Federal Register Vol. 83, No.72,

Federal Register Volume 83, Issue 72 (April 13, 2018)

Page Range15937-16181
FR Document

83_FR_72
Current View
Page and SubjectPDF
83 FR 16179 - Ending ``Catch and Release'' at the Border of the United States and Directing Other Enhancements to Immigration EnforcementPDF
83 FR 15941 - Reducing Poverty in America by Promoting Opportunity and Economic MobilityPDF
83 FR 15937 - Maintaining Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety ThreatsPDF
83 FR 16060 - Sunshine Act MeetingsPDF
83 FR 16175 - Government Securities: Call for Large Position ReportsPDF
83 FR 16062 - Meeting of the U.S. Naval Academy Board of VisitorsPDF
83 FR 16168 - Kasgro Rail Corp.-Lease and Operation Exemption-KJ Rail Logistics LLCPDF
83 FR 16112 - Office of the Director, National Institutes of Health; Notice of MeetingPDF
83 FR 16113 - National Institute on Minority Health and Health Disparities; Notice of Closed MeetingPDF
83 FR 16112 - National Institute on Minority Health and Health Disparities; Notice of Closed MeetingPDF
83 FR 16113 - National Institute on Drug Abuse; Notice of Closed MeetingsPDF
83 FR 16112 - National Center for Advancing Translational Sciences; Notice of Closed MeetingPDF
83 FR 16064 - Response to June 1, 2016 Clean Air Act Section 126(b) Petition From ConnecticutPDF
83 FR 16170 - Surface Transportation Project Delivery Program; Utah Department of Transportation Audit ReportPDF
83 FR 16104 - Antimicrobial Drugs Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for CommentsPDF
83 FR 16063 - Applications for New Awards; Expanding Opportunity Through Quality Charter Schools Program (CSP)-Grants to Charter School Developers for the Opening of New Charter Schools and for the Replication and Expansion of High-Quality Charter Schools; Amendment and Extension of Deadline for Transmittal of ApplicationsPDF
83 FR 16087 - Pesticide Maintenance Fee: Product Cancellation Order for Certain Pesticide RegistrationsPDF
83 FR 16058 - Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing PermitsPDF
83 FR 15977 - Sulfentrazone; Pesticide TolerancesPDF
83 FR 15971 - Fluensulfone; Pesticide TolerancesPDF
83 FR 16076 - Product Cancellation Orders: Certain Pesticide Registrations and Amendments To Terminate Uses; CorrectionPDF
83 FR 16126 - Notice of Availability of a Supplemental Draft Environmental Impact Statement and Notice of Public Meetings for the Kachess Drought Relief Pumping Plant and Keechelus Reservoir-to-Kachess Reservoir Conveyance, Kittitas and Yakima Counties, WashingtonPDF
83 FR 16117 - Notice of Intent To Prepare a Resource Management Plan Amendment With Associated Environmental Assessment and Notice of Segregation for the Proposed Dry Lake East Designated Leasing Area, Clark County, NVPDF
83 FR 16004 - Defense Federal Acquisition Regulation Supplement: Educational Service Agreements (DFARS Case 2017-D039)PDF
83 FR 15994 - Defense Federal Acquisition Regulation Supplement: Definition of “Information Technology” (DFARS Case 2017-D033)PDF
83 FR 16003 - Defense Federal Acquisition Regulation Supplement: Safe Access to Projects in Afghanistan (DFARS Case 2017-D032)PDF
83 FR 15995 - Defense Federal Acquisition Regulation Supplement: Consolidation of Contract Requirements (DFARS Case 2017-D004)PDF
83 FR 16001 - Defense Federal Acquisition Regulation Supplement: Competition for Religious-Related Services Contracts (DFARS Case 2016-D015)PDF
83 FR 15996 - Defense Federal Acquisition Regulation Supplement: Temporary Extension of Test Program for Comprehensive Small Business Subcontracting Plans (DFARS Case 2015-D013)PDF
83 FR 16134 - Information Collection: Requirements for Renewal of Operating Licenses for Nuclear Power PlantsPDF
83 FR 16027 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to U.S. Navy Pier Construction Activities at Naval Submarine Base New LondonPDF
83 FR 16116 - Notice of Proposed Reinstatement of Terminated Oil and Gas Lease WYW181106, WyomingPDF
83 FR 16054 - Certain Lined Paper Products From India: Final Results of Antidumping Duty Administrative Review; 2015-2016PDF
83 FR 16050 - Certain Uncoated Groundwood Paper From Canada: Amended Preliminary Countervailing Duty DeterminationPDF
83 FR 16051 - Steel Concrete Reinforcing Bar From the Republic of Turkey: Final Results and Partial Rescission of Countervailing Duty Administrative Review; 2015PDF
83 FR 16055 - Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Final Results of Countervailing Duty Administrative Review; 2015PDF
83 FR 16044 - Announcement of Application Deadlines and Requirements for Section 313A Guarantees for Bonds and Notes Issued for Electrification or Telephone Purposes Loan Program for Fiscal Year (FY) 2018PDF
83 FR 16010 - National Organic Program (NOP); Amendments to the National List of Allowed and Prohibited Substances (Crops, Livestock and Handling); Reopening of Comment PeriodPDF
83 FR 16049 - Notice of Public Meeting of the Georgia Advisory CommitteePDF
83 FR 15950 - Safety Zone; Cumberland River, Canton, KYPDF
83 FR 15952 - Safety Zone; Mississippi River, New Orleans, LAPDF
83 FR 16061 - Acquisition of Items for Which Federal Prison Industries Has a Significant Market SharePDF
83 FR 16048 - Notice of Public Meeting of the Kansas Advisory CommitteePDF
83 FR 16049 - Notice of Public Meeting of the Louisiana Advisory Committee To Discuss the Barriers to Voting ReportPDF
83 FR 16047 - Notice of Public Meeting of the Kansas Advisory CommitteePDF
83 FR 16005 - Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2017-18 Biennial Specifications and Management Measures; Inseason AdjustmentsPDF
83 FR 16128 - Agency Information Collection Activities; Submission for OMB Review; Comment Request, Reentry Employment Opportunities Evaluation, New CollectionPDF
83 FR 16008 - Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod by Catcher Vessels Less Than 60 Feet (18.3 Meters) Length Overall Using Jig or Hook-and-Line Gear in the Bogoslof Pacific Cod Exemption Area in the Bering Sea and Aleutian Islands Management AreaPDF
83 FR 16131 - Advisory Committee on Reactor Safeguards; Notice of MeetingPDF
83 FR 16119 - Notice of Intent To Repatriate Cultural Items: U.S. Army Corps of Engineers, Omaha District, Omaha, NE, and State Archaeological Research Center, Rapid City, SDPDF
83 FR 16124 - Notice of Inventory Completion: U.S. Army Corps of Engineers, Omaha District, Omaha, NE, and State Archaeological Research Center, Rapid City, SDPDF
83 FR 16123 - Notice of Intent To Repatriate Cultural Items: New York State Museum, Albany, NYPDF
83 FR 16118 - Notice of Inventory Completion: New York State Museum, Albany, NYPDF
83 FR 16121 - Notice of Inventory Completion: Mississippi Department of Archives and History, Jackson, MSPDF
83 FR 16133 - Supplementary Guidance Documents for Subsequent License RenewalPDF
83 FR 16100 - Granting of Requests for Early Termination of the Waiting Period Under the Premerger Notification RulesPDF
83 FR 16059 - Procurement List; Additions and DeletionsPDF
83 FR 16099 - Solicitation of Applications for Membership on the Community Advisory CouncilPDF
83 FR 15948 - Security Zones; Port Canaveral Harbor, Cape Canaveral Air Force Station, FLPDF
83 FR 16114 - Notice of Meeting Center for Mental Health ServicesPDF
83 FR 16050 - Proposed Information Collection; Comment Request; Manufacturers' Unfilled Orders SurveyPDF
83 FR 16130 - Records Schedules; Availability and Request for CommentsPDF
83 FR 16087 - Environmental Impact Statements; Notice of AvailabilityPDF
83 FR 16131 - Advisory Committee on Reactor Safeguards (ACRS): Meeting of the ACRS Subcommittee on NuScale; Notice of MeetingPDF
83 FR 16132 - Advisory Committee on Reactor Safeguards (ACRS): Meeting of the ACRS Subcommittee on APR1400; Notice of MeetingPDF
83 FR 16106 - Considerations for Design, Development, and Analytical Validation of Next Generation Sequencing-Based In Vitro Diagnostics Intended To Aid in the Diagnosis of Suspected Germline Diseases; Guidance for Stakeholders and Food and Drug Administration Staff; AvailabilityPDF
83 FR 16110 - Use of Public Human Genetic Variant Databases To Support Clinical Validity for Genetic and Genomic-Based In Vitro Diagnostics; Guidance for Stakeholders and Food and Drug Administration Staff; AvailabilityPDF
83 FR 16108 - Agency Information Collection Activities; Proposed Collection; Comment Request; Permanent Discontinuation or Interruption in Manufacturing of Certain Drug and Biological ProductsPDF
83 FR 16060 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; AmeriCorps Alumni Outcome Survey; Proposed Information Collection; Comment RequestPDF
83 FR 16115 - Agency Information Collection Activities; Documenting, Managing and Preserving Department of the Interior Museum Collections Housed in Non-Federal RepositoriesPDF
83 FR 16120 - Ungulate Management Plan Draft Environmental Impact Statement, Great Sand Dunes National Park and Preserve, ColoradoPDF
83 FR 16103 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
83 FR 16113 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 16017 - Approval and Promulgation of Implementation Plans; Louisiana; 2008 8-Hour Ozone Maintenance Plan Revision for Baton RougePDF
83 FR 16135 - Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Modify Rule 21.9 of the Exchange's Rules and Related Functionality Applicable to the Routing Options Made Available by the Exchange's Equity Options PlatformPDF
83 FR 16140 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Modify Rule 21.9 of the Exchange's Rules and Related Functionality Applicable to the Routing Options Made Available by the Exchange's Equity Options PlatformPDF
83 FR 16142 - Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 19.3, Criteria for Underlying SecuritiesPDF
83 FR 16137 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Transaction Fees for Use on Cboe BZX Exchange, Inc.'s Equity PlatformPDF
83 FR 16146 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 19.3, Criteria for Underlying SecuritiesPDF
83 FR 16157 - Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Exchange's Pricing SchedulePDF
83 FR 16161 - Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use on the Exchange's Equity Options PlatformPDF
83 FR 16150 - Self-Regulatory Organizations; CboeBZX Exchange, Inc.; Notice of Filing of Amendment No. 2 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 2, To List and Trade Shares of the iShares Gold Strategy ETF Under Exchange Rule 14.11(i)PDF
83 FR 16163 - Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Implement an Equity Rights ProgramPDF
83 FR 16098 - Proposed Agency Information Collection Activities; Comment RequestPDF
83 FR 16096 - Agency Information Collection Activities: Proposed Collection Renewal; Comment Request (OMB No. 3064-0179)PDF
83 FR 16127 - Certain Carbon and Alloy Steel Products; Commission Determination To Terminate the Investigation in Its EntiretyPDF
83 FR 16128 - Aluminum Foil From ChinaPDF
83 FR 16169 - Public Notice for Waiver of Aeronautical Land Use Assurance; Arlington Municipal Airport, Arlington, WAPDF
83 FR 16168 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Neighborhood Environmental SurveyPDF
83 FR 16170 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Certification: Air Carriers and Commercial OperatorsPDF
83 FR 16058 - U.S. Department of Commerce Trade Finance Advisory CouncilPDF
83 FR 16169 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Aircraft RegistrationPDF
83 FR 15945 - Special Conditions: Airbus Helicopters Model AS350B2 and AS350B3 Helicopters; Installation of Garmin International, Inc., Autopilot SystemPDF
83 FR 16021 - Air Plan Approval and Air Quality Designation; AL; Redesignation of the Pike County Lead Nonattainment Area to AttainmentPDF
83 FR 16129 - OMB Final Sequestration Report to the President and Congress for Fiscal Year 2018PDF
83 FR 16104 - Proposed Information Collection Activity; Comment RequestPDF
83 FR 16175 - Advisory Committee on Prosthetics and Special-Disabilities Programs; Notice of MeetingPDF
83 FR 16076 - Access to Confidential Business Information by CGI Federal Inc.PDF
83 FR 16097 - Notice of Termination of ReceivershipsPDF
83 FR 16097 - Notice of Termination of ReceivershipPDF
83 FR 16013 - Airworthiness Directives; Bombardier, Inc., AirplanesPDF
83 FR 16010 - Airworthiness Directives; The Boeing Company AirplanesPDF
83 FR 16015 - Airworthiness Directives; Bombardier, Inc., AirplanesPDF
83 FR 15954 - Rights to Federally Funded Inventions and Licensing of Government Owned InventionsPDF
83 FR 15982 - Connect America Fund, ETC Annual Reports and Certifications, Rural Broadband Experiments, Connect America Fund Phase II AuctionPDF
83 FR 16174 - Departmental Offices Debt Management Advisory Committee MeetingPDF
83 FR 15946 - Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Paying BenefitsPDF
83 FR 16114 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
83 FR 16077 - Mid-Term Evaluation of Greenhouse Gas Emissions Standards for Model Year 2022-2025 Light-Duty VehiclesPDF
83 FR 16027 - New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants; Delegation of Authority to New MexicoPDF
83 FR 15964 - New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants; Delegation of Authority to New MexicoPDF
83 FR 16061 - Intent To Prepare an Environmental Impact Statement for the City of Abilene, Texas, Cedar Ridge Reservoir Water Supply ProjectPDF

Issue

83 72 Friday, April 13, 2018 Contents Agricultural Marketing Agricultural Marketing Service PROPOSED RULES National Organic Program: Amendments to the National List of Allowed and Prohibited Substances (Crops, Livestock and Handling), 16010 2018-07719 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Rural Utilities Service

Census Bureau Census Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Manufacturers' Unfilled Orders Survey, 16050 2018-07692 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16103-16104 2018-07680 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16104 2018-07646 Civil Rights Civil Rights Commission NOTICES Meetings: Georgia Advisory Committee, 16049-16050 2018-07718 Kansas Advisory Committee, 16047-16049 2018-07711 2018-07712 2018-07714 Louisiana Advisory Committee, 16049 2018-07713 Coast Guard Coast Guard RULES Safety Zones: Cumberland River, Canton, KY, 15950-15952 2018-07717 Mississippi River, New Orleans, LA, 15952-15954 2018-07716 Security Zones: Port Canaveral Harbor, Cape Canaveral Air Force Station, FL, 15948-15950 2018-07694 Commerce Commerce Department See

Census Bureau

See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 16059-16060 2018-07696 Commodity Futures Commodity Futures Trading Commission NOTICES Meetings; Sunshine Act, 16060 2018-07860 Corporation Corporation for National and Community Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: AmeriCorps Alumni Outcome Survey, 16060-16061 2018-07683 Defense Acquisition Defense Acquisition Regulations System RULES Defense Federal Acquisition Regulation Supplement: Competition for Religious-Related Services Contracts, 16001-16003 2018-07731 Consolidation of Contract Requirements, 15995-15996 2018-07732 Definition of Information Technology, 15994-15995 2018-07734 Educational Service Agreements, 16004-16005 2018-07735 Safe Access to Projects in Afghanistan, 16003-16004 2018-07733 Temporary Extension of Test Program for Comprehensive Small Business Subcontracting Plans, 15996-16000 2018-07730 NOTICES Acquisition of Items for Which Federal Prison Industries Has a Significant Market Share, 16061 2018-07715 Defense Department Defense Department See

Defense Acquisition Regulations System

See

Engineers Corps

See

Navy Department

Education Department Education Department NOTICES Applications for New Awards: Expanding Opportunity Through Quality Charter Schools Program—Grants to Charter School Developers for the Opening of New Charter Schools and for the Replication and Expansion of High-Quality Charter Schools; Amendment and Extension of Deadline for Transmittal of Applications, 16063-16064 2018-07744 Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: Cedar Ridge Reservoir Water Supply Project; Abilene, TX, 16061-16062 2018-07303 Environmental Protection Environmental Protection Agency RULES Delegation of New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants for the States: New Mexico, 15964-15971 2018-07325 Pesticide Tolerances: Fluensulfone, 15971-15977 2018-07739 Sulfentrazone, 15977-15982 2018-07740 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Alabama; Redesignation of the Pike County Lead Nonattainment Area to Attainment, 16021-16027 2018-07654 Louisiana; 2008 8-hour Ozone Maintenance Plan Revision for Baton Rouge, 16017-16021 2018-07678 Delegation of New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants for the States: New Mexico, 16027 2018-07326 NOTICES Access to Confidential Business Information by CGI Federal Inc., 16076-16077 2018-07644 Environmental Impact Statements; Availability, etc.: Weekly Receipts, 16087 2018-07690 Mid-Term Evaluation of Greenhouse Gas Emissions Standards for Model Year 2022-2025 Light-duty Vehicles, 16077-16087 2018-07364 Pesticide Maintenance Fee: Product Cancellation Order for Certain Pesticide Registrations, 16087-16096 2018-07743 Product Cancellation Orders: Certain Pesticide Registrations and Amendments to Terminate Uses; Correction, 16076 2018-07738 Response to June 1, 2016, Clean Air Act Petition from Connecticut, 16064-16076 2018-07752 Federal Aviation Federal Aviation Administration RULES Special Conditions: Airbus Helicopters Model AS350B2 and AS350B3 Helicopters; Installation of Garmin International, Inc., Autopilot System, 15945-15946 2018-07655 PROPOSED RULES Airworthiness Directives: Bombardier, Inc., Airplanes, 16013-16017 2018-07631 2018-07633 The Boeing Company Airplanes, 16010-16013 2018-07632 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Aircraft Registration, 16169-16170 2018-07659 Certification: Air Carriers and Commercial Operators, 16170 2018-07661 Neighborhood Environmental Survey, 16168-16169 2018-07662 Waivers of Aeronautical Land Use Assurances: Arlington Municipal Airport, Arlington, WA, 16169 2018-07663 Federal Communications Federal Communications Commission RULES Connect America Fund, ETC Annual Reports and Certifications, Rural Broadband Experiments, Connect America Fund Phase II Auction, 15982-15994 2018-07509 Federal Deposit Federal Deposit Insurance Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16096-16097 2018-07667 Terminations of Receiverships, 16097-16098 2018-07635 Terminations of Receiverships: Guaranty National Bank of Tallahassee, Tallahassee, FL, 16097 2018-07634 Federal Highway Federal Highway Administration NOTICES Surface Transportation Project Delivery Program: Utah Department of Transportation Audit Report, 16170-16174 2018-07751 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16098-16099 2018-07668 Requests for Nominations: Membership on the Community Advisory Council, 16099-16100 2018-07695 Federal Trade Federal Trade Commission NOTICES Early Terminations of the Waiting Period under Premerger Notification Rules, 16100-16103 2018-07697 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Permanent Discontinuation or Interruption in Manufacturing of Certain Drug and Biological Products, 16108-16110 2018-07684 Guidance: Considerations for Design, Development, and Analytical Validation of Next Generation Sequencing-Based In Vitro Diagnostics Intended to Aid in the Diagnosis of Suspected Germline Diseases, 16106-16108 2018-07687 Use of Public Human Genetic Variant Databases to Support Clinical Validity for Genetic and Genomic-Based In Vitro Diagnostics, 16110-16112 2018-07686 Meetings: Antimicrobial Drugs Advisory Committee, 16104-16106 2018-07747 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Food and Drug Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

Homeland Homeland Security Department See

Coast Guard

Interior Interior Department See

Land Management Bureau

See

National Park Service

See

Reclamation Bureau

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Documenting, Managing and Preserving Department of the Interior Museum Collections Housed in Non-Federal Repositories, 16115-16116 2018-07682
International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Lined Paper Products from India, 16054-16055 2018-07724 Certain New Pneumatic Off-the-Road Tires from the People's Republic of China, 16055-16058 2018-07721 Certain Uncoated Groundwood Paper from Canada, 16050-16051 2018-07723 Steel Concrete Reinforcing Bar from the Republic of Turkey, 16051-16054 2018-07722 Meetings: U.S. Department of Commerce Trade Finance Advisory Council, 16058 2018-07660 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Aluminum Foil from China, 16128 2018-07665 Certain Carbon and Alloy Steel Products, 16127 2018-07666 Labor Department Labor Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Reentry Employment Opportunities Evaluation, 16128-16129 2018-07709 Land Land Management Bureau NOTICES Environmental Assessments; Availability, etc.: Dry Lake East Designated Leasing Area, Clark County, NV, 16117-16118 2018-07736 Proposed Reinstatements of Terminated Oil and Gas Leases: WYW181106, Wyoming, 16116 2018-07726 Management Management and Budget Office NOTICES Final Sequestration Report to the President and Congress for Fiscal Year 2018, 16129-16130 2018-07653 National Archives National Archives and Records Administration NOTICES Records Schedules, 16130-16131 2018-07691 National Institute National Institute of Standards and Technology RULES Rights to Federally Funded Inventions and Licensing of Government Owned Inventions, 15954-15963 2018-07532 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 16113-16114 2018-07679 National Center for Advancing Translational Sciences, 16112 2018-07753 National Institute on Drug Abuse, 16113 2018-07754 National Institute on Minority Health and Health Disparities, 16112-16113 2018-07755 2018-07756 Office of the Director, 16112-16113 2018-07757 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone off Alaska: Pacific Cod by Catcher Vessels Less Than 60 Feet (18.3 Meters) Length Overall Using Jig or Hook-and-Line Gear in the Bogoslof Pacific Cod Exemption Area in the Bering Sea and Aleutian Islands Management Area, 16008-16009 2018-07706 Fisheries off West Coast States: Pacific Coast Groundfish Fishery; 2017-18 Biennial Specifications and Management Measures; Inseason Adjustments, 16005-16008 2018-07710 PROPOSED RULES Takes of Marine Mammals: U.S. Navy Pier Construction Activities at Naval Submarine Base New London, 16027-16043 2018-07728 NOTICES Magnuson-Stevens Act Provisions: General Provisions for Domestic Fisheries; Application for Exempted Fishing Permits, 16058-16059 2018-07742 National Park National Park Service NOTICES Environmental Impact Statements; Availability, etc.: Ungulate Management Plan; Great Sand Dunes National Park and Preserve, Colorado, 16120-16121 2018-07681 Inventory Completions: Mississippi Department of Archives and History, Jackson, MS, 16121-16123 2018-07699 New York State Museum, Albany, NY, 16118-16119 2018-07700 U.S. Army Corps of Engineers, Omaha District, Omaha, NE, and State Archaeological Research Center, Rapid City, SD, 16124-16125 2018-07702 Repatriation of Cultural Items: New York State Museum, Albany, NY, 16123-16124 2018-07701 U.S. Army Corps of Engineers, Omaha District, Omaha, NE, and State Archaeological Research Center, Rapid City, SD, 16119-16120 2018-07703 Navy Navy Department NOTICES Meetings: Naval Academy Board of Visitors, 16062-16063 2018-07774 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Requirements for Renewal of Operating Licenses for Nuclear Power Plants, 16134-16135 2018-07729 Guidance: Supplementary Guidance Documents for Subsequent License Renewal, 16133-16134 2018-07698 Meetings: Advisory Committee on Reactor Safeguards, 16131-16132 2018-07704 Advisory Committee on Reactor Safeguards Subcommittee on APR1400, 16132-16133 2018-07688 Advisory Committee on Reactor Safeguards; Subcommittee on NuScale, 16131 2018-07689 Pension Benefit Pension Benefit Guaranty Corporation RULES Benefits Payable in Terminated Single-Employer Plans: Interest Assumptions for Paying Benefits, 15946-15947 2018-07466 Presidential Documents Presidential Documents PROCLAMATIONS Defense and National Security: Terrorists or Other Public-Safety Threats; Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the U.S. (Proc. 9723), 15937-15940 2018-07864 EXECUTIVE ORDERS Poverty Reduction in U.S.; Opportunity and Economic Mobility, Promotion Efforts (EO 13828), 15941-15944 2018-07874 ADMINISTRATIVE ORDERS Defense and National Security: U.S. Immigration Enforcement, Strengthening Efforts; Implementing Steps To End Catch and Release Policy (Memorandum of April 6, 2018), 16177-16181 2018-07962 Reclamation Reclamation Bureau NOTICES Environmental Impact Statements; Availability, etc.: Kachess Drought Relief Pumping Plant and Keechelus Reservoir-to-Kachess Reservoir Conveyance, Kittitas and Yakima Counties, WA; Public Meetings, 16126-16127 2018-07737 Rural Utilities Rural Utilities Service NOTICES Requests for Applications: Application Deadlines and Requirements for Section 313A Guarantees for Bonds and Notes Issued for Electrification or Telephone Purposes Loan Program for Fiscal Year 2018, 16044-16047 2018-07720 Securities Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Cboe BZX Exchange, Inc., 16137-16142, 16146-16157 2018-07673 2018-07674 2018-07676 2018-07670 Cboe EDGX Exchange, Inc., 16135-16137, 16142-16146, 16161-16163 2018-07671 2018-07675 2018-07677 MIAX PEARL, LLC, 16163-16168 2018-07669 Nasdaq PHLX LLC, 16157-16161 2018-07672 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 16114-16115 2018-07439 Meetings: Center for Mental Health Services, 16114 2018-07693 Surface Transportation Surface Transportation Board NOTICES Lease and Operation Exemptions: Kasgro Rail Corp.; KJ Rail Logistics LLC, 16168 2018-07760 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

Treasury Treasury Department NOTICES Government Securities: Call for Large Position Reports, 16175 2018-07803 Meetings: Debt Management Advisory Committee, 16174-16175 2018-07507 Veteran Affairs Veterans Affairs Department NOTICES Meetings: Advisory Committee on Prosthetics and Special-Disabilities Programs, 16175 2018-07645 Separate Parts In This Issue Part II Presidential Documents, 16177-16181 2018-07962 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 72 Friday, April 13, 2018 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 27 [Docket No.FAA-2017-1130; Notice No. 27-043-SC] Special Conditions: Airbus Helicopters Model AS350B2 and AS350B3 Helicopters; Installation of Garmin International, Inc., Autopilot System AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions.

SUMMARY:

These special conditions are issued for Airbus Helicopters Model AS350B2 and AS350B3 helicopters. These helicopters as modified by Garmin International, Inc., (Garmin) will have a novel or unusual design feature associated with the Garmin Flight Control (GFC) 600H autopilot with stability and control augmentation system (AP/SCAS). The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

The effective date of these special conditions is April 13, 2018.

FOR FURTHER INFORMATION CONTACT:

George Harrum, Aerospace Engineer, FAA, Rotorcraft Standards Branch, Policy and Innovations Division, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-4087; email [email protected]

SUPPLEMENTARY INFORMATION:

Background

On October 10, 2016, Garmin applied for a supplemental type certificate (STC) to install a GFC 600H AP/SCAS in Airbus Helicopters Model AS350B2 and AS350B3 helicopters. The Model AS350B2 and AS350B3 helicopters are 14 CFR part 27 normal category, single turbine engine, conventional helicopters designed for civil operation. These helicopter models are capable of carrying up to five passengers with one pilot and have a maximum gross weight of up to 5,220 pounds, depending on the model configuration. The major design features include a 3-blade, fully articulated main rotor, an anti-torque tail rotor system, a skid landing gear, and a visual flight rule basic avionics configuration.

Garmin proposes to modify these model helicopters by installing a SCAS with autopilot functions in 2 or 3 axes, depending on the number of servos installed. The possible failure conditions for this system, and their effect on the continued safe flight and landing of the helicopter, are more severe than those envisioned by the present rules. The present 14 CFR 27.1309(b) and (c) regulations do not adequately address the safety requirements for systems whose failures could result in “catastrophic” or “hazardous/severe-major” failure conditions, or for complex systems whose failures could result in “major” failure conditions. When these rules were promulgated, it was not envisioned that a normal category rotorcraft would use systems that are complex or whose failure could result in “catastrophic” or “hazardous/severe-major” effects on the rotorcraft. This is particularly true with the application of new technology, new application of standard technology, or other applications not envisioned by the rule that affect safety. The Garmin AP/SCAS controls rotorcraft flight control surfaces. Possible failure modes exhibited by this system could result in a catastrophic event.

Type Certification Basis

Under 14 CFR 21.101 and 21.115, Garmin must show that the Airbus Helicopters Model AS350B2 and AS350B3 helicopters, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. H9EU or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. H9EU are as follows:

14 CFR 21.29 and part 27 effective February 1, 1965, plus Amendments 27-1 through 27-10.

For aircraft incorporating mod. OP3369 (2370 kg/5225 lb mass extension), the following 14 CFR part 27 Amendments 27-1 through 27-40 are replacing the same requirement from the certification basis above: §§ 27.1; 27.21; 27.25; 27.27; 27.33; 27.45; 27.51; 27.65; 27.71; 27.73; 27.75; 27.79; 27.141; 27.143; 27.173; 27.175; 27.177; 27.241; 27.301; 27.303; 27.305; 27.307; 27.309; 27.321; 27.337; 27.339; 27.341; 27.351; 27.471; 27.473; 27.501; 27.505; 27.521; 27.547; 27.549; 27.563(b); 27.571; 27.602; 27.661; 27.663; 27.695; 27.723; 27.725; 27.727; 27.737; 27.751; 27.753; 27.801(b)(d); 27.927(c); 27.1041; 27.1043; 27.1045; 27.1301; 27.1501; 27.1519; 27.1529; 27.1581; 27.1583; 27.1585; 27.1587; 27.1589.

For AS350B3 aircraft incorporating mod. OP-4605 (installation of a fuel system improving crashworthiness), 14 CFR 27.561(c) at Amendment 27-32 replaces the same requirement from the certification basis above for the following elements of the fuel tank lower structure affected by this modification: cradles, longitudinal beams, X-stops and rods.

Additionally, Garmin must comply with the equivalent level of safety findings, exemptions, and special conditions prescribed by the Administrator as part of the certification basis.

The Administrator has determined the applicable airworthiness regulations (that is, 14 CFR part 27), as they pertain to this STC, do not contain adequate or appropriate safety standards for the Airbus Helicopters Model AS350B2 and AS350B3 helicopters because of a novel or unusual design feature. Therefore, we propose to prescribe these special conditions under § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for an STC to change any other model included on the same type certificate to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, Garmin must show that the Airbus Helicopters Model AS350B2 and AS350B3 helicopters, as changed, comply with the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38 and they become part of the type certification basis under § 21.101.

Novel or Unusual Design Features

The Airbus Helicopters Model AS350B2 and AS350B3 helicopter incorporates the following novel or unusual design features: A GFC 600H AP/SCAS. This GFC 600H AP/SCAS performs non-critical control functions. The GFC 600H AP/SCAS is a two or three axis system with the following novel functions: Limit cueing, level mode, and hover assist.

Discussion

These special conditions clarify the requirement to perform a proper failure analysis and also recognizes that the severity of failures can vary. Current industry standards and practices recognize five failure condition categories: Catastrophic, Hazardous, Major, Minor, and No-Safety Effect. These special conditions address the safety requirement for systems whose failures could result in catastrophic or hazardous/severe-major failure conditions and for complex systems whose failures could result in major failure conditions.

To comply with the provisions of the special conditions, we require that Garmin provide the FAA with a systems safety assessment (SSA) for the final GFC 600H AP/SCAS installation configuration that adequately address the safety objectives established by a functional hazard assessment (FHA) and a preliminary system safety assessment (PSSA), including the fault tree analysis (FTA). This ensures that all failure conditions and their resulting effects are adequately addressed for the installed GFC 600H AP/SCAS. The SSA process, FHA, PSSA, and FTA are all parts of the overall safety assessment process discussed in FAA Advisory Circular 27-1B, Certification of Normal Category Rotorcraft, and Society of Automotive Engineers document Aerospace Recommended Practice 4761, Guidelines and Methods for Conducting the Safety Assessment Process on Civil Airborne Systems and Equipment.

These special conditions require that the GFC 600H AP/SCAS installed on Airbus Helicopters Model AS350B2 and Model AS350B3 helicopters meet the requirements to adequately address the failure effects identified by the FHA, and subsequently verified by the SSA, within the defined design integrity requirements.

Comments

No comments were received in response to the Notice of proposed special conditions No. 27-043-SC (82 FR 57685, December 7, 2017). The closing date for comments was January 22, 2018. Accordingly, the special conditions are adopted as proposed.

Applicability

As discussed above, these special conditions are applicable to Airbus Helicopters Model AS350B2 and AS350B3 helicopters. Should Garmin apply at a later date for an STC to modify any other model included on Type Certificate Number H9EU to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

Conclusion

This action affects only certain novel or unusual design features on two model helicopters. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features.

List of Subjects in 14 CFR Part 27

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

The authority citation for these special conditions is as follows:

Authority:

49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

The Special Conditions

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Airbus Helicopters Model AS350B2 and AS350B3 helicopters modified by Garmin International, Inc. (Garmin).

Instead of the requirements of 14 CFR 27.1309(b) and (c), the following must be met for certification of the Garmin Flight Control 600H autopilot with stability and control augmentation system:

(a) The equipment and systems must be designed and installed so that any equipment and system does not adversely affect the safety of the rotorcraft or its occupants.

(b) The rotorcraft systems and associated components considered separately and in relation to other systems, must be designed and installed so that:

(1) The occurrence of any catastrophic failure condition is extremely improbable;

(2) The occurrence of any hazardous failure condition is extremely remote; and

(3) The occurrence of any major failure condition is remote.

(c) Information concerning an unsafe system operating condition must be provided in a timely manner to the crew to enable them to take appropriate corrective action. An appropriate alert must be provided if immediate pilot awareness and immediate or subsequent corrective action is required. Systems and controls, including indications and annunciations, must be designed to minimize crew errors which could create additional hazards.

Issued in Fort Worth, Texas, on March 30, 2018. Jorge Castillo, Acting Manager, Rotorcraft Standards Branch, Policy and Innovation Division Aircraft Certification Service.
[FR Doc. 2018-07655 Filed 4-12-18; 8:45 am] BILLING CODE 4910-13-P
PENSION BENEFIT GUARANTY CORPORATION 29 CFR Part 4022 Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Paying Benefits AGENCY:

Pension Benefit Guaranty Corporation.

ACTION:

Final rule.

SUMMARY:

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

DATES:

Effective May 1, 2018.

FOR FURTHER INFORMATION CONTACT:

Hilary Duke ([email protected]), Assistant General Counsel for Regulatory Affairs, Pension Benefit Guaranty Corporation, 1200 K Street NW, Washington, DC 20005, 202-326-4400 ext. 3839. (TTY users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4400, ext. 3839.)

SUPPLEMENTARY INFORMATION:

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

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

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

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

The May 2018 interest assumptions under the benefit payments regulation will be 1.00 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for April 2018, these assumptions are unchanged.

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

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

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

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

List of Subjects in 29 CFR Part 4022

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

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

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

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

2. In appendix B to part 4022, Rate Set 295 is added at the end of the table to read as follows: Appendix B to Part 4022—Lump Sum Interest Rates for PBGC Payments Rate set For plans with a valuation date On or after Before Immediate
  • annuity rate
  • (percent)
  • Deferred annuities
  • (percent)
  • i 1 i 2 i 3 n 1 n 2
    *         *         *         *         *         *         * 295 5-1-18 6-1-18 1.00 4.00 4.00 4.00 7 8
    3. In appendix C to part 4022, Rate Set 295 is added at the end of the table to read as follows: Appendix C to Part 4022—Lump Sum Interest Rates for Private-Sector Payments Rate set For plans with a valuation date On or after Before Immediate
  • annuity rate
  • (percent)
  • Deferred annuities
  • (percent)
  • i 1 i 2 i 3 n 1 n 2
    *         *         *         *         *         *         * 295 5-1-18 6-1-18 1.00 4.00 4.00 4.00 7 8

    Issued in Washington, DC.

    Hilary Duke, Assistant General Counsel for Regulatory Affairs, Pension Benefit Guaranty Corporation.
    [FR Doc. 2018-07466 Filed 4-12-18; 8:45 am] BILLING CODE 7709-02-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2017-0146] RIN 1625-AA87 Security Zones; Port Canaveral Harbor, Cape Canaveral Air Force Station, FL AGENCY:

    Coast Guard, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Coast Guard is revising a security zone to extend the geographical boundaries of the permanent security zone at Port Canaveral Harbor. This action is necessary to ensure the security of vessels, facilities, and the surrounding areas within this zone. This regulation prohibits persons and vessels from entering, transiting through, anchoring in, or remaining within the security zone unless authorized by the Captain of the Port (COTP) Jacksonville or a designated representative.

    DATES:

    This rule is effective May 14, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2017-0146 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Lieutenant Allan Storm, Sector Jacksonville, Waterways Management Division, U.S. Coast Guard; telephone (904) 714-7616, email [email protected]

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

    On October 3, 1988, the Coast Guard published a final rule creating a permanent security zone at Port Canaveral Harbor, Cape Canaveral, Florida, entitled, “Security Zone; Port Canaveral Harbor, Cape Canaveral, FL” (53 FR 38718) to safeguard the waterfront and military assets along the U.S. Navy's Poseidon Wharf inside the southeast portion of Port Canaveral Harbor's Middle Basin. This waterfront area is located on Cape Canaveral Air Force Station (CCAFS), a U.S. Air Force military installation. Additionally, the northern and northeast portion of the Middle Basin's waterfront is located almost entirely on CCAFS property, and within this area are piers utilized by the U.S. Air Force and U.S. Army. CCAFS routinely conducts operations critical to national security.

    The U.S. Navy requested an amendment to the current regulation in 33 CFR 165.705(b) to expand the geographical boundaries to include the northern and northeastern portion of the Middle Basin of Port Canaveral Harbor in order to ensure the safety and security of military assets and infrastructure along the entire CCAFS waterfront. In response, on October 3, 2017, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled, “Security Zones; Port Canaveral Harbor, Cape Canaveral Air Force Station, FL” (82 FR 46007). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to revising the security zone. During the comment period that ended November 3, 2017, we received 3 comments.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority 33 U.S.C. 1231. The COTP Jacksonville has determined it is necessary to expand the security zone in the Middle Basin of Port Canaveral Harbor to ensure the security of military assets and waterfront facilities from destruction, loss, or injury from sabotage or other subversive acts, accidents or other causes of a similar nature.

    IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received 3 comments on our NPRM published October 3, 2017. One comment was in support of the rule. The other two comments provided recommendations and feedback to the rule. One comment provided a recommendation to conduct a safety study to ensure that the likelihood for a collision has not increased. The Coast Guard does not intend to conduct a safety study for the revised security zone, as there have been no safety concerns raised during discussions within the port community; including the Canaveral Pilots Association, the Canaveral Port Authority, U.S. Navy, and Brevard County Sheriff's Office. The other comment inquired about the inclusion of the U.S. Army Corps of Engineers (USACE) to revise the restricted area outlined in 33 CFR 334.530 to match the Coast Guard's expanded security zone. The Coast Guard intends to make a recommendation to USACE to revise the restricted area in 33 CFR 334.530. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

    This rule expands the geographical boundaries of the current regulated area in 33 CFR 165.705(b) to include the navigable waters of the Port Canaveral Harbor's Middle Basin. This revision redesignates § 165.705(b) to new § 165.705(a)(2).

    The rule also made the following amendments: (1) Changed the title of the existing regulation in 33 CFR 165.705 from “Port Canaveral Harbor, Cape Canaveral, Florida” to “Security Zones: Port Canaveral Harbor, Cape Canaveral Air Force Station, FL;” (2) added a new paragraph (c) and changed the title to “Regulations;” (3) redesignated existing paragraph (d) as new paragraph (c)(1) with minor non-substantive changes; (4) redesignated existing paragraph (c) as new paragraph (c)(2) with minor non-substantive changes; (5) and added a new paragraph (c)(3). Lastly, we added a new paragraph (b), entitled “Definitions” to define the term “designated representative.”

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the fact that although persons and vessels may not enter, transit through, anchor in, or remain within the security zone without authorization from the COTP Jacksonville or a designated representative, they may operate in the navigable water adjacent to the security zone and the Federal channel.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order13132.

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves expanding the geographical boundaries of a permanent security zone that prohibit entry within certain navigable waters of the Port of Canaveral Harbor's Middle Basin. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. Revise § 165.705 to read as follows:
    § 165.705 Security Zones: Port Canaveral Harbor, Cape Canaveral Air Force Station, FL.

    (a) Regulated areas—(1) Security Zone A. East (Trident) Basin, Port Canaveral Harbor, at Cape Canaveral Air Force Station, Brevard County, Florida: All waters of the East Basin north of latitude 28°24′36″ N.

    (2) Security Zone B. Middle Basin, Port Canaveral Harbor, at Cape Canaveral Air Force Station, Brevard County, Florida: All waters within the following coordinates inside the Middle Basin: Starting at Point 1 in position 28°24′54.49″ N, 080°36′39.13″ W; thence south to Point 2 in position 28°24′53.27″ N, 080°36′39.15″ W; thence east to Point 3 in position 28°24′53.25″ N, 080°36′30.41″ W; thence south to Point 4 in position 28°24′50.51″ N, 080°36′30.41″ W; thence southeast to Point 5 in position 28°24′38.15″ N, 080°36′17.18″ W; thence east to Point 6 in position 28°24′38.16″ N, 080°36′14.92″ W; thence northeast to Point 7 in position 28°24′39.36″ N, 080°36′13.37″ W; thence following the land based perimeter boundary to the point of origin. These coordinates are based on North American Datum 1983.

    (b) Definitions. The term “designated representative” means personnel designated by or assisting the Captain of the Port (COTP) Jacksonville in the enforcement of the security zone. This includes Coast Guard Patrol Commanders, Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels and federal, state, and local law officers designated by or assisting the COTP Jacksonville in the enforcement of regulated navigation areas and security zones.

    (c) Regulations. (1) The general regulations governing security zones found in § 165.33 apply to the security zones described in paragraph (a) of this section.

    (2) All persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the security zone unless authorized by the COTP Jacksonville or a designated representative.

    (3) Persons desiring to enter, transit through, anchor in, or remain within the security zone may request permission from the COTP Jacksonville by telephone at 904-714-7557, or a designated representative via VHF-FM radio on channel 16. If authorization is granted, all persons and vessels receiving such authorization must comply with the instructions of the COTP Jacksonville or the designated representative.

    Dated: March 29, 2018. Todd C. Wiemers, Captain, U.S. Coast Guard, Captain of the Port Jacksonville.
    [FR Doc. 2018-07694 Filed 4-12-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0260] RIN 1625-AA00 Safety Zone; Cumberland River, Canton, KY AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for navigable waters within a one-half mile of the US 68/KY 80 Lake Barkley Bridge—Henry R. Lawrence Memorial Bridge in Canton, KY. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by the demolition of the bridge. Entry of vessels or persons into this zone is prohibited unless authorized by the Captain of the Port Sector Ohio Valley or a designated representative.

    DATES:

    This rule is effective without actual notice from April 13, 2018 through 6 a.m. on April 14, 2018. For the purposes of enforcement, actual notice will be used from 6 a.m. on April 11, 2018 through April 13, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0260 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Petty Officer Joseph Stranc, Marine Safety Unit Paducah Waterways Division, U.S. Coast Guard; telephone 270-442-1621 ext. 2124, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Ohio Valley DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it would be impracticable. On March 21, 2018, the Coast Guard was notified of the need for bridge demolition operations on the Cumberland River. This safety zone must be established by April 11, 2018 and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the safety zone until after the dates of the bridge demolition and compromise public safety.

    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable and contrary to public interest because immediate action is needed to ensure safety of persons and vessels during the bridge demolition.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with bridge demolition beginning on April 11, 2018 will be a safety concern for anyone within a one-half mile radius of the bridge. The purpose of this rule is to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the bridge is being demolished.

    IV. Discussion of the Rule

    This rule establishes a safety zone from 6 a.m. on April 11, 2018 through 6 a.m. on April 14, 2018. The safety zone will cover all navigable waters of the Cumberland River between miles 62.6 and 63.6. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the bridge is being demolished. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. They may be contacted via VHF-FM marine channel 16 or by telephone at 270-217-0959. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or a designated representative. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs) via VHF-FM marine channel 16 about the enforcement period for the safety zone, as well as any changes in the dates and times of enforcement.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, and duration of the zone. This rule establishes a temporary safety zone, limiting access to a one-mile section of the Cumberland River, miles 62.6 to 63.6, during bridge demolition and clean-up operations occurring over a 3-day period.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting three days that will prohibit entry within one-mile stretch of the Cumberland River. It is categorically excluded from further review under paragraph L 60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. Add § 165.T08-0260 to read as follows:
    § 165.T08-0260 Safety Zone; Cumberland River, Canton, KY.

    (a) Location. The following area is a safety zone: all navigable waters of the Cumberland River between miles 62.6 and 63.6, extending the entire width of the river.

    (b) Enforcement period. This section will be enforced from 6 a.m. on April 11, 2018 through 6 a.m. on April 14, 2018, or until the bridge demolition operation and cleanup of the main navigable channel is complete, whichever occurs first.

    (c) Regulations. (1) In accordance with the general regulations in § 165.23, entry into this zone is prohibited unless authorized by the Captain of the Port Sector Ohio Valley (COTP) or a designated representative.

    (2) Persons or vessels desiring to enter into or pass through the zone must request permission from the COTP or a designated representative. They may be contacted via VHF-FM marine channel 16 or by telephone at 270-217-0959.

    (3) If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative.

    (d) Informational broadcasts. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs) of the enforcement period for this safety zone as well as any changes in the dates and times of enforcement.

    Dated: April 9, 2018. M.B. Zamperini Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
    [FR Doc. 2018-07717 Filed 4-12-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2017-1058] RIN 1625-AA00 Safety Zone; Mississippi River, New Orleans, LA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing two temporary safety zones for navigable waters of the Mississippi River, New Orleans, LA. These actions are necessary to protect persons and vessels from potential safety hazards associated with fireworks displays on or over this navigable waterway. Entry into these zones is prohibited unless authorized by the Captain of the Port Sector New Orleans (COTP) or a designated representative.

    DATES:

    This rule is effective from 8:00 p.m. on May 6, 2018 through 8:45 p.m. on May 25, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2017-1058 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Lieutenant Commander (LCDR) Howard Vacco, Sector New Orleans, U.S. Coast Guard; telephone 504-365-2281, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations AHP Above Head of Passes CFR Code of Federal Regulations COTP Captain of the Port Sector New Orleans DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    The Coast Guard received notification of the following fireworks displays that require safety zones:

    (1) On November 7, 2017, the New Orleans Tourism and Marketing Corporation notified the Coast Guard that it would be conducting a fireworks display from 7:45 p.m. through 8:45 p.m. on May 25, 2018. The fireworks will be launched from a barge on the Lower Mississippi River at approximate mile marker (MM) 95.9 above Head of Passes (AHP), New Orleans, LA.

    (2) On March 14, 2018, the NOLA 2018 Foundation notified the Coast Guard that it would be conducting a fireworks display from 8 p.m. through 8:20 p.m. on May 6, 2018. The fireworks will be launched from a barge on the Lower Mississippi River at approximate MM 95.4 AHP, New Orleans, LA.

    In response to these notifications, on January 17, 2018, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Lower Mississippi River, New Orleans, LA (83 FR 2394). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this fireworks display. During the comment period that ended March 19, 2018, we received no comments.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Sector New Orleans (COTP) has determined that potential hazards associated with the fireworks to be used in the May 6, 2018 and May 25, 2018 displays present a hazard to anyone within a one-mile stretch of the launch barges. The purpose of this rule is to ensure safety of persons and vessels on the navigable waters in the safety zone before, during, and after the scheduled events.

    IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received no comments on our NPRM published January 17, 2018.

    The changes in the regulatory text from the proposed rule in the NPRM include minor editorial changes where we refer to the time of enforcement as the enforcement period, rather than the effective period.

    This rule establishes two temporary safety zones on the following dates and locations:

    1. Bayou Country Music Fest: A safety zone from 7:45 p.m. through 8:45 p.m. on May 25, 2018. The safety zone will cover all navigable waters of the Lower Mississippi River between mile marker (MM) 95.4 and MM 96.4 AHP.

    2. NOLA Tricentennial 2018 Jazz and Heritage Fest: A safety zone from 8 p.m. through 9 p.m. on May 6, 2018. This safety zone will encompass all navigable waters of the Lower Mississippi River between MMs 95 and 96 AHP.

    Both safety zones encompass a one mile stretch of river with a duration lasting no more than one hour. The duration of the zones is intended to ensure the safety of persons and vessels on these navigable waters before, during, and after the scheduled fireworks displays.

    No vessel or person is permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector New Orleans. They may be contacted on VHF-FM Channel 16 or 67. Persons and vessels permitted to enter these safety zones must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners of any changes in the planned schedule.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on these zones lasting one hour and encompassing a one-mile stretch of the Lower Mississippi River. In addition, vessel traffic seeking to transit the areas can seek permission to enter from the COTP or his designated representative.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves two safety zones lasting less than one hour each that will prohibit entry within a one-mile stretch of the Lower Mississippi River. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. Add § 165.T08-1058 to read as follows:
    § 165.T08-1058 Safety Zones; Lower Mississippi River, New Orleans, LA.

    (a) Safety zones. The following areas are safety zones:

    (1) Bayou Country Music Fest, New Orleans, LA—(i) Location. All navigable waters of the Lower Mississippi River between mile marker (MM) 95.4 and MM 96.4, above Head of Passes.

    (ii) Enforcement period. This rule will be enforced from 7:45 p.m. through 8:45 p.m. on May 25, 2018.

    (2) NOLA Tricentennial 2018 Jazz and Heritage Fest—(i) Location. All navigable waters of the Lower Mississippi River between mile marker (MM) 94 and MM 95, above Head of Passes.

    (ii) Enforcement period. This rule will be enforced from 8 p.m. through 9 p.m. on May 6, 2018.

    (b) Regulations. (1) In accordance with the general regulations in § 165.23, entry into these zones is prohibited unless specifically authorized by the Captain of the Port Sector New Orleans (COTP) or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of U.S. Coast Guard Sector New Orleans.

    (2) Vessels requiring entry into this safety zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or 67.

    (3) Persons and vessels permitted to enter these safety zones must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.

    (c) Information broadcasts. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners of any changes in the planned schedule.

    Dated: April 9, 2018. Wayne R. Arguin, Captain, U.S. Coast Guard, Captain of the Port Sector New Orleans.
    [FR Doc. 2018-07716 Filed 4-12-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF COMMERCE National Institutes of Standards and Technology 37 CFR Parts 401 and 404 [Docket No.: 160311229-8347-02] RIN 0693-AB63 Rights to Federally Funded Inventions and Licensing of Government Owned Inventions AGENCY:

    National Institute of Standards and Technology (NIST), United States Department of Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule reduces regulatory burdens by clarifying electronic reporting, updating certain sections to conform with changes in the patent laws, and streamlining the licensing application process for some Federal laboratory collaborators, makes technical corrections, clarifies the role of provisional patent application filing, explains a unique situation that may be appropriate for a Determination of Exceptional Circumstances, clarifies the role of funding agencies in the Bayh-Dole process, and addresses subject inventions as to which a Federal laboratory employee is a co-inventor.

    DATES:

    This rule is effective May 14, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Courtney Silverthorn, via email: [email protected] or by telephone at 301-975-4189.

    SUPPLEMENTARY INFORMATION:

    These rule revisions are promulgated under the University and Small Business Patent Procedures Act of 1980, Public Law 96-517 (as amended), codified at title 35 of the United States Code (U.S.C.) 200 et seq., commonly known as the “Bayh-Dole Act” or simply “Bayh-Dole,” which governs rights in inventions made with Federal assistance. The Bayh-Dole Act obligates nonprofit organizations and small business firms (“contractors”), and large businesses, as directed by Executive Order 12591 and to the extent permitted by law, to disclose each “subject invention” (that is, each invention conceived or first actually reduced to practice in the performance of work under a funding agreement, 35 U.S.C. 201(e)) within a reasonable time after the invention becomes known to the contractor, 35 U.S.C. 202(c)(1), and permits contractors to elect, within a reasonable time after disclosure, to retain title to a subject invention, 35 U.S.C. 202(a). Under certain defined “exceptional” circumstances, Bayh-Dole permits the Government to restrict or eliminate the contractor's right to elect to retain title, 35 U.S.C. 202(a), 202(b).

    The Secretary of Commerce has delegated to the Director of NIST the authority to promulgate implementing regulations. Regulations implementing 35 U.S.C. 202 through 204 are codified at 37 CFR part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms under Government Grants, Contracts, and Co-operative Agreements,” and apply to all Federal agencies, 37 CFR 401.1(b). These regulations govern all “subject inventions,” as defined in 37 CFR 401.2(d), even if the Federal government is not the sole source of funding for either the conception or the reduction to practice, 37 CFR 401.1(a). Regulations implementing 35 U.S.C. 208, specifying the terms and conditions upon which federally owned inventions, other than inventions owned by the Tennessee Valley Authority, may be licensed on a nonexclusive, partially exclusive, or exclusive basis, are codified at 37 CFR part 404, “Licensing of Government Owned Inventions.”

    Bayh-Dole and its implementing regulations require Federal funding agencies to employ certain “standard clauses” in funding agreements awarded to contractors, except under certain specified conditions, 37 CFR 401.3. Through these standard clauses, set forth at 37 CFR 401.14(a), contractors are obligated to take certain actions to properly manage subject inventions. These actions include, but are not limited to, disclosing each subject invention to the Federal agency within two months after the contractor's inventor discloses it in writing to contractor personnel responsible for patent matters, paragraph (c)(1) of the clause; electing in writing whether or not to retain title to any subject invention by notifying the Federal agency within two years of disclosure to the Federal agency, paragraph (c)(2) of the clause; filing an initial patent application on a subject invention as to which the contractor elects to retain title within one year after election, paragraph (c)(3) of the clause; executing and promptly delivering to the Federal agency all instruments necessary to establish or confirm the rights the Government has throughout the world in those subject inventions to which the contractor elects to retain title, paragraph (f)(1) of the clause; requiring, by written agreement, the contractor's employees to disclose promptly in writing each subject invention made under contract, paragraph (f)(2) of the clause; notifying the Federal agency of any decision not to continue the prosecution of a patent application, paragraph (f)(3) of the clause; and including in the specification of any U.S. patent applications and any patent issuing thereon covering a subject invention, a statement that the invention was made with Government support under the grant or contract awarded by the Federal agency, and that the Government has certain rights in the invention, paragraph (f)(4) of the clause.

    In addition, a contractor is obligated to include the requirements of the standard clauses in any subcontracts under the contractor's award, paragraph (g) of the clause; to submit periodic reports as requested on the utilization of a subject invention or on efforts at obtaining such utilization that are being made by the contractor or its licensees or assignees, paragraph (h) of the clause; and to agree that neither the contractor nor any assignee will grant to any person the exclusive right to use or sell any subject inventions in the United States unless such person agrees that any products embodying the subject invention or produced through the use of the subject invention will be manufactured substantially in the United States, paragraph (i) of the clause, subject to waiver.

    Bayh-Dole and its implementing regulations also specify certain conditions applicable to licenses granted by Federal agencies in any federally owned invention. The implementing regulations include 37 CFR 404.5, which sets forth restrictions and conditions applicable to all Federal agency licenses, 37 CFR 404.6, which addresses requirements pertaining to nonexclusive licenses, and 37 CFR 404.7, which addresses requirements pertaining to exclusive and partially exclusive licenses.

    This rulemaking reduces regulatory burdens on large and small businesses, universities, non-profit organizations, and other recipients of federal funding in several ways. The rule provides greater clarity to large businesses by codifying the applicability of Bayh-Dole as directed in Executive Order 12591 which has been in effect since 1987, and provides greater clarity to all federal funding recipients by updating regulatory provisions to align with provisions of the Leahy-Smith America Invents Act in terms of definitions, required time frames, and use of royalty funds, which will reduce compliance burdens on recipients of federal funding. The rule also clarifies electronic reporting processes, simplifying the burden of the statutorily required reporting process. Finally, the rule provides for automatic extensions of the requirement to file non-provisional patent applications, and removes the requirement for a business, university, or other collaborator to submit a separate license application for a federal invention being used under a cooperative research and development agreement.

    Pursuant to authority delegated to it by the Secretary of Commerce, NIST is revising parts 401 and 404 of title 37 of the Code of Federal Regulations (CFR) which address rights to inventions made under Government grants, contracts, and co-operative agreements, and licensing of government owned inventions. The rule shall apply to all new funding agreements as defined in 37 CFR 401.2(a) that are executed after the effective date of the rule. The rule shall not apply to a funding agreement in effect on or before the effective date of the rule, provided that if such existing funding agreement is thereafter amended, the funding agency may, in its discretion, make the amended funding agreement subject to the rule prospectively.

    Response to Comments

    NIST received 17 comment submissions during the public comment period for the notice of proposed rulemaking published November 7, 2016, 81 FR 78090. NIST thanks the public for its careful review and submissions. The comments received and NIST's responses are summarized below.

    1. One comment requested clarification about the revised definition of statutory period in §§ 401.2(o) and 401.14(a)(7). NIST has revised the definition to clarify that the statutory period refers to the one-year period in 35 U.S.C. 102(b)(1) as amended by the Leahy-Smith America Invents Act.

    2. Several comments suggested a revision to § 401.3(a)(1) permitting foreign collaborators to receive standard Bayh-Dole rights. NIST declines to revise this provision of the regulations. NIST notes that the language of § 401.3(a)(1) closely tracks that of 35 U.S.C. 202(a)(i). Both the statute and the regulation accord a funding agency discretion in crafting the terms and conditions of a funding agreement “when the contractor is not located in the United States or does not have a place of business located in the United States or is subject to the control of a foreign government.”

    3. Several comments noted the removal of the appeals process in § 401.3(a)(5). This was not NIST's intent. Accordingly, NIST has added reference to § 401.3(a)(5) in § 401.3(b), requiring an agency exercising that exception to use the standard clause at § 401.14 with only such modifications as are necessary to address the exceptional circumstances or concerns which led to the use of the exception. In addition, the first sentence of § 401.4(a) of the final rule makes clear that each of the exceptions at § 401.3(a)(1) through (6) of the final rule is subject to a contractor right to an administrative review.

    4. Several comments objected to the addition of the exception, recited in § 401.3(a)(6), which authorizes a funding agency to use alternative provisions if the contract provides for services and the contractor is not a nonprofit organization and does not promote the commercialization and public availability of subject inventions. This exception is intended to address the scenario in which a services contractor, whose business model by design does not promote the commercialization or public availability of subject inventions, can, by simply neglecting to waive title for as long as two years, delay (at best) efforts to achieve commercialization or public availability. In reciting the § 401.3(a)(6) exception, the final rule also provides that it is subject to an administrative review right.

    5. Several comments objected to provisions in § 401.5 allowing Federal agencies to request additional invention reporting. NIST notes that the alternative reporting set forth in § 401.5(f)(1) through (3) is neither new language nor obligatory upon funding agencies. The suggestion of several commenters, that this is new language, is incorrect.

    6. Several comments objected to the proposed revisions to §§ 401.7 and 401.14(k) (by reference to § 401.7), regarding the small business preference requirement of 35 U.S.C. 202(c)(7)(D). The proposed revision to § 401.7(b) provides that small business firms that believe a nonprofit organization is not according appropriate preference to small business firms may report their concerns in the first instance to the funding agency, rather than to the Secretary of Commerce as previously provided. It is believed that this change will in many instances facilitate resolution of concerns, given the funding agency's familiarity with the subject matter and purpose of its award. Where a small business firm is dissatisfied with the funding agency response, or receives none within 90 days, the proposed revision provides that it may thereafter report its concerns, together with any response from the funding agency, to the Secretary of Commerce. NIST declines to remove these proposed changes.

    7. One comment suggested revisions to §§ 401.7 and 401.14(k) to address licensing to what were characterized by the commenter as “non-practicing entities.” NIST declines to make the suggested revisions, and notes that under § 401.14(k)(4), a nonprofit contractor must give a licensing preference to a small business firm with a marketing plan for the invention which is as likely to bring the invention to practical application as the plans of other firms, however those other firms might be characterized. At the same time, § 401.14(k)(4) does not prescribe the type of license (exclusive, non-exclusive, or partially exclusive) to be granted, the result of which is that a nonprofit contractor is accorded the flexibility, through its licensing policies, procedures and practices, to promote the practical application and public availability of subject inventions, while according to small business firms the preference required under 35 U.S.C. 202(7)(D).

    8. Comments generally supported revisions to § 401.10 on the management of subject inventions when there is a Federal employee who is a co-inventor of the subject invention, and NIST appreciates the suggestions for additional clarification. NIST has required consultation with the contractor in § 401.10(a)(2), but declines the suggestion that it should restrict the scope of the required consultation. In addition, NIST has clarified that paragraphs (ii) through (vi) of § 401.10(a)(3) all apply only after a contractor has elected not to retain title, and has added a paragraph (c) to clarify that the regulation will not supersede inter-institutional agreements for the management of jointly-owned subject inventions. As appropriate, NIST has also revised § 401.10(a)(3) to recite “title” rather than “rights” for consistency and clarity.

    9. Several comments pertained to priority of patent applications and prosecution or abandonment of an initial patent application filed by the Government per § 401.10(a)(2). Priority of applications is an individual determination made by the U.S. Patent and Trademark Office and is outside the scope of this rulemaking. With regard to prosecution or abandonment of an initial patent application filed by the Government on a jointly-owned subject invention, NIST notes that it is within the discretion of the funding agency to determine, in consultation with the contractor as required by this paragraph, the appropriate course of action for a particular subject invention, which could include abandoning an initial patent application or transferring the prosecution of an initial patent application to the contractor under an inter-institutional or other appropriate agreement. In all cases, NIST observes that actions taken by a funding agency should not operate to preclude a contractor from electing title to a subject invention.

    10. One comment requested clarification as to whether the “team exception” of post-AIA 35 U.S.C. 102(b)(2)(C) may be invoked for filings on joint subject inventions. That provision of the patent statute provides that subject matter disclosed 1 year or less before the effective filing date of a claimed invention shall not be prior art to the claimed invention under 35 U.S.C. 102(a)(2), where that subject matter and the claimed invention, not later than the effective filing date of the claimed invention, were owned by the same person or subject to an obligation of assignment to the same person. The present rulemaking is not intended to affect the prosecution strategy of a sole or joint applicant for patent. At the same time, NIST notes that prior art determinations, including the applicability of the “team exception,” are made by the U.S. Patent and Trademark Office, and so are outside the scope of this rulemaking.

    11. One comment noted that § 401.14 does not contain a definition of the term contractor. NIST has made this addition in § 401.14(a)(8) to recite the revised definition found in § 401.2(b).

    12. A number of comments objected to the proposed revision to § 401.14(c)(2), providing that a Federal agency may shorten the two-year period for election of title by a contractor if “necessary to protect the Government's interests.” NIST has removed this revision from the final rulemaking.

    13. A number of comments objected to the proposed revision to § 401.14(d)(1), which would remove the 60-day time limit within which a Federal agency must make written request to a contractor to convey title, after learning of the failure of the contractor to disclose an invention or elect title within the specified times. While NIST appreciates the concerns of commenters, the proposed revision will be maintained in the final rule. A contractor's failure to timely disclose or elect title to a subject invention, both as required by its funding agreement, can work to deny the Federal government any rights in the funded invention, through no fault of the funding agency.

    14. A number of comments urged clarification of proposed revisions relating to the increased use by contractors of provisional applications under the Leahy-Smith America Invents Act and the Government's ability to request conveyance of rights in abandoned provisional applications. NIST acknowledges the increased use of provisional applications, and that a contractor may reasonably decide, as a matter of prosecution strategy, not to convert a provisional application under appropriate circumstances, without abandoning the subject invention itself or foreclosing the contractor's ability to file one or more additional applications directed to that invention. NIST has revised § 401.14(d)(3) to make clear that this section applies to abandoned non-provisional applications, and has made an analogous revision to § 401.14(f)(3). NIST expects that a contractor making a strategic decision such as described above will communicate its decision, and its intent not to abandon the subject invention itself, to the funding agency.

    15. A number of comments objected to the proposed revision in § 401.14(f)(3) to extend the required notification period for decisions not to continue patent prosecution from 30 days before the expiration of the response period to 120 days. NIST aims to balance the needs of contractors to have sufficient time to respond to actions, and the needs of Federal agencies to receive information in sufficient time to evaluate whether to request conveyance and assume prosecution of an application. NIST appreciates comments reflecting appreciation of these competing needs. NIST has shortened the notification period from the proposed 120 days to 60 days in the final rule.

    16. One comment requested clarification of references to Patent Trial and Appeals Board proceedings in § 401.14(f)(3). NIST has revised this paragraph to clarify that the list of decisions requiring the contractor to notify the Federal agency pertain to a subject invention.

    17. Several comments requested revisions to the Government support clause in § 401.14(f)(4) to allow flexibility in the statement required by the contractor rather than the precise language recited. NIST declines to do so, and notes that, apart from the requirement to identify the contract and the funding agency, the language of the statement required by the rule tracks almost verbatim that of 35 U.S.C. 202(c)(6). NIST will not invite departure from these two clear, concise sentences, which notify readers of the Federal government's rights in a subject invention.

    18. Several comments suggested revision to § 401.14(i) to permit automatic waivers from the requirement for substantial U.S. manufacture. NIST declines to make such a change, noting that § 401.14(i) tracks very closely the language of 35 U.S.C. 204, which itself makes clear that waivers from the requirement may be granted by the funding agency “in individual cases,” upon a showing.

    19. Several comments were directed towards electronic filing and the Interagency Edison (iEdison) system, and noted the proposed changes in §§ 401.16 and 401.17. While NIST strongly supports the use of iEdison by funding agencies, it cannot mandate or compel agency use. Accordingly, revisions to § 401.16, which provides that written notices may be electronically delivered to the agency or the contractor through an electronic database, do not mandate the use of iEdison or any other system. NIST also notes comments directed to compliance and training, and is pleased to note that it is collaborating with the National Institutes of Health to develop a series of iEdison training modules expected to be available to agencies and contractors after publication of this final rule.

    20. A number of comments noted specific challenges and error messages relating to the iEdison reporting system. NIST is pleased to note that it is working with the National Institutes of Health to evaluate the iEdison messaging system and identify opportunities for updates and improvements. Contractors and agencies are encouraged to contact the National Institutes of Health to report specific errors in the system so these can be flagged for evaluation.

    21. One comment concerned the publication process for patent applications, which NIST notes is unrelated to this rulemaking.

    22. Several comments were submitted regarding the management and licensing of federally owned inventions with regard to transparency and availability to the public. NIST notes that 35 U.S.C. 209 and 37 CFR 404.7 direct agencies in the criteria to be applied and the public notification processes to be followed in exercising the authority to grant exclusive and partially exclusive licenses to federally owned inventions, and provide for administrative appeals from agency licensing decisions, which appeals are also subject to review by the United States Court of Federal Claims.

    23. One comment stated that the notice of proposed rulemaking was not as widely publicized as other regulation changes, and suggested that more time should be provided “if few comments are received.” NIST published its notice of proposed rulemaking in the Federal Register, in which it announced a public meeting/webinar, which took place during the 30-day period set in the Federal Register notice of proposed rulemaking for public comment. In addition to the Federal Register, NIST utilized multiple communications media to publicize the notice of proposed rulemaking, the public meeting, and the request for comments. NIST was pleased to receive 17 comments through Regulations.gov, which NIST has taken into account in this final rule.

    Changes From the Proposed Rule

    1. Revise the scope in § 401.1(e) to include the alternate provisions in § 401.3(a)(5) and (6) in the list of deviations that do not require the Secretary's approval.

    2. Revise the proposed definition of the term initial patent application in § 401.2(n) to include Patent Cooperative Treaty applications and applications for Plant Variety Protection certificates, when applicable.

    3. Revise the proposed definition of the term statutory period in § 401.2(o) and in § 401.14(a)(7) to clarify that it refers to the one-year period in 35 U.S.C. 102(b) as amended by the Leahy-Smith America Invents Act.

    4. Revise § 401.3(b) to include the exception at § 401.3(a)(5) in the list of exceptions where an agency must use only the modifications necessary to address the exceptional circumstances.

    5. Correct formatting error to retain § 401.3(e) through (g).

    6. Re-insert the small business certification requirement in § 401.3(h).

    7. Revise § 401.4(a) to include the exceptions at § 401.3(a)(5) and (6) in the list of exceptions as to which a contractor has the right to an administrative review.

    8. Revise § 401.5 to make technical clarifications.

    9. Revise the proposed addition at § 401.10(a)(2) to require a Federal agency to consult with a contractor before submitting an initial patent application.

    10. Revise the proposed additions at § 401.10(a)(3)(iv) and (vi) to clarify that they apply after a contractor has waived title to the subject invention.

    11. Add a paragraph at § 401.10(c) to allow other inter-institutional agreements for the management of jointly-owned subject inventions to supersede § 401.10.

    12. Revise § 401.10 to align regulatory language with statute language.

    13. Revise § 401.13(c)(2) to remove the time limit under which agencies shall not disclose patent applications, and state that the prohibition on agency release does not apply to documents published by the U.S. Patent and Trademark Office.

    14. Add a paragraph at § 401.14(a)(8) to define the term contractor as defined in § 401.2(b).

    15. Remove the proposed revision at § 401.14(c)(2) which would allow an agency to shorten the two-year period for election of title if necessary to protect the Government's interest.

    16. Revise § 401.14(c)(3) to require a contractor to file a non-provisional application 10 months after filing a provisional application.

    17. Revise the proposed addition at § 401.14(c)(4) to clarify that the Federal agency employing a co-inventor may file an initial patent application, provided that the contractor retains the ability to elect title, in accordance with the revisions at § 401.10.

    18. Revise § 401.14(c)(5) to state that a request to extend the 10-month deadline for filing a non-provisional application after first filing a provisional application will be automatically granted for one year unless an agency notifies the contractor within 60 days of the request.

    19. Revise § 401.14(d)(3) to state that the section only applies to non-provisional applications and update the conditions under which a contractor will convey title to the Federal agency to be consistent with the Leahy-Smith America Invents Act provisions.

    20. Revise the proposed revision at § 401.14(f)(3) to change the notification period to 60 days prior to the expiration of the statutory deadline and clarify that only decisions pertaining to the subject invention made under contract require the contractor to provide notification to the Federal agency.

    21. Correct formatting error to retain § 401.14(f)(4) and (g)(1).

    22. Revise the proposed revisions at § 401.14(k)(4) to reference § 401.7.

    23. Revise § 404.7(a)(1)(i) and (b)(1)(i) to allow prospective exclusive, co-exclusive, or partially exclusive licenses to be advertised in places other than the Federal Register.

    Classification

    NIST has determined that the final rule is consistent with the Bayh-Dole Act of 1980 and other applicable law.

    Executive Order 12866

    This rulemaking is a significant regulatory action under sections 3(f)(3) and 3(f)(4) of Executive Order 12866, as it raises novel policy issues. This rulemaking, however, is not an “economically significant” regulatory action under section 3(f)(1) of the Executive order, as it does not have an effect on the economy of $100 million or more in any one year, and it does not have a material adverse effect on the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

    Executive Order 13771

    This final rule is considered to be an E.O. 13771 deregulatory action. Details on the cost savings can be found in the rule's Estimated Cost Savings section.

    Executive Order 13132

    This rule does not contain policies with Federalism implications as defined in Executive Order 13132.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires the preparation and availability for public comment of “an initial regulatory flexibility analysis” which will “describe the impact of the rule on small entities.” (5 U.S.C. 603(a).) 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.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination was published in the proposed rule and is not repeated here. No comments were received regarding the certification and NIST has not received any new information that would affect its determination. As a result, a final regulatory flexibility analysis was not required and none was prepared.

    Estimated Cost Savings

    Cost savings are anticipated from this rule by streamlining the licensing process for licensees that are already partnering with a Federal agency under a Cooperative Research and Development Agreement (CRADA). Federal agency collaborators include members from industry, academia, state and local governments, and individuals from the public. Costs to enter into a license with a Federal agency include the labor time on the part of the non-government collaborator to negotiate and execute the license with the Federal agency. NIST subject matter experts utilized annual technology transfer data reported by several Federal agencies to determine that the average Federal license takes approximately 5 months to execute.1 Assuming 5 hours of effort per month, approximately 25 hours of effort is invested by the non-Federal collaborator in executing a license with a Federal agency. Based on NIST database information, NIST subject matter experts estimate approximately one in five invention licenses is associated with a CRADA research plan, and Federal agencies report approximately 446 new invention licenses each year.2

    1 DOC average time over last five years to execute a license is 5 months: https://www.nist.gov/sites/default/files/documents/2017/09/08/fy2016-doc-tech-trans-report-final-9-5-17.pdf; DOE average time to execute a license is 98 business days; 22 business days per month averages 4.5 months: https://www.nist.gov/sites/default/files/documents/2017/04/19/technologytransferreporttocongressfy14.pdf; USDA average time over last five years to execute a license is 4.6 months: https://www.usda.gov/sites/default/files/documents/usda-fy16-tech-transfer-report.pdf.

    2 Average over the last five years: https://www.nist.gov/sites/default/files/documents/2016/10/26/fy2014_federal_tech_transfer_report.pdf.

    For the purposes of estimating opportunity costs, NIST subject matter experts deemed it reasonable to use the average of a lawyer's mean hourly wage ($67.25) and a legal support worker's hourly wage ($31.81), as informed by the Bureau of Labor and Statistics,3 to approximate an hourly wage for the average Federal license negotiator. That rate is $49.52/hour.

    3 Bureau of Labor and Statistics May 2016 wage data: https://www.bls.gov/oes/current/oes_nat.htm.

    Eliminating the need to negotiate a separate license document from CRADA collaborators is estimated to save Federal agency collaborators approximately $110,430 annually, as reflected in the chart below.

    New
  • invention
  • licenses/
  • year
  • Percent of licenses
  • associated with a CRADA
  • Number of licenses
  • associated with a CRADA
  • Negotiation
  • time/license
  • (hours)
  • Hourly wage of
  • non-Federal
  • negotiator
  • Projected cost
  • savings to
  • the public
  • 446 20 92 25 $49.52 −$110,430
    National Environmental Policy Act

    This rule will not significantly affect the quality of the human environment. Therefore, an environmental assessment or Environmental Impact Statement is not required to be prepared under the National Environmental Policy Act of 1969.

    List of Subjects in 37 CFR Parts 401 and 404

    Inventions and patents, Laboratories, Research and development, Science and technology, Technology transfer.

    For the reasons stated in the preamble, the National Institute of Standards and Technology amends 37 CFR parts 401 and 404 as follows:

    PART 401—RIGHTS TO INVENTIONS MADE BY NONPROFIT ORGANIZATIONS AND SMALL BUSINESS FIRMS UNDER GOVERNMENT GRANTS, CONTRACTS, AND COOPERATIVE AGREEMENTS 1. The authority citation for 37 CFR part 401 continues to read as follows: Authority:

    35 U.S.C. 206; DOO 30-2A.

    2. Section 401.1 is amended as follows: a. Revise the second sentence of paragraph (b); and b. Revise the fourth and fifth sentences of paragraph (e).

    The revisions read as follows:

    § 401.1 Scope.

    (b) * * * It applies to all funding agreements with business firms regardless of size (consistent with section 1, paragraph (b)(4) of Executive Order 12591, as amended by Executive Order 12618) and to nonprofit organizations, except for a funding agreement made primarily for educational purposes. * * *

    (e) * * * Modifications or tailoring of clauses as authorized by § 401.5 or § 401.3, when alternate provisions are used under § 401.3(a)(1) through (6), are not considered deviations requiring the Secretary's approval. Three copies of proposed and final agency regulations supplementing this part shall be submitted to the Secretary at the office set out in § 401.17 for approval for consistency with this part before they are submitted to the Office of Management and Budget (OMB) for review under Executive Order 12866 or, if no submission is required to be made to OMB, before their submission to the Federal Register for publication.

    3. Section 401.2 is amended as follows: a. Revise paragraphs (b) and (n); and b. Add paragraph (o).

    The revisions and additions read as follows:

    § 401.2 Definitions.

    (b) The term contractor means any person, small business firm or nonprofit organization, or, as set forth in section 1, paragraph (b)(4) of Executive Order 12591, as amended, any business firm regardless of size, which is a party to a funding agreement.

    (n) The term initial patent application means, as to a given subject invention, the first provisional or non-provisional U.S. national application for patent as defined in 37 CFR 1.9(a)(2) and (3), respectively, the first international application filed under the Patent Cooperation Treaty as defined in 37 CFR 1.9(b) which designates the United States, or the first application for a Plant Variety Protection certificate, as applicable.

    (o) The term statutory period means the one-year period before the effective filing date of a claimed invention during which exceptions to prior art exist per 35 U.S.C. 102(b) as amended by the Leahy-Smith America Invents Act, Public Law 112-29.

    4. Section 401.3 is amended as follows: a. Revise the first sentence of paragraph (a) introductory text; b. In paragraph (a)(4), remove the period at the end of the paragraph and add in its place “; or”; c. Revise paragraph (a)(5); d. Add paragraph (a)(6); e. In paragraph (b), revise the first sentence, remove “§ 401.14(b)” and add in its place “paragraph (c) of this section”, remove “§ 401.3(a)(2)” and add in its place “paragraph (a)(2) of this section”, remove “§ 401.14(a)” and add in its place “§ 401.14”, and remove “this paragraph” and add in its place “this paragraph (b)”; f. Revise paragraph (c); g. Revise the first sentence of paragraph (d); h. Revise paragraph (h); and i. Add paragraph (i).

    The revisions and additions read as follows:

    § 401.3 Use of the standard clauses at § 401.14.

    (a) Each funding agreement awarded to a contractor (except those subject to 35 U.S.C. 212) shall contain the clause found in § 401.14 with such modifications and tailoring as authorized or required elsewhere in this part. * * *

    (5) If any part of the contract may require the contractor to perform work on behalf of the Government at a Government laboratory under a Cooperative Research and Development Agreement (CRADA) pursuant to the statutory authority of 15 U.S.C. 3710a; or

    (6) If the contract provides for services and the contractor is not a nonprofit organization and does not promote the commercialization and public availability of subject inventions pursuant to 35 U.S.C. 200.

    (b) When an agency exercises the exceptions at paragraph (a)(2), (3), (5), or (6) of this section, it shall use the standard clause at § 401.14 with only such modifications as are necessary to address the exceptional circumstances or concerns which led to the use of the exception. * * *

    (c) When the Department of Energy (DOE) determines to use alternative provisions under paragaph (a)(4) of this section, the standard clause at § 401.14 shall be used with the following modifications, or substitute thereto with such modification and tailoring as authorized or required elsewhere in this part:

    (1) The title of the clause shall be changed to read as follows: Patent Rights to Nonprofit DOE Facility Operators.

    (2) Add an “(A)” after “(1)” in paragraph (c)(1) of the clause in § 401.14 and add paragraphs (B) and (C) to paragraph (c)(1) of the clause in § 401.14 as follows:

    (B) If the subject invention occurred under activities funded by the naval nuclear propulsion or weapons related programs of DOE, then the provisions of this paragraph (c)(1)(B) will apply in lieu of paragraphs (c)(2) and (3) of this clause. In such cases the contractor agrees to assign the government the entire right, title, and interest thereto throughout the world in and to the subject invention except to the extent that rights are retained by the contractor through a greater rights determination or under paragraph (e) of this clause. The contractor, or an employee-inventor, with authorization of the contractor, may submit a request for greater rights at the time the invention is disclosed or within a reasonable time thereafter. DOE will process such a request in accordance with procedures at 37 CFR 401.15. Each determination of greater rights will be subject to paragraphs (h) through (k) of this clause and such additional conditions, if any, deemed to be appropriate by the Department of Energy.

    (C) At the time an invention is disclosed in accordance with paragraph (c)(1)(A) of this clause, or within 90 days thereafter, the contractor will submit a written statement as to whether or not the invention occurred under a naval nuclear propulsion or weapons-related program of the Department of Energy. If this statement is not filed within this time, paragraph (c)(1)(B) of this clause will apply in lieu of paragraphs (c)(2) and (3) of this clause. The contractor statement will be deemed conclusive unless, within 60 days thereafter, the Contracting Officer disagrees in writing, in which case the determination of the Contracting Officer will be deemed conclusive unless the contractor files a claim under the Contract Disputes Act within 60 days after the Contracting Officer's determination. Pending resolution of the matter, the invention will be subject to paragraph (c)(1)(B) of this clause.

    (3) Paragraph (k)(3) of the clause in § 401.14 will be modified as prescribed at § 401.5(g).

    (d) When a funding agreement involves a series of separate task orders, an agency may apply the exceptions at paragraph (a)(2) or (3) of this section to individual task orders, and it may structure the contract so that modified patent rights provisions will apply to the task order even though either the standard clause at § 401.14 or the modified clause as described in paragraph (c) of this section is applicable to the remainder of the work. * * *

    (h) A prospective contractor may be required by an agency to certify that it is either a small business firm or a nonprofit organization. If the agency has reason to question the status of the prospective contractor, it may require the prospective contractor to furnish evidence to establish its status.

    (i) When an agency exercises the exception at paragraph (a)(5) of this section, replace paragraph (b) of the basic clause in § 401.14 with the following paragraphs (b)(1) and (2):

    (b) Allocation of principal rights. (1) The Contractor may retain the entire right, title, and interest throughout the world to each subject invention subject to the provisions of this clause, including paragraph (b)(2) of this clause, and 35 U.S.C. 203. With respect to any subject invention in which the Contractor retains title, the Federal Government shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the United States the subject invention throughout the world.

    (2) If the Contractor performs services at a Government owned and operated laboratory or at a Government owned and contractor operated laboratory directed by the Government to fulfill the Government's obligations under a Cooperative Research and Development Agreement (CRADA) authorized by 15 U.S.C. 3710a, the Government may require the Contractor to negotiate an agreement with the CRADA collaborating party or parties regarding the allocation of rights to any subject invention the Contractor makes, solely or jointly, under the CRADA. The agreement shall be negotiated prior to the Contractor undertaking the CRADA work or, with the permission of the Government, upon the identification of a subject invention. In the absence of such an agreement, the Contractor agrees to grant the collaborating party or parties an option for a license in its inventions of the same scope and terms set forth in the CRADA for inventions made by the Government.

    5. In § 401.4, revise the first sentence of paragraph (a) to read as follows:
    § 401.4 Contractor appeals of exceptions.

    (a) In accordance with 35 U.S.C. 202(b)(4) a contractor has the right to an administrative review of a determination to use one of the exceptions at § 401.3(a)(1) through (6) if the contractor believes that a determination is either contrary to the policies and objectives of this chapter or constitutes an abuse of discretion by the agency. * * *

    6. Revise § 401.5 to read as follows:
    § 401.5 Modification and tailoring of clauses.

    (a) Agencies should complete the blank in paragraph (g)(2) of the clauses at § 401.14 in accordance with their own or applicable government-wide regulations such as the Federal Acquisition Regulation. In funding agreements, agencies wishing to apply the same clause to all subcontractors as is applied to the contractor may delete paragraph (g)(2) of the clause in § 401.14 and delete the words “to be performed by a small business firm or domestic nonprofit organization” from paragraph (g)(1). Also, if the funding agreement is a grant or cooperative agreement, paragraph (g)(3) of the clause may be deleted. When either paragraph (g)(2) of the clause in § 401.14 or paragraphs (g)(2) and (3) of the clause in § 401.14 are deleted, the remaining paragraph or paragraphs should be renumbered appropriately.

    (b) Agencies should complete paragraph (l), “Communications”, at the end of the clauses at § 401.14 by designating a central point of contact for communications on matters relating to the clause. Additional instructions on communications may also be included in paragraph (l) of the clause in § 401.14.

    (c) Agencies may replace the italicized words and phrases in the clause at § 401.14 with those appropriate to the particular funding agreement. For example, “contractor” could be replaced by “grantee.” Depending on its use, “agency” or “Federal agency” can be replaced either by the identification of the agency or by the specification of the particular office or official within the agency.

    (d)(1) When the agency head or duly authorized designee determines at the time of contracting that it would be in the national interest to acquire the right to sublicense foreign governments, their nationals, or international organizations in accordance with any existing treaty or international agreement, a sentence may be added at the end of paragraph (b) of the clause at § 401.14 as follows:

    This license will include the right of the government to sublicense foreign governments, their nationals, and international organizations, in accordance with the following treaties or international agreements: ____.

    (2) The blank in the added text in paragraph (d)(1) of this section should be completed with the names of applicable existing treaties or international agreements, including agreements of cooperation, and military agreements relating to weapons development and production. The added language is not intended to encompass treaties or other agreements that are in effect on the date of the award but which are not listed. Alternatively, agencies may use substantially similar language relating the government's rights to specific treaties or other agreements identified elsewhere in the funding agreement. The language may also be modified to make clear that the rights granted to the foreign government, and its nationals or an international organization may be for additional rights beyond a license or sublicense if so required by the applicable treaty or other international agreement. For example, in some cases exclusive licenses or even the assignment of title to the foreign country involved might be required. Agencies may also modify the added language to provide for the direct licensing by the contractor of the foreign government or international organization.

    (e) If the funding agreement involves performance over an extended period of time, such as the typical funding agreement for the operation of a government-owned facility, the following language may also be added:

    The agency reserves the right to unilaterally amend this funding agreement to identify specific treaties or international agreements entered into or to be entered into by the government after the effective date of this funding agreement and effectuate those license or other rights which are necessary for the government to meet its obligations to foreign governments, and international organizations under such treaties or international agreements with respect to subject inventions made after the date of the amendment.

    (f) Agencies may add additional paragraphs to paragraph (f) of the clauses at § 401.14 to require the contractor to do one or more of the following:

    (1) Provide a report prior to the close-out of a funding agreement listing all subject inventions or stating that there were none.

    (2) Provide, upon request, the filing date, patent application number and title; a copy of the patent application; and patent number and issue date for any subject invention in any country in which the contractor has applied for a patent.

    (3) Provide periodic (but no more frequently than annual) listings of all subject inventions which were disclosed to the agency during the period covered by the report.

    (g) If the contract is with a nonprofit organization and is for the operation of a government-owned, contractor-operated facility, the following will be substituted for the text of paragraph (k)(3) of the clause at § 401.14:

    After payment of patenting costs, licensing costs, payments to inventors, and other expenses incidental to the administration of subject inventions, the balance of any royalties or income earned and retained by the contractor during any fiscal year on subject inventions under this or any successor contract containing the same requirement, up to any amount equal to five percent of the budget of the facility for that fiscal year, shall be used by the contractor for scientific research, development, and education consistent with the research and development mission and objectives of the facility, including activities that increase the licensing potential of other inventions of the facility. If the balance exceeds five percent, 15 percent of the excess above five percent shall be paid by the contractor to the Treasury of the United States and the remaining 85 percent shall be used by the contractor only for the same purposes as described in the preceding sentence. To the extent it provides the most effective technology transfer, the licensing of subject inventions shall be administered by contractor employees on location at the facility.

    (h) If the contract is for the operation of a government-owned facility, agencies may add paragraph (f)(5) to the clause at § 401.14 with the following text:

    The contractor shall establish and maintain active and effective procedures to ensure that subject inventions are promptly identified and timely disclosed and shall submit a description of the procedures to the contracting officer so that the contracting officer may evaluate and determine their effectiveness.
    7. In § 401.7, revise paragraph (b) to read as follows:
    § 401.7 Small business preference.

    (b) Small business firms that believe a nonprofit organization is not meeting its obligations under the clause may report their concerns to the funding agency identified at § 401.14(l), and following receipt of the funding agency's initial response to their concerns or, if no initial funding agency response is received within 90 days from the date their concerns were reported to the funding agency, may thereafter report their concerns, together with any response from the funding agency, to the Secretary. To the extent deemed appropriate, the Secretary, in consultation with the funding agency, will undertake informal investigation of the concern, and, if appropriate, enter into discussions or negotiations with the nonprofit organization to the end of improving its efforts in meeting its obligations under the clause. However, in no event will the Secretary intervene in ongoing negotiations or contractor decisions concerning the licensing of a specific subject invention. All investigations, discussions, and negotiations of the Secretary described in this paragraph (b) will be in coordination with other interested agencies, including the funding agency and the Small Business Administration. In the case of a contract for the operation of a government-owned, contractor operated research or production facility, the Secretary will coordinate with the agency responsible for the facility prior to any discussions or negotiations with the contractor.

    § 401.9 [Amended]
    8. In § 401.9, remove “§ 401.14(a)” and add in its place “§ 401.14”. 9. Revise § 401.10 to read as follows:
    § 401.10 Government assignment to contractor of rights in invention of government employee.

    (a) In any case when a Federal employee is a co-inventor of any invention made under a funding agreement with a contractor:

    (1) If the Federal agency employing such co-inventor transfers or reassigns to the contractor the right it has acquired in the subject invention from its employee as authorized by 35 U.S.C. 202(e), the assignment will be made subject to the patent rights clause of the contractor's funding agreement.

    (2) The Federal agency employing such co-inventor, in consultation with the contractor, may submit an initial patent application, provided that the contractor retains the right to elect to retain title pursuant to 35 U.S.C. 202(a).

    (3) When a Federal employee is a co-inventor of a subject invention developed with contractor-employed co-inventors under a funding agreement from another agency:

    (i) The funding agency will notify the agency employing a Federal co-inventor of any report of invention and whether the contractor elects to retain title.

    (ii) If the contractor does not elect to retain title to the subject invention, the funding agency must promptly provide notice to the agency employing a Federal co-inventor, and to the extent practicable, at least 60 days before any statutory bar date.

    (iii) Upon notification by the funding agency of a subject invention in which the contractor has not elected to retain title, the agency employing a Federal co-inventor must determine if there is a government interest in patenting the invention and will notify the funding agency of its determination.

    (iv) If the agency employing a Federal co-inventor determines there is a government interest in patenting the subject invention in which the contractor has not elected to retain title, the funding agency must provide administrative assistance (but is not required to provide financial assistance) to the agency employing a Federal co-inventor in acquiring rights from the contractor in order to file an initial patent application.

    (v) The agency employing a Federal co-inventor has priority for patenting over funding agencies that do not have a Federal co-inventor when the contractor has not elected to retain title.

    (vi) When the contractor has not elected to retain title, the funding agency and the agency employing a Federal co-inventor shall consult in order to ensure that the intent of the programmatic objectives conducted under the funding agreement is represented in any patenting decisions. The agency employing a Federal co-inventor may transfer patent management responsibilities to the funding agency.

    (4) Federal agencies employing such co-inventors may enter into an agreement with a contractor when an agency determines it is a suitable and necessary step to protect and administer rights on behalf of the Federal Government, pursuant to 35 U.S.C. 202(e).

    (5) Federal agencies employing such co-inventors will retain all ownership rights to which they are otherwise entitled if the contractor elects to retain title to the subject invention.

    (b) Agencies may add additional conditions as long as they are consistent with 35 U.S.C. 201-206.

    (c) Nothing in this section shall supersede any existing inter-institutional agreements between a contractor and a Federal agency for the management of jointly-owned subject inventions.

    10. Section 401.13 is amended as follows: a. Revise the second sentence of paragraph (c)(1); b. Revise paragraph (c)(2); and c. Revise the second sentence of paragraph (c)(3).

    The revisions read as follows:

    § 401.13 Administration of patent rights clauses.

    (c) * * *

    (1) * * * With respect to subject inventions of contractors that are small business firms or nonprofit organizations, a reasonable time shall be the time during which an initial patent application may be filed under paragraph (c) of the standard clause found at § 401.14 or such other clause may be used in the funding agreement. * * *

    (2) In accordance with 35 U.S.C. 205, agencies shall not disclose or release, pursuant to requests under the Freedom of Information Act or otherwise, copies of any document which the agency obtained under the clause in § 401.14 which is part of an application for patent with the U.S. Patent and Trademark Office or any foreign patent office filed by the contractor (or its assignees, licensees, or employees) on a subject invention to which the contractor has elected to retain title. This prohibition does not extend to disclosure to other government agencies or contractors of government agencies under an obligation to maintain such information in confidence. This prohibition does not apply to documents published by the U.S. Patent and Trademark Office or any foreign patent office.

    (3) * * * In recognition of the fact that such publication, if it included descriptions of a subject invention could create bars to obtaining patent protection, it is the policy of the executive branch that agencies will not include in such publication programs copies of disclosures of inventions submitted by small business firms or nonprofit organizations, pursuant to paragraph (c) of the standard clause found at § 401.14, except under the same circumstances under which agencies are authorized to release such information pursuant to FOIA requests under paragraph (c)(1) of this section agencies may publish such disclosures.

    11. Amend § 401.14 as follows: a. Redesignate paragraph (a) introductory text as undesignated introductory text and republish the introductory text; b. Remove the heading “Patent Rights (Small Business Firms and Nonprofit Organizations)” and add in its place the heading “Standard Patent Rights”; c. In “Standard Patent Rights”: i. Add paragraphs (a)(7) and (8); ii. Revise paragraphs (c)(2) and (3); iii. Redesignate paragraph (c)(4) as paragraph (c)(5); iv. Add a new paragraph (c)(4); v. Revise newly redesignated paragraph (c)(5); vi. Revise paragraphs (d)(1) through (3), (f)(2) and (3), (g)(1) first sentence, and (k)(4); and vii. Revise the undesignated text after the heading of paragraph (l); and d. Remove paragraphs (b) and (c) at the end of the section.

    The additions and revisions read as follows:

    § 401.14 Standard patent rights clauses.

    The following is the standard patent rights clause to be used as specified in § 401.3(a):

    (a) * * *

    (7) The term statutory period means the one-year period before the effective filing date of a claimed invention during which exceptions to prior art exist per 35 U.S.C. 102(b) as amended by the Leahy-Smith America Invents Act, Public Law 112-29.

    (8) The term contractor means any person, small business firm or nonprofit organization, or, as set forth in section 1, paragraph (b)(4) of Executive Order 12591, as amended, any business firm regardless of size, which is a party to a funding agreement.

    (c) * * *

    (2) The contractor will elect in writing whether or not to retain title to any such invention by notifying the Federal agency within two years of disclosure to the Federal agency. However, in any case where a patent, a printed publication, public use, sale, or other availability to the public has initiated the one year statutory period wherein valid patent protection can still be obtained in the United States, the period for election of title may be shortened by the agency to a date that is no more than 60 days prior to the end of the statutory period.

    (3) The contractor will file its initial patent application on a subject invention to which it elects to retain title within one year after election of title or, if earlier, prior to the end of any statutory period wherein valid patent protection can be obtained in the United States after a publication, on sale, or public use. If the contractor files a provisional application as its initial patent application, it shall file a non-provisional application within 10 months of the filing of the provisional application. The contractor will file patent applications in additional countries or international patent offices within either ten months of the first filed patent application or six months from the date permission is granted by the Commissioner of Patents to file foreign patent applications where such filing has been prohibited by a Secrecy Order.

    (4) For any subject invention with Federal agency and contractor co-inventors, where the Federal agency employing such co-inventor determines that it would be in the interest of the government, pursuant to 35 U.S.C. 207(a)(3), to file an initial patent application on the subject invention, the Federal agency employing such co-inventor, at its discretion and in consultation with the contractor, may file such application at its own expense, provided that the contractor retains the ability to elect title pursuant to 35 U.S.C. 202(a).

    (5) Requests for extension of the time for disclosure, election, and filing under paragraphs (1), (2), and (3) of this clause may, at the discretion of the Federal agency, be granted. When a contractor has requested an extension for filing a non-provisional application after filing a provisional application, a one-year extension will be granted unless the Federal agency notifies the contractor within 60 days of receiving the request.

    (d) * * *

    (1) If the contractor fails to disclose or elect title to the subject invention within the times specified in paragraph (c) of this clause, or elects not to retain title.

    (2) In those countries in which the contractor fails to file patent applications within the times specified in paragraph (c) of this clause; provided, however, that if the contractor has filed a patent application in a country after the times specified in paragraph (c) of this clause, but prior to its receipt of the written request of the Federal agency, the contractor shall continue to retain title in that country.

    (3) In any country in which the contractor decides not to continue the prosecution of any non-provisional patent application for, to pay a maintenance, annuity or renewal fee on, or to defend in a reexamination or opposition proceeding on, a patent on a subject invention.

    (f) * * *

    (2) The contractor agrees to require, by written agreement, its employees, other than clerical and nontechnical employees, to disclose promptly in writing to personnel identified as responsible for the administration of patent matters and in a format suggested by the contractor each subject invention made under contract in order that the contractor can comply with the disclosure provisions of paragraph (c) of this clause, to assign to the contractor the entire right, title and interest in and to each subject invention made under contract, and to execute all papers necessary to file patent applications on subject inventions and to establish the government's rights in the subject inventions. This disclosure format should require, as a minimum, the information required by paragraph (c)(1) of this clause. The contractor shall instruct such employees through employee agreements or other suitable educational programs on the importance of reporting inventions in sufficient time to permit the filing of patent applications prior to U.S. or foreign statutory bars.

    (3) For each subject invention, the contractor will, no less than 60 days prior to the expiration of the statutory deadline, notify the Federal agency of any decision: Not to continue the prosecution of a non-provisional patent application; not to pay a maintenance, annuity or renewal fee; not to defend in a reexamination or opposition proceeding on a patent, in any country; to request, be a party to, or take action in a trial proceeding before the Patent Trial and Appeals Board of the U.S. Patent and Trademark Office, including but not limited to post-grant review, review of a business method patent, inter partes review, and derivation proceeding; or to request, be a party to, or take action in a non-trial submission of art or information at the U.S. Patent and Trademark Office, including but not limited to a pre-issuance submission, a post-issuance submission, and supplemental examination.

    (g) * * *

    (1) The contractor will include this clause, suitably modified to identify the parties, in all subcontracts, regardless of tier, for experimental, developmental or research work to be performed by a subcontractor. * * *

    (k) * * *

    (4) It will make efforts that are reasonable under the circumstances to attract licensees of subject inventions that are small business firms and that it will give a preference to a small business firm when licensing a subject invention if the contractor determines that the small business firm has a plan or proposal for marketing the invention which, if executed, is equally as likely to bring the invention to practical application as any plans or proposals from applicants that are not small business firms; provided, that the contractor is also satisfied that the small business firm has the capability and resources to carry out its plan or proposal. The decision whether to give a preference in any specific case will be at the discretion of the contractor. However, the contractor agrees that the Federal agency may review the contractor's licensing program and decisions regarding small business applicants, and the contractor will negotiate changes to its licensing policies, procedures, or practices with the Federal agency when the Federal agency's review discloses that the contractor could take reasonable steps to implement more effectively the requirements of this paragraph (k)(4). In accordance with 37 CFR 401.7, the Federal agency or the contractor may request that the Secretary review the contractor's licensing program and decisions regarding small business applicants.

    (l) * * *

    [Complete according to instructions at § 401.5(b)]

    § 401.15 [Amended]
    12. In § 401.15: a. In paragraph (b), remove “§ 401.14(a)” and add in its place “§ 401.14”; and b. In paragraph (d), remove “§ 401.14(a)” and add in its place “§ 401.14” and remove “of this part”. 13. In § 401.16: a. In paragraphs (a) and (b), remove “§ 401.14(a) may” and add in its place “§ 401.14 shall”; b. In paragraph (c), remove “(f)(1)” and add in its place “paragraph (f)(1)”, remove “(f)(2) and (f)(3)” and add in its place “paragraphs (f)(2) and (3)”, and remove “may” and add in its place “shall”; and c. Add paragraph (d).

    The addition reads as follows:

    § 401.16 Electronic filing.

    (d) Other written notices required in the clause in § 401.14 may be electronically delivered to the agency or the contractor through an electronic database used for reporting subject inventions, patents, and utilization reports to the funding agency.

    14. Revise § 401.17 to read as follows:
    § 401.17 Submissions and inquiries.

    All submissions or inquiries should be directed to the Chief Counsel for NIST, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 1052, Gaithersburg, Maryland 20899-1052; telephone: (301) 975-2803; email: [email protected] Information about and procedures for electronic filing under this part are available at the Interagency Edison website and service center, http://www.iedison.gov, telephone (301) 435-1986.

    PART 404—LICENSING OF GOVERNMENT OWNED INVENTIONS 15. The authority citation for 37 CFR part 404 continues to read as follows: Authority:

    35 U.S.C. 207-209, DOO 30-2A.

    16. Amend § 404.7 by revising paragraphs (a)(1)(i) and (b)(1)(i) to read as follows:
    § 404.7 Exclusive, co-exclusive and partially exclusive licenses.

    (a)(1) * * *

    (i) Notice of a prospective license, identifying the invention and the prospective licensee, has been published in the Federal Register or other appropriate manner, providing opportunity for filing written objections within at least a 15-day period;

    (b)(1) * * *

    (i) Notice of a prospective license, identifying the invention and the prospective licensee, has been published in the Federal Register or other appropriate manner, providing opportunity for filing written objections within at least a 15-day period and following consideration of such objections received during the period;

    17. Revise § 404.8 to read as follows:
    § 404.8 Application for a license.

    (a) An application for a license should be addressed to the Federal agency having custody of the invention and shall normally include:

    (1) Identification of the invention for which the license is desired including the patent application serial number or patent number, title, and date, if known;

    (2) Identification of the type of license for which the application is submitted;

    (3) Name and address of the person, company, or organization applying for the license and the citizenship or place of incorporation of the applicant;

    (4) Name, address, and telephone number of the representative of the applicant to whom correspondence should be sent;

    (5) Nature and type of applicant's business, identifying products or services which the applicant has successfully commercialized, and approximate number of applicant's employees;

    (6) Source of information concerning the availability of a license on the invention;

    (7) A statement indicating whether the applicant is a small business firm as defined in § 404.3(c);

    (8) A detailed description of applicant's plan for development or marketing of the invention, or both, which should include:

    (i) A statement of the time, nature and amount of anticipated investment of capital and other resources which applicant believes will be required to bring the invention to practical application;

    (ii) A statement as to applicant's capability and intention to fulfill the plan, including information regarding manufacturing, marketing, financial, and technical resources;

    (iii) A statement of the fields of use for which applicant intends to practice the invention; and

    (iv) A statement of the geographic areas in which applicant intends to manufacture any products embodying the invention and geographic areas where applicant intends to use or sell the invention, or both;

    (9) Identification of licenses previously granted to applicant under federally owned inventions;

    (10) A statement containing applicant's best knowledge of the extent to which the invention is being practiced by private industry or Government, or both, or is otherwise available commercially; and

    (11) Any other information which applicant believes will support a determination to grant the license to applicant.

    (b) An executed CRADA which provides for the use for research and development purposes by the CRADA collaborator under that CRADA of a Federally-owned invention in the Federal laboratory's custody (pursuant to 35 U.S.C. 209 and 15 U.S.C. 3710a(b)(1)), and which addresses the information in paragraph (a) of this section, may be treated by the Federal laboratory as an application for a license.

    Kevin A. Kimball, Chief of Staff.
    [FR Doc. 2018-07532 Filed 4-12-18; 8:45 am] BILLING CODE 3510-13-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 60, 61, and 63 [EPA-R06-OAR-2016-0091; FRL-9975-94—Region 6] New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants; Delegation of Authority to New Mexico AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule; delegation of authority.

    SUMMARY:

    The New Mexico Environment Department (NMED) has submitted updated regulations for receiving delegation and approval of a program for the implementation and enforcement of certain New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) for all sources (both Title V and non-Title V sources). These updated regulations apply to certain NSPS promulgated by the EPA at part 60, as amended between September 24, 2013 and January 15, 2017; certain NESHAP promulgated by the EPA at part 61, as amended between January 1, 2011 and January 15, 2017; and other NESHAP promulgated by the EPA at part 63, as amended between August 30, 2013 and January 15, 2017, as adopted by the NMED. The EPA is providing notice that it is updating the delegation of certain NSPS to NMED, and taking direct final action to approve the delegation of certain NESHAP to NMED. The delegation of authority under this action does not apply to sources located in Bernalillo County, New Mexico, or to sources located in Indian Country.

    DATES:

    This rule is effective on June 12, 2018 without further notice, unless the EPA receives relevant adverse comment by May 14, 2018. If the EPA receives such comment, the EPA will publish a timely withdrawal in the Federal Register informing the public that the updated NESHAP delegation will not take effect; however, the NSPS delegation will not be affected by such action.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R06-OAR-2016-0091, at http://www.regulations.gov or via email to [email protected] Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact Rick Barrett, 214-665-7227, [email protected] For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI).

    FOR FURTHER INFORMATION CONTACT:

    Mr. Rick Barrett (6MM-AP), (214) 665-7227; email: [email protected] To inspect the hard copy materials, please schedule an appointment with Mr. Rick Barrett or Mr. Bill Deese at (214) 665-7253.

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA.

    Table of Contents I. What does this action do? II. What is the authority for delegation? III. What criteria must New Mexico's programs meet to be approved? IV. How did NMED meet The NSPS and NESHAP program approval criteria? V. What is being delegated? VI. What is not being delegated? VII. How will statutory and regulatory interpretations be made? VIII. What authority does the EPA have? IX. What information must NMED provide to the EPA? X. What is the EPA's oversight role? XI. Should sources submit notices to the EPA or NMED? XII. How will unchanged authorities be delegated to NMED in the future? XIII. Final Action XIV. Statutory and Executive Order Reviews I. What does this action do?

    The EPA is providing notice that it is approving NMED's request to update the delegation for the implementation and enforcement of certain NSPS. The EPA is also taking direct final action to approve NMED's request updating the delegation of certain NESHAP. With this delegation, NMED has the primary responsibility to implement and enforce the delegated standards. See sections V and VI, below, for a discussion of which standards are being delegated and which are not being delegated.

    II. What is the authority for delegation?

    Upon the EPA's finding that the procedures submitted by a State for the implementation and enforcement of standards of performance for new sources located in the State are adequate, Section 111(c)(1) of the Clean Air Act (CAA) authorizes the EPA to delegate its authority to implement and enforce such standards. The new source performance standards are codified at 40 CFR part 60.

    Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorize the EPA to delegate authority for the implementation and enforcement of emission standards for hazardous air pollutants to a State that satisfies the statutory and regulatory requirements in subpart E. The hazardous air pollutant standards are codified at 40 CFR parts 61 and 63.

    III. What criteria must New Mexico's programs meet to be approved?

    In order to receive delegation of NSPS, a State must develop and submit to the EPA a procedure for implementing and enforcing the NSPS in the state, and their regulations and resources must be adequate for the implementation and enforcement of the NSPS. The EPA initially approved New Mexico's program for the delegation of NSPS on June 6, 1986 (51 FR 20648). The EPA reviewed the laws of the State and the rules and regulations of the New Mexico Environmental Improvement Division (now the NMED) and determined the State's procedures, regulations and resources were adequate for the implementation and enforcement of the Federal standards. The NSPS delegation was most recently updated on February 2, 2015 (80 FR 5475). This action notifies the public that the EPA is updating NMED's delegation to implement and enforce certain additional NSPS.

    Section 112(l)(5) of the CAA requires the EPA to disapprove any program submitted by a State for the delegation of NESHAP standards if the EPA determines that:

    (A) The authorities contained in the program are not adequate to assure compliance by the sources within the State with respect to each applicable standard, regulation, or requirement established under section 112;

    (B) adequate authority does not exist, or adequate resources are not available, to implement the program;

    (C) the schedule for implementing the program and assuring compliance by affected sources is not sufficiently expeditious; or

    (D) the program is otherwise not in compliance with the guidance issued by the EPA under section 112(l)(2) or is not likely to satisfy, in whole or in part, the objectives of the CAA.

    In carrying out its responsibilities under section 112(l), the EPA promulgated regulations at 40 CFR part 63, subpart E, setting forth criteria for the approval of submitted programs. For example, in order to obtain approval of a program to implement and enforce Federal section 112 rules as promulgated without changes (straight delegation), a State must demonstrate that it meets the criteria of 40 CFR 63.91(d). Title 40 CFR 63.91(d)(3) provides that interim or final title V program approval will satisfy the criteria of 40 CFR 63.91(d).1

    1 Some NESHAP standards do not require a source to obtain a title V permit (e.g., certain area sources that are exempt from the requirement to obtain a title V permit). For these non-title V sources, the EPA believes that the State must assure the EPA that it can implement and enforce the NESHAP for such sources. See 65 FR 55810, 55813 (Sept. 14, 2000).

    The NESHAP delegation was most recently approved on February 2, 2015 (80 FR 5475).

    IV. How did NMED meet the NSPS and NESHAP program approval criteria?

    As to the NSPS standards in 40 CFR part 60, NMED adopted the Federal standards via incorporation by reference. The NMED regulations are, therefore, at least as stringent as the EPA's rules. See 40 CFR 60.10(a). Also, in the EPA initial approval of NSPS delegation, we determined that the State developed procedures for implementing and enforcing the NSPS in the State, and that the State's regulations and resources are adequate for the implementation and enforcement of the Federal standards. See 51 FR 20648 (June 6, 1986).

    As to the NESHAP standards in 40 CFR parts 61 and 63, as part of its Title V submission NMED stated that it intended to use the mechanism of incorporation by reference to adopt unchanged Federal section 112 standards into its regulations. This commitment applied to both existing and future standards as they applied to part 70 sources. The EPA's final interim approval of New Mexico's Title V operating permits program delegated the authority to implement certain NESHAP, effective December 19, 1994 (59 FR 59656). On November 26, 1996, the EPA promulgated final full approval of the State's operating permits program, effective January 27, 1997 (61 FR 60032). These interim and final title V program approvals satisfy the upfront approval criteria of 40 CFR 63.91(d). Under 40 CFR 63.91(d)(2), once a state has satisfied the up-front approval criteria, it needs only to reference the previous demonstration and reaffirm that it still meets the criteria for any subsequent submittals for delegation of the section 112 standards. NMED has affirmed that it still meets the up-front approval criteria. With respect to non-Title V sources, the EPA has previously approved delegation of NESHAP authorities to NMED after finding adequate authorities to implement and enforce the NESHAP for non-Title V sources. See 68 FR 69036 (December 11, 2003).

    V. What is being delegated?

    By letter dated January 22, 2016, the EPA received a request from NMED to update its NSPS delegation and NESHAP delegation. With certain exceptions noted in section VI below, NMED's request included NSPS in 40 CFR part 60, as amended between September 24, 2013 and September 15, 2015; NESHAP in 40 CFR part 61, as amended between January 1, 2011 and September 15, 2015; and NESHAP in 40 CFR part 63, as amended between August 30, 2013 and September 15, 2015.

    By letter dated June 9, 2017, the EPA received a request from NMED to update its NSPS delegation and NESHAP delegation. With certain exceptions noted in section VI below, NMED's request included NSPS in 40 CFR part 60, as amended between September 15, 2015 and January 15, 2017; NESHAP in 40 CFR part 61, as amended between September 15, 2015 and January 15, 2017; and NESHAP in 40 CFR part 63, as amended between September 15, 2015 and January 15, 2017. This action is being taken in response to NMED's requests noted above.

    VI. What is not being delegated?

    All authorities not affirmatively and expressly delegated by this action are not delegated. These include the following part 60, 61 and 63 authorities listed below:

    • 40 CFR part 60, subpart AAA (Standards of Performance for New Residential Wood Heaters);

    • 40 CFR part 60, subpart QQQQ (Standards of Performance for New Residential Hydronic Heaters and Forced-Air Furnaces);

    • 40 CFR part 61, subpart B (National Emission Standards for Radon Emissions from Underground Uranium Mines);

    • 40 CFR part 61, subpart H (National Emission Standards for Emissions of Radionuclides Other Than Radon From Department of Energy Facilities);

    • 40 CFR part 61, subpart I (National Emission Standards for Radionuclide Emissions from Federal Facilities Other Than Nuclear Regulatory Commission Licensees and Not Covered by Subpart H);

    • 40 CFR part 61, subpart K (National Emission Standards for Radionuclide Emissions from Elemental Phosphorus Plants);

    • 40 CFR part 61, subpart Q (National Emission Standards for Radon Emissions from Department of Energy facilities);

    • 40 CFR part 61, subpart R (National Emission Standards for Radon Emissions from Phosphogypsum Stacks);

    • 40 CFR part 61, subpart T (National Emission Standards for Radon Emissions from the Disposal of Uranium Mill Tailings);

    • 40 CFR part 61, subpart W (National Emission Standards for Radon Emissions from Operating Mill Tailings); and

    • 40 CFR part 63, subpart J (National Emission Standards for Polyvinyl Chloride and Copolymers Production).

    In addition, the EPA regulations provide that we cannot delegate to a State any of the Category II authorities set forth in 40 CFR 63.91(g)(2). These include the following provisions: § 63.6(g), Approval of Alternative Non-Opacity Standards; § 63.6(h)(9), Approval of Alternative Opacity Standards; § 63.7(e)(2)(ii) and (f), Approval of Major Alternatives to Test Methods; § 63.8(f), Approval of Major Alternatives to Monitoring; and § 63.10(f), Approval of Major Alternatives to Recordkeeping and Reporting. Also, some part 61 and part 63 standards have certain provisions that cannot be delegated to the States. Furthermore, no authorities are delegated that require rulemaking in the Federal Register to implement, or where Federal overview is the only way to ensure national consistency in the application of the standards or requirements of CAA section 112. Finally, this action does not delegate any authority under section 112(r), the accidental release program.

    All of the inquiries and requests concerning implementation and enforcement of the excluded standards in the State of New Mexico should be directed to the EPA Region 6 Office.

    In addition, this delegation to NMED to implement and enforce certain NSPS and NESHAP authorities does not extend to sources or activities located in Indian country, as defined in 18 U.S.C. 1151. Under this definition, the EPA treats as reservations, trust lands validly set aside for the use of a Tribe even if the trust lands have not been formally designated as a reservation. Consistent with previous federal program approvals or delegations, the EPA will continue to implement the NSPS and NESHAP in Indian country because NMED has not submitted information to demonstrate authority over sources and activities located within the exterior boundaries of Indian reservations and other areas in Indian country.

    VII. How will statutory and regulatory interpretations be made?

    In approving the NSPS delegation, NMED will obtain concurrence from the EPA on any matter involving the interpretation of section 111 of the CAA or 40 CFR part 60 to the extent that implementation or enforcement of these provisions have not been covered by prior EPA determinations or guidance. See 51 FR 20649 (June 6, 1986).

    In approving the NESHAP delegation, NMED will obtain concurrence from the EPA on any matter involving the interpretation of section 112 of the CAA or 40 CFR parts 61 and 63 to the extent that implementation or enforcement of these provisions have not been covered by prior EPA determinations or guidance.

    VIII. What authority does the EPA have?

    We retain the right, as provided by CAA section 111(c)(2), to enforce any applicable emission standard or requirement under section 111.

    We retain the right, as provided by CAA section 112(l)(7) and 40 CFR 63.90(d)(2), to enforce any applicable emission standard or requirement under section 112. In addition, the EPA may enforce any federally approved State rule, requirement, or program under 40 CFR 63.90(e) and 63.91(c)(1)(i). The EPA also has the authority to make decisions under the General Provisions (subpart A) of parts 61 and 63. We are delegating to NMED some of these authorities, and retaining others, as explained in sections V and VI above. In addition, the EPA may review and disapprove State determinations and subsequently require corrections. See 40 CFR 63.91(g)(1)(ii). EPA also has the authority to review NMED's implementation and enforcement of approved rules or programs and to withdraw approval if we find inadequate implementation or enforcement. See 40 CFR 63.96.

    Furthermore, we retain any authority in an individual emission standard that may not be delegated according to provisions of the standard. Also, listed in footnote 2 of the part 63 delegation table at the end of this rule are the authorities that cannot be delegated to any State or local agency which we therefore retain.

    Finally, we retain the authorities stated in the original delegation agreement. See 51 FR 20648-20650 (June 6, 1986).

    IX. What information must NMED provide to the EPA?

    NMED must provide any additional compliance related information to EPA, Region 6, Office of Enforcement and Compliance Assurance, within 45 days of a request under 40 CFR 63.96(a). In receiving delegation for specific General Provisions authorities, NMED must submit to EPA Region 6, on a semi-annual basis, copies of determinations issued under these authorities. See 40 CFR 63.91(g)(1)(ii). For 40 CFR part 63 standards, these determinations include: § 63.1, Applicability Determinations; § 63.6(e), Operation and Maintenance Requirements—Responsibility for Determining Compliance; § 63.6(f), Compliance with Non-Opacity Standards—Responsibility for Determining Compliance; § 63.6(h), Compliance with Opacity and Visible Emissions Standards—Responsibility for Determining Compliance; § 63.7(c)(2)(i) and (d), Approval of Site-Specific Test Plans; § 63.7(e)(2)(i), Approval of Minor Alternatives to Test Methods; § 63.7(e)(2)(ii) and (f), Approval of Intermediate Alternatives to Test Methods; § 63.7(e)(2)(iii), Approval of Shorter Sampling Times and Volumes When Necessitated by Process Variables or Other Factors; § 63.7(e)(2)(iv) and (h)(2) and (3), Waiver of Performance Testing; § 63.8(c)(1) and (e)(1), Approval of Site-Specific Performance Evaluation (Monitoring) Test Plans; § 63.8(f), Approval of Minor Alternatives to Monitoring; § 63.8(f), Approval of Intermediate Alternatives to Monitoring; §§ 63.9 and 63.10, Approval of Adjustments to Time Periods for Submitting Reports; § 63.10(f), Approval of Minor Alternatives to Recordkeeping and Reporting; § 63.7(a)(4), Extension of Performance Test Deadline.

    X. What is the EPA's oversight role?

    The EPA oversees NMED's decisions to ensure the delegated authorities are being adequately implemented and enforced. We will integrate oversight of the delegated authorities into the existing mechanisms and resources for oversight currently in place. If, during oversight, we determine that NMED made decisions that decreased the stringency of the delegated standards, then NMED shall be required to take corrective actions and the source(s) affected by the decisions will be notified. See 40 CFR 63.91(g)(1)(ii) and (b). We will initiate withdrawal of the program or rule if the corrective actions taken are insufficient. See 51 FR 20648 (June 6, 1986).

    XI. Should sources submit notices to the EPA or NMED?

    Sources located outside the boundaries of Bernalillo County and outside of Indian country should submit all of the information required pursuant to the delegated authorities in the Federal NSPS and NESHAP (40 CFR parts 60, 61 and 63) directly to the NMED at the following address: New Mexico Environment Department, 525 Camino de los Marquez, Suite I, Santa Fe, New Mexico 87505. The NMED is the primary point of contact with respect to delegated NSPS and NESHAP authorities. Sources do not need to send a copy to the EPA. The EPA Region 6 waives the requirement that notifications and reports for delegated authorities be submitted to the EPA in addition to NMED in accordance with 40 CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii).2 For those authorities not delegated, sources must continue to submit all appropriate information to the EPA.

    2 This waiver only extends to the submission of copies of notifications and reports; EPA does not waive the requirements in delegated standards that require notifications and reports be submitted to an electronic database (e.g., 40 CFR part 63, subpart HHHHHHH).

    XII. How will unchanged authorities be delegated to NMED in the future?

    In the future, NMED will only need to send a letter of request to update their delegation to EPA, Region 6, for those NSPS which they have adopted by reference. The EPA will amend the relevant portions of the Code of Federal Regulations showing which NSPS standards have been delegated to NMED. Also, in the future, NMED will only need to send a letter of request for approval to EPA, Region 6, for those NESHAP regulations that NMED has adopted by reference. The letter must reference the previous up-front approval demonstration and reaffirm that it still meets the up-front approval criteria. We will respond in writing to the request stating that the request for delegation is either granted or denied. A Federal Register action will be published to inform the public and affected sources of the delegation, indicate where source notifications and reports should be sent, and to amend the relevant portions of the Code of Federal Regulations showing which NESHAP standards have been delegated to NMED.

    XIII. Final Action

    The public was provided the opportunity to comment on the proposed approval of the program and mechanism for delegation of section 112 standards, as they apply to part 70 sources, on May 19, 1994, for the proposed interim approval of NMED's Title V operating permits program; and on November 26, 1996, for the proposed final approval of NMED's Title V operating permits program. In the EPA's final full approval of New Mexico's Operating Permits Program on November 26, 1996, the EPA discussed the public comments on the delegation of the NESHAP authorities. In today's action, the public is given the opportunity to comment on the approval of NMED's request for delegation of authority to implement and enforce certain section 112 standards for all sources (both Title V and non-Title V sources) which have been adopted by reference into New Mexico's state regulations. However, the Agency views the approval of these requests as a noncontroversial action and anticipates no relevant adverse comments. Therefore, the EPA is publishing this rule without prior proposal. However, in the proposed rules section of this issue of the Federal Register, the EPA is publishing a separate document that will serve as the proposal to approve the NESHAP delegation described in this action if relevant adverse comments are received. This action will be effective June 12, 2018 without further notice unless we receive relevant adverse comment by May 14, 2018.

    If we receive relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public the rule will not take effect with respect to the updated NESHAP delegation. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if we receive relevant adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of a relevant adverse comment.

    XIV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866. This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

    The delegation is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

    This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state request to receive delegation of certain Federal standards, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

    In reviewing delegation submissions, EPA's role is to approve submissions, provided that they meet the criteria of the Clean Air Act. This action is not subject to the 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. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 12, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

    List of Subjects 40 CFR Part 60

    Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.

    40 CFR Part 61

    Environmental protection, Administrative practice and procedure, Air pollution control, Arsenic, Benzene, Beryllium, Hazardous substances, Intergovernmental relations, Mercury, Reporting and recordkeeping requirements, Vinyl chloride.

    40 CFR Part 63

    Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: March 22, 2018. Wren Stenger, Director, Multimedia Division, Region 6.

    40 CFR parts 60, 61, and 63 are amended as follows:

    PART 60—[AMENDED] 1. The authority citation for part 60 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    2. Section 60.4 is amended by revising paragraphs (b)(33) introductory text and (e)(1) to read as follows:
    § 60.4 Address.

    (b) * * *

    (33) State of New Mexico: New Mexico Environment Department, 525 Camino de los Marquez, Suite I, Santa Fe, New Mexico, 87505. Note: For a list of delegated standards for New Mexico (excluding Bernalillo County and Indian country), see paragraph (e)(1) of this section.

    (e) * * *

    (1) New Mexico. The New Mexico Environment Department has been delegated all part 60 standards promulgated by the EPA, except subpart AAA—Standards of Performance for New Residential Wood Heaters; and subpart QQQQ—Standards of Performance for New Residential Hydronic Heaters and Forced-Air Furnaces, as amended in the Federal Register through January 15, 2017.

    PART 61—[AMENDED] 1. The authority citation for part 61 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart A—General Provisions 2. Section 61.04 is amended by revising paragraphs (b)(33) introductory text and (c)(6)(iii) to read as follows:
    § 61.04 Address.

    (b) * * *

    (33) State of New Mexico: New Mexico Environment Department, 525 Camino de los Marquez, Suite I, Santa Fe, New Mexico 87505. For a list of delegated standards for New Mexico (excluding Bernalillo County and Indian country), see paragraph (c)(6) of this section.

    (c) * * *

    (6) * * *

    (iii) New Mexico. The New Mexico Environment Department (NMED) has been delegated the following part 61 standards promulgated by the EPA, as amended in the Federal Register through January 15, 2017. The (X) symbol is used to indicate each subpart that has been delegated. The delegations are subject to all of the conditions and limitations set forth in Federal law and regulations.

    Delegation Status for National Emission Standards for Hazardous Air Pollutants (Part 61 Standards) for New Mexico [Excluding Bernalillo County and Indian Country] Subpart Source Category NMED 1 A General Provisions X B Radon Emissions From Underground Uranium Mines C Beryllium X D Beryllium Rocket Motor Firing X E Mercury X F Vinyl Chloride X G (Reserved) H Emissions of Radionuclides Other Than Radon From Department of Energy Facilities I Radionuclide Emissions From Federal Facilities Other Than Nuclear Regulatory Commission Licensees and Not Covered by Subpart H. J Equipment Leaks (Fugitive Emission Sources) of Benzene X K Radionuclide Emissions From Elemental Phosphorus Plants L Benzene Emissions From Coke By-Product Recovery Plants X M Asbestos X N Inorganic Arsenic Emissions From Glass Manufacturing Plants X O Inorganic Arsenic Emissions From Primary Copper Smelters X P Inorganic Arsenic Emissions From Arsenic Trioxide and Metallic Arsenic Production Facilities X Q Radon Emissions From Department of Energy Facilities R Radon Emissions From Phosphogypsum Stacks S (Reserved) T Radon Emissions From the Disposal of Uranium Mill Tailings U (Reserved) V Equipment Leaks (Fugitives Emission Sources) X W Radon Emissions From Operating Mill Tailings X (Reserved) Y Benzene Emissions From Benzene Storage Vessels X Z-AA (Reserved) BB Benzene Emissions From Benzene Transfer Operations X CC-EE (Reserved) FF Benzene Waste Operations X 1 Program delegated to New Mexico Environment Department (NMED).
    PART 63—[AMENDED] 1. The authority citation for part 63 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart E—Approval of State Programs and Delegation of Federal Authorities 2. Section 63.99 is amended by revising paragraph (a)(32)(i) to read as follows:
    § 63.99 Delegated Federal authorities.

    (a) * * *

    (32) * * *

    (i) The following table lists the specific part 63 standards that have been delegated unchanged to the New Mexico Environment Department for all sources. The “X” symbol is used to indicate each subpart that has been delegated. The delegations are subject to all of the conditions and limitations set forth in Federal law and regulations. Some authorities cannot be delegated and are retained by the EPA. These include certain General Provisions authorities and specific parts of some standards. Any amendments made to these rules after January 15, 2017 are not delegated.

    Delegation Status for Part 63 Standards—State of New Mexico [Excluding Indian Country] Subpart Source category NMED 12 ABCAQCB 13 A General Provisions X X D Early Reductions X X F Hazardous Organic NESHAP (HON)—Synthetic Organic Chemical Manufacturing Industry (SOCMI) X X G HON—SOCMI Process Vents, Storage Vessels, Transfer Operations and Wastewater X X H HON—Equipment Leaks X X I HON—Certain Processes Negotiated Equipment Leak Regulation X X J Polyvinyl Chloride and Copolymers Production (4) (4) K (Reserved) L Coke Oven Batteries X X M Perchloroethylene Dry Cleaning X X N Chromium Electroplating and Chromium Anodizing Tanks X X O Ethylene Oxide Sterilizers X X P (Reserved) Q Industrial Process Cooling Towers X X R Gasoline Distribution X X S Pulp and Paper Industry X X T Halogenated Solvent Cleaning X X U Group I Polymers and Resins X X V (Reserved) W Epoxy Resins Production and Non-Nylon Polyamides Production X X X Secondary Lead Smelting X X Y Marine Tank Vessel Loading X X Z (Reserved) AA Phosphoric Acid Manufacturing Plants X X BB Phosphate Fertilizers Production Plants X X CC Petroleum Refineries X X DD Off-Site Waste and Recovery Operations X X EE Magnetic Tape Manufacturing X X FF (Reserved) GG Aerospace Manufacturing and Rework Facilities X X HH Oil and Natural Gas Production Facilities X X II Shipbuilding and Ship Repair Facilities X X JJ Wood Furniture Manufacturing Operations X X KK Printing and Publishing Industry X X LL Primary Aluminum Reduction Plants X X MM Chemical Recovery Combustion Sources at Kraft, Soda, Sulfide, and Stand-Alone Semichemical Pulp Mills X X NN Wool Fiberglass Manufacturing Area Sources X OO Tanks-Level 1 X X PP Containers X X QQ Surface Impoundments X X RR Individual Drain Systems X X SS Closed Vent Systems, Control Devices, Recovery Devices and Routing to a Fuel Gas System or a Process X X TT Equipment Leaks—Control Level 1 X X UU Equipment Leaks—Control Level 2 Standards X X VV Oil-Water Separators and Organic-Water Separators X X WW Storage Vessels (Tanks)—Control Level 2 X X XX Ethylene Manufacturing Process Units Heat Exchange Systems and Waste Operations X X YY Generic Maximum Achievable Control Technology Standards X X ZZ-BBB (Reserved) CCC Steel Pickling—HCI Process Facilities and Hydrochloric Acid Regeneration X X DDD Mineral Wool Production X X EEE Hazardous Waste Combustors X X FFF (Reserved) GGG Pharmaceuticals Production X X HHH Natural Gas Transmission and Storage Facilities X X III Flexible Polyurethane Foam Production X X JJJ Group IV Polymers and Resins X X KKK (Reserved) LLL Portland Cement Manufacturing X X MMM Pesticide Active Ingredient Production X X NNN Wool Fiberglass Manufacturing X X OOO Amino/Phenolic Resins X X PPP Polyether Polyols Production X X QQQ Primary Copper Smelting X X RRR Secondary Aluminum Production X X SSS (Reserved) TTT Primary Lead Smelting X X UUU Petroleum Refineries—Catalytic Cracking Units, Catalytic Reforming Units and Sulfur Recovery Plants X X VVV Publicly Owned Treatment Works (POTW) X X WWW (Reserved) XXX Ferroalloys Production: Ferromanganese and Silicomanganese X X AAAA Municipal Solid Waste Landfills X X CCCC Nutritional Yeast Manufacturing X X DDDD Plywood and Composite Wood Products X 5 X 5 EEEE Organic Liquids Distribution X X FFFF Misc. Organic Chemical Production and Processes (MON) X X GGGG Solvent Extraction for Vegetable Oil Production X X HHHH Wet Formed Fiberglass Mat Production X X IIII Auto & Light Duty Truck (Surface Coating) X X JJJJ Paper and other Web (Surface Coating) X X KKKK Metal Can (Surface Coating) X X MMMM Misc. Metal Parts and Products (Surface Coating) X X NNNN Surface Coating of Large Appliances X X OOOO Fabric Printing Coating and Dyeing X X PPPP Plastic Parts (Surface Coating) X X QQQQ Surface Coating of Wood Building Products X X RRRR Surface Coating of Metal Furniture X X SSSS Surface Coating for Metal Coil X X TTTT Leather Finishing Operations X X UUUU Cellulose Production Manufacture X X VVVV Boat Manufacturing X X WWWW Reinforced Plastic Composites Production X X XXXX Rubber Tire Manufacturing X X YYYY Combustion Turbines X X ZZZZ Reciprocating Internal Combustion Engines (RICE) X X AAAAA Lime Manufacturing Plants X X BBBBB Semiconductor Manufacturing X X CCCCC Coke Ovens: Pushing, Quenching and Battery Stacks X X DDDDD Industrial/Commercial/Institutional Boilers and Process Heaters X 6 X 6 EEEEE Iron Foundries X X FFFFF Integrated Iron and Steel X X GGGGG Site Remediation X X HHHHH Miscellaneous Coating Manufacturing X X IIIII Mercury Cell Chlor-Alkali Plants X X JJJJJ Brick and Structural Clay Products Manufacturing X 7 (7) KKKKK Clay Ceramics Manufacturing X 7 (7) LLLLL Asphalt Roofing and Processing X X MMMMM Flexible Polyurethane Foam Fabrication Operation X X NNNNN Hydrochloric Acid Production, Fumed Silica Production X X OOOOO (Reserved) PPPPP Engine Test Facilities X X QQQQQ Friction Products Manufacturing X X RRRRR Taconite Iron Ore Processing X X SSSSS Refractory Products Manufacture X X TTTTT Primary Magnesium Refining X X UUUUU Coal and Oil-Fired Electric Utility Steam Generating Units X 8 X 8 VVVVV (Reserved) WWWWW Hospital Ethylene Oxide Sterilizers X X XXXXX (Reserved) YYYYY Electric Arc Furnace Steelmaking Area Sources X X ZZZZZ Iron and Steel Foundries Area Sources X X AAAAAA (Reserved) BBBBBB Gasoline Distribution Bulk Terminals, Bulk Plants, and Pipeline Facilities X X CCCCCC Gasoline Dispensing Facilities X X DDDDDD Polyvinyl Chloride and Copolymers Production Area Sources X X EEEEEE Primary Copper Smelting Area Sources X X FFFFFF Secondary Copper Smelting Area Sources X X GGGGGG Primary Nonferrous Metals Area Source: Zinc, Cadmium, and Beryllium X X HHHHHH Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources X X IIIIII (Reserved) JJJJJJ Industrial, Commercial, and Institutional Boilers Area Sources X X KKKKKK (Reserved) LLLLLL Acrylic and Modacrylic Fibers Production Area Sources X X MMMMMM Carbon Black Production Area Sources X X NNNNNN Chemical Manufacturing Area Sources: Chromium Compounds X X OOOOOO Flexible Polyurethane Foam Production and Fabrication Area Sources X X PPPPPP Lead Acid Battery Manufacturing Area Sources X X QQQQQQ Wood Preserving Area Sources X X RRRRRR Clay Ceramics Manufacturing Area Sources X X SSSSSS Glass Manufacturing Area Sources X X TTTTTT Secondary Nonferrous Metals Processing Area Sources X X UUUUUU (Reserved) VVVVVV Chemical Manufacturing Area Sources X X WWWWWW Plating and Polishing Operations Area Sources X X XXXXXX Metal Fabrication and Finishing Area Sources X X YYYYYY Ferroalloys Production Facilities Area Sources X X ZZZZZZ Aluminum, Copper, and Other Nonferrous Foundries Area Sources X X AAAAAAA Asphalt Processing and Asphalt Roofing Manufacturing Area Sources X X BBBBBBB Chemical Preparation Industry Area Sources X X CCCCCCC Paints and Allied Products Manufacturing Area Sources X X DDDDDDD Prepared Feeds Areas Sources X X EEEEEEE Gold Mine Ore Processing and Production Area Sources X X FFFFFFF-GGGGGGG (Reserved) HHHHHHH Polyvinyl Chloride and Copolymers Production Major Sources X X 1 Authorities which may not be delegated include: § 63.6(g), Approval of Alternative Non-Opacity Emission Standards; § 63.6(h)(9), Approval of Alternative Opacity Standards; § 63.7(e)(2)(ii) and (f), Approval of Major Alternatives to Test Methods; § 63.8(f), Approval of Major Alternatives to Monitoring; § 63.10(f), Approval of Major Alternatives to Recordkeeping and Reporting; and all authorities identified in the subparts (e.g., under “Delegation of Authority”) that cannot be delegated. 2 Program delegated to New Mexico Environment Department (NMED) for standards promulgated by the EPA, as amended in the Federal Register through January 15, 2017. 3 Program delegated to Albuquerque-Bernalillo County Air Quality Control Board (ABCAQCB) for standards promulgated by the EPA, as amended in the Federal Register through September 13, 2013. 4 The NMED was previously delegated this subpart on February 9, 2004. The ABCAQCB has adopted the subpart unchanged and applied for delegation of the standard. The subpart was vacated and remanded to the EPA by the United States Court of Appeals for the District of Columbia Circuit. See, Mossville Environmental Action Network v. EPA, 370 F. 3d 1232 (D.C. Cir. 2004). Because of the D.C. Court's holding this subpart is not delegated to NMED or ABCAQCB at this time. 5 This subpart was issued a partial vacatur by the United States Court of Appeals for the District of Columbia Circuit. See the Federal Register of October 29, 2007. 6 Final rule. See the Federal Register of March 21, 2011, as amended at January 31, 2013; November 20, 2015. 7 Final promulgated rule adopted by the EPA. See the Federal Register of October 26, 2015. Note that subpart KKKKK was amended to correct minor typographical errors. See the Federal Register of December 4, 2015. Note that the ABCAQCB has not yet applied for updated delegation of these standards. 8 Final Rule. See the Federal Register of February 16, 2012, as amended April 6, 2016. Final Supplemental Finding that it is appropriate and necessary to regulate HAP emissions from Coal- and Oil-fired EUSGU Units. See the Federal Register of April 25, 2016.
    [FR Doc. 2018-07325 Filed 4-12-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2017-0169; FRL-9975-76] Fluensulfone; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of fluensulfone in or on multiple commodities that are identified and discussed later in this document. Makhteshim Agan of North America (MANA) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective April 13, 2018. Objections and requests for hearings must be received on or before June 12, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2017-0169, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 308-8157; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

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

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

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

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0169 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before June 12, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0169, by one of the following methods:

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

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

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

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

    II. Summary of Petitioned-For Tolerance

    In the Federal Register of September 15, 2017 (82 FR 43352) (FRL-9965-43), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 6F8538) by Makhteshim Agan of North America (MANA) (d/b/a ADAMA), 3120 Highlands Blvd., Suite 100, Raleigh, NC 27604. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the nematicide fluensulfone, in or on fruit, pome, crop group 11-10 at 0.3 parts per million (ppm); fruit, stone crop group 12-12 at 0.06 ppm; small fruit vine climbing subgroup 13-07D at 0.5 ppm; grape, raisin at 0.8 ppm; nut, tree, crop group 14-12 at 0.02 ppm; almond, hulls at 3.0 ppm; sugarcane at 0.03 ppm; sugarcane and molasses at 0.2 ppm, and for inadvertent residues of fluensulfone, in or on (10-month plant-back interval): Grain, cereal, crop group 15 at 0.03 ppm; forage, fodder and straw of cereal grains, crop group 16 at 2 ppm; (90-day plant-back interval): Wheat, grain at 0.06 ppm; barley, grain at 0.06 ppm; buckwheat, grain at 0.06 ppm; oat, grain at 0.06 ppm; teosinte, grain at 0.06 ppm; wheat, bran at 0.10 ppm; barley, bran at 0.10 ppm; wheat, middlings at 0.07 ppm; wheat, shorts at 0.08 ppm; wheat, germ at 0.07 ppm; wheat, straw at 4 ppm; barley, straw at 4 ppm; oat, straw at 4 ppm; wheat, forage at 4 ppm; oat, forage at 4 ppm; wheat, hay at 8 ppm; barley hay at 8 ppm; and oat, hay at 8 ppm. That document referenced a summary of the petition prepared by MANA, the registrant, which is available in the docket, http://www.regulations.gov. A comment was received on the notice of filing. EPA's response to this comment is discussed in Unit IV.C.

    Based upon review of the data supporting the petition, EPA has modified the levels at which tolerances are being established in most commodities. The reasons for these changes are explained in Unit IV.D.

    III. Aggregate Risk Assessment and Determination of Safety

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

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

    A. Toxicological Profile

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

    The residue of concern for dietary assessment is the parent compound, fluensulfone. Residues of the metabolites butene sulfonic acid (BSA) and thiazole sulfonic acid (TSA) occur at levels significantly greater than fluensulfone; however, these metabolites are considered non-toxic at levels that may occur from the use of fluensulfone. Based on the available data addressing toxicity of the BSA and TSA metabolites, the Agency has determined that they are not of toxicological concern.

    Exposure to fluensulfone results in effects on the hematopoietic system (decreased platelets, increased white blood cells, hematocrit, and reticulocytes), kidneys, and lungs. Body weight and clinical chemistry changes were observed across multiple studies and species. Evidence of qualitative increased susceptibility of infants and children to the effects of fluensulfone was observed in the 2-generation reproduction study in rats, wherein pup death was observed at a dose that resulted in decreased body weight in the dams. There was no evidence of either qualitative or quantitative susceptibility in developmental toxicity studies in rats or rabbits. The most sensitive endpoints for assessing safety of aggregate exposures to fluensulfone under the FFDCA are the increased pup-loss effects for acute dietary exposure; and body weight, hematological and clinical chemistry changes for chronic dietary as well as short/intermediate term dermal exposures. Decreased locomotor activity in females, and decreased spontaneous activity, decreased rearing, and impaired righting response in both sexes were observed in the acute neurotoxicity study at the lowest dose tested. No other evidence for neurotoxicity was observed in the other studies in the toxicity database, including a subchronic neurotoxicity study. The doses and endpoints chosen for risk assessment are all protective of the effects seen in the acute neurotoxicity study. A developmental neurotoxicity study is not required.

    Although the mouse carcinogenicity study showed an association with alveolar/bronchiolar adenomas and carcinomas in the female, EPA has determined that quantification of risk using the chronic reference dose (RfD) will account for all chronic toxicity, including carcinogenicity, that could result from exposure to fluensulfone and its metabolites. That conclusion is based on the following considerations: (1) The tumors occurred in only one sex in one species. (2) no carcinogenic response was seen in either sex in the rat. (3) the tumors in the mouse study were observed at a dose that is almost 13 times higher than the dose chosen for risk assessment. (4) fluensulfone and its metabolites are not mutagenic.

    Specific information on the studies received and the nature of the adverse effects caused by fluensulfone as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document “Fluensulfone—Aggregate Human Health Risk Assessment in Support of Section 3 Registration of New Uses (Sugarcane, Small Vine Climbing Fruits, Pome Fruits, Stone Fruits, and Tree Nuts), Rotational Crop Tolerances, and Label Amendments” on pages 37-50 in docket ID number EPA-HQ-OPP-2017-0169.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm. A summary of the toxicological endpoints for fluensulfone used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of June 1, 2016 (81 FR 34898) (FRL-9946-07).

    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to fluensulfone, EPA considered exposure under the petitioned-for tolerances as well as all existing fluensulfone tolerances in 40 CFR 180.680. EPA assessed dietary exposures from fluensulfone in food as follows:

    i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

    Such effects were identified for fluensulfone. In estimating acute dietary exposure, EPA used 2003-2008 food consumption information from the United States Department of Agriculture (USDA) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, the acute dietary risk assumed tolerance-equivalent residues and 100 percent crop treated (PCT).

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used 2003-2008 food consumption information from the USDA's NHANES/WWEIA. As to residue levels in food, the chronic dietary risk assumed tolerance-equivalent residues and 100 PCT.

    iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that a nonlinear RfD approach is appropriate for assessing cancer risk to fluensulfone. Cancer risk was assessed using the same exposure estimates as discussed in Unit III.C.1.ii., chronic exposure.

    iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue or PCT information in the dietary assessment for fluensulfone. Tolerance-equivalent residue levels and 100% CT were assumed for all food commodities.

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

    Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Pesticide Root Zone Model Ground Water (PRZM GW) models, the estimated drinking water concentrations (EDWCs) for acute exposures are estimated to be 11.8 parts per billion (ppb) for surface water and 77.6 ppb for ground water and for chronic exposures are estimated to be 0.173 ppb for surface water and 52.5 ppb for ground water. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For the acute dietary risk assessment, the water concentration value of 77.6 ppb was used to assess the contribution to drinking water. For the chronic dietary risk assessment, the water concentration of value 52.5 ppb was used to assess the contribution to drinking water.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

    No residential handler exposure for fluensulfone is expected because the products are not intended for homeowner use. The product label requires that handlers wear specific clothing (e.g., long sleeve shirt/long pants) and/or personal protective equipment (PPE). The Agency has made the assumption that the product is not for homeowner use and is intended for use by professional applicators. As a result, a residential handler assessment has not been conducted.

    For adult residential post-application exposure, the Agency evaluated dermal post application exposure only to outdoor turf/lawn applications (high contact activities). The Agency also evaluated residential post-application exposure for children via dermal and hand-to-mouth routes of exposure, resulting from treated outdoor turf/lawn applications (high contact activities). Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticidescience-and-assessing-pesticide-risks/standard-operating-proceduresresidential-pesticide.

    4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” EPA has not found fluensulfone to share a common mechanism of toxicity with any other substances, and fluensulfone does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that fluensulfone does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www2.epa.gov/pesticide-science-andassessing-pesticide-risks/cumulativeassessment-risk-pesticides.

    D. Safety Factor for Infants and Children

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

    2. Prenatal and postnatal sensitivity. No evidence of increased quantitative or qualitative susceptibility was seen in developmental toxicity studies in rats and rabbits. Fetal effects in those studies occurred in the presence of maternal toxicity and were not considered more severe than the maternal effects. However, there was evidence of increased qualitative, but not quantitative, susceptibility of pups in the 2-generation reproduction study in rats. Maternal effects observed in that study were decreased body weight and body weight gain; at the same dose, effects in offspring were decreased pup weights, decreased spleen weight, and increased pup loss (post-natal day 1-4). Although there is evidence of increased qualitative susceptibility in the 2-generation reproduction study in rats, there are no residual uncertainties with regard to pre- and post-natal toxicity following in utero exposure to rats or rabbits and pre- and post-natal exposures to rats. Considering the overall toxicity profile, the clear NOAEL for the pup effects observed in the 2-generation reproduction study, and that the doses selected for risk assessment are protective of all effects in the toxicity database including the offspring effects, the degree of concern for the susceptibility is low.

    3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1x. That decision is based on the following findings:

    i. The toxicity database for fluensulfone is complete.

    ii. Evidence of potential neurotoxicity was only seen following acute exposure to fluensulfone and the current PODs chosen for risk assessment are protective of the effects observed. There is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

    iii. There is no indication of quantitative susceptibility in the developmental and reproductive toxicity studies, and there are no residual uncertainties concerning pre- or post-natal toxicity. In addition, the endpoints and doses chosen for risk assessment are protective of the qualitative susceptibility observed in the 2-generation reproduction study.

    iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance equivalent-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to fluensulfone in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by fluensulfone.

    E. Aggregate Risks and Determination of Safety

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

    1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to fluensulfone will occupy 9.4% of the aPAD for all infants less than 1 year old, the population group receiving the greatest exposure.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to fluensulfone from food and water will utilize 4.1% of the cPAD for all infants less than 1 year old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of fluensulfone is not expected.

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

    Fluensulfone is currently registered for uses that could result in short-term post-application residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to fluensulfone.

    Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 5,600 adults and 2,800 for children. Because EPA's level of concern for fluensulfone is a MOE of 100 or below, these MOEs are not of concern.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

    An intermediate-term adverse effect was identified; however, fluensulfone is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for fluensulfone.

    5. Aggregate cancer risk for U.S. population. EPA assessed cancer risk using a non-linear approach (i.e., RfD) since it adequately accounts for all chronic toxicity, including carcinogenicity, that could result from exposure to fluensulfone. As the chronic dietary endpoint and dose are protective of potential cancer effects, fluensulfone is not expected to pose an aggregate cancer risk.

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

    IV. Other Considerations A. Analytical Enforcement Methodology

    Adequate enforcement methodology (acetonitrile/water (1:1, v/v) extraction and analysis by reverse-phase high performance liquid chromatography mass spectrometry (HPLC-MS/MS)) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected]

    B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established a MRL for fluensulfone for commodities covered by this document.

    C. Response to Comments

    One comment was submitted in response to the September 15, 2017 Notice of Filing. The commenter opposed the petition generally, alleging that there are too many toxic chemicals being used in America without citing any specific human health concerns about fluensulfone itself. The Agency recognizes that some individuals believe that pesticides should be banned on agricultural crops; however, the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA) states that tolerances may be set when persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by that statute. The comment appears to be directed at the underlying statute and not EPA's implementation of it; the citizen has made no contention that EPA has acted in violation of the statutory framework.

    D. Revisions to Petitioned-For Tolerances

    Most of the petitioned-for tolerance levels differ from those being established by the Agency. In its petition, the petitioner stated that the proposed tolerances were derived using the Organization for Economic Cooperation and Development (OECD) MRL calculation procedure; however, the petitioner did not provide the OECD MRL calculator's input or output tables for any of the requested tolerances. When EPA ran the OECD MRL calculation procedure on the requested new use commodities (primary crops) using residue values from the field trials, the results obtained did not agree with any of the petitioned-for tolerances, except in pome fruits group 11-10 and molasses. Therefore, EPA is establishing tolerances that differ from those requested in stone fruits group 12-12, small vine climbing fruits subgroup 13-07D, raisins, tree nuts group 14-12, almond hulls, and sugarcane based on available data and the OECD calculation procedure. In the case of tree nuts group 14-12, EPA is establishing the tolerance in tree nuts at 0.01 ppm (the LOQ) because residues in all samples of almonds and pecans were <0.01 ppm.

    With respect to tolerances for inadvertent residues, the Agency is establishing a tolerance for residues in/on cereal grains (crop group 15) based on data from the representative commodities for that crop group and reflecting the labeled rotational crop plant-back restriction applicable to the crop group as a whole. Separate tolerances for inadvertent residues are being established for barley, buckwheat, oat, and wheat commodities due to a shorter plant-back restriction, specific to those crops, which results in higher residue levels. A separate tolerance was proposed for inadvertent residues in/on teosinte; however, a separate tolerance listing is not necessary since it is a member of crop group 15 and does not have a separate, shorter, plant-back restriction. A tolerance in wheat milled byproducts, the preferred term covering wheat shorts and middlings, is being established at 0.08 ppm, rather than separate tolerances in wheat shorts and wheat middlings.

    Furthermore, EPA's tolerance levels are expressed to provide sufficient precision for enforcement purposes, and this may include the addition of trailing zeros (such as 0.30 ppm rather than 0.3 ppm). This is in order to avoid the situation where rounding of an observed violative residue to the level of precision of the tolerance expression would result in a residue considered non-violative (such as 0.34 ppm being rounded to 0.3 ppm). This revision has been made for pome fruits group 11-10; molasses; forage, fodder and straw of cereal grains group 16; and straw, forage, and hay of wheat, barley and oats.

    V. Conclusion

    Therefore, tolerances are established for residues of fluensulfone, in or on almond, hulls at 4.0 ppm; fruit, pome, group 11-10 at 0.30 ppm; fruit, small, vine climbing, subgroup 13-07D at 0.60 ppm; fruit, stone group 12-12 at 0.07 ppm; grape, raisin at 0.90 ppm; nut, tree, group 14-12 at 0.01 ppm; sugarcane, cane at 0.04 ppm; and sugarcane, molasses at 0.20 ppm. In addition, tolerances for indirect or inadvertent residues of fluensulfone are established in or on barley, bran at 0.10 ppm; barley, grain at 0.06 ppm; barley hay at 8.0 ppm; barley, straw at 4.0 ppm; buckwheat, grain at 0.06 ppm; grain, cereal, forage, fodder and straw, group 16 at 2.0 ppm; grain, cereal, group 15 at 0.03 ppm; oat, forage at 4.0 ppm; oat, grain at 0.06 ppm; oat, hay at 8.0 ppm; oat, straw at 4.0 ppm; wheat, bran at 0.10 ppm; wheat, forage at 4.0 ppm; wheat, germ at 0.07 ppm; wheat, grain at 0.06 ppm; wheat, hay at 8.0 ppm; wheat, milled byproducts at 0.08 ppm; and wheat, straw at 4.0 ppm.

    VI. Statutory and Executive Order Reviews

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

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

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

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

    VII. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

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

    Dated: April 4, 2018. Donna S. Davis, Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

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

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

    2. In § 180.680: a. In the table to paragraph (a), add alphabetically the entries “Almond, hulls”; “Fruit, pome, group 11-10”; “Fruit, small, vine climbing, subgroup 13-07D”; “Fruit, stone, group 12-12”; “Grape, raisin”; “Nut, tree, group 14-12”; “Sugarcane, cane”; and “Sugarcane, molasses”. b. Revise paragraph (d).

    The additions and revisions read as follows:

    § 180.680 Fluensulfone; tolerances for residues.

    (a) * * *

    Commodity Parts
  • per
  • million
  • Almond, hulls 4.0 *    *    *    *    * Fruit, pome, group 11-10 0.30 Fruit, small, vine climbing, subgroup 13-07D 0.60 Fruit, stone, group 12-12 0.07 Grape, raisin 0.90 Nut, tree, group 14-12 0.01 *    *    *    *    * Sugarcane, cane 0.04 Sugarcane, molasses 0.20 *    *    *    *    *

    (d) Indirect or inadvertent residues. Tolerances are established for residues of the nematicide fluensulfone, including its metabolites and degradates, in or on the commodities in the table below. Compliance with the tolerance levels specified below is to be determined by measuring only 3,4,4-trifluoro-but-3-ene-1-sulfonic acid.

    Commodity Parts
  • per
  • million
  • Barley, bran 0.10 Barley, grain 0.06 Barley, hay 8.0 Barley, straw 4.0 Buckwheat, grain 0.06 Grain, cereal, forage, fodder and straw, group 16 2.0 Grain, cereal, group 15 0.03 Oat, forage 4.0 Oat, grain 0.06 Oat, hay 8.0 Oat, straw 4.0 Wheat, bran 0.10 Wheat, forage 4.0 Wheat, germ 0.07 Wheat, grain 0.06 Wheat, hay 8.0 Wheat, milled byproducts 0.08 Wheat, straw 4.0
    [FR Doc. 2018-07739 Filed 4-12-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2017-0072; FRL-9975-77] Sulfentrazone; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of sulfentrazone in or on multiple commodities which are identified and discussed later in this document. Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective April 13, 2018. Objections and requests for hearings must be received on or before June 12, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2017-0072, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

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

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

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

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0072 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before June 12, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0072, by one of the following methods:

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

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

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

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

    II. Summary of Petitioned-For Tolerance

    In the Federal Register of June 8, 2017 (82 FR 26641) (FRL-9961-14), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 6E8532) by IR-4, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201-W, Princeton, NJ 08540. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the herbicide sulfentrazone in or on Chia, dry seed at 0.15 parts per million (ppm); Teff, forage at 0.50 ppm; Teff, grain at 0.15 ppm; Teff, hay at 0.30 ppm; Teff, straw at 1.5 ppm; Stalk and stem vegetable subgroup 22A at 0.15 ppm; Vegetable, brassica, head and stem, group 5-16 at 0.20 ppm; Brassica, leafy greens, subgroup 4-16B at 0.60 ppm; and Nut, tree, group 14-12 at 0.15 ppm. The petition also requested to remove the tolerances for Asparagus at 0.15 ppm; Brassica, head and stem, subgroup 5A at 0.20 ppm; Brassica, leafy greens, subgroup 5B at 0.40 ppm; Nut, tree, group 14 at 0.15 ppm; Pistachio at 0.15 ppm; and Turnip, tops at 0.60 ppm. That document referenced a summary of the petition prepared by FMC, the registrant, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

    III. Aggregate Risk Assessment and Determination of Safety

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

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

    A. Toxicological Profile

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

    Subchronic and chronic toxicity studies in rats, mice, and dogs identified the hematopoietic system as the target of sulfentrazone. Sulfentrazone inhibits the enzyme protoporphyrinogen oxidase (PPO) in target plants, and the results of subchronic and chronic toxicity studies in mammalian systems are consistent with PPO inhibition. Disruption of heme biosynthesis was indicated by signs of anemia, and decreases in hematocrit (Hct), hemoglobin (HGB), and mean corpuscular volume (MCV) in mice, rats, and dogs at comparable dose levels from short- through long-term exposures without a significant increase in severity.

    Sulfentrazone caused developmental effects when administered via the oral (rats and rabbits) and dermal (rat only) routes of exposure. Developmental effects in rats and rabbits consisted of reductions in the number of implantations in rats, and increases in early resorptions and reduction in live fetuses per litter in rats and rabbits. Surviving rat fetuses exhibited reduced/delayed skeletal ossifications, and decreased fetal body weights. Developmental effects in rats were seen in the absence of maternal toxicity. In contrast with the rat studies, developmental effects in rabbits were observed at a maternally toxic dose, where clinical signs of toxicity included hematuria (red blood cells in urine), abortions, and decreased body-weight gains. In the 2-generation reproductive toxicity study in rats, developmental effects included an increased duration of gestation, reduced prenatal viability (fetal and litter), reduced litter size, and an increased number of stillborn pups. Pup body-weight deficits, along with reduced pup and litter postnatal survival, were also observed. All of the offspring effects were reported in the presence of mild maternal toxicity (decreased body weight and body-weight gain, particularly in F1 females).

    No systemic toxicity was seen via the dermal route up to the limit dose in a 28-day dermal toxicity study in adult non-pregnant rabbits. In a dermal developmental study in rats, there was an increased quantitative fetal susceptibility. While no maternal effects were observed up to the highest dose tested, fetal effects were observed at this dose, and consisted of decreased body weights, increased incidences of fetal variations, hypoplastic or wavy ribs, incompletely ossified lumbar vertebral arches, incompletely ossified ischia or pubis, and a reduced number of thoracic vertebral and rib ossification sites.

    In the 26-day inhalation toxicity study, effects that were considered treatment related and adverse occurred only at the highest concentration tested. Systemic effects at this concentration consisted of significant reductions in red blood cell (RBC) parameters in both sexes. Portal-of-entry effects in this study consisted of an increased incidence of minimal nasal respiratory epithelial hyperplasia in both sexes as well as minimal laryngeal epithelial attenuation in all test material exposure groups. The effects on hematological parameters were reversible after 28 days of recovery, while the nasal injury persisted.

    In an acute neurotoxicity (ACN) study in rats, effects consisted of an increased incidence of clinical signs of toxicity (staggered gait, splayed hind limbs, and abdominal gripping), changes in functional-observation battery (FOB) parameters, and decreased motor activity at a high dose level. Complete recovery was observed by day 14, and there was no evidence of neuropathology. In a rat subchronic neurotoxicity (SCN) study, clinical signs of toxicity, increased motor activity, and/or decreased body weights, body-weight gain, and food consumption were also observed with no evidence of neuropathology. A published, non-guideline developmental toxicity study in the rat did not conclusively demonstrate developmental neurotoxicity and contained several shortcomings that limit its use for regulatory purposes, including the lack of a no-observed-adverse-effect-level (NOAEL) (DeCastro VL, Destefani CR, Diniz C, Poli P., 2007, Evaluation of neurodevelopmental effects on rats exposed prenatally to sulfentrazone. Neurotoxicology 28(6):1249-59). The reported effects involving measures of physical and reflex development are likely secondary effects reflective of the poor general state of the offspring as reported in the rat two-generation reproductive toxicity study at similar dose levels but with a well-defined NOAEL.

    In the 28-day rat immunotoxicity study, there were no effects on the immune system and systemic effects consisted of reduced body weight, and increased absolute and relative spleen weights at the highest dose tested. Carcinogenicity studies in rats and mice showed no evidence of increased incidence of tumor formation due to treatment with sulfentrazone, and the EPA has classified sulfentrazone as not likely to be carcinogenic to humans. The available mutagenicity studies indicate that sulfentrazone is weakly clastogenic in the in vitro mouse lymphoma assay in the absence of S9 activation. There is no evidence that sulfentrazone is mutagenic in bacterial cells or clastogenic in male or female mice in vivo.

    Specific information on the studies received and the nature of the adverse effects caused by sulfentrazone as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document titled Sulfentrazone—Human Health Risk Assessment for a Section 3 Registration Request to Add New Uses on Chia and Teff; an Amended Use on Mint; and Crop Group Conversions for Tree Nut Group 14-12, Stalk and Stem Vegetable Subgroup 22A; Vegetable, Brassica, Head and Stem, Group 5-16; and Brassica, Leafy Greens, Subgroup 4-16B on pages 26-31 in docket ID number EPA-HQ-OPP-2017-0072.

    B. Toxicological Points of Departure/Levels of Concern

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

    A summary of the toxicological endpoints for sulfentrazone used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of September 12, 2014 (79 FR 54620) (FRL-9915-47).

    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to sulfentrazone, EPA considered exposure under the petitioned-for tolerances as well as all existing sulfentrazone tolerances in 40 CFR 180.498. EPA assessed dietary exposures from sulfentrazone in food as follows:

    i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for sulfentrazone and EPA performed separate acute risk assessments for females 13 to 49 years old and for the general population, including infants and children, based on different endpoints and acute population-adjusted doses (aPADs). In estimating acute dietary exposures, EPA used the Dietary Exposure Evaluation Model, Food Consumption Intake Database (DEEM-FCID, ver. 3.16), which incorporates consumption data from United States Department of Agriculture (USDA) National Health and Nutrition Examination Survey, What We Eat in America, NHANES/WWEIA; 2003-2008). As to residue levels in food, EPA assumed tolerance-level residues, 100 percent crop treated (PCT), and DEEM (ver. 7.81) default processing factors.

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment, EPA used DEEM-FCID, ver. 3.16, which incorporated consumption data from the USDA's NHANES/WWEIA; 2003-2008. As to residue levels in food, EPA assumed tolerance-level residues, 100 PCT, and DEEM (ver. 7.81) default processing factors.

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

    iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue or PCT information in the dietary assessment for sulfentrazone. Tolerance-level residues and 100 PCT were assumed for all food commodities.

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

    Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of sulfentrazone for acute exposures are estimated to be 37.3 parts per billion (ppb) for surface water and 134 ppb for ground water; and for chronic exposures for non-cancer assessments are estimated to be 5.3 ppb for surface water and 98 ppb for ground water.

    Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For the acute dietary risk assessment, the water concentration value of 134 ppb was used to assess the contribution to drinking water. For the chronic dietary risk assessment, the water concentration of value 98 ppb was used to assess the contribution to drinking water.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

    Sulfentrazone is currently registered for the following uses that could result in residential exposures: Residential home lawns/turf and recreational turf, such as golf courses. EPA assessed residential exposures using the following assumptions: Adults were assessed for potential short-term dermal and inhalation handler exposures from applying sulfentrazone to residential turf/home lawns and for short-term post-application dermal exposure from contact with treated residential and recreational turf.

    Children, ages 11 < 16 years old and 6 < 11 years old, were assessed for post-application dermal exposure from contact with treated residential and recreational turf (home lawns and golf courses). Children, ages 1 < 2 years old, were assessed for post-application short-term dermal and incidental oral exposures (hand-to-mouth, object-to-mouth, and episodic ingestion of granules), as well as short-term incidental oral soil ingestion scenarios from contact with residential turf/home lawns.

    The recommended adult residential exposure scenario for use in the aggregate assessment reflects short-term dermal exposure from applications to turf via backpack sprayer. The recommended residential exposure scenario for use in the combined short-term aggregate assessment for children ages 1 < 2 years old reflects dermal and hand-to-mouth exposures from post-application exposure to turf applications. This combination should be considered a protective estimate of children's exposure to pesticides used on turf since the incidental oral scenarios are considered inter-related, likely occurring interspersed amongst each other across time; therefore, combining these scenarios would be overly conservative because of the conservative nature of each individual assessment. Further, this scenario is considered protective of potential post-application exposures to children, ages 6 < 11 and 11 < 16 years old, as children 1-2 years old represent the population subgroup for children with the greatest exposure, and is therefore considered protective of other children population subgroups. Intermediate-term exposure is not expected.

    Chronic exposures are not expected and were not assessed. Finally, residential handler and/or post-application inhalation risk estimates were not combined with dermal or oral risk estimates in the aggregate risk assessment since the toxicological effects in the inhalation toxicological study were portal-of-entry and were different from those seen in the dermal and oral toxicological studies. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

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

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

    D. Safety Factor for Infants and Children

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

    2. Prenatal and postnatal sensitivity. There is evidence of increased quantitative susceptibility following in utero exposure in the oral and dermal rat developmental toxicity studies. Developmental effects, including decreased fetal body weights and reduced/delayed skeletal ossifications, were observed at doses that were not maternally toxic. In the 2-generation reproduction study in rats, offspring effects such as decreased body weights and decreased litter survival were observed at a slightly maternally toxic dose (slightly decreased body-weight gain), indicating possible slightly increased qualitative susceptibility.

    3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

    i. The toxicity database for sulfentrazone is complete.

    ii. In the ACN and SCN studies, observed effects included changes in motor activity and FOB parameters, clinical signs, and body-weight decrements. There is low concern for neurotoxicity since:

    1. Effects were seen at relatively high doses;

    2. Effects occurred in the absence of neuropathology;

    3. There is no evidence of neurotoxicity in other available studies in the toxicity database;

    4. Effects are well-characterized with clearly established NOAEL/LOAEL values; and

    5. The selected PODs are protective of these effects.

    iii. There was evidence for increased quantitative susceptibility following oral and dermal exposures in the developmental toxicity studies in rats. Although developmental toxicity was observed at lower doses than maternal toxicity in both studies in the rat, the concern is low based on the following considerations:

    1. The toxicology database for assessing pre- and postnatal susceptibility is complete;

    2. There are clear NOAELs and LOAELs for the developmental effects observed via both the oral and dermal routes;

    3. The PODs used for assessing dietary and dermal exposure risks are based on developmental and/or offspring toxicity;

    4. The portal-of-entry effects seen in the 26-day inhalation study are protective of the developmental toxicity; and

    5. There are no residual uncertainties for pre- and/or postnatal toxicity.

    iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to sulfentrazone in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by sulfentrazone.

    E. Aggregate Risks and Determination of Safety

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

    1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to sulfentrazone will occupy 1.1% of the aPAD for all infants less than 1-year-old and 6.7% of the aPAD for females 13-49 years old, the population groups receiving the greatest exposure.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to sulfentrazone from food and water will utilize 7.0% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of sulfentrazone is not expected.

    3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Sulfentrazone is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to sulfentrazone. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in an aggregate MOE of 490 for adults. Because EPA's level of concern for sulfentrazone is a MOE of 100 or below, this MOE is not of concern.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). An intermediate-term adverse effect was identified; however, sulfentrazone is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for sulfentrazone.

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

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

    IV. Other Considerations A. Analytical Enforcement Methodology

    Adequate enforcement methodology, gas chromatography (GC), is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected]

    B. International Residue Limits

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

    No Codex MRLs have been established for sulfentrazone on the crops cited in this document.

    C. Response to Comments

    Two comments were received in response to the notice of filing. One was against the establishment of any tolerances for sulfentrazone and the other stated “deny this application to change the tolerance on this product.”

    Although the Agency recognizes that some individuals believe that pesticides should be banned on agricultural crops, the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA) authorizes EPA to establish tolerances when it determines that the tolerance is safe. Upon consideration of the validity, completeness, and reliability of the available data as well as other factors the FFDCA requires EPA to consider, EPA has determined that these sulfentrazone tolerances are safe. The commenters have provided no information supporting a contrary conclusion.

    V. Conclusion

    Therefore, tolerances are established for residues of sulfentrazone in or on Brassica, leafy greens, subgroup 4-16B at 0.60 ppm; chia, seed at 0.15 ppm; nut, tree, group 14-12 at 0.15 ppm; stalk and stem vegetable subgroup 22A at 0.15 ppm; teff, forage at 0.50 ppm; teff, grain at 0.15 ppm; teff, hay at 0.30 ppm; teff, straw at 1.5 ppm; and vegetable, Brassica, head and stem, group 5-16 at 0.20 ppm. In addition, the following existing tolerances are removed as unnecessary since they are superseded by the new tolerances: asparagus; Brassica, head and stem, subgroup 5A; Brassica, leafy greens, subgroup 5B; nut, tree, group 14; pistachio; and turnip, tops.

    VI. Statutory and Executive Order Reviews

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

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

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

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

    VII. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

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

    Dated: April 3, 2018. Michael Goodis, Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

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

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

    2. In § 180.498, in the table in paragraph (a)(2): i. Remove the entries “Asparagus”; “Brassica, head and stem, subgroup 5A”; and “Brassica, leafy greens, subgroup 5B”. ii. Add alphabetically the entries “Brassica, leafy greens, subgroup 4-16B” and “Chia, seed”. iii. Remove the entry “Nut, tree, group 14”. iv. Add alphabetically the entry “Nut, tree, group 14-12”. v. Remove the entry “Pistachio”. vi. Add alphabetically the entries “Stalk and stem vegetable subgroup 22A”; “Teff, forage”; “Teff, grain”; “Teff, hay”; and “Teff, straw”. vii. Remove the entry “Turnip, tops”. viii. Add alphabetically the entry “Vegetable, Brassica, head and stem, group 5-16”.

    The additions read as follows:

    § 180.498 Sulfentrazone; tolerances for residues.

    (a) * * *

    (2) * * *

    Commodity Parts
  • per
  • million
  • *    *    *    *    * Brassica, leafy greens, subgroup 4-16B 0.60 Chia, seed 0.15 *    *    *    *    * Nut, tree, group 14-12 0.15 *    *    *    *    * Stalk and stem vegetable subgroup 22A 0.15 *    *    *    *    * Teff, forage 0.50 Teff, grain 0.15 Teff, hay 0.30 Teff, straw 1.5 *    *    *    *    * Vegetable, Brassica, head and stem, group 5-16 0.20 *    *    *    *    *
    [FR Doc. 2018-07740 Filed 4-12-18; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 54 [WC Docket Nos. 10-90, 14-58, 14-259, AU Docket No. 17-182; FCC 18-5] Connect America Fund, ETC Annual Reports and Certifications, Rural Broadband Experiments, Connect America Fund Phase II Auction AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document, the Commission considers the remaining issues raised by parties challenging the Commission's orders implementing the Connect America Phase II (Phase II) auction (Auction 903). Specifically, the Commission resolves petitions challenging the Commission's decisions on the following issues: How to compare bids of different performance levels, standalone voice requirements, Phase II auction deployment and eligibility, and state-specific bidding weights, among other matters. The Commission also adopts a process by which a support recipient that sufficiently demonstrates that it cannot identify enough actual locations on the ground to meet its Phase II obligations can have its total state location obligation adjusted and its support reduced on a pro rata basis. Lastly, the Commission modifies the Commission's letter of credit rules to provide some additional relief for Phase II auction recipients by reducing the costs of maintaining a letter of credit.

    DATES:

    This rule is effective May 14, 2018, except for the amendment to 47 CFR 54.315(c)(1)(ii), which requires approval by the Office of Management and Budget (OMB). The Commission will publish a document in the Federal Register announcing approval of the information collection requirement and the date the amendment will become effective. For more information, see SUPPLEMENTARY INFORMATION.

    FOR FURTHER INFORMATION CONTACT:

    Alexander Minard, Wireline Competition Bureau, (202) 418-7400 or TTY: (202) 418-0484.

    SUPPLEMENTARY INFORMATION:

    The Commission adopted this Order on Reconsideration on January 30, 2018, and the decisions set forth therein for the Phase II auction, along with all associated requirements also set forth therein and the amendment to the heading of § 54.315 of the Commission's rules, 47 CFR 54.315, go into effect May 14, 2018, except for the new or modified information collection requirements related to the location adjustment process contained in paragraphs 12-14 and the amendment to 47 CFR 54.315(c)(1)(ii), that require approval by the Office of Management and Budget (OMB). The Commission will publish a document in the Federal Register announcing approval of those information collection requirements and the date they will become operative.

    This is a summary of the Commission's Order on Reconsideration in WC Docket Nos. 10-90, 14-58, 14-259, AU Docket No. 17-182; FCC 18-5, adopted on January 30, 2018 and released on January 31, 2018. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW, Washington, DC 20554, or at the following internet address: https://transition.fcc.gov/Daily_Releases/Daily_Business/2018/db0131/FCC-18-5A1.pdf

    I. Order On Reconsideration

    1. Discussion. The Commission declines to reconsider the weights it adopted for bids in the Phase II auction for the varying performance tiers and latency levels. In adopting these weights, which the Commission found to be within a reasonable range of the increments proposed in the record, the Commission appropriately recognized the value of higher-speed and lower-latency services to consumers. The Commission sought to balance its preference for higher-quality services with its objective to use the finite universal service budget effectively. Based on its predictive judgment, the Commission concluded that its approach is likely to promote competition within and across areas by giving all service providers the opportunity to place competitive bids, regardless of the technology they intend to use to meet their obligations.

    2. The Commission disagrees with Hughes' contention that low-latency, high-speed bids will always necessarily win. Bids will be scored relative to the reserve price and therefore bids placed for lower speeds and high latency will have the opportunity to compete for support, but will have to be particularly cost-effective to compete with higher tier bids.

    3. Hughes presents a hypothetical example that only reinforces the conclusion that adopting minimal weights would be inappropriate. Even if the Commission were to adopt Hughes' proposed weights, it is unclear from Hughes' own statements in the record whether Hughes could place winning bids. Hughes argues that the Commission failed to take into account record evidence that “the lower bound for satellite providers' bids will be above $185 per customer per month in the 25/3 Mbps tier,” and that there was no data in the record to contradict its showing. Assuming that Hughes could receive from subscribers a reasonably comparable rate of $88 per month for offerings at 25/3 Mbps, Hughes claims that the lower bound for satellite providers' bids in this tier will be above $185 per customer per month. In the example, Hughes compares a fiber-based provider bidding a reserve price of $250 in the Gigabit tier to a satellite provider bidding $187 in the Baseline tier under two scenarios. Under the hypothetical, the Gigabit bid would win using the Commission's adopted weights; using Hughes' proposed weights, the satellite provider would win. If the fiber-based provider and the satellite provider required $250 and $187 in support per location, respectively, neither would win given the Commission's decision to adopt a per location funding cap of $146.10. Notwithstanding the reserve price, the Commission is not convinced that awarding $187 per customer for high-latency, lower-speed satellite service would be the preferred outcome, or particularly cost-effective, if it could fund a Gigabit network for only $63 more per customer. Lowering support amounts is not the Commission's only goal. Rather, the Commission must balance—within a finite budget—its goal of lower support amounts and wider coverage with its goal of service at higher speeds and lower latency.

    4. Hughes has not presented any analysis or data that persuades the Commission that it should alter the balance it sought to achieve with the adopted weights. The Commission previously concluded that adopting smaller weight differences between tiers, as Hughes advocates, would be inappropriate. The Commission was concerned that minimal weighting could deprive rural consumers of the higher-speed, lower-latency services that consumers value and that are common in urban areas. The Commission predicted that minimal weight differences would likely result in bids in lower tiers prevailing, leaving all consumers with minimum service even though some service providers might be able to offer increased speeds for marginally more support.

    5. The Commission is not persuaded that it should reconsider the weights adopted by the Commission to reflect the consumer preference data cited by Hughes. In the Phase II Auction FNPRM Order, 82 FR 14466, March 21, 2017, the Commission concluded that “establishing weights based on specific data is likely to be a drawn out and complicated process that may further delay the Phase II auction and may not produce an improved outcome in the auction.” Hughes argues that the Commission adopted weights that provide “too great of a bidding advantage to high-speed, high-capacity, low-latency services,” and claims that “[s]atellite broadband customers are just as satisfied as the customers of other types of broadband providers, notwithstanding the inevitable latency resulting from the data travel time to and from a geostationary satellite.” Hughes now claims that “changing the bidding weights would require simply changing numeric values in the Commission's existing auction software and result in no delay.” Even if it were true that changing the auction software would be easy, there would only be no delay if the Commission simply accepted Hughes values and ignored data cited by other parties. Nothing in Hughes' reply comments fundamentally changes the Commission's prior conclusion.

    6. The Commission previously rejected arguments that it should adopt a narrower weight for latency than for speed tiers to account for claims that consumers value higher speed over latency. The Commission emphasized that “these claims do not address the concerns raised by commenters about the inherent limitations of high latency services—particularly for interactive, real-time applications and voice services given that high latency providers may be the only voice providers in the area.” Hughes does not address the inherent limitations of satellite voice service, particularly in rural areas, and argues that there is no valid policy reason to provide such an advantage to low-latency bids. The Commission disagrees. In areas where winning bidders begin receiving Phase II support, the incumbent price cap carriers not receiving such support will be immediately relieved of their federal high-cost eligible telecommunications carrier (ETC) obligation to offer voice telephony in those census blocks, and the winning bidder will have the responsibility of providing the supported service: voice telephony. The potential savings to the Fund of supporting non-terrestrial broadband services must be balanced with the fact that providers of such services will have the obligation to provide the supported service—voice telephony—to rural consumers as well.

    7. The Commission also is not persuaded by Hughes' argument that it should reduce the speed and latency weights to “account for satellite broadband systems' more expedited deployment capabilities.” Hughes argues that satellite service is “quicker to market” because it is not affected by obstacles faced by terrestrial broadband providers such as lengthy permitting processes, construction delays, limited consumer demand, or geographical isolation. Although satellite service may theoretically be available sooner in rural areas, it is not clear that satellite providers will be meeting the needs of rural and underserved communities any sooner than other providers. The Commission granted a petition for reconsideration regarding re-auctioning areas served by high-latency service providers, filed by ViaSat and supported by Hughes, because it agreed that it may be difficult for high-latency service providers to obtain enough subscribers to meet a 35 percent subscription threshold by the end of the third year of support. In doing so, the Commission was persuaded by comments suggesting that many of the factors related to low adoption are likely to be present in more rural high-cost areas of the country. The Commission has no reason to think these factors have changed and decline to modify the weights to account for “speed to market.”

    8. For the reasons stated above, the Commission declines to reconsider the weights the Commission adopted for bids in the Phase II auction for the varying performance tiers and latency levels.

    9. Discussion. As an initial matter, the Commission clarifies that it has not yet specified which of the methods for subjective determination of transmission quality identified in ITU-T Recommendation P.800 should be used to demonstrate compliance with the second part of the two-part standard (MOS of four or higher). Based on the sparse record before the Commission, it declines to do so at this time. ADTRAN proposes that the Commission specify use of a conversational-opinion test and argues that this is preferable to a listening-opinion test, or the ITU's other recommended option: interview and survey tests. The Commission finds that there is insufficient information in the record to specify which of the ITU's recommended options applicants should be prepared to use to demonstrate an MOS of four or higher. The Commission expects that the specific methodology will be adopted by the Bureaus and Office of Engineering and Technology (OET) by June 2018, consistent with the Commission's previous direction to refine a methodology to measure the performance of ETCs' services subject to general guidelines adopted by the Commission.

    10. The Commission also clarifies that recipients of Phase II support awarded through competitive bidding should use the same testing methodologies for measuring peak period roundtrip latency adopted for price cap carriers accepting model-based Phase II support. That is, the same testing methodologies should be used by Phase II recipients whether they are demonstrating compliance with the 100 ms requirement or the 750 ms requirements. As set forth in the Phase II Service Obligations Order, 78 FR 70881, November 27, 2013, providers can rely on existing network management systems, ping tests, or other commonly-available measurement tools, or on the alternative Measuring Broadband America (MBA) program results if they have deployed at least 50 white boxes in funded areas throughout the state.

    11. Discussion. The Commission adopted the standalone voice requirement in 2011. When it adopted the separate standalone broadband reasonable comparability requirement in 2014, the Commission explained that “high-cost recipients are permitted to offer a variety of broadband service offerings as long as they offer at least one standalone voice service plan and one service plan that provides broadband that meets the Commission's requirements.” Setting aside the untimeliness of these requests, the Commission would not reconsider the requirement that Connect America Fund recipients offer voice telephony—the supported service—at rates that are reasonably comparable to rates for voice service in urban areas. The Commission is not persuaded by arguments that, because VoIP is provided over broadband networks and over-the-top voice options are available, broadband service providers need only offer broadband as a standalone service. Phase II auction recipients may be the only ETC offering voice in some areas and not all consumers may want to subscribe to broadband service. To comply with Connect America Fund service obligations, support recipients can offer VoIP over their broadband network on a standalone basis, but they must offer the service at the reasonably comparable rate for voice services.

    12. Discussion. The Commission clarifies that it will permit Phase II auction support recipients to bring to the Commission's attention disparities between the number of locations estimated by the CAM and the number of locations actually on the ground in the eligible census blocks within their winning bid areas in a state. If a support recipient can sufficiently demonstrate that it is unable to identify enough actual locations on the ground across all the eligible census blocks to meet its total state requirement, its obligation will be reduced to the total number of locations it was able to identify in the state and its support will also be reduced on a pro rata basis. Specifically, within one year after release of the Phase II auction closing public notice, a recipient that cannot identify enough actual locations must submit evidence of the total number of locations in the eligible areas in the state, including geolocation data (indicating the latitude/longitude and address of each location), in a format to be specified by the Bureau, for all the actual locations it could identify. The Commission directs the Bureau to establish the procedures and specifications for the submission of this information, such as collecting the data through the Universal Service Administrative Company's (USAC) High Cost Universal Service Broadband (HUBB) online location reporting portal. Relevant stakeholders would have the opportunity to review and comment on the information and to identify other locations, following which the Bureau shall issue an order addressing the recipient's showing and any such comments. The evidence submitted by a support recipient will also be subject to potential audit.

    13. The Commission directs the Bureau to implement this process, consistent with the Commission's prior direction to the Bureau concerning model location adjustments. Specifically, in cases where the Bureau has determined by a preponderance of the evidence that there are no additional locations in the relevant eligible census blocks in the state, the Commission directs the Bureau to adjust the support recipient's required state location total and reduce its support on a pro rata basis for that state. The Commission directs the Bureau to specify the types of information that a support recipient should submit to demonstrate that it could not locate additional locations on the ground, specify the types of evidence that commenters should submit to dispute the evidence provided by the support recipients and set the parameters of this review process, set the parameters for the audits, and adopt any other necessary implementation details. The Commission directs the Bureau to issue a public notice or order (following its issuance of a notice and opportunity for comment) detailing instructions, deadlines, and requirements for filing valid geolocation data and evidence for both support recipients and commenters.

    14. The Commission adopts this process because it is persuaded that potential bidders may be reluctant to bid on census block groups if the number of locations estimated by the CAM is substantially different from the number of actual locations currently on the ground, leaving those areas without an opportunity to get served through the Phase II auction. While parties claiming that there are discrepancies between the CAM and the facts on the ground have not demonstrated that the data and analyses they are relying on are necessarily more accurate than the CAM, the Commission agrees that support recipients should not be penalized if the actual facts on the ground differ from the CAM's estimates. Accordingly, the Commission has decided to require support recipients seeking to adjust their required locations to gather and submit geolocation data to demonstrate that they have done the necessary legwork to identify locations within their service areas. By requiring applicants to submit geolocation data and demonstrate that there are no additional locations in the relevant areas, providing an opportunity for relevant stakeholders to comment on the findings, and conducting audits, the Commission also intends to prevent any cherry picking that might occur if support recipients only identify the easiest-to-serve locations and ignore harder-to-serve locations. The Commission also emphasizes that applicants are required to conduct the necessary due diligence prior to submitting their short-form applications, including identifying locations they will serve within the eligible areas, so that they can certify that they will be able to meet the relevant public interest obligations when they submit their applications.

    15. The Commission declines to permit support applicants to identify additional locations to serve above their required state total with an accompanying increase in support. The Commission has a finite Phase II budget that will be allocated through the auction. Accordingly, the Commission would be constrained from giving support recipients more support.

    16. The Commission is also not convinced that it should take the further step of broadening the Commission's existing definition of locations for all Phase II auction recipients so they have more potential locations that they can serve in their winning census blocks. The focus of Phase II has been on serving housing units and businesses that receive mass market service, with areas being designated as high-cost by the CAM based on the cost to serve these types of locations. Moreover, reserve prices are being set using the CAM, and the Commission proposed awarding no more support than the CAM calculates is needed to serve housing units and businesses receiving mass market services in high-cost areas, with a cap on extremely high-cost locations. Accordingly, the Commission declines to permit all recipients to divert Phase II support away from housing units and businesses receiving mass market services to other types of locations because some recipients may find it difficult to serve the number of locations identified by the model.

    17. Finally, the Commission declines to monitor a support recipient's compliance at a census-block level or to allow a support recipient to count toward meeting its deployment obligation locations that do not exist. In comments filed on specific bidding procedures for this auction, several parties propose allowing recipients that make service available to all actual locations in a census block to receive credit for making service available to all model-indicated locations within that census block. For instance, under this proposal, if a census block had only six actual locations to be served, and the CAM indicated there were 14 locations to be served, a recipient would receive credit for serving 14 locations in that census block after serving only six. Such a system could create perverse incentives to focus deployment on the types of census blocks in the example, leading to fewer consumers receiving broadband overall. The Commission already decided it would monitor compliance at the state-level so that a support recipient would have to serve locations in other eligible census blocks in the state if it cannot locate enough actual eligible locations within a census block, and the opportunity to petition the Commission to reconsider this decision has passed. The commenters' challenge to this statewide approach is untimely. To the extent there are discrepancies between the number of actual locations on the ground and the CAM-estimated statewide location totals, a support recipient can take advantage of the process adopted above.

    18. Discussion. The Commission denies Verizon's request. The Commission is not persuaded that it should reduce the service obligation to give recipients 90 percent flexibility. The Commission acknowledges that, because costs will be averaged at the census block level, all the locations the CAM identified in each census block in the authorized bids will count towards Phase II auction recipients' funded location total, unless adjusted using the process adopted above. While this differs from the Phase II model-based support requirements, in which some of the locations in some of the census blocks do not count toward the state-required location totals, Phase II auction bidders will have the advantage of choosing which eligible census blocks to include in their bids. Because compliance will be determined on a state-wide basis, the bidder can identify additional locations in the other eligible census blocks within the census block group or choose to bid on additional census block groups where it is able to identify more locations in eligible census blocks than the CAM had identified to meet its statewide total. As the Commission explained above, if a support recipient sufficiently demonstrates that it is unable to identify enough locations to meet its total support obligation statewide, it can also have its location total adjusted with an accompanying reduction in support.

    19. If the Commission were to permit Phase II auction recipients to use up to 90 percent flexibility in each state, the result could be as much as an additional five percent of locations potentially remaining unserved in Phase II auction-funded census blocks. Because these unserved locations would be in census blocks where Phase II auction recipients are receiving support, targeting support to these locations through another mechanism could prove difficult. Instead, the Commission concludes that 95 percent flexibility is a more reasonable balance between ensuring that as many locations as possible get served in Phase II auction-funded areas and giving recipients some flexibility in the case of unforeseeable circumstances.

    20. The Commission acknowledges that some bidders may bid for more support to compensate for the risk of having to return support if they cannot meet the 100 percent service milestone. But the Commission concludes that this potential increase in costs is outweighed by the benefits of ensuring that at least 95 percent—as opposed to 90 percent—of the required number of locations in Phase II-funded areas are served, particularly given that unserved locations in Phase II-funded areas would be difficult to target with another support mechanism. Additionally, the Commission expects that the competitive pressure imposed by competing for a finite budget in the Phase II auction will help mitigate bid inflation. Finally, any support that is returned by a Phase II recipient that serves less than 100 percent of the required number of locations can be repurposed to support broadband through other universal service mechanisms.

    21. For these reasons, the Commission also is not persuaded that it should permit Phase II auction recipients to take advantage of the 95 percent flexibility without returning an associated amount of support. Moreover, the Commission is not convinced by claims that it is unnecessary for such recipients to return support because bids will “already reflect the cost of building out to the minimum number of locations.” Instead, the Commission expects that all Phase II auction bidders will bid with the intention of serving 100 percent of funded locations, will factor the cost of serving 100 percent of the locations into their bids, and will take advantage of the flexibility only if necessary. Indeed, if the Commission lowered the flexibility to 90 percent, under Verizon's logic, the Commission would be conceding that even more locations within eligible blocks could be unserved following the auction. Because Phase II auction bidders are required to conduct due diligence prior to bidding, the Commission explained that it adopted the flexibility to address “unforeseeable challenges” that Phase II auction recipients may have in meeting their deployment obligations. If a Phase II auction bidder initially plans to build to only 95 percent of the required number of locations and then later in the support term experiences unforeseeable events, it will be subject to non-compliance measures if it is unable to serve at least 95 percent of locations and is unable to obtain a waiver. The Commission expects it would be difficult for a recipient to meet its burden of demonstrating good cause to grant a waiver of the deployment obligations if it did not plan to build to 100 percent of funded locations at the outset of its support term.

    22. Discussion. The Commission declines to reconsider the Commission's decision not to adopt an accelerated payment option for recipients of Phase II auction support. The Commission is not convinced that the benefits of an accelerated payment option would outweigh any potential additional burden on rate payers. Moreover, as the Commission explained, service providers already have the incentive to build out their networks more quickly so that they can begin earning revenues to help with their costs. They also have an incentive to meet the final service milestone as soon as possible because once it has been verified that they have met their deployment obligations, they can further reduce costs by no longer maintaining a letter of credit. While Crocker Telecommunications suggests that the requirement that Phase II auction recipients offer the required services at rates that are reasonably comparable to those offered in urban areas means that revenues may not offset the higher costs of building in rural areas, nothing precludes a recipient from securing other funding options that can help with the upfront costs of building out and maintaining its network before it receives its full ten years of support.

    23. Additionally, the Commission is concerned about its ability to accurately predict the amount by which the Phase II auction budget could be exceeded and, in turn, the potential impact of an accelerated option. Crocker Telecommunications suggests that, given the size of the Phase II auction budget relative to the entire universal service budget, and taking into consideration the additional contributions from providers that will be offering VoIP over their Phase II-funded networks, an accelerated payment option would not result in “dramatic swings in the contribution factor” if the Commission exceeds its annual Phase II auction budget. Whereas in the rural broadband experiments, the Commission had access to the entire $100 million budget at the start of the program, and thus could make an accelerated payment option available because the Commission could cover any upfront payment requests without needing to increase the contribution factor or wait for the following year's budget, here, however, the Commission will have only the annual Phase II auction budget available each year. Too many unknowns remain about the Phase II auction—including the number of bidders that will participate, the number of bidders that would request and qualify for an accelerated support option, the size of those bidders' bids, and the timing for when the bidders would be eligible to receive accelerated support—to predict with any degree of certainty how much the Commission could potentially exceed the annual budget if it were to adopt an accelerated option.

    24. Even if the Commission could determine that giving Phase II auction recipients the option of receiving accelerated support would not dramatically increase the contribution factor, the Commission is not convinced that it would serve the public interest to do so. The Phase II auction is one of many universal service programs, and the Commission is responsible for making decisions that balance the objectives of all of the programs with the burdens on the end-user rate payers that fund the programs. The Commission is not persuaded that increasing the contribution factor by even a small margin for the Phase II auction would be justified for the sole purpose of providing more support earlier in the term, given the Commission's efforts to also remain within a budget for other universal service programs.

    25. Discussion. The Commission dismisses as untimely NRECA and UTC's petition for reconsideration of the Commission's decision to exclude from the Phase II auction RBE census blocks that are served by an unsubsidized competitor with broadband at speeds of 10/1 Mbps. The Commission decided in the December 2014 Connect America Order, 80 FR 4446, January 27, 2015, that “any area” served by an unsubsidized competitor offering 10/1 would be excluded from the Phase II auction. The Commission also stated that shortly before the Phase II auction it expected to “update the list of census blocks that will be excluded from eligibility” from the Phase II auction “based on the most current data” so as to “take into account any new deployment that is completed” prior to the auction. The Commission did not indicate that there would be any exceptions to this decision. The Commission's decision not to offer support in areas served by an unsubsidized competitor is one of the fundamental principles of the Connect America Fund, so it is reasonable to expect that the Commission would make explicit any exceptions to this policy.

    26. Because the Commission made the decision to exclude all census blocks served by an unsubsidized competitor from the Phase II auction in the December 2014 Connect America Order, NRECA and UTC should have filed a petition for reconsideration of this decision within 30 days of publication of that order in the Federal Register. NRECA and UTC failed to do so. Instead, NRECA and UTC filed a petition for reconsideration of this decision after the May 2016 Phase II Auction Order, 81 FR 44414, July 7, 2016. In that order, the Commission took steps to implement the decisions it had already made about Phase II auction eligible areas in the December 2014 Connect America Order, including its decision to exclude areas served by unsubsidized competitors, by deciding that it would: (1) Rely on the most recent publicly available FCC Form 477 data for identifying eligible Phase II auction census blocks, (2) conduct a limited challenge process, (3) average costs at the census block level, and (4) direct the Bureau to release a preliminary list of eligible census blocks. NRECA and UTC do not take issue with these implementation decisions. Because NRECA and UTC instead seek reconsideration of the Commission's underlying decision in the December 2014 Connect America Order to exclude from the Phase II auction census blocks served by unsubsidized competitors, the Commission dismisses this portion of the petition as untimely.

    27. Notwithstanding the untimely nature of this portion of the petition, the Commission denies it on the merits. The Commission similarly denies the timely filed portion of the petition asking it to reconsider its decision to exclude from the auction RBE census blocks served by price cap carriers at broadband speeds of 10/1 Mbps. In both instances, the Commission concludes that its decision to exclude these census blocks reasonably balances the Commission's objectives in furtherance of the public interest. The Commission has repeatedly emphasized that while it has a preference for higher speeds, higher data usage, and lower latency, it must balance these preferences against its objective of maximizing its finite budget to serve as many unserved consumers as possible and not overbuilding locations served by private capital. For this reason, the Commission adopted different performance tiers for the Phase II auction starting with 10/1 Mbps speeds, and for this reason the Commission decided to make ineligible census blocks already served by unsubsidized competitors and price cap carriers at broadband speeds of 10/1 Mbps. Although the decision to exclude these census blocks means that these areas may not have access to higher speeds through the Phase II auction, the Commission found that using the Phase II auction budget to address the digital divide by targeting those areas that lack a provider offering even 10/1 Mbps speeds to at least one residential location was a more effective use of the limited Phase II budget.

    28. UTC and NRECA are asking the Commission to use its finite budget to fund census blocks where either an unsubsidized competitor using private capital or a price cap carrier has already deployed broadband at speeds meeting or exceeding the Commission's minimum 10/1 Mbps speeds. The Commission recognizes that all locations in these census blocks may not be served with 10/1 Mbps or higher speeds, as they would have been if the blocks were included in the Phase II auction. Nevertheless, the Commission concludes that, on balance, it better serves the public interest to focus its finite budget on areas that lack any broadband provider offering speeds that meet the Commission's requirements than on areas that have such a provider somewhere in the block. This approach will ensure that the Commission's budget will be used to serve consumers that completely lack access to broadband meeting its minimum speed requirements rather than diverting funds to potentially overbuild areas where consumers already have access to such service.

    29. The Commission is not convinced by UTC and NRECA's arguments that the “cost efficiencies that would be gained by removing [the rural broadband experiment] census blocks are greatly outweighed by the public interest benefits that would be lost if [the] census blocks go unfunded.” Although it is possible that the current provider offering 10/1 Mbps in these areas may cease offering service at these speeds, it also is possible that the current provider could improve its offerings without Connect America support. Similarly, it is possible that some price cap carriers or unsubsidized competitors may target only one location in the RBE census blocks with 10/1 Mbps broadband service to make them ineligible for the Phase II auction. But consumers overall may benefit if such service providers take this opportunity to expand their 10/1 Mbps broadband offerings without Phase II auction support because that support then could be directed to areas that are totally unserved. There is also a possibility that service providers that were interested in bidding in RBE census blocks that are now ineligible may still win support in surrounding eligible areas. Such recipients may be able to leverage their funded networks in eligible areas so that it becomes cost-effective to deploy higher speeds in the ineligible census blocks absent support. Finally, if an area that was excluded from the Phase II auction does subsequently become unserved, either because the provider ceases offering service in that area or the provider does not upgrade its broadband service speeds to meet the Commission's current definition of “served,” the Commission could make that area eligible for the Remote Areas Fund or for other future competitive bidding to the extent it remains unserved.

    30. The Commission also is not persuaded by NRECA and UTC's claims that potential applicants “acted in good faith” in assuming that all RBE census blocks would be made eligible for the Phase II auction or that the Commission's decisions “penalize[ ]” those potential applicants for moving forward and deploying broadband prior to the Phase II auction. As the Commission explains below, all potential bidders have known since at least April 2014 that the Commission contemplated excluding certain census blocks from the Phase II auction, and it had been the Commission's longstanding policy to exclude census blocks served by unsubsidized competitors for its programs since the Connect America Fund was created. But even if the Commission were to agree that it was reasonable for applicants to assume that all RBE census blocks would be included, the Commission is not convinced that applicants that intended to bid on these blocks are worse off than applicants that intend to bid on other census blocks. Any census block that is on the preliminary eligible census block list could subsequently become ineligible if it is reported as served in the most recent publicly available Form 477 when the final list of eligible census blocks is released. This means that any applicant could invest resources to get ready to bid for an area, only to later discover that it is no longer eligible. The Commission took measures to reduce this possibility by directing the Bureau to release the final census block list three months prior to the short-form application filing deadline so that applicants have time to plan and prepare for bidding. The Commission also concludes that the potential costs applicants incur in planning to bid on census blocks that ultimately become ineligible are outweighed by the benefits to consumers of using the Phase II auction budget efficiently.

    31. Moreover, the fact that some applicants already deployed networks in the RBE blocks, even though they acknowledge they had no guarantee of winning support through the auction, provides further support for the Commission's decision not to make these census blocks eligible for the auction. The Commission did not adopt the eligibility rules or the public interest obligations for the Phase II auction until the Phase II Auction Order in May 2016. Thus, the entities that NRECA and UTC cite in their petition as already having deployed broadband to these areas in July 2016 did not know, when they deployed broadband to these areas, if they could meet the eligibility requirements or what public obligations would be required; whether their applications would ultimately be approved to participate in the auction; whether they would win in the Phase II auction; and, whether they would be authorized to receive support. Given these uncertainties, it seems unlikely that a broadband provider would deploy to an area if it thought it could not sustain the service without support. Because these providers could make a business case to serve these areas, even at the risk that they would not qualify to participate in the auction or win support, the Commission sees no reason why it should use its finite funds to support these areas instead of areas where no provider has been able to make a business case to serve.

    32. The Commission also disagrees with NRECA and UTC's claims that its decisions favor price cap carriers. NRECA and UTC claim that price cap carriers were given the “right of first refusal to model based support without any removal of census blocks in those areas.” However, they neglect to acknowledge that census blocks that were served by unsubsidized competitors at 4/1 Mbps and above (the Commission's minimum speed requirement when the decision was made) were removed from the offer of model-based support, as were the RBE census blocks that are the subject of the petition. Moreover, price cap carriers and other competitive bidders are both precluded from receiving Phase II support in ineligible RBE census blocks because they were removed from the offer of model-based support and from the Phase II auction.

    33. The Commission also does not find it persuasive to compare its decisions with respect to the offer of model-based support to price cap carriers with its decisions to remove certain census blocks from the Phase II auction. NRECA and UTC claim that the Commission's decisions are “arbitrary and capricious” because they “disparately den[y] competitive providers . . . from being able to receive funding under Phase II in areas where they have deployed broadband networks.” Price cap carriers were able to receive Phase II funding in areas where they had already deployed 10/1 broadband service. But for the offer of model-based support, the Commission offered price cap carriers a state-wide commitment in high-cost areas so that if they accepted support, they would be required to offer voice and broadband at speeds of 10/1 Mbps to the required number of locations in their service area in the state where they were already an ETC, and in most cases they were already receiving universal service funding in those areas. The Commission decided that it preferred this approach as opposed to one in which the Commission would immediately adopt competitive bidding everywhere because price cap carriers were “in a unique position to deploy broadband networks rapidly and efficiently” throughout their “large service areas.” The Commission further concluded that, on balance, and in its predictive judgment, its approach “best serves consumers in these areas in the near term, many of whom are receiving voice services today supported in part by universal service funding and some of whom also receive broadband, and will speed the delivery of broadband to areas where consumers have no access today.”

    34. Here, the Commission also used its predictive judgment when deciding how to allocate its finite Phase II auction budget to best serve consumers, but under different conditions. For the Phase II auction, a service provider need not be the incumbent to compete for support; bidders can be selective about which eligible areas they include in their bids; bidders may not have received universal service support in the past to serve the areas for which they intend to bid; and, there are likely more areas eligible for support than there is support available. For the offer of model-based support, the Commission was constrained by the service area of a specific price cap carrier and reliant on only one incumbent carrier to reach its objectives of maximizing coverage. Here, the Commission is constrained by the Phase II auction budget. Therefore, it decided to take a different approach in the Phase II auction by targeting support only to those areas that are unserved by price cap carriers and unsubsidized competitors at 10/1 Mbps minimum broadband speeds. Nothing in the record persuades the Commission that it would better serve the public interest by reconsidering this approach.

    35. Nor is the Commission convinced that its decision to exclude certain census blocks from the Phase II auction “frustrate[s] the fundamental purpose” of the rural broadband experiments. NRECA and UTC claim that the purpose of the experiments was to “challenge status quo broadband from the price cap carriers.” While the Commission may have indicated that it expected the rural broadband experiments to provide the Commission with information about “which and what types of parties are willing to build networks that will deliver services that exceed” the performance standards the Commission adopted for the offer of model-based support, the Commission intended to use what it learned to inform the rules it adopted for the Phase II auction. The Commission did not decide to exclude the RBE census blocks from the offer of model-based support to price cap carriers until after rural broadband experiment bidders had placed their bids, suggesting that it was not the fundamental purpose of the program to give losing rural broadband experiment bidders another opportunity to bid for support in the RBE census blocks in the Phase II auction. Instead, the rural broadband experiments served their purpose by giving the Commission valuable experience and data it could use when determining the public interest obligations and eligibility requirements for the Phase II auction. The Commission is under no obligation to ensure that all participants in the rural broadband experiments have the opportunity to bid for their desired census blocks in the auction, particularly when it would conflict with the Commission's overall objectives for the Phase II auction.

    36. Finally, the Commission disagrees with NRECA and UTC's claims that applicants had no notice that the Commission might exclude RBE census blocks from the Phase II auction. Consistent with the requirements of Section 553 of the Administrative Procedure Act, interested parties had an opportunity for meaningful comment on the Commission's proposals to exclude certain census blocks from Phase II auction eligibility. The Commission noted in the April 2014 Connect America FNPRM, 79 FR 39196, July 9, 2014, that, if its proposal to establish 10 Mbps as the minimum broadband downstream speed was adopted, “Phase II funds would only be available in a competitive bidding process for any area lacking 10 Mbps/1 Mbps.” In the FNPRM, the Commission sought comment on excluding from the Phase II auction “any area” that is served by a price cap carrier that offers fixed residential voice and broadband meeting the Commission's requirements, and on excluding from Phase II “those census blocks” that are served by a facilities-based terrestrial competitor offering voice and broadband services at 10/1 Mbps.

    37. Although the Commission did not seek comment on applying these exclusions specifically to the RBE census blocks, such action is a logical outgrowth of the Commission's proposals. Under the “logical outgrowth” standard, a notice of proposed rulemaking does not violate notice requirements under the Administrative Procedures Act if it “provide[s] the public with adequate notice of the proposed rule followed by an opportunity to comment on the rule's content.” First, the Commission sought comment “on the broader question of whether universal service funds are ever efficiently used when spent to overbuild areas where another provider has already deployed service.” Given the broad nature of this question, the parties were on notice that the Commission was contemplating eliminating support for served areas in any universal service context. Second, while the FNPRM did not explicitly propose that the RBE census blocks would be made eligible for the Phase II auction if they were removed from the offer of model-based support, both NRECA and UTC filed comments in response to the FNPRM requesting that the Commission make the RBE census blocks available for competitive bidding. Because they had the opportunity to urge the Commission to include the census blocks in the Phase II auction, they also had the opportunity to comment on how the Commission's proposals for the Phase II auction—including whether to exclude areas served by unsubsidized competitors—should or should not apply to the RBE census blocks. In fact, those comments also separately discuss the Commission's proposals to remove from eligibility the Phase II auction census blocks served by price cap carriers and raise similar arguments to those raised in the petition. In the section seeking comment on the interplay between the Phase II offer of model-based support and the rural broadband experiments, the Commission did not suggest that census blocks removed from the offer of model-based support would be exempt from its broader Phase II auction proposals if the removed blocks were considered eligible for the Phase II auction inventory.

    38. Discussion. The Commission declines to reconsider its Phase II auction eligibility rules and automatically qualify to participate in the Phase II auction those entities that were selected as provisional winning bidders for the rural broadband experiments. The Commission is not persuaded that provisionally-selected bidders that failed to submit all of the required information during the rural broadband experiments are necessarily qualified for the Phase II auction. Because provisionally-selected bidders that were not ultimately authorized to receive support did not submit all of the required technical and financial information at the post-selection review stage, Commission staff did not fully assess their qualifications once they were named as winning bidders.

    39. Furthermore, the Commission is not convinced that it should permit provisionally-selected bidders that were ultimately authorized to receive rural broadband experiment support to participate in the Phase II auction without meeting the eligibility requirements for the Phase II auction. Although the Commission acknowledges that such entities underwent more extensive vetting than defaulting provisionally-selected bidders, eligibility requirements for applicants seeking to bid in the rural broadband experiments were not as rigorous as those proposed and adopted for the Phase II auction. As the Commission previously indicated, the eligibility considerations for participation in the rural broadband experiments bidding were different than they are for the Phase II auction. The rural broadband experiments were intended to award support to discrete experiments, and if the bidder defaulted, the area that was included in the bid would be eligible for the Phase II auction if it remained unserved. By contrast, the Commission seeks to balance maximizing coverage with its preference for supporting higher speeds, higher usage allowances, and lower latency through the Phase II auction, and if a bidder defaults, it would thwart these objectives by leaving the relevant area unserved when another qualified bidder may have been able to serve the area if it had won the support.

    40. Moreover, because the obligations for the Phase II auction are not the same as those of the rural broadband experiment, the Commission concludes that it serves the public interest to independently assess the qualifications of rural broadband experiment recipients seeking to participate in the Phase II auction. The Commission has adopted different speed, capacity, and latency requirements and a different build-out timeline for the Phase II auction. When the Commission authorized provisionally-selected bidders to receive rural broadband experiment support, it was authorizing those entities based on the specific technologies and networks they intended to use to meet their rural broadband experiment obligations. For the Phase II auction, the Commission has proposed to determine an applicant's eligibility to bid for the performance tier and latency combinations it selects in part based on information regarding how it intends to meet the Phase II obligations, which may differ from how it intended to meet its rural broadband experiment obligations. Finally, the Commission began authorizing rural broadband experiment recipients in 2015, and the last rural broadband experiment recipient was authorized in 2016. Because the Phase II auction will not be held until 2018, an applicant's technical and financial qualifications may have changed since the Commission last had the opportunity to review them.

    41. Discussion. The Commission grants Broad Valley and Crocker Telecommunications' petition for reconsideration in part by permitting Phase II auction recipients to reduce the value of their letter of credit to 60 percent of the total support already disbursed plus the amount of support that will be disbursed in the coming year once it has been verified that the Phase II auction recipient has met the 80 percent service milestone. However, the Commission also denies Broad Valley and Crocker Telecommunications' petition for reconsideration in part by declining to make further reductions in the value of the letter of credit.

    42. The Commission is persuaded by commenters that claim that the Commission's existing letter of credit rules may impose significant costs on Phase II auction recipients, particularly on small providers. The Commission finds that it is reasonable to provide some additional relief from these costs by permitting Phase II recipients to reduce further the amount of support that a letter of credit must cover for Phase II recipients offering the required service to 80 percent of the required number of locations in a state. Because the Commission requires recipients to submit the geocoded locations that count towards their service obligations in an online portal with built-in validations, USAC will be able to quickly verify that a recipient's 80 percent service milestone has been met, thereby enabling the recipient to reduce the value of its letter of credit. As the Commission acknowledged in the Phase II Auction Order, the Commission expects that the risk of default will lessen as a Phase II auction recipient makes progress towards meeting its Phase II auction service milestones because, as recipients offer service to more locations, they have the opportunity to offset more of their deployment costs with revenues.

    43. The letter of credit requirement applies to all winning bidders, which simplifies the administration of the letter of credit rules. However, the exact costs of obtaining and maintaining a letter of credit will affect each potential bidder in the Phase II auction differently. The letter of credit costs will likely vary based on the amount of support that a Phase II auction winning bidder is authorized to receive, and the impact of those costs is likely to vary based on the size and creditworthiness of the Phase II recipient. Therefore, the Commission cannot reasonably predict the cost of the requirement for each potential bidder relative to the benefit to the public of protecting the funds from default. However, the costs for a letter of credit in the range of several percentage points, when applied to the sizable amounts that may be awarded to bidders here, could well be considerable, particularly for smaller bidders. The Commission concludes on reconsideration that, on balance, the benefits of relieving all Phase II auction recipients of some additional costs of maintaining a letter of credit later in the term of support, after the recipient has met significant deployment milestones, outweigh the risk that the Commission will not be able to recover an additional portion of the support already disbursed if the recipient is unable to repay the Commission in the event of a default. Moreover, as the Commission discusses below, an applicant that is affected by high letter of credit costs may choose to build out its network more quickly so that it can close out its letter of credit sooner.

    44. The Commission is not persuaded by claims that it should take further steps to reduce the cost of a letter of credit for Phase II auction recipients. While Broad Valley and Crocker Telecommunications present new proposals that would further reduce costs for recipients, the Commission is not convinced that these cost reductions would outweigh the associated risks to the public's funds. Under the Commission's rules, the Commission is able to recover the full amount of support that has been disbursed in prior years and support that will be disbursed in the coming year until the fourth year service milestone has been met, with only modest adjustments to the value of the letter of credit after a recipient has met the significant deployment milestones in the fourth and fifth years. In contrast, under Broad Valley's and Crocker Telecommunications' proposals, for the first three years of support, and prior to a recipient significantly deploying its network, the letter of credit would only cover support that had been disbursed in the previous year(s). Accordingly, the Commission would not be able to recover support that is disbursed in the year that a recipient defaults. Moreover, under Broad Valley's and Crocker Telecommunications' proposals, more drastic reductions would be made in the value of the letter of credit earlier in the support term. As a result, throughout the build-out period, the Commission would not be able to recover more than two years of disbursements if a recipient defaults.

    45. Under these proposed approaches, the Commission would recover far less support if the recipient stops offering service and could not repay the Commission for the support associated with the locations that remain unserved. The Commission noted that the letter of credit will be drawn only in situations where the Phase II auction recipient does not repay the Commission for the support associated with its compliance gap, and that the recipients unable to repay the support are also more likely to be at risk for going into bankruptcy and ceasing operation of their networks. Without a letter of credit, the Commission has no security to protect itself against the risks of default. Accordingly, the Commission found that it was necessary to ensure it could recover a significant amount of support in such situations. Broad Valley and Crocker Telecommunications do not address these concerns in their petitions.

    46. The Commission expects that its decision to make a further modest reduction in the required value of the letter of credit for Phase II auction recipients that have substantially met their obligations will help address some of the cost concerns of potential bidders, including small entities and new entrants. But the Commission is not persuaded that it should address these concerns by further reducing the value of the letter of credit. The Commission acknowledges that each winning bidder will have to certify in its long-form application that it will have available funds for all projects costs that exceed Phase II support. The Commission also recognizes that small entities and new entrants, which often lack the resources of larger and established companies so that letter of credit costs have more of an impact on their budgets, may have to factor more of these letter of credit costs in their bids, potentially leading to less competitive bids. However, all participants in the Phase II auction will have to factor in the various costs of meeting the Phase II auction obligations when deciding whether to participate in the auction and how much to bid to ensure they can cover all of the costs. The Commission took a number of steps at the request of small entities to help lessen these costs, including expanding the number and types of banks eligible to issue letters of credit so that small entities can obtain letters of credit from banks with which they have existing partnerships. Although some entities may still find that participating in the auction is cost-prohibitive or that they are unable to place competitive bids, the Commission is not convinced that it should put its ability to recover a significant amount of support at risk if these same entities were to participate and later discover that they are unable to meet the Phase II auction obligations and unable to repay the Commission for their compliance gap.

    47. The Commission is not persuaded that making large reductions in the required value of the letter of credit when a recipient meets its service milestones would encourage recipients to build out their networks faster. Instead, the Commission expects that the letter of credit requirements it adopts today may encourage more rapid deployment. By making only modest adjustments for the fourth- and fifth-year service milestones, and requiring a recipient to maintain a letter of credit only until it has been verified that the recipient has met the final service milestone, the Commission expects that recipients will move faster to meet the final service milestone so that they no longer have to maintain a letter of credit. Indeed, smaller bidders, which might be most affected by letter of credit costs, are also more likely to have winning bids that can be completed in less than the full six-year deployment term. Moreover, if the recipient could instead significantly reduce the value of its letter of credit when it reaches earlier milestones, it may not have as much of an incentive to meet the final service milestone as quickly.

    48. Discussion. The Commission declines to reconsider the formula it adopted for applying the weights for performance tier and latency combinations to give bids placed in Pennsylvania, in areas where Verizon declined Phase II support, an advantage over other bids by adding an additional negative weight for such bids. The Commission also declines to waive the Phase II auction rules to add such a weight to Pennsylvania bids.

    49. Based on the record before the Commission, Pennsylvania has not persuaded the Commission that its proposal would more effectively balance its Phase II objectives in furtherance of its section 254 obligations and the public interest. The Commission balanced its interest in ensuring that consumers in declined states get access to broadband services with its objective of maximizing the finite Phase II budget by deciding to award support to cost-effective and higher service quality bids through the Phase II auction and then prioritize unserved areas in declined states in the Remote Areas Fund. As part of this balancing, the Commission determined that its adopted framework may encourage bidders to bid in declined areas and incentivize states to offer complementary support, so that declined states may still have a strong possibility of being served through the Phase II auction absent a preference. Bidders might be more interested in bidding in the declined areas in the state through the Phase II auction because those areas are lower cost. While the ranking of bids on a bid-to-reserve price basis, rather than on a dollar-per-location basis, may remove a potential bidding advantage for bidders in lower cost areas because those areas tend to have more locations, bidders may nonetheless be more likely to make a business case to serve such areas because they are lower cost. Bidders might also be more attracted to declined areas, and may have a higher likelihood of winning such areas, if a state such as Pennsylvania made available support that bidders could leverage to reduce the amount of Connect America support they were requesting, therefore making their bids more cost-effective when compared to other bidders nationwide.

    50. The Commission is not convinced by Pennsylvania and the National Association of Regulatory Utility Commissioners' (NARUC) claims that Pennsylvania's proposal would “provide significant cost effectiveness and financial synergies that may not be available absent modification.” In fact, the Commission finds that adopting a negative weight could actually thwart its objectives of maximizing the Phase II auction budget and incentivizing states to contribute support. First, the negative weight would effectively double count the support that Pennsylvania offers to bidders because bidders would be able to reduce their bids by the amount of Pennsylvania support in addition to a negative weight applied to their Connect America bids in proportion to the amount of Pennsylvania support they receive. This could result in bidders asking for more Connect America support than they might if they could only use Pennsylvania support to reduce their bids (i.e., without the additional negative weight). With the negative weight applied to a Connect America bid that already accounts for Pennsylvania support, they could potentially win even though their bid is not as cost-effective as other bidders. Second, the negative weight could result in Pennsylvania making less support available than it would without this factor because the weight would give Pennsylvania bidders at least some advantage over other bidders, regardless of the amount of support provided by Pennsylvania.

    51. The Commission also is not persuaded that the negative weight that Pennsylvania proposes would permit the Commission to effectively leverage the funds that Pennsylvania does make available to meet its Phase II auction objectives. Pennsylvania's petition does not describe with specificity the amount of funding that will be made available, and how the Commission will have assurance that the funding Pennsylvania makes available will actually be provided to the applicant. And although Pennsylvania's proposal would allocate federal support through the Phase II auction rather than establishing a separate allocation mechanism for Pennsylvania, the results of the auction may be skewed in a way that conflicts with Phase II objectives if a preference is given to bidders based on state support that is allocated in a manner that is inconsistent with decisions the Commission made for the Phase II auction. For example, Pennsylvania does not describe what specific restrictions will be placed on its funding to ensure it is used in areas that are eligible for the Phase II auction, how Pennsylvania will ensure that its funding is made available on a technology-neutral basis, and whether Pennsylvania will be using market-based mechanisms to allocate support. Without such information and safeguards, the Commission risks giving Pennsylvania bidders an advantage in the Phase II auction to the detriment of other cost-effective bidders even though state funding may ultimately not be made available, be spent to overbuild areas that already have broadband service, or be allocated in a manner that conflicts with the Commission's Phase II objectives. Unlike New York's NY Broadband Program, where the Commission found it could align its stated Phase II objectives with New York's existing broadband-funding program by adopting specific conditions to its waiver of the Phase II auction rules, here the Commission does not have enough specific information about the various programs Pennsylvania intends to use to allocate support in order to consider any appropriate conditions that might address its concerns.

    52. In addition, the Commission is not convinced by Pennsylvania's claims that the negative weight would not “detract[]” from the Commission's goals of deploying broadband nationwide and would not “negatively impact[]” support that is available to other declined states. Due to the finite Phase II auction budget, there is a potential that not all interested bidders will ultimately be awarded support. Accordingly, any mechanism that would give Pennsylvania bidders an opportunity to make less cost-effective bids than other bidders in other states, but still win, has the potential to unreasonably skew support to the state at the expense of other areas that may be served more cost-effectively. Such a mechanism also could result in fewer consumers receiving broadband. For New York, the Commission knew the maximum amount of support that could be allocated through New York's program and it adopted certain measures that could stretch that support beyond the census blocks in New York that were eligible for the Phase II offer of model-based support. Because Pennsylvania has not provided specific information regarding how much support it intends to make available, and the value of the negative weight is based on how much state support a Pennsylvania bidder will receive, the Commission is unable to assess the potential impact of the negative weight on its nationwide broadband deployment objectives.

    53. The Commission also disagree with Pennsylvania's claims that such a negative weight will not add complexity to the Phase II auction. First, a process must be created to determine and verify how much support each applicant has received or will receive from Pennsylvania state programs to determine how much negative weight to apply. Second, an auction system must be designed that uses a different formula for calculating bids in only the declined Pennsylvania areas. These steps add a significant layer of complexity to the auction and could potentially lead to a delay in commencing the Phase II auction.

    54. The Commission acknowledges that Pennsylvania's proposed approach could reduce the possibility that Pennsylvania will have to wait “until the finalization of the Remote Areas Fund to make progress on its “intra-county digital divides,” may make it more likely that an amount equivalent to the support that Verizon declined is allocated to Pennsylvania through the Phase II auction rather than through the Remote Areas Fund, and would give Pennsylvania recognition for its past and future contributions to broadband deployment. However, the benefits of adopting the approach Pennsylvania recommends are outweighed by the drawbacks the Commission has discussed, and it is not persuaded that altering the balance already achieved by the Commission through its existing Phase II auction and Remote Areas Fund framework would serve the public interest. Pennsylvania is one of a number of states, including other states where Phase II model-based support was declined, that have supported and continue to support broadband deployment. The Commission concludes the most effective way to accomplish its Phase II objectives and leverage these state programs is to have bidders factor any state support that they have received or will receive into their bids so that they can place cost-effective bids within the existing Phase II auction and Remote Areas Fund auction framework.

    55. The Commission disagrees with the assumption that states are entitled to receive the amount of support that the price cap carrier declined in the respective states. The Commission has made several decisions that contradict this assumption, including comparing all bids nationwide, making extremely high-cost census blocks nationwide eligible for the Phase II auction, adopting a limited budget, and deciding to score bids against each other nationwide on a ratio-to-reserve price basis. Instead, the Commission has acknowledged the importance of connecting a similar number of unserved consumers in the states that would have been reached had the Phase II offer been accepted and has committed to provide sufficient support to do so through both the Phase II auction and the Remote Areas Fund, to the extent possible.

    56. The Commission also finds that Pennsylvania has not demonstrated good cause for waiving the Phase II auction scoring formula. First, Pennsylvania has not established special circumstances that warrant deviation from the Phase II auction scoring formula. When the Commission waived the Phase II auction program rules for New York, the Commission found that the state was uniquely situated to quickly and efficiently further its goal of broadband deployment. The state had committed a significant portion of its own support as matching support, and demonstrated that there were unique timing considerations given that it had already implemented its own broadband program and had aggressive service deadlines. Such conditions are not present here. As explained above, the Commission already intends to address Pennsylvania's status as a declined state through the existing framework it adopted for the Phase II auction and the Remote Areas Fund, and it is able to leverage any support that Pennsylvania makes available through that same framework. And while the Commission acknowledges and appreciates Pennsylvania's past efforts to encourage broadband deployment in the state, Pennsylvania has not demonstrated why its past state contributions warrant waiver of rules for the future allocation of federal support.

    57. Second, even if the Commission were to find that Pennsylvania had established special circumstances, for the reasons explained above, Pennsylvania has not demonstrated the public interest would be served by waiving the Phase II auction formula to add a negative weight for bids placed in declined areas in the state. New York was able to demonstrate that waiver of the Phase II auction program rules would serve the public interest for a number of reasons including that it would result in accelerated broadband deployment, it would enable the Commission to use Phase II support efficiently and effectively by leveraging matching New York support in Connect America Phase II-eligible areas and avoiding overbuilding areas served by New York's program, and support would be awarded in a technology-neutral manner using a market-based mechanism consistent with Phase II auction objectives. Such conditions are not present here. For the reasons the Commission already discussed, although Pennsylvania's proposed approach could result in more declined areas in Pennsylvania being served through the Phase II auction, Pennsylvania has not demonstrated that its requested modification would necessarily further the Commission's objectives of using the finite Phase II auction budget efficiently or fully explained how its request would result in a more effective federal-state partnership. Instead, the Commission concludes that the framework it has adopted for the Phase II auction and the Remote Areas Fund will more effectively balance all of these objectives, while still leading to widespread broadband deployment across Pennsylvania's high-cost areas with complementary state support. Thus, the Commission concludes it would not serve the public interest to grant Pennsylvania a waiver.

    II. Procedural Matters A. Paperwork Reduction Act Analysis

    58. This Order on Reconsideration contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.

    B. Congressional Review Act

    59. The Commission will send a copy of this Order on Reconsideration to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    60. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission prepared Initial Regulatory Flexibility Analyses (IRFAs) in connection with the USF/ICC Transformation FNPRM, 76 FR 78384, December 16, 2011, the April 2014 Connect America FNPRM, and the Phase II Auction FNPRM (collectively, Phase II FNPRMs). The Commission sought written public comment on the proposals in the Phase II FNPRMs including comments on the IRFAs. The Commission included Final Regulatory Flexibility Analyses (FRFAs) in connection with the December 2014 Connect America Order, Phase II Auction Order and the Phase II Auction FNPRM Order (collectively, Phase II Orders). This Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) supplements the FRFAs in the Phase II Orders to reflect the actions taken in this Order on Reconsideration and conforms to the RFA.

    61. Need for, and Objectives of, this Order on Reconsideration. This Order on Reconsideration considers the remaining issues raised by parties challenging the Commission's orders implementing the Phase II auction, in which service providers will compete to receive support of up to $1.98 billion to offer voice and broadband service in unserved high-cost areas. Specifically, the Commission resolves petitions challenging the Commission's decisions on the following issues: How to compare bids of different performance levels, standalone voice requirements, Phase II auction deployment and eligibility, and state-specific bidding weights, among other matters. The Commission also adopts a process by which a support recipient that sufficiently demonstrates that it cannot identify enough actual locations on the ground to meet its Phase II obligations can have its total state location obligation adjusted and its support reduced on a pro rata basis. Additionally, the Commission modifies its letter of credit rules to provide some additional relief for Phase II auction recipients by reducing the costs of maintaining a letter of credit. By resolving these issues, the Commission moves a step closer to holding the Phase II auction and, in turn, to the goal of closing the digital divide for all Americans, including those in rural areas of our country.

    62. Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the rules as a result of those comments. The Chief Counsel did not file any comments in response to the relevant IRFAs.

    63. Description and Estimate of the Number of Small Entities to which the Rules Will Apply. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

    64. As noted above, FRFAs were incorporated into the Phase II Orders. In those analyses, the Commission described in detail the small entities that might be significantly affected. In this Order on Reconsideration, the Commission hereby incorporates into this Supplemental FRFA the descriptions and estimates of the number of small entities from the previous FRFAs in the Phase II Orders.

    65. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities. The data, information and document collection required by the Phase II Orders as described in the previous FRFAs in this proceeding are hereby incorporated into this Supplemental FRFA. In this Order on Reconsideration, the Commission also adopts a process whereby a support recipient can demonstrate there are not enough actual locations on the ground to meet its state location requirement. The Order on Reconsideration directs the Bureau to implement the specific procedures for this filing.

    66. Steps Taken to Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) and exemption from coverage of the rule, or any part thereof, for small entities.

    67. The analysis of the Commission's efforts to minimize the possible significant economic impact on small entities as described in the previous Phase II Orders FRFAs are hereby incorporated into this Supplemental FRFA. In addition, by making a modest reduction in the required value of the letter of credit for recipients that have substantially met their service obligations, the Commission is further reducing the costs of this requirement for such entities, including small entities. Moreover, the Commission adopted a process by which a support recipient can demonstrate that there are not enough actual locations on the ground to meet its state location requirement. If the support recipient makes a sufficient demonstration, it can have its state location obligation adjusted along with a pro rata reduction in support. This will particularly benefit entities that bid to serve smaller areas, which the Commission expects will include small entities. Such entities might not have otherwise been able to locate enough locations in the areas where the CAM did not overestimate the available locations in their bids to meet their obligation and would potentially have been subject to non-compliance measures. The Commission also expects that the Bureau will factor in the unique challenges faced by small entities in implementing this process.

    68. People with Disabilities. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

    III. Ordering Clauses

    69. Accordingly, it is ordered, pursuant to the authority contained in sections 4(i), 214, 254, 303(r), 403, and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 214, 254, 303(r), 403, and 405, and §§ 1.1, 1.3, 1.427, and 1.429 of the Commission's rules, 47 CFR 1.1, 1.3, 1.427, and 1.429, that this Order on Reconsideration is adopted, effective thirty (30) days after publication of the text or summary thereof in the Federal Register.

    70. It is further ordered that part 54 of the Commission's rules, 47 CFR part 54, IS amended as set forth in the following, and such rule amendment shall be effective thirty (30) days after publication of the rule amendment in the Federal Register, except to the extent they contain new or modified information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act. The rules that contain new or modified information collection requirements subject to PRA review shall become effective after the Commission publishes a notice in the Federal Register announcing such approval and the relevant effective date.

    71. It is further ordered that, pursuant to § 1.429 of the Commission's rules, 47 CFR 1.429 the Petition for Clarification or Reconsideration filed by ADTRAN, Inc. on July 5, 2016 is denied to the extent described herein.

    72. It is further ordered that, pursuant to § 1.429 of the Commission's rules, 47 CFR 1.429 the Petition for Reconsideration filed by Broad Valley Micro Fiber Networks Inc. on July 20, 2016 is granted in part, dismissed in part, and denied in part to the extent described herein.

    73. It is further ordered that, pursuant to § 1.429 of the Commission's rules, 47 CFR 1.429 the Petition for Reconsideration filed by Crocker Telecommunications, LLC on July 18, 2016 is granted in part, dismissed in part, and denied in part to the extent described herein.

    74. It is further ordered that, pursuant to § 1.429 of the Commission's rules, 47 CFR 1.429 the Petition for Reconsideration filed by Hughes Network Systems, LLC on April 20, 2017 is denied to the extent described herein.

    75. It is further ordered that, pursuant to § 1.429 of the Commission's rules, 47 CFR 1.429 the Petition for Reconsideration filed by the National Rural Electric Cooperative Association and the Utilities Technology Council on July 21, 2016 is dismissed in part and denied in part to the extent described herein.

    76. It is further ordered that, pursuant to §§ 1.3 and 1.429 of the Commission's rules, 47 CFR 1.3, 1.429 the Petition for Reconsideration, Modification, or Waiver filed by the Pennsylvania Public Utility Commission and the Pennsylvania Department of Community and Economic Development on April 19, 2017 is denied to the extent described herein.

    77. It is further ordered that, pursuant to § 1.429 of the Commission's rules, 47 CFR 1.429 the Petition for Reconsideration filed by Southern Tier Wireless, Inc. on July 20, 2016 is granted in part, dismissed in part, and denied in part to the extent described herein.

    78. It is further ordered that, pursuant to § 1.429 of the Commission's rules, 47 CFR 1.429 the Petition for Reconsideration filed by Verizon on August 8, 2016 is denied in part to the extent described herein.

    List of Subjects in 47 CFR Part 54

    Communications common carriers, Health facilities, Infants and children, Internet, Libraries, Reporting and recordkeeping requirements, Schools, Telecommunications, Telephone.

    Federal Communications Commission. Marlene Dortch, Secretary. Final Rules

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 54 as follows:

    PART 54—UNIVERSAL SERVICE 1. The authority citation for part 54 continues to read as follows: Authority:

    47 U.S.C. 151, 154(i), 155, 201, 205, 214, 219, 220, 254, 303(r), 403, and 1302 unless otherwise noted.

    2. Amend § 54.315 by revising the section heading and paragraph (c)(1)(ii) to read as follows:
    § 54.315 Application process for Connect America Fund phase II support distributed through competitive bidding.

    (c) * * *

    (1) * * *

    (ii) Once the recipient has met its 80 percent service milestone, it may obtain a new letter of credit or renew its existing letter of credit so that it is valued at a minimum at 60 percent of the total support that has been disbursed plus the amount that will be disbursed in the coming year.

    [FR Doc. 2018-07509 Filed 4-12-18; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 202 and 239 [Docket DARS-2018-0013] RIN 0750-AJ39 Defense Federal Acquisition Regulation Supplement: Definition of “Information Technology” (DFARS Case 2017-D033) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to relocate the definition of information technology within the DFARS.

    DATES:

    Effective April 13, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Jennifer Johnson, telephone 571-372-6100.

    SUPPLEMENTARY INFORMATION: I. Background

    DoD is relocating the definition of “information technology” from DFARS 202.101 to DFARS 239.7301. This specific definition of “information technology” was established in section 806, entitled “Requirements for Information Relating to Supply Chain Risk,” of the National Defense Authorization Act for Fiscal Year (FY) 2011 (Pub. L. 111-383). Section 806(b)(6) used the definition of “information technology” in 40 U.S.C. 11101(6) to define a “covered item of supply”. On October 30, 2015, DoD published in the Federal Register (80 FR 67244) the final rule for DFARS case 2012-D050, Requirements Relating to Supply Chain Risk, incorporating this “information technology” definition into DFARS 202.101, Definitions, as opposed to DFARS 239.7301, Definitions. This rule will align this specific definition of “information technology” with DFARS 239.73, Requirements for Information Relating to Supply Chain Risk, as originally intended in Public Law 111-383.

    II. Publication of This Final Rule for Public Comment Is Not Required by Statute

    The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is the Office of Federal Procurement Policy statute (codified at Title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment because the rule merely relocates existing text within the DFARS. This rule affects only the internal operating procedures of the Government.

    III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items

    This rule does not add any new provisions or clauses or impact existing provisions or clauses. There are no reporting, recordkeeping, or other compliance requirements in this rule.

    IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    V. Executive Order 13771

    This rule is not subject to E.O. 13771, Reducing Regulation and Controlling Regulatory Costs, because this rule is not a significant regulatory action under E.O. 12866.

    VI. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section II. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

    VII. Paperwork Reduction Act

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

    List of Subjects in 48 CFR Parts 202 and 239

    Government procurement.

    Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 202 and 239 are amended as follows:

    1. The authority citation for parts 202 and 239 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 202—DEFINITIONS OF WORDS AND TERMS
    202.101 [Amended]
    2. Amend section 202.101 by removing the definition of “Information technology.”
    PART 239—ACQUISITION OF INFORMATION TECHNOLOGY 3. Amend section 239.7301 by adding the definition of “Information technology” in alphabetical order to read as follows:
    239.7301 Definitions.

    Information technology (see 40 U.S.C 11101(6)) means, in lieu of the definition at FAR 2.1, any equipment, or interconnected system(s) or subsystem(s) of equipment, that is used in the automatic acquisition, storage, analysis, evaluation, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information by the agency.

    (1) For purposes of this definition, equipment is used by an agency if the equipment is used by the agency directly or is used by a contractor under a contract with the agency that requires—

    (i) Its use; or

    (ii) To a significant extent, its use in the performance of a service or the furnishing of a product.

    (2) The term “information technology” includes computers, ancillary equipment (including imaging peripherals, input, output, and storage devices necessary for security and surveillance), peripheral equipment designed to be controlled by the central processing unit of a computer, software, firmware and similar procedures, services (including support services), and related resources.

    (3) The term “information technology” does not include any equipment acquired by a contractor incidental to a contract.

    [FR Doc. 2018-07734 Filed 4-12-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 207, 210, and 219 [Docket DARS-2018-0014] RIN 0750-AJ43 Defense Federal Acquisition Regulation Supplement: Consolidation of Contract Requirements (DFARS Case 2017-D004) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to remove outdated coverage of consolidation of contract requirements.

    DATES:

    Effective April 13, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Jennifer D. Johnson, telephone 571-372-6100.

    SUPPLEMENTARY INFORMATION: I. Background

    DoD is amending the DFARS to remove outdated coverage of consolidation of contract requirements, which is defined at DFARS 207.170 as “the use of a solicitation to obtain offers for a single contract or multiple award contract to satisfy two or more requirements of a department, agency, or activity for supplies or services that previously have been provided to, or performed for, that department, agency, or activity under two or more separate contracts.” This coverage implemented 10 U.S.C. 2382, which was repealed by section 1671 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239). Section 1671 also amended section 44 of the Small Business Act (15 U.S.C. 657q) to remove the requirement for DoD to comply with 10 U.S.C. 2382. As a result, DoD is now required to comply with 15 U.S.C. 657q.

    10 U.S.C. 2382 imposed limitations on the use of acquisition strategies involving consolidation, including requirements to identify alternative approaches that would involve a lesser degree of consolidation and to determine that consolidation is necessary and justified. Section 44 of the Small Business Act (15 U.S.C. 657q) contains similar limitations. The Federal Acquisition Regulation (FAR) addresses consolidation, including the limitations of 15 U.S.C. 657q, at FAR 7.107. By removing the outdated DFARS coverage of consolidation, this rule will reduce confusion among the DoD contracting workforce caused by differing requirements in the FAR and DFARS.

    II. Discussion and Analysis

    This rule deletes DFARS section 207.170 in its entirety to remove the obsolete text on consolidation of contract requirements. In addition, paragraphs (a)(i)(A) and (a)(ii)(A) of DFARS section 210.001 are also deleted to remove the reference to the deleted text at DFARS 207.170. In paragraph (c)(11)(A) of the DFARS section 219.201, the reference to deleted text at DFARS 207.107 is replaced by a reference to FAR 7.107, where contract consolidate and the limitations of 15 U.S.C. 657q are currently addressed.

    III. Publication of This Final Rule for Public Comment Is Not Required by Statute

    The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is the Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment because the rule merely removes obsolete text from the DFARS, which affects only the internal operating procedures of the Government.

    IV. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items

    This rule does not create any new provisions or clauses nor impact any existing provisions or clauses.

    V. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    VI. Executive Order 13771

    This rule is not subject to E.O. 13771, Reducing Regulation and Controlling Regulatory Costs, because the rule relates to agency organization, management, or personnel.

    VII. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section III. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

    VIII. Paperwork Reduction Act

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

    List of Subjects in 48 CFR Parts 207, 210, and 219

    Government procurement.

    Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 207, 210, and 219 are amended as follows:

    1. The authority citation for parts 207, 210, and 219 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 207—ACQUISITION PLANNING
    207.170 [Removed and Reserved]
    2. Remove and reserve section 207.170.
    207.170-1 [Removed]
    3. Remove section 207.170-1.
    207.170-2 [Removed]
    4. Remove section 207.170-2.
    207.170-3 [Removed]
    5. Remove section 207.170-3. PART 210—MARKET RESEARCH 6. Amend section 210.001 by revising paragraph (a) to read as follows:
    210.001 Policy.

    (a) In addition to the requirements of FAR 10.001(a), agencies shall—

    (i) Conduct market research appropriate to the circumstances before issuing a solicitation with tiered evaluation of offers (section 816 of Pub. L. 109-163); and

    (ii) Use the results of market research to determine whether the criteria in FAR part 19 are met for setting aside the acquisition for small business or, for a task or delivery order, whether there are a sufficient number of qualified small business concerns available to justify limiting competition under the terms of the contract. If the contracting officer cannot determine whether the criteria are met, the contracting officer shall include a written explanation in the contract file as to why such a determination could not be made (section 816 of Pub. L. 109-163).

    PART 219—SMALL BUSINESS PROGRAMS
    219.201 [Amended]
    7. Amend section 219.201 in paragraph (c)(11)(A) by removing “(see 207.170)” and adding “(see FAR 7.107)” in its place.
    [FR Doc. 2018-07732 Filed 4-12-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 211, 215, 219, 242, and 252 [Docket DARS-2016-0027] RIN 0750-AJ00 Defense Federal Acquisition Regulation Supplement: Temporary Extension of Test Program for Comprehensive Small Business Subcontracting Plans (DFARS Case 2015-D013) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement sections of the National Defense Authorization Acts for Fiscal Years 2015, 2016, and 2017 to provide revisions to the Test Program for Negotiation of Comprehensive Small Business Subcontracting Plans.

    DATES:

    Effective April 13, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Jennifer Johnson, telephone 571-372-6100.

    SUPPLEMENTARY INFORMATION:

    I. Background

    DoD published a proposed rule in the Federal Register at 81 FR 65606 on September 23, 2016, to implement section 821 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2015 (Pub. L. 113-291) and section 872 of the NDAA for FY 2016 (Pub. L. 114-92), to revise the Test Program for Negotiation of Comprehensive Small Business Subcontracting Plans (“the Test Program”).

    Section 821 of the NDAA for FY 2015 provides for contractors participating in the Test Program to report, on a semiannual basis, specific information related to their comprehensive subcontracting plans. This information is expected to assist in determining if Test Program participants have achieved cost savings while enhancing opportunities for small businesses.

    In addition, section 821—

    • Repeals section 402 of Public Law 101-574, which suspended liquidated damages under comprehensive small business subcontracting plans;

    • Requires consideration, as part of the past performance evaluation of an offeror, of any failure to make a good faith effort to comply with its comprehensive subcontracting plan;

    • Extends the Test Program from December 14, 2014, through December 31, 2017;

    • Increases the threshold for participation in the Test Program from $5 million to $100 million; and

    • Prohibits negotiation of comprehensive subcontracting plans with contractors who failed to meet the subcontracting goals of their comprehensive subcontracting plan for the prior fiscal year.

    Section 872 of the NDAA for FY 2016 removes the prohibition on negotiation of comprehensive subcontracting plans with contractors who failed to meet the subcontracting goals of their comprehensive subcontracting plan for the prior fiscal year.

    This final rule also implements section 826 of the NDAA for FY 2017 (Pub. L. 114-328), which further extends the Test Program through December 31, 2027.

    II. Discussion and Analysis

    One respondent submitted a public comment in response to the proposed rule. DoD reviewed the public comment in the development of the final rule.

    A. Summary of Significant Changes From the Proposed Rule

    There are no changes made to the final rule as a result of the public comment; however, other conforming changes are made.

    B. Analysis of Public Comment

    Comment: The respondent urged DoD to state in its regulations that any civilian injured through exposure to toxic substances at a military installation would be considered a service-disabled veteran for purposes of eligibility for DoD programs.

    Response: The comment is outside the scope of this case.

    C. Other Changes From the Proposed Rule

    The text at DFARS 219.702-70(f) is revised to reflect the expiration date for the Test Program of December 31, 2027, to implement section 826 of the NDAA for FY 2017. References in DFARS clause 252.219-7004 to the “Data Universal Numbering System (DUNS) number” are revised to read “unique entity identifier”. Paragraph headers are added at DFARS 219.702-70(a) and 252.219-7004(b) and (e).

    III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items

    This rule applies the requirements of section 821 of the NDAA for FY 2015 to contracts for the acquisition of commercial items, including commercially available off-the-shelf (COTS) items. The rule is not applicable to the contracts at or below the simplified acquisition threshold. Accordingly, the Director, DPAP, has signed a determination and finding to apply this rule to contracts for the acquisition of commercial items, including COTS items, for DFARS clauses 252.219-7003, Small Business Subcontracting Plan (DoD Contracts), and 252.219-7004, Small Business Subcontracting Plan (Test Program).

    IV. Expected Cost Savings

    This final rule amends the DFARS to implement section 821 of the NDAA for FY 2015, section 872 of the NDAA for FY 2016, and section 826 of NDAA for FY 2017, all of which provide revisions to the Test Program for Negotiation of Comprehensive Small Business Subcontracting Plans. Section 826 extended the Test Program through December 31, 2027.

    Customarily, an individual small business subcontracting plan is required to be negotiated by large business firms for each contract above $700,000. Under the Test Program, participants negotiate a comprehensive subcontracting plan (CSP) to cover all applicable contacts, in lieu of providing a separate plan for each individual contract. To be eligible for the Test Program, the program participants are required to be accepted into the program and to have at least three DoD contracts during the preceding year with an aggregate value of at least $100 million. There are currently nine large business firms that are currently participating in the Test Program. The CSPs for these nine large businesses cover approximately 8,000 contracts.

    This rule revises DFARS clause 252.219-7004, Small Business Subcontracting Plan (Test Program), to require the nine Test Program participants to report, on a semiannual basis, specific information related to their CSPs. This information is expected to assist DoD in determining if the participants have achieved cost savings while enhancing opportunities for small businesses. Contracting officers conduct compliance reviews each year; and, if it is determined that the contractor failed to make a good faith effort to comply with the CSPs, the contracting officer may assess liquidated damages. Any failure to meet negotiated goals will also be considered as part of the evaluation of the participant firm's past performance. However, very few, if any, failures are expected in the Test Program.

    Over the next 10 years, significant cost savings are expected to accrue to the public and the Government through use of CSPs by greatly reducing administrative burdens, while also advancing the interests of small business subcontractors. Use of CSPs may also foster an environment that provides visibility to a firm of its overall subcontracting program, thereby potentially providing greater opportunities to ensure equitable consideration on an enterprise-wide basis for business opportunities for all its subcontractors.

    DoD has performed a regulatory cost analysis on this rule. The following is a summary of the estimated public annualized cost savings in millions, calculated in 2016 dollars at a 7-percent discount rate in perpetuity:

    Annualized at 7% $2.1 Present Value at 7% 29.8

    To access the full Regulatory Cost Analysis for this rule, go to the Federal eRulemaking Portal at www.regulations.gov, search for “DFARS Case 2015-D013,” click “Open Docket,” and view “Supporting Documents.”

    V. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Office of Management and Budget, Office of Information and Regulatory Affairs, has determined that this is not a significant regulatory action as defined under section 3(f) of E.O. 12866 and, therefore, was not subject to review under section 6(b). This rule is not a major rule under 5 U.S.C. 804(2).

    VI. Executive Order 13771

    This final rule is considered to be an E.O. 13771 deregulatory action. Details on the estimated cost savings can be found in section IV. of this preamble.

    VII. Regulatory Flexibility Act

    A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

    DoD is issuing a final rule to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 821 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2015 (Pub. L. 113-291), section 872 of the NDAA for FY 2016 (Pub. L. 114-92), and section 826 of the NDAA for FY 2017 (Pub. L. 114-328). Section 821 of the NDAA for FY 2015 provides several changes to the Test Program for Negotiation of Comprehensive Small Business Subcontracting Plans (Test Program), including new reporting and eligibility requirements, an extension of the Test Program, and authority to assess liquidated damages. Section 872 of the NDAA for FY 2016 removes one of the eligibility requirements. Section 826 of the NDAA for FY 2017 extends the Test Program through December 31, 2027. The objectives of this rule are to collect data to assist in assessing the successes or shortcomings of the Test Program and to provide the means to hold Test Program participants accountable for failure to make a good faith effort to comply with their comprehensive subcontracting plans.

    There were no issues raised by the public in response to the initial regulatory flexibility analysis provided in the proposed rule.

    The rule will not apply to small entities. Therefore, the rule does not impose any reporting or recordkeeping requirements on any small entities.

    DoD has not identified any alternatives that are consistent with the stated objectives of the applicable statutes. However, DoD notes that the rule may have a positive economic impact on small entities because the rule encourages Test Program participants to make a good faith effort to comply with their comprehensive subcontracting plans.

    VIII. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35), because the rule does not impose a collection of information on ten or more members of the public.

    List of Subjects in 48 CFR Parts 211, 215, 219, 242, and 252

    Government procurement.

    Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 211, 215, 219, 242, and 252 are amended as follows:

    1. The authority citation for parts 211, 215, 219, 242, and 252 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 211—DESCRIBING AGENCY NEEDS 2. Add section 211.500 to subpart 211.5 to read as follows:
    211.500 Scope.

    This subpart and FAR subpart 11.5 do not apply to liquidated damages for comprehensive subcontracting plans under the Test Program for Negotiation of Comprehensive Small Business Subcontracting Plans. See 219.702-70 for coverage of liquidated damages for comprehensive subcontracting plans.

    PART 215—CONTRACTING BY NEGOTIATION 3. Amend section 215.305(a)(2) by— a. Designating the text as paragraph (a)(2)(A); and b. Adding paragraph (a)(2)(B).

    The addition reads as follows:

    215.305 Proposal evaluation.

    (a)(2) * * *

    (B) Contracting officers shall consider an offeror's failure to make a good faith effort to comply with its comprehensive subcontracting plan under the Test Program described at 219.702-70 as part of the evaluation of the past performance.

    PART 219—SMALL BUSINESS PROGRAMS
    219.702 [Redesignated as 219.702-70]
    4. Redesignate section 219.702 as 219.702-70; and revise it to read as follows:
    219.702-70 Statutory requirements for the Test Program for Negotiation of Comprehensive Small Business Subcontracting Plans.

    (a) Test Program. In accordance with 15 U.S.C. 637 note, DoD has established a test program to determine whether comprehensive subcontracting plans on a corporate, division, or plant-wide basis will reduce administrative burdens while enhancing subcontracting opportunities for small and small disadvantaged business concerns. This program is referred to as the Test Program for Negotiation of Comprehensive Small Business Subcontracting Plans (Test Program).

    (b) Eligibility requirements. To become and remain eligible to participate in the Test Program, a business concern is required to have furnished supplies or services (including construction) under at least three DoD contracts during the preceding fiscal year, having an aggregate value of at least $100 million.

    (c) Comprehensive subcontracting plans. (1) The Defense Contract Management Agency will designate the contracting officer who shall negotiate and approve comprehensive subcontracting plans with eligible participants on an annual basis.

    (2) Test Program participants use their comprehensive subcontracting plans, in lieu of individual subcontracting plans, when performing any DoD contract or subcontract that requires a subcontracting plan.

    (d) Assessment. The contracting officer designated to manage the comprehensive subcontracting plan shall conduct a compliance review during the fiscal year after the close of the fiscal year for which the plan is applicable. The contracting officer shall compare the approved percentage or dollar goals to the total, actual subcontracting dollars covered by the comprehensive subcontracting plan.

    (1) If the contractor has failed to meet its approved subcontracting goal(s), the contracting officer shall give the contractor written notice specifying the failure, advising of the potential for assessment of liquidated damages, permitting the contractor to demonstrate what good faith efforts have been made, and providing a period of 15 working days (or longer period at the contracting officer's discretion) within which to respond. The contracting officer may take the contractor's failure to respond to the notice as an admission that no valid explanation exists.

    (2) The contracting officer shall review all available information to determine whether the contractor has failed to make a good faith effort to comply with the plan.

    (3) If, after consideration of all relevant information, the contracting officer determines that the contractor failed to make a good faith effort to comply with the comprehensive subcontracting plan, the contracting officer shall issue a final decision. The contracting officer's final decision shall include the right of the contractor to appeal under the Disputes clause. The contracting officer shall distribute a copy of the final decision to all cognizant contracting officers for the contracts covered under the plan.

    (e) Liquidated damages. The amount of liquidated damages shall be the amount of anticipated damages sustained by the Government, including but not limited to additional expenses of administration, reporting, and contract monitoring, and shall be identified in the comprehensive subcontracting plan. Liquidated damages shall be in addition to any other remedies the Government may have.

    (f) Expiration date. The Test Program expires on December 31, 2017.

    5. Amend section 219.708 by— a. Revising paragraph (b)(1)(B); b. Revising paragraph (b)(2); and c. Removing from paragraph (c)(1) “test program described in 219.702” and adding “Test Program described in 219.702-70” in its place.

    The revisions read as follows:

    219.708 Contract clauses.

    (b)(1) * * *

    (B) In contracts with contractors that have comprehensive subcontracting plans approved under the Test Program described in 219.702-70, including contracts using FAR part 12 procedures for the acquisition of commercial items, use the clause at 252.219-7004, Small Business Subcontracting Plan (Test Program), instead of the clauses at 252.219-7003, Small Business Subcontracting Plan (DoD Contracts), FAR 52.219-9, Small Business Subcontracting Plan, and FAR 52.219-16, Liquidated Damages—Subcontracting Plan.

    (2) In contracts with contractors that have comprehensive subcontracting plans approved under the Test Program described in 219.702-70, do not use the clause at FAR 52.219-16, Liquidated Damages—Subcontracting Plan.

    PART 242—CONTRACT ADMINISTRATION AND AUDIT SERVICES 6. Add subpart 242.15 to read as follows: Subpart 242.15—Contractor Performance Information Sec. 242.1502 Policy. Subpart 242.15—Contractor Performance Information
    242.1502 Policy.

    (g) Past performance evaluations in the Contractor Performance Assessment Reporting System shall include an assessment of the contractor's performance against, and efforts to achieve, the goals identified in its comprehensive small business subcontracting plan when the contract contains the clause at 252.219-7004, Small Business Subcontracting Plan (Test Program).

    PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 7. Amend section 252.219-7003 by— a. Revising the section heading and introductory text; b. Removing the clause date of “(MAR 2016)” and adding “(APR 2018)” in its place; c. Adding paragraph (g); and d. In Alternate I— i. Revising the introductory text; ii. Removing the clause date of “(MAR 2016)” and adding “(APR 2018)” in its place; and iii. Adding paragraph (g).

    The revision and additions read as follows:

    252.219-7003 Small Business Subcontracting Plan (DoD Contracts).

    Basic. As prescribed in 219.708(b)(1)(A) and (b)(1)(A)(1), use the following clause:

    (g) Include the clause at 252.219-7004, Small Business Subcontracting Plan (Test Program), in subcontracts with subcontractors that participate in the Test Program described in DFARS 219.702-70, where the subcontract is expected to exceed $700,000 ($1.5 million for construction of any public facility) and to have further subcontracting opportunities.

    Alternate I. As prescribed in 219.708(b)(1)(A) and (b)(1)(A)(2), use the following clause, which uses a different paragraph (f) than the basic clause.

    (g) Include the clause at 252.219-7004, Small Business Subcontracting Plan (Test Program), in subcontracts with subcontractors that participate in the Test Program described in DFARS 219.702-70, where the subcontract is expected to exceed $700,000 ($1.5 million for construction of any public facility) and to have further subcontracting opportunities.

    8. Revise section 252.219-7004 to read as follows:
    252.219-7004 Small business subcontracting plan (Test Program).

    As prescribed in 219.708(b)(1)(B), use the following clause:

    Small Business Subcontracting Plan (Test Program) (APR 2018)

    (a) Definitions. As used in this clause—

    Covered small business concern means a small business concern, veteran-owned small business concern, service-disabled veteran-owned small business concern, HUBZone small business concern, women-owned small business concern, or small disadvantaged business concern, as these terms are defined in FAR 2.101.

    Electronic Subcontracting Reporting System (eSRS) means the Governmentwide, electronic, web-based system for small business subcontracting program reporting. The eSRS is located at http://www.esrs.gov.

    Failure to make a good faith effort to comply with a comprehensive subcontracting plan means a willful or intentional failure to perform in accordance with the requirements of the Contractor's approved comprehensive subcontracting plan or willful or intentional action to frustrate the plan.

    Subcontract means any agreement (other than one involving an employer-employee relationship) entered into by a Federal Government prime Contractor or subcontractor calling for supplies or services required for performance of the contract or subcontract.

    (b) Test Program. The Contractor's comprehensive small business subcontracting plan and its successors, which are authorized by and approved under the Test Program of 15 U.S.C. 637 note, as amended, shall be included in and made a part of this contract. Upon expulsion from the Test Program or expiration of the Test Program, the Contractor shall negotiate an individual subcontracting plan for all future contracts that meet the requirements of 15 U.S.C. 637(d).

    (c) Eligibility requirements. To become and remain eligible to participate in the Test Program, a business concern is required to have furnished supplies or services (including construction) under at least three DoD contracts during the preceding fiscal year, having an aggregate value of at least $100 million.

    (d) Reports. (1) The Contractor shall report semiannually for the 6-month periods ending March 31 and September 30, the information in paragraphs (d)(1)(i) through (v) of this section within 30 days after the end of the reporting period. Submit the report at https://www.esrs.gov.

    (i) A list of contracts covered under its comprehensive small business subcontracting plan, to include the Commercial and Government Entity (CAGE) code and unique entity identifier.

    (ii) The amount of first-tier subcontract dollars awarded during the 6-month period covered by the report to covered small business concerns, with the information set forth separately by—

    (A) North American Industrial Classification System (NAICS) code;

    (B) Major defense acquisition program, as defined in 10 U.S.C. 2430(a);

    (C) Contract number, if the contract is for maintenance, overhaul, repair, servicing, rehabilitation, salvage, modernization, or modification of supplies, systems, or equipment, and the total value of the contract, including options, exceeds $100 million; and

    (D) Military department.

    (iii) Total number of subcontracts active under the Test Program that would have otherwise required a subcontracting plan.

    (iv) Costs incurred in negotiating, complying with, and reporting on its comprehensive subcontracting plan.

    (v) Costs avoided through the use of a comprehensive subcontracting plan.

    (2) The Contractor shall—

    (i) Ensure that subcontractors with subcontracting plans agree to submit an Individual Subcontract Report (ISR) and/or Summary Subcontract Report (SSR) using the Electronic Subcontracting Reporting System (eSRS).

    (ii) Provide its contract number, its unique entity identifier, and the email address of the Contractor's official responsible for acknowledging or rejecting the ISR to all first-tier subcontractors, who will be required to submit ISRs, so they can enter this information into the eSRS when submitting their reports.

    (iii) Require that each subcontractor with a subcontracting plan provide the prime contract number, its own unique entity identifier, and the email address of the subcontractor's official responsible for acknowledging or rejecting the ISRs to its subcontractors with subcontracting plans who will be required to submit ISRs.

    (iv) Acknowledge receipt or reject all ISRs submitted by its subcontractors using eSRS.

    (3) The Contractor shall submit SSRs using eSRS at http://www.esrs.gov. The reports shall provide information on subcontract awards to small business concerns, veteran-owned small business concerns, service-disabled veteran-owned small business concerns, HUBZone small business concerns, small disadvantaged business concerns, and women-owned small business concerns. Purchases from a corporation, company, or subdivision that is an affiliate of the prime Contractor or subcontractor are not included in these reports. Subcontract award data reported by prime contractors and subcontractors shall be limited to awards made to their immediate next-tier subcontractors. Credit cannot be taken for awards made to lower-tier subcontractors unless the Contractor or subcontractor has been designated to receive a small business or small disadvantaged business credit from a member firm of the Alaska Native—Corporations or an Indian tribe. Only subcontracts involving performance in the U.S. or its outlying areas should be included in these reports.

    (i) This report may be submitted on a corporate, company, or subdivision (e.g., plant or division operating as a separate profit center) basis, as negotiated in the comprehensive subcontracting plan with the Defense Contract Management Agency.

    (ii) This report encompasses all subcontracting under prime contracts and subcontracts with the Department of Defense, regardless of the dollar value of the subcontracts, and is based on the negotiated comprehensive subcontracting plan.

    (iii) The report shall be submitted semiannually for the six months ending March 31 and the twelve months ending September 30. Reports are due 30 days after the close of each reporting period.

    (iv) The authority to acknowledge receipt of or reject the SSR resides with the Defense Contract Management Agency.

    (e) Failure to comply. The failure of the Contractor or subcontractor to comply in good faith with the clause of this contract entitled “Utilization of Small Business Concerns,” or an approved plan required by this clause, shall be a material breach of the contract.

    (f) Liquidated damages. The Contracting Officer designated to manage the comprehensive subcontracting plan will exercise the functions of the Contracting Officer, as identified in paragraphs (f)(1) through (4) of this clause, on behalf of all DoD departments and agencies that awarded contracts covered by the Contractor's comprehensive subcontracting plan.

    (1) To determine the need for liquidated damages, the Contracting Officer will conduct a compliance review during the fiscal year after the close of the fiscal year for which the plan is applicable. The Contracting Officer will compare the approved percentage or dollar goals to the total, actual subcontracting dollars covered by the plan.

    (2) If the Contractor has failed to meet its approved subcontracting goal(s), the Contracting Officer will provide the Contractor written notice specifying the failure, advising of the potential for assessment of liquidated damages, and permitting the Contractor to demonstrate what good faith efforts have been made. The Contracting Officer may take the Contractor's failure to respond to the notice within 15 working days (or longer period at the Contracting Officer's discretion) as an admission that no valid explanation exists.

    (3) If, after consideration of all relevant information, the Contracting Officer determines that the Contractor failed to make a good faith effort to comply with the comprehensive subcontracting plan, the Contracting Officer will issue a final decision to the Contractor to that effect and require the Contractor to pay liquidated damages to the Government in the amount identified in the comprehensive subcontracting plan.

    (4) The Contractor shall have the right of appeal under the clause in this contract entitled “Disputes” from any final decision of the Contracting Officer.

    (g) Subcontracts. The Contractor shall include in subcontracts that offer subcontracting opportunities, are expected to exceed $700,000 ($1.5 million for construction of any public facility), and are required to include the clause at 52.219-8, Utilization of Small Business Concerns, the clauses at—

    (1) FAR 52.219-9, Small Business Subcontracting Plan, and 252.219-7003, Small Business Subcontracting Plan (DoD Contracts)—Basic;

    (2) FAR 52.219-9, Small Business Subcontracting Plan, with its Alternate III, and 252.219-7003, Small Business Subcontracting Plan (DoD Contracts)—Alternate I, to allow for submission of SF 294s in lieu of ISRs; or

    (3) 252.219-7004, Small Business Subcontracting Plan (Test Program), in subcontracts with subcontractors that participate in the Test Program described in DFARS 219.702-70.

    (End of clause)
    [FR Doc. 2018-07730 Filed 4-12-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 212, 213, 219, 237, and 252 [Docket DARS-2016-0034] RIN 0750-AJ06 Defense Federal Acquisition Regulation Supplement: Competition for Religious-Related Services Contracts (DFARS Case 2016-D015) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2016, clarifying the competition requirements for the acquisition of religious-related services contracts on a United States military installation.

    DATES:

    Effective April 13, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Carrie Moore, telephone 571-372-6093.

    SUPPLEMENTARY INFORMATION:

    I. Background

    DoD published a proposed rule in the Federal Register at 81 FR 93875 on December 22, 2016, recommending revisions to the DFARS to implement section 898 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114-92). Section 898 requires that DoD not preclude a nonprofit organization from competing for a contract for religious-related services on a United States military installation. The proposed revisions set forth policy and procedures that allow nonprofit organizations to participate in small business set-asides and directed contracting officers not to use the sole source authorities at FAR 6.302-5(b)(4) through (7) when acquiring religious-related services on a United States military installation. The proposed rule also contained a new provision to ensure that potential offerors are aware that a nonprofit organization will not be precluded from competing for a contract for religious-related services under a small business set-aside, notwithstanding that it is not one of the small business types identified in FAR 19.000(a)(3).

    The comment period for the proposed rule closed on February 21, 2017. There were no public comments submitted in response to the proposed rule.

    II. Discussion and Analysis

    There are no changes made in the final rule from the proposed rule.

    III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items

    This rule applies the requirements of section 898 of the NDAA for FY 2016 to contracts at or below the simplified acquisition threshold (SAT), and to contracts for the acquisition of commercial items. The rule is not applicable to the contracts for the acquisition of commercially available off-the-shelf (COTS) items. Accordingly, the Director, DPAP, has signed a determination and finding to apply this rule to contracts or subcontracts in amounts not greater than the SAT and the acquisition of commercial items, excluding COTS items, for DFARS clause 252.219-7012, Competition for Religious-Related Services.

    IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    V. Executive Order 13771

    This rule is not subject to E.O. 13771 (82 FR 9339, February 3, 2017), because this rule is not a significant regulatory action.

    VI. Regulatory Flexibility Act

    A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

    The objective of this final is to implement section 898 of the National Defense Authorization Act for Fiscal Year 2016. The rule does so by amending the DFARS to establish the policy and procedures necessary to ensure nonprofit entities, such as religious organizations, are not precluded from participating in acquisitions for religious related services on U.S. military installations. There were no public comments received in response to the initial regulatory flexibility analysis.

    This rule may have a significant economic impact on a substantial number of small businesses that typically compete for contracts for the covered services, since most of the contracts awarded for religious-related services fall within the dollar range reserved exclusively for small business participation (over the micro-purchase threshold, but no more than the simplified acquisition threshold (SAT)). The rule may also have a significant economic impact on nonprofit organizations, since these entities are normally precluded from competing for such acquisitions that are reserved for small business concerns. However, the impact is also bounded as this is a small sector in terms of the numbers of purchase orders DoD awards in a year for these requirements, and the dollar value of these orders is relatively low.

    According to data obtained from the Federal Procurement Data System (FPDS) for FY 2015, DoD awarded 290 contracts to 232 unique businesses for religious-related services under the product services code for Chaplain Services (G002), the majority of which (95 percent) are valued below the SAT. Of those 290 contracts, approximately 160 contracts were awarded to 130 unique small business concerns (56 percent). The FPDS data further indicates that of the 160 contracts awarded to small business, 137 of the contracts were awarded on the basis of a total small business set-aside, including one total set-aside to women-owned small business concerns. In addition, in order to carry out the Congressional mandate of section 898, this rule restricts the use of the sole source authorities at FAR 6.302-5(b)(4) through (7) when contracting for religious-related services on U.S. military installations; as a result, such solicitations would have to be competed in a manner that allows nonprofit organizations to participate. Analysis of FPDS data for FY 2015 reveals that four contracts were awarded to a HUBZone small business concern on a sole source basis.

    Additional FPDS data was obtained for FY 2016, which showed DoD awarded 256 contracts to 212 unique businesses for religious-related services under product service code G002, of which the majority (91 percent) were valued below the SAT. Of those 256 contracts, 158 contracts (62 percent) were awarded to 130 unique small business concerns (63 percent). 116 contracts were solicited using a total small business set-aside. Again, as a result of this rule, such solicitations could not preclude a nonprofit organization from submitting an offer and being considered for award. Six contracts were awarded on a sole source basis under the Small Business Act 8(a) Business Development Program (8(a) Program); however, this rule restricts DoD contracting officers from using the sole source authority at FAR 6.302-5(b)(4) for the 8(a) Program to procure religious-related services to be performed on a U.S. military installation. In order to comply with section 898, any requirements currently in the 8(a) program would be required, upon renewal, to be solicited in a manner that does not preclude a nonprofit organization from the competition.

    There are no reporting, recordkeeping, or compliance requirements associated with this rule.

    There are no significant alternative approaches to the rule that would minimize the impact on small entities and meet the stated objectives of the statute.

    VII. Paperwork Reduction Act

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

    List of Subjects in 48 CFR Parts 212, 213, 219, 237, and 252

    Government procurement.

    Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 212, 213, 219, 237, and 252 are amended as follows:

    1. The authority citation for parts 212, 213, 219, 237, and 252 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 212—ACQUISITION OF COMMERCIAL ITEMS 2. Amend section 212.301 by adding new paragraph (f)(vii)(D) to read as follows:
    212.301 Solicitation provisions and contract clauses for the acquisition of commercial items.

    (f) * * *

    (vii) * * *

    (D) Use the provision at 252.219-7012, Competition for Religious-Related Services, as prescribed in 219.270-3.

    PART 213—SIMPLIFIED ACQUISITION PROCEDURES 3. Amend section 213.7001 by— a. Redesignating paragraphs (a)(1) and (2) as paragraphs (a)(1)(i) and (ii), respectively; b. Redesignating the introductory text as paragraph (a)(1); c. Redesignating paragraph (b) as paragraph (a)(2); and d. Adding a new paragraph (b).

    The addition reads as follows:

    213.7001 Procedures.

    (b) To comply with section 898 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92), contracting officers shall not use the sole source authority at FAR 6.302-5(b)(4) to purchase religious-related services to be performed on a U.S. military installation. For competitive purchases under the 8(a) program, contracting officers shall not exclude a nonprofit organization from the competition. See 219.270 for additional procedures.

    PART 219—SMALL BUSINESS PROGRAMS 4. Add sections 219.270, 219.270-1, 219.270-2, and 219.270-3 to subpart 219.2 to read as follows:
    219.270 Religious-related services—inclusion of nonprofit organizations.
    219.270-1 Definition.

    As used in this section—

    Nonprofit organization means any organization that is—

    (1) Described in section 501(c) of the Internal Revenue Code of 1986; and

    (2) Exempt from tax under section 501(a) of that Code.

    219.270-2 Procedures.

    (a) To comply with section 898 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92), when acquiring religious-related services to be performed on a U.S. military installation—

    (1) Do not preclude a nonprofit organization from competing, even when the acquisition is set aside for small businesses as identified in FAR 19.000(a)(3); and

    (2) Do not use any of the sole source exceptions at FAR 6.302-5(b)(4) through (7) for such acquisitions.

    (b) If the apparently successful offeror has not represented in its quotation or offer that it is one of the small business concerns identified in FAR 19.000(a)(3), the contracting officer shall verify that the offeror is registered in the System for Award Management database as a nonprofit organization.

    219.270-3 Solicitation provision.

    Use the provision 252.219-7012, Competition for Religious-Related Services, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for the acquisition of religious-related services to be performed on U.S. military installations, when the acquisition is set aside for any of the small business concerns identified in FAR 19.000(a)(3).

    PART 237—SERVICE CONTRACTING 5. Add new subpart 237.77 to read as follows: Subpart 237.77—Competition for Religious-Related Services Sec. 237.7700 Scope of subpart. 237.7701 Definition. 237.7702 Policy. Subpart 237.77—Competition for Religious-Related Services
    237.7700 Scope of subpart.

    This subpart provides policy and guidance for the acquisition of religious-related services to be performed on a U.S. military installation in accordance with section 898 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92).

    237.7701 Definition.

    As used in this subpart—

    Nonprofit organization means any organization that is—

    (1) Described in section 501(c) of the Internal Revenue Code of 1986; and

    (2) Exempt from tax under section 501(a) of that Code.

    237.7702 Policy.

    (a) A nonprofit organization shall not be precluded from competing for a contract for religious-related services to be performed on a U.S. military installation.

    (b) See 219.270 when an acquisition for religious-related services to be performed on a U.S. military installation is set aside for any of the small business concerns identified in FAR 19.000(a)(3).

    PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 6. Add section 252.219-7012 to read as follows:
    252.219-7012 Competition for Religious-Related Services.

    As prescribed in 219.270-3, use the following provision:

    Competition for Religious-Related Services (APR 2018)

    (a) Definition. As used in this provision—

    Nonprofit organization means any organization that is—

    (1) Described in section 501(c) of the Internal Revenue Code of 1986; and

    (2) Exempt from tax under section 501(a) of that Code.

    (b) A nonprofit organization is not precluded from competing for a contract for religious-related services to be performed on a U.S. military installation notwithstanding that a nonprofit organization is not a small business concern as identified in FAR 19.000(a)(3).

    (c) If the apparently successful offeror has not represented in its offer or quotation that it is a small business concern identified in FAR 19.000(a)(3), as appropriate to the solicitation, the Contracting Officer will verify that the offeror is registered in the System for Award Management (SAM) database as a nonprofit organization.

    (End of provision)
    [FR Doc. 2018-07731 Filed 4-12-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 225 [Docket DARS-2018-D007] RIN 0750-AJ38 Defense Federal Acquisition Regulation Supplement: Safe Access to Projects in Afghanistan (DFARS Case 2017-D032) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Final rule.

    SUMMARY:

    DoD is amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2017 that prohibits use of funds for certain programs and projects of the Department of Defense in Afghanistan that cannot be safely accessed by United States Government personnel.

    DATES:

    Effective April 13, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Amy Williams, telephone 571-372-6106.

    SUPPLEMENTARY INFORMATION: I. Background

    DoD is amending the DFARS to implement section 1216 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328). Section 1216 requires that funding amounts available to the Department of Defense may not be obligated or expended for a construction or other infrastructure program or project of the Department in Afghanistan if military or civilian personnel of the United States Government, or their representatives with authority to conduct oversight of such program or project, cannot safely access such program or project. The prohibition may be waived with an approved determination.

    II. Discussion and Analysis

    To implement section 1216, this rule adds a new DFARS section 225.7705, Prohibition on use of funds for contracts of certain programs and projects in Afghanistan that cannot be safely accessed. The procedures provided in this new section are strictly internal to the Government, in that they instruct the contracting officer to not obligate funds on the covered contracts, unless (1) Government personnel can safely access the project, or (2) a determination is approved by the appropriate authority to waive this restriction, as outlined in the statute.

    III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items

    This rule does not add any new burdens or impact applicability of clauses and provisions at or below the simplified acquisition threshold, or to acquisition of commercial items.

    IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    V. Executive Order 13771

    This rule is not subject to E.O. 13771, Reducing Regulation and Controlling Regulatory Costs, because the rule relates to agency organization, management, or personnel.

    VI. Publication of This Final Rule for Public Comment Is Not Required by Statute

    The statute that applies to the publication of the Federal Acquisition Regulation is codified at Title 41 of the United States Code (formerly known as the Office of Federal Procurement Policy Act). Specifically, 41 U.S.C 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it only provides procedures for United States Government personnel to follow for certain programs and projects in Afghanistan that cannot be safely accessed. These requirements affect only the internal operating procedures of the Government.

    VII. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section VI. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

    VIII. Paperwork Reduction Act

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

    List of Subjects in 48 CFR Part 225

    Government procurement.

    Jennifer Lee Hawes, Regulatory Control Officer, Editor, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 225 is amended as follows:

    PART 225—FOREIGN ACQUISITION 1. The authority citation for part 225 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    2. Amend section 225.7700 by adding paragraph (e) to read as follows:
    225.7700 Scope.

    (e) Section 216 of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328).

    3. Add sections 225.7705, 225.7705-1, 225.7705-2, and 225.7705-3 to subpart 225.77 to read as follows:
    225.7705 Prohibition on use of funds for contracts of certain programs and projects in Afghanistan that cannot be safely accessed.

    This section implements section 1216 of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328).

    225.7705-1 Prohibition.

    The contracting officer shall not obligate or expend funds for a construction or other infrastructure program or project of the Department in Afghanistan if military or civilian personnel of the United States Government or their representatives, with authority to conduct oversight of such program or project, cannot safely access such program or project. In limited circumstances, this prohibition may be waived in accordance with section 225.7705-2.

    225.7705-2 Waiver of prohibition.

    (a) The prohibition in 225.7705-1 may be waived upon issuance of a determination, approved in accordance with paragraph (b) of this section, that—

    (1) The program or project clearly contributes to United States national interests or strategic objectives;

    (2) The Government of Afghanistan has requested or expressed a need for the program or project;

    (3) The program or project has been coordinated with the Government of Afghanistan, and with any other implementing agencies or international donors;

    (4) Security conditions permit effective implementation and oversight of the program or project;

    (5) Safeguards to detect, deter, and mitigate corruption and waste, fraud, and abuse of funds are in place;

    (6) Adequate arrangements have been made for the sustainment of the program or project following its completion, including arrangements with respect to funding and technical capacity for sustainment; and

    (7) Meaningful metrics have been established to measure the progress and effectiveness of the program or project in meeting its objectives.

    (b) The following officials are authorized to approve the determination described in paragraph (a) of this section:

    (1) In the case of a program or project with an estimated lifecycle cost of less than $1 million, by the contracting officer.

    (2) In the case of a program or project with an estimated lifecycle cost of $1 million or more, but less than $20 million, by the senior U.S. officer in the Combined Security Transition Command-Afghanistan.

    (3) In the case of a program or project with an estimated lifecycle cost of $20 million or more, but less than $40 million, by the Commander of United States Forces-Afghanistan.

    (4) In the case of a program or project with an estimated lifecycle cost of $40 million or more, by the Secretary of Defense.

    (c) Congressional notification is required within 15 days of issuance of a determination to waive the prohibition for programs or projects valued at $40 million or more in accordance with paragraph (b)(4) of this section.

    225.7705-3 Procedures.

    (a) The contracting officer shall not obligate or expend funds for contracts for a construction or other infrastructure program or project in Afghanistan, awarded after December 23, 2016, unless the requiring activity provides the following documentation:

    (1) Written affirmation that military or civilian personnel of the United States Government or their representatives, with authority to conduct oversight of such program or project, can safely access such program or project; or

    (2)(i) For programs or projects valued at less than $1 million, sufficient information upon which to base the determination described in 225.7705-2(a); or

    (ii)(A) For programs or projects valued at $1 million or more, a copy of the approved determination described in 225.7705-2(a) and (b); and

    (B) For programs or projects valued at $40 million or more, a copy of the Congressional notification described in 225.7705-2(c).

    (b) After contract award, the contracting officer shall review the requiring activity's progress reports (e.g., contracting officer's representative reports) that addresses whether access continues to be safe or security conditions continue to permit effective implementation and oversight of the contract. If the requiring activity does not affirm continued safe access or, if a determination to waive the prohibition has been approved, that security conditions continue to permit effective implementation and oversight of the contract, then the contracting officer shall consult with the requiring activity to take any appropriate actions.

    [FR Doc. 2018-07733 Filed 4-12-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 237 [Docket DARS-2018-0013] RIN 0750-AJ49 Defense Federal Acquisition Regulation Supplement: Educational Service Agreements (DFARS Case 2017-D039) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to remove limiting language related to educational service agreements. This deletion will allow DoD to make agreements that permit payment for Masters of Laws degrees and other legal training programs, in accordance with applicable law, regulation, and policy.

    DATES:

    Effective April 13, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Carrie Moore, telephone 571-372-6093.

    SUPPLEMENTARY INFORMATION:

    I. Background

    DFARS subpart 237.72, Educational Service Agreements, prescribes policies and procedures for acquiring educational services from schools, colleges, universities, or other educational institutions. An educational service agreement (ESA) is an ordering agreement under which the Government may acquire educational services. DFARS 237.7202(a) prohibits the use of ESAs as a contracting method for training in the legal profession, except when in connection with the detailing of commissioned officers to law schools under 10 U.S.C. 2004.

    The limitation at DFARS 237.7202(a) was established at a time when legal training was acquired only for the purpose of obtaining doctorate degrees for military judge advocates. DoD's need for legal training has evolved since the implementation of the text at DFARS 237.7202(a). Since 10 U.S.C. 2004 contains no prohibition against acquiring other training in the legal profession, this rule amends the DFARS to delete the language at DFARS 237.7202(a). Removal of this limitation will allow DoD to make agreements that permit payment for masters of laws degrees and other legal training needs, in accordance with applicable law, regulation, and policy.

    II. Publication of This Final Rule for Public Comment Is Not Required by Statute

    The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is codified at Title 41 of the United States Code (formerly known as the Office of Federal Procurement Policy Act). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it is simply allowing the contracting officer to use an ESA when acquiring training in the legal profession. Contracting officers can already use ESAs for the acquisition of training in any other profession. This requirement affects only the internal operating procedures of the Government.

    III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items

    This rule does not add any new provisions or clauses or impact existing provisions or clauses. There are no reporting, recordkeeping, or other compliance requirements in this rule.

    IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    V. Executive Order 13771

    This rule is not subject to E.O. 13771, Reducing Regulation and Controlling Regulatory Costs, because the rule relates to agency organization, management, or personnel.

    VI. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section II. of this rule), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

    VII. Paperwork Reduction Act

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

    List of Subjects in 48 CFR Part 237

    Government procurement.

    Jennifer Lee Hawes, Regulatory Control Officer Defense Acquisition Regulations System.

    Therefore, 48 CFR part 237 is amended as follows:

    PART 237—SERVICE CONTRACTING 1. The authority citation for part 237 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    237.7202 [Amended]
    2. Amend section 237.7202 by removing paragraph (a) and redesignating paragraph (b) as an undesignated paragraph.
    [FR Doc. 2018-07735 Filed 4-12-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 160808696-7010-02] RIN 0648-BH86 Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; 2017-18 Biennial Specifications and Management Measures; Inseason Adjustments AGENCY:

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

    ACTION:

    Final rule; inseason adjustments to biennial groundfish management measures.

    SUMMARY:

    This final rule announces inseason changes to management measures in the Pacific Coast groundfish fisheries. This action, which is authorized by the Pacific Coast Groundfish Fishery Management Plan, is intended to allow fisheries to access more abundant groundfish stocks while protecting overfished and depleted stocks.

    DATES:

    This final rule is effective April 13, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Karen Palmigiano, phone: 206-526-4491, fax: 206-526-6736, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Electronic Access

    This rule is accessible via the internet at the Office of the Federal Register website at https://www.federalregister.gov. Background information and documents are available at the Pacific Fishery Management Council's website at http://www.pcouncil.org/.

    Background

    The Pacific Coast Groundfish Fishery Management Plan (PCGFMP) and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subparts C through G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. The Pacific Fishery Management Council (Council) develops biennial groundfish specifications and management measures. NMFS published the final rule to implement the 2017-18 specifications and management measures for most species of the Pacific coast groundfish fishery on February 7, 2017 (82 FR 9634).

    The Council, in coordination with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, recommended the following changes to current groundfish management measures at its March 8-14, 2018 meeting in Rohnert Park, California: (1) Increase the incidental halibut retention in the primary sablefish fishery, (2) increase the recreational sub-bag limit for canary rockfish and add a three flatfish limit through changes to Washington state recreational management measures, and (3) increase the recreational sub-limit for canary rockfish through changes to California recreational management measures.

    Increase Incidental Halibut Retention in the Limited Entry Fixed Gear Sablefish Primary Fishery

    Under the authority of the Northern Pacific Halibut Act of 1982, the Council developed a Catch Sharing Plan for the International Pacific Halibut Commission Regulatory Area 2A. The Catch Sharing Plan allocates the Area 2A annual total allowable catch (TAC) among fisheries off Washington, Oregon, and California. Pacific halibut is generally a prohibited species for vessels fishing in Pacific coast groundfish fisheries, unless explicitly allowed in groundfish regulations and authorized by the Pacific halibut Catch Sharing Plan. In years where the Pacific halibut TAC is above 900,000 pounds (lb) (408 metric tons (mt)), the Catch Sharing Plan allows the limited entry fixed gear sablefish primary fishery an incidental retention limit for Pacific halibut north of Point Chehalis, WA (46°53.30′ North latitude [N. lat.]). On March 24, 2018, NMFS implemented a 2018 Area 2A TAC of 1,190,000 lb (540 mt)(83 FR 13080; March 26, 2018). Consistent with the provisions of the Catch Sharing Plan, the limited entry fixed gear sablefish primary fishery north of Pt. Chelais, WA has an incidental total catch limit of 50,000 lb (22.7 mt) for 2018.

    Current regulations at § 660.231(b)(3)(iv) provide for halibut retention starting on April 1 with a landing ratio of 140 lb (64 kilograms (kg)) dressed weight of halibut, for every 1,000 lb (454 kg) dressed weight of sablefish landed, and up to an additional 2 halibut in excess of this ratio. These limits were based on the 2017 Pacific halibut retention limit of 70,000 lb (32 mt) and resulted in a catch of 35,866 lb (16 mt) of incidental halibut. At the March 2018 Council meeting, based on 2017 catch totals, the number of vessels fishing that participated, and the average number of trips taken, which constitutes the best available information, the Council recommended an increase from 140 lb (64 kg) to 160 lb (73 kg) dressed incidental Pacific halibut retention per 1,000 lb (454 kg) dressed sablefish. This increase would allow total catch of Pacific halibut to approach, but not exceed, the 2018 allocation for the sablefish primary fishery north of Pt. Chelais, WA (50,000 lb or 22.7 mt) and provide greater opportunity for industry to attain a higher percentage of the sablefish primary fishery allocation. This ratio can be adjusted through routine inseason action based on participation and landings in the fishery, if warranted.

    In order to allow increased incidental halibut catch in the sablefish primary fishery, the Council recommended and NMFS is revising incidental halibut retention regulations at § 660.231(b)(3)(iv) to increase the catch ratio to “160 lb dressed weight of halibut for every 1,000 lb dressed weight of sablefish landed and up to 2 additional halibut in excess of the 160 lb per 1,000 lb ratio per landing.”

    Washington State Recreational Management Measures

    At the Council's March 2018 meeting, the Washington Department of Fish and Wildlife (WDFW) requested changes to their recreational groundfish regulations for the remainder of 2018. Specifically, WDFW proposed an increase to the canary rockfish sub-limit from one to two fish with retention allowed in all marine areas, and proposed to allow the retention of three flatfish in addition to the status quo aggregate daily groundfish limit of nine.

    Increase the Canary Rockfish Sub-Limit

    In June 2016, the Council recommended the Washington recreational groundfish seasons and regulations for the 2017 and 2018 fishing years. NMFS implemented the regulations through the 2017-18 harvest specifications and management measures, which permitted retention of up to one canary rockfish in Marine Areas 1 and 2 (Columbia River and south coast subareas) and prohibited canary rockfish retention in Marine Areas 3 and 4. Although the canary rockfish stock was declared rebuilt in 2017, retention had been prohibited in previous years due to poor stock condition. Because retention was previously prohibited, there has been uncertainty about angler behavior, including whether they would target canary rockfish. To address this uncertainty, the analysis for the existing landing limits assumed a high level of targeting to ensure management measures remained precautionary. The analysis projected that a two fish sub-limit in all management areas would result in between 66.1 mt and 137.1 mt of recreational canary rockfish landings, however this analysis did not consider the estimated results of the 2017 Washington recreational fishery.

    The 2017 final mortality estimate for canary rockfish in the Washington recreational fishery is 4.8 mt out of a 50 mt harvest guideline for 2017 and 2018. Because 2017 landings were much lower than expected, the Council updated the initial analysis to project landings for the 2018 fishing year. The updated analysis did not assume a high level of targeting because the final 2017 estimates suggests that anglers are not actively targeting canary rockfish. The updated analysis projected canary rockfish mortality to be 5.67 mt under a one canary sub-limit and 6.22 mt under a two canary sub-limit. While the two canary rockfish limit does produce slightly higher impacts to canary rockfish than the one canary sub-limit, a difference of about 0.6 mt, the overall projected impacts of either the one- or two-fish limit are well below the 2018 harvest guideline of 50 mt.

    Therefore, the Council recommended, and NMFS is amending the regulations at § 660.360(c)(1) to increase in the limit in the Washington recreational fishery from one to two canary rockfish for all marine areas.

    Three Flatfish Limit

    In March 2017, the Council recommended that NMFS reduce the aggregate groundfish limit from 12 to 9 fish per angler per day, and the daily rockfish sub-limit from 10 to 7 fish per angler per day, resulting in a 7 rockfish sub-limit with two additional groundfish allowed to be kept for a total of 9 fish. The rockfish sub-limit was reduced in response to lower harvest levels in 2017 and 2018, but the aggregate groundfish limit was kept at two fish above the rockfish sub-limit to minimize rockfish bycatch associated with anglers targeting other groundfish, such as lingcod. At the time, Washington did not request excluding flatfish from the aggregate groundfish limit. Since last year, when these limits went into effect stakeholders that target flatfish reported to WDFW that they have been negatively affected by the reduction in the aggregate limit, which was not the original intent of that reduction.

    In response to stakeholder input, WDFW proposed a flatfish limit of three fish per angler per day, which would be in addition to the overall aggregate groundfish limit. The groundfish aggregate limit would remain at nine fish, and the sub-limits for all species, aside from canary rockfish, would all remain unchanged. This change to include a separate flatfish limit of three fish has no impact on the rockfish population given that flatfish prefer soft sand or muddy bottom, which is not the preferred habitat of rockfish. Additionally, flatfish retention would still only be allowed under current open season dates and status quo depth restrictions. Projected impacts to flatfish are expected to be similar to final estimates in 2016 before the aggregate limit was reduced.

    Therefore, the Council recommended, and NMFS is amending the regulations at § 660.360(c)(1) to implement a three flatfish limit, not to be counted against the aggregate groundfish limit of nine fish, for the 2018 Washington recreational fishing year.

    California Recreational Management Measures

    Similar to the canary rockfish limit off Washington, the Council analyzed the current canary rockfish sub-limit in California in the 2017-18 harvest specifications and management measures. During that process, California Department of Fish and Wildlife (CDFW) evaluated a range of sub-bag limits (one to five) for canary rockfish given the stock had recently been declared rebuilt. Much like WDFW, CDFW expressed a need for caution in determining the initial sub-bag limit for canary rockfish due to uncertainty about targeting this newly rebuilt species. Therefore, NMFS implemented a one fish sub-bag limit for California in 2017.

    The 2017 canary rockfish mortality in California was lower than expected. Preliminary estimates indicate canary rockfish mortality was 77.4 mt, or 57.3 percent of the California harvest guideline of 135 mt. Seasonal catch trends for canary were similar to other rockfish, with higher catches observed in the spring and summer months when weather is more favorable. Because of the low catch in the preliminary estimates for 2017, CDFW analyzed projected impacts under a two-fish sub-bag limit for 2018, taking into account the most recent fishery performance. Under the two-fish sub-bag limit, projected canary rockfish mortality would be 110.4 mt or 81.8 percent of the 2018 harvest guideline.

    Therefore, based on the new preliminary attainment information for 2017, the Council recommended and NMFS is amending the regulations at § 660.360(c)(3) to increase the California recreational canary rockfish sub-bag limit from one fish to two fish.

    Classification

    This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best available information, consistent with the PCGFMP and its implementing regulations.

    This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.

    The aggregate catch data used to support these regulatory actions is available for public inspection in person at the Office of the Administrator, West Coast Region, NMFS, during normal business hours.

    NMFS finds good cause to waive prior public notice and comment on the revisions to groundfish management measures under 5 U.S.C. 553(b) because notice and comment would be impracticable and contrary to the public interest. The adjustments to management measures in this document affect commercial and recreational fisheries off the coasts of Washington, Oregon and California. No aspect of this action is controversial, and changes of this nature were anticipated in the biennial harvest specifications and management measures established through a notice and comment rulemaking for 2017-18 (82 FR 9634). Accordingly, for the reasons stated below, NMFS finds good cause to waive prior notice and comment.

    Increase Incidental Halibut Retention in the Limited Entry Fixed Gear Sablefish Primary Fishery

    The Pacific halibut catch limit for Area 2A is large enough in 2018 to provide for incidental halibut retention, per the Pacific halibut Catch Sharing Plan for Area 2A, in the limited entry fixed gear sablefish primary fishery north of Point Chehalis. Therefore, at its March 2018 meeting, the Council recommended an increase from 140 lb (64 kg) to 160 lb (73 kg) of dressed weight halibut per 1,000 lb (454 kg) of dressed weight sablefish. The Council recommended this increased limit be implemented by April 1, 2018, the start of the limited entry fixed gear sablefish primary fishery, or as soon as possible thereafter. Therefore, there was not sufficient time after that meeting to undergo proposed and final rulemaking before this action needs to be implemented to increase Pacific halibut harvest opportunity, to allow Pacific halibut to be retained throughout the limited entry fixed gear sablefish primary season, and to achieve attainment of incidental Pacific halibut quota in this fishery given the most recent Pacific halibut catch data and the Area 2A catch limit.

    Washington State Recreational Management Measures

    During its March 2018 meeting, the Council recommended an increase to the Washington recreational canary rockfish sub-limit from one fish to two fish in all marine areas. The 2017-18 harvest specifications and management measures implemented precautionary landing limits just as canary rockfish was declared rebuilt. The 2017 Washington recreational fishery catch data show that only 4.8 mt of the 50 mt harvest guideline was landed. Increasing the canary rockfish sub-limit should create additional opportunity to attain the harvest guideline in 2018.

    Additionally, WDFW proposed a three fish limit for flatfish that would not count towards the aggregate groundfish limit. WDFW received stakeholder input that the 2017 decrease in the aggregate rockfish limit has constrained anglers targeting flatfish. Excluding flatfish from the aggregate limit eases this constraint.

    Therefore, based on the new preliminary data, the input from stakeholders who target flatfish, and the need to provide additional economic opportunities to the recreational fleet while also potentially reducing discards, there was not sufficient time after the March meeting to undergo a full proposed and final rulemaking before this action needs to be in effect. Affording the time necessary for prior notice and opportunity for public comment would prevent NMFS from managing this recreational fishery using the best available science to increase harvesting opportunities of canary rockfish and flatfish, as required by the PCGFMP and applicable law.

    California State Recreational Management Measures

    During the March 2018 meeting, CDFW proposed an increase to their canary rockfish sub-bag limit. The 2017-18 harvest specifications and management measures implemented precautionary landing limits just as canary rockfish was declared rebuilt. Preliminary data from CDFW shows that 2017 recreational canary rockfish catch was low in 2017. Increasing the canary rockfish sub-limit should create additional opportunity to attain the harvest guideline in 2018.

    There was not sufficient time after the March meeting to undergo proposed and final rulemaking before this action needs to be in effect. The California recreational fishery begins on April 15th. Affording NMFS the time necessary for prior notice and opportunity for the public to comment would prevent NMFS from managing the recreational fishery with the best available information to increase harvest opportunities for recreational anglers in California.

    NMFS also finds good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(1), so that this final rule may become effective April 13, 2018. This inseason action implements a number of increases to incidental and directed landing limits based on updated fishery information and new supporting analyses provided to the Council at its March 2018 meeting. Affording the time necessary for prior notice and opportunity for public comment reduces the time these increased landing limits are available to fishing vessels during the 2018 fishing year, and delays the use of the best available information in managing the fishery.

    List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian fisheries.

    Dated: April 10, 2018. Jennifer M. Wallace, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 50 CFR part 660 as follows:

    PART 660—FISHERIES OFF WEST COAST STATES 1. The authority citation for part 660 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

    2. In § 660.231, revise paragraph (b)(3)(iv) to read as follows:
    § 660.231 Limited entry fixed gear sablefish primary fishery.

    (b) * * *

    (3) * * *

    (iv) Incidental Pacific halibut retention north of Pt. Chehalis, WA (46°53.30′ N lat.). From April 1 through October 31, vessels authorized to participate in the sablefish primary fishery, licensed by the International Pacific Halibut Commission for commercial fishing in Area 2A (waters off Washington, Oregon, California), and fishing with longline gear north of Pt. Chehalis, WA (46°53.30′ N lat.) may possess and land up to the following cumulative limits: 160 pounds (64 kg) dressed weight of Pacific halibut for every 1,000 pounds (454 kg) dressed weight of sablefish landed and up to 2 additional Pacific halibut in excess of the 160-pounds-per-1,000-pound ratio per landing. “Dressed” Pacific halibut in this area means halibut landed eviscerated with their heads on. Pacific halibut taken and retained in the sablefish primary fishery north of Pt. Chehalis may only be landed north of Pt. Chehalis and may not be possessed or landed south of Pt. Chehalis.

    3. In § 660.360, revise paragraphs (c)(1) introductory text, (c)(1)(ii), and (c)(3)(ii)(B) to read as follows:
    § 660.360 Recreational fishery—management measures.

    (c) * * *

    (1) Washington. For each person engaged in recreational fishing off the coast of Washington, the groundfish bag limit is 9 groundfish per day, including rockfish, cabezon and lingcod. Within the groundfish bag limit, there are sub-limits for rockfish, lingcod, and cabezon outlined in paragraph (c)(1)(i)(D) of this section. In addition to the groundfish bag limit of 9, there will be a flatfish limit of 3 fish, not to be counted towards the groundfish bag limit but in addition to it. The recreational groundfish fishery will open the second Saturday in March through the third Saturday in October for all species in all areas except lingcod in Marine Area 4 as described in paragraph (c)(1)(iv) of this section. In the Pacific halibut fisheries, retention of groundfish is governed in part by annual management measures for Pacific halibut fisheries, which are published in the Federal Register. The following seasons, closed areas, sub-limits and size limits apply:

    (ii) Rockfish. In areas of the EEZ seaward of Washington that are open to recreational groundfish fishing, there is a 7 rockfish per day bag limit. There is a 2 fish sub-bag limit per day for canary rockfish in all Marine Areas. Taking and retaining yelloweye rockfish is prohibited in all Marine areas.

    (3) * * *

    (ii) * * *

    (B) Bag limits, hook limits. In times and areas when the recreational season for the RCG Complex is open, there is a limit of 2 hooks and 1 line when fishing for the RCG complex and lingcod. The bag limit is 10 RCG Complex fish per day coastwide. Retention of yelloweye rockfish, bronzespotted rockfish, and cowcod is prohibited. Within the 10 RCG Complex fish per day limit, no more than 3 may be black rockfish, no more than 3 may be cabezon, and no more than 2 may be canary rockfish. Multi-day limits are authorized by a valid permit issued by California and must not exceed the daily limit multiplied by the number of days in the fishing trip.

    [FR Doc. 2018-07710 Filed 4-12-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 170817779-8161-02] RIN 0648-XG166 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod by Catcher Vessels Less Than 60 Feet (18.3 Meters) Length Overall Using Jig or Hook-and-Line Gear in the Bogoslof Pacific Cod Exemption Area in the Bering Sea and Aleutian Islands Management Area AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is prohibiting directed fishing for Pacific cod by catcher vessels less than 60 feet (18.3 meters (m)) length overall (LOA) using jig or hook-and-line gear in the Bogoslof Pacific cod exemption area of the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the limit of Pacific cod for catcher vessels less than 60 feet (18.3 m) LOA using jig or hook-and-line gear in the Bogoslof Pacific cod exemption area in the BSAI.

    DATES:

    Effective 1200 hrs, Alaska local time (A.l.t.), April 10, 2018, through 2400 hrs, A.l.t., December 31, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Josh Keaton, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

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

    In accordance with § 679.22(a)(7)(i)(C)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that 113 metric tons of Pacific cod have been caught by catcher vessels less than 60 feet (18.3 m) LOA using jig or hook-and-line gear in the Bogoslof exemption area described at § 679.22(a)(7)(i)(C)(1). Consequently, the Regional Administrator is prohibiting directed fishing for Pacific cod by catcher vessels less than 60 feet (18.3 m) LOA using jig or hook-and-line gear in the Bogoslof Pacific cod exemption area.

    After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishery closure of Pacific cod by catcher vessels less than 60 feet (18.3 m) LOA using jig or hook-and-line gear in the Bogoslof Pacific cod exemption area. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of April 9, 2018.

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

    This action is required by § 679.22 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: April 10, 2018. Jennifer M. Wallace, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-07706 Filed 4-10-18; 4:15 pm] BILLING CODE 3510-22-P
    83 72 Friday, April 13, 2018 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 205 [Doc. No. AMS-NOP-14-0079; NOP-14-05] RIN 0581-AD44 National Organic Program (NOP); Amendments to the National List of Allowed and Prohibited Substances (Crops, Livestock and Handling); Reopening of Comment Period AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule; Reopening of the public comment period.

    SUMMARY:

    The Agricultural Marketing Service (AMS) published a proposed rule in the Federal Register on January 18, 2018, which describes 35 amendments to the National List of Allowed and Prohibited Substances (Crops, Livestock and Handling). The public comment period closed on March 19, 2018. This document reopens the comment period on the proposed rule for an additional 30 days. Multiple stakeholders requested that AMS extend the comment period to provide more time to develop comments on the proposed rule.

    DATES:

    Comments must be received by May 14, 2018.

    ADDRESSES:

    Interested parties may submit written comments on the Amendments to the National List of Allowed and Prohibited Substances (Crops, Livestock and Handling) proposed rule using one of the following methods:

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

    Mail: Robert Pooler, Standards Division, National Organic Program, USDA-AMS-NOP, Room 2646-So., Ag Stop 0268, 1400 Independence Ave. SW, Washington, DC 20250-0268.

    Instructions: All submissions received must include the docket number AMS-NOP-14-0079; NOP-14-05PR, and/or Regulatory Information Number (RIN) 0581-AD60 for this rulemaking. Commenters should identify the topic and section of the proposed rule to which their comment refers. All commenters should refer to the GENERAL INFORMATION section in the Notice of Proposed Rulemaking for more information on preparing your comments. All comments received will be posted without change to http://www.regulations.gov.

    Docket: For access to the docket, including background documents and comments received, go to http://www.regulations.gov. Comments submitted in response to this proposed rule will also be available for viewing in person at USDA-AMS, National Organic Program, Room 2642-South Building, 1400 Independence Ave. SW, Washington, DC, from 9 a.m. to 12 noon and from 1 p.m. to 4 p.m., Monday through Friday (except official Federal holidays). Persons wanting to visit the USDA South Building to view comments received in response to this proposed rule are requested to make an appointment in advance by calling (202) 720-3252.

    FOR FURTHER INFORMATION CONTACT:

    Robert Pooler, Standards Division. Telephone: (202) 720-3252; Fax: (202) 260-9151.

    SUPPLEMENTARY INFORMATION:

    This document reopens the public comment period for the proposed rule published in the Federal Register on January 18, 2018 (83 FR 2498), Amendments to the National List of Allowed and Prohibited Substances (Crops, Livestock and Handling). In the proposed rule, AMS solicits public comments generally and requests comments on specific topics. AMS is reopening the comment period, which ended on March 19, 2018, for 30 days based on multiple stakeholder requests that AMS extend the comment period to provide more time to develop comments on the proposed rule.

    AMS is proposing to amend the National List of Allowed and Prohibited Substances by: Changing the use restrictions for seventeen substances allowed for organic production or handling; adding sixteen new substances for use in organic production or handling; listing rotenone as a prohibited substance in organic crop production; and removing ivermectin as an allowed parasiticide for use in organic livestock production.

    To submit comments, or access the proposed rule docket, please follow the instructions provided under the ADDRESSES section. If you have questions, consult the person listed under FOR FURTHER INFORMATION CONTACT.

    Authority:

    7 U.S.C. 6501-6522.

    Dated: April 10, 2018. Bruce Summers, Acting Administrator, Agricultural Marketing Service.
    [FR Doc. 2018-07719 Filed 4-12-18; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0273; Product Identifier 2018-NM-017-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. This proposed AD was prompted by several reports of cracks in a certain floor beam lower chord at stop fitting Number 1 of the forward airstair door cutout. This proposed AD would require repetitive inspections for any cracks and applicable on-condition actions. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by May 29, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet https://www.myboeingfleet.com. You may view this 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-2018-0273.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0273; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Galib Abumeri, Aerospace Engineer, Airframe Section, Los Angeles ACO Branch, FAA, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5324; fax: 562-627-5210; email: [email protected]

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0273; Product Identifier 2018-NM-017-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

    Discussion

    We have received several reports of cracks in the station (STA) 312 floor beam lower chord at stop fitting No. 1 of the forward airstair door cutout. One operator found multiple cracks in the STA 312 floor beam lower chord in the fillet radii and the two inboard attachment fasteners at stop fitting No. 1 of the forward airstair door cutout. Cracks have also been found in the STA 312 floor beam lower chord fillet radii, with no cracks in the lower chord at the two inboard attach fastener holes common to stop fitting No. 1. In addition, other airplanes have had cracks in the STA 312 floor beam lower chord, at the two inboard attach fastener holes. Cracks in the STA 312 floor beam lower chord supporting the forward airstair stop loads may lead to cracks developing in the adjacent airstair support structure. This condition, if not addressed, could result in the inability of a principal structural element to sustain limit loads and possible rapid decompression.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Requirements Bulletin 737-53A1370 RB, dated December 13, 2017. The service information describes procedures for repetitive high frequency eddy current inspections of the STA 312 floor beam lower chord, and door stop fittings No. 2, No. 5 and No. 8 on the forward airstair door for any cracks and applicable on-condition actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would require accomplishment of the actions identified in Boeing Alert Requirements Bulletin 737-53A1370 RB, dated December 13, 2017, described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

    For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0273.

    Explanation of Requirements Bulletin

    The FAA worked in conjunction with industry, under the Airworthiness Directives Implementation Aviation Rulemaking Committee (AD ARC), to enhance the AD system. One enhancement is a process for annotating which steps in the service information are “required for compliance” (RC) with an AD. Boeing has implemented this RC concept into Boeing service bulletins.

    In an effort to further improve the quality of ADs and AD-related Boeing service information, a joint process improvement initiative was worked between the FAA and Boeing. The initiative resulted in the development of a new process in which the service information more clearly identifies the actions needed to address the unsafe condition in the “Accomplishment Instructions.” The new process results in a Boeing Requirements Bulletin, which contains only the actions needed to address the unsafe condition (i.e., only the RC actions).

    Costs of Compliance

    We estimate that this proposed AD affects 67 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs for Required Actions Action Labor cost Parts cost Cost per product Cost on U.S. operators Inspection Up to 11 work-hours × $85 per hour = $935 per inspection cycle $0 Up to $935 per inspection cycle Up to $62,645 per inspection cycle.

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

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2018-0273; Product Identifier 2018-NM-017-AD. (a) Comments Due Date

    We must receive comments by May 29, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes with a forward airstair door installed, certificated in any category, as identified in Boeing Alert Requirements Bulletin 737-53A1370 RB, dated December 13, 2017.

    (d) Subject

    Air Transport Association (ATA) of America Code 52, Doors; 53, Fuselage.

    (e) Unsafe Condition

    This AD was prompted by several reports of cracks in the station (STA) 312 floor beam lower chord at stop fitting No. 1 of the forward airstair door cutout. We are issuing this AD to address such cracking, which could result in the inability of a principal structural element to sustain limit loads and possible rapid decompression.

    (f) Compliance

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

    (g) Required Actions

    (1) For airplanes identified as Group 1 in Boeing Alert Requirements Bulletin 737-53A1370 RB, dated December 13, 2017: Within 120 days after the effective date of this AD, inspect the STA 312 floor beam lower chord and door stop fittings No. 2, No. 5 and No. 8 for any cracks and do applicable on-condition actions, using a method approved in accordance with the procedures specified in paragraph (i) of this AD.

    (2) Except as required by paragraph (h) of this AD: For airplanes identified as Group 2 in Boeing Alert Requirements Bulletin 737-53A1370 RB, dated December 13, 2017, at the applicable times specified in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 737-53A1370 RB, dated December 13, 2017, do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin 737-53A1370 RB, dated December 13, 2017.

    Note 1 to paragraph (g)(2) of this AD:

    Guidance for accomplishing the actions required by this AD can be found in Boeing Alert Service Bulletin 737-53A1370, dated December 13, 2017, which is referred to in Boeing Alert Requirements Bulletin 737-53A1370 RB, dated December 13, 2017.

    (h) Exceptions to Service Information Specifications

    (1) For purposes of determining compliance with the requirements of this AD: Where Boeing Alert Requirements Bulletin 737-53A1370 RB, dated December 13, 2017, uses the phrase “the original issue date of Requirements Bulletin 737-53A1370 RB,” this AD requires using “the effective date of this AD.”

    (2) Where Boeing Alert Requirements Bulletin 737-53A1370 RB, dated December 13, 2017, specifies contacting Boeing, this AD requires repair using a method approved in accordance with the procedures specified in paragraph (i) of this AD.

    (i) Alternative Methods of Compliance (AMOCs)

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

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

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

    (j) Related Information

    (1) For more information about this AD, contact Galib Abumeri, Aerospace Engineer, Airframe Section, Los Angeles ACO Branch, FAA, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5324; fax: 562-627-5210; email: [email protected]

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

    Issued in Des Moines, Washington, on March 29, 2018. Chris Spangenberg, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-07632 Filed 4-12-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0274; Product Identifier 2017-NM-128-AD] RIN 2120-AA64 Airworthiness Directives; Bombardier, Inc., Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc., Model BD-100-1A10 airplanes. This proposed AD was prompted by reports of fire incidents of the auxiliary power unit (APU) inlet, which caused tail cone damage after an initial failed APU start followed by two or more in-flight APU start attempts. This proposed AD would require modification of the APU electronic control unit (ECU) wiring harness. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by May 29, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514-855-7401; email [email protected]; internet http://www.bombardier.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0274; 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 NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Assata Dessaline, Aerospace Engineer, Avionics and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7301; fax 516-794-5531.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0274; Product Identifier 2017-NM-128-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM based on those comments.

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

    Discussion

    Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2017-26, dated July 31, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model BD-100-1A10 airplanes. The MCAI states:

    APU inlet fire incidents causing tail cone damage have been reported after an initial failed APU start followed by two or more in-flight APU start attempts. Bombardier Inc. (BA) has determined that the in-flight negative pressure differential at the APU inlet allows flash fires of residual fuel in the APU combustor to exit through the APU inlet.

    As an interim mitigating action, BA has revised the affected aeroplane Aircraft Flight Manual (AFM) procedure for in-flight APU start to limit the number of APU start attempts.

    To further address the safety concerns associated with in-flight APU inlet fire, BA is introducing a modification to the APU Electronic Control Unit (ECU) wiring harness that will prevent a second attempt to start the APU following a failed start in flight. This [Canadian] AD is issued to mandate compliance with BA Service Bulletin (SB) 100-49-04 or SB 350-49-001, as applicable, on affected aeroplanes.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0274.

    Related Service Information Under 1 CFR Part 51

    Bombardier, Inc., has issued Service Bulletin 100-49-04, dated March 29, 2017; and Service Bulletin 350-49-001, dated March 29, 2017. This service information describes a modification of the APU ECU harness. These documents are distinct since they apply to different airplane models in different configurations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

    Costs of Compliance

    We estimate that this proposed AD affects 198 airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Modification 3 work-hours × $85 per hour = $255 $120 $375 $74,250
    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Bombardier, Inc.: Docket No. FAA-2018-0274; Product Identifier 2017-NM-128-AD. (a) Comments Due Date

    We must receive comments by May 29, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Bombardier, Inc., Model BD-100-1A10 airplanes, certificated in any category, serial numbers (S/Ns) 20003 through 20500 inclusive and 20501 through 20696 inclusive.

    (d) Subject

    Air Transport Association (ATA) of America Code 49, Airborne auxiliary power.

    (e) Reason

    This AD was prompted by reports of fire incidents of the auxiliary power unit (APU) inlet, which caused tail cone damage after an initial failed APU start followed by two or more in-flight APU start attempts. We are issuing this AD to prevent failure of the APU inlet, which could result in fire during flight.

    (f) Compliance

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

    (g) Modification

    Within 30 months after the effective date of this AD: Modify the APU electronic control unit wiring harness, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 100-49-04, dated March 29, 2017 (for S/N 20003 to 20500 inclusive); or Bombardier Service Bulletin 350-49-001, dated March 29, 2017 (for S/N 20501 to 20696 inclusive).

    (h) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, New York ACO Branch, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier Inc.'s TCCA Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.

    (i) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2017-26, dated July 31, 2017, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0274.

    (2) For more information about this AD, contact Assata Dessaline, Aerospace Engineer, Avionics and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7301; fax 516-794-5531.

    (3) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514-855-7401; email [email protected]; internet http://www.bombardier.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on March 29, 2018. Chris Spangenberg, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-07633 Filed 4-12-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0275; Product Identifier 2018-NM-011-AD] RIN 2120-AA64 Airworthiness Directives; Bombardier, Inc., Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc., Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes; Model CL-600-2D15 (Regional Jet Series 705) airplanes; Model CL-600-2D24 (Regional Jet Series 900) airplanes; and Model CL-600-2E25 (Regional Jet Series 1000) airplanes. This proposed AD was prompted by reports indicating that corrosion was found on the main landing gear (MLG) retraction actuator brackets and their associated pins. This proposed AD would require an inspection of the retraction actuator brackets, their associated pins and hardware, and the mating lugs on the MLG outer cylinder for any corrosion, and replacement if necessary. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by May 29, 2018.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1-866-538-1247 or direct-dial telephone 1-514-855-2999; fax 514-855-7401; email [email protected]; internet http://www.bombardier.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0275; 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 NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Dorie Resnik, Aerospace Engineer, Aviation Safety Section AIR-7B1, Boston ACO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; telephone 781-238-7693.

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0275; Product Identifier 2018-NM-011-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM based on those comments.

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

    Discussion

    Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2017-34, dated October 19, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes; Model CL-600-2D15 (Regional Jet Series 705) airplanes; Model CL-600-2D24 (Regional Jet Series 900) airplanes; and Model CL-600-2E25 (Regional Jet Series 1000) airplanes. The MCAI states:

    There have been in-service reports of corrosion on the main landing gear (MLG) retraction actuator bracket and its associated pins. Bombardier's investigation determined that the corrosion is the consequence of inadequate corrosion protection being applied during production. Undetected corrosion on the MLG retraction actuator bracket and its associated pins could result in a MLG collapse.

    This [Canadian] AD mandates the inspection of the MLG retraction actuator bracket, its associated pins and hardware, and the mating lugs on the MLG outer cylinder for corrosion. This [Canadian] AD also mandates the replacement of corroded MLG parts and the application of corrosion protection in order to mitigate the risk of MLG collapse.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0275.

    Related Service Information Under 1 CFR Part 51

    Bombardier has issued Service Bulletin 670BA-32-060, Revision B, dated November 10, 2017. The service information describes a detailed visual inspection of the retraction actuator brackets, their associated pins and hardware, and the mating lugs on the MLG outer cylinder for any corrosion, and replacement if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.

    Costs of Compliance

    We estimate that this proposed AD affects 541 airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Inspection 16 work-hours × $85 per hour = $1,360 $0 $1,360 $735,760

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

    On-Condition Costs Action Labor cost Parts cost Cost per product Replacement 1 work-hour × $85 per hour = $85 Up to $75,790 Up to $75,875. Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Bombardier, Inc.: Docket No. FAA-2018-0275; Product Identifier 2018-NM-011-AD. (a) Comments Due Date

    We must receive comments by May 29, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Bombardier, Inc., Model airplanes, certificated in any category, identified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD.

    (1) Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, serial numbers 10002 and subsequent.

    (2) Model CL-600-2D15 (Regional Jet Series 705) airplanes and Model CL-600-2D24 (Regional Jet Series 900) airplanes, serial numbers 15001 and subsequent.

    (3) Model CL-600-2E25 (Regional Jet Series 1000) airplanes, serial numbers 19001 and subsequent.

    (d) Subject

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

    (e) Reason

    This AD was prompted by reports indicating that corrosion was found on the main landing gear (MLG) retraction actuator brackets and their associated pins. We are issuing this AD to address undetected corrosion on the MLG retraction actuator brackets and their associated pins, which could lead to a MLG collapse.

    (f) Compliance

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

    (g) Inspection and Replacement

    For any MLG dressed shock strut assembly with part numbers and serial numbers specified in paragraph 1.A., “Effectivity,” of Bombardier Service Bulletin 670BA-32-060, Revision B, dated November 10, 2017, at the applicable compliance times specified in paragraphs (g)(1), (g)(2), or (g)(3) of this AD, do a detailed visual inspection of the retraction actuator brackets, their associated pins and hardware, and the mating lugs on the MLG outer cylinder for any corrosion, and do all applicable replacements, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-060, Revision B, dated November 10, 2017. Do all applicable replacements before further flight.

    (1) For any MLG dressed shock strut assembly that has accumulated less than 10,000 total flight hours on the MLG dressed shock strut assembly and has been in service for less than 60 months since its first installation on an airplane: Within 6,600 flight hours or 39 months, whichever occurs first, after the effective date of this AD.

    (2) For any MLG dressed shock strut assembly that has accumulated less than or equal to 14,000 total flight hours on the MLG dressed shock strut assembly, and has been in service for less than 84 months since its first installation on an airplane, and does not meet the criteria in paragraph (g)(1) of this AD: Within 4,400 flight hours or 26 months, whichever occurs first, after the effective date of this AD, but not to exceed 16,600 total flight hours on the MLG dressed shock strut assembly or 99 months since its first installation on an airplane, whichever occurs first.

    (3) For any MLG dressed shock strut assembly that has accumulated more than 14,000 total flight hours on the MLG dressed shock strut assembly or 84 months or more since its first installation on an airplane: Within 2,600 flight hours or 15 months, whichever occurs first, after the effective date of this AD.

    (h) Parts Exempted From This AD

    For any MLG dressed shock strut assembly with part numbers and serial numbers specified in paragraph 1.A., “Effectivity,” of Bombardier Service Bulletin 670BA-32-060, Revision B, dated November 10, 2017: The actions specified in paragraph (g) of this AD are not required provided that the actions in paragraphs (h)(1), (h)(2), or (h)(3) of this AD have been done.

    (1) The actions in paragraphs (h)(1)(i), (h)(1)(ii), (h)(1)(iii), and (h)(1)(iv) of this AD, as applicable, have been done on the MLG dressed shock strut assembly since its entry-into-service date.

    (i) Airplane maintenance manual (AMM) Task 32-32-05-400-803, Installation of the Outboard MLG Retraction Actuator Bracket Pin, or equivalent task in component maintenance manual (CMM) 32-11-05 (for Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes), or CMM 32-11-06 (for Model CL-600-2D15 (Regional Jet Series 705) airplanes and Model CL-600-2D24 (Regional Jet Series 900) airplanes), or CMM 32-11-34 (for Model CL-600-2E25 (Regional Jet Series 1000) airplanes); and

    (ii) AMM Task 32-32-05-400-804, Installation of the Inboard MLG Retraction-Actuator Bracket Pin, or equivalent task in CMM 32-11-05 (for Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes), or CMM 32-11-06 (for Model CL-600-2D15 (Regional Jet Series 705) airplanes and Model CL-600-2D24 (Regional Jet Series 900) airplanes), or CMM 32-11-34 (for Model CL-600-2E25 (Regional Jet Series 1000) airplanes); and

    (iii) AMM Task 32-32-05-400-805, Installation of the Inboard-MLG Retraction-Actuator Pin, or AMM Task 32-32-05-400-801, Installation of the MLG Retraction-Actuator, or AMM Task 32-11-05-400-801, Installation of the MLG Shock-Strut Assembly; and

    (iv) For Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, Model CL-600-2D15 (Regional Jet Series 705) airplanes, and Model CL-600-2D24 (Regional Jet Series 900) airplanes equipped with MLG auxiliary actuators: AMM Task 32-32-03-400-801, Installation of the MLG Auxiliary Actuator, or AMM Task 32-11-05-400-801, Installation of the MLG Shock-Strut Assembly.

    (2) AMM Task 32-32-05-400-806, Installation of the MLG Retraction-Actuator Bracket has been accomplished on the MLG dressed shock strut assembly since its entry-into-service date.

    (3) AMM-Tasks 32-11-00-610-801 Restoration (Overhaul) of the MLG Assembly has been accomplished since its entry into service date.

    (i) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 670BA-32-060, dated May 2, 2017, or Bombardier Service Bulletin 670BA-32-060, Revision A, dated June 22, 2017.

    (j) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, New York ACO Branch, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier Inc.'s TCCA Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.

    (k) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2017-34, dated October 19, 2017, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0275.

    (2) For more information about this AD, contact Dorie Resnik, Aerospace Engineer, Aviation Safety Section AIR-7B1, Boston ACO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; telephone 781-238-7693.

    (3) For information about AMOCs, contact Aziz Ahmed, Aerospace Engineer, Airframe and Mechanical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7329; fax 516-794-5531.

    (4) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1-866-538-1247 or direct-dial telephone 1-514-855-2999; fax 514-855-7401; email [email protected]; internet http://www.bombardier.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on March 29, 2018. Chris Spangenberg, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-07631 Filed 4-12-18; 8:45 am] BILLING CODE 4910-13-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2018-0111; FRL-9976-03—Region 6] Approval and Promulgation of Implementation Plans; Louisiana; 2008 8-Hour Ozone Maintenance Plan Revision for Baton Rouge AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Louisiana on January 31, 2018, revising the 2008 8-hour ozone maintenance plan and requesting a relaxation of the Federal Reid Vapor Pressure (RVP) requirements for the five-parish Baton Rouge area. EPA is proposing to determine that the relaxation of the RVP requirement would not interfere with attainment or maintenance of the NAAQS or with any other CAA requirement.

    DATES:

    Written comments must be received on or before May 14, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket No. EPA-R06-OAR-2018-0111, at http://www.regulations.gov or via email [email protected] Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact Ms. Wendy Jacques, (214) 665-7395, [email protected] For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI).

    FOR FURTHER INFORMATION CONTACT:

    Ms. Wendy Jacques, (214) 665-7395, [email protected] To inspect the hard copy materials, please schedule an appointment with Ms. Wendy Jacques or Mr. Bill Deese at 214-665-7253.

    SUPPLEMENTARY INFORMATION:

    Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

    I. Background A. The Baton Rouge Area and Requirements for Low RVP Gasoline

    In 2008 we revised the 8-hour ozone NAAQS from 0.08 part per million (ppm) to 0.075 ppm. (73 FR 16436, March 27, 2008.) The Baton Rouge area, consisting of five parishes (Ascension, East Baton Rouge, Iberville, Livingston, and West Baton Rouge), was designated nonattainment for the 2008 ozone NAAQS (77 FR 30088, May 21, 2012). In 2016 we approved a SIP revision to provide for maintenance of the NAAQS in the area (maintenance plan) and redesignated the area to attainment (81 FR 95051, December 27, 2016). Among the air pollution controls included in the maintenance plan was the continued use of low RVP gasoline in the area.

    On April 19, 1987 (52 FR 31274), EPA determined that gasoline nationwide was becoming increasingly volatile, causing an increase in evaporative emissions from gasoline-powered vehicles and equipment. Under CAA section 211(c), EPA promulgated regulations on March 22, 1989 (54 FR 11868) that set maximum limits for the RVP of gasoline sold during the regulatory control periods that were established on a state-by-state basis in the final rule. On June 11, 1990 (55 FR 23658), EPA promulgated more stringent volatility controls establishing maximum RVP standards of 9.0 pounds per square inch (psi) or 7.8 psi (depending on the state, the month, and the area's initial ozone attainment designation with respect to the 1-hour ozone NAAQS).

    B. Revision to the Baton Rouge Area Maintenance Plan for the 2008 Ozone NAAQS

    The December 12, 1991 (56 FR 64704), Phase II rulemaking explains that EPA believes that relaxation of an applicable RVP standard is best accomplished in conjunction with the redesignation process. In order for an ozone nonattainment area to be redesignated as an attainment area, section 107(d)(3) of the Act requires the state to make a showing, pursuant to section 175A of the Act, that the area is capable of maintaining attainment for the ozone NAAQS for ten years after redesignation. Depending on the area's circumstances, this maintenance plan will either demonstrate that the area is capable of maintaining attainment for ten years without the more stringent volatility standard or that the more stringent volatility standard may be necessary for the area to maintain its attainment with the ozone NAAQS. Therefore, in the context of a request for redesignation, EPA will not relax the volatility standard unless the state requests a relaxation and the maintenance plan demonstrates, to the satisfaction of EPA, that the area will maintain attainment for ten years without the need for the more stringent volatility standard.

    Louisiana did not request relaxation of the applicable 7.8 psi federal RVP standard when the Baton Rouge area was initially redesignated to attainment for the 2008 8-hour ozone NAAQS. Louisiana is now requesting that EPA relax the federal 7.8 psi RVP requirement for the Baton Rouge area by approving its revised maintenance plan that includes modeling demonstrating the continuous attainment of the 2008 8-hour ozone NAAQS without the RVP requirement.

    II. The EPA's Evaluation A. Demonstration That the 2008 Ozone NAAQS Will Continue To Be Maintained in the Baton Rouge Area

    On January 31, 2018, Louisiana submitted a SIP revision making changes to the maintenance plan for the Baton Rouge area. This revision demonstrates that the relaxation of the 7.8 psi federal RVP requirement would have no impact on maintaining the 2008 8-hour NAAQS. Louisiana's analysis utilized EPA's 2014 Motor Vehicle Emissions Simulator (MOVES2014a) emission modeling system to project revised on-road and non-road mobile source emission inventories for the 2011 base year and future years 2022 and 2027.

    Table 1 below is a comparison of daily nitrogen oxide (NOX) and volatile organic compounds (VOC) emissions in 2011, 2022, and 2027 for on-road, non-road, point, and non-point sectors of the five parish Baton Rouge area. Relative changes are shown for the Maintenance Plan (MP) Inventory from 2011 to 2022 and 2027, the updated inventory (UI) and the relaxed 9.0 psi RVP scenario inventory for the same years.

    Table 1—Comparison of Daily NOX and VOC Emissions, tons per day (tpd) in 2011, 2022, and 2027 2011 MP UI/7.8 2022 MP UI/7.8 UI/9.0 2027 MP UI/7.8 UI/9.0 NOX: On-road + 38.4 37.5 14.4 10.8 10.8 11.0 6.8 6.8 Non-road + 27.3 28.1 12.6 18.5 18.5 15.2 15.3 15.3 Nonpoint * 17.1 17.1 17.9 17.9 17.9 17.9 17.9 17.9 Point * 74.2 74.2 74.2 74.2 74.2 74.2 74.2 74.2 Total 157.0 156.9 119.1 121.3 121.4 118.3 114.2 114.2 % Difference from 2011 −24.1% −22.7% −22.7% −24.6% −27.2% −27.2% VOC: On-road + 19.2 19.0 13.0 10.3 10.5 11.4 7.9 8.1 Non-road + 8.7 10.3 6.5 6.3 6.6 6.1 6.1 6.4 Nonpoint * 82.6 82.6 90.5 90.5 90.5 92.7 92.7 92.7 Point * 33.6 33.6 33.6 33.6 33.6 33.6 33.6 33.6 Total 144.1 145.5 143.6 140.7 141.2 143.8 140.3 140.8 % Difference from 2011 −0.3% −3.3% −2.9% −0.2% −3.5% −3.2% * Average annual day emissions from the Maintenance Plan. + Average August day emissions estimated with MOVES; average annual day emissions for non-road ALM and 2011 NEIv2.

    Louisiana's analysis shows consistent decreases in the Maintenance Plan inventory from 2011 to both future years for NOX and VOC. The updated NOX inventory shows a smaller 2011-2022 reduction of 23 percent, but a larger 2011-2027 reduction of 27 percent than the Maintenance Plan inventory. The updated VOC inventory shows a larger reduction of 3.3-3.5 percent for 2022 and 2027 years than the existing Maintenance Plan inventory. The 9.0 psi RVP scenarios in 2022 and 2027 indicate no change in NOX and only a small change of 0.2-0.3 percent increase in VOC.

    B. Demonstration That Motor Vehicle Emissions Budgets (MVEBs) Are Approvable

    The maintenance plan creates MVEBs for criteria pollutants and/or their precursors to address pollution from cars and trucks. The MVEB is the amount of emissions allowed in the State Implementation Plan (SIP) for on-road motor vehicles; it establishes an emissions ceiling for the regional transportation network. The previously approved Maintenance Plan established MVEBs for the Baton Rouge area for the years 2022 and 2027. Using the MOVES2014a model and evaluating the 9.0 psi RVP scenarios in 2022 and 2027, the average daily on-road NOX and VOC tpd emissions are less than the previously approved budgets. Table 2 below is a comparison of these on-road emissions projections.

    Table 2—Comparison of Baton Rouge On-Road Emissions [tpd] Year 2022 7.8 UI/9.0 2027 7.8 UI/9.0 NOX * 14.37 10.78 * 10.95 6.79 VOC * 13.19 10.52 * 11.55 8.09 * MVEBs approved 12/27/2016 (81 FR 95051).

    The Transportation Conformity Rule at 40 CFR 93.101 defines a “safety margin” as an amount by which the total projected emissions from all sources of a given pollutant are less than the total emissions that would satisfy the applicable requirement for reasonable further progress, attainment, or maintenance. This would represent emission reductions of a given pollutant in the SIP beyond those needed to demonstrate maintenance. The available safety margin, once quantified, may be allocated towards projected on-road emissions to establish MVEBs for purposes of conformity. The State has demonstrated that the total revised NOX and VOC emissions in 2022 and 2027 are less than those emissions in the 2011 base year, and has quantified the total available safety margin for each pollutant. The calculated safety margin amounts are as follows: NOX 35.5 tpd/VOC 4.3 tpd for 2022 and NOX 42.7 tpd/VOC 4.7 tpd for 2027. Table 3 below summarizes the average daily on-road NOX and VOC emissions added to the revised 2022 and 2027 on-road inventories to result in the MVEB levels recommended.

    Table 3—Safety Margin Allocation 2022 UI/9.0 RVP 2027 UI/9.0 RVP NOX: On-road (tpd) 10.8 6.8 Allocated safety margin (tpd) 3.57 4.15 MVEB (tpd) 14.37 10.95 VOC: On-road (tpd) 10.5 8.1 Allocated safety margin (tpd) 2.69 3.45 MVEB (tpd) 13.19 11.55 C. Demonstration That the SIP Revision Will Not Interfere With Any Other Clean Air Act Requirement

    To support Louisiana's request to relax the federal RVP requirement in the Baton Rouge area, the state must demonstrate that the requested change will satisfy section 110(l) of the CAA. Section 110(l) requires that a revision to the SIP not interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of the Act. EPA's criterion for determining the approvability of the SIP revision is whether the noninterference demonstration associated with the relaxation request satisfies section 110(l). The modeling associated with Louisiana's previously approved maintenance plan for the 2008 8-hour ozone NAAQS is premised upon the 7.8 psi RVP requirements. The revised maintenance plan is based on allowing a relaxed requirement of 9.0 psi RVP. EPA is proposing approval of the revised maintenance plan based on information provided in the revised maintenance plan, modeling results and an evaluation of quality assured air monitoring data previously reviewed as part of the Baton Rouge Nonattainment Area 2008 8-hour Ozone NAAQS Redesignation rulemaking (81 FR 95051, December 27, 2016).

    The relaxation of the RVP requirement would not impact emission levels of any pollutant except VOCs which indirectly could impact ozone levels. The updated inventory presented in Table 1 shows that emissions for NOX and VOC in 2022 and 2027 remain well below the levels of those emissions in 2011 of the approved maintenance plan. Because future emissions are well below the level of emissions that provided for attainment of the 2008 ozone standard, the revised plan continues to provide for maintenance of that standard. Point source and non-point source emissions remain unchanged in the revised demonstration. On-road emission results show that there is virtually no change in the amount of expected NOX emission reductions in 2022 and 2027 from 2011. Emissions projection modeling indicate a small increase in projected VOC emissions in on-road and nonroad categories due to the higher gasoline RVP and the elimination of Stage II vapor recovery (82 FR 14822). Table 1 shows that the change will result in a less than 1% change in projected area VOC emissions. Due to the Baton Rouge area being NOX limited, the rate of ozone formation is limited by the amount of NOX present rather than the amount of VOCs present, it is reasonable to conclude that this small VOC increase should not contribute to additional ozone formation. Therefore, we find that this revision will not interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of the Act.

    III. Proposed Action

    We are proposing to approve a revision to the Louisiana SIP that would modify the Baton Rouge area maintenance plan for the 2008 8-hour ozone NAAQS which demonstrates that relaxing the federal RVP requirements for gasoline in the Baton Rouge area would not interfere with the area's maintenance of the 2008 8-hour ozone NAAQS or any applicable requirement of the CAA. We are also proposing to approve the 2022 and 2027 MVEBs included in this maintenance plan revision. The Agency will respond to Louisiana's request to relax the federal RVP requirements for gasoline in the Baton Rouge area in a separate rulemaking.

    IV. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: April 3, 2018. Anne Idsal, Regional Administrator, Region 6.
    [FR Doc. 2018-07678 Filed 4-12-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R04-OAR-2018-0077; FRL-9976-77—Region 4] Air Plan Approval and Air Quality Designation; AL; Redesignation of the Pike County Lead Nonattainment Area to Attainment AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    On January 3, 2018, the State of Alabama, through the Alabama Department of Environmental Management (ADEM), submitted a request for the Environmental Protection Agency (EPA) to redesignate the Troy 2008 lead Nonattainment Area (“Troy Area” or “Area”) to attainment for the 2008 lead (Pb) National Ambient Air Quality Standards (NAAQS or standard) and to approve an associated State Implementation Plan (SIP) revision containing a maintenance plan. The Troy Area is comprised of a portion of Pike County in Alabama surrounding the Sanders Lead Company facility (Sanders Lead Facility or Facility). EPA is proposing to determine that the Troy Area is attaining 2008 lead NAAQS; to approve the SIP revision containing the State's maintenance plan for maintaining attainment of the 2008 lead standard; and to redesignate the Troy Area to attainment for the 2008 lead NAAQS.

    DATES:

    Comments must be received on or before May 14, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No EPA-R04-OAR-2018-0077 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Ashten Bailey of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Ms. Bailey may be reached by phone at (404) 562-9164 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. What are the actions EPA is proposing to take?

    EPA is proposing to take the following three separate but related actions: (1) To determine that the Troy Area is attaining the 2008 lead NAAQS; (2) to approve Alabama's maintenance plan for maintaining the 2008 lead NAAQS in the Area and incorporate the plan into the SIP; and (3) to redesignate the Area to attainment. The Troy Area is comprised of the portion of Pike County, Alabama, bounded by a 0.8 mile radius from a center point at latitude 31.78627106 North and longitude 85.97862228 West, which fully includes the Sanders Lead Facility.

    EPA is making the preliminarily determination that the Troy Area is attaining the 2008 lead NAAQS based on recent air quality data, and proposing to approve Alabama's maintenance plan for the Troy Area as meeting the requirements of section 175A (such approval being one of the Clean Air Act (CAA or Act) criteria for redesignation to attainment status). The maintenance plan is designed to keep the Troy Area in attainment of the 2008 lead NAAQS through 2028. As explained in Section V, below, EPA is also proposing to determine that attainment can be maintained through 2028.

    EPA is further proposing to determine that the Troy Area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. Accordingly, in this action, EPA is proposing to approve a request to change the legal designation of the Troy Area from nonattainment to attainment for the 2008 lead NAAQS.

    In summary, this notice of proposed rulemaking is in response to Alabama's January 3, 2018, redesignation request and associated SIP submission that addresses the specific issues summarized above and the necessary elements described in section 107(d)(3)(E) of the CAA for redesignation of the Troy Area to attainment for the 2008 lead NAAQS.

    II. What is the background for EPA's proposed actions?

    On November 12, 2008 (73 FR 66964), EPA promulgated a revised primary and secondary lead NAAQS of 0.15 micrograms per cubic meter (μg/m3). Under EPA's regulations at 40 CFR part 50, the 2008 lead NAAQS are met when the maximum arithmetic 3-month mean concentration for a 3-year period, as determined in accordance with Appendix R of 40 CFR part 50, is less than or equal to 0.15 μg/m3. See 40 CFR 50.16. Ambient air quality monitoring data for the 3-year period must meet a data completeness requirement.

    EPA designated the Troy Area as a nonattainment area for the 2008 lead NAAQS on November 22, 2010 (75 FR 71033), effective December 31, 2010, using 2007-2009 ambient air quality data. This established an attainment date five years after the December 31, 2010, effective date for the 2008 lead nonattainment designations pursuant to CAA section 172(a)(2)(A). Therefore, the Troy Area's attainment date was December 31, 2015.

    EPA's 2008 lead nonattainment designation for the Area triggered an obligation for Alabama to develop a nonattainment SIP revision addressing certain CAA requirements under title I, part D, subpart 1 (hereinafter “Subpart 1”) and to submit that SIP revision in accordance with the deadlines in title I, part D, subpart 5 (hereinafter “Subpart 5”). Subpart 1 contains the general requirements for nonattainment areas for criteria pollutants, including requirements to develop a SIP that provides for the implementation of reasonably available control measures (RACM), requires reasonable further progress (RFP), includes base-year and attainment-year emissions inventories, and provides for the implementation of contingency measures. On January 28, 2014 (79 FR 4407), EPA published a final rule that approved a SIP revision, comprised of an attainment plan, based on Alabama's attainment demonstration for the Troy Area that included the base year emissions inventory requirements, RACM requirements that include reasonably available control technology (RACT), RFP plan, modeling demonstration of lead attainment, and contingency measures for the Troy Area.

    III. What are the criteria for redesignation?

    The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation providing that: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and (5) the state containing such area has met all requirements applicable to the area for purposes of redesignation under section 110 and part D of the CAA.

    On April 16, 1992, EPA provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:

    1. “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (hereinafter referred to as the “Calcagni Memorandum”);

    2. “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992; and

    3. “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994.

    IV. Why is EPA proposing these actions?

    On January 3, 2018, Alabama requested that EPA redesignate the Troy Area to attainment for the 2008 lead NAAQS and submitted an associated SIP revision containing a maintenance plan. EPA's evaluation indicates that the Troy Area is attaining the 2008 lead NAAQS and the Troy Area meets the requirements for redesignation as set forth in section 107(d)(3)(E)(i), including the maintenance plan requirements under section 175A of the CAA. As a result, EPA is proposing to take the three related actions summarized in section I of this notice.

    V. What is EPA's analysis of the State's redesignation request and SIP revision?

    As stated above, in accordance with the CAA, EPA proposes in this action to: (1) Determine that the Troy Area is attaining the 2008 lead NAAQS; (2) approve the 2008 lead NAAQS maintenance plan for the Area and incorporate the plan into the SIP; and (3) redesignate the Area to attainment for the 2008 lead NAAQS.

    A. Redesignation Request and Maintenance Demonstration

    The five redesignation criteria provided under CAA section 107(d)(3)(E) are discussed in greater detail for the Area in the following paragraphs of this section.

    Criteria (1)—The Troy Area Has Attained the 2008 Lead NAAQS

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS. See CAA section 107(d)(3)(E)(i). For lead, an area may be considered to be attaining the 2008 lead NAAQS if it meets the 2008 lead NAAQS, as determined in accordance with 40 CFR 50.16 and Appendix R of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain the NAAQS, the maximum arithmetic 3-month mean lead concentration for a 3-year period must not exceed 0.15 μg/m3 at any monitor within the area. The data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA Air Quality System (AQS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.

    Monitoring data for the Area shows that the 2008 lead NAAQS was attained. As demonstrated in Table 1, below, the 2014-2016 design value for the area was 0.09 μg/m3, well below the 2008 lead standard of 0.15 μg/m3.

    Table 1—2014-2016 Design Value Concentrations for the Troy Area [μg/m3] 1 Monitoring station 2014 annual
  • maximum
  • rolling three
  • month average
  • 2015 annual
  • maximum
  • rolling three
  • month average
  • 2016 annual
  • maximum
  • rolling three
  • month average
  • Design value
    01-109-0003 0.08 0.07 0.09 0.09

    Although 2014-2016 data are the most recent quality-assured and certified data, preliminary 2017 data indicate that the Area continues to attain the standard.2 In this proposed action, EPA is proposing to determine that the Troy Area is attaining the 2008 lead NAAQS. If the Area does not continue to attain the standard before EPA finalizes the redesignation, EPA will not go forward with the redesignation. As discussed in more detail below, Alabama has committed to continue monitoring ambient air lead concentrations in this Area in accordance with 40 CFR part 58.

    1 Air quality design values for all criteria air pollutants are available at: https://www.epa.gov/air-trends/air-quality-design-values.

    2 Preliminary 2017 data is available at https://www.epa.gov/outdoor-air-quality-data/monitor-values-report; 2017 data will not be certified until May of 2018.

    Criteria (2)—Alabama Has a Fully Approved SIP Under Section 110(k) for the Troy Area; and Criteria (5)—Alabama Has Met All Applicable Requirements Under Section 110 and Part D of Title I of the CAA

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has a fully approved SIP under section 110(k) for the area (CAA section 107(d)(3)(E)(ii)). EPA proposes to find that Alabama has met all applicable SIP requirements for the Troy Area under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, EPA proposes to find that Alabama has met all applicable SIP requirements for purposes of redesignation under part D of title I of the CAA in accordance with section 107(d)(3)(E)(v) and that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these proposed determinations, EPA ascertained which requirements are applicable to the Area and, if applicable, that they are fully approved under section 110(k). SIPs must be fully approved only with respect to requirements that were applicable prior to submittal of the complete redesignation request.

    a. The Troy Area Has Met All Applicable Requirements Under Section 110 and Part D of the CAA

    General SIP requirements. General SIP elements and requirements are delineated in section 110(a)(2) of title I, part A of the CAA. These requirements include, but are not limited to, the following: Submittal of a SIP that has been adopted by the state after reasonable public notice and hearing; provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; implementation of a source permit program; provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD)) and provisions for the implementation of part D requirements (New Source Review (NSR) permit programs); provisions for air pollution modeling; and provisions for public and local agency participation in planning and emission control rule development.

    Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants. The section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification in that state. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, EPA does not believe that the CAA's interstate transport requirements should be construed to be applicable requirements for purposes of redesignation.

    In addition, EPA believes that other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are not applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated. The section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability (i.e., for redesignations) of conformity and oxygenated fuels requirements, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 2008); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking at (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio, redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania, redesignation (66 FR 50399, October 19, 2001). Nonetheless, EPA has approved Alabama's SIP revision related to the section 110 requirements for the 2008 lead NAAQS, with the exception of the state board requirements under 110(a)(2)(E)(ii).3 See 80 FR 61111 (October 9, 2015) and 80 FR 14019 (March 18, 2015).

    3 Although not required for redesignation as discussed above, EPA notes that a proposed approval of the section 110(a)(2)(E)(ii) CAA infrastructure requirements applicable to state boards was published on February 8, 2018. See 83 FR 5594.

    Title I, Part D, applicable SIP requirements. Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth the basic nonattainment requirements applicable to all nonattainment areas. All areas that were designated nonattainment for the 2008 lead NAAQS were designated under Subpart 1 in accordance with the deadlines in Subpart 5. For purposes of evaluating this redesignation request, the applicable Subpart 1 SIP requirements for all nonattainment areas are contained in sections 172(c)(1)-(9) and in section 176. A thorough discussion of the requirements contained in sections 172 and 176 can be found in the General Preamble for Implementation of title I. See 57 FR 13498 (April 16, 1992).

    Subpart 1 Section 172 Requirements. Section 172 requires states with nonattainment areas to submit attainment plans providing for timely attainment and meeting a variety of other requirements. EPA's longstanding interpretation of the nonattainment planning requirements of section 172 is that once an area is attaining the NAAQS, those requirements are not “applicable” for purposes of CAA section 107(d)(3)(E)(ii) and therefore need not be approved into the SIP before EPA can redesignate the area. In the 1992 General Preamble for Implementation of Title I, EPA set forth its interpretation of applicable requirements for purposes of evaluating redesignation requests when an area is attaining a standard. See 57 FR 13498, 13564 (April 16, 1992). EPA noted that the requirements for RFP and other measures designed to provide for attainment do not apply in evaluating redesignation requests because those nonattainment planning requirements “have no meaning” for an area that has already attained the standard. Id. This interpretation was also set forth in the Calcagni Memorandum. EPA's understanding of section 172 also forms the basis of its Clean Data Policy, which suspends a state's obligation to submit most of the attainment planning requirements that would otherwise apply, including an attainment demonstration and planning SIPs to provide for RFP, RACM, and contingency measures under section 172(c)(9).

    As noted above, EPA already approved Alabama's attainment plan for the Area. See 79 FR 4407 (January 28, 2014). Among other things, the approved attainment plan satisfied the section 172(c)(1) requirements for RACM; 172(c)(2) requirements related to RFP; 172(c)(3) requirements for an emissions inventory; 172(c)(6) requirements for enforceable control measures to provide for attainment by the attainment date; and 172(c)(9) requirements for contingency measures.

    Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources to be allowed in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. Alabama currently has a fully-approved part D NSR program in place. However, EPA has determined that, since PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” Alabama has demonstrated that the Area will be able to maintain the NAAQS without part D NSR in effect, and therefore Alabama need not have fully approved part D NSR programs prior to approval of the redesignation request. Alabama's PSD program will become effective in the Area upon redesignation to attainment.

    Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, EPA believes that the Alabama SIP meets the requirements of section 110(a)(2) applicable for purposes of redesignation.

    Section 172(c)(8) allows a state to use equivalent modeling, emission inventory, and planning procedures if such use is requested by the state and approved by EPA. Alabama has not requested the use of equivalent techniques under section 172(c)(8).

    Section 176 Conformity Requirements. Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects that are developed, funded, or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other federally supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with Federal conformity regulations relating to consultation, enforcement, and enforceability that EPA promulgated pursuant to its authority under the CAA. In light of the elimination of lead additives in gasoline, transportation conformity does not apply to the lead NAAQS. See 73 FR 66964 (November 12, 2008).

    b. The Troy Area Has a Fully Approved Applicable SIP Under Section 110(k) of the CAA

    EPA has fully approved the applicable Alabama SIP for the Troy Area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request (see Calcagni Memorandum at p. 3; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-90 (6th Cir. 1998); Wall, 265 F.3d 426) plus any additional measures it may approve in conjunction with a redesignation action. See 68 FR 25426 (May 12, 2003) and citations therein. Following passage of the CAA of 1970, Alabama has adopted and submitted, and EPA has fully approved at various times, provisions addressing various SIP elements applicable for the 2008 lead NAAQS in the Troy Area. See 80 FR 61111 (October 9, 2015); 80 FR 14019 (March 18, 2015); and 79 FR 4407 (January 28, 2014).

    As indicated above, EPA believes that the section 110 elements that are neither connected with nonattainment plan submissions nor linked to an area's nonattainment status are not applicable requirements for purposes of redesignation.

    Criteria (3)—The Air Quality Improvement in the Troy Area Is Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Reductions

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, applicable Federal air pollution control regulations, and other permanent and enforceable reductions (CAA section 107(d)(3)(E)(iii)). EPA has preliminarily determined that Alabama has demonstrated that the observed air quality improvement in the Troy Area is due to permanent and enforceable reductions in emissions.

    When EPA designated the Troy Area as a nonattainment for the lead NAAQS, EPA determined that operations at the Sanders Lead Facility were the primary cause of the 2008 lead NAAQS violation in the Area.4 In 2012, the State submitted an attainment plan that contained lead controls needed to attain the NAAQS to satisfy the section 172(c)(1) RACM requirement. EPA approved these controls as RACM/RACT and incorporated them into the SIP, making them permanent and enforceable SIP measures to meet the requirements of the CAA and 2008 Lead NAAQS.5 See 79 FR 4407 (January 28, 2014); 78 FR 54835 (September 6, 2013). In addition, the Facility is subject to the revised secondary lead smelting National Emissions Standards for Hazardous Air Pollutants (NESHAP).6 Alabama has incorporated the requirements to install and operate controls related to RACM/RACT and the lead NESHAP into the Facility's Title V permit, attached as Appendix A to the January 3, 2018 submittal. EPA considers the emissions reductions from the lead controls at the Sanders Lead Facility to be permanent and enforceable.

    4See Region 4—Final Alabama Technical Support Document For 1st Round of Lead Designations, available at regulations.gov, document ID EPA-HQ-OAR-2009-0443-0327.

    5 These controls include enclosing various sources of emissions, routing emissions to stacks through baghouse and HEPA filters, and maintaining plant and haul roads so that dust will not become airborne. See Submitttal at 2-6, 2-7.

    6See 78 FR 54835 (September 9, 2013). The secondary lead NESHAP, codified at 40 CFR part 63, subpart X, sets emissions standards for facilities that recycle lead-bearing scrap material, typically lead acid batteries, into elemental lead or lead alloys. EPA promulgated the standard in 1997 and revised it in 2012 (with amendments in 2014).

    Criteria (4)—The Troy Area Has a Fully Approved Maintenance Plan Pursuant to Section 175A of the CAA

    For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA. See CAA section 107(d)(3)(E)(iv). In conjunction with its request to redesignate the Alabama portion of the Troy Area to attainment for the 2008 lead NAAQS, ADEM submitted a SIP revision to provide for maintenance of the 2008 lead NAAQS for at least 10 years after the effective date of redesignation to attainment. EPA believes that this maintenance plan meets the requirements for approval under section 175A of the CAA.

    a. What is required in a maintenance plan?

    Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures as EPA deems necessary to assure prompt correction of any future 2008 lead violations. The Calcagni Memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five requirements: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. As is discussed more fully below, EPA has preliminarily determined that Alabama's maintenance plan includes all the necessary components and is thus proposing to approve it as a revision to the Alabama SIP.

    b. Attainment Emissions Inventory

    In this action, EPA is proposing to determine that the Troy Area is attaining the 2008 lead NAAQS based on monitoring data from 2014-2016. In its maintenance plan, the State selected 2010 as the base year and 2014 as the attainment emissions inventory year. The attainment inventory identifies a level of emissions in the Area that is sufficient to attain the 2008 lead NAAQS. As noted above, the year 2010 was chosen as the base year for developing a comprehensive emissions inventory for lead. To evaluate maintenance through 2028, Alabama prepared emissions projections for the years 2022 and 2028. Although not required by the CAA, Alabama also provided information for emissions in 2016.

    Descriptions of how Alabama developed the emissions inventory are located in Chapter 4 of the January 3, 2018, submittal, which can be found in the docket for this action. The Sanders Lead Facility is the only point source of lead emissions within the Area. For the 2014 attainment year and 2016 inventories, the State relied on actual reported lead emissions from the Sanders Lead Facility for the point source component of the inventory and assumed that the point source emissions would remain at 2016 levels through 2028. Alabama obtained the area source category and non-road source categories inventory from EPA's 2014 NEI v. l database. To estimate lead emissions from area sources in the Troy Area, Alabama apportioned the county-level lead emissions from area sources based on the percentage of the county's land area contained within the Troy Area and determined that lead emissions from area sources total approximately 0.01 pounds per year in the Area. Similarly, to estimate lead emissions from non-road emissions, Alabama apportioned the county-level lead emissions from non-road sources based on land area and determined that lead emissions from non-road sources total approximately 0.68 pounds per year in the Area. The State assumed that these area source and non-road source emissions remain constant from 2014 through 2028. Alabama determined that there are no sources of lead emissions in the Area from on-road sources based on EPA's 2014 NEI v. l. Table 2, below, identifies base year (2010) emissions, attainment year (2014) emissions, interim year (2016 and 2022), and out-year (2028) emissions.

    c. Maintenance Demonstration

    The maintenance plan associated with the redesignation request includes a maintenance demonstration that:

    (i) Shows compliance with and maintenance of the 2008 lead NAAQS by providing information to support the demonstration that current and future emissions of lead remain at or below 2014 emissions levels.

    (ii) Uses 2014 as the attainment year and includes future emissions inventory projections for 2022 and 2028.

    (iii) Identifies an “out year” at least 10 years after the time necessary for EPA to review and approve the maintenance plan.

    (iv) Provides actual (2010, 2014, and 2016 7 ) and projected (2022 and 2028) emissions inventories, in tons per year (tpy), for the Troy Area, as shown in Table 2, below.

    7 For 2016, Alabama provided projected emissions inventories for the area and nonroad sectors.

    Table 2—Actual and Projected Annual Lead Emissions for the Troy Area [Pounds per year] 2010
  • Nonattainment base year
  • 2014
  • Base attainment year
  • 2016
  • Interim year
  • 2022
  • Interim year
  • 2028
  • Maintenance year
  • 7,368.5 1,584.69 950.69 950.69 950.69

    In situations where local emissions are the primary contributor to nonattainment, such as the Troy Area, if the future projected emissions in the nonattainment area remain at or below the baseline emissions in the nonattainment area, then the related ambient air quality standards should not be exceeded in the future. Alabama has projected emissions as described previously and determined that emissions in the Troy Area will remain below those in the attainment year inventory for the duration of the maintenance plan.

    EPA believes that the Troy Area will continue to maintain the standard at least through the year 2028 because the only point source of lead emissions in the Area has instituted permanent and enforceable controls, which are reflected in the 2014 and later emissions inventories; other sources of lead in the Area contribute only a small portion of the total emissions for the Area, as compared to the single point source (Sanders Lead Facility); and the design values for the Area beginning in 2014-2016 have been well below the NAAQS standard of 0.15 μg/m3.

    d. Monitoring Network

    There are currently two monitors measuring ambient air lead concentrations in the Troy Area, one which is a Federal Reference Method (FRM) (Pb-Total Suspended Particles) monitor meeting the requirements of 40 CFR part 58, and another that is co-located for quality assurance purposes. ADEM has committed to continue operation of its lead monitors in the Troy Area in compliance with 40 CFR part 58 and has thus addressed the requirement for monitoring. EPA approved Alabama's monitoring plan related to the Troy Area on November 7, 2017.

    e. Verification of Continued Attainment

    Alabama has the legal authority to enforce and implement the maintenance plan for the Area. This includes the authority to adopt, implement, and enforce any subsequent emissions control contingency measures determined to be necessary to correct future lead attainment problems.

    Large stationary sources are required to submit an emissions inventory annually to ADEM.8 ADEM prepares a new periodic inventory for all lead sources every three years. This lead inventory will be prepared for future years as necessary to comply with the inventory reporting requirements established in the CFR. Emissions information will be compared to the 2014 attainment year and the 2028 projected maintenance year inventory to assess emission trends, as necessary, and to assure continued compliance with the lead standard. Additionally, under the Air Emissions Reporting Requirements (AERR), ADEM is required to develop a comprehensive, annual, statewide emissions inventory every three years that is due twelve to eighteen months after the completion of the inventory year. The AERR inventory years match the attainment year, and are within one or two years of the interim and final inventory years of the maintenance plan. Therefore, ADEM commits to compare the AERR inventories as they are developed with the 2014 and 2028 inventories in the maintenance plan to evaluate compliance with the 2008 lead NAAQS in this Area.

    8 Alabama's January 3, 2018, SIP submittal states that major point sources in all counties are required to submit air emissions information annually, in accordance with U.S. EPA's AERR Rule (40 CFR part 51, subpart A). Although the AERR requirement for reporting of lead-only emissions is triennial, because the Sanders Lead Facility is a “Type A” source under the AERR for other criteria pollutants, it is also required to report lead emissions annually. See 80 FR 8787 (February 19, 2015).

    f. Contingency Measures in the Maintenance Plan

    Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation, and a time limit for action by the state. A state should also identify specific indicators to be used to determine when the contingency measures need to be implemented. The maintenance plan must include a requirement that a state will implement all measures with respect to control of the pollutant that were contained in the SIP before redesignation of the area to attainment in accordance with section 175A(d).

    In the January 3, 2018, submittal, Alabama commits to maintaining the existing control measures at the Sanders Lead Facility after redesignation. As discussed above, the Sanders Lead Facility is the primary contributor to lead in the nonattainment area, the Facility is subject to the secondary lead NESHAP, and EPA has incorporated the lead control measures for the Facility into the SIP as RACM/RACT. See 79 FR 4407 (January 28, 2014).

    The contingency plan included in the submittal contains a triggering event to determine when contingency measures will be implemented. Alabama will begin the process to implement contingency measures when, in accordance with 40 CFR part 58, ambient lead monitoring data indicates a future violation of the lead NAAQS. Also, in the event that the 3-month rolling average of lead concentrations in a year at the monitor in the Area records a violation of 0.16 μg/m3 or higher, the State will evaluate existing control measures to determine whether any further emission reduction measures should be implemented at that time.

    Alabama will adopt and implement at least one of the following contingency measures within 18 months of certification of a violation of the lead standard:

    • Improvements in existing control devices;

    • Addition of secondary control devices or improvements in housekeeping and maintenance; and

    • Other measures based on the cause of the elevated lead concentrations.

    Any contingency measure implemented for an operating permitted source will require a compliance plan and expeditious compliance from the entity(ies) involved.

    EPA has preliminarily concluded that the maintenance plan adequately addresses the five basic components of a maintenance plan: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. Therefore, EPA proposes to determine that the maintenance plan for the Area meets the requirements of section 175A of the CAA and proposes to incorporate the maintenance plan into the Alabama SIP.

    VI. Proposed Actions

    EPA is proposing to take three separate but related actions regarding the redesignation request and associated SIP revision for the Troy Area.

    First, EPA is proposing to determine, based upon review of quality-assured and certified ambient monitoring data for the 2014-2016 period that the Area attains the 2008 lead NAAQS.

    Second, EPA proposing to approve the maintenance plan for the Area and to incorporate it into the SIP. As described above, the maintenance plan demonstrates that the Area will continue to maintain the 2008 lead NAAQS through 2028.

    Third, EPA is proposing to approve Alabama's request for redesignation of the Area from nonattainment to attainment for the 2008 lead NAAQS. If finalized, approval of the redesignation request for the Troy Area would change the official designation of the portion of Pike County, Alabama, bounded by a 0.8 mile radius from a center point at latitude 31.78627106 North and longitude 85.97862228 West, which fully includes the Sanders Lead Facility, as found at 40 CFR part 81, from nonattainment to attainment for the 2008 lead NAAQS.

    VII. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, these proposed actions merely propose to approve state law as meeting Federal requirements and do not impose additional requirements beyond those imposed by state law. For this reason, these proposed actions:

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

    • Are not Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory actions because SIP approvals and redesignations are exempted under Executive Order 12866;

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

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

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

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

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

    • Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

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

    • Will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).

    The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed actions do not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects 40 CFR Part 52

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

    40 CFR Part 81

    Environmental protection, Air pollution control.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: April 2, 2018. Onis “Trey” Glenn, III Regional Administrator, Region 4.
    [FR Doc. 2018-07654 Filed 4-12-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 60, 61, and 63 [EPA-R06-OAR-2016-0091; FRL-9975-92-Region 6] New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants; Delegation of Authority to New Mexico AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The New Mexico Environment Department (NMED has submitted updated regulations for receiving delegation and approval of a program for the implementation and enforcement of certain New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) for all sources (both Title V and non-Title V sources). These updated regulations apply to certain NSPS promulgated by the EPA at part 60, as amended between September 24, 2013 and January 15, 2017; certain NESHAP promulgated by the EPA at part 61, as amended between January 1, 2011 and January 15, 2017; and other NESHAP promulgated by the EPA at part 63, as amended between August 30, 2013 and January 15, 2017, as adopted by the NMED. The delegation of authority under this action does not apply to sources located in Bernalillo County, New Mexico or to sources located in Indian Country. The EPA is providing notice that it is updating the delegation of certain NSPS to NMED and proposing to approve the delegation of certain NESHAP to NMED.

    DATES:

    Written comments should be received on or before May 14, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R06-OAR-2016-0091, at http://www.regulations.gov or via email to [email protected] For additional information on how to submit comments see the detailed instructions in the ADDRESSES section of the direct final rule located in the rules section of this issue of the Federal Register.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Rick Barrett (6MM-AP), (214) 665-7227; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    In the final rules section of this issue of the Federal Register, the EPA is approving NMED's request for delegation of authority to implement and enforce certain NSPS and NESHAP for all sources (both Title V and non-Title V sources). NMED has adopted certain NSPS and NESHAP by reference into New Mexico's state regulations. In addition, the EPA is waiving certain notification requirements required by the delegated standards so that sources will only need to notify and report to NMED, thereby avoiding duplicative notification and reporting to the EPA.

    The EPA is taking direct final action without prior proposal because the EPA views this as a noncontroversial action and anticipates no relevant adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action, no further activity is contemplated. If the EPA receives relevant adverse comments, the direct final rule will be withdrawn, and all public comments received will be addressed in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period. Any parties interested in commenting should do so at this time.

    For additional information, see the direct final rule which is located in the rules section of this issue of the Federal Register.

    Dated: March 22, 2018. Wren Stenger, Director, Multimedia Division, Region 6.
    [FR Doc. 2018-07326 Filed 4-12-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 217 [Docket No. 170908887-8328-01] RIN 0648-BH24 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to U.S. Navy Pier Construction Activities at Naval Submarine Base New London AGENCY:

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

    ACTION:

    Proposed rule; request for comments and information.

    SUMMARY:

    NMFS has received a request from the U.S. Navy (Navy) for authorization to take marine mammals incidental to the pier construction activities conducted at the Naval Submarine Base New London in Groton, Connecticut, over the course of five years (2018-2023). As required by the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations to govern that take, and requests comments on the proposed regulations. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorization and agency responses will be summarized in the final notice of our decision.

    DATES:

    Comments and information must be received no later than May 14, 2018.

    ADDRESSES:

    You may submit comments, identified by NOAA-NMFS-2018-0047, by any of the following methods:

    Electronic submissions: Submit all electronic public comments via the Federal eRulemaking Portal, Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0047, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit comments to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

    FOR FURTHER INFORMATION CONTACT:

    Shane Guan, Office of Protected Resources, NMFS; phone: (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these documents, please call the contact listed above.

    SUPPLEMENTARY INFORMATION:

    Purpose and Need for Regulatory Action

    This proposed rule would establish a framework under the authority of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of take of marine mammals incidental to the Navy's construction activities related to marine structure maintenance and pile replacement at a facility in Groton, Connecticut.

    We received an application from the Navy requesting five-year regulations and authorization to take multiple species of marine mammals. Take would occur by Level A and Level B harassment incidental to impact and vibratory pile driving. Please see “Background” below for definitions of harassment.

    Legal Authority for the Proposed Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to five years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see the discussion below in the “Proposed Mitigation” section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this proposed rule containing five-year regulations, and for any subsequent letters of authorization (LOAs). As directed by this legal authority, this proposed rule contains mitigation, monitoring, and reporting requirements.

    Summary of Major Provisions Within the Proposed Rule

    Following is a summary of the major provisions of this proposed rule regarding Navy construction activities. These measures include:

    • Required monitoring of the construction areas to detect the presence of marine mammals before beginning construction activities.

    • Shutdown of construction activities under certain circumstances to avoid injury of marine mammals.

    • Soft start for impact pile driving to allow marine mammals the opportunity to leave the area prior to beginning impact pile driving at full power.

    Background

    Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) if certain findings are made and regulations are issued or, if the taking is limited to harassment, notice of a proposed authorization is provided to the public for review.

    Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking are set forth.

    NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

    The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    National Environmental Policy Act (NEPA)

    Issuance of an MMPA authorization requires compliance with NEPA.

    In accordance with NEPA (42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, we have preliminarily determined that issuance of this rule and subsequent LOAs qualifies to be categorically excluded from further NEPA review. Issuance of the rule is consistent with categories of activities identified in CE B4 of the Companion Manual and we have not identified any extraordinary circumstances listed in Chapter 4 of the Companion Manual that would preclude use of this categorical exclusion. We will consider all public comments prior to making a final decision regarding application of CE B4.

    We will review all comments submitted in response to this notice as we complete the NEPA process, prior to making a final decision on the incidental take authorization request.

    Summary of Request

    On March 22, 2017, NMFS received an application from the Navy requesting authorization to incidentally take harbor and gray seals, by Level A and Level B harassment, incidental to noise exposure resulting from conducting pier construction activities at the Navy Submarine Base New London in Groton, Connecticut, from October 2018 to March 2022. These regulations would be valid for a period of five years. On August 31, 2017, NMFS deemed the application adequate and complete.

    The use of sound sources such as those described in the application (e.g., piledriving) may result in the take of marine mammals through disruption of behavioral patterns or may cause auditory injury of marine mammals. Therefore, incidental take authorization under the MMPA is warranted.

    Description of the Specified Activity Overview

    The Navy is planning to demolish Pier 32 and Pier 10 and construct a new Pier 32 at Naval Submarine Base New London (SUBASE), Groton, Connecticut.

    Recent Global Shore Infrastructure Plans and Regional Shore Infrastructure Plans identified a requirement for 11 adequate submarine berths at SUBASE. There are currently six adequate berths available via Piers 6, 17, and 31, leaving a shortfall of five adequate berths. The remaining submarine berthing piers (8, 10, 12, 32, and 33) are classified as inadequate because of their narrow width and short length compared to current SSN (hull classification) berthing design standards (Unified Facilities Criteria 4-152-01, Design Standards for Piers and Wharves).

    The Proposed Action is to demolish Pier 32 and Pier 10, and replace them with a new Pier 32 that meets all current Navy SSN pier standards to accommodate Virginia Class submarines. The Proposed Action includes:

    • Construction of a new, larger Pier 32 to be located approximately 150 feet (ft) north of the current location;

    • Upgrade of the quaywall, north of Pier 32, may be required to accommodate a crane weight test area;

    • Demolition of existing Pier 32 and Pier 10;

    • Dredging of the sediment mounds beneath the existing Pier 32 (approximately 9,400 cubic yards [cy]) and the existing Pier 10 (approximately 10,000 cy) to a depth of 36 ft below mean lower low water (−36 ft MLLW) plus 2 ft of over dredge (additional dredge depth that allows for varying degrees of accuracy of different types of dredging equipment). Any remaining timber piles beneath the existing piers would be pulled with a strap;

    • Dredging of the berthing areas alongside the proposed new Pier 32 (approximately 74,000 sq ft) to a depth of −38 feet MLLW plus 2 feet of over dredge; and

    • Dredging of two additional areas (approximately 10,200 cy and 31,100 cy) in the Thames River navigation channel to a depth of −36 ft MLLW plus 2 ft of over dredge.

    Two species of marine mammals are expected to potentially be present in the Thames River near SUBASE: Harbor seal (Phoca vitulina) and gray seal (Halichoeris grypus). Harbor seals and gray seals are more likely to occur at SUBASE from September to May.

    Dates and Duration

    Pile installation for the new Pier 32 and pile removal associated with the demolition of the existing Piers 32 and 10 is expected to take a total of approximately 3.5 years. Construction and demolition activities are expected to begin in October 2018 and proceed to completion in March 2022.

    In-water activities expected to result in incidental takes of marine mammals would occur during approximately 35 non-consecutive months of the project beginning in October 2018. The estimated duration of pile installation and removal, including duration of the vibratory and impact hammer activities, is provided in Table 1 below for each year of construction and demolition. Also included in the Table are the durations for wood piles and steel fender piles to be pulled by a crane using a sling or strap attached to the pile. The durations of proposed pile driving/removal activities are primarily derived from information provided by Naval Facilities Engineering Command (NAVFAC) Mid-Atlantic Public Works Department, Facilities Engineering and Acquisition Department (FEAD) Design Manager and the record of pile driving activities documented during the construction of SUBASE Pier 31 (American Bridge 2010-2011). The proposed new Pier 32 would be comparable to Pier 31 in design and location and would have similar sub-surface geological conditions along this reach of the Thames River.

    Specified Geographical Region

    SUBASE is located in the towns of Groton and Ledyard in New London County, Connecticut. SUBASE occupies approximately 687 acres along the east bank of the Thames River, 6 mi north of the river's mouth at Long Island Sound (Figure 1-1 in LOA application). The Thames River is the easternmost of Connecticut's three major rivers and is formed by the confluence of the Shetucket and Yantic rivers in Norwich, from which it flows south for 12 mi to New London Harbor. The Thames River discharges freshwater and sediment from the interior of eastern Connecticut into Long Island Sound. It is the main drainage of the Thames River Major Drainage Basin, which encompasses approximately 3,900 square mi of eastern Connecticut and central Massachusetts (USACE 2015). The lower Thames River and New London Harbor sustains a variety of military, commercial, and recreational vessel usage. New London Harbor provides protection to a number of these.

    Detailed Description of Specified Activity 1. Construction of New Pier 32

    Pile driving would most likely be conducted using a barge and crane. However, the contractor may choose to use a temporary pile-supported work trestle that would be constructed by driving approximately 60 steel 14-inch diameter H-piles.

    Structural support piles for Pier 32 would consist of approximately 120 concrete-filled steel pipe piles measuring 36 inches in diameter. The piles would be driven between 40 ft below the mudline near the shore and 150 ft below the mudline at the end of the pier. Fender piles would also be installed and would consist of approximately 194 fiberglass-reinforced plastic piles measuring 16 inches in diameter.

    Special construction features would include drilling rock sockets into bedrock in an estimated 60 places to hold the piles. A rotary drill using a rock core barrel and rock muck bucket would be used inside of the steel pipe piles to drill a minimum of 2 ft down into bedrock to create the rock socket that would be filled with concrete. Sediment would be lifted out and re-deposited within 10 ft of the pipe pile during rock socket drilling. Underwater noise from the rock drill as it is operated inside a steel pipe would be much less than that produced by vibratory and impact pile driving of the steel pipes (Martin et al., 2012).

    Impact and vibratory hammers would be used for installing piles where rock sockets are not required. Based on previous construction projects at SUBASE, it is estimated that an average of one 36-inch pile per week (with driving on multiple days) and two plastic piles per day would be installed. The per-pile drive time for each pile type and method will vary based on environmental conditions (including substrate) where each pile is driven. Impact or vibratory pile driving may result in harassment of marine mammals.

    Construction of Pier 32 may also require upgrade of the quaywall north of Pier 32 to provide the reinforcement needed to support a crane weight test area. Because there is potential that a work trestle would be used and the requirement for the upgrade will not be determined until final design, the pile driving is included in the analyzed activities. The quaywall upgrade would include up to approximately eighteen 30-inch diameter concrete-filled steel pipe piles that would be installed into rock sockets driven into bedrock adjacent and parallel to the existing steel sheet pile wall. Pile caps and a concrete deck would be installed above the piles. A fender system composed of approximately nine 16-inch diameter plastic piles would also be installed into rock sockets approximately 2 ft in front of the new deck.

    2. Demolition and Removal of Pier 32 and Pier 10

    When the new Pier 32 is operational, the existing Pier 32 would be demolished using a floating crane and a series of barges. Pier 10 would be demolished after the demolition of existing Pier 32. The concrete decks of the piers would be cut into pieces and placed on the barges. Demolition debris would be sorted and removed by barge and recycled to the maximum extent practicable. Any residual waste would be disposed of offsite in accordance with applicable federal, state, and local regulations. Once the decks are removed, the steel H piles and pipe piles that support the existing pier would be pulled using a vibratory extraction method (hammer). The vibratory hammer would be attached to the pile head with a clamp. Once attached, vibration would be applied to the pile that would liquefy the adjacent sediment allowing the pile to be removed.

    Demolition of existing Pier 32 would include the removal by vibratory driver-extractor (hammer) of approximately 60 steel piles from the temporary work trestle, 120 concrete-encased steel H-piles, and 70 steel H-piles. Fifty-six wood piles would be pulled with a sling. Demolition of Pier 10 would include the removal by vibratory hammer of 24 concrete-encased, steel H-piles and 166 cast-in-place, reinforced concrete piles. Eighty-four steel fender piles and 41 wood piles would be pulled with a sling. A total of 440 piles would be removed by vibratory hammer for both piers and the work trestle.

    3. Dredging of Pier Areas and Navigation Channel

    The Proposed Action would also include dredging of approximately 60,000 cy of sediment in two areas of the Thames River navigation channel near Pier 32, the berthing areas alongside the new Pier 32, and underneath existing Pier 32 and Pier 10 after demolition. All dredging for the Proposed Action would support safe maneuvering for entry and departure of submarines at the proposed new Pier 32 and existing Piers 8, 12, 17, and 31. The proposed design dredge depth in all areas to be dredged is −36 ft relative to MLLW plus 2 ft of over dredge.

    Dredging would be conducted in two phases. Dredging of the new Pier 32 area and the northern portion of the channel dredge areas would be conducted in the first construction year. The footprints of the demolished Pier 32 and Pier 10 and the southern portions of the channel dredge areas would be dredged after demolition of the existing piers in the fourth year of construction. Dredging would occur only during the period between October 1 and January 31 to avoid potential impacts on shellfish and fisheries resources in the area. Each dredging and disposal phase would take approximately 2 weeks to complete.

    After the demolition of Pier 32, any remnant timber piles present underneath existing Pier 32 would be pulled with a strap. The sediment mound that has formed beneath the pier would be dredged (approximately 9,400 cy) to the design depth. Dredging would also be required immediately west of Piers 31 and 32 (approximately 10,200 cy) and along the eastern edge (approximately 31,100 cy) of the navigation channel to achieve the required minimum depths to maneuver the submarines. Once the existing Pier 10 and any remnant timber piles are removed, the sediment mound beneath the old pier would be dredged (approximately 10,000 cy). Since dredging and disposal activities would be slow moving and conspicuous to marine mammals, they pose negligible risks of physical injury. An environmental bucket would be used for dredging to minimize turbidity compared with the turbidity generated by hydraulic dredging. Noise emitted by dredging equipment is broadband, with most energy below 1 kilohertz (kHz), and would be similar to that generated by vessels and maritime industrial activities that regularly operate within the action area (Clarke et al., 2002; Todd et al., 2015). Due to the low noise output and slow and steady transiting nature of the dredging activity, NMFS does not consider it would result to the level of harassment under the MMPA. Therefore, dredging is not considered further in this document.

    Table 1—Summary of Construction Activities for the Navy Submarine Base New London Activity Pile
  • number
  • Pile type Method Piles/day Total
  • driving
  • days
  • Strike
  • number
  • (impact) or
  • duration(s)
  • per pile
  • Duration
    Year 1 Pier 32 construction 60 14″ steel H-pile temp. work trestle Impact 4 15 1,000 strikes 3 weeks. 60 36″ x 100′ concrete-filled steel pipe piles Vibratory hammer & rock socket drilling 0.5 120 1,200 seconds 6 months. 20 36″ x 180′ concrete-filled steel piles Vibratory hammer 0.2 100 1,800 seconds 5 months. 20 36″ x 180′ concrete-filled steel piles Impact hammer to last 20-40 ft 2.5 8 1,000 strikes 2 weeks. Quaywall upgrade 18 30″ x 100′ concrete-filled steel pipe piles Rock socket drilling 0.5 36 15,000 seconds Concurrent with Pier 32. 9 16″ fiberglass reinforced plastic piles Rock socket drilling 0.5 18 7,500 seconds Year 2 Pier 32 construction 40 36″ x 180′ concrete-filled steel piles Vibratory hammer 0.2 200 1,800 seconds 10 months. 40 36″ x 180′ concrete-filled steel piles Impact hammer to drive last 20-40 ft 2.5 16 1,000 strikes 3.5 weeks. Year 3 Pier 32 construction 194 16″ fiberglass reinforced plastic piles Vibratory hammer 2 97 1,200 seconds 5 months. 64 16″ fiberglass reinforced plastic piles Impact hammer to drive last 20-40 ft 2.5 26 1,000 strikes 1.5 months. Year 4 Pier 32 demolition 60 14″ steel H-piles temp. work trestle Vibratory hammer (removal) 5 14 1,200 seconds 3 weeks. 24 33″ concrete-encased steel H piles Vibratory hammer (removal) 2 12 1,200 seconds 3.5 months. 96 24″ concrete-encased steel H piles Vibratory hammer (removal) 2 48 1,200 seconds 70 14″ steel H piles Vibratory hammer (removal) 5 14 1,200 seconds Pier 10 demolition 24 24″ concrete-encased steel H piles Vibratory hammer (removal) 9.5 2.5 1,200 seconds 0.5 month. 166 24″ cast-in-place reinforced concrete piles Vibratory hammer (removal) 9.5 17.5 1,200 seconds 0.5 month.

    Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see “Proposed Mitigation” and “Proposed Monitoring and Reporting”).

    Description of Marine Mammals in the Area of the Specified Activities

    Marine mammal species that could be present in the Study Area and their associated stocks are presented in Table 2 along with an abundance estimate, an associated coefficient of variation value, and best/minimum abundance estimates. There are other species of marine mammals, including a number of cetaceans, that are known to be present in nearby Long Island Sound. However, since received noise levels from the project are not expected to reach the mouth of the Thames River due to geographical boundaries, these species are excluded from further discussion. The Navy proposes to take individuals of harbor seal and gray seal by Level A and B harassment incidental to pier construction activities. Neither of these marine mammal species is listed as endangered or threatened under the Endangered Species Act (ESA).

    Information on the status, distribution, and abundance of these seal species in the Study Area may be viewed in the Navy's LOA application. Additional information on the general biology and ecology of marine mammals are included in the application. In addition, NMFS annually publishes Stock Assessment Reports (SARs) for all marine mammals in U.S. EEZ waters, including stocks that occur within the Study Area—U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessment Reports (Hayes et al., 2017).

    Table 2—Marine Mammals That May Occur Within Navy Submarine Base New London Area Common name Scientific name Stock ESA/MMPA
  • status
  • Stock abundance best/
  • minimum population
  • Occurrence in study area
    Order Carnivora Suborder Pinnipedia Family Phocidae (true seals) Gray seal Halichoerus grypus Western North Atlantic 505,000 * Thames River. Harbor seal Phoca vitulina Western North Atlantic 75,834 (0.15)/66,884 Thames River. * There are an estimated 27,131 seals in U.S. waters; however, gray seals form one population not distinguished on the basis of the U.S./Canada boundary.
    Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 dB threshold from the normalized composite audiograms, with the exception for lower limits for low-frequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. The functional groups and the associated frequencies are indicated below (note that these frequency ranges correspond to the range for the composite group, with the entire range not necessarily reflecting the capabilities of every species within that group):

    • Low-frequency cetaceans (mysticetes): Generalized hearing is estimated to occur between approximately 7 Hz and 35 kHz;

    • Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz;

    • High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): Generalized hearing is estimated to occur between approximately 275 Hz and 160 kHz;

    • Phocidae (true seals): Generalized hearing is estimated to occur between approximately 50 Hz to 86 kHz;

    • Otariidae (eared seals): Generalized hearing is estimated to occur between 60 Hz and 39 kHz.

    The pinniped functional hearing group was modified from Southall et al. (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range (Hemilä et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 2013).

    For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. Only two marine mammal species (both are phocid species) have the reasonable potential to co-occur with the proposed construction activities. Please refer to Table 2.

    Potential Impacts to Marine Mammals

    The Navy's Submarine Base New London pier construction using in-water pile driving and pile removal could adversely affect marine mammal species and stocks by exposing them to elevated noise levels in the vicinity of the activity area.

    Exposure to high intensity sound for a sufficient duration may result in auditory effects such as a noise-induced threshold shift (TS)—an increase in the auditory threshold after exposure to noise (Finneran et al., 2005). Factors that influence the amount of threshold shift include the amplitude, duration, frequency content, temporal pattern, and energy distribution of noise exposure. The magnitude of hearing threshold shift normally decreases over time following cessation of the noise exposure. The amount of TS just after exposure is the initial TS. If the TS eventually returns to zero (i.e., the threshold returns to the pre-exposure value), it is a temporary threshold shift (TTS) (Southall et al., 2007).

    Threshold Shift (noise-induced loss of hearing)—When animals exhibit reduced hearing sensitivity (i.e., sounds must be louder for an animal to detect them) following exposure to an intense sound or sound for long duration, it is referred to as a noise-induced TS. An animal can experience TTS or permanent threshold shift (PTS). TTS can last from minutes or hours to days (i.e., there is complete recovery), can occur in specific frequency ranges (i.e., an animal might only have a temporary loss of hearing sensitivity between the frequencies of 1 and 10 kHz), and can be of varying amounts (for example, an animal's hearing sensitivity might be reduced initially by only 6 dB or reduced by 30 dB). PTS is permanent, but some recovery is possible. PTS can also occur in a specific frequency range and amount as mentioned above for TTS.

    For marine mammals, published data are limited to the captive bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless porpoise (Finneran et al., 2000, 2002, 2003, 2005, 2007, 2010a, 2010b; Finneran and Schlundt, 2010; Lucke et al., 2009; Mooney et al., 2009a, 2009b; Popov et al., 2011a, 2011b; Kastelein et al., 2012a; Schlundt et al., 2000; Nachtigall et al., 2003, 2004). For pinnipeds in water, data are limited to measurements of TTS in harbor seals, an elephant seal, and California sea lions (Kastak et al., 1999, 2005; Kastelein et al., 2012b).

    Lucke et al. (2009) found a TS of a harbor porpoise after exposing it to airgun noise with a received sound pressure level (SPL) at 200.2 dB (peak-to-peak) re: 1 micropascal (μPa), which corresponds to a sound exposure level of 164.5 dB re: 1 μPa2 s after integrating exposure. Because the airgun noise is a broadband impulse, one cannot directly determine the equivalent of root mean square (rms) SPL from the reported peak-to-peak SPLs. However, applying a conservative conversion factor of 16 dB for broadband signals from seismic surveys (McCauley, et al., 2000) to correct for the difference between peak-to-peak levels reported in Lucke et al. (2009) and rms SPLs, the rms SPL for TTS would be approximately 184 dB re: 1 μPa, and the received levels associated with PTS (Level A harassment) would be higher. Therefore, based on these studies, NMFS recognizes that TTS of harbor porpoises is lower than other cetacean species empirically tested (Finneran & Schlundt, 2010; Finneran et al., 2002; Kastelein and Jennings, 2012).

    Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (i.e., recovery time), and frequency range of TTS, and the context in which it is experienced, TTS can have effects on marine mammals ranging from discountable to serious (similar to those discussed in auditory masking, below). For example, a marine mammal may be able to readily compensate for a brief, relatively small amount of TTS in a non-critical frequency range that occurs during a time where ambient noise is lower and there are not as many competing sounds present. Alternatively, a larger amount and longer duration of TTS sustained during time when communication is critical for successful mother/calf interactions could have more serious impacts. Also, depending on the degree and frequency range, the effects of PTS on an animal could range in severity, although it is considered generally more serious because it is a permanent condition. Of note, reduced hearing sensitivity as a simple function of aging has been observed in marine mammals, as well as humans and other taxa (Southall et al., 2007), so one can infer that strategies exist for coping with this condition to some degree, though likely not without cost.

    In addition, chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals, which utilize sound for vital biological functions (Clark et al., 2009). Acoustic masking is when other noises such as from human sources interfere with animal detection of acoustic signals such as communication calls, echolocation sounds, and environmental sounds important to marine mammals. Therefore, under certain circumstances, marine mammals whose acoustical sensors or environment are being severely masked could also be impaired from maximizing their performance fitness in survival and reproduction.

    Masking occurs at the frequency band that the animals utilize. Therefore, since noise generated from vibratory pile driving is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds by odontocetes (toothed whales). However, lower frequency man-made noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. It may also affect communication signals when they occur near the noise band and thus reduce the communication space of animals (e.g., Clark et al., 2009) and cause increased stress levels (e.g., Foote et al., 2004; Holt et al., 2009).

    Unlike TS, masking, which can occur over large temporal and spatial scales, can potentially affect the species at population, community, or even ecosystem levels, as well as individual levels. Masking affects both senders and receivers of the signals and could have long-term chronic effects on marine mammal species and populations. Recent science suggests that low frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of sound pressure level) in the world's ocean from pre-industrial periods, and most of these increases are from distant shipping (Hildebrand, 2009). For the Navy's Submarine Base New London pier construction, noises from vibratory pile driving and pile removal contribute to the elevated ambient noise levels in the project area, thus increasing potential for or severity of masking. Baseline ambient noise levels in the vicinity of project area are high due to ongoing shipping, construction and other activities in the Thames River.

    Finally, marine mammals' exposure to certain sounds could lead to behavioral disturbance (Richardson et al., 1995), such as: Changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where noise sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haulouts or rookeries).

    The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Southall et al., 2007). Currently NMFS uses a received level of 160 dB re 1 μPa (rms) to predict the onset of behavioral harassment from impulse noises (such as impact pile driving), and 120 dB re 1 μPa (rms) for continuous noises (such as vibratory pile driving). For the Navy's Submarine Base New London pier construction, both 160- and 120-dB levels are considered for effects analysis because the Navy plans to use both impact pile driving and vibratory pile driving and pile removal.

    The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be biologically significant if the change affects growth, survival, and/or reproduction, which depends on the severity, duration, and context of the effects.

    Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are associated with elevated sound levels produced by vibratory pile removal and pile driving in the area. However, other potential impacts to the surrounding habitat from physical disturbance are also possible.

    With regard to fish as a prey source for cetaceans and pinnipeds, fish are known to hear and react to sounds and to use sound to communicate (Tavolga et al., 1981) and possibly avoid predators (Wilson and Dill, 2002). Experiments have shown that fish can sense both the strength and direction of sound (Hawkins, 1981). Primary factors determining whether a fish can sense a sound signal, and potentially react to it, are the frequency of the signal and the strength of the signal in relation to the natural background noise level.

    The level of sound at which a fish will react or alter its behavior is usually well above the detection level. Fish have been found to react to sounds when the sound level increased to about 20 dB above the detection level of 120 dB (Ona, 1988); however, the response threshold can depend on the time of year and the fish's physiological condition (Engas et al., 1993). In general, fish react more strongly to pulses of sound (such as noise from impact pile driving) rather than continuous signals (such as noise from vibratory pile driving) (Blaxter et al., 1981), and a quicker alarm response is elicited when the sound signal intensity rises rapidly compared to sound rising more slowly to the same level.

    During in-water pile driving only a small fraction of the available habitat would be ensonified at any given time. Disturbance to fish species would be short-term and fish would return to their pre-disturbance behavior once the pile driving activity ceases. Thus, the proposed construction would have little, if any, impact on marine mammals' prey availability in the area where construction work is planned.

    Disposal of dredged material in the confined aquatic disposal (CAD) cell would have a direct impact to the benthos as a result of burial and suffocation. Most, if not all, sessile marine invertebrates are not expected to survive burial. Some motile marine organisms would be buried and unable to survive, while others such as burrowing specialists, may survive. Survival rates would depend primarily on burial depth. From 2010 through 2012, biannual benthic sampling of the CAD cell area was conducted to assess the timeframe for recovery of benthic populations of the CAD cells, in accordance with Water Quality Certificate conditions for the 2010 waterfront maintenance dredging project at the submarine base. The sampling results of the CAD cell were compared to sampling results of an undisturbed reference site located upriver. The degree of similarity of population and community structures was assessed. The results of the three year survey program indicated that a progressive recovery to a stable benthic population was occurring at the CAD cell. As demonstrated by the biannual benthic survey, benthic assemblages are anticipated to recover within three to five years after the completion of the project, and disposal impacts would not be significant (CardnoTEC 2015).

    Project activities would temporarily disturb benthic and water column habitats and change bottom topography to a minor degree, but effects on prey availability and foraging conditions for marine mammals would be temporary and limited to the immediate area of pier demolition/construction, dredging, and disposal. The new surfaces of piles and exposed concrete on the new pier would likely result in establishment of fouling communities on the new structures, and may attract fish and benthic organisms resulting in small scale shifts in prey distribution.

    There are no known haulouts within the vicinity of the Proposed Action.

    The project activities would not permanently modify existing marine mammal habitat. The activities may kill some fish and cause other fish to leave the area temporarily, thus impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences. Therefore, given the consideration of potential impacts to marine mammal prey species and their physical environment, the Navy's proposed construction activity at the submarine base would not adversely affect marine mammal habitat.

    Estimated Take

    This section provides an estimate of the number of incidental takes proposed to be authorized through this rule, which will inform both NMFS' consideration of whether the number of takes is “small” and the negligible impact determination.

    Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Authorized takes would be by Level A and Level B harassments, in the form of mild permanent hearing threshold shift (Level A) and disruption of behavioral patterns (Level B) for individual marine mammals resulting from exposure to noise generated from impact pile driving and vibratory pile driving and removal. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (e.g., shutdown measures—discussed in detail below in Mitigation section), serious injury or mortality is neither anticipated nor authorized.

    As described previously, no mortality is anticipated or authorized for this activity. Below we describe how the take is estimated.

    Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the take estimate.

    Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).

    Level B Harassment for non-explosive sources—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (e.g., frequency, predictability, duty cycle), the environment (e.g., bathymetry), and the receiving animals (hearing, motivation, experience, demography, behavioral context) and can be difficult to predict (Southall et al., 2007, Ellison et al., 2011). Based on what the available science indicates and the practical need to use a threshold based on a factor that is both predictable and measurable for most activities, NMFS uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 dB re 1 μPa (rms) for continuous (e.g., vibratory pile-driving, drilling) and above 160 dB re 1 μPa (rms) for non-explosive impulsive (e.g., seismic airguns) or intermittent (e.g., scientific sonar) sources.

    Applicant's proposed activity includes the use of continuous (vibratory pile driving and removal) and impulsive (impact pile driving) sources, and therefore the 120 and 160 dB re 1 μPa (rms) levels are applicable.

    Level A harassment for non-explosive sources—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Technical Guidance, 2016) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). Applicant's proposed activity includes the use of non-impulsive (vibratory pile driving and pile removal) sources.

    These thresholds were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in the table below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS' 2016 Technical Guidance, which may be accessed at: http://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.

    Table 3—Current Acoustic Exposure Criteria for Non-explosive Sound Underwater Hearing group PTS onset thresholds Impulsive Non-impulsive Behavioral thresholds Impulsive Non-impulsive Low-Frequency (LF) Cetaceans L pk,flat: 219 dB; L E,LF,24h: 183 dB L E,LF,24h: 199 dB L rms,flat: 160 dB L rms,flat: 120 dB. Mid-Frequency (MF) Cetaceans L pk,flat: 230 dB; L E,MF,24h: 185 dB L E,MF,24h: 198 dB High-Frequency (HF) Cetaceans L pk,flat: 202 dB; L E,HF,24h: 155 dB L E,HF,24h: 173 dB Phocid Pinnipeds (PW) (Underwater) L pk,flat: 218 dB; L E,PW,24h: 185 dB L E,PW,24h: 201 dB Otariid Pinnipeds (OW) (Underwater) L pk,flat: 232 dB; L E,OW,24h: 203 dB L E,OW,24h: 219 dB * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript “flat” is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. Ensonified Area

    Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds.

    Source Levels

    The project includes impact pile driving and vibratory pile driving and removal of various piles. Source levels of pile driving and removal activities are based on reviews of measurements of the same or similar types and dimensions of piles available in the literature (Caltrans, 2015; Martin et al., 2012; Dazey et al., 2012; WSDOT, 2007, 2012; NAVFAC Southwest, 2014). Based on this review, the following source levels are assumed for the underwater noise produced by construction activities:

    • Impact driving of 14-inch steel H-piles for the temporary trestle is assumed to generate a peak SPL of 208 dB re 1μPa, and a root-mean-squared (rms) SPL of 187 dB re 1 μPa, based on adding 10 dB to a single-strike SEL of 177 dB re 1 μPa2-sec at 10 m (33 ft) reported by Caltrans (2015). This assumption is based on differences between SEL and rms values of other piles reported by Caltrans (2015).

    • Impact driving of 36-inch steel piles would be assumed to generate an instantaneous peak SPL of 209 dB, an rms SPL of 198 dB, and a SEL of 183 dB at the 10 m (33 ft) distance, based on the weighted average of similar pile driving at the Bangor Naval Base, Naval Base Point Loma, Washington State Department of Transportation (WSDOT) Anacortes Ferry Terminal, and WSDOT Mukilteo Ferry Terminal.

    • Vibratory driving of 36-inch steel piles would be assumed to generate a 168 dB SPLrms and a 168 dB SEL at 10 m (33 ft), based on the weighted average of similar pile driving measured at Bangor Naval Base, Naval Base Point Loma, and WSDOT Anacortes Ferry Terminal.

    • Impact driving of the 16-inch plastic piles, for which no data specific to that size and composition are available, are assumed to be similar to available data on13-inch plastic piles: 177 dB peak SPL and 153 dB rms SPL. No SEL measurements were made, but the SEL at 10 m (33 ft) can be assumed to be 9 dB less than the rms value (based on differences of rms and SEL values of in-water impact pile-driving data of other piles summarized by Caltrans 2015), which would put the SEL value for the plastic piles at 144 dB. For vibratory pile driving of the same plastic piles, the SPL rms of impact driving is used as a proxy due to lack of measurement.

    • Vibratory removal of 14-inch steel H-piles is conservatively assumed to have rms and SEL values of 158 dB based on a relatively large set of measurements from the vibratory installation of 14-inch H-piles.

    • Drilling the rock sockets is assumed to be an intermittent, non-impulsive, broadband noise source, similar to vibratory pile driving, but using a rotary drill inside a pipe or casing, which is expected to reduce sound levels below those of typical pile driving (Martin et al. 2012). Measurements made during a pile drilling project in 1-5 m (3-16 ft) depths at Santa Rosa Island, CA, by Dazey et al., (2012) appear to provide reasonable proxy source levels for the proposed activities. Dazey et al. (2012) reported average rms source levels ranging from 151 to 157 dB re 1µPa, normalized to a distance of 1 m (3 ft) from the pile, during activities that included casing removal and installation as well as drilling, with an average of 154 dB re 1µPa during 62 days that spanned all related drilling activities during a single season.

    • Since no source level data are available for vibratory extraction of concrete or concrete encased 24-inch and 33-inch steel H-piles, conservative proxy source levels were based on the summary values reported for vibratory driving of 24-inch steel sheet piles by Caltrans (2015). There are two reasons for using 24-in steel sheet pile driving source level as a proxy: (1) In general, pile extraction generates less noise in comparison to pile driving, and (2) piling of concrete or concrete encased piles generated less noise in comparison to steel piles. Since there are no source levels available for extraction of the 24-in concrete or concrete encased piles and 33-in steel H-piles, we defer to the pile driving source level of 24-in steel sheet pile reported by Caltrans (2015). The Caltrans (2015) typical source level of 160 dB rms and SEL was used for vibratory removal of 24-inch concrete piles and 24-inch concrete encased steel H-piles, whereas the loudest source level of 165 dB rms and SEL was used for vibratory removal of 33-inch concrete encased steel piles.

    A summary of source levels from different pile driving and pile removal activities is provided in Table 4.

    Table 4—Summary of In-Water Pile Driving Source Levels [At 10 m from source] Method Pile type/size SPLpk
  • (dB re 1 µPa)
  • SPLrms
  • (dB re 1 µPa)
  • SEL
  • (dB re 1 µPa2-s)
  • Impact driving 14-in steel H pile 208 187 177 Impact driving 36-in concrete-filled steel pile 209 198 183 Vibratory driving 30- and 36-in concrete-filled steel pipe pile; 16-in fiberglass plastic pile NA 168 168 Impact driving 16-in fiberglass plastic pile 177 153 144 Vibratory driving 16-in fiberglass plastic pile NA 153 153 Rock socket drilling 30-in steel pile & 16-in plastic pile NA 154 154 Vibratory removal 14-in steel H pile NA 158 158 Vibratory removal 24-in concrete-encased steel H pile NA 160 160 Vibratory removal 33-in concrete-encased steel H pile NA 165 165

    These source levels are used to compute the Level A injury zones and to estimate the Level B harassment zones. For Level A harassment zones, since the peak source levels for both pile driving methods are below the injury thresholds, cumulative SEL were used to do the calculations using the NMFS acoustic guidance (NMFS 2016).

    Estimating Injury Zones

    When NMFS' Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which will result in some degree of overestimate of Level A take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate.

    For cumulative SEL (L E), distances to marine mammal injury thresholds were estimated using NMFS' Optional User Spreadsheet based on the noise exposure guidance. For impact pile driving, the single strike SEL/pulse equivalent was used, and for vibratory pile driving, the rms SPL source level was used. Per the NMFS Spreadsheet, default Weighting Factor Adjustments (WFA) were used for calculating PTS from both vibratory and impact pile driving, using 2.5 kHz and 2.0 KHz, respectively. These WFAs are acknowledged by NMFS as conservative. A transmission loss coefficient of 15 is used with reported source levels measured at 10m.

    Isopleths to Level B behavioral zones are based on rms SPL (SPLrms) that are specific for non-impulse (vibratory pile driving) sources. Distances to marine mammal behavior thresholds were calculated using practical spreading.

    A summary of the measured and modeled harassment zones is provided in Table 5. In modeling transmission loss from the project area, the conventional assumption would be made that acoustic propagation from the source is impeded by natural and manmade features that extend into the water, resulting in acoustic shadows behind such features. While not solid structures, given the density of structural pilings under the many pile-supported piers located south of Piers 32 and 10, coupled with the docking of submarines at these piers, the piers are presumed to disrupt sound propagation southward in the river.

    Table 5—Calculated Areas of Zone of Influence and Maximum Distances Year Activity description Source level
  • @10m, dB
  • (rms/SEL)
  • Level A
  • distance
  • (m)/area
  • (km2)
  • Level B
  • distance
  • (m)/area
  • (km2)
  • 1 Impact driving 14″ steel H-pile 187/177 536/0.4468 631/0.5468. Vibratory & rock socket drilling installation of 36″ concrete-filled steel piles 168 <4/<0.0001 4,642/2.2002. Impact driving 36″ concrete-filled steel piles 198/183 984/0.886 3,415/2.037. Rocket socket drilling of 30″ concrete-filled steel piles and 16″ fiberglass reinforced plastic piles 154 Activity will occur concurrently with above activities that have much bigger zones. 2 Vibratory installation of 36″ concrete-filled steel piles 168 <4/<0.0001 4,642/2.2002. Impact pile driving 36″ concrete-filled steel piles 198/183 984/0.886 3,415/2.037. 3 Vibratory installation of 16″ fiberglass plastic piles 153 0.9/<0.0001 1,584/1.1584. Impact installation of 16″ fiberglass plastic piles 153/144 2.5/<0.0001 1/<0.000. 4 Vibratory removal of 14″ steel H-piles 158 <4/<0.0001 2,415/1.8372. Vibratory removal of 24″ concrete-filled steel piles (Pier 32) 160 2.7/<0.0001 4,334/2.029. Vibratory removal of 30″ concrete-filled steel piles (Pier 32) 165 5.9/<0.0001 4,334/2.029. Vibratory removal of 24″ concrete-filled steel piles (Pier 10) 160 7.7/<0.0001 4,642/3.317.
    Marine Mammal Occurrence

    In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.

    The Navy's Marine Species Density Database (NMSDD) has density estimates for harbor and gray seals that occur in Long Island Sound. The NMSDD density estimates for harbor seals and gray seals are the same, 0.0703/km2 during fall, winter, and spring, and 0.0174/km2 during summer months. These estimates, however, are based on broad-scale oceanic surveys, which have not extended up the Thames River.

    Marine mammal surveys were conducted in fall 2014 and winter, spring, and summer of 2015 as part of a nearshore biological survey at Submarine Base New London. No marine mammals were observed (Tetra Tech 2016). Harbor seals have been sighted in the Thames River near the submarine base by Navy personnel. Both gray and harbor seals have rookeries in Long Island Sound. A two-year detailed, systematic survey of marine mammals in the Thames River began in January 2017. During the first nine months of the survey through September, one pinniped (gray seal) was observed approximately 23/4 miles downstream of SUBASE at a fishing dock near the ferry terminal, approximately 3,000 feet south of the Gold Star Memorial Bridge (I-95).

    Based on the repeated sightings at the Submarine Base New London, the average presence of seals (harbor or gray) is estimated to be 4 per week or 0.6 per day from September through May. The majority (75 percent) of these are likely to be harbor seals. There are no areas (haulouts) where seals are known to be concentrated nor have there been contemporary sightings of larger numbers of seals along this stretch of the river, and the animals seen at the submarine base are likely to move up and down as well as across the river. Given that the Thames River is about 500 m (1,640 ft) wide at the Submarine Base New London, and similarly developed areas extend about 1 km (3,280 ft) up and down the river, the Navy believes it is reasonable to extrapolate the observations at the Submarine Base New London to an area of about 1 km2 for the purpose of estimating density. This would result in an average density of 0.45 harbor and 0.15 gray seals per km2 within the project ZOIs from September through May. Very few animals were sighted outside the September through May time frame. Therefore, the September through May data is used for density estimates to be conservative.

    Take Calculation and Estimation

    Here we describe how the information provided above is brought together to produce a quantitative take estimate. For both harbor and gray seals, estimated takes are calculated based on ensonified area for a specific pile driving activity multiplied by the marine mammal density in the action area, multiplied by the number of pile driving (or removal) days. Distances to and areas of different harassment zones are listed in Table 4.

    For both Level A and Level B harassment, take calculations and assumptions are as follows:

    • Number of takes per activity = density (average number of seals per km2) * area of ZOI (km2) * number of days, rounded to the nearest whole number;

    • Seal density in the project area is estimated as 0.6/km2 from September through May (zero from June through August), consisting of 75 percent harbor seals (0.45/km2) and 25 percent gray seals (0.15/km2);

    • Assumes as a worst case that activities will occur up to a maximum of 180 workdays (5 days per week) when seals are present (September through May) during each full construction year;

    • Assumes vibratory and impact hammer pile driving would not occur on the same days;

    • Level A and Level B takes are calculated separately based on the respective ZOIs for each type of activity, providing a maximum estimate for each type of take which corresponds to the authorization requested under the MMPA; and

    • Assumes that the effective implementation of a 10 m shutdown zone will prevent non-acoustic injuries and will prevent animals from entering acoustic harassment ZOIs that extend less than 10 m from the source.

    The maximum extent of the potential injury zone (for impact pile driving of steel piles) is 984 m (3,228 ft) from the source for 36-inch concrete-filled steel piles and 536 m (1,758 ft) for 14-inch steel H-piles; other potential acoustic injury ZOIs for vibratory pile extraction and installation are only 1 to 7.7 m (3 to 25 ft) from the source (Table 4). Seals within about 10 m (33 ft) of in-water construction or demolition may also be at risk of injury from interaction with construction equipment. These potential injury zones and the 10 m (33 ft) exclusion distance would be monitored during all in-water construction/demolition activities, and the activities would be halted if a marine mammal were to approach within these distances.

    The estimated numbers of instances of acoustic harassment (takes) by year, species and severity (Level A or Level B) are shown in Table 6. Total Level A takes are estimated as 12 harbor seals and 4 gray seals (total 16), and Level B takes are estimated as 504 harbor seals and 168 gray seals (total 672).

    Table 6—Estimated Numbers of Marine Mammals That May Be Exposed to Received Noise Levels That Cause Level A and Level B Harassment Year Species Estimated
  • level A take
  • Estimated
  • level B take
  • Estimated
  • total take
  • Abundance Percentage
    1 Harbor seal 6 166 172 75,834 0.23 Gray seal 2 55 57 27,131 0.21 2 Harbor seal 6 177 183 75,834 0.24 Gray seal 2 59 61 505,000 0.01 3 Harbor seal 0 51 51 75,834 0.07 Gray seal 0 17 17 27,131 0.06 4 Harbor seal 0 110 110 75,834 0.15 Gray seal 0 37 37 27,131 0.14
    Proposed Mitigation

    In order to issue an LOA under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

    In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:

    (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned), and;

    (2) The practicability of the measures for applicant implementation, which may consider such things as cost and impact on operations.

    Mitigation for Marine Mammals and Their Habitat 1. Time Restriction

    Work would occur only during daylight hours, when visual monitoring of marine mammals can be conducted.

    2. Establishing and Monitoring Level A and Level B Harassment Zones, and Exclusion Zones

    Before the commencement of in-water construction activities, which include impact pile driving and vibratory pile driving and pile removal, the Navy shall establish Level A harassment zones where received underwater SELcum could cause PTS (see Table 5 above).

    The Navy shall also establish Level B harassment zones where received underwater SPLs are higher than 160 dBrms re 1 μPa for impulsive noise sources (impact pile driving) and 120 dBrms re 1 μPa for non-impulsive noise sources (vibratory pile driving and pile removal).

    The Navy shall establish a 10-m (33-ft) exclusion zone for all in-water construction and demolition work.

    If marine mammals are found within the exclusion zone, pile driving of the segment would be delayed until they move out of the area. If a marine mammal is seen above water and then dives below, the contractor would wait 15 minutes. If no marine mammals are seen by the observer in that time it can be assumed that the animal has moved beyond the exclusion zone.

    If pile driving of a segment ceases for 30 minutes or more and a marine mammal is sighted within the designated exclusion zone prior to commencement of pile driving, the observer(s) must notify the pile driving operator (or other authorized individual) immediately and continue to monitor the exclusion zone. Operations may not resume until the marine mammal has exited the exclusion zone or 15 minutes have elapsed since the last sighting.

    3. Shutdown Measures

    The Navy shall implement shutdown measures if a marine mammal is detected moving towards or entered the 10-m (33-ft) exclusion zone.

    Further, the Navy shall implement shutdown measures if the number of authorized takes for any particular species reaches the limit under the LOA (if issued) and such marine mammals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during in-water construction activities.

    4. Soft Start

    The Navy shall implement soft start techniques for impact pile driving. The Navy shall conduct an initial set of three strikes from the impact hammer at 40 percent energy, followed by a 1-minute waiting period, then two subsequent three strike sets. Soft start shall be required for any impact driving, including at the beginning of the day, and at any time following a cessation of impact pile driving of thirty minutes or longer.

    Whenever there has been downtime of 30 minutes or more without impact driving, the contractor shall initiate impact driving with soft-start procedures described above.

    Based on our evaluation of the required measures, NMFS has preliminarily determined that the prescribed mitigation measures provide the means effecting the least practicable adverse impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Proposed Monitoring and Reporting

    In order to issue an LOA for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) state that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.

    Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:

    • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density);

    • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas);

    • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;

    • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;

    • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and

    • Mitigation and monitoring effectiveness.

    Proposed Monitoring Measures

    The Navy shall employ trained protected species observers (PSOs) to conduct marine mammal monitoring for its Submarine Base New London pier construction project. The purposes of marine mammal monitoring are to implement mitigation measures and learn more about impacts to marine mammals from the Navy's construction activities. The PSOs will observe and collect data on marine mammals in and around the project area for 15 minutes before, during, and for 30 minutes after all pile removal and pile installation work.

    Protected Species Observer Qualifications

    NMFS-approved PSOs shall meet the following requirements:

    1. Independent observers (i.e., not construction personnel) are required;

    2. At least one observer must have prior experience working as an observer;

    3. Other observers may substitute education (undergraduate degree in biological science or related field) or training for experience;

    4. Where a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and

    5. NMFS will require submission and approval of observer CVs.

    Marine Mammal Monitoring Protocols

    The Navy shall conduct briefings between construction supervisors and crews and the PSO team prior to the start of all pile driving activities, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. All personnel working in the project area shall watch the Navy's Marine Species Awareness Training video. An informal guide shall be included with the monitoring plan to aid in identifying species if they are observed in the vicinity of the project area.

    The Navy will monitor the Level A and Level B harassment zones before, during, and after pile driving activities. The Marine Mammal Monitoring Plan would include the following procedures:

    • PSOs will be primarily located on boats, docks, and piers at the best vantage point(s) in order to properly see the entire shutdown zone(s);

    • PSOs will be located at the best vantage point(s) to observe the zone associated with behavioral impact thresholds;

    • During all observation periods, PSOs will use high-magnification (25X), as well as standard handheld (7X) binoculars, and the naked eye to search continuously for marine mammals;

    • Monitoring distances will be measured with range finders. Distances to animals will be based on the best estimate of the PSO, relative to known distances to objects in the vicinity of the PSO;

    • Bearings to animals will be determined using a compass;

    • Pile driving shall only take place when the exclusion and Level A zones are visible and can be adequately monitored. If conditions (e.g., fog) prevent the visual detection of marine mammals, activities with the potential to result in Level A harassment shall not be initiated. If such conditions arise after the activity has begun, impact pile driving would be halted but vibratory pile driving or extraction would be allowed to continue;

    • Three (3) PSOs shall be posted to monitor marine mammals during in-water pile driving and pile removal. One PSO will be located on land and two will be located in a boat to monitor the farther locations;

    • Pre-Activity Monitoring

    The exclusion zone will be monitored for 15 minutes prior to in-water construction/demolition activities. If a marine mammal is present within the 10-m exclusion zone, the activity will be delayed until the animal(s) leave the exclusion zone. Activity will resume only after the PSO has determined that, through sighting or by waiting 15 minutes, the animal(s) has moved outside the exclusion zone. If a marine mammal is observed approaching the exclusion zone, the PSO who sighted that animal will notify all other PSOs of its presence.

    • During Activity Monitoring

    If a marine mammal is observed entering the Level A or Level B zones outside the 10-m exclusion zone, the pile segment being worked on will be completed without cessation, unless the animal enters or approaches the exclusion zone, at which point all pile driving activities will be halted. If an animal is observed within the exclusion zone during pile driving, then pile driving will be stopped as soon as it is safe to do so. Pile driving can only resume once the animal has left the exclusion zone of its own volition or has not been re-sighted for a period of 15 minutes.

    • Post-Activity Monitoring

    Monitoring of all zones will continue for 30 minutes following the completion of the activity.

    Reporting Measures

    The Navy is required to submit an annual report within 90 days after each activity year, starting from the date when the LOA is issued (for the first annual report) or from the date when the previous annual report ended. These reports would detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed during the period of the report. NMFS would provide comments within 30 days after receiving these reports, and the Navy should address the comments and submit revisions within 30 days after receiving NMFS comments. If no comment is received from NMFS within 30 days, the annual report is considered completed.

    The Navy is also required to submit a draft monitoring report within 90 days after completion of the construction work or the expiration of the final LOA (if issued), whichever comes earlier. This report would synthesize all data recorded during marine mammal monitoring, and estimate the number of marine mammals that may have been harassed through the entire project. NMFS would provide comments within 30 days after receiving this report, and the Navy should address the comments and submit revisions within 30 days after receiving NMFS comments. If no comment is received from NMFS within 30 days, the monitoring report is considered as final.

    In addition, NMFS would require the Navy to notify NMFS' Office of Protected Resources and NMFS' Greater Atlantic Stranding Coordinator within 48 hours of sighting an injured or dead marine mammal in the construction site. The Navy shall provide NMFS and the Stranding Network with the species or description of the animal(s), the condition of the animal(s) (including carcass condition, if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available).

    In the event that the Navy finds an injured or dead marine mammal that is not in the construction area, the Navy would report the same information as listed above to NMFS as soon as operationally feasible.

    Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels).

    To avoid repetition, this introductory discussion of our analyses applies to both of the species listed in Table 2, given that the anticipated effects of the Navy's Submarine Base New London pier construction project activities involving pile driving and pile removal on marine mammals are expected to be relatively similar in nature. There is no information about the nature or severity of the impacts, or the size, status, or structure of any species or stock that would lead to a different analysis by species for this activity, or else species-specific factors would be identified and analyzed.

    Although a few individual seals (6 harbor seals and 2 gray seals each in year 1 and year 2) are estimated to experience Level A harassment in the form of PTS if they stay within the Level A harassment zone during the entire pile driving for the day, the degree of injury is expected to be mild and is not likely to affect the reproduction or survival of the individual animals. It is expected that, if hearing impairments occurs, most likely the affected animal would lose a few dB in its hearing sensitivity, which in most cases is not likely to affect its survival and recruitment. Hearing impairment that might occur for these individual animals would be limited to the dominant frequency of the noise sources, i.e., in the low-frequency region below 2 kHz. Nevertheless, as for all marine mammal species, it is known that in general these pinnipeds will avoid areas where sound levels could cause hearing impairment. Therefore it is not likely that an animal would stay in an area with intense noise that could cause severe levels of hearing damage.

    Under the majority of the circumstances, anticipated takes are expected to be limited to short-term Level B harassment. Marine mammals present in the vicinity of the action area and taken by Level B harassment would most likely show overt brief disturbance (startle reaction) and avoidance of the area from elevated noise levels during pile driving and pile removal. Given the limited estimated number of incidents of Level A and Level B harassment and the limited, short-term nature of the responses by the individuals, the impacts of the estimated take cannot be reasonably expected to, and are not reasonably likely to, rise to the level that they would adversely affect either species at the population level, through effects on annual rates of recruitment or survival.

    There are no known important habitats, such as rookeries or haulouts, in the vicinity of the Navy's proposed Submarine Base New London pier construction project. The project also is not expected to have significant adverse effects on affected marine mammals' habitat, including prey, as analyzed in detail in the “Anticipated Effects on Marine Mammal Habitat” section.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.

    Small Numbers

    As noted above, only small numbers of incidental take may be authorized under section 101(a)(5)(A) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals.

    The estimated takes are below one percent of the population for all marine mammals (Table 6).

    Based on the analysis contained herein of the proposed activity (including the prescribed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.

    Unmitigable Adverse Impact Subsistence Analysis and Determination

    There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

    Adaptive Management

    The regulations governing the take of marine mammals incidental to Navy maintenance construction activities would contain an adaptive management component.

    The reporting requirements associated with this proposed rule are designed to provide NMFS with monitoring data from the previous year to allow consideration of whether any changes are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from the Navy regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable.

    The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs.

    Endangered Species Act (ESA)

    No incidental take of ESA-listed species is proposed for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.

    Request for Information

    NMFS requests interested persons to submit comments, information, and suggestions concerning the Navy request and the proposed regulations (see ADDRESSES). All comments will be reviewed and evaluated as we prepare a final rule and make final determinations on whether to issue the requested authorization. This notice and referenced documents provide all environmental information relating to our proposed action for public review.

    Classification

    Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this proposed rule is not significant.

    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The U.S. Navy is the sole entity that would be subject to the requirements in these proposed regulations, and the Navy is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared.

    This proposed rule does not contain a collection-of-information requirement subject to the provisions of the Paperwork Reduction Act (PRA) because the applicant is a federal agency. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number. These requirements have been approved by OMB under control number 0648-0151 and include applications for regulations, subsequent LOAs, and reports.

    List of Subjects in 50 CFR Part 218

    Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine mammals, Navy, Penalties, Reporting and recordkeeping requirements, Seafood, Sonar, Transportation.

    Dated: April 10, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 217 is proposed to be amended as follows:

    PART 218—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS 1. The authority citation for part 217 continues to read as follows: Authority:

    16 U.S.C. 1361 et seq.

    2. Add subpart J to part 217 to read as follows: Subpart J—Taking and Importing Marine Mammals; U.S. Navy's Submarine Base New London Pier Construction Sec. 217.90 Specified activity and specified geographical region. 217.91 Effective dates. 217.92 Permissible methods of taking. 217.93 Prohibitions. 217.94 Mitigation requirements. 217.95 Requirements for monitoring and reporting. 217.96 Letters of Authorization. 217.97 Renewals and modifications of Letters of Authorization. 217.98 [Reserved] 217.99 [Reserved] Subpart J—Taking and Importing Marine Mammals; U.S. Navy's Submarine Base New London Pier Construction
    § 217.90 Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to the activities described in paragraph (c) of this section.

    (b) The taking of marine mammals by the Navy may be authorized in Letters of Authorization (LOAs) only if it occurs within the Navy Submarine Base New London Study Area, which is located in the towns of Groton and Ledyard in New London County, Connecticut.

    (c) The taking of marine mammals by the Navy is only authorized if it occurs incidental to the Navy's conducting in-water pier construction or demolition activities.

    § 217.91 Effective dates and definitions.

    Regulations in this subpart are effective [EFFECTIVE DATE OF FINAL RULE] through [DATE 5 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].

    § 217.92 Permissible methods of taking.

    Under LOAs issued pursuant to § 216.106 of this chapter and § 217.96, the Holder of the LOAs (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.90(b) by Level A harassment and Level B harassment associated with in-water pile driving and pile removal activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOAs.

    § 217.93 Prohibitions.

    Notwithstanding takings contemplated in § 217.92 and authorized by LOAs issued under § 216.106 of this chapter and § 217.96, no person in connection with the activities described in § 217.90 of this chapter may:

    (a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 217.96;

    (b) Take any marine mammal not specified in such LOAs;

    (c) Take any marine mammal specified in such LOAs in any manner other than as specified;

    (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or

    (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable adverse impact on the availability of such species or stock of marine mammal for taking for subsistence uses.

    § 217.94 Mitigation requirements.

    When conducting the activities identified in § 217.90(c), the mitigation measures contained in any LOAs issued under § 216.106 of this chapter and § 217.96 must be implemented. These mitigation measures shall include but are not limited to:

    (a) Time Restriction. In-water construction and demolition work shall occur only during daylight hours;

    (b) Establishment of monitoring and exclusion zones:

    (1) For all relevant in-water construction and demolition activity, the Navy shall implement shutdown zones with radial distances as identified in any LOA issued under § 216.106 of this chapter and § 217.96. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease;

    (2) For all relevant in-water construction and demolition activity, the Navy shall designate monitoring zones with radial distances as identified in any LOA issued under § 216.106 of this chapter and § 217.96; and

    (3) For all in-water construction and demolition activity, the Navy shall implement a minimum shutdown zone of a 10 meter (m) radius around the pile. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease;

    (c) Shutdown Measures. (1) The Navy shall deploy three protected species observers (PSO) to monitor marine mammals during in-water pile driving and pile removal. One PSO will be located on land and two will be located in a boat to monitor the farther locations.

    (2) Monitoring shall take place from 15 minutes prior to initiation of pile driving or removal activity through 30 minutes post-completion of pile driving or removal activity. Pre-activity monitoring shall be conducted for 15 minutes to ensure that the shutdown zone is clear of marine mammals, and pile driving or removal may commence when observers have declared the shutdown zone clear of marine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals shall be allowed to remain in the shutdown zone (i.e., must leave of their own volition) and their behavior shall be monitored and documented. Monitoring shall occur throughout the time required to drive or remove a pile. A determination that the shutdown zone is clear must be made during a period of good visibility (i.e., the entire shutdown zone and surrounding waters must be visible to the naked eye).

    (3) If a marine mammal approaches or enters the shutdown zone, all pile driving or removal activities at that location shall be halted. If pile driving or removal is halted or delayed due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of the animal.

    (4) Monitoring shall be conducted by trained observers, who shall have no other assigned tasks during monitoring periods. Trained observers shall be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. The Navy shall adhere to the following additional observer qualifications:

    (i) Independent observers (i.e., not construction personnel) are required;

    (ii) At least one observer must have prior experience working as an observer;

    (iii) Other observers may substitute education (degree in biological science or related field) or training for experience;

    (iv) Where a team of three or more observers are required, one observer shall be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and

    (v) The Navy shall submit observer CVs for approval by NMFS;

    (5) The Navy shall implement shutdown measures if the number of authorized takes for any particular species reaches the limit under the applicable LOA and if such marine mammals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during in-water construction or demolition activities.

    (c) Soft Start. (1) The Navy shall implement soft start techniques for impact pile driving. The Navy shall conduct an initial set of three strikes from the impact hammer at 40 percent energy, followed by a 1-minute waiting period, then two subsequent three strike sets.

    (2) Soft start shall be required for any impact driving, including at the beginning of the day, and at any time following a cessation of impact pile driving of 30 minutes or longer.

    § 217.95 Requirements for monitoring and reporting.

    (a) Marine Mammal Monitoring Protocols. The Navy shall conduct briefings between construction supervisors and crews and the observer team prior to the start of all pile driving and removal activities, and when new personnel join the work. Trained observers shall receive a general environmental awareness briefing conducted by Navy staff. At minimum, training shall include identification of marine mammals that may occur in the project vicinity and relevant mitigation and monitoring requirements. All observers shall have no other construction-related tasks while conducting monitoring.

    (b) Pile driving or removal shall only take place when the exclusion and Level A zones are visible and can be adequately monitored. If conditions (e.g., fog) prevent the visual detection of marine mammals, activities shall not be initiated. If such conditions arise after the activity has begun, impact pile driving would be halted but vibratory pile driving or removal would be allowed to continue.

    (c) Reporting Measures.—(1) Annual Reports. (i) The Navy shall submit an annual report within 90 days after each activity year, starting from the date when the LOA is issued (for the first annual report) or from the date when the previous annual report ended.

    (ii) Annual reports would detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed during the period of the report.

    (iii) NMFS would provide comments within 30 days after receiving annual reports, and the Navy shall address the comments and submit revisions within 30 days after receiving NMFS comments. If no comment is received from the NMFS within 30 days, the annual report is considered completed.

    (2) Final Report. (i) The Navy shall submit a comprehensive summary report to NMFS not later than 90 days following the conclusion of marine mammal monitoring efforts described in this subpart.

    (ii) The final report shall synthesize all data recorded during marine mammal monitoring, and estimate the number of marine mammals that may have been harassed through the entire project.

    (iii) NMFS would provide comments within 30 days after receiving this report, and the Navy shall address the comments and submit revisions within 30 days after receiving NMFS comments. If no comment is received from the NMFS within 30 days, the final report is considered as final.

    (3) Reporting of injured or dead marine mammals:

    (i) In the unanticipated event that the construction or demolition activities clearly cause the take of a marine mammal in a prohibited manner, such as an injury, serious injury, or mortality, the Navy shall immediately cease all operations and immediately report the incident to the NMFS Office of Protected Resources, NMFS, and the Greater Atlantic Region Stranding Coordinators. The report must include the following information:

    (A) Time, date, and location (latitude/longitude) of the incident;

    (B) Description of the incident;

    (C) Status of all sound source use in the 24 hours preceding the incident;

    (D) Environmental conditions (e.g., wind speed and direction, sea state, cloud cover, visibility, and water depth);

    (E) Description of marine mammal observations in the 24 hours preceding the incident;

    (F) Species identification or description of the animal(s) involved;

    (G) The fate of the animal(s); and

    (H) Photographs or video footage of the animal (if equipment is available).

    (ii) Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with the Navy to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Navy may not resume their activities until notified by NMFS via letter, email, or telephone.

    (iii) In the event that the Navy discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), the Navy will immediately report the incident to the NMFS Office of Protected Resources, NMFS, and the Greater Atlantic Regional Stranding Coordinators. The report must include the same information identified in paragraph (c)(3)(i) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with the Navy to determine whether modifications in the activities are appropriate.

    (iv) In the event that the Navy discovers an injured or dead marine mammal, and the lead protected species observer determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the Navy shall report the incident to the NMFS Office of Protected Resources, NMFS, and the Greater Atlantic Regional Stranding Coordinators, within 24 hours of the discovery. The Navy shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. The Navy can continue its operations under such a case.

    § 217.96 Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these regulations, the Navy must apply for and obtain LOAs in accordance with § 216.106 of this chapter for conducting the activity identified in § 217.90(c) of this subpart.

    (b) LOAs, unless suspended or revoked, may be effective for a period of time not to extend beyond the expiration date of these regulations.

    (c) If an LOA(s) expires prior to the expiration date of these regulations, the Navy may apply for and obtain a renewal of the LOA(s).

    (d) In the event of projected changes to the activity or to mitigation, monitoring, reporting (excluding changes made pursuant to the adaptive management provision of § 217.97(c)(1)) required by an LOA, the Navy must apply for and obtain a modification of LOAs as described in § 217.97.

    (e) Each LOA shall set forth:

    (1) Permissible methods of incidental taking;

    (2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, their habitat, and the availability of the species for subsistence uses; and

    (3) Requirements for monitoring and reporting.

    (f) Issuance of the LOA(s) shall be based on a determination that the level of taking shall be consistent with the findings made for the total taking allowable under these regulations.

    (g) Notice of issuance or denial of the LOA(s) shall be published in the Federal Register within 30 days of a determination.

    § 217.97 Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under § 216.106 of this subchapter and § 217.96 for the activity identified in § 217.90(c) shall be renewed or modified upon request by the applicant, provided that:

    (1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), and

    (2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA(s) under these regulations were implemented.

    (b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.

    (c) An LOA issued under § 216.106 of this chapter and § 217.96 for the activity identified in § 217.90 (c) may be modified by NMFS under the following circumstances:

    (1) Adaptive Management—After consulting with the Navy regarding the practicability of the modifications, NMFS may modify (including by adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.

    (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:

    (A) Results from the Navy's monitoring from the previous year(s).

    (B) Results from other marine mammal and/or sound research or studies; or

    (C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.

    (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall publish a notice of proposed LOA in the Federal Register and solicit public comment.

    (2) Emergencies—If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to § 216.106 of this chapter and § 217.96, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action.

    § 217.98 [Reserved]
    § 217.99 [Reserved]
    [FR Doc. 2018-07728 Filed 4-12-18; 8:45 am] BILLING CODE 3510-22-P
    83 72 Friday, April 13, 2018 Notices DEPARTMENT OF AGRICULTURE Rural Utilities Service Announcement of Application Deadlines and Requirements for Section 313A Guarantees for Bonds and Notes Issued for Electrification or Telephone Purposes Loan Program for Fiscal Year (FY) 2018 AGENCY:

    Rural Utilities Service, USDA.

    ACTION:

    Notice of Solicitation of Applications (NOSA).

    SUMMARY:

    The Rural Utilities Service (RUS), an agency of the United States Department of Agriculture (USDA), announces the application window and requirements for Fiscal Year (FY) 2018 under the Guarantees for Bonds and Notes Issued for Electrification or Telephone Purposes Program (the 313A Program) authorized under the Rural Electrification Act of 1936, as amended, and related terms. The Agency will publish the amount of funding received in the appropriations act on its website at https://www.rd.usda.gov/newsroom/notices-solicitation-applications-nosas. Under the 313A Program, the Federal Financing Bank (FFB) will make loans to the selected applicant(s) and RUS will guarantee the applicant(s)'s repayment of the loans to FFB. Selected applicants may use the proceeds of loan funds made available under the 313A Program to make loans to borrowers for electrification or telecommunications purposes, or to refinance bonds or notes previously issued by applicants for such purposes. The proceeds of the guaranteed bonds and notes are not to be used by applicants to directly or indirectly fund projects for the generation of electricity.

    DATES:

    Completed applications must be received by RUS no later than 5:00 p.m. Eastern Daylight Time (EDT) on May 31, 2018.

    ADDRESSES:

    Applicants are required to submit one original and two copies of their loan applications to the U.S. Department of Agriculture, Rural Utilities Service, Electric Program, ATTN: Amy McWilliams, Management Analyst, 1400 Independence Avenue SW, Stop 1568, Room 0226-S, Washington, DC 20250-1568.

    FOR FURTHER INFORMATION CONTACT:

    For further information contact Amy McWilliams, Management Analyst, 1400 Independence Avenue SW, STOP 1568, Room 0226-S, Washington, DC 20250-1568. Telephone: (202) 205-8663; or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Overview

    Federal Agency: Rural Utilities Service, USDA.

    Funding Opportunity Title: Guarantees for Bonds and Notes Issued for Electrification or Telephone Purposes for Fiscal Year (FY) 2018.

    Announcement Type: Guarantees for Bonds and Notes.

    Catalog of Federal Domestic Assistance (CFDA) Number: 10.850.

    Due Date for Applications: Applications must be received by RUS by 5:00 p.m. Eastern. Daylight Time (EDT) on May 31, 2018.

    Items in Supplementary Information I. Funding Opportunity Description II. Award Information III. Eligibility Information IV. Fiscal Year 2018 Application and Submission Information V. Application Review Information VI. Issuance of the Guarantee VII. Guarantee Agreement VIII. Reporting Requirements IX. Award Administration Information X. National Environmental Policy Act Certification XI. Other Information and Requirements XII. Agency Contacts: Website, Phone, Fax, Email, Contact Name XIII. Non-Discrimination Statement: USDA Non-Discrimination Statement, How To File a Complaint, Persons With Disabilities I. Funding Opportunity Description A. Purpose and Objectives of the 313A Program.

    The purpose of the 313A Program is to make guaranteed loans to selected applicants (each referred to as “Guaranteed Lender” in this NOSA and in the Program Regulations) that are to be used (i) to make loans for electrification or telecommunications purposes eligible for assistance under the RE Act (defined herein) and regulations for the 313A Program located at 7 CFR part 1720 (also referred to as the “Program Regulations” in this NOSA), or (ii) to refinance bonds or notes previously issued by the Guaranteed Lender for such purposes. The proceeds of the guaranteed bonds and notes are not to be used by the Guaranteed Lender to directly or indirectly fund projects for the generation of electricity. Each applicant must provide a statement on how it proposes to use the proceeds of the guaranteed bonds, and the financial benefit it anticipates deriving from participating in the program pursuant to 7 CFR 1720.6(a)(3). Objectives may include, but are not limited to the annual savings to be realized by the ultimate borrower(s) as a result of the applicant's use of lower cost loan funds provided by FFB and guaranteed by RUS.

    B. Statutory Authority

    The 313A Program is authorized by Section 313A of the Rural Electrification Act of 1936, as amended (7 U.S.C. 940c-1) (the RE Act), and is implemented by regulations located at 7 CFR 1720. The Administrator of RUS (the Administrator) has been delegated responsibility for administering the 313A Program.

    C. Definition of Terms

    The definitions applicable to this NOSA are published at 7 CFR 1720.3.

    D. Application Awards

    RUS will review and evaluate applications received in response to this NOSA based on the regulations at 7 CFR 1720.7, and as provided in this NOSA.

    II. Award Information

    Type of Awards: Guaranteed Loans.

    Fiscal Year Funds: FY 2018.

    Available Funds: https://www.rd.usda.gov/newsroom/notices-solicitation-applications-nosas.

    Award Amounts: RUS anticipates making multiple approvals under this NOSA. The number, amount and terms of awards under this NOSA will depend in part on the number of eligible applications and the amount of funds requested. In determining whether or not to make an award, RUS will take overall program policy objectives into account.

    Due Date for Applications: See under SUPPLEMENTARY INFORMATION section.

    Award Date: Awards will be made on or before September 28, 2018.

    Preferred Schedule of Loan Repayment: Amortization Method (level debt service).

    III. Eligibility Information A. Eligible Applicants

    1. To be eligible to participate in the 313A Program, a Guaranteed Lender must be:

    a. A bank or other lending institution organized as a private, not-for-profit cooperative association, or otherwise organized on a non-profit basis; and

    b. Able to demonstrate to the Administrator that it possesses the appropriate expertise, experience, and qualifications to make loans for electrification or telephone purposes.

    2. To be eligible to receive a guarantee, a Guaranteed Lender's bond must meet the following criteria:

    a. The Guaranteed Lender must furnish the Administrator with a certified list of the principal balances of eligible loans outstanding and certify that such aggregate balance is at least equal to the sum of the proposed principal amount of guaranteed bonds to be issued, including any previously issued guaranteed bonds outstanding;

    b. The guaranteed bonds to be issued by the Guaranteed Lender would receive an underlying investment grade rating from a Rating Agency, without regard to the guarantee; and

    3. A lending institution's status as an eligible applicant does not assure that the Administrator will issue the guarantee sought in the amount or under the terms requested, or otherwise preclude the Administrator from declining to issue a guarantee.

    B. Other Eligibility Requirements

    Applications will only be accepted from lenders that serve rural areas defined in 7 CFR 1710.2(a) as (i) any area of the United States, its territories and insular possessions (including any area within the Federated States of Micronesia, the Marshall Islands, and the Republic of Palau) other than a city, town, or unincorporated area that has a population of greater than 20,000 inhabitants; and (ii) any area within a service area of a borrower for which a borrower has an outstanding loan as of June 18, 2008, made under titles I through V of the Rural Electrification Act of 1936 (7 U.S.C. 901-950bb). For initial loans to a borrower made after June 18, 2008, the “rural” character of an area is determined at the time of the initial loan to furnish or improve service in the area.

    IV. Fiscal Year 2018 Application and Submission Information A. Applications

    All applications must be prepared and submitted in accordance with this NOSA and 7 CFR 1720.6 (Application Process). To ensure the proper preparation of applications, applicants should carefully read this NOSA and 7 CFR part 1720 (available online at http://www.ecfr.gov/cgi-bin/text-idx?SID=9295e45c9a0f6a857d800fbec5dde2fb&mc=true&node=pt7.11.1720&rgn=div5).

    B. Content and Form of Submission

    In addition to the required application specified in 7 CFR 1720.6, all applicants must submit the following additional required documents and materials:

    1. Form AD-1047, Certification Regarding Debarment, Suspension, and Other Responsibility Matters Primary Covered Transactions. This form contains certain certifications relating to debarment and suspension, convictions, criminal charges, and the termination of public transactions (See 2 CFR part 417, and 7 CFR 1710.123.) This form is available at http://www.ocio.usda.gov/policy-directives-records-forms/forms-management/approved-computer-generated-forms;

    2. Restrictions on Lobbying. Applicants must comply with the requirements relating to restrictions on lobbying activities. (See 2 CFR part 418, and 7 CFR 1710.125.) This form is available at http://www.rd.usda.gov/publications/regulations-guidelines/electric-sample-documents;

    3. Uniform Relocation Act assurance statement. Applicants must comply with 49 CFR part 24, which implements the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended. (See 7 CFR 1710.124.) This form is available at http://www.rd.usda.gov/publications/regulations-guidelines/electric-sample-documents;

    4. Federal debt delinquency requirements. This report indicates whether or not the applicants are delinquent on any Federal debt (See 7 CFR 1710.126 and 7 CFR 1710.501(a)(13)). This form is available at http://www.rd.usda.gov/publications/regulations-guidelines/electric-sample-documents;

    5. RUS Form 266, Compliance Assurance. Applicants must submit a non-discrimination assurance commitment to comply with certain regulations on non-discrimination in program services and benefits and on equal employment opportunity as set forth in 7 CFR parts 15 and 15b and 45 CFR part 90. This form is available at; http://www.rd.usda.gov/publications/regulations-guidelines/forms-publications;

    6. Articles of incorporation and bylaws. See 7 CFR 1710.501(a)(14). These are required if either document has been amended since the last loan application was submitted to RUS, or if this is the applicant's first application for a loan under the RE Act; and

    7. Form AD-3030, Representations Regarding Felony Conviction and Tax Delinquent Status for Corporation Applications. Applicants are required to complete this form if they are a corporation. This form is available at http://www.ocio.usda.gov/policy-directives-records-forms/forms-management/approved-computer-generated-forms.

    C. Supplemental Documents for Submission

    1. Cash flow projections and assumptions: Each applicant must include five-year pro-forma cash flow projections or business plans and clearly state the assumptions that underlie the projections, demonstrating that there is reasonable assurance that the applicant will be able to repay the guaranteed loan in accordance with its terms (See 7 CFR 1720.6(a)(4)).

    2. Pending litigation statement: A statement from the applicant's counsel listing any pending litigation, including levels of related insurance coverage and the potential effect on the applicant.

    V. Application Review Information A. Application Evaluation

    1. Administrator Review. Each application will be reviewed by the Administrator to determine whether it is eligible under 7 CFR 1720.5, the information required under 7 CFR 1720.6 is complete, and the proposed guaranteed bond complies with applicable statutes and regulations. The Administrator can at any time reject an application that fails to meet these requirements.

    a. Applications will be subject to a substantive review, on a competitive basis, by the Administrator based upon the evaluation factors listed in 7 CFR 1720.7(b).

    2. Decisions by the Administrator. The Administrator will approve or deny applications in a timely manner as such applications are received; provided, however, that in order to facilitate competitive evaluation of applications, the Administrator may from time to time defer a decision until more than one application is pending. The Administrator may limit the number of guarantees made to a maximum of five per year, to ensure a sufficient examination is conducted of applicant requests. RUS will notify the applicant in writing of the Administrator's approval or denial of an application. Approvals for guarantees will be conditioned upon compliance with 7 CFR 1720.4 and 7 CFR 1720.6. The Administrator reserves the discretion to approve an application for an amount less than that requested.

    B. Independent Assessment

    Before a guarantee decision is made by the Administrator, the Administrator shall request that FFB review the rating agency determination required by 7 CFR 1720.5(b)(2) as to whether the bond or note to be issued would receive an investment grade rating without regard to the guarantee.

    VI. Issuance of the Guarantee

    The requirements under this section must be met by the applicant prior to the endorsement of a guarantee by the Administrator (See 7 CFR 1720.8.)

    VII. Guarantee Agreement

    Each Guaranteed Lender will be required to enter into a Guarantee Agreement with RUS that contains the provisions described in 7 CFR 1720.8 (Issuance of the Guarantee), 7 CFR 1720.9 (Guarantee Agreement), and 7 CFR 1720.12 (Reporting Requirements). The Guarantee Agreement will also obligate the Guaranteed Lender to pay, on a semi-annual basis, a guarantee fee equal to 30 basis points (0.30 percent) of the outstanding principal amount of the guaranteed loan (See 7 CFR 1720.10). The ultimate recipients repay the lending utility directly. The utility is responsible for repayment to USDA.

    VIII. Reporting Requirements

    Guaranteed Lenders are required to comply with the financial reporting requirements and pledged collateral review and certification requirements set forth in 7 CFR 1720.12.

    IX. Award Administration Information Award Notices

    RUS will send a commitment letter to an applicant once the loan is approved. Applicants must accept and commit to all terms and conditions of the loan which are requested by RUS and FFB as follows:

    1. Compliance conditions. In addition to the standard conditions placed on the section 313A Program or conditions requested by the Agency to ensure loan security and statutory compliance, applicants must comply with the following conditions:

    a. Each Guaranteed Lender selected under the 313A Program will be required to post collateral for the benefit of RUS in an amount equal to the aggregate amount of loan advances made to the Guaranteed Lender under the 313A Program.

    b. The pledged collateral shall consist of outstanding notes or bonds payable to the Guaranteed Lender (the Eligible Securities) and shall be placed on deposit with a collateral agent for the benefit of RUS. To be deemed Eligible Securities that can be pledged as collateral, the notes or bonds to be pledged (i) cannot be classified as non-performing, impaired, or restructured under generally accepted accounting principles, (ii) must be free and clear of all liens other than the lien created for the benefit of RUS, (iii) cannot be comprised of more than 30% of bonds or notes from generation and transmission borrowers, (iv) cannot have more than 5% of notes and bonds be from any one particular borrower and (v) cannot be unsecured notes.

    c. The Guaranteed Lender will be required to place a lien on the pledged collateral in favor of RUS (as secured party) at the time that the pledged collateral is deposited with the collateral agent. RUS will have the right, in its sole discretion, within 14 business days to reject and require the substitution of any Pledged Collateral that the Guaranteed Lender deposits as collateral with the collateral agent. Prior to receiving any advances under the 313A Program, the Guaranteed Lender will be required to enter into a pledge agreement, satisfactory to RUS, with a banking institution serving as collateral agent.

    d. The Guaranteed Lender will be required to maintain pledged collateral at a level that is sufficient to ensure that in the event of default resources will be available to cover principal, interest, fees and reasonable expenses incurred by RUS as a result of a default or incurred pursuant to RUS's obligation to make related payments to FFB under the RUS Guarantee on all guarantees issued by RUS to FFB for the benefit of the Guaranteed Lender under Section 313A of the RE Act. The Guaranteed Lender will also be required to agree that the pledged collateral can be used for such purposes.

    e. The Guaranteed Lender will be required to agree to not to take any action that would have the effect of reducing the value of the Pledged Collateral below the level described above.

    f. Applicants must certify to the RUS, the portion of their Eligible Loan portfolio that is:

    (1) Refinanced RUS debt;

    (2) Debt of borrowers for whom both RUS and the applicants have outstanding loans;

    and

    (3) Debt of borrowers for whom both RUS and the applicant have outstanding concurrent loans pursuant to Section 307 of the RE Act, and the amount of Eligible Loans.

    2. Compliance with Federal Laws. Applicants must comply with all applicable Federal laws and regulations.

    a. This obligation is subject to the provisions contained in the Consolidated Appropriations Act, 2018, Public Law 115-141, Division E, Title VII, Sections 745 and 746, as amended and/or subsequently enacted for USDA agencies and offices, regarding the prohibition against RUS making awards to applicants having corporate felony convictions within the past 24 months or to applicants having corporate federal tax delinquencies.

    b. An authorized official within your organization must execute, date, and return the loan commitment letter and the Assurance Regarding Felony Conviction or Tax Delinquent Status for Corporate Applicants (Form AD-3031) to RUS within 14 calendar days from the date of the loan commitment letter, or by September 28, 2018, if the loan is approved after September 17, 2018; otherwise, the commitment will be void. This form is available at http://www.ocio.usda.gov/policy-directives-records-forms/forms-management/approved-computer-generated-forms.

    c. Uniform Commercial Code (UCC) Filing. The Borrower must provide RUS with evidence that the Borrower has filed the UCC financing statement required by 7 CFR 1720.8(a)(2). Upon filing of the appropriate UCC financing statement, the Guaranteed Lender will provide RUS with a perfection opinion by outside counsel which demonstrates that RUS's security interest in the Pledged Collateral under the Pledge Agreement is perfected.

    d. Additional conditions may be instituted for future obligations.

    X. National Environmental Policy Act Certification

    For any proceeds to be used to refinance bonds and notes previously issued by the Guaranteed Lender for the RE Act purposes that are not obligated with specific projects, RUS has determined that these financial actions will not individually or cumulatively have a significant effect on the human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and its implementing regulations at 40 CFR parts 1500-1508. However, for any new projects funded through the 313A Program, applicants must consult with RUS and comply with the Agency regulations at 7 CFR part 1970.

    XI. Other Information and Requirements

    Applications must contain all of the required elements of this NOSA and all standard requirements as required by 7 CFR part 1720. Additional supporting data or documents may be required by RUS depending on the individual application or financial conditions. All applicants must comply with all Federal Laws and Regulations.

    XII. Agency Contacts

    A. Website: http://www.rd.usda.gov/programs-services/all-programs/electric-programs.

    B. Phone: (202) 205-8663.

    C. Fax: (844) 749-0736.

    D. Email: [email protected]

    E. Main point of contact: Amy McWilliams, Management Analyst, 1400 Independence Avenue SW, STOP 1568, Room 0226-S, Washington, DC 20250-1568.

    XIII. USDA Non-Discrimination Statement

    In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

    Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

    To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027. Individuals wishing to file a discrimination complaint may use the form available at http://www.ocio.usda.gov/policy-directives-records-forms/forms-management/approved-computer-generated-forms and at any USDA office, or may write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by:

    (1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410;

    (2) Fax: (202) 690-7442; or

    (3) Email: [email protected] USDA is an equal opportunity provider, employer, and lender.

    Authority:

    7 U.S.C. 940c-1.

    Dated: March 28, 2018. Christopher A. McLean, Acting Administrator, Rural Utilities Service.
    [FR Doc. 2018-07720 Filed 4-12-18; 8:45 am] BILLING CODE P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Kansas Advisory Committee AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Kansas Advisory Committee (Committee) will hold a meeting on Friday, May 25, 2018 from 12:00 p.m.-1:30 p.m. Central time. The Committee will hear testimony as part of their current study on civil rights and school funding.

    DATES:

    The meeting will take place on Friday, May 25, 2018 from 12:00 p.m.-1:30 p.m. Central time.

    Public Call Information: (Audio only) Dial: 877-723-9521, Conference ID: 5606543.

    Web Access Information: (visual only): https://cc.readytalk.com/r/u3i2qctjot19&eom.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Wojnaroski, DFO, at [email protected] or 312-353-8311.

    SUPPLEMENTARY INFORMATION:

    Members of the public can listen to the discussion. This meeting is available to the public through the above listed toll free number (audio only) and web access link (visual only). Please use both the call in number and the web access link in order to fully access the meeting.

    An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Corrine Sanders at [email protected] Persons who desire additional information may contact the Regional Programs Unit at (312) 353-8311.

    Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Kansas Advisory Committee link (http://www.facadatabase.gov/committee/meetings.aspx?cid=249). Click on “meeting details” and then “documents” to download. Persons interested in the work of this Committee are directed to the Commission's website, http://www.usccr.gov, or may contact the Regional Programs Unit at the above email or street address.

    Agenda Welcome and Introduction Panel Testimony: Civil Rights and School Funding in Kansas Public Comment Adjournment Dated: April 10, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-07712 Filed 4-12-18; 8:45 am] BILLING CODE 6335-01-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Kansas Advisory Committee AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Kansas Advisory Committee (Committee) will hold a meeting on Wednesday, May 2, 2018 from 12:00 p.m.-1:30 p.m. Central time. The Committee will hear testimony as part of their current study on civil rights and school funding.

    DATES:

    The meeting will take place on Wednesday, May 2, 2018 from 12:00 p.m.-1:30 p.m. Central time.

    Public Call Information: (Audio only) Dial: 877-675-4757, Conference ID: 6971300. Web Access Information: (Visual only): https://cc.readytalk.com/r/fkz6cxanapl9&eom.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Wojnaroski, DFO, at [email protected] or 312-353-8311.

    SUPPLEMENTARY INFORMATION:

    Members of the public can listen to the discussion. This meeting is available to the public through the above listed toll free number (audio only) and web access link (visual only). Please use both the call in number and the web access link in order to fully access the meeting.

    An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Corrine Sanders at [email protected] Persons who desire additional information may contact the Regional Programs Unit at (312) 353-8311.

    Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Kansas Advisory Committee link (http://www.facadatabase.gov/committee/meetings.aspx?cid=249). Click on “meeting details” and then “documents” to download. Persons interested in the work of this Committee are directed to the Commission's website, http://www.usccr.gov, or may contact the Regional Programs Unit at the above email or street address.

    Agenda: Welcome and Introduction Panel Testimony: Civil Rights and School Funding in Kansas Public Comment Adjournment Dated: April 10, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-07711 Filed 4-12-18; 8:45 am] BILLING CODE P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Kansas Advisory Committee AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Kansas Advisory Committee (Committee) will hold a meeting on Wednesday, April 25, 2018 from 2:00 p.m.-3:00 p.m. Central time. The Committee will discuss preparations to hear additional testimony as part of their current study on civil rights and school funding.

    DATES:

    The meeting will take place on Wednesday, April 25, 2018 from 2:00 p.m.-3:00 p.m. Central time.

    Public Call Information: (audio only) Dial: 888-213-3918, Conference ID: 8956987.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Wojnaroski, DFO, at [email protected] or 312-353-8311.

    SUPPLEMENTARY INFORMATION:

    Members of the public can listen to the discussion. This meeting is available to the public through the above listed toll free number. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 55 W Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Corrine Sanders at csa[email protected] Persons who desire additional information may contact the Regional Programs Unit at (312) 353-8311.

    Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Kansas Advisory Committee link (http://www.facadatabase.gov/committee/meetings.aspx?cid=249). Click on “meeting details” and then “documents” to download. Persons interested in the work of this Committee are directed to the Commission's website, http://www.usccr.gov, or may contact the Regional Programs Unit at the above email or street address.

    Agenda Welcome and Introduction Discussion: Civil Rights and School Funding in Kansas Public Comment Adjournment Dated: April 10, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-07714 Filed 4-12-18; 8:45 am] BILLING CODE P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Louisiana Advisory Committee To Discuss the Barriers to Voting Report AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Louisiana Advisory Committee (Committee) will hold a meeting on Monday, April 23, 2018, at 1:00:00 p.m. Central for a discussion on the Barriers to Voting in Louisiana report.

    DATES:

    The meeting will be held on Monday, April 23, 2018, at 1:00 p.m. Central.

    Public Call Information: Dial: 888-516-2446, Conference ID: 3321856.

    FOR FURTHER INFORMATION CONTACT:

    David Barreras, DFO, at [email protected] or 312-353-8311.

    SUPPLEMENTARY INFORMATION:

    Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888-516-2446, conference ID: 3321856. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324 or emailed to David Barreras at [email protected] Persons who desire additional information may contact the Midwestern Regional Office at (312) 353-8311.

    Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Louisiana Advisory Committee link (http://www.facadatabase.gov/committee/committee.aspx?cid=251&aid=17). Persons interested in the work of this Committee are directed to the Commission's website, http://www.usccr.gov, or may contact the Midwestern Regional Office at the above email or street address.

    Agenda Welcome and Roll Call Discussion of Barriers to Voting Report Next Steps Public Comment 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 that this project will inform the Commission's FY2018 statutory enforcement report on voting rights and is therefore under a very tight timeline.

    Dated: April 10, 2018, David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-07713 Filed 4-12-18; 8:45 am] BILLING CODE 6335-01-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Georgia Advisory Committee AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Notice of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Georgia Advisory Committee will hold a meeting on Tuesday, May 1, 2018, for the purpose of reviewing and accepting the public hearing transcript.

    DATES:

    The meeting will be held on Tuesday May 1, 2018 at 1:00 p.m. EST.

    ADDRESSES:

    The meeting will be by teleconference. Toll-free call-in number: 888-554-1430, conference ID: 9151191.

    FOR FURTHER INFORMATION CONTACT:

    Jeff Hinton, DFO, at [email protected] or 404-562-7006.

    SUPPLEMENTARY INFORMATION:

    Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888-554-1430, conference ID: 9151191. 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 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are also entitled to submit written comments; the comments must be received in the regional office by April 27, 2018. Written comments may be mailed to the Southern Regional Office, U.S. Commission on Civil Rights, 61 Forsyth Street, Suite 16T126, Atlanta, GA 30303. They may also be faxed to the Commission at (404) 562-7005, or emailed to Regional Director, Jeffrey Hinton at [email protected] Persons who desire additional information may contact the Southern Regional Office at (404) 562-7006.

    Records generated from this meeting may be inspected and reproduced at the Southern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Georgia Advisory Committee link. Persons interested in the work of this Committee are directed to the Commission's website, http://www.usccr.gov, or may contact the Southern Regional Office at the above email or street address.

    Agenda: Welcome and Introductions—Jeff Hinton, Regional Director; Jerry Gonzalez, Chair Georgia SAC Regional Update—Jeff Hinton, Regional Director, SRO, USCCR Review discuss and accept transcript of the hearing—Jerry Gonzalez, Chair GA SAC State Advisory Committee (SAC) members Public comments Adjournment Dated: April 10, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-07718 Filed 4-12-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Census Bureau Proposed Information Collection; Comment Request; Manufacturers' Unfilled Orders Survey AGENCY:

    U.S. Census Bureau, 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:

    To ensure consideration, written comments must be submitted on or before June 12, 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(s) and instructions should be directed to Mary Catherine Potter, U.S. Census Bureau, Economic Indicators Division, 4600 Silver Hill Road, Room 7K157, Washington, DC 20233-6913, (301) 763-4207, or (via the internet at [email protected])

    SUPPLEMENTARY INFORMATION: I. Abstract

    The data collected in the Manufacturers' Unfilled Orders (M3UFO) Survey will be used to benchmark the new and unfilled orders information published in the monthly Manufacturers' Shipments, Inventories, and Orders (M3) Survey. The M3 Survey collects monthly data on the value of shipments, inventories, and new and unfilled orders from manufacturing companies. The orders, as well as the shipments and inventory data, are valuable tools for analysts of business cycle conditions. The data are used by the Bureau of Economic Analysis, the Counsel of Economic Advisors, the Federal Reserve Board, the Conference Board, and members of the business community such as trade associations and the media.

    The monthly M3 Survey estimates are based on a panel of approximately 5,000 reporting units that represent approximately 3,100 companies and provide an indication of month-to-month change for the Manufacturing Sector. These reporting units may be divisions of diversified large companies, large homogenous companies, or single-unit manufacturers. The M3 estimates are periodically benchmarked to comprehensive data on the manufacturing sector from the Annual Survey of Manufactures (ASM), the Economic Census (shipments and inventories) and the M3UFO Survey, which is the subject of this notice. Unfilled orders data are not collected in the ASM or the Economic Census. To obtain more accurate M3 estimates of unfilled orders, which are also used in deriving M3 estimates of new orders, we conduct the M3UFO Survey annually to be used as the source for benchmarking M3 unfilled orders data. Additionally, the M3UFO data are used to determine which North American Industry Classification System (NAICS) industries continue to maintain unfilled orders; this is done in order to minimize burden, and only request unfilled orders as part of the monthly M3 Survey from industries that still maintain unfilled orders.

    There are no changes to the MA-3000 form, which is used to conduct the M3UFO survey.

    II. Method of Collection

    The Census Bureau will use mail out/mail back survey forms to collect the data with online reporting encouraged. Online response for the survey is typically just under 60 percent. Companies are asked to respond to the survey within 30 days of receipt. Letters encouraging participation are mailed to companies that have not responded by the designated time. Telephone follow-up is conducted to obtain response from delinquent companies.

    III. Data

    OMB Control Number: 0607-0561.

    Form Number(s): MA-3000.

    Type of Review: Regular submission.

    Affected Public: Manufacturing Businesses, large and small, or other for-profit organizations.

    Estimated Number of Respondents: 6,000.

    Estimated Time per Response: .50 hour.

    Estimated Total Annual Burden Hours: 3,000.

    Estimated Total Annual Cost to Public: $0. (This is not the cost of respondents' time, but the indirect costs respondents may incur for such things as purchases of specialized software or hardware needed to report, or expenditures for accounting or records maintenance services required specifically by the collection.)

    Respondent's Obligation: Mandatory.

    Legal Authority: Title 13 U.S.C., Sections 131 and 182.

    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.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-07692 Filed 4-12-18; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-122-862] Certain Uncoated Groundwood Paper From Canada: Amended Preliminary Countervailing Duty Determination AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) is amending the scope of the countervailing duty (CVD) investigation of certain uncoated groundwood paper (UGW paper) from Canada to conform with the scope published in the preliminary determination of the companion antidumping duty (AD) investigation of UGW paper from Canada. The period of investigation is January 1, 2016, through December 31, 2016.

    DATES:

    Applicable April 13, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Andrew Medley, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4987.

    SUPPLEMENTARY INFORMATION: Background

    Commerce published its CVD Preliminary Determination on January 16, 2018.1 On March 19, 2018, Commerce published its AD Preliminary Determination, and amended the scope to exclude certain products, based upon comments received from interested parties.2

    1See Certain Uncoated Groundwood Paper from Canada: Preliminary Affirmative Countervailing Duty Determination, and Alignment of Final Determination with Final Antidumping Duty Determination, 83 FR 2133 (January 16, 2018) (CVD Preliminary Determination).

    2See Certain Uncoated Groundwood Paper from Canada: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures, 83 FR 11960 (March 19, 2018) (AD Preliminary Determination) and accompanying Preliminary Decision Memorandum. See also, Memorandum “Certain Uncoated Groundwood Paper from Canada: Scope Comments Decision Memorandum for the Preliminary Determination,” dated March 12, 2018, which was placed on the record of both the AD and CVD investigations.

    Amended Scope of the Investigation

    The product covered by this investigation is UGW paper from Canada. We are amending the scope of the CVD investigation to conform with the scope of the companion AD investigation, including the exclusions of: (1) Certain uncoated groundwood paper which has undergone a creping process over the entire surface area of the paper; (2) certain uncoated groundwood construction paper and uncoated groundwood manila drawing paper in sheet or roll format; and (3) certain uncoated groundwood directory paper. These exclusions were first enumerated in the AD Preliminary Determination. For a complete description of the amended scope of this investigation, see Appendix I.

    Suspension of Liquidation

    We have not revised the estimated cash deposit rates published in the CVD Preliminary Determination. In accordance with section 703(d)(1)(B) and (d)(2) of the Act, we will direct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of entries of subject merchandise as described in the amended scope of the investigation, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register, and to continue to require a cash deposit, pursuant to 19 CFR 351.205(d). Additionally, because certain products are now excluded from the scope of the investigation, Commerce will instruct CBP to terminate suspension of liquidation of those excluded products, and to refund any cash deposits previously posted with respect to them.

    Notification

    In accordance with section 703(f) of the Act, Commerce will notify the International Trade Commission of its amended determination. This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act and 19 CFR 351.205(c).

    Dated: April 9, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix I

    Amended Scope of the Investigation

    The merchandise covered by this investigation includes certain paper that has not been coated on either side and with 50 percent or more of the cellulose fiber content consisting of groundwood pulp, including groundwood pulp made from recycled paper, weighing not more than 90 grams per square meter. Groundwood pulp includes all forms of pulp produced from a mechanical pulping process, such as thermo-mechanical process (TMP), chemi-thermo mechanical process (CTMP), bleached chemi-thermo mechanical process (BCTMP) or any other mechanical pulping process. The scope includes paper shipped in any form, including but not limited to both rolls and sheets.

    Certain uncoated groundwood paper includes but is not limited to standard newsprint, high bright newsprint, book publishing, and printing and writing papers. The scope includes paper that is white, off-white, cream, or colored.

    Specifically excluded from the scope are imports of certain uncoated groundwood paper printed with final content of printed text or graphic. Also excluded are papers that otherwise meet this definition, but which have undergone a supercalendering process.3 Additionally, excluded are papers that otherwise meet this definition, but which have undergone a creping process over the entire surface area of the paper.

    3 Supercalendering imparts a glossy finish produced by the movement of the paper web through a supercalender which is a stack of alternating rollers of metal and cotton (or other softer material). The supercalender runs at high speed and applies pressure, heat, and friction which glazes the surface of the paper, imparting gloss to the surface and increasing the paper's smoothness and density.

    Also excluded are uncoated groundwood construction paper and uncoated groundwood manila drawing paper in sheet or roll format. Excluded uncoated groundwood construction paper and uncoated groundwood manila drawing paper: (a) Have a weight greater than 61 grams per square meter; (b) have a thickness greater than 6.1 caliper, i.e., greater than .0061” or 155 microns; (c) are produced using at least 50 percent thermomechanical pulp; and (d) have a shade, as measured by CIELAB, as follows: L* less than or 75.0 or b* greater than or equal to 25.0.

    Also excluded is uncoated groundwood directory paper that: (a) Has a basis weight of 34 grams per square meter or less; and (b) has a thickness of 2.6 caliper mils or 66 microns or less.

    Certain uncoated groundwood paper is classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) in several subheadings, including 4801.00.0120, 4801.00.0140, 4802.61.1000, 4802.61.2000, 4802.61.3110, 4802.61.3191, 4802.61.6040, 4802.62.1000, 4802.62.2000, 4802.62.3000, 4802.62.6140, 4802.69.1000, 4802.69.2000, and 4802.69.3000. Subject merchandise may also be imported under several additional subheadings including 4805.91.5000, 4805.91.7000, and 4805.91.9000.4 Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.

    4 The following HTSUS numbers are no longer active as of January 1, 2017: 4801.00.0020, 4801.00.0040, 4802.61.3010, 4802.61.3091, and 4802.62.6040.

    [FR Doc. 2018-07723 Filed 4-12-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-489-819] Steel Concrete Reinforcing Bar From the Republic of Turkey: Final Results and Partial Rescission of Countervailing Duty Administrative Review; 2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) determines that Colakoglu Dis Ticaret A.S. and Colakoglu Metalurji A.S. (collectively, Colakoglu), and Icdas Celik Enerji Tersane ve Ulasim Sanayi A.S. (Icdas), producers/exporters of steel concrete reinforcing bar (rebar) from the Republic of Turkey (Turkey), did not receive countervailable subsidies during the period of review (POR) covering January 1, 2015, through December 31, 2015. This review also covered 11 companies not individually examined, which Commerce determines received net countervailable subsidies during the POR. Additionally, we are rescinding the review for two companies for which reviews were requested.

    DATES:

    Applicable April 13, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Kristen Johnson, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone (202) 482-4793.

    SUPPLEMENTARY INFORMATION:

    Background

    Commerce published the Preliminary Results of this administrative review on December 6, 2017.1 Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. If the new deadline falls on a non-business day, in accordance with Commerce's practice, the deadline will become the next business day. The revised deadline for the final results of this review is now April 9, 2018.2

    1See Steel Concrete Reinforcing Bar from the Republic of Turkey: Preliminary Results of Countervailing Duty Administrative Review and Intent to Rescind the Review in Part; 2015, 82 FR 57574 (December 6, 2017) (Preliminary Results), and accompanying Preliminary Decision Memorandum (PDM).

    2See Memorandum for The Record from Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance, “Deadlines Affected by the Shutdown of the Federal Government,” dated January 23, 2018. All deadlines in this segment of the proceeding have been extended by three days.

    Scope of the Order

    The scope of the order consists of steel concrete reinforcing bar imported in either straight length or coil form (rebar) regardless of metallurgy, length, diameter, or grade. The subject merchandise is classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) primarily under item numbers 7213.10.0000, 7214.20.0000, and 7228.30.8010. The subject merchandise may also enter under other HTSUS numbers including 7215.90.1000, 7215.90.5000, 7221.00.0015, 7221.00.0030, 7221.00.0045, 7222.11.0001, 7222.11.0057, 7222.11.0059, 7222.30.0001, 7227.20.0080, 7227.90.6085, 7228.20.1000, and 7228.60.6000. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this Order is dispositive.3

    3See Steel Concrete Reinforcing Bar from the Republic of Turkey: Countervailing Duty Order, 79 FR 65926 (November 6, 2014) (Order). For a full description of the scope of this order see Memorandum, “Decision Memorandum for Final Results of Countervailing Duty 2015 Administrative Review: Steel Concrete Reinforcing Bar from the Republic of Turkey,” dated concurrently with, and hereby adopted by this notice (Issues and Decision Memorandum).

    Analysis of Comments Received

    All issues raised in interested parties' briefs are addressed in the Issues and Decision Memorandum. A list of the issues raised by interested parties, and to which we responded in the Issues and Decision Memorandum, is provided in the Appendix to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov and in the Central Records Unit, Room B8024 of the main Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed and electronic versions of the Issues and Decision Memorandum are identical in content.

    Methodology

    Commerce conducted this administrative review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we determine that there is a subsidy, i.e., a government-provided financial contribution that gives rise to a benefit to the recipient, and that the subsidy is specific.4 For a full description of the methodology underlying all of Commerce's conclusions, see the Issues and Decision Memorandum.

    4See sections 771(5)(B) and (D) of the Act regarding financial contribution; section 771(5)(E) of the Act regarding benefit; and section 771(5A) of the Act regarding specificity.

    Partial Rescission of Review

    Agir Haddecilik A.S. (Agir) 5 timely filed a no-shipments certification. U.S. Customs and Border Protection (CBP) did not provide to Commerce any information that contradicted this no-shipments certification. Consequently, in the Preliminary Results, Commerce announced its intent to rescind the review of Agir. No interested party submitted comments on Commerce's intent to rescind the review of Agir. Because there is no evidence on the record to indicate that Agir had entries, exports, or sales of subject merchandise to the United States during the POR, pursuant to 19 CFR 351.213(d)(3), we are rescinding the review with respect to Agir.

    5 Agir was previously known as Agir Haddecilik Makina ve Sanayi Ticaret Ltd. Sti. Agir's former name was included in the Initiation Notice. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 82 FR 4294, 4298 (January 13, 2017) (Initiation Notice).

    Entries of merchandise produced and exported by Habas Sinai ve Tibbi Gazlar Istihsal Endustrisi A.S. (Habas) are not subject to countervailing duties because the final determination of the investigation with respect to this producer/exporter combination was negative.6 However, any entries of merchandise produced by any other entity and exported by Habas, or produced by Habas and exported by another entity, are subject to the Order.

    6See Steel Concrete Reinforcing Bar from the Republic of Turkey: Final Affirmative Countervailing Duty Determination Final Affirmative Critical Circumstances Determination, 79 FR 54963, 54964 (September 15, 2014) (Turkey Rebar Final Determination).

    No interested party submitted comments on Commerce's intent to rescind the review of Habas. Because there is no evidence on the record of entries of merchandise produced by another entity and exported by Habas, or entries of merchandise produced by Habas and exported by another entity, we determine that Habas is not subject to this administrative review. Therefore, pursuant to 19 CFR 351.213(d)(3), we are rescinding the review with respect to Habas.

    Final Results of Review

    In accordance with 19 CFR 351.221(b)(5), we determine the following net countervailable subsidy rates for the period January 1, 2015, through December 31, 2015:

    Company Subsidy rate ad valorem
  • (percent)
  • Icdas Celik Enerji Tersane ve Ulasim Sanayi A.S. and its cross-owned affiliates 7 * 0.02 Colakoglu Dis Ticaret A.S. and Colakoglu Metalurji A.S * 0.18 Acemar International Limited 8 1.25 As Gaz Sinai ve Tibbi Azlar A.S.9 1.25 Asil Celik Sanayi ve Ticaret A.S.10 1.25 Ege Celik Endustrisi Sanayi ve Ticaret A.S.11 1.25 Izmir Demir Celik Sanayi A.S 1.25 Kaptan Demir Celik Endustrisi ve Ticaret A.S.12 and Kaptan Metal Dis Ticaret ve Nakliyat A.S.13 * 14 0.02 Kocaer Haddecilik Sanayi Ve Ticar L 1.25 Mettech Metalurji Madencilik Muhendislik Uretim Danismanlik ve Ticaret Limited Sirketi 1.25 MMZ Onur Boru Profil A.S 1.25 Ozkan Demir Celik Sanayi A.S 1.25 Wilmar Europe Trading BV 1.25 * de minimis.
    Disclosure

    We will disclose to the parties in this proceeding the calculations performed for these final results within five days of the date of publication of this notice in the Federal Register.15

    7 We find the following companies to be cross-owned with Icdas: Mardas Marmara Deniz Isletmeciligi A.S., Oraysan Insaat Sanayi ve Ticaret A.S., Artmak Denizcilik Ticaret ve Sanayi A.S., and Demir Sanayi Demir Celik Ticaret ve Sanayi A.S.

    8 Commerce is assigning the rate of 1.25 percent ad valorem, the sole above de minimis rate calculated within a segment of this proceeding to the non-selected companies. This rate was calculated for Icdas in the underlying investigation. See Turkey Rebar Final Determination, 79 FR at 54964; see also Preliminary Results PDM at 6.

    9 The company's name was incorrectly spelled as As Gaz Sinai ve Tibbi Azlar AS. in the Initiation Notice. See Initiation Notice, 82 FR at 4298.

    10 The company's name was incorrectly spelled as Asil Celik Sanayi ve Ticaret AS. in the Initiation Notice. Id.

    11 The company's name was incorrectly spelled as Ege Celik Endustrisi Sanayi ve Ticaret AS. in the Initiation Notice. Id.

    12 The company's name was incorrectly spelled as Kaptan Demir Celik Industrisi ve Ticaret A.S. in the Initiation Notice. Id.

    13 In its request for review, the petitioner listed the company name as Kaptan Metal Dis Tic Ve Nak AS. See Petitioner's Letter, “Request for Administrative Review,” dated November 30, 2016, and Initiation Notice, 82 FR at 4298. The petitioner subsequently clarified that the review request was for Kaptan Metal Dis Ticaret ve Nakliyat A.S. See Petitioner's Letter, “Response to Clarification Request,” dated July 26, 2017.

    14 Consistent with Commerce's practice, we continue to assign the rate of 0.02 percent ad valorem to Kaptan Demir Celik Endustrisi ve Ticaret A.S. and Kaptan Metal Dis Ticaret ve Nakliyat A.S., based on their rate calculated in the prior administrative review. See Preliminary Results PDM at 5-6; see also Steel Concrete Reinforcing Bar from the Republic of Turkey: Final Results and Partial Rescission of Countervailing Duty Administrative Review; 2014, 82 FR 26907, 26908 (June 12, 2017).

    15See 19 CFR 351.224(b).

    Assessment and Cash Deposit Requirements

    In accordance with 19 CFR 351.212(b)(2), Commerce intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review to liquidate shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after January 1, 2015, through December 31, 2015, for the above-listed companies at the ad valorem assessment rates listed, except for those companies to which a de minimis rate is assigned. Concerning those companies with a de minimis rate, Commerce intends to issue assessment instructions to CBP to liquidate shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after January 1, 2015, through December 31, 2015, without regard to countervailing duties.

    Commerce also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amounts shown for each of the respective companies listed above, except, where the rate calculated in these final results is de minimis, no cash deposit will be required on shipments of the subject merchandise entered or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed firms, we will instruct CBP to collect cash deposits of estimated countervailing duties at the most recent company-specific or all others rate applicable to the company, as appropriate. These cash deposit requirements, effective upon publication of these final results, shall remain in effect until further notice.

    Return or Destruction of Proprietary Information

    This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    We are issuing and publishing these final results of review in accordance with sections 751(a)(1) and 777(i)(1) of the Act, 19 CFR 351.213(d)(4) and 19 CFR 351.221(b)(5).

    Dated: April 9, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix List of Topics Discussed in the Issues and Decision Memorandum I. Summary II. Background III. Comments IV. Scope of the Order V. Partial Rescission of the 2015 Administrative Review VI. Non-Selected Rate VII. Subsidies Valuation Information VIII. Analysis of Programs A. Programs Determined To Be Countervailable 1. Rediscount Program 2. Deduction From Taxable Income for Export Revenue B. Programs Determined Not To Confer Countervailable Benefits 1. Provision of Natural Gas for Less Than Adequate Remuneration (LTAR) 2. Inward Processing Regime 3. Assistance To Offset Costs Related to Antidumping/CVD Investigations 4. Investment Incentive Certificates C. Programs Determined Not To Be Countervailable 1. Payments From the Turkish Employers' Association of Metal Industries (MESS)—Social Security Premium Support 2. Payments From MESS—Occupational Health and Safety Support D. Programs Determined To Not Be Used 1. Purchase of Electricity for More Than Adequate Remuneration (MTAR)—Sales via Build-Operate-Own, Build-Operate-Transfer, and Transfer of Operating Rights Contracts 2. Purchase of Electricity Generated From Renewable Resources for MTAR 3. Provision of Lignite for LTAR 4. Reduction and Exemption of Licensing Fees for Renewable Resource Power Plants 5. Research and Development Grant Program 6. Export Credits, Loans, and Insurance From Turk Eximbank 7. Regional Investment Incentives 8. Large-Scale Investment Incentives 9. Strategic Investment Incentives 10. Incentives for Research & Development Activities 11. Regional Development Subsidies IX. Analysis of Comments Comment: Whether Commerce Should Modify the Natural Gas Benchmark X. Conclusion
    [FR Doc. 2018-07722 Filed 4-12-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-533-843] Certain Lined Paper Products From India: Final Results of Antidumping Duty Administrative Review; 2015-2016 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) determines that Navneet Education Ltd. (Navneet) made sales of certain lined paper products (CLPP) from India below normal value during the period of review (POR) September 1, 2015, through August 31, 2016, but SAB International (SAB) did not.

    DATES:

    Applicable April 13, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Samuel Brummitt (for Navneet) and Cindy Robinson (for SAB), AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington DC 20230; telephone (202) 482-7851 or (202) 482-3797, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    On October 6, 2017, Commerce published the Preliminary Results. 1 On November 6, 2017, the petitioners,2 Navneet, and SAB timely submitted their case briefs.3 On November 6, 2017, the petitioner submitted a request for a hearing, which it subsequently withdrew on December 8, 2017.4 On November 13, 2017, the petitioners and Navneet timely submitted their respective rebuttal briefs.5 On January 19, 2018, Commerce postponed the final results by 60 days, until April 4, 2018.6

    1See Certain Lined Paper Products from India: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2015-2016, 82 FR 46764 (October 6, 2017) (Preliminary Results), and accompanying Preliminary Decision Memorandum.

    2 The petitioners are the Association of American School Paper Suppliers and its individual members.

    3See the petitioners' letter titled, “Certain Lined Paper Products from India: Case Brief of the Association of American School Paper Suppliers,” dated November 6, 2017; see also Navneet's letter titled, “Certain Lined Paper Products from India: Case Brief of Navneet Education Limited,” dated November 6, 2017; see also SAB's letter titled, “Certain Lined Paper Products from India: SAB International Case Brief,” dated November 6, 2017.

    4See the petitioner's letter titled, “Certain Lined Paper Products from India: Request for Hearing,” dated November 6, 2017; see also Memorandum to the File titled, “Petitioner's Request for a Meeting in Lieu of a Hearing,” dated December 8, 2017.

    5See the petitioners' letter titled, “Certain Lined Paper Products from India: Rebuttal Brief of the Association of American School Paper Suppliers,” dated November 13, 2017; see also Navneet's letter titled, “Certain Lined Paper Products from India: Rebuttal Brief of Navneet Education Limited,” dated November 13, 2017.

    6See Memorandum titled “Certain Lined Paper Products from India: Extension of Time Limit for Final Results of Antidumping Duty Administrative Review,” dated January 19, 2018.

    Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. The revised deadline for the final results of this review is now April 9, 2018.7

    7See Memorandum for The Record from Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance, “Deadlines Affected by the Shutdown of the Federal Government” (Tolling Memorandum), dated January 23, 2018. All deadlines in this segment of the proceeding affected by the closure of the Federal Government, including the final results, have been extended by 3 days.

    Scope of the Order

    The merchandise covered by the order is certain lined paper products. The merchandise subject to this order is currently classified under the following Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 4811.90.9035, 4811.90.9080, 4820.30.0040, 4810.22.5044, 4811.90.9050, 4811.90.9090, 4820.10.2010, 4820.10.2020, 4820.10.2030, 4820.10.2040, 4820.10.2050, 4820.10.2060, and 4820.10.4000. Although the HTSUS numbers are provided for convenience and customs purposes, the written product description of the scope remains dispositive.8

    8 For a complete description of the Scope of the Order, see Memorandum titled “Certain Lined Paper Products from India: Issues and Decision Memorandum for the Final Results of the Antidumping Duty Administrative Review; 2015-2016,” dated concurrently with and hereby adopted by this notice (“Issues and Decision Memorandum”).

    Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the Issues and Decision Memorandum. A list of the issues that parties raised and to which we responded is attached to this notice as an Appendix. The Issues and Decision Memorandum is a public document and is on-file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov and in the Central Records Unit (CRU), room B8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the internet at http://enforcement.trade.gov/frn/index.html. The signed Issues and Decision Memorandum and the electronic versions of the Issues and Decision Memorandum are identical in content.

    Changes Since the Preliminary Results

    Based on a review of the record and comments received from interested parties regarding our Preliminary Results, we made the following company-specific change to Navneet's final margin calculation: (1) We did not make a duty drawback adjustment for duties paid on imported input materials used to produce the subject merchandise; (2) we made certain revisions to Navneet's home market (HM) price to account for excise taxes and local body taxes; and (3) we made changes to Navneet's HM program by converting the variable PRIMEH to `1' to match the format used for the variable PRIMEU. As a result of these changes, we determine that Navneet made sales of subject merchandise below normal value during the POR and have calculated a final weighted-average dumping margin of 1.34 percent. We made no change to SAB's preliminary SAS margin program and, therefore, SAB's preliminary margin remains unchanged for these final results.

    Final Results of the Review

    As a result of this review, Commerce calculated the following dumping margins for Navneet and SAB. We are applying to the non-selected companies the rates calculated for the mandatory respondents in these final results, excluding any zero and de minimis margins, as referenced below.9

    9See Albemarle Corp. & Subsidiaries v. United States, 821 F.3d 1345, 1351-53 (Fed. Cir. 2016) (Albemarle).

    Producer/exporter Weighted-
  • average
  • dumping
  • margin
  • (percent)
  • Navneet Education Ltd 1.34 SAB International 0.00 Kokuyo Riddhi Paper Products Pvt. Ltd 1.34 Magic International Pvt. Ltd 1.34 Pioneer Stationery Pvt Ltd 1.34 SGM Paper Products 1.34 Super Impex 1.34
    Duty Assessment

    Commerce shall determine and Customs and Border Protection (CBP) shall assess antidumping duties on all appropriate entries.10 Specifically, for Navneet and SAB, we will instruct CBP to liquidate their entries during the POR imported by the importers (or customers) identified in their questionnaire responses without regard to antidumping duties because their weighted-average dumping margins in these final results is zero.11 In accordance with Commerce's practice, for entries of subject merchandise during the POR for which Navneet or SAB did not know that the merchandise was destined for the United States, we will instruct CBP to liquidate such entries at the all-others rate if there is no company-specific rate for the intermediate company(ies) involved in the transaction.12 We intend to issue assessment instructions directly to CBP 15 days after publication of the final results of this review.

    10 In these final results, Commerce applied the assessment rate calculation method adopted in Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain Antidumping Proceedings: Final Modification, 77 FR 8101 (February 14, 2012) (Final Modification for Reviews).

    11Id., 77 FR at 8102.

    12 For a full discussion of this practice, see Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003).

    Cash Deposit Requirements

    The following cash deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2) of the Tariff Act of 1930, as amended (the Act): (1) The cash deposit rate for respondents noted above will be the rate established in the final results of this administrative review; (2) for merchandise exported by manufacturers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the manufacturer of the subject merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 3.91 percent, the all-others rate established in the original antidumping duty investigation.13 These cash deposit requirements, when imposed, shall remain in effect until further notice.

    13See Notice of Amended Final Determination of Sales at Less Than Fair Value: Certain Lined Paper Products from the People's Republic of China; Notice of Antidumping Duty Orders: Certain Lined Paper Products from India, Indonesia and the People's Republic of China; and Notice of Countervailing Duty Orders: Certain Lined Paper Products from India and Indonesia, 71 FR 56949 (September 28, 2006).

    Notification to Importers Regarding the Reimbursement of Duties

    This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during the POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of doubled antidumping duties.

    Administrative Protective Order

    This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    Notification to Interested Parties

    We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h).

    Dated: April 9, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix List of Topics Discussed in the Final Decision Memorandum I. Summary II. List of Comments III. Background IV. Scope of the Order V. Analysis of Comments Comments Concerning Navneet 1. Whether Commerce Should Reclassify Navneet's Reported Levels of Trade 2. Whether Commerce Should Grant Navneet's Claimed Duty Drawback Adjustment 3. Whether Commerce Should Grant an Adjustment for Defective Product Claims Reported in the Other Rebates Field 4. Treatment of Navneet's Excise Expense and Local Body Tax in Home Market Price and Cost Calculation 5. Whether Commerce Should Correct the Miscoded PRIMEU Field Comment Concerning SAB 6. Whether Certain Chain Stores Who May Be the Importer of Record Should Be Included in the Liquidation Instructions VI. Recommendation
    [FR Doc. 2018-07724 Filed 4-12-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-570-913] Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Final Results of Countervailing Duty Administrative Review; 2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On October 6, 2017, the Department of Commerce (Commerce) published the preliminary results of the administrative review of the countervailing duty order on certain new pneumatic off-the-road tires (OTR Tires) from the People's Republic of China (China). In the final results, Commerce has made changes to the subsidy rates that were preliminary determined for Guizhou Tyre for the period of review (POR) from January 1, 2015, through December 31, 2015.

    DATES:

    Applicable April 13, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Chien-Min Yang or Jun Jack Zhao, AD/CVD Operations, Office VII, Enforcement and Compliance, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5484 or (202) 482-1396.

    Background

    Commerce published the preliminary results of the administrative review of the countervailing duty order on certain new pneumatic off-the-road tires (OTR Tires) from China on October 6, 2017.1 In this review we individually examined two companies as mandatory respondents: Guizhou Tyre Co., Ltd. (Guizhou Tyre) and Xuzhou Xugong Tyres Co., Ltd. (Xuzhou Xugong). The period of review (POR) is January 1, 2015, through December 31, 2015. In the Preliminary Results we preliminarily applied total adverse facts available with regard to Xuzhou Xugong after it withdrew from participating in this review.2 No interested party commented on Commerce's preliminary determination with respect to Xuzhou Xugong. Accordingly, our determination remains unchanged for these final results. However, based on an analysis of the comments received, Commerce has made certain changes to the subsidy rates that were preliminary determined for Guizhou Tyre. The final subsidy rates are listed in the “Final Results of Administrative Review” section below.

    1See Certain New Pneumatic Off-The-Road Tires from the People's Republic of China: Preliminary Results of Countervailing Duty Administrative Review; 2015, 82 FR 46754 (October 6, 2017) (Preliminary Results), and accompanying Preliminary Decision Memorandum (PDM).

    2See PDM at 7-8.

    Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. Accordingly, the revised deadline for the final results of this review was tolled to April 9, 2018.

    Scope of the Order

    The products covered by the scope are new pneumatic tires designed for off-the-road (OTR) and off-highway use. The subject merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings: 4011.20.10.25, 4011.20.10.35, 4011.20.50.30, 4011.20.50.50, 4011.70.0010, 4011.62.00.00, 4011.80.1020, 4011.90.10, 4011.70.0050, 4011.80.1010, 4011.80.1020, 4011.80.2010, 4011.80.2020, 4011.80.8010, and 4011.80.8020. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope, which is contained in the accompanying Issues and Decision Memorandum, is dispositive.3

    3 For a full description of the scope of the order, see Memorandum from James Maeder, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations performing the duties of Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Gary Taverman, Deputy Assistant Secretary for Enforcement and Compliance performing the duties of Assistant Secretary for Enforcement and Compliance, “Issues and Decision Memorandum for the Final Results in the Countervailing Duty Review of Certain New Pneumatic Off-the-Road Tires from the People's Republic of China; 2015,” dated concurrently with this notice and herein incorporated by reference (Issues and Decision Memorandum).

    Analysis of Comments Received

    The issues raised by Guizhou Tyre, the Government of the People's Republic of China (GOC), and Titan Tire Corporation (Titan) and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC (the USW) (collectively, the Petitioners) in their case and rebuttal briefs are addressed in the Issues and Decision Memorandum.4 The issues are identified in the Appendix to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov and in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the internet at http://trade.gov/enforcement/frn/index.html. The signed Issues and Decision Memorandum and electronic versions of the Issues and Decision Memorandum are identical in content.

    4See Issues and Decision Memorandum at 9-14.

    Changes Since the Preliminary Results

    Based on the comments received from all interested parties, we have made revisions to some of our benefit calculations for Guizhou Tyre. For a discussion of these issues, see the Issues and Decision Memorandum.

    Methodology

    Commerce conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs we found to be countervailable, we determined that there is a subsidy, i.e., a government-provided financial contribution that gives rise to a benefit to the recipient, and that the subsidy is specific.5 For a description of the methodology underlying all of Commerce's conclusions, see the Issues and Decision Memorandum.

    5See sections 771(5)(B) and (D) of the Act regarding financial contribution; section 771(5)(E) of the Act regarding benefit; and, section 771(5A) of the Act regarding specificity.

    Final Results of Administrative Review

    In accordance with 19 CFR 351.221(b)(5), we determined a countervailable subsidy rate for the period January 1, 2015, through December 31, 2015, for Guizhou Tyre, and a rate based on total AFA for Xuzhou Xugong. For the companies for which a review was requested but not selected for individual examination as mandatory respondents and which we are not finding to be cross-owned with the mandatory company respondents, we followed Commerce's practice, pursuant to 705(c)(5)(A)(i) of the Act, which is to base the subsidy rates on an average of the subsidy rates calculated, excluding de minimis rates or rates based entirely on adverse facts available.6 Therefore, we are basing the subsidy rate for the non-selected companies on the subsidy rate calculated for Guizhou Tyre. For a list of these non-selected companies, please see Appendix II to this notice.

    6See, e.g., Certain Pasta from Italy: Preliminary Results of the 13th (2008) Countervailing Duty Administrative Review, 75 FR 18806, 18811 (April 13, 2010) unchanged in Certain Pasta from Italy: Final Results of the 13th (2008) Countervailing Duty Administrative Review, 75 FR 37386 (June 29, 2010).

    We find the countervailable subsidy rates for the producers/exporters under review to be as follows:

    Manufacturer/exporter Subsidy rate
  • (percent ad valorem)
  • Guizhou Tyre Co., Ltd./Guizhou Tyre Import & Export Co., Ltd 31.49 Xuzhou Xugong Tyres Co., Ltd. 91.94 Non-Selected Companies Under Review 31.49
    Assessment and Cash Deposit Requirements

    In accordance with 19 CFR 351.212(b)(2), Commerce intends to issue appropriate instructions to U.S. Customs and Border Protection (CBP) 15 days after publication of the final results of this review. Commerce will instruct CBP to liquidate shipments of subject merchandise produced and/or exported by the companies listed above, entered or withdrawn from warehouse, for consumption from January 1, 2015, through December 31, 2015, at the percent rates, as listed above for each of the respective companies, of the entered value.

    Commerce intends also to instruct CBP to collect cash deposits of estimated countervailing duties, in the amounts shown above for each of the respective companies shown above, on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits at the most-recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposit requirements, when imposed, shall remain in effect until further notice.

    Administrative Protective Order

    This notice also serves as a final reminder to parties subject to an administrative protective order (APO) of their responsibilities concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

    These final results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: April 9, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix I List of Topics Discussed in the Issues and Decision Memorandum I. Summary II. Background A. Case History B. Period of Review III. Scope of the Investigation IV. Changes Since the Preliminary Results V. Non-Selected Companies Under Review VI. Subsidies Valuation Information A. Allocation Period B. Attribution of Subsidies C. Denominator D. Benchmarks and Discount Rates VII. Use of Facts Otherwise Available and Adverse Inferences VIII. Analysis of Programs A. Programs Determined To Be Countervailable B. Programs Determined To Be Not Used During the POR C. Programs Determined To Provide No Benefit During the POR IX. Final Results of Review X. Analysis of Comments Comment 1 Whether Commerce Should Use Guizhou Tyre's Imports as Tier 1 Benchmarks for Synthetic Rubber Comment 2 Whether Certain Benchmarks Used by Commerce in the Preliminary Results Double-Counted Freight and Import Duties Comment 3 Whether Commerce Should Countervail Certain Synthetic Rubber Produced by Certain Foreign Companies Comment 4 Whether Commerce Should Find the Export Buyer's Credit Program Used in This Case Comment 5 Whether the GOC's Import Duty and VAT Exemptions on Imports of Raw Materials Program (Processing Trade Program) Is Countervailable VIII. Conclusion Appendix Appendix II Non-Selected Companies 1. Aeolus Tyre Co., Ltd. 2. Air Sea Transport Inc 3. Air Sea Worldwide Logistics Ltd 4. AM Global Shipping Lines 5. Apex Maritime Co Ltd 6. Apex Maritime Thailand Co Ltd 7. BDP Intl LTD China 8. Beijing Kang Jie Kong Intl Cargo Agent Co Ltd 9. C&D Intl Freight Forward Inc 10. Caesar Intl Logistics Co Ltd 11. Caterpillar & Paving Products Xuzhou Ltd 12. CH Robinson Freight Services China LTD 13. Changzhou Kafurter Machinery Co Ltd 14. Cheng Shin Rubber (Xiamen) Ind Ltd 15. China Intl Freight Co Ltd 16. Chonche Auto Double Happiness Tyre Corp Ltd 17. City Ocean Logistics Co Ltd 18. Consolidator Intl Co Ltd 19. Crowntyre Industrial Co. Ltd 20. CTS Intl Logistics Corp 21. Daewoo Intl Corp 22. De Well Container Shipping Inc 23. Double Coin Holdings Ltd; Double Coin Group Shanghai Donghai Tyre Co., Ltd; and Double Coin Group Rugao Tyre Co., Ltd. (collectively “Double Coin”) 24. England Logistics (Qingdao) Co Ltd 25. Extra Type Co Ltd 26. Fedex International Freight Forwarding Services Shanghai Co Ltd 27. FG Intl Logistics Ltd 28. Global Container Line 29. Honour Lane Shipping 30. Innova Rubber Co., Ltd. 31. Inspire Intl Enterprise Co Ltd 32. JHJ Intl Transportation Co 33. Jiangsu Feichi Co. Ltd. 34. Kenda Rubber (China) Co Ltd 35. KS Holding Limited/KS Resources Limited 36. Laizhou Xiongying Rubber Industry Co., Ltd. 37. Landmax Intl Co Ltd 38. LF Logistics China Co Ltd 39. Mai Shandong Radial Tyre Co., Ltd. 40. Maine Industrial Tire LLC 41. Master Intl Logistics Co Ltd 42. Melton Tire Co. Ltd 43. Merityre Specialists Ltd 44. Mid-America Overseas Shanghai Ltd 45. Omni Exports Ltd 46. Orient Express Container Co Ltd 47. Oriental Tyre Technology Limited 48. Pudong Prime Intl Logistics Inc 49. Q&J Industrial Group Co Ltd 50. Qingdao Aotai Rubber Co Ltd 51. Qingdao Apex Shipping 52. Qingdao Chengtai Handtruck Co Ltd 53. Qingdao Chunangtong Founding Co Ltd 54. Qingdao Free Trade Zone Full-World International Trading Co., Ltd. 55. Qingdao Haojia (Xinhai) Tyre Co. 56. Qingdao Haomai Hongyi Mold Co Ltd 57. Qingdao J&G Intl Trading Co Ltd 58. Qingdao Jinhaoyang International Co. Ltd 59. Qingdao Kaoyoung Intl Logistics Co Ltd 60. Qingdao Milestone Tyres Co Ltd. 61. Qingdao Nexen Co Ltd 62. Qingdao Qihang Tyre Co. 63. Qingdao Qizhou Rubber Co., Ltd. 64. Qingdao Shijikunyuan Intl Co Ltd 65. Qingdao Sinorient International Ltd. 66. Qingdao Taifa Group Imp. And Exp. Co., Ltd./Qingdao Taifa Group Co., Ltd. 67. Qingdao Wonderland 68. Qingdao Zhenhua Barrow Manufacturing Co., Ltd. 69. Rich Shipping Company 70. RS Logistics Ltd 71. Schenker China Ltd 72. Seastar Intl Enterprise Ltd 73. SGL Logistics South China Ltd 74. Shandong Huitong Tyre Co., Ltd. 75. Shandong Linglong Tyre Co., Ltd. 76. Shandong Taishan Tyre Co. Ltd. 77. Shanghai Cartec Industrial & Trading Co Ltd 78. Shanghai Grand Sound Intl Transportation Co Ltd 79. Shanghai Hua Shen Imp & Exp Co Ltd 80. Shanghai Part-Rich Auto Parts Co Ltd 81. Shanghai TCH Metals & Machinery Co Ltd 82. Shantou Zhisheng Plastic Co Ltd 83. Shiyan Desizheng Industry & Trade Co., Ltd. 84. Techking Tires Limited 85. Thi Group (Shanghai) Ltd 86. Tianjin Leviathan International Trade Co., Ltd. 87. Tianjin United Tire & Rubber International Co., Ltd. 88. Tianjin Wanda Tyre Group Co. 89. Tianshui Hailin Import and Export Corporation 90. Tiremart Qingdao Inc 91. Translink Shipping Inc 92. Trelleborg Wheel Systems (Xingtai) China, Co. Ltd. 93. Trelleborg Wheel Systems Hebei Co 94. Triangle Tyre Co. Ltd. 95. Universal Shipping Inc 96. UTI China Ltd 97. Weifang Jintongda Tyre Co., Ltd. 98. Weihai Zhongwei Rubber Co., Ltd. 99. Weiss-Rohlig China Co Ltd 100. World Bridge Logistics Co Ltd 101. World Tyres Ltd. 102. Xiamen Ying Hong Import & Export Trade Co Ltd 103. Xuzhou Xugong Tyres Co Ltd; Xuzhou Armour Rubber Company Ltd.; HK Lande International Investment Limited; Armour Tires Inc. (collectively “Xugong”) 104. Yoho Holding 105. Zheijiang Wheel World Industrial Co Ltd 106. Zhejiang Xinchang Zhongya Industry Co., Ltd. 107. Zhongce Rubber Group Company Limited 108. ZPH Industrial Ltd
    [FR Doc. 2018-07721 Filed 4-12-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration U.S. Department of Commerce Trade Finance Advisory Council AGENCY:

    International Trade Administration, U.S. Department of Commerce.

    ACTION:

    Notice of an open meeting.

    SUMMARY:

    The U.S. Department of Commerce Trade Finance Advisory Council (TFAC or Council) will hold a meeting via teleconference on Thursday, April 26, 2018. The meeting is open to the public with registration instructions provided below.

    DATES:

    Thursday, April 26, 2018, from approximately 12:00 p.m. to 2:00 p.m. Eastern Daylight Time (EDT). The deadline for members of the public to register, including requests to make comments during the meeting and for auxiliary aids, or to submit written comments for dissemination prior to the meeting, is 5:00 p.m. EDT on April 19, 2018. Members of the public are encouraged to submit registration requests and written comments via email to ensure timely receipt.

    ADDRESSES:

    The meeting will be held by conference call. The call-in number and passcode will be provided by email to registrants. Requests to register (including for auxiliary aids) and any written comments should be submitted via email to [email protected], or by mail to Ericka Ukrow, Office of Finance and Insurance Industries, U.S. Department of Commerce Trade Finance Advisory Council, Room 18002, 1401 Constitution Avenue NW, Washington, DC 20230.

    FOR FURTHER INFORMATION CONTACT:

    Ericka Ukrow, Designated Federal Officer, Office of Finance and Insurance Industries (OFII), International Trade Administration, U.S. Department of Commerce at (202) 482-0405; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    On July 25, 2016, the Secretary of Commerce established the TFAC pursuant to discretionary authority and in accordance with the Federal Advisory Committee Act, as amended, 5 U.S.C. App. The TFAC advises the Secretary of Commerce in identifying effective ways to help expand access to finance for U.S. exporters, especially small- and medium-sized enterprises (SMEs) and their foreign buyers. The TFAC also provides a forum to facilitate the discussion between a diverse group of stakeholders such as banks, non-bank financial institutions, other trade finance related organizations, and exporters, to gain a better understanding regarding current challenges facing U.S. exporters in accessing capital.

    During the meeting on April 26, 2018, TFAC members are expected to deliberate and potentially adopt recommendations on policies and programs that can increase awareness of, and expand access to, private export financing resources for U.S. exporters. A copy of the draft recommendations can be made available upon request to Ericka Ukrow at (202) 482-0405; email: [email protected]

    Public Participation

    The meeting will be open to the public and will be accessible to people with disabilities.

    All guests are required to register in advance by the deadline identified under the DATES caption. Requests to register (including to speak or for auxiliary aids) and any written comments should be submitted, by the registration deadline, as explained under the ADDRESSES caption. Last minute requests will be accepted, but may not be possible to fill. There will be fifteen minutes allotted for oral comments from members of the public. To accommodate as many speakers as possible, the time for public comments may be limited to three (3) minutes per person. Individuals wishing to reserve speaking time during the meeting must submit a request at the time of registration, as well as the name and address of the proposed speaker. Speakers are requested to submit a written copy of their prepared remarks by 5:00 p.m. EDT on April 19, 2018, for inclusion in the meeting records and for circulation to the members of the Council. Any member of the public may submit pertinent written comments concerning matters relevant to the TFAC's affairs at any time. Comments may be submitted to Ericka Ukrow. Comments received after the DEADLINE above will be distributed to the members but may not be considered on the call.

    All comments and statements received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Comments and statements will be posted on the U.S. Department of Commerce Trade Finance Advisory Council website (http://trade.gov/TFAC) without change, including any business or personal information provided such as names, addresses, email addresses, or telephone numbers.

    You should submit only information that you are prepared to have made publicly available.

    II. Meeting Minutes

    Copies of TFAC meeting minutes will be available within 90 days of the meeting.

    Dated: April 6, 2018. Michael Fuchs, Trade and Project Finance Team Leader, Office of Finance and Insurance Industries.
    [FR Doc. 2018-07660 Filed 4-12-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG134 Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing Permits AGENCY:

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

    ACTION:

    Notice; request for comments.

    SUMMARY:

    The Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit application from the Commercial Fisheries Research Foundation and Rhode Island Department of Environmental Management contains all of the required information and warrants further consideration. This Exempted Fishing Permit would allow seven commercial fishing vessels and one party/charter vessel to collect black sea bass catch data while on routine fishing trips. Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notice to provide interested parties the opportunity to comment on applications for proposed Exempted Fishing Permits.

    DATES:

    Comments must be received on or before April 30, 2018.

    ADDRESSES:

    You may submit written comments by any of the following methods:

    Email to: [email protected] Include in the subject line “BSB Research Fleet EFP.”

    Mail to: Michael Pentony, Regional Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope “Comments on BSB Research Fleet EFP.”

    FOR FURTHER INFORMATION CONTACT:

    Laura Hansen, NOAA Affiliate, (978) 281-9225.

    SUPPLEMENTARY INFORMATION:

    The Commercial Fisheries Research Foundation (CFRF) and Rhode Island Department of Environmental Management (RI DEM) submitted a complete application for an Exempted Fishing Permit (EFP) on March 20, 2018, to collect fishery-dependent information on black sea bass from May 1, 2018 to April 30, 2019. The EFP would authorize seven commercial fishing vessels and one party/charter vessel to collect and retain black sea bass for onboard sampling. This EFP would exempt the participating vessels from the following Federal regulations:

    1. Recreational fishery closure periods specified at 50 CFR 648.146;

    2. Commercial and party/charter minimum size limits for black sea bass specified at 50 CFR 648.147(a) and (b).

    The research fleet consists of vessels fishing with gear types including, trawls, lobster pots, gillnets, and hook and line. All gear deployments will be typical of the routine fishing practices associated with the fishery being targeted. There will be no increase in fishing effort associated with this project.

    Each vessel will be randomly selected to conduct sampling events during three trips per month in the black sea bass stock area. Up to 50 black sea bass would be temporarily held onboard to record their length and sex during each sampling event. All black sea bass collected in Federal waters will be returned to the water after being sampled. Vessels will also be issued the appropriate state exemptions to all applicable state regulations. Vessels fishing under this research permit would be exempt from the recreational closure periods and the commercial and party/charter minimum size limits for black sea bass, to allow temporary retention of both adult and undersized juvenile black sea bass.

    If approved, CFRF and RI DEM may request minor modifications and extensions to the EFP throughout the study period. EFP modifications and extensions may be granted without further notice if they are deemed essential to facilitate completion of the proposed research and have minimal impacts that do not change the scope or impact of the initially approved EFP request. Any fishing activity conducted outside the scope of the exempted fishing activity would be prohibited.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: April 10, 2018. Jennifer M. Wallace, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-07742 Filed 4-12-18; 8:45 am] BILLING CODE 3510-22-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Additions and Deletions AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Additions to and Deletions from the Procurement List.

    SUMMARY:

    This action adds products and services to the Procurement List that will be provided by a nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products from the Procurement List previously furnished by such agencies.

    DATES:

    Date added to and deleted from the Procurement List: May 13, 2018.

    ADDRESSES:

    Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.

    FOR FURTHER INFORMATION CONTACT:

    Amy B. Jensen, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email [email protected]

    SUPPLEMENTARY INFORMATION: Additions

    On 3/2/2018 (83 FR 42), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed additions to the Procurement List.

    After consideration of the material presented to it concerning capability of qualified nonprofit agencies to furnish the products and services and impact of the additions on the current or most recent contractors, the Committee has determined that the products and services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

    Regulatory Flexibility Act Certification

    I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

    1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government.

    2. The action will result in authorizing a small entity to furnish the products and services to the Government.

    3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and services proposed for addition to the Procurement List.

    End of Certification

    Accordingly, the following products and services are added to the Procurement List:

    Products NSN(s)—Product Name(s): 7045-00-NIB-0012—Pack, Power, Portable, 12000mAh, Black 7045-00-NIB-0013—Pack, Power, Portable, 6000mAh, Black Mandatory Source of Supply: North Central Sight Services, Inc., Williamsport, PA Contracting Activity: General Services Administration, New York, NY Distribution: A-List Services Service Type: Base Supply Center Service Mandatory for: US Army, Picatinny Arsenal, Picatinny Arsenal, NJ Mandatory Source of Supply: Central Association for the Blind & Visually Impaired, Utica, NY Contracting Activity: Dept of the Army, W6QK ACC-PICA Service Type: Records Management Service Mandatory for: US Navy, Military Sealift Command, Naval Station Norfolk, 471 East C Street, Norfolk, VA Mandatory Source of Supply: VersAbility Resources, Inc., Hampton, VA Contracting Activity: Dept of the Navy, MSC Norfolk Deletions

    On 3/2/2018 (83 FR 42) and 3/9/2018 (83 FR 42), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed deletions from the Procurement List.

    After consideration of the relevant matter presented, the Committee has determined that the products and service listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

    Regulatory Flexibility Act Certification

    I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

    1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.

    2. The action may result in authorizing small entities to furnish the products and service to the Government.

    3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and service deleted from the Procurement List.

    End of Certification

    Accordingly, the following products are deleted from the Procurement List:

    Products NSN(s)—Product Name(s): 8440-00-160-6843—Scarf, Air Force, Men's, Gray 8440-00-823-7520—Scarf, Air Force, Men's, Olive Green 8440-01-005-2558—Scarf, Air Force, Men's, Blue 8440-01-523-5765—Scarf, Air Force, Men's, Black Mandatory Source of Supply: ASPIRO, Inc., Green Bay, WI Contracting Activity: Defense Logistics Agency Troop Support NSN(s)—Product Name(s): 6530-00-290-8292—Urinal, Incontinent 6530-00-NIB-0061—Catheter, External, Male, Self-Adhering, Pop-on 6530-00-NIB-0062—Catheter, External, Male, Self-Adhering, Pop-on 6530-00-NIB-0063—Catheter, External, Male, Self-Adhering, Pop-on 6530-00-NIB-0064—Catheter, External, Male, Self-Adhering, Pop-on 6530-00-NIB-0065—Catheter, External, Male, Self-Adhering, Pop-on Mandatory Source of Supply: The Lighthouse for the Blind, St. Louis, MO Contracting Activity: Department of Veterans Affairs, Strategic Acquisition Center NSN(s)—Product Name(s): 8475-01-142-5648—Nape Strap Mandatory Source of Supply: Cambria County Association for the Blind and Handicapped, Johnstown, PA Contracting Activity: Defense Logistics Agency Troop Support Service Service Type: Janitorial/Custodial Service Mandatory for: Naval Air Station: ARCOM Buildings 176 & 177, Willow Grove, PA Mandatory Source of Supply: The Chimes, Inc., Baltimore, MD Contracting Activity: Dept of the Navy, Naval FAC Engineering CMD MID LANT Amy Jensen, Director, Business Operations.
    [FR Doc. 2018-07696 Filed 4-12-18; 8:45 am] BILLING CODE 6353-01-P
    COMMODITY FUTURES TRADING COMMISSION Sunshine Act Meetings TIME AND DATE:

    10:00 a.m., Friday, April 20, 2018.

    PLACE:

    Three Lafayette Centre, 1155 21st Street, NW, Washington, DC, 9th Floor Commission Conference Room.

    STATUS:

    Closed.

    MATTERS TO BE CONSIDERED:

    Examinations matters. In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's website at http://www.cftc.gov.

    CONTACT PERSON FOR MORE INFORMATION:

    Christopher Kirkpatrick, 202-418-5964.

    Natise L. Allen, Executive Assistant.
    [FR Doc. 2018-07860 Filed 4-11-18; 4:15 pm] BILLING CODE 6351-01-P
    CORPORATION FOR NATIONAL AND COMMUNITY SERVICE Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; AmeriCorps Alumni Outcome Survey; Proposed Information Collection; Comment Request AGENCY:

    Corporation for National and Community Service.

    ACTION:

    Notice.

    SUMMARY:

    The Corporation for National and Community Service (CNCS) has submitted a public information collection request (ICR) entitled AmeriCorps Alumni Outcome Survey for review and approval in accordance with the Paperwork Reduction Act of 1995.

    DATES:

    Comments may be submitted, identified by the title of the information collection activity, by May 14, 2018.

    ADDRESSES:

    Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service, by any of the following two methods within 30 days from the date of publication in the Federal Register:

    (1) By fax to: 202-395-6974, Attention: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service; or

    (2) By email to: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Anthony Nerino, at 202-606-3913 or email to [email protected] Individuals who use a telecommunications device for the deaf (TTY-TDD) may call 1-800-833-3722 between 8:00 a.m. and 8:00 p.m. Eastern Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The OMB is particularly interested in comments which:

    • Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, 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;

    • Propose ways to enhance the quality, utility, and clarity of the information to be collected; and

    • Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments

    A 60-day Notice requesting public comment was published in the Federal Register on January 17, 2018 (Vol. 83, No 11, p. 2429). This comment period ended March 17, 2018. No public comments were received from this Notice.

    Description: CNCS seeks to renew the current information request with revisions to the survey administered in 2015 (OMB #3045-0170). Information will be collected from a nationally representative sample of AmeriCorps alumni who served in AmeriCorps NCCC, AmeriCorps VISTA, and AmeriCorps State and National programs and completed their most recent term of service 2, 5, or 10 years ago.

    There are no revisions to the survey instrument. The information collection will administered in the same manner to ensure comparability with the initial responses. CNCS also seeks to continue using the current application until the revised application is approved by OMB. The current application is due to expire on 4/30/2018.

    Type of Review: Renewal.

    Agency: Corporation for National and Community Service.

    Title: AmeriCorps Alumni Outcome Study.

    OMB Number: #3045-0170.

    Agency Number: None.

    Affected Public: AmeriCorps Alumni who served during the period from 2008 until 2018.

    Total Respondents: 3150.

    Frequency: One time.

    Average Time per Response: 22 Minutes.

    Estimated Total Burden Hours: 1155 Hours.

    Total Burden Cost (capital/startup): None.

    Total Burden Cost (operating/maintenance): None.

    Dated: March 30, 2018. Mary Hyde, Director of Research and Evaluation.
    [FR Doc. 2018-07683 Filed 4-12-18; 8:45 am] BILLING CODE 6050-28-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System [Docket No. DARS-2018-0022] Acquisition of Items for Which Federal Prison Industries Has a Significant Market Share AGENCY:

    Department of Defense (DoD).

    ACTION:

    Notice.

    SUMMARY:

    DoD is publishing the updated annual list of product categories for which the Federal Prison Industries' share of the DoD market is greater than five percent.

    DATES:

    Applicable Date: April 27, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Greg Snyder, telephone 703-614-0719.

    SUPPLEMENTARY INFORMATION:

    On November 19, 2009, a final rule was published in the Federal Register at 74 FR 59914, which amended the Defense Federal Acquisition Regulation Supplement (DFARS) subpart 208.6 to implement Section 827 of the National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181. Section 827 changed DoD competition requirements for purchases from Federal Prison Industries, Inc. (FPI) by requiring DoD to publish an annual list of product categories for which FPI's share of the DoD market was greater than five percent, based on the most recent fiscal year data available. Product categories on the current list, and the products within each identified product category, must be procured using competitive or fair opportunity procedures in accordance with DFARS 208.602-70.

    The Director, Defense Procurement and Acquisition Policy (DPAP), issued a memorandum dated March 27, 2018, that provided the current list of product categories for which FPI's share of the DoD market is greater than five percent based on fiscal year 2015 data from the Federal Procurement Data System. The product categories to be competed effective April 27, 2018, are the following:

    • 7125 (Cabinets, Lockers, Bins, and Shelving) • 7230 (Draperies, Awnings, and Shades) • 8405 (Outerwear, Men's) • 8420 (Underwear and Nightwear, Mend's)

    The DPAP memorandum with the current list of product categories for which FPI has a significant market share is posted at: http://www.acq.osd.mil/dpap/cpic/cp/specific_policy_areas.html#federal_prison.

    The statute, as implemented, also requires DoD to—

    (1) Include FPI in the solicitation process for these items. A timely offer from FPI must be considered and award procedures must be followed in accordance with existing policy at Federal Acquisition Regulation (FAR) 8.602(a)(4)(ii) through (v);

    (2) Continue to conduct acquisitions, in accordance with FAR subpart 8.6, for items from product categories for which FPI does not have a significant market share. FAR 8.602 requires agencies to conduct market research and make a written comparability determination, at the discretion of the contracting officer. Competitive (or fair opportunity) procedures are appropriate if the FPI product is not comparable in terms of price, quality, or time of delivery; and

    (3) Modify the published list if DoD subsequently determines that new data requires adding or omitting a product category from the list.

    Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System.
    [FR Doc. 2018-07715 Filed 4-12-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Department of the Army; Corps of Engineers Intent To Prepare an Environmental Impact Statement for the City of Abilene, Texas, Cedar Ridge Reservoir Water Supply Project AGENCY:

    Department of the Army, U.S. Army Corps of Engineers, DoD.

    ACTION:

    Notice of intent.

    SUMMARY:

    The U.S. Army Corps of Engineers (USACE) is preparing an Environmental Impact Statement (EIS) to analyze the direct, indirect, and cumulative effects of a proposed water supply project, the Cedar Ridge Reservoir, proposed by the City of Abilene, TX. A Clean Water Act Section 404 permit would be required for the construction and operation of the proposed Project since it would result in permanent and temporary impacts to waters of the United States. The Project, as proposed by the applicant, is intended to provide approximately 34,400 acre-feet of new reliable water supply to address additional water supply needs. The Cedar Ridge Project would be a non-federal project constructed, owned, and operated by the City of Abilene.

    DATES:

    A public scoping meeting will be held May 16, 2018, 4:00 to 8:00 p.m., in Abilene, TX.

    ADDRESSES:

    The scoping meeting location will be at the Abilene Convention Center, 1100 North 6th Street, Abilene, TX.

    FOR FURTHER INFORMATION CONTACT:

    Questions and comments regarding the proposed action and EIS should be addressed to Mr. Frederick J. Land, Regulatory Project Manager, U.S. Army Corps of Engineers, Regulatory Division, 819 Taylor Street, Room 3A37, Fort Worth, TX 76102; (817) 886-1731; [email protected]

    SUPPLEMENTARY INFORMATION:

    The USACE will be conducting a public scoping meeting (see DATES and ADDRESSES) to describe the proposed Project, resources initially considered to be affected, the NEPA compliance process, and to solicit input on the issues and alternatives to be evaluated and other related matters. Written comments for scoping will be accepted until June 15, 2018. The USACE has prepared a scoping announcement to familiarize agencies, the public, and interested organizations with the proposed Project and potential environmental issues that may be involved. Copies of the scoping announcement will be available at the public scoping meetings or can be requested by mail. The public Scoping meetings will include an `open house' format and a presentation of information. Although written comments are encouraged, no formal public statements or public testimony will be taken at this time.

    The applicant is proposing to construct and operate a new 227,127 acre-foot reservoir, with a proposed surface area of 6,635 acres at conservation pool and an additional 2,151 acres at flood pool formed by an approximately 5,200-foot long earthen dam. Proposed impacts to waters of the United States at the project site include fill and inundation of 29-miles of the Clear Fork of the Brazos River and inundation of 43 miles of intermittent and ephemeral tributaries to the Clear Fork. In addition, the proposed project would result in downstream impacts associated with hydrologic alterations. As part of the proposed project, other facilities to be constructed include two spillways, a multi-level outlet works, a pump station and 34-mile pipeline, roadways, and construction areas. The pump station and pipeline would affect areas that may be waters of the United States. Construction of the dam and associated facilities would require the placement of approximately 16,000 cubic yards of fill material below the ordinary high water mark of the river and a small amount of fill in an ephemeral tributary. The construction of the dam and spillways would require 117 acres of land. Temporary and permanent construction of the pump station, pipeline, access roadways, laydown areas, and borrow areas could impact an estimated 1,100 acres of land area.

    The proposed project would be located primarily in northwest Shackelford County on the Clear Fork of the Brazos River with small portions located in adjacent Haskell, Jones, and Throckmorton counties in West Central Texas. The southern limit of the proposed reservoir would be approximately 25 miles northeast of Abilene, TX, near the town of Lueders, TX. The upstream limit of the reservoir would be located 0.4 river miles upstream from the State Highway (SH) 6 bridge over the Clear Fork near Lueders, TX. The downstream limit of the reservoir would be approximately 15 aerial miles downstream of the SH 6 bridge.

    The EIS would be prepared according to the USACE's procedures at 33 CFR 230 and 325 Appendix B for implementing the National Environmental Policy Act (NEPA) of 1969, as amended, 42 U.S.C. 4332(2)(c), and consistent with the USACE's policy to facilitate public understanding and review of agency proposals. As part of the EIS process, the need for and purpose of the proposal as well as a full range of reasonable alternatives, including the proposed Project and no action, would be evaluated. Alternatives considered by the Applicant include developing new reservoirs at other locations including South Bend Reservoir, Double Mountain Reservoir (east or west sites), and Breckenridge Reservoir. Non-reservoir alternatives include securing additional water via a pipeline from Possum Kingdom reservoir, developing a scalping operation from Clear Fork to Hubbard Creek reservoir, water purchases, additional development of groundwater resources, and water reuse. The initial resource categories anticipated to be evaluated for direct, indirect and cumulative effects from the construction and operation of the project include soils, geology, mineral resources, geomorphology, surface and groundwater, hydrology, water rights and water use, air quality, noise, climate change, wetlands, water quality, fisheries, aquatics, vegetation, wildlife, threatened and endangered species, state sensitive species, transportation, visuals and aesthetics, cultural resources, paleontological resources, land use, energy use, property ownership, recreation, socioeconomics, hazardous materials, health and safety, and environmental justice.

    The USACE has invited the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, the Texas Parks and Wildlife Department, the Texas Commission on Environmental Quality, Water Quality Division, and the Texas Historical Commission to be cooperating agencies in the formulation of the EIS.

    At this time it is projected that a Draft EIS could be released by Fall 2021.

    Stephen L Brooks, Chief, Regulatory Division, Fort Worth District.
    [FR Doc. 2018-07303 Filed 4-12-18; 8:45 am] BILLING CODE 3720-58-P
    DEPARTMENT OF DEFENSE Department of the Navy Meeting of the U.S. Naval Academy Board of Visitors AGENCY:

    Department of the Navy, DoD.

    ACTION:

    Notice of partially closed meeting.

    SUMMARY:

    The U.S. Naval Academy Board of Visitors will meet to make such inquiry, as the Board shall deem necessary, into the state of morale and discipline, the curriculum, instruction, physical equipment, fiscal affairs, and academic methods of the Naval Academy.

    DATES:

    The open session of the meeting will be held on April 23, 2018, from 9:00 a.m. to 11:15 a.m. The executive session held from 11:15 a.m. to 12:00 p.m. will be the closed portion of the meeting. Due to circumstances beyond the control of the Department of Defense (DoD) and the Designated Federal Officer, the U.S. Naval Academy Board of Visitors was unable to provide public notification required by 41 CFR 102-3.lSO(a) concerning the meeting on April 23, 2018, of the U.S. Naval Academy Board of Visitors. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.

    ADDRESSES:

    The meeting will be held at the United States Naval Academy in Annapolis, MD. The meeting will be handicap accessible.

    FOR FURTHER INFORMATION CONTACT:

    Lieutenant Commander Lawrence Heyworth IV, USN, Executive Secretary to the Board of Visitors, Office of the Superintendent, U.S. Naval Academy, Annapolis, MD 21402-5000, 410-293-1503.

    SUPPLEMENTARY INFORMATION:

    This notice of meeting is provided per the Federal Advisory Committee Act, as amended (5 U.S.C. App.). The executive session of the meeting from 11:15 a.m. to 12:00 p.m. on April 23, 2018, will consist of discussions of new and pending administrative/minor disciplinary infractions and non-judicial punishments involving midshipmen attending the Naval Academy to include but not limited to, individual honor/conduct violations within the Brigade, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. For this reason, the executive session of this meeting will be closed to the public, as the discussion of such information cannot be adequately segregated from other topics, which precludes opening the executive session of this meeting to the public. Accordingly, the Department of the Navy/Assistant for Administration has determined in writing that the meeting shall be partially closed to the public because the discussions during the executive session from 11:15 a.m. to 12:00 p.m. will be concerned with matters protected under sections 552b(c)(5), (6), and (7) of title 5, United States Code.

    Authority:

    5 U.S.C. 552b.

    Dated: April 6, 2018. E.K. Baldini, Lieutenant Commander, Judge Advocate General's Corps, U.S. Navy, Federal Register Liaison Officer.
    [FR Doc. 2018-07774 Filed 4-12-18; 8:45 am] BILLING CODE 3810-FF-P
    DEPARTMENT OF EDUCATION Applications for New Awards; Expanding Opportunity Through Quality Charter Schools Program (CSP)—Grants to Charter School Developers for the Opening of New Charter Schools and for the Replication and Expansion of High-Quality Charter Schools; Amendment and Extension of Deadline for Transmittal of Applications AGENCY:

    Office of Innovation and Improvement, Department of Education.

    ACTION:

    Notice; Amendment and Extension of Deadline for Transmittal of Applications.

    SUMMARY:

    On March 2, 2018, we published in the Federal Register (83 FR 8974) a notice inviting applications (NIA) for new awards for fiscal year (FY) 2018 for the CSP Grants to Developers for the Opening of New Charter Schools and for the Replication and Expansion of High-Quality Charter Schools, Catalog of Federal Domestic Assistance (CFDA) Numbers 84.282B and 84.282E. Since that time, Congress passed and the President signed the Consolidated Appropriations Act, 2018 (Act), which provides funding for the awards under this competition. This document amends the NIA by: (1) Stating that the Secretary may fund out of rank order applications proposing to open a new charter school or replicate or expand a high-quality charter school in underserved, high-poverty, rural areas; and (2) adding definitions related to funding such applications out of rank order.

    In addition, we are extending the deadline for transmittal of applications by two weeks, until April 30, 2018.

    DATES:

    Deadline for Transmittal of Applications: April 30, 2018.

    Deadline for Intergovernmental Review: June 29, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Eddie Moat, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W224, Washington, DC 20202-5970. Telephone: (202) 401-2266. Email: [email protected]

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

    SUPPLEMENTARY INFORMATION:

    Following publication of the NIA, Congress passed and the President signed the Act, which provides funding for the awards under this competition. The report accompanying the Act (the Statement of the Managers) 1 includes language reflecting congressional intent that, of these funds, “up to $7,500,000 [is] for developer grants to establish or expand charter schools in underserved, high-poverty, rural areas.” The Statement of the Managers modifies language in the report accompanying the Senate appropriations committee bill,2 which indicates congressional intent for CSP appropriations to include “dedicated funding to expand charter schools in rural areas.” Taking into account this language, we are amending the NIA to notify prospective applicants that the Secretary may fund out of rank order applications proposing to open a new charter school or replicate or expand a high-quality charter school in underserved, high-poverty, rural areas; and to add definitions related to funding such applications out of rank order. In addition, we are extending the deadline for transmittal of applications for the competition by two weeks.

    1 See www.congress.gov/crec/2018/03/22/CREC-2018-03-22-bk3.pdf.

    2 See www.congress.gov/115/crpt/srpt150/CRPT-115srpt150.pdf.

    All other requirements and conditions stated in the NIA remain the same.

    Amendments

    In FR Doc. No. 2018-04294, in the Federal Register of March 2, 2018 (83 FR 8974), we make the following amendments:

    (a) On page 8974, in the middle column, after the words “Deadline for Transmittal of Applications:” we are removing the date “April 16, 2018” and replacing it with the date “April 30, 2018”.

    (b) On page 8974, in the middle column, after the words “Deadline for Intergovernmental Review:” we are removing the date “June 15, 2018” and replacing it with the date “June 29, 2018”.

    (c) On page 8978, in the middle of the first column following the definition of “expand”, we are adding the following definition, which we are establishing for FY 2018 and any subsequent year in which we make awards from the list of unfunded applications from this competition, in accordance with section 437(d)(1) of the General Education Provisions Act (GEPA), 20 U.S.C. 1232(d)(1):

    High-poverty school means a school in which at least 50 percent of students are from low-income families as determined using one of the measures of poverty specified under section 1113(a)(5) of the Elementary and Secondary Education Act of 1965 (ESEA), as amended. For middle and high schools, eligibility may be calculated on the basis of comparable data from feeder schools. Eligibility as a high-poverty school under this definition is determined on the basis of the most currently available data.

    (d) On page 8978, in the middle of the second column, following the definition of “rural local educational agency”, we are adding the following definition, which we are establishing for FY 2018 and any subsequent year in which we make awards from the list of unfunded applications from this competition, in accordance with section 437(d)(1) of GEPA:

    Underserved community means a community that has limited access to high-quality educational options.

    (e) On page 8981, beginning in the middle column, at the end of section V.2 (Review and Selection Process), we are adding the following paragraph:

    Depending upon the number and quality of applications received, the Department may fund out of rank order high-quality applications that propose to open a new charter school, or replicate or expand a high-quality charter school, that (a) is located in an underserved community (as defined in this notice); and (b) primarily serves students from rural local educational agencies with at least one high-poverty school (as defined in this notice). To be considered for funding out of rank order, we encourage an applicant to include in its application (i) a statement that it is proposing to open a new charter school, or replicate or expand a high-quality charter school, that is located in an underserved community and primarily serves students from rural local educational agencies with at least one high-poverty school; and (ii) a description of how the proposed project meets each of the above criteria. If an application that is within funding range contains insufficient information to verify that the application meets these criteria, we may contact the applicant to obtain additional relevant information.

    Program Authority: Title IV, part C of the ESEA (20 U.S.C. 7221-7221j).

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

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

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

    Dated: April 10, 2018. Margo Anderson, Acting Assistant Deputy Secretary for Innovation and Improvement.
    [FR Doc. 2018-07744 Filed 4-12-18; 8:45 am] BILLING CODE 4000-01-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OAR-2016-0347; FRL-9976-79-OAR] RIN 2060-AT35 Response to June 1, 2016 Clean Air Act Section 126(b) Petition From Connecticut AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of final action on petition.

    SUMMARY:

    The Environmental Protection Agency (EPA) is denying a section 126(b) petition submitted by the state of Connecticut pursuant to the Clean Air Act (CAA or Act) on June 1, 2016. The petition requested that the EPA make a finding that emissions from Brunner Island Steam Electric Station (Brunner Island), located in York County, Pennsylvania, significantly contribute to nonattainment and interfere with maintenance of the 2008 ozone national ambient air quality standards (NAAQS) in Connecticut in violation of the good neighbor provision under the CAA. The EPA is denying the petition based on the conclusion that Connecticut has not demonstrated and the EPA has not determined that the Brunner Island facility emits or would emit pollution in violation of the good neighbor provision with respect to the 2008 ozone NAAQS.

    DATES:

    This final action is effective on April 13, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2016-0347. All documents in the docket are listed and publicly available at http://www.regulations.gov. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in the docket or in hard copy at the EPA Docket Center, William Jefferson Clinton (WJC) West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Office of Air and Radiation Docket and Information Center is (202) 566-1742.

    FOR FURTHER INFORMATION CONTACT:

    Questions concerning this final action should be directed to Mr. Lev Gabrilovich, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail Code C539-01, Research Triangle Park, NC 27711, telephone (919) 541-1496; email at [email protected]

    SUPPLEMENTARY INFORMATION:

    The information in this document is organized as follows:

    I. Executive Summary of the EPA's Decision on Connecticut's CAA Section 126(b) Petition II. Background and Legal Authority A. Ozone and Public Health B. Clean Air Act Sections 110 and 126 C. The EPA's Historical Approach to Addressing Interstate Transport of Ozone Under the Good Neighbor Provision D. The June 2016 CAA Section 126(b) Petition From Connecticut and Related Actions III. The EPA's Decision on Connecticut's CAA Section 126(b) Petition A. Summary of the EPA's Proposed Action B. The EPA's Standard for Reviewing Connecticut's CAA Section 126(b) Petition Regarding the 2008 8-hour Ozone NAAQS C. The EPA's Analysis of Connecticut's CAA Section 126(b) Petition D. Public Comments IV. Final Action To Deny Connecticut's 126(b) Petition V. Judicial Review I. Executive Summary of the EPA's Decision on Connecticut's CAA Section 126(b) Petition

    In June 2016, the state of Connecticut, through the Connecticut Department of Energy and Environmental Protection (Connecticut), submitted a petition requesting that the EPA make a finding pursuant to CAA section 126(b) that emissions from Brunner Island Steam Electric Station (Brunner Island), located in York County, Pennsylvania, significantly contribute to nonattainment and/or interfere with maintenance of the 2008 ozone NAAQS in Connecticut in violation of CAA section 110(a)(2)(D)(i)(I), otherwise known as the good neighbor provision. The petition further requests that the EPA order Brunner Island to reduce its oxides of nitrogen (NOX) emissions. On February 22, 2018, the EPA issued a proposal to deny the CAA section 126(b) petition. 83 FR 7710. The Agency solicited comments on the proposal. In response, the EPA received oral testimony from four speakers at a public hearing on the proposal on February 23, 2018. The EPA also received 27 comments submitted to the docket on the proposed denial. This Federal Register notice finalizes EPA's action on Connecticut's CAA section 126(b) petition and addresses major comments the Agency received. The remaining comments are addressed in the Response to Comment (RTC) document available in the docket for this action.

    In this final action, the EPA is denying the petition requesting that the EPA make a finding that emissions from Brunner Island significantly contribute to nonattainment and interfere with maintenance of the 2008 ozone NAAQS in Connecticut in violation of the good neighbor provision. In making this final decision, the EPA reviewed the incoming petition, the public comments received, the relevant statutory authorities, and other relevant materials. The EPA evaluated Connecticut's petition and determined that the state has not met its burden to demonstrate that Brunner Island emits or would emit in violation of the good neighbor provision with respect to the 2008 ozone NAAQS. As discussed in further detail in section III, the state's analysis of Brunner Island's impact on air quality in Connecticut provides insufficient information regarding the source's impact on Connecticut air quality on high ozone days and it does not reflect the facility's current operations. Moreover, the petition does not evaluate the potential costs and air quality benefits that would inform the EPA's evaluation of whether additional emission reductions are cost effective, consistent with the EPA's interpretation of the good neighbor provision. The EPA also finds, based on its own supplemental analysis, that there are no additional highly cost-effective controls available at the source and thus no basis to determine that Brunner Island emits or would emit in violation of the good neighbor provision with respect to the 2008 ozone NAAQS. As discussed in section III, Brunner Island recently installed a natural gas connection pipeline that allows natural gas to be combusted to serve Brunner Island's electric generators. Combusting gas at Brunner Island has significantly reduced the facility's NOX emissions. Accordingly, the EPA denies Connecticut's CAA section 126(b) petition.

    II. Background and Legal Authority A. Ozone and Public Health

    Ground-level ozone is not emitted directly into the air, but is a secondary air pollutant created by chemical reactions between NOX and volatile organic compounds (VOCs) in the presence of sunlight. These precursor emissions can be transported downwind directly or, after transformation in the atmosphere, as ozone. As a result, ozone formation, atmospheric residence, and transport can occur on a regional scale (i.e., hundreds of miles). For a discussion of ozone-formation chemistry, interstate transport issues, and health effects, see the Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS (CSAPR Update). 81 FR 74504, 74513-4 (October 26, 2016).

    B. Clean Air Act Sections 110 and 126

    The statutory authority for this action is provided by CAA sections 126 and 110(a)(2)(D)(i). Section 126(b) of the CAA provides, among other things, that any state or political subdivision may petition the Administrator of the EPA to find that any major source or group of stationary sources in an upwind state emits or would emit any air pollutant in violation of the prohibition of CAA section 110(a)(2)(D)(i).1 Petitions submitted pursuant to this section are commonly referred to as CAA section 126(b) petitions. Similarly, findings by the Administrator, pursuant to this section, that a source or group of sources emits air pollutants in violation of the CAA section 110(a)(2)(D)(i) prohibition are commonly referred to as CAA section 126(b) findings.

    1 The text of CAA section 126 codified in the U.S. Code cross-references section 110(a)(2)(D)(ii) instead of section 110(a)(2)(D)(i). The courts have confirmed that this is a scrivener's error and the correct cross-reference is to CAA section 110(a)(2)(D)(i). See Appalachian Power Co. v. EPA, 249 F.3d 1032, 1040-44 (D.C. Cir. 2001).

    CAA section 126(c) explains the impact of a CAA section 126(b) finding and establishes the conditions under which continued operation of a source subject to such a finding may be permitted. Specifically, CAA section 126(c) provides that it would be a violation of section 126 of the Act and of the applicable state implementation plan (SIP): (1) For any major proposed new or modified source subject to a CAA section 126(b) finding to be constructed or operate in violation of the prohibition of CAA section 110(a)(2)(D)(i); or (2) for any major existing source for which such a finding has been made to operate more than three months after the date of the finding. The statute, however, also gives the Administrator discretion to permit the continued operation of a source beyond three months if the source complies with emission limitations and compliance schedules provided by the EPA to bring about compliance with the requirements contained in CAA sections 110(a)(2)(D)(i) and 126 as expeditiously as practicable but no later than three years from the date of the finding. Id.

    Section 110(a)(2)(D)(i) of the CAA, often referred to as the “good neighbor” provision of the Act, requires states to prohibit certain emissions from in-state sources if such emissions impact the air quality in downwind states. Specifically, CAA sections 110(a)(1) and 110(a)(2)(D)(i)(I) require all states, within three years of promulgation of a new or revised NAAQS, to submit SIPs that contain adequate provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any such national primary or secondary ambient air quality standard. As described further in section II.C, the EPA has developed a number of regional rulemakings to address CAA section 110(a)(2)(D)(i)(I) for the various ozone NAAQS. The EPA's most recent rulemaking, the CSAPR Update, was promulgated to address interstate transport under section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. 81 FR 74504 (October 26, 2016).

    C. The EPA's Historical Approach to Addressing Interstate Transport of Ozone Under the Good Neighbor Provision

    Given that formation, atmospheric residence, and transport of ozone occur on a regional scale (i.e., hundreds of miles) over much of the eastern U.S., the EPA has historically addressed interstate transport of ozone pursuant to the good neighbor provision through a series of regional rulemakings focused on the reduction of NOX emissions. In developing these rulemakings, the EPA has typically found that downwind states' problems attaining and maintaining the ozone NAAQS result, in part, from the contribution of pollution from multiple upwind sources located in different upwind states.

    The EPA has promulgated four regional interstate transport rulemakings that have addressed the good neighbor provision with respect to various ozone NAAQS considering the regional nature of ozone transport. Each of these rulemakings essentially followed the same four-step framework to quantify and implement emission reductions necessary to address the interstate transport requirements of the good neighbor provision. These steps are:

    (1) Identifying downwind air quality problems relative to the ozone NAAQS. The EPA has identified downwind areas with air quality problems (referred to as “receptors”) considering monitored ozone data where appropriate and air quality modeling projections to a future compliance year. Pursuant to the opinion in North Carolina v. EPA, 531 F.3d 896, 908-911 (D.C. Cir. 2008), the Agency identified areas expected to be in nonattainment with the ozone NAAQS and those areas that may struggle to maintain the NAAQS;

    (2) determining which upwind states are linked to these identified downwind air quality problems and warrant further analysis to determine whether their emissions violate the good neighbor provision. In the EPA's most recent rulemakings, the EPA identified such upwind states to be those modeled to contribute at or above a threshold equivalent to one percent of the applicable NAAQS.

    (3) for states linked to downwind air quality problems, identifying upwind emissions on a statewide basis that will significantly contribute to nonattainment or interfere with maintenance of a standard. In all four of the EPA's prior rulemakings, the EPA apportioned emission reduction responsibility among multiple upwind states linked to downwind air quality problems using cost- and air quality-based criteria to quantify the amount of a linked upwind state's emissions that must be prohibited pursuant to the good neighbor provision; and

    (4) for states that are found to have emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS downwind, implementing the necessary emission reductions within the state. The EPA has done this by requiring affected sources in upwind states to participate in allowance trading programs to achieve the necessary emission reductions.

    The EPA's first such rulemaking, the NOX SIP Call, addressed interstate transport with respect to the 1979 ozone NAAQS. 63 FR 57356 (October 27, 1998). The EPA concluded in the NOX SIP Call that “[t]he fact that virtually every nonattainment problem is caused by numerous sources over a wide geographic area is a factor suggesting that the solution to the problem is the implementation over a wide area of controls on many sources, each of which may have a small or unmeasurable ambient impact by itself.” 63 FR 57356, 57377 (October 27, 1998). The NOX SIP Call promulgated statewide emission budgets and required upwind states to adopt SIPs that would decrease NOX emissions by amounts that would meet these budgets, thereby eliminating the emissions that significantly contribute to nonattainment or interfere with maintenance of the ozone NAAQS in downwind states. The EPA also promulgated a model rule for a regional allowance trading program called the NOX Budget Trading Program that states could adopt in their SIPs as a mechanism to achieve some or all of the required emission reductions. All of the jurisdictions covered by the NOX SIP Call ultimately chose to adopt the NOX Budget Trading Program into their SIPs. The NOX SIP Call was upheld by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in all pertinent respects. See Michigan v. EPA, 213 F.3d 663 (2000).

    In coordination with the NOX SIP Call rulemaking under CAA section 110(a)(2)(D)(i)(I), the EPA also addressed several pending CAA section 126(b) petitions submitted by eight northeastern states regarding the same air quality issues addressed by the NOX SIP Call (i.e., interstate ozone transport for the 1979 ozone NAAQS). These CAA section 126(b) petitions asked the EPA to find that ozone emissions from numerous sources located in 22 states and the District of Columbia had adverse air quality impacts on the petitioning downwind states. Based on technical determinations made in the NOX SIP Call regarding upwind state impacts on downwind air quality, the EPA in May 1999 made technical determinations regarding the claims in the petitions, but did not at that time make the CAA section 126(b) findings requested by the petitions. 64 FR 28250 (May 25, 1999). In making these technical determinations, the EPA concluded that the NOX SIP Call would itself fully address and remediate the claims raised in these petitions, and that the EPA would therefore not need to take separate action to remedy any potential violations of the CAA section 110(a)(2)(D)(i) prohibition. 64 FR 28252. However, subsequent litigation over the NOX SIP Call led the EPA to “de-link” the CAA section 126(b) petition response from the NOX SIP Call, and the EPA made final CAA section 126(b) findings for 12 states and the District of Columbia. The EPA found that sources in these states emitted in violation of the prohibition in the good neighbor provision with respect to the 1979 ozone NAAQS based on the affirmative technical determinations made in the May 1999 rulemaking. In order to remedy the violation under CAA section 126(c), the EPA required affected sources in the upwind states to participate in a regional allowance trading program whose requirements were designed to be interchangeable with the requirements of the optional NOX Budget Trading Program model rule provided under the NOX SIP Call. 65 FR 2674 (January 18, 2000). The EPA's action on these section 126(b) petitions was upheld by the D.C. Circuit. See Appalachian Power, 249 F.3d 1032.

    The EPA next promulgated the Clean Air Interstate Rule (CAIR) to address interstate transport under the good neighbor provision with respect to the 1997 ozone NAAQS, as well as the 1997 fine particulate matter (PM2.5) NAAQS. The EPA adopted the same framework for quantifying the level of states' significant contribution to downwind nonattainment in CAIR as it used in the NOX SIP Call, based on the determination in the NOX SIP Call that downwind ozone nonattainment is due to the impact of emissions from numerous upwind sources and states. 70 FR 25162, 25172 (May 12, 2005). The EPA explained that “[t]ypically, two or more States contribute transported pollution to a single downwind area, so that the `collective contribution' is much larger than the contribution of any single State.” 70 FR 25186. CAIR included two distinct regulatory processes—(1) a regulation to define significant contribution (i.e., the emission reduction obligation) under the good neighbor provision and provide for submission of SIPs eliminating that contribution, 70 FR 25162, and (2) a regulation to promulgate, where necessary, federal implementation plans (FIPs) imposing emission limitations, 71 FR 25328 (April 28, 2006). The FIPs required electric generating units (EGUs) in affected states to participate in regional allowance trading programs, which replaced the previous NOX Budget Trading Program.

    In conjunction with the second CAIR regulation promulgating FIPs, the EPA acted on a CAA section 126(b) petition received from the state of North Carolina on March 19, 2004, seeking a finding that large EGUs located in 13 states were significantly contributing to nonattainment and/or interfering with maintenance of the 1997 ozone NAAQS and the 1997 PM2.5 NAAQS in North Carolina. Citing the analyses conducted to support the promulgation of CAIR, the EPA denied North Carolina's CAA section 126(b) petition in full based on a determination that either the named states were not adversely impacting downwind air quality in violation of the good neighbor provision or such impacts were fully remedied by implementation of the emission reductions required by the CAIR FIPs. 71 FR 25328, 25330.

    The D.C. Circuit found that EPA's approach to section 110(a)(2)(D)(i)(I) in CAIR was “fundamentally flawed” in several respects, and the rule was remanded in July 2008 with the instruction that the EPA replace the rule “from the ground up.” North Carolina v. EPA, 531 F.3d at 929. The decision did not find fault with the EPA's general multi-step framework for addressing interstate ozone transport, but rather concluded EPA's analysis did not address all elements required by the statute. The EPA's separate action denying North Carolina's CAA section 126(b) petition was not challenged.

    On August 8, 2011, the EPA promulgated the Cross-State Air Pollution Rule (CSAPR) to replace CAIR. 76 FR 48208 (August 8, 2011). CSAPR addressed the same ozone and PM2.5 NAAQS as CAIR and, in addition, addressed interstate transport for the 2006 PM2.5 NAAQS by requiring 28 states to reduce sulfur dioxide (SO2) emissions, annual NOX emissions, and/or ozone season NOX emissions that would significantly contribute to other states' nonattainment or interfere with other states' abilities to maintain these air quality standards. Consistent with prior determinations made in the NOX SIP Call and CAIR, the EPA continued to find that multiple upwind states contributed to downwind ozone nonattainment. Specifically, the EPA found “that the total `collective contribution' from upwind sources represents a large portion of PM2.5 and ozone at downwind locations and that the total amount of transport is composed of the individual contribution from numerous upwind states.” 76 FR 48237. Accordingly, the EPA conducted a regional analysis, calculated emission budgets for affected states, and required EGUs in these states to participate in new regional allowance trading programs to reduce statewide emission levels. CSAPR was subject to nearly four years of litigation in which the Supreme Court upheld the EPA's approach to calculating emission reduction obligations and apportioning upwind state responsibility under the good neighbor provision, but also held that the EPA was precluded from requiring more emission reductions than necessary to address downwind air quality problems. See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1607-1609 (2014).2

    2 On remand from the Supreme Court, the D.C. Circuit further affirmed various aspects of the CSAPR, and also remanded the rule without vacatur for reconsideration of certain states' emissions budgets. EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (2015). The EPA addressed the remand in several rulemaking actions in 2016 and 2017.

    Most recently, the EPA promulgated the CSAPR Update to address the good neighbor provision requirements for the 2008 ozone NAAQS, the same NAAQS at issue in the Connecticut section 126(b) petition. 81 FR 74504 (October 26, 2016). The final CSAPR Update built upon previous efforts to address the collective contributions of ozone pollution from 22 states in the eastern U.S. to widespread downwind air quality problems, including the NOX SIP Call, CAIR, and the original CSAPR. As was also the case for the previous rulemakings, the EPA identified emissions from large EGUs as significantly contributing and/or interfering with maintenance based on cost and air quality factors. The CSAPR Update finalized EGU NOX ozone season emission budgets for affected states that were developed using uniform control stringency available at a marginal cost of $1,400 per ton of NOX reduced. This level of control stringency represented ozone season NOX reductions that could be achieved in the 2017 analytic year, which was relevant to the upcoming 2018 attainment date for moderate ozone nonattainment areas, and included the potential for operating and optimizing existing selective catalytic reduction (SCRs) post-combustion controls; installing state-of-the-art NOX combustion controls; and shifting generation to existing units with lower NOX emission rates within the same state.

    The CSAPR Update finalized enforceable measures necessary to achieve the emission reductions in each state by requiring power plants in covered states to participate in the CSAPR NOX Ozone Season Group 2 allowance trading program. The CSAPR trading programs and the EPA's prior emission trading programs (e.g., the NOX Budget Trading Program associated with the NOX SIP Call) have provided a proven, cost-effective implementation framework for achieving emission reductions. In addition to providing environmental certainty (i.e., a cap on regional and statewide emissions), these programs have also provided regulated sources with flexibility when choosing compliance strategies. This implementation approach was shaped by previous rulemakings and reflects the evolution of these programs in response to court decisions and practical experience gained by states, industry, and the EPA.

    In finalizing the CSAPR Update, the EPA determined the rule may only be a partial resolution of the good neighbor obligation for many states, including Pennsylvania, and that the emission reductions required by the rule “may not be all that is needed” to address transported emissions.3 81 FR 74521-522 (October 26, 2016). The EPA noted that the information available at that time indicated that downwind air quality problems would remain in 2017 after implementation of the CSAPR Update to which upwind states continued to be linked at or above the one-percent threshold. However, the EPA could not determine whether, at step three of the four-step framework, the EPA had quantified all emission reductions that may be considered highly cost effective because the rule did not evaluate non-EGU ozone season NOX reductions and further EGU control strategies (i.e., the implementation of new post-combustion controls) that are achievable on longer timeframes after the 2017 analytic year.

    3 The EPA determined that the emission reductions required by the CSAPR Update were the full scope of the good neighbor obligation for Tennessee with respect to the 2008 ozone NAAQS. 81 FR 74551-522.

    Of particular relevance to this action, the EPA determined in the CSAPR Update that emissions from Pennsylvania were linked to both nonattainment and maintenance concerns for the 2008 ozone NAAQS in Connecticut based on air quality modeling projections to 2017. 81 FR 74538-539. The EPA found there were cost-effective emission reductions that could be achieved within Pennsylvania at a marginal cost of $1,400 per ton, quantified an emission budget for the state, and required EGUs located within the state, including the source identified in Connecticut's petition, to comply with the EPA's trading program under the CSAPR Update beginning with the 2017 ozone season. This emission budget was imposed to achieve necessary emission reductions and mitigate Pennsylvania's impact on downwind states' air quality in time for the July 2018 moderate area attainment date for the 2008 ozone NAAQS.

    D. The June 2016 CAA Section 126(b) Petition From Connecticut and Related Actions

    On March 12, 2008, the EPA promulgated a revision to the ozone NAAQS, lowering both the primary and secondary standards to 75 parts per billion (ppb).4 Subsequently, on June 1, 2016, Connecticut, submitted a CAA section 126(b) petition alleging that emissions from Brunner Island significantly contribute to nonattainment and/or interfere with maintenance of the 2008 ozone NAAQS in Connecticut.5 Brunner Island is a 1,411 megawatt facility with three tangentially-fired steam boiler EGUs, each equipped with low NOX burner technology with closed-coupled/separated over fire air (LNC3) combustion controls, located in York County in southeastern Pennsylvania.6 The units were constructed starting in 1961 through 1969. For over 50 years, all three units at Brunner Island have historically burned coal. Brunner Island recently installed a natural gas connection pipeline allowing natural gas to be combusted to serve Brunner Island's electric generators.7 Following installation of this pipeline, Brunner Island primarily combusted natural gas as fuel during the 2017 ozone season.8 Using primarily natural gas as fuel during the 2017 ozone season reduced Brunner Island's actual ozone season NOX emissions to 877 tons in 2017 from 3,765 tons in 2016 and reduced the facility's ozone season NOX emission rate to 0.090 pounds per millions of British thermal units (lbs/mmBtu) in 2017 from 0.370 lbs/mmBtu in 2016.9

    4See National Ambient Air Quality Standards for Ozone, Final Rule, 73 FR 16436 (March 27, 2008).

    5 Petition of the State of Connecticut Pursuant to Section 126 of the Clean Air Act, submitted June 1, 2016. The petition is available in the docket for this action.

    6 For tangentially-fired boiler types, LNC3 is state of the art control technology. See sections 3.9.2 and 5.2.1 on pages 3-25 and 5-5 of the Integrated Planning Model (IPM) 5.13 documentation for details about combustion controls. The IPM documentation is available at https://www.epa.gov/airmarkets/power-sector-modeling-platform-v513.

    7 On June 7, 2016, an article by S&P Global indicated that Talen Energy Corp. is in the process of converting the Brunner Island plant to co-fire with natural gas. The Connecticut CAA section 126(b) petition and an April 28, 2017, letter from Talen Energy Corp. indicate that Brunner Island has taken necessary steps to construct a natural gas pipeline and enable the combustion of natural gas. Talen Energy Corp. comments on this action, submitted on March 26, 2018, confirm that this natural gas conversion project was completed in 2017. These documents are available in the docket for this action.

    8 Hourly emission rates reported to the EPA and fuel usage reported to the U.S. Energy Information Administration (EIA) demonstrate Brunner Island predominately used natural gas during the ozone season. The emission data for 2017 are publicly available at https://www.epa.gov/ampd and the fuel usage data are available at https://www.eia.gov/electricity/data/eia923/.

    9 These data are publicly available at https://www.epa.gov/ampd. See Air Markets Program Data in the docket for this proposal.

    The petition contends that emissions from Brunner Island significantly contribute to nonattainment and interfere with maintenance of the 2008 ozone NAAQS at six out of 12 ozone monitors in Connecticut. In support of this assertion, the petition contends that emissions from Brunner Island contribute levels equal to or greater than one percent of the 2008 ozone NAAQS to downwind nonattainment and maintenance receptors. The petition further contends that Brunner Island is able to reduce emissions at a reasonable cost using readily available control options. The petition therefore concludes that NOX emissions from Brunner Island significantly contribute to nonattainment and interfere with maintenance of the 2008 ozone NAAQS in Connecticut. The petition requests that the EPA direct the operators of Brunner Island to reduce NOX emissions to eliminate this impact.

    The petition cites several sources of data for its contention that Brunner Island is impacting air quality in Connecticut. First, the petition notes that 10 out of 12 air quality monitors in Connecticut were violating the 2008 ozone NAAQS based on 2012-2014 data and preliminary 2013-2015 data available at the time the petition was submitted.10 The petition further cites to modeling conducted by the EPA to support development of the CSAPR Update to claim that four ozone monitors in Connecticut were projected to have nonattainment or maintenance concerns in 2017.11

    10 Of the twelve monitors in Connecticut, seven are violating the 2008 ozone NAAQS based on 2014-2016 data. See ozone design value table available at https://www.epa.gov/air-trends/air-quality-design-values#report.

    11 The petition referred to modeling conducted for purposes of the proposed CSAPR Update in 2015. See 80 FR 75706, 75725-726 (December 3, 2015). The EPA conducted updated modeling to support the final rulemaking, which also identified four projected nonattainment and maintenance receptors in 2017. 81 FR 74533.

    To support the conclusion that Brunner Island impacts air quality at some of these monitoring sites, Connecticut provides a technical memorandum from Sonoma Technologies, Inc., outlining the results of modeling that analyzed the impact of NOX emissions from Brunner Island on Connecticut. According to the petition, this modeling shows that emissions from Brunner Island contributed an amount greater than one percent of the 2008 ozone NAAQS at six monitoring sites in Connecticut based on emissions from the facility during the 2011 ozone season and that Brunner Island is therefore linked to Connecticut's air quality problems.

    Connecticut further alleges that Brunner Island has cost-effective and readily available control technologies that can reduce its NOX emissions. The petition first notes that Brunner Island currently has no NOX post-combustion controls installed at any of the units but that the facility was planning to add the capability to use natural gas fuel at all three of its units by the summer of 2017. The petition summarizes four potential ways by which Brunner Island could reduce its NOX emissions: Replacing coal combustion with natural gas fuel, modifying its boiler furnace burners and combustion systems to operate at lower flame temperatures, installing selective noncatalytic reduction (SNCR) controls, and installing SCR controls. In particular, the petition contends that a federally enforceable mechanism to ensure Brunner Island uses natural gas fuel would eliminate Brunner Island's significant contribution to ozone levels in Connecticut. The petition states that current federal and state rules will not require Brunner Island to operate on natural gas, install post-combustion controls, or otherwise limit NOX emissions beyond previously allowable permit levels.

    The petition suggests that the then-proposed CSAPR Update could not be relied upon to control emissions from Brunner Island because: (1) It was not final at the time the petition was submitted and was therefore uncertain; 12 and (2) the proposed rule would not require Brunner Island to reduce its emissions below the threshold of one percent of the NAAQS. The petition notes that the modeling to support the proposed rule shows that the four Connecticut monitors will continue to have nonattainment and maintenance problems after implementation of the proposed emission budgets. Finally, the petition suggests that, because EGUs may trade allowances within and between states, this could result in emission levels in excess of the state's budget, and thus the petition suggests the rule will likely not affect Brunner Island's emissions. In particular, the petition suggests that this aspect of the CSAPR Update will not reduce emissions from Brunner Island on high electricity demand days or days with the highest ozone levels.

    12 The final CSAPR Update was promulgated a few months later. 81 FR 74504 (October 26, 2016).

    Based on the technical support provided in its petition, Connecticut requests that the EPA make a CAA section 126(b) finding and require that Brunner Island comply with emission limitations and compliance schedules to eliminate its significant contribution to nonattainment and interference with maintenance in Connecticut.

    Subsequent to receiving Connecticut's petition, the EPA published a final rule extending the statutory deadline for the Agency to take final action. 81 FR 48348 (July 25, 2016). Section 126(b) of the Act requires the EPA to either make a finding or deny a petition within 60 days of receipt of the petition and after holding a public hearing. However, any action taken by the EPA under CAA section 126(b) is also subject to the procedural requirements of CAA section 307(d). See CAA section 307(d)(1)(N). This section requires the EPA conduct notice-and-comment rulemaking, including issuance of a notice of proposed action, a period for public comment, and a public hearing before making a final determination whether to make the requested finding. In light of the time required for notice-and-comment rulemaking, CAA section 307(d)(10) provides for a time extension, under certain circumstances, for rulemakings subject to the section 307(d) procedural requirements. In accordance with section 307(d)(10), the EPA determined that the 60-day period for action on Connecticut's petition would be insufficient for the EPA to complete the necessary technical review, develop an adequate proposal, and allow time for notice and comment, including an opportunity for public hearing. Therefore, on July 25, 2016, the EPA published a final rule extending the deadline for the EPA to take final action on Connecticut's CAA section 126(b) petition to January 25, 2017. The notice extending the deadline can also be found in the docket for this rulemaking.

    When the EPA had not acted by that date, Connecticut filed suit in the U.S. District Court for the District of Connecticut alleging that the EPA failed to take timely action on Connecticut's CAA section 126(b) petition.13 On February 7, 2018, the court issued an order requiring the EPA to hold a public hearing on the petition within 30 days and to take final action within 60 days of the court's order. See Ruling on Motions for Summary Judgment and Motion Concerning Remedy, Connecticut v. EPA, No. 3:17-cv-00796 (D. Conn. February 7, 2018). Consistent with the court's order, the EPA held a public hearing on the proposed action on February 23, 2018. 83 FR 6490 (February 14, 2018).

    13 Two citizen groups, Sierra Club and Connecticut Fund for the Environment, intervened in this case on behalf of Connecticut.

    On April 25, 2017, a coalition of public health, conservation, and environmental organizations submitted a letter urging the EPA to immediately grant several CAA section 126(b) petitions pending before the Agency, including Connecticut's, arguing that the petitions' proposed remedies would also provide critical air quality benefits to the communities surrounding the affected power plants in Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia, as well as other downwind states, including New Jersey, New York, Maine, Massachusetts, and Rhode Island.14 On April 28, 2017, Talen Energy Corp., the owner and operator of Brunner Island, submitted a letter urging the EPA to deny Connecticut's CAA section 126(b) petition due to alleged deficiencies in the petition. The EPA acknowledges receipt of these letters, and has made them available in the docket for this action. However, rather than respond directly to the letters in the proposed action on the petition, the EPA encouraged interested parties to submit relevant comments during the public comment period.

    14 The EPA had received five additional CAA section 126(b) petitions at the time of the proposal from two other states (Delaware and Maryland) regarding the 2008 and 2015 ozone NAAQS, each claiming that one or more specific power plant EGUs in upwind states emit or would emit in violation of the good neighbor provision. The EPA notes that this action only addresses Connecticut's CAA section 126(b) petition regarding Brunner Island. The EPA has not yet proposed action on the other five petitions.

    III. The EPA's Decision on Connecticut's CAA section 126(b) Petition A. Summary of the EPA's Proposed Action

    In section III of the February 22, 2018, proposed action, the EPA explained its proposed basis for denial of Connecticut's CAA section 126(b) petition. Given that ozone is a regional pollutant, the EPA proposed to evaluate the petition consistent with the same four-step regional analytic framework that the EPA has used in previous regulatory actions evaluating regional interstate ozone transport problems. Within this framework, the EPA also proposed to evaluate whether Brunner Island emits or would emit in violation of the good neighbor provision based on both current and future anticipated emission levels. The EPA identified two bases for denial.

    First, the EPA noted that the Agency's historical approach to evaluating CAA section 126(b) petitions looks first to see whether a petition, standing alone, identifies or establishes a technical basis for the requested section 126(b) finding. 83 FR 7715. In this regard, the Agency identified several elements of the state's analysis that were considered insufficient to support Connecticut's conclusion. In particular, the EPA proposed to find that the state's analysis of Brunner Island's impact on air quality in Connecticut provides insufficient information regarding the source's impact on high ozone days and it does not reflect the facility's current operations. Id. Moreover, the EPA proposed to find that the petition does not evaluate the potential costs and air quality benefits that would inform the EPA's evaluation of whether additional emission reductions are cost effective, consistent with the EPA's interpretation of the good neighbor provision. Id. at 7718.

    Second, the EPA also proposed to rely on its own independent analyses to evaluate the potential basis for the requested CAA section 126(b) finding. Id. at 7716. The EPA noted that Brunner Island completed construction of a natural gas pipeline connection prior to the beginning of the 2017 ozone season (i.e., by May 1, 2017), and primarily burned natural gas with a low NOX emission rate in the 2017 ozone season, which indicates that Brunner Island has already implemented the emission reductions requested by Connecticut's petition. Id. at 7717. The EPA also explained that it expects the facility to continue operating primarily by burning natural gas in future ozone seasons. Id. To support this determination, the EPA relied on its finding that economic factors, including compliance with the CSAPR Update and fuel-market economics, would provide an incentive for Brunner Island to cost-effectively reduce NOX emissions. Id. at 7718. The EPA therefore proposed to find, based on its own analysis, that there are no additional highly cost-effective controls available at the source, and thus Brunner Island does not currently emit and would not emit in violation of the good neighbor provision with respect to the 2008 ozone NAAQS. Id.

    The EPA's basis for this final action denying the petition has not fundamentally changed from the proposal. We continue to believe that Connecticut has not demonstrated that Brunner Island emits or would emit in violation of the good neighbor provision such that it will significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in Connecticut. Moreover, the EPA's own analysis provides no basis to conclude that the Brunner Island facility either currently emits or would emit pollution in violation of the good neighbor provision for the 2008 ozone NAAQS. In section III of this notice, and in the RTC document included in the docket for this action, the agency explains the rationale supporting its conclusion in light of the public comments.

    B. The EPA's Standard for Reviewing Connecticut's CAA Section 126(b) Petition Regarding the 2008 8-Hour Ozone NAAQS

    As discussed in section II.B of this notice, section 126(b) of the CAA provides a mechanism for states and other political subdivisions to seek abatement of pollution in other states that may be affecting their air quality. However, it does not identify specific criteria or a specific methodology for the Administrator to apply when deciding whether to make a section 126(b) finding or deny a petition. Therefore, the EPA has discretion to identify relevant criteria and develop a reasonable methodology for determining whether a section 126(b) finding should be made. See, e.g., Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984); Smiley v. Citibank, 517 U.S. 735, 744-45 (1996).

    As an initial matter, the EPA's historical approach to evaluating CAA section 126(b) petitions looks first to see whether a petition identifies or establishes a sufficient basis for the requested section 126(b) finding. The EPA first evaluates the technical analysis in the petition to see if that analysis, standing alone, is sufficient to support a section 126(b) finding. The EPA focuses on the analysis in the petition because the statute does not require the EPA to conduct an independent technical analysis to evaluate claims made in section 126(b) petitions. The petitioner thus bears the burden of establishing, as an initial matter, a technical basis for the specific finding requested. The EPA has no obligation to prepare an analysis to supplement a petition that fails, on its face, to include an initial technical demonstration. Such a petition, or a petition that fails to identify the specific finding requested, could be found insufficient.

    Nonetheless, the EPA may decide to conduct independent analyses when helpful in evaluating the basis for a potential section 126(b) finding or developing a remedy if a finding is made. As explained in the following sections, given the EPA's concerns with the information submitted as part of Connecticut's CAA section 126(b) petition, and the fact that the EPA has previously issued a rulemaking defining and at least partially addressing the same environmental concern that the petition seeks to address, the EPA determined that it was appropriate to conduct an independent analysis to determine whether it should grant or deny the petition. Such analysis, however, is not required by the statute and may not be necessary or appropriate in other circumstances.

    With respect to the statutory requirements of both section 110(a)(2)(D)(i) and section 126, the EPA has consistently acknowledged that Congress created these provisions as two independent statutory tools to address the problem of interstate pollution transport. See, e.g., 76 FR 69052, 69054 (November 7, 2011).15 Congress provided two separate statutory processes to address interstate transport without indicating any preference for one over the other, suggesting it viewed either approach as a legitimate means to produce the desired result. While either provision may be applied to address interstate transport, they are also closely linked in that a violation of the prohibition in CAA section 110(a)(2)(D)(i) is a condition precedent for action under CAA section 126(b) and, critically, that significant contribution to nonattainment and interference with maintenance are construed identically for purposes of both provisions (since the identical terms are naturally interpreted as meaning the same thing in the two linked provisions). See Appalachian Power, 249 F. 3d at 1049-50.

    15 Courts have also upheld the EPA's position that CAA sections 110(a)(2)(D)(i) and section 126 are two independent statutory tools to address the same problem of interstate transport. See GenOn REMA, LLC v. EPA, 722 F.3d 513, 520-23 (3d Cir. 2013); Appalachian Power, 249 F.3d at 1047.

    Thus, in addressing a section 126(b) petition that addresses ozone transport, the EPA believes it is appropriate to interpret these ambiguous terms consistent with the EPA's historical approach to evaluating interstate ozone pollution transport under the good neighbor provision. As described in sections II.A and II.C of this notice, ozone is a regional pollutant and previous EPA analyses and regulatory actions have evaluated the regional interstate ozone transport problem using a four-step regional analytic framework. The EPA most recently applied this four-step framework in the promulgation of the CSAPR Update to at least partially address interstate transport with respect to the 2008 ozone NAAQS under CAA section 110(a)(2)(D)(i)(I). Given the specific cross-reference in CAA section 126(b) to the substantive prohibition in CAA section 110(a)(2)(D)(i), the EPA believes any prior findings made under the good neighbor provision are informative—if not determinative—for a CAA section 126(b) action, and thus the EPA's four-step approach under CAA section 110(a)(2)(D)(i)(I) is also appropriate for evaluating under CAA section 126(b) whether a source or group of sources will significantly contribute to nonattainment or interfere with maintenance of the 2008 8-hour ozone NAAQS in a petitioning state. Because the EPA interprets significant contribution to nonattainment and interference with maintenance to mean the same thing under both provisions, the EPA's decision whether to grant or deny a CAA section 126(b) petition regarding the 2008 8-hour ozone NAAQS depends on whether there is a downwind air quality problem in the petitioning state (i.e., step one of the four-step framework); whether the upwind state where the source subject to the petition is located is linked to the downwind air quality problem (i.e., step two); and, if such a linkage exists, whether there are additional highly cost-effective controls achievable at the source(s) named in the CAA section 126(b) petition (i.e., step three).

    The EPA notes that Congress did not otherwise specify how the EPA should determine that a major source or group of stationary sources “emits or would emit” any air pollutant in violation of the prohibition of CAA section 110(a)(2)(D)(i)(I) under the terms of section 126(b). Thus, the EPA also believes it is reasonable and appropriate at each step to consider whether the facility “emits or would emit” in light of the facility's current operating conditions. Therefore, the EPA interprets the phrase “emits or would emit” in this context to mean that a source may “emit” in violation of the good neighbor provision if, based on current emission levels, the upwind state contributes to downwind air quality problems (i.e., steps one and two), and the source may be further controlled through implementation of highly cost-effective controls (i.e., step 3). Similarly, a source “would emit” in violation of the good neighbor provision if, based on reasonably anticipated future emission levels (accounting for existing conditions), the upwind state contributes to downwind air quality problems (i.e., steps one and two) and the source could be further controlled through implementation of highly cost-effective controls (i.e., step 3). Consistent with this interpretation, the EPA has therefore evaluated, in the following section, whether Brunner Island emits or would emit in violation of the good neighbor provision based on both current and future anticipated emission levels.

    In interpreting the phrase “emits or would emit in violation of the prohibition of section [110(a)(2)(D)(i)],” if the EPA or a state has already adopted provisions that eliminate the significant contribution to nonattainment or interference with maintenance of the NAAQS in downwind states, then there simply is no violation of the CAA section 110(a)(2)(D)(i)(I) prohibition. Put another way, requiring additional reductions would result in eliminating emissions that do not contribute significantly to nonattainment or interfere with maintenance of the NAAQS, an action beyond the scope of the prohibition in CAA section 110(a)(2)(D)(i)(I) and therefore beyond the scope of the EPA's authority to make the requested finding under CAA section 126(b). See EPA v. EME Homer City Generation, L.P., 134 S. Ct. at 1604 n.18, 1608-09 (holding the EPA may not require sources in upwind states to reduce emissions by more than necessary to eliminate significant contribution to nonattainment or interference with maintenance of the NAAQS in downwind states under the good neighbor provision).

    Thus, it follows that if a state already has a SIP that the EPA approved as adequate to meet the requirements of CAA section 110(a)(2)(D)(i)(I), the EPA would not find that a source in that state was emitting in violation of the prohibition of CAA section 110(a)(2)(D)(i)(I) absent new information demonstrating that the SIP is now insufficient to address the prohibition. Similarly, if the EPA has promulgated a FIP that fully addressed the deficiency, the FIP would eliminate emissions that significantly contribute to nonattainment or interfere with maintenance in a downwind state, and, hence, absent new information to the contrary, sources in the upwind state would not emit in violation of the section 110(a)(2)(D)(i)(I) prohibition.

    The EPA notes that a SIP or FIP implementing section 110(a)(2)(D)(i)(I) only means that a state's emissions are adequately prohibited for the particular set of facts analyzed under approval of a SIP or promulgation of a FIP. If a petitioner produces new data or information showing a different level of contribution or other facts not considered when the SIP or FIP was promulgated, compliance with a SIP or FIP may not be determinative regarding whether the upwind sources would emit in violation of the prohibition of section 110(a)(2)(D)(i)(I). See 64 FR 28250, 28274 n.15 (May 25, 1999); 71 FR 25328, 25336 n.6 (April 28, 2006); Appalachian Power, 249 F.3d at 1067 (later developments can be the basis for another CAA section 126 petition). Thus, in circumstances where a SIP or FIP addressing section 110(a)(2)(D)(i)(I) is being implemented, the EPA will evaluate the section 126(b) petition to determine if it raises new information that merits further consideration.

    C. The EPA's Analysis of Connecticut's CAA Section 126(b) Petition

    As described earlier in section II.C of this notice, the EPA has determined that a state may contribute significantly to nonattainment or interfere with maintenance of the 2008 ozone NAAQS where emissions from the state impact a downwind air quality problem (nonattainment or maintenance receptor) at a level exceeding a one percent contribution threshold, and where the sources in the state can implement emission reductions through highly cost-effective control measures. See EPA v. EME Homer City Generation, L.P., 134 S. Ct. at 1606-07; Appalachian Power, 249 F. 3d at 1049-50.

    The EPA has already conducted such an analysis for the 2008 ozone NAAQS with respect to Pennsylvania's impact on receptors in Connecticut in the CSAPR Update. The EPA determined that, based on 2017 modeling projections, statewide emissions from sources in Pennsylvania were linked to four air quality monitors in Connecticut expected to have nonattainment or maintenance concerns. However, contrary to the assertions made in Connecticut's petition, the threshold of contributing levels equal to or greater than one percent of the 2008 ozone NAAQS to downwind nonattainment and maintenance receptors used in step two in the CSAPR Update did not alone represent emissions that were considered to “contribute significantly” or “interfere with maintenance” of the NAAQS. The conclusion that a state's emissions met or exceeded this threshold only indicated that further analysis was appropriate to determine whether any of the upwind state's emissions met the statutory criteria of significantly contributing to nonattainment or interfering with maintenance. This further analysis in step three of the EPA's four-step framework considers cost, technical feasibility and air quality factors to determine whether any emissions deemed to contribute to the downwind air quality problem must be controlled pursuant to the good neighbor provision. Thus, while the EPA's modeling conducted for the CSAPR Update did link statewide emissions from Pennsylvania to nonattainment and maintenance receptors in Connecticut in 2017, this does not conclude the determination, made at step three, as to whether Brunner Island's emissions “contribute significantly” to nonattainment or “interfere with maintenance” of the 2008 ozone NAAQS.

    In light of the EPA's conclusions that Pennsylvania emissions are linked to Connecticut's air quality based on the CSAPR Update modeling, the Agency need not take a position regarding whether it is appropriate or consistent with the EPA's historical four-step framework for addressing ozone transport to evaluate the impact of a single source on downwind air quality versus the impact of statewide emissions.16 Nonetheless, the EPA notes that, for the same reasons that the modeled impact of a state is insufficient to conclude the EPA's analysis, the impact of a single source on downwind air quality would also not necessarily be determinative of whether that source emits or would emit in violation of the good neighbor provision. Thus, the modeling summary provided by Connecticut regarding Brunner Island's potential impact on Connecticut monitors does not indicate whether in step three of the EPA's framework there are feasible and highly cost-effective emission reductions available at Brunner Island such that the EPA could determine that this facility emits or would emit in violation of the good neighbor provision.

    16 The EPA notes, however, that the DC Circuit has affirmed the EPA's decision in a prior section 126(b) action to evaluate the impacts of statewide, rather than source-specific, impacts on downwind ozone nonattainment. Appalachian Power, 249 F. 3d at 1049-50.

    The agency also notes that Connecticut's analysis appears to provide insufficient information for the EPA to make a determination under CAA section 126(b) because the conclusions that the petition draws regarding Brunner Island's particular impacts on Connecticut are not sufficiently supported by the state's technical assessment. In particular, existing EPA analyses of interstate ozone pollution transport focus on contributions to high ozone days at the downwind receptor in order to evaluate the impact on nonattainment and maintenance at the receptor. For example, in the CSAPR Update modeling, ozone contributions were calculated using data for the days with the highest future year modeled ozone concentrations.17 For the 2008 ozone NAAQS, only the highest measured ozone days from each year are considered for the calculation of ozone design values 18 (the values that determine whether there is a measured NAAQS violation). Therefore, measured ozone values that are far below the level of the NAAQS do not cause an exceedance or violation of the NAAQS. For this reason, only ozone contributions to days that are among the highest modeled ozone days at the receptor are relevant to determining if a state or source is linked to downwind nonattainment or maintenance issues. The analysis and metrics provided by the petitioner provide some information on the frequency and magnitude of ozone impacts. However, the information is unclear as to whether the modeled and/or measured ozone levels in Connecticut on the days when emissions from Brunner Island have the largest impact at Connecticut receptors are among the highest modeled ozone days at those receptors. Thus, the petition does not provide sufficient information to evaluate the contribution of Brunner Island's emissions to nonattainment and maintenance receptors in Connecticut.19

    17 Air Quality Modeling Technical Support Document for the Final Cross-State Air Pollution Rule Update, 17 (August 2016). Available at https://www.epa.gov/sites/production/files/2017-05/documents/aq_modeling_tsd_final_csapr_update.pdf.

    18 Ozone design values are calculated as the three-year average of the annual fourth-highest daily maximum 8-hour average measured ozone concentration at each monitor. See 80 FR 65296 (October 26, 2015) for a detailed explanation of the calculation of the 3-year 8-hour average and 40 CFR part 50, appendix U.

    19 Table two in the Sonoma Technologies, Inc. technical memorandum that supports Connecticut's petition indicates that the “maximum number of days any one monitor [in Connecticut] had a significant ozone contribution” was two, but the table does not indicate whether those days were high measured and/or modeled ozone days.

    We also note that the petition's evaluation of Brunner Island's impact on Connecticut relied on emission data from 2011 which, as discussed in more detail in the following paragraphs, is not likely to be representative of current and/or future NOX emissions and ozone levels in Connecticut, Pennsylvania, and the rest of the region.20 Therefore, the modeled impacts identified in the petition are likely also not representative of the impacts of Brunner Island's current emission levels on ozone concentrations in Connecticut.

    20 The Connecticut petition relies on air quality modeling that uses 2011 emission data. As an example of how emissions have changed between 2011 and a recent historical year, the EPA notes that Pennsylvania's 2017 EGU NOX ozone season emissions were 79 percent below 2011 levels. Brunner Island is located in Pennsylvania, which as a facility reduced its ozone season NOX emissions by 88 percent in 2017 relative to 2011 levels. These data are publicly available at https://www.epa.gov/ampd.

    With respect to the question of whether there are feasible and highly cost-effective NOX emission reductions available at Brunner Island (step three of the four step framework), Brunner Island primarily burned natural gas with a low NOX emission rate in the 2017 ozone season, and the EPA expects the facility to continue operating primarily by burning natural gas in future ozone seasons. As such, and as described in more detail in the following paragraphs, the EPA does not find at this time that there are additional feasible and highly cost-effective NOX emission reductions available at Brunner Island. The EPA therefore has no basis to determine, consistent with the standard of review outlined in section III.B, that Brunner Island would not emit in violation of the good neighbor provision with respect to the 2008 ozone NAAQS.

    Connecticut's CAA section 126(b) petition first proposes that the operation of natural gas is an available cost-effective emission reduction measure that could be implemented at Brunner Island. As noted previously, Brunner Island completed construction of a natural gas pipeline connection prior to the beginning of the 2017 ozone season (i.e., by May 1, 2017). Brunner Island operated primarily using natural gas as fuel for the 2017 ozone season. As a result, Brunner Island's actual ozone season NOx emissions declined from 3,765 tons in 2016 to 877 tons in 2017, and the facility's ozone season NOX emission rate declined from 0.370 lbs/mmBtu in 2016 to 0.090 lbs/mmBtu in 2017. Thus, Brunner Island has already implemented the emission reductions consistent with what Connecticut asserted would qualify as a cost-effective strategy for reducing NOX emissions. Accordingly, the EPA has determined that Connecticut's section 126(b) petition does not demonstrate that, at this current level of emissions, Brunner Island emits in violation of the good neighbor provision.

    Similarly, the EPA concludes that Connecticut's petition does not demonstrate that Brunner Island would emit in violation of the good neighbor provision. The EPA also believes that Brunner Island will continue to primarily use natural gas as fuel during future ozone seasons for several economic reasons. First, compliance with the CSAPR Update provides an economic incentive to cost-effectively reduce NOX emissions. Specifically, Brunner Island's participation in the CSAPR NOX Ozone Season Group 2 allowance trading program provides an economic incentive to produce electricity in ways that lower ozone-season NOX, such as by burning natural gas relative to burning coal at this particular power plant. Under the CSAPR Update, each ton of NOX emitted by a covered EGU has an economic value—either a direct cost in the case that a power plant must purchase an allowance to cover that ton of emissions for CSAPR Update compliance or an opportunity cost in the case that a power plant must use an allowance in its account for compliance and thereby foregoes the opportunity to sell that allowance on the market. The EPA notes that Brunner Island's 2017 emissions would have been approximately 2,714 tons more than its actual 2017 emissions if it had operated as a coal-fired generator, as it did in 2016.21 This reduction in NOX emissions that is attributable to primarily burning natural gas has an economic value in the CSAPR allowance trading market.

    21 This estimated emissions difference was calculated as the difference between 2017 reported NOX emissions of 877 tons and a counterfactual 2017 NOX emissions estimate of 3,591 tons created using 2017 operations (i.e., heat input of 19,406,872 mmBtu) multiplied by the 2016 NOX emission rate of 0.37 lb/mmBtu reflecting coal-fired generation. These data are publicly available at https://www.epa.gov/ampd.

    Second, there are continuing fuel-market based economic incentives suggesting that Brunner Island will continue to primarily burn natural gas during the ozone season. Brunner Island elected to add the capability to primarily utilize natural gas by way of a large capital investment in a new natural gas pipeline capacity connection. Brunner Island's operators would have planned for and constructed this project during the recent period of relatively low natural gas prices. In the years preceding the completion of this natural gas pipeline connection project, average annual Henry Hub natural gas spot prices ranged from $2.52/mmBtu to $4.37/mmBtu (i.e., between 2009 and 2016).22 The capital expenditure to construct a natural gas pipeline connection suggests that natural gas prices within this range make it economic (i.e., cheaper) for Brunner Island to burn natural gas to generate electricity relative to burning coal. As such, future natural gas prices in this same range suggest that Brunner Island will continue to primarily burn natural gas during future ozone seasons. The EPA and other independent analysts expect future natural gas prices to remain low and within this price range exhibited from 2009 to 2016 due both to supply and distribution pipeline build-out. For example, the Energy Information Administration's (EIA) 2018 Annual Energy Outlook (AEO) natural gas price projections for Henry Hub spot price range from $3.06/mmBtu in 2018 to $3.83/mmBtu in 2023.23 Moreover, the AEO short-term energy outlook and New York Mercantile Exchange futures further support the estimates of a continued low-cost natural gas supply.24 These independent analyses of fuel price data and projections lead to the EPA's expectation that fuel-market economics will continue to support Brunner Island's primarily burning natural gas during future ozone seasons through at least 2023. The EPA further notes that recent analyses projecting emission levels to a future year indicate that no air quality monitors in Connecticut are projected to have nonattainment or maintenance problems with respect to the 2008 ozone NAAQS by 2023.25 While this modeling is not necessarily determinative of whether Brunner Island emits or would emit in violation of the good neighbor provision, it does suggest that, by 2023, air quality in Connecticut may be significantly improved compared to present monitored values and it may no longer be necessary to further reduce emissions from any state to ensure attainment of the 2008 ozone NAAQS in Connecticut.26

    22 Henry Hub is a significant distribution hub located on the natural gas pipeline system located in Louisiana. Due to the significant volume of trades at this location, it is seen as the primary benchmark for the North American natural gas market. These data are publicly available at https://www.eia.gov/dnav/ng/hist/rngwhhdA.htm.

    23 In the 2018 reference case Annual Energy Outlook (AEO) released February 6, 2018, created by the U.S. Energy Information Administration (EIA), natural gas prices for the power sector for 2018 through 2023. Available at https://www.eia.gov/outlooks/aeo/data/browser/#/?id=13-AEO2018&cases=ref2018&sourcekey=0. Projected delivered natural gas prices for the electric power sector in the Middle Atlantic region, where Brunner Island is located, ranged between $3.56 in 2018 and $4.08/mmBtu in 2023. The projected delivered coal prices for the electric power sector in the Middle Atlantic region remain relatively constant, ranging from $2.51 to $2.56/mmBtu. These data are publicly available at https://www.eia.gov/outlooks/aeo/data/browser/#/?id=3-AEO2018&region=1-2&cases=ref2018&start=2016&end=2023&f=A&linechart=ref2018-d121317a.3-3-AEO2018.1-2&map=ref2018-d121317a.4-3-AEO2018.1-2&sourcekey=0.

    24 AEO short-term energy outlook available at https://www.eia.gov/outlooks/steo/report/natgas.php.

    25See Supplemental Information on the Interstate Transport State Implementation