Federal Register Vol. 83, No.58,

Federal Register Volume 83, Issue 58 (March 26, 2018)

Page Range12849-13095
FR Document

83_FR_58
Current View
Page and SubjectPDF
83 FR 12856 - ``Doors-off'' and ``Open-door'' Flight Prohibition: Emergency Restriction/Prohibition OrderPDF
83 FR 12939 - Notice of Public Meetings of the Hawaii Advisory CommitteePDF
83 FR 12942 - Initiation of 5-Year Review for the Endangered New York Bight, Chesapeake Bay, Carolina and South Atlantic Distinct Population Segments of Atlantic Sturgeon and the Threatened Gulf of Maine Distinct Population Segment of Atlantic Sturgeon; CorrectionPDF
83 FR 12960 - Agency Information Collection Activities: Native American Graves Protection and Repatriation RegulationsPDF
83 FR 12965 - New Postal ProductsPDF
83 FR 13006 - Proposed Collection of Information: Subscription for Purchase and Issue of U.S. Treasury Securities, State and Local Government SeriesPDF
83 FR 12939 - Notice of Public Meeting of the Oregon Advisory CommitteePDF
83 FR 12951 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
83 FR 12857 - Fisheries of the Northeastern United States; Northern Gulf of Maine Measures in Framework Adjustment 29 to the Atlantic Sea Scallop Fishery Management PlanPDF
83 FR 13001 - Larry Ferguson d/b/a Transouth Motorcoach, LLC-Acquisition of Control-C & H Bus Lines, Inc.PDF
83 FR 13090 - Pacific Halibut Fisheries; Catch Sharing PlanPDF
83 FR 13080 - Pacific Halibut Fisheries; Pacific Halibut Catch Limits for Area 2A Fisheries in 2018PDF
83 FR 12901 - Regulation of Premium CigarsPDF
83 FR 12952 - Evaluation of Bulk Drug Substances Nominated for Use in Compounding Under Section 503B of the Federal Food, Drug, and Cosmetic Act; Draft Guidance for Industry; AvailabilityPDF
83 FR 12943 - Proposed Information Collection; Comment Request; Deep Seabed Mining Exploration LicensesPDF
83 FR 12944 - Proposed Information Collection; Comment Request; StormReady, TsunamiReady, StormReady/TsunamiReady, and StormReady Supporter Application FormsPDF
83 FR 12950 - Information Collection; Combating Trafficking in PersonsPDF
83 FR 12949 - Information Collection; U.S.-Flag Air Carriers StatementPDF
83 FR 12954 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Regulations for In Vivo Radiopharmaceuticals Used for Diagnosis and MonitoringPDF
83 FR 12955 - Antimicrobial Drugs Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for CommentsPDF
83 FR 12947 - Records Governing Off-the-Record Communications; Public NoticePDF
83 FR 12946 - Combined Notice of Filings #1PDF
83 FR 12938 - Beginning Farmers and Ranchers Advisory CommitteePDF
83 FR 12959 - Endangered Species; Receipt of Permit ApplicationsPDF
83 FR 12944 - Commerce Spectrum Management Advisory Committee MeetingPDF
83 FR 12849 - Conforming Statutory Amendments and Technical Corrections to Small Business Government Contracting RegulationsPDF
83 FR 12943 - Pacific Bluefin Tuna Management Strategy Evaluation National Marine Fisheries Service Listening Sessions; Meeting AnnouncementPDF
83 FR 12982 - Self-Regulatory Organizations; Fixed Income Clearing Corporation; Order Approving Proposed Rule Change To Amend the By-LawsPDF
83 FR 12974 - Self-Regulatory Organizations; National Securities Clearing Corporation; Order Approving Proposed Rule Change To Amend the By-LawsPDF
83 FR 12945 - Agency Information Collection Activities; Comment Request; Higher Education Hurricane and Wildfire Relief Program ApplicationPDF
83 FR 12881 - Request for Information Regarding the Bureau's Inherited Regulations and Inherited Rulemaking AuthoritiesPDF
83 FR 12940 - National Cybersecurity Center of Excellence (NCCoE) Energy Sector Asset ManagementPDF
83 FR 12941 - NIST Smart Grid Advisory Committee MeetingPDF
83 FR 12986 - Self-Regulatory Organizations; National Securities Clearing Corporation; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Adopt a Recovery & Wind-Down Plan and Related RulesPDF
83 FR 12970 - Self-Regulatory Organizations; The Depository Trust Company; Order Approving Proposed Rule Change To Amend the By-LawsPDF
83 FR 12978 - Self-Regulatory Organizations; The Depository Trust Company; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Amend the Loss Allocation Rules and Make Other ChangesPDF
83 FR 12997 - Self-Regulatory Organizations; Fixed Income Clearing Corporation; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Adopt a Recovery & Wind-Down Plan and Related RulesPDF
83 FR 12999 - Self-Regulatory Organizations; The Depository Trust Company; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Adopt a Recovery & Wind-Down Plan and Related RulesPDF
83 FR 12966 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Order Granting Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To Permit the Listing and Trading of NQX Index Options on a Pilot BasisPDF
83 FR 12968 - Self-Regulatory Organizations; National Securities Clearing Corporation; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Amend the Loss Allocation Rules and Make Other ChangesPDF
83 FR 12990 - Self-Regulatory Organizations; Fixed Income Clearing Corporation; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Amend the Loss Allocation Rules and Make Other ChangesPDF
83 FR 12980 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Approving a Proposed Rule Change To Amend NYSE Arca Rule 1.1(ll) To Establish How the Official Closing Price Would Be Determined for an Exchange-Listed Security That Is a Derivative Securities Product if the Exchange Does Not Conduct a Closing Auction or if a Closing Auction Trade Is Less Than a Round LotPDF
83 FR 12992 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Order Approving a Proposed Rule Change, as Modified by Amendment No. 2, To List and Trade Shares of the LHA Market State® Tactical U.S. Equity ETF, a Series of the ETF Series Solutions, Under Rule 14.11(i), Managed Fund SharesPDF
83 FR 12988 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Transaction Fees at Rule 7018 To Charge No Transaction Fee for Execution of Midpoint Extended Life OrdersPDF
83 FR 12995 - Self-Regulatory Organizations; Cboe EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Expand an Offering Known as Cboe Connect To Provide Connectivity to Single-Dealer Platforms Connected to the Exchange's Network and To Propose a Per Share Executed Fee for Such ServicePDF
83 FR 12864 - Internet Communication Disclaimers and Definition of “Public Communication”PDF
83 FR 12948 - 2018 Spring Joint Meeting of the Ozone Transport Commission and the Mid-Atlantic Northeast Visibility UnionPDF
83 FR 12905 - Approval and Promulgation of Air Quality Implementation Plans; Maine; Infrastructure State Implementation Plan RequirementsPDF
83 FR 12917 - Approval of the Clean Air Act, Section 112(l), Authority for Hazardous Air Pollutants: Asbestos Management and Control; State of New Hampshire Department of Environmental ServicesPDF
83 FR 12964 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; General Provisions and Confined and Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment StandardsPDF
83 FR 12885 - Proposed Modification of Air Traffic Service (ATS) Route in the Vicinity of Newberry, MIPDF
83 FR 12963 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Workforce Flexibility (Workflex) Plan Submission and Reporting RequirementsPDF
83 FR 12948 - Formations of, Acquisitions by, and Mergers of Savings and Loan Holding CompaniesPDF
83 FR 12949 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
83 FR 12949 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
83 FR 12956 - Office of the Director; Notice of Charter RenewalPDF
83 FR 12956 - National Institute of Arthritis and Musculoskeletal and Skin Diseases; Notice to Close MeetingPDF
83 FR 12957 - National Heart, Lung, and Blood Institute; Amended Notice of MeetingsPDF
83 FR 12958 - Fogarty International Center; Notice of MeetingPDF
83 FR 12956 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 12958 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 12957 - Center for Scientific Review; Notice of Closed MeetingPDF
83 FR 12957 - Office of the Director, National Institutes of Health; Notice of MeetingPDF
83 FR 13002 - Sumitomo Rubber Industries, Ltd., Grant of Petition for Decision of Inconsequential NoncompliancePDF
83 FR 13005 - Gulf South/Boardwalk Pipeline Partners; Pipeline Safety: Request for Special PermitPDF
83 FR 13004 - Pipeline Safety: Information Collection ActivitiesPDF
83 FR 12962 - Hydrofluorocarbon Blends and Components From ChinaPDF
83 FR 12904 - Exposure of Underground Miners to Diesel ExhaustPDF
83 FR 12883 - Proposed Amendment of Air Traffic Service (ATS) Routes in the Vicinity of Mattoon and Charleston, ILPDF
83 FR 12887 - Proposed Amendment and Revocation of Air Traffic Service (ATS) Routes in the Vicinity of Manistique, MIPDF
83 FR 12933 - Request for Comments Concerning Federal Motor Carrier Safety Regulations (FMCSRs) Which May Be a Barrier to the Safe Testing and Deployment of Automated Driving Systems-Equipped Commercial Motor Vehicles on Public RoadsPDF
83 FR 12888 - Interstate and Intrastate Natural Gas Pipelines; Rate Changes Relating to Federal Income Tax RatePDF
83 FR 13008 - Transaction Fee Pilot for NMS StocksPDF
83 FR 12852 - Airworthiness Directives; Airbus AirplanesPDF
83 FR 12922 - Revise and Streamline VA Acquisition Regulation-Parts 811 and 832PDF

Issue

83 58 Monday, March 26, 2018 Contents Agriculture Agriculture Department See

Office of Advocacy and Outreach

Consumer Financial Protection Bureau of Consumer Financial Protection PROPOSED RULES Bureau's Inherited Regulations and Inherited Rulemaking Authorities, 12881-12883 2018-06027 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 12951-12952 2018-06052 Civil Rights Civil Rights Commission NOTICES Meetings: Hawaii Advisory Committee, 12939 2018-06058 Oregon Advisory Committee, 12939-12940 2018-06053 Commerce Commerce Department See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

See

National Telecommunications and Information Administration

Defense Department Defense Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Combating Trafficking in Persons, 12950-12951 2018-06043 U.S.-Flag Air Carriers Statement, 12949-12950 2018-06042 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Higher Education Hurricane and Wildfire Relief Program Application, 12945-12946 2018-06028 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Maine; Infrastructure State Implementation Plan Requirements, 12905-12917 2018-06006 Approval of the Clean Air Act, Section 112(l), Authority for Hazardous Air Pollutants: Asbestos Management and Control; State of New Hampshire Department of Environmental Services, 12917-12922 2018-06005 NOTICES Meetings: Ozone Transport Commission and Mid-Atlantic Northeast Visibility Union; 2018 Spring Joint Meeting, 12948 2018-06007 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 12852-12856 2018-05013 Emergency Restrictions, Prohibition Orders: Doors-off and Open-door Flight Prohibition, 12856-12857 2018-06096 PROPOSED RULES Amendment and Revocation of Air Traffic Service (ATS) Routes: Vicinity of Manistique, MI, 12887-12888 2018-05973 Amendment of Air Traffic Service (ATS) Routes: Vicinity of Mattoon and Charleston, IL, 12883-12885 2018-05974 Modification of Air Traffic Service (ATS) Route: Vicinity of Newberry, MI, 12885-12887 2018-06003 Federal Election Federal Election Commission PROPOSED RULES Internet Communication Disclaimers and Definition of Public Communication, 12864-12881 2018-06010 Federal Energy Federal Energy Regulatory Commission PROPOSED RULES Natural Gas Pipelines: Interstate and Intrastate Natural Gas Pipelines; Rate Changes Relating to Federal Income Tax Rate, 12888-12901 2018-05669 NOTICES Combined Filings, 12946-12947 2018-06038 Records Governing Off-the-Record Communications, 12947-12948 2018-06039 Federal Motor Federal Motor Carrier Safety Administration PROPOSED RULES Federal Motor Carrier Safety Regulations which may be Barrier to Safe Testing and Deployment of Automated Driving Systems-Equipped Commercial Motor Vehicles on Public Roads, 12933-12937 2018-05788 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 12949 2018-05995 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 12948-12949 2018-05996 2018-05997 Fiscal Fiscal Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Subscription for Purchase and Issue of U.S. Treasury Securities, State and Local Government Series, 13006 2018-06054 Fish Fish and Wildlife Service NOTICES Endangered and Threatened Species: Permit Applications, 12959-12960 2018-06036 Food and Drug Food and Drug Administration PROPOSED RULES Premium Cigars, 12901-12904 2018-06047 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Regulations for In Vivo Radiopharmaceuticals Used for Diagnosis and Monitoring, 12954 2018-06041 Guidance: Evaluation of Bulk Drug Substances Nominated for Use in Compounding under Section 503B of Federal Food, Drug, and Cosmetic Act, 12952-12953 2018-06046 Meetings: Antimicrobial Drugs Advisory Committee; Establishment of Public Docket; Request for Comments, 12955-12956 2018-06040 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Combating Trafficking in Persons, 12950-12951 2018-06043 U.S.-Flag Air Carriers Statement, 12949-12950 2018-06042 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

National Institutes of Health

Interior Interior Department See

Fish and Wildlife Service

See

National Park Service

International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Hydrofluorocarbon Blends and Components from China, 12962-12963 2018-05979 Labor Department Labor Department See

Mine Safety and Health Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: General Provisions and Confined and Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment Standards, 12964-12965 2018-06004 Workforce Flexibility (Workflex) Plan Submission and Reporting Requirements, 12963-12964 2018-05998
Mine Mine Safety and Health Administration PROPOSED RULES Exposure of Underground Miners to Diesel Exhaust, 12904-12905 2018-05978 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Combating Trafficking in Persons, 12950-12951 2018-06043 U.S.-Flag Air Carriers Statement, 12949-12950 2018-06042 National Highway National Highway Traffic Safety Administration NOTICES Petitions for Decisions of Inconsequential Noncompliance: Sumitomo Rubber Industries, Ltd., 13002-13004 2018-05983 National Institute National Institute of Standards and Technology NOTICES Meetings: Smart Grid Advisory Committee, 12941-12942 2018-06023 National Cybersecurity Center of Excellence Energy Sector Asset Management, 12940-12941 2018-06024 National Institute National Institutes of Health NOTICES Charter Renewals: National Science Advisory Board for Biosecurity, 12956 2018-05992 Meetings: Center for Scientific Review, 12956-12958 2018-05985 2018-05986 2018-05987 2018-05988 Fogarty International Center, 12958-12959 2018-05989 National Heart, Lung, and Blood Institute, 12957 2018-05990 National Institute of Arthritis and Musculoskeletal and Skin Diseases, 12956 2018-05991 Office of the Director, 12957 2018-05984 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Northeastern United States: Northern Gulf of Maine Measures in Framework Adjustment 29 to Atlantic Sea Scallop Fishery Management Plan, 12857-12863 2018-06051 Pacific Halibut Fisheries: Catch Sharing Plan, 13090-13095 2018-06049 Pacific Halibut Catch Limits for Area 2A Fisheries in 2018, 13080-13087 2018-06048 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Deep Seabed Mining Exploration Licenses, 12943-12944 2018-06045 StormReady, TsunamiReady, StormReady/TsunamiReady, and StormReady Supporter Application Forms, 12944 2018-06044 Endangered and Threatened Species: Initiation of 5-Year Review for Endangered New York Bight, Chesapeake Bay, Carolina and South Atlantic Distinct Population Segments of Atlantic Sturgeon and Threatened Gulf of Maine Distinct Population Segment of Atlantic Sturgeon; Correction, 12942 2018-06057 Meetings: Pacific Bluefin Tuna Management Strategy Evaluation National Marine Fisheries Service Listening Sessions, 12943 2018-06032 National Park National Park Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Native American Graves Protection and Repatriation Regulations, 12960-12962 2018-06056 National Telecommunications National Telecommunications and Information Administration NOTICES Meetings: Commerce Spectrum Management Advisory Committee, 12944-12945 2018-06035 Advocacy Outreach Office of Advocacy and Outreach NOTICES Meetings: Beginning Farmers and Ranchers Advisory Committee, 12938-12939 2018-06037 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Pipeline Safety, 13004-13005 2018-05981 Pipeline Safety: Request for Special Permit; Gulf South/Boardwalk Pipeline Partners, 13005-13006 2018-05982 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 12965-12966 2018-06055 Securities Securities and Exchange Commission PROPOSED RULES Transaction Fee Pilot for National Market System Stocks, 13008-13078 2018-05545 NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Cboe BZX Exchange, Inc., 12992-12995 2018-06013 Cboe EDGA Exchange, Inc., 12995-12997 2018-06011 Depository Trust Co., 12970-12974, 12978-12980, 12999-13001 2018-06018 2018-06020 2018-06021 Fixed Income Clearing Corp., 12982-12986, 12990-12992, 12997-12999 2018-06015 2018-06019 2018-06031 Nasdaq ISE, LLC, 12966-12968 2018-06017 Nasdaq Stock Market, LLC, 12988-12990 2018-06012 National Securities Clearing Corp., 12968-12970, 12974-12978, 12986-12988 2018-06016 2018-06022 2018-06030 NYSE Arca, Inc., 12980-12982 2018-06014 Small Business Small Business Administration RULES Conforming Statutory Amendments and Technical Corrections to Small Business Government Contracting Regulations, 12849-12852 2018-06033 Surface Transportation Surface Transportation Board NOTICES Acquisitions of Control: Larry Ferguson d/b/a Transouth Motorcoach, LLC; C and H Bus Lines, Inc., 13001-13002 2018-06050 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department See

Fiscal Service

Veteran Affairs Veterans Affairs Department PROPOSED RULES Acquisition Regulations: Revising and Streamlining, 12922-12933 2018-04002 Separate Parts In This Issue Part II Securities and Exchange Commission, 13008-13078 2018-05545 Part III Commerce Department, National Oceanic and Atmospheric Administration, 13080-13087 2018-06048 Part IV Commerce Department, National Oceanic and Atmospheric Administration, 13090-13095 2018-06049 Reader Aids

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

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83 58 Monday, March 26, 2018 Rules and Regulations SMALL BUSINESS ADMINISTRATION 13 CFR Parts 121, 125, 126, and 127 RIN 3245-AH02 Conforming Statutory Amendments and Technical Corrections to Small Business Government Contracting Regulations AGENCY:

U.S. Small Business Administration.

ACTION:

Direct final rule; request for comments.

SUMMARY:

The U.S. Small Business Administration (SBA or Agency) is amending its regulations to incorporate a provision of the National Defense Authorization Act of 2018 (NDAA 2018) and to update and provide several technical corrections to SBA's regulations. Specifically, the NDAA 2018 amended the Small Business Act by replacing fixed dollar amount thresholds with references to the micro-purchase and simplified acquisition thresholds. SBA is updating its regulations to conform to this new statutory language. SBA is also updating the sole source dollar amounts for the Service-Disabled Veteran-Owned (SDVO) small business and the Historically Underutilized Business Zone (HUBZone) small business regulations. The thresholds for sole source contracting are contained in the Small Business Act, SBA's regulations, and the Federal Acquisition Regulations (FAR). These thresholds are updated in the FAR for inflation periodically, and therefore, over time, SBA's regulations and the FAR's numbers diverge. SBA is making this change to conform the thresholds contained in SBA's regulations to those in the FAR. This rule also allows indirect ownership by United States citizens in the HUBZone program to more accurately align with the underlying statutory authority. Finally, SBA is making several technical changes to address mistakes and typos made in previous rulemakings. For example, this final rule will update some cross-references that were not updated when a previous rulemaking changed numbering. Other changes made are for errors, grammar, syntax, and clarity.

DATES:

This rule is effective on May 25, 2018 without further action, unless significant adverse comment is received by April 25, 2018. If significant adverse comment is received, SBA will publish a timely withdrawal of the rule in the Federal Register.

ADDRESSES:

You may submit comments, identified by RIN 3245-AH02, by any of the following methods:

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

Mail, for paper, disk, or CD-ROM submissions: Kenneth Dodds, Director, Office of Procurement Policy and Liaison, 409 Third Street SW, Washington, DC 20416.

Hand Delivery/Courier: Kenneth Dodds, Director, Office of Procurement Policy and Liaison, 409 Third Street SW, Washington, DC 20416.

SBA will post all comments on www.regulations.gov. If you wish to submit confidential business information (CBI) as defined in the User Notice at www.Regulations.gov, please submit the information to Brenda Fernandez, Office of Procurement Policy and Liaison, 409 Third Street SW, Washington, DC 20416, or send an email to [email protected].gov. Highlight the information that you consider CBI and explain why you believe SBA should hold this information as confidential. SBA will review the information and make the final determination of whether it will publish the information or not.

FOR FURTHER INFORMATION CONTACT:

Brenda Fernandez, Office of Procurement Policy and Liaison, 409 Third Street SW, Washington, DC 20416, 202-205-7337, [email protected].

SUPPLEMENTARY INFORMATION:

On December 12, 2017, President Trump signed into law the National Defense Authorization Act for Fiscal Year 2018 (NDAA 2018), Public Law 115-91, 131 Stat. 1283. Section 1702 of NDAA 2018 amended section 15(j)(1) of the Small Business Act, 15 U.S.C. 644(j)(1), by removing the $2,500 and $100,000 thresholds found in the Small Business Act and replacing them with references to the micro-purchase threshold and the simplified acquisition threshold, respectively. The Small Business Act previously required competition reserved exclusively for small business concerns for procurements with values falling between $2,500 and $100,000 (adjusted for inflation in regulations to $150,000). SBA also uses dollar value thresholds for the application of the limitations on subcontracting requirements and nonmanufacturer rule to small business set-asides. This direct final rule merely adopts the statutory change by replacing the dollar thresholds with references to the micro-purchase and simplified acquisition thresholds in an identical way that the Small Business Act was amended.

SBA is also updating the sole source dollar amounts for the Service-Disabled Veteran-Owned (SDVO) small business and the Historically Underutilized Business Zone (HUBZone) small business regulations. The thresholds for sole source contracting are contained in the Small Business Act, SBA's regulations (Title 13 of the Code of Federal Regulations), and the Federal Acquisition Regulations (FAR) (Title 48 of the Code of Federal Regulations). These thresholds are updated in the FAR for inflation periodically, and therefore over time, SBA's regulations and the FAR's numbers diverge. The dollar thresholds set forth in the FAR below which contracts may be awarded on a sole source basis, as adjusted for inflation, are as follows: For the 8(a) Business Development (BD) program (FAR 19.805-1), $7 million, including options, for contracts assigned a manufacturing North American Industrial Classification System (NAICS) code, and $4 million, including options, for all other contracts; for the SDVO small business program (FAR 19.1406) and Women-Owned Small Business (WOSB) program (FAR 19.1506), $6.5 million, including options, for contracts assigned a manufacturing NAICS code, and $4 million, including options, for all other contracts; and for the HUBZone program (FAR 19.1306), $7 million, including options, for contracts assigned a manufacturing NAICS code, and $4 million, including options, for all other contracts. SBA's regulations for the 8(a) BD and WOSB programs have previously been updated in 13 CFR 124.506(a)(2) and 127.503(c)(2), respectively, to synchronize those programs with the inflation adjustments made by the FAR. The sole source thresholds for the SDVO and HUBZone programs have not been similarly updated. This direct final rule merely incorporates the inflation adjustments made by the FAR for the SDVO and HUBZone programs into SBA's regulations.

The rule also amends the HUBZone regulations to allow indirect ownership by United States citizens to more accurately align with the underlying statutory authority. Direct ownership is not statutorily mandated, and SBA believes that the purposes of the HUBZone program—capital infusion in underutilized geographic areas and employment of individuals living in those areas—may be achieved whether ownership by U.S. citizens is direct or indirect. The regulations first implementing the HUBZone program were largely based on those governing the Small Disadvantaged Business (SDB) program, which is no longer in existence and which served different goals than the HUBZone program. The SDB program and SBA's other currently active socioeconomic programs (including the 8(a) BD program, the WOSB small business program, and the SDVO small business program) are intended to assist the business development of small concerns owned and controlled by certain individuals, so requiring direct ownership for these programs is consistent with their purposes. The HUBZone program differs in that the program's goals do not center on the socioeconomic status of the SBC owner but rather the location of the business and the residence of its employees. This direct final rule deletes the requirement that ownership by United States citizens in the HUBZone program must be direct, and instead it merely copies the statutory requirement that a HUBZone small business concern must be at least 51% owned and controlled by United States citizens.

Finally, SBA is making several technical changes to address mistakes and typos made in previous rulemakings. For example, this final rule will update some cross-references that were not updated when a previous rulemaking changed numbering.

Section by Section Analysis Section 121.103(h)(3)(ii)

This section deals with exceptions to SBA's general affiliations rule for joint ventures. Specifically, the exception in subparagraph (ii) is for joint ventures participating in SBA's mentor protégé program. The rule is intended to classify a joint venture between a small business and its SBA-approved mentor as small, as long as the protégé qualifies as small for the size standard corresponding to the NAICS code assigned to the contract and meets SBA's general joint venture requirements for the type of contract at issue. In other words, the joint venture can qualify as small for any contract (8(a), small business set aside, WOSB, SDVO, or HUBZone) provided it meets SBA's joint venture rules for the type of contract to be performed. However, the current regulation is missing cross-references to the joint venture requirements for 8(a) contracts and small business set asides. These cross-references were inadvertently left out. This change merely fixes that error.

Sections 121.404(g), 125.18(e)(1), 126.601(h)(1), and 127.503(h)(1)

SBA is making a technical correction to these sections. The paragraphs in question deal with the identical issue, recertification of size and/or status. The language and intent of each regulation is the same; the only difference is that each section deals with a separate socio-economic contracting program. It has been brought to SBA's attention that as drafted, it is not clear which sentence or clause the final sentence is referencing. It was SBA's intent, as made clear in the proposed and final rule enacting this regulation, entitled Acquisition Process: Task and Delivery Order Contracts, Bundling, Consolidation, 78 FR 61114 (Oct. 2, 2013), that SBA wanted the sentence and the referenced exceptions to be applied to the entirety of the preceding paragraph. 78 FR 61114, 61119-20 (Oct. 2, 2013). Therefore, SBA is adding additional language to clearly align the paragraph to the intent of the regulation. This rule is not intended to make any substantive change to the paragraphs. SBA is also changing the heading to § 126.601(h), the recertification paragraph for the HUBZone program, in order to make it identical to the recertification paragraphs relating to the other programs. There is no intended difference regarding recertification between the programs, so there is no need for the additional language in the HUBZone paragraph after the word recertification.

Section 121.406(a)

SBA is making a correction to paragraph (a) of this section in order to correct a missing word. With reference to the clause dealing with SDVO SBC contracting, SBA left out the modifier “sole” before “source contract” in the final rule enacting this regulation, entitled Small Business Government Contracting and National Defense Authorization Act of 2013 Amendments, 81 FR 34243, 34259 (May 31, 2016).

Section 121.406(d)

SBA is making a change to paragraph (d) of this section. This change removes the dollar value thresholds and replaces them with references to the micro-purchase and simplified acquisition thresholds, respectively. As explained above, the NDAA 2018 modified the Small Business Act by changing the dollar thresholds to references to the micro-purchase threshold and the simplified acquisition threshold. This direct final rule merely conforms the regulation to the statutory changes made by the NDAA 2018.

Section 125.3

This change removes the term “$150,000” in paragraphs (c)(1)(viii) and (ix) and replaces it with a reference to the simplified acquisition threshold. As explained above, the NDAA 2018 modified the Small Business Act by changing the dollar thresholds to references to the micro-purchase threshold and the simplified acquisition threshold. Thus, this direct final rule merely conforms the regulation to the statutory changes made by the NDAA 2018 and does not make any substantive change to the regulations.

Section 125.6

This change removes the dollar value thresholds and replaces them with references to the micro-purchase and simplified acquisition thresholds, respectively. As explained above, the NDAA 2018 modified the Small Business Act by changing the dollar thresholds to references to the micro-purchase threshold and the simplified acquisition threshold. Thus, this direct final rule merely conforms the regulation to the statutory changes made by the NDAA 2018 and does not make any substantive change to the regulations.

Sections 125.22 and 125.23

This direct final rule changes §§ 125.22 and 125.23 to correct cross-reference citations that were not updated when SBA renumbered its regulations. SBA is also amending the values authorized for SDVO small business sole source awards in order to be consistent with the current values set forth in FAR 19.1406, as adjusted for inflation.

Section 126.200(b)(1)

As set forth above in more detail, this rule deletes the requirement that ownership by United States citizens in the HUBZone program must be direct, and instead it merely copies the statutory requirement that a HUBZone small business concern must be at least 51% owned and controlled by United States citizens.

Section 126.612(b)(1) and (2)

SBA is amending these paragraphs to update the values authorized for HUBZone sole source awards in order to be consistent with the current values set forth in FAR 19.1306, as adjusted for inflation.

Section 126.616(d)(2)

SBA is amending this paragraph by replacing the word protégé with the term SBC. The inclusion of the word protégé was a mistake. The mistake could be interpreted to mean the availability of the benefits of this provision were available only to HUBZone SBCs partaking in the SBA's mentor-protégé program. However, the clear intent of the final rule entitled “Small Business Mentor Protégé Programs, 81 FR 48557 (July 25, 2016), was for the joint venture benefits to be available to all certified HUBZone SBCs. In this regard, the supplementary information to the Small Business Mentor Protégé Programs rule, in which this provision was adopted, provided that “the final rule revises the joint venture provisions contained in § 125.15(b) (for SDVO SBCs, which are now contained in § 125.18(b)), § 126.616 (for HUBZone SBCs), and § 127.506 (for WOSB and Economically Disadvantaged Women-Owned Small Business (EDWOSB) concerns) to more fully align those requirements to the requirements of the 8(a) BD program.” 81 FR 48557, 48558, 48559 (July 25, 2016) (Emphasis added). This direct final rule merely conforms the HUBZone regulatory language to that of the other programs, something that was specifically intended in the original regulatory authority.

Compliance With Executive Orders 12866, 12988, 13132, and 13771, the Paperwork Reduction Act (44 U.S.C. Ch. 35) and the Regulatory Flexibility Act (5 U.S.C. 601-612) Executive Order 12866

The Office of Management and Budget (OMB) has determined that this direct final rule does not constitute a significant regulatory action under Executive Order 12866. This rule is also not a major rule under the Congressional Review Act, 5 U.S.C. 800.

Executive Order 12988

This action meets applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.

Executive Order 13132

For the purposes of Executive Order 13132, SBA has determined that this direct final rule will not have substantial, direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, for the purpose of Executive Order 13132, Federalism, SBA has determined that this direct final rule has no federalism implications warranting preparation of a Federalism assessment.

Executive Order 13771

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

Paperwork Reduction Act, 44 U.S.C., Ch. 35

SBA has determined that this direct final rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

Regulatory Flexibility Act, 5 U.S.C. 601-612

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, requires administrative agencies to consider the effect of their actions on small entities, small non-profit enterprises, and small local governments. Pursuant to the RFA, when an agency issues a rulemaking, the agency must prepare a regulatory flexibility analysis, which describes the impact of the rule on small entities. However, section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. Within the meaning of RFA, SBA certifies that this direct final rule will not have a significant economic impact on a substantial number of small entities.

List of Subjects 13 CFR Part 121

Government procurement, Government property, Grant programs—business, Individuals with disabilities, Loan programs—business, Small businesses.

13 CFR Part 125

Government contracts, Government procurement, Reporting and recordkeeping requirements, Small businesses, Technical assistance.

13 CFR Part 126

Administrative practice and procedure, Government procurement, Penalties, Reporting and recordkeeping requirements, Small businesses.

13 CFR Part 127

Government contracts, Reporting and recordkeeping requirements, Small businesses.

Accordingly, for the reasons stated in the preamble, SBA amends 13 CFR parts 121, 125, 126, and 127 as follows:

PART 121—SMALL BUSINESS SIZE REGULATIONS 1. The authority citation for part 121 continues to read as follows: Authority:

15 U.S.C. 632, 634(b)(6), 662 and 694a(9).

2. Amend § 121.103 by revising paragraph (h)(3)(ii) to read as follows:
§ 121.103 How does SBA determine affiliation?

(h) * * *

(3) * * *

(ii) Two firms approved by SBA to be a mentor and protégé under § 125.9 of this chapter may joint venture as a small business for any Federal government prime contract or subcontract, provided the protégé qualifies as small for the size standard corresponding to the NAICS code assigned to the procurement, and the joint venture meets the requirements of §§ 124.513 (c) and (d), §§ 125.8(b) and (c), §§ 125.18(b)(2) and (3), §§ 126.616(c) and (d), or §§ 127.506(c) and (d) of this chapter, as appropriate.

3. Amend § 121.404 by revising the last sentence of the introductory text of paragraph (g) to read as follows:
§ 121.404 When is the size status of a business concern determined?

(g) * * * However, the following exceptions apply to this paragraph (g):

4. Amend § 121.406 by: a. Adding the word “sole” after the words “veteran-owned small business set-aside or” and before the words “source contract,” in paragraph (a); and b. Revising paragraph (d) to read as follows:
§ 121.406 How does a small business concern qualify to provide manufactured products or other supply items under a small business set-aside, service-disabled veteran-owned small business, HUBZone, WOSB or EDWOSB, or 8(a) contract?

(d) The performance requirements (limitations on subcontracting) and the nonmanufacturer rule do not apply to small business set-aside acquisitions with an estimated value between the micro-purchase threshold and the simplified acquisition threshold (as both terms are defined in the FAR at 48 CFR 2.101).

PART 125—GOVERNMENT CONTRACTING PROGRAMS 5. The authority citation for part 125 continues to read as follows: Authority:

15 U.S.C. 632(p), (q); 634(b)(6); 637; 644; 657f; 657r.

§ 125.3 [Amended]
6. Amend § 125.3 by removing the term “$150,000” and adding in its place the phrase “the simplified acquisition threshold (as defined in the FAR at 48 CFR 2.101)” in paragraphs (c)(1)(viii) and (ix). 7. Amend § 125.6 by: a. Removing the term “$150,000” and adding in its place the phrase “the simplified acquisition threshold (as defined in the FAR at 48 CFR 2.101)” in paragraph (a) introductory text; and b. Revising paragraph (f)(1) to read as follows:
§ 125.6 What are the prime contractor's limitations on subcontracting?

(f) * * *

(1) Small business set-aside contracts with a value that is greater than the micro-purchase threshold but less than or equal to the simplified acquisition threshold (as both terms are defined in the FAR at 48 CFR 2.101); or

8. Amend § 125.18 by revising the last sentence of paragraph (e)(1) to read as follows:
§ 125.18 What requirements must an SDVO SBC meet to submit an offer on a contract?

(e) * * * (1) * * * However, the following exceptions apply to this paragraph (e)(1):

9. Amend § 125.22 by revising paragraph (a) to read as follows:
§ 125.22 When may a contracting officer set-aside a procurement for SDVO SBCs?

(a) The contracting officer first must review a requirement to determine whether it is excluded from SDVO contracting pursuant to § 125.21.

10. Amend § 125.23 by revising paragraphs (a), and (b)(1) and (2) to read as follows:
§ 125.23 When may a contracting officer award sole source contracts to SDVO SBCs?

(a) None of the provisions of §§ 125.21 or 125.22 apply;

(b) * * *

(1) $6,500,000 for a contract assigned a manufacturing NAICS code, or

(2) $4,000,000 for all other contracts;

PART 126—HUBZONE PROGRAM 11. The authority citation for part 126 continues to read as follows: Authority:

15 U.S.C. 632(a), 632(j), 632(p), 644, and 657a.

§ 126.200 [Amended]
12. Amend § 126.200 by removing the words “unconditionally and directly” in paragraph (b)(1)(i). 13. Amend § 126.601 by revising the heading of paragraph (h) and the last sentence of the introductory text of paragraph (h)(1) to read as follows:
§ 126.601 What additional requirements must a qualified HUBZone SBC meet to bid on a contract?

(h) Recertification. (1) * * * However, the following exceptions apply to this paragraph (h)(1):

14. Amend § 126.612 by revising paragraphs (b)(1) and (2) to read as follows:
§ 126.612 When may a CO award sole source contracts to qualified HUBZone SBCs?

(b) * * *

(1) $7,000,000 for a contract assigned a manufacturing NAICS code, or

(2) $4,000,000 for all other contracts.

§ 126.616 [Amended]
15. Amend § 126.616 by removing the words “HUBZone protégé” and adding in their place the words “HUBZone SBC” in paragraph (d)(2). PART 127—WOMEN-OWNED SMALL BUSINESS FEDERAL CONTRACT PROGRAM 16. The authority citation for part 127 continues to read as follows: Authority:

15 U.S.C. 632, 634(b)(6), 637(m), 644 and 657r.

17. Amend § 127.503 by revising the last sentence of the introductory text of paragraph (h)(1) to read as follows:
§ 127.503 When is a contracting officer authorized to restrict competition or award a sole source contract or order under this part?

(h) * * *

(1) * * * However, the following exceptions apply to this paragraph (h)(1):

Dated: March 19, 2018. Linda E. McMahon, Administrator.
[FR Doc. 2018-06033 Filed 3-23-18; 8:45 am] BILLING CODE 8025-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-1096; Product Identifier 2017-NM-072-AD; Amendment 39-19221; AD 2018-06-01] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Airbus Model A318, A319, A320, and A321 series airplanes; all Model A330-200 Freighter, -200, and -300 series airplanes; and all Model A340-200, -300, -500, and -600 series airplanes. This AD was prompted by reports of false traffic collision avoidance system (TCAS) resolution advisories. This AD requires modifying the software in the TCAS computer processor or replacing the TCAS computer with a new TCAS computer. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective April 30, 2018.

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

ADDRESSES:

For service information identified in this final rule, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1096.

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-2017-1096; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION: Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Model A318, A319, A320, and A321 series airplanes; all Model A330-200 Freighter, -200, and -300 series airplanes; and all Model A340-200, -300, -500, and -600 series airplanes. The NPRM published in the Federal Register on November 30, 2017 (82 FR 56749) (“the NPRM”). The NPRM was prompted by reports of false TCAS resolution advisories. The NPRM proposed to require modifying the software in the TCAS computer processor or replacing the TCAS computer with a new TCAS computer. We are issuing this AD to prevent false TCAS resolution advisories. False TCAS resolution advisories could lead to a loss of separation with other airplanes, possibly resulting in a mid-air collision.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017-0091R2, dated June 2, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A318, A319, A320, and A321 series airplanes; all Model A330-200 Freighter, -200, and -300 series airplanes; and all Model A340-200, -300, -500, and -600 series airplanes. The MCAI states:

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

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

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

Prompted by these latest findings, and after review of the available information, EASA reassessed the severity and rate of occurrence of false RAs and has decided that mandatory action must be taken to reduce the rate of occurrence, and the risk of loss of separation with other aeroplanes.

Honeywell International Inc. published Service Bulletin (SB) 940-0351-34-0005 [Publication Number D201611000002] to provide instructions for an upgrade of TPA-100B processors P/N 940-0351-001 to P/N 940-0351-005, introducing software version 05/01.

Consequently, Airbus developed certain modifications (mod 159658 and mod 206608) and published SB A32034-1656, SB A320-34-1657, SB A330-34-3342, SB A340-34-4304 and SB A340-34-5118, to provide instructions for in-service introduction of the software update (including change to P/N 940-0351-005) on the affected aeroplanes, or to replace the TCAS processor with a P/N 940-0351-005 unit.

Consequently, EASA issued AD 2017-0091, to require modification or replacement of Honeywell TPA-100B TCAS P/N 940-0351-001 processors, hereafter referred to as `affected processor' in this [EASA] AD. That [EASA] AD also prohibits installation of an affected processor on post-mod aeroplanes.

After that [EASA] AD was issued, it was found that an error had been introduced, inadvertently restricting the required action to those aeroplanes that had the affected part installed on the Airbus production line, thereby excluding those that had the part installed in-service by Airbus SB. Consequently, EASA revised AD 2017-0091 to amend Note 1 and include references to the relevant Airbus SBs that introduced the affected processor in service.

Since EASA AD 2017-0091R1 was issued, prompted by operator feedback and to avoid confusion, it was decided to exclude aeroplanes that had an affected processor installed by STC, for which EASA AD No.: 2017-0091R2 separate [EASA] AD action is planned. It was also determined that the prohibition to install an affected processor was too strict, particularly for Group 2 aeroplanes.

For the reason described above, this [EASA] AD is revised to reduce the Applicability, introduce some minor editorial changes and to amend paragraph (3).

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-2017-1096.

Comments

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

Supportive Comment

The Air Line Pilots Association, International supported the NPRM.

Request To Refer to Revised Service Information

Airbus requested that the NPRM be updated to reference the current revision level of certain service information. Airbus noted that four of the service bulletins referred to in the NPRM were revised.

We agree with the commenter's request. We have updated the preamble and paragraph (i) of this AD to refer to the revised service information. Because the revised service information does not include any additional actions, we have added paragraph (l) to this AD to provide credit for actions accomplished prior to the effective date of this AD using the applicable Airbus service bulletin identified in paragraphs (l)(1) through (l)(4) of this AD. We have redesignated subsequent paragraphs accordingly.

Conclusion

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

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

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

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

Related Service Information Under 1 CFR Part 51

Airbus has issued the following service information, which describes procedures for modifying the software in the TCAS computer processor and procedures for replacing the TCAS computer with a new TCAS computer. These documents are distinct since they apply to different airplane models in different configurations.

• Airbus Service Bulletin A320-34-1656, Revision 01, dated September 6, 2017.

• Airbus Service Bulletin A320-34-1657, Revision 01, dated September 6, 2017.

• Airbus Service Bulletin A330-34-3342, Revision 01, dated November 13, 2017.

• Airbus Service Bulletin A340-34-4304, dated April 19, 2017.

• Airbus Service Bulletin A340-34-5118, Revision 01, dated September 12, 2017.

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 205 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
    Software modification 2 work-hours × $85 per hour = $170 $0 $170 $34,850 TCAS replacement 2 work-hours × $85 per hour = $170 298 468 95,940
    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 to the Director of the System Oversight Division.

    Regulatory Findings

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

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

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

    2. Is not a “significant rule” under 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): 2018-06-01 Airbus: Amendment 39-19221; Docket No. FAA-2017-1096; Product Identifier 2017-NM-072-AD. (a) Effective Date

    This AD is effective April 30, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Airbus airplanes, all manufacturer serial numbers, certificated in any category, as identified in paragraphs (c)(1) through (c)(11) of this AD; except those Model A318, A319, A320 and A321 series airplanes that have been modified by a supplemental type certificate (STC) that installs Honeywell traffic alert and collision avoidance system (TCAS) 7.1 processor, part number (P/N) 940-0351-001.

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

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

    (3) Model A320-211, -212, -214, -216, -231, -232, -233, -251N, and -271N airplanes.

    (4) Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, and -271N airplanes.

    (5) Model A330-223F and -243F airplanes.

    (6) Model A330-201, -202, -203, -223, and -243 airplanes.

    (7) Model A330-301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes.

    (8) Model A340-211, -212, and -213 airplanes.

    (9) Model A340-311, -312, and -313 airplanes.

    (10) Model A340-541 airplanes.

    (11) Model A340-642 airplanes.

    (d) Subject

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

    (e) Reason

    This AD was prompted by reports of false TCAS resolution advisories. We are issuing this AD to prevent false TCAS resolution advisories, which could lead to a loss of separation with other airplanes, possibly resulting in a mid-air collision.

    (f) Compliance

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

    (g) Definition of Group 1 and Group 2 Airplanes

    (1) For the purposes of this AD, Group 1 airplanes are those that have a Honeywell TPA-100B TCAS P/N 940-0351-001 processor that was installed during production, or in-service using the procedures in the applicable service information identified in paragraphs (g)(1)(i) through (g)(1)(xii) of this AD.

    (i) Airbus Service Bulletin A320-34-1504.

    (ii) Airbus Service Bulletin A320-34-1506.

    (iii) Airbus Service Bulletin A320-34-1533.

    (iv) Airbus Service Bulletin A320-34-1534.

    (v) Airbus Service Bulletin A320-34-1572.

    (vi) Airbus Service Bulletin A330-34-3247.

    (vii) Airbus Service Bulletin A330-34-3281.

    (viii) Airbus Service Bulletin A330-34-3344.

    (ix) Airbus Service Bulletin A340-34-4263.

    (x) Airbus Service Bulletin A340-34-4254.

    (xi) Airbus Service Bulletin A340-34-5076.

    (xii) Airbus Service Bulletin A340-34-5087.

    (2) For the purposes of this AD, Group 2 airplanes are airplanes that do not have a Honeywell TPA-100B TCAS P/N 940-0351-001 processor installed.

    (h) Software Modification or TCAS Processor Replacement

    For Group 1 airplanes, as identified in paragraph (g)(1) of this AD: Within 12 months after the effective date of this AD, do a modification of the TCAS processor to upgrade the software, or replace the TCAS processor with a TCAS TPA-100B processor having P/N 940-0351-005, in accordance with the Accomplishment Instructions of the applicable service information identified in paragraph (i) of this AD.

    Note 1 to paragraph (h) of this AD:

    Guidance for modifying an affected TCAS processor and re-identifying the processor as P/N 940-0351-005 can be found in paragraph 3.F. of Honeywell Service Bulletin 940-0351-34-0005, dated January 20, 2017.

    (i) Service Information for Accomplishment of Actions Specified in Paragraph (h) of This AD

    Use the applicable service information specified in paragraphs (i)(1) through (i)(5) of this AD to accomplish the actions required by paragraph (h) of this AD.

    (1) For Model A318 and A319 series airplanes; Model A320-211, A320-212, A320-214, A320-216, A320-231, A320-232, and A320-233 airplanes; and Model A321 series airplanes: Airbus Service Bulletin A320-34-1656, Revision 01, dated September 6, 2017.

    (2) For Model A320-251N and Model A320-271N airplanes: Airbus Service Bulletin A320-34-1657, Revision 01, dated September 6, 2017.

    (3) For Model A330-200, A330-200 Freighter, and A330-300 series airplanes: Airbus Service Bulletin A330-34-3342, Revision 01, dated November 13, 2017.

    (4) For Model A340-200 and A340-300 series airplanes: Airbus Service Bulletin A340-34-4304, dated April 19, 2017.

    (5) For Model A340-500 and A340-600 series airplanes: Airbus Service Bulletin A340-34-5118, Revision 01, dated September 12, 2017.

    (j) Identification of Airplanes That Do Not Have a Honeywell TPA-100B TCAS P/N 940-0351-001 Processor Installed

    An airplane on which Airbus modification 159658 or Airbus modification 206608, as applicable, has been embodied in production and on which it can be positively determined that no TCAS processor has been replaced or modified on that airplane since its date of manufacture is a Group 2 airplane, as identified in paragraph (g)(2) of this AD. Group 2 airplanes are not affected by the requirements of paragraph (h) of this AD. A review of airplane maintenance records is acceptable to make this determination, provided those records can be relied upon for that purpose and that the TCAS processor part number and software standard can be positively identified from that review.

    (k) Parts Installation Prohibition

    Installation of a Honeywell TCAS TPA-100B processor having P/N 940-0351-001 is prohibited, as required by paragraphs (k)(1) and (k)(2) of this AD.

    (1) For Group 1 airplanes, as identified in paragraph (g)(1) of this AD: After modification of an airplane as required by paragraph (h) of this AD.

    (2) For Group 2 airplanes, as identified in paragraph (g)(2) of this AD: As of the effective date of this AD.

    (l) Credit for Previous Actions

    This paragraph provides credit for the actions required by paragraph (h) of this AD, if those actions were performed before the effective date of this AD using the Accomplishment Instructions of the applicable Airbus service bulletin identified in paragraphs (l)(1) through (l)(4) of this AD.

    (1) Airbus Service Bulletin A320-34-1656, dated April 19, 2017.

    (2) Airbus Service Bulletin A320-34-1657, dated April 19, 2017.

    (3) Airbus Service Bulletin A330-34-3342, dated April 19, 2017.

    (4) Airbus Service Bulletin A340-34-5118, dated April 19, 2017.

    (m) 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 (n)(2) of this AD. Information may be emailed to: [email protected]. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

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

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

    (n) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2017-0091R2, dated June 2, 2017, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1096.

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

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

    (o) Material Incorporated by Reference

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

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

    (i) Airbus Service Bulletin A320-34-1656, Revision 01, dated September 6, 2017.

    (ii) Airbus Service Bulletin A320-34-1657, Revision 01, dated September 6, 2017.

    (iii) Airbus Service Bulletin A330-34-3342, Revision 01, dated November 13, 2017.

    (iv) Airbus Service Bulletin A340-34-4304, dated April 19, 2017.

    (v) Airbus Service Bulletin A340-34-5118, Revision 01, dated September 12, 2017.

    (3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; internet http://www.airbus.com.

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

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

    Issued in Renton, Washington, on March 2, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-05013 Filed 3-23-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 91 [Docket No. FAA-2018-0243] “Doors-off” and “Open-door” Flight Prohibition: Emergency Restriction/Prohibition Order AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notification of Emergency Order of Prohibition.

    SUMMARY:

    This notification provides Emergency Order of Prohibition No. FAA-2018-0243, issued March 22, 2018 to all operators and pilots of flights for compensation or hire with the doors open or removed in the United States or using aircraft registered in the United States for doors off flights. The Emergency Order prohibits the use of supplemental passenger restraint systems that cannot be released quickly in an emergency in doors off flight operations. It also prohibits passenger-carrying doors off flight operations unless the passengers are at all times properly secured using FAA-approved restraints.

    DATES:

    The Emergency Order of Prohibition is effective March 22, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Jodi Baker, Acting Deputy Director, Office of Safety Standards, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: 202-267-3747; email: [email protected].

    SUPPLEMENTARY INFORMATION:

    The full text of Emergency Order of Prohibition No. FAA-2018-0243, issued March 22, 2018 is as follows:

    This Emergency Order of Prohibition is issued by the Federal Aviation Administration (FAA) pursuant to 49 U.S.C. 40113(a) and 46105(c). This Order is effective immediately. This order is issued to all operators and pilots of flights for compensation or hire with the doors open or removed (hereinafter, “doors off flights” or “doors off flight operations”) in the United States or using aircraft registered in the United States for doors off flights. This Order prohibits the use of supplemental passenger restraint systems (as defined below) that cannot be released quickly in an emergency in doors off flight operations. This Order also prohibits passenger-carrying doors off flight operations unless the passengers are at all times properly secured using FAA-approved restraints.

    Upon information derived from investigation into a March 11, 2018, helicopter accident on the East River near New York City, New York, the Acting Administrator has found that an emergency exists related to aviation safety and safety in air commerce and requires immediate action. For more detailed information, see “Background/Basis for Order,” below.

    Scope and Effect of This Order

    This order applies to all persons (including, but not limited to, pilots) conducting doors off flights for compensation or hire in the United States or using aircraft registered in the United States to conduct such operations. “Operate,” as defined in 14 CFR 1.1, means to “use, cause to use or authorize to use” an aircraft, including the piloting of an aircraft, with or without right of legal control.

    Supplemental passenger restraint systems, such as the harness system used by the operator of the helicopter involved in the March 11, 2018, accident, can significantly delay or prevent passengers from exiting the aircraft in an emergency. Effective immediately, the use of supplemental passenger restraint systems in doors off flight operations for compensation or hire is prohibited. The term “supplemental passenger restraint system” means any passenger restraint that is not installed on the aircraft pursuant to an FAA approval, including (but not limited to) restraints approved through a Type Certificate, Supplemental Type Certificate, or as an approved major alteration using FAA Form 337.

    Persons may operate doors off flights for compensation or hire involving supplemental passenger restraint systems if the Acting Administrator has determined that the restraints to be used can be quickly released by a passenger with minimal difficulty and without impeding egress from the aircraft in an emergency. The ability of a passenger to quickly release the restraint with minimal difficulty must be inherent to the supplemental passenger restraint system. A supplemental passenger restraint system must not require the use of a knife to cut the restraint, the use of any other additional tool, or the assistance of any other person. A supplemental passenger restraint also must not require passenger training beyond what would be provided in a pre-flight briefing.

    Applications for a determination as to whether a supplemental passenger restraint system can be quickly released by a passenger with minimal difficulty may be submitted to the FAA Aircraft Certification Service, Policy and Innovation Division, Rotorcraft Standards Branch, 10101 Hillwood Parkway, Ft. Worth, Texas 76177, Attention: Jorge Castillo, Manager (email: [email protected]; tel: 817-222-5110). The applicant bears the burden of clearly and convincingly demonstrating that the supplemental passenger restraint system can be quickly released by a passenger with minimal difficulty and without impeding egress from the aircraft in an emergency. In reviewing any such application, the FAA shall consider the design, manufacture, installation, and operation of the supplemental passenger restraint system.

    Further, effective immediately, passenger-carrying doors off flight operations for compensation or hire are prohibited unless the passengers are at all times properly using FAA-approved restraints, such as at all times occupying an approved seat or berth and properly secured with a safety belt and, if installed, a harness; or at all times secured by an FAA-approved supplemental passenger restraint system.

    The prohibitions in this Order shall not be construed as authorizing doors off flight operations without supplemental passenger restraint systems. The operator of a doors off flight remains responsible for ensuring the safety of the aircraft and the passengers on board, and otherwise complying with all statutes, regulations, and safety standards concerning the flight.

    Authority and Jurisdiction

    The FAA Administrator is required to promote the safe flight of civil aircraft by, among other things, prescribing minimum standards for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. 49 U.S.C. 44701(a)(5). The FAA Administrator has authority to take necessary and appropriate actions to carry out his aviation safety duties and powers under part A (“Air Commerce and Safety”) of subtitle VII of Title 49 of the United States Code, including conducting investigations, issuing orders, and prescribing regulations, standards, and procedures. 49 U.S.C. 40113(a). When the Administrator determines that an emergency exists related to safety in air commerce and requires immediate action, the Administrator may issue immediately effective orders to meet the emergency. 49 U.S.C. 46105(c).

    Background/Basis for Order

    Based on an initial investigation and the reliable and credible evidence presently available, the Acting Administrator finds that:

    On March 11, 2018, civil aircraft N350LH, an Airbus Helicopters AS350B2 helicopter, was operated “doors off” on a flight in the vicinity of New York City, New York. All passengers on the flight wore harness systems that allowed the passengers to move securely within the helicopter and sit in the door sill while airborne. The harness systems were provided by the operator to ensure passengers did not fall out of the helicopter while moving around. Along with the supplemental passenger restraint systems, the operator provided knives to be used to cut through the restraints if necessary, and informed the passengers of the purpose of the knives.

    During the flight, the aircraft experienced a loss of power, resulting in the aircraft impacting the East River. The aircraft subsequently rolled over, and all of the passengers perished. The supplemental passenger restraint systems worn by the passengers, while intended as a safety measure when the aircraft was in flight, may have prevented the passengers' quick egress from the aircraft.

    While the fatalities on March 11, 2018, involved an aircraft impacting the water, passengers could face a similar hazard in other emergency situations, such as an aircraft fire on the ground.

    Under 49 U.S.C. 46105(c) the Acting Administrator has determined that an emergency exists related to safety in air commerce. This determination is based on the threat to passenger safety presented by the use of supplemental passenger restraint systems not approved by the FAA, which may prevent a passenger from exiting the aircraft quickly in an emergency. Accordingly, this Order is effective immediately.

    Duration

    This Order remains in effect until the issuance of an applicable FAA order rescinding or modifying this Order. The Administrator will issue a rescission order when there is a change in an applicable statute or federal regulation that supersedes the requirements of this Order, or the Administrator otherwise determines that the prohibitions prescribed above are no longer necessary to address an emergency in air safety or air commerce.

    While this Order remains in effect, the FAA intends to initiate a rulemaking that addresses operations using supplemental passenger restraint systems that have not been approved by the FAA.

    Consequences of Failure To Comply With This Order

    Any person failing to comply with this Order is subject to a civil penalty for each flight on which they are found to be in violation. See 49 U.S.C. 46302(a). Small business concerns and individuals (other than persons serving as an airman) are subject to a civil penalty of up to $13,066 per flight. See 49 U.S.C. 46301(a)(5)(A)(ii); 14 CFR 13.301. Other entities are subject to a civil penalty of up to $32,666 per flight. See 49 U.S.C. 46301(a)(1)(B); 14 CFR 13.301. A person serving as an airman on a flight operated in violation of this Order is subject to a civil penalty of up to $1,437 per flight or a certificate action, up to and including revocation. See 49 U.S.C. 46301(a)(1)(B), 44709(b)(1)(A); 14 CFR 13.301. An air carrier or commercial operator violating this Order is subject to certificate action, up to and including revocation. See id. Air tour operators and other persons are subject to the rescission of any FAA-issued waiver or letter of authorization. Any person failing to comply with this Order may be subject to a cease and desist order or a civil action in a United States district court to ensure compliance. See 49 U.S.C. 44103(a), 46106.

    Right To Review

    Pursuant to 49 U.S.C. 46110(a), a person with a substantial interest in this order “may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States in the circuit in which the person resides or has its principal place of business.” The petition must be filed within 60 days after the date of this order. 49 U.S.C. 46110(a).

    Emergency Contact Official

    Direct any questions concerning this Emergency Order of Prohibition, to Jodi Baker, Acting Deputy Director, Office of Safety Standards, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591 (email: [email protected]; Tel: 202-267-3747).

    Issued in Washington, DC on March 22, 2018. Daniel K. Elwell, Acting Administrator.
    [FR Doc. 2018-06096 Filed 3-22-18; 4:15 pm] BILLING CODE 4910-13-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No.: 180110025-8285-02] RIN 0648-BH51 Fisheries of the Northeastern United States; Northern Gulf of Maine Measures in Framework Adjustment 29 to the Atlantic Sea Scallop Fishery Management Plan AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    NMFS approves and implements those measures included in Framework Adjustment 29 to the Atlantic Sea Scallop Fishery Management Plan that establish fishing year 2018 and 2019 scallop specifications and other measures for the Northern Gulf of Maine scallop management area. This action is necessary to prevent overfishing and improve both yield-per-recruit and the overall management of the Atlantic sea scallop resource in the Northern Gulf of Maine. The intended effect of this rule is to implement these measures for the 2018 fishing year.

    DATES:

    Effective April 1, 2018.

    ADDRESSES:

    The New England Fishery Management Council developed an environmental assessment (EA) for this action that describes the measures, other considered alternatives, and analyzes the impacts of the measures and alternatives. Copies of Framework Adjustment 29, the EA, and the Initial Regulatory Flexibility Analysis (IRFA), are available upon request from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. The EA/IRFA is also accessible via the internet at: http://www.nefmc.org/scallops/index.html.

    Copies of the small entity compliance guide are available from Michael Pentony, Regional Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930-2298, or available on the internet at: http://www.greateratlantic.fisheries.noaa.gov/sustainable/species/scallop/.

    FOR FURTHER INFORMATION CONTACT:

    Travis Ford, Fishery Policy Analyst, 978-281-9233.

    SUPPLEMENTARY INFORMATION: Background

    The New England Fishery Management Council adopted Framework Adjustment 29 to the Atlantic Sea Scallop Fishery Management Plan (FMP) in its entirety on December 7, 2017, and submitted a draft of the framework, including a draft EA, to NMFS on January 25, 2018, for review and approval.

    This action implements and approves the portion of Framework 29 that establishes scallop fishing year 2018 and 2019 specifications and other measures for the Northern Gulf of Maine (NGOM) scallop management area. We are expediting the implementation of these measures separately from other measures in Framework 29 to help prevent excessive fishing at the beginning of the scallop fishing year in the NGOM. The explanation for why it was necessary to implement the NGOM measures in a separate action are detailed in the proposed rule and not repeated here. We published a proposed rule for the remaining specifications and other management measures in Framework 29 on March 15, 2018 (83 FR 11474). We intend to publish a final rule for those remaining measures, if approved, shortly after the comment period closes.

    This action includes catch, effort, and quota allocation adjustments to the NGOM management program for fishing year 2018 and default specifications for fishing year 2019. NMFS published a proposed rule for approving and implementing the NGOM Measures in Framework 29 on February 20, 2018 (83 FR 7129). The proposed rule included a 15-day public comment period that closed on March 7, 2018. The Council submitted a final EA to NMFS on March 14, 2018, for approval. NMFS has approved all of the NGOM measures recommended by the Council and described below. The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) permits NMFS to approve, partially approve, or disapprove measures proposed by the Council based only on whether the measures are consistent with the fishery management plan, the Magnuson-Stevens Act and its National Standards, and other applicable law. We defer to the Council's policy choices unless there is a clear inconsistency with the law or the FMP. Details concerning the development of these measures were contained in the preamble of the proposed rule and are not repeated here.

    This action sets new management measures in the NGOM for the scallop fishery for the 2018 and 2019 fishing years, including prohibiting the limited access fleet from accessing the NGOM while participating in the days-at-sea (DAS) program. In addition, this action divides the annual NGOM total allowable catch (TAC) between the limited access fleet while on research set-aside (RSA) trips and limited access general category (LAGC) fleets for the 2018 and 2019 (default) fishing years as follows:

    Table 1—NGOM TAC for Fishing Years 2018 and 2019 [Default] Fleet 2018 lb kg 2019 (default) lb kg LAGC 135,000 61,235 102,500 46,493 Limited access 65,000 29,484 32,500 14,742 Total 200,000 90,718 135,000 61,235 Setting the NGOM TAC

    This actions sets the NGOM TAC by applying a fishing mortality rate (F) of F = 0.18 using only the projected exploitable biomass on Jeffreys Ledge and Stellwagen Bank for fishing years 2018 and 2019. The overall TAC for the entire NGOM management area is set at 200,000 lbs (90,718 kg) for fishing year 2018, and 135,000 lbs (61,235 kg) for fishing year 2019 (Table 1).

    Dividing the NGOM TAC

    This action divides the TAC between the LAGC fleet and the limited access fleet while on an RSA trip at a level consistent with the biomass in the area. The first 70,000 lb (31,751 kg) of the NGOM TAC is allocated to the LAGC fleet, and any remaining pounds are split equally between the LAGC and limited access fleets (Table 1). Each fleet must operate independently under its own portion of the TAC. The NGOM management area remains open for each component until their TAC is projected to be harvested, even if the other component has reached its TAC. For example, if the LAGC component harvests its TAC before the limited access fleet harvests all of its allocation, the area would remain open for limited access fishing. This TAC division is intended to be a short-term solution to allow controlled fishing in the NGOM management area until the Council and NMFS can develop a future action to address NGOM issues more completely.

    Managing Limited Access Removals

    This action does not change how the LAGC component currently operates in the NGOM. However, the limited access fleet is prohibited from accessing the NGOM while participating in the DAS program. The limited access share of the NGOM TAC is available through RSA compensation fishing only. This action allows NMFS to allocate the limited access portion of the NGOM TAC (65,000 lb (29,484 kg)) to be harvested as RSA compensation quota. This allocation is not in addition to the 1.25 million lb (566,990 kg) RSA quota. When allocating the 65,000 lb (29,484 kg) NGOM RSA quota to specific projects, NMFS gives priority to projects that are relevant to the NGOM. Any limited access or LAGC vessels that NMFS awards NGOM RSA compensation pounds must declare into the area and fish exclusively within the NGOM management area. Any NGOM RSA harvest overages will be deducted from the following year's limited access NGOM TAC.

    Making the limited access share of the NGOM TAC available for RSA compensation fishing is a short-term solution to utilize a small limited access portion of the NGOM TAC available, with the expectation that a more long-term and complete allocation and harvest strategy will be developed in a future amendment.

    Clarifying Changes From Proposed Rule to Final Rule

    We included minor, clarifying changes to the regulatory text in the § 648.10(f) language requiring that vessels participating in the NGOM program must declare into the fishery through their vessel monitoring system. Specifically, we deleted the unnecessary phrase “fishing in the” and corrected the reference by replacing the phrase “Northern Gulf of Maine management area” with “NGOM Management Program”, and inserted “NGOM Management Program,” before the second reference to “LAGC scallop fishery”.

    Comments and Responses

    We received 10 comments on the proposed rule during the public comment period; 7 in support of the action and 3 that were unrelated to the proposed measures. All of the relevant comments were in favor of this action. Comments were submitted by a limited access scallop fisherman, a limited access scallop fisherman who also owns a NGOM permit, two NGOM fishermen, Maine Coast Fishermen's Association (MCFA), Downeast Dayboat, and a group of 22 fishermen.

    Comment 1: Downeast Dayboat, MCFA, one NGOM fisherman, and the group of 22 fishermen commented that the Council should develop more permanent and robust management measures in the NGOM.

    Response: It is the Council's intent that this action serve as a short-term solution to some of the issues facing the NGOM. The Council has a priority to more permanently address these issues in a future amendment.

    Comment 2: Downeast Dayboat, MCFA, and both NGOM fishermen commented that it is necessary to get these measures in place by April 1, 2018.

    Response: NMFS agrees that it is essential to get these measures in place by April 1, 2018. As discussed in the proposed rule and the preamble of this rule, we separated out the NGOM measures in Framework 29 to ensure that they will be in place by April 1, 2018.

    Comment 3: A limited access scallop fisherman commented that the oceans are warming and that if the scallop resource moves north it would be detrimental to shut out any user group in this area.

    Response: This action is intended to be a short-term solution to allow controlled fishing in the NGOM management area until the Council and NMFS can develop a future action to address NGOM issues more completely. The Council currently has a priority to address NGOM management in 2018. Any such allocation decisions that are more comprehensive and permanent would be addressed by the Council as part of this priority in a future amendment.

    Comment 4: The owner of both a limited access and a NGOM permit commented that if the NGOM quota is not harvested that the remaining scallops should be used to seed other areas in the NGOM.

    Response: In 2017, the Council had a research priority to evaluate the impacts of scallop spat and seeding projects. While scallop seeding projects have been successful in other countries, the Scallop FMP does not officially include a seeding program. However, if the limited access fleet does not harvest all of its portion of the TAC the unharvested scallops would add to the spawning population. Further, the Council intentionally set a conservative TAC for the NGOM to lead to more consistent harvests in the area.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the FMP, other provisions of the Magnuson-Stevens Act, the Endangered Species Act, and other applicable law.

    OMB has determined that this rule is not significant pursuant to E.O. 12866.

    This final rule does not contain policies with federalism or “takings” implications, as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

    This action does not contain any collection-of-information requirements subject the Paperwork Reduction Act (PRA).

    The Assistant Administrator for Fisheries has determined that the need to implement the measures of this rule in an expedited manner are necessary to achieve conservation objectives for the scallop fishery and certain fish stocks, and to relieve other restrictions on the scallop fleet. This constitutes good cause, under authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delay in the date of effectiveness and to make the final NGOM measures in Framework 29 effective on April 1, 2018.

    As described in the proposed rule, in the absence of this action, the current default 2018 regulations would apply, and the limited access fleet would be able to fish in the NGOM under the DAS program with no hard TAC to limit scallop removals. The Council determined and NMFS agrees that this result would be inconsistent with the goals of the NGOM management program because it would allow excessive catch of scallops by this fleet.

    This final rule sets the limited access portion of the NGOM TAC at 65,000 lb (29,484 kg). At one point during the 2017 fishing year, the limited access fleet was harvesting over 100,000 lb/day (45,359 kg/day) in the NGOM. If this final rule is not in place by April 1, 2018, the beginning of the fishing scallop fishing year, the limited access fleet will likely begin fishing in the NGOM on this date at levels equivalent to or in excess of last year's levels. Fishing at these excessive levels again in the upcoming fishing year would undermine the conservation objectives of the NGOM program because it would result in much higher fishing mortality than is considered acceptable for this portion of the scallop stock. This higher fishing mortality could jeopardize the long-term optimum yield of scallops in the NGOM. Moreover, this action increases the economic benefits to the LAGC fleet by allowing them to harvest a higher allocated share of the TAC and by basing the trigger for closing this area on what each fleet harvests.

    NMFS is not providing for a 30-day delay in the date of effectiveness because the information and data necessary for the Council to develop the framework were not available in time for this action to be forwarded to NMFS and implemented by April 1, 2018, the beginning of the scallop fishing year. NMFS published the proposed rule as quickly as possible after receiving Framework 29 from the Council. Even though we are also publishing the final rule as quickly as possible after the close of the comment period, there is not sufficient time to allow for a 30-day cooling off period before the beginning of the scallop fishing year. Delaying the implementation of this action for 30 days would likely result in excessive fishing in the NGOM leading to the negative consequences described above. Therefore, the Assistant Administrator for Fisheries has waived the 30-day delay in the date of effectiveness requirement of 5 U.S.C. 553(d).

    NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), has completed a final regulatory flexibility analysis (FRFA) in support of the entirety of Framework 29. Specific to the NGOM measures of Framework 29 contained in this final rule, the FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS responses to those comments, a summary of the analyses completed in the Framework 29 EA, and the preamble to this final rule. A summary of the IRFA was published in the proposed rule for this action and is not repeated here. A description of why this action was considered, the objectives of, and the legal basis for this rule is contained in Framework 29 and in the preambles to the proposed rule and this final rule, and is not repeated here. All of the documents that constitute the FRFA are available from NMFS and/or the Council, and a copy of the IRFA, the Regulatory Impact Review (RIR), and the EA are available upon request (see ADDRESSES).

    A Summary of the Significant Issues Raised by the Public in Response to the IRFA, a Summary of the Agency's Assessment of Such Issues, and a Statement of Any Changes Made in the Final Rule as a Result of Such Comments

    There were no specific comments on the IRFA.

    Description and Estimate of Number of Small Entities to Which the Rule Would Apply

    These regulations affect all vessels with limited access and LAGC scallop permits, but there is no differential effect based on whether the affected entities are small or large. Framework 29 provides extensive information on the number and size of vessels and small businesses that are affected by the regulations, by port and state (see ADDRESSES). Fishing year 2016 data were used for this analysis because these data are the most recent complete data set for a fishing year. There were 313 vessels that obtained full-time limited access permits in 2016, including 250 dredge, 52 small-dredge, and 11 scallop trawl permits. In the same year, there were also 34 part-time limited access permits in the sea scallop fishery. No vessels were issued occasional scallop permits. NMFS issued 225 LAGC individual fishing quota (IFQ) permits in 2016, and 125 of these vessels actively fished for scallops that year. The remaining permit holders likely leased out scallop IFQ allocations with their permits in Confirmation of Permit History. In 2016, there were 27 NGOM vessels that actively fished.

    For RFA purposes, NMFS defines a small business in shellfish fishery as a firm that is independently owned and operated with receipts of less than $11 million annually (see 50 CFR 200.2). Individually-permitted vessels may hold permits for several fisheries, harvesting species of fish that are regulated by several different fishery management plans, even beyond those impacted by this proposed rule. Furthermore, multiple permitted vessels and/or permits may be owned by entities with various personal and business affiliations. For the purposes of this analysis, “ownership entities” are defined as those entities with common ownership as listed on the permit application. Only permits with identical ownership are categorized as an “ownership entity.” For example, if five permits have the same seven persons listed as co-owners on their permit applications, those seven persons would form one “ownership entity,” that holds those five permits. If two of those seven owners also co-own additional vessels, that ownership arrangement would be considered a separate “ownership entity” for the purpose of this analysis.

    On June 1 of each year, ownership entities are identified based on a list of all permits for the most recent complete calendar year. The current ownership dataset is based on the calendar year 2016 permits and contains average gross sales associated with those permits for calendar years 2014 through 2016. Matching the potentially impacted 2016 fishing year permits described above (limited access permits and LAGC IFQ permits) to calendar year 2016 ownership data results in 161 distinct ownership entities for the limited access fleet and 115 distinct ownership entities for the LAGC IFQ fleet. Of these, and based on the Small Business Administration guidelines, 154 of the limited access distinct ownership entities and 113 of the LAGC IFQ entities are categorized as small. The remaining seven of the limited access and two of the LAGC IFQ entities are categorized as large entities. There were 27 distinct small business entities with NGOM permits and active NGOM vessels based on 2016 permits.

    Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Final Rule

    This action contains no new collection-of-information, reporting, or recordkeeping requirements.

    Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the Stated Objectives of Applicable Statutes

    During the development of NGOM measures in Framework 29, NMFS and the Council considered ways to reduce the regulatory burden on, and provide flexibility for, the regulated entities in this action. For instance, in fishing years 2016 and 2017, the limited access fleet (larger trip boats) harvested substantially more scallops from the NGOM than they had since the beginning of the NGOM management program. Because the limited access fleet accessed the NGOM through the DAS program, there was no hard limit on its landings from the area. This resulted in total landings from the NGOM by the limited access fleet that far exceeded the TAC for the LAGC fleet (smaller day boats). The Council determined that this was inconsistent with the goals of the NGOM management program. Accordingly, the Council developed this action, in part, to put these measures in place to temporarily divide the catch more equitably between the two fleets and limit the total catch by the limited access fleet from the NGOM to a level consistent with its specified TAC for the NGOM. Alternatives to the measures in this final rule are described in detail in Framework 29, which includes an EA, RIR, and IRFA (available at ADDRESSES). The measures implemented by this final rule minimize the long-term economic impacts on small entities to the extent practicable. The only alternatives for the prescribed catch limits that were analyzed were those that met the legal requirements to implement effective conservation measures. Catch limits are fundamentally a scientific calculation based on the Scallop FMP control rules and SSC approval, and therefore are legally limited to the numbers contained in this rule. Moreover, the limited number of alternatives available for this action must be evaluated in the context of an ever-changing fishery management plan, as the Council has considered numerous alternatives to mitigating measures every fishing year in amendments and frameworks since the establishment of the FMP in 1982.

    Overall, this rule minimizes adverse long-term impacts by ensuring that management measures and catch limits result in sustainable fishing mortality rates that promote stock rebuilding, and as a result, maximize optimal yield. The measures implemented by this final rule also provide additional flexibility for fishing operations in the short-term.

    Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency will publish one or more guides to assist small entities in complying with the rule, and will designate such publications as “small entity compliance guides.” The agency will explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as a small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the Greater Atlantic Regional Fisheries Office, and the guide (i.e., permit holder letter) will be sent to all holders of permits for the scallop fishery. The guide and this final rule will be available upon request.

    List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: March 21, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:

    PART 648—FISHERIES OF THE NORTHEAST UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    Subpart A—General Provisions 2. In § 648.10, revise paragraphs (f) introductory text, (f)(2) introductory text, and (f)(4)(i) to read as follows:
    § 648.10 VMS and DAS requirements for vessel owners/operators.

    (f) Atlantic sea scallop vessel VMS notification requirements. Less than 1 hour prior to leaving port, the owner or authorized representative of a scallop vessel that is required to use VMS as specified in paragraph (b)(1) of this section must notify the Regional Administrator by transmitting the appropriate VMS code that the vessel will be participating in the scallop DAS program, Area Access Program, LAGC scallop fishery, NGOM Management Program, or will be fishing outside of the scallop fishery under the requirements of its other Federal permits, or that the vessel will be steaming to another location prior to commencing its fishing trip by transmitting a “declared out of fishery” VMS code. If the owner or authorized representative of a scallop vessel declares out of the fishery for the steaming portion of the trip, the vessel cannot possess, retain, or land scallops, or fish for any other fish. Prior to commencing the fishing trip following a “declared out of fishery” trip, the owner or authorized representative must notify the Regional Administrator by transmitting the appropriate VMS code, before first crossing the VMS Demarcation Line, that the vessel will be participating in the scallop DAS program, Area Access Program, NGOM Management Program, or LAGC scallop fishery. VMS codes and instructions are available from the Regional Administrator upon request.

    (2) NGOM scallop fishery. A NGOM scallop vessel is deemed to be fishing in Federal waters of the NGOM management area and will have its landings applied against the LAGC portion of the NGOM management area TAC, specified in § 648.62(b)(1), unless:

    (4) Catch reports. (i) The owner or operator of a limited access or LAGC scallop vessel with an IFQ permit that fishes for, possesses, or retains scallops, and is not fishing under a NE Multispecies DAS or sector allocation, must submit reports through the VMS, in accordance with instructions to be provided by the Regional Administrator, for each day fished, including open area trips, access area trips as described in § 648.59(b)(9), Northern Gulf of Maine RSA trips, and trips accompanied by a NMFS-approved observer. The reports must be submitted for each day (beginning at 0000 hr and ending at 2400 hr) and not later than 0900 hr of the following day. Such reports must include the following information:

    (A) VTR serial number;

    (B) Date fish were caught;

    (C) Total pounds of scallop meats kept;

    (D) Total pounds of all fish kept.

    3. In § 648.14: a. Revise paragraphs (i)(1)(iii)(A)(1)(ii) and (iv), and (i)(1)(viii)(A) and (B); b. Add paragraph (i)(2)(iii)(E); and c. Revise paragraphs (i)(3)(iii)(C) and(D).

    The revisions and addition read as follows:

    § 648.14 Prohibitions.

    (i) * * *

    (1) * * *

    (iii) * * *

    (A) * * *

    (1) * * *

    (ii) The scallops were harvested by a vessel that has been issued and carries on board a limited access scallop permit and is properly declared into the scallop DAS, Area Access program, or the NGOM management area.

    (iv) The scallops were harvested by a vessel that has been issued and carries on board an NGOM or IFQ scallop permit, and is properly declared into the NGOM scallop management area, and the LAGC portion of the NGOM TAC specified in § 648.62 has not been harvested.

    (viii) Scallop research. (A) Fail to comply with any of the provisions specified in § 648.56 or the conditions of a letter of authorization issued under § 648.56.

    (B) Fish for scallops in, or possess or land scallops from the NGOM, unless allocated NGOM RSA allocation as described in § 648.56(d) and fishing on a scallop research set aside compensation trip.

    (2) * * *

    (iii) * * *

    (E) Fish for, possess, or land scallops from the NGOM, unless on a scallop RSA compensation trip and allocated NGOM RSA allocation as described in § 648.56(d).

    (3) * * *

    (iii) * * *

    (C) Declare into the NGOM scallop management area after the effective date of a notification published in the Federal Register stating that the LAGC portion of the NGOM scallop management area TAC has been harvested as specified in § 648.62, unless the vessel is fishing exclusively in state waters, declared a state-waters only NGOM trip, and is participating in an approved state waters exemption program as specified in § 648.54, or unless the vessel is participating in the scallop RSA program as specified in § 648.56.

    (D) Fish for, possess, or land scallops in or from the NGOM scallop management area after the effective date of a notification published in the Federal Register that the LAGC portion of the NGOM scallop management area TAC has been harvested, as specified in § 648.62, unless the vessel possesses or lands scallops that were harvested south of 42°20′ N lat., the vessel is transiting the NGOM scallop management area, and the vessel's fishing gear is properly stowed and not available for immediate use in accordance with § 648.2 or unless the vessel is fishing exclusively in state waters, declared a state-waters only NGOM trip, and is participating in an approved state waters exemption program as specified in § 648.54, or unless the vessel is participating in the scallop RSA program as specified in § 648.56.

    Subpart D—Management Measures for the Atlantic Sea Scallop Fishery 4. In § 648.56 revise paragraphs (c) and (d) to read as follows:
    § 648.56 Scallop research.

    (c) NOAA shall make the final determination as to what proposals are approved and which vessels are authorized to take scallops in excess of possession limits, or take additional trips into Open, Access Areas, or the NGOM management area. NMFS shall provide authorization of such activities to specific vessels by letter of acknowledgement, letter of authorization, or Exempted Fishing Permit issued by the Regional Administrator, which must be kept on board the vessel.

    (d) Available RSA allocation shall be 1.25 million lb (567 mt) annually, which shall be deducted from the ABC/ACL specified in § 648.53(a) prior to setting ACLs for the limited access and LAGC fleets, as specified in § 648.53(a)(3) and (4), respectively. Approved RSA projects shall be allocated an amount of scallop pounds that can be harvested in open areas, available access areas, and the NGOM. The specific access areas that are open to RSA harvest and the amount of NGOM allocation to be landed through RSA harvest shall be specified through the framework process as identified in § 648.59(e)(1). In a year in which a framework adjustment is under review by the Council and/or NMFS, NMFS shall make RSA awards prior to approval of the framework, if practicable, based on total scallop pounds needed to fund each research project. Recipients may begin compensation fishing in open areas prior to approval of the framework, or wait until NMFS approval of the framework to begin compensation fishing within approved access areas.

    5. In § 648.62: a. Revise paragraphs (a)(2) through (a)(4); b. Add paragraph (a)(5); and c. Revise paragraphs (b) through (d).

    The revisions and addition read as follows:

    § 648.62 Northern Gulf of Maine (NGOM) Management Program.

    (a) * * *

    (2) Scallop landings by vessels issued NGOM permits shall be deducted from the LAGC portion of the NGOM scallop total allowable catch when vessels fished all or part of a trip in the Federal waters portion of the NGOM. If a vessel with a NGOM scallop permit fishes exclusively in state waters within the NGOM, scallop landings from those trips will not be deducted from the Federal NGOM quota.

    (3) Scallop landings by all vessels issued LAGC IFQ scallop permits and fishing in the NGOM scallop management area shall be deducted from the LAGC portion of the NGOM scallop total allowable catch specified in the specifications or framework adjustment processes defined in § 648.55. Scallop landings by LAGC IFQ scallop vessels fishing in the NGOM scallop management area shall be deducted from their respective scallop IFQs. Landings by incidental catch scallop vessels shall not be deducted from the NGOM total allowable catch specified in paragraph (b) of this section.

    (4) A vessel issued a NGOM or LAGC IFQ scallop permit that fishes in the NGOM may fish for, possess, or retain up to 200 lb (90.7 kg) of shucked or 25 bu (8.81 hL) of in-shell scallops, and may possess up to 50 bu (17.6 hL) of in-shell scallops seaward of the VMS Demarcation Line. A vessel issued an incidental catch general category scallop permit that fishes in the NGOM may fish for, possess, or retain only up to 40 lb of shucked or 5 U.S. bu (1.76 hL) of in-shell scallops, and may possess up to 10 bu (3.52 hL) of in-shell scallops seaward of the VMS Demarcation Line.

    (5) Scallop landings by all vessels issued scallop permits and fishing in the NGOM under the scallop RSA program (as specified in § 648.56) shall be deducted from the limited access portion of the NGOM scallop total allowable catch.

    (b) Total allowable catch. The total allowable catch for the NGOM scallop management area shall be specified through the framework adjustment process. The total allowable catch for the NGOM scallop management area shall be based on the Federal portion of the scallop resource in the NGOM. The total allowable catch shall be determined by historical landings until additional information on the NGOM scallop resource is available, for example through an NGOM resource survey and assessment. The ABC/ACL as defined in § 648.53(a) shall not include the total allowable catch for the NGOM scallop management area, and landings from the NGOM scallop management area shall not be counted against the ABC/ACL defined in § 648.53(a). The total allowable catch shall be divided between the limited access and the LAGC fleets.

    (1) NGOM annual hard TACs. The LAGC and the limited access portions of the annual hard TAC for the NGOM 2018 and 2019 fishing years are as follows:

    Fleet 2018 lb kg 2019 (default) lb kg LAGC 135,000 61,235 102,500 46,493 Limited access 65,000 29,484 32,500 14,742 Total 200,000 90,718 135,000 61,235

    (2) Unless a vessel has fished for scallops outside of the NGOM scallop management area and is transiting the NGOM scallop management area with all fishing gear stowed and not available for immediate use as defined in § 648.2, no vessel issued an LAGC or limited access scallop permit pursuant to § 648.4(a)(2) may possess, retain, or land scallops in the NGOM scallop management area once the Regional Administrator has provided notification in the Federal Register that the vessel's respective portion(s) of the NGOM scallop total allowable catch in accordance with paragraph (b)(1) of this section has been reached, unless the vessel is participating in the scallop RSA program as specified in § 648.56, has been allocated NGOM RSA pounds, and the limited access portion of the NGOM TAC has not been reached. Once the NGOM hard TAC is reached, a vessel issued a NGOM permit may no longer declare a state-only NGOM scallop trip and fish for scallops exclusively in state waters within the NGOM, unless participating in the state waters exemption program as specified in § 648.54. A vessel that has not been issued a Federal scallop permit that fishes exclusively in state waters is not subject to the closure of the NGOM scallop management area.

    (3) If either the LAGC or the limited access portion of the annual NGOM TAC is exceeded, the amount of NGOM scallop landings in excess of the portion of the TAC specified in paragraph (b)(1) of this section shall be deducted from the respective portion(s) of the NGOM TAC which has been exceeded for the subsequent fishing year, as soon as practicable, once scallop landings data for the NGOM management area is available.

    (c) VMS requirements. Except scallop vessels issued a limited access scallop permit pursuant to § 648.4(a)(2)(i) that have declared a NGOM trip under the scallop RSA program, a vessel issued a scallop permit pursuant to § 648.4(a)(2) that intends to fish for scallops in the NGOM scallop management area or fishes for, possesses, or lands scallops in or from the NGOM scallop management area, must declare a NGOM scallop management area trip and report scallop catch through the vessel's VMS unit, as required in § 648.10. If the vessel has a NGOM permit, the vessel must declare either a Federal NGOM trip or a state-waters NGOM trip. If a vessel intends to fish any part of a NGOM trip in Federal NGOM waters, it may not declare into the state water NGOM fishery.

    (d) Gear restrictions. Except scallop vessels issued a limited access scallop permit pursuant to § 648.4(a)(2)(i) that have properly declared a NGOM trip under the scallop RSA program, the combined dredge width in use by, or in possession on board, LAGC scallop vessels fishing in the NGOM scallop management area may not exceed 10.5 ft (3.2 m), measured at the widest point in the bail of the dredge.

    [FR Doc. 2018-06051 Filed 3-23-18; 8:45 am] BILLING CODE 3510-22-P
    83 58 Monday, March 26, 2018 Proposed Rules FEDERAL ELECTION COMMISSION 11 CFR Parts 100 and 110 [Notice 2018-06] Internet Communication Disclaimers and Definition of “Public Communication” AGENCY:

    Federal Election Commission.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Federal Election Commission requests comment on two alternative proposals to amend its regulations concerning disclaimers on public communications on the internet that contain express advocacy, solicit contributions, or are made by political committees. The Commission is undertaking this rulemaking in light of technological advances since the Commission last revised its rules governing internet disclaimers in 2006, and questions from the public about the application of those rules to internet communications. The Commission's goal is to promulgate a rule that in its text and interpretation recognizes the paramount importance of providing the public with the clearest disclosure of the payor or sponsor of these public communications on the internet.

    Both proposals are intended to give the American public easy access to information about the persons paying for and candidates authorizing these internet communications, pursuant to the Federal Election Campaign Act. Both proposals would continue to require disclaimers for certain internet communications, and both would allow certain internet communications to provide disclaimers through alternative technology. The proposals differ, however, in their approach. The Commission requests comment on all elements of both proposals. The two proposals need not be considered as fixed alternatives; commenters are encouraged to extract the best elements of each, or suggest improvements or alternatives, to help the Commission fashion the best possible rule. The Commission also requests comment on proposed changes to the definition of “public communication.” The Commission has not made any final decisions on any of the issues or proposals presented in this rulemaking.

    DATES:

    Comments must be received on or before May 25, 2018. The Commission will hold a public hearing on this notice on June 27, 2018. Anyone wishing to testify at such a hearing must file timely written comments and must include in the written comments a request to testify.

    ADDRESSES:

    All comments must be in writing. Commenters are encouraged to submit comments electronically via the Commission's website at http://sers.fec.gov/fosers/rulemaking.htm?pid=74739. Alternatively, commenters may submit comments in paper form, addressed to the Federal Election Commission, Attn.: Neven F. Stipanovic, Acting Assistant General Counsel, 1050 First St. NE, Washington, DC 20463. Each commenter must provide, at a minimum, his or her first name, last name, city, and state; comments without this information will not be accepted. All properly submitted comments, including attachments, will become part of the public record, and the Commission will make comments available for public viewing on the Commission's website and in the Commission's Public Records Office. Accordingly, commenters should not provide in their comments any information that they do not wish to make public, such as a home street address, personal email address, date of birth, phone number, social security number, or driver's license number, or any information that is restricted from disclosure, such as trade secrets or commercial or financial information that is privileged or confidential.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Neven F. Stipanovic, Acting Assistant General Counsel, or Ms. Jessica Selinkoff, Attorney, (202) 694-1650 or (800) 424-9530.

    SUPPLEMENTARY INFORMATION:

    The Commission is proposing to revise its regulations at 11 CFR 100.26 and 110.11 regarding disclaimers on communications placed for a fee on the internet. The Commission may provide illustrative examples on the Commission's website during the comment period.

    A. Rulemaking History 1. Definition of “Public Communication”

    The Commission published a Notice of Proposed Rulemaking (“Technology NPRM”) in the Federal Register on November 2, 2016.1 The Technology NPRM comment period ended on December 2, 2016. The Commission received four comments in response to the Technology NPRM.2

    1 Technological Modernization, 81 FR 76416 (Nov. 2, 2016).

    2 The Commission also received four comments in response an earlier stage of the technology rulemaking. See Technological Modernization, 78 FR 25635 (May 2, 2013). To review those proposals and other Commission rulemaking documents, including comments received, visit http://sers.fec.gov/fosers/rulemaking.htm?pid=84652.

    One of the proposals in the Technology NPRM was to update the definition of “public communication” at 11 CFR 100.26. Section 100.26 currently defines “public communication” as excluding all internet communications, “other than communications placed for a fee on another person's website.” When the Commission promulgated this definition in 2006, it focused on websites because that was the predominant means of paid internet advertising at the time. The Commission analogized paid advertisements on websites to the forms of mass communication enumerated in the definition of “public communication” in the Federal Election Campaign Act, 52 U.S.C. 30101-46 (“the Act”), because “each lends itself to distribution of content through an entity ordinarily owned or controlled by another person.” internet Communications, 71 FR 18589, 18594 (Apr. 12, 2006) (“2006 internet E&J”); 52 U.S.C. 30101(22).

    The Commission proposed to update the definition by adding communications placed for a fee on another person's “internet-enabled device or application.” The purpose of the proposed change was to reflect post-2006 changes in internet technology 3 such as the development of mobile applications (“apps”) on smartphones and tablets, smart TV devices, interactive gaming dashboards, e-book readers, and wearable network-enabled devices such as smartwatches and headsets—and to make the regulatory text more adaptable to the development of future technologies. The Commission asked several questions about its proposed change, including whether the term “internet-enabled device or application” is a sufficiently clear and technically accurate way to refer to the various media through which paid internet communications can be sent and received; whether there is a better way to refer to them; and whether it would help to provide examples of such paid media.

    3See Amy Schatz, In Hot Pursuit of the Digital Voter, Wall St. J., Mar. 23, 2012, www.wsj.com/articles/SB10001424052702303812904577299820064048072 (showing screenshots of 2012 presidential committee advertisements on Hulu and noting another campaign's purchase of advertisements on Pandora internet radio); Tanzina Vega, The Next Political Battleground: Your Phone, CNN (May 29, 2015, 6:44 a.m.), www.cnn.com/2015/05/29/politics/2016-presidential-campaigns-mobile-technology (noting that “voters should expect more political ads as they scroll through their phones next year—much as they'll be bombarded with ads on television,” including ads using geolocation to target “potential voters who may have downloaded the candidate's app”). Indeed, a recent study has shown that 19% of Americans access the internet exclusively or mostly through their smartphones as opposed to desktop or laptop computers. See Pew Research Ctr., U.S. Smartphone Use in 2015, at 3 (2015), www.pewinternet.org/files/2015/03/PI_Smartphones_0401151.pdf.

    The Commission received only one comment in response to this aspect of the Technology NPRM.4 The comment generally supported the proposed revision to the definition of “public communication” in section 100.26.5

    4See Campaign Legal Center and Democracy 21, Comment on REG 2013-01 (Technological Modernization) (Dec. 2, 2016), http://sers.fec.gov/fosers/showpdf.htm?docid=354002.

    5 The comment also urged the Commission to amend 11 CFR 100.26 “to make clear that any expenditure beyond a de minimis amount for internet communications is not exempt from the definition of `public communication.'” Id. at 2.

    The Commission has decided to reintroduce the proposed change to the definition of “public communication” in this rulemaking for the limited purpose of determining whether the term “internet-enabled device or application” is a sufficiently clear and technically accurate way to refer to the various media through which paid internet communications can be sent and received. The term is closely tied to the internet communication disclaimer requirements.6

    6 The definition of “public communication” is also relevant to the coordination rules, 11 CFR 109.21(c), and financing limitations, e.g., 11 CFR 100.24(b)(3), 300.32(a)(1)-(2), 300.71.

    2. Internet Communication Disclaimers

    On October 13, 2011, the Commission published in the Federal Register an Advance Notice of Proposed Rulemaking (“ANPRM”) soliciting comment on whether to modify disclaimer requirements at 11 CFR 110.11 for certain internet communications, or to provide exceptions thereto, consistent with the Act.7 The Commission received eight comments in response. Six of the commenters agreed that the Commission should update the disclaimer rules through a rulemaking, though commenters differed on how the Commission should do so.

    7See internet Communication Disclaimers, 76 FR 63567 (Oct. 13, 2011).

    On October 18, 2016, the Commission solicited additional comment in light of legal and technological developments during the five years since the ANPRM was published.8 The Commission received six comments during the reopened comment period, all but one of which supported updating the disclaimer rules. Commenters, however, differed on whether the Commission should allow modified disclaimers for all online advertisements or exempt paid advertisements on social media platforms from the disclaimer requirements.

    8See internet Communication Disclaimers; Reopening of Comment Period and Notice of Hearing, 81 FR 71647 (Oct. 18, 2016). The Commission postponed the hearing announced in that notice because few commenters expressed interest in participating. As noted above, the Commission will hold a hearing on the proposals in this notice on June 27, 2018.

    On October 10, 2017, the Commission again solicited additional comment in light of recent legal, factual, and technological developments.9 During this reopened comment period, the Commission received submissions from 149,772 commenters (including persons who signed on to others' comments), of which 147,320 indicated support for updating or strengthening the disclaimer rules or other government action; 2,262 indicated opposition to such efforts; and 190 did not indicate a discernable preference.10

    9See internet Communication Disclaimers; Reopening of Comment Period, 82 FR 46937 (Oct. 10, 2017); see also internet Communication Disclaimers; Extension of Comment Period, 82 FR 52863 (Nov. 15, 2017) (explaining Commission's extension of comment period for one business day due to technological difficulties).

    10 Commission staff read and categorized each comment in one of three broad categories: Support, oppose, or neutral. “Support” included comments supporting more stringent disclaimer rules; favoring “transparency”; opposing application of the small items or impracticable exceptions to online advertisements; opposing advertising by foreign nationals; opposing Russian interference in the 2016 election; or supporting the “Honest Ads Act” or any of its components. See S. 1989, 115th Cong. (2017). “Oppose” included comments opposing any rulemaking; opposing more stringent disclaimer rules; supporting application of the small items or impracticable exceptions to online advertising; supporting modified disclaimers in lieu of full disclaimers; opposing any restriction of speech, “infringement” of constitutional rights, or “censorship”; or reminding the Commission to read the Constitution. “Neutral” included comments recognizing the value of disclaimers, but noting the difficulty of providing disclaimers online; recommending modified disclaimers in some, but not all, circumstances; appearing to make contradictory statements in support or opposition; presenting unclear statements of preferred action, such as “do the right thing”; or commenting off topic, such as on net neutrality. Comments addressing specific aspects of the current or proposed rules are discussed below, as appropriate.

    After considering the comments from all three comment periods and additional deliberation, the Commission now seeks comment on the proposed changes described in this notice. Other than the issues specified in this notice, the Commission does not, in this rulemaking, propose changes to any other rules adopted by the Commission in the internet Communications rulemaking of 2006.

    B. Current Statutory and Regulatory Framework Concerning Disclaimers

    A “disclaimer” is a statement that must appear on certain communications to identify who paid for it and, where applicable, whether the communication was authorized by a candidate. 52 U.S.C. 30120(a); 11 CFR 110.11; see also Disclaimers, Fraudulent Solicitations, Civil Penalties, and Personal Use of Campaign Funds, 67 FR 76962, 76962 (Dec. 13, 2002) (“2002 Disclaimer E&J”). The Supreme Court has recognized that disclaimer requirements may burden political speech, and thus must bear a substantial relation to a sufficiently important governmental interest. See Citizens United v. FEC, 558 U.S. 310, 366-67 (2010) (“Citizens United”) (citing Buckley v. Valeo, 424 U.S. 1, 64, 66 (1976) (“Buckley”)).

    The Court has found that the government's interest in mandating such disclaimers justifies the accompanying burden on political speech. For example, in approving the disclaimers at issue in Citizens United, the Court explained, “[d]isclaimer and disclosure requirements may burden the ability to speak, but they impose no ceiling on campaign-related activities and do not prevent anyone from speaking. The Court has subjected these requirements to exacting scrutiny, which requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest.” Id. (internal quotation marks and alterations removed). The Court also held that disclaimers “provide the electorate with information and insure that the voters are fully informed about the person or group who is speaking,” and stated that identifying the sources of advertising enables people “to evaluate the arguments to which they are being subjected.” Id. at 368 (internal quotations and alterations removed).

    With some exceptions, the Act and Commission regulations require disclaimers for public communications: (1) Made by a political committee; (2) that expressly advocate the election or defeat of a clearly identified federal candidate; or (3) that solicit a contribution. 52 U.S.C. 30120(a); 11 CFR 110.11(a). Under existing regulations, the term “public communication” does not include internet communications other than “communications placed for a fee on another person's website.” 11 CFR 100.26. In addition to these internet public communications, “electronic mail of more than 500 substantially similar communications when sent by a political committee . . . and all internet websites of political committees available to the general public” also must have disclaimers. 11 CFR 110.11(a).

    The content of the disclaimer that must appear on a given communication depends on who authorized and paid for the communication. If a candidate, an authorized committee of a candidate, or an agent of either pays for and authorizes the communication, then the disclaimer must state that the communication “has been paid for by the authorized political committee.” 11 CFR 110.11(b)(l); see also 52 U.S.C. 30120(a)(1). If a public communication is paid for by someone else, but is authorized by a candidate, an authorized committee of a candidate, or an agent of either, then the disclaimer must state who paid for the communication and that the communication is authorized by the candidate, an authorized committee of the candidate, or an agent of either. 11 CFR 110.11(b)(2); see also 52 U.S.C. 30120(a)(2). If the communication is not authorized by a candidate, an authorized committee of a candidate, or an agent of either, then the disclaimer must “clearly state the full name and permanent street address, telephone number, or World Wide Web address of the person who paid for the communication, and that the communication is not authorized by any candidate or candidate's committee.” 11 CFR 110.11(b)(3); see also 52 U.S.C. 30120(a)(3).

    Every disclaimer “must be presented in a clear and conspicuous manner, to give the reader, observer, or listener adequate notice of the identity” of the communication's sponsor. 11 CFR 110.11(c)(1). While the Act and Commission regulations impose specific requirements for communications that are “printed” or that appear on radio or television, they do not specify additional requirements for disclaimers on internet advertisements. Compare 11 CFR 110.11(c)(1) (general “clear and conspicuous” requirement for all disclaimers), with 11 CFR 110.11(c)(2)-(4) (additional requirements for printed, radio, and television disclaimers) and 52 U.S.C. 30120(c)-(d) (specifications for printed, radio, and television disclaimers).

    Commission regulations set forth limited exceptions to the general disclaimer requirements. For example, disclaimers are not required for communications placed on “[b]umper stickers, pins, buttons, pens, and similar small items upon which the disclaimer cannot be conveniently printed.” 11 CFR 110.11(f)(1)(i) (“small items exception”). Nor are disclaimers required for “[s]kywriting, water towers, wearing apparel, or other means of displaying an advertisement of such a nature that the inclusion of a disclaimer would be impracticable.” 11 CFR 110.11(f)(1)(ii) (“impracticable exception”).

    C. Application of the Disclaimer Requirements to Internet Communications 1. Development of Current Rule That Paid Internet Advertisements Require Disclaimers

    The Commission first addressed disclaimers on internet communications in two 1995 advisory opinions regarding the application of the Act to internet solicitations of campaign contributions. See Advisory Opinion 1995-35 (Alexander for President); Advisory Opinion 1995-09 (NewtWatch PAC).11 The Commission determined that internet solicitations are “general public political advertising” 12 and, as such, they “are permissible under the [Act] provided that certain requirements, including the use of appropriate disclaimers, are met.” Advisory Opinion 1995-35 (Alexander for President) at 2 (characterizing conclusion in Advisory Opinion 1995-09 (NewtWatch PAC)). Later that year, the Commission stated in a rulemaking that “internet communications and solicitations that constitute general public political advertising require disclaimers,” adding that “[t]hese communications and others that are indistinguishable in all material aspects from those addressed in [Advisory Opinion 1995-09 (NewtWatch PAC)] will now be subject to” the disclaimer requirement. See Communications Disclaimer Requirements, 60 FR 52069, 52071 (Oct. 5, 1995).

    11 Documents related to Commission advisory opinions are available on the Commission's website at www.fec.gov/data/legal/advisory-opinions/.

    12 At the time, 11 CFR 110.11 explicitly applied to “general public political advertising.” The current rule uses the term “public communication” as defined at 11 CFR 100.26, which includes “general public political advertising.”

    The Bipartisan Campaign Reform Act of 2002, Public Law 107-155, 116 Stat. 81 (2002) (“BCRA”), added specificity to the disclaimer requirements (including “stand by your ad” requirements for certain radio and television communications), expanded the scope of communications covered by the disclaimer requirements, and defined a new term, “public communication,” that did not reference the internet. See 52 U.S.C. 30101(22), 30120; see also 2002 Disclaimer E&J, 67 FR at 76962. The Commission promulgated rules to implement BCRA's changes to the disclaimer provisions of the Act and the new statutory definition of “public communication.” See 2002 Disclaimer E&J, 67 FR at 76962; Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money, 67 FR 49064, 49111 (July 29, 2002) (“Non-Federal Funds E&J”). The 2002 rules incorporated the term “public communication” to describe the general reach of the disclaimer rules and applied the disclaimer requirements to political committees' websites and distribution of more than 500 substantially similar unsolicited emails. Other than these two specific types of internet-based activities by political committees, however, internet communications were excluded from the regulatory definition of “public communication” and, therefore, outside the scope of the disclaimer requirements that apply to public communications. See 2002 Disclaimer E&J, 67 FR at 76963-64; Non-Federal Funds E&J, 67 FR at 49111.

    In 2006, after a court challenge to the regulatory definition of “public communication,” the Commission revised its rules to include internet communications “placed for a fee on another person's website” in the definition of “public communication” and, therefore, within the scope of the disclaimer rule. See 2006 internet E&J, 71 FR at 18594; see also Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) (holding, among other things, that Commission could not wholly exclude internet activity from the definition of “public communication”). The Commission explained that, under the revised definition, “when someone such as an individual, political committee, labor organization or corporation pays a fee to place a banner, video, or pop-up advertisement on another person's website, the person paying makes a `public communication.'” 2006 internet E&J, 71 FR at 18593-94. Furthermore, the Commission explained that “the placement of advertising on another person's website for a fee includes all potential forms of advertising, such as banner advertisements, streaming video, popup advertisements, and directed search results.” 13 Id.; see also id. at 18608 n.52 (noting that, as used in a different context, “terms `website' and `any internet or electronic publication' are meant to encompass a wide range of existing and developing technology” including “social networking software”). Thus, since 2006, Commission regulations have required disclaimer information to be included in certain paid internet advertisements.

    13 But “when the search results are displayed as a result of the normal function of a search engine, and not based on any payment for the display of a result, the search results are not forms of `general public political advertising,' ” and “where a search engine returns a website hyperlink in its normal course, and features the same hyperlink separately as the result of a paid sponsorship arrangement, the latter is a `public communication' while the former is not.” 2006 internet E&J, 71 FR at 18594 n.28.

    2. Application of Disclaimer Rule to “Small” Internet Communications

    The Commission has been asked on a number of occasions about the application of the disclaimer requirement to internet communications, including small, character- or space-limited internet communications such as banner advertisements; social media text, video, or image advertisements; and directed search results. The queries center on whether the communications are exempt from the disclaimer requirements under the impracticable or small items exceptions at 11 CFR 110.11(f)(1) or whether they may incorporate technological modifications to satisfy the disclaimer requirements.14

    14See Advisory Opinion 2017-12 (Take Back Action Fund); Advisory Opinion 2010-19 (Google); see also Advisory Opinion Request, Advisory Opinion 2013-18 (Revolution Messaging) (Sept. 11, 2013); Advisory Opinion Request, Advisory Opinion 2011-09 (Facebook) (Apr. 26, 2011). In addition to the advisory opinion requests concerning internet advertisements, another advisory opinion request asked the Commission to apply the impracticable exception in support of truncating a political committee's name in disclaimers on its mass emails and on its website. See Advisory Opinion 2013-13 (Freshman Hold'em JFC et al.) at n.4.

    The Commission has applied the small items exception to the general disclaimer requirements in situations where there are “technological limitations on both the size and the length of information” that can be contained based on the small physical size of the item or an external technological constraint. Advisory Opinion 2007-33 (Club for Growth PAC) at 3 (declining to extend small items exception to spoken disclaimer requirement); see also Advisory Opinion 1980-42 (Hart for Senate Campaign Committee) (applying the exception to concert tickets); Advisory Opinion 2002-09 (Target Wireless) (applying the exception to character-limited “short message service,” or SMS, communications distributed through a non-internet-based wireless telecommunications network); 11 CFR 110.11(f)(1)(i). In the Target Wireless advisory opinion, the Commission considered whether disclaimers were required on paid content distributed via SMS communications through a non-internet-based wireless telecommunications network. At the time the Commission issued that advisory opinion, technology limited SMS content to 160 text-only characters per message; SMS messages could not include images; wireless telephone carriers contractually required consumers to pay a flat fee for a certain number of SMS messages that consumers could receive; and content longer than 160 text characters would be sent over multiple messages, which might not be received consecutively. Advisory Opinion 2002-09 (Target Wireless) at 2. The Commission concluded that the small items exception applied to paid SMS messages, noting “that the SMS technology places similar limits on the length of a political advertisement as those that exist with bumper stickers.” Id. at 4.

    The Commission has not exempted any disclaimers under the small items exception in the 15 years since it issued the Target Wireless advisory opinion. The Commission discussed the small items exception in Advisory Opinion 2007-33 (Club for Growth PAC), which concerned whether an advertiser could “dispense with” or “truncate” the required disclaimers in 10- and 15-second television advertisements. The Commission concluded that the advertisements did not qualify for the small items exception.

    The related impracticable exception at 11 CFR 110.11(f)(1)(ii) exempts from the disclaimer requirement advertisements displayed via skywriting, water towers, and wearing apparel, as well as “other means of displaying an advertisement of such a nature that the inclusion of a disclaimer would be impracticable.” The list of communications in the rule is not exhaustive. The Commission has not, however, applied the impracticable exception to a situation beyond those listed in section 110.11(f)(1)(ii). See Advisory Opinion 2007-33 (Club for Growth PAC) (determining that “physical or technological limitations” in 10- and 15-second television advertisements do not qualify for impracticable exception); Advisory Opinion 2004-10 (Metro Networks) (determining that “live read” traffic report sponsorship messages, delivered by reporters from mobile units and aircraft, did not present “specific physical and technological limitations” to qualify for impracticable exception); see also Advisory Opinion 2013-13 (Freshman Hold'em JFC et al.) at n.4 (concluding that “emails and web pages . . . are not electronic communications in which the inclusion of disclaimers may be inherently impracticable.”).

    Nonetheless, in Advisory Opinion 2004-10 (Metro Networks), the Commission recognized that, although the “physical and technological limitations” of a communication medium may “not make it impracticable to include a disclaimer at all,” technological or physical limitations may extend to “one particular aspect of the disclaimer” requirements. Advisory Opinion 2004-10 (Metro Networks) at 3. In such circumstances, the Commission concluded that a disclaimer was required but permitted modifications or adaptations of the technologically or physically limited aspects of the communication medium. See id. at 3-4 (concluding that reporters reading sponsorship message live from aircraft or mobile units could read stand by your ad language, rather than candidate who was not physically present).

    The Commission was first asked to apply the small items exception or impracticable exception to text-limited internet advertisements in 2010. Google proposed to sell AdWords search keyword advertisements limited to 95 text characters; the proposed advertisements would not include disclaimers but would link to a landing page (the purchasing political committee's website) on which users would see a disclaimer. See Advisory Opinion 2010-19 (Google). The Commission concluded that Google's proposed AdWords program “under the circumstances described . . . [was] not in violation of the Act or Commission regulations,” but the advisory opinion did not answer whether Google AdWords ads would qualify for the small items or impracticable exception. Id. at 2.

    In response to two subsequent advisory opinion requests concerning the possible application of the small items exception or impracticable exception to small internet advertisements, the Commission was unable to issue advisory opinions by the required four affirmative votes. See Advisory Opinion Request, Advisory Opinion 2011-09 (Facebook) (Apr. 26, 2011) (concerning application of exceptions to zero-to-160 text character ads with thumbnail size images); Advisory Opinion Request, Advisory Opinion 2013-18 (Revolution Messaging) (Sept. 11, 2013) (concerning application of exceptions to mobile banner ads).

    Finally, the Commission considered an advisory opinion request in 2017 asking whether paid image and video ads on Facebook “must . . . include all, some, or none of the disclaimer information specified by 52 U.S.C. 30120(a).” Advisory Opinion Request at 4, Advisory Opinion 2017-12 (Take Back Action Fund) (Oct. 31, 2017). The Commission issued an opinion concluding that the proposed Facebook image and video advertisements “must include all of the disclaimer information” specified by the Act, but, in reaching this conclusion, Commissioners relied on two different rationales, neither of which garnered the required four affirmative votes. Advisory Opinion 2017-12 (Take Back Action Fund) at 1.

    D. Proposed Revision to the Definition of “Public Communication” at 11 CFR 100.26

    As discussed above, the Commission proposed in the Technology NPRM to revise the definition of “public communication” in 11 CFR 100.26 to include communications placed for a fee on another person's “internet-enabled device or application,” in addition to communications placed for a fee on another person's website. Disclaimers are required for any “public communication” that contains express advocacy or solicits a contribution, and for all public communications by political committees. The Commission wants to make sure that any change to the definition of “public communication” in 11 CFR 100.26 is appropriate as applied in the disclaimer rule, given the complexities of internet advertising and the rapid pace of technological change.

    Commenters in this rulemaking have offered insight into, as one described it, the “myriad of options for advertising via different media and different platforms online.” 15 Since the Commission's 2006 internet rulemaking, the focus of internet activity has shifted from blogging, websites, and listservs 16 to social media networks (Facebook, Twitter, and LinkedIn), media sharing networks (YouTube, Instagram, and Snapchat), streaming applications (Netflix, Hulu), and mobile devices and applications. Other significant developments include augmented and virtual reality 17 and the “Internet of Things”: Wearable devices (smart watches, smart glasses), home devices (Amazon Echo), virtual assistants (Siri, Alexa), smart TVs and other smart home appliances.18 One commenter noted, “[a]s consumers move toward virtual and augmented reality services, wearable technology, screenless assistants, and other emerging technologies, there is every reason to predict that advertisers will demand the ability to reach voters and customers on those technologies, and, in turn, new advertising configurations that have not yet been imagined will be developed.” 19

    15 Computer & Communications Industry Association, Comment at 9 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358503.

    16 2006 Internet E&J at 18590-91; see also Asian Americans Advancing Justice, et al., Comment at 5 (Nov. 13, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=371144 (“In 2006, blogging was at its height, and it seemed as if everyone would have his or her own blog.”).

    17See Computer & Communications Industry Association, Comment at 9.

    18See Asian Americans Advancing Justice, et al., Comment at 7 (also noting potential for political advertising on “smart refrigerators”).

    19 Google, Comment at 4-5 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358482.

    Accordingly, the Commission is reopening the definition of “public communication” in 11 CFR 100.26 for the limited purpose of determining whether revising the definition to include communications placed for a fee on another person's “internet-enabled device or application,” in addition to communications placed for a fee on another person's website, would be a clear and technically accurate way to refer to the various media through which paid internet communications can be and will be sent and received. The Commission invites comment on this proposal. Is it clear from the proposed language that both the placement-for-a-fee requirement and the third-party requirement would apply to websites, internet-enabled devices, and internet applications? In this rulemaking, the Commission is not considering any change to the definition of “public communication” other than the terminology that should replace “website” as used in the definition.

    E. Proposed Revision to the Disclaimer Rules at 11 CFR 110.11

    Technological developments over the past 15 years have rendered much current internet advertising distinguishable from the non-internet-based SMS advertisements to which the Commission applied the small items exception in Advisory Opinion 2002-09 (Target Wireless) and from the internet advertisements the Commission considered in promulgating the disclaimer regulations in 2002. As Facebook explained in a comment on this rulemaking, “[w]hen Facebook submitted its request for an advisory opinion in 2011, ads on Facebook were small and had limited space for text. Ad formats available on Facebook have expanded dramatically since that time.” 20 Indeed, many internet advertisements today include video, audio, and graphic components in addition to the text components considered in the Target Wireless advisory opinion. See, e.g., Advisory Opinion Request, Advisory Opinion 2017-12 (Take Back Action Fund) (Oct. 31, 2017). Moreover, today, commercial internet advertisements are subject to other federal regulatory disclosure regimes.21 Are the different degrees of First Amendment protection afforded political speech as opposed to commercial speech relevant to any consideration of other agencies' disclosure regimes? 22

    20 Facebook noted that some of its ads “continue to be limited in size, with text limitations or truncations based on format and placement of the ad,” but that other formats “allow for additional creative flexibility.” Facebook, Comment at 3 (Nov. 13, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358468 (citing Facebook, Facebook Ads Guide, https://www.facebook.com/business/ads-guide (last visited Mar. 15, 2018)); see also Fidji Simo, An Update on Facebook Ads, Facebook Newsroom (June 6, 2013), https://newsroom.fb.com/news/2013/06/an-update-on-facebook-ads/ (announcing reconfiguration of ad products); Google, Comment at 3 (noting that the “types and varieties of digital advertisements that political advertisers create and place throughout the web has grown exponentially since 2011.”).

    21See CMPLY, Comment at 2 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358493 (noting that regulatory disclaimer and disclosure requirements “have been addressed in similar contexts for marketing, financial and pharmaceutical, without those regulators exempting disclosures in social media channels”).

    22See Buckley, 424 U.S. at 14 (“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order `to assure (the) unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' ”) (citation omitted); Sorrell v. IMS Health Inc., 564 U.S. 552, 579 (2011) (“[G]overnment's legitimate interest in protecting consumers from `commercial harms' explains `why commercial speech can be subject to greater governmental regulation than noncommercial speech' ”) (citations omitted); Citizens United, 558 U.S. at 329 (“[P]olitical speech . . . is central to the meaning and purpose of the First Amendment.”).

    As noted above, the Commission's regulations have required disclaimer information to be included in certain paid internet advertisements since 2006. Spending on digital political advertising grew almost eightfold just between 2012 and 2016, from $159 million to $1.4 billion.23 Many commenters expressed the view that the need for internet communication disclaimers has grown along with spending on internet political advertising.24 As one commenter wrote, “[T]he increasing prominence of online election expenditures makes the failure to update campaign finance laws to adequately cover the internet more dangerous with every cycle.” 25 The dramatic growth in political advertising on the internet highlights the need for regulatory clarity in this area. As one commenter noted, “[w]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary when a new and different medium for communication appears.” 26 Other commenters noted that the importance and value of political advertising disclaimers do not vary when new forms of communication emerge.27

    23See Borrell Associates, The Final Analysis: Political Advertising in 2016, https://www.borrellassociates.com/industry-papers/free-summaries/borrell-2016-political-advertising-analysis-exec-sum-jan-2017-detail (subscription required).

    24See, e.g., Sunlight Foundation, Comment at 1 (Nov. 13, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=360854 (“The FEC and Congress should act to ensure disclosures and disclaimers are neither discretionary nor uneven . . . [D]isclaimers and disclosures don't mean renouncing business or chilling speech, any more than has been the case for TV or radio stations.”).

    25 Brennan Center for Justice, Comment at 3 (Nov. 13, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358487.

    26 Institute for Free Speech, Comment at 3 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358495 (quoting Brown v. Entm't Merchs. Ass'n, 564 U.S. 786, 790 (2011)).

    27See, e.g., BMore Indivisible, Comment at 5 (Nov. 9, 2017) http://sers.fec.gov/fosers/showpdf.htm?docid=358504 (stating that “[p]roviding disclaimers o[n] internet and app advertising is an extension of the role the FEC has historically performed for traditional media. Online media advertising transparency is increasingly essential as Americans turn to the internet as their primary source of information”).

    Thus, the Commission is proposing to add regulatory provisions clarifying, for various types of paid internet public communications, the disclaimers required and, in certain circumstances, when a paid internet communication may employ a modified approach to the disclaimer requirements.

    As explained below, the Commission offers two proposals. They differ in approach.

    Alternative A proposes to apply the full disclaimer requirements that now apply to radio and television communications to public communications distributed over the internet with audio or video components. Alternative A also proposes to apply the type of disclaimer requirements that now apply to printed public communications to text and graphic public communications distributed over the internet. Finally, Alternative A would allow certain small text or graphic public communications distributed over the internet to satisfy the disclaimer requirements through an “adapted disclaimer.”

    Alternative B proposes to treat internet communications differently from communications in traditional media. Alternative B would require disclaimers on internet communications to be clear and conspicuous and to meet the same general content requirement as other disclaimers, without imposing the additional disclaimer requirements that apply to print, radio, and television communications. Alternative B also proposes to allow certain paid internet advertisements to satisfy the disclaimer requirements through an adapted disclaimer, depending on the amount of space or time necessary for a clear and conspicuous disclaimer as a percentage of the overall advertisement. In the event that an advertisement could not provide a disclaimer even through a technological mechanism, Alternative B proposes to create an exception to the disclaimer requirement specifically for paid internet advertisements.

    The Commission requests comment on all elements of both proposals. The two proposals need not be considered as fixed alternatives; commenters are encouraged to extract the best elements of each, or suggest improvements or alternatives, to help the Commission fashion the best possible rule.

    1. Proposed Disclaimer Requirements for Communications Distributed Over the Internet—Organization

    Both Alternative A and Alternative B propose to add new paragraph (c)(5) to 11 CFR 110.11. New paragraph (c)(5) in each proposal would provide specific disclaimer requirements for internet communications. This approach would be consistent with the current structure of the disclaimer rule at 11 CFR 110.11, which categorizes disclaimer requirements by the form of communication on which they appear.

    In the first paragraph of Alternative B's proposed section (c)(5), Alternative B proposes to define the term “internet communications.” Alternative A does not propose to introduce or define this term. Alternative B's proposed paragraph (c)(5)(i)(A) defines “internet communications” as email of more than 500 substantially similar communications when sent by a political committee; internet websites of political committees available to the general public; and “internet public communications” as defined in paragraph (c)(5)(i)(B). Alternative B's proposed paragraph (c)(5)(i)(B) defines “internet public communication,” in turn, as any communication placed for a fee on another person's website or internet-enabled device or application. Alternative B's proposed definition of “internet communication” is intended to capture all communications distributed via the internet that are subject to the disclaimer requirement. See 11 CFR 110.11(a)(1)-(3). Alternative B's proposed definition of “internet public communication” is intended to capture all online “public communications,” as defined in 11 CFR 100.26. Are the proposed definitions sufficiently broad to encompass new technologies? Are they platform-neutral? Should the definition of “internet public communication” include a reference to virtual reality, social networking, or internet platforms?

    Both Alternative A and Alternative B propose to define additional terms: “adapted disclaimer,” “technological mechanism,” and “indicator.” These terms are discussed below.

    2. Disclaimer Requirements for Video and Audio Communications Distributed Over the Internet

    As described below, Alternative A proposes to extend the specific requirements for disclaimers on radio and television communications to public communications distributed over the internet with audio or video components. Under Alternative A, such audio and video internet public communications would also be required to satisfy the general requirements that apply to all public communications requiring disclaimers. Alternative B likewise proposes to require that radio and television communications distributed over the internet must satisfy the general requirements that apply to all public communications requiring disclaimers. Alternative B would not extend any additional disclaimer requirements to such communications.

    a. Alternative A—Proposed 11 CFR 110.11(c)(5)(ii)

    As noted above, the Act and Commission regulations impose specific requirements for disclaimers on radio and television communications. See 52 U.S.C. 30120(d); 11 CFR 110.11(c)(3)-(4). These requirements vary, depending on whether a candidate or another person pays for or authorizes the communication.

    Radio communications paid for or authorized by a candidate must include an audio statement spoken by the candidate, identifying the candidate and stating that the candidate has approved the communication. 11 CFR 110.11(c)(3)(i). Radio communications that are not paid for or authorized by a candidate must include an audio statement identifying the person paying for the communication and that that person “is responsible for the content of this advertising.” 11 CFR 110.11(c)(4)(i).

    Television, broadcast, cable, or satellite communications paid for or authorized by a candidate must include a statement by the candidate, identifying the candidate and stating that the candidate has approved the communication, either through a full-screen view of the candidate making the statement or by a voice-over accompanied by a “clearly identifiable photographic or similar image” of the candidate; these communications must also include a similar statement “in clearly readable writing” at the end of the communication. 11 CFR 110.11(c)(3)(ii)-(iii). Television, broadcast, cable, or satellite communications that are not paid for or authorized by a candidate must include the audio statement required by 11 CFR 110.11(c)(4)(i) and conveyed by a “full-screen view of a representative” of the person making the statement or in a voice-over by such person; these communications must also include a similar statement “in clearly readable writing” at the end of the communication. 11 CFR 110.11(c)(4)(ii)-(iii).28

    28 The Commission previously extended the “stand by your ad” requirements to communications transmitted through broadcast, cable, or satellite transmission. See 2002 Disclaimer E&J, 67 FR at 76963 (referring to “the Commission's judgment that it would be unsupportable to require a disclaimer for a television communication that was broadcast, while not requiring a disclaimer for the same communication merely because it was carried on cable or satellite”).

    As noted above, internet advertisements may be in the form of audio or video communications, or may incorporate audio or video elements.29 Alternative A is based on the premise that these advertisements are indistinguishable from offline advertisements that may be distributed on radio or television, broadcast, cable, or satellite in all respects other than the medium of distribution.30 Moreover, because the audio and video components of internet communications with these elements do not contain “character” restrictions, Alternative A proposes to apply parameters to such communications akin to the parameters in which disclaimers must appear on radio and television advertisements rather than the conditions that may constrain “printed” materials on which a disclaimer must appear.

    29See, e.g., 5 Advertising Trends from the 2016 Presidential Election, Pandora for Brands (Dec. 8, 2016), http://pandoraforbrands.com/insight/5-advertising-trends-from-the-2016-presidential-election (urging readers “[t]o learn how Pandora can help amplify your next political campaign”); Amy Schatz, In Hot Pursuit of the Digital Voter, Wall St. J., Mar. 23, 2012, www.wsj.com/articles/SB10001424052702303812904577299820064048072 (showing screenshots of 2012 presidential committee advertisements on Hulu and noting another campaign's purchase of advertisements on Pandora internet radio); see also Advisory Opinion Request at 4, Advisory Opinion 2017-12 (Take Back Action Fund) (Oct. 31, 2017).

    30See, e.g., Electronic Privacy Information Center, Comment at 3 (Nov. 3, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358477 (urging extension of broadcast communication disclaimer requirements to “analogous” communication online); Rep. John Sarbanes et al., Comment at 2 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358505 (noting belief of 18 Members of Congress that “it is past time for the Commission to take action to harmonize disclaimer requirements for paid internet communications, regardless of size, on internet platforms with advertisements served on other media, such as broadcast television or radio”); accord 2006 Internet E&J, 71 FR at 18609 (“The Commission has consistently viewed online, internet-based dissemination of news stories, commentaries, and editorials to be indistinguishable from offline television and radio broadcasts, newspapers, magazines and periodical publications for the purposes of applying the media exemption under the Act”); but see Software and Information Industry Association, Comment at 3 (Nov. 13, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358508 (“Digital advertising is inherently more diverse than a simple transition of similar content from print or broadcast television.”).

    Accordingly, in Alternative A, the Commission proposes to provide that public communications distributed over the internet with audio or video components are treated, for purposes of the disclaimer rules, the same as “radio” or “television” communications. The Commission, in Alternative A, proposes to do so in proposed paragraph (c)(5)(ii), which would incorporate the existing requirements at 11 CFR 110.11(c)(3) and (4) that apply to radio, television, broadcast, cable, and satellite communications, because those provisions have been in operation for 15 years and are, therefore, familiar to persons paying for, authorizing, and distributing communications. Moreover, by applying the specifications for radio and television communications to audio and video communications distributed over the internet, the proposed regulations would ensure that internet audio ads could air on radio and internet video ads could air on television without having to satisfy different disclaimer requirements.

    Alternative A's proposed paragraph (c)(5)(ii) would provide that a “public communication distributed over the internet with audio but without video, graphic, or text components” must include the statement described in 11 CFR 110.11(c)(3)(i) and (iv) if authorized by a candidate, or the statement described in 11 CFR 110.11(c)(4) if not authorized by a candidate.

    Alternative A's proposals concerning audio communications (like Alternative A's proposals for video, text, and graphic internet communications discussed below) incorporate the term “public communication,” as it exists or may be amended, to make clear that these provisions neither expand nor contract the scope of the disclaimer rules set forth at 11 CFR 110.11(a). The proposed reference to “a public communication distributed over the internet with an audio component but without video, graphic, or text components” (like the reference to the “internet” in Alternative A's proposals for video, text, and graphic internet communications discussed below) is intended to encompass advertisements on websites as well as those distributed on other internet-enabled or digital devices or applications; for audio internet advertisements, these would include communications on podcasts, internet radio stations, or app channels.31 The proposed reference to a “public communication distributed over the internet” is not intended to alter the definition of “public communication,” as defined in 11 CFR 100.26. Is this clear, or should the Commission include a cross-reference in the regulatory text? Moreover, so as to hew most closely to the “radio” provisions that Alternative A incorporates, the proposed amendments regarding “audio” internet communications are intended to apply to those communications with only an audio component. The Commission proposes to address communications with any “video, graphic, or text components” separately, as explained below.

    31See Software and Information Industry Association, Comment at 3 (“in-app advertising has become one of the fastest-growing mobile ad mediums”).

    Alternative A's proposed paragraph (c)(5)(ii) would also provide that a “public communication distributed over the internet with a video component” must include the statement described in 11 CFR 110.11(c)(3)(ii)-(iv) if authorized by a candidate, or the statement described in 11 CFR 110.11(c)(4) if not authorized by a candidate.

    Because this proposal is intended to encompass video public communications on websites, apps, and streaming video services, Alternative A's proposed new paragraph (c)(5)(ii) would apply to a video that a political committee pays to run as a “pre-roll” video on the YouTube app or appear in a promoted YouTube.com search result, but would not apply to the same video posted for free on YouTube.com (since a communication not placed for a fee would not be a “public communication”).32 Unlike traditional television, broadcast, cable, or satellite ads, however, video advertisements placed online may include non-video components such as separate text, or graphic fields. The proposed rule regarding internet video ads thus would differ from the existing television, broadcast, cable, and satellite provisions in that the proposed rule would apply even if the communication also included non-video components.

    32See Google, Comment at 3 (describing Google ad products on YouTube).

    This aspect of Alternative A would not explicitly address small audio or video internet ads. The Commission proposes to take this approach to hew Alternative A's proposed rules on audio and video ads as closely as possible to the existing disclaimer provisions for advertisements transmitted by radio, television, broadcast, cable, and satellite, which do not, in paragraphs (c)(3) or (4), account for “small” advertisements. Should new technology develop that would render the provision of a disclaimer on a particular type of audio or video internet communication impracticable, the Commission anticipates that, as with current TV and radio ads, such circumstances could be addressed in an advisory opinion seeking to exempt such a communication from the disclaimer requirements.33

    33See 11 CFR 112.1 (describing advisory opinion requests); see also Advisory Opinion 2007-33 (Club for Growth PAC) (considering and rejecting request to apply small items exception to disclaimers in 10- and 15-second television advertisements).

    The Commission seeks comment as to whether these proposals accurately describe audio and video communications over the internet, regardless of the electronic or digital platforms on which they may be distributed. For example, does the Commission need to clarify or expand the term “internet”? Similarly, does the Commission need to clarify the term “video” to address whether an advertisement with a GIF is a communication “with a video component” or one with a “graphic” component? Similarly, should the Commission expressly include or exclude from the term “video” static (i.e., non-moving) paid digital advertisements in dynamic (i.e., moving) environments such as “billboard” ads inside interactive gaming systems, or virtual-reality and augmented-reality platforms? 34

    34See, e.g., Steve Gorman, Obama Buys First Video Game Campaign Ads, Reuters, Oct. 17, 2008, https://www.reuters.com/article/us-usa-politics-videogames/obama-buys-first-video-game-campaign-ads-idUSTRE49EAGL20081017 (showing example of static court-side ad in dynamic basketball gaming environment).

    The Commission also welcomes comment on any aspect of these proposals, including the approach towards the exceptions and, more generally, the advisability of treating audio and video internet communications in the manner that radio, television, broadcast, cable, and satellite communications are treated.

    b. Alternative B—Proposed Paragraph (c)(5)(ii)

    The proposals in Alternative B are premised on the internet as a “unique medium of . . . communication[]” 35 that poses “unique challenges with respect to advertising disclosures.” 36 Although advertisements on the internet may often look or sound like television or radio advertisements, several commenters focused on the differences between internet advertising and advertising on more traditional forms of media. As one stated, “[d]igital advertising is inherently more diverse than a simple transition of similar content from print or broadcast television. It comes in many different formats presented across a wide range of technology platforms with screen size ranging from large to very small.” 37 Another commenter noted that, “[i]n addition to character-limited ads that just feature text, there are banner ads with images and text, video ads with text, and audio ads that also feature a corresponding interactive image or video on an app.” 38 A third commented on the “nearly infinite range . . . of possible combinations of hardware, software, add-ons, screen sizes and resolutions, individualized settings, and other factors . . . can affect the display of a political communication” on the internet.39 “Content that is optimized for viewing on phones, tablets, and other mobile devices is distinct from content that appears on a desktop or laptop computer.” 40 The “ways people physically interact with content also vary by medium (e.g., a user can `rollover' content on a desktop screen to see more information, but may not use a mouse or view rollovers on a mobile device).” 41 In addition, internet advertisements can vary significantly in duration. Internet ads can last for as little as “fifteen seconds . . . or even shorter,” and entire ad campaigns can last for as little as “a few days or just a few hours for events like flash sales.” 42 Moreover, “[p]aid advertising on the internet is constantly evolving in nature.” 43

    35 Public Citizen and Free Speech for People, Comment at 3 (Nov. 1, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358485 (expressing the view that “disclaimers on all forms of on-line paid campaign advertising are practical and pose little inconvenience” to sponsors or recipients); see also id. at 1 (referring to “the unique medium of internet communications” in urging Commission to proceed with rulemaking).

    36 Software & Information Industry Association, Comment at 3.

    37Id.

    38 Computer & Communications Industry Association, Comment at 9.

    39 Coolidge-Reagan Foundation, Comment at 5 (Nov. 8, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358499.

    40 Facebook, Comment at 2.

    41Id.

    42 Computer & Communications Industry Association, Comment at 11.

    43 Public Citizen and Free Speech for People, Comment at 3; see also American Federation of Labor and Congress of Industrial Organizations, et al., Comment at 2 (Dec. 19, 2016), http://sers.fec.gov/fosers/showpdf.htm?docid=354341 (“Since the technology of the internet is rapidly changing, and will likely continue to do so indefinitely, the Commission's rules in this area must be sufficiently flexible and principle-focused so they do not become obsolete in short order.”).

    Given the rapid pace of technological change and an inability to forecast the future, the revisions to the disclaimer rules proposed in Alternative B are intended to recognize the differences between the internet and traditional forms of media like newspapers, radio, and television.44 Thus, Alternative B's proposed paragraph (c)(5)(ii) would require disclaimers on internet communications to meet the general content requirements in 11 CFR 110.11(b) and the general “clear and conspicuous” requirement of 11 CFR 110.11(c)(1), but not the additional “stand by your ad” requirements for radio and television communications.45

    44See Center for Competitive Politics, Comment at 3 (Dec. 19, 2016), http://sers.fec.gov/fosers/showpdf.htm?docid=354344; see also Campaign Solutions, Comment at 1 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=365826 (“As new and disruptive technologies change the way we interact with technology and consume media, we are sometimes unable to anticipate the format of political advertising.”); Computer & Communications Industry Association, Comment at 13 (“Campaigns are constantly trying new methods to appeal to new voters, and political campaign communication and advertising methods change with every election cycle. As technology develops, new forms of advertising could become available.”).

    45See Electronic Frontier Foundation, Comment at 2 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358498; see also Google, Comment at 4 (“unlike broadcast advertising, which involves an advertiser providing a static advertisement to the broadcaster that is the same ad every time it airs, digital ads can be dynamic”); Coolidge-Reagan Foundation, Comment at 4 (“Any internet-related regulations should afford speakers maximum flexibility in satisfying any applicable disclaimer requirements, rather than being tied to specific forms of communication that may become superseded or outmoded.”). But see supra n.30 and comments cited therein.

    The Act requires all disclaimers to provide payment and authorization information, regardless of the form that the communication may take, but imposes additional “stand by your ad” requirements only on television and radio communications.46 Does the Commission have the legal authority to extend those requirements to internet communications? 47 If so, should the Commission exercise that authority? Or, as a practical matter, do the differences between internet advertising and radio and television advertising make the “stand by your ad” requirements a poor fit for audio and video public communications on the internet? Some commenters in this rulemaking indicated that the internet is a continuously evolving advertising medium with a wide range of platforms, formats, displays, duration, and interactivity. Are the “stand by your ad” requirements for television and radio communications overly inflexible by comparison? 48 For example, television advertisements must have both spoken and written disclaimers. One commenter estimated that the spoken disclaimer can take five or more seconds to deliver,49 and the Act requires the written disclaimer to appear “in a clearly readable manner . . . for a period of at least 4 seconds.”50 Is it reasonable to impose these requirements on paid internet advertisements? 51 Should audio or video internet ads that are very short be required to provide full “stand by your ad” disclaimer information, as the Commission has decided in the television advertising context? 52 Does requiring a candidate or other individual representing the payor to claim responsibility for a communication by image or voice-over (as is currently required for radio and television communications) impose an additional burden on the person making the communication? Is this the type of obligation that courts have approved in television and radio advertising? What additional information, if any, does this requirement convey to a reader, viewer, or listener about the source of the communication?

    46Compare 52 U.S.C. 30120(d) (imposing “stand by your ad” requirements on radio and television communications only) with 30104 (requiring Commission to make disclosure reports publicly available on internet), 30112 (requiring Commission to maintain central site on internet).

    47 The recently introduced Honest Ads Act would amend the Act by requiring, among other things, disclaimers on internet communications to comply with the same “stand by your ad” requirements as radio and television communications. See S. 1989, 115th Cong. § 7(b) (2017).

    48See, e.g., 52 U.S.C. 30120(d)(1)(B) (requiring television advertisement authorized by candidate to provide disclaimer through “unobscured, full-screen view of the candidate making the statement, or the candidate in voice-over, accompanied by a clearly identifiable photographic or similar image of the candidate,” and “in writing at the end of the communication in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 4 seconds”), 30120(d)(2) (requiring television advertisement not authorized by candidate to provide disclaimer “conveyed by an unobscured, full-screen view of a representative of the political committee or other person making the statement, or by a representative of such political committee or other person in voice-over, and shall also appear in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 4 seconds”).

    49See Computer & Communications Industry Association, Comment at 11.

    50 52 U.S.C. 30120(d)(1)(B)(ii), (d)(2) (emphasis added); see also 11 CFR 110.11(c)(3)(iii)(B), (c)(4)(iii)(B).

    51See Computer & Communications Industry Association, Comment at 11 (stating that audio advertisements on internet “could be fifteen seconds in length or even shorter” and urging Commission to “avoid rigidly extending broadcast radio spoken-word disclaimer requirements for radio to online platforms”).

    52See Advisory Opinion 2007-33 (Club for Growth PAC) (requiring full stand-by-your-ad disclaimers in 10- and 15-second television advertisements).

    3. Disclaimer Requirements for Text and Graphic Communications Distributed Over the Internet

    As described below, Alternative A proposes to extend to text and graphic public communications distributed over the internet that lack any video component the specific requirements for disclaimers on printed public communications. Under Alternative A, such text and graphic public communications would also be required to satisfy the general requirements that apply to all public communications requiring disclaimers. Alternative B proposes to require all public communications distributed over the internet, including text and graphic public communications, to satisfy the general requirements that apply to all public communications requiring disclaimers, and does not propose to extend any additional disclaimer requirements to such communications.

    a. Alternative A i. Proposed 11 CFR 110.11(c)(5)(i)

    Internet advertisements may be in the form of text, image, and other graphic elements with audio but without video components; such advertisements come “in all shapes and sizes.” 53

    53 Google, Comment at 5 (describing ad products on the Google Display Network); see also Advisory Opinion Request 2017-12 (Take Back Action Fund) at 4.

    Alternative A proposes to adapt the existing requirements at 11 CFR 110.11(c)(2) that apply to printed communications because they have been in operation for 15 years and are, therefore, familiar to persons paying for, authorizing, and distributing communications.

    Alternative A's proposed new paragraph (c)(5)(i) would provide that a “public communication distributed over the internet with text or graphic components but without any video component” must contain a disclaimer that is of “sufficient type size to be clearly readable by the recipient of the communication,” a requirement adapted from 11 CFR 110.11(c)(2)(i). Alternative A's proposed paragraph (c)(5)(i) would further specify this “text size” requirement by providing that a “disclaimer that appears in letters at least as large as the majority of the other text in the communication satisfies the size requirement.” Finally, Alternative A's proposed paragraph (c)(5)(i) would require that a disclaimer be displayed “with a reasonable degree of color contrast between the background and the text of the disclaimer,” a requirement the proposal indicates would be satisfied if the disclaimer “is displayed in black text on a white background or if the degree of color contrast between the background and the text of the disclaimer is no less than the color contrast between the background and the largest text used in the communication.” These proposals are adapted from 11 CFR 110.11(c)(2)(iii).

    ii. Text or Graphic Internet Communications With Video or Audio Components

    The proposal in Alternative A regarding a public communication distributed over the internet “with text or graphic components but without any video component” is intended to work in conjunction with Alternative A's video proposal discussed above; under the operation of both of these parts of Alternative A, an internet communication that contains both text or graphic elements and a video component would be subject only to the specific disclaimer rules applicable to television, broadcast, cable, and satellite communications that are incorporated into Alternative A's proposed paragraph (c)(5)(ii). The Commission seeks comment on this proposal. In particular, the Commission seeks comment regarding how users interact with internet advertisements that contain both text or graphic and video elements. Is it common for users to view only the printed or video components of an internet advertisement that contains both? Should the Commission require that such communications include at least an adapted disclaimer, see below, on the face of the text or graphic element? Do such adapted disclaimers provide adequate transparency? How important is it for adapted disclaimers to provide information sufficient to identify the communication's payor on the communication's face? Would a hyperlink in a communication be a reliable way to identify the payor or could hyperlinks prove to be transient? Could an indicator be used to defeat disclosure by linking to, for example, goo.gl/nRk1H1 at publication and then, once a complaint is filed with the Commission, to an actual political committee's website? Should the Commission consider other approaches, such as allowing political committees to identify themselves in adapted disclaimers with their FEC Committee ID numbers? Should or could the Commission require the hyperlinks on the adapted disclaimers of political committees to connect to the committees' fec.gov pages? 54 Should the Commission adopt rules that require a disclaimer to be included on either the text and graphic portion or the video portion of an internet advertisement, or on both portions, depending on the proportion of the advertisement that contains each type of content? Alternatively, should the rules allow an advertiser the choice between the “television” or “text and graphic” communication disclaimer rules for an internet communication that contains both video and text or graphic components?

    54 For example: https://www.fec.gov/data/committee/C00580100/?tab=about-committee, where “C00580100” is the organization's Committee ID.

    Similarly, under the operation of the “text or graphic” and audio proposals in Alternative A, an internet communication that contains both text and graphic elements and an audio, but not a video, component, would be subject to the specific disclaimer rules applicable only to text or graphic communications. Alternative A does not propose to include such communications in the proposed “audio” rules because such advertisements appear more like text or graphic communications than “radio” ones. The Commission seeks comment on this proposal. In particular, and as with the proposal above, the Commission seeks comment regarding how users interact with internet advertisements that contain both text or graphic and audio elements. Is it common for users only to view the printed components or listen to the audio components of an internet advertisement that contains both? Should the Commission instead consider such advertisements under the “audio” proposals discussed above? Should the Commission require that such communications include both “radio” and text or graphic disclaimers? Should the Commission adopt rules that require disclaimer to be included in either the “text or graphic” or audio portion of an internet advertisement, or on both portions, depending on the proportion of the advertisement that contains each type of content? Alternatively, should the rules allow an advertiser the choice between the “radio” or “text or graphic” communication disclaimer rules for an internet communication that contains both audio and text or graphic components?

    iii. Text and Graphic Internet Communication Disclaimer Text Size Safe Harbor

    Alternative A proposes to establish a “safe harbor” provision identifying disclaimer text size—“letters at least as large as the majority of the other text in the communication”—that clearly satisfies the rule. This would track the current approach for “printed” materials. See 2002 Disclaimer E&J, 67 FR 76965 (describing current 12-point type safe harbor for printed communication disclaimers); cf. Advisory Opinion 1995-09 (NewtWatch PAC) at 2 (approving disclaimer on political committee's website that was “printed in the same size type as much of the body of the communication”). The Commission recognizes that some text or graphic internet communications may not have a “majority” text size. The possible diversity of text sizes in internet text and graphic communications is, in this respect, similar to text size diversity in printed communications currently addressed in 11 CFR 110.11(c)(2)(i). As the Commission explained when adopting the current safe harbor in lieu of a strict size requirement, “the vast differences in the potential size and manner of display of larger printed communications would render fixed type-size examples ineffective and inappropriate.” 2002 Disclaimer E&J, 67 FR 76965. Thus, for internet communications with text or graphic components that are not included in the proposed text-size safe harbor, the intent behind Alternative A is that questions of whether a disclaimer is of sufficient type size to be clearly readable would be “determined on a case-by-case basis, taking into account the vantage point from which the communication is intended to be seen or read as well as the actual size of the disclaimer text,” as they are under the current rule for printed materials. Id. Would the use of metrics minimize the need for case-by-case determinations?

    b. Alternative B—Proposed 11 CFR 110.11(c)(5)(ii)

    Alternative B proposes to treat graphic, text, audio, and video communications on the internet equally for disclaimer purposes. Under proposed paragraph (c)(5)(ii) in Alternative B, disclaimers for all such communications would have to meet the general content requirement of 11 CFR 110.11(b) and be “clear and conspicuous” under 11 CFR 110.11(c)(1), including disclaimers for graphic and text communications on the internet. Thus, the disclaimers would have to be “presented in a clear and conspicuous manner, to give the reader, observer, or listener adequate notice of the identity of the person or political committee that paid for and, where required, that authorized the communication,” 11 CFR 110.11(c)(1). Under Alternative B, disclaimers could not be difficult to read or hear, and their placement could not be easily overlooked. Id. Is Alternative B's proposal to treat internet communications differently from print, radio, and TV communications for disclaimer purposes a reasonable approach to address current internet advertisements and future developments in internet communications?

    Alternative B does not propose to create any safe harbors. The intent behind Alternative B is to establish objective criteria that would cover all situations and minimize the need for case-by-case determinations. Would safe harbors nonetheless be helpful in interpreting and applying the proposed rule? Or do safe harbors tend to become the de facto legal standard applied in advisory opinions and enforcement actions?

    4. Adapted Disclaimers for Public Communications Distributed Over the Internet

    Alternatives A and B both propose that some public communications distributed over the internet may satisfy the disclaimer requirement by an “adapted disclaimer,” which includes an abbreviated disclaimer on the face of the communication in conjunction with a technological mechanism that leads to a full disclaimer, rather than by providing a full disclaimer on the face of the communication itself. Some aspects of both proposals are similar, and some are different, in ways highlighted below.

    The discussion in this section explains the Commission's alternative proposals for when a public communication distributed over the internet may utilize an adapted disclaimer. Alternative A allows the use of an adapted disclaimer when a full disclaimer cannot fit on the face of a text or graphic internet communication due to technological constraints. Alternative B allows the use of an adapted disclaimer when a full disclaimer would occupy more than a certain percentage of any internet public communication's available time or space. Under Alternative B, the first tier of an adapted disclaimer would require the identification of the payor plus an indicator on the face of the communication. Alternative B's second tier adapted disclaimer would require only an indicator on the face of the communication.

    a. Alternative A—Proposed 11 CFR 110.11(c)(5)(i)(A): When a Communication May Use Technological Adaptations

    While current text and graphic internet advertisements are akin in many respects to analog printed advertisements, material differences between them remain. Most significant among these differences are the availability of “micro” sized text and graphic internet advertisements and the interactive capabilities of advertisements over the internet.55 To ensure the disclaimer rules remain applicable to new forms of internet advertising that may arise, while also reducing the need for serial revisions to Commission regulations in light of such developments, Alternative A proposes adopting a provision specifically addressing those text and graphic internet advertisements that cannot, due to external character or space constraints, practically include a full disclaimer on the face of the communication. See Advisory Opinion 2004-10 (Metro Networks) at 3 (concluding that modifications or adaptations to disclaimers may be permissible in light of technologically or physically limited aspects of a communication).

    55See Public Citizen and Free Speech for People, Comment at 3 (noting that paid online communications by “bots” “can be very short and seamlessly integrated into social conversations. Absent disclaimers, such messages are not likely to be perceived as paid messages”); see also Spot-On, Comment at 8 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358480 (noting that “all [online] ads link to some sort of web page or presence”).

    Accordingly, under Alternative A's proposed paragraph (c)(5)(i)(A), a “public communication distributed over the internet with text or graphic components but without any video component” that, “due to external character or space constraints,” cannot fit a required disclaimer must include an “adapted disclaimer.” This provision would explain the circumstances under which a communication may use technological adaptations, describe how the adaptations must be presented, and provide examples of the adaptations.

    Under Alternative A, the determination of whether a public communication distributed over the internet with text or graphic components but without any video component cannot fit a full disclaimer is intended to be an objective one. That is, the character or space constraints intrinsic to the technological medium are intended to be the relevant consideration, not the communication sponsor's subjective assessment of the “difficulty” or “burden” of including a full disclaimer. As the Supreme Court has held in the context of broadcast advertisements, the government's informational interest is sufficient to justify disclaimer requirements even when a speaker claims that the inclusion of a disclaimer “decreases both the quantity and effectiveness of the group's speech.” Citizens United, 558 U.S. at 368. Alternative A is built upon the proposition that the informational interest relied upon by the Supreme Court with respect to broadcast communications is equally implicated in the context of text and graphic public communications distributed over the internet.

    Alternative A's reference to “external character or space constraints” is intended to codify the approach to those terms as the Commission has discussed them in the context of the small items and impracticable exceptions discussed above. See, e.g., Advisory Opinion 2007-33 (Club for Growth PAC) at 3 (contrasting lack of “physical or technological limitations” constraining 10- and 15-second television advertisements with “overall limit” and “internal limit” on size or length of SMS ads); Advisory Opinion 2004-10 (Metro Networks) at 3 (discussing “physical and technological limitations” of ad read live from helicopter). This approach to determining when a communication cannot fit a required disclaimer—rather than by the particular size of the communication as measured by pixels, number of characters, or other measurement—is intended to minimize the need for serial revisions to Commission regulations as internet technology may evolve. Should existing or newly developed internet advertising opportunities raise questions as to whether a particular communication may fit a disclaimer, the intent behind Alternative A is that such questions may be addressed in an advisory opinion context.56 Would this approach provide sufficient clarity about the application of the disclaimer requirement, and the disclaimer exceptions, to particular communications? Should Alternative A, if adopted, preclude the use of the small items and impracticable exceptions for internet public communications?

    56See 11 CFR 112.1.

    Does the “external character or space constraints” approach provide sufficiently clear guidance in light of existing technology or technological developments that may occur? Is it clear what “cannot fit” means in the proposed rule? Should the Commission adopt a safe harbor indicating that ads with particular pixel size, character limit, or other technological characteristic may use adapted disclaimers? Or do safe harbors tend to become the de facto legal standard in advisory opinions and enforcement actions? If the Commission were to adopt either a bright-line rule or a safe harbor based on pixel size, character limit, or other technological characteristic, what should those technological limits be? Does the “external character or space constraints” wording make clear that business decisions to sell small ads that are not constrained by actual technological limitations do not justify use of an adapted disclaimer? Are there circumstances under which requiring a full disclaimer to appear on the face of an internet ad would cause the speaker to curtail his or her message, or purchase a larger ad, or run the ad on a different platform? Are there circumstances under which such a requirement would discourage the speaker from running the ad at all? Is there anything about advertising on the internet that would warrant a different conclusion than courts have reached in upholding the Act's disclaimer requirements on political advertising in other media?

    b. Alternative B—Proposed 11 CFR 110.11(c)(5)(ii)-(iv): When a Communication May Use Technological Adaptations

    In applying the disclaimer rules to internet public communications, Alternative B proposes to allow any form of paid internet advertisement—including audio and video ads—to utilize an adapted disclaimer under certain conditions.57 Alternative B proposes to establish a bright-line rule to help speakers determine for themselves when they may utilize an adapted disclaimer.58 The “bright line” is determined by the amount of time or space necessary to provide a full disclaimer in an internet public communication as a percentage of the overall communication.59 Proposed paragraph (c)(5)(iii) in Alternative B suggests “ten percent of the time or space in an internet communication” as the appropriate amount. If the amount of time or space necessary for a clear and conspicuous disclaimer exceeds ten percent, then the speaker may, under Alternative B, provide an adapted disclaimer. Is ten percent a reasonable figure, or is it too high or too low? 60 Should the Commission adopt a different benchmark for allowing political speakers to use available technology to provide disclaimers for their internet public communications? Is Alternative B's proposed approach sufficiently clear to enable speakers to administer it for themselves rather than seek advisory opinions before engaging in political advertising online?

    57 Neither Alternative proposes to allow political committees to provide disclaimers through a technological mechanism for their email of more than 500 substantially similar communications or their internet websites available to the general public.

    58See, e.g., Facebook, Comment at 3 (encouraging “a regulatory approach that provides advertisers flexibility to meet their disclaimer obligations in innovative ways that take full advantage of the technological advances in communication the internet makes possible”); Campaign Legal Center and Democracy 21, Comment at 2 (Nov. 14, 2011), http://sers.fec.gov/fosers/showpdf.htm?docid=98749 (“Innovation, not exemption, is the answer.”); American Federation of Labor and Congress of Industrial Organizations et al., Comment at 2 (“[R]ules in this area must be . . . flexible and principle-focused . . . . The challenge is to achieve both public informational goals and provide sufficient clarity to speakers about the rules so there is both informed compliance and predictable enforcement”); Computer & Communications Industry Association, Comment at 14 (“CCIA cautions against regulatory action that does not allow for flexible solutions”); Software & Information Industry Association, Comment at 4 (urging “a flexible and diverse set of transparency practices that evolve and innovate as digital content offerings and advertising profiles continue to evolve”).

    59 Commission regulations also apply a time-space approach to attributing expenditures for publications and broadcast communications to more than one candidate. See 11 CFR 106.1(a).

    60 Some commenters suggested different levels at which providing a disclaimer becomes unduly burdensome. See Cause of Action, Comment at 4-5 (Nov. 14, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=98750 (explaining that California's disclaimer requirement, “while minimal, still takes around 15% of a Google advertisement,” which “carr[ies] a high cost of character space, even to the point of overshadowing the communication itself”); Center for Competitive Politics, Comment at 4 (urging the Commission to “excuse disclaimers in any internet advertising product where the number of characters needed for a disclaimer would exceed 4% of the characters available in the advertising product, exclusive of those reserved for the ad's title”) (internal quotations omitted); Institute for Free Speech, Comment at 4 (same); see also American Federation of Labor and Congress of Industrial Organizations, et al., Comment at 2 (“In no case should the disclaimer rules compel a diminution of the speaker's message itself in order to accommodate the disclaimer; and, that principle should determine whether or not an internet advertisement . . . may omit the full, statutorily required language, and instead link to a disclaimer as the routine solution.”). Certain aspects of Federal Communications Commission rules employ a bright line for certain political advertisement sponsorship statements. See, e.g., 47 CFR 73.1212 (requiring sponsors of political advertising broadcast via television to be identified with letters that are equal to or greater than 4% of the vertical picture height).

    To provide clarity in determining whether a speaker may utilize an adapted disclaimer, proposed paragraph (c)(5)(ii) in Alternative B also proposes objective standards for use in measuring time and space. For internet public communications consisting of text, graphics, or images, Alternative B proposes to use characters or pixels. For internet public communications consisting of audio and video, Alternative B proposes to use seconds. These proposals are based on the Commission's experience with such communications in the advisory opinion context.61 The Commission has limited expertise in the technical aspects of internet advertising, however. Are the proposed metrics of characters, pixels, and seconds a reasonable way to measure space and time in paid internet advertisements? If they are, then are they sufficiently flexible to remain relevant as technology changes, or are they likely to become obsolete? Should the rule, instead, specify a percentage of space or time without identifying the units of measurement? Would that provide sufficient clarity for speakers to be able to determine for themselves when they can utilize an adapted disclaimer? The Commission also seeks comment on how it should measure the time and space that a disclaimer occupies on an internet advertisement containing both text or graphic and audio or video elements. Should the Commission's disclaimer regulations explicitly address such advertisements? If so, how? Additionally, how should the Commission measure pixels, characters, and seconds in an advertisement that may expand or change, such as those with scrolling, frame, carousel, or similar features? Should the Commission incorporate in the rule specifications for these internet advertisement features?

    61See Advisory Opinion 2017-12 (Take Back Action Fund); Advisory Opinion Request 2013-18 (Revolution Messaging), Advisory Opinion Request 2011-09 (Facebook); Advisory Opinion 2010-19 (Google).

    5. How Adaptations Must Be Presented on the Face of the Advertisement

    The discussion in this section explains the Commission's alternative proposals for what information must be included on the face of an advertisement that utilizes an adapted disclaimer. Both Alternatives A and B propose that an internet public communication that provides an adapted disclaimer must provide some information on the face of the advertisement, and both alternatives require such information to be clear and conspicuous and to provide notice that further disclaimer information is available through the technological mechanism. Alternative A proposes one method of presenting an adapted disclaimer, and Alternative B proposes two methods, in a tiered approach.

    Alternative A's approach would require, on the face of the advertisement, the payor's name plus an “indicator” that would give notice that further information is available. Alternative B proposes a two-tiered approach. Under its first tier, Alternative B would require, on the face of the advertisement, identification of the payor plus an “indicator.” Tier one of Alternative B differs from Alternative A in only one material aspect: Alternative B would allow, in lieu of a payor's full name, for a payor to be identified by a clearly recognized identifier such as an abbreviation or acronym. Under its second tier, Alternative B would require, on the face of the advertisement, only an “indicator”; neither the payor's name nor an identifier would be required under tier two of Alternative B. Alternatives A and B use similar definitions of “adapted disclaimer” and “indicator.”

    a. Alternative A—One Tier: Name Plus Indicator

    Alternative A's proposed rule would explain that an “adapted disclaimer” means “an abbreviated disclaimer on the face of a communication in conjunction with an indicator through which a reader can locate the full disclaimer required” under 11 CFR 110.11(c)(5)(i). The proposal would further clarify that the adapted disclaimer “must indicate the person or persons who paid for the communication in letters of sufficient size to be clearly readable by a recipient of the communication.”

    Alternative A is proposing that adapted disclaimers include a payor's name on the face of the communication for several reasons. First, the inclusion of such information would signal to a recipient that the communication is, indeed, a paid advertisement. This is especially important on the internet where paid content can be targeted to a particular user and appear indistinguishable from the unpaid content that user views, unlike traditional media like radio or television, where paid content is transmitted to all users in the same manner and is usually offset in some way from editorial content.62 Second, the inclusion of the payor's name would allow persons viewing the communication on any device, even if the recipient does not view the full disclaimer, to know “the person or group who is speaking” and could, therefore, assist voters in identifying the source of advertising so they are better “able to evaluate the arguments to which they are being subjected.” Citizens United, 558 U.S. at 368 (internal quotations and alterations removed). Alternative A is based on the premise that a technological mechanism to reach a full disclaimer provided by shortened URL and without the payor's name would not provide, on the face of the communication, the same informational value.63 Third, some commenters suggested that the Commission and the public not rely on social media platforms' voluntary efforts 64 to identify paid communications (such as by a tag that a communication is “paid,” “sponsored,” or “promoted”).65 As a preliminary matter, the Commission lacks any enforcement mechanism to ensure compliance with such voluntary efforts, which, by definition, may be modified or abandoned at any time. In addition, tags that identify whether an advertisement is “paid,” “sponsored,” or “promoted,” do not necessarily identify who paid, sponsored, or promoted the advertisement,66 and even that limited information may disappear when a paid communication is shared with other social media users.

    62See, e.g., Center for Digital Democracy, Comment at 2 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358502 (noting that “native advertising” online “purposefully blurs the distinctions between editorial content and advertising”); Twitter, Comment at 2 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358496 (noting that, absent paid “Promoted” tag, Promoted Tweets “look and act just like regular Tweets”); Electronic Privacy Information Center, Comment at 4 (“Online platforms use algorithms to target ads with a level of granularity that has not been possible before”).

    63See Electronic Privacy Information Center, Comment at 3 (explaining that “URL shortening tools such as goo.gl and bit.ly can take lengthy hyperlinks and reduce them to just a few characters. This would allow an ad with character limitations to provide a URL that linked to a full disclaimer.”).

    64See, e.g., BMore Indivisible, Comment at 5 (stating that “Given the history of technology and social media companies—and their nearly total reliance on advertising for corporate profits — the American people and the FEC cannot rely on them to regulate themselves when it comes to disclosing the source of political advertisements. Legislative action is uncertain and may be incomplete. The FEC must act to fully regulate internet political advertising disclaimers”); Center for American Progress, Comment at 2-3 (Nov. 9, 2017) http://sers.fec.gov/fosers/showpdf.htm?docid=358489 (stating that “To some extent, these companies have already taken steps toward proving more transparency for online political ads. While we commend those efforts, they are no substitute for action by the FEC. Such efforts vary from one company to another, with no consistent mechanism for enforcement and no meaningful guidance for new entrants. Clear and consistent rules should be in place for all technology companies, to ensure adequate transparency both now and in the future”).

    65See, e.g., Twitter, Comment at 2 (describing “promoted” tweet label); Rob Goldman, Update on Our Advertising Transparency and Authenticity Efforts, Facebook Newsroom (Oct. 27, 2017), https://newsroom.fb.com/news/2017/10/update-on-our-advertising-transparency-andauthenticity-efforts/ (indicating that, starting in summer 2018, Facebook “advertisers will have to include a disclosure in their election-related ads, which reads: `Paid for by.' ”).

    66See Electronic Frontier Foundation, Comment at 4 (noting current ability to “publish anonymous election related advertisements on Facebook via an advertising account linked to a pseudonymous Facebook page”).

    To further help voters evaluate the message, Alternative A proposes to require that information about the payor be of a size to “be clearly readable.” As with the size requirements for text and graphic internet communications described above, Alternative A intends that questions of whether a disclaimer is of sufficient type size to be clearly readable would be “determined on a case-by-case basis, taking into account the vantage point from which the communication is intended to be seen or read as well as the actual size of the disclaimer text,” as they are under the current rule. 2002 Disclaimer E&J, 67 FR 76965. Would a case-by-case “clearly readable” standard provide sufficient guidance to advertisers regarding the necessary size of an adapted disclaimer?

    As a component of adapted disclaimers, Alternative A proposes to require the use of an “indicator,” which it defines in proposed paragraph (c)(5)(i)(B) as “any visible or audible element of an internet communication that is presented in a clear and conspicuous manner, to give the reader, observer, or listener adequate notice that further disclaimer information is available by a technological mechanism. An indicator is not clear and conspicuous if it is difficult to see, read, or hear, or if the placement is easily overlooked.” Alternative A adds in proposed paragraph (c)(5)(i)(B): “[a]n indicator may take any form including, but not limited to, words, images, sounds, symbols, and icons.” What are the advantages and disadvantages of this approach? What would be the advantages and disadvantages of the Commission's designing and promulgating a single indicator to be used across all media and platforms?

    b. Alternative B—Two Tiers: Indicator Plus Payor Identification or Indicator-Only

    Alternative B's proposed paragraph (c)(5)(ii) would explain that an “adapted disclaimer” means “an abbreviated disclaimer on the face of the communication in conjunction with a technological mechanism by which a reader can locate the disclaimer satisfying the general requirements” of 11 CFR 110.11(b) and (c)(1).

    Alternative B proposes a two-tiered approach to the information that must be presented on the face of an internet public communication utilizing an adapted disclaimer. Under Alternative B's first tier, in proposed paragraph (c)(5)(iii), an adapted disclaimer consists of an abbreviated disclaimer that includes an “indicator” and identifies the payor by full name or by “a clearly recognized abbreviation, acronym, or other unique identifier by which the payor is commonly known,” in lieu of the full name. Under Alternative B's second tier, in proposed paragraph (c)(5)(iv) described below, an adapted disclaimer consists of an abbreviated disclaimer that need include only an “indicator.” Under both tiers—indicator-plus-payor identification and indicator-only—the internet public communication would have to provide a full disclaimer through a technological mechanism, described below.67

    67 Given that Alternative B would allow payors to use a technological mechanism to provide disclaimers for any form of paid public communication on the internet, including audio and video communcations, it proposes to require the payor's name to be “clear and conspicuous” rather than “clearly readable,” as under Alternative A.

    Under the first tier, described in proposed paragraph (c)(5)(iii), an advertisement could identify the payor by the payor's full name or by a clearly recognized abbreviation, acronym, or other unique identifier by which the payor is commonly known. Thus, for example, if the Democratic Senatorial Campaign Committee were to pay for a Facebook advertisement, the advertisement could state that it was paid for by the DSCC, @DSCC, or DSCC.org, while providing the committee's full name in a disclaimer through a technological mechanism, as described below. This flexibility is intended to address internet public communications that might not otherwise conveniently or practicably accommodate the payor's name, such as character-limited ads, or where the payor's name is unusually lengthy, or where the payor wishes to use the ad to promote its social media brand.68

    68See, e.g., Advisory Opinion Request, Advisory Opinion 2010-19 (Google) (Aug. 5, 2010) (asking to include URL to payor's website in lieu of disclaimer in severely character-limited internet ads, with disclaimer on landing page); Advisory Opinion Request, Advisory Opinion 2013-13 (Freshman Hold'Em JFC et al.) (Aug. 21, 2013) (asking to use shortened form of name and URL in disclaimer, where joint fundraising committee-payor's name included names of 18 participating committees); Advisory Opinion Request, Advisory Opinion 2017-05 (Great America PAC, et al.) (June 2, 2017) (asking to use payor's Twitter handle in disclaimers).

    This proposal is modeled after a longstanding provision in the Commission's regulations that allows a separate segregated fund to include in its name a “clearly recognized abbreviation or acronym by which [its] connected organization is commonly known.” 11 CFR 102.14(c). The Commission seeks comment on whether the proposal provides sufficient clarity for a payor to determine whether there is a “clearly recognized” abbreviation, acronym, or other unique identifier by which the payor is “commonly known.” Should the Commission prescribe standards for use in making that determination? Is there a risk of confusion if two groups are commonly known by the same acronym, or does ready access to a full disclaimer (no more than one technological step away) help to alleviate any potential for confusion? Does the potential for confusion increase if the person viewing or listening to a political advertisement is unfamiliar with the person or group sponsoring the ad? If so, does ready access to the full disclaimer through a technological mechanism help to alleviate any such risk?

    Under the second tier, described in proposed paragraph (c)(5)(iv), Alternative B would allow a speaker to include only an “indicator” on the face of an internet public communication, if the space or time necessary for a clear and conspicuous tier-one adapted disclaimer under proposed paragraph (c)(5)(iii) would exceed a certain percentage of the overall communication, and provide the full disclaimer through a technological mechanism. Under Alternative B, the term “indicator” has the same meaning under both the first and second tiers, as described further below. Again, Alternative B's second tier proposes to use ten percent as the determining figure and to measure “time or space” in terms of characters, pixels, and seconds. Is ten percent a reasonable figure, or is it too high or too low? Are characters, pixels, and seconds reasonable metrics? How should characters, pixels, or seconds be determined when an internet public communication combines text, graphic, and video elements, such as an ad with text fields surrounding a video or a GIF?

    Alternative B's proposed paragraph (c)(5)(ii)(B) clarifies the “abbreviated disclaimer” information aspect of the “adapted disclaimer” definition in proposed paragraph (c)(5)(ii). It would require the abbreviated disclaimer on the face of a communication to be presented in a clear and conspicuous manner. An abbreviated disclaimer would not be clear and conspicuous if it is difficult to see, read, or hear, or if the placement is easily overlooked.

    Proposed paragraph (c)(5)(i)(D) provides that an “indicator” is any visible or audible element of an internet public communication that gives notice to persons reading, observing, or listening to the communication that they may read, observe, or listen to a disclaimer satisfying the general requirements of 11 CFR 110.11(b) and (c)(1) through a technological mechanism.69 Under Alternative B, an indicator may take any form, including words (such as “paid for by” or “sponsored by”), a website URL, or an image, sound, symbol, or icon. For example, under Alternative B a severely character-limited public internet communication could include an indicator stating “Paid for by,” “Paid by,” “Sponsored by,” “Ad by,” or providing the URL to the payor's website, if a reader could move his or her cursor over the words or link to a landing page and see the full disclaimer.70 Would this proposal promote disclosure and transparency by addressing extremely space- or time-constrained paid internet ads? Does an indicator alone provide sufficient guidance that the full disclaimer is available through a technological mechanism? Would this proposal help to ensure that voters have easy access to the full statutorily prescribed disclaimer for more online communications, while providing greater flexibility to political advertisers on the internet? Or would an indicator that takes the form of a hyperlink, for example, be prone to manipulation? Should the Commission require an indicator to take a specific form or to include specific language?

    69 The proposed reference to the person “observing” an internet communication derives from the existing requirement that “[a] disclaimer . . . must be presented in a clear and conspicuous manner, to give the reader, observer, or listener adequate notice of the identify of the person or political committee that paid for and . . . authorized the communication.” 11 CFR 110.11(c)(1) (emphasis added). As used in Alternative B, it is intended to be synonymous with “viewer.”

    70 This provision is similar to the existing regulatory allowance for disclaimers on printed communications, which generally provides that “[t]he disclaimer need not appear on the front or cover page of the communication as long as it appears within the communication.” 11 CFR 110.11(c)(2)(iv).

    In their comments on the ANPRM, Google and Twitter said that they intend to require each political advertisement on their platforms to bear a special designation that will allow viewers to obtain additional information about the sponsor of the ad.71 Should the Commission allow sponsors of extremely space- or time-limited paid internet advertisements to use platform-provided designations as their indicators, if such disclaimers meet all of the requirements for providing a disclaimer through a technological mechanism? Or do the limitations inherent in platform-provided designations, discussed above, argue against doing so? In any event, under Alternative B, the responsibility for ensuring that the disclaimer provided through a technological mechanism complies with the disclaimer requirement would remain with the person paying for the communication, and would not fall on the internet platform hosting it.

    71 Google, Comment at 1, 6-7, 11-12 (explaining “Why This Ad” icon for election-related advertisements on Search, YouTube, and Display); Twitter, Comment at 4 (explaining “political ad indicator” for “electioneering ads” on Twitter); see also Facebook, Comment at 3 (“[A]llowing ads to include an icon or other obvious indicator that more information about an ad is available via quick navigation (like a single click) would give clear guidance on how to include disclaimers in new technologies as they are developed.”).

    6. Adaptations Utilizing One-Step Technological Mechanism

    Alternatives A and B both propose that a technological mechanism used to provide access to a full disclaimer must do so within one step.

    a. Alternative A—Associated With “Indicator” in Advertisement

    Because the provision of an ad payor's name is necessary but not always sufficient to meet the Act's disclaimer requirement,72 Alternative A requires a mechanism to provide the additional required information. Alternative A's proposed paragraph (c)(5)(i)(A) would specify that the technological mechanism used to provide the full disclaimer must be “associated with” the indicator and allow a recipient of the communication to locate the full disclaimer “by navigating no more than one step away from the adapted disclaimer.” This means that the additional technological step should be apparent in the context of the communication and the disclaimer, once reached, should be “clear and conspicuous” and otherwise satisfy the full requirements of 11 CFR 110.11(c). Moreover, this proposed requirement is intended to notify a recipient of the communication that further information about or from the payor is available and that the recipient may find that information with minimal investment of additional effort.73 Thus, for example, a hyperlink underlying the “paid for” language would be “associated with” the full disclaimer at the landing page located one step away from the communication and to which the link leads. One commenter suggested that “the Commission should allow people and entities subject to disclaimer requirements to satisfy them through any reasonable technological means” rather than through a particular technology.74 Should the Commission explicitly include a requirement that a technological mechanism be “reasonable” or can the reasonableness requirement for such mechanisms be assumed?

    72See, e.g., 52 U.S.C. 30120(a) (requiring payment and authorization statements and, if not authorized by a candidate, a payor's street address, telephone number, or “World Wide Web” address); Hearing Before the Subcomm. on Privileges and Elections of the S. Comm. on Rules and Admin., 94th Cong. 141 (1976) (testimony of Antonin Scalia, Asst. Att'y Gen'l) (testifying, in response to question about proposal to amend Act to require payor name and authorization statement, that “[t]he principle seems to me a good one” that “seems to me like a sensible provision” to minimize risk that “candidate's campaign can be run by somebody other than the candidate”).

    73See, e.g., MCCI, Comment at 2 (Nov. 12, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=360063 (asking, rhetorically, “Who doesn't know how to click a link in an ad?” in arguing for short word like “ad” or “paid” with hyperlink by which readers “will ultimately be able to track material back to its source”).

    74 Coolidge-Reagan Foundation, Comment at 4.

    b. Alternative B—Associated With Adapted Disclaimer

    Alternative B's proposed paragraph (c)(5)(i)(C) defines the term “technological mechanism” as any use of technology that enables the person reading, observing, or listening to an internet public communication to read, observe, or listen to a disclaimer satisfying the general requirements of paragraphs (b) and (c)(1) without navigating more than one step away from the internet public communication, and is associated with an adapted disclaimer as provided in proposed 11 CFR 110.11(c)(5)(ii). Thus, by definition, the technological mechanism must be “associated with” the abbreviated disclaimer on the face of the internet communication itself, and must not require the person reading, observing, or listening to an internet communication to navigate more than one step away to read, observe, or listen to the disclaimer. The additional technological step under Alternative B should be apparent in the context of the communication, and the disclaimer provided through alternative technical means must be “clear and conspicuous” under 11 CFR 110.11(c)(1). Should a technological mechanism be deemed to be “associated with” the abbreviated disclaimer on the face of an internet public communication if the person reading, observing, or listening to the communication can read, observe, or listen to a disclaimer by clicking anywhere on the communication? If a person can access the full disclaimer by clicking anywhere on a communication, should the abbreviated disclaimer even be required on the face of the communication? Are there circumstances where an adapted disclaimer would be preferable to a full disclaimer, even if the full disclaimer would take up ten percent or less of the time or space in the internet public communication?

    7. Examples of Technological Mechanisms in Adapted Disclaimers

    Alternatives A and B provide similar lists of possible technological mechanisms.

    a. Alternative A—Illustrative List of Mechanisms

    Alternative A provides a list of examples of “technological mechanisms for the provision of the full disclaimer” including, but not limited to, “hover-over mechanisms, pop-up screens, scrolling text, rotating panels, or hyperlinks to a landing page with the full disclaimer.” This illustrative list incorporates examples of one-step technological mechanisms the Commission has seen utilized by advisory opinion requestors and other federal and state agency disclosure regulations.75 The list is intended to provide guidance while retaining flexibility for advertisers to utilize other existing technological mechanisms or new mechanisms that may arise in the future.

    75See, e.g., Advisory Opinion 2010-19 (Google) (addressing proposal to provide disclaimer by hyperlink to landing page containing full disclaimer); Fed. Trade Comm'n, .com Disclosures: How to Make Effective Disclosures in Digital Advertising 10 (2013), https://www.ftc.gov/system/files/documents/plain-language/bus41-dot-com-disclosures-information-about-online-advertising.pdf (permitting disclosure to “be provided by using a hyperlink”); id. at 12 (allowing “mouse-over” display if effective on mobile devices); id. at 13-14 (allowing disclosures by pop ups and interstitial pages); id. at 16 (allowing scrolling text or rotating panels in space-constrained banner ad to present required disclosures); Cal. Code Regs. tit. 2, sec. 18450.4(b)(3)(G)(1) (permitting “link to a web page with disclosure information”); id. at (b)(3)(G)(1) (allowing disclaimer “displayed via rollover display”); Md. Code. Regs. 33.13.07(D)(2)(b)(i) (permitting “viewer to click” and be “taken to a landing or home page” with disclaimer); see also First Gen. Counsel's Report at 5 n.19, MUR 6911 (Frankel) (noting respondent committee's claim that “its Twitter profile contains a link to the campaign's website that contains a disclaimer”); Interactive Advertising Bureau, Comment at 3 (Nov. 10, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358484 (advocating a rule allowing for flexibility in disclaimer provision, such as by click through links); CMPLY, Comment at 2-3 and 9-11 (describing several “short-form” disclosure solutions within character-limited social media platforms).

    Should the Commission allow advertisers to include different parts of a full disclaimer in different frames or components of text or graphic internet advertisements (such as a disclaimer split between two character-limited text fields, one above an image and one below)? Several commenters noted the importance of ensuring that disclaimers are visible across devices or platforms and expressed concern that some technological mechanisms may not be functional across all devices or platforms.76 Should the Commission incorporate into the rule a requirement that any technological mechanism used must be accessible by all recipients of that communication, including those accessing the communication on mobile devices?

    76See, e.g., Asian Americans Advancing Justice, et al., Comment at 9-11 (presenting statistics showing that persons of color are more likely to consume information on internet than television and are more likely to do so via mobile devices than display (desktop) platforms); CMPLY, Comment at 2 (noting that “ `roll over' or `hover' disclosures . . . have significant limitations in social media platforms and . . . do not function within the user interfaces of mobile devices, where the majority of social media engagement takes place and where we have seen the largest increases in internet and broadband usage”).

    b. Alternative B—Illustrative List of Mechanisms

    Alternative B's proposed paragraph (c)(5)(i)(C) provides the same examples of technological mechanisms as Alternative A, with two exceptions. First, because Alternative B does not limit the use of technological mechanisms to internet communications with text or graphic components and anticipates that technology will develop to enable speakers to provide future disclaimers in ways that might not be available today, it includes “voice-over” as an example. Second, Alternative B proposes to refer to “mouse-over” and “roll-over” as examples, in addition to “hover-over.” Are these additional references useful, or are they already subsumed under “hover-over”? Should the list of examples be further expanded or refined?

    8. Proposed Exceptions to Disclaimer Rules for Internet Public Communications a. Alternative A

    No Proposal.

    b. Alternative B

    Alternative B proposes to codify a preference for including full disclaimers in paid internet advertisements, with alternative approaches available utilizing technological mechanisms. Although Alternative B is intended to make it easier for internet communications to meet the disclaimer requirement, some internet public communications might not be able to comply with the disclaimer requirement, either now or as technology and advertising practices change. Thus, Alternative B proposes to exempt from the disclaimer requirement any internet public communication that can provide neither a disclaimer in the communication itself nor an adapted disclaimer as provided in proposed paragraph (c)(5).

    The proposed exception in Alternative B is intended to replace the small items and impracticable exceptions for internet public communication, so that the small items and impracticable exceptions would no longer apply to such communications. The small items and impracticable exceptions both predate the digital age, and the Commission has faced challenges in applying them to internet communications. Despite several requests, the Commission has issued only one advisory opinion in which a majority of Commissioners agreed that a disclaimer exception applied to digital communications. See Advisory Opinion 2002-09 (Target Wireless). Statements by individual Commissioners indicate a difference of opinion regarding the application of the exceptions to internet communications.77

    77See Advisory Opinion 2017-12 (Take Back Action Fund), Concurring Statement of Commissioner Ellen L. Weintraub (Dec. 21, 2017), Concurring Statement of Vice Chair Caroline C. Hunter and Commissioners Lee E. Goodman and Matthew S. Petersen (Dec. 14, 2017); Advisory Opinion Request 2013-18 (Revolution Messaging), Statement for the Record by Vice Chair Ann M. Ravel, Commissioner Steven T. Walther, and Commissioner Ellen L. Weintraub (Feb. 27, 2014); Advisory Opinion 2010-19 (Google), Concurring Statement of Chairman Matthew S. Petersen (Dec. 30, 2010), Statement for the Record by Commissioner Caroline C. Hunter (Dec. 17, 2016), and Concurring Statement of Vice Chair Cynthia L. Bauerly, Commissioner Steven T. Walther, and Commissioner Ellen L. Weintraub (Dec. 16, 2010).

    Alternative B's proposed paragraph (f)(1)(iv) exempts from the disclaimer requirement any paid internet advertisement that cannot provide a disclaimer in the communication itself nor an adapted disclaimer under proposed paragraph (c)(5). Is the exception as currently proposed sufficiently clear? The proposed exception provides as an example static banner ads on small internet-enabled mobile devices that cannot link to a landing page controlled by the person paying for the communication.78 Do such ads exist? Should Alternative B's proposed exception apply to advertisements that technically can link to a website with a full disclaimer but do not do so? Does the Commission have statutory authority to adopt exceptions to the disclaimer requirements?

    78 The Commission considered static banner ads on small internet-enabled mobile devices in Advisory Opinion Request 2013-18 (Revolution Messaging). In that advisory opinion request, the requestor asked the Commission to recognize small (320 × 50 pixels) static banner ads on smartphones as exempt from the disclaimer requirement under the “small items” exception. The Commission did not approve a response by the required four affirmative votes.

    If the Commission adopts either the single-tier adapted disclaimer approach of Alternative A or the two-tier approach of Alternative B, would there be a need to exempt any internet public communications from the disclaimer requirement? Or would the adaptations adequately address any technological limitations? Would adopting any new exception to the disclaimer requirement for internet public communications lead to manipulation and abuse of the exception? If so, what can the Commission do to minimize the risk of manipulation and abuse, and enhance disclosure? Conversely, if the Commission decides not to adopt a new exception for internet public communications, what effect would that decision have on political discourse on the internet? Could such a decision, coupled with uncertainty over the application of the existing exceptions to internet public communications, potentially chill political speech on the internet?

    F. Conclusion

    The Commission welcomes comment on any aspect of Alternatives A and B. Additionally, the Commission seeks comment addressing how differences between online platforms, providers, and presentations may affect the application of any of the proposed disclaimer rules for text, graphic, video, and audio internet advertisements in Alternative A, or for internet public communications generally in Alternative B. Among other topics, the Commission seeks comment on whether the ability to zoom or otherwise expand the size of some digital communications affects any of these proposals. Similarly, the Commission seeks comment on the interaction between the proposed definition of “public communication” and the proposed disclaimer rules in Alternatives A and B. The Commission is particularly interested in comment detailing the challenges and opportunities persons have experienced in complying with (and receiving disclosure from) similar state and federal disclaimer or disclosure regimes. Given the development and proliferation of the internet as a mode of political communication, and the expectation that continued technological advances will further enhance the quantity of information available to voters online, the Commission welcomes comment on whether the proposed rules allow for flexibility to address future technological developments while honoring the important function of providing disclaimers to voters.

    Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory Flexibility Act)

    The Commission certifies that the attached proposed rules, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed rules would clarify and update existing regulatory language, codify certain existing Commission precedent regarding internet communications, and provide political committees and other entities with more flexibility in meeting the Act's disclaimer requirements. The proposed rules would not impose new recordkeeping, reporting, or financial obligations on political committees or commercial vendors. The Commission therefore certifies that the proposed rules, if adopted, would not have a significant economic impact on a substantial number of small entities.

    List of Subjects 11 CFR Part 100

    Elections.

    11 CFR Part 110

    Campaign funds, Political committees and parties.

    For the reasons set out in the preamble, the Federal Election Commission proposes to amend 11 CFR parts 100 and 110, as follows:

    PART 100—SCOPE AND DEFINITIONS (52 U.S.C. 30101) 1. The authority citation for part 100 continues to read as follows: Authority:

    52 U.S.C. 30101, 30104, 30111(a)(8), and 30114(c).

    § 100.26 [Amended]
    2. Amend § 100.26 by removing “website” and adding in its place “website or internet-enabled device or application”. PART 110—CONTRIBUTION AND EXPENDITURE LIMITATIONS AND PROHIBITIONS 3. The authority citation for part 110 continues to read as follows: Authority:

    52 U.S.C. 30101(8), 30101(9), 30102(c)(2), 30104(i)(3), 30111(a)(8), 30116, 30118, 30120, 30121, 30122, 30123, 30124, and 36 U.S.C. 510.

    Alternative A 4. In § 110.11, add paragraph (c)(5) to read as follows:
    § 110.11 Communications; advertising; disclaimers (52 U.S.C. 30120).

    (c) * * *

    (5) Specific requirements for internet communications. In addition to the general requirements of paragraphs (b) and (c)(1) of this section, a disclaimer required by paragraph (a) of this section that appears on a public communication distributed over the internet must comply with the following:

    (i) A public communication distributed over the internet with text or graphic components but without any video component must contain a disclaimer that is of sufficient type size to be clearly readable by the recipient of the communication. A disclaimer that appears in letters at least as large as the majority of the other text in the communication satisfies the size requirement of this paragraph. A disclaimer under this paragraph must be displayed with a reasonable degree of color contrast between the background and the text of the disclaimer. A disclaimer satisfies the color contrast requirement of this paragraph if it is displayed in black text on a white background or if the degree of color contrast between the background and the text of the disclaimer is no less than the color contrast between the background and the largest text used in the communication.

    (A) A public communication distributed over the internet with text or graphic components but without any video component that, due to external character or space constraints, cannot fit a required disclaimer must include an adapted disclaimer. For purposes of this paragraph, an adapted disclaimer means an abbreviated disclaimer on the face of a communication in conjunction with an indicator through which a reader can locate the full disclaimer required by paragraph (c)(5)(i). The adapted disclaimer must indicate the person or persons who paid for the communication in letters of sufficient size to be clearly readable by a recipient of the communication. The technological mechanism in an adapted disclaimer must be associated with the indicator and must allow a recipient of the communication to locate the full disclaimer by navigating no more than one step away from the adapted disclaimer. Technological mechanisms for the provision of the full disclaimer include, but are not limited to, hover-over mechanisms, pop-up screens, scrolling text, rotating panels, or hyperlinks to a landing page with the full disclaimer.

    (B) As used in paragraph (c)(5), an indicator is any visible or audible element of an internet communication that is presented in a clear and conspicuous manner to give the reader, observer, or listener adequate notice that further disclaimer information is available by a technological mechanism. An indicator is not clear and conspicuous if it is difficult to see, read, or hear, or if the placement is easily overlooked. An indicator may take any form including, but not limited to, words, images, sounds, symbols, and icons.

    (ii) A public communication distributed over the internet with an audio component but without video, graphic, or text components must include the statement described in paragraphs (c)(3)(i) and (iv) of this section if authorized by a candidate, or the statement described in paragraph (c)(4) of this section if not authorized by a candidate. A public communication distributed over the internet with a video component must include the statement described in paragraphs (c)(3)(ii)-(iv) of this section if authorized by a candidate, or the statement described in paragraph (c)(4) of this section if not authorized by a candidate.

    Alternative B
    5. Amend § 110.11 as follows: a. Add paragraph (c)(5). b. Add paragraph (f)(1)(iv).

    The additions read as follows:

    § 110.11 Communications; advertising; disclaimers (52 U.S.C. 30120).

    (c) * * *

    (5) Specific requirements for internet communications. (i) For purposes of this section:

    (A) The term internet communication means electronic mail of more than 500 substantially similar communications when sent by a political committee; all internet websites of political committees available to the general public; and any internet public communication as defined in paragraph (c)(5)(i)(B) of this section;

    (B) The term internet public communication means any communication placed for a fee on another person's website or internet-enabled device or application;

    (C) The term technological mechanism refers to any use of technology that enables the person reading, observing, or listening to an internet public communication to read, observe, or listen to a disclaimer satisfying the general requirements of paragraphs (b) and (c)(1) of this section without navigating more than one step away from the internet public communication, and is associated with an adapted disclaimer as provided in paragraph (c)(5)(ii) of this section. A technological mechanism may take any form including, but not limited to, hover-over; mouse-over; voice-over; roll-over; pop-up screen; scrolling text; rotating panels; and click-through or hyperlink to a landing page; and

    (D) The term indicator refers to any visible or audible element of an internet public communication that gives notice to persons reading, observing, or listening to the internet public communication that they may read, observe, or listen to a disclaimer satisfying the general requirements of paragraphs (b) and (c)(1) of this section through a technological mechanism. An indicator may take any form including, but not limited to, words such as “Paid for by,” “Paid by,” “Sponsored by,” or “Ad by”; website URL; image; sound; symbol; and icon.

    (ii) Every internet communication for which a disclaimer is required by paragraph (a) of this section must satisfy the general requirements of paragraphs (b) and (c)(1) of this section, except an internet public communication may include an adapted disclaimer under the circumstances described in paragraphs (c)(5)(iii)-(c)(5)(iv) of this section. For purposes of this paragraph, an adapted disclaimer means an abbreviated disclaimer on the face of the communication in conjunction with a technological mechanism by which a reader can locate the disclaimer satisfying the general requirements of paragraphs (b) and (c)(1) of this section. Any internet public communication that includes an adapted disclaimer must comply with the following:

    (A) The internet public communication must provide a disclaimer satisfying the general requirements of paragraphs (b) and (c)(1) of this section through a technological mechanism as described in paragraph (c)(5)(i)(C) of this section.

    (B) The internet public communication must present the abbreviated disclaimer on the face of the communication in a clear and conspicuous manner. An abbreviated disclaimer is not clear and conspicuous if it is difficult to read, hear, or observe, or if the placement is easily overlooked.

    (C) For an internet public communication consisting of text, graphics, or images, time or space must be measured in [characters or pixels].

    (D) For an internet public communication consisting of audio or video, time or space must be measured in [seconds].

    (iii) If the time or space required for a disclaimer satisfying the general requirements of paragraphs (b) and (c)(1) of this section would exceed [ten] percent of the time or space in an internet public communication, then the abbreviated disclaimer on the face of the communication must include an indicator and identify the person who paid for the internet public communication by the person's full name or by a clearly recognized abbreviation, acronym, or other unique identifier by which the person is commonly known.

    (iv) If the time or space required for an abbreviated disclaimer under paragraph (c)(5)(iii) of this section would exceed [ten] percent of the time or space in the internet public communication, then the abbreviated disclaimer on the face of the communication must include an indicator.

    (f) Exceptions.

    (1) * * *

    (iv) Any internet public communication that cannot provide a disclaimer on the face of the internet public communication itself nor an adapted disclaimer as provided in paragraph (c)(5) of this section, such as a static banner ad on a small internet-enabled device that cannot link to a landing page of the person paying for the internet public communication. The provisions of paragraph (f)(1)(i)-(iii) of this section do not apply to internet public communications.

    On behalf of the Commission,

    Dated: March 20, 2018. Caroline C. Hunter, Chair, Federal Election Commission.
    [FR Doc. 2018-06010 Filed 3-23-18; 8:45 am] BILLING CODE 6715-01-P
    BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Chapter X [Docket No. CFPB-2018-0012] Request for Information Regarding the Bureau's Inherited Regulations and Inherited Rulemaking Authorities AGENCY:

    Bureau of Consumer Financial Protection.

    ACTION:

    Request for information.

    SUMMARY:

    The Bureau of Consumer Financial Protection (Bureau) is seeking comments and information from interested parties to assist the Bureau in considering whether, consistent with its statutory authority to prescribe rules pursuant to the Federal consumer financial laws, the Bureau should amend the regulations or exercise the rulemaking authorities that it inherited from certain other Federal agencies.

    DATES:

    Comments must be received by June 25, 2018.

    ADDRESSES:

    You may submit responsive information and other comments, identified by Docket No. CFPB-2018-0012, by any of the following methods:

    Electronic: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Email: [email protected]. Include Docket No. CFPB-2018-0012 in the subject line of the message.

    Mail: Comment Intake, Consumer Financial Protection Bureau, 1700 G Street NW, Washington, DC 20552.

    Hand Delivery/Courier: Comment Intake, Consumer Financial Protection Bureau, 1700 G Street NW, Washington, DC 20552.

    Instructions: The Bureau encourages the early submission of comments. All submissions must include the document title and docket number. Please note the number of the topic on which you are commenting at the top of each response (you do not need to address all topics). Because paper mail in the Washington, DC area and at the Bureau is subject to delay, commenters are encouraged to submit comments electronically. In general, all comments received will be posted without change to http://www.regulations.gov. In addition, comments will be available for public inspection and copying at 1700 G Street NW, Washington, DC 20552, on official business days between the hours of 10 a.m. and 5 p.m. eastern time. You can make an appointment to inspect the documents by telephoning 202-435-7275.

    All submissions in response to this request for information, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Proprietary information or sensitive personal information, such as account numbers or Social Security numbers, or names of other individuals, should not be included. Submissions will not be edited to remove any identifying or contact information.

    FOR FURTHER INFORMATION CONTACT:

    Thomas L. Devlin and Kristin McPartland, Senior Counsels, Office of Regulations, at 202-435-7700. If you require this document in an alternative electronic format, please contact [email protected].

    SUPPLEMENTARY INFORMATION:

    Congress established the Bureau in the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) and therein set forth the Bureau's purpose, objectives, and functions.1 Pursuant to that Act, on July 21, 2011, the “consumer financial protection functions” previously vested in certain other Federal agencies transferred to the Bureau.2 The term “consumer financial protection function” is defined to include “all authority to prescribe rules or issue orders or guidelines pursuant to any Federal consumer financial law, including performing appropriate functions to promulgate and review such rules, orders, and guidelines.” 3 The Dodd-Frank Act in turn defines Federal consumer financial law broadly to include “the provisions of [title X of the Dodd-Frank Act], the enumerated consumer laws, the laws for which authorities are transferred under subtitles F and H, and any rule or order prescribed by the Bureau under [title X], an enumerated consumer law, or pursuant to the authorities transferred under subtitles F and H.” 4

    1 Public Law 111-203, 124 Stat. 2081 (2010) (codified at 15 U.S.C. 1693a et seq.). Section 1021 of the Dodd-Frank Act states that the Bureau shall seek to implement and, where applicable, enforce Federal consumer financial law consistently for the purpose of ensuring that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive. Section 1021 also authorized the Bureau to exercise its authorities under Federal consumer financial law for the purposes of ensuring that, with respect to consumer financial products and services, five specific objectives are met.

    2 12 U.S.C. 5581.

    3 12 U.S.C. 5581(a)(1).

    4 12 U.S.C. 5481(14).

    Accordingly, Congress generally transferred to the Bureau rulemaking authority for Federal consumer financial laws previously vested in certain other Federal agencies, and the Bureau thereafter assumed responsibility over the various regulations that these agencies had issued under this rulemaking authority (the “Inherited Regulations”).5 The Dodd-Frank Act also provided new rulemaking authorities to the Bureau under the Federal consumer financial laws. Since the Bureau's creation, it has prescribed a number of rules under Federal consumer financial law in rulemakings mandated by Congress, as well as in discretionary rulemakings. These Bureau-issued rules and the new authorities created under the Dodd-Frank Act are referred to collectively in this RFI as the “Adopted Regulations.” The Adopted Regulations have often amended the Inherited Regulations.

    5 The Bureau generally restated these regulations first through a series of interim final rules published in the Federal Register and subsequently through a final rule. 81 FR 25323 (Apr. 28, 2016). Bureau rules are generally set forth in title 12, Chapter X of the Code of Federal Regulations.

    The Bureau's Rulemaking Authority. The Dodd-Frank Act states that the Bureau is authorized to “exercise its authorities under Federal consumer financial law to administer, enforce, and otherwise implement the provisions of Federal consumer financial law.” 6 The Dodd-Frank Act further authorizes the Director of the Bureau to prescribe rules as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws, which include enumerated consumer laws as well as provisions of the Dodd-Frank Act, and to prevent evasions thereof.7

    6 12 U.S.C. 5512(a).

    7 12 U.S.C. 5512(b)(1).

    Existing Bureau Work to Examine Inherited Regulations. The Dodd-Frank Act states that the Bureau is authorized to exercise its authorities under Federal consumer financial law for, among other objectives, “ensuring that, with respect to consumer financial products and services . . . outdated, unnecessary, or unduly burdensome regulations are regularly identified and addressed in order to reduce unwarranted regulatory burdens.” 8 In 2011 and 2012, the Bureau sought and received stakeholders' suggestions to streamline the Inherited Regulations.9 The Bureau identified and executed several burden reduction projects from that undertaking.10 More recently, the Bureau has established an initiative to review periodically individual Inherited Regulations or portions of such regulations. The Bureau is beginning the first such review by focusing on subparts B and G of Regulation Z, which implement the Truth in Lending Act with respect to open-end credit generally and credit cards in particular.11

    8 12 U.S.C. 5511(b)(3).

    9 76 FR 75825 (Dec. 5, 2011).

    10See 79 FR 64057 (Oct. 28, 2014); 78 FR 25818 (May 3, 2013); 78 FR 18221 (Mar. 26, 2013). In some cases Congress took action related to the same topics identified as part of the Bureau's streamlining initiative. See, e.g., 81 FR 44801 (July 11, 2016); 78 FR 18221 (Mar. 26, 2013).

    11See 83 FR 1968, 1970 (Jan. 12, 2018); RIN 3170-AA73.

    Overview of This Request for Information

    The Bureau is using this request for information (RFI) to seek public input regarding the substance of the Inherited Regulations, including whether the Bureau should issue additional rules. The Bureau encourages comments from all interested members of the public. The Bureau anticipates that the responding public may include (among others) entities and their service providers subject to Bureau rules, trade associations that represent these entities, individual consumers, consumer advocates, regulators, and researchers or members of academia.

    The Bureau previously issued an RFI regarding its rulemaking processes, and plans to issue an RFI about the Bureau's regulatory implementation and guidance functions. The Bureau also previously issued an RFI regarding the Adopted Regulations. Accordingly, the purpose of this RFI is to seek feedback on the content of the Inherited Regulations, not the Bureau's rulemaking processes, implementation initiatives that occur after the issuance of a final rule, or the Adopted Regulations.12 Also please note that the Bureau is not requesting comment on any pending rulemaking for which the Bureau has issued a Notice of Proposed Rulemaking or otherwise solicited public comment.

    12 The Adopted Regulations include rulemakings issued by the Bureau since its creation, including rules that were adopted pursuant to specific instructions from Congress. They also include new rulemaking authorities given to the Bureau by the Dodd-Frank Act that did not previously exist under the Federal consumer financial laws.

    The Inherited Regulations. The Inherited Regulations comprise the statutory authority and regulations that were transferred to the Bureau by title X of the Dodd-Frank Act. They include the regulations that the Bureau restated in Title 12, Chapter X of the Code of Federal Regulations. For clarity, the term “Inherited Regulations” also includes all rulemaking authority inherited by the Bureau, regardless of the extent to which the Bureau's predecessors exercised that authority.

    Suggested Topics for Commenters

    To allow the Bureau to more effectively evaluate suggestions, the Bureau requests that, where possible, comments include:

    • Specific suggestions regarding any potential updates or modifications to the Inherited Regulations, consistent with the laws providing the Bureau with rulemaking authority and the Bureau's regulatory and statutory purposes and objectives, and including, in as much detail as possible, the nature of the requested change, and supporting data or other information on impacts and costs of the Inherited Regulations and on the suggested changes thereto; and

    • Specific identification of any aspects of the Inherited Regulations that should not be modified, consistent with the laws providing the Bureau with rulemaking authority and the Bureau's regulatory and statutory purposes and objectives, and including, in as much detail as possible, supporting data or other information on impacts and costs, or information related to consumer and public benefit resulting from these rules.

    The following list represents a preliminary attempt by the Bureau to identify considerations relevant in determining where modifications of the Inherited Regulations or further exercise of the Bureau's rulemaking authorities may be appropriate. This non-exhaustive list is meant to assist in the formulation of comments and is not intended to restrict the issues that may be addressed. The Bureau requests that, in addressing these questions or others, commenters identify with specificity the Bureau rules at issue, providing legal citations to specific regulations or statutes where appropriate and available. The Bureau invites commenters to identify the products or services that would be affected by any recommendations made by those commenters. Please feel free to comment on some or all of the questions below and on some or all of the Inherited Regulations, but please be sure to indicate on which area you are commenting. The Bureau encourages commenters to make their best efforts to limit their comments to the Inherited Regulations; however, the Bureau will consider all comments received under the Inherited Regulations and Adopted Regulations RFIs together.

    From all of the suggestions, commenters are requested to offer their highest priorities, along with their explanation of how or why they have prioritized suggestions. Commenters are asked to single out their top priority. Suggestions should focus on revisions that the Bureau could implement consistent with its authorities and without Congressional action.

    The Bureau is seeking feedback on all aspects of the Inherited Regulations, including but not limited to:

    1. Aspects of the Inherited Regulations that:

    a. Should be tailored to particular types of institutions or to institutions of a particular size;

    b. Create unintended consequences;

    c. Overlap or conflict with other laws or regulations in a way that makes it difficult or particularly burdensome for institutions to comply;

    d. Are incompatible or misaligned with new technologies, including by limiting providers' ability to deliver, electronically, mandatory disclosures or other information that may be relevant to consumers; or

    e. Could be modified to provide consumers greater protection from the incidence and effects of identity theft.

    2. Changes the Bureau could make to the Inherited Regulations, consistent with its statutory authority, to more effectively meet the statutory purposes and objectives set forth in the Federal consumer financial laws, as well as the Bureau's predecessor agencies' specific goals for the particular Inherited Regulation in the first instance.

    3. Changes the Bureau could make to the Inherited Regulations, consistent with its statutory authority, that would advance the following statutory purposes and objectives as set forth in section 1021 of the Dodd-Frank Act:

    a. The statutory purposes set forth in section 1021(a) are:

    i. All consumers have access to markets for consumer financial products and services; and

    ii. Markets for consumer financial products and services are fair, transparent, and competitive.

    b. The statutory objectives set forth in section 1021(b) are:

    i. Consumers are provided with timely and understandable information to make responsible decisions about financial transactions;

    ii. Consumers are protected from unfair, deceptive, or abusive acts and practices and from discrimination;

    iii. Outdated, unnecessary, or unduly burdensome regulations are regularly identified and addressed in order to reduce unwarranted regulatory burdens;

    iv. Federal consumer financial law is enforced consistently in order to promote fair competition; and

    v. Markets for consumer financial products and services operate transparently and efficiently to facilitate access and innovation.

    4. Pilots, field tests, demonstrations, or other activities that the Bureau could launch to better quantify benefits and costs of potential revisions to the Inherited Regulations, or make compliance with the Inherited Regulations more efficient and effective.

    5. Areas where the Bureau has inherited rulemaking authority, but has not exercised it, where rulemaking would be beneficial and align with the purposes and objectives of the applicable Federal consumer financial laws.

    Authority:

    12 U.S.C. 5511(c).

    Dated: March 14, 2018. Mick Mulvaney, Acting Director, Bureau of Consumer Financial Protection.
    [FR Doc. 2018-06027 Filed 3-23-18; 8:45 am] BILLING CODE 4810-AM-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0219; Airspace Docket No. 17-AGL-23] Proposed Amendment of Air Traffic Service (ATS) Routes in the Vicinity of Mattoon and Charleston, IL AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to modify two VHF Omnidirectional Range (VOR) Federal airways (V-72 and V-429) in the vicinity of Mattoon and Charleston, IL. The FAA is proposing this action due to the planned decommissioning of the Mattoon, IL (MTO), VOR/Distance Measuring Equipment (VOR/DME) navigation aid (NAVAID) which provides navigation guidance for portions of the affected ATS routes. The Mattoon VOR is being decommissioned in support of the FAA's VOR Minimum Operational Network (MON) program.

    DATES:

    Comments must be received on or before May 10, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1(800) 647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2018-0219 and Airspace Docket No. 17-AGL-23 at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov.

    FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11B at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

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

    FOR FURTHER INFORMATION CONTACT:

    Colby Abbott, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would support the route structure in the Mattoon and Charleston, IL, area as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

    Communications should identify both docket numbers (FAA Docket No. FAA-2018-0219 and Airspace Docket No. 17-AGL-23) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

    Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2018-0219 and Airspace Docket No. 17-AGL-23.” The postcard will be date/time stamped and returned to the commenter.

    All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Central Service Center, Federal Aviation Administration, 10101 Hillwood Blvd., Fort Worth, TX 76177.

    Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    Background

    The FAA is planning to decommission the Mattoon, IL (MTO), VOR/DME in November 2018. The Mattoon VOR was one of the candidate VORs identified for discontinuance by the FAA's VOR MON program and listed in the Final policy statement notice, “Provision of Navigation Services for the Next Generation Air Transportation System (NextGen) Transition to Performance-Based Navigation (PBN) (Plan for Establishing a VOR Minimum Operational Network),” published in the Federal Register of July 26, 2016 (81 FR 48694), Docket No. FAA-2011-1082.

    With the planned decommissioning of the Mattoon, IL, VOR/DME, the remaining ground-based NAVAID coverage in the area is insufficient to enable the continuity of the affected airways. As such, proposed modifications to VOR Federal airways V-72 and V-429 would result in a gap in the enroute ATS route structure in the Mattoon and Charleston, IL, area. To overcome the gap in the enroute structure, instrument flight rules (IFR) traffic could use adjacent VOR Federal airways (including V-5, V-7, V69, V-171, V-191, V-192, V-262, and V-586) to circumnavigate the affected area, file point to point through the affected area using fixes that will remain in place, or receive air traffic control (ATC) radar vectors through the area. Additionally, the Mattoon DME facility is planned to be retained and charted as a DME facility with the “MTO” three-letter identifier. Visual flight rules (VFR) pilots who elect to navigate via the airways through the affected area could also take advantage of the adjacent VOR Federal airways or ATC services previously listed.

    The Proposal

    The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify the descriptions of VOR Federal airways V-72 and V-429. The planned decommissioning of the Mattoon, IL, VOR has made these actions necessary. The proposed VOR Federal airway changes are described below.

    V-72: V-72 currently extends between the Razorback, AR, VOR/Tactical Air Navigation (VORTAC) and the Bloomington, IL, VOR/DME. The FAA proposes to remove the airway segment between the Bible Grove, IL, VORTAC and the Bloomington, IL, VOR/DME. The unaffected portions of the existing airway would remain as charted.

    V-429: V-429 currently extends between the Cape Girardeau, MO, VOR/DME and the Joliet, IL, VORTAC. The FAA proposes to remove the airway segment between the Bible Grove, IL, VORTAC and the Champaign, IL, VORTAC. The unaffected portions of the existing airway would remain as charted.

    All radials in the route descriptions below are unchanged and stated in True degrees.

    VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document would be subsequently published in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

    This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017 and effective September 15, 2017, is amended as follows: Paragraph 6010(a) Domestic VOR Federal Airways. V-72 [Amended]

    From Razorback, AR; Dogwood, MO; INT Dogwood 058° and Maples, MO, 236° radials; Maples; Farmington, MO; Centralia, IL; to Bible Grove, IL.

    V-429 [Amended]

    From Cape Girardeau, MO; Marion, IL; INT Marion 011° and Bible Grove, IL, 207° radials; to Bible Grove. From Champaign, IL; Roberts, IL; to Joliet, IL.

    Issued in Washington, DC, on March 19, 2018. Rodger A. Dean Jr., Manager, Airspace Policy Group.
    [FR Doc. 2018-05974 Filed 3-23-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0222; Airspace Docket No. 18-AGL-2] Proposed Modification of Air Traffic Service (ATS) Route in the Vicinity of Newberry, MI AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to modify VHF Omnidirectional Range (VOR) Federal airway, V-316, in the vicinity of Newberry, MI. The FAA is proposing this action due to the planned decommissioning of the Newberry, MI (ERY), VOR/Distance Measuring Equipment (VOR/DME) navigation aid (NAVAID) which provides navigation guidance for portions of the affected ATS route. The Newberry VOR/DME is a non-federal navigation aid (NAVAID) owned by the State of Michigan that is planned to be decommissioned in September 2018.

    DATES:

    Comments must be received on or before May 10, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1 (800) 647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2018-0222 and Airspace Docket No. 18-AGL-2 at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov.

    FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11B at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

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

    FOR FURTHER INFORMATION CONTACT:

    Colby Abbott, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the route structure in the Newberry, MI, area as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

    Communications should identify both docket numbers (FAA Docket No. FAA-2018-0222 and Airspace Docket No. 18-AGL-2) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

    Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2018-0222 and Airspace Docket No. 18-AGL-2.” The postcard will be date/time stamped and returned to the commenter.

    All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Central Service Center, Federal Aviation Administration, 10101 Hillwood Blvd., Fort Worth, TX 76177.

    Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    Background

    The Newberry VOR/DME is a non-federal navaid, owned and maintained by the State of Michigan, and is located on the Luce County Airport in Newberry, MI. The Federal Aviation Administration received a request to decommission the Newberry VOR/DME NAVAID from the Michigan Department of Transportation, Office of Aeronautics, stating the State of Michigan intended to permanently remove the NAVAID from service in September 2018, due to financial constraints. The request included concurrence by the Airport Manager of the Luce County Airport. As a result, the FAA is planning to decommission the Newberry, MI, VOR/DME NAVAID facility effective on September 13, 2018.

    With the planned decommissioning of the Newberry, MI, VOR/DME, the remaining ground-based NAVAID coverage in the area is insufficient to enable the continuity of VOR Federal airway, V-316. As such, the proposed modification to V-316 would result in a gap in the airway and the enroute ATS route structure in the Newberry, MI, area between the Sawyer, MI, VOR/DME and Sault Ste Marie, MI, VOR/DME. To overcome the gap in the airway and enroute structure, instrument flight rules (IFR) traffic could circumnavigate the entire area using V-133 and V-193 via the Traverse City VOR/DME, file point to point through the affected area using fixes that will remain in place, or receive air traffic control (ATC) radar vectors through the affected area. Visual flight rules (VFR) pilots who elect to navigate via the airways through the affected area could also take advantage of the adjacent airways to circumnavigate, the fixes that will remain, or the ATC services previously listed.

    The Proposal

    The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify the description of VOR Federal airway V-316. The planned decommissioning of the Newberry, MI, VOR/DME has made this action necessary. The proposed VOR Federal airway change is described below.

    V-316: V-316 currently extends between the Ironwood, MI, VOR/Tactical Air Navigation (VORTAC) and the Sudbury, ON, Canada, VOR/DME. The FAA proposes to remove the airway segment between the Sawyer, MI, VOR/DME and the Sault Ste Marie, MI, VOR/DME. The unaffected portions of the existing airway would remain as charted.

    All radials in the route descriptions below are unchanged and stated in True degrees.

    VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document would be subsequently published in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

    This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017 and effective September 15, 2017, is amended as follows: Paragraph 6010(a) Domestic VOR Federal Airways. V-316

    From Ironwood, MI; to Sawyer, MI. From Sault Ste Marie, MI; thence via Sault Ste Marie 091° radial to Elliot Lake, ON, Canada, NDB; thence to Sudbury, ON, Canada, via the 259° radial to Sudbury. The airspace within Canada is excluded.

    Issued in Washington, DC, on March 19, 2018. Rodger A. Dean Jr., Manager, Airspace Policy Group.
    [FR Doc. 2018-06003 Filed 3-23-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0220; Airspace Docket No. 17-AGL-24] Proposed Amendment and Revocation of Air Traffic Service (ATS) Routes in the Vicinity of Manistique, MI AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to modify one VHF Omnidirectional Range (VOR) Federal airway (V-78) and remove one VOR Federal airway (V-224) in the vicinity of Manistique, MI. The FAA is proposing this action due to the planned decommissioning of the Schoolcraft County, MI (ISQ), VOR/Distance Measuring Equipment (VOR/DME) navigation aid (NAVAID) which provides navigation guidance for portions of the affected ATS routes. The Schoolcraft County VOR is being decommissioned in support of the FAA's VOR Minimum Operational Network (MON) program.

    DATES:

    Comments must be received on or before May 10, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1(800) 647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2018-0220 and Airspace Docket No. 17-AGL-24 at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov.

    FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11B at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

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

    FOR FURTHER INFORMATION CONTACT:

    Colby Abbott, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would support the route structure in the Manistique, MI, area as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

    Communications should identify both docket numbers (FAA Docket No. FAA-2018-0220 and Airspace Docket No. 17-AGL-24) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

    Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2018-0220 and Airspace Docket No. 17-AGL-24.” The postcard will be date/time stamped and returned to the commenter.

    All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Central Service Center, Federal Aviation Administration, 10101 Hillwood Blvd., Fort Worth, TX 76177.

    Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    Background

    The FAA is planning to decommission the Schoolcraft County, MI (ISQ), VOR/DME in January 2019. The Schoolcraft County VOR was one of the candidate VORs identified for discontinuance by the FAA's VOR MON program and listed in the Final policy statement notice, “Provision of Navigation Services for the Next Generation Air Transportation System (NextGen) Transition to Performance-Based Navigation (PBN) (Plan for Establishing a VOR Minimum Operational Network),” published in the Federal Register of July 26, 2016 (81 FR 48694), Docket No. FAA-2011-1082.

    With the planned decommissioning of the Schoolcraft County, MI, VOR/DME, the remaining ground-based NAVAID coverage in the area is insufficient to enable the continuity of the affected airways. As such, proposed modifications to VOR Federal airway V-78 and removal of V-224 would result in a gap in the enroute ATS route structure in the Manistique, MI, area. To overcome the gap in the enroute structure, instrument flight rules (IFR) traffic could file point to point through the affected area using fixes that will remain in place, or receive air traffic control (ATC) radar vectors through the area. Additionally, the Schoolcraft County DME facility is planned to be retained and charted as a DME facility with the “ISQ” three-letter identifier. Visual flight rules (VFR) pilots who elect to navigate via the airways through the affected area could also take advantage of the ATC services previously listed.

    The Proposal

    The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify the description of VOR Federal airway V-78 and remove VOR Federal airway V-224. The planned decommissioning of the Schoolcraft County, MI, VOR has made these actions necessary. The proposed VOR Federal airway changes are described below.

    V-78: V-78 currently extends between the Huron, SD, VOR/Tactical Air Navigation (VORTAC) and the Saginaw, MI, VOR/DME. The FAA proposes to remove the airway segment between the Escanaba, MI, VOR/DME and the Pellston, MI, VORTAC. The unaffected portions of the existing airway would remain as charted.

    V-224: V-224 currently extends between the Sawyer, MI, VOR/DME and the Schoolcraft County, MI, VOR/DME. The FAA proposes to remove the airway in its entirety.

    All radials in the route descriptions below are unchanged and stated in True degrees.

    VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document would be subsequently published in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

    This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017 and effective September 15, 2017, is amended as follows: Paragraph 6010(a) Domestic VOR Federal Airways. V-78 [Amended]

    From Huron, SD; Watertown, SD; Darwin, MN; Gopher, MN; INT Gopher 091° and Eau Claire, WI, 290° radials; Eau Claire; Rhinelander, WI; Iron Mountain, MI; to Escanaba, MI. From Pellston, MI; Alpena, MI; INT Alpena 232° and Saginaw, MI, 353° radials; to Saginaw.

    V-224 [Removed]
    Issued in Washington, DC, on March 19, 2018. Rodger A. Dean Jr., Manager, Airspace Policy Group.
    [FR Doc. 2018-05973 Filed 3-23-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 154, 260, & 284 [Docket No. RM18-11-000] Interstate and Intrastate Natural Gas Pipelines; Rate Changes Relating to Federal Income Tax Rate AGENCY:

    Federal Energy Regulatory Commission, Department of Energy.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Federal Energy Regulatory Commission is proposing a process that will allow it to determine which jurisdictional natural gas pipelines may be collecting unjust and unreasonable rates in light of the recent reduction in the corporate income tax rate in the Tax Cuts and Jobs Act and changes to the Commission's income tax allowance policies following the United Airlines, Inc. v. FERC decision.

    DATES:

    Comments are due April 25, 2018.

    ADDRESSES:

    Comments, identified by docket number, may be filed electronically at http://www.ferc.gov in acceptable native applications and print-to-PDF, but not in scanned or picture format. For those unable to file electronically, comments may be filed by mail or hand-delivery to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426. The Comment Procedures Section of this document contains more detailed filing procedures.

    FOR FURTHER INFORMATION CONTACT:

    Adam Eldean (Legal Information), Office of the General Counsel, 888 First Street NE, Washington, DC 20426, (202) 502-8047, [email protected]. Seong-Kook Berry (Technical Information), Office of Energy Market Regulation, 888 First Street NE, Washington, DC 20426, (202) 502-6544, [email protected]. SUPPLEMENTARY INFORMATION: Table of Contents Paragraph Nos. I. Introduction 1 II. Background 6 A. Tax Cuts and Jobs Act 6 B. United Airlines 9 C. Overview of Natural Gas Rates 11 1. The Natural Gas Act 11 2. The Natural Gas Policy Act of 1978 17 D. Requests for Commission Action 20 III. Discussion 24 A. Interstate Natural Gas Pipelines With Cost-Based Rates 26 1. One-Time Report on Rate Effect of the Tax Cuts and Jobs Act 32 2. Additional Filing Options for Natural Gas Pipelines 41 a. Limited NGA Section 4 Filing 42 b. Commitment To Make General NGA Section 4 Filing 47 c. Statement Explaining Why Adjustment in Rates Is Not Needed 48 d. Take No Action 51 B. Initial Rates Under NGA Section 7 52 C. NGPA Section 311 and Hinshaw Pipelines 55 IV. Implementation 62 V. Regulatory Requirements 66 A. Information Collection Statement 66 B. Environmental Analysis 79 C. Regulatory Flexibility Act Certification 80 D. Comment Procedures 83 E. Document Availability 87 I. Introduction

    1. On December 22, 2017, the President signed into law the Tax Cuts and Jobs Act.1 The Tax Cuts and Jobs Act, among other things, lowers the federal corporate income tax rate from 35 percent to 21 percent, effective January 1, 2018. This means that, beginning January 1, 2018, companies subject to the Commission's jurisdiction will compute income taxes owed to the Internal Revenue Service (IRS) based on a 21 percent tax rate. The tax rate reduction will result in less corporate income tax expense going forward.2

    1 An Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018, Public Law 115-97, 131 Stat. 2054 (2017) (Tax Cuts and Jobs Act).

    2See id. 11011, 131 Stat. at 2063.

    2. Concurrently with the issuance of this Notice of Proposed Rulemaking, the Commission is issuing a Revised Policy Statement on Treatment of Income Taxes (Revised Policy Statement) 3 and an Order on Remand 4 in response to the decision of the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in United Airlines.5 The Revised Policy Statement explains that a double recovery results from granting a Master Limited Partnership (MLP) an income tax allowance and a discounted cash flow (DCF) return on equity (ROE), and accordingly establishes a policy that MLPs are not permitted to recover an income tax allowance in their cost of service. The Revised Policy Statement also explains that other partnership and pass-through entities not organized as an MLP must, if claiming an income tax allowance, address the D.C. Circuit's double-recovery concern.6

    3Inquiry Regarding the Commission's Policy for Recovery of Income Tax Costs, 162 FERC ¶ 61,227 (2018) (Revised Policy Statement).

    4SFPP, L.P., Opinion No. 511-C, 162 FERC ¶ 61,228 (2018) (Remand Order).

    5United Airlines, Inc. v. FERC, 827 F.3d 122 (D.C. Cir. 2016).

    6 Revised Policy Statement, 162 FERC ¶ 61,227.

    3. In response to the Tax Cuts and Jobs Act and the Revised Policy Statement following the United Airlines decision, the Commission proposes to require interstate natural gas pipelines to file an informational filing with the Commission pursuant to sections 10 and 14 of the Natural Gas Act (NGA) (One-time Report on Rate Effect of the Tax Cuts and Jobs Act).7 The One-time Report is designed to collect financial information to evaluate the impact of the Tax Cuts and Jobs Act and the Revised Policy Statement on interstate natural gas pipelines' revenue requirement. In addition to the One-time Report, the Commission proposes to provide four options for each interstate natural gas pipeline to voluntarily make a filing to address the changes to the pipeline's recovery of tax costs, or explain why no action is needed: (1) File a limited NGA section 4 filing to reduce the pipeline's rates to reflect the decrease in the federal corporate income tax rate pursuant to the Tax Cuts and Jobs Act and the elimination of the income tax allowance for MLPs consistent with the Revised Policy Statement, (2) make a commitment to file a general NGA section 4 rate case in the near future, (3) file a statement explaining why an adjustment to its rates is not needed, or (4) take no action other than filing the One-time Report. If an interstate natural gas pipeline does not choose either of the first two options, the Commission will consider, based on the information in the One-time Report and comments by interested parties, whether to issue an order to show cause under NGA section 5 requiring the pipeline either to reduce its rates to reflect the income tax reduction or explain why it should not be required to do so.

    7 The One-time Report on Rate Effect of the Tax Cuts and Jobs Act is referred to interchangeably as “One-time Report” or “FERC Form No. 501-G” in this Notice of Proposed Rulemaking.

    4. The Commission proposes to establish a staggered schedule for interstate natural gas pipelines to file the One-time Report and choose one of the four options described above. The Commission anticipates that the deadlines for these filings will be in the late summer and early fall of this year. The Commission encourages each pipeline to meet with its customers as soon as possible to discuss whether and how its rates should be modified in light of the Tax Cuts and Jobs Act and the Revised Policy Statement, and whether settlement is possible. Interstate natural gas pipelines that file general NGA section 4 rate cases or pre-packaged uncontested rate settlements before the deadline for their One-time Report will be exempted from making the One-time Report.8

    8 In addition, interstate pipelines whose rates are being investigated under NGA section 5 need not file the One-time Report.

    5. The Commission proposes to provide separate procedures for intrastate natural gas pipelines performing interstate service pursuant to section 311 of the Natural Gas Policy Act of 1978 (NGPA) and Hinshaw pipelines performing interstate transportation pursuant to a limited jurisdiction certificate under § 284.224 of the Commission's regulations. The Commission proposes to require these pipelines to file a new rate election under § 284.123(b) of the Commission's regulations if their rates for intrastate service are reduced to reflect the Tax Cuts and Jobs Act.

    II. Background A. Tax Cuts and Jobs Act

    6. On December 22, 2017, the President signed the Tax Cuts and Jobs Act. The Tax Cuts and Jobs Act, among other things, lowers the federal corporate income tax rate from 35 percent to 21 percent, effective January 1, 2018. This means that, beginning January 1, 2018, companies subject to the Commission's jurisdiction will compute income taxes owed to the IRS based on a 21 percent tax rate. The tax rate reduction will result in less corporate income tax expense going forward.

    7. The tax rate reduction will also result in a reduction in accumulated deferred income taxes (ADIT) on the books of rate-regulated companies. The amount of the reduction to ADIT that was collected from customers but is no longer payable to the IRS is excess ADIT and should be flowed back to ratepayers under general ratemaking principles. The Tax Cuts and Jobs Act does not prevent such flow back, although it does include rules on how quickly companies may reduce their excess ADIT. Specifically, the Tax Cuts and Jobs Act indicates that rate-regulated companies generally should use the average rate assumption method when flowing excess ADIT back to customers.9 Rate-regulated companies must follow this requirement to be considered in compliance with normalization. This means that any flow back of ADIT faster than the requirement imposed by the Tax Cuts and Jobs Act (e.g., a one-time large credit to ratepayers or a flow-back method that is over a relatively short period of time) would constitute a normalization violation and may result in unfavorable tax consequences.10

    9See Tax Cuts and Jobs Act 13001, 131 Stat. at 2096.

    10Id. 13001(b)(6)(A), 131 Stat. at 2100 (“If . . . the taxpayer does not use a normalization method of accounting for the corporate rate reductions provided in the amendments made by this section . . . the taxpayer's tax for the taxable year shall be increased by the amount by which it reduces its excess tax reserve more rapidly than permitted under a normalization method of accounting.”).

    8. The Tax Cuts and Jobs Act also establishes a 20 percent deduction, with several exceptions, of “qualified business income” from certain pass-through businesses (such as a partnership or S corporation) for a taxpayer other than a corporation.11 The deduction reduces taxable income, not adjusted gross income.

    11See id. 11011, 131 Stat. at 2063.

    B. United Airlines

    9. In United Airlines, the D.C. Circuit held that the Commission failed to demonstrate that allowing SFPP, L.P. (SFPP), an MLP, to recover both an income tax allowance and the DCF methodology rate of return does not result in a double recovery of investors' tax costs. Accordingly, the D.C. Circuit remanded the underlying rate proceeding to the Commission for further consideration. While the D.C. Circuit's decision directly addressed the rate case filed by SFPP, the United Airlines double-recovery analysis referred to partnerships generally. Recognizing the potentially industry-wide ramifications, the Commission issued a Notice of Inquiry in Docket No. PL17-1-000, soliciting comments on how to resolve any double recovery resulting from the rate of return policies and the policy permitting an income tax allowance for partnership entities.12

    12Inquiry Regarding the Commission's Policy for Recovery of Income Tax Costs, Notice of Inquiry, 157 FERC ¶ 61,210 (2016).

    10. Concurrently with the issuance of this Notice of Proposed Rulemaking, the Commission is issuing both (a) an Order on Remand in the SFPP rate case 13 and (b) a Revised Policy Statement in Docket No. PL17-1.14 The Revised Policy Statement explains that a double recovery results from granting an MLP an income tax allowance and a DCF ROE. Accordingly, the Commission will no longer permit MLPs to recover an income tax allowance in their cost of service. The Revised Policy Statement also explains that while all partnerships seeking to recover an income tax allowance in a cost-of-service rate case will need to address the United Airlines double-recovery concern, the Commission will address the application of United Airlines to these non-MLP partnership forms as those issues arise in subsequent proceedings.

    13 Remand Order, 162 FERC ¶ 61,228.

    14 Revised Policy Statement, 162 FERC ¶ 61,227.

    C. Overview of Natural Gas Rates 1. The Natural Gas Act

    11. As required by § 284.10 of the Commission's regulations,15 interstate natural gas pipelines generally have stated rates for their services, which are approved in a rate proceeding under NGA sections 4 or 5 and remain in effect until changed in a subsequent section 4 or 5 proceeding. The stated rates recover all components of the pipeline's cost of service, including the pipeline's federal income taxes, in a single, overall rate.16 When pipelines file under NGA section 4 to change their rates, the Commission requires the pipeline to provide detailed support for all the components of its cost of service, including federal income taxes.17

    15 18 CFR 284.10 (2017).

    16 Most pipeline tariffs include tracking mechanisms for the recovery of fuel and lost and unaccounted for gas, but generally pipelines do not separately track any other cost.

    17 18 CFR 154.312 and 154.313 (2017). The pipeline must show the computation of its allowance for federal income taxes in Schedule H-3.

    12. The Commission generally does not permit pipelines to change any single component of their cost of service outside of a general NGA section 4 rate case.18 A primary reason for this policy is that, while one component of the cost of service may have increased, others may have declined. In a general NGA section 4 rate case, all components of the cost of service may be considered and any decreases in an individual component can be offset against increases in other cost components.19 For the same reasons, the Commission reviews all of a pipeline's costs and revenues when it investigates whether a pipeline's existing rates are unjust and unreasonable under NGA section 5.20

    18See, e.g., Trunkline Gas Co., 142 FERC ¶ 61,133, at P 24 n.28 (2013).

    19ANR Pipeline Co., 110 FERC ¶ 61,069, at P 18 (2005).

    20Natural Gas Pipeline Co. of America LLC, 158 FERC ¶ 61,044 (2017); Wyoming Interstate Co., L.L.C., 158 FERC ¶ 61,040 (2017); Tuscarora Gas Transmission Co., 154 FERC ¶ 61,030 (2016); Iroquois Gas Transmission System, L.P., 154 FERC ¶ 61,028 (2016); Empire Pipeline, Inc., 154 FERC ¶ 61,029 (2016); Columbia Gulf Transmission, LLC, 54 FERC ¶ 61,027 (2016); Wyoming Interstate Co., L.L.C., 141 FERC ¶ 61,117 (2012); Viking Gas Transmission Co., 141 FERC ¶ 61,118 (2012); Bear Creek Storage Co., L.L.C., 137 FERC ¶ 61,134 (2011); MIGC LLC, 137 FERC ¶ 61,135 (2011); ANR Storage Co., 137 FERC ¶ 61,136 (2011); Ozark Gas Transmission, L.L.C., 133 FERC ¶ 61,158 (2010); Kinder Morgan Interstate Gas Transmission LLC, 133 FERC ¶ 61,157 (2010); Northern Natural Gas Co., 129 FERC ¶ 61,159 (2009); Great Lakes Gas Transmission Ltd. P'ship, 129 FERC ¶ 61,160 (2009); Natural Gas Pipeline Co. of America LLC, 129 FERC ¶ 61,158 (2009).

    13. NGA sections 4 and 5 proceedings are routinely resolved through a settlement agreement between the pipeline and its customers. Most of the agreements are “black box” settlements that do not provide detailed cost-of-service information. In addition, in lieu of submitting a general NGA section 4 rate case, a pipeline may submit a pre-packaged settlement to the Commission. When pipelines file pre-packaged settlements, they generally do not include any cost and revenue data in the filing. The Commission will approve an uncontested settlement offer upon finding that “the settlement appears to be fair and reasonable and in the public interest.” 21 Many settlements include moratorium provisions that limit the ability of the pipeline to file to revise its rates, or for the shippers to file a section 5 complaint, for a particular time period. In addition, many settlements include “come-back provisions,” which require a pipeline to file a NGA section 4 filing no later than a particular date.

    21 18 CFR 385.602(g)(3).

    14. The Commission has granted most interstate natural gas pipelines authority to negotiate rates with individual customers.22 Such rates are not bound by the maximum and minimum recourse rates in the pipeline's tariff.23 In order to be granted negotiated rate authority, a pipeline must have a cost-based recourse rate on file with the Commission, so a customer always has the option of entering into a contract at the cost-based recourse rate rather than a negotiated rate if it chooses. The pipeline must file each negotiated rate agreement with the Commission. In addition, pipelines are also permitted to selectively discount their rates and the Commission approves the maximum recourse rate. While negotiated rates may be above the maximum recourse rate, discount rates must remain below the maximum rate. The maximum recourse rate is the ceiling rate for all long-term capacity releases, including capacity releases to replacement shippers by firm customers with negotiated rates.

    22See Natural Gas Pipeline Negotiated Rate Policies and Practices; Modification of Negotiated Rate Policy, 104 FERC ¶ 61,134 (2003), order on reh'g and clarification, 114 FERC ¶ 61,042, dismissing reh'g and denying clarification, 114 FERC ¶ 61,304 (2006).

    23Northern Natural Gas Co., 105 FERC ¶ 61,299, at PP 15-16 (2003).

    15. Changes to a pipeline's recourse rates occurring under NGA sections 4 and 5 do not affect a customer's negotiated rate, because that rate is negotiated as an alternative to the customer taking service under the recourse rate. However, a shipper receiving a discounted rate may experience a reduction as a result of the outcome of a rate proceeding if the recourse rate is reduced below the discounted rate. The prevalence of negotiated and discount rates varies among pipelines, depending upon the competitive situation.

    16. The Commission also grants interstate natural gas pipelines market-based rate authority when the pipeline can show it lacks market power for the specific services or when the applicant or the Commission can mitigate the market power with specific conditions.24 A pipeline that has been granted market-based rate authority will have an approved tariff on file with the Commission but will not have a Commission approved rate. Rather, all rates for services are negotiated by the pipeline and its customers. Currently, 29 interstate natural gas pipelines have market-based rate authority for storage and interruptible hub services (such as wheeling and park and loan services), and one pipeline (Rendezvous Pipeline Company, LLC) has market-based rate authority for transportation services.

    24Alternatives to Traditional Cost of Service Ratemaking for Natural Gas Pipelines and Regulation of Negotiated Transportation Services of Natural Gas Pipelines, 74 FERC ¶ 61,076 (1996) (Negotiated Rate Policy Statement); see also Rate Regulation of Certain Natural Gas Storage Facilities, Order No. 678, FERC Stats. & Regs. ¶ 31,220 (2006), reh'g denied, Order No. 678-A, 117 FERC ¶ 61,190 (2006).

    2. The Natural Gas Policy Act of 1978

    17. NGPA section 311 authorizes the Commission to allow intrastate pipelines to transport natural gas “on behalf of” interstate pipelines or local distribution companies served by interstate pipelines.25 NGPA section 311(a)(2)(B) provides that the rates for interstate transportation provided by intrastate pipelines shall be “fair and equitable and may not exceed an amount which is reasonably comparable to the rates and charges which interstate pipelines would be permitted to charge for providing similar transportation service.” 26 In addition, NGPA section 311(c) provides that any authorization by the Commission for an intrastate pipeline to provide interstate service “shall be under such terms and conditions as the Commission may prescribe.” 27 Section 284.224 of the Commission's regulations provides for the issuance of blanket certificates under section 7 of the NGA to Hinshaw pipelines 28 to provide open access transportation service “to the same extent that and in the same manner” as intrastate pipelines are authorized to perform such service.29 The Commission regulates the rates for interstate service provided by Hinshaw pipelines under NGA sections 4 and 5.

    25 15 U.S.C. 3371 (2012).

    26 15 U.S.C. 3371(a)(2)(B) (2012).

    27 15 U.S.C. 3371(c)(2012).

    28 Section 1(c) of the NGA, 15 U.S.C. 717(c), exempts from the Commission's NGA jurisdiction those pipelines which transport gas in interstate commerce if: (1) They receive natural gas at or within the boundary of a state, (2) all the gas is consumed within that state, and (3) the pipeline is regulated by a state Commission. This is known as the Hinshaw exemption.

    29See 18 CFR 284.224 (2017).

    18. Section 284.123 of the Commission's regulations provides procedures for section 311 and Hinshaw pipelines to establish fair and equitable rates for their interstate services.30 Section 284.123(b) allows intrastate pipelines an election of two different methodologies upon which to base their rates for interstate services.31 First, § 284.123(b)(1) permits an intrastate pipeline to elect to base its rates on the methodology or rate(s) approved by a state regulatory agency included in an effective firm rate for city-gate service. Second, § 284.123(b)(2) provides that the pipeline may petition for approval of rates and charges using its own data to show its proposed rates are fair and equitable. The Commission has established a policy of reviewing the rates of section 311 and Hinshaw pipelines every five years.32 Section 311 pipelines not using state-approved rates must file a new rate case every five years, and Hinshaw pipelines must file a cost and revenue study every five years. Intrastate pipelines using state-approved rates that have not changed since the previous five-year filing are only required to make a filing certifying that those rates continue to meet the requirements of § 284.123(b)(1) on the same basis on which they were approved. Conversely, if the state-approved rate used for the election is changed at any time, the section 311 or Hinshaw pipeline must file a new rate election pursuant to § 284.123(b) for its interstate rates no later than 30 days after the changed rate becomes effective.

    30 18 CFR 284.123 (2017).

    31 18 CFR 284.123(b) (2017).

    32Contract Reporting Requirements of Intrastate Natural Gas Companies, Order No. 735, FERC Stats. & Regs. ¶ 31,310, at P 92, order on reh'g, Order No. 735-A, FERC Stats. & Regs. ¶ 31,318 (2010); see also Hattiesburg Industrial Gas Sales, L.L.C., 134 FERC ¶ 61,236 (2011) (imposing a five-year rate review requirement on Hattiesburg Industrial Gas Sales, L.L.C.).

    19. An intrastate pipeline may file to request authorization to charge market-based rates under subpart M of part 284 of the Commission's regulations. The same requirements for showing a lack of market power apply to intrastate pipelines as for interstate pipelines. The Commission has granted market-based rate authority for storage and hub services to 19 of the 112 intrastate pipelines with subpart C of part 284 tariffs.

    D. Requests for Commission Action

    20. Several entities 33 have sent letters to the Commission requesting that the Commission act to ensure that the economic benefits related to the reduction in the federal corporate income tax rate are passed through to customers. These entities request, among other things, that the Commission institute investigations into the justness and reasonableness of all applicable rates recovered by public utilities and/or pipelines subject to the Commission's jurisdiction with respect to the revenue requirement for federal corporate income taxes and explore ways to implement voluntary rate reductions or refunds. In response to several of these letters, the Interstate Natural Gas Association of America sent a letter to Chairman McIntyre arguing that suggestions for a generic order compelling pipelines to adjust an individual component of their respective recourse rates will, in many cases, not yield a just and reasonable result because of the Commission's policy preference for complete rate reviews, the limits the Mobile-Sierra doctrine places on the Commission's ability to reopen rates resulting from freely negotiated agreements, the existence of negotiated “black-box” settlements that do not specify a particular tax allowance, and the Internal Revenue Code's normalization rules that a pipeline would violate if excess ADIT was returned to ratepayers more rapidly than allowed by the required amortization methods.34

    33 These entities include State Advocates (States, state agencies, and state consumer advocates), Organization of PJM States, Inc., Organization of MISO States, American Public Gas Association, Process Gas Consumers Group, Natural Gas Supply Association, Natural Gas Indicated Shippers, Liquids Shippers Group, Oklahoma Attorney General, Gordon Gooch (pro se consumer), Advanced Energy Buyers Group, National Association of State Energy Officials, The R-Street Institute, Office of the Ohio Consumers' Counsel, and the Governor of Delaware.

    34 Letter to Chairman McIntyre by the Interstate Natural Gas Association of America in response to letters by the American Public Gas Association, FERC eLibrary Accession No. 20180130-4005 (filed Jan. 30, 2018).

    21. In addition, on January 31, 2018 in Docket No. RP18-415-000, several trade associations and companies representing a coalition of the natural gas industry that are dependent upon services provided by interstate natural gas pipeline and storage companies (Petitioners) 35 filed a petition requesting that the Commission take immediate action under sections 5(a), 10(a), and 14(a) and (c) of the NGA to initiate show cause proceedings against all interstate natural gas pipeline and storage companies (unless barred by a settlement moratorium) and require each company to submit a cost and revenue study to demonstrate that their existing jurisdictional rates continue to be just and reasonable following the passage of the Tax Cuts and Jobs Act. Several parties filed comments in support of the petition. Petitioners argue that the following companies should be excluded from the show cause proceedings: (1) Section 311 pipelines (which Petitioners argue are otherwise required to file updated rate justifications on an ongoing basis), and (2) natural gas pipeline and storage companies that are obligated to file a NGA section 4 rate case in 2018.36

    35 Petitioners include the following trade associations: American Forest and Paper Association, American Public Gas Association, Independent Petroleum Association of America, Natural Gas Supply Association, and Process Gas Consumers Group. Petitioners also include the following companies: Aera Energy LLC, Anadarko Energy Services Company, Chevron U.S.A. Inc., ConocoPhillips Company, Hess Corporation, Petrohawk Energy Corporation, WPX Energy Marketing, LLC, and XTO Energy Inc.

    36 Petitioners, Filing, Docket No. RP18-415-000, at 3-4 (filed Jan. 31, 2018).

    22. Petitioners argue that the Commission should require an immediate rate reduction, based upon the Commission's calculations, if a filed cost and revenue study demonstrates that the revenues from services offered on the interstate natural gas pipeline or storage company's system exceed the costs following the adjustments to account for changes to the tax laws implemented under the Tax Cuts and Jobs Act. Petitioners contend that, if a pipeline or storage company believes that it has a Commission-approved settlement that would exempt it from such a rate analysis (e.g., NGA section 5 rate moratorium), the Commission should require such company to provide evidence to that effect. Petitioners argue that if the Commission determines that a settlement prohibits a rate change during the term of the settlement, then the show cause order would be applicable to the company at the termination of any applicable NGA section 5 rate moratorium provisions of the settlement. Petitioners also argue that if a pipeline or storage company believes that any of its contracts are exempt from Commission-ordered rate adjustments (e.g., discounted or negotiated rate contracts), the Commission should require such company to identify those contracts and provide evidence to that effect, and permit shipper counterparties the opportunity to contest such a claim.37

    37Id. at 5-6, 12-19.

    23. Several parties filed answers in opposition to the petition.38 These parties argue that the petition asks the Commission to circumvent the statutory requirements of section 5 of the NGA by unlawfully shifting the burden of proof regarding the justness and reasonableness of pipeline rates and denying pipelines their right to an evidentiary hearing.39 They contend that NGA section 5 and Commission precedent does not generally allow for piecemeal review of a single component of a filed rate considering that a fundamental tenet of ratemaking is that the end result, not any individual component, is what determines whether rates are just and reasonable.40 They also argue that, given the unique and different circumstances across all pipeline rates including the presence of discounted and negotiated rates, “black box” settlements, and moratoria and rate case come-back provisions, a one-size-fits-all approach to modify rates for every pipeline is not appropriate.41

    38 Parties in opposition to the petition include: Interstate Natural Gas Association of America, TransCanada Corporation, Boardwalk Pipeline Partners, LP, and Kinder Morgan Entities.

    39 Interstate Natural Gas Association of America, Answer, Docket No. RP18-415-000, at 4-6 (filed Feb. 12, 2018); TransCanada Corporation, Answer, Docket No. RP18-415-000, at 4-9 (filed Feb. 12, 2018).

    40 Interstate Natural Gas Association of America, Answer, Docket No. RP18-415-000, at 9-10 (filed Feb. 12, 2018); TransCanada Corporation, Answer, Docket No. RP18-415-000, at 9-10 (filed Feb. 12, 2018); Kinder Morgan Entities, Answer, Docket No. RP18-415-000, at 7-11 (filed Feb. 12, 2018).

    41 Interstate Natural Gas Association of America, Answer, Docket No. RP18-415-000, at 11-18 (filed Feb. 12, 2018); TransCanada Corporation, Answer, Docket No. RP18-415-000, at 2-3, 11-12 (filed Feb. 12, 2018); Boardwalk Pipeline Partners, LP,

    Answer, Docket No. RP18-415-000, at 1-8 (filed Feb. 12, 2018); Kinder Morgan Entities, Answer, Docket No. RP18-415-000, at 3-7 (filed Feb. 12, 2018).

    III. Discussion

    24. The Tax Cuts and Jobs Act, together with the Revised Policy Statement, reduce certain costs eligible for recovery in the rates of every natural gas pipeline subject to the Commission's jurisdiction. The Tax Cuts and Jobs Act reduces the federal income tax rate of all pipelines organized as corporations. The Revised Policy Statement establishes a policy that all pipelines organized as MLPs should eliminate any income tax allowance from their rates.42 The Commission believes that interstate natural gas pipelines and intrastate natural gas pipelines providing interstate service should flow through the benefits of the corporate income tax reduction and elimination of MLP income tax allowances to consumers to the extent that their rates would otherwise over-recover their costs of service. Therefore, the Commission is initiating this rulemaking proceeding to consider the most efficient and expeditious method of accomplishing this goal consistent with the requirements of the NGA and the NGPA. Specifically, the Commission proposes to revise its regulations to (1) require interstate natural gas pipelines to file a One-time Report concerning the effects of these tax changes, (2) permit interstate natural gas pipelines to voluntarily submit a limited NGA section 4 filing to reflect the decrease in the federal corporate income tax rate pursuant to the Tax Cuts and Jobs Act and the elimination of the income tax allowance for MLPs consistent with the Revised Policy Statement,43 and (3) require NGPA section 311 and Hinshaw pipelines to modify their rates for interstate service if they modify their rates for intrastate service to reflect the tax changes. These proposals are intended to encourage natural gas pipelines to voluntarily reduce their rates to the extent the tax changes result in their over-recovering their cost of service, while also providing the Commission and stakeholders information necessary to take targeted actions under NGA section 5 where necessary to achieve just and reasonable rates.

    42 Revised Policy Statement, 162 FERC ¶ 61,227.

    43 In addition, consistent with the Revised Policy Statement, partnerships or other pass-through entities that have not adopted the MLP business form must address the double-recovery concern raised by United Airlines. To the extent any of these partnerships or pass-through entities argue that they should continue to recover an income tax allowance, then the entity's revised tax rate should reflect any relevant tax reductions resulting from the Tax Cuts and Jobs Act. The Commission will review this information in light of its post-United Airlines policy changes, including any subsequent orders affecting the income tax policy for other non-MLP partnership or pass-through business forms. See Revised Policy Statement, 162 FERC ¶ 61,227 at P 3 (“While all partnerships seeking to recover an income tax allowance will need to address the double-recovery concern, the Commission will address the application of United Airlines to non-MLP partnership or other pass-through business forms as those issues arise in subsequent proceedings.”).

    25. The Commission addresses interstate natural gas pipelines under the NGA and NGPA section 311 and Hinshaw pipelines separately below.

    A. Interstate Natural Gas Pipelines With Cost-Based Rates

    26. The Commission proposes to require interstate natural gas pipelines to file, pursuant to sections 10 and 14(a) of the NGA, a One-time Report on Rate Effect of the Tax Cuts and Jobs Act, to be known as FERC Form No. 501-G,44 that includes an abbreviated cost and revenue study estimating (1) the percentage reduction in the pipeline's cost of service resulting from the Tax Cuts and Jobs Act and the Revised Policy Statement, and (2) the pipeline's current ROEs before and after the reduction in corporate income taxes and the elimination of income tax allowances for MLPs. As described in more detail below, the FERC Form No. 501-G is designed to collect financial information to evaluate the impact of the Tax Cuts and Jobs Act and the Revised Policy Statement on the pipeline's cost of service, and to inform stakeholders and the Commission regarding the continued justness and reasonableness of the pipeline's rates after the income tax reduction and elimination of MLP income tax allowances. Interstate natural gas pipelines that file general NGA section 4 rate cases or pre-packaged uncontested rate settlements before the deadline for their One-time Report will be exempted from making the One-time Report.45

    44 Proposed FERC Form No. 501-G will not be published in the Federal Register or the Code of Federal Regulations, but is available in the Commission's eLibrary website under Docket No. RM18-11-000.

    45 In addition, interstate pipelines whose rates are being investigated under NGA section 5 need not file the One-time Report.

    27. In addition to the mandatory One-time Report, the Commission also proposes several options for interstate natural gas pipelines to voluntarily make a filing to address the effect of the Tax Cuts and Jobs Act and the Revised Policy Statement. The Commission proposes to allow an interstate natural gas pipeline to make a limited NGA section 4 filing to reduce its rates by the percentage reduction in its cost of service resulting from the Tax Cuts and Jobs Act and the Revised Policy Statement, as calculated in the FERC Form No. 501-G. This would allow the pipeline to quickly pass on to ratepayers the benefit of the reduction in the corporate income tax rate or the elimination of the MLP income tax allowance, without the need for a full examination of all its costs and revenues. Alternatively, as described below, an interstate pipeline may commit to file either a prepackaged uncontested settlement or, if that is not possible, a general NGA section 4 rate case if the pipeline believes that using the limited NGA section 4 option will not result in a just and reasonable rate. If the pipeline commits to do this by December 31, 2018, the Commission will not initiate an NGA section 5 investigation of its rates prior to that date.

    28. The Commission also recognizes that there may be reasons why some pipelines need not change their rates at this time and therefore proposes an interstate pipeline may choose to file a statement explaining why an adjustment to its rates is not needed. For example, a pipeline may argue that it is currently under-recovering its overall cost of service, such that the reduction in its tax costs or elimination of an MLP income tax allowance will not lead to excessive recovery. If that is true, no reduction in the pipeline's existing stated rates would be justified under NGA section 5.46 The proposed FERC Form No. 501-G will provide information as to whether an interstate pipeline may be under recovering its cost of service. Other pipelines may have settlements providing for moratoria on rate changes until some future date or requiring them to file new NGA section 4 rate cases in the near future.

    46 When an interstate pipeline proposes to increase its rates pursuant to NGA section 4, the Commission may issue an order reducing one component of the proposed increased cost of service, so as to reduce the proposed rate increase, before resolving other issues. FPC v. Tennessee Gas Transmission Co., 371 U.S. 145, 149-156 (1962). However, in order to reduce a pipeline's existing stated rates below their current level under NGA section 5, the Commission must consider all the pipeline's costs and revenues related to that rate. See FPC v. Natural Gas Pipeline Co., 315 U.S. 574 (1942) (finding that, when acting under NGA section 5, the Commission may adjust the pipeline's “general revenue level to the demands of a fair return” before adjusting specific rate schedules to eliminate discriminations and unfairness from its details) (emphasis added).

    29. Lastly, a pipeline may file its FERC Form No. 501-G without taking any other action. The Commission will assign each pipeline's filing of the FERC Form No. 501-G an RP docket number and notice the filing providing for interventions and protests. Based on the information in that form, together with any statement filed with the form and comments by intervenors, the Commission will consider whether to initiate an investigation under NGA section 5 of those pipelines that have not filed a limited NGA section 4 rate reduction filing or committed to file a general NGA section 4 rate case.

    30. The Commission proposes to require only interstate natural gas pipelines that have cost-based rates for service under any rate schedule filed pursuant to part 154 of the Commission's regulations to comply with this proposed rule. Therefore, pipelines with market-based rates would not be subject to this proposed rule.

    31. The Commission does not propose to take any action regarding the effect of the Tax Cuts and Jobs Act on ADIT in this Notice of Proposed Rulemaking. In a concurrent Notice of Inquiry,47 the Commission is seeking comment regarding this issue.

    47Inquiry Regarding the Effect of the Tax Cuts and Jobs Act on Commission-Jurisdictional Rates, 162 FERC ¶ 61,223 (2018).

    1. One-Time Report on Rate Effect of the Tax Cuts and Jobs Act

    32. The Commission proposes to exercise its authority under NGA sections 10(a) and 14(a) 48 to require all interstate natural gas pipelines that file a 2017 FERC Form Nos. 2 or 2A to submit an abbreviated cost and revenue study in a format similar to the cost and revenue studies the Commission has attached to its orders initiating NGA section 5 rate investigations in recent years.49 Using the data in the pipelines' 2017 FERC Form Nos. 2 and 2A, these studies will estimate (1) the percentage reduction in the pipeline's cost of service resulting from the Tax Cuts and Jobs Act and the Revised Policy Statement, and (2) the pipeline's current ROEs before and after the reduction in corporate income taxes and the elimination of income tax allowances for MLPs.50 FERC Form No. 501-G is an Excel spreadsheet with formulas that, when the respondents populate the form, will calculate an indicated percentage rate reduction reflecting only the corporate income tax rate reduction provided by the Tax Cuts and Jobs Act and the elimination of the MLP tax allowance by the Revised Policy Statement. The form will also calculate the pipeline's estimated actual return on equity both before and after the tax change and implementation of the Revised Policy Statement. The Commission and the parties may use this information in considering whether to initiate NGA section 5 rate investigations of pipelines which do not opt to file a limited section 4 to reduce their rates or commit to make a general section 4 filing by December 31, 2018, and the order in which to initiate any such investigations so as to make the most efficient use of the Commission's and interested parties' resources to provide consumer benefits.

    48See Tuscarora Gas Transmission Co., 154 FERC ¶ 61,273, at PP 4-14 (2016), requiring a pipeline to submit a more detailed cost and revenue study than that which the Commission is proposing here.

    49 See orders cited in footnote 20. Interstate natural gas pipelines whose rates are being examined in a general NGA section 4 rate case or an NGA section 5 investigation need not file the One-time Report. In addition, pipelines that file a pre-packaged uncontested rate settlement before the deadline for their One-time Report will be exempted from making the One-time Report.

    50 An MLP is a publicly traded partnership under the Internal Revenue Code that receives at least 90 percent of its income from certain qualifying sources, including gas and oil transportation. See 26 U.S.C. 7704; Inquiry Regarding the Commission's Policy for Recovery of Income Tax Costs, Notice of Inquiry, 157 FERC ¶ 61,210 at PP 4-7.

    33. Most of the required data is to be taken directly from the respondent's 2017 FERC Form Nos. 2 or Form 2-A 51 without modification. The cost and revenue study incorporates all the major cost components of a jurisdictional cost of service, including: Administrative and General, Operation and Maintenance, other taxes, depreciation expense, and the return related components of ROE, interest expenses and income taxes.

    51 FERC Form 2s (Annual report for Major natural gas companies) and 2-As (Annual report for Nonmajor natural gas companies) for calendar year 2017 are due April 18, 2018. 18 CFR 260.1(b)(2) & 260.2(b)(2).

    34. A cost and revenue study requires an indicative ROE. In the proposed form, the Commission uses, consistent with Commission practice, the last litigated ROE applicable to situations involving existing plant.52 The last litigated ROE was in El Paso Natural Gas Company, wherein the Commission adopted an ROE of 10.55 percent.53

    52See, e.g., High Point Gas Transmission, LLC, 139 FERC ¶ 61,237, at P 154 (2012); Alliance Pipeline L.P., 140 FERC ¶ 61,212, at P 20 (2012); Northern Natural Gas Co., 119 FERC ¶ 61,035, at P 37 (2007).

    53El Paso Natural Gas Co., Opinion No. 528, 145 FERC ¶ 61,040, at P 642 (2013), reh'g denied, Opinion No. 528-A, 154 FERC ¶ 61,120 (2016).

    35. In approving the capital structure to be used for ratemaking purposes, the Commission uses an operating company's actual capital structure if the operating company (1) issues its own debt without guarantees, (2) has its own bond rating, and (3) has a capital structure within the range of capital structures approved by the Commission.54 If the operating company meets these requirements, then the Commission will find that the operating company has demonstrated a separation of financial risks between the operating and parent company. Where these requirements are not met, the Commission will use the consolidated capital structure of the parent company or a proxy capital structure in order to set the overall rate of return for the operating utility company.55 The proposed form requests the respondent's FERC Form Nos. 2 or 2-A equity related balance sheet items. However, if that data does not satisfy the three-part test of Opinion No. 414, et al., the form provides alternative data entries to reflect parent or hypothetical capital structures consistent with Opinion No. 414, et al. If the respondent uses the consolidated capital structure of the parent company, it should provide the capital structure as shown on the parent company's U.S. Securities and Exchange Commission's Form 10-K for 2017.

    54Transcontinental Gas Pipe Line Corp., Opinion No. 414-A, 84 FERC ¶ 61,084, at 61,413-61,415, reh'g denied, Opinion No. 414-B, 85 FERC ¶ 61,323 (1998), petition for review denied sub nom. N.C. Utils. Comm'n v. FERC, D.C. Cir. Case No. 99-1037 (Feb. 7, 2000) (per curiam).

    55Id.

    36. Income tax expenses for pass-through entities are not captured by FERC Form Nos. 2 and 2-A. Income tax expenses for such entities are based upon the individual unit holder's income tax levels. The form requires pass-through entities to provide the weighting and marginal tax rates for each unit holder class ending calendar year 2017. Prospectively for pass-through entities, FERC Form No. 501-G assumes a federal and state income tax expense of zero. As the Commission states in the Revised Policy Statement, all partnerships seeking to recover an income tax allowance will need to address the double-recovery concern.56 If a partnership not organized as an MLP believes that a federal or state income tax expense is permissible notwithstanding United Airlines, proposed § 154.404(a)(3) provides that it may submit that statement with supporting documentation to justify why it should continue to receive an income tax allowance and to reduce its maximum rates to reflect the decrease in the federal income tax rates 57 applicable to partners pursuant to the Tax Cuts and Jobs Act. The Commission will review this information in light of its post-United Airlines policy changes, including any subsequent orders affecting the income tax policy for other non-MLP partnership or pass-through business forms.

    56See Revised Policy Statement, 162 FERC ¶ 61,227 at P 3.

    57 If a pass-through entity that is not an MLP claims an income tax allowance, it must reflect the corporate rate reduction and any other relevant tax reductions in the Tax Cuts and Jobs Act.

    37. Page 1, Line 33, of FERC Form No. 501-G contains the percentage reduction of each pipeline's cost of service attributable solely to the revised income tax allowance. This percentage reflects the amount a pipeline may choose to use to reduce its reservation rates and any one-part rates which include a fixed cost recovery should it choose to file a limited NGA section 4 filing as described below.

    38. The next part of the report estimates the actual rate of return on equity earned by the pipeline for its non-gas revenues during calendar year 2017. Page 3 of the report requires the pipeline to report its revenues from which the cost of service items, as detailed on Page 1, are subtracted. The report depicts the pipeline's estimated actual return on equity both before and after the tax change and implementation of the Revised Policy Statement. The information will be used to guide the Commission, other stakeholders, and potentially the pipelines in determining additional steps.

    39. Pipelines may believe that certain 2017 FERC Form Nos. 2 or 2A cost or revenue data require adjustments to properly reflect their situation. Respondents should not make adjustments to the data transferred from FERC Form Nos. 2 or 2-A and 10-K and reported on the FERC Form No. 501-G. Instead, respondents may make adjustments to individual line items in additional work sheets. If a respondent proposes any adjustments, it must fully explain and support the adjustment in a separate document. All adjustments should be shown in a manner similar to that required for adjustments to base period numbers provided in statements and schedules required by §§ 154.312 and 154.313 of the Commission's regulations.58

    58See Implementation Guide for Electronic Filing of Parts 35, 154, 284, 300, and 341 Tariff Filings, Appendix, Instruction Manual for Electronic Filing of Part 154 Rate Filings (November 14, 2016), found on the Commission's website, http://www.ferc.gov/docs-filing/etariff/implementation-guide.pdf, wherein filers are required to show the base figure and then the adjustment and the as-adjusted figures in adjacent columns.

    40. When respondents file their FERC Form No. 501-G, the form should be in spreadsheet format with all the formulas unchanged from those provided in the posted form. The Commission proposes to post the FERC Form No. 501-G on its website. In addition, the Commission has prepared an Implementation Guide for One-time Report on Rate Effect of the Tax Cuts and Jobs Act (Implementation Guide) that provides additional guidance to parties as to the expected data entries. The Implementation Guide also contains the proposed staggered compliance dates and the list of companies for each of the four compliance periods. Drafts of the FERC Form No. 501-G and Implementation Guide are attached to this NOPR for review and comment as separate files. The attachments to the NOPR will be available in the Commission's eLibrary under Docket No. RM18-11-000 but not published in the Federal Register or Code of Federal Regulations.

    2. Additional Filing Options for Natural Gas Pipelines

    41. The Commission proposes that, upon filing of the FERC Form No. 501-G, interstate natural gas pipelines will have four options. The first two options—filing a limited NGA section 4 rate filing or a general section 4 rate case—allow the pipelines to voluntarily make a filing to address the effects of the Tax Cuts and Jobs Act and the Revised Policy Statement. Under the third option, pipelines may file an explanation why no rate change is necessary. Finally, pipelines may simply file the FERC Form No. 501-G described above, without taking any other action at this time. The One-time Report should help inform the pipeline's choice of the four options, as well as assist the Commission in determining what NGA section 5 investigations it should initiate in order to assure that the cost reduction benefits of the Tax Cuts and Jobs Act and the Revised Policy Statement are passed through to consumers.

    a. Limited NGA Section 4 Filing

    42. Under this option, an interstate natural gas pipeline would file the proposed FERC Form No. 501-G and simultaneously make a separate limited NGA section 4 filing, pursuant to proposed section 154.404, to reduce its reservation charges and any one-part rates that include fixed costs 59 by the percentage reduction in its cost of service calculated in the FERC Form No. 501-G 60 resulting from the reduced corporate income tax rates provided by the Tax Cuts and Jobs Act and the elimination of MLP tax allowances by the Revised Policy Statement. In other words, the Commission proposes to allow interstate pipelines to reduce their rates to reflect the reduced income tax rates and elimination of the MLP income tax allowance on a single-issue basis, without consideration of any other cost or revenue changes. Interested parties may protest the limited NGA section 4 filing, but the Commission will only consider arguments relating to matters within the scope of the proceeding. Thus, interested parties could raise issues as to whether the interstate pipeline is eligible to make the limited NGA section 4 filing,61 whether the percentage reduction has been properly applied to the pipeline's rates, and whether the correct information was used in calculating the percentage reduction. However, the Commission will consider any other issues raised as being outside the scope of the proceeding and will dismiss it without prejudice. If shippers or other interested parties believe further adjustments to the rate are warranted, they may file an NGA section 5 complaint with the Commission.

    59 A pipeline's 100 percent load factor rate for interruptible service is an example of a one-part rate containing fixed costs.

    60 That percentage reduction is listed on Page 1, Line 33 of the proposed FERC Form No. 501-G.

    61 The pipeline may not be eligible to make a limited NGA section 4 filing because of a settlement rate moratorium or an ongoing NGA section 4 or 5 proceeding.

    43. The Commission believes that FERC Form No. 501-G's comparison of (1) the pipeline's existing cost of service as reported in its FERC Form Nos. 2 or 2-A for 2017 to (2) a revised cost of service using the new income tax rates, or eliminating the income tax allowance of an MLP, is the most reasonable method to estimate the rate reduction to be implemented in a limited NGA section 4 filing. The Commission recognizes that, after the Tax Reform Act of 1986, the Commission established a procedure for public utilities to reduce their rates based on a formula using cost data provided by the public utility in its most recent FPA section 205 rate filing.62 However, this methodology does not appear workable for many interstate natural gas pipelines. In recent years, many interstate pipelines have filed “pre-packaged” uncontested settlements pursuant to § 385.207(a)(5) of the Commission's regulations,63 without submitting the cost and revenue data required to be filed with a general NGA section 4 rate case by §§ 154.312 or 154.313 of the Commission's regulations.64 In addition, a number of pipelines have not filed rate cases in many years, with the result that the cost and revenue data underlying their existing rates is stale and may not reflect all their current services or system expansions.

    62Rate Changes Relating to Federal Corporate Income Tax Rate for Public Utilities, FERC Stats. & Regs. ¶ 30,752, order on reh'g, 41 FERC ¶ 61,029 (1987) (Order No. 475).

    63 18 CFR 385.207(a)(5) (2017).

    64 18 CFR 154.312 and 154.313 (2017). See, e.g., Dominion Transmission, Inc., 111 FERC ¶ 61,285 (2005); Colorado Interstate Gas Co., 156 FERC ¶ 61,085 (2016).

    44. The Commission recognizes that it generally does not permit pipelines to change any single component of their cost of service outside of a general NGA section 4 rate case.65 Here, however, the Commission believes an exception to that policy is justified in order to permit interstate pipelines to voluntarily reduce their rates as soon as possible to reflect a reduction in a single cost component—their federal income tax costs—so as to flow through that benefit to consumers. In addition, our proposed requirement that all interstate pipelines file the abbreviated cost and revenue study in FERC Form No. 501-G will enable pipelines and all other interested parties to evaluate whether there are significant changes in other cost components or revenues that affect the need for a rate reduction with respect to taxes.

    65See, e.g., Trunkline Gas Co., 142 FERC ¶ 61,133, at P 24 n.28 (2013).

    45. Finally, any rate reduction implemented pursuant to a limited NGA section 4 filing under this option would be a reduction to the pipeline's maximum recourse rates. Similar to the situation in a general NGA section 4 rate case or an NGA section 5 rate investigation, a pipeline's limited NGA section 4 filing to reduce its maximum recourse rate to reflect reduced income tax rates, or elimination of the MLP income tax allowance, ordinarily will not affect any negotiated rate agreements the pipeline has with individual shippers. In the Negotiated Rate Policy Statement,66 the Commission allowed pipelines to negotiate individualized rates that are not bound by the maximum and minimum recourse rates in the pipeline's tariff.67 Among other things, this permits pipelines, as a means of providing rate certainty, to negotiate a fixed rate or rate formula that will continue in effect regardless of changes in the pipeline's maximum recourse rate.68 Accordingly, unless a negotiated rate agreement expressly provides otherwise, the rates in such agreements will be unaffected by any reduction in the pipeline's maximum rate reductions resulting from the policies adopted in the rulemaking proceeding, whether in a limited or general NGA section 4 rate proceeding or a subsequent NGA section 5 investigation.

    66 Negotiated Rate Policy Statement, 74 FERC ¶ 61,076 at 61,225-61,226.

    67Northern Natural Gas Co., 105 FERC ¶ 61,299, at PP 15-16 (2003).

    68Columbia Gulf Transmission Co., 109 FERC ¶ 61,152, at P 13, reh'g denied, 111 FERC ¶ 61,338 (2005). See also Iberdrola Renewables, Inc. v. FERC, 597 F.3d 1299, 1305 (D.C. Cir. 2010).

    46. Discounted rates, by contrast, must remain within the range established by the pipeline's maximum and minimum recourse rates.69 Accordingly, to the extent a pipeline reduces its maximum rate below the level of a shipper's discounted rate, that shipper's discounted rate will be similarly reduced.

    69Columbia Gulf, 109 FERC ¶ 61,152 at P 16.

    b. Commitment to Make General NGA Section 4 Filing

    47. Under this option, an interstate natural gas pipeline would include with its One-time Report a commitment to file either a prepackaged uncontested settlement or, if that is not possible, a general NGA section 4 rate case to revise its rates based upon current cost data. If a pipeline believes that a reduction in its rates by the percentage reduction in its cost of service calculated in its FERC Form No. 501-G would not be reasonable because of other changes in its costs and revenues since its last rate case, this option would permit the pipeline to adjust its rates taking into account all such changes either through an uncontested settlement or a general section 4 rate case. The pipeline would also indicate an approximate time frame regarding when it would file the settlement or make the NGA section 4 filing. The Commission proposes that if the pipeline commits to make such a filing by December 31, 2018, the Commission will not initiate an NGA section 5 investigation of its rates prior to that date.

    c. Statement Explaining Why Adjustment in Rates Is not Needed

    48. Under this option, an interstate natural gas pipeline would include with its One-time Report a statement explaining why no adjustment in its rates is needed at this time. The Commission recognizes that, despite the reduction in the corporate income tax and the elimination of MLP income tax allowances, a rate reduction may not be justified for a significant number of pipelines. For example, the Commission is aware from its reviews of pipeline Form Nos. 2 and 2-A financial data for prior years that a number of pipelines may currently have rates that do not fully recover their overall cost of service. Accordingly, the reduction in those pipelines' tax costs may not cause their rates to be excessive. The proposed FERC Form No. 501-G will provide information as to whether an interstate pipeline may fall into this category. Accordingly, a pipeline may include with its FERC Form No. 501-G a full explanation of why, after accounting for its reduction in tax costs, its rates do not over recover its overall cost of service and therefore no rate reduction is justified. The pipeline would provide this statement along with any additional supporting information it deems necessary.

    49. In addition, interstate pipelines may provide any other reason they believe a rate reduction is not justified at this time. For example, they may assert that an existing rate settlement provides for a moratorium on rate changes that applies to any rate changes that might result from the Tax Cuts and Jobs Act or the Commission's change in policy concerning MLP income tax allowances. Parties agree to rate moratoria in settlements in order to provide rate certainty, and therefore the Commission generally does not disturb a settlement during a rate moratorium.70

    70Iroquois Gas Transmission System L.P., 69 FERC ¶ 61,165, at 61,631 (1994); JMC Power Projects v. Tennessee Gas Pipeline Co., 69 FERC ¶ 61,162 (1994), reh'g denied, 70 FERC ¶ 61,168, at 61,528 (1995), aff'd, Ocean States Power v. FERC, 84 F.3d 1453 (D.C. Cir. 1996).

    50. As described above, interested parties will have an opportunity to comment on any assertion by a pipeline that no adjustment to its rates is needed, and the Commission will then determine whether further action is needed with respect to that pipeline.

    d. Take No Action

    51. Under this option, the interstate natural gas pipeline would take no action other than making the One-time Report. This option is consistent with the fact that the Commission lacks authority under the NGA to order an interstate pipeline to file a rate change under NGA section 4.71 While the Commission is permitting interstate pipelines to voluntarily file a limited NGA section 4 filing or commit to make general NGA section 4 filing to modify their rates to reflect the reduction in the income tax rates or elimination of the MLP income tax allowance, the Commission is not ordering interstate pipelines to make such filings. However, based on the information contained in the pipeline's FERC Form No. 501-G, which the Commission is proposing to require each interstate pipeline to file, and comments by interested parties, the Commission will, on a case-by-case basis, consider initiating a section 5 investigation of a pipeline's rates, if it appears those rates may be unjust and unreasonable.

    71Pub. Serv. Comm. of New York v. FERC, 866 F.2d 487, 492 (D.C. Cir. 1989).

    B. Initial Rates Under NGA Section 7

    52. The issue of how to address the Tax Cuts and Jobs Act in establishing initial rates for new projects arises in a variety of contexts, depending upon the current status of the certificate proceeding and the type of project at issue. For greenfield pipelines such as PennEast,72 the Commission added a condition to the certificate order directing the company to recalculate its initial rates consistent with the Tax Cuts and Jobs Act when it files its compliance tariff records before going into service. For other filings, such as the Transco St. James Project,73 the Commission estimated downward the incremental rate in order to ensure analysis of the appropriate initial rate.

    72PennEast Pipeline Co., LLC, 162 FERC ¶ 61,053, at P 66 (2018).

    73Transcontinental Gas Pipe Line Co., LLC, 162 FERC ¶ 61,050, at P 17 (2018).

    53. For pending incremental expansion certificate filings without near-term deadlines, Commission staff has issued data requests to pipelines directing them to provide an adjusted cost of service and recalculation of the proposed initial recourse rates consistent with the Tax Cuts and Jobs Act. The Commission will take these responses into account when evaluating and approving initial rates.

    54. There are a number of certificate projects which have been authorized by the Commission—including approval of initial rates—but which have not yet gone into service. The Commission proposes that existing pipelines, in their FERC Form No. 501-G reports and/or section 154.404 limited NGA section 4 rate reduction filings, address any approved initial rate for services provided by expansion facilities that have not gone into service. We recognize that there is also a finite group of greenfield pipeline projects that have been authorized but are not yet in service and therefore will not file a Form No. 2 or 2A for 2017. As a result, those pipelines also are not required to file a FERC Form No. 501-G report. The Commission proposes to address the issue of the Tax Cuts and Jobs Act and the Revised Policy Statement impact on these pipelines on a case-by-case basis.74

    74 For example, the Commission may, under section 5 of the NGA, direct the greenfield pipeline to recalculate its initial recourse rates consistent with the Tax Cuts and Jobs Act and Revised Policy Statement when it files actual tariff records before going into service. See, e.g., PennEast Pipeline Co., LLC, 162 FERC ¶ 61,053 at P 66.

    C. NGPA Section 311 and Hinshaw Pipelines

    55. The Commission believes that its existing regulations and policy concerning the rates charged by NGPA section 311 and Hinshaw pipelines are generally sufficient to provide shippers reasonable rate reductions with respect to the Tax Cuts and Jobs Act and Revised Policy Statement. However, as described below, the Commission is proposing to modify § 284.123 of its regulations to require all NGPA section 311 and Hinshaw pipelines to file a new rate election for interstate service if their rates for intrastate service are reduced to reflect the Tax Cuts and Jobs Act.

    56. As described above, § 284.123(b) allows NGPA section 311 and Hinshaw pipelines an election of two different methodologies upon which to base their rates for interstate services.75 First, § 284.123(b)(1) permits an intrastate pipeline to elect to base its rates on the methodology or rate(s) approved by a state regulatory agency included in an effective firm rate for city-gate service. Second, § 284.123(b)(2) provides that the pipeline may petition for Commission approval of rates and charges using its own data to show its proposed rates are fair and equitable. The Commission has a policy of requiring a review of the rates of each NGPA section 311 and Hinshaw pipeline every five years.76 Consistent with that policy, when the Commission issues an order approving rates filed by an NGPA section 311 pipeline, the Commission requires the pipeline to file a new rate election within five years. When the Commission approves rates filed by a Hinshaw pipeline, it requires the pipeline to file a cost and revenue study within five years. In addition, the Commission requires NGPA section 311 and Hinshaw pipelines that have elected to use a state rate pursuant to § 284.123(b)(1) to file a new rate election within 30 days after any change in the state rate.77

    75 18 CFR 284.123(b) (2017).

    76Contract Reporting Requirements of Intrastate Natural Gas Companies, FERC Stats & Regs. ¶ 31,310 at P 96. Pipelines using state-approved rates pursuant to section 284.123(b)(1) may certify that those rates continue to meet the requirements of section 284.123(b)(1) on the same basis on which they were approved.

    77 18 CFR 284.123(g)(9)(iii) (2017). See also Lobo Pipeline Co. L.P., 145 FERC ¶ 61,168, at P 5 (2013) and Atmos Pipeline—Texas, 156 FERC ¶ 61,094, at P 8 (2016).

    57. The Commission believes that these requirements adequately provide for the approximately 44 NGPA section 311 and Hinshaw pipelines that have elected to use state-derived rates pursuant to § 284.123(b)(1) to pass on to ratepayers the benefit of the reduction in the corporate income tax rate. Pursuant to their rate election, these pipelines are authorized to charge rates approved by their state regulatory agency. Therefore, the decision whether the interstate rates of these pipelines should be reduced to reflect the Tax Cuts and Jobs Act is in the hands of the state regulatory agency. If the state regulatory agency requires any of these pipelines to reduce their intrastate rates to reflect the decreased income tax, Commission policy, as explained above, requires those pipelines to file with the Commission to reduce their interstate rates correspondingly within 30 days of the effective date of the reduced intrastate rates.

    58. We now turn to the approximately 61 NGPA section 311 and Hinshaw pipelines which have elected to use Commission-established cost-based rates pursuant to § 284.123(b)(2). Pursuant to our five-year rate review policy, we estimate that almost half of these pipelines will have their rates restated within the next 24 months. In addition, a review of the quarterly transactional reports filed by these pipelines pursuant to § 284.126(b) 78 indicates that these pipelines rarely charge their maximum rates. Instead, they charge discounted rates for most of their transactions so that any reduction in their maximum rates is unlikely to provide significant benefits to the customers in those transactions.

    78 18 CFR 284.126(b) (2012). These reports are set forth in Form No. 549D.

    59. However, the Commission believes that, if an NGPA section 311 or Hinshaw pipeline using Commission-established cost-based rates reduces its intrastate rates to reflect the reduced income taxes resulting from the Tax Cuts and Jobs Act, it would be reasonable for that pipeline to make a corresponding reduction in its rates for interstate service. This would give the same rate reduction benefit to any interstate shippers on those pipelines as the intrastate shippers receive, thereby ensuring that the two groups of shippers are treated similarly. Therefore, for the purposes of the Tax Cuts and Jobs Act only, the Commission proposes a new § 284.123(i), which would impose the same re-filing requirement on § 284.123(b)(2) rates as on pipelines electing to use state-derived rates under § 284.123(b)(1). Namely, if any intrastate pipeline adjusts its state-jurisdictional rates to reflect the reduced corporate income tax rates adopted in the Tax Cuts and Jobs Act, then the intrastate pipeline must file a new rate election pursuant to paragraph (b) of this section no later than 30 days after the reduced intrastate rate becomes effective.

    60. The Commission notes that, for any pipeline that the Commission does identify that charges an excessive Commission-established cost-based maximum rate to captive shippers (whether through staff investigation or a shipper-filed complaint), the Commission could exercise its authority under NGPA section 311(c) to order any such section 311 intrastate pipeline to reduce its rates to reflect the reduced income tax rates, and take similar action against any such Hinshaw pipeline under NGA section 5.79

    79 The courts have held that the Commission's conditioning authority under NGPA section 311(c) permits the Commission to order changes in section 311 pipelines' rates, terms, and conditions of service. See Associated Gas Distributors v. FERC, 824 F.2d 981, 1016-7 (D.C. Cir. 1987). See also Bay Gas Storage Co., 126 FERC ¶ 61,018, at PP 22-24 (2009) (requiring a prospective change in intrastate pipeline's Statement of Operating Conditions).

    61. Finally, the Commission will not take any action with respect to the market-based rates it has approved for some NGPA section 311 and Hinshaw pipelines. Market-based rates are, by definition, subject to change according to market forces, and do not have cost-based rates that directly account for taxes. For such rates, no change is required.

    IV. Implementation

    62. The Commission proposes staggered dates for pipelines filing the FERC Form No. 501-G report. In the Implementation Guide for the proposed FERC Form No. 501-G, 133 interstate natural gas pipelines with cost-based rates are split into four groups. The due date for the first group will be 28 days from the effective date of any final rule in this proceeding, and the due date for each subsequent group will be 28 days from the previous group's due date. When the final due dates are known, the Office of the Secretary will issue a Notice and update the FERC Form No. 501-G Implementation Guide. Pipelines may file their FERC Form No. 501-G report earlier than the proposed dates. The Commission will post the FERC Form No. 501-G form and the FERC Form No. 501-G Implementation Guide on its website at http://www.ferc.gov/legal/maj-ord-reg.asp#gas. As noted in the discussion above, this form is in spreadsheet format. The Commission proposes to require that the form be filed with the Commission in the same spreadsheet format. Respondents should not modify the formulas. If respondents, in addition to the required spreadsheet version of the report, wish to attach a PDF version of the report, they may do so. The Commission proposes to require that FERC Form No. 501-G forms be filed through eTariff. The Commission will establish a new Type of Filing Code (TOFC) 80 just for these reports. Respondents may include with this filing, as appropriate, a statement explaining why no adjustment in its rates is needed, or their commitment to make a general NGA section 4 rate case filing in lieu of a limited NGA section 4 filing as permitted by § 154.404. The Implementation Guide provides contact information for Commission staff if assistance is needed regarding FERC Form No. 501-G.

    80 The type of filing business process categories are described in the Implementation Guide for Electronic Filing of Parts 35, 154, 284, 300, and 341 Tariff Filings (November 14, 2016), found on the Commission's website, http://www.ferc.gov/docs-filing/etariff/implementation-guide.pdf.

    63. For the limited NGA section 4 rate reduction option proposed in § 154.404, the Commission proposes to establish a new TOFC. Pipelines are required to incorporate by reference their filed FERC Form No. 501-G as a supporting document. No other documentation is necessary if the pipelines propose to reduce their rates by the percentage shown on their FERC Form No. 501-G. Pipelines may file a § 154.404 rate reduction earlier than the proposed FERC Form No. 501-G compliance dates.

    64. Each report and limited NGA section 4 filing will receive a new root docket number. The Commission will issue a Notice for each report and filing, with interventions and comments due under the standard § 154.210 notice period.81 The following table lists the proposed new TOFCs. FERC Form No. 501-G is a one-time form. As such, the Commission proposes to retire these TOFCs after the end of the staggered compliance dates provided in the FERC Form No. 501-G Implementation Guide.

    81 18 CFR 154.210 (2017).

    Type of filing code Filing title Citation Type of filing category 1430 FERC Form No. 501-G Report 260.402 Compliance. 1440 Limited Sec. 4 Tax Reduction 154.404 Normal/Statutory.

    65. Intrastate pipelines with cost-based rates established pursuant to § 284.123(b)(2) of the Commission's regulations that are filing to reduce rates pursuant to proposed § 284.123(i) may use any appropriate existing TOFC under the NGPA Gas Tariff Program options.

    V. Regulatory Requirements A. Information Collection Statement

    66. The Office of Management and Budget (OMB) regulations require that OMB approve certain reporting, record keeping, and public disclosure requirements (information collection) imposed by an agency.82 Therefore, the Commission is submitting its proposed information collection to OMB for review in accordance with section 3507(d) of the Paperwork Reduction Act of 1995. Upon approval of a collection of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of a rule will not be penalized for failing to respond to the collection of information unless the collection of information displays a valid OMB control number.

    82 5 CFR 1320.11 (2017).

    67. Public Reporting Burden: The overall proposed data collection (FERC-501G, One-time Report on Rate Effect of the Tax Cuts and Jobs Act) includes the following requirements.

    68. The Commission has identified 133 interstate natural gas pipelines with cost-based rates that will be required to file the proposed FERC Form No. 501-G. That figure is based upon a review of the pipeline tariffs on file with the Commission. Interstate natural gas pipelines have four options as to how to address the results of the formula contained in FERC Form No. 501-G. Each option has a different burden profile and a different cost per response. Companies will make their own business decisions as to which option they will select, thus the estimate for the number of respondents for each option as shown in the table below is just an estimate.

    69. The number of NGPA section 311 and Hinshaw pipelines that will be required to file a rate case pursuant to proposed § 284.123(i) is a function of state actions outside of the control of the Commission. Thus, the estimate for the number of respondents for NGPA section 311 and Hinshaw pipelines filing a rate case in compliance with proposed § 284.123(i) as shown in the table below is just an estimate.

    70. Based on these assumptions, we estimate the one-time burden and cost  83 for the information collection requirements as follows.

    83 The estimated average hourly cost of $79.77 (rounded) assumes equal time is spent by an accountant, management, lawyer, and office and administrative support. The average hourly cost (salary plus benefits) is: $53.00 for accountants (occupation code 13-2011), $81.52 for management (occupation code 11-0000), $143.68 for lawyers (occupation code 23-0000), and $40.89 for office and administrative support (occupation code 43-000). (The figures are taken from the Bureau of Labor Statistics, October 2017 for the year ending May 2016, figures at http://www.bls.gov/oes/current/naics2_22.htm.).

    FERC-501G: One-Time Report on Rate Effect of the Tax Cuts and Jobs Act Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Total
  • responses
  • Avg.
  • burden hr.
  • per response
  • Avg. cost per
  • response
  • Total
  • burden
  • hours
  • Total cost ($)
    (1) (2) (3) (4) (5) (3)*(4)=(6) (3)*(5)=(7) Interstate Natural Gas Pipelines with Cost-Based Rates FERC Form No. 501-G, One-time Report 84 133 1 133 9 718 1,197 95,485 Optional Response No Response 53 0 0 0 0 0 0 Case for no change 64 1 64 5 399 320 25,526 Limited Sec 4 filing 85 15 1 15 6 479 90 7,179 General Sec. 4 filing 86 1 1 1 87 512 40,842 512 40,842 NGPA section 311 and Hinshaw Pipelines with Cost-Based Rates NGPA rate filing 88 89 15 1 15 24 1,914 360 28,717 Total 90 148 228 2,479 197,749

    71. The Commission does not expect any mandatory or voluntary reporting requirements other than those listed above.

    84 18 CFR 260.402 (proposed).

    85 18 CFR 154.404 (proposed).

    86 18 CFR 154.312 (2017).

    87 The estimate for hours is based on the estimated average hours per response for the FERC-545 (OMB Control No. 1902-0154), with general NGA section 4, 18 CFR 154.312 filings weighted at a ratio of 20 to one.

    88 18 CFR 284.123(i) (proposed).

    89 Estimate of number of respondents assumes that states will act within one year to reduce NGPA section 311 and Hinshaw pipeline rates to reflect the Tax Cuts and Jobs Act.

    90 Number of unique respondents = (One-time FERC Form No. 501-G) + (NGPA rate filing).

    72. Action: Proposed information collection, FERC-501G (One-time Report on Rate Effect of the Tax Cuts and Jobs Act).

    73. OMB Control No.: To be determined.

    74. Respondents for this Rulemaking: Interstate natural gas pipelines with cost-based rates, and certain NGPA section 311 and Hinshaw pipelines.

    75. Frequency of Information: One-time, for each indicated reporting requirement.

    76. Necessity of Information: The Commission requires information in order to determine the effect of the Tax and Jobs Act on the rates of natural gas pipelines to ensure those rates continue to be just and reasonable.

    77. Internal Review: The Commission has reviewed the proposed information collection requirements and has determined that they are necessary. These requirements conform to the Commission's need for efficient information collection, communication, and management within the energy industry. The Commission has specific, objective support for the burden estimates associated with the information collection requirements.

    78. The Commission requests comments on the utility of the proposed information collection, the accuracy of the burden estimates, how the quality, quantity, and clarity of the information to be collected might be enhanced, and any suggested methods for minimizing the respondent's burden, including the use of automated information techniques. Interested persons may obtain information on the reporting requirements or submit comments by contacting the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426 (Attention: Ellen Brown, Office of the Executive Director, (202) 502-8663, or email [email protected]:). Comments may also be sent to the Office of Management and Budget (Attention: Desk Officer for the Federal Energy Regulatory Commission), by email at [email protected].

    B. Environmental Analysis

    79. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.91 The actions proposed to be taken here fall within categorical exclusions in the Commission's regulations for rules regarding information gathering, analysis, and dissemination, and for rules regarding sales, exchange, and transportation of natural gas that require no construction of facilities.92 Therefore, an environmental review is unnecessary and has not been prepared in this rulemaking.

    91 Order No. 486, Regulations Implementing the National Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 (1987).

    92See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5) and 380.4(a)(27) (2017).

    C. Regulatory Flexibility Act Certification

    80. The Regulatory Flexibility Act of 1980 (RFA) 93 generally requires a description and analysis of rules that will have significant economic impact on a substantial number of small entities. The Commission is not required to make such analysis if proposed regulations would not have such an effect.

    93 5 U.S.C. 601-612 (2012).

    81. As noted in the above Information Collection Statement, approximately 133 interstate natural gas pipelines, both large and small, are respondents subject to the requirements adopted by this rule. In addition, the Commission estimates that another 59 NGPA natural gas pipelines may be required to file restated rates pursuant to proposed § 284.123(i). However, the actual number of NGPA section 311 and Hinshaw pipelines that will be required to file is a function of actions taken at the state level. The Commission estimates that only 15 of the 59 NGPA natural gas pipelines will file a rate case pursuant to proposed § 284.123(i).

    82. Most of the natural gas pipelines regulated by the Commission do not fall within the RFA's definition of a small entity,94 which is currently defined for natural gas pipelines as a company that, in combination with its affiliates, has total annual receipts of $27.5 million or less.95 For the year 2016 (the most recent year for which information is available), only five of the 133 interstate natural gas pipeline respondents had annual revenues in combination with its affiliates of $27.5 million or less and therefore could be considered a small entity under the RFA. This represents 3.8 percent of the total universe of potential NGA respondents that may have a significant burden imposed on them. For NGPA section 311 and Hinshaw pipelines, three of the 59 potential respondents could be considered a small entity, or 5.1 percent. However, it is not possible to predict whether any of these small companies may be required to make a rate filing. In view of these considerations, the Commission certifies that this proposed rule's amendments to the regulations will not have a significant impact on a substantial number of small entities.

    94See 5 U.S.C. 601(3) citing section 3 of the Small Business Act, 15 U.S.C. 623. Section 3 of the SBA defines a “small business concern” as a business which is independently owned and operated and which is not dominant in its field of operation (2017).

    95 13 CFR 121.201 (Subsector 486—Pipeline Transportation; North American Industry Classification System code 486210; Pipeline Transportation of Natural Gas) (2017). “Annual Receipts” are total income plus cost of goods sold.

    D. Comment Procedures

    83. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due April 25, 2018. Comments must refer to Docket No. RM18-11-000, and must include the commenter's name, the organization they represent (if applicable), and their address in their comments.

    84. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's website at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing.

    85. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426.

    86. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.

    E. Document Availability

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

    88. From the Commission's Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

    89. User assistance is available for eLibrary and the Commission's website during normal business hours from the Commission's Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at 202-502-8371, TTY 202-502-8659. Email the Public Reference Room at [email protected].

    90. The proposed FERC Form No. 501-G and the Implementation Guide are available on the Commission's eLibrary and website. These will not be published in the Federal Register or the Code of Federal Regulations.

    List of Subjects in 18 CFR Parts 154, 260, & 284 Part 154

    Natural gas, Pipelines, Reporting and recordkeeping requirements.

    Part 260

    Natural gas, Reporting and recordkeeping requirements.

    Part 284

    Continental shelf, Natural gas, Reporting and recordkeeping requirements.

    By direction of the Commission.

    Issued: March 15, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.

    In consideration of the foregoing, the Commission proposes to amend parts 154, 260, and 284, Chapter I, Title 18, Code of Federal Regulations, as follows.

    PART 154— RATE SCHEDULES AND TARIFFS 1. The authority citation for part 154 continues to read as follows: Authority:

    15 U.S.C. 717-717w; 31 U.S.C. 9701; 42 U.S.C. 7102-7352.

    2. Add § 154.404 to read as follows:
    § 154.404 Tax Cuts and Jobs Act Rate Reduction.

    (a) Purpose. The limited rate filing permitted by this section is intended to permit:

    (1) A natural gas company subject to the federal corporate income tax to reduce its maximum rates to reflect the decrease in the federal corporate income tax rate pursuant to the Tax Cuts and Jobs Act of 2017,

    (2) A natural gas company organized as a master limited partnership to reduce its maximum rates to reflect the elimination of any tax allowance included in its current rates, and

    (3) A natural gas company organized as a partnership (but not a master limited partnership) either

    (i) To eliminate any income tax allowance included in its current rates or

    (ii) To justify why it should continue to receive an income tax allowance and to reduce its maximum rates to reflect the decrease in the federal income tax rates applicable to partners pursuant to the Tax Cuts and Jobs Act of 2017.

    (b) Applicability. (1) Except as provided in paragraph (b)(2) of this section, any natural gas company with cost-based rates may submit the limited rate filing permitted by this section.

    (2) If a natural gas company has a rate case currently pending before the Commission in which the change in the federal corporate income tax rate can be reflected, the public utility may not use this section to adjust its rates.

    (c) Determination of Rate Reduction. A natural gas company submitting a filing pursuant to this section shall reduce:

    (1) Its maximum reservation rates for firm service, and

    (2) Its one-part rates that include fixed costs, by

    (3) The percentage calculated consistent with the instructions to FERC Form No. 501-G prescribed by § 260.402 of this chapter.

    (d) Timing. Any natural gas company filing to reduce its rates pursuant to this section must do so no later than the date that it files its FERC Form No. 501-G pursuant to § 260.402.

    (e) Hearing Issues. (1) The only issues that may be raised by Commission staff or any intervenor under the procedures established in this section are:

    (i) Whether or not the natural gas company may file under this section.

    (ii) Whether or not the percentage reduction permitted in § 154.402(c)(iii) has been properly applied, and

    (iii) Whether or not the correct information was used in that calculation.

    (2) Any other issue raised will be severed from the proceeding and dismissed without prejudice.

    PART 260—STATEMENTS AND REPORTS (SCHEDULES) 3. The authority citation for part 260 continues to read as follows: Authority:

    15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352.

    4. Add § 260.402 to read as follows:
    § 260.402 FERC Form No. 501-G. One-time Report on Rate Effect of the Tax Cuts and Jobs Act.

    (a) Prescription. The form for the One-time Report on Rate Effect of the Tax Cuts and Jobs Act of 2017, designated herein as FERC Form No. 501-G is prescribed.

    (b) Filing requirement. (1) Who must file. (i) Except as provided in paragraph (b)(1)(ii) of this section, every natural gas company that is required under this part to file a Form No. 2 or 2A for 2017 and has cost-based rates for service under any rate schedule that were filed electronically pursuant to part 154 of this chapter, must prepare and file with the Commission a FERC Form No. 501-G pursuant to the definitions and instructions set forth in that form and the Implementation Guide.

    (ii) A natural gas company whose rates are being examined in a general rate case under section 4 of the Natural Gas Act or in an investigation under section 5 of the Natural Gas Act need not file FERC Form No. 501-G. In addition, a natural gas company that files an uncontested settlement of its rates pursuant to § 385.207(a)(5) of this chapter after March 26, 2018 need not file FERC Form No. 501-G.

    (2) FERC Form No. 501-G must be filed as prescribed in § 385.2011 of this chapter as indicated in the instructions set out in the form and Implementation Guide, and must be properly completed and verified. Each natural gas company must file FERC Form No. 501-G according to the schedule set forth in the Implementation Guide set out in that form. Each report must be prepared in conformance with the Commission's form and guidance posted and available for downloading from the FERC website (http://www.ferc.gov). One copy of the report must be retained by the respondent in its files.

    PART 284—CERTAIN SALES AND TRANSPORTATION OF NATURAL GAS UNDER THE NATURAL GAS POLICY ACT OF 1978 AND RELATED AUTHORITIES 5. The authority citation for part 284 continues to read as follows: Authority:

    15 U.S.C. 717-717z, 3301-3432; 42 U.S.C. 7101-7352; 43 U.S.C. 1331-1356.

    6. In § 284.123, add paragraph (i) to read as follows:
    § 284.123 Rates and charges.

    (i) If an intrastate pipeline's rates on file with the appropriate state regulatory agency are reduced to reflect the reduced income tax rates adopted in the Tax Cuts and Jobs Act of 2017, the intrastate pipeline must file a new rate election pursuant to paragraph (b) of this section not later than 30 days after the reduced intrastate rate becomes effective. This requirement applies regardless of whether the intrastate pipeline's existing interstate rates are based on § 284.123(b)(1) or (2).

    [FR Doc. 2018-05669 Filed 3-23-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 1100, 1140, and 1143 [Docket No. FDA-2017-N-6107] RIN 0910-AH88 Regulation of Premium Cigars AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Advance notice of proposed rulemaking.

    SUMMARY:

    The Food and Drug Administration (FDA) is issuing this advance notice of proposed rulemaking (ANPRM) to obtain information related to the regulation of premium cigars under the Federal Food, Drug, and Cosmetic Act (FD&C Act), as amended by the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act), and regulations regarding the sale and distribution of tobacco products. Specifically, this ANPRM is seeking comments, data, research results, or other information that may inform regulatory actions FDA might take with respect to premium cigars.

    DATES:

    Submit either electronic or written comments by June 25, 2018.

    ADDRESSES:

    You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before June 25, 2018. The https://www.regulations.gov electronic filing system will accept comments until midnight Eastern Time at the end of June 25, 2018. Comments received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.

    Electronic Submissions

    Submit electronic comments in the following way:

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

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

    Written/Paper Submissions

    Submit written/paper submissions as follows:

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

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

    Instructions: All submissions received must include the Docket No. FDA-2017-N-6107 for “Regulation of Premium Cigars.” Received comments, those filed in a timely manner (see ADDRESSES), will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

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

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

    FOR FURTHER INFORMATION CONTACT:

    Nathan Mease or Deirdre Jurand, Center for Tobacco Products, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993, 1-877-287-1373, [email protected].

    SUPPLEMENTARY INFORMATION: I. Background

    On July 28, 2017, FDA announced a new comprehensive plan for tobacco and nicotine regulation that will serve as a multi-year roadmap to better protect children and significantly reduce tobacco-related disease and death. As part of that announcement, FDA stated that it would solicit additional comments and scientific data related to the patterns of use and resulting public health impacts from premium cigars and consider the appropriate regulatory status of premium cigars. The goal is to ensure that FDA has a broad scientific and regulatory foundation to efficiently and effectively implement the Tobacco Control Act. Moreover, the regulatory considerations with respect to premium cigars, their use, and related public health issues continue to be of significant interest to some stakeholders, as well as a topic of ongoing and emerging research. Given the ongoing interest from many parties and sectors, such as industry and Members of Congress, in the regulatory status of premium cigars, FDA is issuing this ANPRM to request relevant new and different information, data, and analysis not submitted in response to FDA's proposed deeming rule (79 FR 23142, discussed below) that could inform FDA's regulation of premium cigars.

    The Tobacco Control Act was enacted on June 22, 2009, amending the FD&C Act and providing FDA with the authority to regulate tobacco products (Pub. L. 111-31). Specifically, section 101(b) of the Tobacco Control Act amends the FD&C Act by adding a new chapter that provides FDA with authority over tobacco products. Section 901 of the FD&C Act (21 U.S.C. 387a), as amended by the Tobacco Control Act, states that the new chapter in the FD&C Act (chapter IX—Tobacco Products) (21 U.S.C. 387 through 387u) 1 applies to all cigarettes, cigarette tobacco, roll-your-own tobacco, smokeless tobacco, and any other tobacco products that the Secretary of Health and Human Services by regulation deems to be subject to the chapter.

    1 In the U.S. Code, the tobacco control provisions constitute a new Subchapter IX of Chapter 9, which constitutes the Federal Food, Drug, and Cosmetic Act.

    In the Federal Register of April 25, 2014 (79 FR 23142), FDA published a proposed rule seeking to deem additional products meeting the statutory definition of “tobacco product” in section 201(rr) of the FD&C Act (21 U.S.C. 321(rr)), except accessories to those products, to be subject to chapter IX of the FD&C Act (the proposed deeming rule). In that proposed rule, FDA proposed two, alternative, options: Option 1 proposed to extend the Agency's tobacco product authorities to all products that meet the definition of “tobacco product” in the FD&C Act, except accessories of newly deemed tobacco products, while Option 2 proposed to extend the Agency's tobacco product authorities to all tobacco products set forth in Option 1, except so-called premium cigars (79 FR 23142 at 23150 through 23152). After carefully considering the public comments on the rule, the Agency decided to adopt Option 1, concluding that there was no appropriate public health justification to exclude premium cigars from regulation. Specifically, FDA concluded that: (1) All cigars pose serious negative health risks, (2) the available evidence does not provide a basis for FDA to conclude that the patterns of premium cigar use sufficiently reduce the health risks to warrant exclusion, and (3) premium cigars are used by youth and young adults. FDA noted that, although some premium cigar smokers might smoke these products infrequently or report that they do not inhale, these behaviors do not negate the adverse health effects of tobacco smoke or demonstrate that cigars do not cause secondhand smoke-related disease in others. Consequently, premium cigars were included in the scope of the final deeming rule published on May 10, 2016 (81 FR 28974 at 29020) to more effectively protect the public health.

    We received numerous comments on the deeming proposed rule with respect to premium cigars, both in favor of and against regulating these products. However, the comments against regulation provided little data to support the opinions expressed and, where studies were submitted, provided little information about the studies cited.

    FDA is seeking comments, evidence, information, data, and analysis that were not submitted in response to the proposed deeming rule, or that may have become available since then, that could further inform FDA's thinking about the regulation of premium cigars. One example of the type of information that would be responsive to this request is a recent publication that assessed use patterns and related behaviors of smokers of “premium” and other cigar types (Ref. 1). This paper, the PATH Study Paper, analyzed findings from the 2013-2014 Population Assessment of Tobacco and Health (PATH) Study with a focus on smokers of filtered cigars, cigarillos, and traditional cigars, which were further classified by study authors as either “premium” or “non-premium.” 2 With respect to this group of smokers, the PATH Study Paper described similarities and differences in user characteristics, tobacco use patterns, and purchasing behaviors according to cigar type. Among the findings stated in this PATH Study Paper were that those who smoked “premium” cigars tended to report smoking them on fewer days compared with smokers of the other cigar types and reported consuming fewer cigars per day, on average, compared with smokers of other cigar types. In its conclusion, the PATH Study Paper highlighted the importance of adequately describing the cigar type studied and, where appropriate, differentiating results by cigar type.

    2 While authors of the PATH Study Paper included FDA employees, the definition of premium cigars reported in the PATH Study Paper was used for research purposes only, and does not necessarily reflect FDA's current thinking on regulatory policy.

    When reviewing the PATH Study Paper and any other studies concerning cigars, it should be noted that tobacco research studies have not used a single, consistent definition of “premium” cigars. As demonstrated by FDA's request for definitional information in this document, FDA considers it important to understand what definitions of premium cigar are used when analyzing and comparing results across studies and papers.

    For the purposes of the questions in this ANPRM, “cigar” means a tobacco product that: (1) Is not a cigarette and (2) is a roll of tobacco wrapped in leaf tobacco or any substance containing tobacco (see 21 CFR 1143.1).

    II. Requests for Comments and Information

    FDA is seeking comments, data, research results, and other information related to the following topics:

    • Definition of premium cigars • Use patterns of premium cigars • Public health considerations associated with premium cigars

    Please provide any evidence or other information supporting your comments. Also, provide the definition of “premium cigar,” “youth,” and “young adult” used for the studies, information, or views provided in your responses.

    A. Definition of Premium Cigars

    1. Explain what data may be used to assess (a) the universe of cigar products that are currently available to consumers and (b) their relevant characteristics, including “premium” status. How can available sources of information, such as manufacturer registrations and/or product listings with FDA, be used in this assessment?

    2. Explain what you believe to be the particular defining characteristics of premium cigars. These characteristics could include, but not be limited to:

    a. Size (e.g., length, ring gauge, total weight).

    b. Tobacco filler type and minimum required percentages of each filler per cigar.

    c. Fermentation type.

    d. Wrapper and binder composition (e.g., whole leaf, reconstituted or homogenized tobacco leaf).

    e. Where the tobacco used for premium cigar filler or wrappers is grown, and whether differences in growing practices for that tobacco, as compared to tobacco used in other cigars, result in different health impacts.

    f. Presence or absence of a filter.

    g. Presence or absence of a mouthpiece.

    h. Manufacturing and assembly process (e.g., including any production by hand or by machine).

    i. Rate of production (e.g., “produced at no more than [insert number] units per minute”).

    j. Presence or absence of flavor imparting compounds, flavor additives, or characterizing flavors other than tobacco.

    k. Presence or absence of any additives other than cigar glue.

    l. Nicotine content.

    m. Tar delivery amounts (and how this should be defined and measured).

    n. Carbon monoxide delivery amounts (and how this should be defined and measured).

    o. Retail price.

    p. Frequency with which price changes are initiated by particular levels in the distribution chain (retailers, manufacturers, importers, and/or distributors).

    q. Packaging quantity and size.

    r. Any action directed to consumers, by a retailer or manufacturer, such as through labeling, advertising, or marketing, which would reasonably be expected to result in consumers believing that the tobacco product is a premium cigar.

    3. If available to you, provide annual sales data, including market size and volume, for products that you believe should be categorized as premium cigars, along with the information's source and the definition of “premium cigar” used in the data provided.

    B. Use Patterns of Premium Cigars

    If available to you, provide the following information related to the use patterns of premium cigars generally and among youth and young adults specifically:

    1. Studies or information regarding the potential role of premium cigars on tobacco initiation and progression to use of other tobacco products, especially compared and contrasted against the potential roles of other cigars.

    2. Studies or information regarding behavioral data related to dual use of premium cigars and other tobacco products, especially compared and contrasted against dual use of other cigars.

    3. Studies or information regarding the frequency and intensity (e.g., number of cigars smoked per day, depth of smoke inhalation, number of days smoking during a particular time period) of premium cigar use, especially compared and contrasted against other cigars.

    4. Studies or information regarding the proportion of premium cigar smokers showing symptoms of dependence, especially compared and contrasted against other cigars.

    5. Studies or information regarding the abuse liability of premium cigars compared with other tobacco products, especially compared and contrasted against other cigars.

    6. Studies or information regarding the impact of premium cigar labeling, advertising, and marketing efforts on patterns of use, especially compared and contrasted against other cigars.

    7. Information on the extent to which users of other tobacco products might switch to premium cigars if FDA were to exempt premium cigars from regulation or to regulate premium cigars differently from other cigars, and the measures that could be taken to prevent this from occurring. Where you discuss the potential effects of FDA regulating premium cigars differently from other cigars, please describe the specific different treatment that you envision.

    C. Public Health Considerations

    If available to you, provide the following information related to public health considerations:

    1. Studies or information on any applicable manufacturing, marketing, sale, distribution, advertising, labeling, and/or packaging requirements and restrictions in the FD&C Act and its implementing regulations, and whether they should be applied differently to premium cigars compared to other tobacco products, including other cigars.

    2. Studies or information regarding nicotine concentrations for premium cigars compared to other tobacco products, including other cigars.

    3. Studies or information regarding the risk of oral cancer, esophageal cancer, laryngeal cancer, lung cancer, or any other form of cancer associated with premium cigars, especially compared and contrasted with risks for other cigars.

    4. Studies or information regarding the risk of heart disease associated with premium cigars, especially compared and contrasted with risks for other cigars.

    5. Studies or information regarding the risk of aortic aneurysm associated with premium cigars, especially compared and contrasted with risks for other cigars.

    6. Studies or information regarding the risk of periodontal disease associated with premium cigars, especially compared and contrasted with risks for other cigars.

    7. Studies or information regarding the risk of stroke associated with premium cigars, especially compared and contrasted with risks for other cigars.

    8. Studies or information regarding the risk of chronic obstructive pulmonary disease associated with premium cigars, especially compared and contrasted with risks for other cigars.

    9. Studies or information regarding risk of cancers of the mouth and throat for premium cigar users who do not inhale or who report that they do not inhale, especially compared and contrasted with risks for other cigars.

    10. Studies or information on the impact of premium cigar use on other public health endpoints, including users and non-users, especially compared and contrasted with the impact of other cigars.

    11. Studies or information regarding the addictiveness of premium cigars.

    12. Studies or information regarding consumer perceptions of the health risks of premium cigars when compared to other tobacco products, including other cigars.

    13. Studies or information regarding consumer perceptions of the addictiveness of premium cigars, especially compared and contrasted with perceptions for other cigars.

    14. Studies or information on the required warning statements, shown below and which will be required to appear on cigar packaging and advertising in the near future (21 CFR 1143.5(a)(1)). Comment on whether any additional or alternative warning statements would be appropriate and provide your suggested language and any relevant studies or information.

    a. WARNING: Cigar smoking can cause cancers of the mouth and throat, even if you do not inhale.

    b. WARNING: Cigar smoking can cause lung cancer and heart disease.

    c. WARNING: Cigars are not a safe alternative to cigarettes.

    d. WARNING: Tobacco smoke increases the risk of lung cancer and heart disease, even in nonsmokers.

    e. WARNING: Cigar use while pregnant can harm you and your baby; or SURGEON GENERAL WARNING: Tobacco Use Increases the Risk of Infertility, Stillbirth and Low Birth Weight.

    f. WARNING: This product contains nicotine. Nicotine is an addictive chemical.

    III. Reference

    The following reference is on display in the Dockets Management Staff (see ADDRESSES) and is available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; it is also available electronically at https://www.regulations.gov. FDA has verified the website address, as of the date this document publishes in the Federal Register, but websites are subject to change over time.

    1. Corey, C.G., E. Holder-Hayes, A.B. Nguyen, et al. “U.S. Adult Cigar Smoking Patterns, Purchasing Behaviors, and Reasons for Use According to Cigar Type: Findings From the Population Assessment of Tobacco and Health (PATH) Study, 2013-2014”, Nicotine & Tobacco Research, September 15, 2017, available at https://academic.oup.com/ntr/article/4159211/U-S-adult-cigar-smoking-patterns-purchasing. Dated: March 21, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-06047 Filed 3-23-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF LABOR Mine Safety and Health Administration 30 CFR Parts 57, 70, 72, and 75 [Docket No. MSHA-2014-0031] RIN 1219-AB86 Exposure of Underground Miners to Diesel Exhaust AGENCY:

    Mine Safety and Health Administration, Labor.

    ACTION:

    Request for information; reopening of the rulemaking record for public comments.

    SUMMARY:

    In response to requests from the public, the Mine Safety and Health Administration (MSHA) is reopening the rulemaking record for public comments on the Agency's request for information on Exposure of Underground Miners to Diesel Exhaust.

    DATES:

    The comment period for the request for information, published on June 8, 2016 (81 FR 36826), which closed on January 9, 2018 (82 FR 2284), is reopened. Comments must be received on or before midnight Eastern Standard Time on March 26, 2019.

    ADDRESSES:

    Submit comments and informational materials for the rulemaking record, identified by RIN 1219-AB86 or Docket No. MSHA-2014-0031, by one of the following methods:

    Federal E-Rulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

    Email: [email protected].

    Mail: MSHA, Office of Standards, Regulations, and Variances, 201 12th Street South, Suite 4E401, Arlington, Virginia 22202-5452.

    Hand Delivery or Courier: 201 12th Street South, Suite 4E401, Arlington, Virginia, between 9:00 a.m. and 5:00 p.m. Monday through Friday, except Federal holidays. Sign in at the receptionist's desk on the 4th floor East, Suite 4E401.

    Fax: 202-693-9441.

    Instructions: All submissions must include “RIN 1219-AB86” or “Docket No. MSHA-2014-0031.” Do not include personal information that you do not want publicly disclosed; MSHA will post all comments without change to http://www.regulations.gov and http://arlweb.msha.gov/currentcomments.asp, including any personal information provided.

    Docket: For access to the docket to read comments received, go to http://www.regulations.gov or http://arlweb.msha.gov/currentcomments.asp. To read background documents, go to http://www.regulations.gov. Review the docket in person at MSHA, Office of Standards, Regulations, and Variances, 201 12th Street South, Arlington, Virginia, between 9:00 a.m. and 5:00 p.m. Monday through Friday, except Federal Holidays. Sign in at the receptionist's desk in Suite 4E401.

    Email Notification: To subscribe to receive an email notification when MSHA publishes rules in the Federal Register, go to http://www.msha.gov/subscriptions.

    FOR FURTHER INFORMATION CONTACT:

    Sheila A. McConnell, Director, Office of Standards, Regulations, and Variances, MSHA, at [email protected] (email), 202-693-9440 (voice); or 202-693-9441 (facsimile). These are not toll-free numbers.

    SUPPLEMENTARY INFORMATION:

    On June 8, 2016 (81 FR 36826), MSHA published a request for information (RFI) on Exposure of Underground Miners to Diesel Exhaust. The RFI sought input from the public that will help MSHA evaluate the Agency's existing standards and policy guidance on controlling miners' exposures to diesel exhaust and to evaluate the effectiveness of the protections now in place to preserve miners' health.

    MSHA held four public meetings on the RFI in 2016 (81 FR 41486), and the comment period was scheduled to close on September 6, 2016; however, in response to requests from the public, MSHA extended the comment period until November 30, 2016 (81 FR 58424).

    Also in response to requests from stakeholders during the comment period, MSHA and the National Institute for Occupational Safety and Health convened a Diesel Exhaust Health Effects Partnership (Partnership) with the mining industry, diesel engine manufacturers, academia, and representatives of organized labor to gather information regarding the complex questions contained in the RFI. The Partnership provides an opportunity for all relevant stakeholders from the mining community to come together to understand the health effects from underground miners' exposure to diesel exhaust. The Partnership also provides stakeholders an opportunity to consider best practices and new technologies, including engineering controls that enhance control of diesel exhaust exposures to improve protections for miners.

    The first meeting of the Partnership was held on December 8, 2016, in Washington, Pennsylvania; and the second meeting was held on September 19, 2017, in Triadelphia, West Virginia. During the comment period and at the first Partnership meeting, MSHA received requests from stakeholders to reopen the rulemaking record for comment on the RFI and allow the comment period to remain open during the Partnership proceedings. In response to those requests, MSHA reopened the record for comment and extended the comment period for one year, until January 9, 2018 (82 FR 2284).

    However, since the close of the RFI rulemaking record, MSHA received additional stakeholder requests to reopen the record and further extend the comment period on the RFI during the Partnership proceedings. In response, MSHA is reopening the record and extending the comment period to March 26, 2019. The reopening of the rulemaking record for public comments will allow all interested parties an additional opportunity to re-evaluate all issues related to miners' exposure to diesel exhaust and to determine if improvements can be made.

    David G. Zatezalo, Assistant Secretary of Labor for Mine Safety and Health.
    [FR Doc. 2018-05978 Filed 3-23-18; 8:45 am] BILLING CODE 4520-43-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2017-0117; FRL-9975-53-Region 1] Approval and Promulgation of Air Quality Implementation Plans; Maine; Infrastructure State Implementation Plan Requirements AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve elements of State Implementation Plan (SIP) submissions from Maine regarding the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2008 lead (Pb), 2008 ozone, and 2010 nitrogen dioxide (NO2) National Ambient Air Quality Standards (NAAQS). EPA is also proposing to conditionally approve one element of Maine's infrastructure SIP. Finally, EPA is proposing to approve several statutes submitted by Maine in support of its demonstrations that the infrastructure requirements of the CAA have been met. The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA.

    DATES:

    Comments must be received on or before April 25, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R01-OAR-2017-0117 at https://www.regulations.gov, or via email to [email protected]. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit www.epa.gov/dockets/commenting-epa-dockets.

    Publicly available docket materials are available either electronically in https://www.regulations.gov or at the U.S. Environmental Protection Agency, Region 1, Air Programs Branch, 5 Post Office Square, Boston, Massachusetts. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

    FOR FURTHER INFORMATION CONTACT:

    Richard P. Burkhart, Air Quality Planning Unit, Air Programs Branch (Mail Code OEP05-02), U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, Massachusetts, 02109-3912; (617) 918-1664; [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

    I. What should I consider as I prepare my comments for EPA? II. What is the background of these SIP submissions? A. Which Maine SIP submissions does this rulemaking address? B. Why did the state make these SIP submissions? C. What is the scope of this rulemaking? III. What guidance is EPA using to evaluate these SIP submissions? IV. What is the result of EPA's review of these SIP submissions? A. Section 110(a)(2)(A)—Emission Limits and Other Control Measures B. Section 110(a)(2)(B)—Ambient Air Quality Monitoring/Data System C. Section 110(a)(2)(C)—Program for Enforcement of Control Measures and for Construction or Modification of Stationary Sources D. Section 110(a)(2)(D)—Interstate Transport E. Section 110(a)(2)(E)—Adequate Resources F. Section 110(a)(2)(F)—Stationary Source Monitoring System G. Section 110(a)(2)(G)—Emergency Powers H. Section 110(a)(2)(H)—Future SIP Revisions I. Section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions Under Part D J. Section 110(a)(2)(J)—Consultation With Government Officials; Public Notifications; Prevention of Significant Deterioration; Visibility Protection K. Section 110(a)(2)(K)—Air Quality Modeling/Data L. Section 110(a)(2)(L)—Permitting Fees M. Section 110(a)(2)(M)—Consultation/Participation by Affected Local Entities N. Maine Statute and Executive Order Submitted for Incorporation Into the SIP V. What action is EPA taking? VI. Incorporation by Reference. VII. Statutory and Executive Order Reviews. I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:

    1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date, and page number).

    2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

    3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

    4. Describe any assumptions and provide any technical information and/or data that you used.

    5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

    6. Provide specific examples to illustrate your concerns, and suggest alternatives.

    7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

    8. Make sure to submit your comments by the comment period deadline identified.

    II. What is the background of these SIP submissions? A. Which Maine SIP submissions does this rulemaking address?

    This rulemaking addresses submissions from the Maine Department of Environmental Protection (ME DEP). The state submitted its infrastructure SIP for each NAAQS on the following dates: 2008 Pb—August 21, 2012; 2008 ozone—June 7, 2013; and 2010 NO2—June 7, 2013. Also, on April 23, 2013, Maine DEP submitted a SIP revision to incorporate conflict of interest state law provisions into the SIP from 38 Maine Revised Statutes Annotated (MRSA) Section 341-C(7) and 5 MRSA Section 18. The April 23, 2013 SIP revision addresses element E(ii) requirements. Furthermore, on February 14, 2013, Maine submitted a SIP revision addressing amendments to certain provisions of 06-096 Code of Maine Regulations (CMR) Chapters 100 and 115. The February 14, 2013 SIP revision both defines PM2.5 and incorporates PM2.5 into the Prevention of Significant Deterioration (PSD) permitting program. This submission was supplemented on May 31, 2016. EPA approved these SIP revisions on August 1, 2016 (81 FR 50353) and June 24, 2014 (79 FR 35695). These revisions address element A, as well as elements C, D(i)(II), and (J) as they relate to PSD. Finally, on March 1, 2018, Maine submitted a letter providing information and clarification in support of its infrastructure SIP submittals.

    B. Why did the state make these SIP submissions?

    Under sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. These submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that their existing SIPs for the NAAQS already meet those requirements.

    EPA highlighted this statutory requirement in an October 2, 2007 guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour ozone and PM2.5 National Ambient Air Quality Standards” (2007 Memo). On September 25, 2009, EPA issued an additional guidance document pertaining to the 2006 PM2.5 NAAQS entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS)” (2009 Memo), followed by the October 14, 2011, “Guidance on Infrastructure SIP Elements Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS)” (2011 Memo). Most recently, EPA issued “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2)” on September 13, 2013 (2013 Memo). The SIP submissions referenced in this rulemaking pertain to the applicable requirements of sections 110(a)(1) and (2) and address the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    C. What is the scope of this rulemaking?

    EPA is acting upon the SIP submissions from Maine that address the infrastructure requirements of CAA sections 110(a)(1) and (2) for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    The requirement for states to make an infrastructure SIP submission arises out of CAA sections 110(a)(1) and (2). Pursuant to these sections, each state must submit a SIP that provides for the implementation, maintenance, and enforcement of each primary or secondary NAAQS. States must make such SIP submission “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a new or revised NAAQS.” This requirement is triggered by the promulgation of a new or revised NAAQS and is not conditioned upon EPA's taking any other action. Section 110(a)(2) includes the specific elements that “each such plan” must address.

    EPA commonly refers to such SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and (2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA.

    This rulemaking will not cover three substantive areas that are not integral to acting on a state's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources (“SSM” emissions) that may be contrary to the CAA and EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP-approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); and, (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final New Source Review (NSR) Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has the authority to address each one of these substantive areas separately. A detailed history, interpretation, and rationale for EPA's approach to infrastructure SIP requirements can be found in EPA's May 13, 2014, proposed rule entitled, “Infrastructure SIP Requirements for the 2008 Lead NAAQS” in the section, “What is the scope of this rulemaking?” See 79 FR 27241 at 27242-45.

    III. What guidance is EPA using to evaluate these SIP submissions?

    EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate. Historically, EPA has elected to use non-binding guidance documents to make recommendations for states' development and EPA review of infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements. EPA guidance applicable to these infrastructure SIP submissions is embodied in several documents. Specifically, attachment A of the 2007 Memo (Required Section 110 SIP Elements) identifies the statutory elements that states need to submit in order to satisfy the requirements for an infrastructure SIP submission. The 2009 Memo provides additional guidance for certain elements regarding the 2006 PM2.5 NAAQS, and the 2011 Memo provides guidance specific to the 2008 Pb NAAQS. Lastly, the 2013 Memo identifies and further clarifies aspects of infrastructure SIPs that are not NAAQS-specific.

    IV. What is the result of EPA's review of these SIP submissions?

    EPA is soliciting comment on our evaluation of Maine's infrastructure SIP submissions in this notice of proposed rulemaking. In each of Maine's submissions, a detailed list of Maine Laws and, previously SIP-approved Air Quality Regulations, show precisely how the various components of Maine's EPA-approved SIP meet each of the requirements of section 110(a)(2) of the CAA for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS, as applicable. The following review evaluates the state's submissions in light of section 110(a)(2) requirements and relevant EPA guidance.

    A. Section 110(a)(2)(A)—Emission Limits and Other Control Measures

    This section (also referred to in this action as an element) of the Act requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and other related matters. However, EPA has long interpreted emission limits and control measures for attaining the standards as being due when nonattainment planning requirements are due.1 In the context of an infrastructure SIP, EPA is not evaluating the existing SIP provisions for this purpose. Instead, EPA is only evaluating whether the state's SIP has basic structural provisions for the implementation of the NAAQS.

    1See, e.g., EPA's final rule on “National Ambient Air Quality Standards for Lead.” 73 FR 66964, 67034 (November 12, 2008).

    Maine's infrastructure submittals for this element cite Maine laws and regulations that include enforceable emissions limitations and other control measures, means or techniques, as well as schedules and timetables for compliance to meet the applicable requirements of the CAA. Maine DEP statutory authority with respect to air quality is set out in 38 MRSA Chapter 4, “Protection and Improvement of Air.” Legislative authority giving DEP general authority to promulgate Regulations is codified at 38 MRSA Chapter 2, Subchapter 1: “Organization and Powers.” 2 Statutory authority to establish emission standards and regulations implementing ambient air quality standards is contained in 38 MRSA Chapter 4, sections 585 and 585-A.

    2 Maine DEP consists of the Board of Environmental Protection (“Board”) and a Commissioner. 38 MRSA § 341-A(2). In general, the Board is authorized to promulgate “major substantive rules” and the Commissioner has rulemaking authority with respect to rules that are “not designated as major substantive rules.” Id. § 341-H.

    The Maine submittals cite more than two dozen specific rules that the state has adopted to control the emissions of Pb, volatile organic compounds 3 (VOCs), and NOX. A few, with their EPA approval citation are listed here: 06-096 Code of Maine Regulations (CMR) Chapter 102, “Open Burning Regulation” (73 FR 9459, February 21, 2008); 06-096 CMR Chapter 103, “Fuel Burning Equipment Particulate Emission Standard” (50 FR 7770, February 26, 1985); and 06-096 CMR Chapter 130, “Solvent Cleaners” (70 FR 30367, May 26, 2005); Chapter 152, “Control of Emissions of Volatile Organic Compounds from Consumer Products” (77 FR 30216, May 22, 2012). The Maine regulations listed above were previously approved into the Maine SIP by EPA. See 40 CFR 52.1020. Furthermore, on August 21, 2012, Maine submitted a SIP revision containing Maine's updated Chapter 110, “Ambient Air Quality Standards.” The updates to Maine's regulation relevant to today's action include updating Maine's ambient air quality standards to be consistent with the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. EPA approved this SIP revision on June 24, 2014 (79 FR 35695).

    3 VOCs and NOx contribute to the formation of ground-level ozone. NOx contribute to the formation of NO2.

    Based upon EPA's review of Maine's infrastructure SIP submittals and Maine's updated Chapter 110 SIP submittal, EPA proposes that Maine meets the infrastructure SIP requirements of section 110(a)(2)(A) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. As previously noted, EPA is not proposing to approve or disapprove any existing state provisions or rules related to SSM or director's discretion in the context of section 110(a)(2)(A).

    B. Section 110(a)(2)(B)—Ambient Air Quality Monitoring/Data System

    This section requires SIPs to include provisions to provide for establishing and operating ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to EPA upon request. Each year, states submit annual air monitoring network plans to EPA for review and approval. EPA's review of these annual monitoring plans includes our evaluation of whether the state: (i) Monitors air quality at appropriate locations throughout the state using EPA-approved Federal Reference Methods or Federal Equivalent Method monitors; (ii) submits data to EPA's Air Quality System (AQS) in a timely manner; and (iii) provides EPA Regional Offices with prior notification of any planned changes to monitoring sites or the network plan.

    Pursuant to authority granted to it by 38 MRSA §§ 341-A(1) and 584-A, Maine DEP operates an air quality monitoring network, and EPA approved the state's most recent Annual Air Monitoring Network Plan for Pb, ozone, and NO2 on August 23, 2017.4 Furthermore, ME DEP populates AQS with air quality monitoring data in a timely manner, and provides EPA with prior notification when considering a change to its monitoring network or plan. EPA proposes that ME DEP has met the infrastructure SIP requirements of section 110(a)(2)(B) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    4See EPA approval letter located in the docket for this action.

    C. Section 110(a)(2)(C)—Program for Enforcement of Control Measures and for Construction or Modification of Stationary Sources

    States are required to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet NSR requirements under PSD and nonattainment new source review (NNSR) programs. Part C of the CAA (sections 160-169B) addresses PSD, while part D of the CAA (sections 171-193) addresses NNSR requirements. The evaluation of each state's submission addressing the infrastructure SIP requirements of section 110(a)(2)(C) covers the following: (i) Enforcement of SIP measures; (ii) PSD program for major sources and major modifications; and (iii) a permit program for minor sources and minor modifications.

    Sub-Element 1: Enforcement of SIP Measures

    Maine's authority for enforcing SIP measures is established in 38 MRSA Section 347-A, “Violations,” 38 MRSA Section 347-C, “Right of inspection and entry,” 38 MRSA Section 348, “Judicial Enforcement,” 38 MRSA Section 349, “Penalties,” and 06-096 CMR Chapter 115, “Major and Minor Source Air Emission License Regulations,” and includes processes for both civil and criminal enforcement actions. Construction of new or modified stationary sources in Maine is regulated by 06-096 CMR Chapter 115, “Major and Minor Source Air Emission License Regulations,” which requires best available control technology (BACT) controls for PSD sources, including for Pb, PM2.5, VOC and NOX. EPA proposes that Maine has met the enforcement of SIP measures requirements of section 110(a)(2)(C) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    Sub-Element 2: PSD Program for Major Sources and Major Modifications

    Prevention of significant deterioration (PSD) applies to new major sources or modifications made to major sources for pollutants where the area in which the source is located is in attainment of, or unclassifiable with regard to, the relevant NAAQS. Maine DEP's EPA-approved PSD rules, contained at 06-096 CMR Chapter 115, “Major and Minor Source Air Emission License Regulations,” contain provisions that address applicable requirements for all regulated NSR pollutants, including Greenhouse Gases (GHGs).

    EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) was published on November 29, 2005 (70 FR 71612). Among other requirements, the Phase 2 Rule obligated states to revise their PSD programs to explicitly identify NOX as a precursor to ozone. See 70 FR 71679. This requirement was codified in 40 CFR 51.166, and requires that states submit SIP revisions incorporating the requirements of the rule, including provisions that would treat NOX as a precursor to ozone provisions. These SIP revisions were to have been submitted to EPA by states by June 15, 2007. See 70 FR 71683.

    Maine has adopted, and EPA has approved, rules addressing the changes to 40 CFR 51.166 required by the Phase 2 Rule, including amending its SIP to include NOX and VOC as precursor pollutants to ozone, in order to define what constitutes a “significant” increase in actual emissions from a source of air contaminants. See 81 FR 50353 (August 1, 2016). Therefore, we propose to approve Maine's infrastructure SIP submittals for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS with respect to the requirements of the Phase 2 Rule and the PSD sub-element of section 110(a)(2)(C).

    On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” (2008 NSR Rule). The 2008 NSR Rule finalized several new requirements for SIPs to address sources that emit direct PM2.5 and other pollutants that contribute to secondary PM2.5 formation. One of these requirements is for NSR permits to address pollutants responsible for the secondary formation of PM2.5, otherwise known as precursors. In the 2008 rule, EPA identified precursors to PM2.5 for the PSD program to be SO2 and NOX (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NOX emissions in an area are not a significant contributor to that area's ambient PM2.5 concentrations). The 2008 NSR Rule also specifies that VOCs are not considered to be precursors to PM2.5 in the PSD program unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of VOCs in an area are significant contributors to that area's ambient PM2.5 concentrations.

    The explicit references to SO2, NOX, and VOCs as they pertain to secondary PM2.5 formation are codified at 40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of identifying pollutants that are precursors to PM2.5, the 2008 NSR Rule also required states to revise the definition of “significant” as it relates to a net emissions increase or the potential of a source to emit pollutants. Specifically, 40 CFR 51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define “significant” for PM2.5 to mean the following emissions rates: 10 tons per year (tpy) of direct PM2.5; 40 tpy of SO2; and 40 tpy of NOX (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NOX emissions in an area are not a significant contributor to that area's ambient PM2.5 concentrations). The deadline for states to submit SIP revisions to their PSD programs incorporating these changes was May 16, 2011. See 73 FR 28321 at 28341.5

    5 EPA notes that on January 4, 2013, the U.S. Court of Appeals for the DC Circuit, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (DC Cir.), held that EPA should have issued the 2008 NSR Rule in accordance with the CAA's requirements for PM10 nonattainment areas (Title I, part D, subpart 4), and not the general requirements for nonattainment areas under subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250). As the subpart 4 provisions apply only to nonattainment areas, EPA does not consider the portions of the 2008 rule that address requirements for PM2.5 attainment and unclassifiable areas to be affected by the court's opinion. Moreover, EPA does not anticipate the need to revise any PSD requirements promulgated by the 2008 NSR rule in order to comply with the court's decision. Accordingly, EPA's approval of Maine's infrastructure SIP as to Elements C, D(i)(II), or J with respect to the PSD requirements promulgated by the 2008 implementation rule does not conflict with the court's opinion.

    The Court's decision with respect to the nonattainment NSR requirements promulgated by the 2008 implementation rule also does not affect EPA's action on the present infrastructure action. EPA interprets the CAA to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some elements.

    On August 1, 2016, EPA approved revisions to Maine's PSD program at 81 FR 50353 that identify SO2 and NOX as precursors to PM2.5 and revise the state's regulatory definition of “significant” for PM2.5 to mean 10 tpy or more of direct PM2.5 emissions, 40 tpy or more of SO2 emissions, or 40 tpy or more of NOX emissions.

    The 2008 NSR Rule did not require states to immediately account for gases that could condense to form particulate matter, known as condensables, in PM2.5 and PM10 emission limits in NSR permits. Instead, EPA determined that states had to account for PM2.5 and PM10 condensables for applicability determinations and in establishing emissions limitations for PM2.5 and PM10 in PSD permits beginning on or after January 1, 2011. See 73 FR 28321 at 28334. This requirement is codified in 40 CFR 51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a).

    Maine's SIP-approved PSD program defines PM2.5 and PM10 emissions in such a manner that gaseous emissions which would condense under ambient conditions are treated in an equivalent manner as required by EPA's definition of “regulated air pollutant” in 40 CFR 51.166((b)(49)(i)(a). EPA approved these definitions into the SIP on August 1, 2016. See 81 FR 50353. Consequently, we propose that the state's PSD program adequately accounts for the condensable fraction of PM2.5 and PM10. Therefore, we propose to approve Maine's infrastructure SIP submittals for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS with respect to the requirements of the 2008 NSR Rule and the PSD sub-element of section 110(a)(2)(C).

    On October 20, 2010 (75 FR 64864), EPA issued the final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (2010 NSR Rule). This rule established several components for making PSD permitting determinations for PM2.5, including a system of “increments,” which is the mechanism used to estimate significant deterioration of ambient air quality for a pollutant. These increments are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c). On June 24, 2014 (79 FR 35695), EPA approved PM2.5 increments in 06-096 CMR Chapter 110 of Maine's regulations.

    The 2010 NSR Rule also established a new “major source baseline date” for PM2.5 as October 20, 2010, and a new trigger date for PM2.5 of October 20, 2011 in the definition of “minor source baseline date.” These revisions are codified in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR 52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule revised the definition of “baseline area” to include a level of significance (SIL) of 0.3 micrograms per cubic meter (µg/m3), annual average, for PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i) and 40 CFR 52.21(b)(15)(i). On August 1, 2016, EPA approved revisions to the Maine SIP that address EPA's 2010 NSR rule. See 81 FR 50353. Therefore, with respect to the 2010 NSR Rule and the PSD sub-element of section 110(a)(2)(C), we are proposing to approve Maine's infrastructure SIP submittals for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    With respect to Elements (C) and (J), EPA interprets the Clean Air Act to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of Element D(i)(II) may also be satisfied by demonstrating the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants. Maine has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including GHGs.

    On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427. The Supreme Court said that EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also said that EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of BACT.

    In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the DC Circuit) issued an amended judgment vacating the regulations that implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers sources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs. Step 2 applied to sources that emitted only GHGs above the thresholds triggering the requirement to obtain a PSD permit. The amended judgment preserves, without the need for additional rulemaking by EPA, the application of the Best Available Control Technology (BACT) requirement to GHG emissions from Step 1 or “anyway” sources. With respect to Step 2 sources, the DC Circuit's amended judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v), “to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emission increase from a modification.”

    On August 19, 2015, EPA amended its PSD and title V regulations to remove from the Code of Federal Regulations portions of those regulations that the DC Circuit specifically identified as vacated. EPA intends to further revise the PSD and title V regulations to fully implement the Supreme Court and DC Circuit rulings in a separate rulemaking. This future rulemaking will include revisions to additional definitions in the PSD regulations.

    Some states have begun to revise their existing SIP-approved PSD programs in light of these court decisions, and some states may prefer not to initiate this process until they have more information about the additional planned revisions to EPA's PSD regulations. EPA is not expecting states to have revised their PSD programs in anticipation of EPA's additional actions to revise its PSD program rules in response to the court decisions for purposes of infrastructure SIP submissions. Instead, EPA is only evaluating such submissions to assure that the state's program addresses GHGs consistent with both the court decision, and the revisions to PSD regulations that EPA has completed at this time.

    On October 5, 2012 (77 FR 49404), EPA approved revisions to the Maine SIP that modified Maine's PSD program to establish appropriate emission thresholds for determining which new stationary sources and modification projects become subject to Maine's PSD permitting requirements for their GHG emissions. Therefore, EPA has determined that Maine's SIP is sufficient to satisfy Elements (C), (D)(i)(II), and (J) with respect to GHGs. The Supreme Court decision and subsequent DC Circuit judgment do not prevent EPA's approval of Maine's infrastructure SIP as to the requirements of Elements (C), (as well as sub-elements (D)(i)(II), and (J)(iii)).

    For the purposes of today's rulemaking on Maine's infrastructure SIPs, EPA reiterates that NSR Reform is not in the scope of these actions.

    In summary, we are proposing to approve Maine's submittals for this sub-element with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    Sub-Element 3: Preconstruction Permitting for Minor Sources and Minor Modifications

    To address the pre-construction regulation of the modification and construction of minor stationary sources and minor modifications of major stationary sources, an infrastructure SIP submission should identify the existing EPA-approved SIP provisions and/or include new provisions that govern the minor source pre-construction program that regulate emissions of the relevant NAAQS pollutants. EPA last approved revisions to Maine's minor NSR program on August 1, 2016 (81 FR 50353). Maine and EPA rely on the existing minor NSR program in 06-096 CMR Chapter 115 to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    We are proposing to find that Maine has met the requirement to have a SIP-approved minor new source review permit program as required under Section 110(a)(2)(C) for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    D. Section 110(a)(2)(D)—Interstate Transport

    This section contains a comprehensive set of air quality management elements pertaining to the transport of air pollution with which states must comply. It covers the following five topics, categorized as sub-elements: Sub-element 1, Contribute to nonattainment, and interference with maintenance of a NAAQS; Sub-element 2, PSD; Sub-element 3, Visibility protection; Sub-element 4, Interstate pollution abatement; and Sub-element 5, International pollution abatement. Sub-elements 1 through 3 above are found under section 110(a)(2)(D)(i) of the Act, and these items are further categorized into the four prongs discussed below, two of which are found within sub-element 1. Sub-elements 4 and 5 are found under section 110(a)(2)(D)(ii) of the Act and include provisions insuring compliance with sections 115 and 126 of the Act relating to interstate and international pollution abatement.

    Sub-Element 1: Section 110(a)(2)(D)(i)(I)—Contribute to Nonattainment (Prong 1) and Interfere With Maintenance of the NAAQS (Prong 2)

    Section 110(a)(2)(D)(i)(I) addresses any emissions activity in one state that contributes significantly to nonattainment, or interferes with maintenance, of the NAAQS in another state. The EPA sometimes refers to these requirements as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance).

    With respect to the 2008 Pb NAAQS, the 2011 Memo notes that the physical properties of Pb prevent it from experiencing the same travel or formation phenomena as, for example, PM2.5 or ozone. Specifically, there is a sharp decrease in Pb concentrations as the distance from a Pb source increases. Accordingly, although it may be possible for a source in a state to emit Pb at a location and in such quantities that contribute significantly to nonattainment in, or interference with maintenance by, any other state, EPA anticipates that this would be a rare situation, e.g., sources emitting large quantities of Pb in close proximity to state boundaries. The 2011 Memo suggests that the applicable interstate transport requirements of section 110(a)(2)(D)(i)(I) with respect to Pb can be met through a state's assessment as to whether or not emissions from Pb sources located in close proximity to its borders have emissions that impact a neighboring state such that they contribute significantly to nonattainment or interfere with maintenance in that state.

    Maine's infrastructure SIP submission for the 2008 Pb NAAQS states that Maine has no Pb sources that exceed, or even approach, 0.5 ton/year. No single source of Pb, or group of sources, anywhere within the state emits enough Pb to cause ambient concentrations to approach the Pb NAAQS. Our review of the Pb emissions data from Maine sources, which the state has entered into the EPA National Emissions Inventory (NEI) database, confirms this, and therefore, EPA agrees with Maine and proposes that Maine has met this set of requirements related to section 110(a)(2)(D)(i)(I) for the 2008 Pb NAAQS.

    Maine's June 7, 2013 infrastructure SIP submission for the 2010 NO2 NAAQS does not address section 110(a)(2)(D)(i)(I). Therefore, EPA is not taking any action with respect to this sub-element for the NO2 NAAQS for Maine at this time. Maine's June 7, 2013 infrastructure SIP submission for the 2008 ozone NAAQS likewise does not address section 110(a)(2)(D)(i)(I). However, Maine subsequently submitted a SIP revision on October 26, 2015, addressing this sub-element and EPA approved this SIP revision on October 13, 2016 (81 FR 70631).

    Therefore, EPA proposes to approve Maine's submittal for the 2008 Pb NAAQS for sub-element 1 of section 110(a)(2)(D)(i)(I).

    Sub-Element 2: Section 110(a)(2)(D)(i)(II)—PSD (Prong 3)

    One aspect of section 110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to be in any other state's SIP under Part C of the Act to prevent significant deterioration of air quality. One way for a state to meet this requirement, specifically with respect to those in-state sources and pollutants that are subject to PSD permitting, is through a comprehensive PSD permitting program that applies to all regulated NSR pollutants and that satisfies the requirements of EPA's PSD implementation rules. For in-state sources not subject to PSD, this requirement can be satisfied through a fully-approved nonattainment new source review (NNSR) program with respect to any previous NAAQS. EPA last approved revisions to Maine's NNSR regulations on February 14, 1996, (61 FR 5690)

    To meet requirements of Prong 3, Maine cites to Maine's PSD permitting programs under 06-096 CMR Chapter 115, “Major and Minor Source Air Emission License Regulations,” to ensure that new and modified major sources of Pb, NOX, and VOC emissions do not contribute significantly to nonattainment or interfere with maintenance of those standards. As noted above in our discussion of Element C, Maine's PSD program fully satisfies the requirements of EPA's PSD implementation rules. Consequently, we are proposing to approve Maine's infrastructure SIPs for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS related to section 110(a)(2)(D)(i)(II) for the reasons discussed under Element C.

    Sub-Element 3: Section 110(a)(2)(D)(i)(II)—Visibility Protection (Prong 4)

    With regard to the applicable requirements for visibility protection of section 110(a)(2)(D)(i)(II), states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). The 2009 Memo, the 2011 Memo, and 2013 Memo state that these requirements can be satisfied by an approved SIP addressing reasonably attributable visibility impairment, if required, or an approved SIP addressing regional haze. A fully approved regional haze SIP meeting the requirements of 40 CFR 51.308 will ensure that emissions from sources under an air agency's jurisdiction are not interfering with measures required to be included in other air agencies' plans to protect visibility. Maine's Regional Haze SIP was approved by EPA on April 24, 2012 (77 FR 24385). Accordingly, EPA proposes that Maine has met the visibility protection requirements of 110(a)(2)(D)(i)(II) for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    Sub-Element 4: Section 110(a)(2)(D)(ii)—Interstate Pollution Abatement

    One aspect of section 110(a)(2)(D)(ii) requires each SIP to contain adequate provisions requiring compliance with the applicable requirements of section 126 relating to interstate pollution abatement. Section 126(a) requires new or modified sources to notify neighboring states of potential impacts from the source. The statute does not specify the method by which the source should provide the notification. States with SIP-approved PSD programs must have a provision requiring such notification by new or modified sources. A lack of such a requirement in state rules would be grounds for disapproval of this element.

    EPA-approved regulations require the Maine DEP to provide pre-construction notice of new or modified sources to, among others, “any State . . . whose lands may be affected by emissions from the source or modification.” See 06-096 CMR Chapter 115, § IX(E)(3); approved March 23, 1993 (58 FR 15422). Such notice “shall announce availability of the application, the Department's preliminary determination in the form of a draft order, the degree of increment consumption that is expected from the source or modification, as well as the opportunity for submission of written public comment.” See 06-096 CMR Chapter 115, § IX(E)(2). These provisions are consistent with EPA's PSD regulations and require notice to affected states of a determination to issue a draft PSD permit. Regarding section 126(b), no source or sources within the state are the subject of an active finding with respect to the particular NAAQS at issue. Consequently, EPA proposes to approve Maine's infrastructure SIP submittals for this sub-element with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    Sub-Element 5: Section 110(a)(2)(D)(ii)—International Pollution Abatement

    One portion of section 110(a)(2)(D)(ii) requires each SIP to contain adequate provisions requiring compliance with the applicable requirements of section 115 relating to international pollution abatement. There are no final findings under section 115 against Maine with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. Therefore, EPA is proposing that Maine has met the applicable infrastructure SIP requirements of section 110(a)(2)(D)(ii) related to section 115 of the CAA (international pollution abatement) for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    E. Section 110(a)(2)(E)—Adequate Resources

    This section requires each state to provide for adequate personnel, funding, and legal authority under state law to carry out its SIP and related issues. Additionally, Section 110(a)(2)(E)(ii) requires each state to comply with the requirements with respect to state boards under section 128. Finally, section 110(a)(2)(E)(iii) requires that, where a state relies upon local or regional governments or agencies for the implementation of its SIP provisions, the state retain responsibility for ensuring adequate implementation of SIP obligations with respect to relevant NAAQS. This last sub-element, however, is inapplicable to this action, because Maine does not rely upon local or regional governments or agencies for the implementation of its SIP provisions.

    Sub-Element 1: Adequate Personnel, Funding, and Legal Authority Under State Law to Carry Out Its SIP, and Related Issues

    Maine, through its infrastructure SIP submittals, has documented that its air agency has the requisite authority and resources to carry out its SIP obligations. Maine cites to 38 MRSA § 341-A, “Department of Environmental Protection,” 38 MRSA § 341-D, “Board responsibilities and duties,” 38 MRSA § 342, “Commissioner, duties” and 38 MRSA § 581, “Declaration of findings and intent.” These statutes provide the ME DEP with the legal authority to enforce air pollution control requirements and carry out SIP obligations with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. Additionally, state law provides the ME DEP with the authority to assess preconstruction permit fees and annual operating permit fees from air emissions sources and establishes a general revenue reserve account within the general fund to finance the state clean air programs. Maine also receives CAA sections 103 and 105 grant funds through Performance Partnership Grants along with required state-matching funds to provide funding necessary to carry out SIP requirements. Chapter 8 of the 1972 ME SIP describes the resources and manpower estimates for ME DEP. Finally, Maine states, in its June 7, 2013 submittal for 2008 ozone, that for FY 2012, the Bureau of Air Quality had a staff of 59, and a budget of $5.7 million. EPA proposes that Maine has met the infrastructure SIP requirements of this portion of section 110(a)(2)(E) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    Sub-Element 2: State Board Requirements Under Section 128 of the CAA

    Section 110(a)(2)(E) also requires each SIP to contain provisions that comply with the state board requirements of section 128 of the CAA. That provision contains two explicit requirements: (1) That any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits and enforcement orders under this chapter, and (2) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.

    As mentioned earlier, the Maine DEP consists of a Commissioner and a Board of Environmental Protection (“BEP” or “Board”), which is an independent authority under state law that reviews certain permit applications in the first instance and also renders final decisions on appeals of permitting actions taken by the Commissioner as well as some enforcement decisions by the Commissioner. Because the Board has authority under state law to hear appeals of some CAA permits and enforcement orders, EPA considers that the Board has authority to “approve” those permits or enforcement orders, as recommended in the 2013 Guidance at 42, and that the requirement of CAA § 128(a)(1) applies to Maine — that is, that “any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits and enforcement orders under this chapter.”

    Pursuant to state law, the BEP consists of seven members appointed by the Governor, subject to confirmation by the State Legislature. See 38 MRSA § 341-C(1). The purpose of the Board “is to provide informed, independent and timely decisions on the interpretation, administration and enforcement of the laws relating to environmental protection and to provide for credible, fair and responsible public participation in department decisions.” Id. § 341-B. State law further provides that Board members “must be chosen to represent the broadest possible interest and experience that can be brought to bear on the administration and implementation of” Maine's environmental laws and that “[a]t least 3 members must have technical or scientific backgrounds in environmental issues and no more than 4 members may be residents of the same congressional district.” Id. § 341-C(2). EPA proposes to find that these provisions fulfill the requirement that at least a majority of Board members represent the public interest but do not address the requirement that at least a majority “not derive any significant portion of their income from persons subject to” air permits and enforcement orders. Furthermore, section 341-C is not currently in Maine's SIP. By letter dated March 1, 2018, however, DEP committed to revise section 341-C to address the CAA § 128(a)(1) requirement that at least a majority of Board members “not derive a significant portion of their income from persons subject to” air permits or enforcement orders and to submit, for inclusion in the SIP, the necessary provisions to EPA within one year of EPA final action on these infrastructure SIPs. Consequently, EPA proposes to conditionally approve Maine's submittals for this requirement of CAA § 128(a)(1).

    With respect to the requirements in § 128(a)(2) (regarding potential conflicts of interest), on April 23, 2013, Maine submitted 5 MRSA § 18 and 38 MRSA § 341-C(7) to EPA and requested that they be incorporated into the Maine SIP. Pursuant to 5 MRSA § 18(2), “[a]n executive employee commits a civil violation if he personally and substantially participates in his official capacity in any proceeding in which, to his knowledge, any of the following have a direct and substantial financial interest: A. Himself, his spouse or his dependent children; B. His partners; C. A person or organization with whom he is negotiating or has agreed to an arrangement concerning prospective employment; D. An organization in which he has a direct and substantial financial interest; or E. Any person with whom the executive employee has been associated as a partner or a fellow shareholder in a professional service corporation pursuant to Title 13, chapter 22-A, during the preceding year.” Section 18 defines “executive employee” to include, among others, “members of the state boards.” Id. § 18(1). Moreover, 38 MRSA § 341-C(7) specifically provides that the state's conflict of interest provisions at 5 MRSA § 18 apply to Board members. Section 18 further provides that “[e]very executive employee shall endeavor to avoid the appearance of a conflict of interest by disclosure or by abstention” and that, for purposes of this requirement, the term “`conflict of interest' includes receiving remuneration, other than reimbursement for reasonable travel expenses, for performing functions that a reasonable person would expect to perform as part of that person's official responsibility as” a Board member. Id. § 18(7). EPA proposes that 5 MRSA § 18 and 38 MRSA § 341-C(7) satisfy the conflict of interest requirements of CAA § 128(a)(2) with respect to members of a board that approves permits or enforcement orders and proposes to incorporate them into the Maine SIP.

    As noted above, section 128(a)(2) of the Act provides that “any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.” (emphasis added). As EPA has explained in other infrastructure SIP actions, the purpose of section 128(a)(2) is to assure that conflicts of interest are disclosed by the ultimate decision maker in permit or enforcement order decisions. See, e.g., 80 FR 42446, 42454 (July 17, 2015). Although the Board is the ultimate decision maker on air permitting decisions in Maine, certain air enforcement orders of the DEP Commissioner are not reviewable by the Board, but rather may be appealed directly to Maine Superior Court. For this reason, EPA interprets the potential conflict of interest requirements of CAA § 128(a)(2) to be applicable in Maine to both Board members and the DEP Commissioner. Pursuant to 38 MRSA § 341-A(3)(D), however, the Commissioner of DEP “is subject to the conflict-of-interest provisions of” 5 MRSA § 18, thus satisfying this requirement. Because Maine has not yet submitted 38 MRSA § 341-A(3)(D) for inclusion in the SIP, but by letter dated March 1, 2018, has committed to doing so within one year of EPA's final action on Maine's infrastructure SIP submissions, EPA proposes to conditionally approve Maine's submissions for the conflict of interest requirement with respect to the DEP Commissioner.

    F. Section 110(a)(2)(F)—Stationary Source Monitoring System

    States must establish a system to monitor emissions from stationary sources and submit periodic emissions reports. Each plan shall also require the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources. The state plan shall also require periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and correlation of such reports by each state agency with any emission limitations or standards established pursuant to this chapter. Lastly, the reports shall be available at reasonable times for public inspection.

    Maine's infrastructure submittals reference several existing state regulations previously approved by EPA that require sources to monitor emissions and submit reports. The first is 06-096 CMR Chapter 117, “Source Surveillance.” This regulation specifies which air emission sources are required to operate continuous emission monitoring systems (CEMS) and details the performance specifications, quality assurance requirements and procedures for such systems, and subsequent record keeping and reporting requirements. Maine also references EPA-approved 06-096 CMR Chapter 137, “Emission Statements,” which requires sources to monitor and report annually to DEP emissions of criteria pollutants and other emissions-related information under certain circumstances. EPA most recently approved Chapter 137 into the SIP on May 1, 2017. See 82 FR 20257.

    In addition, Maine refers to its regulations implementing its operating permit program pursuant to 40 CFR part 70: 06-096 CMR Chapter 140, “Part 70 Air Emission License Regulations.” This regulation, although not in the SIP, identifies the sources of air emissions that require a Part 70 air emission license and incorporates the requirements of Title IV and Title V of the Clean Air Act, as amended, 42 U.S.C. 7401, et seq.; and 38 MRSA §§ 344 and 590. This regulation contains compliance assurance requirements regarding monitoring and reporting for licensed sources requiring a Part 70 air emission license. The regulation was approved by EPA on October 18, 2001 (66 FR 52874). Finally, Maine references 06-096 CMR Chapter 115, “Major and Minor Source Air Emission License Regulations.” This regulation contains compliance assurance requirements for licensed sources and stipulates that licenses shall include the following compliance assurance elements:(a) A description of all required monitoring and analysis procedures or test methods required under the requirements applicable to the source;(b) A description of all recordkeeping requirements; and (c) A description of all reporting requirements. While Chapter 140 and the referenced provisions of Chapter 115 are not formally approved into Maine's SIP, they are legal mechanisms the state can use to assure the enforcement of the monitoring requirements approved in the SIP.

    Regarding the section 110(a)(2)(F) requirements that the SIP provide for the correlation and public availability of emission reports, Maine's emission statement rule, Chapter 137, requires facilities to report emissions of air pollutants on an annual basis. The DEP uses a web-based electronic reporting system, the Maine Air Emissions Inventory Reporting System (“MAIRIS”), for this purpose that allows it to package and electronically submit reported emissions data to EPA under the national emission inventory (NEI) program. NEI data are available to the public. See www.epa.gov/air-emissions-inventories/national-emissions-inventory-nei. The MAIRIS system is structured to electronically correlate reported emissions with permit conditions and other applicable standards, and identify all inconsistencies and potential compliance concerns.

    Furthermore, pursuant to DEP's EPA-approved regulations, “Except as expressly made confidential by law; the commissioner shall make all documents available to the public for inspection and copying including the following: 1. All applications or other forms and documents submitted in support of any license application: 2. All correspondence, into or out of the Department, and any attachments thereto . . . .” See 06-096 CMR Chapter 1, § 6(A). Furthermore, “The Commissioner shall keep confidential only those documents which may remain confidential pursuant to 1 MRSA Section 402.” Id. § 6(B). In its August 21, 2012, submittal, DEP certified that, “[e]xcept as specifically exempted by the Maine statute (1 MRSA Chapter 13 Public Records and Proceedings), Maine makes all records, reports or information obtained by the MEDEP or referred to at public hearings available to the public.” Maine DEP further certified therein that the reports required under 117 and 137 are “available to the public . . . pursuant to Maine law.” We also note that the Maine Freedom of Access Law does not expressly make emissions statements confidential, 1 MRSA § 402, and that, pursuant to DEP's EPA-approved regulations, “[i]nformation concerning the nature and extent of the emissions of any air contaminant by a source”—which includes emission reports—“shall not be confidential.” See 06-096 CMR Chapter 115, § IX(B)(1). By letter dated March 1, 2018, Maine further certified that Maine's Freedom of Access law does not include any exceptions that apply to stationary source emissions. For these reasons, we propose to find that Maine satisfies the requirement that emissions statements be available at reasonable times for public inspection.

    Finally, in the March 1, 2018, letter, DEP also certified that there are no provisions in Maine law that would prevent the use of any credible evidence of noncompliance, as required by 40 CFR 51.212. See also 06-096 CMR Chapter 140, § 3(E)(7)(a)(v) (“Notwithstanding any other provision in the State Implementation Plan approved by the EPA or Section 114(a) of the CAA, any credible evidence may be used for the purpose of establishing whether a person has violated or is in violation of any statute, regulation, or Part 70 license requirement.”). For the above reasons, EPA is proposing to approve Maine's submittals for this requirement of section 110(a)(2)(F) for the 2008 ozone, 2008 Pb, and 2010 NO2 NAAQS.

    G. Section 110(a)(2)(G)—Emergency Powers

    This section requires that a plan provide for state authority comparable to that provided to the EPA Administrator in section 303 of the CAA, and adequate contingency plans to implement such authority. Section 303 of the CAA provides authority to the EPA Administrator to seek a court order to restrain any source from causing or contributing to emissions that present an “imminent and substantial endangerment to public health or welfare, or the environment.” Section 303 further authorizes the Administrator to issue “such orders as may be necessary to protect public health or welfare or the environment” in the event that “it is not practicable to assure prompt protection . . . by commencement of such civil action.”

    We propose to find that a combination of state statutes and regulations discussed in Maine's submittals and a March 1, 2018 DEP letter provides for authority comparable to that given the Administrator in CAA section 303, as explained below. First, 38 MRSA § 347-A, “Emergency Orders,” provides that “[w]henever it appears to the commissioner, after investigation, that there is a violation of the laws or regulations [DEP] administers or of the terms or conditions of any of [DEP's] orders that is creating or is likely to create a substantial and immediate danger to public health or safety or to the environment, the commissioner may order the person or persons causing or contributing to the hazard to immediately take such actions as are necessary to reduce or alleviate the danger.” See 38 MRSA § 347-A(3). Section 347-A further authorizes the DEP Commissioner to initiate an enforcement action in state court in the event of a violation of such emergency order issued by the Commissioner. Id. § 347-A(1)(A)(4). Similarly, 38 MRSA § 348, “Judicial Enforcement,” authorizes DEP to institute injunction proceedings “[i]n the event of a violation of any provision of the laws administered by [DEP] or of any order, regulation, license, permit, approval, administrative consent agreement or decision of the board or commissioner.” Id. § 348(1). Section 348 also authorizes DEP to seek a court order to a restrain a source if it “finds that the discharge, emission or deposit of any materials into any waters, air or land of th[e] State constitutes a substantial and immediate danger to the health, safety or general welfare of any person, persons or property.” Id. § 348(3). Thus, these provisions authorize DEP to issue an administrative order or to seek a court order to restrain any source from causing or contributing to emissions that present an imminent and substantial endangerment to public health or welfare, or the environment, if there is also a violation of a law, regulation, order, or permit administered or issued by DEP, as the case may be.

    Second, by letter dated March 1, 2018, Maine also cites to 38 MRSA § 591, “Prohibitions,” as contributing to its authority. Section 591 provides that “[n]o person may discharge air contaminants into ambient air within a region in such manner as to violate ambient air quality standards established under this chapter or emission standards established pursuant to section 585, 585-B or 585-K.” In those cases where emissions of NO2, Pb, ozone, or ozone precursors may be causing or contributing to an “imminent and substantial endangerment to public health or welfare, or the environment,” a violation of § 591 would also occur, since Maine law provides that ambient air quality standards are designed to prevent “air pollution,” id. § 584, which state law expressly defines as “the presence in the outdoor atmosphere of one or more air contaminants in sufficient quantities and of such characteristics and duration as to be injurious to human, plant or animal life or to property, or which unreasonably interfere with the enjoyment of life and property,” id. § 582(3) (emphasis added). In its March 1, 2018 letter, Maine further explains that sections 347-A and 591 “together authorize the Commissioner to issue an emergency order upon finding an apparent violation of DEP laws or regulations to address emissions of criteria pollutants, air contaminants governed by standards promulgated under section 585, and hazardous air pollutants governed by standards promulgated under section 585-B.”

    Third, in the unlikely event that air emissions are creating a substantial or immediate threat to the public health, safety or to the environment without violating any DEP law, regulation, order, or permit, emergency authority to issue an order to restrain a source may also be exercised pursuant to 37-B MRSA § 742, “Emergency Proclamation.” Maine explains that the DEP Commissioner can notify the Governor of an imminent “disaster,” and the Governor can then exercise authority to “declare a state of emergency in the State or any section of the State.” See 37-B MRSA § 742(1)(A). State law defines “disaster” in this context to mean “the occurrence or imminent threat of widespread or severe damage, injury or loss of life or property resulting from any natural or man-made cause, including, but not limited to . . . air contamination.” Id. § 703(2). Upon the declaration of a state of emergency, the Governor may, among other things, “[o]rder the termination, temporary or permanent, of any process, operation, machine or device which may be causing or is understood to be the cause of the state of emergency,” id. § 742(1)(C)(11), or “[t]ake whatever action is necessary to abate, clean up or mitigate whatever danger may exist within the affected area,” id. § 742(1)(C)(12). Thus, even if there may otherwise be no violation of a DEP-administered or -issued law, regulation, order, or permit, state authorities exist to restrain the source.

    Finally, Maine's submittals cite 06-096 CMR Chapter 109, “Emergency Episode Regulations,” which sets forth various emission reduction plans intended to prevent air pollution from reaching levels that would cause imminent and substantial harm and recognizes the Commissioner's authority to issue additional emergency orders pursuant to 38 MRSA § 347-A, as necessary to the health of persons, by restricting emissions during periods of air pollution emergencies. For these reasons, we propose to find that Maine's submittals and certain state statutes and regulations provide for authority comparable to that provided to the Administrator in CAA § 303.

    Section 110(a)(2)(G) also requires that, for any NAAQS, Maine have an approved contingency plan for any Air Quality Control Region (AQCR) within the state that is classified as Priority I, IA, or II. See 40 CFR 51.152(c). A contingency plan is not required if the entire state is classified as Priority III for a particular pollutant. Id. All AQCRs in Maine are classified as Priority III areas for NO2 and ozone, pursuant to 40 CFR 52.1021. Consequently, as relevant to this proposed rulemaking action, Maine's SIP does not need to contain an emergency contingency plan meeting the specific requirements of 51.152 with respect to NO2 and ozone. Moreover, we note that Pb is not explicitly included in the contingency plan requirements of 40 CFR subpart H. In any event, as discussed earlier in this document with respect to Element D(i)(I), according to EPA's 2014 NEI, there are no Pb sources within Maine that exceed, or even approach, EPA's reporting threshold of 0.5 tons per year. Although not expected, if Pb conditions were to change, Maine DEP does have general authority, as noted previously, to order a source to immediately take such actions as are necessary to reduce or alleviate a danger to public health or safety or to the environment.

    EPA proposes that Maine has met the applicable infrastructure SIP requirements for section 110(a)(2)(G) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    H. Section 110(a)(2)(H)—Future SIP Revisions

    This section requires that a state's SIP provide for revision from time to time as may be necessary to take account of changes in the NAAQS or availability of improved methods for attaining the NAAQS and whenever the EPA finds that the SIP is substantially inadequate. To address this requirement, Maine's infrastructure submittals reference 38 MRSA § 581, “Declaration of findings and intent,” which characterizes the state's laws regarding the Protection and Improvement of Air as an exercise of “the police power of the State in a coordinated state-wide program to control present and future sources of emission of air contaminants to the end that air polluting activities of every type shall be regulated in a manner that reasonably insures the continued health, safety and general welfare of all of the citizens of the State; protects property values and protects plant and animal life.” In addition, we note that Maine DEP is required by statute to “prevent, abate and control the pollution of the air[, to] preserve, improve and prevent diminution of the natural environment of the State[, and to] protect and enhance the public's right to use and enjoy the State's natural resources.” See 38 MRSA § 341-A(1). Furthermore, DEP is authorized to “adopt, amend or repeal rules and emergency rules necessary for the interpretation, implementation and enforcement of any provision of law that the department is charged with administering.” Id. § 341-H(2); see also id. § 585-A (recognizing DEP's rulemaking authority to propose SIP revisions). These statutes give Maine DEP the power to revise the Maine SIP from time to time as may be necessary to take account of changes in the NAAQS or availability of improved methods for attaining the NAAQS and whenever the EPA finds that the SIP is substantially inadequate.

    EPA proposes that Maine has met the infrastructure SIP requirements of CAA section 110(a)(2)(H) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    I. Section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions Under Part D

    The CAA requires that each plan or plan revision for an area designated as a nonattainment area meet the applicable requirements of part D of the CAA. Part D relates to nonattainment areas. EPA has determined that section 110(a)(2)(I) is not applicable to the infrastructure SIP process. Instead, EPA takes action on part D attainment plans through separate processes.

    J. Section 110(a)(2)(J)—Consultation With Government Officials; Public Notifications; Prevention of Significant Deterioration; Visibility Protection

    The evaluation of the submissions from Maine with respect to the requirements of CAA section 110(a)(2)(J) are described below.

    Sub-Element 1: Consultation With Government Officials

    States must provide a process for consultation with local governments and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements.

    Pursuant to state law, Maine DEP is authorized to, among other things, “educate the public on natural resource use, requirements and issues.” See 38 MRSA § 341-A(1). State law further provides that one of the purposes of the BEP is “to provide for credible, fair and responsible public participation in department decisions,” id. § 341-B, and authorizes it to “cooperate with other state or federal departments or agencies to carry out” its responsibilities, id. § 341-F(6). Furthermore, pursuant to Maine's EPA-approved regulations, the DEP is required to provide notice to relevant municipal officials and FLMs, among others, of DEP's preparation of a draft permit for a new or modified source. See 06-096 CMR Chapter 115, § IX(E)(3); approved March 23, 1993 (58 FR 15422). In addition, with respect to area reclassifications to Class I, II, or III for PSD purposes, the DEP is required to offer an opportunity for a public hearing and to consult with appropriate FLMs. See 38 MRSA § 583-B; and also 06-096 CMR Chapter 114, § 1(E). Maine's Transportation Conformity rule at 06-096 CMR Chapter 139 also provides procedures for interagency consultation, resolution of conflicts, and public consultation and notification. Finally, the Maine Administrative Procedures Act (Maine Revised Statutes Title 5, Chapter 375, subchapter 2) requires notification and provision of comment opportunities to all parties affected by proposed regulations. All SIP revisions undergo public notice and opportunity for hearing, which allows for comment by the public, including local governments.

    EPA proposes that Maine has met the infrastructure SIP requirements of this portion of section 110(a)(2)(J) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    Sub-Element 2: Public Notification

    Section 110(a)(2)(J) also requires states to: Notify the public if NAAQS are exceeded in an area; advise the public of health hazards associated with exceedances; and enhance public awareness of measures that can be taken to prevent exceedances and of ways in which the public can participate in regulatory and other efforts to improve air quality.

    As mentioned elsewhere in this notice, state law directs Maine DEP to, among other things, “prevent, abate and control the pollution of the air . . . improve and prevent diminution of the natural environment of the State [, and] protect and enhance the public's right to use and enjoy the State's natural resources.” See 38 MRSA § 341-A(1). State law also authorizes DEP “educate the public on natural resource use, requirements and issues. Id. § 341-A(1). To that end, the ME DEP makes real-time and historical air quality information available on its website. The agency also provides extended range air quality forecasts, which give the public advanced notice of air quality events. This advance notice allows the public to limit their exposure to unhealthy air and enact a plan to reduce pollution at home and at work. The ME DEP forecasts daily ozone and particle levels and issues these forecasts to the media and to the public via its website, telephone hotline and email. DEP states in its submittals that, in the event that a Pb monitor is established in Maine in the future, the Department will also put the data collected from such a monitor on its website. Alerts include information about the health implications of elevated pollutant levels and list actions to reduce emissions and to reduce the public's exposure. In addition, Air Quality Data Summaries of the year's air quality monitoring results are issued annually and posted on the ME DEP Bureau of Air Quality website. Maine is also an active partner in EPA's AirNow and EnviroFlash air quality alert programs.

    EPA proposes that Maine has met the infrastructure SIP requirements of this portion of section 110(a)(2)(J) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    Sub-Element 3: PSD

    States must meet applicable requirements of section 110(a)(2)(C) related to PSD. Maine's PSD program in the context of infrastructure SIPs has already been discussed in the paragraphs addressing sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II) and, as we have noted, fully satisfies the requirements of EPA's PSD implementation rules. Consequently, we are proposing to approve the PSD sub-element of section 110(a)(2)(J) for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS, consistent with the actions we are proposing for sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II).

    Sub-Element 4: Visibility Protection

    With regard to the applicable requirements for visibility protection, states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, as noted in EPA's 2013 Memo, we find that there is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. In other words, the visibility protection requirements of section 110(a)(2)(J) are not germane to infrastructure SIPs for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    K. Section 110(a)(2)(K)—Air Quality Modeling/Data

    To satisfy Element K, the state air agency must demonstrate that it has the authority to perform air quality modeling to predict effects on air quality of emissions of any NAAQS pollutant and submission of such data to EPA upon request. Maine state law implicitly authorizes DEP to perform air quality monitoring and provide such modeling data to EPA upon request. See 38 MRSA §§ 341-A(1), 581, 591-B. In addition, Maine cites 06-096 CMR Chapter 115, which requires an applicant to provide a demonstration, that may include air-quality modeling, that shows its emissions will not violate the NAAQS. We note that EPA-approved Chapter 115 requires DEP to notify EPA of any PSD application, see § IX(E), and that EPA-approved 06-096 CMR Chapter 1 requires DEP to make “[a]ll applications or other forms and documents submitted in support of any license application” publicly available. See § 6(A)(1), which naturally includes EPA. In its August 21, 2012 submittal, DEP further states that it performs modeling, provides modeling data to EPA upon request, and will continue to do both. Maine also cites to 06-096 Chapter 116, “Prohibited Dispersion Techniques,” which includes regulations applicable to the State's air quality modeling consistent with federal requirements concerning stack height and other dispersion techniques, such as merging of plumes. These regulations also define the area surrounding the source where ambient air quality standards do not have to be met. Finally, Maine cites 06-096 CMR Chapter 140, which contains air quality modeling requirements for sources subject to 40 CFR part 70 that are analogous to those in Chapter 115. Maine also collaborates with the Ozone Transport Commission (OTC) and the Mid-Atlantic Regional Air Management Association and EPA in order to perform large-scale urban air shed modeling for ozone if necessary.

    EPA proposes that Maine has met the infrastructure SIP requirements of section 110(a)(2)(K) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    L. Section 110(a)(2)(L)—Permitting Fees

    This section requires SIPs to mandate that each major stationary source pay permitting fees to cover the cost of reviewing, approving, implementing, and enforcing a permit. Maine implements and operates a Title V permit program. See 38 MRSA § 353-A; 06-096 CMR Chapter 140, which was approved by EPA on October 18, 2001 (66 FR 52874). To gain this approval, Maine demonstrated the ability to collect sufficient fees to run the program. See 61 FR 49289, 49291 (Sept. 19, 1996). Maine also notes in its submittals that the costs of all CAA permitting, implementation, and enforcement for new or modified sources are covered by Title V fees and that Maine state law provides for the assessment of application fees from air emissions sources for permits for the construction or modification of air contaminant sources and sets permit fees. See 38 MRSA §§ 353-A (establishing annual air emissions license fees), 352(2)(E) (providing that such fees “must be assessed to support activities for air quality control including licensing, compliance, enforcement, monitoring, data acquisition and administration”).

    EPA proposes that Maine has met the infrastructure SIP requirements of section 110(a)(2)(L) for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    M. Section 110(a)(2)(M)—Consultation/Participation by Affected Local Entities

    To satisfy Element M, states must consult with, and allow participation from, local political subdivisions affected by the SIP. Maine's infrastructure submittals reference the Maine Administrative Procedure Act, 5 MRSA Chapter 375, and explain that it requires public notice of all SIP revisions prior to their adoption, which allows for comment by the public, including local political subdivisions. In addition, Maine cites 38 MRSA § 597, “Municipal air pollution control,” which provides that municipalities are not preempted from studying air pollution and adopting and enforcing “air pollution control and abatement ordinances” that are more stringent than those adopted by DEP or that “touch on matters not dealt with” by state law. Finally, Maine cites Chapter 9 of Maine's initial SIP, which was approved on May 31, 1972 (37 FR 10842), and contains intergovernmental cooperation provisions.

    EPA proposes that Maine has met the infrastructure SIP requirements of section 110(a)(2)(M) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

    N. Maine Statute and Executive Order Submitted for Incorporation Into the SIP

    As noted above, in the discussion of element E, on April 23, 2013, Maine submitted, and EPA is proposing to approve 38 MRSA § 341-C(7), “Conflict of Interest,” and 5 MRSA § 18, “Disqualification of executive employees from participation in certain matters,” into the SIP.

    V. What action is EPA taking?

    EPA is proposing to approve the infrastructure SIPs submitted by Maine for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. The state submitted its infrastructure SIP for each NAAQS on the following dates: 2008 Pb—August 21 2012; 2008 ozone—June 7, 2013; and 2010 NO2—June 7, 2013. Also, we are proposing to approve into the SIP, Maine's conflict of interest provisions found in 38 MRSA Section 341-C(7) and 5 MRSA Section 18, which DEP submitted as a SIP revision on April 23, 2013. Specifically, EPA's proposed actions regarding each infrastructure SIP requirement are contained in Table 1 below.

    Table 1—Proposed Action on Maine's Infrastructure SIP Submittals Element 2008
  • Pb
  • 2008
  • Ozone
  • 2010
  • NO2
  • (A): Emission limits and other control measures A A A (B): Ambient air quality monitoring and data system A A A (C)1: Enforcement of SIP measures A A A (C)2: PSD program for major sources and major modifications A A A (C)3: preconstruction permitting for minor sources and minor modifications A A A (D)1: Contribute to nonattainment/interfere with maintenance of NAAQS A PA NS (D)2: PSD A A A (D)3: Visibility Protection A A A (D)4: Interstate Pollution Abatement A A A (D)5: International Pollution Abatement A A A (E): Adequate resources A A A (E): State boards CA CA CA (E): Necessary assurances with respect to local agencies NA NA NA (F): Stationary source monitoring system A A A (G): Emergency power A A A (H): Future SIP revisions A A A (I): Nonattainment area plan or plan revisions under part D NG NG NG (J)1: Consultation with government officials A A A (J)2: Public notification A A A (J)3: PSD A A A (J)4: Visibility protection NG NG NG (K): Air quality modeling and data A A A (L): Permitting fees A A A (M): Consultation and participation by affected local entities A A A

    In the above table, the key is as follows:

    A Approve. CA Conditionally Approve. NA Not applicable. NG Not germane to infrastructure SIPs. NS No Submittal. PA Previously approved (see 81 FR 70631, Oct. 13, 2016).

    As noted in Table 1, we are proposing to conditionally approve portions of Maine's infrastructure SIP submittals pertaining to the state's Board for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. Under section 110(k)(4) of the Act, EPA may conditionally approve a plan based on a commitment from the State to adopt specific enforceable measures by a date certain, but not later than 1 year from the date of approval. If EPA conditionally approves the commitment in a final rulemaking action, the State must meet its commitment to submit an update to its State Board rules that fully remedies the deficiencies mentioned above under element E. If the State fails to do so, this action will become a disapproval one year from the date of final approval. EPA will notify the State by letter that this action has occurred. At that time, this commitment will no longer be a part of the approved Maine SIP. EPA subsequently will publish a document in the Federal Register notifying the public that the conditional approval automatically converted to a disapproval. If the State meets its commitment, within the applicable time frame, the conditionally approved submission will remain a part of the SIP until EPA takes final action approving or disapproving the new submittal. If EPA disapproves the new submittal, the conditionally approved infrastructure SIP elements for all affected pollutants will be disapproved. In addition, a final disapproval triggers the Federal Implementation Plan requirement under section 110(c). If EPA approves the new submittal, the State Board rule and relevant infrastructure SIP elements will be fully approved and replace the conditionally approved program in the SIP.

    EPA is soliciting public comments on the issues discussed in this proposal or on other relevant matters. These comments will be considered before EPA takes final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA New England Regional Office listed in the ADDRESSES section of this Federal Register, or by submitting comments electronically, by mail, or through hand delivery/courier following the directions in the ADDRESSES section of this Federal Register.

    VI. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the two Maine statutes listed in Section V above. EPA has made, and will continue to make, these documents generally available electronically through https://www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    VII. 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, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed 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 proposed action:

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

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: March 15, 2018. Alexandra Dapolito Dunn, Regional Administrator, EPA Region 1.
    [FR Doc. 2018-06006 Filed 3-23-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 61 and 63 [EPA-R01-OAR-2017-0641; FRL-9975-51-Region 1] Approval of the Clean Air Act, Section 112(l), Authority for Hazardous Air Pollutants: Asbestos Management and Control; State of New Hampshire Department of Environmental Services AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to grant the New Hampshire Department of Environmental Services (NH DES) the authority to implement and enforce the amended Asbestos Management and Control Rule in place of the National Emission Standard for Asbestos (Asbestos NESHAP) as it applies to certain asbestos-related activities. Upon approval, NH DES's amended rule would apply to all sources that otherwise would be regulated by the Asbestos NESHAP with the exception of inactive waste disposal sites that ceased operation on or before July 9, 1981. These inactive disposal sites are already regulated by State rules that were approved by EPA on January 11, 2013. This proposed approval would make NH DES's amended Asbestos Management and Control Rule federally enforceable.

    DATES:

    Written comments must be received by April 25, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R01-OAR-2017-0641 at https://www.regulations.gov, or via email to [email protected]. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the “For Further Information Contact” section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. EPA will forward copies of all submitted comments to the New Hampshire Department of Environmental Services.

    FOR FURTHER INFORMATION CONTACT:

    Susan Lancey, Air Permits, Toxics, and Indoor Programs Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912, telephone number 617-918-1656, [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA.

    Table of Contents I. General Information A. Does this proposed rule apply to me? B. What should I consider as I prepare my comments for the EPA? II. Background III. What requirements must a state rule meet to substitute for a section 112 rule? IV. What are the differences between NH's rule and the Asbestos NESHAP and what changes did NH make to its Asbestos Management and Control Rule? V. What is EPA's evaluation regarding NH's amended Asbestos Management and Control Rule? VI. Proposed Action VII. Incorporation by Reference VIII. Statutory and Executive Order Reviews I. General Information A. Does this proposed rule apply to me?

    Categories and entities potentially regulated by this proposed rule include:

    Category NAICS 1 Examples of regulated entities Industrial
  • Industrial
  • Industrial
  • Industrial
  • Industrial
  • Industrial
  • Industrial
  • Industrial
  • Industrial
  • Industrial
  • Industrial
  • Industrial
  • 23
  • 23594
  • 562112
  • 562211
  • 5629
  • 56191
  • 332992
  • 33634
  • 327
  • 3279
  • 32791
  • 32799
  • Construction.
  • Wrecking and Demolition Contractors.
  • Hazardous Waste Collection.
  • Hazardous Waste Treatment and Disposal.
  • Remediation and Other Waste Management Services.
  • Packaging and Labeling Services.
  • Small Arms Ammunition Manufacturing.
  • Motor Vehicle Systems Manufacturing.
  • Nonmetallic Mineral Product Manufacturing.
  • Other Nonmetallic Mineral Product Manufacturing.
  • Abrasive Product Manufacturing.
  • All Other Nonmetallic Mineral Product Manufacturing.
  • 1 North American Industry Classification System.

    This Table is not intended to be exhaustive, but rather provides a guide for readers regarding entities potentially regulated by this proposed rule. To determine whether your facility is affected you should examine the applicability criteria in the amended New Hampshire Asbestos Management and Control Rule. If you have questions regarding the applicability of any aspect of this action to a particular entity, please contact the person identified in the “For Further Information Contact” section.

    B. What should I consider as I prepare my comments for the EPA?

    Do not submit information containing CBI to the EPA through https://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD-ROM that you mail to the 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 comments that includes information claimed as CBI, a copy of the comments 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. Send or deliver information identified as CBI only to the following address: “EPA-R01-OAR-2017-0641,” Susan Lancey, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square (mail code OEP05-2), Boston, MA 02109-3912.

    II. Background

    Under CAA section 112(l), the EPA may approve state or local rules or programs to be implemented and enforced in place of certain otherwise applicable Federal rules, emissions standards, or requirements. The Federal regulations governing EPA's approval of state and local rules or programs under section 112(l) are located at 40 CFR part 63, subpart E. See 58 FR 62262 (November 26, 1993), as amended by 65 FR 55810 (September 14, 2000). Under these regulations, a state air pollution control agency has the option to request EPA's approval to substitute a state rule for the applicable Federal rule (e.g., the National Emission Standards for Hazardous Air Pollutants). Upon approval by the EPA, the state agency is authorized to implement and enforce its rule in place of the Federal rule, and the state rule becomes federally enforceable in that state.

    The EPA first promulgated standards to regulate asbestos emissions on April 6, 1973. See 38 FR 8826. These standards have since been amended several times and re-codified in 40 CFR part 61, subpart M, “National Emission Standard for Asbestos” (Asbestos NESHAP). On January 11, 2013, the EPA approved the New Hampshire regulation Env-A 1800 titled “Asbestos Management and Control” (Asbestos Management and Control Rule) as a rule adjustment for the Asbestos NESHAP, applicable to all sources in New Hampshire except for inactive waste disposal sites not operated after July 9, 1981. See 78 FR 2333.1 These inactive disposal sites are regulated by other State rules that were also approved by the EPA on January 11, 2013. See id. 2

    1 The EPA originally approved NH's Asbestos Management and Control Rule on November 28, 2006, see 71 FR 68746, and approved an updated version of the rule on January 11, 2013.

    2 The EPA originally approved NH's Inactive Waste Disposal Site Rule on May 28, 2003, see 68 FR 31611, and approved an updated version of the rule on January 11, 2013.

    Under 40 CFR 63.91(e), within 90 days of any state amendment, repeal, or revision of any state rule approved as an alternative to a Federal requirement, the state must provide the EPA with a copy of the revised authorities and satisfy either 63.91(e)(1) or (e)(2). Under 63.91(e)(2), the State shall request approval of the revised rule. In a letter dated July 21, 2017, supplemented on August 21, 2017, September 21, 2017, and March 1, 2018, NH DES requested approval of its amended rules pertaining to asbestos management in New Hampshire. Specifically, NH requested approval of Env-A 1800 titled “Asbestos Management and Control,” effective as of May 5, 2017, Sections 1801-1807, Appendices B, C and D.3 The EPA has determined it is appropriate to consider the request to approve the amended Asbestos Management and Control Rule under the rule substitution criteria in 40 CFR 63.93.

    3 NH is not requesting approval of the following provisions 1801.02(e), 1801.07, 1802.02, 1802.04, 1802.07-1802.09, 1802.13, 1802.15-1802.17, 1802.25, 1802.31, 1802.37, 1802.40, 1802.44, and 1803.05-1803.09. In addition, NH DES did not request approval of Env-A 1808 (relating to asbestos analytical requirements), Env-A 1808-1814 (relating to personnel licensing and training), and Appendix A: State Statutes and Federal Regulations Implemented.

    III. What requirements must a state rule meet to substitute for a section 112 rule?

    A state must demonstrate that it has satisfied the up-front approval criteria contained in 40 CFR 63.91(d). The process of providing up-front approval assures that a state has met the delegation criteria in section 112(l)(5) of the CAA as implemented by EPA's regulations at 40 CFR 63.91(d). These criteria require, among other things, that the state has demonstrated that its NESHAP program contains adequate authorities to assure compliance with each applicable Federal requirement, adequate resources for implementation, and an expeditious compliance schedule. Under 40 CFR 63.91(d)(3), interim or final Title V program approval under 40 CFR part 70 satisfies the criteria set forth in 40 CFR 63.91(d) for up-front approval. On October 2, 1996, EPA promulgated interim approval of NH DES's operating permits program, and also approved New Hampshire's authority to implement and enforce unchanged section 112 standards for part 70 sources under 40 CFR 63.91. See 61 FR 51371. Subsequently, on September 24, 2001, EPA promulgated full approval of NH DES's operating permits program. See 66 FR 48806. Accordingly, NH DES has satisfied the up-front approval criteria of 40 CFR 63.91(d).

    Additionally, the regulations governing approval of state requirements that substitute for a section 112 rule require EPA to evaluate the state's submittal to ensure that it meets the stringency and other requirements of 40 CFR 63.93. A rule will be approved if the state requirements contain or demonstrate: (1) Applicability criteria that are no less stringent than the corresponding Federal rule; (2) levels of control and compliance and enforcement measures that result in emission reductions from each affected source that are no less stringent than would result from the otherwise applicable Federal rule; (3) a compliance schedule that requires each affected source to be in compliance within a time frame consistent with the deadlines established in the otherwise applicable Federal rule; and (4) the additional compliance and enforcement measures as specified in 40 CFR 63.93(b)(4). See 40 CFR 63.93(b).

    A state may also seek, and EPA may approve, a partial delegation of the EPA's authorities. See CAA 112(l)(1). To obtain a partial rule substitution, the state's submittal must meet the otherwise applicable requirements in 40 CFR 63.91 and 63.93, and be separable from the portions of the program that the state is not seeking rule substitution for. See 40 CFR 63.91(f)(3); 64 FR 1889, January 12, 1999.

    Before we can approve alternative requirements in place of a part 61 emissions standard, the state must submit to us detailed information that demonstrates how the alternative requirements compare with the otherwise applicable Federal standard. A detailed discussion of how EPA will determine equivalency for state alternative NESHAP requirements is provided in the preamble to EPA's proposed subpart E amendments on January 12, 1999. See 64 FR 1908.

    IV. What are the differences between NH's rule and the asbestos NESHAP and what changes did NH make to its Asbestos Management and Control Rule?

    NH DES's amended Asbestos Management and Control Rule, effective as of May 5, 2017, continues to incorporate by reference most, but not all, of the federal national emission standards for hazardous air pollutants (40 CFR part 61, subpart M) for asbestos (Asbestos NESHAP). The following discussion compares those sections of 40 CFR part 61, subpart M that NH DES has not adopted with the applicable sections of New Hampshire's rule, demonstrating that New Hampshire's rule is in each case no less stringent than the federal rule, and then describes the material changes to NH's amended Asbestos Management and Control Rule, effective as of May 5, 2017.

    The first three exceptions to NH's incorporation by reference of the Asbestos NESHAP under Env-A 1801.06(a), namely 40 CFR 61.145(c)(1)(i), 61.145(c)(1)(ii), and 61.145(c)(1)(iv), are demolition work practices that may be considered together. Section 61.145 contains the standard for asbestos demolition and renovation, subsection (c) contains the procedures for asbestos emission control, and paragraph (1) provides for the removal of all regulated asbestos-containing material (RACM), except RACM need not be removed before demolition if the criteria in paragraph (1) is met.

    In Env-A 1805.10, unlike the federal rule, NH DES requires that all ACM without exception must be removed prior to demolition. Because New Hampshire's rule regulates a greater range of asbestos activity than the federal NESHAP, it contains applicability criteria no less stringent than those in the federal rule. See 40 CFR 63.93(b)(1).

    The next exception to the federal rule in New Hampshire's rule is 40 CFR 61.149(c)(2). This section, together with §§ 61.150(a)(4), 61.151(c), 61.152(b)(3), 61.154(d) and 61.155(a), is non-delegable to the states under 40 CFR 61.157.

    NH DES did not adopt 40 CFR 61.150(a)(5), which provides an exception to the standard for waste disposal for manufacturing, fabricating, demolition, renovation, and spraying operations. Section 61.150(a) provides that each owner or operator shall discharge no visible emissions during the collection, processing, packaging, or transporting of asbestos-containing waste material. Subparagraph (5) provides an exclusion for Category I and II nonfriable ACM. NH DES regulates both Category I and Category II nonfriable ACM in demolitions, and therefore did not adopt the provisions of 40 CFR 61.150(a). See Env-A 1805.10(a) and 1805.08. Similarly, NH DES did not adopt 40 CFR 61.150(b)(3). Paragraph 61.150(b) provides that all asbestos-containing waste material shall be deposited as soon as is practical by the waste generator at an approved site. Subparagraph 61.150(b)(3) excludes Category I nonfriable ACM that is not RACM. Again, NH DES has chosen to regulate this material. Because the amended Asbestos Management and Control Rule regulates a greater range of asbestos activity than the federal NESHAP, it contains applicability criteria that are no less stringent than the federal rule. See 40 CFR 63.93(b)(1).

    NH DES did not adopt 40 CFR 61.151 with respect to disposal sites not operated after July 9, 1981. This is a special case covered by New Hampshire's waste management regulation Env-Sw 2100, which EPA has already approved in a separate action. See 78 FR 2333.

    Finally, NH DES did not adopt 40 CFR 61.154(c). This section includes the standard for active waste disposal sites. Paragraph (c) provides an alternative to the “no visible emissions” standard of 40 CFR 61.154(a), but New Hampshire's rule is no less stringent than the federal rule in that it does not allow this alternative approach. See 40 CFR 63.93(b)(2).

    In amending Env-A 1800, NH DES made some changes to Env-A 1800, editorial in nature, intended to clarify the Asbestos Management and Control Rule. NH DES also made other, material changes, which we discuss below.

    In NH's amended Asbestos Management and Control Rule, NH added section Env-A 1801.05 which reads as follows: “Federal Definitions Incorporated. Terms used in this chapter that are defined in 40 CFR 61.141 shall be as reprinted in Appendix D, except for the following: (a) Asbestos; (b) Facility; (c) Regulated Asbestos-Containing Material (RACM); and (d) Remove.” These terms are defined in the amended Asbestos Management and Control Rule in either Env-A 1802 or Appendix C and include minor differences from the Asbestos NESHAP. As discussed in greater detail below, the EPA has determined that for each of the four terms NH did not incorporate, NH's regulation includes terms and requirements that are either equivalent to the terms in the Asbestos NESHAP or result in applicability criteria that are no less stringent than those in the NESHAP. See 40 CFR 63.93(b)(1).

    Under 40 CFR 61.141, “Asbestos” is defined to mean “the asbestiform varieties of serpentinite (chrysotile), riebeckite (crocidolite), cummingtonite-grunerite, anthophyllite, and actinolite-tremolite”. In Appendix C of the State rule, NH defines “Asbestos” to mean “amosite, chrysotile, crocidolite, or asbestiform tremolite, actinolite, or anthophylite.” The mineral series cummingtonite-grunerite is also referred to as amosite. Therefore, EPA has determined NH's definition of asbestos is equivalent to the federal definition.

    NH's definition of “Facility,” unlike the federal definition, does not explicitly exclude residential buildings having four or fewer dwelling units. See Env-A 1802.27. In addition, NH explicitly includes utility infrastructure in the definition of “Facility,” and includes a definition for “utility infrastructure” whereas the federal rule regulates utility infrastructures but the federal definition does not include an explicit reference to utility infrastructures. The federal definition of Facility, as found in the Asbestos NESHAP at 40 CFR 61.141, specifies that for purposes of this definition, any building, structure, or installation that contains a loft used as a dwelling is not considered a residential structure, installation, or building. NH did not incorporate this language because NH's rule applies to all residential buildings including residential buildings with fewer than four dwellings. The federal definition also specifies any structure, installation or building that was previously subject to this subpart is not excluded, regardless of its current use or function. NH includes this requirement in section Env-A 1801.02(d), rather than in the definition of Facility. Thus, EPA finds that these aspects of the NH rule result in applicability criteria no less stringent than the applicable NESHAP requirements. See 40 CFR 61.93(b)(1).

    Under the Asbestos NESHAP, “Regulated asbestos-containing material (RACM)” is defined in 40 CFR 61.141 to mean “(a) Friable asbestos material, (b) Category I nonfriable ACM that has become friable, (c) Category I nonfriable ACM that will be or has been subjected to sanding, grinding, cutting, or abrading, or (d) Category II nonfriable ACM that has a high probability of becoming or has become crumbled, pulverized, or reduced to powder by the forces expected to act on the material in the course of demolition or renovation operations regulated by this subpart.” NH's definition of RACM is nearly identical to the federal definition, except that NH uses the term “sawing” instead of “cutting” and NH's definition uses the phrase “will likely become” rather than “has a high probability of becoming.” NH's rule incorporates the federal Asbestos NESHAP definition of cutting at 40 CFR 61.141 which means “to penetrate with a sharp-edged instrument and includes sawing, but does not include shearing, slicing, or punching.” In addition, NH's rule requires all ACM be removed prior to demolition, requires all ACM during renovation to be adequately wetted before removal and maintained wet during removal, and requires transport and disposal as specified in 40 CFR 61.150 of all ACM, whether RACM or not. See Env-A 1805.10(a), 1805.07, and 1805.08(c). Because sawing is referenced in the incorporated Asbestos NESHAP definition of cutting, and because NH's rule regulates all ACM, rather than RACM, during renovation, demolition and disposal, EPA finds this aspect of the NH rule to be no less stringent than the Asbestos NESHAP.

    “Remove” is defined in 40 CFR 61.141 to mean “to take out RACM or facility components that contain or are covered with RACM from any facility.” NH's rule includes a definition for “Removal,” rather than “Remove.” Under the NH rule, “Removal” means “the stripping of any RACM from surfaces or components within or at a facility.” See Env-A 1802.42. The Asbestos NESHAP and the amended NH Asbestos Management and Control Regulation both use the term “Removal” as well as “Remove” in the regulatory text. NH's definition of “Removal” is similar to the Asbestos NESHAP definition of “Remove”. In addition to incorporating the federal requirements for removing RACM during renovation and demolition, NH's rule includes work practice standards for asbestos removal procedures which require all ACM to be adequately wetted before and during removal, and placed in leak-tight containers for disposal. See Env-A 1805.07. NH's rule also includes ACM disposal procedures which require the owner or operator to remove all packaged ACM, whether RACM or not, from the worksite. See Env-A 1805.08. EPA finds that because NH's regulatory text requires all ACM, i.e., not just RACM, to be placed into leak-tight containers and removed from the worksite, this aspect of NH's rule is no less stringent than the Asbestos NESHAP. Therefore, the EPA has determined that for each of the four terms NH did not incorporate, NH's regulation includes terms and requirements that are either equivalent to the terms in the Asbestos NESHAP, or result in applicability criteria that are no less stringent than those in the NESHAP. See 40 CFR 63.93(b)(1).

    In the amended Asbestos Management and Control Rule, NH added section Env-A 1806 Alternative Requirements for Specific ACM which provides certain alternatives for asbestos abatement activities on vinyl asbestos floor tile, asbestos floor sheeting, asbestos roofing materials, asbestos siding and other preformed cementitious asbestos materials. Sections Env-A 1806.02, 1806.03(a), and 1806.04 provide alternatives to ACM that is not sanded, sawed, cut, drilled or otherwise treated to create a fine dust or particles. These alternatives do not apply to RACM so the NESHAP does not regulate these activities. Thus, the NH rule regulates a greater range of asbestos activity than the federal NESHAP, and contains applicability criteria and levels of control that are no less stringent than those in the federal rule. See 40 CFR 63.93(b)(1) and 63.93(b)(2). Env-A 1806.03(b) does include alternatives for asbestos containing roofing materials that are cut and therefore become RACM which is regulated by the NESHAP. Under the NESHAP, appendix A section III(A) 3.A.3, the EPA considers a roof removal project to be in compliance with the “adequately wet” and “discharge no visible emission” requirements of the NESHAP if the roof cutter is equipped with a blade guard that completely encloses the blade and water application is used at the roof surface during the cutting of the roof. Env-A 1806.03(b) permits (in lieu of otherwise applicable requirements at Env-A 1805.04, 1805.05, and 1805.09) a HEPA-filtered tool be used to prevent generation of visible emissions, together with water application at the point of abrasion with an airless sprayer and in sufficient volume so that no visible emissions result from the operation other than water spray. NH's work practice requires “no visible emissions” and does not exclude the requirements for ACM to be “adequately wet,” as the NESHAP work practice allows. See Env-A 1805.07 and Env-A 1806.04(b). The EPA has determined the requirements in Env-A 1806.03(b) are equivalent to the NESHAP and would result in emissions reductions from each affected source that are no less stringent than would result from the NESHAP. See 40 CFR 63.93(b)(2).

    In addition to the changes described above, in the amended Asbestos Management and Control Rule, NH made the following changes. As an editorial change, NH moved its statutory definitions to Appendix C and moved the federal definitions incorporated to Appendix D. In addition, under Env-A 1805.08 Asbestos Disposal Procedures, NH added a requirement for packaged ACM to be removed from the worksite as soon as practicable, but in no event longer than 30 days following completion of the abatement work. The Asbestos NESHAP requires all asbestos containing waste material to be deposited as soon as practicable but does not specify a timeframe not to be exceeded. See 40 CFR 61.150(b). The EPA finds NH's requirement to be no less stringent than the compliance time frame established in the NESHAP. See 40 CFR 63.93(b)(3). The EPA has determined that these aspects of the State rule are no less stringent than the Asbestos NESHAP requirements.

    In addition to incorporating the federal rule compliance monitoring requirements by reference, NH's rule specifies that the chapter applies to provisions for inspection, compliance monitoring, and enforcement by the department. See Env-A 1801.02(f) and 40 CFR 63.93(b)(4). In other aspects, the State rule imposes additional State requirements in addition to the federal requirements. A detailed comparison of the NH additional rule requirements and the federal requirements is available in NH's equivalency demonstration table available in the public docket. Because these State requirements simply add onto the federal requirements, they inherently are no less stringent than their federal counterparts. See 40 CFR 63.93(b)(2).

    V. What is EPA's evaluation regarding NH's amended Asbestos Management and Control Rule?

    After reviewing the request for approval of NH DES's amended Asbestos Management and Control rule, the EPA has determined that this request meets all of the requirements necessary to qualify for a rule substitution approval under CAA section 112(l) and 40 CFR 63.91 and 63.93. Specifically, the EPA has preliminarily determined that NH DES's amended Asbestos Management and Control Rule is equivalent to or not less stringent than the Asbestos NESHAP as required by each of the criteria set forth in 40 CFR 63.93(b)(1)-(3), and satisfies the compliance and enforcement requirements in 40 CFR 63.93(b)(4), as the State rule applies to all sources in New Hampshire, except for inactive waste disposal sites not operated after July 9, 1981. Therefore, the EPA hereby proposes to approve NH DES's amended Asbestos Management and Control Rule, effective as of May 5, 2017, in lieu of the Asbestos NESHAP, for all sources in New Hampshire except for inactive waste disposal sites not operated after July 9, 1981.

    VI. Proposed Action

    The EPA is proposing to approve NH DES's amended rules in Env-A 1800, “Asbestos Management and Control,” effective as of May 5, 2017, Sections 1801-1807, Appendices B, C, and D (excluding the following provisions: 1801.02(e), 801.07, 1802.02, 1802.04, 1802.07-1802.09, 1802.13, 1802.15-1802.17, 1802.25, 1802.31, 1802.37, 1802.40, 1802.44, and 1803.05-1803.09) as a rule substitution for the Asbestos NESHAP, for all sources in New Hampshire except for inactive waste disposal sites not operating after July 9, 1981.

    VII. Incorporation by Reference

    In this rulemaking, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference New Hampshire's Env-A 1800, “Asbestos Management and Control,” effective as of May 5, 2017, Sections 1801-1807, Appendices B, C, and D; excluding the following provisions: 1801.02(e), 1801.07, 1802.02, 1802.04, 1802.07-1802.09, 1802.13, 1802.15-1802.17, 1802.25, 1802.31, 1802.37, 1802.40, 1802.44, and 1803.05-1803.09. The EPA is also proposing to incorporate by reference a letter from Clark B. Freise, Assistant Commissioner, Department of Environmental Services, State of New Hampshire, to David J. Alukonis, Interim Director, Office of Legislative Services, dated June 23, 2017, certifying that the copy of the rule enclosed with the letter, Env-A 1800, is the official version of this rule. The EPA has made, and will continue to make, these documents generally available electronically through https://www.regulations.gov and/or in hard copy at the appropriate EPA office.

    VIII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator has the authority to approve section 112(l) submissions that comply with the provisions of the Act and applicable Federal regulations. In reviewing section 112(l) submissions, EPA's role is to approve state choices, provided that they meet the criteria and objectives of the CAA and of EPA's implementing regulations. Accordingly, this action merely proposes to approve the State's request as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

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

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

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

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

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

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

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

    In addition, this rulemaking is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA. It also does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). And it does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the EPA is not proposing to approve the submitted rule to apply in Indian country located in the State, and because the submitted rule will not impose substantial direct costs on Tribal governments or preempt Tribal law.

    List of Subjects in 40 CFR Parts 61 and 63

    Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Incorporation by reference, Intergovernmental relations, Reporting and record keeping requirements.

    Dated: March 15, 2018. Alexandra Dapolito Dunn, Regional Administrator, EPA Region 1.
    [FR Doc. 2018-06005 Filed 3-23-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF VETERANS AFFAIRS [8320-01] 48 CFR Parts 801, 811, 832, 852, and 870 RIN 2900-AP81 Revise and Streamline VA Acquisition Regulation—Parts 811 and 832 AGENCY:

    Department of Veterans Affairs.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Department of Veterans Affairs (VA) is proposing to amend and update its VA Acquisition Regulation (VAAR) in phased increments to revise or remove any policy superseded by changes in the Federal Acquisition Regulation (FAR), to remove any procedural guidance internal to VA into the VA Acquisition Manual (VAAM), and to incorporate any new agency specific regulations or policies. These changes seek to streamline and align the VAAR with the FAR and remove outdated and duplicative requirements and reduce burden on contractors. The VAAM incorporates portions of the removed VAAR as well as other internal agency acquisition policy. VA will rewrite certain parts of the VAAR and VAAM, and as VAAR parts are rewritten, we'll publish them in the Federal Register. VA will combine related topics, as appropriate. In particular, this rulemaking revises VAAR Parts 811—Describing Agency Needs and Part 832—Contract Financing, as well as affected parts 801—Department of Veterans Affairs Acquisition Regulation System, 852—Solicitation Provisions and Contract Clauses, and 870—Special Procurement Controls.

    DATES:

    Comments must be received on or before May 25, 2018 to be considered in the formulation of the final rule.

    ADDRESSES:

    Written comments may be submitted through www.Regulations.gov; by mail or hand-delivery to Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue NW, Room 1063B, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AP81—Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-V004—parts 811, 832).” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. (This is not a toll-free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Ricky Clark, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW, Washington DC 20001, (202) 697-3565. (This is not a toll-free telephone number.)

    SUPPLEMENTARY INFORMATION: Background

    This rulemaking is issued under the authority of the Office of Federal Procurement Policy (OFPP) Act which provides the authority for an agency head to issue agency acquisition regulations that implement or supplement the FAR.

    VA is proposing to revise the VAAR to add new policy or regulatory requirements and to remove any redundant guidance and guidance that is applicable only to VA's internal operating processes or procedures. Codified acquisition regulations may be amended and revised only through rulemaking. All amendments, revisions, and removals have been reviewed and concurred with by VA's Integrated Product Team of agency stakeholders.

    The VAAR uses the regulatory structure and arrangement of the FAR and headings and subject areas are broken up consistent with the FAR content. The VAAR is divided into subchapters, parts (each of which covers a separate aspect of acquisition), subparts, sections, and subsections.

    The Office of Federal Procurement Policy Act, as codified in 41 U.S.C. 1707, provides the authority for the Federal Acquisition Regulation and for the issuance of agency acquisition regulations consistent with the FAR.

    When Federal agencies acquire supplies and services using appropriated funds, the purchase is governed by the FAR, set forth at Title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through 53, and the agency regulations that implement and supplement the FAR. The VAAR is set forth at Title 48 CFR, chapter 8, parts 801 to 873.

    Discussion and Analysis

    The VA proposes to make the following changes to the VAAR in this phase of its revision and streamlining initiative. For procedural guidance cited below that is proposed to be deleted from the VAAR, each section cited for removal has been considered for inclusion in VA's internal agency operating procedures in accordance with FAR 1.301(a)(2). Similarly, delegations of authority that are removed from the VAAR will be included in the VA Acquisition Manual (VAAM) as internal agency guidance.

    VAAR Part 801—Department of Veterans Affairs Acquisition Regulation System

    We propose to amend the authority for part 801 to remove the citation of 38 U.S.C. 501, and to add 41 U.S.C. 1121, 41 U.S.C. 1303, an updated positive law codification of, to reflect additional authority of the VA as an executive agency to issue regulations that are essential to implement Governmentwide policies and procedures in the agency, as well as to issue additional policies and procedures required to satisfy the specific needs of the VA; and 41 U.S.C. 1702, which addresses overall direction of procurement policy, acquisition planning and management responsibilities of VA's Chief Acquisition Officer.

    This proposed rule contains existing information collection requirements. The proposed rule would result in multiple actions affecting these information collections, including outright removal of the information collection and redesignating the information collection burden associated with several clauses or provisions by renumbering the clause or provision. We propose to revise certain clause or provision numbers in VAAR part 801 only when removing the actual information collection and its associated burden, or when redesignating and renumbering the clause or provision under the associated Office of Management and Budget (OMB) approval number.

    In section 801.106, OMB approval under the Paperwork Reduction Act, we propose to amend section 801.106 table columns titled “48 CFR part or section where identified and described,” and “Current OMB control number.” We propose to remove the reference to section 832.006-4 and the associated OMB control number 2900-0688. This information collection burden under the associated OMB control number was previously removed via a published Notice of Office of Management and Budget Action dated March 2, 2015, Information Collection Reference (ICR) 201406-2900-017, which approved the removal of the information collection and a reduction of the associated burden under OMB approval number 2900-0688. Therefore, it is proposed for removal from this table. Information collection is approved at the FAR level under FAR OMB approval number 9000-0138, making it unnecessary for a separate information collection approval in the VAAR.

    In section 801.106, OMB approval under the Paperwork Reduction Act, we propose to amend section 801.106 table columns titled “48 CFR part or section where identified and described,” and “Current OMB control number.” We propose to remove the reference to subsection 852.211-71, Special Notice, and discontinue the corresponding OMB control number 2900-0588, as the provision conflicts with FAR 52.214-21. It currently requires literature to be provided after award and thus conflicts with the FAR and the Government's procedures for evaluating relevant materials during source selection and prior to award decisions.

    In section 801.106, in reference to the table described, we propose to remove the reference to subsection 852.211-73, Brand Name or Equal, and discontinue the corresponding OMB control number 2900-0585, as the topical area the clause covers, “brand name or equal,” or “items peculiar to one manufacturer,” has sufficient coverage in FAR 11.105 and the associated provision in FAR 52.211-6, Brand Name or Equal.

    In section 801.106, in reference to the table described, we propose to remove the reference to section 852.236-82, Payments under fixed-price construction contracts (without NAS), and remove the reference to section 852.236-83, Payments under fixed-price construction contracts (including NAS). Both of these clauses, pertaining to “payments under fixed-price construction,” have been renumbered to reflect their prescription under Part 832. The associated OMB control number 2900-0422 will now reflect information collections under the new clause numbers—852.232-70 and 852.232-71 as described in further detail under the Paperwork Reduction Act section of this preamble, although these are not new collections.

    Subchapter B—Competition and Acquisition Planning

    We propose to revise the title of Subchapter B to conform to the title in the Federal Acquisition Regulation, 48 CFR, chapter 1, “Acquisition Planning.”

    VAAR Part 811—Describing Agency Needs

    We propose to revise the Table of Contents to reflect the revision of subparts 811.1 and 811.2, and the deletion of subparts 811.4, 811.5, and 811.6.

    We propose to revise the part 811 authorities to add 41 U.S.C. 1702, which addresses overall direction of procurement policy, acquisition planning and management responsibilities of VA's Chief Acquisition Officer, and 41 U.S.C. 1303, an updated positive law codification to reflect additional authority of the VA as an executive agency to issue regulations that are essential to implement Governmentwide policies and procedures in the agency, as well as to issue additional policies and procedures required to satisfy the specific needs of the VA.

    We propose to remove section 811.001, Definitions, because the coverage in FAR 11.104 provides adequate coverage of what brand name or equal purchase descriptions must include. The VAAR had merely paraphrased the same information. In accordance with FAR drafting standards and the requirement in FAR 1.304(b)(1) that agency acquisition regulations shall not unnecessarily repeat, paraphrase, or otherwise restate material contained in the FAR, this section is therefore proposed for removal.

    In subpart 811.1, Selecting and Developing Requirements Documents, we propose to remove section 811.103, Market acceptance, and the underlying subsection 811.103-70, Technical industry standards. We propose to revise the prescription to clause 852.211-72, Technical industry standards, for clarity and simplification of the language, and to move the prescription of the clause to 811.204-70 to comport with the FAR structure, as technical industry standards are not related to coverage in FAR 11.103, but would fall under FAR 11.204.

    We propose to remove the section title at 811.104, Use of Brand Name or Equal purchase descriptions, and subsection at 811.104-70, Brand name or equal purchase descriptions, because FAR 11.104, provides adequate coverage of what brand name or equal purchase descriptions must include.

    We propose to remove subsections 811.104-71, Purchase description clauses, and 811.104-72, Limited application of brand name or equal, because the subject is adequately covered in FAR clause 52.211-6, Brand name or equal.

    We propose to remove subsection 811.104-73, Bid samples, as coverage is adequate in FAR 14.202-4, and clause 52.214-20.

    We propose to remove subsection 811.104-74, Bid evaluation and award, since it duplicates coverage in FAR clause 52.211-6.

    We propose to remove subsection 811.104-75, Procedure for negotiated procurements, since there is no need to have separate policy and procedures for negotiated and sealed bid solicitations. FAR covers “brand name or equal” without a distinction between sealed bid and negotiated solicitations.

    We propose to remove 811.105, Items peculiar to one manufacturer, since the subject is adequately covered in FAR 11.105.

    In subpart 811.1, section 811.107, Contract clauses, we propose to amend the number and title of the existing section to read as 811.107-70, Contract clause, to better reflect its placement in accordance with FAR numbering conventions. It fits intelligibly as a supplement to FAR 11.107, Solicitation provision, but the VAAR is supplementing with a clause in this area and not a provision, necessitating the more accurate title. Subsection 811.107-70 prescribes a new clause 852.211-70, Equipment Operation and Maintenance Manuals, which replaces the existing clause 852.211-70, Service data manuals.

    In subpart 811.2, Using and Maintaining Requirements Documents, we propose to remove section 811.202, Maintenance of standardization documents, as it is procedural in nature and will be moved to the VAAM.

    Under subpart 811.2, we propose to revise and renumber section 811.204, Contract clause, to subsection 811.204-70, Contract clause, which contains text prescribing clause 852.211-72, Technical industry standards. The prescription for 852.211-72 was moved from 811.103-70 to better comport with FAR structure numbering and arrangement.

    We propose to remove subparts 811.4, Delivery or Performance Schedules, and 811.5, Liquidated Damages, as the policy is redundant to FAR guidance.

    We propose to remove subpart 811.6, Priorities and Allocations, as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)) and which will be moved to the VAAM.

    VAAR Part 832—Contract Financing

    We propose to revise the Table of Contents to reflect the revision of subparts 832.1, 832.2, 832.9 and 832.70, and the deletion of subparts 832.5, 832.8, and 832.11.

    We propose to revise the part 832 authorities to add 41 U.S.C. 1702, which addresses overall direction of procurement policy, acquisition planning and management responsibilities of VA's Chief Acquisition Officer; and 41 U.S.C. 1303, to include an updated positive law codification.

    We propose to add section 832.001, Definitions. This section would add three definitions of terms relating to electronic invoicing. We propose to amend subsection 832.006-1, General, to spell out the title of Senior Procurement Executive (SPE) and to delete the last sentence as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)) and which will be moved to the VAAM.

    We propose to remove subsection 832.006-2, Definitions, which only included one definition for the Remedy Coordination Official (RCO). This information would be added in subsection 832.006-4 and would make the need for a separate definition repeating the same thing unnecessary.

    We propose to remove subsection 832.006-3, Responsibilities, as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of VA (see FAR 1.301(b)) and which will be moved to the VAAM.

    We propose to amend subsection 832.006-4, Procedures, to update the existing VA agency procedures and to delete paragraphs (a) and (c) as internal operating procedures of VA not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)) and which will be moved to the VAAM. We propose to add new paragraphs (b), (e), and (g) to implement FAR required agency procedures which describes notifying contractors, the contractor's right to provide information on its behalf concerning a finding of fraud in payment requests, the time period to provide the information to the Government and that the Senior Procurement Executive (SPE) will provide a copy of each final determination and supporting documentation to the contractor, the RCO, the Contracting Officer, and the VA Office of Inspector General (OIG).

    In subpart 832.1, Non-Commercial Item Purchase Financing, we propose to amend section 832.111, Contract clauses for non-commercial purchases, to renumber the section as subsection 832.111-70, retitle it as “VA contract clauses for non-commercial purchases,” and to reconfigure the paragraphs to conform more closely to FAR prescription language for clauses and provisions. Also, the clauses were renumbered to reflect that they are prescribed in part 832 and not 836 as they were previously numbered, and the clauses were retitled for clarification.

    In subpart 832.2, Commercial Item Purchase Financing, we propose to remove section 832.201, Statutory authority, and move internal procedural guidance not having a significant effect beyond the internal operating procedures of VA (see FAR 1.301(b)) and which will be moved to the VAAM. It contains a delegation of authority for Contracting Officers to make determinations regarding terms and conditions for payment for commercial items and whether they are appropriate, customary, and in the best interest of the Government.

    We propose to amend subsection 832.202-1, Policy, to make the paragraph comport with the corresponding FAR coverage, to reflect that Heads of Contracting Activities (HCAs) shall report no later than December 31 of each calendar year, to the Senior Procurement Executive (SPE) and Deputy Senior Procurement Executive (DSPE), on the number of contracts for commercial items with unusual contract financing, commercial interim or advance payments that were approved for the previous fiscal year (1 October 20XX-30 September 20XX). This would stipulate what is to be included in the report, the amount of such unusual contracting financing, commercial interim or advance payments that were approved, and the kind and amount of security obtained by the contractor for the advance.

    We propose to amend subsection 832.202-4, Security for Government financing, to make the paragraphs comport with the corresponding FAR coverage, and to delete the mention of a Dun and Bradstreet report.

    In subpart 832.4, Advance Payments for Non-Commercial Items, we propose to amend 832.402, General, to provide updated and revised VA procedures on who in the VA is delegated authority to make the determination described at FAR 32.402(c)(1)(iii) and to approve contract terms concerning advance payments. This is delegated to the Head of the Contracting Activity (HCA). Typically VA delegations are contained in the VAAM but here, where it may impact the use and approval of unique financing arrangements that contractors may need to be aware of, the delegation is being retained in the VAAR.

    We propose to amend section 832.404, Exclusions, to renumber the paragraphs so it better comports with the FAR coverage and to clarify language and the citation of the authorities listed. We include information regarding the applicability of 31 U.S.C. 3324(d)(2), which allows VA to issue advance payment for subscriptions or other charges for newspapers, magazines, periodicals, and other publications for official use. In addition, the statutory authority is included in section 832.404 for 31 U.S.C. 1535, and permits the VA to issue advance payment for services and supplies obtained from another Government agency. Further, language is added that includes that as permitted by 5 U.S.C. 4109, VA is permitted to issue advance payment for all or any part of the necessary expenses for training Government employees, including obtaining professional credentials under 5 U.S.C. 5757, in Government or non-Government facilities, including the purchase or rental of books, materials, and supplies or services directly related to the training of a Government employee.

    We propose to remove subparts 832.5, Progress Payments Based on Costs and 832.8, Assignment of Claims, as both contain internal procedural guidance not having a significant effect beyond the internal operating procedures of VA (see FAR 1.301(b)) and which will be moved to the VAAM.

    In subpart 832.9, Prompt Payment, we propose to revise section 832.904, Determining payment due dates, to remove the text, but retain the title in the VAAR as it is related to a new proposed subsection that will fall underneath it. The procedures in the text will be moved to the VAAM as internal operational procedures of the VA.

    We propose to add subsection 832.904-70 to implement OMB Memorandum M-11-32, dated September 14, 2011, and to encourage making payments to small business contractors within 15 days of receipt of invoice.

    We propose to remove subpart 832.11, Electronic Funds Transfer, and section 832.1106, EFT mechanisms, as they contain internal procedural guidance not having a significant effect beyond the internal operating procedures of VA (see FAR 1.301(b)) and which will be moved to the VAAM.

    In subpart 832.70, Electronic Invoicing Requirements, we propose to amend section 832.7000, General, to reflect that the subpart contains policy requirements rather than procedures.

    We propose to remove section 832.7001, Definitions, since two of the definitions are provided in the FAR and the other relevant definitions have been moved to section 832.001, Definitions, which covers the entire part. We propose to revise the title to reflect “Electronic payment requests,” and to reflect text now in section 832.7002.

    We propose to remove section 832.7002, Electronic payment requests, as the content has been moved to 832.7001.

    We propose to amend subsection 832.7002-1, Data transmission, to renumber and redesignate it as subsection 832.7001-1; to remove the website address from paragraph (a); to require the address to be provided in the contract; and to delete from paragraph (b) a website which may in time become obsolete.

    We propose to amend subsection 832.7002-2, Contract clause, to renumber and redesignate it as subsection 832.7001-2. We also propose to add a stipulation to the prescription that the clause does not apply to contracts paid with the Governmentwide commercial purchase card.

    VAAR Part 852—Solicitation Provisions and Contract Clauses

    In part 852, we propose to amend the authority by adding 41 U.S.C. 1303 to include an updated positive law codification, to reflect additional authority of the VA as an executive agency to issue regulations that are essential to implement Governmentwide policies and procedures in the agency, as well as to issue additional policies and procedures required to satisfy the specific needs of the VA.

    We propose to amend section 852.211-70, Service data manuals, and to revise the title to read, “Equipment Operation and Maintenance Manuals.” This requires Contracting Officers to insert this revised clause in solicitations for technical medical equipment and devices, and/or other technical and mechanical equipment where the requiring activity determines manuals are a necessary requirement for operation and maintenance of the equipment. It removes the prior extensive detailed list of specific information that would need to be developed and instead relies on existing commercial industry practices to provide already developed commercial manuals.

    We propose to remove subsection 852.211-71, Special Notice, as it is redundant to guidance contained in the FAR.

    We propose to amend subsection 852.211-72, Technical industry standards, to more clearly set forth the requirements that the contractor shall conform to the standards reflected in the clause. It also requires the contractor to submit proof of conformance to the standard, how to obtain the standards and requires the offeror to contact the Contracting Officer if a response is not received within two weeks of the offeror's request.

    We propose to remove subsections 852.211-73, Brand Name or Equal; 852.211-74, Liquidated Damages; and 852.211-75, Product Specifications, as they are all redundant to guidance contained in the FAR.

    Also in part 852, we propose to add clause 852.232-70, Payments under fixed-price construction contracts (without NAS-CPM). This clause was formerly 852.236-82, Payments under fixed-price construction contracts (without NAS). This clause is revised to renumber it to 852.232-70 to reflect its prescription under part 832, and to revise the title of the “NAS” to “NAS-CPM,” to clarify the list of conditions in paragraph (c) for allowing progress payments for stored supplies and equipment, and to add a new paragraph (f) requiring notice to the contractor if retainage is to be made on a progress payment.

    We propose to add clause 852.232-71, Payments under fixed-price construction contracts (including NAS-CPM). This clause was formerly 852.236-83, Payments under fixed-price construction contracts (including NAS). This clause is revised to renumber it as 852.232-71 to agree with its prescription in Part 832, to revise the title of the “NAS” to “NAS-CPM,” and to clarify the list of conditions in paragraph (c) for allowing progress payments for stored supplies and equipment, and to add a new paragraph (f) requiring notice to the contractor if retainage is to be made on a progress payment.

    We propose to amend clause 852.232-72, Electronic Submission of Payment Requests, to revise the definition of “designated agency office,” and to delete a website address and system specifications.

    We propose to delete the clauses 852.236-82, Payments Under Fixed-Price Construction Contracts (without NAS), and 852.236-83, Payments Under Fixed-Price Construction Contracts (including NAS) as they have been renumbered to comport with FAR arrangements and more properly belong in VAAR part 832 as noted above.

    VAAR Part 870—Special Procurement Controls

    We propose to remove section 870.112, Telecommunications equipment, as it contains the prescription and requirement for review of descriptive literature required by the clause 852.211-71, Special notice, which is proposed for removal as noted elsewhere in the preamble.

    We propose to remove section 870.113, Paid use of conference facilities, as it contains internal procedural guidance not having a significant effect beyond the internal operating procedures of VA (see FAR 1.301(b)) and which will be moved to the VAAM.

    Effect of Rulemaking

    Title 48, Federal Acquisition Regulations System, Chapter 8, Department of Veterans Affairs, of the Code of Federal Regulations, as proposed to be revised by this rulemaking, would represent VA's implementation of its legal authority and publication of the Department of Veterans Affairs Acquisition Regulation (VAAR) for the cited applicable parts. Other than future amendments to this rule or governing statutes for the cited applicable parts, or as otherwise authorized by approved deviations or waivers in accordance with Federal Acquisition Regulation (FAR) subpart 1.4, Deviations from the FAR, and as implemented by VAAR subpart 801.4, Deviations from the FAR or VAAR, no contrary guidance or procedures would be authorized. All existing or subsequent VA guidance would be read to conform with the rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking as pertains to the cited applicable VAAR parts.

    Executive Order 12866, 13563 and 13771

    Executive Orders (E.O.) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 12866, Regulatory Planning and Review defines “significant regulatory action” to mean any regulatory action that is likely to result in a rule that may: “(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, 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 set forth in this Executive order.”

    VA has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action, and it has been determined this rule is not a significant regulatory action under E.O. 12866.

    VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm by following the link for VA Regulations Published from FY 2004 Through Fiscal Year to Date. This proposed rule is expected to be an E.O. 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in the rule's economic analysis.

    Paperwork Reduction Act (PRA)

    This proposed rule impacts seven existing information collection requirements associated with six Office of Management and Budget (OMB) control number approvals. The proposed actions in this rule result in multiple actions affecting some of these information collections, such as: the proposed outright removal of the information collection; no change in information collection burdens although titles and numbers may be changed or the clauses moved to other parts of the VAAR; a reduction in existing information collection burdens; and the proposed redesignation of the existing approved OMB collection numbers and the associated burden as a result of two clauses we propose to both retitle and renumber.

    The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi).

    This proposed rule would impose the following amended information collection requirements to two of the six existing information collection approval numbers associated with this proposed rule. Although this action contains provisions constituting collections of information at 48 CFR 852.236-82 and 852.236-83, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), no new proposed collections of information are associated with these clauses. The information collection requirements for 48 CFR 852.236-82 and 852.236-83 are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control number 2900-0422. However, this information collection has been submitted to OMB to revise the title and to redesignate and renumber the two clauses currently numbered as sections 852.236-82, Payments Under Fixed-Price Construction Contracts (without NAS), and 852.236-83, Payments Under Fixed-Price Construction Contracts (including NAS). Accordingly, if approved, they would reflect the new designation and revised titles as set forth in the preamble and the amendatory language of this proposed rule to read: 852.232-70, Payments Under Fixed-Price Construction Contracts (without NAS-CPM), and 852.232-71, Payments Under Fixed-Price Construction Contracts (including NAS-CPM), respectively, under the associated OMB control number 2900-0422. The references to the old numbers—852.236-82 and 852.236-83, would accordingly be removed. There is no change in the information collection burden that is associated with this proposed request. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted these information collection amendments to OMB for its review. Notice of OMB approval for this information collection will be published in a future Federal Register document.

    This proposed rule would impose the following amended information collection requirements to one of the six existing information collection approval numbers associated with this proposed rule. Although this action contains provisions constituting collections of information at 48 CFR 852.211-70, Service data manuals, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), no new proposed information collection is associated with this clause. The information collection requirement for 48 CFR 852.211-70 is currently approved by OMB and has been assigned OMB control number 2900-0587. However, this information collection has been submitted to OMB to revise the title from “Service Data Manuals,” to read, “Equipment Operation and Maintenance Manuals.” We propose to reflect the revised title as set forth in the preamble and the amendatory language of this proposed rule for this clause to read: 852.211-70, Equipment Operation and Maintenance Manuals, under the associated OMB control number 2900-0587. We propose to remove the reference in the existing OMB control number to the old title. There is also a reduction in the information collection burden that is associated with this proposed request. The previously approved estimated annual hourly burden is 621 hours. As a result of revising the clause and removing the requirement to develop Government-specified service manuals, the VA has eliminated an unnecessary burden on the public by making use of commercial operation and maintenance manuals just like the general public and established commercial practices, thereby reducing by half the estimated annual hourly burden which is now estimated at 311 hours, a reduction of 310 annual hours. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this information collection amendment to OMB for its review. Notice of OMB approval for this information collection will be published in a future Federal Register document.

    This proposed rule would remove two of the six existing information collection requirements associated with this action at 48 CFR 852.211-71, Special Notice, and 48 CFR 852.211-73, Brand Name or Equal. Under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), it discontinues the associated corresponding approved OMB control numbers, 2900-0588 and 2900-0585, respectively. As a result of this proposed rule, there is a removal in the information collection burden that is associated with the removal of these two information collection requirements. For 48 CFR 852.211-71, Special Notice, and its corresponding OMB control number 2900-0588, this results in a removal of 875 estimated annual burden hours. For 48 CFR 852.211-73, Brand Name or Equal, and its corresponding OMB control number 2900-0585, this results in a removal of 1,125 estimated annual burden hours. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this information collection amendment to OMB for its review. Notice of OMB approval for this information collection will be published in a future Federal Register document.

    This proposed rule also contains two other provisions constituting a collection of information at 48 CFR 852.211-72, Technical industry standards, and 48 CFR 832.202-4, Security for Government financing, which remain unchanged. Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised collection of information is associated with these provisions as a part of this proposed rule. The information collection requirements for 48 CFR 852.211-72 and 48 CFR 832.202-4 are currently approved by the OMB and have been assigned OMB control numbers 2900-0586 and 2900-0688, respectively. The burden of these information collections remains unchanged. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), the OMB has approved the reporting or recordkeeping provisions that are included in the clause and the text under section 832.202-4 cited above and has given the VA the following approval numbers: OMB 2900-0586 and OMB 2900-0688, respectively.

    Regulatory Flexibility Act

    This proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The overall impact of the proposed rule would be of benefit to small businesses owned by Veterans or service-disabled Veterans as the VAAR is being updated to remove extraneous procedural information that applies only to VA's internal operating procedures. VA is merely adding existing and current regulatory requirements to the VAAR and removing any guidance that is applicable only to VA's internal operation processes or procedures. VA estimates no cost impact to individual business would result from these rule updates. This rulemaking does not change VA's policy regarding small businesses, does not have an economic impact to individual businesses, and there are no increased or decreased costs to small business entities. On this basis, the proposed rule would not have an economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, under 5 U.S.C. 605(b), this regulatory action is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

    Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule 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. This proposed rule would have no such effect on State, local, and tribal Governments or on the private sector.

    List of Subjects 48 CFR Part 801

    Administrative practice and procedure, Government procurement, Reporting and recordkeeping requirements.

    48 CFR Part 811and 832

    Government procurement.

    48 CFR Part 852

    Government procurement, Reporting and recordkeeping requirements.

    48 CFR Part 870

    Asbestos, Frozen foods, Government procurement, Telecommunications.

    Signing Authority

    The Secretary of Veterans Affairs, or designee, 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. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on August 7, 2017, for publication.

    Dated: February 22, 2018. Consuela Benjamin, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs.

    For the reasons set out in the preamble, VA proposes to amend 48 CFR, chapter 8, parts 801, 811, 832, 852, and 870 as follows:

    PART 801—DEPARTMENT OF VETERANS AFFAIRS ACQUISITION REGULATION SYSTEM 1. The authority citation for part 801 is revised to read as follows: Authority:

    40 U.S.C. 121(c); 41 U.S.C. 1121; 41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR 1.301-1.304.

    Subpart 801.1—Purpose, Authority, Issuance 801.106 [Amended] 2. Amend the section 801.106 table columns titled “48 CFR part or section where identified and described” and “Current OMB control number” to— a. Remove the reference to section 832.006-4 and OMB Control Number 2900-0668. b. Remove the reference to section 852.211-71 and OMB Control Number 2900-0588. c. Remove the reference to section 852.211-73 and OMB Control Number 2900-0585. d. Remove “852.236-82 through”;. e. Add the reference to sections 852.232-70 and 852.232-71 and OMB control number 2900-0422 on the same line. SUBCHAPTER B—[Amended] 3. The title of subchapter B is revised to read as follows: SUBCHAPTER B—ACQUISITION PLANNING PART 811—DESCRIBING AGENCY NEEDS 4. The authority citation for part 811 is revised to read as follows: Authority:

    40 U.S.C. 121(c); 41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR 1.301-1.304.

    § 811.001 [Removed]
    5. Section 811.001 is removed. 6. Revise subpart 811.1 to read as follows: Subpart 811.1—Selecting and Developing Requirements Documents
    § 811.107-70 Contract clause.

    The Contracting Officer shall insert the clause at 852.211-70, Equipment Operation and Maintenance Manuals, in solicitations and contracts for technical medical, and other technical and mechanical equipment and devices where the requiring activity determines manuals are a necessary requirement for operation and maintenance of the equipment.

    7. Revise subpart 811.2 to read as follows: Subpart 811.2—Using and Maintaining Requirements Documents
    § 811.204-70 Contract clause.

    The Contracting Officer shall insert the clause at 852.211-72, Technical industry Standards, in solicitations and contracts requiring conformance to technical industry standards, federal specifications, standards and commercial item descriptions unless comparable coverage is included in the item specification.

    Subpart 811.4—[Removed and reserved]. 8. Subpart 811.4 is removed and reserved. Subpart 811.5— Removed and reserved] 9. Subpart 811.5 is removed and reserved. Subpart 811.6—[Removed and reserved] 10. Subpart 811.6 is removed and reserved. PART 832—CONTRACT FINANCING 11. The authority citation for part 832 is revised to read as follows: Authority:

    40 U.S.C. 121(c); 41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR 1.301-1.304.

    12. Section 832.001 is added to read as follows:
    § 832.001 Definitions.

    As used in this subpart:

    (a) Designated agency office means the office designated by the purchase order, agreement, or contract to first receive and review invoices. This office can be contractually designated as the receiving entity. This office may be different from the office issuing the payment.

    (b) Electronic form means an automated system transmitting information electronically according to the accepted electronic data transmission methods identified in 832.7002-1. Facsimile, email, and scanned documents are not acceptable electronic forms for submission of payment requests.

    (c) Payment request means any request for contract financing payment or invoice payment submitted by a contractor under a contract.

    13. Revise section 832.006-1 to read as follows:
    § 832.006-1 General.

    (b) The Senior Procurement Executive (SPE) is authorized to make determinations that there is substantial evidence that contractors' requests for advance, partial, or progress payments are based on fraud and may direct that further payments to the contractors be reduced or suspended, as provided in FAR 32.006.

    § 832.006-2 [Removed].
    § 832.006-3 [Removed].
    14. Remove sections 832.006-2 and 832.006-3. 15. Section 832.006-4 is revised to read as follows:
    § 832.006-4 Procedures.

    (b) The Remedy Coordination Official (RCO) for VA is the Deputy Senior Procurement Executive (DSPE) and shall carry out the responsibilities of the Secretary or designee in FAR 32.006-4(b). To determine whether substantial evidence exists that the request for payment under a contract is based on fraud.

    (e) The RCO shall carry out the responsibilities of the agency head in FAR 32.006-4(e) to notify the contractor of the reasons for the recommended action and of its right to submit information within a reasonable period of time in response to the proposed action under FAR 32.006.

    (1) The notice of proposed action will be sent to the last known address of the contractor, the contractor's counsel, or agent for service of process, by certified mail, return receipt requested, or any other method that provides signed evidence of receipt. In the case of a business, the notice of proposed action may be sent to any partner, principal, officer, director, owner or co-owner, or joint venture. The contractor will be afforded an opportunity to appear before the RCO to present information or argument in person or through a representative and may supplement the oral presentation with written information and argument.

    (2) The contractor may supplement the oral presentation with written information and argument. The proceedings will be conducted in an informal manner and without the requirement for a transcript. If the RCO does not receive a reply from the contractor within 30 calendar days, the RCO will base his or her recommendations on the information available. Any recommendation of the RCO under FAR 31.006-4(a) and paragraph (b) of this section, must address the results of this notification and the information, if any, provided by the contractor. After reviewing all the information, the RCO shall make a recommendation to the SPE whether or not substantial evidence of fraud exists.

    (g) In addition to following the procedures in FAR 32.006-4, the SPE shall provide a copy of each final determination and the supporting documentation to the contractor, the RCO, the Contracting Officer, and the OIG. The Contracting Officer will place a copy of the determination and the supporting documentation in the contract file.

    Subpart 832.1—Non-Commercial Item Purchase Financing 16. Section 832.111 is revised to read as follows:
    § 832.111-70 VA contract clauses for non-commercial purchases.

    (a)(1) Insert the clause at 852.232-70, Payments under fixed-price construction contracts (without NAS-CPM) in solicitations and contracts that contain the FAR clause at 52.232-5, Payments Under Fixed-Price Construction Contracts, and if the solicitation or contract does not require use of the “Network Analysis System—Critical Path Method (NAS-CPM).”

    (2) If the solicitation or contract includes guarantee period services, the Contracting Officer shall use the clause with its Alternate I.

    (b)(1) Insert the clause at 852.232-71, Payments under fixed-price construction contracts (including NAS-CPM), in solicitations and contracts that contain the FAR clause at 52.232-5, Payments Under Fixed-Price Construction Contracts, and if the solicitation or contract requires use of the “Network Analysis System—Critical Path Method (NAS-CPM).”

    (2) If the solicitation or contract includes guarantee period services, the Contracting Officer shall use the clause with its Alternate I.

    Subpart 832.2—Commercial Item Purchase Financing
    § 832.201 [Removed].
    17. Section 832.201 is removed. 18. Section 832.202-1 is revised to read as follows:
    § 832.202-1 Policy.

    (d) HCAs shall report, no later than December 31st of each calendar year, to the Senior Procurement Executive (SPE) and the DSPE, on the number of contracts for commercial items with unusual contract financing or with commercial interim or advance payments approved for the previous fiscal year. The report shall include the contract number and amount, the amount of the unusual contract financing or with commercial interim or advance payments approved, and the kind and amount of security obtained for the advance.

    19. Section 832.202-4 is revised to read as follows:
    § 832.202-4 Security for Government financing.

    (a)(2) An offeror's financial condition may be considered adequate security to protect the Government's interest when the Government provides contract financing. In assessing the offeror's financial condition, the Contracting Officer may obtain, to the extent required, the following information—

    (i) A current year interim balance sheet and income statement and balance sheets and income statements for the two preceding fiscal years. The statements should be prepared in accordance with generally accepted accounting principles and must be audited and certified by an independent public accountant or an appropriate officer of the firm;

    (ii) A cash flow forecast for the remainder of the contract term showing the planned origin and use of cash within the firm or branch performing the contract;

    (iii) Information on financing arrangements disclosing the availability of cash to finance contract performance, the contractor's exposure to financial risk, and credit arrangements;

    (iv) A statement of the status of all State, local, and Federal tax accounts, including any special mandatory contributions;

    (v) A description and explanation of the financial effects of any leases, deferred purchase arrangements, patent or royalty arrangements, insurance, planned capital expenditures, pending claims, contingent liabilities, and other financial aspects of the business; and

    (vi) Any other financial information deemed necessary.

    Subpart 832.4—Advance Payments for Non-Commercial Items 20. Section 832.402 is revised to read as follows:
    § 832.402 General.

    (c)(1)(iii) The authority to make the determination required by FAR 32.402(c)(1)(iii) and to approve contract terms is delegated to the head of the contracting activity (HCA). The request for approval shall include the information required by FAR 32.409-1 and shall address the standards for advance payment in FAR 32.402(c)(2). HCAs shall report, no later than December 31st of each calendar year, to the Senior Procurement Executive (SPE) and the DSPE, on number of contracts for non-commercial items with advance payments approved in the previous fiscal year. The report shall include the contract number and amount, the amount of the advance payment, and the kind and amount of security obtained for the advance.

    21. Amend section 832.404 by revising paragraph (b) to read as follows:
    § 832.404 Exclusions.

    (b)(1) As permitted by 31 U.S.C. 3324(d)(2), VA allows advance payment for subscriptions or other charges for newspapers, magazines, periodicals, and other publications for official use, notwithstanding the provisions of 31 U.S.C. 3324(a). The term “other publications” includes any publication printed, microfilmed, photocopied or magnetically or otherwise recorded for auditory or visual use.

    (2) As permitted by 31 U.S.C. 1535, VA allows advance payment for services and supplies obtained from another Government agency.

    (3) As permitted by 5 U.S.C. 4109, VA allows advance payment for all or any part of the necessary expenses for training Government employees, including obtaining professional credentials under 5 U.S.C. 5757, in Government or non-Government facilities, including the purchase or rental of books, materials, and supplies or services directly related to the training of a Government employee.

    Subpart 832.5—5 [Removed and reserved]. 22. Subpart 832.5 is removed and reserved. Subpart 832.8 [Removed and reserved]. 23. Subpart 832.8 is removed and reserved. Subpart 832.9—Prompt Payment
    § 832.904 [Redesignated as 832.904-70].
    24. Redesignate section 832.904 as 832.904-70 and revise newly redesignated section 832.904-70 to read as follows:
    § 832.904-70 Determining payment due dates for small businesses.

    Pursuant to Office of Management and Budget Memorandum M-11-32, dated September 14, 2011, Contracting Officers shall, to the full extent permitted by law, make payments to small business contractors as soon as practicable, with the goal of making payments within 15 days of receipt of a proper invoice and confirmation that the goods and services have been received and accepted by the Federal Government.

    § 832.11 [Removed and reserved].
    25. Subpart 832.11 is removed and reserved. 26. Revise subpart 832.70 to read as follows: Subpart 832.70—Electronic Invoicing Requirements Sec 832.7000 General 832.7001 Electronic payment requests 832.7001-1 Data transmission 832.7001-2 Contract clause
    § 832.7000 General.

    This subpart prescribes policy requirements for submitting and processing payment requests in electronic form.

    § 832.7001 Electronic payment requests.

    (a) The contractor shall submit payment requests in electronic form unless directed by the Contracting Officer to submit payment requests by mail. Purchases paid with a Government-wide commercial purchase card are considered to be an electronic transaction for purposes of this rule, and therefore no additional electronic invoice submission is required.

    (b) The Contracting Officer may direct the contractor to submit payment requests by mail, through the United States Postal Service, to the designated agency office for—

    (1) Awards made to foreign vendors for work performed outside the United States;

    (2) Classified contracts or purchases when electronic submission and processing of payment requests could compromise the safeguarding of classified or privacy information;

    (3) Contracts awarded by Contracting Officers in the conduct of emergency operations, such as responses to national emergencies;

    (4) Solicitations or contracts in which the designated agency office is a VA entity other than the VA Financial Services Center in Austin, Texas; or

    (5) Solicitations or contracts in which the VA designated agency office does not have electronic invoicing capability as described above.

    § 832.7001-1 Data transmission.

    The contractor shall submit electronic payment requests through—

    (a) VA's Electronic Invoice Presentment and Payment System at the current website address provided in the contract; or

    (b) A system that conforms to the X12 electronic data interchange (EDI) formats established by the Accredited Standards Center (ASC) chartered by the American National Standards Institute (ANSI).

    § 832.7001-2 Contract clause.

    The Contracting Officer shall insert the clause at 852.232-72, Electronic submission of payment requests, in solicitations and contracts exceeding the micro-purchase threshold, except those for which the Contracting Officer has directed otherwise under 832.7001, and those paid with a Governmentwide commercial purchase card.

    PART 852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 27. The authority citation for part 852 is revised to read as follows: Authority:

    38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C. 121(c); 41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR 1.301-1.304.

    Subpart 852.2—Text of Provisions and Clauses 28. Section 852.211-70 is revised to read as follows:
    § 852.211-70 Equipment Operation and Maintenance Manuals.

    As prescribed in 811.107-70, insert the following clause:

    EQUIPMENT OPERATION AND MAINTENANCE MANUALS (DATE)

    The contractor shall follow standard commercial practices to furnish manual(s), handbook(s) or brochure(s) containing operation, installation, and maintenance instructions, including pictures or illustrations, schematics, and complete repair/test guides, as necessary, for technical medical equipment and devices, and/or other technical and mechanical equipment provided per CLIN(s) # (Contracting Officer insert CLIN information). The manuals, handbooks or brochures shall be provided in hard copy, soft copy or with electronic access instructions, consistent with standard industry practices for the equipment or device. Where applicable, the manuals, handbooks or brochures will include electrical data and connection diagrams for all utilities. The documentation shall also contain a complete list of all replaceable parts showing part number, name, and quantity required.

    (End of clause)
    § 852.211-71 [Removed and reserved].
    29. Section 852.211-71 is removed and reserved. 30. Section 852.211-72 is revised to read as follows:
    § 852.211-72 Technical Industry Standards.

    As prescribed in 811.204-70, insert the following clause:

    TECHNICAL INDUSTRY STANDARDS (DATE)

    (a) The contractor shall conform to the standards established by: (Contracting Officer: Insert name of organization establishing the requirement, reference title, cite and date, e.g., United States Department of Agriculture (USDA), Institutional Meat Purchase Specifications (IMPS), Series 100, Beef products, Jan 2010) as to (Contracting Officer: Insert item and CLIN, e.g. CLIN 0005 Ground Beef).

    (b) The contractor shall submit proof of conformance to the standard. This proof may be a label or seal affixed to the equipment or supplies, warranting that the item(s) have been tested in accordance with the standards and meet the contract requirement. Proof may also be furnished by the organization listed above certifying that the item(s) furnished have been tested in accordance with and conform to the specified standards.

    (c) Offerors may obtain the standards cited in this provision by submitting a request, including the solicitation number, title and number of the publication to: (Organization)__ (Mail or email address) __

    (d) The offeror shall contact the Contracting Officer if response is not received within two weeks of the request.

    (End of clause)
    § 852.211-73 [Removed and reserved].
    § 852.211-74 [Removed and reserved].
    § 852.211-75 [Removed and reserved].
    31. Remove and reserve sections 852.211-73 through 852.211-75. 32. Add section 852.232-70 to read as follows:
    § 852.232-70 Payments under fixed-price construction contracts (without NAS-CPM).

    As prescribed in 832.111-70, insert the following clause in contracts that do not contain a section entitled “Network Analysis System—Critical Path Method (without NAS-CPM)”

    Payments Under Fixed-Price Construction Contracts (Without NAS-CPM) (Date)

    The clause FAR 52.232-5, Payments under Fixed-Price Construction Contracts, is implemented as follows:

    (a) Retainage.

    (1) The Contracting officer may retain funds—

    (i) Where performance under the contract has been determined to be deficient or the Contractor has performed in an unsatisfactory manner in the past; or

    (ii) As the contract nears completion, to ensure that deficiencies will be corrected and that completion is timely.

    (2) Examples of deficient performance justifying a retention of funds include, but are not restricted to, the following—

    (i) Unsatisfactory progress as determined by the Contracting Officer;

    (ii) Failure to meet schedule in Schedule of Work Progress;

    (iii) Failure to present submittals in a timely manner; or

    (iv) Failure to comply in good faith with approved subcontracting plans, certifications, or contract requirements.

    (3) Any level of retention shall not exceed 10 percent either where there is determined to be unsatisfactory performance, or when the retainage is to ensure satisfactory completion. Retained amounts shall be paid promptly upon completion of all contract requirements, but nothing contained in this subparagraph shall be construed as limiting the Contracting Officer's right to withhold funds under other provisions of the contract or in accordance with the general law and regulations regarding the administration of Government contracts.

    (b) The Contractor shall submit a schedule of cost to the Contracting Officer for approval within 30 calendar days after date of receipt of notice to proceed. Such schedule will be signed and submitted in triplicate. The approved cost schedule will be one of the bases for determining progress payments to the Contractor for work completed. This schedule shall show cost by the work activity/event for each building or unit of the contract, as instructed by the resident engineer.

    (1) The work activities/events shall be subdivided into as many sub-activities/events as are necessary to cover all component parts of the contract work.

    (2) Costs as shown on this schedule must be true costs and the resident engineer may require the Contractor to submit the original estimate sheets or other information to substantiate the detailed makeup of the schedule.

    (3) The sums of the sub-activities/events, as applied to each work activity/event, shall equal the total cost of such work activity/event. The total cost of all work activities/events shall equal the contract price.

    (4) Insurance and similar items shall be prorated and included in the cost of each branch of the work.

    (5) The cost schedule shall include separate cost information for the systems listed in the table in this subparagraph (b)(5). The percentages listed below are proportions of the cost listed in the Contractor's cost schedule and identify, for payment purposes, the value of the work to adjust, correct and test systems after the material has been installed. Payment of the listed percentages will be made only after the Contractor has demonstrated that each of the systems is substantially complete and operates as required by the contract.

    Value of Adjusting, Correcting, and Testing System System Percent Pneumatic tube system 10 Incinerators (medical waste and trash) 5 Sewage treatment plant equipment 5 Water treatment plant equipment 5 Washers (dish, cage, glass, etc.) 5 Sterilizing equipment 5 Water distilling equipment 5 Prefab temperature rooms (cold, constant temperature) 5 Entire air-conditioning system (Specified under 600 Sections) 5 Entire boiler plant system (Specified under 700 Sections) 5 General supply conveyors 10 Food service conveyors 10 Pneumatic soiled linen and trash system 10 Elevators and dumbwaiters 10 Materials transport system 10 Engine-generator system 5 Primary switchgear 5 Secondary switchgear 5 Fire alarm system 5 Nurse call system 5 Intercom system 5 Radio system 5 TV (entertainment) system 5

    (c) In addition to this cost schedule, the Contractor shall submit such unit costs as may be specifically requested. The unit costs shall be those used by the Contractor in preparing its bid and will not be binding as pertaining to any contract changes.

    (d) The Contracting Officer will consider for monthly progress payments material and/or equipment procured by the Contractor and stored on the construction site, as space is available, or at a local approved location off the site, under such terms and conditions as the Contracting Officer approves, including but not limited to the following—

    (1) The materials or equipment are in accordance with the contract requirements and/or approved samples and shop drawings;

    (2) The materials and/or equipment are approved by the resident engineer;

    (3) The materials and/or equipment are stored separately and are readily available for inspection and inventory by the resident engineer;

    (4) The materials and/or equipment are protected against weather, theft and other hazards and are not subjected to deterioration; and

    (5) The Contractor obtains the concurrence of its surety for off-site storage.

    (e) The Government reserves the right to withhold payment until samples, shop drawings, engineer's certificates, additional bonds, payrolls, weekly statements of compliance, proof of title, nondiscrimination compliance reports, or any other requirements of this contract, have been submitted to the satisfaction of the Contracting officer.

    (f) The Contracting Officer will notify the Contractor in writing within 10 calendar-days of exercising retainage against any payment in accordance with FAR clause 52.232-5(e). The notice shall disclose the amount of the retainage in value and percent retained from the payment, and provide explanation for the retainage.

    (End of clause)

    Alternate I (DATE). If the specifications include guarantee period services, the Contracting officer shall include the following paragraphs as additions to paragraph (b) of the basic clause:

    (6)(i) The Contractor shall at the time of contract award furnish the total cost of the guarantee period services in accordance with specification section(s) covering guarantee period services. The Contractor shall submit, within 15 calendar days of receipt of the notice to proceed, a guarantee period performance program that shall include an itemized accounting of the number of work-hours required to perform the guarantee period service on each piece of equipment. The Contractor shall also submit the established salary costs, including employee fringe benefits, and what the contractor reasonably expects to pay over the guarantee period, all of which will be subject to the Contracting officer's approval.

    (ii) The cost of the guarantee period service shall be prorated on an annual basis and paid in equal monthly payments by VA during the period of guarantee. In the event the installer does not perform satisfactorily during this period, all payments may be withheld and the Contracting Officer shall inform the contractor of the unsatisfactory performance, allowing the contractor 10 days to correct deficiencies and comply with the contract. The guarantee period service is subject to those provisions as set forth in the Payments and Default clauses.

    33. Add section 852.232-71 to read as follows:
    § 852.232-71 Payments under fixed-price construction contracts (including NAS-CPM).

    As prescribed in 832.111-70, insert the following clause in contracts that contain a section entitled “Network Analysis System—Critical Path Method (NAS-CPM).”

    Payments Under Fixed-Price Construction Contracts (Including NAS-CPM) (Date)

    The clause FAR 52.232-5, Payments under Fixed-Price Construction Contracts, is implemented as follows:

    (a) Retainage.

    (1) The Contracting Officer may retain funds—

    (i) Where performance under the contract has been determined to be deficient or the Contractor has performed in an unsatisfactory manner in the past; or

    (ii) As the contract nears completion, to ensure that deficiencies will be corrected and that completion is timely.

    (2) Examples of deficient performance justifying a retention of funds include, but are not restricted to, the following—

    (i) Unsatisfactory progress as determined by the Contracting Officer;

    (ii) Failure to meet schedule in Schedule of Work Progress;

    (iii) Failure to present submittals in a timely manner; or

    (iv) Failure to comply in good faith with approved subcontracting plans, certifications, or contract requirements.

    (3) Any level of retention shall not exceed 10 percent either where there is determined to be unsatisfactory performance, or when the retainage is to ensure satisfactory completion. Retained amounts shall be paid promptly upon completion of all contract requirements, but nothing contained in this subparagraph shall be construed as limiting the Contracting Officer's right to withhold funds under other provisions of the contract or in accordance with the general law and regulations regarding the administration of Government contracts.

    (b) The Contractor shall submit a schedule of costs in accordance with the requirements of section “Network Analysis System — Critical Path Method (NAS-CPM)” to the Contracting Officer for approval within 90 calendar days after date of receipt of notice to proceed. The approved cost schedule will be one of the bases for determining progress payments to the Contractor for work completed.

    (1) Costs as shown on this schedule must be true costs and the resident engineer may require the contractor to submit its original estimate sheets or other information to substantiate the detailed makeup of the cost schedule.

    (2) The total costs of all work activities/events shall equal the contract price.

    (3) Insurance and similar items shall be prorated and included in each work activity/event cost of the critical path method (CPM).

    (4) The CPM shall include a separate cost loaded activity for adjusting and testing of the systems listed in the table in paragraph (b)(5) of this section. The percentages listed below will be used to determine the cost of adjust and test work activities/events and identify, for payment purposes, the value of the work to adjust, correct and test systems after the material has been installed.

    (5) Payment for adjust and test activities will be made only after the Contractor has demonstrated that each of the systems is substantially complete and operates as required by the contract.

    Value of Adjusting, Correcting, and Testing System System Percent Pneumatic tube system 10 Incinerators (medical waste and trash) 5 Sewage treatment plant equipment 5 Water treatment plant equipment 5 Washers (dish, cage, glass, etc.) 5 Sterilizing equipment 5 Water distilling equipment 5 Prefab temperature rooms (cold, constant temperature) 5 Entire air-conditioning system (Specified under 600 Sections) 5 Entire boiler plant system (Specified under 700 Sections) 5 General supply conveyors 10 Food service conveyors 10 Pneumatic soiled linen and trash system 10 Elevators and dumbwaiters 10 Materials transport system 10 Engine-generator system 5 Primary switchgear 5 Secondary switchgear 5 Fire alarm system 5 Nurse call system 5 Intercom system 5 Radio system 5 TV (entertainment) system 5

    (c) In addition to this cost schedule, the Contractor shall submit such unit costs as may be specifically requested. The unit costs shall be those used by the Contractor in preparing its bid and will not be binding as pertaining to any contract changes.

    (d) The Contracting Officer will consider for monthly progress payments material and/or equipment procured by the Contractor and stored on the construction site, as space is available, or at a local approved location off the site, under such terms and conditions as the Contracting Officer approves, including but not limited to the following—

    (1) The materials or equipment are in accordance with the contract requirements and/or approved samples and shop drawings;

    (2) The materials and/or equipment are approved by the resident engineer;

    (3) The materials and/or equipment are stored separately and are readily available for inspection and inventory by the resident engineer;

    (4) The materials and/or equipment are protected against weather, theft and other hazards and are not subjected to deterioration; and

    (5) The contractor obtains the concurrence of its surety for off-site storage.

    (e) The Government reserves the right to withhold payment until samples, shop drawings, engineer's certificates, additional bonds, payrolls, weekly statements of compliance, proof of title, nondiscrimination compliance reports, or any other requirements of this contract, have been submitted to the satisfaction of the Contracting Officer.

    (f) The Contracting Officer will notify the Contractor in writing within 10 calendar-days of exercising retainage against any payment in accordance with FAR clause 52.232-5(e). The notice shall disclose the amount of the retainage in value and percent retained from the payment, and provide explanation for the retainage.

    (End of clause)

    Alternate I (DATE). If the specifications include guarantee period services, the Contracting officer shall include the following paragraphs as additions to paragraph (b) of the basic clause:

    (6)(i) The Contractor shall show on the critical path method (CPM) the total cost of the guarantee period services in accordance with the guarantee period service section(s) of the specifications. This cost shall be priced out when submitting the CPM cost loaded network. The cost submitted shall be subject to the approval of the Contracting Officer. The activity on the CPM shall have money only and not activity time.

    (ii) The Contractor shall submit with the CPM a guarantee period performance program which shall include an itemized accounting of the number of work-hours required to perform the guarantee period service on each piece of equipment. The Contractor shall also submit the established salary costs, including employee fringe benefits, and what the contractor reasonably expects to pay over the guarantee period, all of which will be subject to the Contracting Officer's approval.

    (iii) The cost of the guarantee period service shall be prorated on an annual basis and paid in equal monthly payments by VA during the period of guarantee. In the event the installer does not perform satisfactorily during this period, all payments may be withheld and the Contracting Officer shall inform the contractor of the unsatisfactory performance, allowing the Contractor 10 days to correct and comply with the contract. The guarantee period service is subject to those provisions as set forth in the Payments and Default clauses.

    34. Section 852.232-72 is revised to read as follows:
    § 852.232-72 Electronic submission of payment requests.

    As prescribed in 832.7001-2, insert the following clause:

    Electronic Submission of Payment Requests (Date)

    (a) Definitions. As used in this clause—

    (1) Contract financing payment has the meaning given in FAR 32.001.

    (2) Designated agency office means the office designated by the purchase order, agreement, or contract to first receive and review invoices. This office can be contractually designated as the receiving entity. This office may be different from the office issuing the payment.

    (3) Electronic form means an automated system transmitting information electronically according to the accepted electronic data transmission methods and formats identified in paragraph (c) of this clause. Facsimile, email, and scanned documents are not acceptable electronic forms for submission of payment requests.

    (4) Invoice payment has the meaning given in FAR 32.001.

    (5) Payment request means any request for contract financing payment or invoice payment submitted by the contractor under this contract.

    (b) Electronic payment requests. Except as provided in paragraph (e) of this clause, the contractor shall submit payment requests in electronic form. Purchases paid with a Government-wide commercial purchase card are considered to be an electronic transaction for purposes of this rule, and therefore no additional electronic invoice submission is required.

    (c) Data transmission. A contractor must ensure that the data transmission method and format are through one of the following:

    (1) VA's Electronic Invoice Presentment and Payment System at the current website address provided in the contract.

    (2) Any system that conforms to the X12 electronic data interchange (EDI) formats established by the Accredited Standards Center (ASC) and chartered by the American National Standards Institute (ANSI).

    (d) Invoice requirements. Invoices shall comply with FAR 32.905.

    (e) Exceptions. If, based on one of the circumstances below, the Contracting Officer directs that payment requests be made by mail, the contractor shall submit payment requests by mail through the United States Postal Service to the designated agency office. Submission of payment requests by mail may be required for—

    (1) Awards made to foreign vendors for work performed outside the United States;

    (2) Classified contracts or purchases when electronic submission and processing of payment requests could compromise the safeguarding of classified or privacy information;

    (3) Contracts awarded by Contracting Officers in the conduct of emergency operations, such as responses to national emergencies;

    (4) Solicitations or contracts in which the designated agency office is a VA entity other than the VA Financial Services Center in Austin, Texas; or

    (5) Solicitations or contracts in which the VA designated agency office does not have electronic invoicing capability as described above.

    (End of clause)
    § 852.236-82 [Removed and reserved].
    § 852.236-83 [Removed and reserved].
    35. Remove and reserve sections 852.236-82 and 852.236-83. PART 870—SPECIAL PROCUREMENT CONTROLS 36. The authority citation for part 870 is revised to read as follows: Authority:

    40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.

    § 870.112 [Removed]
    § 870.113 [Removed]
    37. Remove sections 870. 112 and 870.113.
    [FR Doc. 2018-04002 Filed 3-23-18; 8:45 am] BILLING CODE 8320-01-P
    DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Chapter III, Subchapter B [Docket No. FMCSA-2018-0037] Request for Comments Concerning Federal Motor Carrier Safety Regulations (FMCSRs) Which May Be a Barrier to the Safe Testing and Deployment of Automated Driving Systems-Equipped Commercial Motor Vehicles on Public Roads AGENCY:

    Federal Motor Carrier Safety Administration (FMCSA), DOT.

    ACTION:

    Request for comments.

    SUMMARY:

    FMCSA requests public comments on existing Federal Motor Carrier Safety Regulations (FMCSRs) that may need to be updated, modified, or eliminated to facilitate the safe introduction of automated driving systems (ADS) equipped commercial motor vehicles (CMVs) onto our Nation's roadways. To assist in this undertaking, FMCSA commissioned the U.S. Department of Transportation's John A. Volpe National Transportation Systems Center (Volpe) to conduct a preliminary review of the FMCSRs to identify regulations that may relate to the development and safe introduction of ADS. The Agency requests comments on this report, including whether any of FMCSA's current safety regulations may hinder the testing and safe integration of ADS-equipped CMVs. Further, FMCSA requests comment on certain specific regulatory requirements that are likely to be affected by an increased integration of ADS-equipped CMVs. However, the Agency is not seeking comments on its financial responsibility requirements because they are not directly related to CMV technologies and because future insurance requirements will depend in part on the evolution of State tort law with respect to liability for the operation of ADS-equipped vehicles. In addition, to support FMCSA's effort to understand future impacts on the FMCSR's, FMCSA requests information, including from companies engaged in the design, development, testing, and integration of ADS-equipped CMVs into the fleet. Specifically, the Agency requests information about: The scenarios and environments where entities expect that ADS will soon be tested and integrated into CMVs operating on public roads or in interstate commerce; the operational design domains (ODD) in which these systems are being operated or would be tested and eventually deployed; and, measures they believe are required to ensure the protection of any proprietary or confidential business information they intend to share with the Agency.

    DATES:

    Public Comments: Comments on this notice must be received on or before May 10, 2018.

    ADDRESSES:

    You may submit comments identified by Docket Number FMCSA-2018-0037 using any of the following methods:

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

    Mail: Docket Management Facility, U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.

    Hand Delivery or Courier: West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m. E.T., Monday through Friday, except Federal holidays.

    Fax: 1-202-493-2251.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Michael Huntley, Division Chief, Vehicle and Roadside Operations Division, Office of Carrier, Driver, and Vehicle Safety, MC-PSV, (202) 366-9209, [email protected], Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.

    SUPPLEMENTARY INFORMATION:

    Submitting Comments

    If you submit a comment, please include the docket number for this notice (FMCSA-2018-0037), indicate the specific section of this document and the Volpe report to which each comment applies, provide a reason for each suggestion or recommendation, and identify the source of any data informing your comment. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.

    To submit your comment online, go to http://www.regulations.gov, put the docket number, FMCSA-2018-0037, in the keyword box, and click “Search.” When the new screen appears, click on the “Comment Now!” button and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit.

    If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.

    Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2018-0037, in the keyword box, and click “Search.” Next, click the “Open Docket Folder” button and choose the document to review. If you do not have access to the internet, you may view the docket by visiting the Docket Management Facility in Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., E.T., Monday through Friday, except Federal holidays.

    Privacy Act

    The Department of Transportation (DOT) solicits comments from the public to better inform its decision-making processes. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

    I. Background

    On September 12, 2017, the Department published the Automated Driving Systems (ADS): A Vision for Safety 2.0. (Publication No. DOT HS 812 442) (the Voluntary Guidance). The Voluntary Guidance offers a path forward for the safe integration of automated vehicles by:

    • Encouraging new entrants and ideas that deliver safer vehicles;

    • Making the Departmental regulatory processes more nimble to help match the pace of private sector innovation; and,

    • Supporting industry innovation and encouraging open communication with the public and with stakeholders.

    The Voluntary Guidance is rooted in the Department's view that ADS-equipped vehicles hold enormous potential benefits for safety, mobility, and the efficiency of our transportation system. The primary focus of the Voluntary Guidance is on levels of ADS that can take full control of the driving tasks in at least some circumstances. Portions of the Voluntary Guidance also apply to lower levels of automation, including some of the driver assistance systems already being deployed by automakers today. The full document can be found at: https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/13069a-ads2.0_090617_v9a_tag.pdf.

    The Voluntary Guidance adopts the SAE International (SAE) J3016 standard's definitions for levels of automation. The SAE definitions divide vehicles into levels based on “who does what, when.” Generally:

    SAE Level 0, No Driving Automation; the driver performs all driving tasks.

    SAE Level 1, Driver Assistance; the vehicle is controlled by the driver, but some driving assist features may be included in the vehicle design.

    SAE Level 2, Partial Driving Automation; the vehicle has combined automated functions, like acceleration and steering, but the driver must remain engaged with the driving task and monitor the environment at all times.

    SAE Level 3, Conditional Driving Automation; the driver is a necessity, but is not required to monitor the environment. The driver must be ready to take control of the vehicle at all times with notice.

    SAE Level 4, High Driving Automation; the vehicle is capable of performing all driving functions under certain conditions. The driver may have the option to control the vehicle.

    SAE Level 5, Full Driving Automation: the vehicle is capable of performing all driving functions under all conditions.

    Using the SAE levels described above, the Department draws a distinction between Levels 0-2 and 3-5 based on whether the human driver or the automated system is primarily responsible for monitoring the driving environment. For the purposes of this Federal Register notice, the Agency's primary focus is SAE Levels 3-5 ADS.

    FMCSA encourages the development of these advanced safety technologies for use on CMVs, and at the same time, recognizes the need to work with the States to ensure that, from an operations standpoint, all testing and use of these advanced safety systems is conducted in a manner that ensures the safe operation of ADS-equipped commercial vehicles.

    FMCSA is responsible for the safety oversight of motor carriers operating CMVs in interstate commerce, the drivers of CMVs, and the vehicles. The Agency works with its State partners to deliver programs intended to prevent CMV crashes, and the associated injuries and fatalities.

    The FMCSRs provide rules to ensure the safe operation of CMVs, as defined in 49 CFR 390.5, which includes vehicles with a gross vehicle weight/gross combination weight or gross vehicle weight rating/gross combination weight rating, whichever is greater, of 10,001 pounds or more; passenger-carrying vehicles designed or used to transport 9 to 15 passengers for direct compensation; passenger-carrying vehicles designed or used to transport 16 or more passengers; and any size vehicle transporting hazardous materials in a quantity requiring placards.

    On April 24, 2017, FMCSA held a public listening session to solicit information on issues relating to the design, development, testing, and integration of ADS-equipped commercial motor vehicles (82 FR 18096, April 17, 2017). The listening session provided interested parties an opportunity to share their views and any data or analysis on this topic with Agency representatives. The Agency also invited interested parties to submit written comments by July 17, 2017. A full transcript of the listening session and all written comments is available in public docket, FMCSA-2017-0114, at www.regulations.gov.

    II. Request for Public Comments: The Applications of the FMCSRs to ADS-Equipped CMVs

    In addition to the public listening session discussed above, FMCSA commissioned Volpe to conduct a preliminary review of the FMCSRs to identify regulations that relate to the development and safe introduction of automated driving systems. FMCSA subsequently received from Volpe its final report, “Review of the Federal Motor Carrier Safety Regulations for Automated Commercial Vehicles: Preliminary Assessment of Interpretation and Enforcement Challenges, Questions, and Gaps,” report number MCSA-RRT-17-013, August 2017. A copy of the report is included in the docket referenced at the beginning of this notice.

    Volpe found several provisions in the FMCSRs that might present challenges for automated CMVs that continue to require a human driver. Additionally, Volpe indicated that automated CMVs either requiring an onboard (non-driving) human technician or not requiring an onboard human at all may face compliance challenges. Volpe noted, however, that the nature and extent of these challenges will depend on how key terms and applicability statements are interpreted.

    Notwithstanding the findings of the Volpe analysis, the Policy released on September 12, 2017, indicated (see page 2 of the publication) that FMCSA believes its regulations require that “a trained commercial driver must be behind the wheel at all times, regardless of any automated driving technologies available on the CMV, unless a petition for a waiver or exemption has been granted.” In light of the comments the Agency received in response to its April 17, 2017, request for public comments and the remarks of those in attendance at the April 24, 2017, public listening session, the Agency is reconsidering its views on this matter. The absence of specific regulatory text requiring a driver be behind the wheel may afford the Agency the flexibility to allow, under existing regulations, ADS to perform the driver's functions in the operational design domain in which the system would be relied upon, without the presence of a trained commercial driver in the driver's seat.

    FMCSA notes that in the event regulatory relief is necessary to allow the operation of a commercial motor vehicle without a person in the driver's seat, the Agency has authority to grant waivers for up to three months, grant exemptions for up to five years (with the possibility of renewals of the exemptions), or allow pilot programs for up to three years, provided certain conditions are satisfied [see 49 CFR part 381].

    To that end, the Agency seeks information concerning the extent to which the public, including industry, safety advocates, the motoring public, and those engaged in the design, development, testing, and integration of ADS for CMVs believe any of FMCSA's current safety regulations may hinder the testing and safe deployment of ADS-equipped CMVs, including, but not limited to, the regulations preliminarily identified by Volpe. In particular, the agency is interested in comments concerning how different interpretations of the applicability of FMCSRs to ADS-equipped CMVs could represent a barrier, e.g., whether the FMCSRs, under certain conditions, could be read to require, or not require, the presence of a trained commercial driver in the driver's seat. To the extent commenters do identify unnecessary barriers, how could FMCSA use its available regulatory relief mechanism to appropriately remove or reduce those barriers?

    In addition to the issues in the Volpe Report, the agency also requests comment on how ADS-equipped CMVs could interact with certain specific regulations.

    Inspection, Repair, and Maintenance

    The FMCSRs require all CMVs to be systematically inspected, repaired, and maintained. All parts must be in safe and proper operating condition at all times. With limited exceptions, motor carriers are prohibited from operating a CMV unless there is proof that it has passed an annual inspection.

    How should motor carriers ensure the proper functioning of ADS prior to operating in an automated mode?

    Should the Agency consider minimum requirements for motor carrier personnel responsible for maintaining the equipment used to achieve certain levels of automated operations (for example, a requirement that technicians be trained by the ADS developers, etc.)?

    What Information Technology (IT) security/safety assurances can be provided by maintenance personnel and CMV drivers/operators that the ADS systems are functioning properly?

    For State representatives with experience inspecting traditional CMVs, what types of malfunctions or damage on an ADS-equipped CMV should be considered an imminent hazard? Do you have any additional comments regarding inspection, repair, and maintenance?

    Roadside and Annual Inspections

    FMCSA and its State partners conduct roadside inspections of CMVs to identify and remove from service unsafe drivers and vehicles. The inspection criteria represent enforcement tolerances, which are thresholds for determining whether the level of noncompliance with the applicable safety regulations is severe enough to warrant placing the vehicle or driver out-of-service.

    How could an enforcement official identify CMVs capable of various levels of automated operation? For example, should CMVs with ADS be visibly marked to indicate the level of automated operation they are designed to achieve, or would making these vehicles so easily identifiable cause other road users to interact unfavorably with CMVs with ADS?

    Do you have any additional comments regarding roadside and annual inspections?

    Distracted Driving (Prohibition Against Texting and Using Handheld Wireless Phones) and Driver Monitoring

    This section applies to situations involving a Level 3 human-monitored ADS. Current regulations prohibit individuals from texting and using hand-held wireless phones while driving CMVs in interstate commerce.

    What changes, if any, should be made to the distracted driving regulations for human drivers of CMVs with ADS while in automated mode? For example, should a human driver in a CMV with ADS be allowed to use a hand-held wireless phone while the ADS is in complete control of the vehicle?

    Should driver fatigue monitoring be required, and if so, what method(s) should be used to conduct such monitoring? For example, the Trucking Fatigue Meter [See https://pulsarinformatics.com/products/trucking] samples data throughout the day and alerts fleet managers once a human driver exceeds a company-determined fatigue threshold.

    Additionally, should these systems be required to provide “alertness assistance” to human drivers? For example, should these systems be required to periodically request input from human drivers, or should they be required to request input from human drivers only when the driver appears to be losing focus or when the ADS in control of the vehicle is confronted with situations outside its parameters?

    What level of human driver inattentiveness (or how long a period of inattentiveness) should be allowed in a vehicle controlled by an ADS before the vehicle is required to enter its minimal risk condition? How long after entering the minimal risk condition must a human driver wait to re-engage an ADS (e.g., a minimum 30-minute break may provide the driver an opportunity to rest)? What should the requirements be for re-engaging the CMV with ADS in an automated mode in this scenario?

    Medical Qualifications

    FMCSA's regulations include physical qualification standards for humans driving CMVs to ensure that they are medically qualified to do so. As technology advances, humans may be required only to monitor the operation of CMVs with ADS on public roadways, or they may not be required at all. Thus, as technology develops, changes to the physical qualification rules will be required, and some medical conditions may become inapplicable.

    What medical conditions currently precluding issuance of a medical card could become inapplicable as ADS technology develops?

    What medical conditions currently precluding issuance of a medical card should NOT be considered disqualifying for a human driver who is simply monitoring a CMV with ADS?

    Hours of Service for Drivers

    FMCSA's regulations include requirements intended to reduce the risk of driver fatigue and fatigue-related crashes. Generally, the rules for truck drivers allow up to 11 hours driving time in the work day, following 10 consecutive hours off-duty. And all driving must be completed within 14 hours of the beginning of the work day. The rules prohibit driving after a driver has accumulated a certain amount of on-duty time (which includes the time spent driving and time spent performing other work) during the work week. Current regulations require that all time spent at the operating controls of the CMV be recorded as on-duty, driving time. Given the SAE levels of automation discussed above, FMCSA seeks public comments on how drivers' hours of service should be recorded if the ADS is relied upon to perform some or all of the driving tasks.

    Commercial Driver's License (CDL) Endorsements

    FMCSA requires all drivers of CMVs to have the knowledge and skills necessary to operate a CMV safely. States are required to include specific items in the knowledge and skills tests administered to CDL applicants. CDL applicants wishing to obtain specific endorsements must satisfy additional knowledge and skill test requirements. Existing endorsements include: Double/triple trailers, passenger, tank vehicle, hazardous materials, and school bus.

    Due to potential variations in ADS technology across various providers, FMCSA seeks to ensure that human drivers and operators of CMVs with ADS receive training for the specific technologies present in the vehicles they operate.

    Should an endorsement be considered for human drivers and operators of CMVs with ADS to ensure they (1) understand the capabilities and limitations of the advanced technologies, and (2) know when it is appropriate to rely on automatic rather than manual operation? If so, what types of tests—knowledge, skills, or both—should be required to obtain such an endorsement; and should there be separate endorsements for different types of ADS?

    If an ADS-equipped CMV is to be deployed without a human driver onboard, should the computer system be required to demonstrate autonomous capabilities for the same maneuvers included on the CDL skills test?

    III. Request for Information: Current Testing and Operation of CMVs With ADS Data Sharing

    FMCSA would like to ensure that the Agency is able to receive and review data and information from the private sector to understand a driver's experience with ADS technologies in real-world settings.

    If you are a developer or tester of ADS technologies, what types of data and/or safety measures are you currently collecting—or do you plan to collect—during testing? How often is this data collected?

    How can FMCSA ensure that data and/or safety measures collected are presented in a comparable format?

    How can FMCSA assess whether a CMV equipped with an ADS is being operated as safely as a traditional CMV operating on a public roadway?

    What pieces of information are entities using to evaluate how a driver is using an ADS- equipped commercial vehicle?

    Testing and Interstate Operations of CMVs With ADS on Public Roadways

    What type of ADS-equipped CMVs are currently being tested? Are they Level 4 ADS-equipped vehicles that can only operate on certain roadways, Level 4 vehicles with more extensive ODDs, or full Level 5 vehicles?

    Do vehicles currently being tested have operational limitations to ensure safe operations? Examples of operational limitations might include time of day, weather conditions, types of roads, specific routes within an ODD, maximum allowable operational speed, markings showing that the vehicle is capable of highly automated operations, etc.

    In moving forward what actions, if any, should FMCSA consider to ensure the safe operation of ADS-equipped CMV's in various ODDs?

    How can FMCSA assess whether a CMV with ADS operating within its ODD can perform on certain maneuvers, such as emergency brake performance, crash avoidance maneuvers, etc.?

    Should FMCSA consider approaching CMVs that carry persons or hazardous materials differently than other CMVs?

    For State representatives, would you consider changing certain requirements (for example, higher versus lower levels of insurance) for an ADS-equipped CMV? If yes, based on what factors; and how would you implement such requirements?

    Beyond Compliance Program

    On April 23, 2015, FMCSA issued an initial Federal Register notice seeking comment on the impacts of a possible “Beyond Compliance Program” to consider a company's voluntary implementation of state-of-the-art best practices and technologies when evaluating a carrier's safety (80 FR 22770).

    The Fixing America's Surface Transportation (FAST) Act mandated that the Agency provide recognition to motor carriers for voluntary use of advanced technologies or safety programs (Pub. L. 114-94, 129 Stat. 1312, Dec. 4, 2012). Per section 5222, FMCSA may authorize qualified entities to monitor motor carriers that receive “Beyond Compliance” recognition (129 Stat. 1540).

    To what extent, if any, should the various levels of automation be considered as part of the Beyond Compliance Program?

    Regulation of Manufacturing Versus Operation

    The regulation of CMVs is a function shared by the National Highway Traffic Safety Administration (NHTSA) and FMCSA, with manufacturing regulated by NHTSA and operation regulated by FMCSA (and its State partners). Does this separation of functions create unique problems, or perhaps offer unique solutions, for operators of ADS-equipped CMVs?

    Confidentiality of Shared Information

    FMCSA acknowledges that companies may be reluctant to share certain proprietary data or information with the Agency, either as part of the waiver, exemption, or pilot program application process, or during the pendency of a regulatory relief period. The Agency notes that 49 CFR 389.3 provides protection for “confidential business information” which includes trade secrets or commercial or financial information that is privileged or confidential, as described in 5 U.S.C. 552(b)(4). Commercial or financial information is considered confidential if it is voluntarily submitted to the Agency and constitutes the type of information not customarily released to the general public. FMCSA has established standards and procedures by which the Agency will solicit, receive, and protect confidential information from public disclosure. The Agency is seeking information from interested parties on how it might further protect non-public information necessary to assess whether ADS-equipped CMVs meet performance standards and accurately document safety-related events during a waiver, temporary exemption, or pilot program.

    What measures would original equipment manufacturers and developers expect of FMCSA before sharing confidential business information?

    How might the Agency obtain information sufficient to assess the safety performance of CMVs with ADS without collecting confidential business information?

    Do you have any additional comments regarding the confidentiality of shared information?

    Issued under authority delegated in 49 CFR 1.87 on: March 16, 2018. Raymond P. Martinez, Administrator.
    [FR Doc. 2018-05788 Filed 3-23-18; 8:45 am] BILLING CODE 4910-EX-P
    83 58 Monday, March 26, 2018 Notices DEPARTMENT OF AGRICULTURE Office of Advocacy and Outreach Beginning Farmers and Ranchers Advisory Committee AGENCY:

    Office of Advocacy and Outreach, USDA.

    ACTION:

    Notice of public meeting.

    SUMMARY:

    Pursuant to the Federal Advisory Committee Act (FACA), the Office of Advocacy and Outreach (OAO) is announcing a meeting of the Beginning Farmers and Ranchers Advisory Committee (BFRAC). USDA Secretary Perdue has outlined a bold agenda to help support farmers and ranchers that includes: Maximizing the ability of farmers and ranchers to produce and thrive as businesses, enhancing USDA's customer service, ensuring a food secure nation, and effectively stewarding our natural resources. Together, these principals will usher in empowerment among those in the rural agricultural communities, business growth and prosperity, and bright futures for the next generation for farmers and ranchers. The BFRAC will be pivotal in its liaison role that informs and advises the Secretary of actions that may be taken to further rural agriculture growth and support for our next generation of farmers and ranchers. The BFRAC will help ready the USDA to stay relevant for the next generation of customers and assist them with the challenges of today and those they will face in coming years.

    During this public meeting, the BFRAC will deliberate upon matters focused on, including but not limited to, the following: (1) Marketplace; (2) Monitoring and Evaluation; (3) Partnerships; and (4) Veteran farmers and ranchers.

    From these topics the BFRAC will deliberate and form its final set of recommendations for the current term. The BFRAC specifically seeks to engage and hear directly from a broad cross-section of beginning farmers, particularly from those farmers and ranchers in Florida (and neighboring states) on their experiences, pathways, and challenges as they entered into farming or ranching. We will want to hear about what was helpful, successful pathways, and barriers of entry or other challenges. We encourage all from the region to attend, including those from organizations who support farmers and ranchers—seeking a large cross-section of farm type or farm size, geographic and ethnic diversity, and supporting organizations.

    DATES:

    The BFRAC meeting will begin on April 3, 2018 (half-day), from 1:00 p.m.-4:30 p.m. EST; and on April 4-5, 2018, from 8:30-5:00 p.m. This notice is less than the 15-day requirement due to unexpected procurement actions. A listen-only conference call line will be available for all who wish to listen in on the proceeding by phone at: (888) 455-1685 and passcode 7087935. There will be time allotted each day for comments from those attending. All persons wishing to make comments during this meeting must check-in each day at the registration table. If the number of registrants requesting to speak is greater than what can be reasonably accommodated during the scheduled open public hearing session timeframe, OAO may conduct a lottery to determine the speakers for the scheduled public comment session.

    ADDRESSES:

    This meeting will be held at the Tampa Marriott Westshore, 1001 N Westshore Boulevard, Tampa, Florida 33607. You may reach the hotel directly on (813) 287-2555 or visit: www.marriott.com/tpawe. A listen-only conference call line will be available for all who wish to listen in on the proceeding by phone at: (888) 455-1685 and passcode 7087935.

    FOR FURTHER INFORMATION CONTACT:

    Questions should be directed to Phyllis Morgan, Executive Assistant, OAO, 1400 Independence Ave. SW, Whitten Bldg., 520-A, Washington, DC 20250, (202) 720-6350, Fax: (202) 720-7704, or email: [email protected]

    Written comments for the Committee's consideration may be submitted, by or before COB March 29, 2018, to Mrs. Kenya Nicholas, Designated Federal Officer, USDA OAO, 1400 Independence Avenue, Room 520-A, Washington, DC 20250-0170; Telephone (202) 720-6350; Fax (202) 720-7704; Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The Committee was established pursuant to Section 5 of the Agricultural Credit Improvement Act of 1992. The Secretary of Agriculture selected a diverse group of members representing a broad spectrum of persons interested in providing solutions to the challenges of new farmers and ranchers. Please visit our website at: http://www.outreach.usda.gov/smallbeginning/index.htm for additional information on the advisory committee.

    Register for the Meeting: The public is asked to pre-register for the meeting by March 29, 2018. Your pre-registration must state: The names of each person in your group; organization or interest represented; the number of people planning to give oral comments, if any; and whether anyone in your group requires special accommodations. Submit registrations to Kenya Nicholas via email at: [email protected] or via fax at (202) 720-7704 by March 29, 2018. Members of the public who request to give oral comments to the Committee, will be given their allotted time limit and turn at the check-in table. Please remember that the comments given will be added to the committee records and will not be an opportunity to interact with the committee members.

    Public Comments: Written public comments may be mailed to Kenya Nicholas, DFO, MS-0601, 1400 Independence Avenue SW, Washington, DC 20250 or submitted via fax at (202) 720-7704 or email at [email protected] All written comments must arrive by March 29, 2018, and may be read into the record. To make public comments during the meeting, see instructions under `Register for the Meeting' above.

    Availability of Materials for the Meeting: All written public comments will be compiled and available for review at the meeting. Duplicate comments from multiple individuals will appear as one comment, with a notation that multiple copies of the comment were received. The final agenda will be available to the public via the OAO website at: http://www.outreach.usda.gov/smallbeginning/index.htm.

    Meeting Accommodations: USDA is committed to ensuring that all are included in our work environment, programs and events. If you are a person with a disability and request reasonable accommodations to participate in this meeting, please note the request in your registration. All requests are managed on a case-by-case basis.

    Issued at Washington, DC, on March 16, 2018. Christian Obineme, Acting Director, Office of Advocacy and Outreach.
    [FR Doc. 2018-06037 Filed 3-23-18; 8:45 am] BILLING CODE P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meetings of the Hawaii Advisory Committee AGENCY:

    Commission on Civil Rights.

    ACTION:

    Announcement of meetings.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a meeting of the Hawaii Advisory Committee to the Commission will convene by conference call at 11:00 a.m. (HDT) on: Wednesday, April 4, 2018. The purpose of the meeting is to discuss the pending committee report on Micronesian Immigration.

    DATES:

    Wednesday April 4, 2018 at 11:00 a.m. HDT.

    Public Call-in Information: Conference call-in number: 888-438-5535 and conference ID #6112298.

    FOR FURTHER INFORMATION CONTACT:

    David Barreras, at [email protected]v or by phone at 312-353-8311.

    SUPPLEMENTARY INFORMATION:

    Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 1-888-438-5535 and conference ID #6112298. Please be advised that before placing them into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free conference call-in number.

    Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-977-8339.

    Members of the public are invited to make statements during the open comment period of the meetings or submit written comments. The comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 N Los Angeles Street, Suite 2010, Los Angeles, CA 90012, faxed to (213) 353-8324, or emailed to David Barreras at [email protected] Persons who desire additional information may contact the Western Regional Office at (213) 894-3437.

    Records and documents discussed during the meeting will be available for public viewing as they become available at https://www.facadatabase.gov/committee/committee.aspx?cid=244&aid=17; click the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Western Regional Office, as they become available, both before and after the meetings. Persons interested in the work of this advisory committee are advised to go to the Commission's website, www.usccr.gov, or to contact the Western Regional Office at the above phone numbers, email or street address.

    Agenda: Wednesday, April 4 • Welcome—Roll Call • Chair's Comments • DFO update on Report • Discussion on Report • Open Comment • Adjourn Dated: March 21, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-06058 Filed 3-23-18; 8:45 am] BILLING CODE P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Oregon 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 a meeting of the Oregon Advisory Committee (Committee) to the Commission will be held at 1:00 p.m. (Pacific Time) Tuesday, March 27, 2018. The purpose of the meeting is for the Committee to continue planning to collect testimony focused on human trafficking in Oregon.

    DATES:

    The meeting will be held on Tuesday, March 27, 2018, at 1:00 p.m. PT.

    Public Call Information: Dial: 877-627-6544, Conference ID: 7293079.

    FOR FURTHER INFORMATION CONTACT:

    Ana Victoria Fortes (DFO) at [email protected] or (213) 894-3437.

    SUPPLEMENTARY INFORMATION:

    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. 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 meeting at https://facadatabase.gov/committee/meetings.aspx?cid=270. Please click on the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Regional Programs Unit, as they become available, both before and after the meeting. 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 II. Approve minutes from previous meeting III. Committee Discussion: human trafficking a. Vote on agenda of upcoming speakers IV. Public Comment V. Next Steps VI. Adjournment

    Exceptional Circumstance: Pursuant to 41 CFR 102-3.150, the notice for this meeting is given less than 15 calendar days prior to the meeting because of the exceptional circumstance of this Committee preparing for its upcoming public meeting to hear testimony.

    Dated: March 21, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-06053 Filed 3-23-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE National Institute of Standards and Technology [Docket No. 180306249-8249-01] National Cybersecurity Center of Excellence (NCCoE) Energy Sector Asset Management AGENCY:

    National Institute of Standards and Technology, Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The National Institute of Standards and Technology (NIST) invites organizations to provide products and technical expertise to support and demonstrate security platforms for the Energy Sector Asset Management Project. This notice is the initial step for the National Cybersecurity Center of Excellence (NCCoE) in collaborating with technology companies to address cybersecurity challenges identified under the Energy Sector Asset Management use case. Participation in the use case is open to all interested organizations.

    DATES:

    Interested parties must contact NIST to request a letter of interest template to be completed and submitted to NIST. Letters of interest will be accepted on a first come, first served basis. Collaborative activities will commence as soon as enough completed and signed letters of interest have been returned to address all the necessary components and capabilities, but no earlier than April 25, 2018. When the use case has been completed, NIST will post a notice on the NCCoE Energy Sector Asset Management use case website at: https://nccoe.nist.gov/projects/use-cases/energy-sector/asset-management announcing the completion of the use case and informing the public that it will no longer accept letters of interest for this use case.

    ADDRESSES:

    The NCCoE is located at 9700 Great Seneca Highway, Rockville, MD 20850. Letters of interest must be submitted to [email protected] or via hardcopy to National Institute of Standards and Technology, NCCoE; 9700 Great Seneca Highway, Rockville, MD 20850. Organizations whose letters of interest are accepted in accordance with the process set forth in the SUPPLEMENTARY INFORMATION section of this notice will be asked to sign a consortium Cooperative Research and Development Agreement (CRADA) with NIST. An NCCoE consortium CRADA template can be found at: http://nccoe.nist.gov/node/138.

    FOR FURTHER INFORMATION CONTACT:

    Jim McCarthy via email to [email protected]; by telephone 301-975-0228; or by mail to National Institute of Standards and Technology, NCCoE; 9700 Great Seneca Highway, Rockville, MD 20850. Additional details about the Energy Sector Asset Management use case are available at: https://nccoe.nist.gov/projects/use-cases/energy-sector.

    SUPPLEMENTARY INFORMATION:

    Background: The NCCoE, part of NIST, is a public-private collaboration for accelerating the widespread adoption of integrated cybersecurity tools and technologies. The NCCoE brings together experts from industry, government, and academia under one roof to develop practical, interoperable cybersecurity approaches that address the real-world needs of complex Information Technology (IT). By accelerating dissemination and use of these integrated tools and technologies for protecting IT assets, the NCCoE will enhance trust in U.S. IT communications, data, and storage systems; reduce risk for companies and individuals using IT systems; and encourage development of innovative, job-creating cybersecurity products and services.

    Process: NIST is soliciting responses from all sources of relevant security capabilities (see below) to enter into a Cooperative Research and Development Agreement (CRADA) to provide products and technical expertise to support and demonstrate platforms for the Energy Sector Asset Management use case. The full use case can be viewed at: https://nccoe.nist.gov/projects/use-cases/energy-sector/asset-management.

    Interested parties should contact NIST using the information provided in the FOR FURTHER INFORMATION CONTACT section of this notice. NIST will then provide each interested party with a letter of interest template, which the party must complete, certify that it is accurate, and submit to NIST. NIST will contact interested parties if there are questions regarding the responsiveness of the letters of interest to the use case objective or requirements identified below. NIST will select participants who have submitted complete letters of interest on a first come, first served basis within each category of product components or capabilities listed below up to the number of participants in each category necessary to carry out this use case. However, there may be continuing opportunity to participate even after initial activity commences. Selected participants will be required to enter into a consortium CRADA with NIST (for reference, see ADDRESSES section above). NIST published a notice in the Federal Register on October 19, 2012 (77 FR 64314) inviting U.S. companies to enter into a National Cybersecurity Excellence Partnerships (NCEPs) in furtherance of the NCCoE. For this demonstration project, NCEP partners will not be given priority for participation.

    Use case Objective: The objective of this use case is to provide guidance on how energy companies may enhance OT (Operational Technology)/ICS (Industrial Controls System) asset management by leveraging capabilities that may already exist in an operating environment or by implementing new ones. A detailed description of the Energy Sector Asset Management use case is available at: https://nccoe.nist.gov/projects/use-cases/energy-sector/asset-management.

    Requirements: Each responding organization's letter of interest should identify which security platform component(s) or capability(ies) it is offering. Letters of interest should not include company proprietary information, all components and capabilities must be commercially available, and all products must be able to specifically address OT/ICS environments in order to be considered for collaboration on this project. Components are listed in section 3 of the Energy Sector Asset Management use case (for reference, please see the link in the PROCESS section above) and include, but are not limited to:

    • OT/ICS-specific asset discovery and management tools • Reliable/secure/encrypted communication devices • Cybersecurity event/attack detection capability • Alerting capability (e.g. Security Information and Event Management or SIEM)

    Each responding organization's letter of interest should identify how their products address one or more of the following desired solution characteristics in section 3 of the Energy Sector Asset Management use case (for reference, please see the link in the PROCESS section above):

    • OT/ICS asset inventory (to include devices using serial connections) • high-speed communication mechanisms for remote asset management • reliable/secure/encrypted communications • continuous asset monitoring • log analysis and correlation • cybersecurity event/attack detection • patch level information

    Responding organizations need to understand and, in their letters of interest, commit to provide:

    1. Access for all participants' project teams to component interfaces and the organization's experts necessary to make functional connections among security platform components.

    2. Support for development and demonstration of the Energy Sector Asset Management use case in NCCoE facilities which will be conducted in a manner consistent with the following standards and guidance: NIST Special Publications 1800-5 (DRAFT); 1800-7 (DRAFT); 800-40; 800-53;800-82; 800-160; 800-52; NIST Cybersecurity Framework; NIST Cryptographic Standards and Guidelines; ISO/IEC 27001 Information security management; and NERC CIP 002-5-014-2.

    Additional details about the Energy Sector Asset Management use case are available at: https://nccoe.nist.gov/projects/use-cases/energy-sector/asset-management.

    NIST cannot guarantee that all of the products proposed by respondents will be used in the demonstration. Each prospective participant will be expected to work collaboratively with NIST staff and other project participants under the terms of the consortium CRADA in the development of the Energy Sector Asset Management use case. Prospective participants' contribution to the collaborative effort will include assistance in establishing the necessary interface functionality, connection and set-up capabilities and procedures, demonstration harnesses, environmental and safety conditions for use, integrated platform user instructions, and demonstration plans and scripts necessary to demonstrate the desired capabilities. Each participant will train NIST personnel, as necessary, to operate its product in capability demonstrations. Following successful demonstrations, NIST will publish a description of the security platform and its performance characteristics sufficient to permit other organizations to develop and deploy security platforms that meet the security objectives of the Energy Sector Asset Management use case. These descriptions will be public information.

    Under the terms of the consortium CRADA, NIST will support development of interfaces among participants' products by providing IT infrastructure, laboratory facilities, office facilities, collaboration facilities, and staff support to component composition, security platform documentation, and demonstration activities.

    The dates of the demonstration of the Energy Sector Asset Management use case capability will be announced on the NCCoE website at least two weeks in advance at http://nccoe.nist.gov/. The expected outcome of the demonstration is to improve security across the energy sector. Participating organizations will gain from the knowledge that their products are interoperable with other participants' offerings.

    For additional information on the NCCoE governance, business processes, and NCCoE operational structure, visit the NCCoE website http://nccoe.nist.gov/.

    Kevin Kimball, NIST Chief of Staff.
    [FR Doc. 2018-06024 Filed 3-23-18; 8:45 am] BILLING CODE 3510-13-P
    DEPARTMENT OF COMMERCE National Institute of Standards and Technology NIST Smart Grid Advisory Committee Meeting AGENCY:

    National Institute of Standards and Technology, Department of Commerce.

    ACTION:

    Notice of open meeting.

    SUMMARY:

    The National Institute of Standards and Technology (NIST) Smart Grid Advisory Committee (SGAC or Committee) will meet in open session on Tuesday, April 24, 2018 from 8:30 a.m. to 5:00 p.m. Eastern time and Wednesday, April 25, 2018 from 8:30 a.m. to 12:00 p.m. Eastern time. The primary purposes of this meeting are to provide updates on NIST Smart Grid activities and the intersections with Cyber-Physical Systems program activities, and discuss development and stakeholder engagement for the NIST Framework and Roadmap for Smart Grid Interoperability Standards, Release 4.0. The agenda may change to accommodate Committee business. The final agenda will be posted on the Smart Grid website at http://www.nist.gov/smartgrid.

    DATES:

    The SGAC will meet on Tuesday, April 24, 2018 from 8:30 a.m. to 5:00 p.m. Eastern time and Wednesday, April 25, 2018 from 8:30 a.m. to 12:00 p.m. Eastern time.

    ADDRESSES:

    The meeting will be held in Conference Room C103, Building 215 (Advanced Measurement Laboratory), National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, Maryland 20899. Please note admittance instructions under the SUPPLEMENTARY INFORMATION section of this notice.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Cuong Nguyen, Smart Grid and Cyber-Physical Systems Program Office, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 8200, Gaithersburg, MD 20899-8200; telephone 301-975-2254, fax 301-948-5668; or via email at [email protected]

    SUPPLEMENTARY INFORMATION:

    The Committee was established in accordance with the Federal Advisory Committee Act, as amended, 5 U.S.C. App. The Committee is composed of nine to fifteen members, appointed by the Director of NIST, who were selected on the basis of established records of distinguished service in their professional community and their knowledge of issues affecting Smart Grid deployment and operations. The Committee advises the Director of NIST in carrying out duties authorized by section 1305 of the Energy Independence and Security Act of 2007 (Pub. L. 110-140). The Committee provides input to NIST on Smart Grid standards, priorities, and gaps, on the overall direction, status, and health of the Smart Grid implementation by the Smart Grid industry, and on the direction of Smart Grid research and standards activities. Background information on the Committee is available at http://www.nist.gov/smartgrid/.

    Pursuant to the Federal Advisory Committee Act, as amended, 5 U.S.C. App., notice is hereby given that the NIST Smart Grid Advisory Committee (SGAC or Committee) will meet in open session on Tuesday, April 24, 2018 from 8:30 a.m. to 5:00 p.m. Eastern time and Wednesday, April 25, 2018 from 8:30 a.m. to 12:00 p.m. Eastern time. The meeting will be held in Conference Room C103, Building 215 (Advanced Measurement Laboratory), National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, Maryland 20899. The primary purposes of this meeting are to provide updates on NIST Smart Grid activities and the intersections with Cyber-Physical Systems program activities and to discuss development and stakeholder engagement for the NIST Framework and Roadmap for Smart Grid Interoperability Standards, Release 4.0. The agenda may change to accommodate Committee business. The final agenda will be posted on the Smart Grid website at http://www.nist.gov/smartgrid.

    Individuals and representatives of organizations who would like to offer comments and suggestions related to the Committee's affairs are invited to request a place on the agenda by submitting their request to Cuong Nguyen at [email protected] or (301) 975-2254 no later than 5:00 p.m. Eastern time, Tuesday, April 10, 2018. On Wednesday, April 25, 2018, approximately one-half hour will be reserved at the end of the meeting for public comments, and speaking times will be assigned on a first-come, first-serve basis. The amount of time per speaker will be determined by the number of requests received, but is likely to be about three minutes each. Questions from the public will not be considered during this period. Speakers who wish to expand upon their oral statements, those who had wished to speak but could not be accommodated on the agenda, and those who were unable to attend in person are invited to submit written statements to Mr. Cuong Nguyen, Smart Grid and Cyber-Physical Systems Program Office, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 8200, Gaithersburg, MD 20899-8200; telephone 301-975-2254, fax 301-948-5668; or via email at [email protected]

    All visitors to the NIST site are required to pre-register to be admitted. Anyone wishing to attend this meeting must register by 5:00 p.m. Eastern time, Tuesday, April 10, 2018, in order to attend. Please submit your full name, time of arrival, email address, and phone number to Cuong Nguyen. Non-U.S. citizens must submit additional information; please contact Mr. Nguyen. Mr. Nguyen's email address is [email protected] and his phone number is (301) 975-2254. For participants attending in person, please note that federal agencies, including NIST, can only accept a state-issued driver's license or identification card for access to federal facilities if such license or identification card is issued by a state that is compliant with the REAL ID Act of 2005 (Pub. L. 109-13), or by a state that has an extension for REAL ID compliance. NIST currently accepts other forms of federal-issued identification in lieu of a state-issued driver's license. For detailed information, please contact Mr. Nguyen or visit: http://www.nist.gov/public_affairs/visitor/.

    Kevin Kimball, NIST Chief of Staff.
    [FR Doc. 2018-06023 Filed 3-23-18; 8:45 am] BILLING CODE 3510-13-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF995 Initiation of 5-Year Review for the Endangered New York Bight, Chesapeake Bay, Carolina and South Atlantic Distinct Population Segments of Atlantic Sturgeon and the Threatened Gulf of Maine Distinct Population Segment of Atlantic Sturgeon; Correction AGENCY:

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

    ACTION:

    Notice of initiation of 5-year review and request for information; correction.

    SUMMARY:

    We, NMFS, published a notice in the Federal Register of March 16, 2018, announcing our intent to conduct a 5-year review for the threatened Gulf of Maine distinct population segment (DPS) of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), the endangered New York Bight DPS of Atlantic sturgeon, the endangered Chesapeake Bay DPS of Atlantic sturgeon, the endangered Carolina DPS of Atlantic sturgeon and the endangered South Atlantic DPS of Atlantic sturgeon under the Endangered Species Act of 1973, as amended (ESA). The notice contained an incorrect link to the Federal e-Rulemaking Portal for submitting comments. This document corrects the link.

    ADDRESSES:

    Submit your comments by including NOAA-NMFS-2018-0041, by either of the following methods:

    Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal.

    1. Go to https://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0041.

    2. Click the “Comment Now!” icon, complete the required fields.

    3. Enter or attach your comments.

    Mail: Submit written comments to Lynn Lankshear, NMFS, Greater Atlantic Region Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930 or Andrew Herndon, NMFS, Southeast Regional Office, 263 13th Avenue South, Saint Petersburg, FL 33701.

    Instructions: We may not consider comments if they are sent by any other method, to any other address or individual, or received after the end of the specified period. 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).

    FOR FURTHER INFORMATION CONTACT:

    Lynn Lankshear at the above address, by phone at 978-282-8473 or [email protected] or Andrew Herndon at the above address, by phone at 727-824-5312 or [email protected].

    SUPPLEMENTARY INFORMATION: Need for Correction

    In the Federal Register of March 16, 2018, in FR Doc. 2018-05306, on page 11731, in the third column, the ADDRESSES section contained an incorrect link to the Federal e-Rulemaking Portal and is corrected in this document.

    Authority:

    16 U.S.C. 1531 et seq.

    Dated: March 21, 2018. Angela Somma, Chief, Endangered Species Division, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-06057 Filed 3-23-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG100 Pacific Bluefin Tuna Management Strategy Evaluation National Marine Fisheries Service Listening Sessions; Meeting Announcement AGENCY:

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

    ACTION:

    Notice of public meeting.

    SUMMARY:

    NMFS is holding a listening session to provide information and receive stakeholder input regarding an upcoming Pacific bluefin tuna management strategy evaluation workshop. The listening session will be broadcast in two separate locations, and will include presentations and time for stakeholder input into the development of management objectives. The meeting topics are described under the SUPPLEMENTARY INFORMATION section of this notice.

    DATES:

    The meeting will be held on April 18, 2018, from 12:30 p.m. to 4:30 p.m. PDT.

    ADDRESSES:

    The meeting will be held concurrently in two locations: (1) In the Pacific Conference Room (Room 300) at NMFS, Southwest Fisheries Science Center, 8901 La Jolla Shores Drive, La Jolla, California 92037; (2) Room 3400 at the Long Beach Federal Building, 501 W Ocean Blvd., Long Beach, California 90802. Please notify Celia Barroso (see FOR FURTHER INFORMATION CONTACT) by April 11, 2018, if you plan to attend and whether you will be attending in person or remotely. The meetings will be accessible by webinar—instructions and background materials will be emailed to meeting participants.

    FOR FURTHER INFORMATION CONTACT:

    Celia Barroso, West Coast Region, NMFS, at [email protected], or at (562) 432-1850.

    SUPPLEMENTARY INFORMATION:

    The International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean is hosting the first Pacific bluefin tuna management strategy evaluation (MSE) workshop May 30-31, 2018, in Yokohama, Japan. MSE is a simulation that allows stakeholders (e.g., industry, managers, scientists) to assess how well different management strategies, such as harvest control rules, meet the objectives of the fishery. In accordance with the outcomes from the 2nd Joint Inter-American Tropical Tuna Commission—Western and Central Pacific Fisheries Commission Northern Committee Working Group meeting,1 NMFS anticipates that at this first workshop, participants will begin to develop potential management objectives that might be used in the MSE for the Pacific bluefin tuna fishery.

    1https://www.wcpfc.int/meetings/nc13.

    For the listening session, NMFS will provide stakeholders with background on the status of the Pacific bluefin tuna stock and the MSE process. Additionally, NMFS is interested in learning from stakeholders about preferred management objectives. The manner of public comment will be at the discretion of the presenters and NMFS staff.

    Pacific Bluefin Tuna MSE Listening Session Topics

    The Pacific bluefin tuna MSE topics will include, but are not limited to, the following:

    (1) An overview of MSE and

    (2) Example management objectives for Pacific bluefin tuna.

    Special Accommodations

    The meeting location is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Celia Barroso (see FOR FURTHER INFORMATION CONTACT) by April 5, 2018.

    Authority:

    16 U.S.C. 951 et seq. and 16 U.S.C. 6901 et seq.

    Dated: March 20, 2018. Jennifer M. Wallace, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-06032 Filed 3-23-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Deep Seabed Mining Exploration Licenses AGENCY:

    National Oceanic and Atmospheric Administration, Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before May 25, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Kerry Kehoe (301) 713-3155 extension 151, or [email protected]

    SUPPLEMENTARY INFORMATION: I. Abstract

    This request is for extension of a currently approved information collection.

    NOAA's regulations at 15 CFR 970 govern the issuing and monitoring of exploration licenses under the Deep Seabed Hard Mineral Resources Act. Any persons seeking a license must submit certain information that allows NOAA to ensure the applicant meets the standards of the Act. Persons with licenses are required to conduct monitoring and make reports, and they may request revisions, transfers, or extensions of licenses.

    II. Method of Collection

    Paper submissions are used; however, applicants are encouraged to submit supporting documentation electronically when feasible.

    III. Data

    OMB Control Number: 0648-0145.

    Form Number(s): None.

    Type of Review: Regular submission (extension of a currently approved information collection).

    Affected Public: Business or other for-profit organizations.

    Estimated Number of Respondents: 2.

    Estimated Time per Response: Applications, 2,000-4,000 hours (no applications are expected); license renewals, 250 hours; reports, 20 hours.

    Estimated Total Annual Burden Hours: 290.

    Estimated Total Annual Cost to Public: $200 in recordkeeping/reporting costs.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: March 21, 2018. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2018-06045 Filed 3-23-18; 8:45 am] BILLING CODE 3510-08-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; StormReady, TsunamiReady, StormReady/TsunamiReady, and StormReady Supporter Application Forms AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before May 25, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Rocky Lopes, (301) 427-9380 or [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Abstract

    This request is for extension of a currently approved information collection.

    NOAA's National Weather Service is extending its “StormReady, TsunamiReady, StormReady/TsunamiReady, StormReady Supporter and TsunamiReady Supporter Application Forms”. StormReady and TsunamiReady are voluntary programs offered as a means of providing guidance and incentive to officials interested in improving their respective hazardous weather operations. The StormReady Application Form, Tsunami-Ready Application Form and TsunamiReady/StormReady Application Form will be used by localities to apply for initial StormReady or TsunamiReady and StormReady recognition and renewal of that recognition every six years. The government will use the information collected to determine whether a community has met all of the criteria to receive StormReady and/or TsunamiReady recognition. Businesses, schools, non profit organizations and other non-governmental entities often establish severe weather safety plans and actively promote severe weather safety awareness activities. Many of these entities do not have the resources necessary to fulfill all the eligibility requirements to achieve the full StormReady, StormReady/TsunamiReady or StormReady/Tsunami recognition. Therefore, the NWS established the StormReady and TsunamiReady Supporter programs to recognize entities that promote the principles and guidelines of the full programs, but do not meet the eligibility requirements for full recognition.

    II. Method of Collection

    Applications may be faxed, mailed or emailed.

    III. Data

    OMB Control Number: 0648-0419.

    Form Number(s): None.

    Type of Review: Regular submission (extension of a currently approved information collection).

    Affected Public: Business or other for-profit organizations; not-for-profit institutions.

    Estimated Number of Respondents: 305.

    Estimated Time per Response: Initial applications, 2 hours; renewal applications, 1 hour.

    Estimated Total Annual Burden Hours: 565.

    Estimated Total Annual Cost to Public: $150 in recordkeeping/reporting costs.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: March 21, 2018. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2018-06044 Filed 3-23-18; 8:45 am] BILLING CODE 3510-KE-P
    DEPARTMENT OF COMMERCE National Telecommunications and Information Administration Commerce Spectrum Management Advisory Committee Meeting AGENCY:

    National Telecommunications and Information Administration, U.S. Department of Commerce.

    ACTION:

    Notice of open meeting.

    SUMMARY:

    This notice announces a public meeting of the Commerce Spectrum Management Advisory Committee (Committee). The Committee provides advice to the Assistant Secretary of Commerce for Communications and Information and the National Telecommunications and Information Administration (NTIA) on spectrum management policy matters.

    DATES:

    The meeting will be held on April 25, 2018, from 9:00 a.m. to 12:00 p.m., Eastern Daylight Time (EDT).

    ADDRESSES:

    The meeting will be held at the Morgan, Lewis & Bockius, LLP, 1111 Pennsylvania Avenue NW, Suite 201, Washington, DC 20004. Public comments may be mailed to Commerce Spectrum Management Advisory Committee, National Telecommunications and Information Administration, 1401 Constitution Avenue NW, Room 4600, Washington, DC 20230 or emailed to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    David J. Reed, Designated Federal Officer, at (202) 482-5955 or [email protected]; and/or visit NTIA's website at https://www.ntia.doc.gov/category/csmac.

    SUPPLEMENTARY INFORMATION:

    Background: The Committee provides advice to the Assistant Secretary of Commerce for Communications and Information on needed reforms to domestic spectrum policies and management in order to: License radio frequencies in a way that maximizes public benefits; keep wireless networks as open to innovation as possible; and make wireless services available to all Americans. See Charter at https://www.ntia.doc.gov/files/ntia/publications/csmac_charter-2017.pdf.

    This Committee is subject to the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2, and is consistent with the National Telecommunications and Information Administration Act, 47 U.S.C. 904(b). The Committee functions solely as an advisory body in compliance with the FACA. For more information about the Committee visit: https://www.ntia.doc.gov/category/csmac.

    Matters To Be Considered: The Committee provides advice to the Assistant Secretary to assist in developing and maintaining spectrum management policies that enable the United States to maintain or strengthen its global leadership role in the introduction of communications technology, services, and innovation; thus expanding the economy, adding jobs, and increasing international trade, while at the same time providing for the expansion of existing technologies and supporting the country's homeland security, national defense, and other critical needs of government missions. NTIA will post a detailed agenda on its website, https://www.ntia.doc.gov/category/csmac, prior to the meeting. To the extent that the meeting time and agenda permit, any member of the public may speak to or otherwise address the Committee regarding the agenda items. See Open Meeting and Public Participation Policy, available at https://www.ntia.doc.gov/category/csmac.

    Time and Date: The meeting will be held on April 25, 2018, from 9:00 a.m. to 12:00 p.m. EDT. The meeting time and the agenda topics are subject to change. The meeting will be available via two-way audio link and may be webcast. Please refer to NTIA's website, https://www.ntia.doc.gov/category/csmac, for the most up-to-date meeting agenda and access information.

    Place: The meeting will be held at Morgan, Lewis & Bockius, LLP, 1111 Pennsylvania Avenue NW, Suite 201, Washington, DC 20004. The meeting will be open to the public and members of the press on a first-come, first-served basis as space is limited. The public meeting is physically accessible to people with disabilities. Individuals requiring accommodations, such as sign language interpretation or other auxiliary aids, are asked to notify Mr. Reed at (202) 482-5955 or [email protected] at least ten (10) business days before the meeting.

    Status: Interested parties are invited to attend and to submit written comments to the Committee at any time before or after the meeting. Parties wishing to submit written comments for consideration by the Committee in advance of a meeting may send them via postal mail to Commerce Spectrum Management Advisory Committee, National Telecommunications and Information Administration, 1401 Constitution Avenue NW, Room 4600, Washington, DC 20230. It would be helpful if paper submissions also include a compact disc (CD) that contains the comments in Microsoft Word and/or PDF file formats. CDs should be labeled with the name and organizational affiliation of the filer. Alternatively, comments may be submitted via electronic mail to [email protected] and should also be in one or both of the file formats specified above. Comments must be received five (5) business days before the scheduled meeting date in order to provide sufficient time for review. Comments received after this date will be distributed to the Committee, but may not be reviewed prior to the meeting.

    Records: NTIA maintains records of all Committee proceedings. Committee records are available for public inspection at NTIA's Washington, DC office at the address above. Documents including the Committee's charter, member list, agendas, minutes, and reports are available on NTIA's website at https://www.ntia.doc.gov/category/csmac.

    Dated: March 20, 2018. Kathy D. Smith, Chief Counsel, National Telecommunications and Information Administration.
    [FR Doc. 2018-06035 Filed 3-23-18; 8:45 am] BILLING CODE 3510-60-P
    DEPARTMENT OF EDUCATION [Docket No. ED-2018-ICCD-0028] Agency Information Collection Activities; Comment Request; Higher Education Hurricane and Wildfire Relief Program Application AGENCY:

    Office of Postsecondary Education (OPE), Department of Education (ED).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, ED is requesting the Office of Management and Budget (OMB) to conduct an emergency review of a new information collection.

    DATES:

    Approval by the OMB has been requested by before March 28, 2018. A regular clearance process is also hereby being initiated. Interested persons are invited to submit comments on or before March 28, 2018.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2018-ICCD-0028. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW, LBJ, Room 216-34, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact Lauren Kennedy, 202-453-7957.

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: Higher Education Hurricane and Wildfire Relief Program Application.

    OMB Control Number: 1840—NEW.

    Type of Review: A new information collection.

    Respondents/Affected Public: Private Sector.

    Total Estimated Number of Annual Responses: 550.

    Total Estimated Number of Annual Burden Hours: 16,000.

    Abstract: The Bipartisan Budget Act of 2018, signed into law by President Trump on February 9, 2018, included significant new funding to support disaster relief. The U.S. Department of Education (Department) will award up to $2.7 billion to assist K-12 schools and school districts and institutions of higher education (IHEs) in meeting the educational needs of students affected by Hurricanes Harvey, Irma and Maria and the 2017 California wildfires. This disaster assistance will help schools, school districts and IHEs return to their full capabilities as quickly and effectively as possible. Pursuant to 5 CFR 1320.13, the Department requests that OMB review this collection under its emergency procedures, based on harm to public due to an unanticipated/unforeseen natural disaster event that occurred beyond ED's control. There are two higher education funding opportunities that require emergency clearance under the Paperwork Reduction Act: Emergency Assistance to Institutions of Higher Education: Congress appropriated $100 million for this program; which will provide emergency assistance to IHEs and their students in areas directly affected by the covered disasters or emergencies. And the Defraying Costs of Enrolling Displaced Students in Higher Education: Congress appropriated $75 million for this program, which will provide payments to IHEs to help defray the unexpected expenses associated with enrolling displaced students from IHEs directly affected by a covered disaster or emergency, in accordance with criteria to be established and made publicly available.

    Additional Information: An emergency clearance approval for the use of the system is described below due to the following conditions:

    The Bipartisan Budget Act of 2018, signed into law by President Trump on February 9, 2018, included significant new funding to support disaster relief. The U.S. Department of Education (Department) will award up to $2.7 billion to assist K-12 schools and school districts and institutions of higher education (IHEs) in meeting the educational needs of students affected by Hurricanes Harvey, Irma and Maria and the 2017 California wildfires. This disaster assistance will help schools, school districts and IHEs return to their full capabilities as quickly and effectively as possible.

    Pursuant to 5 CFR 1320.13, the Department requests that OMB review this collection under its emergency procedures, based on harm to public due to an unanticipated/unforeseen natural disaster event that occurred beyond ED's control.

    There are two higher education funding opportunities that require emergency clearance under the Paperwork Reduction Act:

    Emergency Assistance to Institutions of Higher Education: Congress appropriated $100 million for this program; which will provide emergency assistance to IHEs and their students in areas directly affected by the covered disasters or emergencies.

    Defraying Costs of Enrolling Displaced Students in Higher Education: Congress appropriated $75 million for this program, which will provide payments to IHEs to help defray the unexpected expenses associated with enrolling displaced students from IHEs directly affected by a covered disaster or emergency, in accordance with criteria to be established and made publicly available.

    Dated: March 20, 2018. Kate Mullan, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2018-06028 Filed 3-23-18; 8:45 am] BILLING CODE 4000-01-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: EC18-72-000.

    Applicants: Walleye Energy, LLC, FirstEnergy Generation, LLC.

    Description: Joint Application for Authorization For Disposition and Consolidation of Jurisdictional Facilities and Acquisition of an Existing Generation Facility, et al.

    Filed Date: 3/20/18.

    Accession Number: 20180320-5198.

    Comments Due: 5 p.m. ET 4/10/18.

    Take notice that the Commission received the following exempt wholesale generator filings:

    Docket Numbers: EG18-57-000.

    Applicants: Imperial Valley Solar 2, LLC.

    Description: Notice of Certification of Imperial Valley Solar 2, LLC.

    Filed Date: 3/19/18.

    Accession Number: 20180319-5206.

    Comments Due: 5 p.m. ET 4/9/18.

    Docket Numbers: EG18-58-000.

    Applicants: Delta Solar Power I, LLC.

    Description: Notice of Self-Certification of Exempt Wholesale Generator Status of Delta Solar Power I, LLC.

    Filed Date: 3/20/18.

    Accession Number: 20180320-5151.

    Comments Due: 5 p.m. ET 4/10/18.

    Docket Numbers: EG18-59-000.

    Applicants: Delta Solar Power II, LLC.

    Description: Notice of Self-Certification of Exempt Wholesale Generator Status of Delta Solar Power II, LLC.

    Filed Date: 3/20/18.

    Accession Number: 20180320-5154.

    Comments Due: 5 p.m. ET 4/10/18.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-1325-008; ER17-1968-000; ER17-1967-000; ER17-1970-000; ER17-1971-000; ER17-1964-000; ER17-1972-000; ER17-1973-000.

    Applicants: CinCap V LLC, Duke Energy Beckjord, LLC, Duke Energy Carolinas, LLC, Duke Energy Commercial Enterprises, Inc., Duke Energy Florida, LLC, Duke Energy Progress, LLC, Duke Energy Renewable Services, LLC, Duke Energy SAM, LLC.

    Description: Supplement to June 30, 2017 Updated Market Power Analysis for the Southeast Region of CinCap V, LLC, et al.

    Filed Date: 3/20/18.

    Accession Number: 20180320-5097.

    Comments Due: 5 p.m. ET 4/10/18.

    Docket Numbers: ER13-102-012.

    Applicants: New York Independent System Operator, Inc.

    Description: Compliance filing: Compliance with 2/15/18 Order directives re: Order No. 1000 to be effective 4/1/2016.

    Filed Date: 3/19/18.

    Accession Number: 20180319-5184.

    Comments Due: 5 p.m. ET 4/9/18.

    Docket Numbers: ER16-2095-003.

    Applicants: Midwest Generation, LLC.

    Description: Compliance filing: Reactive Service Tariff Compliance Filing to be effective 8/1/2016.

    Filed Date: 3/20/18.

    Accession Number: 20180320-5211.

    Comments Due: 5 p.m. ET 4/10/18.

    Docket Numbers: ER17-179-002.

    Applicants: American Transmission Systems, Incorporated, PPL Electric Utilities Corporation, PJM Interconnection, L.L.C.

    Description: Compliance filing: PJM Transmission Owners submit Compliance Filing re: 2/15/18 Order in ER17-179 to be effective 12/31/9998.

    Filed Date: 3/19/18.

    Accession Number: 20180319-5186.

    Comments Due: 5 p.m. ET 4/9/18.

    Docket Numbers: ER17-179-003.

    Applicants: PJM Interconnection, L.L.C.

    Description: Compliance filing: Compliance per February 15, 2018 order in Docket No. ER17-179 to be effective 12/31/9998.

    Filed Date: 3/19/18.

    Accession Number: 20180319-5189.

    Comments Due: 5 p.m. ET 4/9/18.

    Docket Numbers: ER18-661-000.

    Applicants: Midcontinent Independent System Operator, Inc., Ameren Illinois Company.

    Description: Report Filing: 2018-03-20_Refund Report for Ameren-Farmington 1st Rev WDS to be effective N/A.

    Filed Date: 3/20/18.

    Accession Number: 20180320-5025.

    Comments Due: 5 p.m. ET 4/10/18.

    Docket Numbers: ER18-1138-000.

    Applicants: PPL Electric Utilities Corporation.

    Description: Request for Waiver, et al. of PPL Electric Utilities Corporation.

    Filed Date: 3/16/18.

    Accession Number: 20180316-5220.

    Comments Due: 5 p.m. ET 3/30/18.

    Docket Numbers: ER18-1142-000.

    Applicants: Imperial Valley Solar 2, LLC.

    Description: Baseline eTariff Filing: Baseline new to be effective 12/13/9998.

    Filed Date: 3/19/18.

    Accession Number: 20180319-5174.

    Comments Due: 5 p.m. ET 4/9/18.

    Docket Numbers: ER18-1143-000.

    Applicants: Duke Energy Indiana, LLC.

    Description: § 205(d) Rate Filing: 2018 Annual Reconciliation Filing RS No. 253 to be effective 7/1/2017.

    Filed Date: 3/20/18.

    Accession Number: 20180320-5015.

    Comments Due: 5 p.m. ET 4/10/18.

    Docket Numbers: ER18-1148-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Clean-up of Operating Agreement, Schedule 6, sec 1.3 and 1.5 to be effective 7/18/2016.

    Filed Date: 3/20/18.

    Accession Number: 20180320-5188.

    Comments Due: 5 p.m. ET 4/10/18.

    Docket Numbers: ER18-1149-000.

    Applicants: Walleye Energy, LLC.

    Description: Baseline eTariff Filing: Market Based Rate Tariff to be effective 5/21/2018.

    Filed Date: 3/20/18.

    Accession Number: 20180320-5213.

    Comments Due: 5 p.m. ET 4/10/18.

    Take notice that the Commission received the following electric reliability filings:

    Docket Numbers: RD18-4-000.

    Applicants: North American Electric Reliability Corporation.

    Description: Petition of the North American Electric Reliability Corporation for Approval of Proposed Reliability Standard PRC-025-2.

    Filed Date: 3/16/18.

    Accession Number: 20180316-5245.

    Comments Due: 5 p.m. ET 4/19/18.

    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: March 20, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-06038 Filed 3-23-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. RM98-1-000] Records Governing Off-the-Record Communications; Public Notice

    This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.

    Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.

    Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.

    Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).

    The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for electronic review at the Commission in the Public Reference Room or may be viewed on the Commission's website 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, please contact FERC Online Support at [email protected] or toll free at (866) 208-3676, or for TTY, contact (202)502-8659.

    Docket No. File date Presenter or requester Prohibited: 1. CP15-88-000 3-9-2018 Bluegrass Area Development District. 2. CP17-494-000, CP17-495-000 3-13-2018 Saint Michael & All Angels Episcopal Church. 3. CP15-558-000 3-14-2018 Andrea B. Wallace. Exempt: 1. CP16-10-000, CP15-554-000 3-6-2018 U.S. House Representative Donald S. Beyer Jr. 2. CP15-558-000 3-6-2018 State of New Jersey Senate and General Assembly.1 3. CP15-88-000 3-9-2018 Madison County, Kentucky. 4. CP15-88-000 3-9-2018 Madison County Schools. Dated: March 20, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.

    1 Senators Shirley K. Turner and Christopher Bateman. Assemblymen Reed Gusciora, Andrew Zwicker, Roy Frieman, and Assemblywoman Verlina Reynolds-Jackson.

    [FR Doc. 2018-06039 Filed 3-23-18; 8:45 am] BILLING CODE 6717-01-P
    ENVIRONMENTAL PROTECTION AGENCY [FRL-9975-54—Region 1] 2018 Spring Joint Meeting of the Ozone Transport Commission and the Mid-Atlantic Northeast Visibility Union AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice; meeting.

    SUMMARY:

    The United States Environmental Protection Agency (EPA) is announcing the joint 2018 Spring Meeting of the Ozone Transport Commission (OTC) and the Mid-Atlantic Northeast Visibility Union (MANE-VU). The meeting agenda will include topics related to reducing ground-level ozone precursors and matters relative to Regional Haze and visibility improvement in Federal Class I areas in a multi-pollutant context.

    DATES:

    The meeting will be held on June 7, 2018 starting at 9:15 a.m. and ending at 4:00 p.m.

    ADDRESSES:

    Location: Hyatt Regency Baltimore, 300 Light Street, Baltimore, MD 21202; (410) 528-1234.

    FOR FURTHER INFORMATION CONTACT:

    For documents and press inquiries contact: Ozone Transport Commission, 444 North Capitol Street NW, Suite 322, Washington, DC 20001; (202) 508-3840; email: [email protected]; website: http://www.otcair.org.

    SUPPLEMENTARY INFORMATION:

    The Clean Air Act Amendments of 1990 contain at Section 184 provisions for the Control of Interstate Ozone Air Pollution. Section 184(a) establishes an Ozone Transport Region (OTR) comprised of the States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, parts of Virginia and the District of Columbia. The purpose of the OTC is to deal with ground-level ozone formation, transport, and control within the OTR. The Mid-Atlantic/Northeast Visibility Union (MANE-VU) was formed at in 2001, in response to EPA's issuance of the Regional Haze rule. MANE-VU's members include: Connecticut, Delaware, the District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, the Penobscot Indian Nation, the St. Regis Mohawk Tribe along with EPA and Federal Land Managers.

    Type of Meeting: Open.

    Agenda: Copies of the final agenda will be available from the OTC office (202) 508-3840; by email: [email protected] or via the OTC website at http://www.otcair.org.

    Dated: March 15, 2018. Alexandra Dapolito Dunn, Regional Administrator, EPA Region 1.
    [FR Doc. 2018-06007 Filed 3-23-18; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL RESERVE SYSTEM Formations of, Acquisitions by, and Mergers of Savings and Loan Holding Companies

    The companies listed in this notice have applied to the Board for approval, pursuant to the Home Owners' Loan Act (12 U.S.C. 1461 et seq.) (HOLA), Regulation LL (12 CFR part 238), and Regulation MM (12 CFR part 239), and all other applicable statutes and regulations to become a savings and loan holding company and/or to acquire the assets or the ownership of, control of, or the power to vote shares of a savings association and nonbanking companies owned by the savings and loan holding company, including the companies listed below.

    The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the HOLA (12 U.S.C. 1467a(e)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 10(c)(4)(B) of the HOLA (12 U.S.C. 1467a(c)(4)(B)). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.

    Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than April 23, 2018.

    A. Federal Reserve Bank of Minneapolis (Mark A. Rauzi, Vice President), Assistant Vice President) 90 Hennepin Avenue, Minneapolis, Minnesota 55480-0291:

    1. Meta Financial Group Inc., Sioux Falls, South Dakota; to convert back to a savings and loan holding company after merging with Crestmark Bancorp, Troy Michigan and the merging of Crestmark Bank, Troy Michigan, into Meta Bank, Sioux Falls, South Dakota.

    Meta Financial Group and Meta Bank will retain all of their current operations.

    Board of Governors of the Federal Reserve System, March 20, 2018. Ann E. Misback, Secretary of the Board.
    [FR Doc. 2018-05997 Filed 3-23-18; 8:45 am] BILLING CODE P
    FEDERAL RESERVE SYSTEM Formations of, Acquisitions by, and Mergers of Bank Holding Companies

    The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841 et seq.) (BHC Act), Regulation Y (12 CFR part 225), and all other applicable statutes and regulations to become a bank holding company and/or to acquire the assets or the ownership of, control of, or the power to vote shares of a bank or bank holding company and all of the banks and nonbanking companies owned by the bank holding company, including the companies listed below.

    The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.

    Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than April 23, 2018.

    A. Federal Reserve Bank of Minneapolis (Mark A. Rauzi, Vice President), Assistant Vice President) 90 Hennepin Avenue, Minneapolis, Minnesota 55480-0291:

    1. Meta Financial Group, Inc., Sioux Falls, South Dakota; to become a bank holding company by merging with Crestmark Bancorp, Inc., and thereby indirectly acquire Crestmark Bank, both of Troy, Michigan.

    In connection with this application, Applicant will retain MetaBank, Sioux Falls, South Dakota, and thereby engage in operating a savings association pursuant to section 225.28(b)(4)(ii).

    Meta Financial Group, Inc., through MetaBank, also proposes to purchase 80 percent of the shares of each of the following nonbank subsidiaries of Crestmark Bank; CM Sterling, LLC; and TFS LLC, all of Troy, Michigan, and thereby indirectly engage in lending and leasing real property activities, pursuant to sections 225.28 (b)(1) and (b)(3).

    Board of Governors of the Federal Reserve System, March 20, 2018. Ann E. Misback, Secretary of the Board.
    [FR Doc. 2018-05996 Filed 3-23-18; 8:45 am] BILLING CODE 6210-01-P
    FEDERAL RESERVE SYSTEM Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company

    The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).

    The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than April 9, 2018.

    A. Federal Reserve Bank of Atlanta (Kathryn Haney, Director of Applications) 1000 Peachtree Street NE, Atlanta, Georgia 30309. Comments can also be sent electronically to [email protected]:

    1. Kenneth Nelkin, individually and as trustee for Max Nelkin Revocable Trust and Elliette Nelkin Revocable Trust, and Max Nelkin, all of Morgan City, Louisiana; and Elliette Nelkin, New Orleans, Louisiana; to retain shares of MC Bancshares, Inc. and thereby retain shares of MC Bank & Trust Company, both of Morgan City, Louisiana.

    Board of Governors of the Federal Reserve System, March 20, 2018. Ann E. Misback, Secretary of the Board.
    [FR Doc. 2018-05995 Filed 3-23-18; 8:45 am] BILLING CODE 6210-01-P
    DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION [OMB Control No. 9000-0054; Docket No. 2018-0003; Sequence No. 4] Information Collection; U.S.-Flag Air Carriers Statement AGENCY:

    Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

    ACTION:

    Notice of request for public comments regarding an extension to an existing OMB clearance.

    SUMMARY:

    Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve a previously approved information collection requirement concerning U.S.-Flag Air Carriers Statement.

    DATES:

    Submit comments on or before May 25, 2018.

    ADDRESSES:

    Submit comments identified by Information Collection 9000-0054, U.S.-Flag Air Carriers Statement by any of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching the OMB control number 9000-0054. Select the link “Comment Now” that corresponds with “Information Collection “Information Collection 9000-0054, U.S. Flag Air Carriers Statement”. Follow the instructions provided on the screen. Please include your name, company name (if any), and “Information Collection 9000-0054, U.S.-Flag Air Carriers Statement” on your attached document.

    Mail: General Services Administration, Regulatory Secretariat Division (MVCB), 1800 F Street NW, Washington, DC 20405. ATTN: Ms. Mandell/IC 9000-0054, U.S.-Flag Air Carriers Statement.

    Instructions: Please submit comments only and cite Information Collection 9000-0054, U.S.-Flag Air Carriers Statement, in all correspondence related to this collection. Comments received generally will be posted without change to regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check regulations.gov, approximately two-to-three business days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    FOR FURTHER INFORMATION CONTACT:

    Mr. Curtis E. Glover, Sr. Procurement Analyst, Contract Policy Division, GSA, 202-501-1448, or via email at [email protected]

    SUPPLEMENTARY INFORMATION: A. Purpose

    Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 1517) (Fly America Act) requires that all Federal agencies and Government contractors and subcontractors at FAR 47.402, use U.S.-flag air carriers for U.S. Government-financed international air transportation of personnel (and their personal effects) or property, to the extent that service by those carriers is available. It requires the Comptroller General of the United States, in the absence of satisfactory proof of the necessity for foreign-flag air transportation, to disallow expenditures from funds, appropriated or otherwise established for the account of the United States, for international air transportation secured aboard a foreign-flag air carrier if a U.S.-flag air carrier is available to provide such services. In the event that the contractor selects a carrier other than a U.S.-flag air carrier for international air transportation during performance of the contract, the contractor shall include per FAR clause 52.247-64 a statement on vouchers involving such transportation. The contracting officer uses the information furnished in the statement to determine whether adequate justification exists for the contractor's use of other than a U.S.-flag air carrier.

    B. Annual Reporting Burden

    Respondents: 150.

    Responses per Respondent: 2.

    Annual Responses: 300.

    Hours Per Response: .25.

    Total Burden Hours: 75.

    C. Public Comments

    Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.

    Obtaining Copies of Proposals: Requesters may obtain a copy of the information collection documents from the General Services Administration, Regulatory Secretariat Division (MVCB), 1800 F Street NW, Washington, DC, 20405, telephone 202-501-4755.

    Please cite OMB Control No. 9000-0054, U.S.-Flag Air Carriers Statement, in all correspondence.

    Dated: March 20, 2018. Lorin S. Curit, Director, Federal Acquisition Policy Division, Office of Governmentwide Acquisition Policy, Office of Acquisition Policy, Office of Governmentwide Policy.
    [FR Doc. 2018-06042 Filed 3-23-18; 8:45 am] BILLING CODE 6820-EP-P
    DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION [OMB Control No. 9000-0188; Docket No. 2018-0003; Sequence No. 1] Information Collection; Combating Trafficking in Persons AGENCY:

    Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

    ACTION:

    Notice of request for public comments regarding a revision and extension to an existing OMB clearance.

    SUMMARY:

    Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division (MVCB) announces the proposed extension of a public information collection requirement and seeks public comment on the provisions thereof. The Office of Management and Budget (OMB) has approved this information collection requirement for use through April 30, 2018. OMB will be requested to extend its approval for three additional years.

    DATES:

    Submit comments on or before May 25, 2018.

    ADDRESSES:

    Submit comments identified by Information Collection 9000-0188, Combating Trafficking in Persons by any of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching the OMB control number 9000-0188. Select the link “Comment Now” that corresponds with “Information Collection 9000-0188, Combating Trafficking in Persons. Follow the instructions provided on the screen. Please include your name, company name (if any), and “Information Collection 9000-0188, Combating Trafficking in Persons, on your attached document.

    Mail: General Services Administration, Regulatory Secretariat Division (MVCB), 1800 F Street NW, Washington, DC 20405. ATTN: Ms. Mandell/IC 9000-0188, Combating Trafficking in Persons.

    Instructions: Please submit comments only and cite Information Collection 9000-0188, Combating Trafficking in Persons, in all correspondence related to this collection. Comments received generally will be posted without change to regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check regulations.gov, approximately two-to-three business days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    FOR FURTHER INFORMATION CONTACT:

    Ms. Cecelia L. Davis, Procurement Analyst, Acquistion Policy Division, via telephone 202-219-0202, or via email [email protected]

    SUPPLEMENTARY INFORMATION: A. Purpose

    This is a requirement for a revision and renewal of OMB control number 9000-0188, Combating Trafficking in Persons.

    Executive Order (E.O.) 13627, entitled Strengthening Protections Against Trafficking in Persons in Federal Contracts, dated September 25, 2012 (77 FR 60029, October 2, 2012) and Title XVII of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239, enacted January 2, 2013) strengthen the long standing zero-tolerance policy of the United States regarding Government employees and contractor personnel engaging in any form of trafficking in persons.

    Contractors are required to inform the contracting officer and the agency Inspector General of any credible information it receives from any source that alleges a contractor employee, subcontractor, or subcontractor employee, or their agent has engaged in conduct that violates the policy in paragraph (b) of the clause 52.222-50. This requirement flows down to all subcontractors.

    Additional protections are required where the estimated value of the supplies (other than commercially available off-the-shelf (COTS) items) to be acquired outside the United States, or the services to be performed, outside the United States has an estimated value that exceeds $500,000. These protections include the following: (a) The contractor is required to implement and maintain a compliance plan during the performance of the contract that includes an awareness program, a process for employees to report activity inconsistent with the zero-tolerance policy, a recruitment and wage plan, a housing plan, and procedures to prevent subcontractors from engaging in trafficking in persons; and (b) The contractor is required to submit a certification to the contracting officer prior to receiving an award, and annually thereafter, asserting that it has the required compliance plan in place and that there have been no abuses, or that appropriate actions have been taken if abuses have been found. The compliance plan must be provided to the contracting officer upon request, and relevant portions of it must be posted at the workplace and on the contractor's website. Additionally, contractors are required to flow these requirements down to any subcontracts where the estimated value of the supplies acquired or the services required to be performed outside the United States exceeds $500,000.

    B. Annual Reporting Burden

    Title, Associated Form, and OMB Number: Ending Trafficking in Persons, FAR 22.1705 and FAR 52.222-50 and 52.222-56; OMB Control Number 9000-0188.

    Adjustment: This information collection is revised to include appropriate burden hours for reporting that was initially published in FAR Case 2013-001 (78 FR 59317 and 80 FR 4967) for FAR clause 52.222-50, Combating Trafficking in Persons, and provision 52.222-56, Certification Regarding Trafficing in Persons Compliance Plan. The full burden associated with this FAR Case was inadvertently omitted in the Paperwork Reduction Act notice published on August 20, 2014 (78 FR 59317). The following represents current burdens associated with the FAR clause and provision that were published in the proposed and final rules.

    Affected Public: Businesses and other for-profit entities.

    Respondent's Obligation: Required to obtain or retain benefits.

    Type of Request: Revision of a currently approved collection.

    Reporting Frequency: On occasion.

    Respondents: 5,909.

    Responses per Respondent: 3.

    Annual Responses: 17,727.

    Hours per Response: 12.

    Total Burden Hours: 212,724.

    C. Public Comments

    Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.

    Obtaining Copies of Proposals: Requesters may obtain a copy of the information collection documents from the General Services Administration, Regulatory Secretariat Division (MVCB), 1800 F Street NW, Washington, DC 20405, telephone 202-501-4755.

    Please cite OMB Control No. 9000-0188, Combating Trafficking in Persons, in all correspondence.

    Dated: March 20, 2018. Lorin S. Curit, Director, Federal Acquisition Policy Division, Office of Governmentwide Acquisition Policy, Office of Acquisition Policy, Office of Governmentwide Policy.
    [FR Doc. 2018-06043 Filed 3-23-18; 8:45 am] BILLING CODE 6820-EP-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services [Document Identifiers: CMS-10249 and CMS-10261] Agency Information Collection Activities: Proposed Collection; Comment Request AGENCY:

    Centers for Medicare & Medicaid Services, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the Federal Register concerning each proposed collection of information (including each proposed extension or reinstatement of an existing collection of information) and to allow 60 days for public comment on the proposed action. Interested persons are invited to send comments regarding our burden estimates or any other aspect of this collection of information, including the necessity and utility of the proposed information collection for the proper performance of the agency's functions, the accuracy of the estimated burden, ways to enhance the quality, utility, and clarity of the information to be collected, and the use of automated collection techniques or other forms of information technology to minimize the information collection burden.

    DATES:

    Comments must be received by May 25, 2018.

    ADDRESSES:

    When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:

    1. Electronically. You may send your comments electronically to http://www.regulations.gov. Follow the instructions for “Comment or Submission” or “More Search Options” to find the information collection document(s) that are accepting comments.

    2. By regular mail. You may mail written comments to the following address: CMS, Office of Strategic Operations and Regulatory Affairs, Division of Regulations Development, Attention: Document Identifier/OMB Control Number ___, Room C4-26-05, 7500 Security Boulevard, Baltimore, Maryland 21244-1850.

    To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:

    1. Access CMS' website address at https://www.cms.gov/Regulations-and-Guidance/Legislation/PaperworkReductionActof1995/PRA-Listing.html.

    2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to [email protected]

    3. Call the Reports Clearance Office at (410) 786-1326.

    FOR FURTHER INFORMATION CONTACT:

    William Parham at (410) 786-4669.

    SUPPLEMENTARY INFORMATION:

    Contents

    This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see ADDRESSES).

    CMS-10249 Administrative Requirements for Section 6071 of the Deficit Reduction Act CMS-10261 Part C Medicare Advantage Reporting Requirements and Supporting Regulations in 42 CFR 422.516(a)

    Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the Federal Register concerning each proposed collection of information, including each proposed extension or reinstatement of an existing collection of information, before submitting the collection to OMB for approval. To comply with this requirement, CMS is publishing this notice.

    Information Collection

    1. Type of Information Collection Request: Extension of a currently approved collection; Title of Information Collection: Administrative Requirements for Section 6071 of the Deficit Reduction Act; Use: State Operational Protocols should provide enough information such that: The CMS Project Officer and other federal officials may use it to understand the operation of the demonstration, prepare for potential site visits without needing additional information, or both; the State Project Director can use it as the manual for program implementation; and external stakeholders may use it to understand the operation of the demonstration. The financial information collection is used in our financial statements and shared with the auditors who validate CMS' financial position. The Money Follows the Person Rebalancing Demonstration (MFP) Finders File, MFP Program Participation Data file, and MFP Services File are used by the national evaluation contractor to assess program outcomes while we use the information to monitor program implementation. The MFP Quality of Life data is used by the national evaluation contractor to assess program outcomes. The evaluation is used to determine how participants' quality of life changes after transitioning to the community. The semi-annual progress report is used by the national evaluation contractor and CMS to monitor program implementation at the grantee level. Form Number: CMS-10249 (OMB control number: 0938-1053); Frequency: Yearly, quarterly, and semi-annually; Affected Public: State, Local, or Tribal Governments; Number of Respondents: 45; Total Annual Responses: 28,590; Total Annual Hours: 14,225. (For policy questions regarding this collection contact Effie George at 410-786-8639.)

    2. Type of Information Collection Request: Revision of a currently approved collection; Title of Information Collection: Part C Medicare Advantage Reporting Requirements and Supporting Regulations in 42 CFR 422.516(a); Use: Medicare Advantage Organizations (MAOs) must have an effective procedure to develop, compile, evaluate, and report to CMS, to its enrollees, and to the general public, at the times and in the manner that CMS requires, and while safeguarding the confidentiality of the doctor-patient relationship, statistics and other information with respect to: The cost of its operations; the patterns of service utilization; the availability, accessibility, and acceptability of its services; to the extent practical, developments in the health status of its enrollees; information demonstrating that the MAO has a fiscally sound operation; and other matters that CMS may require. CMS also has oversight authority over cost plans which includes establishment of reporting requirements. The changes for the 2019 reporting requirements under Organization Determinations and Reconsiderations (ODR) will add 18 new data elements to the reporting section. The new data elements will allow CMS to obtain more information about who is submitting requests for ODR and whether the service or claim is being provided by a contract or non-contract provider. The timeliness requirement for ODR will also be eliminated to be consistent with Part D reporting. In addition, the number of data reporting elements of grievances is reduced from 23 to 19. The reporting sections for Private Fee For Service (PFFS) Payment Dispute Resolution Process and Mid-Year Network Changes will also be suspended. Form Number: CMS-10261 (OMB control number: 0938-1054); Frequency: Yearly and semi-annually; Affected Public: Private sector (business or other for-profits); Number of Respondents: 432; Total Annual Responses: 3,024; Total Annual Hours: 127,329. (For policy questions regarding this collection contact Maria Sotirelis at 410-786-0552.)

    Dated: March 21, 2018. William N. Parham, III, Director, Paperwork Reduction Staff, Office of Strategic Operations and Regulatory Affairs.
    [FR Doc. 2018-06052 Filed 3-23-18; 8:45 am] BILLING CODE 4120-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2018-D-1067] Evaluation of Bulk Drug Substances Nominated for Use in Compounding Under Section 503B of the Federal Food, Drug, and Cosmetic Act; Draft Guidance for Industry; Availability AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice of availability.

    SUMMARY:

    The Food and Drug Administration (FDA or the Agency) is announcing the availability of a draft guidance for industry entitled “Evaluation of Bulk Drug Substances Nominated for Use in Compounding Under Section 503B of the Federal Food, Drug, and Cosmetic Act.” This draft guidance describes policies that FDA proposes to use in evaluating bulk drug substances nominated for use in compounding under section 503B of the Federal Food, Drug, and Cosmetic Act (FD&C Act) for inclusion on the list of bulk drug substances that can be used in compounding under section 503B.

    DATES:

    Submit either electronic or written comments on the draft guidance by May 25, 2018 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.

    ADDRESSES:

    You may submit comments on any guidance at any time as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

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

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

    Written/Paper Submissions

    Submit written/paper submissions as follows:

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

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

    Instructions: All submissions received must include the Docket No. FDA-2018-D-1067 for “Evaluation of Bulk Drug Substances Nominated for Use in Compounding Under Section 503B of the Federal Food, Drug, and Cosmetic Act.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

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

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

    You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).

    Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the SUPPLEMENTARY INFORMATION section for electronic access to the draft guidance document.

    FOR FURTHER INFORMATION CONTACT:

    Sara Rothman, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 5197, Silver Spring, MD 20903, 301-796-3110.

    SUPPLEMENTARY INFORMATION: I. Background

    FDA is announcing the availability of a draft guidance for industry entitled “Evaluation of Bulk Drug Substances Nominated for Use in Compounding Under Section 503B of the Federal Food, Drug, and Cosmetic Act.” Section 503B (21 U.S.C. 353b), added to the FD&C Act by the Drug Quality and Security Act in 2013, describes the conditions that must be satisfied for human drug products compounded by an outsourcing facility to be exempt from the following three sections of the FD&C Act: section 505 (21 U.S.C. 355) (concerning the approval of drugs under new drug applications or abbreviated new drug applications); section 502(f)(1) (21 U.S.C. 352(f)(1)) (concerning the labeling of drugs with adequate directions for use); and section 582 (21 U.S.C. 360eee-1) (concerning drug supply chain security requirements). One of the conditions that must be met for a drug product compounded by an outsourcing facility to qualify for these exemptions is that the outsourcing facility does not compound drug products using a bulk drug substance unless either: (1) It appears on a list established by the Secretary of Health and Human Services identifying bulk drug substances for which there is a clinical need (see section 503B(a)(2)(A)(i) of the FD&C Act) (503B Bulks List) or (2) the drug compounded from such bulk drug substances appears on the drug shortage list in effect under section 506E of the FD&C Act (21 U.S.C. 356e) at the time of compounding, distribution, and dispensing (see section 503B(a)(2)(A)(ii) of the FD&C Act).

    This draft guidance addresses FDA policies for developing the 503B Bulks List, including the Agency's interpretation of the phrase “bulk drug substances for which there is a clinical need,” as it is used in section 503B of the FD&C Act. The draft guidance also addresses the factors and processes by which the Agency intends to evaluate and list bulk drug substances.

    This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Evaluation of Bulk Drug Substances Nominated for Use in Compounding Under Section 503B of the Federal Food, Drug, and Cosmetic Act.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This draft guidance is not subject to Executive Order 12866.

    II. Electronic Access

    Persons with access to the internet may obtain the draft guidance at either https://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/default.htm, or https://www.regulations.gov.

    Dated: March 20, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-06046 Filed 3-23-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2014-N-0998] Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Regulations for In Vivo Radiopharmaceuticals Used for Diagnosis and Monitoring AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.

    DATES:

    Fax written comments on the collection of information by April 25, 2018.

    ADDRESSES:

    To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202-395-7285, or emailed to [email protected] All comments should be identified with the OMB control number 0910-0409. Also include the FDA docket number found in brackets in the heading of this document.

    FOR FURTHER INFORMATION CONTACT:

    Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733, [email protected]

    SUPPLEMENTARY INFORMATION:

    In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.

    Regulations for In Vivo Radiopharmaceuticals Used for Diagnosis and Monitoring OMB Control Number 0910-0409—Extension

    This information collection supports FDA regulations found in part 315 (21 CFR part 315). These regulations require manufacturers of diagnostic radiopharmaceuticals to submit information that demonstrates the safety and effectiveness of a new diagnostic radiopharmaceutical or of a new indication for use of an approved diagnostic radiopharmaceutical. The regulations also describe the types of indications for diagnostic radiopharmaceuticals and some of the criteria the Agency uses to evaluate the safety and effectiveness of a diagnostic radiopharmaceutical under section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355) (FD&C Act) and section 351 of the Public Health Service Act (42 U.S.C. 262) (the PHS Act). Information about the safety or effectiveness of a diagnostic radiopharmaceutical enables FDA to properly evaluate the safety and effectiveness profiles of a new diagnostic radiopharmaceutical or a new indication for use of an approved diagnostic radiopharmaceutical.

    The regulations clarify existing FDA requirements for approval and evaluation of drug and biological products already in place under the authorities of the FD&C Act and the PHS Act. The information, which is usually submitted as part of a new drug application or biologics license application or as a supplement to an approved application, typically includes, but is not limited to, nonclinical and clinical data on the pharmacology, toxicology, adverse events, radiation safety assessments, and chemistry, manufacturing, and controls. The content and format of an application for approval of a new drug are set forth in § 314.50 (21 CFR 314.50), and approved under OMB control number 0910-0001. This information collection supports part 315, currently approved under OMB control number 0910-0409.

    Based on past submissions (human drug applications and/or new indication supplements for diagnostic radiopharmaceuticals), we estimate two submissions will be received annually. We estimate the time needed to prepare a complete application for a diagnostic radiopharmaceutical to be approximately 10,000 hours, roughly one-fifth of which, or 2,000 hours, is estimated to be spent preparing the portions of the application that would be affected by these regulations. The regulations do not impose any additional reporting burden for safety and effectiveness information on diagnostic radiopharmaceuticals beyond the estimated burden of 2,000 hours because safety and effectiveness information is already required by §  314.50 (collection of information approved under OMB control number 0910-0001). In fact, clarification in these regulations of FDA's criteria for evaluation of diagnostic radiopharmaceuticals is intended to streamline overall information collection burdens, particularly for diagnostic radiopharmaceuticals that may have well-established, low-risk safety profiles, by enabling manufacturers to tailor information submissions and avoid unnecessary clinical studies.

    In the Federal Register of November 2, 2017 (82 FR 50885), we published a notice requesting public comment on the proposed information collection. No comments were received. We therefore retain the following estimated burden for the information collection.

    Table 1—Estimated Annual Reporting Burden 1 21 CFR section Number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Total annual responses Average
  • burden per
  • response
  • Total hours
    Diagnostic Radiopharmaceuticals §§ 315.4, 315.5, and 315.6 2 1 2 2,000 4,000 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

    Table 1 contains estimates of the annual reporting burden for the preparation of the safety and effectiveness sections of an application that are imposed by the applicable regulations. This estimate does not include time needed to conduct studies and clinical trials or other research from which the reported information is obtained.

    The burden estimate has not changed since prior OMB approval.

    Dated: March 19, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-06041 Filed 3-23-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2018-N-1044] Antimicrobial Drugs Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for Comments AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice; establishment of a public docket; request for comments.

    SUMMARY:

    The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Antimicrobial Drugs Advisory Committee. The general function of the committee is to provide advice and recommendations to FDA on regulatory issues. The meeting will be open to the public. FDA is establishing a docket for public comment on this document.

    DATES:

    The meeting will be held on May 2, 2018, from 8:30 a.m. to 4 p.m.

    ADDRESSES:

    DoubleTree by Hilton Hotel Bethesda—Washington, DC, Grand Ballroom, 8120 Wisconsin Ave., Bethesda, MD 20814-3624. The hotel and conference center's telephone number is 301-652-2000. Answers to commonly asked questions about FDA Advisory Committee meetings, including information regarding special accommodations due to a disability, visitor parking, and transportation, may be accessed at: https://www.fda.gov/AdvisoryCommittees/AboutAdvisoryCommittees/ucm408555.htm. Information about the DoubleTree by Hilton Hotel Bethesda—Washington, DC Hotel and Conference Center can be accessed at: http://doubletree3.hilton.com/en/hotels/maryland/doubletree-by-hilton-hotel-bethesda-washington-dc-WASBHDT/index.html.

    FDA is establishing a docket for public comment on this meeting. The docket number is FDA-2018-N-1044. The docket will close on April 30, 2018. Submit either electronic or written comments on this public meeting by April 30, 2018. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before April 30, 2018. The https://www.regulations.gov electronic filing system will accept comments until midnight Eastern Time at the end of April 30, 2018. Comments received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.

    Comments received on or before April 17, 2018, will be provided to the committee. Comments received after that date will be taken into consideration by FDA.

    You may submit comments as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

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

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

    Written/Paper Submissions

    Submit written/paper submissions as follows:

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

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

    Instructions: All submissions received must include the Docket No. FDA-2018-N-1044 for “Antimicrobial Drugs Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for Comments.” Received comments, those filed in a timely manner (see ADDRESSES), will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

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

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

    FOR FURTHER INFORMATION CONTACT:

    Cindy Chee, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-796-9001, Fax: 301-847-8533, email: [email protected], or FDA Advisory Committee Information Line, 1-800-741-8138 (301-443-0572 in the Washington, DC area). A notice in the Federal Register about last minute modifications that impact a previously announced advisory committee meeting cannot always be published quickly enough to provide timely notice. Therefore, you should always check the FDA's website at https://www.fda.gov/AdvisoryCommittees/default.htm and scroll down to the appropriate advisory committee meeting link, or call the advisory committee information line to learn about possible modifications before coming to the meeting.

    SUPPLEMENTARY INFORMATION:

    Agenda: The committee will discuss new drug application (NDA) 210303 for plazomicin, sponsored by Achaogen, Inc., for the proposed indications for the treatment of complicated urinary tract infections and blood stream infections in adults.

    FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's website after the meeting. Background material is available at https://www.fda.gov/AdvisoryCommittees/Calendar/default.htm. Scroll down to the appropriate advisory committee meeting link.

    Procedure: Interested persons may present data, information, or views, orally or in writing, on issues pending before the committee. Written submissions may be made to the contact person on or before April 17, 2018. Oral presentations from the public will be scheduled between approximately 1:30 p.m. and 2:30 p.m. Those individuals interested in making formal oral presentations should notify the contact person and submit a brief statement of the general nature of the evidence or arguments they wish to present, the names and addresses of proposed participants, and an indication of the approximate time requested to make their presentation on or before April 9, 2018. Time allotted for each presentation may be limited. If the number of registrants requesting to speak is greater than can be reasonably accommodated during the scheduled open public hearing session, FDA may conduct a lottery to determine the speakers for the scheduled open public hearing session. The contact person will notify interested persons regarding their request to speak by April 10, 2018.

    Persons attending FDA's advisory committee meetings are advised that FDA is not responsible for providing access to electrical outlets.

    For press inquiries, please contact the Office of Media Affairs at [email protected] or 301-796-4540.

    FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require special accommodations due to a disability, please contact Cindy Chee (see FOR FURTHER INFORMATION CONTACT) at least 7 days in advance of the meeting.

    FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at https://www.fda.gov/AdvisoryCommittees/AboutAdvisoryCommittees/ucm111462.htm for procedures on public conduct during advisory committee meetings.

    Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).

    Dated: March 20, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-06040 Filed 3-23-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health National Institute of Arthritis and Musculoskeletal and Skin Diseases; Notice to Close Meeting

    Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.

    The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

    Name of Committee: National Institute of Arthritis and Musculoskeletal and Skin Diseases Special Emphasis Panel; NIAMS Loan Repayment Review.

    Date: April 13, 2018.

    Time: 8:00 a.m. to 5:00 p.m.

    Agenda: To review and evaluate contract proposals.

    Place: National Institute of Health/NIAMS, 6701 Democracy Boulevard, Bethesda, MD 20892.

    Contact Person: Kan Ma, Ph.D., Scientific Review Officer, National Institute Arthritis, Musculoskeletal, and Skin Diseases, NIH, 6701 Democracy Blvd., Suite 814, Bethesda, MD 20892, (301) 451-4838, [email protected].

    (Catalogue of Federal Domestic Assistance Program Nos. 93.846, Arthritis and Musculoskeletal and Skin Diseases Research, National Institutes of Health, HHS)
    Dated: March 20, 2018. Sylvia L. Neal, Program Analyst, Office of Federal Advisory Committee Policy.
    [FR Doc. 2018-05991 Filed 3-23-18; 8:45 am] BILLING CODE 4140-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health Office of the Director; Notice of Charter Renewal

    In accordance with Title 41 of the U.S. Code of Federal Regulations, Section 102-3.65(a), notice is hereby given that the Charter for the National Science Advisory Board for Biosecurity will be renewed for an additional two-year period on April 7, 2018.

    It is determined that the National Science Advisory Board for Biosecurity is in the public interest in connection with the performance of duties imposed on the National Institutes of Health by law, and that these duties can best be performed through the advice and counsel of this group.

    Inquiries may be directed to Claire Harris, Acting Director, Office of Federal Advisory Committee Policy, Office of the Director, National Institutes of Health, 6701 Democracy Boulevard, Suite 1000, Bethesda, Maryland 20892 (Mail code 4875), [email protected] or Telephone (301) 496-2123.

    Dated: March 20, 2018. David Clary, Program Analyst, Office of Federal Advisory Committee Policy.
    [FR Doc. 2018-05992 Filed 3-23-18; 8:45 am] BILLING CODE 4140-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health Center for Scientific Review; Notice of Closed Meetings

    Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.

    The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

    Name of Committee: Center for Scientific Review Special Emphasis Panel; Provocative Questions in Pediatric Cancer.

    Date: April 24, 2018.

    Time: 9:00 a.m. to 5:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institute of Health, 6701 Rockledge Drive, Bethesda, MD 20892 (Virtual Meeting).

    Contact Person: Rolf Jakobi, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 6187, MSC 7806, Bethesda, MD 20892, 301-495-1718, [email protected]

    Name of Committee: Center for Scientific Review Special Emphasis Panel; Member Conflict: Tumor Microenvironment and Metastasis.

    Date: April 25, 2018.

    Time: 1:00 p.m. to 5:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892 (Virtual Meeting).

    Contact Person: Amy L Rubinstein, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5152, MSC 7844, Bethesda, MD 20892, 301-408-9754, [email protected]

    (Catalogue of Federal Domestic Assistance Program Nos. 93.306, Comparative Medicine; 93.333, Clinical Research; 93.306, 93.333, 93.337, 93.393-93.396, 93.837-93.844, 93.846-93.878, 93.892, 93.893, National Institutes of Health, HHS)
    Dated: March 20, 2018. Natasha M. Copeland, Program Analyst, Office of Federal Advisory Committee Policy.
    [FR Doc. 2018-05988 Filed 3-23-18; 8:45 am] BILLING CODE 4140-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health Center for Scientific Review; Notice of Closed Meeting

    Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.

    The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

    Name of Committee: Center for Scientific Review Special Emphasis Panel; Member Conflict: Spinal Cord Injury, Epilepsy, TBI, and other Neurological Disorders.

    Date: April 11, 2018.

    Time: 8:00 a.m. to 5:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892 (Virtual Meeting).

    Contact Person: Samuel C Edwards, Ph.D., Chief, Brain Disorders and Clinical Neuroscience, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5210, MSC 7846, Bethesda, MD 20892, (301) 435-1246, [email protected]

    (Catalogue of Federal Domestic Assistance Program Nos. 93.306, Comparative Medicine; 93.333, Clinical Research; 93.306, 93.333, 93.337, 93.393-93.396, 93.837-93.844, 93.846-93.878, 93.892, 93.893, National Institutes of Health, HHS)
    Dated: March 20, 2018. Sylvia L. Neal, Program Analyst, Office of Federal Advisory Committee Policy.
    [FR Doc. 2018-05985 Filed 3-23-18; 8:45 am] BILLING CODE 4140-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health Office of the Director, National Institutes of Health; Notice of Meeting

    Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Board of Scientific Counselors Chairs, National Institutes of Health (NIH).

    The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting. Individuals who plan to listen to the discussion by telephone must call using the information listed below.

    Name of Committee: Board of Scientific Counselors Chairs, NIH.

    Date: May 11, 2018.

    Time: 10:00 a.m. to 2:00 p.m.

    Agenda: Discussion of policies and procedures that apply to the regular review of NIH intramural scientists and their work.

    Place: National Institutes of Health, 31 Center Drive, Building 31, C Wing, 6th Floor, Room 6, Bethesda, MD 20892.

    Contact Person: Margaret McBurney, Program Specialist, Office of the Deputy Director for Intramural Research, National Institutes of Health, 1 Center Drive, Room 160, Bethesda, MD 20892, Phone: (301) 496-1921, Fax: (301) 402-4273, [email protected]

    Conference Line: 888-233-9215—Participant Passcode: 31659.

    Information is also available on the Office of Intramural Research home page: http://sourcebook.od.nih.gov/, where an agenda and any additional information for the meeting will be posted when available.

    In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.

    Dated: March 20, 2018. Melanie J. Pantoja, Program Analyst, Office of Federal Advisory Committee Policy.
    [FR Doc. 2018-05984 Filed 3-23-18; 8:45 am] BILLING CODE 4140-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health National Heart, Lung, and Blood Institute; Amended Notice of Meetings

    Notice is hereby given of a change in the meetings of the National Heart, Lung, and Blood Institute Special Emphasis Panel, The Strong Heart Study—Field Centers and the Strong Heart Study—Coordinating Center meetings, Hilton Garden Inn Bethesda, 7301 Waverly Street, Bethesda, MD, 20814 which was published in the Federal Register on March 19, 2018, 83FR12013.

    This notice is amended to change the meeting times on April 11, 2018. The Strong Heart Study—Field Centers is amended to occur at 10:30 a.m. to 1:30 p.m. The Strong Heart Study—Coordinating Center is amended to occur at 8:30 a.m. to 10:30 a.m. The meetings are closed to the public.

    Dated: March 20, 2018. Michelle Trout, Program Analyst, Office of Federal Advisory Committee Policy.
    [FR Doc. 2018-05990 Filed 3-23-18; 8:45 am] BILLING CODE 4140-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health Center for Scientific Review; Notice of Closed Meetings

    Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.

    The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

    Name of Committee: Center for Scientific Review Special Emphasis Panel; Member Conflict: AIDS and AIDS Related Research.

    Date: March 28, 2018.

    Time: 8:00 a.m. to 11:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892 (Virtual Meeting).

    Contact Person: Kenneth A. Roebuck, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5106, MSC 7852, Bethesda, MD 20892, (301) 435-1166, [email protected]

    This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.

    Name of Committee: Center for Scientific Review Special Emphasis Panel; PAR Panel: Altered Neuronal Circuits, Receptors and Networks in HIV-Induced Central Nervous System (CNS) Dysfunction.

    Date: March 29, 2018.

    Time: 8:00 a.m. to 6:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: Residence Inn Bethesda, 7335 Wisconsin Avenue, Bethesda, MD 20814.

    Contact Person: Dimitrios Nikolaos Vatakis, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, Rockledge Drive, Room 3190, Bethesda, MD 20892, 301-827-7480.

    This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.

    (Catalogue of Federal Domestic Assistance Program Nos. 93.306, Comparative Medicine; 93.333, Clinical Research, 93.306, 93.333, 93.337, 93.393-93.396, 93.837-93.844, 93.846-93.878, 93.892, 93.893, National Institutes of Health, HHS)
    Dated: March 20, 2018. Sylvia L. Neal, Program Analyst, Office of Federal Advisory Committee Policy.
    [FR Doc. 2018-05986 Filed 3-23-18; 8:45 am] BILLING CODE 4140-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health Center for Scientific Review; Notice of Closed Meetings

    Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.

    The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

    Name of Committee: Center for Scientific Review Special Emphasis Panel; Member Conflict: AIDS and AIDS Related Research.

    Date: April 4, 2018.

    Time: 8:00 a.m. to 11:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892 (Virtual Meeting).

    Contact Person: Kenneth A. Roebuck, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5106, MSC 7852, Bethesda, MD 20892, (301) 435-1166, [email protected]

    This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.

    Name of Committee: Center for Scientific Review Special Emphasis Panel; Member Conflict: Host Defense, Inflammation and Vaccines.

    Date: April 5, 2018.

    Time: 11:00 a.m. to 5:00 p.m.

    Agenda: To review and evaluate grant applications.

    Place: National Institutes of Health, 6705 Rockledge Drive, Bethesda, MD 20817 (Virtual Meeting).

    Contact Person: Alok Mulky, Ph.D., Scientific Review Officer, Center for Scientific Review (CSR), National Institutes of Health (NIH), 6701 Rockledge Dr., Room 4203, Bethesda, MD 20817, (301) 435-3566, [email protected]

    This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.

    (Catalogue of Federal Domestic Assistance Program Nos. 93.306, Comparative Medicine; 93.333, Clinical Research, 93.306, 93.333, 93.337, 93.393-93.396, 93.837-93.844, 93.846- 93.878, 93.892, 93.893, National Institutes of Health, HHS)
    Dated: March 20, 2018. Sylvia L. Neal, Program Analyst; Office of Federal Advisory Committee Policy.
    [FR Doc. 2018-05987 Filed 3-23-18; 8:45 am] BILLING CODE 4140-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES National Institutes of Health Fogarty International Center; Notice of Meeting

    Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Fogarty International Center Advisory Board.

    The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.

    The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

    Name of Committee: Fogarty International Center Advisory Board.

    Date: April 30, 2018.

    Place: National Institutes of Health, Lawton L. Chiles International House (Stone House), Building 16, Conference Room, 16 Center Drive, Bethesda, MD 20892.

    Closed Session: April 30, 2018, 1:00 p.m. to 5:00 p.m.

    Agenda: Second level review of grant applications.

    Date: May 1, 2018.

    Place: Main Auditorium, Natcher Conference Center (Building 45), National Institutes of Health Campus, Bethesda, MD 20892.

    Open Session: May 1, 2018, 8:30 a.m. to 5:30 p.m.

    Agenda: Topic one: What has been accomplished and what is needed to advance infectious disease research and achieve the end of AIDS?

    Topic two: Noncommunicable diseases: how can we leverage existing research and training platforms stem the tide of deaths and disability?

    Topic three: Global Brain Disorders: we're on the agenda, where do we go from here? What are the priorities for advancing the global mental health research agenda?

    Topic four: Multi-generational models of long-term capacity building: the trainees become the trainers.

    Contact Person: Kristen Weymouth, Executive Secretary, Fogarty International Center, National Institutes of Health, 31 Center Drive, Room B2C02, Bethesda, MD 20892, (301) 496-1415, [email protected].

    Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.

    In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.

    Information is also available on the Institute's/Center's home page: http://www.fic.nih.gov/About/Advisory/Pages/default.aspx, where an agenda and any additional information for the meeting will be posted when available.

    (Catalogue of Federal Domestic Assistance Program Nos. 93.106, Minority International Research Training Grant in the Biomedical and Behavioral Sciences; 93.154, Special International Postdoctoral Research Program in Acquired Immunodeficiency Syndrome; 93.168, International Cooperative Biodiversity Groups Program; 93.934, Fogarty International Research Collaboration Award; 93.989, Senior International Fellowship Awards Program, National Institutes of Health, HHS)
    Dated: March 20, 2018. Natasha M. Copeland, Program Analyst, Office of Federal Advisory Committee Policy.
    [FR Doc. 2018-05989 Filed 3-23-18; 8:45 am] BILLING CODE 4140-01-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service [Docket No. FWS-HQ-IA-2018-0001; FXIA16710900000-178-FF09A30000] Endangered Species; Receipt of Permit Applications AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Notice of receipt of permit applications.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service, invite the public to comment on applications to conduct certain activities with foreign endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless Federal authorization is acquired that allows such activities. The ESA also requires that we invite public comment before issuing these permits.

    DATES:

    We must receive comments by April 25, 2018.

    ADDRESSES:

    Document availability: The applications, as well as any comments and other materials that we receive, will be available for public inspection online in Docket No. FWS-HQ-IA-2018-0001 at http://www.regulations.gov.

    Submitting Comments: You may submit comments by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments on Docket No. FWS-HQ-IA-2018-0001.

    U.S. mail or hand-delivery: Public Comments Processing, Attn: Docket No. FWS-HQ-IA-2018-0001; U.S. Fish and Wildlife Service Headquarters, MS: BPHC; 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    When submitting comments, please indicate the name of the applicant and the PRT# at the beginning of your comment. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see SUPPLEMENTARY INFORMATION for more information).
    FOR FURTHER INFORMATION CONTACT:

    Joyce Russell, 703-358-2280.

    SUPPLEMENTARY INFORMATION:

    I. Public Comment Procedures A. How do I comment on submitted applications?

    You may submit your comments and materials by one of the methods listed under Submitting Comments in the ADDRESSES section. We will not consider comments sent by email or fax, or to an address not in the ADDRESSES section.

    Please make your requests or comments as specific as possible, confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.

    The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see DATES) or comments delivered to an address other than those listed above in ADDRESSES).

    B. May I review comments submitted by others?

    Comments, including names and street addresses of respondents, will be available for public review at the street address listed under ADDRESSES. The public may review documents and other information applicants have sent in support of the application unless our allowing viewing would violate the Privacy Act or Freedom of Information Act. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

    C. Who will see my comments?

    If you submit a comment via http://www.regulations.gov, your entire comment, including any personal identifying information, will be posted on the website. If you submit a hardcopy comment that includes personal identifying information, such as your address, phone number, or email address, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

    II. Background

    To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.), we invite public comment on these permit applications before final action is taken.

    III. Permit Applications

    We invite the public to comment on applications to conduct certain activities with endangered species. With some exceptions, the ESA prohibits activities with listed species unless Federal authorization is acquired that allows such activities.

    Applicant: NOAA/Pacific Islands Regional Office, Honolulu, HI; PRT-022729

    The applicant requests reissuance of their permit to import from the high seas samples and/or whole carcasses of short-tailed albatross (Phoebastria albatrus) for the purpose of enhancement of the species through scientific research. This notice covers activities conducted by the applicant over a 5-year period.

    Applicant: Southwest Fisheries Science Center, La Jolla, CA; PRT-68677C (Previously PRT-844694)

    The applicant requests reissuance of the permit to import biological samples collected from wild and captive-bred animals of Kemp's ridley sea turtle (Lepidochelys kempii), hawksbill sea turtle (Eretmochelys imbricata), leatherback sea turtle (Dermochelys coriacea), green sea turtle (Chelonia mydas), loggerhead sea turtle (Caretta caretta), and olive ridley sea turtle (Lepidochelys olivacea) for the purpose of scientific research. Samples are collected from live or salvaged specimens. This notification covers activities conducted by the applicant over a 5-year period.

    Applicant: Zoological Society of San Diego; PRT-53381C

    The applicant requests a permit to import one male and two female captive-born quokka (Setonix brachyurus) to enhance the propagation and survival of the species. This notification is for a single import.

    Applicant: Zoological Society of Pittsburgh; PRT-69379C

    The applicant requests a permit to import African elephant (Loxodonta africana) semen to enhance the propagation and survival of the species. This notification is for multiple imports.

    Applicant: Charles Jordan, d/b/a NBJ Zoological Park, LTD., Spring Ranch, TX; PRT-751619

    The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following species to enhance species propagation or survival: Arabian oryx (Oryx leucoryx), ring-tailed lemur (Lemur catta), black and white ruffed lemur (Varecia variegata), brown lemur (Eulemur fulvus), Diana monkey (Cercopithicus diana), and lar gibbon (Hylobates lar). This notification covers activities to be conducted by the applicant over a 5-year period.

    Multiple Trophies

    The following applicants each request a permit to import sport-hunted trophies of a male bontebok (Damaliscus pygargus pygargus) culled from a captive herd maintained under the management program of the Republic of South Africa, for the purpose of enhancing the propagation or survival of the species.

    Applicant: Thomas McRae Sloan, Midland, TX; PRT-63058C Applicant: Frazer Wadenstorer, Holly, MI: PRT-44772C Applicant: Michael R. Sartorie, Billings, MT; PRT-66543C Applicant: Scott A. Lamphere, Henderson, MI; PRT-69701C Applicant: Timothy Ferrall, Riverside, CA; PRT-61303C Applicant: James Toney, Baker, LA; PRT-61596C Applicant: Robert Hennen, Isle, MN; PRT-61302C IV. Next Steps

    If the Service decides to issue permits to any of the applicants listed in this notice, we will publish a notice in the Federal Register. You may locate the Federal Register notice announcing the permit issuance date by searching in www.regulations.gov under the permit number listed in this document (e.g., PRT-12345X).

    VI. Authority

    Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

    Joyce Russell, Government Information Specialist, Branch of Permits, Division of Management Authority.
    [FR Doc. 2018-06036 Filed 3-23-18; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR National Park Service [NPS-WASO-CR-NAGPRA-21578; PPWOCRADN0, PCU00RP14.R50000; OMB Control Number 1024-0144] Agency Information Collection Activities: Native American Graves Protection and Repatriation Regulations AGENCY:

    National Park Service, Interior.

    ACTION:

    Notice of information collection; request for comment.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, the National Park Service is proposing to renew an information collection.

    DATES:

    Interested persons are invited to submit comments on or before May 25, 2018.

    ADDRESSES:

    Send your comments on the information collection request (ICR) by mail to Tim Goddard, Information Collection Clearance Officer, National Park Service, 12201 Sunrise Valley Drive, MS-242, Reston, VA 20192; or by email to [email protected] Please reference OMB Control Number 1024-0144 in the subject line of your comments.

    FOR FURTHER INFORMATION CONTACT:

    To request additional information about this ICR, contact Melanie O'Brien, Manager, National Native American Graves Protection and Repatriation Act (NAGPRA) Program, by email at melanie_o'[email protected], or by telephone at 202-354-2204.

    SUPPLEMENTARY INFORMATION:

    We (National Park Service, NPS), in accordance with the Paperwork Reduction Act of 1995, provide the general public and other Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.

    We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary for the proper functions of the NPS National Native American Graves Protection and Repatriation Act (NAGPRA) Program; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the NPS National NAGPRA Program enhance the quality, utility, and clarity of the information to be collected; and (5) how might the NPS National NAGPRA Program minimize the burden of this collection on the respondents, including through the use of information technology.

    Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our response to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

    An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    Title of Collection: Native American Graves Protection and Repatriation Regulations, 43 CFR part 10.

    OMB Control Number: 1024-0144.

    Form Number: None.

    Type of Review: Extension of a currently approved collection.

    Respondents/Affected Public: Any institution or State or local government agency (including any institution of higher learning) that receives Federal funds and has possession of, or control over, Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony (“museum”).

    Total Estimated Number of Annual Responses: 203.

    Total Estimated Number of Annual Burden Hours: 4,597.

    Total Number of Annual Respondents: 139.

    Estimated Completion Time per Response: Varies.

    Information collection Total number of annual
  • responses
  • Estimated completion time
  • per response
  • (hrs.)
  • Total number of annual
  • burden hours
  • Total number
  • of annual
  • respondents
  • Summaries (initial) 6 100 600 6 Summaries (updated/amended) 14 10 140 14 Inventories (initial) 11 200 2,200 11 Inventories (updated/amended) 31 10 310 31 Notices of Inventory Completion 96 10 960 * 45 Notices of Intent to Repatriate Cultural Items 38 10 380 * 26 Correcting Previously Published Notices 7 1 7 * 6 Totals 203 4,597 139 * Typically, a respondent will submit one response. However, some respondents submit multiple responses in one year.

    Respondent's Obligation: Mandatory.

    Frequency of Collection: On occasion.

    Total Estimated Annual Non-hour Burden Cost: None.

    Abstract: One of the purposes of the Native American Graves Protection and Repatriation Act (NAGPRA, the Act) is to provide for the repatriation of Native American human remains and funerary objects, sacred objects, and objects of cultural patrimony (“cultural items”) to lineal descendants, and affiliated Indian tribes and Native Hawaiian organizations. The Secretary of the Interior has several responsibilities under the Act, which include promulgating regulations to carry out the Act and publishing notices in the Federal Register.

    Under NAGPRA and its implementing regulations, a museum must compile an inventory of Native American human remains and associated funerary objects under its control and, to the extent possible based on the information it possesses, identify the geographical and cultural affiliation of the human remains and funerary objects. Inventories must be completed in consultation with Indian tribal government and Native Hawaiian organization officials, and traditional religious leaders. The NPS National NAGPRA Program, on behalf of the Secretary, collects information pertinent for determining the cultural affiliation and geographical origin of the human remains and associated funerary objects, including descriptions, acquisition data, and consultation concerning the human remains and objects, and it makes this information publicly available. The NPS National NAGPRA Program also provides sample inventories to assist museums.

    The Act and its implementing regulations require a museum to describe in a summary its holding or collection of Native American objects that might be unassociated funerary objects, sacred objects, or objects of cultural patrimony. The summary is followed by consultation on the identity and cultural affiliation of objects with Indian tribal government and Native Hawaiian organization officials, and traditional religious leaders. The NPS National NAGPRA Program, on behalf of the Secretary, collects information pertinent for determining the cultural affiliation and identity of objects (as cultural items), including descriptions, acquisition data, and parties invited to consult about the objects, and it makes this information publicly available. The NPS National NAGPRA Program also provides sample summaries to assist museums.

    After the expiration of the statutory deadlines for completing an inventory and a summary, if a museum receives a new holding or discovers an unreported current holding, or has control of cultural items that are, or are likely to be, culturally affiliated with a newly federally recognized Indian tribe, the museum must update or amend its inventory or summary. The NPS National NAGPRA Program, on behalf of the Secretary, collects information pertinent for determining the cultural affiliation and geographical origin of the human remains and associated funerary objects (in the inventory update), or for determining the cultural affiliation and identity of objects as cultural items (in the summary update), and it makes this information publicly available.

    If a museum determines the cultural affiliation of human remains and associated funerary objects in an inventory, the museum must draft and send a written notice of its determination to the affected Indian tribes or Native Hawaiian organizations, and copy the NPS National NAGPRA Program. The NPS National NAGPRA Program, in turn, publishes this notice of inventory completion in the Federal Register on behalf of the Secretary. Similarly, a museum must draft and send a notice of inventory completion to the NPS National NAGPRA Program for publication in the Federal Register where human remains determined by the museum to be culturally unidentifiable are claimed by an Indian tribe or Native Hawaiian organization having a geographical affiliation to the human remains. The information in a notice of inventory completion collected by the NPS National NAGPRA Program is based on the information in the museum's completed inventory. The NPS National NAGPRA Program provides templates for notices of inventory completion to assist museums in drafting these notices.

    After receiving a request from an Indian tribe or Native Hawaiian organization to repatriate an object described in a summary, if a museum determines that the object being requested is an unassociated funerary object, a sacred object, or an object of cultural patrimony, and is culturally affiliated with the requestor, the museum drafts and sends a notice of intent to repatriate cultural items to the NPS National NAGPRA Program, which publishes the notice in the Federal Register. The information in a notice of intent to repatriate cultural items collected by the NPS National NAGPRA Program is based on the information in the museum's summary, and is supplemented by information pertinent to the identity and cultural affiliation of the cultural item. The NPS National NAGPRA Program provides a template for a notice of intent to repatriate cultural items to assist museums in drafting this notice.

    A museum that revises its decision in a way that changes the number or cultural affiliation of cultural items listed in a notice that was previously published in the Federal Register must draft and send a correction notice to the NPS National NAGPRA Program, which publishes the correction notice in the Federal Register. The NPS National NAGPRA Program provides a template for a correction notice to assist museums in drafting this notice.

    The NPS National NAGPRA Program collects and makes publicly available the above described information in order to ensure the protection of the constitutional due process rights of lineal descendants, Indian tribes and Native Hawaiian organizations related to property. As evidence of a museum's compliance with the Act, the information collected by the NPS National NAGPRA Program serves the reporting museum because only where a museum repatriates a cultural item in good faith pursuant to the Act will it be immune from liability for claims by an aggrieved party or for claims of breach of fiduciary duty, public trust, or violations of state law that are inconsistent with the provisions of NAGPRA.

    Authorities: The authorities for this action are the Native American Graves Protection and Repatriation Act (NAGPRA; 25 U.S.C. 3001 et seq.), NAGPRA Regulations (43 CFR part 10), and the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

    Tim Goddard, Information Collection Clearance Officer, National Park Service.
    [FR Doc. 2018-06056 Filed 3-23-18; 8:45 am] BILLING CODE 4312-52-P
    INTERNATIONAL TRADE COMMISSION [Investigation No. 731-TA-1279 (Final) (Remand)] Hydrofluorocarbon Blends and Components From China AGENCY:

    United States International Trade Commission.

    ACTION:

    Notice of remand proceedings.

    SUMMARY:

    The U.S. International Trade Commission (“Commission”) hereby gives notice of the court-ordered remand of its final determination in the antidumping duty investigation of hydrofluorocarbon blends and components (“HFC”) from China. For further information concerning the conduct of these remand proceedings and rules of general application, consult the Commission's Rules of Practice and Procedure.

    DATES:

    Applicable Date: March 16, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Joanna Lo (202-205-1888), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (https://www.usitc.gov). The public record of Investigation No. 731-TA-1279 (Final) may be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov.

    SUPPLEMENTARY INFORMATION:

    Background.—In August 2016, the Commission issued its unanimous determination in Hydrofluorocarbon Blends and Components from China, Inv. No. 731-TA-1279 (Final), USITC Pub. 4629 (August 2016). Applying the five-factor finished/semi-finished product analysis, the Commission found that there were two domestic like products, and consequently two domestic industries, one comprised of domestic producers of HFC components and the other of domestic producers of HFC blends. The Commission then determined that the domestic industry producing HFC blends was materially injured by reason of subject imports of HFC blends, whereas the domestic industry producing HFC components was not materially injured or threatened with material injury by reason of subject imports of HFC components. Petitioners appealed the determination to the U.S. Court of International Trade (“CIT”), challenging the Commission's determination that there were two domestic like products consisting of HFC blends and HFC components. The CIT remanded two issues to the Commission and affirmed all other aspects of the Commission's like product determination. Arkema, Inc. v. United States, Court No. 16-00179, Slip. Op. 18-12 (Ct. Int'l Trade Feb. 16, 2018).

    Participation in the proceeding.—Only those persons who were interested parties that participated in the investigations (i.e., persons listed on the Commission Secretary's service list) and also parties to the appeal may participate in the remand proceedings. Such persons need not make any additional notice of appearances or applications with the Commission to participate in the remand proceedings, unless they are adding new individuals to the list of persons entitled to receive business proprietary information (“BPI”) under administrative protective order. BPI referred to during the remand proceedings will be governed, as appropriate, by the administrative protective order issued in the investigation. The Secretary will maintain a service list containing the names and addresses of all persons or their representatives who are parties to the remand proceedings, and the Secretary will maintain a separate list of those authorized to receive BPI under the administrative protective order during the remand proceedings.

    Written Submissions.—The Commission is not reopening the record and will not accept the submission of new factual information for the record. The Commission will permit the parties to file comments concerning how the Commission could best comply with the Court's remand instructions.

    The comments must be based solely on the information in the Commission's record. The Commission will reject submissions containing additional factual information or arguments pertaining to issues other than those on which the Court has remanded this matter. The deadline for filing comments is March 30, 2018. Comments shall be limited to no more than ten (10) double-spaced and single-sided pages of textual material.

    Parties are advised to consult with the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subpart A (19 CFR part 207) for provisions of general applicability concerning written submissions to the Commission. All written submissions must conform to the provisions of section 201.8 of the Commission's rules; any submissions that contain BPI must also conform to the requirements of sections 201.6, 207.3, and 207.7 of the Commission's rules. The Commission's Handbook on E-Filing, available on the Commission's website at http://edis.usitc.gov, elaborates upon the Commission's rules with respect to electronic filing.

    Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, will not be accepted unless good cause is shown for accepting such submissions or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.

    In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigation must be served on all other parties to the investigation (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.

    By order of the Commission.

    Issued: March 20, 2018. Lisa R. Barton, Secretary to the Commission.
    [FR Doc. 2018-05979 Filed 3-23-18; 8:45 am] BILLING CODE 7020-02-P
    DEPARTMENT OF LABOR Office of the Secretary Agency Information Collection Activities; Submission for OMB Review; Comment Request; Workforce Flexibility (Workflex) Plan Submission and Reporting Requirements ACTION:

    Notice of availability; request for comments.

    SUMMARY:

    The Department of Labor (DOL) is submitting the Employment and Training Administration (ETA) sponsored information collection request (ICR) revision titled, “Workforce Flexibility (Workflex) Plan Submission and Reporting Requirements” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995. Public comments on the ICR are invited.

    DATES:

    The OMB will consider all written comments that agency receives on or before April 25, 2018.

    ADDRESSES:

    A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov website at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=1205-0432 or by contacting Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to [email protected]

    Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-ETA Office of Management and Budget, Room 10235, 725 17th Street NW, Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email: [email protected] Commenters are encouraged, but not required, to send a courtesy copy of any comments by mail or courier to the U.S. Department of Labor-OASAM, Office of the Chief Information Officer, Attn: Departmental Information Compliance Management Program, Room N1301, 200 Constitution Avenue NW, Washington, DC 20210; or by email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to [email protected]

    SUPPLEMENTARY INFORMATION:

    This ICR seeks approval under the PRA for revisions to the Workforce Flexibility (Workflex) Plan Submission and Reporting Requirements. The Workforce Innovation and Opportunity Act (WIOA), 29 U.S.C. 3101 et seq., and regulations 20 CFR 679.630 provide that the Secretary may grant Workflex waiver authority for up to five years pursuant to a Workflex plan submitted by a state. Workflex authorizes governors to approve local area requests to waive certain statutory and regulatory provisions of WIOA Title I programs. States may also request waivers from the Secretary of certain Wagner-Peyser Act requirements, as well as certain provisions of the Older Americans Act of 1965 (OAA) for state agencies on aging with respect to activities carried under OAA funding. One of the underlying principles for granting Workflex waivers is that the waivers will result in improved performance outcomes for persons served and that waiver authority will be granted in consideration of improved performance. This information collection has been classified as a revision, because it incorporates WIOA statutory and regulatory authorities; however, it should be noted that the WIOA information collections are substantively the same as those previously approved under the Workforce Investment Act. WIOA section 190 authorizes this information collection. See 29 U.S.C. 3250.

    This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6. The DOL obtains OMB approval for this information collection under Control Number 1205-0432. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. New requirements would only take effect upon OMB approval. For additional substantive information about this ICR, see the related notice published in the Federal Register on November 17, 2017 (82 FR 54414).

    Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the ADDRESSES section within thirty (30) days of publication of this notice in the Federal Register. In order to help ensure appropriate consideration, comments should mention OMB Control Number 1205-0432. The OMB is particularly interested in comments that:

    • Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

    • Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

    • Enhance the quality, utility, and clarity of the information to be collected; and

    • 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.

    Agency: DOL-ETA.

    Title of Collection: Workforce Flexibility (Workflex) Plan Submission and Reporting Requirements.

    OMB Control Number: 1205-0432.

    Affected Public: State, Local, and Tribal Governments.

    Total Estimated Number of Respondents: 5.

    Total Estimated Number of Responses: 25.

    Total Estimated Annual Time Burden: 210 hours.

    Total Estimated Annual Other Costs Burden: $0.

    Authority:

    44 U.S.C. 3507(a)(1)(D).

    Michel Smyth, Departmental Clearance Officer.
    [FR Doc. 2018-05998 Filed 3-23-18; 8:45 am] BILLING CODE 4510-FN-P
    DEPARTMENT OF LABOR Office of the Secretary Agency Information Collection Activities; Submission for OMB Review; Comment Request; General Provisions and Confined and Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment Standards ACTION:

    Notice of availability; request for comments.

    SUMMARY:

    The Department of Labor (DOL) is submitting the Occupational Safety and Health Administration (OSHA) sponsored information collection request (ICR) titled, “General Provisions and Confined and Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment Standards,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.

    DATES:

    The OMB will consider all written comments that agency receives on or before April 25, 2018.

    ADDRESSES:

    A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov website at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201711-1218-004 (this link will only become active on the day following publication of this notice) or by contacting Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at [email protected]

    Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OSHA, Office of Management and Budget, Room 10235, 725 17th Street NW, Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email: [email protected] Commenters are encouraged, but not required, to send a courtesy copy of any comments by mail or courier to the U.S. Department of Labor—OASAM, Office of the Chief Information Officer, Attn: Departmental Information Compliance Management Program, Room N1301, 200 Constitution Avenue NW, Washington, DC 20210; or by email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    This ICR seeks to extend PRA authority for the General Provisions and Confined and Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment Standards information collection requirements codified in regulations 29 CFR part 1915. Regulations implementing the Occupational Safety and Health Act (OSH Act) require an employer who is subject to the Standards: (1) To ensure a competent person conducts inspections and atmospheric testing prior to a worker entering a confined or enclosed space (§ 1915.12(a)-(c)); (2) to warn workers not to enter a hazardous space or other dangerous atmosphere (§§ 1915.12 (a)-(c), 1915.16); (3) to train a worker who will be entering a confined or enclosed space and certify such training has been provided (§ 1915.12(d)); (4) to establish and train shipyard rescue teams or arrange for outside rescue teams and provide them with information (§ 1915.12(e)); (5) to ensure one person on each rescue team maintains a current first aid training certificate (§ 1915.12(e)); (6) to exchange information regarding hazards, safety rules, and emergency procedures concerning these spaces and atmospheres with other employers whose workers may enter these spaces and atmospheres (§ 1915.12(f)); (7) to ensure testing of a space having contained a combustible or flammable liquid or gas or toxic, corrosive, or irritating substance, or other dangerous atmosphere, boundary or pipeline before cleaning or other cold work is started and, as necessary thereafter, while the operation is ongoing (§ 1915.13(b)(2) and (4)); (8) to post signs prohibiting ignition sources within or near a space that contains bulk quantities of a flammable or combustible liquid or gas (§ 1915.13(b)(10)); (9) to ensure a confined or enclosed space is tested before a worker performs hot work in the work area (§ 1915.14(a)); (10) to post warnings of testing conducted by a competent person and certificates of testing conducted by a Marine Chemist or Coast Guard authorized person in the immediate vicinity of the hot-work operation while the operation is in progress (§ 1915.14(a) and (b)); and (11) to retain the certificate of testing on file for at least three months after completing the operation (§ 1915.14(a)(2)). OSH Act sections 2(b), 6, and 8 authorize this information collection. See 29 U.S.C. 651(b), 655, and 657.

    This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6. The DOL obtains OMB approval for this information collection under Control Number 1218-0011.

    OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on March 31, 2018. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the Federal Register on October 16, 2017 (82 FR 48121).

    Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the ADDRESSES section within thirty (30) days of publication of this notice in the Federal Register. In order to help ensure appropriate consideration, comments should mention OMB Control Number 1218-0011. The OMB is particularly interested in comments that:

    • Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

    • Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

    • Enhance the quality, utility, and clarity of the information to be collected; and

    • 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.

    Agency: DOL-OSHA.

    Title of Collection: General Provisions and Confined and Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employment Standards.

    OMB Control Number: 1218-0011.

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

    Total Estimated Number of Respondents: 4,871.

    Total Estimated Number of Responses: 3,495,964.

    Total Estimated Annual Time Burden: 586,064 hours.

    Total Estimated Annual Other Costs Burden: $0.

    Authority:

    44 U.S.C. 3507(a)(1)(D).

    Dated: March 19, 2018. Michel Smyth, Departmental Clearance Officer.
    [FR Doc. 2018-06004 Filed 3-23-18; 8:45 am] BILLING CODE 4510-26-P
    POSTAL REGULATORY COMMISSION [Docket No. CP2018-184; CP2018-185; CP2018-186; CP2018-187; CP2018-188] New Postal Products AGENCY:

    Postal Regulatory Commission.

    ACTION:

    Notice.

    SUMMARY:

    The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning negotiated service agreements. This notice informs the public of the filing, invites public comment, and takes other administrative steps.

    DATES:

    Comments are due: March 28, 2018.

    ADDRESSES:

    Submit comments electronically via the Commission's Filing Online system at http://www.prc.gov. Those who cannot submit comments electronically should contact the person identified in the FOR FURTHER INFORMATION CONTACT section by telephone for advice on filing alternatives.

    FOR FURTHER INFORMATION CONTACT:

    David A. Trissell, General Counsel, at 202-789-6820.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Introduction II. Docketed Proceeding(s) I. Introduction

    The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.

    Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.

    The public portions of the Postal Service's request(s) can be accessed via the Commission's website (http://www.prc.gov). Non-public portions of the Postal Service's request(s), if any, can be accessed through compliance with the requirements of 39 CFR 3007.40.

    The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.

    II. Docketed Proceeding(s)

    1. Docket No(s).: CP2018-184; Filing Title: Notice of United States Postal Service of Filing a Functionally Equivalent Global Expedited Package Services 7 Negotiated Service Agreement and Application for Non-Public Treatment of Materials Filed Under Seal; Filing Acceptance Date: March 20, 2018; Filing Authority: 39 CFR 3015.50; Public Representative: Gregory S. Stanton; Comments Due: March 28, 2018.

    2. Docket No(s).: CP2018-185; Filing Title: Notice of United States Postal Service of Filing a Functionally Equivalent Global Expedited Package Services 7 Negotiated Service Agreement and Application for Non-Public Treatment of Materials Filed Under Seal; Filing Acceptance Date: March 20, 2018; Filing Authority: 39 CFR 3015.50; Public Representative: Gregory S. Stanton; Comments Due: March 28, 2018.

    3. Docket No(s).: CP2018-186; Filing Title: Notice of United States Postal Service of Filing a Functionally Equivalent Global Expedited Package Services 7 Negotiated Service Agreement and Application for Non-Public Treatment of Materials Filed Under Seal; Filing Acceptance Date: March 20, 2018; Filing Authority: 39 CFR 3015.50; Public Representative: Gregory S. Stanton; Comments Due: March 28, 2018.

    4. Docket No(s).: CP2018-187; Filing Title: Notice of United States Postal Service of Filing a Functionally Equivalent Global Expedited Package Services 7 Negotiated Service Agreement and Application for Non-Public Treatment of Materials Filed Under Seal; Filing Acceptance Date: March 20, 2018; Filing Authority: 39 CFR 3015.50; Public Representative: Curtis E. Kidd; Comments Due: March 28, 2018.

    5. Docket No(s).: CP2018-188; Filing Title: Notice of United States Postal Service of Filing a Functionally Equivalent Global Expedited Package Services 7 Negotiated Service Agreement and Application for Non-Public Treatment of Materials Filed Under Seal; Filing Acceptance Date: March 20, 2018; Filing Authority: 39 CFR 3015.50; Public Representative: Curtis E. Kidd; Comments Due: March 28, 2018.

    This Notice will be published in the Federal Register.

    Stacy L. Ruble, Secretary.
    [FR Doc. 2018-06055 Filed 3-23-18; 8:45 am] BILLING CODE 7710-FW-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-82911; File No. SR-ISE-2017-106] Self-Regulatory Organizations; Nasdaq ISE, LLC; Order Granting Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To Permit the Listing and Trading of NQX Index Options on a Pilot Basis March 20, 2018. I. Introduction

    On December 6, 2017, Nasdaq ISE, LLC (“ISE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),1 and Rule 19b-4 thereunder,2 a proposed rule change to permit the listing and trading of options based on 1/5 the value of the Nasdaq-100 Index (“Nasdaq-100”) on a pilot basis. The proposed rule change was published for comment in the Federal Register on December 26, 2017.3 On January 31, 2018, the Exchange filed Amendment No. 1 to the proposed rule change.4 On February 8, 2018, pursuant to Section 19(b)(2) of the Act,5 the Commission designated a longer period within which to approve the proposed rule change, disapprove the proposed rule change, or institute proceedings to determine whether to approve or disapprove the proposed rule change.6 The Commission received no comment letters on the proposed rule change. The Commission is approving the proposed rule change, as modified by Amendment No. 1, subject to a pilot period set to end on the earlier of: (1) Twelve months following the date of the first listing of the options; or (2) June 30, 2019.

    1 15 U.S.C. 78s(b)(1).

    2 17 CFR 240.19b-4.

    3See Securities Exchange Act Release No. 82362 (December 19, 2017), 82 FR 61090 (“Notice”).

    4 In Amendment No. 1, the Exchange revised its proposal to: (1) Add that raw percentage price change data as well as percentage price change data normalized for prevailing market volatility, as measured by an appropriate index as agreed by the Commission and the Exchange, would be provided as part of the pilot data; and (2) revise the proposed duration of the pilot program such that the pilot would terminate on the earlier of: (i) Twelve months following the date of the first listing of the options; or (ii) June 30, 2019. When the Exchange filed Amendment No. 1 with the Commission, it also submitted Amendment No. 1 to the public comment file for SR-ISE-2017-106 (available at: https://www.sec.gov/comments/sr-ise-2017-106/ise2017106.htm). Because Amendment No. 1 does not materially alter the substance of the proposed rule change or raise unique or novel regulatory issues, it is not subject to notice and comment.

    5 15 U.S.C. 78s(b)(2).

    6See Securities Exchange Act Release No. 82666, 83 FR 6626 (February 14, 2018). The Commission designated March 26, 2018 as the date by which the Commission shall approve or disapprove, or institute proceedings to determine whether to approve or disapprove, the proposed rule change.

    II. Description of the Proposal, as Modified by Amendment No. 1

    The Exchange is proposing to amend its rules to permit the listing and trading, on a pilot basis, of index options on the Nasdaq 100 Reduced Value Index (“NQX”) with third Friday of the month expiration dates. The Exchange represents that the NQX options contract will be the same in all respects as the current Nasdaq-100 (“NDX”) options contract listed on the Exchange,7 except that it will be based on 1/5 of the value of the Nasdaq-100, and will be P.M.-settled with an exercise settlement value based on the closing index value of the Nasdaq-100 on the day of expiration.8 In particular, NQX options will be subject to the same rules that presently govern the trading of index options based on the Nasdaq-100, including sales practice rules, margin requirements, trading rules, and position and exercise limits. Similar to NDX options, NQX options will be European-style and cash-settled, and will have a contract multiplier of 100. NQX options will have a minimum trading increment of $0.05 for options below $3.00 and $0.10 for all other series. Strike price intervals will be set at $1 or greater, subject to conditions described in ISE Rule 2009(c)(5).9 Consistent with the Exchange's existing rules for index options, the Exchange will allow up to six expiration months at any one time that may expire at three-month intervals or in consecutive months, as well as LEAPS.10 The product will have European-style exercise and will not be subject to position limits, although the Exchange proposes to amend ISE Rule 2004(c) to more accurately describe how positions in reduced-value options would be aggregated with full-value options.11

    7See Securities Exchange Act Release No. 51121 (February 1, 2005), 70 FR 6476 (February 7, 2005) (SR-ISE-2005-01).

    8 The Exchange notes that similar features are available with other index options contracts listed on the Exchange and other options exchanges, including options contracts based on 1/10 the value of the Nasdaq-100 (“MNX”) and P.M.-settled options on the full value of the Nasdaq-100 (“NDXPM”). See Notice, supra note 3, at 61091.

    9 Generally, pursuant to ISE Rule 2009(c)(1), index options listed on the Exchange are subject to strike price intervals of no less than $5, provided that certain classes of index options (including NDX and MNX) have strike price intervals of no less than $2.50 if the strike price is less than $200. The Exchange proposes to amend ISE Rule 2009(c)(1) to add NQX options to the list of classes where strike price intervals of no less than $2.50 are generally permitted if the strike price is less than $200. In addition, ISE Rule 2009(c)(5) provides finer strike price intervals for MNX options as these contracts are based on a reduced value of the Nasdaq-100. Specifically, ISE Rule 2009(c)(5) provides that notwithstanding ISE Rule 2009(c)(1), the interval between strike prices of series of MNX options will be $1 or greater, subject to certain conditions. The Exchange proposes to adopt the same strike price intervals for NQX options as currently approved for MNX options. The Exchange will not list LEAPS on NQX options at intervals less than $5. If the Exchange determines to add NQX options to the Weeklies or Quarterlies programs, such options will be listed with the expirations and strike prices described in Supplementary Material .01 or .02 to ISE Rule 2009. The Exchange notes that it expects to add NQX options to the Weeklies program. See id. at 61092 n.15.

    10See id. at 61092 & n.13. The Exchange states that it intends to file a separate proposed rule change to modify the expiration months permitted for index option contracts consistent with Nasdaq PHLX LLC (“Phlx”) Rule 1101A(b). See id. at 61092 n.13.

    11 For a more detailed description of the proposed NQX contract, see Notice, supra note 3.

    As proposed, NQX would become subject to a pilot for a period that would end on the earlier of: (i) Twelve months following the date of the first listing of the options; or (ii) June 30, 2019 (“Pilot Program”). If the Exchange were to propose an extension of the Pilot Program or should the Exchange propose to make the Pilot Program permanent, then the Exchange would submit a filing proposing such amendments to the Pilot Program. The Exchange notes that any positions established under the pilot would not be impacted by the expiration of the pilot. For example, a position in an NQX options series that expires beyond the conclusion of the pilot period could be established during the pilot. If the Pilot Program were not extended, then the position could continue to exist. However, the Exchange notes that any further trading in the series would be restricted to transactions where at least one side of the trade is a closing transaction.

    The Exchange proposes to submit a Pilot Program report to Commission at least two months prior to the expiration date of the Pilot Program (the “annual report”). The annual report would contain an analysis of volume, open interest, and trading patterns. The analysis would examine trading in the proposed option product as well as trading in the securities that comprise the Nasdaq-100. In addition, for series that exceed certain minimum open interest parameters, the annual report would provide analysis of index price volatility and share trading activity. In addition to the annual report, the Exchange would provide the Commission with periodic interim reports while the Pilot Program is in effect that would contain some, but not all, of the information contained in the annual report. The annual report would be provided to the Commission on a confidential basis. The annual report would contain the following volume and open interest data:

    (1) Monthly volume aggregated for all trades;

    (2) monthly volume aggregated by expiration date;

    (3) monthly volume for each individual series;

    (4) month-end open interest aggregated for all series;

    (5) month-end open interest for all series aggregated by expiration date; and

    (6) month-end open interest for each individual series.

    In addition to the annual report, the Exchange would provide the Commission with interim reports of the information listed in Items (1) through (6) above periodically as required by the Commission while the Pilot Program is in effect. These interim reports would also be provided on a confidential basis.

    Finally, the annual report would contain the following analysis of trading patterns in Expiration Friday, P.M.-settled NQX option series in the Pilot Program: (1) A time series analysis of open interest; and (2) an analysis of the distribution of trade sizes. Also, for series that exceed certain minimum parameters, the annual report would contain the following analysis related to index price changes and underlying share trading volume at the close on Expiration Fridays: A comparison of index price changes at the close of trading on a given Expiration Friday with comparable price changes from a control sample. The data would include a calculation of percentage price changes for various time intervals and compare that information to the respective control sample. Raw percentage price change data as well as percentage price change data normalized for prevailing market volatility, as measured by an appropriate index as agreed by the Commission and the Exchange, would be provided. The Exchange would provide a calculation of share volume for a sample set of the component securities representing an upper limit on share trading that could be attributable to expiring in-the-money series. The data would include a comparison of the calculated share volume for securities in the sample set to the average daily trading volumes of those securities over a sample period. The minimum open interest parameters, control sample, time intervals, method for randomly selecting the component securities, and sample periods would be determined by the Exchange and the Commission.12

    12See id. at 61092-93 and Amendment No. 1. The proposed Pilot Program for NQX options is similar to the pilot program approved for the listing and trading of NDXPM options on Phlx. See Securities Exchange Act Release No. 81293 (Aug. 2, 2017), 82 FR 37138 (Aug. 8, 2017) (“NDXPM Order”).

    III. Discussion and Commission Findings

    After careful consideration of the proposal, the Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange,13 and, in particular, the requirements of Section 6 of the Act.14 Specifically, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act,15 which requires that an exchange have rules designed to remove impediments to and perfect the mechanism of a free and open market and to protect investors and the public interest, to allow ISE to conduct a limited, and carefully monitored, pilot as proposed.

    13 In approving this proposed rule change, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f).

    14 15 U.S.C. 78f.

    15 15 U.S.C. 78f(b)(5).

    The Commission notes that it has previously approved the listing and trading of options based on a reduced value of the Nasdaq-100.16 However, this proposed rule change would permit P.M. settlement for such options and, as noted in the Commission's order approving the listing and trading of NDXPM on Phlx on a pilot program basis, the Commission has had concerns about the potential adverse effects and impact of P.M. settlement upon market volatility and the operation of fair and orderly markets on the underlying cash market at or near the close of trading, including for cash-settled derivatives contracts based on a broad-based index.17 The potential impact today remains unclear, given the significant changes in the closing procedures of the primary markets in recent decades. The Commission is mindful of the historical experience with the impact of P.M. settlement of cash-settled index derivatives on the underlying cash markets, but recognizes that these risks may be mitigated today by the enhanced closing procedures that are now in use at the primary equity markets.

    16See, e.g., Securities Exchange Act Release Nos. 57654 (April 11, 2008), 73 FR 21003 (April 17, 2008); 51121 (February 1, 2005), 70 FR 6476 (February 7, 2005).

    17See NDXPM Order, supra note 12. See also Securities Exchange Act Release Nos. 64599 (June 3, 2011), 76 FR 33798, 33801-02 (June 9, 2011) (order instituting proceedings to determine whether to approve or disapprove a proposed rule change to allow the listing and trading of SPXPM options); 65256 (September 2, 2011), 76 FR 55969, 55970-76 (September 9, 2011) (order approving proposed rule change to establish a pilot program to list and trade SPXPM options); and 68888 (February 8, 2013), 78 FR 10668, 10669 (February 14, 2013) (order approving the listing and trading of SPXPM on CBOE).

    Additionally, for the reasons described below, the Commission believes that ISE's proposed NQX Pilot Program is designed to mitigate concerns regarding P.M. settlement and will provide additional trading opportunities for investors while providing the Commission with data to monitor the effects of NQX options and the impact of P.M. settlement on the markets. To assist the Commission in assessing any potential impact of a P.M.-settled NQX option on the options markets as well as the underlying cash equities markets, ISE will be required to submit data to the Commission in connection with the Pilot Program. The Commission believes that ISE's proposed Pilot Program, together with the data and analysis that ISE will provide to the Commission, will allow ISE and the Commission to monitor for and assess any potential for adverse market effects of allowing P.M. settlement for NQX options, including on the underlying component stocks. In particular, the data collected from ISE's NQX Pilot Program will help inform the Commission's consideration of whether the Pilot Program should be modified, discontinued, extended, or permanently approved. Furthermore, the Exchange's ongoing analysis of the Pilot Program should help it monitor any potential risks from large P.M.-settled positions and take appropriate action on a timely basis if warranted.

    The Exchange represents that it has adequate surveillance procedures to monitor trading in these options thereby helping to ensure the maintenance of a fair and orderly market, and has represented that it has sufficient capacity to handle additional traffic associated with this new listing.18

    18See Notice, supra note 3, at 61092. In addition, the Commission notes that ISE would have access to information through its membership in the Intermarket Surveillance Group with respect to the trading of the securities underlying the NQX, as well as tools such as large options positions reports to assist its surveillance of NQX options. In approving the proposed rule change, the Commission also has relied upon the Exchange's representation that it has the necessary systems capacity to support new options series that will result from this proposal. See id.

    For the reasons discussed above, the Commission finds that ISE's proposal is consistent with the Act, including Section 6(b)(5) thereof, in that it is designed to remove impediments to and perfect the mechanism of a free and open market, and, in general, to protect investors and the public interest. In light of the enhanced closing procedures at the underlying markets and the potential benefits to investors discussed by the Exchange in the Notice,19 the Commission finds that it is appropriate and consistent with the Act to approve ISE's proposal on a pilot basis. The collection of data during the Pilot Program and ISE's active monitoring of any effects of NQX options on the markets will help ISE and the Commission assess any impact of P.M. settlement in today's market.

    19See id.

    IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the Act,20 that the proposed rule change (SR-ISE-2017-106), as modified by Amendment No. 1, be, and hereby is, approved, subject to a pilot period set to expire on the earlier of: (1) Twelve months following the date of the first listing of the options; or (2) June 30, 2019.

    20 15 U.S.C. 78s(b)(2).

    21 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.21

    Eduardo A. Aleman, Assistant Secretary.
    [FR Doc. 2018-06017 Filed 3-23-18; 8:45 am] BILLING CODE 8011-01-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-82910; File No. SR-NSCC-2017-018] Self-Regulatory Organizations; National Securities Clearing Corporation; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Amend the Loss Allocation Rules and Make Other Changes March 20, 2018. I. Introduction

    On December 18, 2017, National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder,2 proposed rule change SR-NSCC-2017-018 to amend the loss allocation rules and make other changes (“Proposed Rule Change”).3 The Proposed Rule Change was published for comment in the Federal Register on January 8, 2018.4 The Commission did not receive any comments on the Proposed Rule Change. On February 8, 2018, pursuant to Section 19(b)(2)(A)(ii)(I) of the Act,5 the Commission designated a longer period within which to approve, disapprove, or institute proceedings to determine whether to approve or disapprove the Proposed Rule Change.6 This order institutes proceedings, pursuant to Section 19(b)(2)(B) of the Act,7 to determine whether to approve or disapprove the Proposed Rule Change.

    1 15 U.S.C. 78s(b)(1).

    2 17 CFR 240.19b-4.

    3 On December 18, 2017, NSCC filed this proposal as an advance notice (SR-NSCC-2017-806) with the Commission pursuant to Section 806(e)(1) of the Payment, Clearing, and Settlement Supervision Act of 2010 (“Clearing Supervision Act”) and Rule 19b-4(n)(1)(i) of the Act (“Advance Notice”). On January 24, 2018, the Commission extended the review period of the Advance Notice for an additional 60 days pursuant to Section 806(e)(1)(H) of the Clearing Supervision Act. See 12 U.S.C. 5465(e)(1); 17 CFR 240.19b-4(n)(1)(i); 12 U.S.C. 5465(e)(1)(H); and Securities Exchange Act Release No. 82584 (January 24, 2018), 83 FR 4377 (January 30, 2018) (SR-NSCC-2017-806).

    4 Securities Exchange Act Release No. 82428 (January 2, 2018), 83 FR 897 (January 8, 2018) (SR-NSCC-2017-018) (“Notice”).

    5 15 U.S.C. 78s(b)(2)(A)(ii)(I).

    6 Securities Exchange Act Release No. 82670 (February 8, 2018), 83 FR 6626 (February 14, 2018) (SR-DTC-2017-022; SR-FICC-2017-022; SR-NSCC-2017-018).

    7 15 U.S.C. 78s(b)(2)(B).

    II. Summary of the Proposed Rule Change 8

    8 The Commission notes that the Summary of the Proposed Rule Change section does not describe the Proposed Rule Change in its entirety. Other changes include, but are not limited to, the clarification of defined terms, various aspects of the Clearing Fund application, and detailed procedures of the loss allocation. The complete Proposed Rule Change can be found in the Notice. See Notice, supra note 4. In addition, the text of the Proposed Rule Change is available at http://www.dtcc.com/legal/rules-and-procedures.aspx.

    As described in the Notice,9 NSCC proposes to revise its Rules and Procedures to primarily change (i) the loss allocation process,10 (ii) the loss allocation governance for Declared Non-Default Loss Events,11 and (iii) the retention time for the Actual Deposit of former members.12

    9 The description of the Proposed Rule Change herein is based on the statements prepared by NSCC in the Notice. See Notice, supra note 4. Each capitalized term not otherwise defined herein has its respective meaning either (i) as set forth in the Rules and Procedures of NSCC, available at http://www.dtcc.com/legal/rules-and-procedures.aspx, or (ii) as set forth in the Notice.

    10See Notice, supra note 4, at 898-901.

    11See id. at 901.

    12See id. at 901-02.

    A. Loss Allocation Process

    NSCC states that it would retain the current core loss allocation process.13 However, NSCC proposes to revise certain elements and introduce certain new loss allocation concepts, by making five key changes to its loss allocation process.

    13Id. at 898.

    First, NSCC proposes to replace the calculation of its corporate contribution from no less than 25 percent of its retained earnings or such higher amount as the Board of Directors shall determine to a defined Corporate Contribution.14 The proposed Corporate Contribution would be defined as an amount equal to 50 percent of NSCC's General Business Risk Capital Requirement.15 NSCC's General Business Risk Capital Requirement is, at a minimum, equal to the regulatory capital that NSCC is required to maintain in compliance with Rule 17Ad-22(e)(15) under the Act.16 In addition, NSCC proposes to mandatorily apply Corporate Contribution (i) prior to a loss allocation among Members, and (ii) to losses arising from both Defaulting Member Events and Declared Non-Default Loss Events.17

    14Id.

    15Id.

    16Id.; 17 CFR 240.17Ad-22(e)(15).

    17 Notice, supra note 4, at 898.

    Second, NSCC proposes to introduce an Event Period to address the allocation of losses and liabilities that may arise from or relate to multiple Defaulting Member Events, Declared Non-Default Loss Events, or both that arise in quick succession.18 The proposal would group together Defaulting Member Events and Declared Non-Default Loss Events occurring in a period of 10 business days for purposes of allocating losses to Members in one or more rounds, subject to the limitations of loss allocation in the Proposed Rule Change.19

    18Id. at 899.

    19Id.

    Third, NSCC proposes to introduce a loss allocation “round,” which would mean “a series of loss allocations relating to an Event Period, the aggregate amount of which is limited by the sum of the Loss Allocation Caps of affected Members.” 20 NSCC would notify Members subject to a loss allocation of the amounts being allocated to them.21 Each Member would have five business days from the issuance of such first Loss Allocation Notice for the round to notify NSCC of its election to withdraw from membership with NSCC, and thereby benefit from its Loss Allocation Cap.22

    20Id.

    21Id.

    22Id.

    Fourth, NSCC proposes to implement a “look-back” period to calculate a Member's loss allocation pro rata share and its Loss Allocation Cap.23 NSCC proposes to calculate each Member's pro rata share of losses and liabilities in any round to be equal to (i) the average of a Member's Required Fund Deposit for 70 business days prior to the first day of the applicable Event Period (“Average RFD”) divided by (ii) the sum of Average RFD amounts for all Members that are subject to a loss allocation in such round.24 Additionally, NSCC proposes that each Member's Loss Allocation Cap would be equal to the greater of (i) its Required Fund Deposit on the first day of the applicable Event Period or (ii) its Average RFD.25

    23Id. at 900.

    24Id.

    25Id.

    Fifth, NSCC proposes to revise the cap on a loss allocation and the withdrawal process followed by the loss allocation. As proposed, if a Member provides notice of its withdrawal from membership, the Member's maximum amount of losses with respect to any loss allocation round would be its Loss Allocation Cap.26 NSCC further proposes that Members would have two business days after NSCC issues a first round Loss Allocation Notice to pay the amount specified in such notice.27 Members would have five business days from the issuance of the first Loss Allocation Notice in any round to decide whether to terminate its membership, provided that the Member complies with the requirements of the proposed withdrawal process.28

    26Id.

    27Id. at 900 and 905.

    28Id. at 900.

    B. Loss Allocation Governance for Declared Non-Default Loss Events

    NSCC proposes to enhance the governance around Declared Non-Default Loss Events that would trigger a loss allocation by specifying that the Board of Directors would have to determine that there is a non-default loss that (i) may present a significant and substantial loss or liability, so as to materially impair the ability of NSCC to provide clearance and settlement services in an orderly manner, and (ii) will potentially generate losses to be mutualized among Members in order to ensure that NSCC may continue to offer clearance and settlement services in an orderly manner.29 NSCC would then be required to promptly notify Members of this determination.30

    29Id. at 901.

    30Id.

    C. Retention Time for the Actual Deposit of a Former Participant

    NSCC proposes that if a Member gives notice to NSCC of its election to withdraw from membership, NSCC would return the Member's Actual Deposit in the form of cash or securities within 30 calendar days and Eligible Letters of Credit within 90 calendar days.31 The return would be made after all of the Member's transactions have settled, and all matured and contingent obligations to NSCC for which the Member was responsible while a Member have been satisfied, except NSCC may retain for up to two years the Actual Deposits from Members who have sponsored Accounts at DTC.32 This proposed rule would reduce the period in which NSCC may retain a Member's Actual Deposit pursuant to the current rule.33

    31Id. at 901-902.

    32Id.

    33Id. at 907.

    III. Proceedings To Determine Whether To Approve or Disapprove the Proposed Rule Change and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act 34 to determine whether the Proposed Rule Change should be approved or disapproved. Institution of proceedings is appropriate at this time in view of the legal and policy issues raised by the Proposed Rule Change. Institution of proceedings does not indicate that the Commission has reached any conclusions with respect to any of the issues involved. Rather, the Commission seeks and encourages interested persons to comment on the Proposed Rule Change, and provide the Commission with arguments to support the Commission's analysis as to whether to approve or disapprove the Proposed Rule Change.

    34 15 U.S.C. 78s(b)(2)(B).

    Pursuant to Section 19(b)(2)(B) of the Act,35 the Commission is providing notice of the grounds for disapproval under consideration. The Commission is instituting proceedings to allow for additional analysis of, and input from commenters with respect to, the Proposed Rule Change's consistency with Section 17A of the Act,36 and the rules thereunder, including the following provisions:

    35Id.

    36 15 U.S.C. 78q-1.

    • Section 17A(b)(3)(F) of the Act,37 which requires, among other things, that the rules of a clearing agency, such as NSCC, must be designed to promote the prompt and accurate clearance and settlement of securities transactions, to assure the safeguarding of securities and funds which are in the custody or control of the clearing agency or for which it is responsible, and to protect investors and the public interest;

    37 15 U.S.C. 78q-1(b)(3)(F).

    • Rule 17Ad-22(e)(13) under the Act,38 which requires, in general, a covered clearing agency, such as NSCC, to establish, implement, maintain and enforce written policies and procedures reasonably designed to ensure the covered clearing agency has the authority and operational capacity to take timely action to contain losses and liquidity demands and continue to meet its obligations.

    38 17 CFR 240.17Ad-22(e)(13).

    • Rule 17Ad-22(e)(23)(i) under the Act,39 which requires a covered clearing agency, such as NSCC, to establish, implement, maintain and enforce written policies and procedures reasonably designed to publicly disclose all relevant rules and material procedures, including key aspects of its default rules and procedures.

    39 17 CFR 240.17Ad-22(e)(23)(i).

    IV. Procedure: Request for Written Comments

    The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the Proposed Rule Change. In particular, the Commission invites the written views of interested persons concerning whether the Proposed Rule Change is consistent with Section 17A(b)(3)(F) of the Act,40 Rule 17Ad-22(e)(13) under the Act,41 Rule 17Ad-22(e)(23)(i) under the Act,42 or any other provision of the Act, or the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4(g) under the Act,43 any request for an opportunity to make an oral presentation.44

    40 15 U.S.C. 78q-1(b)(3)(F).

    41 17 CFR 240.17Ad-22(e)(13).

    42 17 CFR 240.17Ad-22(e)(23)(i).

    43 17 CFR 240.19b-4(g).

    44 Section 19(b)(2) of the Act grants to the Commission flexibility to determine what type of proceeding—either oral or notice and opportunity for written comments—is appropriate for consideration of a particular proposal by a self-regulatory organization. See Securities Act Amendments of 1975, Senate Comm. on Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st Sess. 30 (1975).

    Interested persons are invited to submit written data, views, and arguments regarding whether the Proposed Rule Change should be approved or disapproved by April 16, 2018. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by April 30, 2018.

    The Commission asks that commenters address the sufficiency of NSCC's statements in support of the Proposed Rule Change, which are set forth in the Notice,45 in addition to any other comments they may wish to submit about the Proposed Rule Change.

    45See Notice, supra note 4.

    Comments may be submitted by any of the following methods:

    Electronic Comments

    • Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or

    • Send an email to [email protected] Please include File Number SR-NSCC-2017-018 on the subject line.

    Paper Comments

    • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

    All submissions should refer to File Number SR-NSCC-2017-018. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's internet website (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the Proposed Rule Change that are filed with the Commission, and all written communications relating to the Proposed Rule Change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for website viewing and printing in the Commission's Public Reference Room, 100 F Street NE, Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of NSCC and on The Depository Trust & Clearing Corporation's website (http://dtcc.com/legal/sec-rule-filings.aspx). All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NSCC-2017-018 and should be submitted on or before April 16, 2018. Rebuttal comments should be submitted by April 30, 2018.

    46 17 CFR 200.30-3(a)(57).

    For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.46

    Eduardo A. Aleman, Assistant Secretary.
    [FR Doc. 2018-06016 Filed 3-23-18; 8:45 am] BILLING CODE 8011-01-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-82915; File No. SR-DTC-2018-001] Self-Regulatory Organizations; The Depository Trust Company; Order Approving Proposed Rule Change To Amend the By-Laws March 20, 2018.

    On February 2, 2018, The Depository Trust Company (“DTC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR-DTC-2018-001, pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder.2 The proposed rule change was published for comment in the Federal Register on February 14, 2018.3 The Commission did not receive any comment letters on the proposed rule change. For the reasons discussed below, the Commission approves the proposed rule change.

    1 15 U.S.C. 78s(b)(1).

    2 17 CFR 240.19b-4.

    3 Securities Exchange Act Release No. 82671 (February 8, 2018), 83 FR 6639 (February 14, 2018) (SR-DTC-2018-001) (“Notice”).

    I. Description of the Proposed Rule Change

    The proposed rule change would amend the DTC By-Laws (“By-Laws”) 4 to (1) revise DTC's governance procedures, (2) change certain DTC Board of Directors (“Board”) titles, officer titles, and offices (and their respective powers and duties), (3) update the compensation section for officers, and (4) make technical changes and corrections, each discussed more fully below.

    4 The By-Laws are included in the Rules, By-Laws and Organization Certificate of DTC (“Rules”), available at http://www.dtcc.com/legal/rules-and-procedures.

    A. Changes to DTC's Governance Procedures

    Under the proposed rule change, DTC would revise certain governance procedures of the By-Laws. Specifically, DTC proposes to (1) change the required frequency of the Board's and the Executive Committee's meetings, (2) remove the word “monthly” from the phrase “regular monthly meetings” when describing Board meetings, and (3) permit the Board to act by unanimous written consent.5

    5 Notice, 83 FR at 6640.

    DTC proposes to reduce the required frequency of its Board meetings and Executive Committee meetings, as provided for in Section 2.6 (Meetings) of the By-Laws,6 to better align the frequency of the Board meetings with those of the Fixed Income Clearing Corporation (“FICC”) and the National Securities Clearing Corporation (“NSCC”).7 Specifically, the proposal would reduce the minimum required number of Board meetings from ten meetings per year (with at least two meetings during any three-month period) to six meetings per year (with at least one meeting during any three-month period).8 The proposal would also delete the provision in current Section 2.6 (Meetings) requiring the Executive Committee to meet during each 30-day period in which the Board does not meet.9

    6 Hereinafter, section references will always be to the By-Laws unless otherwise stated.

    7 Notice, 83 FR at 6640. DTC, FICC, and NSCC are subsidiaries of the Depository Trust and Clearing Corporation (“DTCC”), each having the same Board of Directors as DTCC. See Securities Exchange Act Release No. 74142 (January 27, 2015), 80 FR 5188 (January 30, 2015) (SR-FICC-2014-810, SR-NSCC-2014-811, SR-DTC-2014-812).

    8 Notice, 83 FR at 6640.

    9Id.

    Due to the proposed changes to the frequency of Board meetings and Executive Committee meetings, DTC proposes to remove the word “monthly” from Section 2.6 (Meetings).10 The proposal would also permit the Board to fix times and places for its regular meetings and not require the Board to provide notice of such regular meetings.11

    10Id.

    11Id. Although the proposal would not require the Board to provide notice of its regular meetings, the proposal would not affect other existing notice requirements in the By-Laws, such as the requirement in Section 1.4 (Notice of Meetings) to provide notice of meetings in which stockholders are required or permitted to take action and Section 2.6 (Meetings) regarding special meetings of the Board. Rules, supra note 4.

    Finally, DTC proposes to add proposed Section 2.9 (Action by Unanimous Written Consent).12 This section would permit the Board to take all actions that may be taken at a Board meeting by unanimous written consent, in lieu of an actual meeting.13 The provision would require that any written consent (1) identify the action to be taken, (2) be signed by all directors, and (3) be filed with the minutes of the proceedings of the Board.14

    12Id.

    13Id.

    14Id.

    B. Changes to Certain Titles, Offices, and Related Powers and Duties

    DTC also proposes changes to the titles, offices, and related powers and duties of certain Board and officer personnel, as further described below.

    1. Non-Executive Chairman of the Board

    DTC proposes to replace the title of “Chairman of the Board” with the title of “Non-Executive Chairman of the Board.” 15 DTC proposes to change its By-Laws to reflect that this position is held by a non-executive.16 Therefore, DTC would change relevant references in the By-Laws from “Chairman” and “Chairman of the Board” to “Non-Executive Chairman of the Board.” 17 DTC also would delete certain references in the By-Laws to the Non-Executive Chairman of the Board as a member of DTC management because the position is no longer in management.18

    15 Notice, 83 FR at 6641.

    16Id.

    17Id.

    18Id.

    In the proposed Section 2.8 (Non-Executive Chairman of the Board), DTC would identify the powers and duties of the Non-Executive Chairman of the Board, including (1) general responsibility for carrying out the policies of the Board, (2) general supervision of the Board and its activities and general leadership of the Board, (3) presiding over stockholders' meetings (when present), and (4) such other powers and duties as the Board may designate.19 Proposed Section 2.8 (Non-Executive Chairman of the Board) also would include a provision stating that a presiding director (as elected by the Board) shall preside at all stockholders and Board meetings when the Non-Executive Chairman of the Board is absent.20 Additionally, Proposed Section 2.8 (Non-Executive Chairman of the Board) would provide that the Non-Executive Chairman of the Board's performance of any enumerated duty shall be conclusive evidence of his power to act.21

    19Id.

    20Id. This provision is designed to correct an inaccuracy in current By-Laws Section 3.3 (Powers and Duties of the President), which gives presiding authority over stockholder meetings to the President when the Chairman of the Board is absent. Proposed Section 2.8 (Non-Executive Chairman of the Board) would be consistent with the Mission Statement and Charter of DTC, FICC, NSCC, and DTCC, which gives presiding authority over stockholder meetings to a presiding director when the Non-Executive Chairman of the Board is absent.

    21Id.

    The proposal also identifies the individuals to whom the Non-Executive Chairman may assign duties. In proposed Section 3.2 (Powers and Duties of the President and Chief Executive Officer), the Non-Executive Chairman of the Board would have the authority to designate powers and duties to the President and Chief Executive Officer (“CEO”).22 In proposed Section 3.2 (Powers and Duties of Managing Directors), DTC also would add the Non-Executive Chairman of the Board to the list of individuals who have the ability to assign powers and duties to Managing Directors.23 Finally, in proposed Section 3.4 (Powers and Duties of the Secretary), the Non-Executive Chairman of the Board (i.e., not the President and CEO) would have the authority to assign additional powers and duties to the Secretary.24

    22Id.

    23Id.

    24Id.

    2. Office of the CEO

    DTC proposes to revise the By-Laws to reflect that one individual holds the office of the President and CEO. As such, the proposal would change the By-Laws to add the office of the CEO and combine the office of the President and the office of the CEO into one office (President and CEO).25 While current Section 3.3 (Powers and Duties of the President) provides that the President shall be the CEO, current Section 3.1 (General Provisions) does not include CEO in the list of designated officer positions, though President is currently included in this list.26 Therefore, DTC proposes to revise the relevant references in the By-Laws from President to President and CEO.27

    25Id.

    26Id.

    27 Notice, 83 FR at 6642.

    Additionally, DTC proposes to make several By-Laws revisions to reflect the responsibilities for the consolidated role of President and CEO.28 First, DTC would delete and replace current Section 3.3 (Powers and Duties of the President) with proposed Section 3.2 (Powers and Duties of the President and CEO).29 Proposed Section 3.2 (Powers and Duties of the President and CEO) would clarify the powers and duties associated with the role of President and CEO.30 For example, in proposed Section 3.2 (Powers and Duties of the President and CEO) the President and CEO would have general supervision over the overall business strategy, business operations, systems, customer outreach, as well as risk management, control, and staff functions, subject to the direction of the Board and the Non-Executive Chairman of the Board.31 In addition, because the office of the Chief Operating Officer (“COO”) would be eliminated (as described further below), the current COO responsibility of general supervision over DTC's operations in current Section 3.4 (Powers and Duties of the Chief Operating Officer) would be assigned to the President and CEO.32 Proposed Section 3.2 (Powers and Duties of the President and CEO) would also delineate the authority that the Non-Executive Chairman of the Board has over the President and CEO by stating that the latter would have such other powers and perform such other duties as the Board or the Non-Executive Chairman of the Board may designate.33

    28Id.

    29Id.

    30Id.

    31Id.

    32Id.

    33Id.

    DTC also proposes to reassign or reclassify several responsibilities currently assigned to the President.34 Specifically, the responsibility for executing the Board's policies would be assigned to the Non-Executive Chairman of the Board rather than to the President and CEO.35 Additionally, DTC would remove the statement “performance of any such duty by the President shall be conclusive evidence of his power to act” in current Section 3.3 (Powers and Duties of the President).36

    34Id.

    35Id.

    36Id.

    As mentioned above, DTC would delete language from the By-Laws stating that, in the absence of the Chairman of the Board, the President shall preside at all meetings of shareholders and all Board meetings (when present).37 Similarly, DTC would delete language from the By-Laws stating that the President and Board currently have the authority to assign powers and duties to the Comptroller in current Section 3.8 (Powers and Duties of the Comptroller), as discussed below.38 In proposed Section 3.5 (Powers and Duties of the Chief Financial Officer) the President and CEO and Board would have the authority to assign duties to the Chief Financial Officer (“CFO”).39

    37Id. As stated above, that power resides with the presiding director who is elected annually by the Board. See supra note 20.

    38 Notice, 83 FR at 6642.

    39Id.

    The proposal also removes certain responsibilities from the President. In proposed Section 3.4 (Powers and Duties of the Secretary), the power to assign additional powers and duties to the Secretary would be removed from the President and granted to the Non-Executive Chairman of the Board.40

    40Id.

    3. Office of the CFO; Office of the Comptroller

    The proposal would add the office of the CFO and assign to the CFO general supervision of the financial operations of DTC.41 References in the By-Laws to the Comptroller would be deleted because DTC states that it neither has a Comptroller nor plans to appoint one.42 In proposed Section 3.5 (Powers and Duties of the Chief Financial Officer) the CFO would be granted overall supervision authority over the financial operations of DTC, and upon request, the CFO would counsel and advise other officers of DTC and perform other duties as agreed with the President and CEO (or as determined by the Board).43 The proposal also provides that the CFO would report directly to the President and CEO.44 Furthermore, because the Treasurer would directly report to the CFO, proposed Section 3.6 (Powers and Duties of the Treasurer) would provide that the Treasurer would have all such powers and duties as generally are incident to the position of Treasurer or as the CFO (in addition to the President and CEO and the Board) may assign.45

    41Id.

    42Id.

    43Id.

    44Id.

    45Id.

    4. Office of the COO

    In this proposal, DTC would delete references in the By-Laws to the COO because DTC states that it no longer has a COO and has no plans to appoint one.46

    46 Notice, 83 FR at 6643.

    5. Executive Director; Vice President

    In this proposal, DTC would change the title of Vice President to Executive Director, and update the Executive Director position's related powers and duties to reflect the position's seniority level.47 In DTC's organizational structure, Executive Directors report to Managing Directors.48 Due to this level of seniority, DTC proposes to remove provisions in the By-Laws that previously allowed Vice Presidents (now, Executive Directors) to call special meetings of shareholders, or to preside over shareholder meetings unless specifically designated to do so by the Board.49

    47Id.

    48Id.

    49Id.

    6. Other Changes to the Powers and Duties of the Board and Certain Other Designated Officers

    In proposed Section 3.1 (General Provisions), DTC proposes to add a parenthetical phrase to clarify that the Board's power to appoint other officers includes, but is not limited to, the power to appoint a Vice Chairman of the Corporation and one or more Executive Directors.50 Additionally, in current Section 3.1 (General Provisions), DTC proposes to clarify that neither the Secretary nor any Assistant Secretary can hold the following offices (1) Vice Chairman of the Corporation or (2) President and CEO.51

    50Id.

    51Id.

    The proposal also enumerates the responsibilities of DTC's Managing Directors.52 In proposed Section 1.2 (Special Meetings), Managing Directors would be added to the list of officers authorized to call special meetings of the stockholders.53 Similarly, in proposed Section 2.6 (Meetings), Managing Directors would be added to the list of officers authorized to call special meetings of the Board.54 Further, in current Section 6.1 (Certificates for Shares), Managing Directors would be removed from the list of officers authorized to sign certificates for shares, enabling DTC to limit the authorized signatories of certificates for shares of DTC to a smaller number of individuals within senior management.55

    52Id.

    53Id.

    54Id.

    55Id.

    DTC also proposes to amend the By-Laws to remove specific powers from the Treasurer and Assistant Treasurer.56 In current Section 6.1 (Certificates of Shares), DTC proposes to delete the reference to Treasurer and Assistant Treasurer from the list of authorized signatories because DTC expects the Secretary or Assistant Secretary (who are each currently listed as authorized signatories) to sign any share certificates.57

    56Id.

    57Id.

    C. Compensation of the President and CEO

    Proposed Section 3.10 (Compensation of the President and CEO) would reflect DTC's current compensation-setting practices. Current Section 3.12 (Compensation of Officers) states that (1) the compensation, if any, of the Chairman of the Board, and the President shall be fixed by a majority (which shall not include the Chairman of the Board or the President) of the entire Board of Directors, and (2) salaries of all other officers shall be fixed by the President with the approval of the Board and no officer shall be precluded from receiving a salary because he is also a director.58 DTC proposes to state that the Compensation Committee of the Corporation will recommend the compensation for the President and CEO to the Board of Directors for approval.59 In addition, DTC also proposes to delete the language stating that (1) salaries of all other officers shall be fixed by the President with approval of the Board, and (2) no officer shall be precluded from receiving a salary because he is also a director.60 DTC proposes to delete compensation-related references to the Chairman of the Board because the Non-Executive Chairman of the Board does not receive compensation.61 Finally, DTC proposes to change the title of proposed Section 3.10 from “Compensation of Officers” to “Compensation of the President and Chief Executive Officer” because this section would no longer address the compensation of officers other than the President and CEO.62

    58Id.

    59 Notice, 83 FR at 6643-44. DTC states that it proposes this change for consistency with the DTCC/DTC/FICC/NSCC Compensation and Human Resources Committee Charter. Id.

    60Id.

    61Id.

    62 Notice, 83 FR at 6644.

    D. Technical Changes and Corrections

    DTC proposes technical changes and/or corrections to the By-Laws for clarity and readability, as described below.63

    63Id.

    1. Statutory References and Requirements

    DTC would delete direct statutory references from the By-Laws.64 DTC states that it would make this change to have the By-Laws remain consistent and accurate despite any changes to a specifically cited statute.65

    64Id.

    65Id.

    2. Audit Committee

    DTC proposes to revise proposed Section 2.11 (Audit Committee) to have the description of its Audit Committee conform to the description of the Audit Committee in the by-laws of FICC.66

    66Id.

    3. Other Technical Changes and Corrections

    DTC proposes to make additional technical and grammatical changes to address (1) typographical errors, (2) section numbering, (3) grammatical errors, (4) heading consistency, and (5) gender references.67

    67 Notice, 83 FR at 6644-45.

    II. Discussion and Commission Findings

    Section 19(b)(2)(C) of the Act directs the Commission to approve a proposed rule change of a self-regulatory organization if it finds that such proposed rule change is consistent with the requirements of the Act and rules and regulations thereunder applicable to such organization.68 The Commission believes the proposal is consistent with Act, specifically Section 17A(b)(3)(F) of the Act and Rules 17Ad-22(e)(1) and, in part, (2) under the Act.69

    68 15 U.S.C. 78s(b)(2)(C).

    69 15 U.S.C. 78q-1(b)(3)(F); 17 CFR 240.17Ad-22(e)(1) and (2).

    A. Section 17A(b)(3)(F) of the Act

    Section 17A(b)(3)(F) of the Act requires, in part, that the rules of a clearing agency, such as DTC, be designed to protect the public interest.70 As discussed above, the proposed rule change would make a number of updates to the By-Laws.

    70 15 U.S.C. 78q-1(b)(3)(F).

    First, the proposed changes to the By-Laws would provide specific requirements for, and remove ambiguous language around, the Board's required meeting frequency. Specifically, the proposal would align the frequency of Board meetings with the frequency of the related FICC and NSCC meetings, reducing the number of Board meetings to six annually. The proposal also would state that the Board may act through unanimous written consent, clarifying that the Board can make important decisions without having to conduct a formal Board meeting. Further, the proposal would eliminate the word “monthly” from the By-Laws' description of the Board's meeting frequency, removing ambiguity around whether the Board must meet monthly (given the required number of meetings is six). Altogether, these proposed governance changes would help enable DTC and its stakeholders to better understand when, and specifically, how often, the Board must conduct meetings.

    Second, DTC proposes to revise DTC's description of the titles and responsibilities of its Board and senior management to match DTC's current corporate structure. These changes would help the Board, as well as DTC's management, employees, and participants, understand which officer or office is responsible for each of DTC's executive-level functions.

    Third, the proposal would update the compensation-setting section of the By-Laws to reflect the Compensation Committee Charter practice, as well as to reflect that the Non-Executive Chairman of the Board would not receive compensation. The proposal's increased clarity around compensation-setting would better inform DTC stakeholders and the general public about how DTC sets the level of compensation for its highest-level executive (the President and CEO) and that the Non-Executive Chairman does not draw a salary.

    Finally, DTC's proposed technical changes and corrections to its By-Laws would enhance the clarity, transparency, and readability of DTC's organizational documents. In this way, the proposal would better enable the Board, as well as DTC's management, employees, and participants, to understand their respective authorities, rights, and obligations regarding DTC's clearance and settlement of securities transactions.

    Governance arrangements are critical to the sound operation of clearing agencies.71 Specifically, clear and transparent governance documents promote accountability and reliability in the decisions, rules, and procedures of a clearing agency.72 Clear and transparent governance documents also provide interested parties, including owners, participants, and general members of the public, with information about how a clearing agency's decisions are made and what the rules and procedures are designed to accomplish.73 Further, the decisions, rules, and procedures of a clearing agency are important, as they can have widespread impact, affecting multiple market participants, financial institutions, markets, and jurisdictions.74

    71 Securities Exchange Act Release No. 71699 (May 21, 2014), 79 FR 29508 (May 22, 2014) (“Covered Clearing Agency Standards Proposing Release”) at 29521.

    72 Securities Exchange Act Release No. 64017 (March 3, 2011), 76 FR 14472 (March 16, 2011) at 14488.

    73Id.

    74 Covered Clearing Agency Standards Proposing Release, 79 FR at 29521.

    As stated above, the proposed rule change would provide DTC stakeholders with a better understanding of how DTC makes decisions that could ultimately affect the financial system. Such transparency helps ensure that DTC reliably makes decisions and follows clearly articulated policies and procedures. Accordingly, the Commission finds that the proposed rule change is designed to enhance the clarity and transparency of DTC's organizational documents, which would help protect the public interest, consistent with Section 17A(b)(3)(F) of the Act.75

    75 15 U.S.C. 78q-1(b)(3)(F).

    B. Rule 17Ad-22(e)(1) Under the Act

    Rule 17Ad-22(e)(1) under the Act requires a covered clearing agency 76 to establish, implement, maintain, and enforce written policies and procedures reasonably designed to provide for a well-founded, transparent, and enforceable legal basis for each aspect of its activities in all relevant jurisdictions.77

    76 A “covered clearing agency” means, among other things, a clearing agency registered with the Commission under Section 17A of the Exchange Act (15 U.S.C. 78q-1 et seq.) that is designated systemically important by the Financial Stability Oversight Counsel (“FSOC”) pursuant to the Payment, Clearing, and Settlement Supervision Act of 2010 (12 U.S.C. 5461 et seq.). See 17 CFR 240.17Ad-22(a)(5)-(6). On July 18, 2012, FSOC designated DTC as systemically important. U.S. Department of the Treasury, “FSOC Makes First Designations in Effort to Protect Against Future Financial Crises,” available at https://www.treasury.gov/press-center/press-releases/Pages/tg1645.asp. Therefore, DTC is a covered clearing agency.

    77 17 CFR 240.17Ad-22(e)(1).

    As discussed above, the proposed rule change would update the By-Laws by (1) providing specific requirements for, and removing ambiguous language around, the Board's required meeting frequency, (2) updating DTC's description of the titles and responsibilities of its Board and senior management to match DTC's current corporate structure, (3) documenting DTC's current compensation-setting process, and (4) enacting technical corrections to increase readability.

    Each of the proposed changes is designed to help ensure that the By-Laws better reflect DTC's governance practices in a clear, transparent, and consistent manner. This increased transparency would help convey to DTC's stakeholders, and the public generally, a key legal basis for the activities of the highest levels of DTC's leadership described in the By-Laws. Therefore, the Commission finds that the proposed rule change is designed to help ensure that DTC's organizational documents remain well-founded, transparent, and legally enforceable in all relevant jurisdictions, consistent with Rule 17Ad-22(e)(1) under the Act.78

    78Id.

    C. Rule 17Ad-22(e)(2)(i) and (v) Under the Act

    Rule 17Ad-22(e)(2)(i) and (v) under the Act requires that DTC establish, implement, maintain and enforce written policies and procedures reasonably designed to provide for governance arrangements that, among other things, (1) are clear and transparent and (2) specify clear and direct lines of responsibility.79

    79 17 CFR 240.17Ad-22(e)(2)(i) and (v).

    As described above, DTC proposes a number of changes to its By-Laws that would provide clarity and transparency by setting specific standards for DTC (in the case of Board meeting frequency), and revising By-Laws provisions that were outdated or incorrect (in the case of responsibilities and titles of its Board members and senior management, compensation-setting practices, and technical edits). Specifically, the new Board meeting requirements would set clear numerical parameters around the specific frequency of such meetings, while also providing consistency with similar meetings at FICC and NSCC. The proposal also would provide clarity that the Board does not have to meet monthly (as is currently stated) by removing the qualifier “monthly.” The proposed change allowing the Board to act by unanimous written consent, in lieu of a meeting, also would help provide transparency by clearly indicating how the Board may act without conducting a formal meeting. Similarly, the proposed changes to the titles and offices (and their related powers and duties) would provide clarity and transparency because they would clearly set forth DTC's current organizational structure, including the lines of responsibility of various officers and the Board. The proposed changes relating to compensation-setting would also give clarity and transparency by (1) accurately reflecting the process that is followed pursuant to the Compensation Committee Charter, and (2) clarifying that the Non-Executive Chairman of the Board does not receive compensation. Finally, the proposed technical changes and corrections would raise the clarity and transparency of the By-Laws by removing grammatical and typographical errors.

    For these reasons, the Commission finds that the proposed rule change is designed to enhance clarity and transparency in DTC's governance arrangements, as well as to specify clear and direct lines of responsibility for various officer positions and the Board within DTC's organizational structure, consistent with Rule 17Ad-22(e)(2)(i) and (v) under the Act.80

    80Id.

    III. Conclusion

    On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act, in particular the requirements of Section 17A of the Act 81 and the rules and regulations thereunder.

    81 15 U.S.C. 78q-1.

    It is therefore ordered, pursuant to Section 19(b)(2) of the Act, that proposed rule change SR-DTC-2018-001 be, and hereby is, APPROVED.82

    82 In approving the proposed rule change, the Commission considered the proposals' impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f).

    For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.83

    83 17 CFR 200.30-3(a)(12).

    Eduardo A. Aleman, Assistant Secretary.
    [FR Doc. 2018-06021 Filed 3-23-18; 8:45 am] BILLING CODE 8011-01-P
    SECURITIES AND EXCHANGE COMMISSION [Release No. 34-82916; File No. SR-NSCC-2018-001] Self-Regulatory Organizations; National Securities Clearing Corporation; Order Approving Proposed Rule Change To Amend the By-Laws March 20, 2018.

    On February 2, 2018, National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR-NSCC-2018-001, pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder.2 The proposed rule change was published for comment in the Federal Register on February 14, 2018.3 The Commission did not receive any comment letters on the proposed rule change. For the reasons discussed below, the Commission approves the proposed rule change.

    1 15 U.S.C. 78s(b)(1).

    2 17 CFR 240.19b-4.

    3 Securities Exchange Act Release No. 82674 (February 8, 2018), 83 FR 6633 (February 14, 2018) (SR-NSCC-2018-001) (“Notice”).

    I. Description of the Proposed Rule Change

    The proposed rule change would amend the NSCC By-Laws (“By-Laws”) 4 to (1) change certain NSCC Board of Directors (“Board”) titles, officer titles, and offices (and their respective powers and duties), (2) update the compensation section for officers, and (3) make technical changes and corrections, each discussed more fully below. The proposed rule change would amend the Rules to incorporate, by reference, the By-Laws and the Certificate of Incorporation.

    4 As discussed below, the By-Laws and NSCC's Certificate of Incorporation (“Certificate of Incorporation”) would each be incorporated by reference into NSCC's Rules and Procedures (“Rules”), available at http://www.dtcc.com/legal/rules-and-procedures.

    A. Changes to Certain Titles, Offices, and Related Powers and Duties

    NSCC proposes changes to the titles, offices, and related powers and duties of certain Board and officer personnel, as further described below.

    1. Non-Executive Chairman of the Board

    NSCC proposes to replace the title of “Chairman of the Board” with the title of “Non-Executive Chairman of the Board.” 5 NSCC proposes to change its By-Laws to reflect that this position is held by a non-executive.6 Therefore, NSCC would change relevant references in the By-Laws from “Chairman” and “Chairman of the Board” to “Non-Executive Chairman of the Board.” 7 NSCC also would delete certain references in the By-Laws to the Non-Executive Chairman of the Board as a member of NSCC management because the position is no longer in management.8

    5 Notice, 83 FR at 6634.

    6Id.

    7Id.

    8Id.

    In the proposed Section 2.8 (Non-Executive Chairman of the Board), NSCC would identify the powers and duties of the Non-Executive Chairman of the Board, including (1) general responsibility for carrying out the policies of the Board, (2) general supervision of the Board and its activities and general leadership of the Board, (3) presiding over stockholders' meetings (when present), and (4) such other powers and duties as the Board may designate.9 Proposed Section 2.8 (Non-Executive Chairman of the Board) also would include a provision stating that a presiding director (as elected by the Board) shall preside at all stockholders and Board meetings when the Non-Executive Chairman of the Board is absent.10 Additionally, Proposed Section 2.8 (Non-Executive Chairman of the Board) would provide that the Non-Executive Chairman of the Board's performance of any enumerated duty shall be conclusive evidence of his power to act.11

    9Id.

    10Id. This provision is designed to correct an inaccuracy in current By-Laws Section 3.3 (Powers and Duties of the President), which gives presiding authority over stockholder meetings to the President when the Chairman of the Board is absent. Proposed Section 2.8 (Non-Executive Chairman of the Board) would be consistent with the Mission Statement and Charter of the Depository Trust Corporation (“DTC”), Fixed Income Clearing Corporation (“FICC”), NSCC, and the Depository Trust and Clearing Corporation (“DTCC”), which gives presiding authority over stockholder meetings to a presiding director when the Non-Executive Chairman of the Board is absent. DTC, FICC, and NSCC are subsidiaries of DTCC, each having the same Board of Directors as DTCC. See Securities Exchange Act Release No. 74142 (January 27, 2015), 80 FR 5188 (January 30, 2015) (SR-FICC-2014-810, SR-NSCC-2014-811, SR-DTC-2014-812).

    11 Notice, 83 FR at 6634.

    The proposal also identifies the individuals to whom the Non-Executive Chairman may assign duties. In proposed Section 3.2 (Powers and Duties of the President and Chief Executive Officer), the Non-Executive Chairman of the Board would have the authority to designate powers and duties to the President and Chief Executive Officer (“CEO”).12 In proposed Section 3.2 (Powers and Duties of Managing Directors), NSCC also would add the Non-Executive Chairman of the Board to the list of individuals who have the ability to assign powers and duties to Managing Directors.13 Finally, in proposed Section 3.4 (Powers and Duties of the Secretary), the Non-Executive Chairman of the Board (i.e., not the President and CEO) would have the authority to assign additional powers and duties to the Secretary.14

    12 Notice, 83 FR at 6635.

    13Id.

    14Id.

    2. Office of the CEO

    NSCC proposes to revise the By-Laws to reflect that one individual holds the office of the President and CEO. As such, the proposal would change the By-Laws to add the office of the CEO and combine the office of the President and the office of the CEO into one office (President and CEO).15 While current Section 3.3 (Powers and Duties of the President) provides that the President shall be the CEO, current Section 3.1 (General Provisions) does not include CEO in the list of designated officer positions, though President is currently included in this list.16 Therefore, NSCC proposes to revise the relevant references in the By-Laws from President to President and CEO.17

    15Id.

    16Id.

    17Id.

    Additionally, NSCC proposes to make several By-Laws revisions to reflect the responsibilities for the consolidated role of President and CEO.18 First, NSCC would delete and replace current Section 3.3 (Powers and Duties of the President) with proposed Section 3.2 (Powers and Duties of the President and CEO).19 Proposed Section 3.2 (Powers and Duties of the President and CEO) would clarify the powers and duties associated with the role of President and CEO.20 For example, in proposed Section 3.2 (Powers and Duties of the President and CEO) the President and CEO would have general supervision over the overall business strategy, business operations, systems, customer outreach, as well as risk management, control, and staff functions, subject to the direction of the Board and the Non-Executive Chairman of the Board.21 In addition, because the office of the Chief Operating Officer (“COO”) would be eliminated (as described further below), the current COO responsibility of general supervision over NSCC's operations in current Section 3.4 (Powers and Duties of the Chief Operating Officer) would be assigned to the President and CEO.22 Proposed Section 3.2 (Powers and Duties of the President and CEO) would also delineate the authority that the Non-Executive Chairman of the Board has over the President and CEO by stating that the latter would have such other powers and perform such other duties as the Board or the Non-Executive Chairman of the Board may designate.23

    18Id.

    </