources of HAP. In general, all NESHAP standards require initial notifications, performance tests, and periodic reports by the owners/operators of the affected facilities. They are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notifications, reports, and records are essential in determining compliance with 40 CFR part 63, DDDDD.

    Form Numbers: None.

    Respondents/affected entities: Industrial, commercial, and institutional boilers and process heaters.

    Respondent's obligation to respond: Mandatory (40 CFR 63, subpart DDDDD).

    Estimated number of respondents: 2,012 (total).

    Frequency of response: Initially, semi-annually, annually, biennially, and every five years.

    Total estimated burden: 597,000 hours (per year). Burden is defined at 5 CFR 1320.3(b).

    Total estimated cost: $196,000,000 (per year), which includes $131,000,000 in annualized capital/startup and/or operation & maintenance costs.

    Changes in the Estimates: There is an adjustment increase in the total estimated burden as currently identified in the OMB Inventory of Approved Burdens. This increase is not due to any program changes. The change in burden and cost estimates occurred because there is continued growth for certain subcategories of equipment subject to the standard. In addition, the standards have been in effect for more than three years and the requirements are different during initial compliance (new facilities) as compared to on-going compliance (existing facilities). The previous ICR reflected those burdens and costs associated with the initial activities for subject facilities and provided for the timeframe for existing facilities to come into compliance prior to January 31, 2016. This included purchasing monitoring equipment, conducting initial performance tests, and establishing recordkeeping systems. This ICR reflects the on-going burden and costs for existing facilities. Activities for existing sources include annual testing, continuous monitoring of pollutants, and the submission of semiannual, biennial, or five-year reports, as determined for each subcategory.

    There is an adjustment decrease in the number of responses as compared with the previous ICR. This decrease is a result of removing some of the one-time response requirements for existing sources that have already met the initial compliance requirements. There is an overall increase in the total capital/startup and annual operation and maintenance costs compared with the previous ICR. These changes assume all existing sources have met the initial requirements of the rule. In addition, there are a small number of new facilities that are in the initial compliance phase described above.

    Courtney Kerwin, Director, Regulatory Support Division.
    [FR Doc. 2018-26081 Filed 11-29-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [ER-FRL-9042-6] Environmental Impact Statements; Notice of Availability

    Responsible Agency: Office of Federal Activities, General Information 202-564-5632 or https://www.epa.gov/nepa/.

    Weekly receipt of Environmental Impact Statements Filed 11/19/2018 Through 11/23/2018 Pursuant to 40 CFR 1506.9.

    Notice: Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at: https://cdxnodengn.epa.gov/cdx-enepa-public/action/eis/search.

    EIS No. 20180284, Draft Supplement, USFS, MT, Stonewall Vegetation Project, Comment Period Ends: 01/14/2019, Contact: Laura Conway 406-791-7739. EIS No. 20180285, Draft, USFWS, WA, Skookumchuck Wind Energy Project Proposed Habitat Conservation Plan and Incidental Take Permit for Marbled Murrelet, Bald Eagle, and Golden Eagle, Lewis and Thurston Counties, Washington, Comment Period Ends: 01/14/2019, Contact: Tim Romanski 360-753-5823. EIS No. 20180286, Draft, BLM, ID, Caldwell Canyon Mine and Reclamation Plan, Comment Period Ends: 01/14/2019, Contact: Bill Volk 208-236-7503. EIS No. 20180287, Final, UDOT, UT, I-15, Payson Main Street Interchange, Review Period Ends: 12/31/2018, Contact: Naomi Kisen 801-965-4005. EIS No. 20180288, Final, OSM, MT, Western Energy Company's Rosebud Mine Area F, Review Period Ends: 12/31/2018, Contact: Logan Sholar 303-293-5036. EIS No. 20180289, Draft, USFS, AZ, Fossil Creek Wild and Scenic River Comprehensive River Management Plan, Comment Period Ends: 02/28/2019, Contact: Marcos Roybal 928-203-2915. EIS No. 20180290, Draft, BR, CA, Mendota Pool Group 20-Year Exchange Program, Comment Period Ends: 01/14/2019, Contact: Rain Emerson 559-262-0335. EIS No. 20180291, Draft, BLM, UT, The Sevier Playa Potash Project, Utah, Comment Period Ends: 01/14/2019, Contact: Clara Stevens 435-743-3119. Dated: November 27, 2018. Robert Tomiak, Director, Office of Federal Activities.
    [FR Doc. 2018-26074 Filed 11-29-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPP-2017-0720; FRL-9985-63] Registration Review; Draft Human Health and/or Ecological Risk Assessments for Several Pesticides; Notice of Availability AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    This notice announces the availability of EPA's draft human health and ecological risk assessments for the registration review of amitraz, bispyribac-sodium, bromoxynil, captan, chloropicrin, dazomet, diclosulam, florasulam, flucarbazone-sodium, fluroxypyr, formetanate, imazalil, imazamox, imazapic, imazaquin, imazethapyr, MCPA, metam sodium, metam potassium, methyl isothiocyanate (MITC), o-benzyl-p-chlorophenol, starlicide, tri-n butyl tetradecyl phosphonium chloride (TTPC), triphenyltin hydroxide (TPTH), and zinc salts. This notice also announces the availability of EPA's draft human health risk assessments for the registration review of para-dichlorobenzene and penoxsulam.

    DATES:

    Comments must be received on or before January 29, 2019.

    ADDRESSES:

    Submit your comments, to the docket identification (ID) number for the specific pesticide of interest provided in the Table in Unit IV, 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 Confidential Business Information (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, are available at http://www.epa.gov/dockets.
    FOR FURTHER INFORMATION CONTACT:

    For pesticide specific information contact: The Chemical Review Manager for the pesticide of interest identified in the Table in Unit IV.

    For general questions on the registration review program, contact: Dana Friedman, Pesticide Re-Evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (703) 347-8827; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

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

    This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, farm worker, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the Chemical Review Manager identified in the Table in Unit IV.

    B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

    3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

    II. Background

    Registration review is EPA's periodic review of pesticide registrations to ensure that each pesticide continues to satisfy the statutory standard for registration, that is, the pesticide can perform its intended function without unreasonable adverse effects on human health or the environment. As part of the registration review process, the Agency has completed comprehensive draft human health and/or ecological risk assessments for all pesticides listed in the Table in Unit IV. After reviewing comments received during the public comment period, EPA may issue a revised risk assessment, explain any changes to the draft risk assessment, and respond to comments and may request public input on risk mitigation before completing a proposed registration review decision for the pesticides listed in the Table in Unit IV. Through this program, EPA is ensuring that each pesticide's registration is based on current scientific and other knowledge, including its effects on human health and the environment.

    III. Authority

    EPA is conducting its registration review of the chemicals listed in the Table in Unit IV pursuant to section 3(g) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Procedural Regulations for Registration Review at 40 CFR part 155, subpart C. Section 3(g) of FIFRA provides, among other things, that the registrations of pesticides are to be reviewed every 15 years. Under FIFRA, a pesticide product may be registered or remain registered only if it meets the statutory standard for registration given in FIFRA section 3(c)(5) (7 U.S.C. 136a(c)(5)). When used in accordance with widespread and commonly recognized practice, the pesticide product must perform its intended function without unreasonable adverse effects on the environment; that is, without any unreasonable risk to man or the environment, or a human dietary risk from residues that result from the use of a pesticide in or on food.

    IV. What action is the Agency taking?

    Pursuant to 40 CFR 155.58, this notice announces the availability of EPA's human health and/or ecological risk assessments for the pesticides shown in the following table, and opens a 60-day public comment period on the risk assessments.

    Table—Draft Risk Assessments Being Made Available for Public Comment Registration review case name and No. Docket ID No. Chemical review manager and contact information Amitraz, Case 0234 EPA-HQ-OPP-2009-1015 Veronica Dutch, [email protected], 703-308-8585. Bispyribac-sodium, Case 7258 EPA-HQ-OPP-2014-0074 Moana Appleyard, [email protected], 703-308-8175. Bromoxynil, Case 2070 EPA-HQ-OPP-2012-0896 Michelle Nolan, [email protected], 703-347-0258. Captan, Case 0120 EPA-HQ-OPP-2013-0296 Christina Scheltema, [email protected], 703-308-2201. Chloropicrin, Case 0040 EPA-HQ-OPP-2013-0153 Lauren Bailey, [email protected], 703-347-0374. Dazomet, Case 2135 EPA-HQ-OPP-2013-0080 Katherine St. Clair, [email protected], 703-347-8778. Diclosulam, Case 7249 EPA-HQ-OPP-2015-0285 Susan Bartow, [email protected], 703-603-0065. Florasulam, Case 7274 EPA-HQ-OPP-2015-0548 Moana Appleyard, [email protected], 703-308-8175. Flucarbazone-sodium, Case 7251 EPA-HQ-OPP-2013-0283 Veronica Dutch, [email protected], 703-308-8585. Fluroxypyr, Case 7248 EPA-HQ-OPP-2014-0570 Caitlin Newcamp, [email protected], 703-347-0325. Formetanate HCl, Case 0091 EPA-HQ-OPP-2010-0939 Patricia Biggio, [email protected], 703-347-0547. Imazalil, Case 2325 EPA-HQ-OPP-2013-0305 Michelle Nolan, [email protected], 703-347-0258. Imazamox, Case 7238 EPA-HQ-OPP-2014-0395 Patricia Biggio, [email protected], 703-347-0547. Imazapic, Case 7234 EPA-HQ-OPP-2014-0279 Eric Fox, [email protected], 703-347-0104. Imazaquin, Case 7204 EPA-HQ-OPP-2014-0224 Matthew Manupella, [email protected], 703-347-0411. Imazethapyr, Case 7208 EPA-HQ-OPP-2013-0774 Katherine St. Clair, [email protected], 703-347-8778. MCPA, Case 0017 EPA-HQ-OPP-2014-0180 Julie Javier, [email protected], 703-347-0790. Metam Sodium and Metam Potassium, Case 2390 EPA-HQ-OPP-2013-0140 Leigh Rimmer, [email protected], 703-347-0553. Methyl isothiocyanate (MITC), Case 2405 EPA-HQ-OPP-2013-0242 Megan Snyderman, [email protected], 703-347-0671. o-Benzyl-p-Chlorophenol, Case 2045 EPA-HQ-OPP-2011-0423 Erin Dandridge, [email protected], 703-347-0185. para-Dichlorobenzene, Case 3058 EPA-HQ-OPP-2016-0117 Linsey Walsh, [email protected], 703-347-8030. Penoxsulam, Case 7265 EPA-HQ-OPP-2015-0303 Samantha Thomas, [email protected], 703-347-0514. Starlicide, Case 2610 EPA-HQ-OPP-2011-0696 Linsey Walsh, [email protected], 703-347-8030. Tri-n butyl tetradecyl phosphonium chloride (TTPC), Case 5111 EPA-HQ-OPP-2011-0952 Daniel Halpert, [email protected], 703-347-0133. Triphenyltin Hydroxide (TPTH), Case 0099 EPA-HQ-OPP-2012-0413 Katherine St. Clair, [email protected], 703-347-8778. Zinc and Zinc Salts, Case 4099 EPA-HQ-OPP-2009-0011 Kimberly Wilson, [email protected], 703-347-0495.

    Pursuant to 40 CFR 155.53(c), EPA is providing an opportunity, through this notice of availability, for interested parties to provide comments and input concerning the Agency's draft human health and/or ecological risk assessments for the pesticides listed in the Table in Unit IV. The Agency will consider all comments received during the public comment period and make changes, as appropriate, to a draft human health and/or ecological risk assessment. EPA may then issue a revised risk assessment, explain any changes to the draft risk assessment, and respond to comments.

    Information submission requirements. Anyone may submit data or information in response to this document. To be considered during a pesticide's registration review, the submitted data or information must meet the following requirements:

    • To ensure that EPA will consider data or information submitted, interested persons must submit the data or information during the comment period. The Agency may, at its discretion, consider data or information submitted at a later date.

    • The data or information submitted must be presented in a legible and useable form. For example, an English translation must accompany any material that is not in English and a written transcript must accompany any information submitted as an audiographic or videographic record. Written material may be submitted in paper or electronic form.

    • Submitters must clearly identify the source of any submitted data or information.

    • Submitters may request the Agency to reconsider data or information that the Agency rejected in a previous review. However, submitters must explain why they believe the Agency should reconsider the data or information in the pesticide's registration review.

    As provided in 40 CFR 155.58, the registration review docket for each pesticide case will remain publicly accessible through the duration of the registration review process; that is, until all actions required in the final decision on the registration review case have been completed.

    Authority:

    7 U.S.C. 136 et seq.

    Dated: October 25, 2018. Yu-Ting Guilaran, Director, Pesticide Re-Evaluation Division, Office of Pesticide Programs.
    [FR Doc. 2018-26086 Filed 11-29-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OECA-2014-0085; FRL-9974-64-OEI] Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Friction Materials Manufacturing (Renewal) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    The Environmental Protection Agency (EPA) has submitted an information collection request (ICR)—NESHAP for Friction Materials Manufacturing (EPA ICR Number 2025.07, OMB Control Number 2060-0481) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through August 31, 2018. Public comments were requested previously, via the Federal Register on June 29, 2017 during a 60-day comment period. This notice allows for an additional 30 days for public comments. A fuller description of the ICR is given below, including its estimated burden and cost to the public. An agency may neither conduct nor sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    DATES:

    Additional comments may be submitted on or before December 31, 2018.

    ADDRESSES:

    Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2014-0085, to: (1) EPA online using www.regulations.gov (our preferred method), or by email to [email protected], or by mail to: EPA Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460; and (2) OMB via email to [email protected] Address comments to OMB Desk Officer for EPA.

    EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

    FOR FURTHER INFORMATION CONTACT:

    Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at www.regulations.gov or in person at the EPA Docket Center, WJC West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The telephone number for the Docket Center is 202-566-1744. For additional information about EPA's public docket, visit: http://www.epa.gov/dockets.

    Abstract: Owners and operators of affected facilities are required to comply with reporting and record keeping requirements for the general provisions of 40 CFR part 63, subpart A, as well as the specific requirements at 40 CFR part 63, subpart QQQQQ. This includes submitting initial notifications, performance tests and periodic reports and results, and maintaining records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These reports are used by EPA to determine compliance with the standards.

    Form Numbers: None.

    Respondents/affected entities: Friction materials manufacturing facilities.

    Respondent's obligation to respond: Mandatory (40 CFR part 63, subpart QQQQQ).

    Estimated number of respondents: 2 (total).

    Frequency of response: Initially and semiannually.

    Total estimated burden: 659 hours (per year). Burden is defined at 5 CFR 1320.3(b).

    Total estimated cost: $69,700 (per year), which includes $544 in either annualized capital/start up and/or operation & maintenance costs.

    Changes in the estimates: There is an adjustment decrease in the total estimated burden as currently identified in the OMB Inventory of Approved Burdens. This decrease is not due to any program ch